United States v. Bout
2013 U.S. App. LEXIS 19868
| 2d Cir. | 2013Background
- Viktor Bout, an international arms trafficker long sanctioned by the U.S. and UN, was targeted in a DEA-led international sting (2007–2008) involving confidential sources posing as FARC representatives.
- Meetings occurred in Curaçao, Romania, Moscow, and Bangkok; recorded discussions in Bangkok included Bout supporting the use of weapons to kill American pilots.
- Thai authorities arrested Bout in March 2008; a U.S. grand jury indicted him while he remained in Thailand. Thailand’s lower court initially denied extradition but an appellate court reversed, and Bout was extradited to the U.S. in November 2010.
- Bout was tried in the Southern District of New York, convicted on four counts (conspiracy to kill U.S. nationals; conspiracy to kill U.S. officers/employees; conspiracy to acquire/export an aircraft missile system; conspiracy to provide material support to a designated terrorist organization) and sentenced to concurrent terms (180 months on three counts; 300 months on one count).
- On appeal, Bout asserted claims of outrageous/vindictive prosecution, improper extradition due to U.S. political pressure, violation of the doctrine of specialty, and insufficiency of two conspiracy counts in the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vindictive/outrageous prosecution | Government’s sting and aggressive pursuit amounted to vindictiveness/outrageous conduct that violates due process | Sting was elaborate but not coercive; no prosecutorial animus tied to exercise of a protected right | Rejected — no actual animus or shocking coercion; sting falls within permissible law enforcement conduct |
| Legality of extradition / political coercion | Extradition was procured by U.S. "coercive political pressure," tainting prosecution | U.S. courts cannot second-guess foreign extradition decisions; Ker-Frisbie allows prosecution despite irregularities in how custody was obtained | Rejected — courts will not review foreign extradition grant; Ker-Frisbie doctrine applies |
| Doctrine of specialty | Thai court limited surrender to charges related to actual FARC buyers; prosecution for conduct revealed by sting exceeds specialty | Record shows Thai appellate court knew it was a sting; extradition covered the charged conduct | Rejected — extradition record shows awareness of sting; specialty claim lacks factual support |
| Indictment sufficiency (Counts 1 & 2) | Indictment failed to plead elements of murder (e.g., "malice aforethought") and so is deficient | Indictment tracked statute and gave adequate notice for conspiracy charges; no prejudice shown | Rejected — conspiracy indictments need not spell out every element; allegations sufficiently informed defendant and protect against double jeopardy |
Key Cases Cited
- Hampton v. United States, 425 U.S. 484 (Sup. Ct. 1976) (outrageous government conduct doctrine recognized)
- Rochin v. California, 342 U.S. 165 (Sup. Ct. 1952) (conduct that "shocks the conscience")
- Al Kassar v. United States, 660 F.3d 108 (2d Cir. 2011) (international sting not outrageous absent coercion or force)
- Ker v. Illinois, 119 U.S. 436 (Sup. Ct. 1886) (illegality of capture does not bar prosecution)
- Frisbie v. Collins, 342 U.S. 519 (Sup. Ct. 1952) (same principle applied to prosecutions)
- Toscanino v. United States, 500 F.2d 267 (2d Cir. 1974) (discussing limits and exceptions to Ker-Frisbie)
- United States v. Campbell, 300 F.3d 202 (2d Cir. 2002) (courts cannot second-guess foreign extradition grants)
- United States v. Schmidt, 105 F.3d 82 (2d Cir. 1997) (elaborate sting operations do not automatically constitute outrageous conduct)
- United States v. Sanders, 211 F.3d 711 (2d Cir. 2000) (elements for proving prosecutorial vindictiveness)
- United States v. Stewart, 590 F.3d 93 (2d Cir. 2009) (presumption of vindictiveness not applied pretrial)
- United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (doctrine of specialty discussion)
- United States v. Alvarez-Machain, 504 U.S. 655 (Sup. Ct. 1992) (extradition and forcible abduction analysis)
- United States v. Pirro, 212 F.3d 86 (2d Cir. 2000) (indictments may track statutory language and be sufficient)
- United States v. LaSpina, 299 F.3d 165 (2d Cir. 2002) (conspiracy indictment need not allege all object offense elements)
- United States v. Yannotti, 541 F.3d 112 (2d Cir. 2008) (indictment sufficiency standard and double jeopardy protection)