ALBERT Y.

DAYAN
Attorney at Law

80-02 Kew Gardens Rd., # 902, Kew Gardens, N.Y. 11415 Tel: (718) 268-9400: Fax: (718) 268-9404

By Facsimile November 11, 2011 The Honorable Shira A. Scheindlin United States District Judge Southern District of New York United States Courthouse 500 Pearl Street, Room 160 New York. New York 10007 Re: United States v. Victor Bout 08-Cr-365 (SAS)

Dear Judge Scheindlin: Please accept this letter on behalf of Viktor Bout as a motion to set aside the verdicts rendered against him and for a new trial on the grounds that the verdicts were tainted by extraneous prejudicial information that came to the attention of a juror or jurors, or, in the alternative, for an evidentiary hearing at which the jurors can be questioned as to their exposure to the prejudicial material. The factual underpinning for this motion emanates from statements made post-verdict by Ms. Heather Hobson, the foreperson of Bouts jury, in an interview by New York Times reporter Noah Rosenberg which statements were reported in the Times on November 3, 2011. A copy of the Times story is attached. Among other things it is absolutely clear, from Ms. Hobsons own interview statements, that beyond the evidence properly admitted at trial, her knowledge of Mr. Bout was more expansive than she had realized as a consequence of the fact that she had, admittedly, seen that terrible Nicolas Cage movie, a reference to the film Lord of War. - a film whose main character was depicted as a cold-blooded purveyor of arms responsible for the deaths of untold innocents, women and children, in Africa and elsewhere. And as the film itself made quite clear, that evil, soulless character was unmistakably inspired by Viktor Bout. Indeed, Bout was explicitly named as the inspiration for the films villainous lead character at the end thereof and his photograph was even displayed to identify him.

The Honorable Shira Scheindlin Moreover, it is quite apparent that in rendering her verdict Ms. Hobson conflated the evidence at trial with the evidence of the terrible film she had viewed. For, while she referred in the interview to evidence of Mr. Bouts dangerous past there was no such evidence introduced at trial. The only evidence of Viktor Bouts so-called dangerous past was in the depiction of him in the film. This Court had, pre-trial, recognized the devastating prejudice that would be the result of material such as the content of the film in issue being placed before the jury. And, had taken extraordinary steps in an attempt to assure Mr. Bout a fair trial by precluding the introduction thereof, especially with regard to allegations linking Bout to the particularly disturbing African conflict so graphically depicted in the Lord of War film. This request for a hearing is not a fishing expedition nor is it based on an unsupported speculative claim. The evidence that the jury foreperson had been exposed to information terribly prejudicial to Viktor Bout is clear, strong and incontrovertible and the tenor of her delivery of the verdict in the court and her interview with the New York Times, as reported, indicates that this exposure affected her view of the defendant in a strongly negative way and contributed to the guilty verdicts. Thus, we would urge that a hearing is mandatory. See, United States v. Iannello, 866 F.2d 540 (2d Cir. 1989) (a post-trial jury hearing must be held when a party comes forward with "clear, strong, substantial and incontrovertible evidence . . . that a specific, non-speculative impropriety has occurred[.]; United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002) (a defendant has a constitutional right to be tried by an impartial jury, "unprejudiced by extraneous influence, and when reasonable grounds exist to believe that the jury may have been exposed to . . . an [improper] influence, the entire picture should be explored. Often, the only way this exploration can be accomplished is by asking the jury about it."). See also, United States v. Moten, 582 F.2d 654, 664 (2d Cir. 1978); United States v. Moon, 718 F.2d 1210 (2d Cir. 1983); King v. United States, 576 F.2d 432 (2d Cir. 1978). Accordingly, it is respectfully requested that the Court conduct an evidentiary hearing on the issue presented. Respectfully submitted,

Albert Y. Dayan cc. Brendan R. McGuire, Esq. Guruanjan Sahni, Esq. Kenneth J. Kaplan, Esq.