Response to Viktor Bout's Appeal

7/30/2019 Response to Viktor Bout's Appeal

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12-1487United States Court of Appeals

FOR THE SECOND CIRCUIT

Docket No. 12-1487

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.

ONAPPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR THE UNITED STATES OF AMERICA

PREET BHARARA,

United States Attorney for the

Southern District of New York,

Attorney for the United Statesof America.

To Be Argued By:

ANJAN SAHNI

BRENDAN R. MCGUIRE,

ANJAN SAHNI,

MICHAEL A. LEVY,

Assistant United States Attorneys,

Of Counsel.

Case: 12-1487 Document: 54-1 Page: 1 05/01/2013 925096 71


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TABLE OF CONTENTS

PAGE

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Investigation . . . . . . . . . . . . . . . . . . . . . 2B. The Trial and Sentencing . . . . . . . . . . . . . . . 7

ARGUMENT:POINT IThe Investigation Did Not Violate the

Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . 8A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . 9B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 10

1. Vindictive Prosecution . . . . . . . . . . . . . 102. Outrageous Government Conduct . . . 12

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 131. Bouts Prosecution Was Not

Vindictive . . . . . . . . . . . . . . . . . . . . . . . 132. There Was No Outrageous

Government Conduct During the

Investigation . . . . . . . . . . . . . . . . . . . . 15POINT IIBouts Challenge to the Extradition

Proceedings in Thailand Should Be Rejected . 17A.

Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 17

B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 18



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PAGE

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 20POINT IIIBouts Prosecution Did Not Violate

the Doctrine of Specialty . . . . . . . . . . . . . . . . . . 21A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 22B. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 22

POINT IVCounts One and Two Properly State

Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 25B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 27C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1. Counts One and Two SufficientlyAllege Conspiracies to Murder . . . . . . 29

2. Bouts Claim of Prejudicial SpilloverIs Baseless . . . . . . . . . . . . . . . . . . . . . . 32

POINT VThe District Court Correctly Instructed

the Jury on Counts One and Two . . . . . . . . . . 35A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 35B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 37C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 38



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PAGE

1. Judge Scheindlins InstructionAccorded with Well-Settled Principles

of Federal Conspiracy Law . . . . . . . . . 392. Federal Courts Have Approved the

Instruction Issued Here . . . . . . . . . . . . 433. Any Error Was Harmless . . . . . . . . . . 48

POINT VIThere Was Jurisdiction Over

Count Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 51B. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 52

1. The Jury Instructions forCount Three . . . . . . . . . . . . . . . . . . . . . 52

2. The District Courts Denial of theDefendants Post-Trial Motion . . . . . . 53

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 541. There Was Sufficient Evidence of

Jurisdiction Over Count Three . . . . . . 542. If Jurisdiction Was Required to Be

Submitted to the Jury, Any Error

Was Not Plain Error . . . . . . . . . . . . . . 57CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60



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PAGE

TABLE OF AUTHORITIES

Cases:

Braxton v. United States,

500 U.S. 344 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 46

Castillo v. United States,

530 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 58

Frisbie v. Collins,342 U.S. 519 (1952) . . . . . . . . . . . . . . . . . . . . . . . . 19

Hamlingv. United States,

418 U.S. 87 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 28

Johnson v. Hartwig,

975 F. Supp. 1084 (N.D. Ill. 1997) . . . . . . . . . . . . 41

Ker v. Illinois,

119 U.S. 436 (1886) . . . . . . . . . . . . . . . . . . . . . . . . 19

Tison v.Arizona,481 U.S. 137 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 49

United States ex rel. Lujan v. Gengler,

510 F.2d 62 (2d Cir. 1975) . . . . . . . . . . . . . . . . . . 20

United States v.Al Kassar,

660 F.3d 108 (2d Cir. 2011) . . . . . . . . . . . . .passim

United States v.Alfonso,

143 F.3d 772 (2d Cir. 1998) . . . . . . . . . . . . . . 28, 29

United States v.Alvarez-Machain,

504 U.S. 655 (1992) . . . . . . . . . . . . . . . . . 19, 21, 22



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PAGE

United States v.Armstrong,

517 U.S. 456 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v.Baez,

349 F.3d 90 (2d Cir. 2003) . . . . . . . . . . . . . . . 22, 23

United States v.Bengis,

631 F.3d 33 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . 55

United States v.Berlin,

472 F.2d 1002 (2d Cir. 1973) . . . . . . . . . . . . . . . . 31

United States v.Bok,

156 F.3d 157 (2d Cir. 1998) . . . . . . . . . . . . . . . . . 37

United States v.Branch,

91 F.3d 699 (5th Cir. 1996) . . . . . . . . . . . . . . . . . 45

United States v. Campbell,

300 F.3d 202 (2d Cir. 2002) . . . . . . . . . . 18, 19, 20

United States v. Carr,

880 F.2d 1550 (2d Cir. 1989) . . . . . . . . . . . . . . . . 38

United States v. Chagra,

807 F.2d 398 (5th Cir. 1986) . . . . . . . . . 37, 44, 45

United States v. Cuevas,

496 F.3d 256 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 23

United States v. Ekinci,

101 F.3d 838 (2d Cir. 1996) . . . . . . . . . . . . . . . . . 48

United States v. Feola,

420 U.S. 671 (1975) . . . . . . . . . . . . . . . . . . . . . 39, 40

United States v. Geibel,

369 F.3d 682 (2d Cir. 2004) . . . . . . . . . . . . . . . . . 29



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PAGE

United States v. Goodwin,

457 U.S. 368 (1982) . . . . . . . . . . . . . . . . . . . . . 11, 15

United States v. Hertular,

562 F.3d 433 (2d Cir. 2009) . . . . . . . . . . . . . . . . . 58

United States v. Jones,

681 F.2d 610 (9th Cir. 1982) . . . . . . . . . . . . . . . . 47

United States v.King,

126 F.3d 394 (2d Cir. 1997) . . . . . . . . . . . . . . . . . 11

United States v.Kwong,

14 F.3d 189 (2d Cir. 1994) . . . . . . . . . . . 37, 46, 47

United States v. LaPorta,

46 F.3d 152 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . 12

United States v. LaSpina,

299 F.3d 165 (2d Cir. 2002) . . . . . . . . . . . . . . 28, 30

United States v. Mavashev,

455 F. Appx 107 (2d Cir. 2012) . . . . . . . . . . . . . . 50

United States v. McLean,

528 F.2d 1250 (2d Cir. 1976) . . . . . . . . . . . . . 32, 36

United States v. Muyet,

994 F. Supp. 501 (S.D.N.Y. 1998) . . . . . . . . . . . . 47

United States v. Needham,

604 F.3d 673 (2d Cir. 2010) . . . . . . . . . . . . . . 57, 58

United States v.Parkes,

497 F.3d 220 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 58

United States v.Perez,

43 F.3d 1131 (7th Cir. 1994) . . . . . . . . . . . . . . . . 47



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PAGE

United States v. Quattrone,

441 F.3d 153 (2d Cir. 2006) . . . . . . . . . . . . . . . . . 38

United States v. Rahman,

189 F.3d 88 (2d Cir. 1999) . . . . . . . . . . . . . . . 12, 13

United States v. Reed,

639 F.2d 896 (2d Cir. 1981) . . . . . . . . . . . . . . . . . 21

United States v. Sabbeth,

262 F.3d 207 (2d Cir. 2001) . . . . . . . . . . . . . . 28, 30

United States v. Salinas Doria,

2008 WL 4684229 (S.D.N.Y. 2008) . . . . . . . . . . . 19

United States v. Sanders,

211 F.3d 711 (2d Cir. 2000) . . . . . . . . . . . . .passim

United States v. Schmidt,

105 F.3d 82 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . 12

United States v. Scotto,

641 F.2d 47 (2d Cir. 1980) . . . . . . . . . . . . . . . . . . 40

United States v. Stavroulakis,

952 F.2d 686 (2d Cir. 1992) . . . . . . . . . . . . . . . . . 28

United States v. Tavoularis,

515 F.2d 1070 (2d Cir. 1975) . . . . . . . . . . . . . . . . 41

United States v. Toscanino,

500 F.2d 267 (2d Cir. 1974) . . . . . . . . . . . . . . . . . 19

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) . . . . . . . . . . . . . . . . . . . . . 41, 42

United States v. Velazquez,

246 F.3d 204 (2d Cir. 2001) . . . . . . . . . . . . . . 27, 46



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PAGE

United States v. Walsh,

194 F.3d 37 (2d Cir. 1999) . . . . . . . . . . . . . . . 29, 32

United States v. Wapnick,

60 F.3d 948 (2d Cir. 1995) . . . . . . . . . . . . . . . 33, 34

United States v. White,

972 F.2d 16 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . 11

United States v. Wilkerson,

361 F.3d 717 (2d Cir. 2004) . . . . . . . . . . . . . . . . . 38

United States v. Wydermyer,

51 F.3d 319 (2d Cir. 1995) . . . . . . . . . . . . . . . 28, 29

Statutes, Rules & Other Authorities:

8 U.S.C. 1324(a)(1)(A)(iv) . . . . . . . . . . . . . . . . . . . . 43

18 U.S.C. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 43

18 U.S.C. 33(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

18 U.S.C. 1111(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

18 U.S.C. 1112 . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

18 U.S.C. 1117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. 2332(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. 2332g . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52

Fed. R. Crim. P. 7(c) . . . . . . . . . . . . . . . . . . . . . . . 28, 30

W. LaFave & A. Scott,

Criminal Law 28, (1972) . . . . . . . . . . . . . . . . . . 49



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PAGE

Prevention of Terrorist Access to Destructive

Weapons Act of 2004, Pub. L. No. 108-458,

Title VI, 6903, Dec. 17, 2004,

118 Stat. 3770 . . . . . . . . . . . . . . . . . . . . . . . . . 51, 55

Leonard B. Sand et al.,

Modern Fed. Jury InstructionsCrim.,

Instr. 41-4 (2009) . . . . . . . . . . . . . . . . . . 26, 30, 46



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United States Court of AppealsFOR THE SECOND CIRCUIT

Docket No. 12-1487

UNITED STATES OFAMERICA,

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.

BRIEF FOR THE UNITED STATES OF AMERICA

Preliminary Statement

Viktor Bout appeals from a judgment of convic-

tion, entered on April 9, 2012, in the United States

District Court for the Southern District of New York,

following a three-week trial before the Honorable

Shira A. Scheindlin, United States District Judge,

and a jury.

Indictment 08 Cr. 365 (SAS) (the Indictment),

filed on April 24, 2008, charged Bout in four counts.Count One charged Bout with conspiracy to kill Unit-



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ed States nationals, in violation of Title 18, United

States Code, Section 2332(b). Count Two charged

Bout with conspiracy to kill United States officers

and employees, in violation of Title 18, United States

Code, Sections 1114 and 1117. Count Three charged

Bout with conspiracy to acquire and export a missile

system designed to destroy aircraft, in violation of Ti-

tle 18, United States Code, Section 2332g. Finally,

Count Four charged Bout with conspiracy to provide

material support or resources to a designated foreign

terrorist organization, in violation of Title 18, UnitedStates Code, Section 2339B. Trial commenced on Oc-

tober 11, 2011, and ended on November 2, 2011,

when the jury convicted Bout on all four counts.

On April 5, 2012, Judge Scheindlin sentenced

Bout principally to 180 months imprisonment on

Counts One, Two, and Four, and 300 months impris-

onment on Count Three, all to be served concurrently.

Bout is currently serving his sentence.

Statement of Facts

A. The InvestigationSince the 1990s, Bout was among the worlds most

prolific and elusive arms traffickers. Using a fleet of

cargo airplanes and a network of front companies,

Bout supplied military-grade weaponry to some of the

most violent conflict zones around the world, as a re-

sult of which the United Nations and United States



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both imposed strict economic and travel sanctions

upon Bout and his affiliated companies. (A. 20, 42).1

In the fall of 2007, the Drug Enforcement Admin-

istration (the DEA) initiated an international sting

operation against Bout. In an effort to infiltrate

Bouts arms trafficking network, the DEA directed

three confidential sources (CSs)two of whom

posed as representatives of the Fuerzas Armadas

Revolucionarias de Colombia (the FARC), a foreign

terrorist organization in Colombiato propose an il-legal arms deal to Andrew Smulian, a former col-

league of Bouts. (Tr. 329). Upon learning of the

weapons proposal from Smulian, Bout swiftly accept-

ed and authorized Smulian to meet with the CSs to

pursue the transaction. (GX 1356, 1358).2

On January 10 and 11, 2008, Smulian met with

the three CSsMike, Carlos, and Ricardoon

the island of Curacao to discuss the weapons deal.

(Tr. 1220). During these meetings, recordings of

1 Tr. refers to the trial transcript; Br. refers

to Bouts brief on appeal; A. refers to the appendix

to that brief; GX refers to a Government Exhibit

admitted at trial; and SA refers to the Govern-

ments Supplemental Appendix.

2 Like Bout, Smulian was ultimately arrested for

his participation in these events. Smulian subse-

quently entered into a cooperation agreement with

the Government, pled guilty to participating in each

of the conspiracies charged in the Indictment, andtestified at trial.



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which were introduced at trial, Smulian learned that

(1) Carlos and Ricardo, who purported to represent

the FARC, were interested in an enormous weapons

order, including surface-to-air missiles (SAMs); (2)

the FARC sought the weapons to fight the Colombian

Government, which was working with the United

States; and (3) the FARC would pay for these weap-

ons with cash derived from its cocaine business.

(GX 201-T; GX 204-T).

Following his meetings in Curacao, Smulian visit-ed Bout in Moscow, where they discussed the weap-

ons deal in detail. (Tr. 1244-67). Upon hearing from

Smulian about the FARCs weapons-related needs,

and after conferring with a weapons manufacturer,

Bout assured Smulian that he could obtain 100 SAMs

immediately. (Tr. 1249-50). Along with weapons and

SAMs, Bout volunteered an array of additional illegal

services for the FARC, including (1) instructors for

training the FARC troops in bush fighting and mili-

tary affairs; (2) a weapons delivery system consisting

of two cargo planes, crews, and 200 cargo parachutesto airdrop the arms in Colombia; and (3) advice on

laundering the FARCs drug-derived cash. (Tr. 1252-

57; GX 419-T). Bout directed Smulian to arrange a

meeting with Carlos and Ricardo to continue discus-

sions of the weapons deal. (Id.)

A few days after leaving Moscow, Smulian spent

two weeks with the CSs in Romania. (Tr. 1268). Al-

though Bout did not join the menconcluding that

the American presence in Romania made it an unsafe

location for him, (see GX 1002-T)he exchanged doz-ens of phone calls and text messages with Smulian



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about the weapons transaction, which Romanian au-

thorities intercepted. (See, e.g., GX 501L-T, 501HH-

T). In several of these calls, Bout described to

Smulian steps he was taking to advance the arms

deal. (See, e.g., GX 501L-T).

On March 5, 2008, despite the existence of an in-

ternational travel ban based on United Nations sanc-

tions, Bout and an associate (Misha) flew from Mos-

cow to Bangkok, Thailand to meet with Smulian and

the three CSs about the weapons deal. (Tr. 377;GX 101). Upon arriving, Bout met for approximately

two hours with the CSs at a luxury hotel in Bangkok

first in the hotel mezzanine and then in a private

conference room. (See GX1002-T). During the meet-

ingswhich the CSs recordedBout repeatedly sup-

ported the FARCs interest in using his weapons to

kill American pilots stationed in Colombia. See, e.g.,

GX 1002-T, at 88-89 (That is why I have the same

problems with the gringos . . . . Yes, yes, were to-

gether. . . . And we have the same enemy.); id. at

125-26 (Bout: [W]e have a policy . . . gringos are en-emies. . . . Its not, [] business. Its my fight . . . Im []fighting the United States . . . for ten to fifteen

years.); id. at 138-39 (Carlos: And we want to start

. . . start killing American pilots . . . Bout: Yes, yes.

Were, were going to prepare everything.).

As previously discussed with Smulian, Bout

demonstrated a clear commitment to providing a

massive arsenal of weaponry to the FARC, including:

(1) 700-800 SAMs (id. at 90-91); (2) 20,000 to 30,000

AK-47s (id. at 89); (3) five tons of C4 explosives (id. at121); (4) ZU-23 anti-aircraft cannons (id. at 82); (5)



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night-vision equipped sniper rifles (id. at 95); (6) land

mines (id. at 116); (7) ultralight aircraft outfitted

with grenade launchers (id. at 133); and (8) un-

manned aerial vehicles (id. at 134). Bout took de-

tailed notes during the meeting to memorialize the

CSs weapons order. (Tr. 881; GX 1200). Bout also of-

fered (1) assistance in obtaining end-user certificates

through corrupt means (id. at 77, 88); (2) a delivery

system for covertly air-dropping the weapons (id. at

106); and (3) advice on laundering the FARCs drug-

derived cash (id. at 43, 47).

During the meeting in a private conference room

of the hotel, Bout placed his map of Colombia on the

table and explained to Carlos and Ricardo his meth-

ods for airdropping weapons shipments to avoid de-

tection, which he could employ for the FARCs bene-

fit. (Tr. 864-65; GX 1002-T, at 78, 87-88; GX 1202).

Bout also showed photographs of the types of Russian

cargo planes he planned to use for the deliveries to

the FARC. (GX 1203). And to commence the weapons

shipments, Bout quoted a start-up price of $15 to $20million (GX 1002-T, at 123), and directed his associ-

ate, Misha, to travel to Spain at the end of their

meetings in Bangkok to collect a 5 million down

payment from Carlos (id. at 146).

At the end of the meetings at the hotel, Bout and

Smulian were both arrested. (Tr. 380-81). For the

next two-and-a-half years, Bout vigorously fought ex-

tradition to the United States. During the extradition

proceedings in Thailand, Bout falsely testified, among

other things, that (1) no one in the meetings onMarch 6, 2008 had claimed to represent the FARC;



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(2) there had been no discussion about selling weap-

ons to the FARC; (3) the purpose of the meetings had

been to meet foreign businessmen interested in buy-

ing aircraft; and (4) he was visiting Bangkok to fur-

ther a submarine deal between the governments of

Russia and Thailand. (GX 1500-T; A. 47).

B. The Trial and SentencingOn November 16, 2010, Bout was extradited to the

United States. Following extensive pretrial motion

practice, Bouts trial began on October 11, 2011.

At trial, the Government introduced evidence

demonstrating beyond a reasonable doubt that Bout

knowingly participated in each of the charged con-

spiracies. The Governments exhibits included: hours

of undercover audio recordings made by the CSs; doz-

ens of judicially authorized interceptions of telephone

calls and text messages; Bouts laptop computer,

which was seized during his arrest; emails, notes,

and other documents relating to the weapons deal;

and excerpts of Bouts false testimony during the ex-tradition proceedings in Thailand. The Governments

witnesses included: Smulian; two of the three CSs;

the DEA case agent; and the forensic expert who had

analyzed the contents of Bouts computer, which con-

tained extensive research on the FARC and its vio-

lent activities, including against the United States. In

addition, two former business associates of Bouts tes-

tified about their first-hand knowledge of Bouts

weapons-trafficking activities in Africa during the

1990s.



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Bout did not present a defense case. Through

counsel, Bout argued that he never intended to sup-

ply any weapons, but merely had strung along Carlos

and Ricardo with the false promise of weapons in or-

der to sell them two old cargo airplanes.

At the conclusion of the approximately three-week

trial, the jury found Bout guilty on all four counts of

the Indictment. On April 5, 2012, Judge Scheindlin

sentenced Bout principally to concurrent sentences of

180 months imprisonment on Counts One, Two andFour, and 300 months imprisonment on Count Three

(the mandatory minimum).

A R G U M E N T

POINT I

The Investigation Did Not Violatethe Due Process Clause

Apparently melding the vindictive prosecutionand outrageous government conduct arguments that

he raised below, Bout argues that the Governments

sting operation against him reflects elements of en-

trapment, vindictive prosecution and selective prose-

cution that, taken together, can only be described as

outrageous government conduct. (Br. 23). He as-serts that the District Court erred in refusing to dis-

miss the Indictment or, at a minimum, to hold an ev-

identiary hearing. (Br. 25). These arguments are no

stronger joined than they were individually, and the

District Court was correct to reject them without ahearing.



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A. Relevant FactsIn his first pretrial motion to dismiss the Indict-

ment, Bout arguedamong other thingsthat the

Indictment should be dismissed due to the outra-

geousness of the Governments conductspecifically,

the Governments creation of a fictitious scenario to

ensnare Bout. (SA 82-84). Noting that Bout was not

alleging conscience-shocking conduct . . . involving

the use of coercion, force, or some other violation of

the defendants person, Judge Scheindlin ruled thatthere was nothing outrageous about the sting opera-

tion, which had merely . . . created an opportunity

for the commission of crime by those willing to do so.

(SA 83).

In a second motion to dismiss the Indictment,

Bout raisedamong other thingsanother Due Pro-

cess argument, this time alleging vindictive prosecu-

tion. Bout asserted that the United States had vin-

dictively targeted [him] 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

with tents, food, and other supplies in violation of a

Department of Treasury prohibition of any business

dealings between Bout and United States nationals.

(A. 41).

Relying primarily on United States v. Sanders,

211 F.3d 711 (2d Cir. 2000), Judge Scheindlin found

that Bout had failed to establish a realistic likeli-hood of vindictiveness that required rebuttal by the

Government. (A. 43). Specifically, Judge Scheindlinnoted that (i) the two-year lag between the purported-



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10

ly embarrassing media report in 2006 and the initia-

tion of the Governments investigation undermined

any claim that the latter resulted from animus con-

cerning the former, and that, (ii) in any event, Bouts

support of war criminals and violent dictators defeat-

ed any claim that the decision to investigate him re-

sulted solely from such animus. (A. 43-44(quotation

marks omitted) (emphasis in original)). Judge

Scheindlin found that, at best, Bout had shown a

mere possibility that animus might exist, which did

not entitle him to discovery or an evidentiary hear-ing. (A. 44-45).

B. Applicable Law1. Vindictive ProsecutionA defendant challenging the Governments deci-

sion to prosecute bears a heavy burden, as a pre-

sumption of regularity supports the executive

branchs prosecutorial decisions. United States v.

Armstrong, 517 U.S. 456, 464, 470 (1996); see alsoUnited States v. Sanders, 211 F.3d at 716. The ra-

tionale for this presumption is that [e]xamining the

basis of a prosecution delays the criminal proceeding,

threatens to chill law enforcement by subjecting the

prosecutors motives and decisionmaking to outside

inquiry, and may undermine prosecutorial effective-

ness by revealing the Governments enforcement poli-

cy. United States v.Armstrong, 517 U.S. at 465 (quo-

tation marks and citation omitted).

The defendant bears the burden of establishing

that the prosecution is an impermissible response to

noncriminal, protected activity, rather than the pre-



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11

sumed legitimate response to perceived criminal

conduct. United States v. Goodwin, 457 U.S. 368, 373

(1982). This burden is carried only where there is

direct evidence of actual vindictiveness, or the cir-

cumstances give rise to a rebuttable presumption of

a vindictive motive. United States v. White, 972 F.2d

16, 19 (2d Cir. 1992).

To establish an actual vindictive motive, a de-

fendant must show that (1) the prosecutor harbored

genuine animus toward the defendant, or was pre-vailed upon to bring the charges by another with an-

imus such that the prosecutor could be considered a

stalking horse, and (2) the defendant would not have

been prosecuted except for the animus. Sanders, 211

F.3d at 717 (alterations and citation omitted). Absent

direct evidence of actual vindictiveness, a defendant

may establish a rebuttable presumption of vindic-

tiveness by showing that the circumstances pose a

realistic likelihood of such vindictiveness. Id. (quo-

tation marks omitted). That presumption can then be

rebutted, however, if the Government demonstrateslegitimate, articulable, objective reasons for the

challenged action. United States v. King, 126 F.3d

394, 399 (2d Cir. 1997) (internal quotation marks

omitted).

To satisfy the rigorous standard for discovery on

a vindictive prosecution claim, a defendant must pre-

sent some evidence of genuine animus, not the mere

possibility that animus might exist under the circum-

stances. Sanders, 211 F.3d at 717-18. This Court

review[s] a district courts decision denying discovery



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12

on [vindictive prosecution] claims only for abuse of

discretion. Id. at 717.

2. Outrageous Government ConductAs this Court has observed, outrageous govern-

ment conduct is an issue frequently raised that sel-

dom succeeds. United States v. Schmidt, 105 F.3d

82, 91 (2d Cir. 1997); accordUnited States v. LaPorta,

46 F.3d 152, 160 (2d Cir. 1994) (Such a claim rarely

succeeds.). Although in principle government over-

involvement in criminal activity could rise to the level

of a due process violation, such a violation would re-

quire Government conduct that shocks the con-

science. United States v. Rahman,189 F.3d 88, 131

(2d Cir. 1999) (quotation marks omitted); see also

United States v.Al Kassar, 660 F.3d 108, 121 (2d Cir.

2011).

As a general matter, to be outrageous, the gov-

ernments involvement in a crime must involve either

coercion or a violation of the defendants person.

United States v. Al Kassar, 660 F.3d at 121; accordUnited States v. Rahman, 189 F.3d at 131. Thus, in

the context of a sting operation, the Governments

simple use of feigned friendship, cash inducement,

and coaching in how to commit the crime do not

qualify as outrageous. AlKassar, 660 F.3d at 121.

Nor does it suffice to show that the government cre-

ated the opportunity for the offense, even if the gov-

ernments ploy is elaborate and the engagement with

the defendant is extensive. Id. Especially in view of

the courts well-established deference to the Govern-ments choice of investigatory methods, the burden of



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13

establishing outrageous investigatory conduct is very

heavy. Rahman, 189 F.3d at 131 (citations omitted);

accordAl Kassar, 660 F.3d at 121.

C. Discussion1. Bouts Prosecution Was Not VindictiveBouts vindictive prosecution claim appears to be

premised on the argument that the United States

Government began investigating him as retribution

for, or to divert attention from, a January 2006 mag-azine article reporting that the Department of De-

fense had contracted with Bout-affiliated companies

in violation of United States and United Nations

sanctions. As the District Court correctly ruled below,

this assertion fails because Bout has shown neither

(i) that the prosecutor or anyone with influence har-

bored genuine animus toward the defendant, nor (ii)

that the defendant would not have been prosecuted

except for the animus. Sanders, 211 F.3d at 717.

The idea that the reaction of high-level govern-ment officials to a January 2006 magazine article in-

fluenced Bouts investigation is unfounded and coun-

ter-intuitive speculation. As the Government demon-

strated below, Bout and numerous companies affili-

ated with him had been sanctioned by the United Na-

tions and United States since 2004 based on findings

that Bout, among other things, had assisted the bru-

tal regime of Charles Taylor in Liberia, who had been

indicted one year earlier for war crimes and crimes

against humanity. (A. 42). Thereafter, according to

Bout, The New Republic magazine ran an article in

January 2006 that reported that the Department of



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Defense was continuing to enter into supply contracts

with Bout in violation of these sanctions. (Br. 6). Bout

argues that the sting operation against him was mo-

tivated by the desire either to get pay back for theembarrassment that Bout had caused, or to deflect

attention from the Governments relationship with

Bout. (Id.).

Bouts speculation is nonsensical. Even assuming

arguendo that the article was a basis for governmen-

tal concern, Bouts theory that the revelation moti-vated the Government to investigate and prosecute

him remains illogical. As the District Court correctly

noted, if the Department of Defense had a relation-

ship with Bout that posed the potential for embar-

rassment, common sense suggests that its interests

would have been best served by attempting to termi-

nate the relationship quickly and quietly in order to

minimize the attention paid to it. (A. 44). It defies

reason to conclude that the Government reacted to

this embarrassment two years later by pushing for

Bouts investigation, arrest, and prosecution, whenthe most likely result would have beenas it turned

out to bethat the international medias attention

would be focused on Bout for an extended period of

time upon his arrest, and that Bout, himself, would

highlight the supposedly embarrassing relationship

during the course of the criminal case. (A. 44).

In any event, even if one accepted Bouts specula-

tion that genuine animus existed, the District Court

was correct in ruling that Bout failed to show that he

would not have been prosecuted except for the ani-mus. Sanders, 211 F.3d at 717. The sanctions im-



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15

posed on Bout by the United Nations and the United

States in 2004 and 2006 reflected international con-

cern that Bout was engaged in criminal activity. In

light of this, the investigation of Bout was plainly a

legitimate response to perceived criminal conduct.

United States v. Goodwin, 457 U.S. at 373. Thus, the

District Court neither erred in denying Bouts motion

on this issue, nor abused its discretion in refusing

him an evidentiary hearing.

2. There Was No Outrageous GovernmentConduct During the Investigation

Bouts claim of outrageous Government conduct

during the DEA investigation is similarly meritless,

and Judge Scheindlin was right to reject it. This con-

clusion follows simply and directly from this Courts

rejection of a nearly identical claim raised in Al Kas-

sar by three defendants who, like Bout, were targets

of a sting operation that led to their convictions for

identical offenses.Al Kassar, 660 F.3d at 115.

As inAl Kassar, Bout asserts that his Due Processrights were infringed by a variety of ordinary ele-

ments of a sting investigation. Just as this Court

found in Al Kassar, None of these actions, either

separately or in combination, rises to the legal stand-

ard of outrageous. Id.

For example, Bout asserts that, prior to the inves-

tigation, he had committed no crime against the

United States nor had he committed any act or made

any statement that indicated that he even contem-

plated committing such a crime. (Br. 7). Even if true,this Court rejected a similar argument inAl Kassar,



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16

noting that the Government is permitted to create[]the opportunity for the offense, and that the fact

that there was no conspiracy prior to government

involvement shows only that the government [per-

missibly] created the opportunity for illegal conduct.

Al Kassar, 660 F.3d at 121.

Bout also argues that the evidence at trial showed

that he was initially not interested in participating

in an illegal arms deal (Br. 10), that he was lured to

Thailand based on the far more benign suggestionthat [he] might be able to sell not arms but airplanes

(Br. 10), and that the Government only ensnared him

by dangling before him a contrived transaction so

financially attractive that he couldnt refuse,(Br. 24). In light of the evidence at trial, Bouts sug-

gestion that he was reluctantly drawn from a legal

transaction into an illegal one only as a result of Gov-

ernment persuasion is fanciful. In any event, Bouts

claim of outrageous Government conduct would fail

even on the untrue facts he alleges. Rejecting similar

arguments by the defendants inAl Kassar, this Courtheld that the initial proposal of a lawful transaction

to a stings target is a commonplace and often neces-

sary tactic, and that, when the illegal transaction is

thereafter offered, the defendants transient hesita-

tion provides no basis for an excessive involvement

claim unless the government coerces the defendant,

andas with Boutno coercion was applied here.

Al Kassar, 660 F.3d at 121-22. The Court further held

that financial . . . inducements are not outrageous

conduct. Id. at 122.



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17

Accordingly, the District Courts rejection of

Bouts assertion that the Government was unconsti-

tutionally over-involved in this investigation should

be affirmed.

POINT II

Bouts Challenge to the ExtraditionProceedings in Thailand Should Be Rejected

Bout contends that his extradition resulted from

enormous, coercive political pressure exerted by theUnited States upon Thailand, and therefore the In-

dictment should have been dismissed or an eviden-

tiary hearing held. (Br. 26-27). His claim is meritless.

First, as Judge Scheindlin concluded, no illegitimate

pressure was applied by the United States. Second,

Bouts argument is foreclosed under well-settled prin-

ciples of international comity, and the doctrine that a

defendant may not challenge an indictment based on

the manner in which his custody was obtained.

A. Relevant FactsIn August 2009, a lower court in Thailand denied

the United States request to extradite Bout. Approx-

imately one year later, in August 2010, a Thai appel-

late court reversed the lower courts decision and

granted the extradition request. (SA 44-61). Bout was

thereafter extradited to the United States.

Before trial, Bout argued that his extradition was

the result of coercive political pressure exerted by the

United States. (A. 46). In support of this motion, Boutrelied upon two supposed Department of State cables



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concerning the extradition proceedings in which

United States officials discussed, among other things,

steps to convey to the executive branch of the Thai

government the importance of Bouts extradition to

the United States. (A. 46; SA 38-43 (cables)).3 On Au-

gust 2, 2011, Judge Scheindlin denied Bouts motion

in a written opinion. (A. 45-48). Judge Scheindlin

found the cables evinced no impropriety, and that the

State Department had simply expressed to the Thai

government the view that (1) Bouts extradition was a

high priority for the United States, (2) the lowercourts ruling had been erroneous and possibly the

product of corruption, including from Bout and his

supporters, and (3) that ruling should receive mean-

ingful appellate review. (A. 46-47). The District Court

further held that, in any event, Bouts motion was

squarely foreclosed by both principles of international

comity and theKerFrisbie doctrine. (A. 47).

B. Applicable Law[A]lthough courts of the United States have au-

thority to determine whether an offense is an extra-

ditable crime when deciding whether an accused

should be extradited from the United States, . . . our

courts cannot second-guess another countrys grant of

extradition to the United States. United States v.

Campbell, 300 F.3d 202, 209 (2d Cir. 2002) (citations

omitted). The deference accorded a foreign countrys

3 The United States does not address the au-

thenticity of these materials, which Bout obtainedfrom the website, Wikileaks.



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decision to extradite rests soundly on principles of in-

ternational comity and constitutes an essential ele-

ment of the maintenance of cordial international re-

lations. United States v. Salinas Doria, 2008 WL4684229, at *2 (S.D.N.Y. 2008) (quoting United States

v. Campbell, 300 F.3d at 209). While these cases gen-

erally address whether particular offenses were ex-

traditable under various treaties, they stand for the

more general proposition that it could hardly pro-

mote harmony to request a grant of extradition and

then, after extradition is granted, have the request-ing nation take the stance that the extraditing nation

was wrong to grant the request. Campbell, 300 F.3d

at 209.

Separately, the Ker-Frisbie doctrine has recog-

nized that the governments power to prosecute a de-

fendant is not impaired by the illegality of the meth-

od by which it acquires control over him. United

States v. Toscanino, 500 F.2d 267, 271 (2d Cir. 1974);

seeKer v. Illinois, 119 U.S. 436 (1886); Frisbie v. Col-

lins, 342 U.S. 519 (1952). An exception to this doc-trine may exist where the defendants custody was

acquired in demonstrable violation of an extradition

treaty. United States v. Alvarez-Machain, 504 U.S.

655, 669 (1992) (because defendants abduction did

not violate treaty, the rule ofKer v. Illinois is fully

applicable, and the respondents forcible abduction

does not therefore prohibit his trial in a court in the

United States).4

4 Another potential exceptionneither invoked

by Bout nor applicable to any facts alleged hereis



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C. DiscussionBout claims that the Embassy cables together

with the fact that after more than a years delibera-

tion on the issue the appellate court came down with

a reversal of the lower court demonstrates that the

United States procured his extradition by exert[ing]

untoward and coercive political pressure on the Thai

governments justice system. (Br. 27). Were there

any reason to scrutinize the factual basis for Bouts

claim, the record makes clear that it is meritless. Thetwo cables on which Bout relies reveal no untoward

pressure. The first cablewritten while the extradi-

tion proceeding was pending in the lower court

shows only that the United States was concerned

about corruption (including from Bout) in the extradi-

tion process. (SA 38). Likewise, the second cable

written just days after the lower court decision was

issuedreflected the United States appropriate ef-

forts to ensure meaningful appellate review of a

flawed legal decision. (SA 40).

In any event, two separate doctrines foreclose

Bouts claim of untoward pressure. First, the argu-

ment that the Thai appellate court caved to diplomat-

ic pressure instead of following Thai law is exactly

the sort of challenge that international comity princi-

ples foreclose from consideration. Campbell, 300 F.3d

recognized in cases involving conduct of the most

outrageous and reprehensible kind by United States

government agents. United States ex rel. Lujan v.Gengler, 510 F.2d 62, 65 (2d Cir. 1975).



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at 209 ([O]ur courts cannot second-guess another

countrys grant of extradition to the United States.).

Second, pursuant to the Ker-Frisbie doctrine, in the

absence (as here) of a violation of the extradition

treaty, the circumstances of his transfer are not a ba-

sis for dismissal.5 Application of these principles

makes clear that the District Court was correct to de-

ny Bouts claim, and to do so without a hearing.

POINT III

Bouts Prosecution Did NotViolate the Doctrine of Specialty

Next, Bout contends his prosecution violated the

rule of specialty because the Thai courts incorrectly

5 Bout argues that the United States violated

the extradition treatys supposed implied covenant of

good faith and fair dealing. (Br. 28). Even if Bouts

allegations were factually accurate, a much clearer

treaty violation is required before the Ker-Frisbie

principle is rendered inapplicable. See Alvarez-

Machain, 504 U.S. at 670 (where no express term of

extradition treaty between Mexico and United States

prohibited forcible abduction, Court would not imply

such a term). And it is worth noting that Thailand

has claimed no such violation. Cf. United States v.

Reed, 639 F.2d 896, 902 (2d Cir. 1981) ([A]bsent pro-

test or objection by the offended sovereign, Reed has

no standing to raise violation of international law as

an issue.).



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believed he was charged with conspiring with real

members of the FARC and approved extradition only

on that basis. (Br. 28-31). As the District Court cor-

rectly concluded, Bouts claim is completely contro-

verted by the record of the proceedings in Thailand

and should be rejected. (A. 51).

A. Relevant FactsIn a pretrial motion, Bout asserted that, although

the Indictment charges that he conspired with

Smulian to supply arms to confidential sources pos-

ing as FARC members, the Thai court approved his

extradition specifically and exclusively for having

conspired with actual FARC members and no one

else. (A. 48-49 (order denying motion) (emphasis in

original)). On August 2, 2011, the District Court re-

jected this claim as flatly contradicted by the record

and found that (i) the extradition request made clear

that Bout was charged with conspiring with Smulian

to supply weapons to the FARC (rather than conspir-

ing with the FARC) (A. 49-50), and (ii) the Thai ap-pellate courts decision granting extradition reflected

that it was fully aware of the nature of the charges

(A. 48-52).

B. DiscussionThe rule of specialty generally requires a country

seeking extradition to adhere to any limitations

placed on prosecution by the surrendering country,

United States v.Baez, 349 F.3d 90, 92 (2d Cir. 2003),

and ensures that an extradited defendant is not tried

on counts for which extradition was not granted. See

Alvarez-Machain, 504 U.S. at 659. [A]pplication of



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23

the principle of specialty involve[s] questions of law,

which this Court reviews de novo. United States v.

Baez, 349 F.3d at 92.6

As the District Court correctly held, Bouts claim

that the Thai appellate court misunderstood the

charges is factually baseless. First, the extradition

materials presented by the United States made clear

that Bout was charged with conspiring with Smulian

to supply weapons to confidential sources posing as

FARC members, not with conspiring with the FARC.For example, the Indictment describes the actions of

only two conspiratorsBout and Smulian (identified

as CC-1, and an unnamed co-conspirator)as

they attempted to consummate the arms deal pro-

posed by CS-2 and CS-3, both of whom are identified

in the Indictment as confidential sources working

with the DEA. (A. 24-31). Other extradition request

materials reiterated the Indictments allegations that

Bout had conspired to engage in an arms deal with

DEA confidential sources purporting to represent the

FARC. (See, e.g., SA 11 (AUSA Aff. 16), 16 (HanleyAff. 6), 28 (Milione Aff. 3)). And the summary of

the testimony of a DEA agent before the Thai lower

court further established this point. (SA 102 (The CS

[confidential source] who was part of the investiga-

tion was not [a] US government official but an indi-

6 Although this Court has questioned whether a

defendant has standing to assert a specialty violation,

the Court need not resolve that question because

Bouts claim plainly fails on the merits. See UnitedStates v. Cuevas, 496 F.3d 256, 262 (2d Cir. 2007).



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24

vidual working for the US government as a CS, which

means that he/she could play any role as ordered by

an investigator such as being a FARCs representa-

tive. I myself and the other officer in the group or-

dered the CS to play the role of a FARC officer.)).7

Bout argues that the Thai appellate court misun-

derstood the charges against him. (Br. 30). But as

Judge Scheindlin concluded, the entirety of that deci-

sionwhich repeatedly and accurately described the

offenses in the Indictmentconclusively establishesthat the court correctly understood the charges. The

Thai appellate courts description of the Indictment

made clear that it understood that Bout was charged

with conspiring to supply weapons to the FARC, not

conspiring with the FARC. (SA 45-46 (the Defendant

et al conspired to supply and accumulate weapons as

well as to provide terrorist training to FARC); 58

([T]he Defendant is accused of . . . conspiring to ac-

quire and use anti-aircraft missiles and to provide

supporting weapons to the terrorist organization.)).

Moreover, the decision leaves no doubt that the Thaicourt understood the charges to arose from a sting

operation which did not involve actual FARC mem-

bers. (SA 50 (Defendant discussed with U.S. Confi-

dential Sources (CS), whom he believed were FARC

officers.); 59 ([DEA agent] was ready to reveal evi-

dence and a memorandum the Defendant had done

with the U.S. confidential sources, whom he believed

was [sic] FARC officers.).

7 These extradition materials were supplied tothe District Court in connection with the motion.



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25

Accordingly, Judge Scheindlin correctly concluded

that Bouts specialty claim is meritless.

POINT IV

Counts One and Two Properly State Offenses

Bout argues that Counts One and Two do not

properly allege conspiracies to commit murder be-

cause, although they allege conspiracies to kill, there

are types of killing other than murder. Bout asserts

that, in describing the objects of Counts One andTwo, the Indictment was required expressly either to

use the word murder or allege malice afore-

thought, which is the mens rea associated with mur-

der. As the District Court twice heldin denying

Bouts pretrial motion to dismiss the Indictment, and

in denying his post-trial motionsBouts argument

lacks merit for several reasons. First, the Indictment

makes clear, in the statutes that it references and in

more than 40 overt acts, that Counts One and Two

allege conspiracies to commit murder. Second, Bouthas not even identified, much less shown, prejudice

suffered from any purported ambiguity in the Indict-

ment.

A. Relevant FactsIn a pre-trial motion, Bout argued that Counts

One and Two fail to allege that he acted with malice

aforethought. In an opinion dated August 2, 2011, the

District Court denied Bouts motion. (A. 52-56). Judge

Scheindlin held that the Indictment fairly inform[s]

[Bout] of the charge[s] against which he must defend,and . . . enable[s] him to plead an acquittal or convic-



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26

tion in bar of future prosecutions for the same of-

fense. (A. 55). The Court explained that the Indict-

ment tracks the language of the offenses alleged in

Counts One and Two, and alleges in no fewer than

forty different overt acts the time, place, and manner

in which Bout and a co-conspirator engaged in the

charged conspirac[ies]. (Id.). Accordingly, [r]eadingthe Indictment to include facts which are necessarily

implied by the specific allegations therein, the In-

dictment sufficiently alleges the essential facts con-

stituting the offense[s] charged.including that Boutact[ed] without regard to the life of [others]. (A. 56(quoting Fed R. Crim. P. 7(c)(1), and Leonard B. Sand

et al., Modern Fed. Jury InstructionsCrim., Instr.

41-4 (2009)).

In his post-trial motion to set aside the verdict,

Bout again sought to dismiss Counts One and Two.

This time, he asserted that, because Counts One and

Two alleged only conspiracies to kill, he was not

fairly informed of the specific crimes charged. In an

oral opinion delivered on February 8, 2012, and in-corporating by reference her opinion from August 2,

2011, Judge Scheindlin rejected Bouts motion for

three main reasons. (A. 63-65). First, Judge

Scheindlin held that both counts apprised Bout that

he was charged with conspiracy to commit second

degree murder, and there could be no confusion with

manslaughter, because Count One alleges an offense

under Section 2332(b), which, in turn, references

Section 1111(a), a statutory provision defining mur-

der, not manslaughter. (A. 63-64). Similarly, Count

Two alleges an offense under Section 1117, which is

titled, Conspiracy to murder. (A. 64). Judge



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Scheindlin further noted that [i]t is also evident that

the indictment does not charge first degree murder

because there is no allegation of premeditation in

the Indictment, which first degree murder requires.

Id. Second, Judge Scheindlin held that the recitation

of approximately 40 alleged overt acts also sufficient-

ly put Bout on notice of the crimes for which he was

charged and ensured that he was tried for the same

conduct presented to the grand jury. Id. Finally,

Judge Scheindlin concluded that Bout suffered no

prejudice from any supposed lack of specificity in the[I]ndictment. Id.

B. Applicable LawSection 1111(a) of Title 18 provides: Murder is

the unlawful killing of a human being with malice

aforethought. Every murder perpetrated by . . . any

. . . kind of willful, deliberate, malicious, and premed-

itated killing . . . is murder in the first degree. . . .

Any other murder is murder in the second degree. 18

U.S.C. 1111(a). Thus, a premeditated murder is afirst-degree murder; any other murder is murder in

the second degree.

[I]n the context of second-degree murder in fed-

eral law, the requisite malice can in some circum-

stances be found when the assailant acts with aware-

ness of a serious risk of death or serious bodily

harm. United States v. Velazquez, 246 F.3d 204, 214

(2d Cir. 2001); see also id. (malice includes reckless

and wanton conduct on the part of a defendant which

grossly deviated from a reasonable standard of caresuch that he was aware of the serious risk of death).



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28

Manslaughter, on the other hand, is expressly de-

fined as the unlawful killing of a human being with-

out malice, either arising out of a sudden quarrel or

heat of passion, or as an involuntary manslaughter

based on a lack of due caution. 18 U.S.C. 1112(a).

Rule 7(c)(1) requires that an indictment contain a

plain, concise, and definite written statement of the

essential facts constituting the offense charged. Fed.

R. Crim. P. 7(c). [A]n indictment is sufficient if it,first, contains the elements of the offense chargedand fairly informs a defendant of the charge against

which he must defend, and, second, enables him to

plead an acquittal or conviction in bar of future pros-

ecutions for the same offense. United States v. Al-fonso, 143 F.3d 772, 776 (2d Cir. 1998) (quoting Ham-

ling v. United States, 418 U.S. 87, 117 (1974)). An

indictment must be read to include facts which are

necessarily implied by the specific allegations made.

United States v. Stavroulakis, 952 F.2d 686, 693 (2d

Cir. 1992). In reading an indictment, common sense

and reason prevail over technicalities. United Statesv. Sabbeth, 262 F.3d 207, 218 (2d Cir. 2001).

It is well settled that in an indictment for con-

spiring to commit an offensein which the conspira-

cy is the gist of the crimeit is not necessary to al-

lege with technical precision all the elements essen-

tial to the commission of the offense which is the ob-

ject of the conspiracy. United States v. Wydermyer,

51 F.3d 319, 325 (2d Cir. 1995); see also United States

v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002). The ra-

tionale is that the crime of conspiracy is completewhether or not the substantive offense which was its



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29

object was committed. United States v. Wydermyer,

51 F.3d at 325.

This Court has repeatedly refused, in the absence

of any showing of prejudice, to dismiss charges for

lack of specificity. United States v. Walsh, 194 F.3d

37, 45 (2d Cir. 1999). Indeed, this Court has consist-

ently upheld indictments that do little more than to

track the language of the statute charged and state

the time and place (in approximate terms) of the al-

leged crime. United States v. Alfonso, 143 F.3d at776 (quotation marks and citation omitted).

An indictments sufficiency is reviewed de novo.

See United States v. Geibel, 369 F.3d 682, 698 (2d Cir.

2004).

C. Discussion1. Counts One and Two Sufficiently Allege

Conspiracies to Murder

Bout alleges that Counts One and Two did not suf-

ficiently allege the objects of the two conspiracies

namely, murderbecause those counts alleged only

in generic terms that the defendant[] conspired tokill (Br. 40 (emphasis in original)), without either (i)

expressly alleging that the type of killing was mur-

der rather than manslaughter, or (ii) alleging that

the conspirators had acted with malice afore-

thought, which is the mensrea associated with mur-

der (Br. 38 (asserting that defect was that the words

murder, malice aforethought, premeditation or any

other term describing the object crime of the chargedconspiracy as murder are conspicuously absent)).



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Bouts argument requires a suspension of the com-

mon sense that prevail[s] over technicalities in the

reading of an indictment, United States v. Sabbeth,

262 F.3d at 218, and should be rejected.

Reading Counts One and Two, as they must be

read, to include facts which are necessarily implied

by the specific allegations therein, United States v.

LaSpina, 299 F.3d at 177, including more than 40 dif-

ferent overt acts, there can be no serious question

that the essential facts constituting the offense ofconspiracy to commit murder were alleged. Fed. R.

Crim. P. 7(c)(1). Although Counts One and Two do

not expressly use the words murder or malice

aforethought in describing the objects of the conspir-

acies, the elements of the object of a conspiracy need

not be alleged with technical precision. LaSpina,

299 F.3d at 177. Here, the alleged conduct set forth in

the Indictment plainly describedand therefore al-

leged by implicationthe malice aforethought re-

quired of murder, see Sand et al., supra, Instr. 41-4

(describing malice as acting without regard to thelife of others), and not the heat of passion or lack of

due caution associated with manslaughter, see 18

U.S.C. 1112 (defining voluntary and involuntary

manslaughter). Among other things, the Indictments

overt acts alleged that Bout intended to support the

FARCs objective in killing American forces in Co-

lombia, and that Bout was advised . . . that the

FARC needed anti-aircraft weapons to kill American

pilots, to which he responded that he was going to

prepare everything the FARC needed. (A. 29 ( 8(ff));

see also A.24, 29 ( 8(b), (ee))). Thus, the Indict-

ments factual allegations described malice afore-



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thought and murder, even if those precise words were

not used.8

In addition, the statutes with which Bout was

charged demonstrate that the alleged objects of the

conspiracies were murder, not manslaughter. Count

One alleges a conspiracy offense under 18 U.S.C.

2332(b), which only addresses attempts and con-

spiracies to murder, providing, with respect to con-

spiracy, that an offense exists only in the case of a

conspiracy by two or more persons to commit a killingthat is a murder as defined in section 1111(a) of this

title[.] 18 U.S.C. 2332(b)(2) (emphasis added). Simi-

larly, Count Two alleges an offense under Section

1117, which is titled Conspiracy to murder. See 18

U.S.C. 1117. Thus, the statutes charged further

support the obvious conclusion that Counts One and

Two charge conspiracies to murder.9

8

Bouts argument that the Indictment failed toallege a conspiracy to commit murder, as distinct

from manslaughter, does not appear to turn in any

respect on the difference between first and second-

degree murder. In any event, as Judge Scheindlin

correctly found, because neither Count One nor

Count Two alleged premeditation, the specific charge

alleged was second-degree murder. (A. 64).

9 Bout cites United States v. Berlin, 472 F.2d

1002 (2d Cir. 1973), for the proposition that a mere

reference to the statutory section does not salvagean Indictment. (Br. 41). The Indictment does not need

salvaging. The statutory citations merely confirm



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In any event, Bouts claim should be rejected be-

cause he fails to allege, much less demonstrate, any

prejudice resulting from the purported lack of speci-

ficity in the two charges. Bout contends that he need

not show prejudice where the indictment is insuffi-

cient as a result of it[]s failure to state the elementsof the crime charged. (Br. 42). In support of this

proposition, Bout relies upon United States v. Walsh,

194 F.3d 37 (2d Cir. 1999), and United States v.

McLean, 528 F.2d 1250 (2d Cir. 1976). (Br. 41-42).

But neither Walsh nor McLean excuses a showing ofprejudice based upon the kind of challenge to the In-

dictments sufficiency. To the contrary, Walsh simply

observes that, in the absence of demonstrated preju-

dice, this Court has repeatedly refused to dismiss

Indictments for the lack of specificity. Id. at 45 (cit-

ing United States v. McLean, 528 F.2d at 1257).

2. Bouts Claim of Prejudicial Spillover IsBaseless

Finally, Bout contends that not only shouldCounts One and Two have been dismissed, but the

evidence admitted in support of those counts had a

prejudicial spillover effect on Counts Three and

Four. (Br. 46). Even assuming arguendo a pleading

defect in Counts One and Two, which there was not,

such an error could not plausibly warrant vacating

the convictions on Counts Three and Four.

what is already clear from the detailed allegations of

the Indictmentthat the objects of the conspiracieswere murder, not manslaughter.



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In assessing a claim of prejudicial spillover from

dismissed counts, this Circuit looks to several factors

in determining whether the totality of the circum-

stances requires reversal of some or all of the remain-

ing counts. United States v. Wapnick, 60 F.3d 948,

953 (2d Cir. 1995). One factor is whether the evi-

dence and facts pertaining to the vacated counts are

similar to or different from those relating to the other

counts. Id. at 954. Here, the core evidence and

facts underlying all four counts were fundamentally

similar and closely related, as the object of all fourconspiracies was to target American interests(1)

nationals of the United States in Colombia (Count

One); (2) officers and employees of the United

States in Colombia (Count Two); (3) United States

aircraft in Colombia (Count Three); and (4) United

States interests in Colombia (Count Four). (A. 23,

32, 34, 36 ( 7, 11, 15, 19)). The evidence underlying

Counts One and Two was inextricably intertwined

with the proof of Counts Three and Four, and estab-

lished Bouts understanding of the FARCs objectivesand his motivation for supporting the FARC, facts

relevant to all four counts. Apparently recognizing

this, Bout never sought an instruction limiting the

admissibility of this evidence to Counts One and Two.

Another factor in considering whether there has

been prejudicial spillover is whether the evidence on

the vacated count was of such an inflammatory na-

ture that it would have tended to incite or arouse the

jury into convicting the defendant on the remaining

counts. Wapnick, 60 F.3d at 953. In this case, even

assuming the evidence underlying Counts One and

Two was not equally admissible as proof of Counts



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Three and Four, it was no more inflammatory than

the proof offered in support of Counts Three and

Four. The evidence relating to Counts One and Two

included Bouts own words during his meetings in

Bangkok, in which he repeatedly supported the

FARCs interest in killing American pilots stationed

in Colombia. This evidence was no more inflammato-

ry in nature than the evidence offered in support of

Count Four, for example, which required proving that

Bout knew or believed that the FARC was a desig-

nated terrorist organization, or that the FARC hasengaged or engages in terrorism. (Tr. 1861). To es-

tablish that element, the Government, among other

things, introduced forensic evidence of Bouts internet

research about the FARCs barbaric acts of terrorism

and violence, including (1) a graphic YouTube video

about the FARCs use of pipe and fire bombs

(GX 1341-T); (2) documents noting the FARC [had]

declared that U.S. citizens, who they considered to be

military advisors, are legitimate military targets(GX 1310); and (3) documents describing the FARCsuse of explosives, landmines, and bombs camou-

flaged as necklaces, soccer balls, and soup cans.

(GX 1332). In sum, the evidence of Bouts violent hos-

tility to the United States did not incite or arouse

the jury any more than the evidence of Bouts due

diligence on the FARC.

Finally, the last factor is the Courts general as-

sessment of the strength of the governments case on

the remaining counts. Wapnick, 60 F.3d at 954. The

evidence underlying Counts Three and Four was

overwhelming, and included: (1) dozens of wiretapped

calls and text messages between Bout and Smulian,



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35

during which Bout repeatedly described his progress

on the weapons deal; (2) consensual recordings and e-

mails among Bout and the CSs; (3) forensic evidence

from Bouts computer; (4) the two recorded meetings

in Thailand where Bout took detailed notes reflecting

the terms of the arms deal; (5) Smulians testimony;

and (6) Bouts false testimony under oath in extradi-

tion proceedings in Thailand.

Accordingly, even assuming arguendo a pleading

error in Counts One and Two (which there was not),the convictions on Counts Three and Four would be

unaffected.

POINT V

The District Court Correctly Instructed theJury on Counts One and Two

Bout contends that a conspiracy to commit murder

requires a higher level of intent than the substantive

offense of murder. (Br. 31-38). Bouts argument is in-

consistent with long-settled principles of federal con-spiracy law, and with the mens rea instruction that a

number of courts have given for the federal offense of

conspiracy to commit murder. Accordingly, his claim

should be rejected.

A. Relevant FactsIn instructing the jury on Counts One and Two,

Judge Scheindlin defined malice aforethoughtthe

requisite intent for second-degree murderas fol-

lows:



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Malice is the state of mind that would

cause a person to act without regard to

the life of another. To satisfy this ele-

ment, the defendant must have acted

consciously, with the intent to kill an-

other person. However, the government

need not prove a subjective intent to kill

on the part of the defendant. It would be

sufficient to satisfy this element if it

proved reckless and wanton conduct on

the part of the defendant which grosslydeviated from a reasonable standard of

care such that he was aware of the seri-

ous risk of death. In order to establish

this element, the government must

prove that the defendant acted willfully,

with a bad or evil purpose to break the

law. However, the government need not

prove spite, malevolence, hatred or ill

will toward the intended victim.

(Tr. 1848-49).

At the charge conference, and in a post-trial mo-

tion to set aside the verdict, Bout objected to the por-

tion of the instruction concerning reckless and wan-

ton conduct. The basis of Bouts objection was that

one cannot conspire to do something reckless.

(Tr. 1168; see alsoid. at 1601).

Judge Scheindlin rejected Bouts argument during

the trial and also in her prepared decision denying

Bouts post-trial motions, delivered from the bench on

February 8, 2012. (A. 65-68). In her post-trial ruling,Judge Scheindlin explained that Bouts argument



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that the reckless and wanton conduct standard satis-

fies malice aforethought for the substantive (but not

conspiracy) offense of second-degree murderruns

counter to th[e] general principle against apply[ing]

a more stringent mens rea requirement for conspiracy

than for the underlying substantive offense. (A. 66).

Judge Scheindlin also relied on United States v. Cha-

gra, 807 F.2d 398, 402 (5th Cir. 1986), in which the

Fifth Circuit expressly rejected a challenge to a very

similar instruction on malice aforethought in con-

nection with a charge of conspiracy to commit second-degree murder. (A. 66). Rejecting Bouts reliance on

various state court decisions and treatises, Judge

Scheindlin noted that her instruction was patterned

upon Judge Sands model federal instructions, as well

as on instructions often given by judges in this dis-

trict for charges of conspiracy to commit murder.

(A. 68). Finally, Judge Scheindlin noted that although

this Court has rejected this instruction for the differ-

ent offense of attempted murder, seeUnited States v.

Kwong, 14 F.3d 189, 194 (2d Cir. 1994), no federalcourt has rejected a reckless and wanton instruction

on a murder conspiracy offense based on federal stat-

utes. (A. 67).

B. Applicable LawThis Court will review challenged jury instruc-

tions de novo but will reverse only if all of the in-

structions, taken as a whole, caused a defendant

prejudice. United States v. Bok, 156 F.3d 157, 160

(2d Cir. 1998). An appellant challenging a jury in-

struction faces a heavy burden; he must establishboth that he requested a charge that accurately rep-



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38

resented the law in every respect and that the

charge delivered was erroneous and caused him prej-

udice. United States v. Wilkerson, 361 F.3d 717, 732

(2d Cir. 2004). In reviewing jury instructions, the

Court must review the instructions as a whole to see

if the entire charge delivered a correct interpretation

of the law. United States v. Carr, 880 F.2d 1550,

1555 (2d Cir. 1989) (quotation marks omitted). Even

if the Court finds that there was an erroneous jury

instruction, reversal is not warranted if the error was

harmlessin other words, if it is clear beyond a rea-sonable doubt that a rational jury would have found

the defendant guilty absent the error. United States

v. Quattrone, 441 F.3d 153, 179 (2d Cir. 2006).

C. DiscussionBout does not dispute that the necessary mens rea

for the substantive offense of second-degree murder

under Section 1111(a)malice aforethoughtcan

be satisfied by either (i) an intent to kill or (ii) reck-

less and wanton conduct that grossly deviated from areasonable standard of care such that the defendant

was aware of the serious risk of death. Instead, Bout

claims that the second option is unavailable when the

charge is a conspiracy to commit second-degree mur-

der. (Br. 31-38). In support of this proposition, Bout

relies upon various treatises, state court cases, and

federal cases that, almost without exception, do not

address the necessary mens rea for the federal offense

of conspiracy to commit murder.

As Judge Scheindlin concluded, Bout cannot over-come binding Supreme Court precedent in the area of



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39

federal conspiracy law, which establishes that (i) a

federal conspiracy charge requires no greater level of

intent than the underlying substantive offense, and

(ii) where the substantive offense requires only

awareness of a result, not the specific intent to bring

about that result, a federal conspiracy conviction may

be based on the same. It is unsurprising, therefore,

that (i) the only federal court of appeals to directly

address whether a conspiracy to violate Section

1111(a) can be premised on this mens rea require-

ment has held that it can, and (ii) consistent with theleading collection of federal pattern jury instructions,

a number of judges in the Southern District of New

York have included this instruction.

1. Judge Scheindlins Instruction Accordedwith Well-Settled Principles of FederalConspiracy Law

The gravamen of Bouts argument is that it is not

possible to conspire to achieve an unintended conse-

quence. (Br. 32-35). Thus, he says, even where acrime . . . is defined in terms of recklessly or negli-gently causing a result, or the crime permitsliability without fault (i.e., strict liability), defend-ants may nonetheless only be convicted for conspiring

to commit that crime if they purposefully intended

what the underlying crime would not, itself, have re-

quired them to intend. (Br. 33 (quoting Wayne R.

LaFave, Criminal Law (3d ed. 2000))).

Although ignored by Bout (as it was below), the

Supreme Court expressly rejected this principle inUnited States v. Feola, 420 U.S. 671 (1975). At issue



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in Feola was whether conspiring to assault a federal

officer, in violation of 18 U.S.C. 371 (the conspiracy

statute) and 111 (the underlying assault statute), re-

quired knowledge of the victims status as a federal

officer. As to the substantive offense, the Court held

that a defendant need not know that the victim was a

federal officer. Id. at 684 (Section 111 cannot be con-

strued as embodying an unexpressed requirement

that an assailant be aware that his victim is a federal

officer.). Having resolved the issue for the substan-

tive offense, the Court next considered the contentionthat the Government must show a degree of criminal

intent in the conspiracy count greater than is neces-

sary to convict for the substantive offense. Id. at 686.

The Court rejected this proposition, holding instead

that where a substantive offense embodies only a re-

quirement ofmens rea as to each of its elements, the

general federal conspiracy statute requires no more.

Id. at 692. In arriving at this conclusion, the Court

pointed out that the general conspiracy statute (like

the conspiracy statutes at issue here) offered no tex-tual support for the defendants argument, id. at

687, and that while no decision of [the Supreme]

Court . . . len[t] support to the defendants position,

the Court had already, in several prior decisions, de-

clined to require a greater degree of intent for con-

spiratorial responsibility than for responsibility for

the underlying substantive offense, id. at 688.

Relying on Feola, this Court has repeatedly re-

fused to engraft upon federal conspiracy offenses a

more stringent intent element than what the under-

lying substantive offenses require. See, e.g., United

States v. Scotto, 641 F.2d 47, 56 (2d Cir. 1980) (We



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41

have no reason to believe . . . that the quantum of

mens rea required for a RICO conspiracy conviction

should be different from or greater than that required

for a substantive RICO offense.); United States v.

Tavoularis, 515 F.2d 1070, 1074 n.9 (2d Cir. 1975)

(construing Feola to hold that greater knowledge

would not be required for a conspiracy conviction

than for the underlying substantive offense). And at

least one federal court has applied Feola to reject a

claimsimilar to Bouts, albeit in the context of a

state statutethat a conspiracy to commit murderrequired a greater intent than the intent to commit

great bodily harm required by the underlying mur-

der statute. See Johnson v. Hartwig, 975 F. Supp.

1084, 1090 (N.D. Ill. 1997).

Three years after Feola, the Supreme Court made

clear that a conspiracy conviction can be satisfied not

just by a specific intent to cause the statutorily pro-

scribed result, but also by the knowledge that the re-

sult would likely occur. In United States v. United

States Gypsum Co., 438 U.S. 422 (1978), the defend-ants were charged with a price-fixing conspiracy in

violation of the Sherman Act. Id. at 427. The Court

noted that [i]n a conspiracy, two different types of

intent are generally requiredthe basic intent to

agree, which is necessary to establish the existence of

the conspiracy, and the more traditional intent to ef-

fectuate the object of the conspiracy. Id. at 444 n.20.

With respect to the latter requirement, the Court

considered whether the conspiracy conviction re-

quired a demonstration that the disputed conduct

was undertaken with the conscious object of produc-

ing [anticompetitive] effects, or whether it is suffi-



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42

cient that the conduct is shown to have been under-

taken with knowledge that the proscribed effects

would most likely follow. Id. at 444. The Court de-

cided on the latter, conclud[ing] that action under-

taken with knowledge of its probable consequences

would satisfy the mens rea requirement for a price-

fixing conspiracy. Id.

That Gypsum was in the context of a conspiracy to

violate the Sherman Act is noteworthy because the

Sherman Act shares an important feature with thefederal murder statute. [U]nlike most traditional

criminal statutes, neither the Sherman Act nor the

federal murder statute precisely identif[ies] the con-

duct which it proscribes. Id. at 438. Rather, each

statute essentially proscribes an outcome

anticompetitive effects, in the case of the former, and

the death of a human being, in the case of the latter

without attempting to specify the myriad types of

conduct that could bring about that result. Thus, it is

significant that it was in the context of a conspiracy

to violate this type of statute that the Supreme Courtheld that [w]here carefully planned and calculated

conduct is being scrutinized in the context of a crimi-

nal prosecution, the perpetrators knowledge of the

anticipated consequences is a sufficient predicate for

a finding of criminal intent. Id. at 446. Likewise,

Bouts and Smulians carefully calculated plan to sell

weapons to a terrorist organization with the



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43

knowledge that the weapons would be used to kill

American pilots certainly meets this standard.10

Thus, there is no merit to Bouts assertion that

conspirators must intend the consequence proscribed

by law, even when the underlying substantive offense

has no such requirement. Notwithstanding the com-

mentators and state decisions that Bout cites, the

foregoing analysis makes clear that Bouts theory is

inconsistent with well-settled principles of federal

conspiracy law.

10 Apart from second-degree murder and the

Sherman Act, several federal statutes that include

conspiracy provisions define mens rea to include both

intent and reckless disregard of a particular fact. See,

e.g., 18 U.S.C. 32(a)(5) & (8) (interfering or disa-

bling, with intent to endanger the safety of any per-

son or with a reckless disregard for the safety of hu-

man life, the authorized operation of aircraft); 18

U.S.C. 33(a) (intentionally endanger[ing] the safety

of any person aboard a motor ve

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Response to Viktor Bout's Appeal

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