In a globalized business environment, sanctions imposed by the Office of Foreign Assets Control (OFAC) represent a crucial regulatory framework for protecting the national security and international interests of the United States. However, operating in this context entails significant risks for companies and their directors, especially when business relationships exist with sanctioned entities. This article addresses the criminal risks associated with conspiracy to violate OFAC sanctions and offers practical recommendations for staying within the legal framework.

What is OFAC and how does it operate?

OFAC is an agency of the U.S. Department of the Treasury that administers and enforces economic and trade sanctions against countries, entities and individuals linked to illicit activities such as terrorism, drug trafficking, arms proliferation and corruption. Sanctions can include freezing assets and prohibiting trade transactions with those designated on its list, known as the List of Specially Designated Nationals (SDN).

Failure to comply with these sanctions not only exposes companies to significant financial penalties, but can also result in criminal liability, including charges of conspiracy to violate specific or general sanctions.

The Crime of Conspiracy in the Context of OFAC Sanctions

The crime of conspiracy occurs when two or more persons agree to carry out an illegal action, such as conducting transactions with sanctioned entities, even if the transaction is not consummated. Under U.S. law, it is sufficient to show that an agreement existed and that at least one of the conspirators performed an act preparatory to consummating the offense.

For company directors, this means that they do not need to be directly involved in the illegal operation to be charged; it is sufficient that they are aware of or willfully disregard the restrictions imposed by OFAC. Penalties can include imprisonment, substantial fines and irreparable damage to corporate reputation.

Main risks for entrepreneurs and directors

1. Indirect business relationships: Companies may be penalized if their business partners or subsidiaries operate with sanctioned entities.
2. Inadequate Due DiligenceLack of internal controls to verify the legitimacy of business partners and the source of funds.
3. Use of intermediaries or third partiesTransactions carried out through third parties attempting to evade sanctions.
4. Ignorance of SDN list updates: Sanctions and designated entities are constantly changing, increasing the risk of inadvertent non-compliance.

Recommendations for Operating Within the Legal Framework

1. Implement robust compliance programsDesign specific internal policies to ensure compliance with OFAC sanctions. This includes periodic training of staff on international regulations.
2. Perform comprehensive due diligenceIn-depth verification of customers, suppliers and business partners through tracking tools including SDN list analysis.
3. Hire legal and financial expertsConsult with law firms specializing in economic and international criminal law to identify risks and mitigate possible violations.
4. Constant monitoring of operationsImplement systems to detect suspicious transactions and early warning mechanisms to prevent transactions with sanctioned entities.
5. Adoption of advanced technologyUse compliance software that automates monitoring and enables real-time detection of potential violations.
6. Review contracts and commercial agreementsInclude clauses obliging counterparties to comply with OFAC regulations, limiting the liability of the entrepreneur in case of infringement by third parties.

Conclusion

Compliance with OFAC sanctions is not only a legal obligation, but also an essential measure to preserve the integrity and sustainability of any company with international operations. Conspiracy to violate these sanctions represents a serious risk not only for organizations, but also for directors and officers, who may face significant criminal liability.

At Venfort Abogados, we have a team specialized in legal risk management and the design of preventive strategies for companies operating in regulated markets. If your company needs advice on this matter, we are here to help you protect your business and keep it within the legal framework.

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