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Waiting For Viktor

FCPA fugitive Viktor KozenyClayton Lewis was a partner in Omega Advisors, Inc., a hedge fund that invested and lost about $126 million in Viktor Kozeny’s Azeri privatization scheme.

Lewis,  prosecutors said, knew Kozeny planned to pay bribes but went ahead with the investment anyway. He was arrested in 2003 and two years later pleaded guilty to conspiracy to violate the FCPA.

But more than five years after pleading guilty, Lewis is still waiting to be sentenced. And that's the way the government wants it.

In a letter to Judge Naomi Reice Buchwald, the DOJ in September asked for another delay, this time until at least February 4, 2011.

Why? Because Lewis, the government said, would be needed for his testimony if Kozeny is ever brought to trial, and will receive sentencing credit for delivering the goods. So until that happens, Lewis should wait.

For how long? If prosecutors have an end date in mind, they aren't saying.

Kozeny is still a fugitive in the Bahamas. Nearly a year ago, he won a decision there to block his extradition to the U.S. The Bahamas government is appealing to the U.K. Privy Council -- the final court of appeal for some Commonwealth members.

Lewis already appeared as a cooperating witness for the government in Frederic Bourke's 2009 trial. Bourke was convicted and sentenced to a year-and-a-day in prison and is appealing.

Here's part of the DOJ's September letter to Judge Buchwald:

The extradition of this fugitive, Viktor Kozeny, is pending in the Commonwealth of the Bahamas. On January 26, 2010, the Court of Appeal in the Bahamas issued a decision denying the Government's extradition request, which had initially been granted by a lower court. The Attorney General of the Bahamas is in the process of litigating the appeal from that decision to the Privy Council in the United Kingdom, which has final jurisdiction over the matter. In the event that Kozeny does ultimately stand trial in this District, Lewis may be called as [a] Government witness. Therefore, an adjournment would benefit both the public, because Lewis will continue to be obligated to cooperate under the terms of his agreement, and the defendant, who will receive the benefit of the Court's consideration of further cooperation he may render.

Download the September 28, 2010 letter from AUSA Harry A. Chernoff to Judge Naomi Reice Buchwald in U.S. v. Clayton Lewis (U.S. District Court Southern District of New York (Foley Square) Case No.: 1:03-cr-00930-NRB-1) here.

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