## Facts

- In the late 1990s and early 2000s, Viktor Kozeny organized an investment scheme to obtain interests in Azerbaijan’s privatization of its state-owned oil company (SOCAR) through a structure associated with “Oily Rock.”
- The government alleged the scheme aimed to obtain SOCAR by bribing the Azerbaijani president and other officials.
- Frederic Bourke Jr., a U.S. investor, funded and participated in the venture and traveled to Azerbaijan in connection with the investment.
- Evidence showed Bourke knew of Kozeny’s reputation for dubious dealings, including media coverage describing serious misconduct.
- Testimony indicated Bourke was informed about the bribery plan and the investment structure by a lawyer involved with Kozeny.
- Bourke sought legal advice about potential exposure under the Foreign Corrupt Practices Act (FCPA) if bribery was occurring and was warned that investors could face liability.
- After receiving such advice, Bourke arranged additional entities and advisory structures affiliated with the investment to reduce or “shield” his legal exposure.
- During a federal investigation, Bourke told FBI agents he did not know Kozeny had bribed Azerbaijani officials.
- Bourke was indicted and, after a jury trial in the Southern District of New York, convicted of conspiracy to violate the FCPA and the Travel Act (18 U.S.C. § 371) and of making false statements to the FBI (18 U.S.C. § 1001).

## Issues

1. Whether the district court properly gave a conscious-avoidance (willful blindness) instruction to satisfy the knowledge element.
2. Whether a § 371 conspiracy verdict requires jury unanimity as to a specific overt act.
3. Whether the evidence was sufficient to prove Bourke knowingly joined the conspiracy and knowingly made false statements.
4. Whether admitting investor/adviser testimony and reputation/background evidence was an abuse of discretion.
5. Whether the court erred by declining to give a separate, more explicit good-faith instruction.

## Decision

- The Second Circuit affirmed the convictions.
- The conscious-avoidance instruction was warranted because the evidence permitted a finding that Bourke recognized a high probability of bribery and deliberately avoided confirming it.
- The jury was not required to unanimously agree on a particular overt act; unanimity that some overt act in furtherance occurred was enough.
- The evidence was sufficient for a rational jury to find the conspiracy knowledge element satisfied (including via conscious avoidance) and to find Bourke’s statements to investigators knowingly false.
- The challenged evidentiary rulings were within the district court’s discretion and were accompanied by limiting instructions that mitigated unfair prejudice.
- The refusal to give a separate good-faith instruction was not error because the charge as a whole required knowing conduct and excluded conviction based on mistake, negligence, or actual belief that no bribery occurred.

## Legal Principles

- A conscious-avoidance instruction is proper where (1) the defendant disputes required knowledge and (2) the evidence supports finding awareness of a high probability of the disputed fact and deliberate efforts to avoid confirming it.
- Conscious avoidance cannot substitute for knowledge if the defendant actually believed the unlawful conduct was not occurring, and it cannot rest on mere carelessness or negligence.
- For a conspiracy under 18 U.S.C. § 371, jurors must unanimously agree on the existence of the conspiracy and that an overt act occurred in furtherance, but need not unanimously select the same overt act.
- Sufficiency review asks whether, viewing the evidence in the government’s favor, any rational juror could find the essential elements beyond a reasonable doubt.
- District courts have broad discretion over relevance and prejudice determinations; limiting instructions may support admission of contextual state-of-mind and background evidence.
- A separate good-faith instruction is not required where the instructions adequately define the requisite mental state and make clear that mistake or inadvertence is not enough for conviction.

## Conclusion

The Second Circuit upheld Bourke’s convictions arising from an Azerbaijan privatization bribery scheme, ruling that the jury could infer knowledge through conscious avoidance, that unanimity on a specific overt act is unnecessary under § 371, and that the evidence and key evidentiary and instructional rulings supported the verdict.


United States v. Kozeny, 667 F.3d 122 (2d Cir. 2011)