United States v. Bout
666 F. App'x 34
| 2d Cir. | 2016Background
- Viktor Bout was convicted in the Southern District of New York for conspiring to sell 100 surface-to-air missiles to FARC and sentenced to 300 months.
- Bout moved under Federal Rule of Criminal Procedure 33 for a new trial based on purportedly "newly discovered" evidence (documents, a documentary statement by a DEA agent, laptop materials, Thai records, a fax, and a later declaration by Peter Mirchev).
- The district court denied the Rule 33 motion, declined to hold an evidentiary hearing, and refused to dismiss the indictment. Bout appealed.
- Bout’s principal contentions: (1) evidence shows government informant Andrew Smulian was recruited by DEA before the Bangkok sting (undermining conspiracy/credibility); (2) Smulian perjured himself re a call to Mirchev; (3) adverse credibility findings from a suppression opinion (later withdrawn) require dismissal of the indictment; and (4) an evidentiary hearing was required.
- The Second Circuit reviews denial of a new trial and of an evidentiary hearing for abuse of discretion and concluded the district court did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documentary statement by DEA agent and other materials are "newly discovered" and warrant a Rule 33 new trial | The documentary statement and other materials show Smulian was a DEA recruit and would have undercut the Government's case | Evidence is not sufficiently probative; some items were not newly discovered; cumulative or impeaching and would not likely produce acquittal | Denied: documentary is newly discovered but would not likely produce acquittal; most items not newly discovered or not material; no Rule 33 relief |
| Whether Mirchev declaration shows Smulian perjured himself and requires a new trial | Mirchev’s later declaration contradicts trial testimony and shows perjury (would undermine count 3) | Bout knew or should have known Mirchev could testify; Mirchev’s unavailability was legal; declaration is untimely and not persuasive | Denied: declaration not newly discovered, due diligence lacking, legal basis for unavailability, and declaration would not likely change verdict |
| Whether withdrawal of earlier adverse credibility findings requires dismissal of indictment | Transcripts and withdrawn findings show prosecutorial or grand jury irregularity making indictment defective | Findings were withdrawn with agreement of parties; findings only related to suppression issues and were immaterial to guilt; petit jury verdict cures grand jury defects | Denied: dismissal is extraordinary and not warranted; findings irrelevant to indictment and trial verdict cures any grand jury defects |
| Whether an evidentiary hearing was required on the Rule 33 motion | Bout requested a hearing to develop the record on the proffered evidence | District court had adequate record (most materials not newly discovered); documentary’s substance already established; hearing unnecessary | Denied: no abuse of discretion in declining a hearing |
Key Cases Cited
- United States v. Owen, 500 F.3d 83 (2d Cir. 2007) (standard of review for denial of Rule 33 motion)
- United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (clear-error review for factual findings on Rule 33 disposition)
- Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006) (abuse-of-discretion framework)
- United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) (trial court’s broad discretion on newly discovered evidence)
- United States v. Ferguson, 246 F.3d 129 (2d Cir. 2001) (new trial is extraordinary remedy)
- United States v. James, 712 F.3d 79 (2d Cir. 2013) (elements for new trial based on newly discovered evidence)
- United States v. White, 972 F.2d 16 (2d Cir. 1992) (standards for perjury-based new-trial claims)
- United States v. Forbes, 790 F.3d 403 (2d Cir. 2015) (when evidence is not "newly discovered")
- Herrera v. Collins, 506 U.S. 390 (1993) (affidavit-only motions disfavored because of lack of cross-examination)
- United States v. Lombardozzi, 491 F.3d 61 (2d Cir. 2007) (dismissal of indictment is extraordinary)
- United States v. Thibadeau, 671 F.2d 75 (2d Cir. 1982) (purpose of indictment dismissal doctrine)
- United States v. Eltayib, 88 F.3d 157 (2d Cir. 1996) (petit jury verdict cures grand jury defects)