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

March 27, 2012

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. Victor Bout 08-Cr-365 (SAS)

Dear Judge Scheindlin: This letter is submitted in connection with the upcoming sentencing of Mr. Bout now scheduled for April 5th , 2012.

Relief Sought
We ask this Court to decline to sentence Viktor Bout and thereby become an unwilling party in his wrongful prosecution for the reason, expressed by the Supreme Court in Sorrells v. United States, 287 U.S. 435 (1932) that: We are unable to conclude that it was the intention of the Congress in enacting [these] statute[s] that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them. And, that the application of the statutes upon which Bout was prosecuted: in the circumstances under consideration is foreign to [their] purpose; that such an application is so shocking to the sense of justice that ... it is the duty of the court to stop the prosecution in the interest of the government itself, to protect it from the illegal conduct of its officers and to preserve the purity of its courts.

Introduction In this country, we regard the use of official power to oppress or intimidate private individuals as a despicable abuse of authority entirely alien to our system of a government of laws. The architects of our Constitution meticulously erected a system of separated powers, and checks and balances, precisely in order to inhibit the exercise of tyrannical power by government officials. Prosecutorial power is rigidly constrained and judicially supervised so that government may not accuse private persons of crimes or investigate them without good cause. And, good cause certainly does not include vindictiveness, spite, vengeance fomented by the pique of a governmental executive who feels personally or politically embarrassed no matter the loftiness of his position. The very notion that officials of the State Department or the Department of Defense or even the White House can prevail upon the Justice Department to pursue and prosecute an individual for that individuals having embarrassed them or exposed them to negative political fallout or for the purpose of deflecting attention from their unseemly relationship with that individual is anathema to our justice system. This type of vindictive conduct is corrosive not only of individual rights but casts doubt on the fundamental premise that we are a nation of laws rather than of men and cannot be countenanced. As it has been stated: [T]he most dangerous power of the prosecutor [is] that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views or being personally obnoxious to or in the way of the prosecutor himself.

Morrison v. Olsen, et al., 487 U.S. 654, 728 (1988)(Scalia, J., Dissenting) (quoting then-Attorney General Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys (April 1, 1940)). The concept of fairness embodied in the Fifth Amendment due process guarantee is violated by government action that is fundamentally unfair or shocking to our traditional sense of justice, See Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960), or conduct that is so outrageous that common notions of fairness and decency would be offended were judicial process invoked to obtain a conviction against the accused. United States v. Russell, 411 U.S. 423, 431-32 (1973). Schmidt v. United States, 105F.3d 82, 91 (2d Cir. 1997). The Second Circuit, as have other Circuits, has repeatedly acknowledged that a claim seeking dismissal for outrageous governmental conduct not only exists but could, in principle, prevail. See, e.g., United States v. Rahman, 189 F.3d 88 (2d Cir. 1999); United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997); United States v. Ascenscio, 873 F.2d 639,640 (2D Cir. 1989); United States v. Nunez-Rios, 622 F. 2d 1093, 1098 (2d Cir. 1980) As far as we have been able to determine, the particularly odious governmental conduct here is sui generis, never have been addressed by our courts. But, by any measuring standard the targeting of an individual by the Executive without any law enforcement or security justification, the relentless pursuit of that individual by a governmental law enforcement agency intent, before any investigation or accusation, upon bringing that person down is, in itself, outrageous governmental conduct. And, the conviction of that person by means of crucial perjured testimony from a government cooperator and paid for bounty hunters, the falsity of which must have been apparent to the DEA agents and the prosecutors, only adds to the egregiousness. The matter of United States v. Viktor Bout is, in my respectful opinion before This Court and the United States Federal Bar, so corrosive precisely because it took place in the United States, the uncontested symbol of democracy, freedom and justice. We exemplify the promise of the future for the world. Politically and physically we struggle against backward countries dominated by authoritarian regimes that prosecute based upon color, creed, religion, politics and/or vindictiveness. The targeting of Viktor Bout putting him in the cross-hairs, of a plan designed to deprive him of his liberty and, without justification, prosecute him in a United States courtroom, for a non-crime concocted by agents of the United States government for that very purpose; was initiated by the National Security Agency or the White House and carried out by the United States Drug Enforcement Agency, for purely political reasons. I respectfully suggest, it is in the best interest of our nation and the developing world to reexamine the matter of United Sates v. Viktor Bout. So pitiful was our countrys case against him that based upon the evidence he should have been acquitted. But, as this letter will attempt demonstrate, Bout, an innocent man, was destined to be crushed by lies, not made known conspiracies and prejudice before an American Jury. (We do not intend to suggest that Viktor Bout is an angel.

But, as is discussed below, he is innocent of the charges of conviction and even DEA Agent Brown testified that he wasnt aware of any evidence that Viktor Bout, ever, in his life, intended to kill an American). Malice Whether or not this prosecution fits within the narrow concept of vindictive prosecution extant in United States case law, the relentless pursuit of Viktor Bout and the abominable design to create a criminal case against him that brings him before this Court for sentencing is the product of malice and object of private politics stemming from the then White House. The case against Viktor Bout was choreographed by the DEA in such a way that their agents would ultimately play the role of judge, jury and executioner. For even an innocent person to be acquitted in the United States Federal Court of terrorism and conspiracy to kill American Service Men and Women stationed overseas would require an extraordinary jury who after 9/11 are otherwise expected to be entreated with patriotism for our governments military cause. Now, consistent with the DEA design, the Judge is bound by law to sentence Mr. Bout to no less than twenty five years and possibly as much as life incarceration. The matter of United States v. Viktor Bout is a horror for those who know its true details exposed at trial. The truth of the matter is that Viktor Bout was out of the arms transportation business for several years prior to the inception of the hunt for him by the DEA. The truth of the matter is that Viktor Bout had no intentions of transporting arms to any one in this case regardless of how much money the DEA offered him. The truth of the matter is that the only things that Viktor Bout intended to sell in this matter were two cargo airplanes for five million dollars. The truth of the matter is that the DEA operatives know the truth, that Viktor Bout had absolutely no intentions of selling or transporting arms to them. The truth of the matter is that they know that Viktor Bout is innocent of the charges of conviction in this matter, and they keep this appalling thing to themselves. Such is thus the simple truth and it is appalling. Like most other truths, however, which are suppressed for extended periods of time, it will eventually erupt and leave a stain on our nation. The matter of United States v. Viktor Bout is shameful and outrageous governmental conduct in its truest sense. This was a persecution, instigated at the highest levels of the United States government and we use the term persecution advisedly. This was no even-handed investigation to root out on-going criminal conduct or even to unearth suspected criminal conduct. Indeed, there was no investigation at all. From the outset, Bout himself was the only real political target and in the words of one of his DEA pursuers, once he was in our cross-hairs, he was going down. This aptly named Operation Relentless" served no legitimate law enforcement or national security purpose. The trial in this matter exposed the fact that Viktor Bout had never been convicted of, been accused of or even been suspected of having committed or considered to commit any crime against the United States or any of its citizens any where in the world. Out of several DEA agents involved in the hunt for Viktor Bout available to the government for testimony, the only testifying agent who was called by them testified that he wasnt aware of any evidence that Viktor Bout, ever, in his life, intended to kill an American.

Nor can it be argued with any sense of propriety that Bout constituted a menace to the security of this country since he had never indicated in any way that he was predisposed to activities that would be deleterious to the United States or any other country in the world. The trial record exposed that Bout was out of the arms transportation business for several years prior to the inception of the DEA sting against him. In fact, not only had Mr. Bout not presented a menace to the United States, he had, admittedly by the United States Government, assisted the United States in this countrys ill- advised Iraq war. And, it was the politically embarrassing revelation of the collaboration between the United States military with Bout during that war that led, for purely political reasons, to the then administrations unprecedented, vengeful pursuit of this individual by a pernicious contrivance, using foul means not to prevent crime, but to create it. Gershman, Bennett L., Abscam, the Judiciary, and the Ethics of Entrapment (1982) Pace Law Faculty Publications.

In sum and without question the governments purpose in instigating Operation Relentless was not to investigate ongoing or anticipated crime or to gather evidence of such wrongdoing. It was aimed originally at creating new crimes for the sake of bringing criminal charges against [Viktor Bout], who before being induced, was lawfully and peacefully minding his own affairs. This, a practice universally condemned in American courts. See, e.g., United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978); People v. Isaacson, 44 N.Y.2d 511 (1978) (overriding desire for conviction violates due process where police were solely interested in arresting a specific defendant rather than to prevent further crime or protect the populace.); United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986); United States v. Ramirez, 710 F.2d 535 (1983). Simply put, Operation Relentless was conceived and implemented for the following purpose - to lure Viktor Bout into a business meeting out side of Russia, to charge him with a DEA concocted crime, to then twist the concocted crime to fit a federal criminal statute, to create or manufacture United States Jurisdiction, to extradite him to the United States and to place him before an American Jury with illusory charges of terrorism aimed against Americans.

The Facts Despite Bouts having been subject to United Nations sanctions since 2001 as a consequence of his reputation as an arms dealer, starting in late 2003 Bout-owned or Bout-controlled companies had contracts flying in tents, food, and other supplies for United States firms working for the United States military in Iraq, including a large contract to fly supplies for Kellogg, Brown, and Root, a subsidiary of Halliburton, the company once run by Vice President Cheney. Bout companies also flew for US Air Forces Air Mobility Command. (Farah, Douglas and Braun, Stephen. Merchant of Death. Wiley. 2007.)

Commencing in May 2004, there were newspaper reports that Bout frontcompanies were supplying the United States military in Iraq. For example on May 17, 2004, the Financial Times reported that many of the planes delivering supplies to United States troops in Iraq were actually owned by a Russian named Victor Bout, reputedly the worlds largest illegal arms dealer. The following day Deputy Secretary of State Richard Armitrage and Deputy Secretary of Defense Paul Wolfowitz were called before the Senate Foreign Relations Committee and were asked if the Financial Times report was true. Incredibly, both professed a lack of knowledge on the subject, scarcely indicating that they were even familiar with the name Bout, but indicated that they would look into the matter. Two weeks later, the State Department notified the Committee that States preliminary research into Bouts connection with Iraq freight contracts was negative. Not until seven months after that did Deputy Secretary of Defense Wolfowitz grudgingly admit, without any detail and without explanation, but with maximum effort to distance the Defense Department from Bout, that U.S. Army contractors did utilize aircraft owned by companies associated with Bout.

In July, 2004, based on allegations that Bout had trafficked in weapons in war ravaged Liberia, the Office of Foreign Assets Control (OFAC) within the Department of the Treasury placed him on the Specially Designated Nationals list which prohibited any transactions between Bout and any U.S. national. The punitive actions were based on Bout's purportedly notorious Liberia weapons transgressions, but, in announcing the OFAC action, the Treasury Department stressed another unproven allegation concerning a facet of Bout's alleged activities, noting that he made $50 million in profits from arms transfers to the Taliban when the regime was hosting Osama bin Laden and Al Qaeda. In flagrant disregard of the U.N. sanctions and OFACs placement of Viktor Bout on the Specially Designated Nationals list, the United States military continued to hire Bouts companies for Iraq supply flights. One Bout front company alone is estimated to have made about 1,000 flights into United States controlled air bases in Iraq by the end of 2004 during which time the United States military gave at least 500,000 gallons of free airplane fuel to Bouts pilots and United States government contractors paid Bout-controlled companies roughly $60 million to fly supplies into Iraq. (Farah, Douglas and Braun, Stephen. Merchant of Death. Wiley. 2007.) But, on January 23, 2006, it was reported that, The New Republic has learned that the Defense Department has largely turned a blind eye to [purported arms dealer] Bouts activities and has continued to supply him with contracts, in violation of [the OFAC designation] and despite the fact that other, more legitimate air carriers are available. To date, there has been no public inquiry into the U.S. Defense Departments decision to continue with their relationship with Bouts companies in violation of OFACs rules.

As a result of the embarrassing New Republic disclosure of the incompetence or worse - of the Departments of Defense and State in their dealings with Bout, someone in the government decided it was time to get Viktor Bout. Whether the motivation for this was pay back for the embarrassment that Bout had caused the Bush government or, for political reasons, to create a scapegoat to deflect attention from the governments unseemly relationship with this alleged Merchant of Death - this purported friend of Ben Laden and the Taliban - is not clear. But what is crystal clear is that it served no legitimate law enforcement purpose. For, to that point in time Bout had committed no crime against the United States nor had he committed any act or made any statement that indicated that he even contemplated committing such a crime. Thus began the pursuit of Viktor Bout that ultimately spawned Operation Relentless designed specifically to entrap Bout and deliver him to the United States for criminal prosecution designed for inevitable conviction and life long incarceration. In late 2007, then Deputy Assistant to the President and Deputy National Security Advisor Juan Zarate bestowed the challenge to capture Viktor Bout to the U.S. Drug Enforcement Administration. And, as Michael Braun, the former chief of operations for the U.S. Drug Enforcement Administration, declaimed, once [Bout] was in our crosshairs, he was going down. The underlying plan was simple. As described by Louis Milione, the DEA supervisor who was in charge of the hunt for Bout, "We felt that we could create a scenario that would pull him in." The plan was to "pull" Bout out of Moscow with an invented huge arms deal he couldn't refuse, i.e., a 12 million dollar transaction. (60 Minutes interview of Zarate, Braun and Milione, 11/21/2010.) Accordingly, the crime described in the instant indictment was created out of whole cloth and carefully scripted to facially but falsely provide jurisdiction to the United States court system and expose Bout to potential life imprisonment for non-existent crimes. However, notwithstanding the best efforts of the DEA in concocting an elaborate scheme to induce Viktor Bout into the commission of a crime for which he could be prosecuted in the United States, the investment in millions of dollars in the scheme, the use and payment of millions to professional informers and bounty hunters, themselves international drug dealers, and the enticement of offers of multi-million dollar profits in arms to Bout, Bout refused the governments blandishments and declined to be seduced into offering, brokering or delivering weapons to the fictitious FARC members created by the DEA script writers. On November 6th, 2007, a paid for government operative, Mike Snow, reached out to Andrew Smulian, an associate of Viktor Bout, with an offer of a proposed arms deal for Viktor Bout. Eighteen days after, on November 24th, by way of a memorialized E-Mail communications introduced as evidence at trial, Mike Snow and the DEA agents receive from Smulian, Bouts answer in connection to the proposed arms deal -- Boris situation not so good. (Trial Exhibit 1411) On November 25th, 2007 Mike Snow and the DEA agents receive a fallow-up E-Mail from Smulian in connection to the DEA offer for an arms deal. there appears to be a lot of business opportunitiesnothing in grey items thoughthe man himself is selling properties as the main income, with branches in all different states. (Trial Exhibit 1412) After unrelenting EMails from Snow to Smulian intending to lure Bout into the DEA proposed 7

arms deal, Smulian puts in plain words to Snow and the DEA agents Boris had withdrawn and had been told to withdraw (Trial Exhibit 1439) The trial record made clear that the DEA agents in this case up to this point had been notified on at least three separate occasions that Viktor Bout was not interested and/or not able to engage in the business of arms. If there had been a modicum of good faith on the DEAs part, the operation would have concluded at that point. But, this horrid, relentless pursuit went on simply by switching the arms deal to the far more benign suggestion that Bout might be able to sell not arms but airplanes. And it was this latter premise by which the DEA lured Bout to Thailand. On December 2nd, after communicating with Mike Snow, Andrew Smulian, notified Viktor Bout by E-Mail that same individuals who are interested in arms are also interested and are in process of purchasing cargo airplanes for large sums of cash. Smulian wrote to Bout-- Mike Snow sold Antonov 12 from Moldavia to people from Central South America. I am not sure exactly where. They paid cash to himthe same client now wants all equipmentIt seems they are ready to pass major funding to him if we can convince them that we can supplyPossible this means delivery as well. So we have to convince them that we can deliver, as well, since I cant imagine how they will get the goods to somewhere in that region (Trial Exhibit F, 1356 and 1358). So while the DEA had its own design for Viktor Bout, Smulian in this E-Mail out- lined to Viktor Bout their own ruse to convince the potential purchasers that Bout can supply and to convince them that he can deliver in order for the two to receive major funding. A two way real life con-game began at this point. DEA operatives were stringing Bout along with a prospect of purchasing his airplanes for $5,000,000.00 to lure him out of Russia and to trap him into the DEA operatives initiated discussion about anti-America, Americans and arms. Bout, on the other hand, was stringing the DEA operatives along with a prospect for an arms deal so that he can dump on them the two cargo airplanes that he had collecting dust in Congo. There were critical differences between the two sides of this con-game, however. Viktor Bout did not know who he was dealing with and what their true intentions were. The DEA agents, however, knew well who they were dealing with and that he, Bout, was not able sell and deliver arms to them. On December 3rd, subsequent to the above E-Mails, where Smulian and Bout agree to proceed with the program outlined in their respective E-Mails, Smulian corresponds with Snow, a DEA operative at the time-- Hi, sorry I left the e-mail, rushed out to a meeting. Spoke to Boris and anything is possible with farming equipment. I just need to pass some stuff off to him referencing what we are doing here, which will take me up to Thursday. And then I will see how we can operate, and we can take some plan and send itI dont think he can move stuff around, but it may be that he can get his hands on items which you require. The DEA agents again-at least for the fourth time- are notified by the above E-Mail that Viktor Bout can not and will not move arms. And, that it is only now after the prospect of selling his cargo planes, may be that he can get his hands on items which you require.

All throughout the transcripts of consensual recordings and wire tapes introduced at trial the DEA operatives inform Smulian and Bout that the $5,000,000.00 for the planes is ready to be handed over to Bout as soon as he arrives. The DEA operatives inform Smulian on February 4th, that they need a lot of aircraft. its for the same group, but its for the group that manages the drugs, you know, that they need a lot of aircraft sometimes, a lot of aircraft, a lot of capacity. And thats why I am working a lot in Ghana right now They inform Bout that all he has to do is come and get the money for the planes without having to do anything about the hard stuff, referring to the arms. The operatives successfully acted dim witted and desperate to get rid of the five million dollars for the airplanes that they described as necessary for their drug trade. They urged Bout to come and get the money for the planes. The operatives, all the way through a DEA script played a perfect sucker to catch a sucker. On March 6th, 2008, when Bout arrived in Thailand for the DEA arranged meeting with only two cargo air plane brochures and no other specifications pertaining to the arms previously discussed with and requested off Smulian and Bout he was immediately engaged by the DEA operatives in a well scripted dialogue that would inevitably lead a prospective American juror to a blind rage against the accused in this case and ultimately to conviction. The DEA agents who created this scenario knew well that a basic principle of marketing would have Bout join into the chorus of anti-Americanism initiated by the operatives. Bout, and other similarly situated individuals even those with no mens rea, would say anything at that point to receive the five million dollar reward for two cargo planes that were worth much less. In Bouts mind, then and now, he did nothing wrong or illegal. Even if he meant everything he said about America or Americans, he was exercising his fundamental right to free speech. He did not know back then that he was being trapped into saying awful things about Americans for the sole purpose of prejudicing him in the eyes of an American jury. For in his mind, he felt then, as he feels now, that he was not committing a crime against any person or country for selling two planes, and if the purchasers of the planes wanted promises of a prospective arms deal, Bout, a Russian citizen, could not have known and did not know that lip service alone without a real overt act can have him extradited and prosecuted and incarcerated for life in the United States. In the mentality of an enduring Russian citizen from Russia, where FARC is not designated as a terrorist organization, Viktor Bout committed no crime by intending to sell cargo planes to the FARC and he committed no crime because of his rhetoric on March 6th, 2008. He did nothing in furtherance of the requests made by the operatives during the March 6th, 2008 meeting except to take a few hand written notes so as not to appear completely disinterested in the arms deal. However, when on March 6th during the final meeting the operatives wanted to fasten the issue of Bouts intent on the proposed arms deal, Bouts recorded and transcribed responses made it clear that he was not bent on going through with the arms deal but was rather stalling them until he was going to get paid for the planes.

Viktor Bout never committed to an arms deal. Viktor Boutits difficultthats why I have to leave, organize the storythings are withbut people have toI have to leave my country to do itI have to convince the minister of defense to sign the paper and to give me an official to the destination to do the contract, I have to pay officially pay part of the money of countryfirst comes to sign all papers that we need. Also, we need an official who will go and I know to country to sign the contractits a bit political, a bit commercial, a bit intelligentIts very difficult to speak to people to negotiate, but its possibleThats why were going to analyze where DEA operative --What pricesHow much money do you need? Viktor BoutI dont know. I dont knowbut I dont know nowadays. Two or three years ago there were. I have to go out, talk, to see what they manufactureI dont know. I dont know. Because we have to go out, negotiate, to see whats in existence, also the timeif we can quicklyBecause, listen, lets do the following, prepare a plan. Okay, were going to go out to discuss the things of the same time. Please, starting, with the first ones, will put in the airplanes to begin activity DEA operativeDo you need money for the airplanes? Viktor BoutYes DEA operativeFirst of all, okay, all right no problem. And well start with that DEA operativedo you think we can start operating in 3 months or before 3 months. Viktor BoutBefore DEA operativeHow much time before? Viktor BoutI dont know, but well do something together. The March 6th, 2008 conversation pertaining to the proposed arms deal between Viktor Bout and the DEA operatives pretending to be FARC was farcical and obviously lacking in reality for both sides. Viktor Bout did not receive nor did he even ask for a nickel for the arms. In my adolescent years I had experienced and witnessed more real negotiations on Brooklyn play grounds between kids trading baseball cards.

The stalking of Viktor Bout continued into the trial. The charges against Bout were bottomed on the governments assertion during trial that in the earliest stage of the events, during a meeting of the two in Moscow, Bout and Andrew Smulian had immediately entered into a conspiracy, i.e., they had immediately agreed, at that Moscow meeting to provide arms, including missiles, to the FARC and that all the ensuing events were taken in furtherance of that unlawful agreement. The prosecution at trial argued: So what that means is that, whether or not the final terms of the deal with the informants were ever nailed down doesn't even legally matter, what matters is whether Bout and Smulian, whether they agreed with each other to provide weapons to the FARC.

10

And the evidence overwhelmingly shows that in fact they did. They agreed with each other in Moscow to do the weapons deal. And then, for the next six weeks, they took steps in furtherance of their agreement to provide weapons to the FARC, steps showing the seriousness of their purpose in this agreement. It was Viktor Bouts position, to the contrary, that he had not agreed with Smulian to sell arms to the FARC; that he had no intention of providing weapons. Rather, that he had agreed with Smulian only to attempt to sell planes to the men masquerading as FARC, a prospect that had been injected into the scenario by the DEA script writers when it was made clear to them that Bout had rejected their attempts to ensnare him in illegal arms trafficking. And, that all the statements made by Bout to FARC were merely for the purpose of his desire to effectuate the airplane agreement by making it seem that the planes were necessary to carry out the unintended arms transaction. The evidence supporting Bouts position is clear and not dependent on the self- serving testimony of Smulian or the government backed bounty hunters. Thus, the sine qua non, the essential ingredient, of the governments case that had to be proved beyond a reasonable, was entrance into a conspiracy at the Moscow meeting and for this they relied on the testimony of Smulian. But Smulians testimony on this score was simply not true and, as discussed below, at the very least the prosecutors should have known that on this score Smulian lied. As the testimony at trial demonstrated, the DEA initiated Operation Relentless by having Michael Snow, a paid informant, contact Smulian, tell him that he, Snow, had customers who wanted to purchase arms for cash and that he wanted Smulian to approach Viktor Bout with this proposition. The approach was made, but rather than jumping at the purported opportunity to be involved in illegal weapons trafficking, to the DEAs consternation Bout rejected the offer, stating that he was not involved in gray items - illegal arms transaction - that he had been ordered by the Russian government, the Motherland as he put it, to withdraw from that type of activity. This disappointing information was e-mailed to Snow who passed the information on to his DEA handlers. The destructive effect that this e-mail has on the governments accusations is manifested in the testimonial reaction of the DEA agent responsible for safeguarding the documentary evidence and monitoring Snows activities. He simply testified, unbelievably, that he had never seen it, that he was unaware of its contents. Moreover, the prosecutors recognition of the devastating effect that this documentary evidence could have on the governments case against Bout is well demonstrated by the fact that this e-mail had not been submitted in evidence by the government notwithstanding that it was in their possession. It was left to the defendant to confront the DEA agent with its contents and offer it in evidence.

11

Bouts rejection of the invitation to become involved in an illegal arms deal did not slow down his pursuit by the DEA. As discussed above, within a week the DEA came up with a new air planes scenario to lure Bout out of Russia so that he could be arrested. Thus, the appealing notion that Snows customers were interested in purchasing airplanes was trotted out to Smulian for forwarding to Bout. It is interesting to note that the e-mail in which Snow broached the airplane issue was again one that the testifying DEA lead agent could not recall ever having seen. Then through his testimony the agent later incredulously attempted to claim that it was the DEA paid for and formerly convicted drug king pins independent idea to interject the planes into the scenario to pull Bout into the meeting. The lead Agent testified Are you asking me specifically if I told Carlos to say a lot of aircraft?...NO The Court Aircraft at all, the need for aircraft? DEA Agent Maam, he was given a role to play, and I think that he freelanced on saying these things when Andrew said hey, are you looking for aircraftI cant tell you what Carlos was thinking at the time to say that But when afterwards Carlos, the formerly convicted drug king pin testified he said that it was the agent who instructed him to interject the planes into the scenario to pull Bout into the Thailand meeting. Smulian, who at that point testified for the government literally in exchange for his life, dubiously explained the interjection of planes into the scenario as coincidental. (But, See trial record: Smulian constently insisting that Carlos must purchase planes in order for transaction to proceed) The prosecution at trial suggested that the DEA had fabricated the airplane scenario at a much later time seeking to suggest that the ploy was unrelated to Bouts statement that he did not deal in gray items. That attempt failed of course since the Snow airplane e-mail was posted just one week after the gray items e-mail was posted. It was shortly thereafter that Smulian met with Bout in Moscow. While the prosecution claims that it was during this meeting that Viktor Bout and Smulian entered into a conspiratorial agreement to provide the FARC with weapons, there is no documentary or otherwise believable evidence to support this assertion. Indeed, the ensuing documented communications between Smulian and others proves that rather than enter into an arms conspiracy with Smulian Bout agreed only to pursue the airplane scenario. Thus, immediately after the Moscow meeting with Bout, Smulian e-mailed messages that show, without equivocation, that Viktor did not enter into an agreement with Smulian to provide weaponry to the FARC. Quite the opposite, Smulians own words unmistakably show that Bout expressed a total lack of interest in an arms deal and that prosecutors opening statement and Smulians trial testimony that Bout had immediately agreed to the illegal deal was completely untrue. For, as the e-mail from Smulian written on the same day as the Moscow meeting with Bout makes absolutely clear, rather than enthusiastically agreeing with Smulians hopeful efforts to bring Bout into

12

what Smulian believed was a multi-million dollar arms transaction Bout uttered his total disdain for the venture. As Bout put it to Smulian, as reflected in Smulians email that it's not worth getting into the arms deal and that you can't make money in the arms deal and there is no profit to be made in the arms deal and there is just too many arms in the industry and the profit margins are slim due to the glut on the market , and colorfully that that Bout was more interested in dealing with cashew nuts. What was Smulians response when confronted with his own e-mails so damaging to his own credibility and directly contrary to the governments stated theory of prosecution - a claimed lack of recollection. And what was the governments response? The government understandably simply ignored this evidence for how can one explain the unexplainable? Further, not long after the Moscow meeting Smulian had a recorded telephone conversation with Bout in which it was made absolutely clear that the program that Bout and Smulian had worked out in their Moscow meeting related to the sale of planes: Smulian: Remember we worked out the program that the amount was 5 million all together. Bout: Well, well, well, for the airplanes

Smulian: Yes. Bout: Let me check - Ill call you just give me ten minutes, five minute, just to make sure. All right.

Smulian: O.K. No problem. I have been talking to them about it and it seems that they accept the idea. So --Bout: Yeah. Yeah. Yeah.Yeah.

Smulian: O.K. Thus, the very cornerstone of the governments case was based on Smulians false testimony which was belied by his own words and memorialized in his documented communications that were in the possession of the government well before he testified.

13

Conclusion The entirety of the prosecution of Viktor Bout, from its inception through trial, was the product of outrageous, inexcusable government conduct and he is innocent of these charges. The indictment therefore should be dismissed. There is no alternative, for even the minimum sentence of twenty five years is far too much under the facts and circumstances of this case. The truth will march forward and the defense will continue to write and argue on this issue.

Respectfully submitted,

Albert Y. Dayan

14