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FCPA Blog Daily News

« Limiting The Local Law Defense | Main | Use It Or Lose It »

In Bourke's Case, We Stand Corrected

We never forget how many of our readers are real experts in the Foreign Corrupt Practices Act. And how generous they are with their help. It happened again late last week when they asked us to set the record straight in U.S. v. Kozeny. Although we'd posted recently that the prosecution in the Southern District of New York was over as to defendant Frederic Bourke, he and the government are in fact gearing up for a criminal trial. Here's what happened.

In September this year, we reported that Bourke -- indicted in May 2005 with Victor Kozeny and David Pinkerton over an alleged plot to bribe officials from Azerbaijan -- wouldn't face FCPA charges after all. In June 2007, the federal district court in Manhattan dismissed FCPA and related counts against the defendants. The court said the FCPA's five-year statute of limitations had already expired. The government appealed but the Second Circuit affirmed.

But here's what we missed. After Judge Shira A. Scheindlin’s initial decision dismissing charges based on the expiration of the statute of limitations, the government moved for reconsideration, which was granted. Judge Scheindlin then reinstated some of the charges before the issue went up on appeal to the Second Circuit. Thus, the case against Bourke is still pending for trial and has not been dismissed in its entirety.

(In preparing for Bourke's trial, Judge Scheindlin recently issued an opinion and order with a fascinating discussion about the FCPA's local-law defense; we'll talk about it in a separate post.)

So thanks to our friends for helping us out -- yet again.

As for Bourke's two co-defendants, the government dropped David Pinkerton from the case in July 2008. And Victor Kozeny is still fighting extradition from the Bahamas. There, says Bloomberg's David Glovin in a terrific profile and interview, Kozeny is under a Bahamian court order not to leave the island. The "Pirate of Prague," as he's called, spends 12 hours a day at his computer and claims he's broke and misunderstood:

The life of a fugitive is tough, Kozeny says during three days of interviews at his $29 million estate in July. "I feel a little like Napoleon sent to St. Helena," the 45-year-old Czech native says of his life in the Bahamas, which he hasn't left since 1999.
There's lots of great stuff in the story.

Finally, here are some apt words from Andrew Sullivan's article in the November 2008 edition of the Atlantic called Why I Blog:

The blogger can get away with less and afford fewer pretensions of authority. He is -- more than any writer of the past -- a node among other nodes, connected but unfinished without the links and the comments and the track-backs that make the blogosphere, at its best, a conversation, rather than a production.
To blog is therefore to let go of your writing in a way, to hold it at arm’s length, open it to scrutiny, allow it to float in the ether for a while, and to let others, as Montaigne did, pivot you toward relative truth. A blogger will notice this almost immediately upon starting. Some e-mailers, unsurprisingly, know more about a subject than the blogger does. They will send links, stories, and facts, challenging the blogger’s view of the world, sometimes outright refuting it, but more frequently adding context and nuance and complexity to an idea. The role of a blogger is not to defend against this but to embrace it. He is similar in this way to the host of a dinner party. He can provoke discussion or take a position, even passionately, but he also must create an atmosphere in which others want to participate.
Well said.


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