Frederic Bourke can remain free during his appeals, even while he asks the United States Supreme Court to review his case.
That means he won’t go to prison anytime soon and may never spend time behind bars.
Judge Shira Scheindlin released Bourke on bail until all his new appeals are finished. She issued her ruling on December 28. Bourke had been scheduled to start serving his jail time on January 3.
He was given a year and a day in prison after a jury convicted him in 2009 of conspiracy to violate the FCPA. Judge Scheindlin presided at the trial and decided on his sentence.
In mid December last year, Bourke lost his appeal to the U.S. Court of Appeals for the Second Circuit. The next day, Judge Scheindlin denied his motion for a new trial. A few days later she set the date for him to report to prison.
But Bourke’s release during any new appeals came after his lawyer, Michael Tigar, wrote a letter to Judge Scheindlin. Tigar said an issue for further appeals is ‘conscious avoidance’ and Judge Scheindlin’s instruction to the jury about it. Tigar called it the ‘ostrich instruction.’
Bourke’s case, Tigar wrote, presents the conscious avoidance issue in a way ‘that merits consideration on rehearing, rehearing en banc and certiorari.’
En banc refers to a fresh review by a larger panel of judges from the federal appeals court. Certiorari means a request to the U.S. Supreme Court for review. Exhausting the entire appeal process can take years.
Tigar’s letter said:
Ever since Judge, later Justice, Kennedy’s opinion in United States v. Jewell, 532 F.2d 697 (9th Cir. 1976), judges, lawyers and academic commentators have been awaiting a Supreme Court decision on the ostrich instruction. . . . For decades, the Supreme Court has been strengthening the law of mens rea, particularly for statutory crimes. See, e.g., Cheek v. United States, 498 US. 192 (1991); Ratzlaffv. United States, 510 US. 135 (1994); Staples v. United States, 511 US. 600 (1994). See also Liparota v. United States, 471 U.S. 419 (1985). At the same time, prosecutors have been working to relax the proof required to sustain the burden that the Court has carefully erected.
Bourke has been free on $20 million bond since his conviction in 2009. He’s not allowed to travel overseas.
Tigar said the conscious avoidance standard Judge Scheindlin used at Bourke’s trial ‘allows juries to convict upon a finding of negligence for crimes that require intent.’ He was quoting Judge Posner in U.S. v. Giovanetti, 919 F.2d 1223 (7th Cir. 1990).
After his sentencing, Bourke was assigned to the Federal Correctional Institution of Englewood. It’s a low security prison in Littleton, Colorado (15 miles southwest of Denver). There’s also a minimum security camp next door. Records at the Federal Bureau of Prisons show Bourke, 65, as prisoner number 58333-054. His status was marked as ‘in transit.’ But the recent ruling meant he never reported to the prison.
Judge Scheindlin’s December 28 order was hand written in the margins of Tigar’s letter. The judge said: ‘For the reasons previously explained by this Court, bail is continued for the remainder of the appellate process — including disposition of rehearing and rehearing en banc and disposition of any petition for certiorari to the U.S. Supreme Court.’
Download a copy of Michael Tigar’s December 22, 2011 letter to Judge Judge Shira A. Scheindlin endorsed and ordered on December 28, 2011 in U.S. v. Kozeny et al, U.S. District Court, Southern District of New York (Foley Square), Case #: 1:05-cr-00518-SAS-2 here.
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