UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _____________________________________ : : : Plaintiff, : : v.

: : VIKTOR BOUT, : : Defendant, : ______________________________________ UNITED STATES OF AMERICA,

08-CR-365 (SAS)

DEFENDANTS REPLY TO THE GOVERNMENTS SENTENCING MEMORANDUM

Albert Y. Dayan Attorney at Law for Defendant Viktor Bout

ALBERT Y. DAYAN
Attorney at Law

80-02 Kew Gardens Road, Suite 902, Kew Gardens, N.Y. 11415
Tel. (718) 268-9400: Fax: (718) 268-9404

April 4, 2012 By ECF

The Honorable Shira A. Scheindlin United States District Judge Southern District of New York United States Courthouse 500 Pearl Street New York. New York 10007 Re: United States v. Viktor Bout 08-Cr-365 (SAS) Dear Judge Scheindlin: This letter is in response to the Governments Sentencing Memorandum. We have called the prosecution of Viktor Bout outrageous governmental conduct. That does not go nearly far enough - its a disgrace. When in all of the history of the United States has an individual who has never committed a crime against this country or against its citizens or even been suspected of committing such a crime been targeted as has Viktor Bout by the highest levels of the United States government? Targeted not for investigation, for this was not an investigation - it was a foregone conclusion. As the DEA bragged on television, once he was in our cross-hairs, he was going down. He wasnt going down if he committed a crime, he was going down no matter what. The sanctimonious and factually unsupported claims made by the prosecutors in their sentencing memo that, Prior to his arrest, Bout was among the worlds most successful and sophisticated arms traffickers, whose ability to transport all manner of weapons to conflict zones in Africa was so destructive and destabilizing that he was sanctioned by the United Nations and United States; that he was a threat to the security of the United States and that he is such a horrible person that he deserves life imprisonment are nonsense. After combing the world with unlimited resources for evidence in support of the above claim, the DEA agents and their paid operatives were able to locate only two witnesses that testified they witnessed Bout owned and/or operated freight companies transport military grade equipment - with governmental supervision - and not in the cover of night in the late 1990s. They found no evidence of transportation of arms by Bout owned or operated companies after the year 2000. Operation Relentless, to get Viktor Bout, was initiated in 2007.

Moreover, the United States didnt think Bout was such a threat to the security of the U.S. when the Defense Department, the U.S. Military, paid his companies millions of dollars to assist American military operations in Iraq. They didnt think he was such a threat when, despite the U. N. sanctions and OFAC sanctions, this country did business with him during that war. Even DEA Agent Brown testified during the trial that he wasnt aware of any evidence that Viktor Bout, ever, in his life, intended to kill an American. The prosecution claims now in their sentencing memo that Undeterred by the worlds reproach, Bout remained ready, willing, and able to provide a breathtaking arsenal of weapons including hundreds of surface-to-air missiles, machine-guns, and sniper rifles10 million rounds of ammunition and five tons of plastic explosives Other than Bout saying it at the Thailand meeting to the fake FARC to facilitate his plan to have them buy his airplanes, the prosecution has no evidentiary support for their proposition. It was all just talk with no action whatsoever on Bouts part, both sides spewing empty phrases and playing their respective roles. Did Viktor Bout do anything, did he provide a single bullet, a single missile, a single weapon? Is there a document, any sort of hard evidence, not simply talk that shows Viktor Bout took even the most preliminary step towards carrying out his supposed evil purposes? When Bout met with the bogus FARC members did he come prepared with specifications for any of the arms that they had requested months prior to the Thailand meeting or even prices for weaponry? Of course he did not. He came prepared with specifications and prices for the two items he actually intended to sell- the two airplanes. During the trial the prosecution heavily relied on lies of Smulian, a desperate witness who like most other men in his position would say anything on the witness stand to save his own life from permanent deprivation of freedom. He admitted on the witness stand that his in-court testimony was the product of at least twenty proffer sessions with agents and prosecutors where they had hashed out what his in court testimony should be and that he was not going to deviate from the trained testimony so as not to jeopardize his co-operation agreement. His testimony was procured by the prosecution with expectations by all parties to his co-operation agreement for immediate release upon the sentencing of Viktor Bout. If the prosecutors really believed that Smulian and Bout conspired to kill Americans - that they each, with the other, shared a real and specific intent to provide weapons for that vile purpose - how could they suggest to this Court that Bout get life and Smulian get time served? Time served for someone the government attorneys really believe conspired to murder American servicemen? As much as anything else, this demonstrates that the true purpose of this whole charade was not to properly punish those who had conspired against the U.S. for villainous purposes, it was to get Viktor Bout, no more and no less. And, as the government lawyers well know, Smulians own documented words unmistakably show that Bout expressed a total lack of interest in an arms deal and that Smulians trial testimony that Bout had immediately agreed to the illegal arms deal at a meeting between the two in Moscow was completely untrue. For, as the first Smulian-sent e-mail after the meeting with Bout makes absolutely clear, rather than enthusiastically agreeing with Smulians hopeful efforts to bring Bout into what Smulian believed was a multi-million dollar arms transaction, Bout uttered his total disdain for the venture and that there is a glut in the market and he would rather deal in cashew nuts. Moreover, just five days after the Bout/Smulian meeting in Moscow, Smulian, who claimed at

trial that Bout had immediately agreed at that meeting to sell arms to FARC, offered an alternative source of weapons to FARC, not Bout rather a guy from Paris who is an arms dealer that [FARC] could deal with. If there was any possible truth to Smulians testimony about the Moscow meeting and Mr. Bouts supposedly having agreed to supply arms to FARC it was belied by these unassailable, documented statements made by Smulian during and immediately after the Moscow meeting at a time he was not seeking to curry favor with the government. Of course these statements, so inconsistent with Bout having immediately agreed to provide the weaponry to FARC, were well-known to the prosecutors long before they had Smulian testify as he did. But, since the only purpose of the entire Operation Relentless was simply to entrap Bout, these words, so exculpatory regarding Bout, were just ignored by the DEA operatives and the prosecutors because they were wholly inconsistent with their true singular purpose of ensnaring Viktor Bout. The prosecution now claims in its sentencing memo that the evidence shows that Bout remained involved in the weapons trade even after the imposition of international sanctions. For example, at the same time that he was discussing the FARC deal with Smulian, Bout was also exploring a significant weapons transaction with the Tanzanian militaryEvidence obtained from Bouts computer further reflected his more recent involvement in the arms business, including with LibyaFor the same reasons, Bouts e-mail communications with Mirchev from 2007which included Mirches request for Bouts assistance in obtaining equipment for a Russian infantry combat vehicle, as well as a reference to a $38 million weapons transaction, the invoice of which was dated August 2007. The twisted application of the above e-mails and instant message chats by the prosecution now in an attempt to refute Bouts assertion that he was no longer interested and/or able to engage in the business of arms is sly for the following reasons known to the prosecution. First, the Tanzania project was not a grey items project. It was initiated by Smulian and his associate Gylfason with many other Tanzania potential investments they suggested to Bout. The forensic evidence retrieved from Bouts computer showed that Bout did nothing in connection with the proposal made by Smulian and Gylfason nor did Bout communicate the proposal to anyone else. Second, referring to an unidentified individuals vague potential order for a kornet, the forensic evidence retrieved from Bouts computer showed that Bout did nothing in connection with that proposal either. Third, the prosecutions reference to Mirchevs request for Bouts assistance in obtaining equipment for a Russian infantry combat vehicle is wholly disingenuous. Mirchev inquired whether Bout still had contacts to help Mirchev obtain equipment for a Russian infantry combat vehicle. He wrote if you still have contacts with Evincing that in 2007 Mirchev believed that Bout was no longer in the arms trade and therefore may be out of contact with the right people. Again, Bout does nothing about the request. The prosecution, now in what seems to be a desperate effort to justify the wrongful conviction of Viktor Bout, makes reference in their sentencing memo to a $38 million weapons transaction, the invoice of which they claim was dated August 2007, when in fact they were made aware prior to trial that the transaction discussed in that e-mail referenced to an arms delivery dated in the 1990s and the government has no evidence to the contrary. Mirchev had asked Bout for assistance in collecting a debt for that delivery owed to Mirchev. The only invoice dated August 2007 was sent from an e-mail

account controlled by Mirchev to another e-mail account controlled by Mirchev. The invoice was later retrieved by the DEA from Mirchevs e-mail accounts, not Bouts. Bout had nothing to do with the dated invoice nor was that invoice retrieved from his computers or accounts. The prosecutors must have lost all recollection of the above facts and why the Court denied their pre trial application to admit the above messages into evidence at trial. The governments sentencing memo pointedly uses inflammatory and provocative language like breathtaking arsenal of weapons, traffickers, conflict zones, destructive, destabilizing, sanctions, United Nations, United States, kill, Americans, missiles, explosives and terrorist organizations but they can point to no evidence that Viktor Bout intended to deliver a single bullet or even asked for a nickel as a down payment for the proposed arms deal. They seized injustice at trial, as they are attempting to do now with the reader of their sentencing memo, not with true facts but with language they hope will rouse ill-fated blind rage.

Very truly yours,

_______/s/_______ Albert Y. Dayan

cc.

AUSA Anjan Sahni AUSA Brendan McGuire Ken Kaplan, Esq.