United States v. Bout , 666 F. App'x 34 ( 2016 )

15-3592-cr
United States v. Bout
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 21st day of November, two thousand sixteen.
Present:
JOHN M. WALKER, JR.,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. 15-3592-cr
VIKTOR BOUT, AKA VICTOR ANATOLIYEVICH BOUT,
AKA VIKTOR BULAKIN, AKA VIKTOR BUTT, AKA VADIM
MARKOVICH AMINOV, AKA VIKTOR BUDD, AKA VICTOR
BUT, AKA “BORIS,”
Defendant-Appellant.
For Appellee: DAVID ZHOU, Adam S. Hickey, Assistant United States
Attorneys, for Preet Bharara, United States Attorney for
the Southern District of New York.
For Appellant: ALEXEY V. TARASOV, Houston, Texas.
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Appeal from a judgment of the United States District Court for the Southern
District of New York (Scheindlin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Defendant-Appellant Viktor Bout appeals from a final order denying him a
new trial by the United States District Court for the Southern District of New York
(Sheindlin, J.). Bout was convicted of four counts arising from a conspiracy to sell
100 surface-to-air missiles to the Colombian terrorist group Fuerzas Armadas
Revolucionarias de Colombia (“FARC”) and sentenced principally to 300 months in
prison. Bout claims that the district court abused its discretion by concluding that
certain evidence did not warrant relief under Federal Rule of Criminal Procedure
33, by denying his request for an evidentiary hearing on the matter, and by failing
to dismiss the indictment. We assume the parties’ familiarity with the underlying
facts, the procedural history, the district court’s rulings, and the arguments
presented on appeal.
We review the denial of a new trial under Rule 33 for abuse of discretion.
United States v. Owen, 500 F.3d 83, 87 (2d Cir. 2007). Denials of evidentiary
hearings are likewise reviewed for abuse of discretion. United States v. White, 972
F.2d 16, 22 (2d Cir. 1992). Any factual findings made in connection with the
disposition of a Rule 33 motion are reviewed for clear error. United States v. Rigas,
583 F.3d 108, 125 (2d Cir. 2009). A district court abuses its discretion when “(1) its
decision rests on an error of law (such as application of the wrong legal principle) or
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a clearly erroneous factual finding, or (2) its decision—though not necessarily the
product of a legal error or a clearly erroneous factual finding—cannot be located
within the range of permissible decisions.” Design Strategy, Inc. v. Davis, 469 F.3d
284, 294 (2d Cir. 2006).
Upon review we conclude that the district court did not exceed the bounds of
its broad discretion in denying Bout’s motion. See United States v. Stewart, 433 F.3d
273, 296 (2d Cir. 2006) (“the trial court’s discretion to decide whether newly
discovered evidence warrants a new trial is broad because its vantage point as to
the determinative factor—whether newly discovered evidence would have
influenced the jury—has been informed by the trial over which it presided.”).
We turn first to Bout’s claims of error with respect to the “newly discovered”
evidence he proffered to the district court. Rule 33 permits a district court to vacate
a judgment and grant a new trial in light of “newly discovered evidence . . . if the
interest of justice so requires.” Fed. R. Crim. P. 33(a). A new trial is an
extraordinary remedy. See United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.
2001). To be granted a new trial, a defendant must show: (1) the evidence is newly
discovered; (2) due diligence on the part of the movant in obtaining the evidence; (3)
the evidence is material; (4) the evidence is not merely cumulative or impeaching;
and (5) the evidence would likely result in an acquittal. United States v. James, 712
F.3d 79, 107 (2d Cir. 2013).
Bout now proffers several pieces of “newly discovered evidence,” which, he
alleges, demonstrate that: (1) Andrew Smulian was recruited by the DEA before
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being apprehended in Bangkok and therefore Bout could not have conspired with
him; (2) Smulian perjured himself, rendering Bout’s conviction on the third count
invalid due to insufficient evidence; and (3) the indictment was invalid due to the
testimony at Bout’s preliminary hearing of a DEA agent against whom the district
court made a finding of adverse credibility at the suppression hearing. The district
court did not abuse its discretion in concluding that none of the proffered evidence
warrants Rule 33 relief.
First, Bout argues that a statement made by DEA Agent William Brown
during the filming of a documentary “indicates that Smulian was recruited by the
DEA before he and Bout were apprehended in Bangkok.” Appellant’s Br. 11. In the
film, DEA Agent Brown stated that, “[the DEA] believed that Andrew [Smulian]
would be a willing partner in this scenario.” Id. He further elaborated that “[w]e
tried to find an individual that can lead us to Viktor Bout, that had operated with
Bout in the past. And that penetration point to us was Andrew Smulian.” Id. We
agree with the district court that the statement is “newly discovered” because the
documentary was not filmed until after Bout’s trial. Contrary to Bout’s argument,
however, we conclude that the statement does not support the inference Bout
suggests. Rather than indicating that Smulian was a DEA informant, the statement
merely demonstrates that the DEA saw Smulian as a way to get to Bout (in part
because of Smulian’s past dealings with him). In light of the entire trial record,
therefore, the district court did not err in concluding that admitting Agent Brown’s
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statement would not have resulted in an acquittal. J.A. at 37; see James, 712 F.3d
at 107.
Second, Bout argues that documents found on Smulian’s laptop give rise to
the inference that Smulian expected to engage in legitimate job opportunities with
confidential informant Mike Snow. A single email from Snow describing a legal job
opportunity and undated internet research about British intelligence agencies does
not establish that Smulian knew Snow was an intelligence agent nor does it
establish that Smulian would have participated only in legitimate enterprises with
Snow. The district court did not exceed the bounds of its discretion when it
concluded that this evidence would not have resulted in an acquittal. J.A. at 37–40.
Third, Bout contends that Thai immigration records, which show Smulian
departing Bangkok for New York relatively soon after the sting operation, raise the
inference that Smulian was a DEA informant. Those facts were part of the trial
record and are not “newly discovered” as a matter of law. The district court did not
err by refusing to consider them. J.A. 33–35.
Fourth, Bout contends that the district court should have considered a fax
from someone who purported to be Smulian’s wife to Bout’s former attorney
demanding payment in exchange for Smulian refusing to testify against Bout. The
fax, however, was disclosed by the United States before trial. Appellant’s Br. 25. It
is, therefore, not “newly discovered” evidence, and Rule 33 barred the district court
from considering it.
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Bout next argues that a declaration filed by Peter Mirchev shows that
Smulian gave perjured testimony at trial with respect to the call Bout placed to
Mirchev in order to acquire 100 surface-to-air missiles. To win a new trial based on
perjured testimony by a Government witness, a defendant must show that (1) the
newly discovered evidence could not with due diligence have been discovered before
or during trial; (2) the evidence demonstrates that the witness in fact committed
perjury; (3) the newly discovered evidence is material; and (4) the newly discovered
evidence is not cumulative. United States v. White, 972 F.2d 16, 20–21 (2d Cir.
1992). Evidence is not “newly discovered,” however, where “(1) the defendant was
aware of the evidence before or during trial, and (2) there was a legal basis for the
unavailability of the evidence at trial, such as the assertion of a valid privilege.”
United States v. Forbes, 790 F.3d 403, 408 (2d Cir. 2015). “[I]f the reason that
testimonial evidence was unavailable at trial was the defendant’s failure to call a
witness that he knew could provide exculpatory testimony, a new trial on the basis
of newly discovered evidence would not be warranted.” Id. at 409. Further, Rule 33
“motions based solely upon affidavits are disfavored because the affiants’
statements are obtained without the benefit of cross-examination and an
opportunity to make credibility determinations.” Herrera v. Collins, 506 U.S. 390,
417 (1993).
We conclude that the district court did not exceed the bounds of its discretion
by determining that the Mirchev declaration fails to clear the Rule 33 bar. J.A. 42–
44. First, the declaration is not “newly discovered” because if Bout actually never
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contacted Mirchev, he would have known that before trial, and he would have
known that Mirchev could so testify. Second, according to the declaration, Mirchev
did not testify because he did not want to incriminate himself. The basis for his
unavailability is thus legal in nature. See Forbes, 790 F.3d at 408. Third, Bout
offered no evidence that he attempted to call or depose Mirchev, and he has thus
failed to exercise due diligence in obtaining Mirchev’s testimony. Fourth, the
district court did not abuse its discretion when, with the benefit of observing and
evaluating the entirety of the evidence presented at trial, it concluded that the
declaration would not have resulted in an acquittal. J.A. 44.
We also conclude that the district court did not err in declining to dismiss the
indictment. “Dismissal of an indictment following a conviction is an extraordinary
remedy,” United States v. Lombardozzi, 491 F.3d 61, 79 (2d Cir. 2007) (citation and
internal quotation marks omitted), which is justified “not [by] any need for securing
justice . . . but rather [by] a desire to maintain proper prosecutorial standards
generally,” United States v. Thibadeau, 671 F.2d 75, 78 (2d Cir. 1982). Bout’s
argument hinges on adverse credibility findings that were issued, but then
withdrawn, from the district court’s suppression opinion. Prior to removing the
adverse credibility findings, however, the district court conferred with Bout’s prior
defense counsel and the Government. All of the parties agreed that the findings
would be withdrawn and a new opinion issued. Bout cannot circumvent the “newly
discovered” prong of Rule 33 by providing transcripts of a hearing that occurred
after his trial in which the parties discussed events that occurred prior to his trial
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and of which he or his defense counsel were aware. Further, the adverse credibility
findings were not material to Bout’s indictment. The court’s findings were limited to
the testimony of Agents Zachariasiewicz and Milioni regarding the manner in which
Bout was apprehended and interrogated. Those issues were related solely to the
suppression of Bout’s statements, and the district court refused to admit the
statements against Bout at trial. The agents’ testimony, however, was not relevant
to Bout’s guilt. Additionally, neither agent testified at Bout’s trial. Moreover, even if
the indictment were somehow defective, it is well-established that “a guilty verdict
by a petit jury remedies any possible defects in the grand jury indictment.” United
States v. Eltayib, 88 F.3d 157, 173 (2d Cir. 1996).
Finally, the district court did not exceed the bounds of its discretion in
declining to hold an evidentiary hearing. With the exception of the documentary, as
a matter of law none of the evidence Bout now proffers was newly discovered. See
Forbes, 790 F.3d at 411. A hearing is also unnecessary to develop the record
regarding the documentary because Bout has already established the substance of
the comments made by DEA Agent Brown. The district court thus did not abuse its
discretion in declining to hold an evidentiary hearing.
We have considered Bout’s remaining arguments and find them to be without
merit. Accordingly, the district court’s order is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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