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United States v. Kozeny

United States Court of Appeals for the Second Circuit

February 10, 2011, Argued; December 14, 2011, Decided

Docket No. 09-4704-cr(L)

Opinion

 [*126]  POOLER, Circuit Judge:

Azerbaijan reclaimed its independence in 1991 following the collapse of the Soviet Union, gaining control over its rich stores of oil and natural gas. In the mid-1990s, Azerbaijan began privatizing various state assets. The candidates for privatization included the state-owned oil company, SOCAR. The government alleged that in an attempt to capitalize on this opportunity, Viktor Kozeny and  [**3] Frederic Bourke Jr. conspired with others in a scheme to illegally purchase SOCAR by bribing the Azerbaijani president and other officials. After a jury trial, Bourke was convicted of conspiring to violate the Foreign Corrupt Practices Act ("FCPA"), 15 U.S.C. § 78dd-1 et seq., 18 U.S.C. § 371, and the Travel Act, 18 U.S.C. § 1953, and of making false statements in violation of 18 U.S.C. § 1001. The district court denied Bourke's motions for new trial and for judgment of acquittal.

On appeal, Bourke vigorously attacks his conviction on several fronts, including (1) the correctness of the jury instructions given, (2) the sufficiency of the evidence, and (3) the propriety of certain evidentiary  [*127]  rulings made by the district court. For the reasons given below, we affirm.

BACKGROUND

Bourke co-founded the accessory company Dooney & Bourke, and considers himself an inventor, investor and philanthropist. In the mid-1990s, Bourke met Viktor Kozeny. Dubbed the "Pirate of Prague" by Fortune magazine, Kozeny is an international entrepreneur known for shady dealings. In a December 1996 article, Fortune detailed how Kozeny and his partner engaged in massive fraud during the privatization of the state-owned  [**4] industries in the Czech Republic, including engaging in insider trading, purchasing state secrets and participating in various other unsavory business practices. Testimony at trial established that Bourke was aware of Kozeny's "Pirate of Prague" moniker.

In the late 1990s, Azerbaijan began converting state-controlled industries to private ownership through a voucher-based initiative, similar to the one used in the Czech Republic. Among the assets being considered for privatization was SOCAR, the state-owned Azerbaijani oil company. However, observers considered it unlikely that SOCAR would ever actually be privatized, given its economic importance to the country. As part of the privatization process, the Azerbaijani government issued each citizen a voucher book with four coupons. The coupons, which could be freely traded, were used to bid at auction for shares of state-owned enterprises being privatized. Foreigners seeking to participate in the auctions needed to pair their vouchers with options issued by the State Property Committee ("SPC"), the entity charged with administrating the privatization process. Every coupon needed to be matched with an option, so to bid a complete voucher  [**5] book a foreigner needed to match the four coupons with four options. Voucher books sold for roughly $12.

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667 F.3d 122 *; 2011 U.S. App. LEXIS 24740 **; 87 Fed. R. Evid. Serv. (Callaghan) 104

UNITED STATES OF AMERICA, Appellee, v. VIKTOR KOZENY, DAVID PINKERTON, Defendants, FREDERIC BOURKE, JR., Defendant-Appellant, LANDLOCKED SHIPPING CO., DR. JITKA CHVATIK, Petitioners.1

Subsequent History: As Corrected December 14, 2011.

Motion for new trial denied by United States v. Bourke, 2011 U.S. Dist. LEXIS 146545 (S.D.N.Y., Dec. 15, 2011)

US Supreme Court certiorari denied by Bourke v. United States, 2013 U.S. LEXIS 2971 (U.S., Apr. 15, 2013)

Prior History:  [**1] Frederic Bourke Jr. appeals from a judgment of conviction entered on November 12, 2009, in the United States District Court for the Southern District of New York (Scheindlin, J.) following a jury trial. Bourke was convicted of conspiring to violate the Foreign Corrupt Practices Act and the Travel Act in violation of 18 U.S.C. § 371 and of making false statements in violation of 18 U.S.C. § 1001. The district court denied Bourke's motions for new trial and for judgment of acquittal.

On appeal, Bourke vigorously attacks his conviction on several fronts, including the (1) correctness of the jury instructions given, (2) the propriety of certain evidentiary rulings made by the district court, and (3) the sufficiency of the evidence supporting the false statements conviction. For the reasons given below, we affirm.

United States v. Kozeny, 638 F. Supp. 2d 348, 2009 U.S. Dist. LEXIS 59209 (S.D.N.Y., 2009)United States v. Kozeny, 664 F. Supp. 2d 369, 2009 U.S. Dist. LEXIS 95233 (S.D.N.Y., 2009)

Disposition: Affirmed.

CORE TERMS

district court, conspiracy, conversation, overt act, vouchers, conscious, unanimously, investors, argues, bribes, memo, traveled, convict, instruct a jury, willfully, corrupt, corruptly, jurors, invested, false statement, indictment, quotation, violating, joined, marks, furtherance of a conspiracy, beyond a reasonable doubt, due diligence, take place, deliberately

Criminal Law & Procedure, Trials, Jury Instructions, General Overview, Standards of Review, De Novo Review, Jury Instructions, Harmless & Invited Error, Requests to Charge, Particular Instructions, Elements of Offense, Unanimity, Inchoate Crimes, Conspiracy, Elements, Acts & Mental States, Mens Rea, Knowledge, Purpose, General Intent, Theory of Defense, Appeals, Reversible Error, Abuse of Discretion, Evidence, Evidence, Admissibility, Procedural Matters, Rulings on Evidence, Relevance, Exclusion of Relevant Evidence, Confusion, Prejudice & Waste of Time, Types of Evidence, Documentary Evidence, Completeness, Sufficiency of Evidence