United States v. Bout, 08 Cr. 365 (SAS)

• Decision Date: 02 August 2011
• Docket Number: 08 Cr. 365 (SAS)
• Parties: UNITED STATES OF AMERICA v. VIKTOR BOUT, Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA v. VIKTOR BOUT, Defendant.

08 Cr. 365 (SAS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: August 2, 2011

OPINION AND ORDER

I. INTRODUCTION

On July 11, 2011, I denied Defendant Viktor Bout's motion to dismiss, on jurisdictional grounds, the Indictment in this case.¹ On July 21, 2011, I held oral argument on Bout's remaining motions to dismiss the Indictment based on vindictive prosecution, unlawful extradition, and the "rule of speciality," and to dismiss Counts One and Two because the Government failed to allege that he acted with malice aforethought.² For the reasons that follow, those motions are also denied.

II. DISCUSSION

A. Vindictive Prosecution

1. Applicable Law

[T]he decision as to whether to prosecute generally rests within the broad discretion of the prosecutor, and a prosecutor's pretrial charging decision is presumed legitimate. However, [t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and a prosecution brought with vindictive motive, penalizing those who choose to exercise constitutional rights, would be patently unconstitutional. Accordingly, an indictment will be dismissed [1] if there is a finding of actual vindictiveness or [2] if there is a presumption of vindictiveness that has not been rebutted by objective evidence justifying the prosecutor's action.

To establish an actual vindictive motive, a defendant must prove objectively that the prosecutor's charging decision was a direct and unjustifiable penalty that resulted solely from the defendant's exercise of a protected legal right. Put another way, 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.

To establish a presumption of prosecutorial vindictiveness, the defendant must show that the circumstances of a case pose a realistic likelihood of such vindictiveness. The circumstances must present a realistic likelihood of vindictiveness that would be applicable in all cases, and any such presumption may be overcome by objective evidence justifying the prosecutor's action. A presumption of vindictiveness generally does not arise in a pretrial setting.

. . . [T]o obtain discovery on a claim of [vindictive] prosecution, . . . a defendant must provide some evidence tending to show the existence of the essential elements of the defense. The standard is a rigorous one . . . . [E]xamining the basis of aprosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.³

2. Application

Bout argues that he was vindictively targeted for prosecution because the Department of Defense was embarrassed when, in early 2006, it came to light that "Bout front-companies were supplying the United States military in Iraq"⁴with tents, food, and other supplies in violation of the Office of Foreign Assets Control's designation of Bout as a Specially Designated National - a designation that prohibited any transactions between him and any U.S. national.⁵ Although Bout had committed "no crime against the United States,"⁶ in late 2007, then-Deputy Assistant to the President and Deputy National Security Advisor Juan Zarate "threw out the challenge to capture Viktor Bout to the U.S. DrugEnforcement Administration [("DEA)]."⁷ And once "[B]out was in [the DEA's] cross-hairs, . . . [h]e was going down," the DEA's former chief of operations, Michael Braun, stated in an interview with 60 Minutes.⁸ Bout requests, at a minimum, that the Court order a hearing to allow for one hour of questioning of Zarate.⁹

Although the Government offers a perfectly acceptable reason for its decision to target Bout - that "he constituted a threat to the United States and to the international community based on his reported history of arming some of the world's most violent and destabilizing dictators and regimes"¹⁰ - it need notdemonstrate any "'legitimate, articulable, objective reasons'" for that decision,¹¹because Bout has not raised a rebuttable presumption of a "realistic likelihood" of vindictiveness.¹² Even assuming the Defense Department "harbored genuine animus toward [Bout]" due to its embarrassment over the disclosure of its alleged dealings with him, Bout's proffer falls far short of establishing that he "would not have been prosecuted but for the animus."¹³ Even if Bout's alleged assistance to U.S. military efforts in Iraq can properly be categorized as a "protected legal right,"¹⁴ his assistance to war criminals and to outlawed and extremely violent regimes in Liberia, Angola, and the Congo defeats any inference that the decision to investigate and prosecute him "resulted solely from [his] exercise of [any such] protected legal right."¹⁵ Given that it took the DEA nearly two years to initiate aninvestigation after the Department of Defense suffered the alleged embarrassment, Bout has not shown that the United States targeted him "to punish him or to retaliate against him" for his alleged sale of weapons to U.S. military contractors in Iraq.¹⁶ And because Bout has shown at most a "mere possibility that animus might exist" - but no actual "evidence of genuine animus" - he is not entitled to discovery or an evidentiary hearing.¹⁷ Braun's statement that once "[B]out was in [the DEA's] cross-hairs, . . . [h]e was going down"¹⁸ speaks to Braun's confidence in the DEA's ability to carry out sting operations effectively, not to his or the DEA's animus toward Bout for the exercise of a protected legal right. Bout's evidence falls far short of the "rigorous" standard¹⁹ required to open aninvestigation into the basis for the Government's prosecution, and his request to do so is therefore denied.

B. Unlawful Extradition

1. Applicable Law

"Under the long-standing Ker-Frisbie doctrine, the manner in which an indicted individual comes before a court does not affect the court's jurisdiction."²⁰ "[A]lthough 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."²¹ "[E]xceptions . . . to this general rule have been made in the case of shocking and outrageousgovernment conduct"²² such as when the defendant can prove "torture, brutality, and similar outrageous conduct."²³

2. Application

Bout argues that the United States applied "enormous, coercive political pressure" upon Thailand to reverse a lower court's denial of the United States' extradition request, denying Bout an "unbiased" extradition hearing in the Thai appellate court and warranting at least a hearing on the manner in which he was brought to a court in the United States.²⁴ His argument is based on two "secret United States State Department cables which [were] leaked to Wikileaks"²⁵ that reveal "a multi-pronged effort to seek a successful reversal [of the Thai lower court's denial of extradition] during the appeals process."²⁶ However, far from any impropriety, the cables merely demonstrate the State Department's (1) view thatBout was "a high priority for the United States";²⁷ (2) concern that the lower court's ruling was "not justified on legal grounds"²⁸ and that "Russian supporters have been using money and influence in an attempt to block extradition," including through the use of "false testimony . . . that Bout was in Thailand as part of [a] government-to-government submarine deal;"²⁹ and (3) determination that the "deficient ruling . . . receive a comprehensive and meaningful review by the appellate court."³⁰ Even assuming the truth of Bout's allegations that the State Department applied "enormous, coercive political pressure," his motion is squarely foreclosed by the Ker-Frisbie doctrine and by the doctrine that "our courts cannot second-guess another country's grant of extradition to the United States."³¹

Accordingly, Bout's motion, and his request for a hearing, are denied.³²

C. Doctrine of Specialty

1. Applicable Law

"Based on international comity, the principle of speciality generally requires a country seeking extradition to adhere to any limitations placed on prosecution by the surrendering country."³³ Accordingly, the doctrine of specialty

requires that an extradited defendant be tried for the crimes on which extradition was granted, and none other. . . . It reflects an agreement between states that persons surrendered should not be subjected to indiscriminate prosecution by the receiving state. In order to effect this agreement, . . . [an] [extradited defendant] cannot be tried on counts for which extradition was not granted.³⁴

2. Application

Bout argues that the Indictment violates the doctrine of specialty because, whereas the Indictment alleges that he conspired with one Andrew Smulian, "extradition was sought specifically and exclusively for crimes which []Bout allegedly conspired to commit with FARC and no one else."³⁵ In support, Bout cites a statement (1) from the Thai prosecutor's appeal of the lower court's decision³⁶ and (2) from the Thai appellate court's opinion.³⁷ Based on these two statements, Bout argues that "the facts upon which extradition was requested and granted described only alleged conspiratorial conduct as between [] Bout and [the] FARC."³⁸

However, Bout fails to mention that the full extradition request contained (1) the Indictment, alleging that "an unnamed co-conspirator ('CC-1') of [Bout]" (Smulian) "met with Bout in Moscow, Russia, to discuss the arms deal with the FARC proposed by CS-2 and CS-3," who are identified in the...