"Viktor Bout never intended to sell arms"
Interview with Albert Dayan, attorney to Viktor Bout.
Mr. Dayan, what are the latest developments in the case against Viktor Bout?
We had a hearing in front of the Honorable Judge Eveland to suppress post-arrest statements that Mr. Bout had made when he was arrested in Thailand. Although, in my opinion, these statements are insignificant, the government still intends to use them at trial. And we have moved to suppress those statements that were made under duress. The judge had reserved her decision, and we are waiting.
At this point, have there been any improvements in the conditions, in which Mr. Bout is being held? I know from previous interviews that he’s being kept in solitary confinement, he is not receiving food that coincides with his vegetarian diet, not allowed exercise outdoors, has no access to sunlight, is also severely restricted with such privileges as the right to receive reading materials. Have there been any improvements?
Yes, we’re very grateful to the court for assisting us in facilitating that our legal visits are conducted in a room without partition; Mr. Bout and I, we sit around the table, with all our paperwork, with access to computers, so that we can listen to audio recordings in the case – in that way the defence has been facilitated tremendously. In terms of Mr. Bout’s feeding preferences, unfortunately, that has remained its status quo. He is still maintained as a high security risk and he has no access to the outside.
How would you evaluate his physical condition at this time?
He is actually doing well. He is high-spirited, and very motivated, and is looking forward to going to trial in this case.
What would you say about the Russian Consulate and the support that they have been providing? Do you feel that it’s adequate and could they possibly do something more?
We are very grateful to the Russian Consulate. It’s been providing assistance to me and Mr. Bout, and yes, they have been very helpful.
Regarding the motion you’ve recently filed to drop charges on the grounds that the US doesn’t have jurisdiction over the territories, on which the alleged crimes were committed, what can be said as far as precedents in previous similar cases? Have there been many and how did the courts rule previously?
We filed a motion to dismiss the indictment based upon what we have argued that the US lacked jurisdiction over Viktor Bout, because Viktor Bout is not a citizen of the US, the alleged crime that the US is charging him with had occurred outside the US, in a country, where - if everything the US says is true - that would not be a crime in Thailand, it wouldn’t not be a crime in Russia, where Bout is from. So, we’ve filed motions to dismiss charges based upon the lack of jurisdiction in this case. Our position is: even though there is precedent from the same court that says that the US can have jurisdiction over non-citizens, we had distinguished Mr. Bout’s case in the following way: in order for the US to have jurisdiction over a non-citizen a federal element must be inserted, or injected into a what otherwise would not be a federal crime, like this case. For example, if Mr. Bout is actually involved in a conversation to sell arms to FARC, then it may be a crime for a US citizen, but it’s not a crime for a non-citizen. And the US courts agree with that. However, once a federal element is injected into an otherwise non-federal crime, meaning that these agents, who pretended to be FARC, would say that the arms would be used to kill US nationals in Colombia – see, that is an injection of the federal element, - then the target Mr. Bout would have to commit a jurisdictional act, meaning an act in furtherance of that federal element. So, our position is that, unlike any other case, Mr. Bout was arrested at the meeting when the federal element was injected. He did not commit any jurisdictional act. He did not do anything in furtherance of that conversation. For example, he didn’t go out and buy a weapon to resell it; he did not go on to the computer and drew up a contract. So, we had argued that Bout’s case was distinguishable from other precedents, where a federal element was injected and the target, or the defendant would take some step in furtherance of that federal element.
I believe you also have plans to file an additional motion regarding illegal extradition of Bout under pressure of the US government. When will that be filed? And once again, on the basis of former precedence, how would you estimate the chances that such an appeal would be successful?
The second motion that I’m filing includes several other issues. One of the issues is, in my opinion, unlawfulness of the extradition procedure, with which Mr. Bout was extradited to the US. It’s a very difficult motion. There are other issues which I feel is premature to talk about right now. My motions are due on the 27th, they will be filed on ECF, which makes it a public record - and everyone will have access to it.
Continuing on the subject of precedents, to what extent do you see this case as one that would serve as an important precedent in establishing the ways similar cases will be charged in years to come? To what extent is it a pivotal case?
In my opinion, what makes this case different from other cases is that the usual practice of criminal prosecution, in my experience, is that a crime is committed, and the government investigates and tries to locate the criminal, and then arrests and prosecutes him. In the Bout situation it actually transpired. Bout was first identified as a person who the US wanted to arrest. They had no information that he ever intended, planned or even thought about killing Americans. This case is a situation where a government had targeted an individual and then created a scenario, or sting operation around him, and injected a federal element into what otherwise would not be a federal crime – and arrested, and extradited him.
How optimistic do you feel about the chances of this motion being granted? I mean, once again, have there been previous precedents that would give you reason to believe in the success of the motion that you filed?
The precedent with the unlawful extradition arguments is not very helpful to the defence. It does not leave me very optimistic however, because Bout’s extradition process, the targeting process, the sting operation process is so different from any other precedent that I feel he has a good chance the court may see and recognize that his prosecution was selective and unlawful.
What about the argument that Viktor Bout gave testimony under duress and under threats by DEA agents? Do you believe that that particular testimony given on the day of his arrest in Bangkok will be admissible as evidence?
Too soon to say. We’ve just had a hearing, as I’ve explained to you, and the judge has reserved the decision. And I believe the hearing was conducted in a very professional manner, and I’m optimistic.
Is the decision to exclude the very incriminating name Merchant of Death, by which Viktor Bout was referred to by Andrew Smulian in his testimony, a big victory for you in these proceedings?
The decision to extract the title of the Merchant of Death from the indictment was something that the prosecutors have agreed to do, this is not a decision of the judge. They agreed to do so only after the defence had made motions to the judge arguing that the title of the Merchant of Death is much too prejudicial to a jury. If and when this case would proceed to trial – because we tried to select jurors who are not biased, who are not overwhelmed with emotions or sympathy for either side – a title like the Merchant of Death would prejudice the defence without giving any probative value to the prosecution in this case.
I must agree that such blatantly incriminating label should be excluded. Going on now though, you are in Moscow right now and I may assume that it pertains to the Bout case. Can you give us some details of what you are doing, as far as the case at this time?
I’ve been in Moscow for two days, I’ll be here for another three. It’s been a very productive visit: I’ve had productive conversations and meetings with colleagues who are assisting me with the defence of Viktor. I’ve met with his wife, I me with other professionals in the furtherance of the investigation and preparation of the defence in this case.
Regarding the selection of jury members, to what extent do you consider it will a challenge to find and choose jurors that haven’t been biased by media coverage and allegations that are so prevalent? I guess I’m also asking to what extent this case has been publicized in the US if here are any potential jurors who do not know who Viktor Bout is and what the whole case is really about.
It’s a case that has been publicized, and it’s going to be a challenge to select a jury in this case that has not heard of Mr. Bout. Unfortunately, the fictitious title of being the Merchant of Death and having a book and a movie with Nicolas Cage where he says that the only army I didn’t supply was the Salvation Army. You know, that is completely not Bout.
I really have to say that the book and the press are bad enough, but I think the movie with the stunning performance of Nicolas Cage really seems to put things over the edge.
We will try.
I certainly wish you good luck in the jury selection process. To what extent do you consider it as a political case?
I don’t see it as a political trial, because if we find jurors – and I’m confident we’ll find jurors who have not been exposed to the Bout fiction – I’m confident we are going to get a fair trial in the US. And that is, from my experience of almost 15 years of trying cases in the US, I’m proud that in the US you get a fair trial. It doesn’t matter where you are from.
Another question I have: the upcoming preliminary trial, will it be a closed one?
No, it’s going to be open to the public, of course. That’s the beauty of our system. There are no closed-door trials in the US. And that is why I’m confident that Bout is going to get a fair trial in the US. I’m confident he is going to get a fair trial because I’m dealing with very honorable prosecutors. I’m sure jurors will see that Bout never intended to sell arms. Particularly to sell arms to US nationals. That is something that was not in his mind at all.
And he’s never done anything similar before?
Never even thought of it. Never even discussed it. And even at this meeting, of all the things that were discussed, he never intended to sell any arms to these individuals.
What can you say about the evidence that prosecution has presented thus far? Do they have any serious material evidence against Mr. Bout?
It’s too premature for me to discuss. I haven’t really received all the discovery in this case. I’ve received much and I’m still waiting for more.