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Viktor Bout made a comfortable living selling arms internationally. He was arrested in Thailand in 2008 as the result of an international sting operation. Bout thought he was meeting with representatives of the Colombian terrorist organization "Fuerzas Armadas Revolucionarias de Colombia" (FARC) to negotiate the sale of 100 surface-to-air (SAM) missiles. In fact, Bout's negotiating partners were government informants. The U.S. sought his extradition from Thailand, which was granted in 2010.

After a trial in the U.S. District Court for the Southern District of New York in the Fall of 2011, Bout was found guilty of various offenses, including conspiracy to kill U.S. officers and conspiracy to acquire and export a missile system designed to destroy aircraft. Bout now appeals. One of his challenges is that his extradition from Thailand was illegal because it was the result of intense U.S. political pressure.

The U.S. Court of Appeals for the Second Circuit affirms the conviction. The Court first rejects Bout's claim that the prosecution was vindictive and violated his constitutional right to due process.

"The Supreme Court has ... recognized the possibility that 'outrageous' government conduct could bar a criminal conviction. See Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). To prevail on such a claim, however, a defendant must show that the government's conduct is 'so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction.' ... In other words, the government's conduct must "shock the conscience' in the sense contemplated by [the Supreme Court in] Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forced stomach pumping).' ... As we have explained:"

"'Generally, to be "outrageous,' the government's involvement in a crime must involve either coercion or a violation of the defendant's person. It does not suffice to show that the government created the opportunity for the offense, even if the government's ploy is elaborate and the engagement with the defendant is extensive. Likewise, feigned friendship, cash inducement, and coaching in how to commit the crime do not constitute outrageous conduct.'"

"UnitedStates v. AdKassar, 660 F.3d 108, 121 (2d Cir. 2011) (citations omitted). Indeed, 'as with all sting operations, government creation of the opportunity to commit an offense, even to the point of supplying defendants with materials essential to commit crimes, does not exceed due process limits.' ...."

"Having reviewed the record in light of these principles, we conclude that Bout's allegations do not meet the high threshold necessary to prevail on a vindictive prosecution claim. Bout refers to media reports stating that former Deputy National Security Advisor Juan Zarate and other high-ranking officials at the Drug Enforcement Agency (DEA) had him in their 'cross-hairs.' Appellant's Br. 24. Even if true, these allegations do not constitute the type of 'animus' that is relevant within the meaning of our cases on vindictive prosecution. The 'animus' that is prohibited typically occurs in situations where 'a prosecutor's charging decision is a direct and unjustifiable penalty that resulted solely from the defendant's exercise of a protected legal right.' ... In this case, however, the government's motivation to prosecute Bout stemmed from widespread concern that he was engaged in criminal conduct, as evidenced by his placement on numerous United States and United Nations 'sanctions lists' since the early 2000s. The government's enthusiastic or energetic pursuit of Bout, a high-priority criminal target, does not demonstrate vindictive, or even inappropriate, government conduct. See United States v. Sanders, 211 F.3d 711, 718 (2d Cir. 2000) (holding that an 'aggressive investigation' in response to a 'potential [criminal] violation ... cannot give rise to an inference of impropriety')." [731 F.3d at 238-239]

The Court then turns to the issue of Bout's extradition. The gist of Bout's challenge is that 18 U.S.C. Section 3184 permits U.S. courts to review the legality of an extradition of a defendant from the U.S. to another country. Consequently, U.S. courts should review the legality of an extradition from another country to the U.S.

"We disagree. We have squarely held that 'although courts of the United States have authority to determine whether an offense is an extraditable crime when deciding whether an accused should be extradited from the United States ... our courts cannot second-guess another country's grant of extradition to the United States.' United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002) (citation omitted); id. ('It could hardly promote harmony to request a grant of extradition and then, after extradition is granted, have the requesting nation take the stance that the extraditing nation was wrong to grant the request.')."

"Likewise, under the so-called Ker-Frisbie doctrine, 'the government's power to prosecute a defendant is not impaired by the illegality of the method by which it acquires control over him.' United States v. Toscanino, 500 F.2d 267, 271 (2d Cir.1974) (relying on Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952)) ... Accordingly, we find no merit to Bout's claim that his indictment should have been dismissed because he was improperly extradited to the United States." [731 F.3d at 239-240] (footnote omitted)

The Court concludes that:

(1) In the absence of actual animus or shocking conduct such as coercion or a violation of defendant's person, an international sting operation like the one in this case does not constitute either vindictive prosecution or outrageous government conduct.

(2) The U.S. Government's application of "coercive political pressure" on a foreign government to secure a defendant's extradition does not render that defendant's prosecution improper.

CITATION: United States v. Bout, 731 F.3d 233 (2d Cir. 2013).
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Title Annotation:Viktor Bout and United States District Court for the Southern District of New York
Publication:International Law Update
Geographic Code:9THAI
Date:Oct 1, 2013
Previous Article:Criminal law.
Next Article:Head of state immunity.

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