Bloomberg’s David Glovin filed a story Friday (here) reporting that Frederic Bourke will argue that he didn’t violate the Foreign Corrupt Practices Act because there were no corrupt payments to foreign officials. Bourke, 62, was indicted in 2005 with Czech-born fugitive Viktor Kozeny, 45, for bribing government officials in Azerbaijan in a failed attempt to take over the state oil company known as Socar.
Bourke’s trial on FCPA charges, money laundering and lying to federal investigators is scheduled to start June 1. He could be jailed up to 35 years if convicted on all counts. His co-defendant Kozeny has been a fugitive for about a decade. From the Bahamas, he’s been fighting extradition to the United States. He’s also wanted by the Czech Republic for allegedly looting a national pension fund.
Glovin learned details of Bourke’s defense from a hearing transcript and other documents filed in the U.S. District Court in Manhattan. But after he obtained copies, Judge Shira Scheindlin sealed the documents from public view. Glovin reported, however, that at a December 24, 2008 hearing, Dan Webb, Bourke’s lead trial lawyer at the time, said, “It is not clear if there was ever a bribery. Whether or not bribes actually got paid here, I am probably going to be refuting.”
Bourke invested and lost $8 million with Kozeny. The government alleged Kozeny’s scheme to bribe Azeri leaders involved giving them vouchers that Azeri citizens could use to participate in privatizations. With $350 million from his investors, Kozeny was supposed to buy enough vouchers to gain control over Socar if it was privatized. U.S. prosecutors allege Kozeny and Bourke gave some of the vouchers to Azeri officials.
Now, though, according to Glovin’s story, most of the vouchers can be accounted for. They’re in the hands of Gerald O’Shaughnessy, another Kozeny investor who lives in Wichita, Kansas. O’Shaughnessy hasn’t been charged in the case. “The documents tell of O’Shaughnessy’s years-long quest to recover the $350 million he and other investors gave Kozeny to buy vouchers,” Glovin’s story says. “According to the documents, O’Shaughnessy had gained control by 2003 of about three-quarters of the outstanding vouchers. He then sought to force the Azeris to buy them for $350 million so investors could recover their lost stakes, the documents show.”
Leon G. Cooperman’s Omega Advisors Inc. invested more than $100 million with Kozeny in 1998 for the Azeri privatization program. When the program fizzled, Omega and the other investors lost their entire investments. In 2004, Clayton Lewis, a former employee of Omega, pleaded guilty to conspiring to violate the FCPA in connection with the Kozeny investment. And in July 2007, Omega itself settled with the government, entering into a non-prosecution agreement with the DOJ and agreeing to a civil forfeiture of $500,000.
In addition to the federal FCPA indictment, New York state prosecutors charged Kozeny with fraud for keeping $182 million of his investors’ money.
Bourke — owner of the luxury handbag brand Dooney & Bourke — said after his indictment in 2005 that he invested $8 million with Kozeny only after lawyers had advised him the deal was legal. Soon after, he said, he suspected illegal behavior. His lawyers said he traveled to Azerbaijan to warn then-President Heydar Aliyev about the scheme and he testified before a New York grand jury “as a victim of Kozeny’s fraud.”
Earlier this month, Bourke’s lead trial counsel, Dan Webb, withdrew from the case. Bourke brought in new lawyers–Denver-based Harold A. Haddon and Saskia A. Jordan. In a March 6 letter to Judge Scheindlin, Webb said,
Mr. Bourke has requested that the Haddon firm serve as lead trial counsel in this matter and that I seek to withdraw my appearance. Going forward, I will cease to have any involvement in the case. At Mr. Bourke’s request, my colleagues at Winston & Strawn will continue their involvement in the case through trial.
Harold Haddon’s former clients include John and Patsy Ramsey and Kobe Bryant.
Last November, Webb raised the possibility that Bourke’s prosecution was vindictive. He asked Judge Scheindlin then to review internal prosecution documents prepared before Bourke was charged. “The documents may show,” Webb said, “whether prosecutors brought the case to punish Bourke for disclosing a crime involving the Socar deal and interfering in the U.S.’s relationship with Azerbaijan a decade ago.”
A copy of Dan Webb’s March 6, 2009 letter to Judge Scheindlin seeking to withdraw from the case can be downloaded here.
Read all posts about U.S. v. Kozeny and the prosecution of Frederic Bourke here.