Sometimes it does not take active bribery or corruption by an individual to violate anti-corruption laws such as the Foreign Corrupt Practices Act. It is one of the few laws which makes illegal consciously avoiding the actual knowledge of the underlying crime. The legislative history of the FCPA makes clear that Congress intended that the so-called “head-in-the-sand” defense—also described as “conscious disregard,” “willful blindness,” or “deliberate ignorance”—should be covered so that company officials could not take refuge from the Act’s prohibitions by their unwarranted obliviousness to any action (or inaction), language, or other “signaling device” that should reasonably alert them to the “high probability” of an FCPA violation.
This interpretation was confirmed in the criminal case of Frederick Bourke. Bourke had invested in an enterprise in Azerbaijan, and it later turned out this enterprise was engaged in bribery and corruption to obtain certain oil and gas rights. Bourke was not a part of the management team that engaged in this bribery and corruption, yet at trial, prosecutors contended that Bourke had “stuck his head in the sand” and consciously avoided clear red flags that corruption was going on. Moreover, even if Bourke did not affirmatively know that bribes were being paid, he was aware of a high probability such action was occurring and he consciously and intentionally avoided confirming this fact. In the jury charge, the Court explained this “conscious avoidance” could be equated to actual knowledge under the FCPA.
The trial judge noted the test was not Bourke’s actual knowledge of the payment of bribes, but Bourke’s efforts to avoid acquiring that actual knowledge, writing, “The conscious avoidance doctrine provides that a defendant’s knowledge of a fact required to prove the defendant's guilt may be found when the jury is persuaded that the defendant consciously avoided learning that fact while aware of high probability of its existence.” The legacy of Frederick Bourke has taken on even more significance with the change in the Justice Department to target more individuals for prosecution of white-collar crimes such as the FCPA.