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United States Court of Appeals
FOR THE SECOND CIRCUIT
UNITED STATES OF AMERICA,
LANDLOCKED SHIPPING COMPANY, JITKA CHVATIK, Doctor,
FREDERIC BOURKE, JR.,
VIKTOR KOZENY, DAVID PINKERTON,
!! ! !
INITIAL BRIEF AND SPECIAL APPENDIX
Harold A. Haddon
Saskia A. Jordan
HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Michael E. Tigar
Jane Blanksteen Tigar
LAW OFFICE OF MICHAEL E. TIGAR
P.O. Box 528
Oriental, North Carolina 28571
On Appeal from the United States District Court
for the Southern District of New York (New York City)
07-3107-CR, 09-4704-CR, 09-5149-CR
John D. Cline
LAW OFFICE OF JOHN D. CLINE
235 Montgomery Street, Suite 1070
San Francisco, California 94104
Attorneys for Defendant-Appellant
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TABLE OF CONTENTS
STATEMENT OF SUBJECT MATTER AND APPELLATE
JURISDICTION ............................................................................................. 1
STATEMENT OF THE ISSUES.............................................................................. 1
STATEMENT OF THE CASE ................................................................................. 2
I. INTRODUCTION. ............................................................................... 2
II. THE PROCEEDINGS TO DATE. ...................................................... 5
III. STATEMENT OF FACTS. .................................................................. 7
A. Kozeny's Scheme. ...................................................................... 7
B. Bodmer's False Story at Trial. .................................................... 8
C. The Government's Position on Appeal. ................................... 16
D. The Government's Response to the Motion for New
Trial. ......................................................................................... 19
SUMMARY OF THE ARGUMENT ..................................................................... 22
ARGUMENT .......................................................................................................... 25
I. PROSECUTORS ARE FORBIDDEN FROM PRESENTING
MATERIALLY FALSE TESTIMONY. ........................................... 25
II. THE DISTRICT COURT SHOULD AT LEAST HAVE HELD
AN EVIDENTIARY HEARING. ...................................................... 32
A. The Record Raises Significant Questions About the
Prosecutors' Knowledge of Bodmer's False Walk Talk
Story. ........................................................................................ 33
B. An Evidentiary Hearing Is Necessary. ..................................... 37
III. THE PROSECUTORS' PRESENTATION OF BODMER'S
FALSE WALK TALK TESTIMONY REQUIRES
REVERSAL. ...................................................................................... 42
IV. BOURKE PRESENTED NEWLY DISCOVERED
EVIDENCE. ....................................................................................... 43
CONCLUSION ....................................................................................................... 47
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CERTIFICATE OF COMPLIANCE ...................................................................... 49
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TABLE OF CITATIONS
Alcorta v. Texas, 355 U.S. 28 (1957) .......................................................................26
Banks v. Dretke, 540 U.S. 668 (2004) .....................................................................44
Communist Party of United States v. SACB, 351 U.S. 115 (1956) .........................39
Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993) .............................................39
Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009)...................................... 26, 32, 40
Franks v. Delaware, 438 U.S. 154 (1978) ...............................................................39
Giglio v. United States, 405 U.S. 150 (1972) ................................................... 26, 37
Kyles v. Whitley, 514 U.S. 419 (1995) ........................................................ 25, 37, 46
Mooney v. Holohan, 294 U.S. 103 (1935) ........................................................ 22, 26
Napue v. Illinois, 360 U.S. 264 (1959) ............................................................. 26, 30
Roberts v. United States, 389 U.S. 18 (1967) ..........................................................39
United States v. Agurs, 427 U.S. 97 (1976) ................................................ 26, 27, 42
United States v. Blair, 958 F.2d 26 (2d Cir. 1991) ..................................................43
United States v. Bourke, 667 F.3d 122 (2d Cir. 2011) .........................................6, 10
United States v. Ferguson, 653 F.3d 61, 83 (2d Cir. 2011) .....................................43
United States v. Freeman, 2009 U.S. Dist. LEXIS 76973
(N.D. Ill. Aug. 26, 2009) ......................................................................................30
United States v. Freeman, 650 F.3d 673 (7th Cir. 2011)................................. passim
United States v. GAF Corp., 928 F.2d 1253 (2d Cir. 1991) ....................... 25, 45, 47
United States v. Helmsley, 985 F.2d 1202 (2d Cir. 1993) .......................................40
United States v. Kozeny, 493 F. Supp. 2d 693 (S.D.N.Y. 2007) ............................... 5
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United States v. Kozeny, 541 F.3d 166 (2d Cir. 2008) .............................................. 5
United States v. McKeon, 738 F.2d 26 (2d Cir. 1984) ..................................... passim
United States v. Mitchell, 365 F.3d 215 (3d Cir. 2004) ...........................................39
United States v. Sager, 227 F.3d 1138, 1145-46 (9th Cir. 2000) ............................46
United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) .............................. 26, 38, 42
United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) ................................... passim
United States v. Zichettello, 208 F.3d 72 (2d Cir. 2000) .........................................43
Wei Su v. Filion, 335 F.3d 119, 126 (2d Cir. 2003) .................................................26
18 U.S.C. § 3231 ........................................................................................................ 1
28 U.S.C. § 1291 ........................................................................................................ 1
Restatement (Third) of the Law Governing Lawyers § 116, comment b
(American Law Institute 2000) ............................................................................29
Stephen S. Trott, Words of Warning for Prosecutors Using Criminals
as Witnesses, 47 Hastings L.J. 1381 (1996) .........................................................26
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STATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION
The district court had subject matter jurisdiction under 18 U.S.C. § 3231.
The district court denied appellant Frederic Bourke, Jr.'s timely motion for new
trial based on newly discovered evidence, and his request for an evidentiary
hearing, on December 15, 2011. SA1. Bourke filed his notice of appeal on
December 21, 2011. JA898. This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
This appeal focuses on the government's newly-announced and startling
view of a federal prosecutor's duty when he knows or should know that a
prosecution witness will testify falsely at trial or has done so. The government
maintains that the prosecutor may sponsor testimony he knows or should know is
false, as long as evidence demonstrating the falsity is presented to the jury
eventually. Appellant Bourke contends that a federal prosecutor may never present
testimony he knows or should know is false. The district court avoided choosing
between these competing views by finding--without an evidentiary hearing and
without a sworn statement by any prosecutor--that the prosecution neither knew
nor should have known that the testimony at issue was false.
The questions presented are:
1. May a federal prosecutor present testimony he knows or should know
is materially false?
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2. Where the defense presents evidence that a federal prosecutor knew or
should have known that his cooperating witness' testimony was materially false,
does the district court err in refusing to conduct an evidentiary hearing and in
relying instead on another prosecutor's unsworn reported denial of knowledge?
3. Did Bourke produce newly discovered evidence in support of his
motion for new trial?
STATEMENT OF THE CASE
At Bourke's trial, the prosecution called Swiss lawyer Hans Bodmer as a
witness. Bodmer had pleaded guilty to money laundering conspiracy, signed a
cooperation agreement, and was awaiting sentencing. For the five years following
his plea, the prosecution had permitted him to return to Switzerland and resume his
law and banking practice. Bodmer testified to a conversation he claimed to have
had with Bourke in Baku, Azerbaijan during a walk on the morning of February 6,
1998--what became known as the "walk talk." The prosecution made this
conversation a centerpiece of its opening statement. It had Bodmer testify in detail
about the alleged February 6 walk talk and preparatory conversations on February
When the prosecution gave its opening, and when it presented Bodmer, it
had in its possession flight records and other documents proving that Bourke was
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not in Baku when Bodmer said the walk talk and the other conversations occurred.
When confronted with the flight records after Bodmer's testimony, the prosecution
first presented a misleading summary of them. Then, with Bodmer safely out of
the country, the prosecution stipulated to the facts contained in the records. In
closing argument, the prosecution argued, contrary to Bodmer's testimony and all
other relevant evidence, that the walk talk must have occurred in April 1998, the
only other time Bodmer and Bourke were in Baku together. The prosecution never
confronted Bodmer, its cooperating witness, about his false testimony and thus--by
avoiding learning the truth--preserved its ability to argue that Bodmer was merely
"mistaken" about the "details" of the walk talk.
At the February 10, 2011 oral argument before this Court on Bourke's initial
appeal, one of the prosecutors--AUSA Harry Chernoff--asserted that it would have
been improper to show Bodmer the travel records during his witness preparation
sessions. Upon learning the prosecution's surprising position that it would neither
correct nor forego a witness' false testimony, and its seeming concession that it had
known Bodmer's walk talk testimony was false, Bourke moved for a new trial and
requested an evidentiary hearing.
The district court heard argument on the motion but refused to take
evidence. The prosecutor who prepared and presented Bodmer's false testimony
and gave the opening featuring the nonexistent February 5 and 6, 1998
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conversations--DOJ attorney Robertson Park--did not appear at the argument,
purportedly because of "budgetary restraints." The prosecutor who did appear--
AUSA Chernoff--did not participate in the preparation of Bodmer's testimony and
had no personal knowledge of what occurred between Bodmer and other
prosecutors, including Park. That witness preparation process, which we discuss
below, extended over a five-year period and was conducted by AUSA Park and
then-DOJ lawyer Mark Mendelsohn. The district court nonetheless accepted
AUSA Park's unsworn hearsay assertion, presented in argument by AUSA
Chernoff, that the government did not know Bodmer's walk talk testimony was
false until the defense brought forward the flight records.
During the argument on the new trial motion, AUSA Chernoff repeated his
position (and, he asserted, the position of his office) that it would be improper to
correct a witness' false recollection during preparation for his testimony. Under
questioning by the district court, AUSA Chernoff went even further: he asserted
that a prosecutor can present testimony he knows is false as long as information
exposing the falsehood is conveyed to the jury.
The district court denied the defense motion for new trial and declined to
hold an evidentiary hearing. SA1. This appeal followed.
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II. THE PROCEEDINGS TO DATE.
The grand jury indicted Bourke and two other defendants--Viktor Kozeny
and David Pinkerton of AIG--on May 12, 2005. Kozeny remains a fugitive in the
The government dismissed charges against Pinkerton in 2008. The
case went to trial against Bourke alone. The indictment charged Bourke with
conspiracy to violate the FCPA and the Travel Act; money laundering conspiracy;
substantive FCPA, Travel Act, and money laundering violations; and false
statements. It sought forfeiture of $174,000,000.
Bourke moved to dismiss (except for the false statement charge) on statute
of limitations grounds. The district court dismissed a number of the counts, United
States v. Kozeny, 493 F. Supp. 2d 693 (S.D.N.Y. 2007), and this Court affirmed,
United States v. Kozeny, 541 F.3d 166 (2d Cir. 2008). Bourke went to trial on
three charges: conspiracy to violate the FCPA and the Travel Act; money
laundering conspiracy; and false statements to the FBI. The government reduced
its requested forfeiture to $100,000,000. JA52-86.
The Privy Council of the United Kingdom recently dismissed the appeal by
the United States and Bahamian governments from the order of a Bahamian court
discharging Kozeny from custody based on a determination that he could not be
extradited from the Bahamas to the United States. Superintendent v. Kozeny,
 UKPC 10. The dismissal of the appeal likely means that Kozeny will never
be tried in the United States--leaving Bourke as the only defendant to stand trial
and (assuming the cooperators avoid incarceration) the only defendant to receive a
prison sentence. The cooperators have yet to be sentenced, years after their guilty
pleas, apparently because the prosecution thinks Kozeny might yet be tried.
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Trial began on June 1, 2009 and concluded on July 10. The jury acquitted
Bourke on money laundering conspiracy and found him guilty on the other two
charges. JA40. The district court denied Bourke's motions for new trial and for
judgment of acquittal. DE251; JA42.
On November 10, 2009, the district court sentenced Bourke to a year and a
day incarceration and a $1 million fine. DE253; JA42-43. The court recounted
Bourke's good works and declared that "[a]fter years of supervising this case, it is
still not entirely clear to me whether Mr. Bourke was a victim, or a crook, or a little
bit of both." JA444. The court released Bourke pending appeal. DE254; JA43.
This Court heard oral argument on February 10, 2011, and affirmed
Bourke's conviction on December 14. United States v. Bourke, 667 F.3d 122 (2d
Cir. 2011). Bourke filed a timely petition for rehearing and rehearing en banc,
which is pending. The district court continued him on bail pending appeal.
On March 9, 2011, Bourke filed a motion for new trial. JA46, 462. The
motion focused on the prosecutors' presentation of testimony from Bodmer that
they knew or should have known was false and AUSA Chernoff's statement in oral
argument before this Court appearing to acknowledge that the prosecutors knew
Bodmer's testimony was false when they presented it. Bourke requested an
evidentiary hearing on the motion. On November 10, 2011, the district court held
oral argument but declined to hold an evidentiary hearing. JA843. The court
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denied the motion on December 15, and Bourke filed a timely notice of appeal.
III. STATEMENT OF FACTS.
A. Kozeny's Scheme.
In the mid-1990s, Azerbaijan--an oil-rich former Soviet republic--began
privatizing its state-owned enterprises. A Czech entrepreneur, Viktor Kozeny,
launched an effort to acquire the state-owned oil company, SOCAR, through a
privatization auction. Bourke and other Americans (including Columbia
University, AIG, and former Senator George Mitchell) invested and lost millions
of dollars with Kozeny.
In late 1998, Bourke learned that Kozeny and his associates had committed a
massive fraud against the investors. He urged that this fraud be reported to the
authorities. In the course of the investigation that Bourke triggered and civil
litigation that followed, it emerged that Kozeny, with the assistance of Bodmer and
others, had paid substantial sums to Azeri government officials.
Bourke cooperated with federal prosecutors, state prosecutors and the FBI.
He met with prosecutors and agents for four days in 2002 and waived the attorney-
client privilege so the government could interview his lawyers and obtain their
documents. The Manhattan District Attorney indicted Kozeny for theft based in
part on Bourke’s testimony and information he provided. In the end, however, the
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federal government embraced Bodmer and other cooperating witnesses and
indicted Bourke for participating in Kozeny's bribery and for lying to the FBI when
he denied knowledge of the bribes.
B. Bodmer's False Story at Trial.
The prosecution's theory of the case, laid out in opening statement, turned on
the timing of Bodmer's alleged walk talk with Bourke. Prosecutor Park told the
jury that the evidence would show that Bourke had been hesitant to invest with
Kozeny in Azerbaijan until he learned from Bodmer that Kozeny was bribing the
Azeris. The February 6, 1998 walk talk with Bodmer was the key to this narrative.
Prosecutor Park told the jury that on one of Bourke's pre-investment trips to Baku,
Bodmer had "told the defendant about the Azeri's two-thirds interest in Oily Rock's
vouchers, about all of the holding companies, and about all the structure that gave
the Azeri officials a huge incentive to privatize SOCAR." JA486-87. The
Bourke was sold. The evidence will show that the defendant went
back home and within days instructed his lawyers to organize his own
offshore company in the British Virgin Islands, a company named
Blueport. And then in March, 1998 he funded his investment in Oily
Rock with about $5 million in his own money and another 2 million
he raised from friends and family.
Bourke had met with Bodmer in Baku only once before his investment in
March 1998--on an early February 1998 trip with Kozeny and American investor
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Bobby Evans. To support the government's theory, therefore, it was essential for
Bodmer to testify that he had told Bourke about the bribery on that February trip.
As we discuss below, the prosecutors would not give Bodmer his deal until he
altered his initial version, told them that the walk talk occurred in February, and
then surrounded that story with allegedly corroborating detail. By the time of
Bourke's trial, five years later, Bodmer understood what was expected of him.
On direct examination, under carefully scripted questioning by prosecutor
Park, Bodmer testified that on the late afternoon of February 5, 1998 Bourke
approached him in the lobby of the Baku Hyatt and asked about the "arrangement"
with the Azeris. Bodmer testified that he met Kozeny that evening in Kozeny's
hotel room in Baku and obtained permission to tell Bourke about the agreement to
give President Aliyev two-thirds of the Oily Rock vouchers and options. And
Bodmer testified that at 8 am on February 6, 1998, he and Bourke took a fifteen-
minute walk near the Hyatt during which he told Bourke about that agreement.
JA496-506. According to Bodmer, "[a]bout two weeks" after the February 6 walk,
Bourke agreed to invest. JA507-08.
The prosecution did not inform the defense, the Court, or the jury that it was
eliciting false testimony from Bodmer about the February 5 discussions with
Bourke and Kozeny and the February 6 walk talk. To the contrary, it sought to
corroborate that testimony by introducing Bodmer's time records from February 5
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and 6 (JA608-10), which included a reference to Evans and Bourke on February 6,
and by having Bodmer testify that, after some initial uncertainty, he had pinpointed
the February dates because he remembered that Evans was with him in Baku on
the occasion of the walk talk and the February trip was the only time he and Evans
had both been in Baku. JA505-06. The prosecution likewise called Rolf Schmid
(Bodmer's Swiss law partner) and introduced a fragment of his 2001 memorandum
(while persuading the district court to exclude other portions that undercut its
credibility) to corroborate Bodmer's false testimony about the February 6 walk
And the prosecution introduced Bodmer's plea agreement (JA918) and
highlighted his purported obligation to "give truthful and complete" testimony.
Within days after Bodmer completed his testimony, the defense notified the
prosecution that it intended to call a witness from Universal Aviation & Weather,
the flight control company that had made the ground arrangements for Kozeny's
plane on the February 1998 trip. The witness would authenticate and explain flight
records that the government had produced to the defense in discovery. It had taken
the defense several days to validate the records and to locate a witness who could
The defense objected to the exclusion of other portions of the Schmid
memorandum under Fed. R. Evid. 106 and argued that those portions were
essential to place in context the fragment of the memo that the prosecution offered.
The district court excluded the portions Bourke sought to introduce, and this Court
affirmed the exclusion on appeal. See 667 F.3d at 37-39. The Rule 106 issue is
included in Bourke's pending petition for rehearing.
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authenticate and explain them. Those records showed that Bourke and Kozeny
were in London--not in Baku--on February 5. Thus, the records refuted Bodmer's
testimony that Bourke asked him about the "arrangement" on February 5 in Baku,
and that Bodmer met with Kozeny in a Baku hotel to obtain Kozeny's approval to
discuss it with Bourke. JA590-91, 596, 923-26. The records (and Evans'
testimony and daily diary, JA618-19) proved as well that Kozeny's plane did not
land in Baku until 9:20 am on February 6, over an hour after Bodmer claimed the
walk talk had occurred. Id.
Faced with the prospect of the defense introducing the flight records, the
prosecution sought to diminish their force by presenting a witness (summer intern
Dana Roizen) to summarize them in a chart, along with other travel records. But
Roizen's chart incorrectly placed Kozeny in Baku on February 5 (meaning that he
could have talked with Bodmer there), even though the flight records proved he
was in London until midnight that day. E.g., JA253. Having presented this
partially false chart, the prosecution interfered with the defense cross-examination
of Roizen through a series of frivolous objections. E.g., JA243-44, 250-51, 255.
In the end, however, it became clear that Roizen had no basis for placing Kozeny
in Baku on February 5. E.g., JA253-58. The Roizen gambit thus failed, and the
government then stipulated to the facts in the flight records near the end of its case.
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Despite Bodmer's false testimony, the government continued to rely on his
claim to have told Bourke about the arrangement with the Azeris. It did not recall
Bodmer to explain the false dates or introduce other evidence on that point. It did
not even interview Bodmer to confront him with the false testimony. Instead, the
government waited until closing argument and then contended that the alleged
walk talk occurred after Bourke invested, at the grand opening of a Kozeny
company called Minaret in late April 1998--the only other time Bodmer and
Bourke were both in Baku. JA318-19, 343, 923.
The government's theory, advanced for the first time in closing argument,
that the walk talk occurred in April 1998--what it called the "April option,"
JA601--had no support in Bodmer's testimony or any other evidence. Bodmer
described the Minaret opening and surrounding events, including specific
conversations and meetings, but said nothing about a walk talk with Bourke.
Bodmer's testimony contradicts the "April option" in two critical respects.
First, Bodmer testified (consistent with the prosecution's theory at the time) that
Bourke made his first investment "[a]bout two weeks" after the alleged walk talk.
JA127-28. But Bourke made that investment in mid-March 1998, more than a
month before the Minaret opening in April. It is inconceivable that Bodmer made
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an innocent mistake about the sequence of the walk talk and Bourke's investment,
given how important that timing was to the prosecution's case.
Second, Bodmer testified with certainty that the walk talk occurred on an
occasion when Evans accompanied Bourke to Baku. JA116-17, 125-26, 153-56.
He even claimed to have seen Bourke and Evans in the hotel breakfast room
together after the walk. JA122-23, 154. But Evans was not in Baku in April 1998,
and Bodmer never met him other than on the February 1998 Baku visit. JA126.
Bodmer's confident testimony about Evans' presence, designed to anchor the walk
talk to February 6 and thus establish the chronology that prosecutor Park
highlighted in opening, destroyed the "April option" that the government promoted
in closing argument.
Schmid's testimony further refutes the government's closing argument "April
option." Schmid (like Bodmer) testified before the defense exposed Bodmer's
story about the February 6 walk talk as false, when the government still sponsored
that version. The government thus wanted Schmid to corroborate the February 6
version, and he dutifully obliged. Schmid claimed that Bodmer told him about the
walk talk with Bourke at the "beginning of 1998," JA176-77, either "January or
February," JA206. That testimony supported Bodmer's February 6 version of the
walk talk but conflicts with the "April option." In addition, Schmid and Bodmer
both made clear that Schmid was not with Bodmer in Baku on the alleged walk
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talk trip. JA126-27, 177-78. But Schmid was with Bodmer at the Minaret opening
in April 1998--the only time he and Bodmer traveled to Baku together. JA130,
172-75. In this respect too Schmid's testimony refutes the "April option."
evidence thus leaves no doubt that the government invented the "April option" out
of whole cloth to try to salvage the key testimony of its cooperator.
The district court--echoing the government--concluded that "the flight
records merely show that Bodmer was mistaken about the date and time of the
'walk and talk.'" SA23. That is wrong. The Bodmer walk talk could only have
happened on two possible dates: February 6, 1998 or late April 1998. Those were
the only times Bourke and Bodmer were both in Baku after Kozeny made the
alleged "arrangement" with the Azeris. The flight records and Evans' diary and
testimony prove the walk talk did not occur in February 1998. The Bodmer and
Schmid testimony proves that it did not happen in April 1998. If the walk talk did
not happen in February 1998 or April 1998, the only two possible dates, then it did
Nor does the government's revised theory square with common sense. On
his trip to the Minaret opening in April 1998, former Senator George Mitchell met
President Aliyev and received his assurance that SOCAR would be privatized in
due course. T.534-35, 1643-44, 1696-97. He and Bourke then met the President's
son Ilham--head of SOCAR--and received similar assurances. T.1645, 1697. It is
implausible that after receiving these assurances from the President and the head of
SOCAR, Bourke would be so anxious about privatization that he would ask
Bodmer about improper arrangements. The timing of Bourke's sole investment of
his own money--March 1998--also refutes the "April option." It makes no sense
that Bourke would invest in March, before he learned of the alleged bribes
(according to the false "April option"), but never invest his own money after he
learned of the alleged bribes.
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not happen at all. Bodmer did not merely confuse the dates or other details of the
story he told. He fabricated the entire event. The district court's contrary
conclusion is at odds with the evidence and with common sense. It is also
incomplete, because it fails to take account of the five-year witness preparation of
Bodmer, conducted by lawyers with the relevant contradictory records at hand and
with their newly-revealed policy of letting witnesses testify falsely.
In addition to inventing the "April option" in closing, the prosecution
highlighted the "truth-telling" provision of Bodmer's plea agreement in its initial
and rebuttal closing arguments in an effort to buttress his credibility. It argued to
the jury that according to Bodmer and the government's other principal cooperator,
Thomas Farrell, "[I]f they lied or committed further crimes, their agreements
would get torn up, and . . . they would be stuck with their guilty pleas. . . . So you
should ask yourselves, why would they risk lying in court when they have
everything to lose? There is zero upside and a huge downside to lying." JA326. It
returned to this theme in rebuttal, after the defense had detailed the cooperators'
false testimony in its summation. AUSA Chernoff argued: "If these witnesses lie
on the stand or anywhere else with respect to this case, they lose their cooperation
agreements, but they cannot withdraw their guilty pleas." JA344. Contrary to
these arguments, nothing in the record suggests that the government has taken
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steps to revoke Bodmer's cooperation agreement, despite his false walk talk
C. The Government's Position on Appeal.
Bourke exposed the fatal problems with the "April option" in his opening
brief to this Court on his initial appeal. Brief for Defendant-Appellant-Cross-
Appellee Frederic Bourke Jr., No. 09-4704-cr, at 11-15. In its response brief, the
government concocted a new theory. It suggested that "Bodmer was . . . mistaken
about consulting with Bourke and Kozeny on the day before the conversation with
Bourke about the corrupt arrangement," but that his testimony about meeting
Bourke on February 6 was otherwise correct despite conclusive evidence to the
contrary. JA655-56 n.*
The government's appellate theory was as false as the "April option" that the
defense discredited in the district court. Bodmer testified in detail about the
purported conversations with Bourke and Kozeny on February 5, the day before
the alleged February 6 walk talk with Bourke. He described the location of the
alleged conversations, the time of day, and what was said. He recalled others who
were present in Baku, including Evans. He remembered that the alleged walk talk
with Bourke occurred the next day. JA497-505, 530-32. It is entirely implausible
that Bodmer produced his richly detailed--and completely false--narrative about
the events of February 5 by "mistake." If a criminal defendant offered such an
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absurd defense in a perjury prosecution, the government would rightly ridicule it,
and the jury would swiftly reject it.
The government's "February 5 mistake" theory has another insurmountable
problem. The theory assumes that Bodmer's testimony about the walk talk with
Bourke on February 6 was correct, and only the February 5 portion was
"mistaken." But Bodmer's story about the February 6 walk talk is impossible in
light of the flight records and Evans' daily diary and testimony. Bourke was in the
air on Kozeny's plane, and not in Baku, at 8 a.m. on February 6, when Bodmer said
the walk occurred. JA587. Evans' diary and testimony show, beyond any dispute,
that Evans was with Bourke for the entire six hours they were in Baku on February
6; Bourke and Bodmer were never alone together. JA595. Thus, the government
could not salvage the February 6 walk talk even if it could plausibly explain
Bodmer's false testimony about February 5 as a "mistake"--which, of course, it
Before the oral argument in this Court on February 10, 2011, defense
counsel believed, based on the prosecutors' assurances, that the prosecution had no
idea Bodmer's walk talk testimony was false until after he had left the stand, when
the defense called the flight records to the prosecutors' attention. At oral argument,
Even after Bourke demonstrated in his reply brief on appeal that the
government's "February 5 mistake" theory was impossible, the prosecutor
advanced that theory at oral argument as a "plausible scenario." JA639.
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however, the government told a different story. In response to Bourke's argument
about Bodmer's false testimony, AUSA Chernoff made the following statement:
The dates with respect to Mr. Bodmer, I sort of am puzzled by Mr.
Tigar's argument that because the government had the flight records,
Mr. Bodmer should have been rehabilitated in his witness prep. It
would have been utterly improper for us to show him the flight
records to point out to him that his recollection of these meetings was
JA638-39. This statement by AUSA Chernoff suggested that the government
knew about the flight records during "witness prep" of Bodmer, but made a
deliberate decision not to "rehabilitate" him--that is, not to correct testimony the
prosecution knew (or should have known) to be false.
AUSA Chernoff made other misstatements about Bodmer at oral argument.
The prosecutor contended, for example, that "[t]he fact of the matter is that the
defendant was in Baku so many times personally overseeing this investment that it
is sort of understandable that the cooperators mixed up these dates years later."
JA637. Bourke was in Baku with Bodmer only twice after Kozeny allegedly began
bribing the Azeris and before Bourke and other investors discovered Kozeny’s
fraud--once on February 6, 1998 and again in late April 1998 at the Minaret
opening--not "many times," as the prosecutor asserted. The flight records and
Evans' diary and testimony prove that the walk talk did not happen on February 6.
And Bodmer's testimony--that Evans was present in Baku on the walk talk trip,
that Bourke invested two weeks later, and that Schmid was not in Baku when the
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conversation occurred--proves that it did not happen in April. Bodmer did not
"mix up" the only two times he and Bourke were together in Baku; the walk talk
did not happen on either of those visits.
D. The Government's Response to the Motion for New Trial.
Following AUSA Chernoff's statements at oral argument, Bourke filed the
motion for new trial that is the subject of this appeal. AUSA Chernoff alone
signed the government's opposition to Bourke's motion. Prosecutor Park was listed
as "of counsel" but did not sign the brief. JA658, 691. In the opposition, AUSA
Chernoff (who, as noted, had no involvement in preparing or presenting Bodmer's
testimony) asserted that "the Government was unaware--as was apparent from its
opening statement--that Kozeny's flight records were in conflict with aspects of
Bodmer's testimony." JA663.
AUSA Chernoff repeated this carefully hedged
defense throughout his opposition. E.g., JA664, 667-68, 671-72, 681. But AUSA
Chernoff also maintained--as he had at oral argument before this Court--that it
would have been improper to show Bodmer the flight records before his testimony.
He declared that
AUSA Chernoff's assertion in his new trial opposition that the government
was unaware of the records in its own possession is somewhat at odds with his trial
position. During closing argument, defense counsel asked rhetorically what would
have happened if the defense had not located and followed up on the records.
AUSA Chernoff objected: "There's no evidence the prosecution overlooked those
records. We offered them in our case." T.3185.
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even had the Government been aware of the flight records in
preparing Bodmer to testify, the Government would not have shown
them to Bodmer because they were not his records and his simply
inaccurate recollection did not call for refreshing; instead, we would
have offered the records before Bodmer testified--and told the jury in
our opening statement, rather than in our summation, that his
recollection was obviously flawed in some respect.
JA668. In other words, according to AUSA Chernoff, the prosecution would have
presented Bodmer's false testimony, shown the jury the flight records, and left the
jury to make sense of the contradiction. What the prosecution would not have
done, and has not done to this day, is confront Bodmer and otherwise investigate to
determine whether and why the entire walk talk story is false--as it obviously is.
Why would the prosecutors not want to know? Isn't it the prosecutor's duty to seek
out the truth? Are they afraid of an inconvenient truth which would mean that
Bourke's hard won conviction might not survive?
At oral argument on the motion for new trial, AUSA Chernoff again spoke
for the government; prosecutor Park did not appear, purportedly because of "the
significant budgetary restraints of the Department of Justice is currently operating
AUSA Chernoff took the same position as in his brief. He
Prosecutor Park, who gave the opening statement and conducted the direct
examinations of Bodmer and Schmid, essentially disappeared from the case once
the defense brought the flight records forward. Beginning with summer intern
Dana Roizen's testimony--the point in the record when the prosecution first
acknowledged the existence of the flight records--Park occasionally appeared at
counsel table but did not utter a single word on the record for the remainder of the
trial or in any of the post-trial proceedings.
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insisted that "we" did not know about the flight records until the defense brought
them forward after Bodmer's testimony. JA881-81. To the district court's evident
astonishment, AUSA Chernoff then repeated his assertion that the government
could--and indeed should--present false testimony:
THE COURT: Why would that [showing Bodmer the flight records]
have been improper? If you did know what he was telling you was a
lie, either intentional or mistaken, but a lie, false.
MR. CHERNOFF: Because first of all there is I think a big difference
between mistaken and false.
THE COURT: Wait. This is why I really do want to finish this
thought. If you knew, and this is not the case according to you, but
hypothetically had you known that the witness, your guy you put on
the stand, the government, is going to give testimony that is absolutely
wrong, false, wrong, mistaken, intentional, whatever words you want,
you know it is wrong because you have the contradictory proof in
front of you, you still put that witness on to swear under oath
something you know is false?
MR. CHERNOFF: If I am convinced that he believes he is telling the
THE COURT: You can't believe it. You have the contradictory
document in your hand. You don't have any obligation?
MR. CHERNOFF: My obligation is to inform the jury of it, which is
what we did.
THE COURT: But the government calls the witness and let's him
testify to a false statement knowing it is false that is really what you
MR. CHERNOFF: If I coach him by showing him the records and he
changes his recollection, I don't think the truth-seeking process is
served by that. I understand the Court's perspective on this. I
discussed this with a bunch of other prosecutors and whether I could
have been permitted to show him the document, but no one has ever
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expressed a view to me I was wrong in my view that had I known of
the document I should not show it to him and I should allow him to
persist in his error and bear that before the jury and say, You assess
THE COURT: You called him and I know it is false in my
hypothetical. You are telling me you couldn't have known that or you
wouldn't have opened that way, but had you known you can call a
witness to testify to a fact that you know is false.
MR. CHERNOFF: Your Honor, I submit that happens all the time.
There are witnesses who--let's say I put an eyewitness on to some kind
of incident in the street and the way the eyewitness recalls the person
that she picked out of a line-up is wrong, I am going to put that
witness up and explain to the jury that on this aspect of her testimony
she is mistaken and they can decide to credit the rest of it whether
THE COURT: I am surprised at that position, to put on knowingly
false testimony surprises me.
We address the facts further below.
SUMMARY OF THE ARGUMENT
1. It should be common ground that a federal prosecutor may never
present testimony to a jury that he knows or should know is materially false. It
should likewise be common ground that a prosecutor who knows or should know
that his witness intends to testify falsely must either convince the witness to correct
the falsehood or forego the testimony. The Supreme Court and this Court have so
held in case after case stretching back to Mooney v. Holohan, 294 U.S. 103 (1935).
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The prosecution here abandoned these principles. AUSA Chernoff insisted
that it would have been improper to confront Bodmer with the flight records during
witness preparation, even though no less an authority than the Restatement (Third)
of the Law Governing Lawyers recognizes this technique as proper. And AUSA
Chernoff takes the extraordinary position that when a prosecutor knows or should
know that a witness will testify falsely, he should present the false testimony
together with the contradicting evidence and leave it to the jury to resolve the
That is not the law. This Court should say again, emphatically, that a
prosecutor may never present testimony he knows or should know is materially
2. The district court refused to hold an evidentiary hearing on Bourke's
motion because it found, based on AUSA Chernoff's unsworn, hearsay assertions,
that the prosecutors neither knew nor should have known that Bodmer's walk talk
story was false. The court noted that it could imagine a "conceivable" innocent
explanation for the presentation of the false testimony.
The district court applied the wrong standard. There are significant factual
questions in the record that require a hearing at which at least Bodmer, the
cooperator, and Park, the prosecutor, testify. Park knew from his participation in
Bodmer's proffers in 2004 that Bodmer had difficulty identifying the date of the
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alleged walk talk. Park knew that Bodmer did not get his deal with the
government until he told the prosecutors that the walk talk occurred in February
1998--the date that fit the prosecutors' theory. It seems likely that Park was aware
of the flight records and Evans' diary, which disproved Bodmer's walk talk story
and which the prosecution obtained no later than January 2006, more than three
years before trial. And now we know the critical fact that AUSA Chernoff
disclosed, and then repeated under the district court's questioning: the prosecution
would present Bodmer's walk talk testimony (and not confront him with the
contradictory evidence in witness preparation or even after the falsity was exposed)
even if it knew that testimony was false. In light of these facts, a hearing is
essential to determine what Park knew or should have known and when.
3. Once it is determined--either on the existing record or after an
evidentiary hearing--that the prosecutors knew or should have known that
Bodmer's walk talk testimony was false, Bourke's conviction must be reversed "if
there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury." United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991)
(quotation omitted). The "reasonable likelihood" standard is easily satisfied here,
given the centrality of Bodmer's walk talk testimony to the case.
4. The district court concluded that the evidence Bourke presented in
support of his motion was not "newly discovered." That is incorrect. AUSA
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Chernoff's assertion in oral argument before this Court that it would have been
improper to confront Bodmer with the flight records during witness preparation
was newly discovered, as was his startling assertion in the district court that a
prosecutor may present false testimony (so long as the correct facts are also
These statements may be introduced against the government as admissions.
See, e.g., United States v. GAF Corp., 928 F.2d 1253, 1259-61 (2d Cir. 1991);
United States v. McKeon, 738 F.2d 26 (2d Cir. 1984). AUSA Chernoff's
admissions undermine his rebuttal argument, based on the "truth-telling"
provisions of Bodmer's plea agreement, that "[i]f these witnesses [Bodmer and
Farrell] lie on the stand or anywhere else with respect to this case, they lose their
cooperation agreements, but they cannot withdraw their guilty pleas." JA344.
More generally, AUSA Chernoff's statements cast doubt on "the thoroughness and
even the good faith of the investigation" of Bourke. Kyles v. Whitley, 514 U.S.
419, 445 (1995).
I. PROSECUTORS ARE FORBIDDEN FROM PRESENTING
MATERIALLY FALSE TESTIMONY.
The Supreme Court declared more than seventy-five years ago that obtaining
a conviction through the "deliberate deception of court and jury by the presentation
of testimony known to be perjured" is "inconsistent with the rudimentary demands
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of justice." Mooney v. Holohan, 294 U.S. 103, 112 (1935). In case after case since
Mooney, the Court has reaffirmed this bedrock principle. See, e.g., United States v.
Agurs, 427 U.S. 97, 103 (1976); Giglio v. United States, 405 U.S. 150, 153 (1972);
Napue v. Illinois, 360 U.S. 264, 269 (1959); Alcorta v. Texas, 355 U.S. 28 (1957).
This Court summarized these cases:
"Since at least 1935, it has been the established law of the United
States that a conviction obtained through testimony the prosecutor
knows to be false is repugnant to the Constitution. This is so because,
in order to reduce the danger of false convictions, we rely on the
prosecutor not to be simply a party in litigation whose sole object is
the conviction of the defendant before him. The prosecutor is an
officer of the court whose duty is to present a forceful and truthful
case to the jury, not to win at any cost."
Drake v. Portuondo, 553 F.3d 230, 240 (2d Cir. 2009) (quoting Wei Su v. Filion,
335 F.3d 119, 126 (2d Cir. 2003)). As Judge (and former federal prosecutor)
Stephen Trott put it, prosecutors have a "clear duty under our Constitution" to
"collect potentially exculpatory evidence, to prevent fraud upon the court, and to
elicit the truth." Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1117 (9th
Cir. 2001); see Stephen S. Trott, Words of Warning for Prosecutors Using
Criminals as Witnesses, 47 Hastings L.J. 1381 (1996).
In federal criminal cases such as this, the principle extends even further.
This Court has held that the prosecution violates a defendant's right to due process
when it presents testimony "that it knew or should have known was false." United
States v. Vozzella, 124 F.3d 389, 392 (2d Cir. 1997) (emphasis added); see Agurs,
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427 U.S. at 103 ("knew or should have known"); United States v. Wallach, 935
F.2d 445, 456 (2d Cir. 1991) (same).
Wallach is instructive. In that case, the defense elicited testimony on cross-
examination of a key prosecution witness--Guariglia--from which the government
"should have been aware" that he had perjured himself when he denied gambling
during his cooperation. Id. at 457. Nonetheless, the government "sought to
rehabilitate the witness on redirect, permitting Guariglia to testify that he had
bought the chips but he had not gambled, even after defense counsel had disclosed
to the government written records from the Tropicana Casino reflecting that
Guariglia had gambled." Id. Although the government convinced this Court that it
had "questioned Guariglia extensively" about his trips to Atlantic City after the
defense discovered them, the Court was "not satisfied that the government properly
utilized the available information." Id. Reversing the convictions, this Court
declared that "instead of proceeding with great caution [after learning of
Guariglia's possible perjury], the government set out on its redirect examination to
rehabilitate Guariglia and elicited his rather dubious explanation of what had
happened. . . . We fear that given the importance of Guariglia's testimony to the
case, the prosecutors may have consciously avoided recognizing the obvious--that
is, that Guariglia was not telling the truth." Id.
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The conduct reflected in AUSA Chernoff's statements at oral argument here
and in the district court is at least as egregious as in Wallach. The prosecutors
either knew or should have known that Bodmer's February 6 walk talk testimony
was untrue. They made his false testimony the centerpiece of their opening
statement. They contended that Bodmer's time records and the Schmid
memorandum corroborated the false testimony. Unlike the prosecutors in Wallach,
they did not question Bodmer "extensively"--or at all--about his false story once
the defense brought the flight records forward.
And rather than recall Bodmer,
they waited until the evidence was closed and then invented the false "April
option" in closing argument, foreclosing cross-examination about it.
AUSA Chernoff's assertion that it would have been "utterly improper" to
show Bodmer the flight records in "witness prep" is nonsense. There is nothing
improper in showing a witness documents in preparation to refresh his recollection,
Judge Altimari summarized the Wallach prosecutors' efforts to determine
the truth: "[I]n the midst of trial, the AUSAs extensively questioned Guariglia
about the events in Atlantic City and the truthfulness of his testimony. Moreover,
in an attempt to ascertain the truth or falsity of Guariglia's story, the AUSAs
located and interviewed Koplitz and another individual who was with Guariglia in
Atlantic City. Both verified Guariglia's version of events. Additionally, the
prosecutors--albeit with limited success--attempted to contact and interview
Tropicana Casino officials. Thus, it seems to me that the AUSAs did all that was
reasonable to assure that they were neither relying on false testimony nor
permitting false testimony to go uncorrected." Wallach, 935 F.2d at 474 (Altimari,
J., concurring). By contrast to the efforts (albeit inadequate) of the Wallach
prosecutors, these prosecutors appear to have made a conscious decision not to
confront Bodmer or otherwise investigate his false story after the defense brought
the flight records forward at trial.
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especially when the documents show conclusively that he is wrong on a critical
point. See Restatement (Third) of the Law Governing Lawyers § 116, comment b
(American Law Institute 2000) ("In preparing a witness to testify, a lawyer may
invite the witness to provide truthful testimony favorable to the lawyer's client.
Preparation consistent with the rule of this Section may include the following: . . .
revealing to the witness other testimony or evidence that will be presented and
asking the witness to reconsider the witness's recollection or recounting of events
in that light . . . .").
The best that can be said of Bourke's prosecutors is that they "consciously
avoided recognizing the obvious"--that Bodmer was lying about the walk talk.
Under these circumstances, the government violated Bourke's right to due process
under Wallach. As Judge Trott put it, the prosecution "f[ound] it tactically
advantageous to turn a blind eye to the manifest potential for malevolent
disinformation" that flowed from the "concerted effort by rewarded criminals" to
inculpate Bourke. Bowie, 243 F.3d at 1114.
The Seventh Circuit's decision in United States v. Freeman, 650 F.3d 673
(7th Cir. 2011), bears an uncanny resemblance to this case. A prosecution
cooperator (Williams) testified to a key meeting with the defendant (Wilbourn) in
It is ironic that in a case where Bourke was prosecuted in part on the theory
that he consciously avoided knowledge of Kozeny's alleged bribery, the
prosecutors have thus far escaped the consequences of presenting Bodmer's false
walk talk testimony by consciously avoiding knowledge of the falsity.
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an apartment known as the "penthouse." Records in the prosecutors' possession
proved the meeting could not have occurred, because Wilbourn was in prison at the
time. The prosecutors objected to cross-examination designed to expose the false
testimony. After Williams left the stand, the prosecution stipulated that his
testimony about the meeting was wrong. But rather than recall Williams or
concede that the meeting did not occur at all, the prosecution invented a new story
in closing argument, claiming that the meeting had occurred a year earlier than
Williams had said. See id. at 676-78.
The district court granted a new trial in Freeman, see United States v.
Freeman, 2009 U.S. Dist. LEXIS 76973 (N.D. Ill. Aug. 26, 2009), and the Seventh
Circuit affirmed. It rejected the government's argument that "a claim under Napue
can only be made when it can be established that the witness is lying." Freeman,
650 F.3d at 680. The court held instead that "[t]o uphold the granting of a new
trial, there does not need to be conclusive proof that the testimony was false or that
the witness could have been prosecuted for perjury; all that matters is that the
district court finds that the government has knowingly used false testimony." Id.
The court of appeals found that the government knew or should have known
that the cooperating witness' testimony was false. The prosecutors had records in
their possession before trial strongly suggesting that the meeting could not have
occurred as the witness claimed. The Seventh Circuit emphasized that "when the
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government learns that part of its case may be inaccurate, it must investigate"--a
responsibility the court found the government had "abdicated." Id. "Even more,"
the court declared in terms directly applicable here, "once the government finally
stipulated that Wilbourn was in prison the entire time the penthouse was used, that
meant the government knew Williams's testimony was false. Yet despite first
using and then admitting that Williams's testimony was false, the government
relied on it during closing arguments." Id.
Freeman strongly supports reversal here. As detailed above, the government
knew or consciously avoided knowledge before and during trial that Bodmer's
walk talk testimony was false. It made no effort to investigate the truthfulness of
that testimony, and it made the walk talk the centerpiece of its case. When the
defense exposed the falsity of the walk talk story during trial, the prosecution first
sought to portray Bodmer's testimony as a mistake, then interfered with the cross-
examination of Roizen, and only then, days after Bodmer left the stand, stipulated
to the facts that the travel records and Evans' diary and testimony proved. Even
then, the prosecution "abdicated"--it did not recall Bodmer or make any apparent
effort to investigate his false story. Instead, it made up the "April option" in
closing argument and urged the jury to accept that equally false story. Here, as in
Freeman, a new trial is necessary to remedy the prosecutorial misconduct.
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II. THE DISTRICT COURT SHOULD AT LEAST HAVE HELD AN
The district court denied Bourke's motion in part because it concluded--
based on AUSA Chernoff's unsworn, hearsay representations--that the government
neither knew nor should have known that Bodmer's walk talk testimony was false.
SA23. The court erred in reaching that conclusion, even on the existing record.
But it erred even more clearly in failing to hold an evidentiary hearing.
It should be clear, in the wake of the Stevens debacle and other recent cases
of prosecutorial misconduct, that federal courts rely at their peril on the unsworn
assurances of prosecutors that the government has done nothing wrong when the
record suggests otherwise. Without formal evidentiary proceedings, the egregious
wrongdoing in those cases would never have come to light. Similarly here,
without testimony from prosecutor Park and others involved in the preparation and
This Court reviews the district court's denial of a motion for new trial for
abuse of discretion. "The district court abuses its discretion when it makes an error
of law or when it makes a clearly erroneous finding of fact." Freeman, 650 F.3d at
678-79. "Clear error review requires examination of factual findings to determine
whether the district court's account of the evidence is plausible in light of the
record viewed in its entirety. The reviewing court may reverse when, although
there is evidence to support the finding, on the entire evidence the court is left with
the definite and firm conviction that a mistake has been committed. A district
court's factual findings may be clearly erroneous where the court failed to
synthesize the evidence in a manner that accounts for conflicting evidence or the
gaps in a party's evidentiary presentation; incorrectly assessed the probative value
of various pieces of evidence; or failed to weigh all of the relevant evidence before
making its factual findings." Drake, 553 F.3d at 239-240 (quotations, citations,
ellipses, and brackets omitted).
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presentation of Bodmer's false testimony, the full extent of the prosecution's
knowledge cannot be known.
A. The Record Raises Significant Questions About the Prosecutors'
Knowledge of Bodmer's False Walk Talk Story.
AUSA Chernoff's statements at oral argument in this Court and in the
district court leave little doubt that an evidentiary hearing is necessary to determine
what the prosecution--and especially prosecutor Park--knew or should have known
about Bodmer's false testimony. The evolution of Bodmer's walk talk story shortly
before his plea in 2004 and the prosecution's acquisition of the flight records and
Evans' diary no later than January 2006 further demonstrate the need for a hearing.
As far as the defense can determine from the Jencks material provided
shortly before trial, Bodmer settled on the date of the walk talk story during
meetings with prosecutor Park and others (but not AUSA Chernoff), between late
July 2004 and October 2004. By then, Bodmer had been detained for a full year.
He had been arrested in South Korea in August 2003 at the request of the United
States government. He had been imprisoned there for five months, until he was
sent to the United States. T.1181-82, 1327. Upon arrival in this country, he had
remained in jail in Manhattan for two weeks until, over the prosecution's objection,
he was released to house arrest near Washington, D.C. T.1182-82, 1327-28. He
had been on house arrest for many months, with little prospect of returning to his
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family and work in Switzerland. Unsurprisingly, with the aid of counsel he sought
to win his freedom by offering to cooperate against Bourke and others.
The prosecution tested Bodmer's worth as a cooperator several times during
2004, beginning in March and culminating in a multi-day proffer session in late
July and early August.
On March 29, 2004, notes indicate that Bodmer identified
the walk talk as having occurred on a "crisp" and "nice" day in the "spring."
Bodmer mentioned getting Kozeny's permission to tell about the arrangement with
the Azeris. He mentioned the presence of Evans. JA931-33. On July 27, 2004, at
what appears to be the first day of the proffer session, Bodmer said the walk talk
happened at the Minaret opening in April 1998. He again mentioned getting
Kozeny's approval, but this time he apparently did not mention Evans. Prosecutor
Park was present; AUSA Chernoff was not. JA735-36, 931-34.
As noted above,
the Minaret opening occurred after Bourke had first invested. Thus, Bodmer's
initial proffered version of the walk talk did not fit the government's theory that
Bourke invested with knowledge of a corrupt arrangement.
In a continuation of the proffer on August 2, 2004, Bodmer again said the
Bourke presented a chart to the district court summarizing pertinent
portions of the Bodmer Jencks material. The chart appears at JA931-34. It shows
a five-year witness preparation process, and the step-by-careful-step way in which
the prosecutors moved Bodmer to his fulsome and utterly false version of events.
The chart also references Bodmer's own notes of the creative process.
Although the notes of the interview are undated, they refer to Bodmer's
proffer agreement, which he signed July 27, 2004.
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Bourke walk talk happened in April 1998, before the office opening parties. Again
he claimed to have obtained Kozeny's approval and did not mention Evans'
presence. Prosecutor Park was again present; AUSA Chernoff was not. JA750-52,
Something then caused Bodmer to change his story. On August 4, 2004--the
final day of the proffer session--handwritten notes contain the following under the
heading "clarifications": "? re timing of Bourke disclosure could be Feb 98, not
April office opening '98 2-6/7-98 because discussion preceded investment same
sequence of the discussion". JA759.
Bodmer's revised story had the desired effect. On October 8, 2004,
apparently without a further proffer session, he signed his plea and cooperation
agreement. JA764. Soon afterward, he pled guilty under the agreement to money
In his first post-plea interview, in late October 2004,
Bodmer told the version of the walk talk story that fit the prosecution's theory of
the case. He claimed the walk talk occurred in February 1998, when Evans was
present in Baku, before Bourke invested, and he described seeking Kozeny's
permission to discuss the investment with Bourke the day before the walk talk.
Bodmer's Swiss attorney, in a statement explaining Bodmer's guilty plea
to Swiss authorities, stated that "the result [the guilty plea] probably would have
been different" if Bodmer had been a United States citizen and thus able to "move
freely in his own home country and to continue his work." T.1338-39; DX U-13.
T. 952, 1194-95, 1338-43.
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JA693. Only then, more than a year after his arrest, was Bodmer permitted to
return to Switzerland, where he has spent the last seven plus years practicing law
and traveling the globe with the government's unstinting permission. T.954-55,
The Bodmer Jencks materials from July 2004 through October 2004 thus
appear to show that Bodmer was trying to pick a date for the walk talk story and
that prosecutor Park was fully aware that the date was in question. Those materials
also show that Bodmer did not get his deal until he settled on the date that fit the
No later than January 27, 2006--just over a year after the discussions with
Bodmer caused him to switch the date of the alleged walk talk from April 1998 to
February 1998--the prosecution obtained the Kozeny flight records from Universal
Weather & Aviation and the Evans daily diary from Evans. JA756, 782.
discussed above, those records clearly prove the falsity of the walk talk story.
The prosecution did not come into possession of the flight records and the
Evans diary by accident; it either obtained them by grand jury subpoena or
otherwise specifically requested them. And having requested and obtained the
The government's cover letter producing these materials to the defense is
dated January 27, 2006. How long before that date the government obtained the
records is unknown at this point. It bears noting, though, that cooperating witness
John Pulley advised the government on July 2, 2002 about the existence of
"aviation records out of houston." JA784.
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documents, someone on the prosecution team must have reviewed them. The
knowledge of that member (or members) of the prosecution team is attributable to
the team as a whole. See, e.g., Kyles v. Whitley, 514 U.S. 419, 438 (1995)
(knowledge of police investigator attributable to prosecutor for purposes of Brady);
Giglio v. United States, 405 U.S. 150, 154 (1972) ("[T]he prosecutor's office is an
entity and as such it is the spokesman for the Government.").
B. An Evidentiary Hearing Is Necessary.
What happened after the prosecutor's office reviewed the flight records?
Did prosecutor Park decide to let Bodmer tell his false story and hope the defense
would not locate or realize the significance of the records and Evans' diary amid
the thousands of pages of discovery in the brief, hectic period between the last-
minute Jencks disclosure and the Bodmer cross-examination?
Did Park, knowing
that Bodmer had waffled initially on the date of the alleged walk talk, make a
conscious decision to avoid learning contradictory information? Did someone on
the prosecution team confront Bodmer with the records, in an interview not
reflected in the Jencks material?
Given the intensity with which the prosecutors investigated comparatively
trivial aspects of the case--the exhaustive recounting at trial of one Azeri official's
The Bodmer Jencks materials, including his pretrial statements to
prosecutors and the FBI, were not produced to Bourke's defense counsel until two
days before the trial began. JA720.
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purchases during a trip to New York comes to mind, obsessively documented with
credit card receipts, hotel invoices, and travel records--it is hard to imagine that
they did not devote substantial resources to the flight records, which destroyed a
cornerstone of their case. Was there such an investigation? What did it reveal?
Why were the results not produced to the defense? And if, contrary to reason and
common sense, the prosecutors elected not to follow up on the flight records and
Evans' diary, that smacks of an effort, as in Wallach, to "consciously avoid
recognizing the obvious." 935 F.2d at 457; see, e.g., Vozzella, 124 F.3d at 392
(noting that "whatever ignorance the government had about the veracity of the rest
of the records was willful"; having learned the "unwelcome fact" that a portion of
the records was false, the government "simply ceased further inquiry").
The district court concluded that "[t]he flight records are difficult to read and
interpret. It is conceivable that the Government did not cross-check the details of
Bodmer's anticipated testimony against these difficult to decipher flight records."
SA23. But this apologia for the prosecution is wrong. The flight records are not
"difficult to read and interpret." Summer intern Roizen managed to read and
understand them in short order when asked to do so. E.g., JA246-52. Any
uncertainty could have been resolved swiftly by a call to Universal Aviation &
Weather in Houston. And the question in any event is not whether the district
court can imagine (without an evidentiary record) a "conceivable" innocent
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explanation for the prosecution's presentation of false testimony. The question is
what actually happened when the prosecution obtained flight records and Evans
diary entries that proved Bodmer's story was false.
The time-tested way of answering such factual questions is an evidentiary
hearing. That is how, for example, the Supreme Court directed the Subversive
Activities Control Board to resolve allegations of witness perjury. See Communist
Party of United States v. SACB, 351 U.S. 115, 124-25 (1956) (SACB can either
hold a hearing on the perjury or expunge the witness' challenged testimony and
reconsider record). That is how Brady claims are "[n]ormally . . . assessed" in the
post-trial context. United States v. Mitchell, 365 F.3d 215, 255 (3d Cir. 2004).
That is how factual issues involving the circumstances of unlawful surveillance are
resolved. See, e.g., Roberts v. United States, 389 U.S. 18 (1967) (per curiam).
That is how courts determine whether a government affiant knowingly or
recklessly included false information in a search warrant affidavit. See Franks v.
Delaware, 438 U.S. 154, 169 (1978). That is how the government's fraud on the
court was laid bare in Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993). That is
how the now-notorious prosecutorial misconduct was fully exposed in the
prosecution of Senator Stevens in the District of Columbia and in the Broadcom
prosecution in the Central District of California. That is how this Court expected
that a habeas claim involving presentation of perjured testimony would be
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developed. See Drake v. Portuondo, 321 F.3d 338, 345-46 (2d Cir. 2003). And
that is how the serious factual questions here about how Bodmer came to give false
testimony to convict a distinguished American citizen--questions that go to the
heart of the integrity of the judicial system--should be resolved. This is
emphatically not a case where "the moving papers themselves disclosed the
inadequacies of the defendants' case, and the opportunity to present live witnesses
would clearly have been unavailing." United States v. Helmsley, 985 F.2d 1202,
1210 (2d Cir. 1993) (quotation omitted).
The district court erred in relying on the unsworn, hearsay assertions of
AUSA Chernoff, who had little or no involvement in the underlying events, and
hypothesizing a purportedly "conceivable" explanation for the prosecutors'
presentation of false testimony. To make reliable factual findings, the district court
needed to hear from people with personal knowledge--and, in particular, from
prosecutor Park, whom the government has taken such care to shield from inquiry,
and from Bodmer, who--remarkably--the government claims to have never
questioned about his false trial testimony.
The need for an evidentiary hearing is underscored by the evidence that
government lawyers are willing to disregard their ethical and legal duty, and have
made inconsistent and palpably incorrect statements in the course of these
proceedings. United States v. McKeon, 738 F.2d 26 (2d Cir. 1984), teaches a
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powerful lesson here. In that case, a lawyer's inconsistent statements dictated that
he "ought" to be a witness if his adversary wanted to call him--and it did. Id. at 29
(quoting disciplinary rule). This result was mandated as a prophylactic measure
against "sharp practice." Id. at 31. In this case, the government's shifting versions-
-coupled finally with the assertion that the prosecutors could present false
testimony if they wished to do so--calls for government lawyers to take the stand
The government's position here has veered from one version to another as
expediency has dictated, from assurance that the walk talk took place, through
Bodmer's testimony, Roizen's erroneous chart, and finally a stipulation. Yet,
during final argument, AUSA Chernoff objected that "[t]here's no evidence the
prosecution overlooked [the flight] records" that showed Bodmer's testimony could
not be accurate. T.3185. And then in his brief to this Court on Bourke's initial
appeal, AUSA Chernoff returned to the earlier stance that the government was
"unaware" of the flight records. By this device, he combined contradiction with
dissembling: the government had the flight records all along. And even though the
prosecution showed intense ability to track the activities of witnesses and parties
with respect to all the other trial participants, the prosecutors claimed that they had
at most made an understandable mistake.
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Finally, AUSA Chernoff announced that the government had a policy of
presenting false testimony. This revelation put the entire matter in a new light.
The explanation, if any there be, can only come from the self-contradicting and
legally incorrect prosecutors--who, as this Court has put it, "ought" to be witnesses.
III. THE PROSECUTORS' PRESENTATION OF BODMER'S FALSE
WALK TALK TESTIMONY REQUIRES REVERSAL.
Once it is determined--either on the existing record or after an evidentiary
hearing--that the prosecutors knew or should have known that Bodmer's testimony
was false, reversal is almost automatic: "[T]he conviction must be set aside if there
is any reasonable likelihood that the false testimony could have affected the
judgment of the jury." Wallach, 935 F.2d at 456 (quotation omitted); see Agurs,
427 U.S. at 103; Freeman, 650 F.3d at 681; Vozzella, 124 F.3d at 392.
The "reasonable likelihood" standard is easily satisfied here. Bodmer's false
February 5 and 6 testimony was the centerpiece of the prosecution's case from
opening statement on. Prosecutor Park carefully buttressed that testimony on
direct with Bodmer's time records. The government called Schmid and introduced
his redacted memorandum as further support for the false story. Even when the
government was forced to stipulate that the testimony was wrong near the end of
its case, it did not renounce Bodmer's account of his conversation with Bourke.
Instead, it concocted the "April option" in closing argument--too late for Bourke to
cross-examine Bodmer about it--and maintained that Bodmer had simply been
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confused about the date. Given the centrality of Bodmer's testimony to the case--
even AUSA Chernoff had to concede that it was "important," JA885, and the jury
sent two notes about it, JA928-29--there is at least a "reasonable likelihood" that
his false testimony "affected the judgment of the jury."
IV. BOURKE PRESENTED NEWLY DISCOVERED EVIDENCE.
The district court denied Bourke's motion in part on the ground that Bourke's
evidence was "newly available" but not "newly discovered" for purposes of Fed. R.
Crim. P. 33. SA24-27. That is incorrect. AUSA Chernoff's assertion in oral
argument before this Court that it would have been improper to confront Bodmer
with the flight records during witness preparation was newly discovered. AUSA
Chernoff's extraordinary acknowledgment in the district court that he (and
apparently his office) believe that it is acceptable to present false testimony (so
The district court concluded that the falsity of the Bodmer walk talk story
was exposed during trial and thus that Bourke should not receive a new trial.
SA24. But the government's fabrication of the "April option" in closing, its
stubborn defense of Bodmer's credibility in the face of his obvious deception, and
its failure to acknowledge that he had lied about the February 6 "walk talk" remove
this case from the general rule that reversal is not required where a prosecution
witness' perjury is "discovered and fully corrected during trial." United States v.
Blair, 958 F.2d 26, 29 (2d Cir. 1991); see, e.g., United States v. Ferguson, 653
F.3d 61, 83 (2d Cir. 2011); United States v. Zichettello, 208 F.3d 72, 102 (2d Cir.
2000). Bodmer's false testimony was "discovered" during trial, but, because of the
government's tactics, it was not--and has not yet been--"fully corrected."
Moreover, Bourke had no opportunity to present to the jury evidence of the
prosecutors' policy of presenting materially false testimony, as long as the correct
facts are also presented. As discussed below, that evidence would have greatly
weakened the prosecutors' defense of Bodmer.
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long as the correct facts are also presented) is newly discovered.
Until AUSA Chernoff's statements, defense counsel had accepted the
prosecutors' representations that they knew nothing about the flight records (or,
presumably, Evans' diary) until the defense brought them forward after Bodmer's
testimony. Counsel relied on those representations in part because in a pretrial
proceeding involving another government cooperator, the district court declared,
"Clearly if the government is aware that a witness has lied to it, it has to disclose
that. Surely Mr. Chernoff knows that. So if the government is aware that the
witness has made a false statement, Mr. Chernoff, do you agree if you're aware of
that you would have to make it known as Brady?", and AUSA Chernoff responded:
"I think we would normally consider that Giglio. But there is no such false
statement that we are aware of." CA2. Defense counsel are "entitled to treat the
prosecutors' submissions as truthful." Banks v. Dretke, 540 U.S. 668, 698 (2004).
Once AUSA Chernoff made his remarks in oral argument to this Court indicating
that the prosecutors did know that Bodmer's testimony was false but presented it
anyway, the defense was bound to act diligently--and it did so, by filing the motion
for new trial.
AUSA Chernoff's statements thus explain why defense counsel sought the
new trial after the oral argument in this Court, rather than immediately following
the verdict. But those statements have substantial probative force for other
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reasons. Under this Court's cases, the defense may treat AUSA Chernoff's
statements as admissions. See, e.g., United States v. GAF Corp., 928 F.2d 1253,
1259-61 (2d Cir. 1991); see also McKeon, 738 F.2d at 30-34 (opposing party may
treat lawyer's statement as party admission). AUSA Chernoff's admissions directly
undermine his rebuttal argument, based on the "truth-telling" provisions of
Bodmer's plea agreement, that "[i]f these witnesses [Bodmer and Farrell] lie on the
stand or anywhere else with respect to this case, they lose their cooperation
agreements, but they cannot withdraw their guilty pleas." JA344; see also JA326-
27 (similar argument in first prosecution closing). That powerful argument, central
to the effort to rehabilitate Bodmer in the jury's eyes following a sustained defense
attack, was completely untrue in light of what we now know about AUSA
Chernoff's willingness to present false testimony. We now know, thanks to AUSA
Chernoff's statements, that Bodmer will suffer no loss of the benefits of his
agreement for testifying falsely. And we know that the entire premise of the
"truth-telling" provision--that the prosecution will present only truthful testimony
from the cooperating witness--is hollow. The jury needed to know those facts in
assessing Bodmer's credibility and evaluating AUSA Chernoff's argument. See
Wallach, 935 F.2d at 459 (prosecutor's reliance in closing on similar provision to
buttress credibility of witness who testified falsely "provide[s] one more reason to
set aside the jury's verdict").
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More generally, AUSA Chernoff's willingness to present false testimony
undermines the integrity of the entire prosecution case, and particularly its reliance
on Bodmer and his fellow cooperator Thomas Farrell. As the Supreme Court has
recognized, "[W]hen . . . the probative force of evidence depends on the
circumstances in which it was obtained and those circumstances raise a possibility
of fraud, indications of conscientious police work will enhance probative force and
slovenly work will diminish it." Kyles, 514 U.S. at 446 n.15; see id. at 442 n.13
(noting the value to the defense of demonstrating that government investigation
was "shoddy"); United States v. Sager, 227 F.3d 1138, 1145-46 (9th Cir. 2000)
(same); Trott, supra, 47 Hastings L.J. at 1417-18 (same). If the defense had known
that the prosecutors had a practice of not confronting their cooperators with
contrary evidence and that the prosecutors were willing to present false testimony
(as long as the conflicting evidence was also presented), it could have powerfully
attacked "the thoroughness and even the good faith of the investigation" of Bourke.
Kyles, 514 U.S. at 445. AUSA Chernoff's statements would have conveyed to the
jury, at best, "a remarkably uncritical attitude on the part of the" prosecutors--an
attitude directly in conflict with the truth-telling provision of the Bodmer
cooperation agreement. Id. As the Supreme Court recognized in Kyles, such
evidence forms the basis for a powerful and legitimate defense attack on the
prosecution case. See id. at 445-47.
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AUSA Chernoff's statements at oral argument before this Court and in the
district court were "newly discovered"; they were "evidence," as GAF Corp. and
McKeon confirm; and they powerfully undermine Bodmer's testimony and the
remainder of the prosecution case. Due process demands that once false testimony
is discovered, even during trial, the prosecution has a duty to confront its
cooperator and ascertain the truth. AUSA Chernoff’s statement that this would
somehow be “highly improper” demands a forceful admonition and reversal.
For the foregoing reasons, the Court should reverse Bourke's conviction and
order a new trial or, in the alternative, remand for an evidentiary hearing on
Bourke's new trial motion.
DATED: April 10, 2012
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s/John D. Cline
John D. Cline
LAW OFFICE OF JOHN D. CLINE
235 Montgomery St., Suite 1070
San Francisco, CA 94104
Harold A. Haddon
Saskia A. Jordan
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10
Denver, CO 80203
Michael E. Tigar
Jane Blanksteen Tigar
P.O. Box 528
Oriental, NC 28571
Attorneys for Frederic Bourke, Jr.
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CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief is proportionately spaced, has a typeface of
14 points, and contains 11,751 words.
s/John D. Cline
John D. Cline
Attorney for Defendant-Appellant
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CERTIFICATE OF SERVICE
I hereby certify that on April 10, 2012, the foregoing INITIAL
BRIEF OF APPELLANT was served via CM/ECF and hand delivery upon the
Harry A. Chernoff, Esq.
Assistant U.S. Attorney
1 Saint Andrew’s Plaza
New York, NY 10007
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INDEX TO SPECIAL APPENDIX
U.S. V. KOZENY (FREDERIC BOURKE, JR.)
SECOND CIRCUIT DOCKET NO. 11-5390-CR
Description Page No.
Opinion and Order of the Honorable Shira A. Scheindlin, dated
December 15, 2011
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
!I DATE FILED: I
i 1._.... __._-.............--..-_ ....':1:.
.-......,...... .. -----__ '---J
OPINION AND ORDER
S2 05 CR 518 (SAS)
FREDERIC BOURKE, JR.,
SHIRA A. SCHEINDLIN, U.S.D.J.:
In October 2005, an Indictment was unsealed charging defendant
Frederic Bourke, Jr. with conspiracy to violate the Foreign Corrupt Practices Act]
("FCP A"), substantive violations of the FCP A, violations of the Travel Act,
conspiracy to commit money laundering,3 money laundering, and making false
statements to an agent of the Federal Bureau of Investigation ("FBI,,).4 These
charges stemmed from a complex and massive scheme to bribe government
officials of the Republic of Azerbaijan ("Azerbaijan") to encourage the
privatization of the State Oil Company of the Azerbaijan Republic ("SOCAR").
15 U.S.C. §§ 78dd-l et seq.
18 U.S.C. § 1952.
Id. § 1956.
Id. § 1001.
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The Indictment charged Bourke and others with violating the FCPA by making
payments to Azeri officials in order to participate in the privatization of SOCAR.
On May 26, 2009, an S2 Superseding Indictment was filed charging
Bourke with: conspiracy to violate the FCPA (Count 1ss); conspiracy to commit
money laundering (Count 2ss); and making false statements (Count 3ss). On July
10, 2009, after a five-week trial, Bourke was convicted of conspiring to violate the
FCPA and making false statements. Bourke subsequently moved, pursuant to
Federal Rule of Criminal Procedure 29, for entry of a judgment of acquittal on both
counts of conviction and, alternatively, for a new trial under Federal Rule of
Criminal Procedure 33 (“Rule 33”). Both post-trial motions were denied by this
Court. On November 10, 2009, Bourke was sentenced to one year and one day in
See United States v. Kozeny, 664 F. Supp. 2d 369 (S.D.N.Y. 2009). In
denying Bourke’s first Rule 33 motion, this Court expressly rejected a finding of
intentional perjury on Bodmer’s part, stating as follows:
There is no evidence that Bodmer committed perjury on the
stand. . . . If he testified falsely, it appears to have been
unintentional. There is also no evidence that the
Government was aware of such discrepancy. Even if I
determined that Bodmer had committed perjury by
testifying falsely about the dates, I cannot say that the other
evidence in the record, including Farrell’s testimony that he
spoke to Bourke about the corrupt arrangements in April
1998 – which was not impeached – was insufficient to
demonstrate beyond a reasonable doubt that Bourke
possessed the requisite knowledge of the scheme. I
therefore also deny Bourke’s Rule 33 motion.
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custody and a fine in the amount of $1,000,000.00 was imposed.
On November 10, 2009, Bourke appealed his Judgment of Conviction
to the Second Circuit. On December 14, 2011, the Second Circuit affirmed
Bourke’s conviction. Despite the fact that his direct appeal was pending at the
time, Bourke filed a second Rule 33 motion in this Court. In sum, Bourke seeks a
new trial on the ground that the Government violated his right to due process
through its presentation of the perjured testimony of Hans Bodmer, a cooperating
witness. For the following reasons, defendant’s motion is denied.
A. Discovery and Jencks Act Material
Following the unsealing of the original Indictment in 2005, the
Government produced voluminous discovery to Bourke including flight records
from the jet of co-defendant Viktor Kozeny. These flight records reveal that
Bourke and Kozeny were in England on February 5, 1998, and that they did not
arrive in Baku, Azerbaijan until 9:20 a.m. on February 6, 1998.
The trial began on June 1, 2009. Before the trial began, the
Government produced to defense counsel the Jencks Act material for its witnesses.
Id. at 378. The instant motion is arguably precluded by the above findings.
See United States v. Kozeny, --- F.3d ---, No. 09-4704-cr(L), 2011 WL
6184494, at *15 (2d Cir. Dec. 14, 2011).
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The first item produced for Bodmer was an FBI 302 interview report which stated:
In February 1998 BODMER went to Baku to address a
variety of administrative matters. KOZENY, BOURKE,
BOB EVANS, and JOHN PULLEY were all in Baku
during this time. . . .
During the February trip, BOURKE asked to meet with
BODMER to discuss the investment. Before the meeting,
BODMER asked KOZENY for his permission to do so.
The next morning BODMER met BOURKE in the lobby of
the Baku Hyatt and went for a walk around the hotel.
BOURKE bluntly asked about the arrangement with the
Azeris. This was the first time an investor had asked
BODMER about the investment’s details.
The FBI 302, which was produced weeks before Bodmer’s mid-trial testimony,
offered a general preview of Bodmer’s testimony, without providing specific dates
B. The Trial
In its opening statement, the Government anticipated Bodmer’s
testimony concerning Bourke’s visit to Baku in February 1998, without referencing
the contradictory evidence (the flight records) provided to Bourke years earlier. At
trial, Bodmer testified that on February 5, 1998, in the hotel lobby of the Baku
Ex. A to the Government’s Memorandum of Law in Opposition to
Defendant’s Motion for New Trial Based on Newly Discovered Evidence (“Gov’t
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Hyatt, Bourke asked Bodmer to explain the Azeri interests to him. Bodmer
testified that later that evening, in Kozeny’s hotel room, he had asked Kozeny for
permission to explain the bribery scheme to Bourke. Bodmer further testified that
the next day, February 6, 1998, at 8:00 a.m., he and Bourke had a “walk and talk”
outside of the hotel, in which Bodmer explained the details of the bribery scheme.
Bourke invested in the Azeri scheme shortly thereafter, some time in March 1998.
Contrary to Bodmer’s testimony, Kozeny’s flight records revealed
that Kozeny and Bourke did not arrive in Baku on February 6, 1998, until 9:20
a.m. Bodmer was thus mistaken as to the date and/or time of the “walk and talk”
with Bourke and the details of his conversations with Bourke and Kozeny the day
Defense counsel cross-examined Bodmer, questioning Bodmer’s
recollection of the details of the “walk and talk” and the preceding events. Bodmer
stated that he was not sure if the preliminary meeting he had with Kozeny on
February 5, 1998 was in Kozeny’s hotel room, but that was how he remembered
See Trial Transcript (“Trial Tr.”) at 1065.
See id. at 1067.
See id. 1067-1070.
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it. Bodmer also stated that he was not sure where he first encountered Bourke on
February 5, 1998, but he believed that it was in the lobby of the Baku Hyatt.
Bodmer confirmed that he had a conversation with Kozeny in the evening on
February 5, 1998, followed by the “walk and talk” with Bourke the next morning
on February 6, 1998. Defense counsel did not confront Bodmer with the flight
records during his cross-examination.
After Bodmer was cross-examined, defense counsel brought the flight
records and the inconsistency in Bodmer’s testimony to the Government’s
attention. Defense counsel proposed a stipulation to the Government which would
admit the flight records into evidence without the need to call an authenticating
witness. Upon being presented with defendant’s proposed stipulation, the
Government reviewed the flight records, recognized the inconsistencies in
Bodmer’s testimony in light of those records, and offered the flight records in its
case-in-chief through a summary witness and chart. The flight records
conclusively established that Bourke and Kozeny did not arrive in Baku until 9:20
See id. at 1303.
See id. at 1305.
See Government Trial Exhibit 1100, Ex. C to the 3/9/11 Declaration
of Harold A. Haddon (“Haddon Decl.”), defendant’s counsel.
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a.m. on February 6, 1998. Thus, if Bodmer spoke with Bourke and Kozeny before
the incriminating “walk and talk,” it was not on February 5, 1998, or it was not in
person in Baku.
In summation, the Government conceded that Bodmer was obviously
mistaken in his recollection of the details of the “walk and talk” he had with
Bourke. But the Government argued that the jury could still credit Bodmer’s
testimony about the substance of the conversation. In discussing Bodmer’s
testimony, the Government stated the following:
What we know from this testimony is that there has always
been some uncertainty about the actual date, but the general
time period is clear, and that is early spring of 1998.
But what we do know also is that Mr. Bodmer’s testimony,
that [the] conversation with Mr. Bourke happened on
February 6th, is incorrect. And we know that because if the
conversation happened on the 6th, there’s no way that he
could’ve met with Kozeny in person the night before, as he
had testified. Because as the flight records show, and as we
explained in government exhibit 1100, the summary chart,
neither Bourke nor Kozeny were in Baku on the 5th,
because Bourke and Kozeny spent only six hours in Baku
the following day, which was the 6th. And as Mr. Bodmer
testified, he was, himself, uncertain about the date, but he
thought he could fix it to an entry in his time sheets by
looking at them.
Trial Tr. at 3097.
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Defense counsel made the inconsistencies in Bodmer’s testimony one
of the focal points of his closing argument. For example, in referring to Bodmer
and Tom Farrell, another cooperating witness, Cline told the jury that “the amazing
thing is that those thieves have come to court and they’ve given testimony that we
have proven to be false.” In referring to Bodmer’s testimony, defense counsel
[Bodmer’s testimony] fits the prosecution’s story of this
case perfectly. The problem with it was, it wasn’t true, it
wasn’t true. We know Mr. Bodmer didn’t tell the truth
about this, because on February the 5th, 1998, when he said
he was having that first conversation with Mr. Bourke,
where Mr. Bourke was asking permission to be told about
the arrangement, Mr. Bourke wasn’t in Baku, he was in
London. We know he didn’t tell the truth about the
conversation that evening with Mr. Kozeny in Mr.
Kozeny’s hotel room at the Baku Hyatt, because on the
evening of February the 5th, 1998, Mr. Kozeny wasn’t in
Baku. He was in London. And we know he didn’t tell the
truth about that walk the next morning at 8:00 o’clock on
February 6th because the plane that was carrying Kozeny
and Bourke and Evans, and Pulley from London to Baku
didn’t land in Baku until 9:20 that morning Baku time.
Now, how do we know all those things? We know them
from several sources. We know them, for example, from
the flight records.
Id. at 3156. See also id. at 3158 (referring to Bodmer and Farrell as
“two crooks who have made amazing deals to keep themselves out of prison”).
Id. at 3173-3174. See also id. at 3175 (“So you know from the flight
records that the story Bodmer told about what happened on February 5th, the walk
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Defense counsel then proceeded to question the prosecutors’ integrity
by suggesting that the flight records had “surfaced” after the prosecution presented
Bodmer’s false testimony. Defense counsel first commented on the parties’
stipulation concerning the flight records, stating: “And then, at the very end of the
prosecution’s case, after it had put on Mr. Bodmer to give this testimony which
proved to be false, after Mr. Bodmer was long gone, we had a stipulation from the
government[.]” Defense counsel further commented: “So based on all of these
records, all of which, by the way, surfaced long after Bodmer testified, long after
he was gone from the witness stand, we know he didn’t tell the truth.” Defense
counsel theorized about Bodmer’s motivation to lie.
There’s no question, no question that Mr. Bodmer gave
false testimony in this case. We’ve proven it. I don’t think
anybody disputes it. They say it was an innocent mistake,
but everybody agrees it was untrue, what he said about the
events of February 5th and 6th.
That testimony shows what can happen when the
government puts pressure on someone to cooperate. It
shows how a man who is desperate to keep his freedom, as
Mr. Bodmer is, who is desperate to go back home, who is
desperate to be with his family, it shows that he will do
on February 6th, that that was false.”).
Id. at 3175-3176.
Id. at 3176. At this point, the Court sustained an objection from the
prosecution objecting to the phrase “surfaced.” See id.
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almost anything. . . . Because you see from what Mr.
Bodmer did on the witness stand, what the kind of pressure
that he’s under can cause a person to do.
Defense counsel then tempered his attack on the prosecutors by stating: “I am not
suggesting for a minute that the prosecutors in this case put Mr. Bodmer on the
stand to give false testimony. I am confident that they had no idea when they put
him on the stand to give that testimony that they thought his testimony was
false.” As discussed below, defense counsel’s view of what the Government
knew, or should have know, before Bodmer took the stand changed drastically
following oral argument on Bourke’s appeal.
C. Oral Argument on Appeal
At oral argument, appellate counsel, Michael Tigar, argued that the
Government should have known about the discrepancy between Bodmer’s
testimony and the flight records and should have resolved that discrepancy before
putting Bodmer on the stand.
The government conceded, or said, that those were
mistaken dates. I will say, Judge Pooler, that the
government dishonorably, it seems to us, in its brief said,
well, Mr. Bodmer made a mistake because there were flight
records that weren’t available to him that showed that.
That he couldn’t have been there.
Id. at 3184.
Id. at 3185.
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The government had this witness for seven years. He was
competently represented. The records to which “he did not
have access,” . . . were records that the government
obtained and turned over to the defense.
Responding to the above argument, AUSA Harry Chernoff stated:
The dates with respect to Mr. Bodmer, I sort of am puzzled
by Mr. Tigar’s argument that because the government had
the flight records, Mr. Bodmer should have been
rehabilitated in his witness prep. It would have been utterly
improper for us to show him the flight records to point out
to him that his recollection of these meetings was
From the above statement, Bourke leaps to the conclusion that the
Government knew of the conflict between Bodmer’s recollection and the flight
records and intentionally chose to present what the Government knew to be false
testimony. According to Bourke, the “prosecutor’s stunning admission at oral
argument” is evidence “that the [G]overnment violated Bourke’s right to due
process through its presentation of Bodmer’s testimony.” Defendant argues that
Transcript of 2/11/11 Oral Argument (“App. Tr.”) at 4, Ex. G to the
Id. at 18-19.
Memorandum in Support of Motion of Frederic A. Bourke, Jr. for
New Trial Based on Newly Discovered Evidence (“Def. Mem.”) at 1 (“The recent
oral argument in the Second Circuit revealed a startling fact, previously unknown
to the defense: The prosecution knew before key government witness Hans Bodmer
testified that flight records from Victor Kozeny’s plane refuted Bodmer’s account
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“[w]hen – as here – the prosecution uses testimony that it knows or should have
known is false, ‘the conviction must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.’”
For the following reasons, defendant’s motion for a new trial is denied.
D. Bourke’s Conviction Is Affirmed on Appeal
On appeal, Bourke attacked his conviction and raised issues
regarding: (1) the instructions given to the jury, (2) the sufficiency of the evidence,
and (3) certain evidentiary rulings made by this Court. On appeal, Bourke
argued, inter alia, that this Court erred in admitting portions of a memorandum
written by Bodmer’s associate, Rolf Schmid, that appeared to corroborate key
aspects of Bodmer’s testimony while excluding other portions of the memorandum
that contradicted Bodmer’s testimony. Bourke also challenged his conviction on
the false statements count on the ground that the verdict was not supported by
of the February 6, 1998 ‘walk talk’ with defendant Frederic A. Bourke, Jr.”)
(emphasis in original).
Id. at 15 (quoting United States v. Wallach, 935 F.2d 445, 456 (2d Cir.
Kozeny, 2011 WL 6184494, at *1.
See id. at *12.
See id. at *14.
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Before addressing these arguments, the Second Circuit summarized
Bodmer’s testimony as follows:
Bourke and Evans returned to the Azerbaijani capital,
Baku, with Kozeny in February 1998. Bodmer – who
traveled separately – testified that Bourke approached him
in Baku and questioned him regarding the Azerbaijanis.
Bodmer testified that during this so-called “walk-talk,” he
told Bourke of the nature of the bribery scheme and the
corporate structures created to carry it out. Bodmer
conveyed the substance of his conversation with Bourke to
Rolf Schmid, an associate at Bodmer’s law firm. Schmid
memorialized Bodmer’s description of the conversation
years later in a memorandum[.]
After disposing of Bourke’s four arguments regarding the jury charge,
the Second Circuit proceeded to address his argument concerning the Schmid
memorandum. Finding no abuse of discretion in this Court’s decision not to admit
the entirety of the Schmid memorandum, the court stated:
At trial, the government was permitted to introduce a
portion of a memorandum written for Bodmer by his
associate, Rolf Schmid, that included an account of
Bodmer’s February 1998 conversation with Bourke about
the corrupt scheme. Bodmer testified that while in Baku
with Bourke, Bodmer told Bourke about the particulars of
the corrupt arrangements, including that the Azeri
government officials would receive two-thirds of the
vouchers in an arrangement that would allow the Azeri
officials to incur no risk. The defense called Bodmer’s
recollection of this conversation into question because
Bodmer had trouble remembering exactly when the
Id. at *2.
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conversation took place. The government then sought to
salvage Bodmer’s testimony by having Schmid testify that
Bodmer had told Schmid of his conversation with Bourke,
and memorialized that conversation in a memo.
Finding that the Schmid memorandum was offered as a prior consistent statement
of Schmid, not Bodmer, the Second Circuit held that the rule of completeness did
not mandate the admission of the entire Schmid memorandum.
The court then addressed Bourke’s challenge to his false statements
conviction on the ground that the verdict was not supported by sufficient evidence.
Drawing all permissible inferences in the Government’s favor, and resolving all
issues of credibility in favor of the jury verdict, the court summarized the evidence
Specifically, Bodmer testified that Bourke had approached
him in February 1998 about an “arrangement” with the
Azeri officials, and that Bodmer had then explained to
Bourke how the Azeri officials were to receive a two-thirds
share of the vouchers without assuming risk, and without
Bodmer’s testimony regarding the timing of his
conversation with Bourke in Baku was the subject of
extensive cross-examination. Documentary evidence
demonstrated that at least one of the conversations with
Bourke that Bodmer testified to could not have taken place
on the date Bodmer believed it did, and the government so
Id. at *12.
See id. at *14.
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stipulated. While Bodmer’s testimony regarding the date
of the conversation was questioned by the defense, that
does not mean a reasonable juror could not conclude that
the conversation took place on a different date. . . . Bourke
argues that the only reasonable inference from Bodmer and
Farrell’s failure to accurately identify the date the
conversations took place is that the conversations never
took place. However, drawing all inferences in favor of the
government, as we must, a reasonable juror could have
concluded that the conversations took place and that the
witnesses simply got the dates wrong. Thus, there is
sufficient evidence to sustain the conviction on Count
Thus, the Second Circuit held open the possibility that the inconsistencies in
Bodmer’s testimony were the result of a faulty recollection, not perjury.
III. LEGAL STANDARDS
A. Federal Rule of Criminal Procedure 33
Federal Rule of Criminal Procedure 33 (“Rule 33”) states that “[u]pon
the defendant’s motion, the court may vacate any judgment and grant a new trial if
the interest of justice so requires.” “Reversal of a conviction based upon
allegations of ‘perjured testimony should be granted only with great caution and in
the most extraordinary circumstances.’” A defendant seeking a new trial based
Id. (emphasis added).
Fed. R. Crim. P. 33(a).
United States v. Zichettello, 208 F.3d 72, 102 (2d Cir. 2000) (quoting
United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). Accord United
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upon the Government’s alleged use of perjured testimony must establish the
following: “‘(i) the witness actually committed perjury’; (ii) ‘the alleged perjury
was material’; (iii) ‘the government knew or should have known of the alleged
perjury at time of trial’; and (iv) ‘the perjured testimony remained undisclosed
during trial.’” “When the perjury was disclosed during the trial, a new trial
should not be granted.” “As long as the jury is alerted to a witness’ lies, the jury
– the ‘appropriate arbiter of the truth’ – can sift falsehood from fact and make its
own credibility determinations.”
Thus, in order to grant a new trial based on newly discovered evidence
of perjured testimony, the defendant must first demonstrate that the witness, in
States v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006) (“[E]ven where newly
discovered evidence indicates perjury, motions for new trials ‘should be granted
only with great caution and in the most extraordinary circumstances.’”) (quoting
Sanchez, 969 F.2d at 1414).
United States v. Ferguson, 653 F.3d 61, 83 (2d Cir. 2011) (emphasis
in original) (quoting Zichettello, 208 F.3d at 102 (internal quotation marks and
citations omitted)). Accord United States v. Josephberg, 562 F.3d 478, 494 (2d
United States v. Cromitie, No. 09 CR 558, 2011 WL 1842219, at *25
(S.D.N.Y. May 10, 2011) (citing United States v. Canova, 412 F.3d 331, 349 (2d
Cir. 2005); United States v. McCarthy, 2571 F.3d 387, 400 (2d Cir. 2001); United
States v. Joyner, 201 F.3d 61, 82 (2d Cir. 2000)).
Id. (quoting Zichettello, 208 F.3d at 102).
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fact, committed perjury. “A witness commits perjury if he gives false testimony
concerning a material matter with the willful intent to provide false testimony, as
distinguished from incorrect testimony resulting from confusion, mistake, or faulty
memory.” “Simple inaccuracies or inconsistencies in testimony do not rise to the
level of perjury.” A new trial, however, is not mandated even where a witness
commits perjury of a material nature.
Whether the introduction of perjured testimony requires a
new trial depends on the materiality of the perjury to the
jury’s verdict and the extent to which the prosecution was
aware of the perjury. With respect to this latter inquiry,
there are two discrete standards of review that are utilized.
Where the prosecution knew or should have known of the
perjury, the conviction must be set aside “‘if there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.’” Perkins v. LeFevre,
691 F.2d 616, 619 (2d Cir. 1982) (quoting United States v.
Agurs, 427 U.S. 97, 103 (1976)); see also Sanders v.
Sullivan, 863 F.2d 218, 225 (2d Cir. 1988) (question is
whether the jury’s verdict “might” be altered); Annunziato
v. Manson, 566 F.2d 410, 414 (2d Cir. 1977). Indeed, if it
is established that the government knowingly permitted the
introduction of false testimony reversal is “virtually
automatic.” United States v. Stofsky, 527 F.2d 237, 243 (2d
Cir. 1975) (citing Napue v. Illinois, 360 U.S. 264, 269
(1959)). Where the government was unaware of a witness’
See United States v. Torres, 128 F.3d 38, 49 (2d Cir. 1997).
United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001) (citing
United States v. Dunnigan, 507 U.S. 87, 94 (1993)).
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perjury, however, a new trial is warranted only if the
testimony was material and “the court [is left] with a firm
belief that but for the perjured testimony, the defendant
would most likely not have been convicted.” Sanders, 863
F.2d at 226[.]
Thus, whether to apply the reasonable likelihood standard or the heightened “but
for” standard will depend on the extent of the Government’s knowledge.
B. Newly Discovered Evidence
A motion for a new trial based upon newly discovered evidence must
be filed within three (3) years after the verdict or finding of guilty; a motion for a
new trial based upon any other reason must be filed within fourteen (14) days after
the verdict or finding of guilty. With regard to new trial motions based upon
newly discovered evidence, the Second Circuit has stated that
“even where newly discovered evidence indicates perjury,
motions for new trials ‘should be granted with great caution
and in the most extraordinary circumstances,’” United
States v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006) (quoting
United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.
1992)). To prevail on a Rule 33 motion, a defendant must
show: (1) the newly discovered evidence could not with
due diligence have been discovered before or during trial;
(2) the evidence demonstrates that the witness in fact
committed perjury; (3) the newly discovered evidence is
material; and (4) the newly discovered evidence is not
cumulative. United States v. White, 972 F.2d 16, 20–21 (2d
Wallach, 935 F.2d at 456 (parallel citations omitted, emphasis added).
See Fed. R. Crim. P. 33(b)(1) & (2).
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Cir. 1992); accord Stewart, 433 F.3d at 297–300.
Ultimately, “the trial court’s discretion to decide whether
newly discovered evidence warrants a new trial is broad
because its vantage point as to the determinative factor –
whether newly discovered evidence would have influenced
the jury – has been informed by the trial over which it
presided.” Stewart, 433 F.3d at 296.
Thus, a Rule 33 motion based on newly discovered evidence may be granted “only
upon a showing that the evidence could not with due diligence have been
discovered before or during trial, that the evidence is material, not cumulative, and
that admission of the evidence would probably lead to an acquittal.”
A. The Government Did Not Knowingly Permit the Introduction of
Defendant argues that Chernoff’s statement at oral argument before
the Second Circuit constitutes newly discovered evidence. But the Government’s
position is that Chernoff was merely responding to a hypothetical and did not make
any sort of admission regarding the subornation of perjury. The Government has
steadfastly represented that it was unaware of the discrepancy between Bodmer’s
testimony and the flight records until after Bodmer testified and it was alerted to
the inconsistencies by defense counsel. The Government has maintained this
United States v. Gupta, 426 Fed. App’x 12, 13 (2d Cir. 2011).
United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980).
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position in its memorandum of law in opposition to the instant motion and at oral
argument before this Court. At the oral argument, Chernoff represented that:
The circumstantial evidence that we didn’t know is
overwhelming. We could have lost the trial. This was the
centerpiece of the defense summation. . . . [Defense
counsel] talked about how these records surfaced long after
Mr. Bodmer left the witness stand. That was wrong. Your
Honor sustained an objection to that. Then after he
assaulted our ethics, he said maybe it is a problem with the
prosecutors’ competence. They didn’t do the due diligence.
That was all fair game. We took our lumps for that.
Assuming no actual knowledge, the next question is what the
Government “should have known” about the discrepancies in Bodmer’s testimony
before he took the stand. This is a fact-intensive inquiry. Defendant cites Wallach
as a case where the Government should have known that a witness (Guariglia)
See, e.g., Gov’t Mem. at 3 (“It is therefore obvious, apart from the
Government’s representations, from the sequence of the events at trial, that the
Government was unaware of the discrepancy. That error was the most prominent
point of the defense summation.”); 6-7 (“Indeed, the defense accurately reports that
the Government represented to trial counsel, once the defense sought a stipulation
to the admissibility of the flight records, that the Government had been unaware of
the conflict between the flight records and Bodmer’s testimony with respect to the
timing of his conversation with Bourke until the defense brought the flight records
to the prosecutors’ attention later in trial.”); 13 (“[T]he Government’s failure to
realized the contradiction between the flight records and the Bodmer testimony
before incorporating Bodmer’s error into the Government’s opening statemetn was
perhaps the best break that the defense got in the trial[.]”).
See November 10, 2011 Transcript of Oral Argument at 38, 47.
Id. at 39.
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perjured himself when he testified that he stopped his compulsive gambling in the
summer of 1988. The court found as follows:
Defendants submit that the government was aware of the
perjury and that the district court ignored the facts on this
issue. According to defendants, the prosecution should
have been aware of the perjury once Guariglia was
cross-examined and admitted having purchased gambling
chips at an Atlantic City casino on two occasions in the fall
of 1988. Instead, the prosecution sought to rehabilitate the
witness on redirect, permitting Guariglia to testify that he
had bought the chips but that he had not gambled, even
after defense counsel disclosed to the government written
records from the Tropicana Casino reflecting that Guariglia
had gambled. We agree with the defendants that the
government should have been aware of Guariglia’s perjury.
* * *
In light of Guariglia’s acknowledged history of compulsive
gambling, we believe that given the inconsistencies in his
statements the government should have been on notice that
Guariglia was perjuring himself. Yet, instead of proceeding
with great caution, the government set out on its redirect
examination to rehabilitate Guariglia and elicited his rather
dubious explanation of what had happened. Defendants
placed before the government and the court powerful
evidence that Guariglia was lying. Although this
information was not formally admitted into evidence, it
nonetheless cast a dark shadow on the veracity of
Guariglia’s statements. We fear that given the importance
of Guariglia’s testimony to the case, the prosecutors may
have consciously avoided recognizing the obvious—that is,
that Guariglia was not telling the truth.
Wallach, 935 F.2d at 457.
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Defendant also relies on United States v. Freeman, but I find it to be
distinguishable. In Freeman, the government witness (Williams) testified that a
co-defendant (Wilbourn) was present in an apartment known as the “penthouse”
when, in fact, he was incarcerated during the entire period that the criminal
organization used the penthouse. Thus, the disputed perjury was clearly
discernible. The court in Freeman found that
notice of Wilbourn’s incarceration establishes that the
government should have known that Williams’s testimony
was false. Even more, once the government finally
stipulated that Wilbourn was in prison the entire time the
penthouse was used, that meant the government knew
Williams’s testimony was false. Yet despite first using and
then admitting that Williams’s testimony was false, the
government relied on it during closing arguments. In sum,
the district court did not err in finding that the government
knowingly used false testimony.
With regard to Williams’ testimony, the court stated:
To uphold the granting of a new trial, there does not need
to be conclusive proof that the testimony was false or that
the witness could have been prosecuted for perjury; all that
matters is that the district court finds that the government
has knowingly used false testimony. Thus, we reject the
government’s argument that a claim under Napue can only
be made when it can be established that the witness is
650 F.3d 673 (7th Cir. 2011).
Id. at 680.
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Here, the issue is not as black and white as the perjury described in
Wallach and Freeman. A brief review of the flight records in question supports the
Government’s position. The flight records are difficult to read and interpret. It
is conceivable that the Government did not cross-check the details of Bodmer’s
anticipated testimony against these difficult to decipher flight records. Moreover,
the flight records do not contradict the substance of Bodmer’s testimony
concerning his “walk and talk” with Bourke. Contrary to defendant’s position, the
flight records do not prove that Bodmer fabricated the entire event. Rather, the
flight records merely show that Bodmer was mistaken about the date and time of
the “walk and talk.” Even if Bodmer invented the “walk and talk” incident, the
falsity of such testimony was not as readily transparent as the perjury described in
Wallach and Freeman. Under the circumstances of this case, I find that the
Government neither knew, nor should have known, of Bodmer’s alleged perjury
before he testified.
See Exs. D & E to the Haddon Decl.
See Monteleone, 257 F.3d at 219 (“Simple inaccuracies or
inconsistencies in testimony do not rise to the level of perjury.”) (citing Sanchez,
969 F.2d at 1414-15).
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B. The Alleged Perjury Was Disclosed at Trial
Bodmer’s alleged perjury was disclosed during the course of Bourke’s
trial. The Government introduced the flight records which indisputably established
the inconsistencies in Bodmer’s testimony. Moreover, defense counsel
summarized the inconsistencies repeatedly in his closing argument. Because the
jury was sufficiently alerted to the holes in Bodmer’s story, a new trial is not
warranted on the ground that a witness committed perjury. Finally, I turn to the
question of whether Bourke has presented any newly discovered evidence in the
instant motion on the assumption that the perjury must be presented in cross-
examination in order to be considered disclosed at trial.
C. There Is No Newly Discovered Evidence Here
The difference between newly discovered and newly available
evidence was addressed in United States v. Owen. In Owen, the defendant, Lance
Owen, was convicted of conspiracy to distribute marijuana, along with two co-
defendants, Mark Baroody and Paul Samuels. The lower court granted the
defendant a new trial based on his co-defendant’s post-trial statement which it
considered to be newly discovered evidence. The Second Circuit reversed, stating
500 F.3d 83 (2d Cir. 2007).
See id. at 84.
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At Samuels’ sentencing hearing, he made statements for the
first time purportedly exculpating Owen. Because Samuels
exercised his right not to testify at trial, Owen claimed
Samuels’ statements were newly discovered evidence
warranting a new trial. The district court agreed and
granted Owen a new trial pursuant to Federal Rule of
Criminal Procedure 33 (“Rule 33”). We reverse. Because
Samuels’ testimony related to his direct dealings with
Owen, Owen was – or certainly should have been – aware
of the substance of Samuels’ testimony prior to trial, and,
thus, it was not “newly discovered” within the meaning of
Rule 33 when it was offered by Samuels at sentencing.
In reversing the district court, the Second Circuit noted that “a decided
majority of circuits have held that, when a defendant is aware that his codefendant
could provide exculpatory testimony but is unable to obtain that testimony because
the codefendant invokes his privilege against self-incrimination prior to and during
trial, the codefendant’s postconviction statement exculpating the defendant is not
‘newly discovered evidence’ within the meaning of Rule 33.” The Second
Circuit joined these circuits and held that Rule 33 does not authorize district courts
to grant new trials on the basis of “evidence that was known by the defendant prior
to trial, but became newly available after trial” because such evidence is not newly
Id. at 88.
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discovered, but merely newly available.
Bourke’s complaints about the prosecutors’ alleged misconduct is not
evidence, newly discovered or otherwise. Bourke had the flight records years
before the trial began. In addition, Bourke knew he was not in Baku on February
5, 1998, and that he did not arrive there until 9:20 a.m. the following morning.
Bourke therefore had actual knowledge of the discrepancy between Bodmer’s
recollection and the facts of his own travel immediately upon hearing Bodmer’s
testimony. Thus, Bourke was on notice of Bodmer’s inconsistencies at the time
they were made. Given his long-standing possession of the flight records, Bourke
was in a position to argue that the Government knew, or should have known, of the
falsity of Bodmer’s testimony immediately upon hearing that testimony and
certainly by the time he made his first Rule 33 motion. Needless to say, Bourke
could have confronted Bodmer with his contradictory evidence but apparently
made the strategic decision not to do so. Thus, neither Bodmer’s alleged
perjurious testimony, nor any post-trial statement made by the Government
concerning that testimony, can possibly be considered “newly discovered
Id. at 89. Accord United States v. Rigas, No. 02 CR 1236, 2007 WL
4145282, at *1 (S.D.N.Y. Nov. 20, 2007), aff’d, 583 F.3d 108, 125 (2d Cir. 2009)
(applying the newly discovered/newly available dichotomy in rejecting, as newly
discovered evidence, testimony given by a witness during post-trial civil SEC
proceedings which purportedly demonstrated that the witnesses’ testimony at the
criminal trial was perjurious).
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evidence" for purposes of Rule 33. Without any newly discovered evidence,
Bourke's motion for a new trial is untimely and unfounded and must therefore be
For the foregoing reasons, Bourke's motion for a new trial based on
newly discovered evidence is denied. The Clerk of the Court is directed to close
this motion (Docket Entry # 278). Bourke is directed to surrender to the U.S.
Marshals on January 3, 2012, to begin serving his sentence.
! .' / !
I. ',! ,,)/1 /L //
Dated: New York, New York
December 15, 2011
Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 27 of 28
Case: 11-5390 Document: 25 Page: 85 04/10/2012 576064 86
- Appearances -
For the Defendant:
Harold A. Haddon, Esq.
Saskia A. Jordan, Esq.
Haddon, Morgan, Mueller, Jordan,
Mackey & Foreman, P.C.
150 East Tenth Avenue
Denver, CO 80203
Michael E. Tigar, Esq.
552 Fearrington Post
Pittsboro, NC 27312
John D. Cline,Esq.
K.C. Maxwell, Esq.
Law Office of John D. Cline
115 Sansome Street, Suite 1204
San Francisco, CA 74104
For the Government:
Harry A. Chernoff
Assistant United States Attorneys
One St. Andrew’s Plaza
New York, NY 10007
Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 28 of 28
Case: 11-5390 Document: 25 Page: 86 04/10/2012 576064 86
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