I do not practice criminal law but from time to time a criminal case attracts my interest, and the case of United States of America v. Boris is just such a case. The facts set forth below are from the criminal indictment against Boris.

In 2004, Boris was listed as a Specially Designated National by the Office of Foreign Assets Control within the Department of Treasury due to weapon trafficking activities in Liberia.  I dealt with the OFAC list once when the named plaintiff in a class action employment law case bore the same name as a person on the list.  Since he had been terminated for using a bogus social security number, it made it hard to prove he was not the person on the list.

But Boris was on the list.  Boris had a fleet of cargo airplanes capable of transporting weapons and military equipment to various parts of the world, including Africa, South America and the Middle East.  The cargo planes would also be used to deliver legitimate goods, providing cover for the illicit activities.

In January 2008, Andrew, a co-conspirator with Boris, met with representatives of the Fuerzas Armadas Revolucionarias de Colombia (FARC) in Curacao to discuss the sale of millions of dollars’ worth of weapons to FARC.  FARC started as a terrorist group dedicated to the overthrow of the Colombian government and evolved into the world’s largest supplier of cocaine.  FARC has been designated as a foreign terrorist organization in the U.S. since 1997. In the early 2000s, FARC leadership ordered its members to kidnap and murder U.S. citizens and to attack U.S. interests in order to dissuade the U.S. from continuing efforts to disrupt FARC’s cocaine operations in Colombia.  U.S. nationals have been kidnapped and murdered by FARC.

As it turned out, the FARC representatives were actually U.S. Drug Enforcement Administration agents posing as FARC representatives as part of an international sting operations that began in 2007.  The DEA had targeted Andrew as an associate of Boris through whom they hoped  to catch Boris.

Subsequently, Andrew met directly with Boris in Moscow to discuss the arms deal.  Over the next two months, communications between FARC representatives with Boris and his co-conspirator resulted in the following FARC shopping list, all of which Boris claimed to be able to supply: 700-800 surface-to-air missiles, 5,000 AK-47 firearms, millions of rounds of ammunition, various  Russian spare parts for rifles, anti-personnel land mines, C-4 explosives, night-vision equipment, special helicopters that are “superior to U.S. helicopters” as well as training in their use, armor-piercing rocket launchers, ultralight aircraft that could be outfitted with grenade launchers and missiles, unmanned drones with a range of 200 to 300 km.  Boris could drop ship the cargo to a covert location in Colombia and Boris could provide people to train FARC in the use of the arms.

Boris confirmed his ability to provide these items for the sum of $15-20 Million during a face-to-face meeting in Bangkok, Thailand, in March 2008.  During this meeting, Boris indicated that he understood FARC wanted the arms for use against U.S. forces in Colombia and advised that the U.S. was also his enemy and that the fight against the United States was also his fight.  The DEA recorded the meeting and arrested Andrew and Boris at the end of the meeting.  Andrew immediately agreed to cooperate; Boris did not.

Boris remained in jail in Thailand until 2010, when he was extradited to the U.S. to stand trial on four criminal counts: conspiracy to kill U.S. nationals, conspiracy to kill officers and employees of the United States, conspiracy to acquire and use anti-aircraft missiles, and harboring/concealing terrorists.  Boris was convicted on all four counts in 2011.  On the anti-aircraft  missile conspiracy charge, Boris was sentenced to 25 years and on the other conspiracy charges, to 15 years.  He was also ordered to pay a money judgment of $15 million.

For most of 2012, Boris filed post-trial motions in an attempt to set aside his conviction at the trial court level.  In 2013, Boris’ appeal to the Second Circuit federal court of appeals was denied.  In 2014, Boris requested the right to file a motion for a new trial based on newly discovered evidence, which was granted.  He filed a motion for a new trial in 2015, which was denied.  Boris again appealed to the Second Circuit and lost.  Finally, Boris appealed to the United States Supreme Court which denied hearing the case in 2017.

During this time, Boris bore U.S. Bureau of Prisons Register Number 91641-054 and resided at the U.S. Prison in Marion, Illinois, to serve his 25-year sentence of imprisonment.

Amazingly, on November 29, 2022, the Assistant U.S. Attorney for the Southern District of New York requested an order enabling the U.S. Marshals Service to remove Boris from the prison in Marion, Illinois, starting as early as December 2, 2022, and to hold him in their custody pending a decision by the President of the United States to use his clemency power to order Boris’ release, which is exactly what occurred earlier this week, as you probably already know.

For you see, Boris was just one of seven aliases of Viktor Bout, the same Viktor Bout who was freed by President Biden in exchange for the release of WNBA basketball star Brittney Griner in a deal that many celebrated.

Consider all of the effort, all of the time, all of the resources, which went into the capture, the conviction, and the detention of this criminal, and how that was all undone because one U.S. celebrity illegally carried a vaping cartridge containing hashish oil while traveling in Russia.  

Indeed, this was a swap, but not a mere prisoner swap.   It was the swap of a large miscarriage of justice for a small miscarriage of justice.

In 2014, a documentary entitled The Notorious Mr. Bout was produced.  The IMDB.com summary begins as follows:

“When he was arrested in 2008 in Thailand as a result of a U.S. government sting operations, the career of internationally known arms smuggler Viktor Bout came to a decisive end.”

But has it?

May you find joy in what you do and who you are with.