EXCLUSIVE: The Federal Judge who sentenced Viktor Bout weighs in on his notorious reputation

[This Substack was published originally on May 20. I am republishing it in wake of the news about the swap of Brittney Griner/Viktor Bout. It is wonderful news for Griner’s wife, family, friends and her many supporters. The swap is unquestionably unbalanced. Griner was arrested for something that was legal in the U.S. but the Russians wanted, and got, a high profile pawn to use in prisoner negotiations. Viktor Bout was a major arms trader in the past but many readers might be surprised to learn that the federal judge who sentenced Bout to 25 years in prison has a suprising view about his “merchant of death’ infamy]

Several hundred of you sent me emails and DMs yesterday after Forbes published my article that confirmed the U.S. and Russia were in talks that could bring WNBA star Brittney Griner home in return for sending arms trafficker Victor Bout back to Russia. A surprising number of people wanted to know about Victor Bout. On the internet they had found sensational accounts of Bout as the “Merchant of Death” and references to how Nicolas Cage had used Bout as the basis for his bloody 2005 film, Lord of War. Is Bout, many of you asked, the villain that a Google search turns up?

I had long been interested as a journalist in Bout. I met him in late 2010, early 2011, when he was incarcerated at the Manhattan Metropolitan Detention Center, awaiting trial. At the time, I was considering a book about him, or at the very least a very long magazine article. Ultimately, I never wrote about Bout, instead going off to do a 200-year history of the finances of the Vatican (God's Bankers, 2015). In Nicholas Schmidle's wonderful New Yorker profile of Bout in 2012, he referred to me and said that "Posner, a journalist and lawyer...recalls that when they first met Bout hadn't wanted to discuss his case; rather, he wanted to "talk about black holes and how Stephen Hawking was overrated."

I followed Bout’s trial closely. And the one thing that became crystal clear was that the presiding judge, Shira Scheindlin, was careful that the government should not unduly prejudice the jury by referencing Bout’s reputation. Judge Scheindlin warned against using terms such as “Lord of War” or references to Libya and Rwanda.

After a federal jury convicted Bout, Judge Scheindlin rejected the government’s request that he be sentenced to life without parole in Florence, America’s supermax. She instead sentenced him to the mandatory minimum, which was 25-years.

Earlier this week, when I interviewed the now retired justice, she was one of the few people associated with the Bout case who was willing to go on the record.

“I was not happy to sentence him under the mandatory minimum of 25 years,” she told me. “There were no arms, none were sold, and no one was hurt. He was being punished for what the image was of him as a big deal arms dealer, terrorist, ‘merchant of death'.’ But that was not the case for which he was tried and sentenced.

That was a Hollywood version, and I like a good movie as much as anyone else. All good movies take a kernel of truth and embellishes it to make a good story.  But that was what he was sentenced for.”

Judge Scheindlin pointed out to me that “Arms dealing is not something I like or admire, but it is done. And as an arms dealer, he probably violated various laws and restrictions, but when our government targeted him, he had not been in that business for a number of years.”

This is not an opinion Judge Scheindlin only came to years after the trial was over. Her comments during the sentencing hearing, on April 5, 2012, are required reading for anyone wanting to know more about “who is Victor Bout?” In it, she addressed the question of the charges against Bout.

“It is virtually undisputed that until the DEA went after Bout, he had not committed a crime chargeable in an American court in all his years as an arms dealer. While he had been sanctioned by the United Nations and the United States for his arms trafficking activities over the years, he was not under indictment by any country or by any war crimes tribunal. There is no evidence that he had broken the domestic laws of any country, or more particularly, of the United States, although he was considered to have violated international law….At the time the government initiated its case against Bout, it is unclear whether he was still actively engaged in the arms trade. Some evidence could lead to the conclusion that he was still involved, such as conversations regarding potentially supplying arms to Tanzania, Kenya, and possibly Libya, but there is no evidence that he had actually supplied arms to anyone in recent years. There was also no evidence that he had ever committed any crimes against any American or even expressed the desire to do so.

The entire case against him is that when presented with an opportunity to commit such crimes, through an approach made by a friend he hadn't seen in many years, he willingly accepted the opportunity and expressed to his customer, namely, the FARC, that he shared their goals, namely, to harm Americans. Whether this was simply good business practice or an expression of his own goals can never really be known. I can only say that there is no evidence that he ever expressed or acted on such goals prior to his two-month involvement in this sting operation. While the government argues that the fact that this case arises from a sting operation is not a mitigating factor, I disagree. But for the approach made through this determined sting operation, there is no reason to believe that Bout would ever have committed the charged crimes.”

The entire transcript, attached below, is only 15-pages, and the highlights are mine.

Sentencing Transcript Viktor Bout 4 5 12

76.8KB ∙ PDF file

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