Response To Viktor Bout's Appeal

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12-1487
FOR THE SECOND CIRCUIT Docket No. 12-1487 UNITED STATES OF AMERICA, v.
To Be Argued By: ANJAN SAHNI
United States Court of Appeals
Appellee,
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. ON APPEAL
FROM THE
FOR THE
UNITED STATES DISTRICT COURT 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 States of America.
BRENDAN R. MCGUIRE, ANJAN SAHNI, MICHAEL A. LEVY, Assistant United States Attorneys, Of Counsel.
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TABLE OF CONTENTS
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Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. The Investigation . . . . . . . . . . . . . . . . . . . . . 2 B. The Trial and Sentencing . . . . . . . . . . . . . . . 7 ARGUMENT: POINT IThe Investigation Did Not Violate the Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . 8 A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . 9 B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 10 1. 2. Vindictive Prosecution . . . . . . . . . . . . . 10 Outrageous Government Conduct . . . 12
C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1. 2. Bouts Prosecution Was Not Vindictive . . . . . . . . . . . . . . . . . . . . . . . 13 There Was No Outrageous Government Conduct During the Investigation . . . . . . . . . . . . . . . . . . . . 15
POINT IIBouts Challenge to the Extradition Proceedings in Thailand Should Be Rejected . 17 A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 17 B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 18
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C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 20 POINT IIIBouts Prosecution Did Not Violate the Doctrine of Specialty . . . . . . . . . . . . . . . . . . 21 A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 22 B. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 22 POINT IVCounts One and Two Properly State Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 25 B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 27 C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 29 1. 2. Counts One and Two Sufficiently Allege Conspiracies to Murder . . . . . . 29 Bouts Claim of Prejudicial Spillover Is Baseless . . . . . . . . . . . . . . . . . . . . . . 32
POINT VThe District Court Correctly Instructed the Jury on Counts One and Two . . . . . . . . . . 35 A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 35 B. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 37 C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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1.
Judge Scheindlins Instruction Accorded with Well-Settled Principles of Federal Conspiracy Law . . . . . . . . . 39 Federal Courts Have Approved the Instruction Issued Here. . . . . . . . . . . . 43 Any Error Was Harmless . . . . . . . . . . 48
2. 3.
POINT VIThere Was Jurisdiction Over Count Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 51 B. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . 52 1. 2. The Jury Instructions for Count Three . . . . . . . . . . . . . . . . . . . . . 52 The District Courts Denial of the Defendants Post-Trial Motion . . . . . . 53
C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . 54 1. 2. There Was Sufficient Evidence of Jurisdiction Over Count Three . . . . . . 54 If Jurisdiction Was Required to Be Submitted to the Jury, Any Error Was Not Plain Error . . . . . . . . . . . . . . 57
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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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 Hamling v. 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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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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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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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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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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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 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. BRIEF FOR THE UNITED STATES OF AMERICA Preliminary Statement Viktor Bout appeals from a judgment of conviction, 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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2 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 Title 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, United States Code, Section 2339B. Trial commenced on October 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 imprisonment on Count Three, all to be served concurrently. Bout is currently serving his sentence. Statement of Facts A. The Investigation Since 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 result of which the United Nations and United States
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3 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 Administration (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 illegal arms deal to Andrew Smulian, a former colleague of Bouts. (Tr. 329). Upon learning of the weapons proposal from Smulian, Bout swiftly accepted 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 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 Governments Supplemental Appendix.
1
Like Bout, Smulian was ultimately arrested for his participation in these events. Smulian subsequently entered into a cooperation agreement with the Government, pled guilty to participating in each of the conspiracies charged in the Indictment, and testified at trial.
2
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4 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 weapons with cash derived from its cocaine business. (GX 201-T; GX 204-T). Following his meetings in Curacao, Smulian visited Bout in Moscow, where they discussed the weapons 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 military affairs; (2) a weapons delivery system consisting of two cargo planes, crews, and 200 cargo parachutes to airdrop the arms in Colombia; and (3) advice on laundering the FARCs drug-derived cash. (Tr. 125257; GX 419-T). Bout directed Smulian to arrange a meeting with Carlos and Ricardo to continue discussions of the weapons deal. (Id.) A few days after leaving Moscow, Smulian spent two weeks with the CSs in Romania. (Tr. 1268). Although 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 dozens of phone calls and text messages with Smulian
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5 about the weapons transaction, which Romanian authorities intercepted. (See, e.g., GX 501L-T, 501HHT). 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 international travel ban based on United Nations sanctions, Bout and an associate (Misha) flew from Moscow 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 GX 1002-T). During the meetingswhich the CSs recordedBout repeatedly supported 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 together. . . . And we have the same enemy.); id. at 125-26 (Bout: [W]e have a policy . . . gringos are enemies. . . . 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. at 121); (4) ZU-23 anti-aircraft cannons (id. at 82); (5)
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6 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) unmanned aerial vehicles (id. at 134). Bout took detailed notes during the meeting to memorialize the CSs weapons order. (Tr. 881; GX 1200). Bout also offered (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 drugderived 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 methods for airdropping weapons shipments to avoid detection, which he could employ for the FARCs benefit. (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 $20 million (GX 1002-T, at 123), and directed his associate, 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 extradition to the United States. During the extradition proceedings in Thailand, Bout falsely testified, among other things, that (1) no one in the meetings on March 6, 2008 had claimed to represent the FARC;
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7 (2) there had been no discussion about selling weapons to the FARC; (3) the purpose of the meetings had been to meet foreign businessmen interested in buying aircraft; and (4) he was visiting Bangkok to further a submarine deal between the governments of Russia and Thailand. (GX 1500-T; A. 47). B. The Trial and Sentencing On 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 conspiracies. The Governments exhibits included: hours of undercover audio recordings made by the CSs; dozens 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 extradition 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 contained extensive research on the FARC and its violent activities, including against the United States. In addition, two former business associates of Bouts testified about their first-hand knowledge of Bouts weapons-trafficking activities in Africa during the 1990s.
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8 Bout did not present a defense case. Through counsel, Bout argued that he never intended to supply any weapons, but merely had strung along Carlos and Ricardo with the false promise of weapons in order 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 and Four, and 300 months imprisonment on Count Three (the mandatory minimum). ARGUMENT POINT I The Investigation Did Not Violate the Due Process Clause Apparently melding the vindictive prosecution and outrageous government conduct arguments that he raised below, Bout argues that the Governments sting operation against him reflects elements of entrapment, vindictive prosecution and selective prosecution that, taken together, can only be described as outrageous government conduct. (Br. 23). He asserts that the District Court erred in refusing to dismiss the Indictment or, at a minimum, to hold an evidentiary hearing. (Br. 25). These arguments are no stronger joined than they were individually, and the District Court was correct to reject them without a hearing.
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9 A. Relevant Facts In his first pretrial motion to dismiss the Indictment, Bout arguedamong other thingsthat the Indictment should be dismissed due to the outrageousness 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 that there was nothing outrageous about the sting operation, 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 Process argument, this time alleging vindictive prosecution. Bout asserted that the United States had vindictively 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 likelihood of vindictiveness that required rebuttal by the Government. (A. 43). Specifically, Judge Scheindlin noted that (i) the two-year lag between the purported-
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10 ly embarrassing media report in 2006 and the initiation of the Governments investigation undermined any claim that the latter resulted from animus concerning the former, and that, (ii) in any event, Bouts support of war criminals and violent dictators defeated any claim that the decision to investigate him resulted 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 hearing. (A. 44-45). B. Applicable Law 1. Vindictive Prosecution A defendant challenging the Governments decision to prosecute bears a heavy burden, as a presumption of regularity supports the executive branchs prosecutorial decisions. United States v. Armstrong, 517 U.S. 456, 464, 470 (1996); see also United States v. Sanders, 211 F.3d at 716. The rationale 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 effectiveness by revealing the Governments enforcement policy. United States v. Armstrong, 517 U.S. at 465 (quotation 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 circumstances 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 defendant must show that (1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus 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 vindictiveness by showing that the circumstances pose a realistic likelihood of such vindictiveness. Id. (quotation marks omitted). That presumption can then be rebutted, however, if the Government demonstrates legitimate, 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 present some evidence of genuine animus, not the mere possibility that animus might exist under the circumstances. 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 Conduct As this Court has observed, outrageous government conduct is an issue frequently raised that seldom succeeds. United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997); accord United States v. LaPorta, 46 F.3d 152, 160 (2d Cir. 1994) (Such a claim rarely succeeds.). Although in principle government overinvolvement in criminal activity could rise to the level of a due process violation, such a violation would require Government conduct that shocks the conscience. 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 governments 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; accord United 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. Al Kassar, 660 F.3d at 121. Nor does it suffice to show that the government created the opportunity for the offense, even if the governments ploy is elaborate and the engagement with the defendant is extensive. Id. Especially in view of the courts well-established deference to the Governments 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); accord Al Kassar, 660 F.3d at 121. C. Discussion 1. Bouts Prosecution Was Not Vindictive Bouts 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 magazine article reporting that the Department of Defense 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 harbored 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 government officials to a January 2006 magazine article influenced Bouts investigation is unfounded and counter-intuitive speculation. As the Government demonstrated below, Bout and numerous companies affiliated with him had been sanctioned by the United Nations and United States since 2004 based on findings that Bout, among other things, had assisted the brutal 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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14 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 motivated by the desire either to get pay back for the embarrassment 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 governmental concern, Bouts theory that the revelation motivated the Government to investigate and prosecute him remains illogical. As the District Court correctly noted, if the Department of Defense had a relationship with Bout that posed the potential for embarrassment, common sense suggests that its interests would have been best served by attempting to terminate 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, when the 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 speculation 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 animus. 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 concern 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 Government Conduct 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 conclusion follows simply and directly from this Courts rejection of a nearly identical claim raised in Al Kassar 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 in Al Kassar, Bout asserts that his Due Process rights were infringed by a variety of ordinary elements 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 standard of outrageous. Id. For example, Bout asserts that, prior to the investigation, he had committed no crime against the United States nor had he committed any act or made any statement that indicated that he even contemplated committing such a crime. (Br. 7). Even if true, this Court rejected a similar argument in Al 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 [permissibly] 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 suggestion that [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 suggestion that he was reluctantly drawn from a legal transaction into an illegal one only as a result of Government 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 in Al Kassar, this Court held that the initial proposal of a lawful transaction to a stings target is a commonplace and often necessary tactic, and that, when the illegal transaction is thereafter offered, the defendants transient hesitation 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 unconstitutionally over-involved in this investigation should be affirmed. POINT II Bouts Challenge to the Extradition Proceedings in Thailand Should Be Rejected Bout contends that his extradition resulted from enormous, coercive political pressure exerted by the United States upon Thailand, and therefore the Indictment should have been dismissed or an evidentiary 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 principles 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 Facts In August 2009, a lower court in Thailand denied the United States request to extradite Bout. Approximately one year later, in August 2010, a Thai appellate 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, Bout relied upon two supposed Department of State cables
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18 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 August 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 lower courts ruling had been erroneous and possibly the product of corruption, including from Bout and his supporters, and (3) that ruling should receive meaningful 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 the KerFrisbie doctrine. (A. 47). B. Applicable Law [A]lthough 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 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 The United States does not address the authenticity of these materials, which Bout obtained from the website, Wikileaks.
3
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19 decision to extradite rests soundly on principles of international comity and constitutes an essential element of the maintenance of cordial international relations. United States v. Salinas Doria, 2008 WL 4684229, at *2 (S.D.N.Y. 2008) (quoting United States v. Campbell, 300 F.3d at 209). While these cases generally address whether particular offenses were extraditable under various treaties, they stand for the more general proposition that 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. Campbell, 300 F.3d at 209. Separately, the Ker-Frisbie doctrine has recognized that the governments 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); see Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952). An exception to this doctrine 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 of Ker v. Illinois is fully applicable, and the respondents forcible abduction does not therefore prohibit his trial in a court in the United States). 4 Another potential exceptionneither invoked by Bout nor applicable to any facts alleged hereis
4
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20 C. Discussion
Bout claims that the Embassy cables together with the fact that after more than a years deliberation 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. The two cables on which Bout relies reveal no untoward pressure. The first cablewritten while the extradition proceeding was pending in the lower court shows only that the United States was concerned about corruption (including from Bout) in the extradition process. (SA 38). Likewise, the second cable written just days after the lower court decision was issuedreflected the United States appropriate efforts 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 argument that the Thai appellate court caved to diplomatic pressure instead of following Thai law is exactly the sort of challenge that international comity principles 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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21 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 basis for dismissal. 5 Application of these principles makes clear that the District Court was correct to deny Bouts claim, and to do so without a hearing. POINT III Bouts Prosecution Did Not Violate the Doctrine of Specialty Next, Bout contends his prosecution violated the rule of specialty because the Thai courts incorrectly 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 AlvarezMachain, 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 protest or objection by the offended sovereign, Reed has no standing to raise violation of international law as an issue.).
5
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22 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 correctly concluded, Bouts claim is completely controverted by the record of the proceedings in Thailand and should be rejected. (A. 51). A. Relevant Facts In a pretrial motion, Bout asserted that, although the Indictment charges that he conspired with Smulian to supply arms to confidential sources posing 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 rejected 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 conspiring with the FARC) (A. 49-50), and (ii) the Thai appellate courts decision granting extradition reflected that it was fully aware of the nature of the charges (A. 48-52). B. Discussion The 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 proposed 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 (Hanley Aff. 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 investigation was not [a] US government official but an indi 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 United States v. Cuevas, 496 F.3d 256, 262 (2d Cir. 2007).
6
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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 representative. I myself and the other officer in the group ordered the CS to play the role of a FARC officer.)). 7 Bout argues that the Thai appellate court misunderstood the charges against him. (Br. 30). But as Judge Scheindlin concluded, the entirety of that decisionwhich repeatedly and accurately described the offenses in the Indictmentconclusively establishes that 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 acquire and use anti-aircraft missiles and to provide supporting weapons to the terrorist organization.)). Moreover, the decision leaves no doubt that the Thai court understood the charges to arose from a sting operation which did not involve actual FARC members. (SA 50 (Defendant discussed with U.S. Confidential Sources (CS), whom he believed were FARC officers.); 59 ([DEA agent] was ready to reveal evidence and a memorandum the Defendant had done with the U.S. confidential sources, whom he believed was [sic] FARC officers.). These extradition materials were supplied to the District Court in connection with the motion.
7
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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 because, although they allege conspiracies to kill, there are types of killing other than murder. Bout asserts that, in describing the objects of Counts One and Two, the Indictment was required expressly either to use the word murder or allege malice aforethought, which is the mens rea associated with murder. 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, Bout has not even identified, much less shown, prejudice suffered from any purported ambiguity in the Indictment. A. Relevant Facts In 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 offense. (A. 55). The Court explained that the Indictment 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]eading the Indictment to include facts which are necessarily implied by the specific allegations therein, the Indictment sufficiently alleges the essential facts constituting the offense[s] charged.including that Bout act[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 incorporating 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 murder, 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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27 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 sufficiently 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 Law Section 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 premeditated 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 a first-degree murder; any other murder is murder in the second degree. [I]n the context of second-degree murder in federal law, the requisite malice can in some circumstances be found when the assailant acts with awareness 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 care such that he was aware of the serious risk of death).
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28 Manslaughter, on the other hand, is expressly defined as the unlawful killing of a human being without 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 charged and 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 prosecutions for the same offense. United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (quoting Hamling 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 States v. Sabbeth, 262 F.3d 207, 218 (2d Cir. 2001). It is well settled that in an indictment for conspiring to commit an offensein which the conspiracy is the gist of the crimeit is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object 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 rationale is that the crime of conspiracy is complete whether 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 consistently 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 alleged crime. United States v. Alfonso, 143 F.3d at 776 (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. Discussion 1. Counts One and Two Sufficiently Allege Conspiracies to Murder Bout alleges that Counts One and Two did not sufficiently allege the objects of the two conspiracies namely, murderbecause those counts alleged only in generic terms that the defendant[] conspired to kill (Br. 40 (emphasis in original)), without either (i) expressly alleging that the type of killing was murder rather than manslaughter, or (ii) alleging that the conspirators had acted with malice aforethought, which is the mens rea associated with murder (Br. 38 (asserting that defect was that the words murder, malice aforethought, premeditation or any other term describing the object crime of the charged conspiracy as murder are conspicuously absent)).
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30 Bouts argument requires a suspension of the common 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 different overt acts, there can be no serious question that the essential facts constituting the offense of conspiracy 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 conspiracies, 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 alleged by implicationthe malice aforethought required of murder, see Sand et al., supra, Instr. 41-4 (describing malice as acting without regard to the life 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 Colombia, 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 Indictments factual allegations described malice afore-
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31 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 conspiracies to murder, providing, with respect to conspiracy, that an offense exists only in the case of a conspiracy by two or more persons to commit a killing that is a murder as defined in section 1111(a) of this title[.] 18 U.S.C. 2332(b)(2) (emphasis added). Similarly, 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 Bouts argument that the Indictment failed to allege a conspiracy to commit murder, as distinct from manslaughter, does not appear to turn in any respect on the difference between first and seconddegree 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).
8
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 salvage an Indictment. (Br. 41). The Indictment does not need salvaging. The statutory citations merely confirm
9
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32 In any event, Bouts claim should be rejected because he fails to allege, much less demonstrate, any prejudice resulting from the purported lack of specificity in the two charges. Bout contends that he need not show prejudice where the indictment is insufficient as a result of it[]s failure to state the elements of 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 of prejudice based upon the kind of challenge to the Indictments sufficiency. To the contrary, Walsh simply observes that, in the absence of demonstrated prejudice, this Court has repeatedly refused to dismiss Indictments for the lack of specificity. Id. at 45 (citing United States v. McLean, 528 F.2d at 1257). 2. Bouts Claim of Prejudicial Spillover Is Baseless Finally, Bout contends that not only should Counts 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 conspiracies were murder, not manslaughter.
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33 In assessing a claim of prejudicial spillover from dismissed counts, this Circuit looks to several factors in determining whether the totality of the circumstances requires reversal of some or all of the remaining counts. United States v. Wapnick, 60 F.3d 948, 953 (2d Cir. 1995). One factor is whether the evidence 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 four conspiracies 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 established Bouts understanding of the FARCs objectives and 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 nature 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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34 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 inflammatory 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 designated terrorist organization, or that the FARC has engaged or engages in terrorism. (Tr. 1861). To establish 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 FARCs use of explosives, landmines, and bombs camouflaged as necklaces, soccer balls, and soup cans. (GX 1332). In sum, the evidence of Bouts violent hostility 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 assessment 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 emails 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 extradition 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 the Jury 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 inconsistent with long-settled principles of federal conspiracy 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 Facts In instructing the jury on Counts One and Two, Judge Scheindlin defined malice aforethoughtthe requisite intent for second-degree murderas follows:
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36 Malice is the state of mind that would cause a person to act without regard to the life of another. To satisfy this element, the defendant must have acted consciously, with the intent to kill another 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 grossly deviated from a reasonable standard of care such that he was aware of the serious 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 motion to set aside the verdict, Bout objected to the portion of the instruction concerning reckless and wanton conduct. The basis of Bouts objection was that one cannot conspire to do something reckless. (Tr. 1168; see also id. 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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37 that the reckless and wanton conduct standard satisfies 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. Chagra, 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 connection with a charge of conspiracy to commit seconddegree 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 district for charges of conspiracy to commit murder. (A. 68). Finally, Judge Scheindlin noted that although this Court has rejected this instruction for the different offense of attempted murder, see United States v. Kwong, 14 F.3d 189, 194 (2d Cir. 1994), no federal court has rejected a reckless and wanton instruction on a murder conspiracy offense based on federal statutes. (A. 67). B. Applicable Law This Court will review challenged jury instructions de novo but will reverse only if all of the instructions, 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 instruction faces a heavy burden; he must establish both 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 prejudice. 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 reasonable 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. Discussion Bout 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) reckless and wanton conduct that grossly deviated from a reasonable 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 murder. (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 overcome 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 requirement has held that it can, and (ii) consistent with the leading 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 Accorded with Well-Settled Principles of Federal Conspiracy Law The gravamen of Bouts argument is that it is not possible to conspire to achieve an unintended consequence. (Br. 32-35). Thus, he says, even where a crime . . . is defined in terms of recklessly or negligently causing a result, or the crime permits liability without fault (i.e., strict liability), defendants may nonetheless only be convicted for conspiring to commit that crime if they purposefully intended what the underlying crime would not, itself, have required 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 in United States v. Feola, 420 U.S. 671 (1975). At issue
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40 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), required 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 construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer.). Having resolved the issue for the substantive offense, the Court next considered the contention that the Government must show a degree of criminal intent in the conspiracy count greater than is necessary to convict for the substantive offense. Id. at 686. The Court rejected this proposition, holding instead that where a substantive offense embodies only a requirement of mens 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 textual 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, declined to require a greater degree of intent for conspiratorial responsibility than for responsibility for the underlying substantive offense, id. at 688. Relying on Feola, this Court has repeatedly refused to engraft upon federal conspiracy offenses a more stringent intent element than what the underlying 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 murder required a greater intent than the intent to commit great bodily harm required by the underlying murder 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 proscribed result, but also by the knowledge that the result would likely occur. In United States v. United States Gypsum Co., 438 U.S. 422 (1978), the defendants 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 effectuate the object of the conspiracy. Id. at 444 n.20. With respect to the latter requirement, the Court considered whether the conspiracy conviction required a demonstration that the disputed conduct was undertaken with the conscious object of producing [anticompetitive] effects, or whether it is suffi-
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42 cient that the conduct is shown to have been undertaken with knowledge that the proscribed effects would most likely follow. Id. at 444. The Court decided on the latter, conclud[ing] that action undertaken with knowledge of its probable consequences would satisfy the mens rea requirement for a pricefixing 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 the federal murder statute. [U]nlike most traditional criminal statutes, neither the Sherman Act nor the federal murder statute precisely identif[ies] the conduct 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 Court held that [w]here carefully planned and calculated conduct is being scrutinized in the context of a criminal 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 commentators and state decisions that Bout cites, the foregoing analysis makes clear that Bouts theory is inconsistent with well-settled principles of federal conspiracy law. 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 disabling, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, the authorized operation of aircraft); 18 U.S.C. 33(a) (intentionally endanger[ing] the safety of any person aboard a motor vehicle or doing so with a reckless disregard for the safety of human life); 8 U.S.C. 1324(a)(1)(A)(iv) (encourage[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law). Under Bouts theory, none of these conspiracy provisions, despite their plain language, could rely on the recklessness standard of mens rea.
10
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44 2. Federal Courts Have Approved the Instruction Issued Here Not surprisingly in light of the foregoing, the only court of appeals to consider this issue in the specific context of a conspiracy to violate Section 1111(a) rejected the very argument Bout makes here. In United States v. Chagra, 807 F.2d 398 (5th Cir. 1986)a case involving only a conspiracy and no substantive chargethe defendant challenged the district courts instruction on malice aforethought, which had been defined as an intent willfully to act in callous and wanton disregard of the consequences of human life. Id. at 402. The defendant asserted, as Bout does here, that the [district] courts instruction did not demand proof of an intent to kill but only of reckless acts causing the death of another. Id. The Fifth Circuit did not agree, explaining, There is no reason that a defendant cannot have this intent at the time he joins a conspiracy to kill. Id. The Court then approvingly quoted the district courts reasoning: [The] evidence could very well show that . . . [the defendant] was aware of her husbands dangerous violent tendencies, and that her encouragement of his stated intent to murder [the victim] demonstrated conduct which was so reckless, so wanton and such a gross deviation from a reasonable standard of care that a jury could find her guilty of conspiracy to commit intent-to-doserious-bodily injury murder. Id. (quoting district court). Bouts attempts to distinguish Chagra are baseless. (Br. 37-38). Bout misleadingly argues that whether conspiracy to commit reckless murder is in
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45 fact a crime was neither raised by a defendant nor addressed by the court in that case, and that the Fifth Circuit considered only whether one can conspire to commit unpremeditated murder. (Br. 37). While it is clear that the Fifth Circuit began by addressing whether there can be a conspiracy to commit unpremeditated murder, United States v. Chagra, 807 F.2d at 401-02, the Court then turned to and rejected the defendants assertion that the jury should not have been permitted to find her guilty based on reckless and wanton conduct, id. at 402. Bout further claims that Chagra has never been cited in any decision in any court or by any commentator to support a holding that conspiracy to commit reckless murder is a chargeable offense. (Br. 38). Again, he is wrong. In United States v. Branch, 91 F.3d 699, 735 (5th Cir. 1996)involving the wellknown events concerning the Branch Davidiansthe Court affirmed convictions for the use of a firearm in relation to a predicate crime of violence, where the underlying crime was the offense of conspiracy to kill federal agents. The Court rejected the defense claim that there was insufficient evidence that he conspired to murder federal agents with malice aforethought, and observedin the context of the underlying conspiracy offensethat malice aforethought includes an intent willfully to act in callous and wanton disregard of the consequences to human life. Id. at 735 (citing Chagra, 807 F.2d at 404). Moreover, there does not appear to be a single federal decision rejecting Chagra, or, for that matter, concluding that the instruction Bout challenges here is improper with
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46 respect to a federal conspiracy to commit seconddegree murder. It also bears emphasis that Judge Scheindlins instructions were patterned upon Judge Sands Modern Federal Jury Instructions for murder, which suggest defining malice aforethought as including reckless and wanton conduct on the part of the defendant which grossly deviated from a reasonable standard of care such that he or she was aware of the serious risk of death. Sand et al., supra, Instr. 41-4. 11 Notably, although those instructions recommend that the reckless and wanton conduct language should not be used in cases charging attempted murder or assault with intent to kill, id. at 41-4 n.1, they have no such admonition regarding conspiracy to commit murder. 12 Accordingly, a number of district courts This Courts decision in United States v. Velazquez, 246 F.3d 204 (2d Cir. 2001), supports the use of Judge Sands definition of malice aforethought in conspiracy cases. In Velazquez, this Court discussed the method of determining the underlying offense under U.S.S.G. 2H1.1(a) for purposes of sentencing two prison guards convicted of depriving, and conspiring to deprive, an inmate whose death they had caused of his civil rights. Id. at 206. In this context, the Court approvingly cited the definition of malice provided by Judge Sands model instruction without any suggestion that the presence of a conspiracy count altered its application. Id. at 214.
11
Judge Sands recommendation against this charge in cases of attempted murder is based upon
12
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47
United States v. Kwong, 14 F.3d 189 (2d Cir. 1994), which reversed an attempted murder conviction where the reckless and wanton conduct language was used. Relying on the observation in Braxton v. United States, 500 U.S. 344 (1991), that attempt requires the specific intent to commit the unlawful act, Kwong concluded that reckless and wanton conduct would not suffice to show such an intent to kill. United States v. Kwong, 14 F.3d at 194. Other than United States v. Muyet, 994 F. Supp. 501 (S.D.N.Y. 1998) which Bout, ignoring Chagra, erroneously characterizes as the only . . . federal district court to address the conspiracy to commit reckless murder issue in the criminal context (Br. 35)Bout cites no case that has ever suggested that Kwong should be extended to conspiracy cases. And Bout is simply wrong that Muyet address[es] the issue. In that case, the district court was considering a post-trial sufficiency of the evidence claim and cited Kwong in the course of summarily observing that it had instructed the jury at trial that charges of conspiracy to murder and attempted murder require proof of an intent to kill. United States v. Muyet, 994 F. Supp. at 517. Nor are United States v. Jones, 681 F.2d 610 (9th Cir. 1982), or United States v. Perez, 43 F.3d 1131 (7th Cir. 1994), relevant: both hold merely that the offense of assault with intent kill requires a specific intent to murder, not malice aforethoughta proposition which has no bearing on the propriety of a malice aforethought instruction for the substantive or conspiracy offenses of second-degree murder.
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48 have included the same (or similar) language regarding reckless or wanton conduct with respect to conspiracy to commit murder offenses in significant terrorism cases. See, e.g., United States v. Ghailani, No. 98 Cr. 1023 (LAK) (S.D.N.Y. 2010), at Tr. 2469-70 (with respect to conspiracy to kill U.S. nationals (Section 2332), charging: [T]he government doesnt have to prove a subjective intent to kill. It is enough for the government to prove reckless and wanton conduct[,] which conduct so grossly deviated from a reasonable standard of care that the person who undertook that conduct was aware of the serious risk of causing death.); United States v. Kassir, No. 04 Cr. 356 (JFK) (S.D.N.Y. 2009), at Tr. 2259 (substantially the same instruction for conspiracy to murder and maim overseas (Section 956)); United States v. Lynne Stewart, et al., No. 02 Cr. 395 (JGK) (S.D.N.Y. 2005), at Tr. 12,330-31 (substantially the same instruction for Section 956 conspiracy). 3. Any Error Was Harmless Finally, even assuming arguendo a defect in the jury instructions, which there was not, any error was harmless. Even if the District Court had omitted the reckless and wanton conduct portion of the instruction, the jurys finding of guilt would have been the same. United States v. Ekinci, 101 F.3d 838, 843 (2d Cir. 1996). As an initial matter, the evidence overwhelmingly showed that Bout had the intent to kill. In addition to his extensive research on the FARCs violent opposition to the United States, Bout demonstrated his in-
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49 tent to kill by repeatedly expressing solidarity with the FARCs aim of using his weapons to kill American pilots stationed in Colombia. (See, e.g. GX 1002-T, at 88-89 (Bout: That is why I have the same problems with the gringos. . . . Yes, yes, were together. . . . And we have the same enemy.); id. at 138 (Carlos: [W]e want to start . . . start killing American pilots.. . . Bout: Yes, yes. Were, were going to prepare everything.)). 13 Second, nothing about the defense in this case remotely turned on the definition of malice aforethought. Bouts entire defense was that he was de Smulian testified that during his time with Bout in Moscowand while he s[a]t here in court to testifyhe did not want to kill Americans and couldnt really care about it (Tr. 1410); nonetheless, he consistently had understood that the FARC wanted to use the weapons that they had requested to kill Americans in Colombia, and was prepared to go forward with the deal anyway. (Tr. 1477-78). Although Smulian lacked a subjective desire to kill Americans, there is no question he fully understood that the purpose of the arms deal was to kill Americans in Colombia; in that regard, he had the intent to kill. See Tison v. Arizona, 481 U.S. 137, 150 (1987) (Traditionally, one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.) (quoting W. LaFave & A. Scott, Criminal Law 28, p. 196 (1972)) (emphasis added).
13
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50 ceiving Carlos and Ricardo with false promises of weapons so that they would purchase two cargo airplanes from him. Finally, the Government never argued the reckless and wanton conduct standard to the jury, relying instead on the theory that Bout and Smulian always understood that the FARC would use the weapons to kill Americans stationed in Colombia. See United States v. Mavashev, 455 F. Appx 107, 111 (2d Cir. 2012) (error in unquestionably erroneous charge was harmless where the government did not argue this portion of the charge at all in its summation). 14 POINT VI There Was Jurisdiction Over Count Three Finally, Bout challenges the District Courts jurisdiction over Count Three. Bout argues that Count Three should be dismissed because the evidence that Even assuming arguendo that any error in the instruction was not harmless, Bout has not argued nor could hethat this would affect the convictions on Counts Three and Four. If there was error in the instructions on Counts One and Two, it occurred at the end of trial and had no impact on the proof that was properly admitted on those counts. There is no logical reasonand Bout has correctly not even attempted to offer onewhy any purported error in the definition of mens rea for the first two counts would affect the jurys verdict on the other two counts.
14
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51 he conspired to acquire and export SAMs in violation of Section 2332g did not satisfy that statutes jurisdictional provisions (Br. 46-50), and the issue of jurisdiction should have been submitted to the jury (Br. 52-55). Bouts argumentswhich were raised and rejected beloware without merit. A. Applicable Law Section 2332g was enacted as part of the Prevention of Terrorist Access to Destructive Weapons Act of 2004, Pub. L. No. 108-458, Title VI, 6903, Dec. 17, 2004, 118 Stat. 3770, which was intended to combat the potential use of weapons that have the ability to cause widespread harm to United States persons and the United States economy (and that have no legitimate private use) and to threaten or harm the national security or foreign relations of the United States, id. 6902. Subsection (a) of the statute, titled [u]nlawful conduct, provides, in relevant part, that it shall be unlawful for any person to knowingly produce, construct, otherwise acquire, transfer directly or indirectly, receive, possess, import, export, or use, or possess and threaten to use an anti-aircraft missile or an anti-aircraft missile launcher. 18 U.S.C. 2332g(a)(1)(A)-(B). Subsection (b) delineates five different bases for jurisdiction: (1) the offense occurs in or affects interstate or foreign commerce; (2) the offense occurs outside the United States and is committed by a United States national; (3) the offense is committed against a United States national while the national is outside the United States; (4) the offense is committed
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52 against property that is owned, leased, or used by the United States or any of its departments or agencies, whether the property is within or outside the United States; or (5) an offender aids or abets or conspires to commit an offense under the statute with a person over whom jurisdiction exists under this subsection. Id. at 2332g(b)(1)-(5). B. Relevant Facts 1. The Jury Instructions for Count Three In advance of trial, Bout requested a jury instruction for Count Three that required the jury to determine whether Bout had: (1) entered into an agreement; (2) to knowingly acquire, produce, construct, transfer directly and indirectly, import, or use; (3) an anti-aircraft missile. (SA 111). Bouts proposed charge did not ask the jury to make any finding concerning jurisdiction. The District Courts proposed instruction for Count Three substantially tracked Bouts request, and Bout offered no objection to it at the charge conference. (Tr. 1145-97). 15 Accordingly, the jury was instructed that it had to find two elements: first, the existence of the charged conspiracy, the purpose of which was to acquire and export anti-aircraft missiles; and second, that the defendant intentionally joined and participated in the conspiracy during the At the request of the Government, the instruction was modified slightly at the charge conference, with no objection by Bout. (Tr. 1171-74).
15
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53 applicable time period in order to further its unlawful purpose. (Tr. 1857-58). Consistent with Bouts requested charge, the District Court gave no instruction concerning jurisdiction. 2. The District Courts Denial of the Defendants Post-Trial Motion After trial, Bout advanced, and the District Court rejected, each of the jurisdictional claims he now raises on appeal. Bout argued that the Government had failed to establish jurisdiction because (i) Bouts conspiracy to acquire or export anti-aircraft missiles could not, by its terms, be an offense against property of the United States, as required to satisfy what Bout claimed was the only plausible jurisdictional basis in the statute, 16 and (ii) in any event, the Governments proof was insufficient to establish that this jurisdictional requirement had been satisfied. Bout also asserted that the issue of jurisdiction should have been submitted to the jury. Describing Bouts interpretation of the statute as mistaken, Judge Scheindlin reasoned that the conspiracy charged in Count Three could be committed against property owned or used by the United States, and that the evidenceparticularly the evidence demonstrat[ing] that Bout knew that the helicopters against which the missiles would be used were Bout did not acknowledge, as he does on appeal, that there is a similar jurisdictional basis if the offense is committed against a United States national. (Br. 49).
16
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54 flown bywhich means used byU.S. pilots showed that this offense was, in fact, committed against property owned or used by the United States. (A. 71). As to whether the issue should have been presented to the jury, Judge Scheindlin noted that Bouts proposed jury instructions for Count Three did not include any jurisdictional element, and that this Court, in Al Kassar, had affirmed jury instructions for Section 2332g that did not contain a jurisdictional element. (A. 72). Judge Scheindlin found that, in any event, there was sufficient evidence to support the jurisdictional elements. (Id.). C. Discussion 1. There Was Sufficient Evidence of Jurisdiction Over Count Three Bout claims that jurisdiction over the offense of acquiring and exporting SAMs cannot be predicated on Section 2332g(b)(3) or Section 2332g(b)(4) because the act of acquiring and exporting missiles cannot be committed against a person or property. Bout further argues that the evidence was insufficient to establish that the SAMs would have been used against American pilots and property. These arguments, which rely on a tortured analysis of Section 2332g and the evidence in the case, should be rejected. Bouts argument that the offense in this case could not have been committed against United States nationals or property should be rejected for two principal reasons. First, as stated in Count Three and as the District Court advised the jurythe offense charged was that Bout agreed to acquire and
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55 export surface-to-air missile systems to enable the FARC to attack United States aircraft in Colombia. (A. 34 ( 15); Tr. 1856). Thus, the offense was committed against nationals and property of the United States, and Bouts attempt to artificially constrict the meaning of the term offense is baseless. See United States v. Bengis, 631 F.3d 33, 40-41 (2d Cir. 2011) (rejecting narrow focus on elements of conspiratorial object and considering purpose and effects of conspiracy in determining that offense of conviction constituted offense against victims property for restitution purposes). Second, Bouts narrow reading of what constitutes the offense runs contrary to Congresss clear purpose in passing Section 2332g, which was to effect a maximally broad measure to combat not just the use, but the potential use of missiles and missile launchers. Pub. L. No. 108-458, Title VI, 6902, Dec. 17, 2004, 118 Stat. 3770. In order to carry out this purpose, the statute not only prohibits the use and threatened use of SAMs; it also proscribes all of the acts contributing to their ultimate use, including their construction, transfer and possession. Under Bouts improper reading of the statute, however, two of its five jurisdictional baseswhich confer jurisdiction based on whether the offense was committed against American people or property would apply only to the actual or threatened use of a missile. Thus, those two jurisdictional bases could never apply to any of the other eight acts that violate the statuteacts that Congress plainly outlawed precisely in order to prevent wrongdoers from ever
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56 reaching the position of being able to use or threaten the use of an anti-aircraft missile. It is inconceivable that Congresswhich enacted a broad statute that (i) prohibited ten separate acts relating to SAMs, and (ii) provided five separate jurisdictional bases pursuant to which the conduct could be prosecutednonetheless intended for those jurisdictional bases to be read so narrowly. Accordingly, Bouts assertion that the offense charged in Count Three could not meet the jurisdictional requirement is meritless. 17 In the midst of his challenges to Count Three, Bout briefly renews another due process claim raised belownamely, that there was an insufficient nexus between his conduct and the United States. (Br. 5052). Bout argues that the interests of the United States and its citizens were not implicated by his conduct because the members of the United States armed forces assisting the Colombian government against the FARC had ceded their status as United States citizens and employees and become agents of the Colombian government. Bouts theory ignores the evidence that he agreed to provide the weapons with the express understanding that they would be used to target American pilots precisely because they were American. As Judge Scheindlin correctly concluded in rejecting this argument below, [T]he record at trial demonstrate[d] that Bout believed he was providing weapons to the FARC to be used against U.S. helicopters and pilots such that he could have reasonably anticipated being haled into a U.S. Court. (A. 73-74).
17
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57 Also meritless is Bouts claim that even if there could have been jurisdiction over Count Three, the Governments evidence of it was insufficient. Where jurisdiction over a substantive offense turns on the existence of a particular circumstance, to establish jurisdiction for a conspiracy [to commit that offense], all that need be shown is the possibility or potential of that circumstance. United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010). Here, the evidence unquestionably showed far more than the possibility or potential that the conspiracy would be committed against property and nationals of the United States, as required by Sections 2332g(b)(3) and (4). Rather, the proof showed that Bout and Smulian understood that the SAMs they agreed to provide to the FARC would be used to shoot down American pilots and helicopters. (See, e.g., GX1002-T at 138 (Carlos: And we want to start . . . start killing American pilots.. . . Bout: Yes, yes. Were, were going to prepare everything.)). As Judge Scheindlin correctly reasoned in rejecting Bouts argument below, [T]he evidence demonstrated that Bout knew that the helicopters were flown bymeaning, used byU.S. pilots. (A. 71).
Because the aim of Bouts provision of weapons was to cause harm to U.S. citizens and interests, the jurisdictional nexus between his conduct and the United States is plain. Al Kassar, 660 F.3d at 118.
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58 2. If Jurisdiction Was Required to Be Submitted to the Jury, Any Error Was Not Plain Error Finally, Bout contends that his conviction on Count Three should be vacated because the District Court failed to submit the issue of jurisdiction to the jury. (Br. 52-55). Bouts request for an instruction that did not seek such a jury finding is arguably a true waiver of this claim. United States v. Hertular, 562 F.3d 433, 444 (2d Cir. 2009). At a minimum, Bout recognizes that review is, at most, for plain error. (Br. 53). Although jurisdiction is often considered an offense element for the jury, see United States v. Parkes, 497 F.3d 220, 226 (2d Cir. 2007) (Hobbs Act), Section 2332g is not such an offense. Congresss decision to set the jurisdictional provisions in a separate subsection of Section 2332g is an indication of its intention that the jurisdictional basis for prosecution not be treated as an offense element. Cf. Castillo v. United States, 530 U.S. 120, 124-25 (2000) (observing that structure of statute may indicate what Congress did or did not intend to be an element). In Al Kassar, this Court, while not directly addressing this issue, approved jury instructions for the same Section 2332g offense that contained no reference to jurisdiction. The Court concluded, Viewed as a whole, the jury instruction adequately instructed the jury as to all factual findings required to support conviction. Al Kassar, 660 F.3d at 127-28 (quotation marks omitted) (emphasis added).
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59 In any event, even if the issue of jurisdiction should have been submitted to the jury, any error was not remotely plain. United States v. Needham, 604 F.3d at 678. When applying plain error analysis in this context, this Court will affirm if it is satisfied beyond a reasonable doubt that the evidence established a possibility or potential of the jurisdictional circumstance required by the underlying substantive offense. Id. Here, for the reasons already discussed and as Judge Scheindlin correctly concluded, there can be no question that the evidence established beyond a reasonable doubt the possibility or potential that the offense charged in Count Three was committed against nationals and property of the United States, as required by Section 2332g(b)(3) and (4). Indeed, in convicting Bout of Counts One and Two, the jury necessarily found that Bout understood that the purpose of the weapons deal was to attack Americans. Accordingly, Bout has not come close to showing plain error.
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60 CONCLUSION The judgment affirmed. Dated: of conviction should be
New York, New York May 1, 2013 Respectfully submitted, PREET BHARARA, United States Attorney for the Southern District of New York, Attorney for the United States of America.
BRENDAN R. MCGUIRE, ANJAN SAHNI, MICHAEL A. LEVY, Assistant United States Attorneys, Of Counsel.
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CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, the undersigned counsel hereby certifies that this brief complies with the typevolume limitation of Rule 32(a)(7)(B). As measured by the word processing system used to prepare this brief, there are 13,991 words in this brief. PREET BHARARA, United States Attorney for the Southern District of New York By: MICHAEL A. LEVY, Assistant United States Attorney

Response To Viktor Bout's Appeal

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Response To Viktor Bout's Appeal

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Case: 12-1487

To Be Argued By: ANJAN SAHNI

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60 CONCLUSION The judgment affirmed. Dated: of conviction should be

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