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United States v. Kozeny

United States Court of Appeals for the Second Circuit
667 F.3d 122 (2011)


Facts

Viktor Kozeny (defendant) was an international entrepreneur known for his shady business dealings. In the 1990s, Kozeny set up a complex bribery scheme in Azerbaijan in the hopes of purchasing a state-owned oil company, which Azerbaijan was in the process of privatizing. The bribery scheme was effected through an entity set up by Kozeny called Oily Rock. Frederic Bourke Jr. (defendant) was interested in investing in Oily Rock and traveled to Azerbaijan in February 1998. Bourke was aware of Kozeny’s reputation and asked Kozeny’s attorney about the Azerbaijanis. Kozeny’s attorney later testified that he told Bourke about the bribery scheme and the legal structure of Oily Rock. Bourke later sought his attorneys’ advice on how to limit his liability under the Foreign Corrupt Practices Act (FCPA) in the event that Kozeny was involved in bribery. After his attorneys advised him that he and other investors could be exposed to FCPA liability, Bourke set up companies affiliated with Oily Rock to protect himself and other United States investors from liability under the FCPA. Around late 2000, the United States Attorney’s Office began an investigation into the bribery scheme. When asked whether Kozeny had bribed Azerbaijani officials, Bourke denied knowledge. In 2005, Bourke and Kozeny were indicted for, among other crimes, violating the FCPA. At trial, the prosecutor (plaintiff) sought to prove that Bourke had actual knowledge of Kozeny’s bribery scheme. Alternatively, the district court instructed the jury on a conscious-avoidance charge. The jury convicted Bourke for violating the FCPA. Bourke appealed, arguing in part that the conscious-avoidance jury instructions were given in error.

Rule of Law

Issue

Holding and Reasoning (Pooler, J.)

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