The team of attorneys engaged to seek a new trial in the case against arms trafficker Viktor Bout, has filed their much-anticipated motion & memorandum in US District Court in New York. Signed by the Russian-American attorney, Alexey Tarasov, the memorandum is based upon information obtained from a computer said to have been in the possession of co-defendant/co-conspirator Andrew Smulian, which was reportedly made available to Bout's counsel subsequent to his trial and conviction.
The points made; which I have quoted verbatim:
(1) "... Bout's conviction should be set aside, because Smulian apparently had knowledge of the operation against Bout, before the meeting in Bangkok, and there was no shared intent between the parties to a purported conspiracy."
Documents recovered from Bout's computer are alleged to include evidence that Smulian has been solicited to participate in an undercover law enforcement operation, prior to the sting, in 2005. Also, the entries show that Smulian knew that Snow was working as an agent for MI6 & the DEA. Therefor, there was no intent to form a conspiracy.
(2) "Newly discovered involvement of the US Attorney's Office, in persuading this Court to excise its adverse credibility findings, warrants a hearing as to the circumstances leading up to the Court's withdrawal of its credibility determinations, and the prosecutor's discharging the duty to inform the Court of misleading testimony before the Grand Jury."
The Court, prior to the trial, found made an adverse credibility determination, regarding a DEA agent involved in the Thailand arrest; The Government prevailed upon the Court to delete that finding, in connection with the Court's suppression of Bout's post-arrest statements, but the fact that the agent had testified before the Grand Jury was not conveyed to the Court, which Bout's counsel argues casts doubt on the validity of the indictment. Also, was the Government's conduct improper ?
(3) "New trial should be ordered because the evidence showed that Smulian misled the jury, when he testified that Bout called a Bulgarian arms supplier for surface-to-air missiles."
According to the memorandum, Bout never called Peter Mirchev, a source for missiles, and Smulian's testimony to the jury was false. Apparently, Smulian's testimony about the call came as a surprise to Bout's trial counsel, and it was physically impossible to obtain evidence to rebut that statement, making a Mirchev affidavit obtained post-trial newly-discovered evidence. The alleged conversation had as significant impact upon the jury, and the outcome would have been different, had evidence controverting the Smulian testimony been introduced. Without the evidence that Bout could have acquired the missiles, the Government's case would have been insufficient to sustain a conviction, and the resulting 25-year sentence.
Bout's counsel is seeking a hearing, and a New Trial, pursuant to Rule 33. There are extensive exhibits attached to the memorandum, in support of the motion.
The Government's response is due August 6th.