United States v. Bout

• Decision Date: 27 September 2013
• Docket Number: No. 12–1487–cr.,12–1487–cr.
• Citation: 731 F.3d 233
• Parties: UNITED STATES of America, Appellee, v. Viktor BOUT, also known as Victor Anatoliyevich Bout, also known as Viktor Bulakin, also known as Viktor Butt, also known as Vadim Markovich Aminov, also known as Viktor Budd, also known as Victor But, also known as Boris, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

731 F.3d 233

UNITED STATES of America, Appellee,

v.Viktor BOUT, also known as Victor Anatoliyevich Bout, also known as Viktor Bulakin, also known as Viktor Butt, also known as Vadim Markovich Aminov, also known as Viktor Budd, also known as Victor But, also known as Boris, Defendant–Appellant.

No. 12–1487–cr.

United States Court of Appeals,Second Circuit.

Argued: Aug. 22, 2013.

Decided: Sept. 27, 2013.

Albert Y. Dayan, Law Office of Albert Y. Dayan, Kew Gardens, NY, for Appellant Viktor Bout.

Anjan Sahni, Assistant United States Attorney (Brendan R. McGuire, Michael A. Levy, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.

Before CABRANES, HALL, and CHIN, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

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. § 2332g¹; 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.

We find no merit to any of defendant's claims, and, accordingly, we affirm the judgment of conviction of the District Court and remand the cause for the limited purpose of correcting a clerical error in the judgment.

I. BACKGROUND

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 Revolucionariasde 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 timely appeal followed.

II. DISCUSSION

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.⁴ 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). We consider each of Bout's claims in turn.

A.

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.”’ Appellant's Br. 23. “[A]n indictment will be dismissed if there is a finding of ‘actual’ vindictiveness, or if there is a presumption of vindictiveness that has not been rebutted by objective evidence justifying the prosecutor's action.” United States v. Johnson, 171 F.3d 139, 140 (2d Cir.1999). To demonstrate an actual vindictive motive,⁵ “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) (internal quotation marks and alteration omitted) (emphasis supplied).

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, 96 S.Ct. 1646, 48 L.Ed.2d 113 (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, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forced stomach pumping).” United States v. Cromitie, 727 F.3d 194, 217–19 (2d Cir. 2013). As we have explained:

Generally, to be ‘outrageous,’ the government's involvement in a crime must involve either coercion or a violation of the defendant's person. It does not suffice to show that the government created the opportunity for the offense, even if the government's ploy is elaborate and the engagement with the defendant is extensive. Likewise, feigned friendship, cash inducement, and coaching in how to commit the crime do not constitute outrageous conduct.

United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir.2011) (citations omitted). Indeed, “as with all sting operations, government creation of the opportunity to commit an offense, even to the point of supplying defendants with materials essential to commit crimes, does not exceed due process limits.” Cromitie, 727 F.3d at 219;see also Schmidt, 105 F.3d at 91–92 (holding that “elaborate” and “extensive” governmentsting operation in which a law enforcement agent “posed as a hit man” and “federal agents actually conducted a controlled [prison] breakout” did not constitute outrageous government conduct); cf. United States v. Ming He, 94 F.3d 782, 792 (2d Cir.1996) (noting that a federal court's “supervisory power over DEA conduct in a sting operation is ‘extremely limited’ ” (internal quotation marks and citation omitted)).

Having reviewed the record in light of these principles, we conclude 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. The “animus” that is prohibited typically occurs in situations where “a prosecutor's charging decision is a direct and unjustifiable penalty that resulted solely from the defendant's exercise of a protected legal right.” United States v. Stewart, 590 F.3d 93, 123 ...