Standards For A Conviction On Arms Trafficking

The Sacremento Bee ran a story this morning on St. Sen. Leland Yee (D-San Francisco) and his alleged involvement with international arms trafficking. The article reviews the criminal complaint against Yee and then discusses the evidence necessary for getting a conviction.

Albert Y. Dayan is the attorney who represented convicted Russian arms dealer Viktor Bout. Mr. Dayan is a criminal defense attorney located in New York City who has successfully tried a number of cases involving fraud, murder, money laundering, etc. He was interviewed as part of this story about the evidence necessary to obtain a conviction against Yee on arms trafficking charges.

The evidence necessary to secure a weapons-trafficking conviction depends on the arms involved, according to Albert Y. Dayan, an attorney who represents convicted arms dealer Viktor Bout. When air-to-surface missiles are being sold, all prosecutors need to prove is the existence of an agreement, he said.

More proof is required with small arms like rifles and pistols, Dayan said. There, the government must establish an “overt act” advancing the transaction. Intent alone is not sufficient.

“Accepting money is an overt act. Going out and purchasing a truck to deliver (weapons) is an overt act. Going on a plane to go to the meeting is not an overt act,” Dayan said.

The description of Yee’s reluctance to move aggressively on an arms deal does not necessarily expose the FBI to an accusation of entrapment, Dayan said – and if Yee were to pursue an entrapment defense, it would require him to acknowledge that he had agreed to broker a purchase.

“Even if the senator says ‘I’m not interested,’ the agent can and is allowed by law to keep asking and that would still not to rise to the level of entrapment,” Dayan said.

Given this, I think Yee is in a heap of trouble. It sure looks to me like Yee had an agreement regarding the shoulder fired missiles (see p. 84 of the criminal complaint.) Given that Yee accepted money from the undercover FBI agent, I think that might also constitute the overt act necessary according to Dayan needed for proof. Of course, I am not an attorney so this is all speculation on my part. It will be very interesting to see what happens when it comes to trial.