Participation in an organized criminal group

Offences

• Agreement to commit a serious crime (conspiracy)

Degree of Involvement

• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question

Trafficking in firearms

Offences

• Illicit trafficking (Article 3(e))

Details

• Unauthorized import, export, acquisition, sale, delivery, movement or transfer of firearms, their parts or components or ammunition

Item Types

• firearms (Article 3(a))

Terrorism

United States v Viktor Bout

UNODC No.:
USAx085

Fact Summary

Bout has long been regarded by the United States government as a dangerous and powerful international arms trafficker, and his illicit arms pipeline has repeatedly been designated for sanctions by United States and United Nations authorities. The Drug Enforcement Administration (“DEA”) initiated an international sting operation against Bout in late 2007 with the assistance of three confidential sources (“CSs”). Two of the CSs posed as representatives of the Fuerzas Armadas Revolucionarias de Colombia (the “FARC”), a Colombian entity and longtime revolutionary organization seeking the violent overthrow of the Colombian government. The FARC, which has been designated by the United States government as a foreign terrorist organization, is also one of the world’s largest cocaine suppliers and has directed violent acts toward American personnel and property.

On January 10 and 11, 2008, the three CSs met with Andrew Smulian, a former colleague of Bout, on the island of Curaçao, in the Caribbean, to discuss the possibility of a multimillion-dollar weapons transaction supposedly in order to aid the FARC in its fight against the Colombian government and the United States. Following the meetings in Curaçao, Smulian visited Bout in Moscow, where they discussed the weapons order in greater detail. Bout then directed Smulian to meet the CSs to continue discussions, which later occurred over a period of two weeks in Romania. Smulian, on behalf of Bout,2 told the CSs that 100 surface-to-air (“SAM”) missiles were available immediately, and that Bout could provide additional equipment and advice if needed.

On March 5, 2008, Bout met with Smulian and the three CSs about the weapons deal at a hotel in Bangkok, Thailand. During recorded conversations, Bout repeatedly supported the FARC’s intention to use his weapons to kill American pilots stationed in Colombia.3 On March 6, 2008, Thai authorities arrested both Bout and Smulian in Bangkok. Less than a month later, while Bout was still in Thailand, a grand jury sitting in the Southern District of New York returned an indictment against him. In August 2009, a lower court in Thailand denied Bout’s extradition to the United States, but that decision was reversed by an appellate court in August 2010.

Bout was extradited to the United States on November 16, 2010, and his trial began on October 11, 2011. After a three-week trial, the jury found Bout guilty on all four counts of the indictment, and on April 5, 2012, Judge Scheindlin sentenced him to concurrent terms of 180 months’ imprisonment on Counts One, Two, and Four and 300 months’ imprisonment on Count Three.

This appeal followed.

Commentary and Significant Features

Nexus between organized crime and terrorism; Viktor Bout was convicted for inter alia, conspiracy to acquire and export a missile system designed to destroy aircraft and conspiracy to provide material support or resources to a deisgnated foreign terrorist organization.

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

United States of America

Colombia

Thailand

Investigation

Involved Agencies

• Drug Enforcement Administration (DEA)

Details

• Special investigative techniques
• undercover operation(s)
Comments:

The Drug Enforcement Administration (“DEA”) initiated an international sting operation against Bout in late 2007 with the assistance of three confidential sources (“CSs”). Two of the CSs posed as representatives of the Fuerzas Armadas Revolucionarias de Colombia (the “FARC”).

 

International Cooperation

Measures

• Extradition
Outline:

On March 6, 2008, Thai authorities arrested both Bout in Bangkok. Less than a month later, while Bout was still in Thailand, a grand jury sitting in the Southern District of New York returned an indictment against him. In August 2009, a lower court in Thailand denied Bout’s extradition to the United States, but that decision was reversed by an appellate court in August 2010.
Bout was extradited to the United States on November 16, 2010, and his trial began on October 11, 2011.

 

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 

Defendant-appellant Viktor Bout, a reputed international arms trafficker, was arrested following an innovative international sting operation directed by American law-enforcement agents across three continents. Following lengthy proceedings abroad, Bout was extradited to stand trial in the United States. He was convicted, following a jury trial in the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge), of: (1) conspiracy to kill United States nationals, in violation of 18 U.S.C. § 2332(b); (2) conspiracy to kill United States officers and employees, in violation of 18 U.S.C. §§ 1114 and 1117; (3) conspiracy to acquire and export a missile system designed to destroy aircraft, in violation of 18 U.S.C. § 2332g; and (4) conspiracy to provide material support or resources to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B.

On appeal, Bout raises a number of claims, including that: (1) the government’s conduct constituted an outrageous or vindictive prosecution in violation of his constitutional right to due process of law; (2) his extradition was illegal because it was the consequence of “intense, coercive political pressure exerted by the United States”; (3) his prosecution violated the “doctrine of specialty”; and (4) the indictment insufficiently stated the offenses listed in Counts One and Two.

 
 
Proceeding #1:
  • Stage:
    appeal
  • Is the decision appealable?:
    No
  • Official Case Reference:
    No. 12-1487-cr
  • Court

    • Criminal
    Description:

    On appeal, Bout raises a number of claims, including that: (1) the government’s conduct constituted an outrageous or vindictive prosecution in violation of his constitutional right to due process of law, and that therefore the District Court should have granted his motion to dismiss the indictment; (2) his extradition was illegal because it was the impermissible consequence of “intense, coercive political pressure exerted by the United States”; (3) his prosecution violated the “doctrine of specialty”; and (4) the indictment returned against him insufficiently stated the offenses listed in Counts One and Two. In analyzing the denial of Bout’s motion to dismiss the indictment, we review the District Court’s conclusions of law de novo and its factual findings for clear error. See United States v. Daley, 702 F.3d 96, 99-100 (2d Cir. 2012).

    The court considers each of Bout’s claims in turn.

    (See discussion under legal reasoning.)

    In conclusion the court finds no merit to any of defendant’s claims, and, accordingly, AFFIRMS the judgment of conviction of the District Court and REMANDS the cause for the limited purpose of correcting a clerical error in the judgment.

     

    Defendants / Respondents in the first instance

    Defendant:
    Viktor Bout
    Gender:
    Male

    On appeal, the judgement was affirmed.

    Legal Reasoning:

    Vindictive motive

    To demonstrate an actual vindictive motive, “the defendant must show that (1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a ‘stalking horse,’ and (2) the defendant would not have been prosecuted except for the animus.United States v. Sanders, 211 F.3d 711, 717 (2d Cir. 2000)

    The Supreme Court has also recognized the possibility that “outrageous” government conduct could bar a criminal conviction. See Hampton v. United States, 425 U.S. 484, 489 (1976). To prevail on such a claim, however, a defendant must show that the government’s conduct is “so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction.” United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997) (internal quotation marks omitted). In other words, the government’s conduct must “‘shock the conscience’ in the sense contemplated by [the Supreme Court in] Rochin v. California, 342 U.S. 165, 172 (1952) (forced stomach pumping).” United States v. Cromitie, --- F.3d ----, No. 11-2763(L), 2013 WL 4487543, at *18 (2d Cir. Aug. 22, 2013).

    Having reviewed the record in light of these principles, the court concludes that Bout’s allegations do not meet the high threshold necessary to prevail on a vindictive prosecution claim. Bout refers to media reports stating that former Deputy National Security Advisor Juan Zarate and other high-ranking officials at the Drug Enforcement Agency (DEA) had him in their “cross-hairs.” Appellant’s Br. 24. Even if true, these allegations do not constitute the type of “animus” that is relevant within the meaning of our cases on vindictive prosecution.

     

    Extradition

    Bout also argues that his extradition from Thailand was the consequence of “intense, coercive political pressure exerted by the United States,” supposedly rendering his prosecution improper under some general principle of the law governing extradition. Specifically, Bout argues that because 18 U.S.C. § 3184 permits courts to evaluate the legality of the extradition of a defendant by our government from the United States to another country, courts should take on the reciprocal responsibility of evaluating the legality of the extradition of a defendant by a foreign government to the United States.

    The court disagrees as it has held that “although courts of the United States have authority to determine whether an offense is an extraditable crime when deciding whether an accused should be extradited from the United States, . . . our courts cannot second-guess another country’s grant of extradition to the United States.” United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002) (citation omitted); id. (“It could hardly promote harmony to request a grant of extradition and then, after extradition is granted, have the requesting nation take the stance that the extraditing nation was wrong to grant the request.”).

    Likewise, under the so-called Ker-Frisbie doctrine, “the government’s power to prosecute a defendant is not impaired by the illegality of the method by which it acquires control over him.” United States v. Toscanino, 500 F.2d 267, 271 (2d Cir. 1974) (relying on Ker v. Illinois, 119 U.S. 436 (1886), and Frisbie v. Collins, 342 U.S. 519 (1952)); see also United States v. Getto, --- F.3d ----, No. 11-1237-cr, 2013 WL 4779622, at *4 & n.8 (2d Cir. Sept. 9, 2013).

     

    Doctrine of Specialty

    Bout further argues that his prosecution violated the “doctrine of specialty,” which “prohibits prosecution of a defendant for a crime other than the crime for which he has been extradited.” United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003) (relying on United States v. Alvarez-Machain, 504 U.S. 655, 659 (1992)). Bout contends that the Thai appellate court that extradited him to the United States did so in the belief that he had tried to sell arms to actual members of the FARC, rather than to CSs posing as such as part of a sting operation. The District Court found this argument “completely controverted” by the record of the proceedings in Thailand, and this court agree. A review of the record discloses that the Thai court was aware that Bout was caught in a sting operation, rather than a conspiracy with actual FARC buyers. Accordingly, Bout’s claim lacks any factual basis in the record.

     

    Indictment

    Bout claims that the indictment returned against him insufficiently stated the offenses listed in Counts One and Two. Bout argues that these counts of the indictment, which charged him with a conspiracy to commit murder, were defective because they only specified that he conspired to “kill” and “the words murder, malice aforethought, premeditation or any other terms describing the object crime of the charged conspiracy as murder are conspicuously absent.

     It has been held that “in an indictment for conspiring to commit an offense—in which the conspiracy is the gist of the crime—it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy.” United States v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002). Rather, “[a]n indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.” United States v. Yannotti, 541 F.3d 112, 127 (2d Cir. 2008).

    Defence used:

    Bout argues that “[t]he egregious government[ ] action here is sui generis, taking the concepts of entrapment, vindictive prosecution and selective prosecution to a cumulative higher order and can only be described as ‘outrageous.’”

    Bout also argues that his extradition from Thailand was the consequence of “intense, coercive political pressure exerted by the United States,” supposedly rendering his prosecution improper under some general principle of the law governing extradition. Specifically, Bout argues that because 18 U.S.C. § 3184 permits courts to evaluate the legality of the extradition of a defendant by our government from the United States to another country, courts should take on the reciprocal responsibility of evaluating the legality of the extradition of a defendant by a foreign government to the United States.

    Bout further argues that his prosecution violated the “doctrine of specialty,” which “prohibits prosecution of a defendant for a crime other than the crime for which he has been extradited.” United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003) (relying on United States v. Alvarez-Machain, 504 U.S. 655, 659 (1992)). Bout contends that the Thai appellate court that extradited him to the United States did so in the belief that he had tried to sell arms to actual members of the FARC, rather than to CSs posing as such as part of a sting operation.

    Finally, Bout claims that the indictment returned against him insufficiently stated the offenses listed in Counts One and Two. Bout argues that these counts of the indictment, which charged him with a conspiracy to commit murder, were defective because they only specified that he conspired to “kill” and “the words murder, malice aforethought, premeditation or any other terms describing the object crime of the charged conspiracy as murder are conspicuously absent.

    Charges / Claims / Decisions

    Defendant:
    Viktor Bout
    Verdict:
    Guilty
    Charge / Claim:

    (1) conspiracy to kill United States nationals, in violation of 18 U.S.C. § 2332(b);
    (2) conspiracy to kill United States officers and employees, in violation of 18 U.S.C. §§ 1114 and 1117;
    (3) conspiracy to acquire and export a missile system designed to destroy aircraft, in violation of 18 U.S.C. § 2332g1; and
    (4) conspiracy to provide material support or resources to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B.

    Term of Imprisonment:
    15 years
     

    Concurrent terms of 180 months’ imprisonment on Counts One, Two, and Four and 300 months’ imprisonment on Count Three.

    Appellate Decision:
    Upheld

    On appeal, the court affirmed the judgement and remanded the cause for the limited purpose of correcting a clerical error in the judgment.

    Court

    United States District Court for the Southern District of New York

    Sources / Citations

    No. 12-1487-cr

    Attachments

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