Jury to Begin Deliberations in Victor Bout Case
The prosecution and defense gave their closing arguments Monday in the trial of Russian businessman Viktor Bout, accused of agreeing with pretend FARC members to sell weapons to be used against the U.S. in Colombia. The elaborate DEA sting began in Curacao, continued in Denmark, Russia, Romania and Moscow, and culminated in Thailand. The heart of the defense argument:
Mr. Dayan’s core argument was that Mr. Bout had humored the supposed FARC representatives’ interest in weapons, and even encouraged it, in an attempt to sell two cargo planes that he intended to persuade the men were necessary for the delivery of the weapons. Mr. Dayan emphasized that Mr. Bout never actually believed the men were members of FARC and said his client was “acting out” throughout their dealings; a weapons deal, Mr. Dayan said, was never agreed upon, nor did Mr. Bout ever plan on delivering any military equipment.
Mr. Dayan said that by the time of his arrest, Mr. Bout had made the transition from a legal arms-dealing trade to other business opportunities, like real estate, and the defense lawyer seemed to blame the fiasco on Mr. Smulian, Mr. Bout’s former associate. While Mr. Bout fought extradition in Thai courts after his arrest, Mr. Smulian voluntarily traveled to the United States and has cooperated with prosecutors for three and a half years.
Mr. Dayan argued Andrew Smulian, Mr. Bout's former business colleague with whom he hadn't done business in ten years, was the architect of the plan who became "intoxicated" by power and the "thought of a retirement plan."
That much is borne out by the evidence. The DEA had an informant, Mike Snow, approach Smulian and got him to meet with the two major informants, Guatemalan Carlos Sagastume and Nicaraguan Ricardo Jardenero, who proposed the deal to Smulian in Curacao, hoping he would reel in Bout.
Smulian was arrested with Bout in Bangkok, but immediately agreed to cooperate with authorities. He was brought to New York, charged and pleaded guilty to all counts, hoping for a sentence concession. Considering he's 70 years old, he needs one.
There are two competing versions of Bout that have emerged during the trial. The Government's version is that Bout has always been an arms dealer and the fake Farc informants merely provided him with an opportunity he was all too eager to accept. The Defense version is that Bout, a 44 year old businessman, was "an innocent and broke businessman in a scheme to sell a pair of old airplanes."
The Prosecution gets to give its rebuttal closing tomorrow, and then the jury will retire to deliberate. Which way will they go? The Government is confident the jury will convict. Legal experts seem to agree.
Defense Attorney Albert Dayan may have scored some points with the jury though. He began by telling them "he was nervous and thanked Mr. Bout for “trusting me with the most difficult decision of his life.” During opening, he had told the jury he was "just a lawyer from Queens."
I could end the post here, as I've updated the same news everyone else has posted. But last night I wrote a lot more, extrapolating from the Victor Bout case and finding the hands that fed the prosecution. I held off on posting it, but it seems the time is now right to continue the story. If you want more, with links to documents, keep reading. If you are not interested, you are free to stop reading now.
This may be a quick jury decision of guilty as predicted, but what if the jury had been told in court of some of the backstory? Which way would they vote then? My end conclusion: The case is not so slam dunk when you consider the Thai extradition case and the U.S powers that intervened mightily to get the Thai Court to do a 180 and reverse its decision denying extradition, resulting in Bout being brought to the U.S. for trial.
Starting with the trial and working backwards, the prosecution seems to have streamlined its case. Its witnesses were a DEA agent, two DEA informants, a duped 70 year old co-conspirator who is getting a sentencing deal for testifying against Bout, and two witnesses who said Bout sold arms in 1997-1998. Its evidence consisted of surreptitiously recorded phone calls and meetings, e-mails and records obtained during searches of Smulian and Bout's computers.
The big piece of evidence was a two hour recording of a meeting in Thailand between Bout, co-conspirator Andrew Smulian, and informants identified as Carlos Sagastume and Ricardo Jardenero. Sagastume, a former drug trafficker in Guatemala, has received $8.5 million from the U.S. Government for cooperating in 150 cases since the DEA brought him to America in 1998. He received $7 million from the State Department for a single case, (presumably that of arms dealer Monzer al-Kassar.) The transcript of the two-hour recorded meeting in Thailand is available here (part 1) and here (part 2.)
The defense did not put on witnesses. It is arguing the prosecution has the burden and failed to meet it.
A couple of interesting things: The informants gave their names when testifying. Even a third informant, Mike Snow, who introduced Smulian to the other two informants, was identified. Are they so rich now they are retiring and no longer fear having their identities exposed?
Here's an interesting interview with former DEA Agent Mike Braun on the how the sting developed and went down.
The Bout sting went live in November 2007. The DEA put together a team of three trusted informants code-named CS-1, CS-2, and CS-3 (CS stands for “confidential source”). The first man had dealt with Bout in the mid-1990s, when Bout had tried to hire him and Andrew Smulian, a 46-year-old British former military pilot, to air-drop crates of weapons into Chechnya. Smulian and CS-1 had refused, but CS-1 had kept in touch with Smulian. The plan was for him to vouch for the two other informants, who were posing as FARC envoys.
Bout had traveled from Russia to Thailand for the meeting with a man named Mikhail Belozersky, believed to be his bodyguard. Belozersky was detained but ultimately not charged. He was quite vocal about the unpleasant treatment he endured during his detention. Apparently, he was not at the majority of the meeting even though his voice is on the recorded tape.
Another interesting note is how the case was made: Wiretaps, not in the U.S., but in Romania, Denmark, the Netherlands Antilles and Thailand.. all conducted at the request of the DEA who provided help when needed. The Government says the wiretaps were judicially authorized in the respective countries. One of the things we should fear from a guilty verdict in the Bout case is the Government will be so enthused with the privacy intrusive technique it will expand its electronic surveillance to other countries, and use them for more routine crimes -- like drugs (under the rubric drug crimes are now narco-terror crimes.) DEA agents aren't allowed to do this on their own in foreign countries. So Congress has given them beaucoup bucks to train law enforcement in other countries on how to wiretap. Then the other country turns the tapes over to the DEA and presto, they are admitted in federal court against the unsuspecting person who was snooped on with no requirement they comply with Title III. A near-perfect end run around our strict wiretapping laws and the Fourth Amendment.
From the Congressional testimony of a terror investigator who wrote a book on Bout:
This human intelligence was supplemented by the use of legal, judicial wiretaps, carried out by several allied nations, from Romania to Denmark, the Netherlands Antilles to Thailand. This seamless international cooperation was vital, and hard-won. It is a key to leveraging U.S. aid and goodwill to achieve the key U.S. policy goal of arresting Mr. Bout. It has the additional benefit of being admissible in U.S. courts. Where technological help was needed, it was provided, but always with the full participation of the host agencies.
The original criminal complaint against Bout is here, which also states that at the request of the DEA, Romania obtained wiretaps against Bout.
Bout's long battle against extradition, which at first met with success in Thailand, was later lost. The Thai extradition order is here. Bout's defense is that he was trying to sell two airplanes, not arms to the fake FARC agents. In this interview, he said he realized at the meeting in Thailand (the first time he met them in person), they were "clowns." His attorney said he led them along the way they were leading him along because he was hoping they would buy his two planes.
For the tensions the case has caused between the U.S. and Russia, see this Bangkok Post article.
Also good reading: this Wiki-leaks cable written August 13, 2009, days after Thailand issued its first ruling against extradition, suggesting the U.S. tell Thailand it will re-evaluate its financial commitment to Thailand's narcotics efforts if it doesn't buckle up, and then suggesting Obama or Holder intervene:
We suggest that Washington strongly consider the following actions: -- In addition to the Department calling in the Thai Ambassador, we recommend that Attorney General Holder also call him in. AG Holder could point out the extensive U.S. commitment of law enforcement resources to Thailand (DEA and other), as well as our judicial training efforts, and that a statement from the RTG as outlined above would be very helpful as the U.S. decides where best to commit its law enforcement resources around the world.
A senior DEA official might also wish to sit in to highlight the massive DEA commitment to Thailand. (Note: Our DOJ Attache who has led our legal efforts on Bout here will be in Washington on August 20-21. End Note.) --
Discussion of a POTUS telcon to PM Abhisit has been under way for some time; they have not spoken in the seven months both have been in office. We suggest that the call be accelerated and that it include a serious discussion of our concerns over the implications of the Bout verdict, as outlined above. We believe POTUS involvement on Bout would have significant effect here. --
It also suggests getting the Colombian government involved in both Thailand and Russia:
We suggest Washington engage the Colombian government on the implications of the Bout verdict. We suggest inquiring whether Colombia considers the FARC to be a terrorist organization, whether it would be willing to submit a brief in the appeals process, and also make public statements to that effect. We also suggest exploring whether Colombia would be willing to ask Thailand for Bout's extradition while he (hopefully) is still in detention during the appeals process. (Note: There is no Colombian Embassy in Bangkok; the Embassy in Kuala Lumpur covers Thailand. We understand the Thais cover Colombia from their Embassy in Lima. End note.) It would be useful if the Government of Colombia also raised its concerns in Moscow.
...While the Bout focus is now on Thailand, this is at heart a U.S.-Russian matter. The Department may wish to make clear to Moscow our concerns on Bout's activities and seek assurances that they will cease. Also, we should consider asking the Russians to prosecute Bout if, in the end, he walks here in Thailand. At the very least perhaps we could force the Russians to publicly refuse to do so.
The DEA has indeed become our new global holy warriors. And even though DEA Agent Michael Braun, who says he was the one who conceived of the sting against Bout, is no longer with the DEA, he's still urging Congress to give the DEA even more power. Here's his written testimony from two weeks ago to the Subcommittee on Terrorism, Nonproliferation, and Trade.
I happen to believe that the DEA needs additional extra-territorial teams working as part of the agency’s Special Operations Division (SOD) (only two currently exist), Foreign-Deployed Advisory and Support Teams (FAST), and International Training Teams, and the logistical and support resources required to field them in the most remote and dangerous areas of the world. That’s where our Nation’s most threatening adversaries now operate, and the DEA should be there as well building cases with trusted counterparts against the thugs who want to do us harm.
It was the DEA extra-territorial teams that brought some of the world’s most notorious criminals to justice over the past seven years, the likes of which included Haji Bashir Noorzai, Monzer al-Kasar, Haji Juma Khan, and Victor Bout, just to name a few. You can only imagine what they
could do if they had more than two such teams, especially when considering that each team
consists of only about 10 agents.
He even asks for more DEA funding -- and more expansion in Africa:
The DEA requires the funding and human resources necessary to open additional offices in Africa, and other austere locations where our adversaries have migrated beyond the rule of law. The DEA, widely recognized as having the most robust and accurate human intelligence program in our government, requires the funding necessary to keep this critically important program in pace with growing demands.
And get this: based on the recent arrest of the Iranian-American, he asks for more money for confidential informants:
The plot to assassinate the Saudi Arabian Ambassador to the U.S. that was foiled today by the FBI and DEA hinged on a DEA confidential informant who had been hired to carry out the attack—on U.S. soil. A member of the Iranian Quds Force and another suspect, believing the DEA informant to be a member of the Los Zetas drug trafficking cartel, offered to pay the informant several hundred thousand dollars for the assassination, and allegedly paid the informant approximately one hundred thousand dollars as a partial payment for the murder. I cannot think of a better example to use in stressing the importance of additional funding for the DEA’s confidential informant program then this case.
What else does he want? More wiretaps:
...[A] more productive way to accomplish our goals and objectives, especially when considering that most terrorist financing takes place clandestinely, is by doing business the old fashioned way: exploiting law enforcement confidential informants, judicially approved telecommunications intercepts, and complex international, multi-agency conspiracy investigations.
Braun argues the DEA should not just be limited to drug offenses:
However, DTOs [drug trafficking organizations] receive the vast majority of their contraband revenue from the global drug trade, and the DEA and other U.S. law enforcement agencies have all the jurisdictional authorities required to investigate other crimes the DTOs engage in....
He says the DEA is ready to attack on foreign soil:
The DEA has the largest U.S. law enforcement presence abroad, and is operationally engaged with foreign colleagues in bi-lateral investigations in all of the agency’s 87 foreign offices. The agency is engaged in far more than liaison work abroad, has trained and vetted thousands of their counterparts around the world, and has worked hard over the last 40 years to build the infrastructure needed to attack the DTOs on their own soil.
Finally, he says, we need to expend more resources to fighting drugs because its just as important, if not more important than our fight against terrorism.
Drugs provide a never-ending funding stream straight into the war chests of terrorist and insurgent organizations that are hell bent on destroying our way of life. If we continue our war against terrorism with far greater enthusiasm and vigor than we battle drugs, we are most likely in for a very long and costly fight.
Who's ex-DEA Agent Michael Braun working for now? He's a managing partner at Spectre Group International, LLC, which, no surprise here, does contract work for the DEA and Homeland Security. From the cached page on their website listing their projects:
SGI has provided services in support of the U.S. Department of State (DOS), U.S. Drug Enforcement Administration (DEA), U.S. Department of Defense (DOD), U.S. Department of Homeland Security (DHS), and private industry clients. The following list describes some of the projects SGI has successfully completed, or is currently working on.
*Counter Narcotics and Counter Narco-terrorism Operational Support
*DEA Scientific Studies
*Afghanistan National Drug Abuse Survey
*Law Enforcement/Counternarcotics Mentoring and Training
*Logistics Support in High Threat Environments
*Air Cargo Support Services in Afghanistan
*DOD Counter Narcoterrorism Program Office *(CNTPO) Program and Operations Support
* Money Laundering and Financial Investigations.
And on a related note: The DEA agent who actually made Bout's arrest, Thomas Pasquarello, a 29 year veteran and DEA Asian Regional Director, retired in 2010 (around the time Bout's extradition order went through in Thailand) to become the Chief of Police of Sommerville, MA, with a jurisdiction of 4 miles. He said he was thinking ahead to retirement, but he was only 52. (Mandatory retirement for DEA is 57.) He sounds a little over-qualified for the job. In addition to being DEA's Asia regional director with oversight over 30 Asian countries:
He has extensive diplomatic experience, holds a Masters in Public Administration from Northeastern University and is a Senior Executive Graduate from the John F. Kennedy School of Government. As the DEA Agent in Charge for Connecticut and Rhode Island he dismantled violent criminal factions and gang operations in cities such as Providence, Hartford and New Haven, bringing law enforcement together with social services in order to eliminate the root causes of organized criminal behavior, according to a statement from the city. He also is conversant in Spanish, Italian, French and Thai.
He made this comment to the NY Post about Viktor Bout, explaining there would never be "another one like him:"
“I’m not sure who would have the caliber of his intellect, business finesse, personality,” he said. “It’s just a brilliant mind.”
I wonder why Braun went on to Spectre International while Pasquarello became a local police chief in a small town with a 4 mile jurisdiction? And why both take credit for initiating and leading the Bout investigation and take-down. (Braun here and Pasquarello here.) Neither seems to take credit for the mistakes the DEA made in the beginning that initially derailed the extradition.
I wonder how much this sting and prosecution cost. I've read estimates of $30 million, but have'n't verified it. How much will it cost to incarcerate Victor Bout in America for the rest of his life? That cost I do have: As of June, 2011, the monthly cost of imprisonment at the federal level is $2,357.01. Bout is 44, if he lives to 74, we'll pay $28,000 a year for 30 years or $840,000. And that's just to house him. We'll also have to pay for his medical care. All this for a man who had never been to the U.S. before the U.S. snatched him in Bangkok and flew him here. Will anyone in Congress have the guts to rein in the spending authorization of our new Global Holy Warriors? Doubtful. They're too busy drinking the DEA koolaid and cheering every time a news article pops up announcing a drug bust in Podunk linked to cartel members. They really think the DEA is catching cartel bosses in Podunk and making the world safer.
I'll leave you with some more court documents from the Bout Case:
- Order Denying Motion to Dismiss Based on Manufactured Jurisdiction
- Order Denying Motion to Dismiss on Vindictive Prosecution and Violation of Extradition Law
- Order Granting Bout's Motion to Suppress Post-Arrest Statements as Involuntary and Coerced
- Government's motion in limine to introduce evidence from 1990's
- May 24, 2010 Thai Order Reversing earlier denial of extradition.
- August, 2009 Thai Order Denying Extradition
- Feb. 13 wikileaks cable
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