Judge Rules Bout’s Statements to DEA Agents were Coerced and Inadmissible in Trial

Viktor Bout, a Russian accused of conspiring to sell weapons to a Colombian terrorist group, won a bid to bar from his trial statements he made after U.S. authorities threatened to abandon him in a Thai prison.

U.S. District Judge Shira A. Scheindlin in Manhattan today granted Bout’s request to exclude his comments to Drug Enforcement Administration agents after his arrest in Bangkok, saying the agents ignored Bout’s request for more time to decide whether to talk. Bout, 44, said he was told that if he didn’t speak immediately, he’d be left in a Thai jail to face “heat, hunger, disease and rape,” Scheindlin wrote in her ruling.

“When coupled with the agents’ deceptive suggestion that if Bout ‘cooperated’ he could come back to the United States with them (rather than be ‘abandoned’ in a Thai jail), I find that this credible threat of violence also materially induced Bout to make statements,” Scheindlin said.

“We respectfully disagree with the judge’s opinion and plan to request that it be reconsidered,” Ellen Davis, a spokeswoman for the Manhattan U.S. Attorney’s office, said in a statement.

Bout was arrested on March 6, 2008, in a sting operation. The government said undercover agents told Bout they wanted to buy weapons for the Revolutionary Armed Forces of Colombia, or FARC, including surface-to-air missiles, armor-piercing rocket launchers and machine guns. His trial is set for Oct. 11.

Scheindlin, who this month denied a second request by Bout to have the charges dismissed, said in today’s ruling that his “dramatic arrest,” during which he was handcuffed and walked in front of reporters and photographers, along with denial of his requests for an attorney and contact with his embassy, led him to make involuntary statements.

According to Bout’s version of events, he was taken into custody by 15 to 20 officers at the Sofitel Hotel in Bangkok, and then strip-searched as police looked for evidence in his hotel room, Scheindlin wrote in today’s order. He was then transferred to police headquarters, where he was confronted with 40 to 50 members of the media who took pictures of him, Scheindlin said.

A Thai police official then told Bout that U.S. agents wanted to speak with him, and Bout responded that he didn’t want to talk to them, saying that he wanted to meet with an attorney and see a representative of the Russian embassy, requests that were denied, Scheindlin said.

About an hour after his arrest, Bout was placed in a room with six or seven U.S. agents and was advised of his rights, which he said he understood, Scheindlin said. During a 20-minute interview that followed, Bout told the agents several times that he was “not in a very good state of mind” and needed more time before he could speak with them, the judge said.

Bout was handcuffed throughout the interview and repeatedly asked the agents if he could speak with them the next day, Scheindlin said.

Two of the agents said during a May court hearing that they weren’t aware that Bout had asked for an attorney or a representative of the Russian embassy, the judge said. One of the agents, Robert Zachariasiewicz, denied telling Bout that he wouldn’t be able to survive in a Thai jail or that he would be subject to “heat, hunger, disease and rape,” Scheindlin said.

Zachariasiewicz admitted that he told Bout that the conditions in a Thai jail may not be “pleasant,” and that he told him he was facing 25 years to life in prison if convicted of the charges, the judge said. Zachariasiewicz also denied that any of the agents asked Bout to waive extradition and said that Thai authorities made it clear he wasn’t coming with them, Scheindlin wrote.

The agents acknowledged that Bout told them he wasn’t in a good frame of mind and needed more time before he could speak with them, and also that Bout asked for them to come back the next day, Scheindlin said.

“Both agents testified that they told Bout that it was unlikely that the Thai police would permit them to speak with him tomorrow,” the judge said. “I find that the agents’ representation on this point was false and find that it is likely they knew that they would have been permitted to see Bout the next day if they had made that request of the Thai police.”

The agents also weren’t credible when they denied insinuating that Bout might return to the U.S. with them if he cooperated and waived extradition and denied telling Bout that he would face “disease, hunger, heat and rape” in Thai jails, the judge said.

“To the extent that the statements in Bout’s affidavit are uncontradicted I obviously credit them fully,” Scheindlin wrote. “To the extent the statements are contradicted they would ordinarily be entitled to less weight than sworn testimony. However, based on Bout’s uncontradicted description of the events surrounding the arrest, I find his version of the interview more credible than the version advanced by the agents.”

This article was published by the San Francisco Chronicle on August 24, 2011.

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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