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Media Alerts - United States v. Bout - Second Circuit
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September 27, 2013
  United States v. Bout - Second Circuit
Headline: Second Circuit Upholds Conviction of International Arms Trafficker

Area of Law: Criminal, Constitutional, International

Issues Presented: Whether defendant's conviction for conspiracy to kill United States nationals and on related charges should be overturned on the grounds that the United States government's conduct in pursuing and prosecuting him constituted a "vindictive prosecution" in violation of his constitutional rights and principles of international law?

Brief Summary: Defendant-appellant Viktor Bout ("Bout"), an international arms trafficker, was the subject of a sting operation executed by the Drug Enforcement Administration ("DEA") ending in 2008. In essence, the DEA used confidential sources to represent themselves as members of the Fuerzas Armadas Revolucionarias de Colombia (the "FARC") to initiate a weapons purchase from Bout. The day after Bout attended a meeting with the confidential sources in Thailand, Bout was arrested by Thai authorities.

A grand jury sitting in the United States District Court for the Southern District of New York returned an Indictment, charging Bout under federal law, with conspiracy to kill United States nationals, officials and employees, conspiracy to transport missiles capable of destroying aircraft, and conspiracy to provide material support to a foreign terrorist organization. After two years of legal proceedings in the Thai courts related to Bout's extradition, Bout was extradited to the United States for a jury trial in the Southern District of New York. The jury found Bout guilty on all counts, and upon entering a judgment of conviction, the district court sentenced Bout to concurrent terms of 180 months' imprisonment on three of the counts and 300 months' imprisonment on the remaining count. Bout appealed his conviction, arguing that the United States government's conduct constituted an outrageous and vindictive prosecution in violation of his constitutional rights. The Second Circuit rejected the defendant's arguments in full and affirmed his conviction.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e6a421804c0/2/hilite/

Extended Summary: In late 2007, the Drug Enforcement Administration ("DEA") planned a sting operation with the help of three confidential sources. The target of the operation was defendant-appellant Viktor Bout ("Bout"), an international arms trafficker. Two of the confidential sources went undercover as members of the Fuerzas Armadas Revolucionarias de Colombia (the "FARC"), an organization that the United States government has deemed a foreign terrorist organization. In January of 2008, the three confidential sources met with Bout's former associate, Andrew Smulian ("Smulian"), in Curacao to discuss a weapons deal. The deal was discussed under the pretext that FARC wanted these weapons to help their movement against the Colombian government and the United States. Later, Bout met with Smulian in Moscow to discuss the deal in detail. Further discussions were held in Romania between Smulian and the confidential sources in which the confidential sources were told that 100 surface-to-air missiles would be available and other equipment could be made available.

In March of 2008, Bout and Smulian met with the confidential sources in Thailand. During this meeting, a recording was made of Bout stating that had a variety of weapons available for the FARC to purchase and that Bout supported the FARC's intention to kill Americans. The day after this meeting, Bout and Smulian were arrested. Within a month, a grand jury sitting in the United States District Court for the Southern District of New York returned an indictment against Bout charging him with conspiracy to commit murder against Unites States nationals, and related charges. Subsequently, in August 2009, a lower court in Thailand denied Bout's extradition to the United States. A year later, however, a Thai appellate court reversed that decision and Bout was extradited in November of 2010.

In October of 2011, Bout was tried before a jury in the Southern District of New York. The jury convicted Bout on four counts, including conspiracy to kill United States nationals, conspiracy to kill United States officials and employees, conspiracy to export missiles capable of destroying aircraft, and conspiracy to provide material support or resources to a foreign terrorist organization, all violations of federal law. The district court entered a judgment of conviction and sentenced Bout to concurrent terms of 180 months' imprisonment on three of the counts and 300 months' imprisonment on the remaining count. The district court also denied post-trial motions to dismiss the indictment.

Bout's main argument on appeal was that the government's conduct in pursuing and prosecuting him was so outrageous that it constituted a "vindictive prosecution" in violation of his due process rights. The Second Circuit rejected his argument, finding no evidence that the government harbored an actual vindictive motive or "animus" in their pursuit or prosecution of Bout but, rather, that it arose from their long-held belief that he was engaged in widespread criminal activity. The court noted that the government had placed Bout on "United States and United Nations 'sanction lists' since the early 2000s" and found, too, that Bout had not alleged any actual coercive conduct by the government. The Second Circuit also rejected Bout's contention that his conviction should be overturned on the ground that he was illegally extradited, stating that it was established law that a United States court could not "second-guess" a decision by a foreign country to extradite a defendant to the United States and that a defendant may be legally prosecuted even if they were illegally extradited. Rejecting two final arguments in short order, the Second Circuit affirmed Bout's conviction and remanded the case to the district court to correct a clerical error in the judgment of conviction.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...e6a421804c0/2/hilite/

Panel: Judges Cabranes, Hall, and Chin.

Argument Date: 08/22/2013

Date of Issued Opinion: 09/27/2013

Docket Number: 12-1487-cr

Decided: Affirmed and remanded for the purpose of correcting a clerical error.

Case Alert Author: Jeffrey S. Peters

Counsel: ALBERT Y. DAYAN, Law Office of Albert Y. Dayan, for Appellant Viktor Bout. ANJAN SAHNI (Assistant United States Attorney for the Southern District of New York), (Brendan R. McGuire and Michael A. Levy, on the brief), for Appellee United States of America

Author of Opinion: Judge Cabranes

Case Alert Circuit Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 09/27/2013 08:33 PM     2nd Circuit  

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