We talked earlier about the "knowledge" element of an FCPA offense and the two kinds of "knowledge" the government can prove: What the defendant actually knows and what he or she should know under the circumstances. In Frederic Bourke's case, we guessed how Judge Scheindlin might have instructed the jury concerning "knowledge." Now we know, thanks to a generous reader who sent us her instructions.
Fifth Element – Knowledge of Payment to a Foreign OfficialThe complete Jury Charge in United States of America v. Frederic Bourke (United States District Court for the Southern District of New York, Case #: 1:05-cr-00518-SAS-2) can be downloaded here.
The fifth element of a violation of the FCPA is that the person knew that all or a portion of the payment or gift would be offered, given, or promised, directly or indirectly, to any foreign official.
A “foreign official” is: (1) an officer or employee of a foreign government; (2) any department, agency, or instrumentality of such foreign government; or (3) any person acting in an official capacity for or on behalf of such government or department, agency, or instrumentality.
An “instrumentality” of a foreign government includes government-owned or government-controlled companies.
The FCPA provides that a person’s state of mind is “knowing” with respect to conduct, a circumstance, or a result if:
i. such person is aware that such person is engaging in such conduct, that such circumstance exists, or that such result is substantially certain to occur; or
ii. such person has a firm belief that such circumstance exists or that such result is substantially certain to occur.
When knowledge of the existence of a particular fact is an element of the offense, such knowledge may be established if a person is aware of a high probability of its existence and consciously and intentionally avoided confirming that fact. Knowledge may be proven in this manner if, but only if, the person suspects the fact, realized its high probability, but refrained from obtaining the final confirmation because he wanted to be able to deny knowledge.
On the other hand, knowledge is not established in this manner if the person merely failed to learn the fact through negligence or if the person actually believed that the transaction was legal.
It also bears noting that while a finding that the person was aware of the high probability of the existence of a fact is enough to prove that this person possessed knowledge, it is not sufficient in order to determine that the person acted “willfully” or “corruptly,” which is a separate and distinct element of the offense.
Read all our posts about U.S. v. Kozeny et al and the prosecution of Frederic Bourke here.