In this article, Matt Reinhard discusses the Second Circuit Court of Appeals' long-awaited opinion in the appeal of hand bag mogul turned FCPA defendant Frederic Bourke. Bourke advanced a number of issues on appeal, but from an FCPA perspective none were as interesting as his contention that the trial court erred in giving a “conscious avoidance” instruction to the jury. A number of commentators, Reinhard included, believed Bourke had potentially strong arguments in this regard and many were looking forward to some judicial guidance on the contours of the Government's ability to sustain a conviction based on a defendant consciously avoiding learning bad facts.
Defying the punditry, the Court of Appeals ultimately took a very workmanlike approach in rejecting this argument. The Court found a sufficient factual predicate to support the instruction based on what Reinhard calls the "Evidence of the Four Bads" -- bad place, bad person, bad actions, and bad thoughts.