Frederic Bourke said prosecutors in his 2009 trial knew a crucial government witness would give false testimony but they let him take the stand anyway. Now Bourke wants a new trial.
He was convicted in the Foley Square federal courthouse in Manhattan (left) of conspiracy to violate the FCPA and the Travel Act and sentenced to a year and a day in prison. He's free on bail during his appeal.
Separate from his appeal, Bourke is asking the trial court to grant him a new trial based on newly discovered evidence about the false testimony.
Bourke's beefed-up defense team, including high-profile lawyer Michael E. Tigar, said prosecutors admitted during oral arguments before the second circuit appeals court in February this year that some of Hans Bodmer's testimony was false. Bourke's lawyers said Bodmer's account about dates crucial to the government's theory of the case was wrong, including the day on which Bodmer said he talked with Bourke about Viktor Kozeny's plans to use bribery.
Bodmer, a Swiss lawyer who helped Kozeny move money that was used to bribe Azeri officials, is still waiting to be sentenced more than six years after pleading guilty to conspiracy to launder money. His cooperation with prosecutors might earn him a lighter sentence.
Bourke's lawyers have also charged that prosecutors knew beforehand that Bodnmer's testimony would be false. In their filing with the trial court asking for a new trial, Bourke's attorneys said:
The recent oral argument in the Second Circuit revealed a startling fact, previously unknown to the defense: The prosecution knew before key government witness Hans Bodmer testified that flight records from Viktor Kozeny's plane refuted Bodmer's account of the February 6, 1998 "walk talk" with defendant Frederic A. Bourke, Jr. Despite this knowledge, the prosecution presented Bodmer's false testimony, buttressed it with his time records and Rolf Schmid's redacted memorandum, and built its theory of the case around a chronology it knew to be wrong.
Bourke's newest lawyer, Michael Tigar, teaches at Duke law school and takes on controversial defense work. Past clients include Sen. Kay Bailey Hutchison, Scott McClellan, Rep. Ronald Dellums, Fernando Chavez, Lynne Stewart, and Terry Lynn Nichols. In April, he was granted permission to appear in the federal court where Bourke was convicted to argue that his client deserves a new trial.
Bourke, 65, is co-founder of well-known handbag brand Dooney & Bourke. He was married to Eleanor Clay Ford, whose mother was Henry Ford's only granddaughter. The jury found that he invested in Czech-born promoter Viktor Kozeny's unsuccessful attempt in 1998 to gain control of Azerbaijan's state oil company, Socar, despite knowing Kozeny planned to bribe Azeri leaders.
Kozeny has also been charged in the case but is a fugitive living in the Bahamas. He beat back an attempt by the Bahamas attorney general to extradite him to the U.S. The Bahamas government has appealed his extradition to the U.K. Privy Council.
In arguing for a new trial, Bourke's lawyers said,
The prosecutor's stunning admission at oral argument leaves little doubt that the government violated Bourke's right to due process through its presentation of Bodmer's testimony. This is a matter of the utmost importance. The United States presented false testimony from a richly rewarded criminal to convict a distinguished American. It rested its theory of the case in opening statement on the falsehood. It sought to corroborate the falsehood during trial with documents and testimony. Confronted by the defense with the cooperator's falsehood, the prosecutors stipulated to the actual facts, but refused to disavow the cooperator's story. Instead, they characterized the falsehood as a mere "mistake," invented a new, equally false story in closing argument, and, when that story collapsed, concocted yet another false story on appeal. In their zeal to convict, the prosecutors have forgotten that they are "officer[s] of the court whose duty is to present a forceful and truthful case to the jury, not to win at any cost.'" Drake v. Portuondo, 553 F.3d 230, 240 (2d Cir. 2009) (quoting Wei Su v. Filion, 335 F.3d 119, 126 (2d Cir. 2003)). The prosecutors' shifting stories--all of which may be imputed to the government as admissions, see, e.g., United States v. GAF Corp., 928 F.2d 1253, 1259-61 (2d Cir. 1991)--represent precisely the kind of "abuse and sharp practice" that the Second Circuit has condemned, e.g., United States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984).
Bourke's defense team said in the government's "witness prep" of Bodmer, prosecutors "made a deliberate decision not to 'rehabilitate" him--that is, not to correct testimony the prosecution knew from the records to be false.'"
Judge Shira A. Scheindlin presided over Bourke's trial and will hear his latest motion. The case is U.S. v. Kozeny et al, (U.S. District Court, Southern District of New York at Foley Square), Case # 1:05-cr-00518-SAS-2.
Download the Memorandum In Support Of Motion Of Frederic A. Bourke, Jr. For New Trial Based On Newly Discovered Evidence here.