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Supreme Court Declines To Hear Bourke Case

It began in 2005 with this [1] indictment against Frederic Bourke and others.

Since then, the case against has had several twists and turns including dismissal of FCPA substantive charges on statute of limitations grounds, reinstatement of the FCPA substantive charges, a superseding indictment which then dropped the FCPA substantive charges in favor of conspiracy to violate the Foreign Corrupt Practices Act, among other charges.  (And that’s just the portion of the case dealing with Bourke, see here [2] for a prior post concerning Bourke’s co-defendant Victor Kozney).

Key events during the Bourke case was the summer of 2009 when Bourke was found guilty by a jury for conspiring to pay bribes to Azerbaijan officials in violation of the FCPA and Travel Act and for making false statements.  In November 2009 (see here [3] for the prior post), Judge Shira Scheindin (S.D.N.Y.) sentenced Bourke to 366 days in prison (followed by three years probation) and ordered him to pay $1 million fine.  At sentencing, Judge Scheindin stated “after years of supervising this case, it’s still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both.”

A Second Circuit appeal followed and prior posts here [4] and here [5] outlined Bourke’s appeal which principally focused on the FCPA’s knowledge element, including the trial court’s conscious avoidance jury instruction.  In December 2011 (see here [6] for the prior post), the Second Circuit affirmed Bourke’s conviction.  Given the nature of the appeal, the Second Circuit decision focused mostly on knowledge issues which are fact specific, although the Second Circuit’s holding on conscious avoidance was noteworthy in terms of FCPA jurisprudence. Essentially the court held that Bourke enabled himself to participate in a bribery scheme without acquiring actual knowledge of the specific conduct at issue and that such conscious avoidance, even if supported primarily by circumstantial evidence, is sufficient to warrant an FCPA-related charges.

Bourke still kept fighting.  He requested a new trial based on newly discovered evidence.  This request was denied by the trial court and affirmed by the Second Circuit in November 2012 (see here [7] for this prior post).

Bourke next sought review by the Supreme Court.  The questions presented for review concerned (i) willful blindness and the request to resolve circuit splits over the doctrine in aftermath of Supreme Court’s decision in Global-Tech (which addressed willful blindness in the context of a civil patent case); (ii) the request to resolve circuit splits over the need for unanimity on a specific overt act; and (iii) issues concerning Federal Rule of Evidence 106 (which states as follows – “iff a party introduces all or part of a  writing or recorded statement, an adverse party may require the  introduction, at that time, of any other part — or any other writing or  recorded statement — that in fairness ought to be considered at the  same time”).

Yesterday, the Supreme Court declined to hear Bourke’s appeal likely ending a case that has lingered since 2005.

As suggested by the above questions presented, while Bourke’s appeal occurred in the context of an FCPA case, the issues the Supreme Court declined to hear are not unique to the FCPA context.  Indeed, aside from the facts of the Bourke case and its procedural history which obviously necessitated reference to the FCPA, there is little substantive reference to the FCPA in the U.S. Opposition Brief (see here [8]).