Yesterday in the Southern District of New York, a federal judge sentenced Viktor Bout, aka the “Merchant of Death,” to 25 years in prison and also ordered a $15 million dollar forfeiture. The sentencing of Bout comes several months after a three-week jury trial which concluded in November 2011.

The investigation of Bout began in late 2007 as part of a sting operation. Before the official investigation had begun, Bout had been listed on the Specially Designated Nationals List (SDN List), administered by the Office of Foreign Assets Control (OFAC), in 2004. To build a case against Bout, the U.S. government used two confidential sources to go undercover and try to elicit an arms deal with him. Specifically, the U.S. agents allegedly made an arrangement for Bout to provide arms to the Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Columbia or FARC) in order to facilitate an attack on American helicopters.

The method of arrest of Bout sparked international attention. In 2008, the U.S. agents were able to convince Bout to a meeting in Thailand, where he arrested shortly thereafter. Thailand, caught in the middle between a political battle between the U.S. and Russia for approximately two years while Bout was being held there, ultimately granted the United States’ request to extradite Bout in order to face prosecution.

Bout was prosecuted and convicted on charges of conspiring to kill U.S. nationals, U.S. officers and employees, conspiring to acquire and export anti-aircraft missiles, and conspiring to provide material support to a designated foreign terrorist organization, FARC. The crime of conspiracy is complete when one intentionally enters the conspiracy and commits an overt act in furtherance thereof. The crime that is the object of the conspiracy need not come to fruition. In other words, the U.S. government’s case hinged on the fact that they were able to get Bout to agree to provide arms to FARC, and were able to indict him once he committed an act in furtherance of the agreement.

Prosecutors sought life in prison for Bout; however, U.S. District Judge Shira A. Scheindlin disagreed with such a sentence and imposed only the mandatory minimum of 25 years in prison. As indicated by her comments, the judge was obviously concerned with the manner in which the case came about, mainly the fact that U.S. agents approached Bout in a planned sting operation, not the other way around. There was no evidence to support the assertion that Bout would have ever committed a crime punishable under U.S. law if he had not been lured in by U.S. agents.

Despite the high publicity of this case, including the international implications, the judge was able to look at the evidence and issue a reasonable sentence. Bout still maintains his innocence, and will most likely continue this case on to the appellate level.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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