Attorney Harvey Silverglate had a thoughtful article in Forbes this month. His topic was the erosion of mens rea — the requirement in the U.S. that a person must intend to commit a crime to be guilty.
Silverglate was discussing a cocaine case in Florida. A federal judge there struck down a law on the grounds that it unconstitutionally allowed defendants to be convicted even if they were never proven to have intended to possess or sell drugs.
But Silverglate’s wider subject was, yes, white collar crime, including the FCPA.
It is a staple of our civilized criminal justice system that you cannot be convicted of committing a crime unless you knew what you were doing and realized that it was against the law. This idea comes from common-law, and is referred to in legalese as mens rea (Latin for “a guilty mind”). On the other hand, there is a pull exerted from the opposite direction, embodied in the old aphorism that “ignorance of the law is no defense.” Toggling between these two concepts has given rise to much misunderstanding; unfortunately for liberty, the latter notion has been gaining favor in recent years as the volume of prosecutions has been rising and the range and number of statutes markedly increasing.
Mens rea and the FCPA will be a hot topic again soon. It was an issue in Frederic Bourke’s prosecution and trial, and he’s raised it on appeal to the Second Circuit. (He’s also asking the trial court to grant him a new trial on other grounds.)
Bourke was convicted of investing in a deal that was tainted by bribery. He wasn’t charged under the FCPA itself but the general conspiracy statute (18 U.S.C. § 371). Because offenses under the FCPA’s antibribery provisions have to be ‘knowing,’ prosecutions for an FCPA conspiracy have the same ‘knowing’ element.
In a post on the White Collar Crime Prof Blog soon after Bourke’s conviction, Matthew Reinhard, an FCPA practitioner based in DC, said the judge allowed evidence that confused the jury on the mens rea element.
During trial the court admitted testimony and evidence from the Government about Azeri officials’ general reputation for corruption, and conversations between Bourke and other investors regarding concerns that the head of the investor consortium was paying bribes. In objecting to this evidence Bourke’s lawyers specifically noted that the evidence could confuse the jury into believing that the “conscious avoidance” standard is the same as the “should have known” negligence standard. Such fears appear well founded. Interviewed after the verdict, the jury foreman sounded as if he was reading from a tort-law hornbook when he dismissed the need for the court to have even given the “conscious avoidance” instruction, stating: “We thought he knew and he definitely should have known. He’s an investor. It’s his job to know.” See Entrepreneur Is Found Guilty of Conspiracy in Azerbaijan, Mark Hamblett, New York Law Journal, July 13, 2009 (emphasis added). That is a clear enunciation of the negligence standard, but it is notably not the “conscious avoidance” standard. I expect Bourke’s attorneys to include a judicially-appropriate re-phrasing of “we told you so” in their appeal briefs.
In his Forbes article, Silverglate went further. “The vast increase in the sheer numbers of prohibitions, and the attendant increase in rules so complex and/or vague that ordinarily skilled citizens (and often even their lawyers) are unable to understand their legal duties, only make the shift away from mens rea more disturbing and consequential.”
Does that describe Frederic Bourke and the path to his felony conviction? His lawyers think so.