FOR THE SECOND CIRCUIT UNITED STATES OF AMERICA, Appellee, LANDLOCKED SHIPPING COMPANY, JITKA CHVATIK, Doctor, Petitioner, v. FREDERIC BOURKE, JR., Defendant-Appellant, VIKTOR KOZENY, DAVID PINKERTON, Defendants. !! ! ! INITIAL BRIEF AND SPECIAL APPENDIX FOR DEFENDANT-APPELLANT Harold A. Haddon Saskia A. Jordan HADDON, MORGAN & FOREMAN, P.C. 150 East 10th Avenue Denver, Colorado 80203 303-831-7364 Michael E. Tigar Jane Blanksteen Tigar LAW OFFICE OF MICHAEL E. TIGAR P.O. Box 528 Oriental, North Carolina 28571 202-549-4229 On Appeal from the United States District Court for the Southern District of New York (New York City) 11-5390-CR 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 415-322-8319 Attorneys for Defendant-Appellant Case: 11-5390 Document: 25 Page: 1 04/10/2012 576064 86 i 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 Case: 11-5390 Document: 25 Page: 2 04/10/2012 576064 86 ii CERTIFICATE OF COMPLIANCE ...................................................................... 49
Case: 11-5390 Document: 25 Page: 3 04/10/2012 576064 86 iii TABLE OF CITATIONS Page CASES 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 Case: 11-5390 Document: 25 Page: 4 04/10/2012 576064 86 iv 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
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
Case: 11-5390 Document: 25 Page: 5 04/10/2012 576064 86 1 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? Case: 11-5390 Document: 25 Page: 6 04/10/2012 576064 86 2 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 I. INTRODUCTION. 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 5. 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 Case: 11-5390 Document: 25 Page: 7 04/10/2012 576064 86 3 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 Case: 11-5390 Document: 25 Page: 8 04/10/2012 576064 86 4 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. Case: 11-5390 Document: 25 Page: 9 04/10/2012 576064 86 5 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 Bahamas. 1 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.
1 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, [2012] 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. Case: 11-5390 Document: 25 Page: 10 04/10/2012 576064 86 6 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 Case: 11-5390 Document: 25 Page: 11 04/10/2012 576064 86 7 denied the motion on December 15, and Bourke filed a timely notice of appeal. SA1. 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 Bourkes testimony and information he provided. In the end, however, the Case: 11-5390 Document: 25 Page: 12 04/10/2012 576064 86 8 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 prosecutor continued: 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. JA487. 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 Case: 11-5390 Document: 25 Page: 13 04/10/2012 576064 86 9 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 Case: 11-5390 Document: 25 Page: 14 04/10/2012 576064 86 10 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 talk. 2 And the prosecution introduced Bodmer's plea agreement (JA918) and highlighted his purported obligation to "give truthful and complete" testimony. JA148-49. 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
2 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. Case: 11-5390 Document: 25 Page: 15 04/10/2012 576064 86 11 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. JA260. Case: 11-5390 Document: 25 Page: 16 04/10/2012 576064 86 12 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. JA130-43. 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 Case: 11-5390 Document: 25 Page: 17 04/10/2012 576064 86 13 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 Case: 11-5390 Document: 25 Page: 18 04/10/2012 576064 86 14 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." 3 The 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
3 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. Case: 11-5390 Document: 25 Page: 19 04/10/2012 576064 86 15 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 Case: 11-5390 Document: 25 Page: 20 04/10/2012 576064 86 16 steps to revoke Bodmer's cooperation agreement, despite his false walk talk testimony. 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 Case: 11-5390 Document: 25 Page: 21 04/10/2012 576064 86 17 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 cannot. 4
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,
4 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. Case: 11-5390 Document: 25 Page: 22 04/10/2012 576064 86 18 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 apparently flawed. 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 Kozenys 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 Case: 11-5390 Document: 25 Page: 23 04/10/2012 576064 86 19 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. 5 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
5 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. Case: 11-5390 Document: 25 Page: 24 04/10/2012 576064 86 20 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 under." JA896. 6 AUSA Chernoff took the same position as in his brief. He
6 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. Case: 11-5390 Document: 25 Page: 25 04/10/2012 576064 86 21 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 truth-- 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 think? 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 Case: 11-5390 Document: 25 Page: 26 04/10/2012 576064 86 22 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 his credibility. 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 she-- THE COURT: I am surprised at that position, to put on knowingly false testimony surprises me. JA882-84. 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). Case: 11-5390 Document: 25 Page: 27 04/10/2012 576064 86 23 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 conflict. 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 false. 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 Case: 11-5390 Document: 25 Page: 28 04/10/2012 576064 86 24 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 Case: 11-5390 Document: 25 Page: 29 04/10/2012 576064 86 25 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 presented). 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). ARGUMENT 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 Case: 11-5390 Document: 25 Page: 30 04/10/2012 576064 86 26 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, Case: 11-5390 Document: 25 Page: 31 04/10/2012 576064 86 27 427 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. Case: 11-5390 Document: 25 Page: 32 04/10/2012 576064 86 28 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. 7 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,
7 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. Case: 11-5390 Document: 25 Page: 33 04/10/2012 576064 86 29 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. 8
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
8 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. Case: 11-5390 Document: 25 Page: 34 04/10/2012 576064 86 30 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 Case: 11-5390 Document: 25 Page: 35 04/10/2012 576064 86 31 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. Case: 11-5390 Document: 25 Page: 36 04/10/2012 576064 86 32 II. THE DISTRICT COURT SHOULD AT LEAST HAVE HELD AN EVIDENTIARY HEARING. 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. 9
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
9 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).
Case: 11-5390 Document: 25 Page: 37 04/10/2012 576064 86 33 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 Case: 11-5390 Document: 25 Page: 38 04/10/2012 576064 86 34 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. 10 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. 11 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
10 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. 11 Although the notes of the interview are undated, they refer to Bodmer's proffer agreement, which he signed July 27, 2004. Case: 11-5390 Document: 25 Page: 39 04/10/2012 576064 86 35 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, 931-34. 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 laundering conspiracy. 12 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.
12 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. Case: 11-5390 Document: 25 Page: 40 04/10/2012 576064 86 36 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, 1329-32. 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 prosecution's theory. 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. 13 As 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
13 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. Case: 11-5390 Document: 25 Page: 41 04/10/2012 576064 86 37 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? 14 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
14 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. Case: 11-5390 Document: 25 Page: 42 04/10/2012 576064 86 38 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 Case: 11-5390 Document: 25 Page: 43 04/10/2012 576064 86 39 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 Case: 11-5390 Document: 25 Page: 44 04/10/2012 576064 86 40 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 Case: 11-5390 Document: 25 Page: 45 04/10/2012 576064 86 41 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 and explain. 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. Case: 11-5390 Document: 25 Page: 46 04/10/2012 576064 86 42 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 Case: 11-5390 Document: 25 Page: 47 04/10/2012 576064 86 43 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." 15
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
15 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. Case: 11-5390 Document: 25 Page: 48 04/10/2012 576064 86 44 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 Case: 11-5390 Document: 25 Page: 49 04/10/2012 576064 86 45 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"). Case: 11-5390 Document: 25 Page: 50 04/10/2012 576064 86 46 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. Case: 11-5390 Document: 25 Page: 51 04/10/2012 576064 86 47 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 Chernoffs statement that this would somehow be highly improper demands a forceful admonition and reversal. CONCLUSION 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 Case: 11-5390 Document: 25 Page: 52 04/10/2012 576064 86 48 Respectfully submitted,
s/John D. Cline John D. Cline LAW OFFICE OF JOHN D. CLINE 235 Montgomery St., Suite 1070 San Francisco, CA 94104 Phone: 415.322.8319 Fax: 415.524.8265 Email: cline@johndclinelaw.com
Harold A. Haddon Saskia A. Jordan HADDON, MORGAN AND FOREMAN, P.C. 150 East 10 th Avenue Denver, CO 80203 Phone: 303.831.7364 Fax: 303.832.2628 Email: hhaddon@hmflaw.com; sjordan@hmflaw.com
Michael E. Tigar Jane Blanksteen Tigar P.O. Box 528 Oriental, NC 28571 Phone: 202.549.4229 Email: metigar@gmail.com
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
Case: 11-5390 Document: 25 Page: 54 04/10/2012 576064 86 50 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 following: Harry A. Chernoff, Esq. Assistant U.S. Attorney 1 Saint Andrews Plaza New York, NY 10007
s/Stephanie Howard
Case: 11-5390 Document: 25 Page: 55 04/10/2012 576064 86 SPECIAL APPENDIX Case: 11-5390 Document: 25 Page: 56 04/10/2012 576064 86 INDEX TO SPECIAL APPENDIX U.S. V. KOZENY (FREDERIC BOURKE, JR.) SECOND CIRCUIT DOCKET NO. 11-5390-CR
i
Description Page No.
Opinion and Order of the Honorable Shira A. Scheindlin, dated December 15, 2011 SA0001-0028
Case: 11-5390 Document: 25 Page: 58 04/10/2012 576064 86 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------)( UNITED STATES OF AMERICA r;:-=::::::;;JI:========:;-' j fUSOCSDNY 'DOCUMENT I FILED D,X: #, I -,----- !I DATE FILED: I i 1._.... __._-.............--..-_ ....':1:. .-......,...... .. -----__ '---J OPINION AND ORDER - against S2 05 CR 518 (SAS) FREDERIC BOURKE, JR., Defendant. -------------------------------------------------------)( SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION 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, 2 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. 2 18 U.S.C. 1952. 3 Id. 1956. 4 Id. 1001. Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 1 of 28 SA0001 Case: 11-5390 Document: 25 Page: 59 04/10/2012 576064 86 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 5 See United States v. Kozeny, 664 F. Supp. 2d 369 (S.D.N.Y. 2009). In 5 denying Bourkes first Rule 33 motion, this Court expressly rejected a finding of intentional perjury on Bodmers 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 Farrells 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 Bourkes Rule 33 motion. 2 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 2 of 28 SA0002 Case: 11-5390 Document: 25 Page: 60 04/10/2012 576064 86 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 Bourkes conviction. Despite the fact that his direct appeal was pending at the 6 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, defendants motion is denied. II. BACKGROUND 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 6 6184494, at *15 (2d Cir. Dec. 14, 2011). 3 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 3 of 28 SA0003 Case: 11-5390 Document: 25 Page: 61 04/10/2012 576064 86 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 investments details. 7 The FBI 302, which was produced weeks before Bodmers mid-trial testimony, offered a general preview of Bodmers testimony, without providing specific dates and times. B. The Trial In its opening statement, the Government anticipated Bodmers testimony concerning Bourkes 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 Governments Memorandum of Law in Opposition to 7 Defendants Motion for New Trial Based on Newly Discovered Evidence (Govt Mem.). 4 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 4 of 28 SA0004 Case: 11-5390 Document: 25 Page: 62 04/10/2012 576064 86 Hyatt, Bourke asked Bodmer to explain the Azeri interests to him. Bodmer 8 testified that later that evening, in Kozenys hotel room, he had asked Kozeny for permission to explain the bribery scheme to Bourke. Bodmer further testified that 9 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. 10 Bourke invested in the Azeri scheme shortly thereafter, some time in March 1998. Contrary to Bodmers testimony, Kozenys 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 before. Defense counsel cross-examined Bodmer, questioning Bodmers 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 Kozenys hotel room, but that was how he remembered See Trial Transcript (Trial Tr.) at 1065. 8 See id. at 1067. 9 See id. 1067-1070. 10 5 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 5 of 28 SA0005 Case: 11-5390 Document: 25 Page: 63 04/10/2012 576064 86 it. Bodmer also stated that he was not sure where he first encountered Bourke on 11 February 5, 1998, but he believed that it was in the lobby of the Baku Hyatt. 12 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 13 records during his cross-examination. After Bodmer was cross-examined, defense counsel brought the flight records and the inconsistency in Bodmers testimony to the Governments 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 defendants proposed stipulation, the Government reviewed the flight records, recognized the inconsistencies in Bodmers 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 14 conclusively established that Bourke and Kozeny did not arrive in Baku until 9:20 See id. at 1303. 11 See id. at 1305. 12 See id. 13 See Government Trial Exhibit 1100, Ex. C to the 3/9/11 Declaration 14 of Harold A. Haddon (Haddon Decl.), defendants counsel. 6 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 6 of 28 SA0006 Case: 11-5390 Document: 25 Page: 64 04/10/2012 576064 86 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 Bodmers testimony about the substance of the conversation. In discussing Bodmers 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. Bodmers 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, theres no way that he couldve 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. 15 Trial Tr. at 3097. 15 7 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 7 of 28 SA0007 Case: 11-5390 Document: 25 Page: 65 04/10/2012 576064 86 Defense counsel made the inconsistencies in Bodmers 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 theyve given testimony that we have proven to be false. In referring to Bodmers testimony, defense counsel 16 stated: [Bodmers testimony] fits the prosecutions story of this case perfectly. The problem with it was, it wasnt true, it wasnt true. We know Mr. Bodmer didnt 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 wasnt in Baku, he was in London. We know he didnt tell the truth about the conversation that evening with Mr. Kozeny in Mr. Kozenys hotel room at the Baku Hyatt, because on the evening of February the 5th, 1998, Mr. Kozeny wasnt in Baku. He was in London. And we know he didnt tell the truth about that walk the next morning at 8:00 oclock on February 6th because the plane that was carrying Kozeny and Bourke and Evans, and Pulley from London to Baku didnt 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. 17 Id. at 3156. See also id. at 3158 (referring to Bodmer and Farrell as 16 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 17 records that the story Bodmer told about what happened on February 5th, the walk 8 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 8 of 28 SA0008 Case: 11-5390 Document: 25 Page: 66 04/10/2012 576064 86 Defense counsel then proceeded to question the prosecutors integrity by suggesting that the flight records had surfaced after the prosecution presented Bodmers false testimony. Defense counsel first commented on the parties stipulation concerning the flight records, stating: And then, at the very end of the prosecutions 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 18 records, all of which, by the way, surfaced long after Bodmer testified, long after he was gone from the witness stand, we know he didnt tell the truth. Defense 19 counsel theorized about Bodmers motivation to lie. Theres no question, no question that Mr. Bodmer gave false testimony in this case. Weve proven it. I dont 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. 18 Id. at 3176. At this point, the Court sustained an objection from the 19 prosecution objecting to the phrase surfaced. See id. 9 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 9 of 28 SA0009 Case: 11-5390 Document: 25 Page: 67 04/10/2012 576064 86 almost anything. . . . Because you see from what Mr. Bodmer did on the witness stand, what the kind of pressure that hes under can cause a person to do. 20 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 counsels view of what the Government 21 knew, or should have know, before Bodmer took the stand changed drastically following oral argument on Bourkes appeal. C. Oral Argument on Appeal At oral argument, appellate counsel, Michael Tigar, argued that the Government should have known about the discrepancy between Bodmers 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 werent available to him that showed that. That he couldnt have been there. Id. at 3184. 20 Id. at 3185. 21 10 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 10 of 28 SA0010 Case: 11-5390 Document: 25 Page: 68 04/10/2012 576064 86 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. 22 Responding to the above argument, AUSA Harry Chernoff stated: The dates with respect to Mr. Bodmer, I sort of am puzzled by Mr. Tigars 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 apparently flawed. 23 From the above statement, Bourke leaps to the conclusion that the Government knew of the conflict between Bodmers recollection and the flight records and intentionally chose to present what the Government knew to be false testimony. According to Bourke, the prosecutors stunning admission at oral argument is evidence that the [G]overnment violated Bourkes right to due process through its presentation of Bodmers testimony. Defendant argues that 24 Transcript of 2/11/11 Oral Argument (App. Tr.) at 4, Ex. G to the 22 Haddon Decl. Id. at 18-19. 23 Memorandum in Support of Motion of Frederic A. Bourke, Jr. for 24 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 Kozenys plane refuted Bodmers account 11 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 11 of 28 SA0011 Case: 11-5390 Document: 25 Page: 69 04/10/2012 576064 86 [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. 25 For the following reasons, defendants motion for a new trial is denied. D. Bourkes 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 26 argued, inter alia, that this Court erred in admitting portions of a memorandum written by Bodmers associate, Rolf Schmid, that appeared to corroborate key aspects of Bodmers testimony while excluding other portions of the memorandum that contradicted Bodmers testimony. Bourke also challenged his conviction on 27 the false statements count on the ground that the verdict was not supported by sufficient evidence. 28 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. 25 1991)). Kozeny, 2011 WL 6184494, at *1. 26 See id. at *12. 27 See id. at *14. 28 12 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 12 of 28 SA0012 Case: 11-5390 Document: 25 Page: 70 04/10/2012 576064 86 Before addressing these arguments, the Second Circuit summarized Bodmers 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 Bodmers law firm. Schmid memorialized Bodmers description of the conversation years later in a memorandum[.] 29 After disposing of Bourkes 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 Courts 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 Bodmers 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 Bodmers recollection of this conversation into question because Bodmer had trouble remembering exactly when the Id. at *2. 29 13 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 13 of 28 SA0013 Case: 11-5390 Document: 25 Page: 71 04/10/2012 576064 86 conversation took place. The government then sought to salvage Bodmers testimony by having Schmid testify that Bodmer had told Schmid of his conversation with Bourke, and memorialized that conversation in a memo. 30 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. 31 The court then addressed Bourkes challenge to his false statements conviction on the ground that the verdict was not supported by sufficient evidence. Drawing all permissible inferences in the Governments favor, and resolving all issues of credibility in favor of the jury verdict, the court summarized the evidence as follows: 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 payment. Bodmers 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. 30 See id. at *14. 31 14 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 14 of 28 SA0014 Case: 11-5390 Document: 25 Page: 72 04/10/2012 576064 86 stipulated. While Bodmers 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 Farrells 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 Three. 32 Thus, the Second Circuit held open the possibility that the inconsistencies in Bodmers 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 defendants 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 33 allegations of perjured testimony should be granted only with great caution and in the most extraordinary circumstances. A defendant seeking a new trial based 34 Id. (emphasis added). 32 Fed. R. Crim. P. 33(a). 33 United States v. Zichettello, 208 F.3d 72, 102 (2d Cir. 2000) (quoting 34 United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). Accord United 15 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 15 of 28 SA0015 Case: 11-5390 Document: 25 Page: 73 04/10/2012 576064 86 upon the Governments 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 35 should not be granted. As long as the jury is alerted to a witness lies, the jury 36 the appropriate arbiter of the truth can sift falsehood from fact and make its own credibility determinations. 37 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 35 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 Cir. 2009). United States v. Cromitie, No. 09 CR 558, 2011 WL 1842219, at *25 36 (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). 37 16 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 16 of 28 SA0016 Case: 11-5390 Document: 25 Page: 74 04/10/2012 576064 86 fact, committed perjury. A witness commits perjury if he gives false testimony 38 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 39 level of perjury. A new trial, however, is not mandated even where a witness 40 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 jurys 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 jurys 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). 38 United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001) (citing 39 United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Id. 40 17 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 17 of 28 SA0017 Case: 11-5390 Document: 25 Page: 75 04/10/2012 576064 86 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[.] 41 Thus, whether to apply the reasonable likelihood standard or the heightened but for standard will depend on the extent of the Governments 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 42 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, 2021 (2d Wallach, 935 F.2d at 456 (parallel citations omitted, emphasis added). 41 See Fed. R. Crim. P. 33(b)(1) & (2). 42 18 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 18 of 28 SA0018 Case: 11-5390 Document: 25 Page: 76 04/10/2012 576064 86 Cir. 1992); accord Stewart, 433 F.3d at 297300. Ultimately, the trial courts 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. 43 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. 44 IV. DISCUSSION A. The Government Did Not Knowingly Permit the Introduction of False Testimony Defendant argues that Chernoffs statement at oral argument before the Second Circuit constitutes newly discovered evidence. But the Governments 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 Bodmers 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. Appx 12, 13 (2d Cir. 2011). 43 United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980). 44 19 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 19 of 28 SA0019 Case: 11-5390 Document: 25 Page: 77 04/10/2012 576064 86 position in its memorandum of law in opposition to the instant motion and at oral 45 argument before this Court. At the oral argument, Chernoff represented that: 46 The circumstantial evidence that we didnt 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 didnt do the due diligence. That was all fair game. We took our lumps for that. 47 Assuming no actual knowledge, the next question is what the Government should have known about the discrepancies in Bodmers 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., Govt Mem. at 3 (It is therefore obvious, apart from the 45 Governments 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 Bodmers 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 Governments failure to realized the contradiction between the flight records and the Bodmer testimony before incorporating Bodmers error into the Governments 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. 46 Id. at 39. 47 20 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 20 of 28 SA0020 Case: 11-5390 Document: 25 Page: 78 04/10/2012 576064 86 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 Guariglias perjury. * * * In light of Guariglias 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 Guariglias statements. We fear that given the importance of Guariglias testimony to the case, the prosecutors may have consciously avoided recognizing the obviousthat is, that Guariglia was not telling the truth. 48 Wallach, 935 F.2d at 457. 48 21 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 21 of 28 SA0021 Case: 11-5390 Document: 25 Page: 79 04/10/2012 576064 86 Defendant also relies on United States v. Freeman, but I find it to be 49 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 Wilbourns incarceration establishes that the government should have known that Williamss 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 Williamss testimony was false. Yet despite first using and then admitting that Williamss 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. 50 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 governments 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). 49 Id. at 680. 50 22 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 22 of 28 SA0022 Case: 11-5390 Document: 25 Page: 80 04/10/2012 576064 86 lying. 51 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 Governments position. The flight records are difficult to read and interpret. It 52 is conceivable that the Government did not cross-check the details of Bodmers anticipated testimony against these difficult to decipher flight records. Moreover, the flight records do not contradict the substance of Bodmers testimony concerning his walk and talk with Bourke. Contrary to defendants 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 53 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 Bodmers alleged perjury before he testified. Id. 51 See Exs. D & E to the Haddon Decl. 52 See Monteleone, 257 F.3d at 219 (Simple inaccuracies or 53 inconsistencies in testimony do not rise to the level of perjury.) (citing Sanchez, 969 F.2d at 1414-15). 23 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 23 of 28 SA0023 Case: 11-5390 Document: 25 Page: 81 04/10/2012 576064 86 B. The Alleged Perjury Was Disclosed at Trial Bodmers alleged perjury was disclosed during the course of Bourkes trial. The Government introduced the flight records which indisputably established the inconsistencies in Bodmers testimony. Moreover, defense counsel summarized the inconsistencies repeatedly in his closing argument. Because the jury was sufficiently alerted to the holes in Bodmers 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 54 Owen, was convicted of conspiracy to distribute marijuana, along with two co- defendants, Mark Baroody and Paul Samuels. The lower court granted the 55 defendant a new trial based on his co-defendants post-trial statement which it considered to be newly discovered evidence. The Second Circuit reversed, stating 500 F.3d 83 (2d Cir. 2007). 54 See id. at 84. 55 24 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 24 of 28 SA0024 Case: 11-5390 Document: 25 Page: 82 04/10/2012 576064 86 as follows: 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. 56 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 codefendants postconviction statement exculpating the defendant is not newly discovered evidence within the meaning of Rule 33. The Second 57 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. 56 Id. at 88. 57 25 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 25 of 28 SA0025 Case: 11-5390 Document: 25 Page: 83 04/10/2012 576064 86 discovered, but merely newly available. 58 Bourkes 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 Bodmers recollection and the facts of his own travel immediately upon hearing Bodmers testimony. Thus, Bourke was on notice of Bodmers 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 Bodmers 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 Bodmers 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 58 4145282, at *1 (S.D.N.Y. Nov. 20, 2007), affd, 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). 26 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 26 of 28 SA0026 Case: 11-5390 Document: 25 Page: 84 04/10/2012 576064 86 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 denied. v. CONCLUSION 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. SO ORDERED:
' I ( r/ / ! .' / ! I. ',! ,,)/1 /L //
Shir:A. U.S.D.J. Dated: New York, New York December 15, 2011 27 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 27 of 28 SA0027 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 (303) 831-7364 Of Counsel: Michael E. Tigar, Esq. 552 Fearrington Post Pittsboro, NC 27312 (202) 549-4229 John D. Cline,Esq. K.C. Maxwell, Esq. Law Office of John D. Cline 115 Sansome Street, Suite 1204 San Francisco, CA 74104 (415) 322-8319 For the Government: Harry A. Chernoff Iris Lan Assistant United States Attorneys One St. Andrews Plaza New York, NY 10007 (212) 637-2481/2263 28 Case 1:05-cr-00518-SAS Document 292 Filed 12/15/11 Page 28 of 28 SA0028 Case: 11-5390 Document: 25 Page: 86 04/10/2012 576064 86