“Vigor” Mortis

United States v. Bourke, No. 09-4704-cr (2d Cir. December 14, 2011) (Pooler, Hall, CJJ)

Defendant Bourke was convicted of violating the Foreign Corrupt Practices Act, the Travel Act, and § 1001 atfer his involvement in a complex bribery scheme arising from the late 1990’s privatization of Azerbaijan’s state-owned oil company, SOCAR. Although it noted that that Bourke “vigorously attack[ed]” his conviction, the circuit affirmed.

Bourke mounted several unsuccessful challenges to the jury instructions. First, the district court was not required to instruct the jury that it needed to agree unanimously on the specific overt act committed in furtherance of the conspiracy charge. The “jury did not need to agree on a single overt act to sustain a conspiracy conviction,” and the overt act “need not [even] be a crime.” Nor did the district court err in giving a conscious avoidance instruction – there was “ample evidence to support a conviction” on this theory, including Bourke’s awareness of the pervasiveness of corruption in Azerbaijan, the unsavory reputation of some of his confederates, and his creation of shell companies to shield himself from liability for bribery payments. In addition, the wording of the charge itself was correct, and did not allow the jury to convict Bourke based solely on negligence. Bourke also challenged the mens rea charge, but the charge was correct. It instructed the jury that, to convict, it must find that Bourke knew of the conspiracy’s object and that he intended for that object to be accomplished, and also correctly defined the mens rea elements of the object offenses. Finally, the court did not err in giving a separate “good faith” instruction, because it covered the concept elsewhere in the charge.

Bourke had no better success with his claims that the district court made erroneous evidentiary rulings. The court did not err in concluding that the testimony of a proposed defense witness was irrelevant; that witness had not participated in any of the relevant transactions. The court also did not violate the “rule of completeness” in admitting part of a written memorandum as one witness’ prior consistent statement. The omitted portions of the memorandum were irrelevant