On May 18, 2017, the U.S. Department of Treasury Office of Foreign Assets Control (OFAC) announced that it was imposing sanctions against eight members of the Venezuelan Supreme Court pursuant to the Venezuela sanctions program.

Background: The Venezuela Sanctions Program

In March 2015, the Obama administration imposed economic sanctions against Venezuela arising out of what U.S. officials believed to be serious human rights violations and corruption by Venezuelan law enforcement officials.¹ Though other sanctions programs such as the Transnational Criminal Organizations program focus on activities in Latin America,² the Venezuela program is currently the only program other than the Cuba embargo to focus on a specific country in the region. The Venezuela program allowed OFAC to designate certain Venezuelan officials and entities as Specially Designated Nationals (SDNs)—a determination that effectively would cut the designated persons or entities off from the U.S. financial system and prevent any U.S. person from engaging in transactions with them. Under the executive order issued by the president at the time, any designation would be based on a determination by OFAC that such an official was "responsible for or complicit in, or responsible for ordering, controlling, or otherwise directing, or to have participated in, directly or indirectly," actions undermining democratic institutions, penalties against free expression, serious human rights violation or engaged in "significant public corruption."³ Soon afterwards, OFAC adopted regulations implementing the Venezuela sanctions program, which can be found at 31 C.F.R. Part 591.

At the time the Venezuela sanctions program was created, President Obama's executive order designated seven Venezuelan government officials as SDNs. These were mostly Venezuelan police officials, intelligence agents, and prosecutors who were believed by U.S. officials to have been implicated in human rights violations or corruption. Following the original designations, over two years passed without an additional designation under the Venezuela sanctions program.⁴ That streak ended on May 18, 2017, when OFAC added eight members to the SDN list.  

The New Designations 

According to the press release that accompanied the designations, OFAC determined that these officials were "responsible for a number of judicial rulings in the past year that have usurped the authority of Venezuela's democratically-elected legislature, the National Assembly, including by allowing the executive branch to rule through emergency decree, thereby restricting the rights and thwarting the will of the Venezuelan people."⁵ In the press release announcing the sanctions, U.S. Treasury Secretary Steven T. Mnuchin stated, "[t]he Venezuelan people are suffering from a collapsing economy brought about by their government's mismanagement and corruption. Members of the country's Supreme Court of Justice have exacerbated the situation by consistently interfering with the legislative branch's authority . . . [b]y imposing these targeted sanctions, the United States is supporting the Venezuelan people in their efforts to protect and advance democratic governance in their country." The Venezuelan Supreme Court decisions cited in the U.S. Treasury press release arose over the past six months, and each was described as improperly increasing the Court's own power and/or the power of Venezuelan President Nicolas Maduro by usurping power from the democratically-elected Venezuelan legislature.

Key Takeaways

For the individuals subject to the designation, the immediate consequences are that their assets subject to U.S. jurisdiction are frozen and U.S. persons are prohibited from doing any business with them. For companies doing business in Venezuela, the main takeaway is that continuing to deal with these individuals in any way may have serious implications under U.S. law. In addition, the SDN designation applies not only to the individual but also to any entity that is 50 percent or more owned by that SDN, meaning that companies doing business in Venezuela (and especially U.S. companies doing business in Venezuela) must ensure that their compliance program not only screens for transactions involving the named individuals, but also any entities owned by these SDNs. Moreover, as they expressly link foreign public corruption to the imposition of U.S. sanctions, the Venezuela sanctions highlight the need for companies to have a multifaceted compliance program. Finally, because the situation in Venezuela is extremely volatile and additional sanctions are under discussion in the U.S. Congress and in the executive branch, companies doing business in Venezuela should carefully monitor further actions on this issue.  

For information, please contact:

Timothy P. O'Toole, totoole@milchev.com, 202-626-5552

Abigail E. Cotterill*

*Former Miller & Chevalier attorney

-----------

¹ For more details on the initiation of the Venezuela sanctions program, see Timothy O'Toole, The United States Sanctions Venezuela (and the sanctions are expected to broaden), FCPAmericas (Mar. 17, 2015).
² Press Release, U.S. Dep't of the Treas., Treasury Sanctions Latin American Criminal Organization (Oct. 11, 2012).
³ Exec. Order No. 13,692, 80 Fed. Reg. 12,747 (Mar. 8, 2015).
⁴ In February 2017, OFAC designated the Venezuelan Vice-President, Tareck Zaidan El Aissami Maddah, as an SDN, but this designation was made pursuant to the Foreign Narcotics Kingpin Designation Act, not the Venezuela sanctions program.
⁵ Press Release, U.S. Dep't of the Treas., Treasury Sanctions Eight Members of Venezuela's Supreme Court of Justice (May 18, 2017).

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.