United States v. Bout

12-1487-cr
United States v. Bout

In the
United States Court of Appeals
For the Second Circuit
________

No. 12-1487-cr

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.
________

Appeal from the United States District Court
for the Southern District of New York.
No. 08-CR-365-1 ― Shira A. Scheindlin, Judge.
________

ARGUED: AUGUST 22, 2013
DECIDED: SEPTEMBER 27, 2013
________

Before: CABRANES, HALL, and CHIN, Circuit Judges.
________
2 No. 12-1487-cr

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.

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.
3 No. 12-1487-cr

________

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.

________

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

1 The April 16, 2012 judgment of conviction entered by the District Court mistakenly
identified Count Three as a violation of 18 U.S.C. § 2332, rather than 18 U.S.C. § 2332g.
Accordingly, we remand the cause for the limited purpose of correcting this clerical
error.
4 No. 12-1487-cr

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 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.
5 No. 12-1487-cr

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

Romanian authorities intercepted Bout’s phone calls and text messages
2

communicating with Smulian during these negotiations.
3 Bout’s specific commitments to the FARC included: (1) 700-800 SAMs; (2) 20,000 to
30,000 AK-47s; (3) 5 tons of C4 explosives; (4) ZU-23 anti-aircraft cannons; (5) night-
vision equipped sniper rifles; (6) land mines; (7) ultralight aircraft outfitted with grenade
launchers; and (8) unmanned aerial vehicles.
6 No. 12-1487-cr

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

4 Bout also argues that the District Court’s jury instructions allowed him to be
“convicted of a crime that does not exist,” and that the government failed to prove
jurisdiction on Count Three. We find no merit in these claims, and, substantially for the
reasons stated by the District Court in its denial of Bout’s post-trial motions brought on
the same grounds, we reject them in full. See App’x 65-74.
7 No. 12-1487-cr

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 (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). As we have explained:

5 Bout does not appear to base his claim on a presumption of vindictiveness, nor
could he do so, inasmuch as was have “consistently adhered to the principle that the
presumption of prosecutorial vindictiveness does not exist in a pretrial setting.” United
States v. Stewart, 590 F.3d 93, 122 (2d Cir. 2009) (internal quotation marks omitted).
8 No. 12-1487-cr

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, 2013 WL 4487543, at
*19; see also Schmidt, 105 F.3d at 91-92 (holding that “elaborate” and
“extensive” government sting 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
9 No. 12-1487-cr

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 (2d Cir. 2009) (alteration omitted). In this
case, however, the government’s motivation to prosecute Bout
stemmed from widespread concern that he was engaged in criminal
conduct, as evidenced by his placement on numerous United States
and United Nations “sanctions lists” since the early 2000s. The
government’s enthusiastic or energetic pursuit of Bout, a high-
priority criminal target, does not demonstrate vindictive, or even
inappropriate, government conduct. See United States v. Sanders, 211
F.3d 711, 718 (2d Cir. 2000) (holding that an “aggressive
investigation” in response to a “potential [criminal] violation . . .
cannot give rise to an inference of impropriety”).

Similarly, Bout has not alleged anything akin to “either
coercion or a violation of [his] person,” Al Kassar, 660 F.3d at 121,
which would be necessary, at a minimum, to prevail on an
outrageous government conduct charge. Indeed, Bout’s allegations
amount to claims that international sting operations of foreign
citizens are de facto coercive. These arguments are squarely
foreclosed by our decision in Al Kassar, itself an international sting
operation case. As we explained in that case, “[w]hile the sting
operation in this case was elaborate and prolonged, there was no
coercion or physical force, and nothing done was outrageous or a
shock to the conscience.” Id. at 122. Accordingly, we find no merit to
Bout’s claims of vindictive prosecution or outrageous government
conduct.

B.

Bout also argues that his extradition from Thailand was the
consequence of “intense, coercive political pressure exerted by the
10 No. 12-1487-cr

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.

We disagree. We have squarely 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.”).6

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). Accordingly, we find

6To the extent that Bout claims that the United States violated its extradition treaty
with Thailand, the government informs us that Thailand has not claimed any violation of
the treaty. Appellee’s Br. 21 n.5; see generally United States v. Reed, 639 F.2d 896, 902 (2d
Cir. 1981) (“[A]bsent protest or objection by the offended sovereign, [a defendant] has no
standing to raise the violation of international law as an issue.”).
11 No. 12-1487-cr

no merit to Bout’s claim that his indictment should have been
dismissed because he was improperly extradited to the United
States.

C.

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 we
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.

D.

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.” Appellant’s Br. 38.

It bears recalling that “we have consistently upheld
indictments that do little more than to track the language of the
12 No. 12-1487-cr

statute charged and state the time and place (in approximate terms) of
the alleged crime.” United States v. Pirro, 212 F.3d 86, 100 (2d Cir.
2000) (internal quotation marks omitted) (emphasis supplied).
Indeed, “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) (internal quotation marks
omitted).

Here, there is no doubt that the allegations in the indictment
make it sufficiently clear that the crimes charged were for conspiracy
to commit murder. In any event, Bout has not suggested any
arguable prejudice. See United States v. Stringer, --- F.3d ----, No. 12-
608-CR (L), 2013 WL 5183526, at *4 (2d Cir. Sept. 17, 2013) (“When
the charges in an indictment have stated the elements of the offense
and provided even minimal protection against double jeopardy, this
court has repeatedly refused, in the absence of any showing of
prejudice, to dismiss . . . charges for lack of specificity.” (internal
quotation marks omitted)).

CONCLUSION

To summarize:

(1) In the absence of actual animus or shocking conduct
akin to coercion or a violation of defendant’s person, an
international sting operation of the kind undertaken in
13 No. 12-1487-cr

this case does not constitute either vindictive
prosecution or outrageous government conduct.

(2) Government application of “coercive political pressure”
on a foreign government to secure a defendant’s
extradition does not render that defendant’s
prosecution improper.

(3) The District Court correctly rejected defendant’s claim
that his prosecution violated the doctrine of specialty.

(4) The indictment sufficiently charged defendant with
conspiracy to murder United States nationals and
conspiracy to murder United States officers and
employees, notwithstanding that the indictment did not
refer explicitly to “murder.”

Accordingly, we AFFIRM the District Court’s April 9, 2012
judgment of conviction and REMAND the cause for the limited
purpose of correcting a clerical error in the judgment.7

7 See note 1, ante.