Defense attorney Michael E. Tigar said he will renew efforts to win a retrial for Frederic A. Bourke Jr., who was convicted of foreign bribery in 2009, despite the fact that a federal appeals court has just rejected such a request.
The Second Circuit Court of Appeals yesterday issued a decision upholding the ruling of the Southern District of New York, which has twice denied Bourke a retrial based on the alleged perjury of a prosecution witness.
The Second Circuit last year also upheld Bourke’s initial conviction under the Foreign Corrupt Practices Act for participating in a corrupt 1998 oil investment scheme in Azerbaijan led by the Czech-born fugitive Viktor Kozeny. Bourke, a co-founder of the handbag and fashion accessories company Dooney & Bourke, was sentenced to a year and a day in prison and ordered to pay a $1 million fine.
Kozeny defeated an effort to extradite him from the Bahamas in March. Bourke, 66, remains free on a $20 million bond pending exhaustion of his appeals.
“We’re going to file a petition for rehearing,” Tigar told Just Anti-Corruption, adding that no decision had yet been made as to whether the petition would seek review by the same panel or by the entire Second Circuit en banc.
Tigar declined to comment on the substance of the appeal.
In arguments before the Southern District, Bourke has claimed that prosecutors knew that Swiss lawyer Hans Bodmer would give false testimony in claiming that he had informed Bourke of the corrupt nature of the investment at meeting in Baku, Azerbaijan. Bourke argued that the meeting as described could not have occurred because flight records confirmed that Bourke wasn’t in Baku at the time given by Bodmer.
In appealing to the Second Circuit in April, Bourke claimed that newly discovered evidence, in the form of statements made during oral arguments on appeal against his conviction, showed that prosecutors knew Bodmer was lying and allowed this.
In considering Bourke’s appeal, a three-judge panel said he could not surmount two necessary thresholds by presenting new evidence and demonstrating that Bodmer had committed perjury.
Prosecutors on direct appeal had said it would be “improper” for them to have shown Bodmer flight records to prevent him from falsely testifying about his meeting with Bourke. Bourke’s attorneys say this showed that prosecutors were aware of the false nature of Bodmer’s claims before he made them. The Second Circuit found this in effect to be nonsense.
“Rather, the only natural reading of the statement is that in a hypothetical situation where the government knew about the discrepancy, the government counsel believed it would be unethical to ‘coach’ the witness by confronting him with those inconsistencies. Regardless of whether this would be the appropriate response to such a hypothetical situation, it does not show that the government actually realized that Bodmer’s testimony conflicted with the flight records,” the judges wrote.
The decision was rendered by appellate judges John M. Walker, Robert A. Katzmann and Peter W. Hall.
“As the district court explained, it is difficult to see how a prosecutor’s hypothetical response to a hypothetical situation on appeal is ‘evidence, newly discovered or otherwise,’” the decision said.
“The district court has twice found that there was no conclusive evidence that Bodmer committed perjury and we reiterated in our opinion on Bourke’s direct appeal that a reasonable jury ‘could have concluded that the conversations [between Bodmer and Bourke] took place and that [Bodmer] simply got the dates wrong.’”
The case is 11-5390-cr in the Second Circuit.
Previous coverage by Just Anti-Corruption:
Bourke in New-Trial Bid Says U.S. Offered False Testimony
Thursday, April 12, 2012
Bourke’s FCPA Bribery Conviction Moves Closer to Second Appellate Review
Monday, March 5, 2012
Bourke Double Whammy: Appeal Fails, District Judge Rejects New Trial and Orders Sentence to Begin
Friday, December 16, 201