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United States of America v. Viktor Bout

This case summary is being revised and will be updated soon

Court United States Court of Appeals for the Second Circuit, United States
Case number 12-1487-cr
Decision title Appeal Judgment
Decision date 27 September 2013
  • United States of America
  • Viktor Bout, a.k.a. Victor Bout, a.k.a. Victor Anatoliyevich Bout, a.k.a. Viktor Bulakin, a.k.a. Viktor Butt, a.k.a. Vadim Markovich Aminov, a.k.a. Viktor Budd, a.k.a. Boris
Categories Conspiracy, Material support to terrorism, Terrorism
Keywords arms trade, FARC, material support, terrorist organisation
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Viktor Bout, a notorious international arms dealer also known as the Merchant of Death, was alleged of trafficking weapons to several African warlords, dictators in the Middle-East and the Colombian FARC. The US Drug Enforcement Administration (DEA) decided to catch him through a sting operation in which DEA officers posed as FARC fighters and attempted to order about hundred anti-air missiles and weapons "to use against Colombian and United States nationals" in Colombia. The operation succeeded and Bout was caught by police forces in Thailand.

The US charged him with conspiracy to kill US nationals and officials and with conspiring to provide material support to a terrorist organisation (the FARC). Initially, Bout managed to have the Thai Criminal Court prohibit his extradition due to it being politically motivated. However, in appeals the decision was overturned and Bout was extradited to the US in 2010. A jury found him guilty on all charges in 2011 and op 5 April 2012, he was sentenced to 25 years imprisonment.

Bout appealed his conviction, claiming that he was innocent and that he had never intended to harm or even contribute to harming US nationals. The Court of Appeal did not agree with him, however, and his conviction was affirmed on all points.

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Procedural history

Viktor Bout was widely believed to be an important international arms trafficker involved in transactions with African warlords, dictators in the Middle-East and the Colombian FARC movement. Also, he was identified as an illicit arms dealer in a 2000 UN report about the civil war in Angola.

The Belgian prosecutor issued an arrest warrant against him in 2002 for money laundering, but a Brussels court dismissed the case against him on limitation grounds. However, US authorities in cooperation with the Thai police managed to arrest Bout in Bangkok, Thailand, in 2008. The US charged Bout with conspiracy to kill United States nationals, conspiracy to kill officers and employers of the United States, conspiracy to acquire and use anti-aircraft missiles and conspiracy to provide material support and resources to a foreign terrorist organisation (the FARC). Therefore an extradition request was filed; although the Thai Criminal Court initially rejected the request (noting that the request was politically motivated and that Bout had not committed any crime on Thai territory) on 11 August 2009, this decision was overturned in appeal a year later and Bout was extradited to the US.

On 5 April 2012, Bout was sentenced to 25 years in prison, after being found guilty on all four counts by a jury on 2 November 2011. He decided to appeal the judgment.

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Related developments

Bout's attorney announced in January 2014 that he would not appeal to the Supreme Court at this moment, but did not rule out the option for the future.

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Legally relevant facts

Bout was identified in a UN report on the Angolan civil war in 2000. However, he ultimately stood trial on the charge of conspiring to provide weapons to the FARC, which would be used against nationals and properties of the United States in Columbia. He was arrested in March 2008 during a sting operation in Thailand, with undercover US DEA agent posing as rebels from the FARC.

In first instance, he was found guilty of conspiracy to kill US nationals and officials, conspiracy to acquire and use anti-aircraft missiles and conspiracy to provide material support and resources to a foreign terrorist organisation (namely the FARC). He appealed the conviction, denying all charges and alleging that his constitutional right to due process of law was gravely violated, that his extradition from Thailand was effectuated by improper political pressure from the US, that his prosecution violated the "doctrine of specialy" and that the indictment's first two counts were insufficiently stated (p. 2).

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Core legal questions

  • Can Bout's first instance conviction be maintained?

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Specific legal rules and provisions

  • Paragraph 2332(b) of Title 18 of the US Code (conspiracy to kill US nationals).
  • Paragraphs 1114 and 1117 of Title 18 of the US Code (conspiracy to kill US officials and employees).
  • Paragraph 2332(g) of Title 18 of the US Code (conspiracy to acquire and use anti-aircraft missiles).
  • Paragraph 2339B of Title 18 of the US Code (conspiracy to provide material support and resources to a foreign terrorist organisation).

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Court's holding and analysis

With regard to the alleged vindictiveness of Bout's prosecution, the Court - referring to US v. Sanders - emphasised that "to demonstrate actual vindictive motive, "the defendant must show that (1) the prosecutor harbo[u]red genuine animus toward the defendant ... and (2) the defendant would not have been prosecuted except for the animus"." (p. 7). Another way to bar criminal conviction would be the existence of "outrageous" government conduct, which means conduct so outrageous that "common notions of fairness and decency" would be offended in case proceedings were to take place, or government conduct that "shock[s] the concience" (p. 7). the Court found that such conduct had not been displayed by the govenrment. Sting operations are not innately prohibited; moreover, "a federal court's supervisory power over DEA conduct in a sting operation is 'extremely limited" (p. 8). Furthermore, the government's "motivation" to prosecute Bout did not stem from an unlawful animus but from the seriousness of the facts of which he was suspected. Enthoustiastic pursuit is, thus, not necessarily vindictive.

The Court was fast to reject Bout's second complaint, namely the alleged political pressure on Thailand to extradite him. It noted that the Thai court had allowed the extradition and US courts have no competence to reassess that decision. Also, Thailand had not claimed any violation of the US-Thailand extradition treaty.

Concerning the argument that the "doctrine of speciaty" (namely, that "prosecution of a defendant for a crime other than the crime for which he has been extradited" is prohibited), it was noted that no factual basis could be found for allegations that the Thai court had wrongly thought that Bout had tried to sell weapons to actual FARC rebels instead of DEA agents. And with regard to the last complaint, that the first and second counts of the indictment only mentioned a conspiracy to kill and not "the words murder, malice, aforethought, premeditation or any other terms describing the object crime of the charged conspiracy as murder" (p. 11). This final argument was dismissed as well: the Court found that - considering that "[a]n indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet" - the current indictment makes it indubitably clear that the crimes charged for were for conspiracy to commit murder.

Bout's appeal was rejected and his 25 years' prison term affirmed.

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Further analysis

  • Law firm McNabb & Associates has posted a number of documents relating to the Bout trial on the website of JD Supra Business Advisors: see for example Trial Exhibit 1002-T (transcript of a conversation between Bout and a confidential DEA informant), and a court order granting Bout's request for to be transfered to general population (instead of solitary confinement). See also the "Bout Files" on Ria Novosti.

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Instruments cited

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Additional materials