Bodmer, Like Lewis, Waits For Sentencing

The Swiss lawyer who helped FCPA fugitive Viktor Kozeny move money that was used to bribe Azeri officials, and who later provided key testimony against Kozeny’s co-defendant Frederic Bourke, is still waiting to be sentenced more than six years after pleading guilty to conspiracy to launder money. 

Hans Bodmer’s next sentencing date in U.S. federal district court in Manhattan is set for February 17. But another delay is nearly certain. The government wants Bodmer’s testimony against Kozeny if he’s ever brought to trial in the United States.

For more than a decade, Kozeny has been a fugitive living in the Bahamas. The government there, pushed by the DOJ, has been trying to extradite him. Kozeny won an appellate court decision blocking the extradition. Now the Bahamas attorney general has elevated the case to the court of final appeal — the Privy Council in London. There’s no word when the Privy Council’s review might happen but it’s unlikely to be completed by next month.

Another potential witness against Kozeny, Clayton Lewis, is also waiting to be sentenced. He pleaded guilty five years ago to conspiracy to violate the FCPA.

Bodmer was indicted by a New York federal grand jury in August 2003 on single counts of conspiracy to violate the Foreign Corrupt Practices Act and to launder money. The court dismissed the FCPA charge, ruling that before being amended in 1998, the FCPA didn’t apply to Bodmer — a non-U.S.-resident foreign national who served as an agent of a domestic concern. After the FCPA conspiracy charge was dismissed, Bodmer pleaded guilty in October 2004 to conspiracy to launder money.

He was released on bail of $1.5 million, including $1.45 million in cash first held at the Royal Bank of Scotland in London and later transferred with the court’s consent to Thurgauer Kantonalbank in Switzerland.

Bodmer faces ten years in prison on the money-laundering conspiracy charge. Because of his guilty plea and cooperation with the DOJ in the prosecution of Frederick Bourke, his sentence will likely be much lighter.

With help from Bodmer’s detailed testimony, Bourke was convicted in July 2009 of conspiracy to violate the FCPA and lying to FBI agents. He was sentenced to a year and a day in prison. He’s free on bail while he appeals his conviction.

So for Hans Bodmer and Clayton Lewis, the wait to be sentenced continues while the U.S. keeps pushing for Kozeny’s extradition. What happens if Kozeny never comes to trial in the U.S.? Do Bodmer and Lewis still earn sentencing credit for their willingness to testify against him? Or would Kozeny’s victory be a case of bad luck for each of them?

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In an August 2010 letter to the judge asking for Bodmer’s latest sentencing delay, the DOJ said:

As the court is aware, Bodmer testified at a trial that concluded in July 2009. It is expected that Bodmer would be a witness if a further trial is required with respect to the fugitive Viktor Kozeny, whose extradition 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. The Attorney General of the Bahamas is in the process of litigating the appeal from that decision to the Privy Council of the United Kingdom, which has final jurisdiction over the matter. Assuming that Kozeny does ultimately stand trial in this court, Bodmer would be an important Government witness, and accordingly the cooperation he would render should be considered in the sentence he ultimately receives.

Download a copy of the DOJ’s August 18, 2010 letter to Judge Shira Scheindlin annotated with her handwritten order in U.S. v. Kozeny here.