Bourke v. The Professor

When it’s a bit of a snoozer around here, we know what to do — take a peek at the docket in U.S. v. Kozeny. There’s plenty happening there these days. And the latest is a pleading from Frederic Bourke’s lawyers that argues why the man to the left, Rajan Menon, PhD, should be barred from testifying as an expert witness for the prosecution at Bourke’s trial.

Dr. Menon is the Monroe J. Rathbone Professor of International Relations at Lehigh University. His bio is here. He’s a serious scholar — big thinker, prodigious author, polished speaker, and renowned expert on the Caspian Region. There’s no doubt, in other words, that the jury would find his testimony fascinating. And that, according to Bourke’s legal team, is exactly why the judge should keep the professor out of the courtroom.

Although Viktor Kozeny, for whom the case is named, is on the lamb in the Bahamas, his co-defendant Bourke will go on trial in New York on June 1. Federal prosecutors say Bourke violated the Foreign Corrupt Practices Act by investing in Kozeny’s attempted take-over of Azerbaijan’s state oil company, Socar, despite knowing Kozeny planned to bribe Azeri officials to get the deal done. Bourke, 62, faces up to 35 years in prison on the FCPA charges, money laundering and lying to federal investigators.

Coming back to Professor Menon, the feds say his testimony, among other things, would cover:

• the political careers of Azerbaijan’s rulers, Heydar and Ilham Aliyev;

• American and other foreign policy interests in Azerbaijan;

• geopolitical and economic concerns in American policy toward Azerbaijan, particularly its oil resources and its conflict with Armenia; and

• the problems of instability . . . and deprivation of human rights and civil liberties in Azerbaijan.

Interesting stuff for sure. But as Bourke’s lawyers argue, what have those topics got to do with the charges against their client?

Nothing, according to the defense, except to put Bourke in a bad light and confuse the heck out of the jury. Indeed, they argue, several subjects have no conceivable purpose other than to inflame and prejudice the jury by painting the ruling Azeri regime as oppressive and abusive, and suggesting that anybody who sought to deal with them—such as Mr. Bourke—must himself be a bad actor.

The government’s idea might be to show that Bourke should have been on notice of the likelihood of bribery. And that he wouldn’t have invested in a place like Azerbaijan unless he knew the fix was in. Even then, the defense says, evidence showing the ruling Azeri regime as a “a tinpot dictatorship that abuses its citizens, harasses its neighbors, and stands against the interests of the United States” carries too much risk of ruining Bourke’s right to a fair trial.

And anyway, they argue, generalized evidence of corruption is irrelevant. It only matters if the prosecution can also show that Bourke actually knew about the same evidence when he was deciding to invest with Kozeny. The real issues, they remind the court, are whether Bourke acted “corruptly” and “willfully.” If the government’s expert testimony doesn’t shed light on those elements of his alleged FCPA offense, there’s no point in hearing it.

Now it’s up to Judge Shira Scheindlin to decide who’s right, and whether to give Professor Menon a chance to talk to the jury inside her Manhattan courtroom.

Download a copy of the May 18, 2009 Memorandum of Law in Support of Bourke’s Motion In Limine to Exclude the Testimony of Rajan Menon here.

Read all our posts about U.S. v. Kozeny and the prosecution of Frederic Bourke here.
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