INS SAYS COURT'S DECISION IRRELEVANT
The Moscow Times
January 19, 2004
ALEXANDRIA, Virginia -- For a few minutes late on Thursday, it looked like controversial former banker Alexander Konanykhin would walk out of federal court a free man.
On the second day of hearings, U.S. District Judge T.S. Ellis nearly made a snap decision in favor of Konanykhin, who is being detained pending a ruling on his arrest and attempted deportation by U.S. authorities to Russia.
But then U.S. Assistant Attorney William Howard made it clear that the Immigration and Naturalization Service would by no means approve his release, no matter what Ellis ruled.
Even in the case of a favorable ruling for Konanykhin, "it is still up to the [INS] director whether to keep him in the slammer. I don't think so," said Ellis. "That should be repugnant to any person."
"Let's not be obtuse about this or blind. There is a significant interest in [Konanykhin's] return by the Russian government. And there is an interest by the U.S. government in satisfying that," Ellis said.
Ellis vowed, however, to continue looking into the case.
After a few minutes of deliberation, Ellis decided to give the defense more time in the complex legal wrangle. He scheduled the closing arguments for Jan. 26.
It was another moment of drama in a politically charged case marked by speculation, voiced by the presiding judge in particular, that the U.S. government is attempting to skew due process because it has entered into a pact with Moscow to return him to Russia, where he is wanted on embezzlement charges.
Konanykhin claims the sudden November overturning of the political refugee status that he gained in 1999, as well as his subsequent detention as he and his wife attempted to flee to Canada, is linked to the Kremlin's legal campaign against his former business associate Mikhail Khodorkovsky.
Khodorkovsky was arrested on fraud and tax evasion charges Oct. 25.
There is speculation that President Vladimir Putin could be seeking the return of Konanykhin as a key witness to settle scores with kingpins who squirreled billions of dollars out of the country during the presidency of Boris Yeltsin.
"If they get Konanykhin in Moscow, then they will be able to get those responsible for funneling the nation's billions out of the country," said Yury Shvets, a former senior KGB officer, who now has political asylum in the United States.
Konanykhin made a fortune at the age of 23 by running -- together with former KGB chairman Leonid Shebarshin -- the All Russian Exchange Bank, the first Russian bank to gain a license for hard-currency operations after the collapse of the Soviet Union.
According to Konanykhin, that relationship soured in 1992, and he fled to the United States where he hooked up with Khodorkovsky to run the U.S. operations of Bank Menatep.
But he soon came under scrutiny by Russian investigators for allegedly stealing $8.1 million from the All Russian Exchange Bank, and later by U.S. authorities on allegations of financial improprieties through his Antigua-based European Union Bank.
Konanykhin says he created the bank, touted as the world's first Internet bank, for Menatep. Khodorkovsky was a board member of EUB and president of Menatep.
According to a Federal Reserve Bank memo obtained by The Moscow Times, the chief partner of Konanykhin's bank was Swiss American bank, owned by banker Bruce Rappaport.
Rappaport was reported to be a key link in the Bank of New York money laundering affair, but no charges were brought against him
Konanykhin denies any wrongdoing. The Antiguan bank has since had its license revoked, but no criminal charges were ever filed.
On Thursday a senior officer for the INS conceded that the service had "a special interest" in sending Konanykhin back to Moscow.
"Konanykhin was of special interest to the U.S. government," Lisa Hoechst, acting chief for the INS team charged with the businessman's "removal" to Russia, said in testimony.
"Because he was wanted in Russia for a criminal offense and because of his previous history with the government of litigation, they wanted us to remove him before any additional suits could be filed," she said.
Ellis expressed disbelief.
"I think I understand. But if I do, it's astonishing," he said.
In the hearing Ellis is set to rule on the technical issue of whether or not the INS broke a 1997 agreement with Konanykhin by rushing to arrest and deport him to Russia before the courts had a chance to hear his appeal on his asylum case.
Konanykhin filed a $100 million lawsuit against the U.S. government in 1997 after a federal court ruled a 1996 attempt by authorities to deport him to Russia, and his subsequent jailing for 13 months, had been based on cooked-up charges of immigration and visa fraud.
In 1998 Konanykhin agreed for the damages suit to be put on hold pending final resolution of his immigration status, according to his lawyer J.P. Szymkowicz.
During hearings into his appeal against the immigration fraud charges in 1997, evidence was unveiled showing U.S. authorities had entered into a quid pro quo agreement with Moscow over Konanykhin.
According to a 1995 FBI internal memo obtained by The Moscow Times, Russian military prosecutors were requesting a return favor from the newly opened FBI office in Moscow for Russian cooperation on a U.S. investigation into American-based mobster Vyacheslav Ivankov, known as "Yaponchik."
"The general procurate is still treating the liaison process very much on a quid pro quo basis," it says. "In the absence of an extradition law, are there any immigration violations outstanding allowing immigration authorities to deport Konanykhin to Russia to stand trial for ... embezzlement?"
The memo was faxed from the Moscow office to headquarters in the United States.
It is not clear whether the Nov. 20 ruling by the U.S. Immigration Board of Appeals to overturn the asylum status he won in 1999 took more than four years because of a backlog of cases.
It is also not clear whether the decision to detain him and get him out the country was a move to head off paying damages Konanykhin had filed, or whether it was part of a pact to get him to Russia as quickly as possible.
"It makes me very sad and angry to know that the U.S. government is trying to send innocent people to death because of some dirty and petty political considerations," said Konanykhin's wife Yelena Grachyova in an interview.
Ellis urged Konanykhin's lawyers to seek a third-country haven for Konanykhin and his wife as the only way of testing whether the United States had made a deal to ship Konanykhin back to Russia or not.
The INS said it would not allow Konanykhin to go to Canada without refugee status because it is a country contiguous to the United States.
"My point is that the United States has the power not to return him to Russia," Ellis said. "If we don't have a deal with Russia, then let's see if he can go somewhere else."
Ellis pointed out the United States does not have an extradition treaty with Russia, the usual device for quid pro quo agreements on cooperation.
"One of the conditions of an extradition treaty is that we're happy in sending people to that country," he said. "Maybe we're not fully satisfied with due process available in Russia. I hope someone in the executive branch is asking themselves whether this is really the right thing to do in this case."
The INS claims it received confidential information from its Canadian counterparts that Canada would reject Konanykhin's asylum application there.
Law enforcement officials from both sides were not immediately available to comment, and the INS would not disclose the information it had received, citing a confidentiality agreement.
Ellis' ruling a week from Monday will hinge on whether Konanykhin had the right to travel freely in the United States under the terms of a 1997 settlement agreement he reached with the INS.
Although the original agreement specifies he should request permission every time he wanted to travel, Konanykhin claims he later reached a verbal agreement with INS officers.
The only evidence testifying to this agreement, he claims, is a letter from the INS that was in a suitcase put on the plane to Moscow during the December deportation attempt. It has not been returned.
Ellis' ruling will not decide Konanykhin's asylum status. Two other cases -- one to stay his deportation and another to appeal the Immigration Board's ruling -- are still pending.