United States v. Kozeny
667 F.3d 122
| 2d Cir. | 2011Background
- Bourke and Kozeny were indicted for FCPA conspiracy, Travel Act, money laundering, and false statements; Bourke was convicted on FCPA conspiracy and false statements after five-week trial.
- Kozeny and Bourke orchestrated a scheme to privatize SOCAR in Azerbaijan via vouchers and a government-aligned network of officials, involving payments and complex corporate structures.
- Investors, including Bourke, formed Minaret Group and Oily Rock to purchase vouchers; Bourke also created Blueport to funnel investment.
- Evidence included tapes and testimony showing Bourke’s awareness of bribery risks and efforts to shield US investors from liability, including through advisory entities.
- The district court denied Bourke’s post-trial motions; Bourke appealed challenging jury instructions, evidentiary rulings, and sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unanimity on a specific overt act is required | Bourke argues unanimity on which overt act supports conspiracy | Court should not require unanimous consent on a particular overt act | No requirement to unanimously agree on a single overt act |
| Whether conscious avoidance instruction was proper | Sufficient predicate evidence of conscious avoidance | Lack of predicate or improper to rely on conscious avoidance | Instruction supported by evidence; proper to submit conscious avoidance theory |
| Whether the mens rea for FCPA conspiracy required corrupt and willful knowledge | Need proof of corrupt willful knowledge for conspiracy | Conspiracy requires knowledge of conspiracy object, not each element; Feola guide | Correct to instruct based on conspiracy object; no error in omitting extra mens rea requirement |
| Whether the district court should have given a separate good faith instruction | Defendant entitled to separate good faith defense instruction | Good faith defense adequately encompassed in existing charge | No reversible error; existing charge adequately covered defense |
Key Cases Cited
- Richardson v. United States, 526 U.S. 813 (1999) (continuing series; unanimity on every underlying act not required)
- Braverman v. United States, 317 U.S. 49 (1942) (overt act need not be a crime; conspiracy elements vs. means)
- Schad v. Arizona, 501 U.S. 624 (1991) (indictment may plead overt acts; not necessary to specify which act)
- Ferrarini, 219 F.3d 145 (2d Cir. 2000) (conscious avoidance requires predicate, not mere equivocal evidence)
- Svoboda, 347 F.3d 471 (2d Cir. 2003) (circumstantial evidence can support conscious avoidance finding)
- Kaplan, 490 F.3d 110 (2d Cir. 2007) (evidence of others’ knowledge must be connected to defendant)
- Aina-Marshall, 336 F.3d 167 (2d Cir. 2003) (conscious avoidance where defendant aware of sources indicating risk)
- Doyle, 130 F.3d 523 (2d Cir. 1997) (defense charge not required to be separate if covered in charge)
- Feola, 420 U.S. 671 (1975) (conspiracy does not require substantive mens rea; general conspiracy suffices)
- Shaoul, 41 F.3d 811 (2d Cir. 1994) (plain error on unanimity instruction for overt acts)
- United States v. Jones, 712 F.2d 1316 (9th Cir. 1983) (unanimity on overt acts not strictly required)
- United States v. Haskell, 468 F.3d 1064 (8th Cir. 2006) (unanimity on which act sufficed in that case)
- United States v. Griggs, 569 F.3d 341 (7th Cir. 2009) (jury need not unanimously agree on which overt act)