IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ALEXANDRE P. KONANYKHINE,
Petitioner,

v.

WILLIAM J. CARROLL,
Immigration and Naturalization Service
District Director,
Respondent.

CIVIL ACTION 97-449-A

REPORTER'S TRANSCRIPT

HEARING ON MOTIONS

Tuesday, July 22, 1997

BEFORE: THE HONORABLE T.S. ELLIS, III

Presiding

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APPEARANCES:

ARENT, FOX, KINTNER, PLOTKIN & KAHN

BY: JOHN N. NASSIKAS, III, ESQ.

D. JACQUES SMITH, ESQ.

1050 Connecticut Ave., NW

Washington, DC 20036

For the Petitioner

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MICHAEL A. RODRIQUEZ, RPR/CM/RMR

Official Court Reporter

USDC, Eastern District of Virginia

Alexandria Division

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APPEARANCES (Continued):

UNITED STATES ATTORNEY'S OFFICE

BY: ROBERT SPENCER, AUSA

2100 Jamieson Street

Alexandria, VA 22314

IMMIGRATION AND NATURALIZATION SERVICE

BY: ELOISE ROSAS, District Counsel

GENEVIEVE AUGUSTINE, Assistant DC

STEPHEN PASKEY, Assistant DC

For the Respondent

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PROCEEDINGS

(Court called to order at 10:00 a.m. in Konanykhine v. Carroll, et al.)

THE COURT: All right, good morning.

You may call the civil case.

THE CLERK: Civil Action 97-449-A, Alexandre P. Konanykhine versus William J. Carroll, Immigration and Naturalization Service District Director.

THE COURT: All right, Mr. Nassikas, you are here for the petitioner?

ATTORNEY NASSIKAS: Yes, your Honor, along with Jacques Smith.

ATTORNEY SMITH: Yes, your Honor.

THE COURT: And the petitioner is here in the courtroom.

Mr. Spencer, you are here on behalf of the government as the local counsel. Ms. Rosas is well-known to the Court. Are there others as well?

Ms. Rosas, will you be asking the questions today?

ATTORNEY ROSAS: Your Honor, the cross-examination will be conducted by Genevieve Augustine, assistant district counsel from the Arlington District of INS.

THE COURT: Ms. Augustine, we are glad to have you here today.

ATTORNEY AUGUSTINE: Thank you, your Honor.

ATTORNEY ROSAS: And Mr. Paskey is here, as well.

THE COURT: Right.

RECAPITULATION BY THE COURT

THE COURT: The matter is before the Court today to explore further the question that troubled the Court earlier about the possible use of, or presentation to the Court of tainted evidence.

For that purpose, three witnesses were identified. One of those witnesses is not here today, the lawyer. It appears that his evidence is only derivative, so after we hear the evidence today I will determine whether any further evidence is required.

Mr. Nassikas, you are really the moving party in this regard, so you may proceed to call whichever of the two witnesses you wish. Is there any request for the invocation of the rule?

Not by either side, I take it.

ATTORNEY NASSIKAS: I don't believe there is any need for Ms. Rizzi to be in the courtroom, and I don't expect her to be in the courtroom. But I don't think there is a need for the rule on witnesses.

THE COURT: All right?

ATTORNEY ROSAS: No.

THE COURT: All right, there isn't, then I won't have the rule.

You may call your first witness, Mr. --

ATTORNEY NASSIKAS: Thank you, your Honor.

THE COURT: -- Nassikas.

ATTORNEY NASSIKAS: We will call Mr. Yuri Shvets.

THE COURT: All right, come forward and take the oath, sir.

(Witness sworn)

THE COURT: All right, Mr. Nassikas, you may proceed.

ATTORNEY NASSIKAS: Thank you, your Honor.

YURI SHVETS, after having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, what is your name?

A. My name is Yuri V. Shvets.

Q. How old are you?

A. I am forty-four.

Q. Where do you live?

A. I live in Northern Virginia.

Q. In what country were you born and raised?

A. I was born in the Soviet Union and raised there.

Q. Did you go to college in the Soviet Union?

A. Yes, I did.

Q. Which college?

A. It was called Patrice Lanumba University [phonetic], based in Moscow.

Q. Is that Patrice Lanumba University?

A. That's correct.

Q. When did you graduate?

A. I graduated in 1980.

Q. Now, what was your focus of study at the university?

A. I had three majors: law, I write series on international law, and then English and French.

Q. And did you work for any prosecutors' offices while in college?

A. Yes, a kind of internship, I worked for Romanse [phonetic] in Moscow District Prosecutor's Office.

Q. And were you involved in civil or criminal cases there?

A. I worked on two criminal cases.

Q. Now, did you get a job after graduating?

A. Yes, I did.

Q. And where was that and what position did you receive?

A. Well, I invited and I took a job with the KGB, Foreign Intelligence Service.

Q. For the record, what is the KGB, briefly?

THE COURT: You mean what was the KGB?

ATTORNEY NASSIKAS: What was the KGB, your Honor.

THE WITNESS: The KGB, State Security Committee, which encompass the areas which in this country are executed by the CIA and FBI. I worked in the department which was equivalent to this American CIA.

BY ATTORNEY NASSIKAS:

Q. How many years did you work for the KGB?

A. I worked for ten years.

Q. Would you please briefly summarize for the Court the different positions you held at the KGB over that ten year period?

A. During the first two years, I studied at the KGB Institute of Foreign Intelligence, where we were actually trained for the job. It was postgraduate studies. The subjects we were trained in were intelligence, counterintelligence, analysis of documentation, and so-called active measures, which is in real world maybe called KGB disinformation operation.

Q. Briefly on that subject, about what percentage of your time was devoted to document analysis while in the institute and at the KGB?

A. In the institute, we spent two hours a day, six days a week for two years, studying the document analysis. We didn't spend any -- well, we didn't spend more time on any other subject.

And the reason is that the work of any average intelligence officer, this was mostly the work with the documentation. And in the headquarters, afterwards, I spent daily about 95 percent of time working with documentation.

And there were different files, operational files, which was the kind of investigation, you know, intelligence operation, analytical files, and disinformation operations conducted by the KGB.

Q. When you --

THE COURT: You said two hours a day, how many days a week?

THE WITNESS: Six days a week.

THE COURT: And was that for two years?

THE WITNESS: For two years.

THE COURT: And what were you doing with respect to documents during that period of time?

THE WITNESS: First we were trained -- the basic idea was to train us, to learn how to find the tidbits of truth in the heap of irrelevant information, how to put these pieces together and file and to write analytical report on the basis of these truths. So, this is purely analytical job.

Another part of this training was how to compose reports, analytical reports on the basis of information found. And it was pretty tricky business in the Soviet Union.

THE COURT: Was any of your training devoted to being able to detect whether or not documents were valid or invalid?

THE WITNESS: Absolutely. It was the major point. Because as I said, intelligence officers mainly worked with the files. Some case officer is working overseas on some kind of operation. I am running this case out of headquarters, and I don't see this case officer.

The only thing I see is -- are his reports. And my job is to analyze these reports, first to determine whether he is saying the truth, because in many cases, since there was actually no way to check out what he is actually doing.

So, very often officers reported, they actually lied on many occasions. So, the number one priority was to establish the truth.

Number 2 was to determine whether the operation goes in the right direction. And then in case of emergency, if the operation collapses, my job is to analyze the reason and what can be done.

THE COURT: Go ahead, Mr. Nassikas.

ATTORNEY NASSIKAS: Thank you, your Honor. BY ATTORNEY NASSIKAS:

Q. Now, you used the word "disinformation." Could you explain what your training was in the area of disinformation, for the Court?

A. Disinformation was the third most important part of the KGB intelligence operation. The idea is, it was an operation designed to influence public opinion, the influence of top government officials of foreign countries in a way favorable for the KGB.

There were plenty of ways to do that: publication of articles, based on true facts, semi-lies -- true facts, partial truth, semi-lies and lies; and publication of such of these articles somewhere in the foreign mass media, in order to draw the attention of the public opinion; or to influence an agent of influence, and to convey through him the information needed to the KGB to certain government official of foreign countries.

Q. Mr. Shvets, after your first two years of training at the institute, could we go back to the question of what your chronology of your job was at the KGB, briefly, for the remaining eight years?

A. I spent two years at the KGB Intelligence Institute. Then I was assigned to the North American Department of the KGB Foreign Intelligence. It was the most important department which supervised the KGB intelligence operations in the United States and Canada.

I worked there until 1985. Then I was sent on a mission to Washington, DC. I was assigned to the Washington, DC, KGB residence here, where I worked until 1987.

Then I returned to back to the KGB Headquarters in Moscow, and over the last four years until I retired in September 1990, I was doing mostly analytical jobs. I was chief analyst of our Division on Political Analysis, and on any intelligence operation concerning the United States.

Q. At the end of your tenure at the KGB, had the focus of what KGB field officers like yourself shifted at that period in the Soviet Union?

A. Yes. And it was, to a very large extent, the reason of my resignation. Because since, I would say since 1989, the KGB, Foreign Intelligence Service was redirected towards what we call internal domestic spying.

We were ordered to fulfill the orders of the KGB Chairman, Kuchkov [phonetic], who, late in 1991, started to -- [inaudible] -- the coup d'etat in the Soviet Union.

So, our job since about 1989 was to gather information about the domestic situation in the Soviet Union and present it in a way that Kuchkov and KGB leadership could manipulate the Government of the Soviet Union, primarily Mikhail Gorbachev. And all this information was designed to justify the coup d'etat in the Soviet Union. This is exactly what happened.

Q. What year did you leave the KGB?

A. I left the KGB on my own in September the 12th, 1990.

Q. And did you subsequently immigrate to the United States?

A. Yes. I did it in September 1993.

Q. And what is your current immigration status?

A. I am a permanent legal resident. Prior to that, I got political asylum in this country.

Q. When was that, that you were granted political asylum?

A. It was 1995.

Q. Now, do you have any concerns about your immigration status by testifying today?

A. I seriously have concerns about my, my security, because I can no doubt that the KGB is visibly present in this case, on the other side across the ocean. I have very little doubt, or reasonable concerns about my close relatives out there.

This is serious case, and I know that KGB is -- desperately wants to win this case, and everybody who won't step to their side would face problems.

ATTORNEY NASSIKAS: We will get to that information in a minute, Mr. Shvets.

BY ATTORNEY NASSIKAS:

Q. Have you been served with a subpoena to testify here today?

A. Yes, I was.

Q. And pursuant to the subpoena, did you bring documents with you relevant to the issues of this proceeding?

A. Yes, I did.

Q. And what documents, generally, have you brought with you?

A. This is a letter rogatory, and then some of my notes which I took, reading this letter rogatory, indicating specific pages and supporting the points I want to make.

Q. Now, directing your attention to July 1996, did you perform any services for the INS in a case against a man named Alexandre Konanykhine?

A. Yes, I did.

Q. And who recommended that you do this work?

A. It was the president of Antiquariat [phonetic] Literary Services. This company I was told had $3 million contract with the Justice Department on translation, legal documentation, from Russian to English and vice versa.

Q. And who was the head of this company?

A. His name is Werner Hendrichs.

Q. And is he the person who got you involved in the case?

A. Yes. He called me and he said that the INS had been working on a very complex case, that he told the INS about my background. And he again checked my background, asked me questions to make sure that he was correct.

Then he said that he would report our conversation to the INS. And about two days later he got back to me and said that the INS would like to hear my expertise, expert opinion on this case.

Q. So, what was your specific understanding before you went to the INS of what the services were that INS wanted you to provide?

A. I can no doubt answer, he said it quite clearly, that it was consulting on a specific case, that is, the Konanykhine case; that my job was -- would be to look into the documentation and to give an expert conclusion on this file.

Q. And what was your understanding of what in your background made Mr. Hendrichs understand that you would be qualified for this task?

A. First, it was my background as a KGB intelligence officer. Second, and he rechecked it in conversation with me, was my training as a lawyer in Russia. And that's it.

Q. What was the specific nature of your employment relationship with Mr. Hendrichs and Antiquariat Literary Services?

A. Sometimes I was doing translation for them, mostly from English into Russian, on most complex documentation which needed -- which required the knowledge of equivalent English and Russian legal terminology. So, he knew that I was a lawyer and that I was doing this business.

Q. Were you --

THE COURT: Let me ask --

ATTORNEY NASSIKAS: I'm sorry.

THE COURT: -- what do you do now, Mr. Shvets?

THE WITNESS: Now I, I established my company in this country, and I am involved in expert for electronic computer equipment from this country. Besides that, I am doing consulting jobs.

THE COURT: Next question.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Were you an employee of ALS?

A. No, I wasn't.

Q. What was your arrangement with them?

Was it just an ad hoc arrangement of some kind?

A. Yes, exactly. Sometimes he called me and he asked me to do some translations, and I did. And we had an arrangement when I charged them per work.

Q. Mr. --

THE COURT: What is ALS again?

THE WITNESS: I charged them for my translation. I charged them per work.

ATTORNEY NASSIKAS: ALS, your Honor, stands for --

THE COURT: Let me ask.

ATTORNEY NASSIKAS: I'm sorry.

THE COURT: What is ALS?

THE WITNESS: Antiquariat Literary Service.

THE COURT: What kind of service?

THE WITNESS: A literary service.

THE COURT: What's the first word?

ATTORNEY NASSIKAS: It's Antiquariat.

THE WITNESS: Antiquariat.

THE COURT: Antiquarian Literary Service?

THE WITNESS: Yes.

THE COURT: And what is that; is that a translation service?

THE WITNESS: Yes, it is mostly a translation company.

THE COURT: All right, go ahead.

ATTORNEY NASSIKAS: And your Honor, I believe it's Antiquariat. It ends with a "t." And it is currently ALS, with the initials, ALS, Inc.

THE COURT: All right.

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, did you attend any meetings at the Immigration and Naturalization Service about the work you were to do?

A. Yes, I did.

Q. When did these meetings take place?

A. I think it was in mid July.

Q. Of what year?

A. Nineteen Ninety-six.

Q. And where did these meetings take place?

A. They took place in the INS Building in Arlington, Virginia.

Q. Do you recall over how many --

THE COURT: What were the dates again,

Mr. Shvets?

THE WITNESS: Excuse me, your Honor?

THE COURT: What were the dates again?

THE WITNESS: It was in the mid July.

THE COURT: Of Nineteen what?

THE WITNESS: 'Ninety-six.

THE COURT: And how many meetings did you have?

THE WITNESS: In total I had, I worked -- I worked there for some days. Here my memory, to the best of my recollection, I worked for three days. But some of my records indicate that it was actually two days. But I spent full, these days full in the INS.

THE COURT: All right.

Go ahead, Mr. Nassikas.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, what time of day did your first meeting at INS take place?

A. It was at 10:00 o'clock in the morning.

Q. Who was present at that meeting?

A. It was Werner Hendrichs, the owner of the ALS. He brought me, I guess it was the fifth floor --

THE COURT: What was the name again?

THE WITNESS: Werner Hendrichs.

THE COURT: Hendrichs?

ATTORNEY NASSIKAS: And for the record, it's spelled H-e-n-d-r-i-c-h-s, and the first name is Werner, W-e-r-n-e-r.

THE COURT: All right.

Go on.

THE WITNESS: Present were Eloise Rosas, Antoinette Rizzi, Deborah Todd, Mr. Paskey; and a gentleman about my age, about my complexity, blond, and gray suit, and he never introduced himself and I don't know his name.

BY ATTORNEY NASSIKAS:

Q. Was Mr. Paskey at that first meeting?

A. I'm sorry, I'm sorry. No, he wasn't. No, he wasn't.

Q. It was Ms. Rosas, Ms. Todd, Ms. Rizzi --

A. And the --

Q. -- with the INS?

A. And the gentleman I don't know his name.

Q. Who appeared to you to be in charge of that meeting?

A. It was Ms. Rosas who presided the meeting.

Q. Could you describe to the Court what Ms. Rosas told you at this -- at the beginning of this meeting?

A. First, she asked me about, whether I had heard anything about the Konanykhine case.

The answer was no.

Second, she asked me about my background, and I repeated everything I said to Werner Hendrichs, that I am a retired KGB, that I spent seven or ten years working there, that I have a degree on law and on English and French.

And then she said that they would like to hear my opinion on the Konanykhine case. She explained that it's a very complex case. The questions she raised were, first, what the military prosecutor was doing in this case; second, what -- why there are a number of KGB people in the case, and how to explain what they were doing there, what was their role.

Then she kind of paused, she looked hesitant, and then she said that the INS got instructions from the top to cooperate on this case. And the case looked pretty complex.

So, she asked me to read the documentation that they were going to provide me. She asked me to analyze this information and to report my preliminary findings the same day, at 2:00 p.m.

She also said that -- she asked me whether I would be willing to go to testify in court. It was pretty much -- I didn't expect this question. It was very unusual for me.

So, I said that I wasn't sure that I would have -- I have enough expertise on this particular case. So I said that first I need to look into the file, and then I would give my definite answer.

She said, "Okay," and then she said that they would like to have my written report on this, on this case.

Q. Was there any mention by Ms. Rosas of Lieutenant Colonel Volevodz at that first meeting?

A. It was, it was number one, number one question, what the military prosecutor is doing in there.

Somebody from the INS employees present in this meeting asked me to concentrate and give an answer whether he is an important person.

And they explained that the Russians, namely Volevodz, are working very hard to get Konanykhine back. So the INS was interested in their motivation, why are the Russians so desperately trying to get him back.

Q. Did Ms. Rosas indicate to you, when there was the reference to the INS getting instructions from the top to cooperate in this case, did she indicate who at the top was giving those directions?

A. No; to the extent as I remember, no.

Q. Did Ms. Rosas indicate to you what her superiors wanted the outcome of the case to be?

A. It was pretty clear for me that they wanted to deport Konanykhine.

THE COURT: Deport to any particular country?

THE WITNESS: To Russia.

BY ATTORNEY NASSIKAS:

Q. Were there any discussions at this first meeting about corruption in the Russia -- in Russia or in the Military Prosecutor's Office?

A. Exactly. One of the questions they asked me to concentrate upon was the corruption in the Russian Government in general, and in the law enforcement and Prosecutor's Office in particular.

Q. And were there any discussions about how you were to proceed with your task later that day?

A. I was told that -- after that I went to special room, that was on the third floor, and they brought documentation to me. And I had time to read it until 2:00 p.m. And then they fixed a meeting at 2:00 p.m.

Q. Before we get to the 2:00 o'clock meeting, did the man in that first meeting, who you were not able to identify today, ask you any questions about Mr. Konanykhine?

A. Not at the first meeting. It was, the questions concerning specific, specific circumstances of the case were actually started to take place during the second meeting.

Q. Was there any discussion at that first meeting about the possible consequences to Mr. Konanykhine if he were deported back to Russia?

A. It was at the second meeting, at the 2:00 p.m. -- at 2:00 p.m.

ATTORNEY NASSIKAS: We will turn to that in one moment.

BY ATTORNEY NASSIKAS:

Q. Now, in response to what Ms. Rosas and some of the others said at that meeting, what did you say at the end of that meeting?

A. I just knew that I -- what they wanted for me was to show -- to read the file, to analyze the case and to explain all this difficult and complex questions, and to give them the best recommendation how can they cooperate with the Russians on this case.

Q. Was there any discussion about your security clearance?

A. Yes. It was one of the first questions raised by Ms. Rosas. She asked about my security clearance. And my answer was that, as I understood, since I moved to the United States in September of '93, the U.S. Government agency ran background security checks on me. So I just returned -- referred them to the FBI.

Q. Now, did any of the INS attorneys give you any documents at that first meeting?

A. They brought these documents immediately, when the meeting was all over, they brought these documents to a special room on the third -- I guess it was on the third floor.

Q. And were those documents in English or in Russian?

A. They were both in English and Russian, but I mostly concentrated on reading the Russian versions, originals of the documents.

Q. Do you recall what types of documents you were given?

A. I immediately start to read the letter rogatory, since it was the most important document, and then the document called "Resolution." These are the findings reported by Prosecutor Volevodz on the basis of his investigations.

Q. Now, why did you read the documents in the Russian?

A. Because it was important from the point of view of character analysis. The translation version -- and I know it pretty sure doesn't reflect the personality of the person who wrote this document. And besides, in Russia it is especially important to read sometimes between the lines. Sometimes you can catch much more information between the lines than the lines themselves.

Q. Were all of the documents that you read in Russian fully translated into English in that letter rogatory file that you reviewed?

A. No. I saw -- Werner Hendricks was coming and going at the time, and the Russian documents were still coming into the INS, and they were -- many of them were in the process of translation.

Q. So, did the documents come to you all together or were they on a continuing basis being brought to you?

A. Yes, exactly. They were being brought on a continuing basis. There was not, they call a single file yet.

Q. Do you recall whether you reviewed any documents that morning that were not a part of the Russian letter rogatory?

A. Yes. There were a couple of letters written by Alexandre Konanykhine's attorney, defense attorney.

Q. Do you recall which attorney?

A. Mr. Maggio.

Then there were some documents which contained reference of FBI marginal involvement in investigating this case.

Q. Were --

A. And some -- excuse me, I am afraid to lose -- and some documents which reflected statements, claims made by Alexandre Konanykhine.

Q. Have you recently had an opportunity to review the letter rogatory package?

A. Yes.

Q. Are there any documents, in reading that current letter rogatory package, that you recall not being in the package that were in the package that you reviewed last year?

A. No, basically all the documentation I read last year is attached to this file.

Q. Are there any -- do you know if there were any documents missing from the letter rogatory package you reviewed last year?

A. Well, I explained just that, they were -- last year there were several documents which I can't find in this particular file this year.

THE COURT: Let me see if I understand that.

ATTORNEY NASSIKAS: Thank you, Judge.

THE COURT: There were some documents that you saw in 1996 that are not in the letters rogatory that were furnished to you by Mr. Nassikas?

THE WITNESS: Yes, exactly, your Honor.

THE COURT: Which ones are missing?

THE WITNESS: There were some documents containing statements made by an Alexandre Konanykhine.

THE COURT: All right.

Next question.

ATTORNEY NASSIKAS: Thank you, your Honor.

THE COURT: If that's significant, I would expect you to pursue that. Otherwise, I will assume it's not significant.

ATTORNEY NASSIKAS: At least at the moment, your Honor.

THE COURT: All right.

BY ATTORNEY NASSIKAS:

Q. Did anyone, at the time they brought you the documents, say anything to you about what the documents were?

A. I was told these were the documents provided by the Russian Military Prosecutor's Office.

Q. So, once you were in the room with the documents, what did you do from that time until the 2:00 o'clock in the afternoon meeting?

A. I started immediately reading this documentation, and I concentrated immediately on two documents, the letter rogatory and the "Resolution," which is the most extensive document in Russian version, containing the description of the whole case.

Q. Did you make any efforts to prepare or begin to prepare a written report at that time?

A. Yes, absolutely. Since I was asked to prepare at the end of my job the written report, I was taking, I was taking extensive notes, factual notes from this file. And I still have several pages of those notes at my home.

Q. Did you have another meeting, then, that afternoon at approximately 2:00 o'clock?

A. Yes. Approximately 2:00 o'clock we had the second meeting.

Q. Had you taken any break for lunch in that time?

A. No.

Q. With whom was your meeting at 2:00 o'clock that afternoon?

A. It was the same people which were present at the first, initial meeting.

Q. So, in terms of INS lawyers, would that be Ms. Todd, Ms. Rosas, the man you have been unable to name?

A. Yes.

Q. And anyone else?

A. And Ms. Rizzi, I am not real pretty sure about her, because she was kind of coming and going. But she was around.

THE COURT: How about Mr. Paskey?

THE WITNESS: No. The first time I met Mr. Paskey was my last meeting with the INS officials.

THE COURT: All right, go on.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. At the 2:00 o'clock meeting, what did you tell the INS lawyers, Ms. Rosas, Ms. Todd and the others?

A. I should tell that these two documents, initial documents I read, they were actually screaming about --

THE COURT: They were what, Mr. Shvets?

THE WITNESS: They were familiar -- they were screaming about the lies, about the fraud. So --

THE COURT: Screaming? You mean like screaming out loud?

THE WITNESS: Yes.

THE COURT: Screaming about what?

THE WITNESS: About fraud, manipulation.

THE COURT: All right, go ahead.

THE WITNESS: So, when we started the second meeting, I said:

You are in big trouble with this case, because you asked -- you got instructions to cooperate, but I saw in this files strong indications that the Russian side is just lying.

And I said that:

From the documents I read, I saw strong indications that this is not the case about Alexandre Konanykhine. This is the case about KGB covert operation, in which most probably hundreds of millions of dollars were smuggled by the KGB from Russia, deposited under secret accounts in the West.

And since Alexandre Konanykhine fled Russia, moved to the United States and went public and started writing petitions to different Russian institutions and top government officials, so the KGB, together with the Military Prosecutor's Office, make a decision to make a cover up.

And this file --

Q. This is what you are telling the INS lawyers?

A. Exactly. And from this, these documentations, I saw it.

Q. Did you discuss in that 2:00 o'clock in the afternoon meeting the jurisdiction of the military prosecutor, in any of your preliminary conclusions?

A. Exactly. It was the first question which I was asked to respond, and my response was that this is, exactly explains the presence of the Russian military prosecutor. Because Alexandre Konanykhine is a civilian, and is not a subject of his jurisdiction.

The military prosecutor writers -- and he is very shy about his jurisdiction -- he writes in his documents that his jurisdiction is to observe the law in the Russian Armed Forces.

That is not the whole truth. His jurisdiction extends to the matters involving the so-called state secrets, and the source area is the KGB. And I mean, active duty, not retired, but active duty KGB officers and current, active KGB interests. And this is exactly explains the presence of the military prosecutor in the case.

Q. And this is what you told the INS attorneys at that 2:00 o'clock in the afternoon meeting?

A. Yes.

Q. You mentioned that there were three aspects to a military prosecutor like Volevodz's jurisdiction. What were the three aspects?

A. First is to observe the law in the Armed Forces. The second is so-called state secrets, where investigation and court hearing is behind closed doors are required. And the third is the current active duty KGB officers or current KGB interests.

Q. And of those three different prongs of jurisdiction, what did you tell the INS lawyers at that meeting looked to you was the aspect of jurisdiction at work in this case?

A. I said that the, the only explanation why he is present is that current KGB interest and active duty KGB officers are involved.

Q. When you reviewed the file that morning, were you able to determine whether there were active KGB officers at issue in the case?

A. Absolutely. It was the document called "Resolution," which contained the most extensive, one single document description of the whole case.

And so they were -- the names of active duty KGB officers immediately caught my eye, and then I just started looking through other documentation, looking for dates, where they were active and where they became ostensibly retired.

Q. Did you discuss -- well, at that meeting -- why the KGB would put active duty officers into this report if they were trying to be deceptive?

A. Not really. I -- basically no questions was asked. I was -- at this meeting I was reporting my preliminary findings. I was also giving answers on questions which were raised during the first meeting.

Q. And this was your preliminary view of the record?

A. Yes. I should tell that no one actually asked any question, no one asked me to elaborate, to go deeper into the details of this meeting.

Q. Mr. Shvets, what was the reaction and the response of the INS attorneys in the room that afternoon to what you had just told them?

A. First it was silence. Then Ms. Rosas said that the INS shouldn't really worry about what happened in Russia and what was in this particular file. There were just several days, if I remember, four or five days left before the hearing in the INS Court.

And she said that the INS's position is pretty strong, since Alexandre Konanykhine came to the United States on a bad visa, the INS had enough reason to deport him without getting involved into the details of what had happened in Russia and what is in the file.

Q. Was there a request for you to continue your analysis at that time?

A. Yes, there were a couple of questions raised.

Q. What were the questions?

A. The gentleman, I don't know his name, he raised question, he had raised the question whether Alexandre Konanykhine would have a fair trial if he is deported to Russia.

My answer was: Absolutely not. This is exactly why the military prosecutor is here. The Russians had already made the decision that Konanykhine is guilty, and they were going to -- I said that most likely he won't be killed in the street.

What they wanted, as I understood, reading the file, it was a story when the KGB smuggled from Russian hundreds of millions of dollars. I firmly believed at that time, and I got additional corroborating evidence.

So when Alexandre Konanykhine started to make public declarations, the KGB got scared that these declarations, statements, can expose their hundreds of millions of dollars, and they can lose it, and that this crime can be exposed.

Q. So, what did you tell -- is that what you were telling the INS attorneys that afternoon?

A. Yes, exactly.

So, what the --

Q. What did you say to the INS attorneys were the possible consequences to Mr. Konanykhine if he were to be returned to Russia?

A. Exactly, what the KGB needed and the military prosecutor is to shut him down, to silence him, to make sure that he doesn't make any statements any more.

Q. And what did you tell the INS lawyers would be the way the Russians would shut him down, if he were deported?

A. So, I said that first they needed to shut him down; second, they should send the strong message to other people, who were like Konanykhine in similar operations, that they shouldn't follow his suit.

So, the most likely development would be, if they get him back, they needed to publicly crucify him. So, they would held closed door hearings, they will sentence him.

It's not a matter -- it doesn't matter what he says or what his defense is going to say. It is all irrelevant. His fate is predetermined. He would be put in jail, and he will rot in death in the jail.

I said specifically that they would create such an environment for him in jail that every single minute for the rest of his life he will dream to be executed, because the life will be intolerable.

For starters, they would -- they have plenty of methods to do that. For instance, they can put him in --

THE COURT: Let me ask you this: Prior to '96, when you were asked or retained by the INS to give your opinion on this, had you ever heard of Konanykhine?

THE WITNESS: No, never.

THE COURT: You didn't know him?

THE WITNESS: No, never.

THE COURT: Have you ever met him since then?

THE WITNESS: No, never.

THE COURT: You made some reference to Konanykhine making public a KGB scheme to smuggle millions out of Russia. How did you know that?

THE WITNESS: I read all this in this file, in these documentation.

THE COURT: Yes, but there isn't anything in that documentation, is there, about KGB schemes to smuggle millions out of Russia, is there?

THE WITNESS: Exactly, there is -- in his statements --

THE COURT: Oh, his statements?

THE WITNESS: In his statements there were no references, there is no exact statements that the KGB did it. But I found in other documentation. But my strong belief was that the KGB just, when he started talk publicly, they got scared that the mass media, the people can just reveal the whole truth.

THE COURT: Well, let me see if I understand it. Did you know from, or believe from your own sources that the KGB had developed a scheme to smuggle millions out of Russia?

THE WITNESS: No, I have the firsthand information. I have a firsthand knowledge on similar operations conducted by the KGB.

THE COURT: And from the letters rogatory that included documents from Konanykhine, did you learn from that, that Konanykhine was making public statements about that?

Let me ask you this: How did you know Konanykhine was making public statements or writing letters about the KGB scheme to smuggle millions out of Russia?

THE WITNESS: Maybe I put it in the wrong wording. Konanykhine was not charging KGB in doing this. But he started bringing charges against people who were involved with him in setting and running commercial enterprises. They were KGB people.

THE COURT: All right. Go on.

THE WITNESS: So, the KGB's concern in such cases would immediately be that if this man makes revelations, mass media can pick up, maybe make their own investigation, and the whole truth can be exposed.

And the last straw, which I strongly believe led to starting, initiating criminal instigation against Konanykhine in Russia, was his letter petition to President Yeltsin. The --

THE COURT: Tell me about that.

THE WITNESS: Alexandre Konanykhine left Russia in September 1993. According to letter rogatory, the criminal proceedings against him started in March 1994.

Before this period before he left and before, it was almost a year, everything was quiet. And as I understood from the letter from this file, he was making the statements and still the KGB kept quiet.

But when he sent a letter to President Yeltsin, it was KGB's turn in mortal danger. Because this is Yeltsin's government who was defrauded of this hundreds of millions of dollars, and they just got scared. They needed to act immediately in order to cover them up. Otherwise, they are just in mortal danger.

And remember the situation, it was shortly after the collapse of the Soviet Union, in December '91, when Yeltsin's democratic government came to power, the government coffers were empty. The country was on the brink of economic disaster.

And the country, the government didn't have hot currency, convertible currency, primarily U.S. dollars, to import the most important products. And the country was critically dependent on imports. At that time, about forty percent of food was imported from abroad.

The country didn't produce such things as shaving razors, toothpaste. So the Russian Government was in desperate situation. It was asking U.S. Government and other Western democracies for humanitarian aid, and this aid was delivered because the Russian Government didn't have to pay.

At the same time, KGB, exactly at the time, was secretly smuggling from Russian hundreds of millions of dollars. It was a crime, huge crime.

And these people, when he started talking -- and most importantly, when he sent the petition to President Yeltsin, they got mortally scared, and they needed to act. And this is their reaction, as I understood it.

THE COURT: I thought the KGB ceased to exist after the Soviet Union was dissolved. Is that not right?

THE WITNESS: No, your Honor, it is not correct. It exists, even though it has changed the name. The same people, the same -- the same tasks. The United States is, again, the main adversary. They are keeping spying on the United States, and this is the same repressive domestic agency.

THE COURT: What is the name of it now?

THE WITNESS: KGB was split in two parts. The intelligence arm is called SVRR. It stands for Russian Foreign Intelligence Service. The domestic branch is called Federal -- FSB, Federal Security Service.

THE COURT: All right, go ahead, Mr. Nassikas.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, what is the reason for the KGB or its successor agencies to try to get the money out of Russia?

A. Well, it was an emergency operation. When they failed in August '91, there was big story about the vanished billions of dollars from the Soviet Communist Party.

They felt that they were losing ground, that they can't stay in power any more. So, their only choice was to smuggle these billions of dollars out of Russia in order to make their living, to make their safe nests overseas, and then to finance their commercial/political operations in Russia.

Q. Was the ruble being devalued at that period of time?

A. Yes, it was in a bad state.

Q. So, that was an economic reason to have the rubles converted into hard currency outside of Russia?

A. It was not just -- this smuggling was not an economic. It was a crime against the Russian people. And the idea was to secure a financial basis for top KGB and Communist Party officials to conduct further political activity and to run their economic enterprises.

Q. All right, Mr. Shvets, two quick follow-up questions before we move on, on this subject. You indicated to the Court that you had firsthand knowledge of similar operations --

A. Right.

Q. -- of moving money outside of Russia, and the KGB's involvement in setting up that fraud, could you just briefly describe what the nature of your firsthand knowledge was?

A. Yes. It was about four months before August '91 coup d'etat, I was approached by the top bosses of the Central Committee of the Soviet Communist Party, and they offered me a job. They had developed already the scheme. They realized that -- they said:

We would give you a suitcase with dollars. You would cross the street to the nearest bank. Official exchange rate, dollar for ruble, was 1 to 23.

They said:

We will settle for 1 dollar for 17 rubles. So, you will make 6 rubles on each dollar. You go out there, you exchange, you bring rubles back, we give you more. And we will be giving you as much as you can absorb.

Now, you accumulate huge amount of money. We have a man, he was a regional big boss in Ukraine, in the Propetrovski [phonetic] region, that has a huge deposits of black marble. You go over there with this money and you will buy as much marble as you need.

Now, we know a company established by -- from Kuwait, a Kuwaiti company in the Soviet Central Asia. They are looking exactly for this black marble to build the palace for Amir [phonetic]. So, you will go with this marble out there and sell them, and you will get money. And then we will repeat the whole transaction.

So, the only thing they needed -- they had all the pieces in place. The only thing they needed is a former experienced KGB operator who will execute the whole thing and who will assume all responsibility. In response they needed -- so, the money would be accumulated.

Then, one of my colleagues, we worked with him in the same department. His name is Colonel Vosolovski, and he is pretty now in Western mass media. This is the man who smuggled dollars from Russia and deposit on accounts in Swiss banks in huge suitcases.

He smuggled several suitcases, and KGB participated. Sometimes he would pick up the suitcases in KGB residences, and smuggle them out of the country. Sometimes they would send him to special destination point for diplomatic reasons.

So, he deposited lots of money in this way in Swiss banks. But with the last suitcase he disappeared somewhere in Israel, and he is somewhere in Israel, in hiding these days.

Q. All right, Mr. Shvets. And then the final question on this area, after you described to the INS attorneys, including Ms. Rosas, what would happen to Mr. Konanykhine were he to go back to Russia and how he would be put in jail and left to rot, what was her and the other attorneys' response?

A. Well, I said basically about the response. The response was:

We shouldn't really care about what happens and what is in the file. Our position is strong: He came on bad visa and we have sufficient reason to deport him.

Q. Did you continue to work on this project later that day, after your 2:00 o'clock meeting?

A. Yes. I kept on working until the office was about to close.

Q. Which was about what time?

A. About 6:00.

Q. And after you worked at the INS offices, did you continue to work on this project that night?

A. Yes. I took -- as I said, I took extensive notes and I kept analyzing these notes, and I was -- I started making a draft report, which I was requested to make during the first meeting.

Q. That was at night, at home that night --

A. Yes.

Q. -- you started to make your draft report?

A. Yes.

Q. Now, at the beginning of the next day, did you go back to the INS to work on this project?

A. Yes, I did.

Q. Could you describe the -- who did you meet with -- or actually describe to the Court what you did that morning.

A. I went immediately to the room, to the same room where I worked the previous day, and I got additional documentation and I kept reading these documentation, kept on taking extensive notes. So somewhere by 1:00, 2:00 o'clock, 2:00 p.m. that day, I had more corroborating evidence which supported that, my preliminary findings made the previous day.

Q. So, did you meet with anyone from the INS that afternoon?

A. Yes. I met Ms. Deborah Todd.

Q. And how long did you meet with Ms. Todd, approximately?

A. We spoke for about thirty minutes.

Q. How many minutes?

A. About thirty minutes.

Q. Thirty minutes.

What did you tell Ms. Todd at this point in your review?

A. I told her about the vanished Communist Party money, about my experience with the similar operation, and I said that -- I reminded that the Soviet Government, Yeltsin Government, in somewhere in '92, asked for help, the foreign governments, to locate the vanished billions of dollars. And I said, this is exactly where we should look for those moneys.

And by that time, I had pretty -- well, I had exact reference to specific pages, specific episodes which showed the KGB involvement in this case.

And as I understood, she was responsible in the INS for the liaison with the FBI. So I said:

This is a big case, and this is a very explosive case. I would strongly recommend you to send this case back to the FBI, because if you want to cooperate, you would need to start the investigation of the whole case from the scratch. The Russians are lying. They start lying basically from the first special letter rogatory and on.

Q. Did you --

THE COURT: What was her response?

THE WITNESS: There was no response on this question.

BY ATTORNEY NASSIKAS:

Q. Did you suggest to Ms. Todd any ways you could help the FBI if they were to begin an investigation from scratch?

A. Yes. I saw in the documentation that the FBI was marginally involved in investigating some aspects of this case. So, I had strong feeling that the agents involved did not know the whole picture, the whole situation.

So I said that if they make a decision to send this back to FBI, I can help. I can work on this case and pinpoint specific issues which should be raised during the investigation, and explained the meaning of the facts, events described in this file.

Q. What was Ms. Todds' response to those comments by you?

A. There were no response.

Q. Was there no response at all, or simply an uninterested response?

A. She looked kind of neutral.

Q. Did you discuss the written report that you were in the process of preparing with Ms. Todd that afternoon?

A. Yes. I said that I am ready to deliver a report, that I am actually working on taking notes on this report. And I said, "Do you still want me to write this report?"

She said, "No."

Q. Did she say why she didn't want you to write the report?

A. I asked, "Why?"

And she said that, "If you write this report, we will have to attach it to our file."

Q. Did she say to you why she did not want the report attached to the INS file?

A. No, she didn't.

Q. Did you object to Ms. Todd, to what she was proposing?

A. No, I wasn't.

Q. Why not?

A. My position and my role for me was such that I was invited to consult. I did my job to the best of my expertise and ability. And since I delivered what I was asked to deliver, it was actually not my problem any more.

Q. How specific were you to Ms. Todd in describing what you were finding in the documents that showed KGB manipulation?

A. I was pretty specific, because there are specific pages, paragraphs in the files which said that active duty KGB officers were involved in setting the whole chain of commercial enterprises described in this case. And this is a red flag. For a KGB officer, this is a red flag.

Q. Did you have any more meetings, after this meeting with Ms. Todd, later that day or on a subsequent day?

A. No, I didn't meet her any more.

Q. Okay. Who -- when did your next meeting take place, and who did you meet with?

A. This is where my recollection and some of my records really splits. To the best of my recollection, I worked to the end of the same day, kept on reading. Then I returned home and I made, again, a draft, just in case, a draft of my report.

Next day I returned back and kept on reading the file. Actually, there were about, in Russian, there were about 200 pages. So, it is was enough time to finish, to read all of them through. And --

THE COURT: There was a third day that you did return?

THE WITNESS: This is my memory split. To the best of my recollection, yes, I did.

THE COURT: All right.

Go ahead, Mr. Nassikas.

BY ATTORNEY NASSIKAS:

Q. And what time of day did your next meeting with the INS take place?

A. My next meeting took place at about 4:00 o'clock, 4:00 p.m.

Q. And with whom did you meet at the INS on that occasion?

A. It was Mr. Paskey and the gentleman who was present at our first meeting. I don't know his name.

Q. And just -- was there another meeting that followed this meeting?

A. The last meeting was with Ms. Eloise Rosas.

Q. And how many minutes, approximately, after this meeting with Mr. Paskey and the man did you meet with Ms. Rosas?

A. How many minutes later?

Q. Yes, approximately.

A. I met her about from twenty to thirty minutes later.

Q. Now, turning to the meeting with -- first, to the meeting with Mr. Paskey and the man, how long did you meet with those two?

A. For about an hour.

Q. And why was that meeting so long?

A. Because by that time I concluded my job, I was ready to deliver the whole analysis, and it took me about an hour, nonstop, to tell the whole story with all specific references, with explanations of KGB involvement, what does it mean, why they were involved, what did they do, what is the role of the military prosecutor, why he is lying, where he is just manipulating the facts, concocts the evidence.

So, it was pretty extensive, and I was referring to the specific episodes.

Q. Could you describe to the Court what you -- briefly, what you told Mr. Paskey and the man about the main problems that you were finding in the documents, just in summary fashion, what the main problems were in the documents you had spent several days reviewing?

A. The main problem is that the Russian prosecutor basically is, once -- he is trying to manipulate. That is exactly what we called an active measure in the KGB. This is an operation designed to influence U.S. Government officials in a way favorable to the KGB, a full-fledged active measure, a disinformation operation.

And the idea was that to turn everything upside down, to cover the real KGB operation, to expose a scapegoat, that is an Alexandre Konanykhine, to get him deported back to Russia and to punish him there.

Q. And turning back to a question I asked a number of minutes ago about the references in the report to active duty KGB agents, why, if the KGB was trying to be deceptive here, did you have any conclusions that you passed on to Mr. Paskey and the INS about why they would have included references to active duty KGBs?

A. Because it was impossible to cover. I was a KGB officer working undercover in Tass News Agency headquarters in Moscow, and hundreds of people out there knew that I was a KGB, and hundreds of people in any Russian institution, used as a cover by the KGB, knew exactly the names of active duty KGB officers.

So, if the Russian prosecutor choose to hide this fact, it would be easy to catch him red-hand on lies. They choose more softer way: Were they duty? Yes, they were. But later on, they retired.

But basically, from reading the file, I had a strong feeling that the Russians believed that no one really would read this file and analyze this file attentively in this country.

Q. What gave you that sense?

A. First, the way they were supplying information. There were just several days left before the trial, and the information was still coming. So, the INS didn't really actually have time.

They just had time to quickly look through, to peruse the files, and there were no time to analyze all this without knowledge of the Russian, without understanding the Russian reality and the KGB.

And then some pieces of information about the instructions from the top, so, I got impression that the Russians actually believed that they can settle this case behind the scenes, in kind of bureaucratic negotiation.

Q. And before we move forward in the chronology here, were there other specific problems that you passed on to Mr. Paskey and the man at this meeting, in your one hour analysis, that just was your way of educating them about the problems inherent in the way Volevodz had put those documents together?

A. Well, I was pretty specific at this meeting. I was --

Q. Could you give the Court just some examples -- we don't need to have the hour analysis, but a few examples of the type of information you were providing to

Mr. Paskey and the INS, showing the problems with this documentation?

A. Okay. Let's start from the letter rogatory. Page 20, Volevods writes that the charge brought against Alexandre Konanykhine sounds like this: felonious misappropriate of state and public property.

There is no indication of state property in this file.

Second --

ATTORNEY AUGUSTINE: Your Honor, I am going to object, if the witness is reading from his notes. Also, it is not clear in the questioning whether the witness actually made notes -- had these notes and was reading from them to Mr. Paskey.

So, it is not real clear what it is he is testifying to at the time, on whether he is testifying about reviewing the documents after the July 1996 review, or whether it was in his most recent review.

THE COURT: Well, your first objection is that it's -- I don't think you have made an evidentiary objection, but let me ask this: Are you reading from notes, or are you going to the letters rogatory themselves?

THE WITNESS: I take this notes just in case there were references on specific pages.

THE COURT: When did you take the notes?

THE WITNESS: These notes were taken during my work with the INS.

THE COURT: All right.

THE WITNESS: However, I put specific pages on it.

THE COURT: And did you have those notes with you the day that you gave your hour discussion to Mr. Paskey?

THE WITNESS: It was not exactly these notes, because these notes contains reference to specific pages. So, I was preparing for this particular meeting.

THE COURT: Do these notes refresh your recollection on what you told Mr. Paskey --

THE WITNESS: Yes.

THE COURT: -- on that day?

THE WITNESS: Yes.

THE COURT: All right.

Do you have any -- what I'll do, you have no objection, I take it, Mr. Shvets, if these notes are shown to Ms. Augustine?

THE WITNESS: They are written in Russian, with just some quotation in English. But they are mostly in Russian.

THE COURT: All right. Well, you may go ahead.

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, if you could just pass on a few more examples of the type of -- the information that you were giving to Mr. Paskey and the INS, a few more examples?

A. A few more examples. One of the key evidence which is presented by Volevodz to support charge that Alexandre Konanykhine stole $5 million, was the signature, which Alexandre Konanykhine allegedly made for Carol Miller.

The Russian prosecutor is very specific in the letter rogatory. He writes:

"The fact that Konanykhine put his signature on behalf of Carol Miller has been proven by the findings of criminalistic experts."

But when I looked into this criminalistic expertise, the experts said that they did not have enough materials to categorically say that this signature was made by Alexandre Konanykhine. They could argue only about the probability that Alexandre Konanykhine made this signature. But they were not sure. Yet, the prosecutor says that this is the fact.

Then I referred to specific instances where it's clear that the people who, the KGB people were really active duty KGB people, that these were exactly the people who started all building of chain of economic enterprises described in this file, and the ultimate -- [inaudible] -- for this enterprise was the Russian Exchange Bank.

And all these enterprises, KGB had tight control. They control two key elements of each institution, basically each institution, they had their man at the top when the decision-making process was, when the decisions were being made, and they had their man in charge of accounting of these institutions. And this is specially true with the Exchange Bank.

So, I said, "Well, there is no way anybody could steal anything from this bank. KGB was aware of each penny on this account."

Q. That's the Russian Exchange Bank you were referring to?

A. Yes.

Q. Did you continue this type of analysis for the hour that you spent with Mr. Paskey and the other INS employee?

A. Yes, it took about an hour.

Q. And what was the response at the end of this analysis by you?

A. There were no response, and there was just one question asked: What was my understanding, whether Alexandre Konanykhine understood that, everything that was going on around him, that it was a KGB operation and he was --

THE COURT: Repeat that, Mr. Shvets. What did you say the response was at the end of the hour discussion?

THE WITNESS: There was no response. There was a question.

THE COURT: What was the question?

THE WITNESS: Whether -- what was my understanding, whether Alexandre Konanykhine knew that it was a KGB operation, and everything which was happening around him was designed and executed by the KGB.

BY ATTORNEY NASSIKAS:

Q. And what was your response to that question?

A. And my response was that there is no information on this in this file. Since the Russian prosecutor choose not to tell the whole truth, he can't claim that Alexandre Konanykhine knew about this truth.

So, in this situation I said there was just one person who can give an answer to this question, and that is Alexandre Konanykhine himself. And I suggested once again that, "Send this case back to the FBI. This man is here. Talk to him." I actually said, "Do it before his defense lawyers do it."

Q. Now, after this meeting --

THE COURT: Let me ask you, Mr. Nassikas --

ATTORNEY NASSIKAS: Sorry.

THE COURT: -- I have another matter -- how much longer do you anticipate your direct examination will take? I am not limiting you and I am not going to limit Ms. Augustine, but I want to know --

ATTORNEY NASSIKAS: I understand, your Honor. I am on the thirteenth page of sixteen pages of questions. So, I would imagine about twenty more minutes, of questions.

THE COURT: All right. What I am going to do now is to take a five minute recess for the benefit of the court reporter, who has been going now for an hour and a half.

When I resume, I have a brief criminal matter to handle, and then we will resume with this matter until the luncheon recess.

ATTORNEY NASSIKAS: Yes, your Honor.

THE COURT: So, we will recess now for five minutes. I expect the criminal matter will take no more than fifteen minutes. And I will determine at that time whether to proceed or whether to take the luncheon recess.

Mr. Konanykhine, you may step down. However, during --

ATTORNEY NASSIKAS: This is Mr. Shvets, I'm sorry, your Honor.

THE COURT: I beg your pardon. Mr. Shvets, you may step down. However, during your testimony, you may not discuss your testimony with anyone while you are on the stand. So you may not discuss your testimony at all with either Mr. Nassikas or Ms. Augustine or Ms. Rosas or anyone else.

THE WITNESS: I understand, your Honor.

THE COURT: You may step down.

(Witness stood aside)

THE COURT: Court will stand in recess for five minutes.

(Court recessed in Konanykhine V. Carroll at 11:24 a.m.)

---

(Court called to order in Konanykhine v. Carroll at 1:50 p.m.)

THE COURT: Mr. Shvets, you may return to the stand.

(Witness resumed stand)

THE COURT: You will recall, sir, that you are still under oath.

ATTORNEY NASSIKAS: May I begin, your Honor?

THE COURT: Yes, you may proceed.

YURI V. SHVETS, having been previously duly sworn, was examined and testified further as follows:

DIRECT EXAMINATION (Continued)

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, after your meeting with Mr. Paskey and the man in the afternoon, you indicated you next saw Ms. Rosas at your final meeting at INS?

A. Yes, in about twenty minutes I had the final meeting.

Q. And can you describe to the Court what Ms. Rosas said to you at this meeting?

A. As I understood, she had been briefed by Mr. Paskey and the other gentleman on the results of our previous meeting, and she thanked me very much for the job I had done. She said that they were very happy with it. She asked me for my business card, in case --

THE COURT: Who is this now who is talking?

THE WITNESS: Excuse me?

THE COURT: Who is this who is speaking?

THE WITNESS: Mrs. Eloise Rosas.

THE COURT: Rosas, okay.

THE WITNESS: And she asked for my business card, in case the INS would need me to consult on similar cases in the future.

At this point, I asked whether she was still willing -- whether she still wanted me to go to testify in court. Because at this point I was pretty sure that this file was exactly within my expertise, I felt pretty strong, and I said that I was ready to go.

She said that it wouldn't be necessary, and that's -- (pause)

BY ATTORNEY NASSIKAS:

Q. Did the subject of your draft written report come up?

A. No, no. I didn't raise this question after I talked to Mrs. Deborah Todd.

Q. Did Ms. Rosas ask you for your written report, as she had indicated at the first meeting at INS?

A. No, she didn't ask for any report.

Q. Was there anyone else present at that meeting with Ms. Rosas?

A. No.

Q. About how long did that final meeting with Ms. Rosas go?

A. It was pretty brief, from five, from five to seven minutes.

Q. And was that your final meeting with INS attorneys in --

A. Yes.

Q. -- that period?

A. Yes, it was.

Q. Now, after you completed your work in July, did you prepare a written invoice for the work you had performed?

A. Yes, I did.

ATTORNEY NASSIKAS: If I could now, your Honor, show this witness Petitioner's Exhibits 1 and 2 that have been marked for identification?

THE COURT: All right.

(Petitioner's Exhibits Nos. 1 and 2

premarked for identification.)

ATTORNEY NASSIKAS: I have copies for INS to see.

THE COURT: All right, the witness has them. Proceed.

BY ATTORNEY NASSIKAS:

Q. Do you recognize those documents, Mr. Shvets?

A. Yes, I do.

Q. What are they?

A. These are two invoices I sent to Antiquariat Literary Services, ALS, charging them for my consulting services for the INS on the Konanykhine case.

Q. And did you prepare and maintain these documents in the regular course of your business?

A. Yes, I did.

ATTORNEY NASSIKAS: I move the admission of Petitioner's Exhibits 1 and 2. They have "Plaintiff's Exhibit" stickers on them, though, your Honor.

THE COURT: For what purpose? This is just to show that he submitted an invoice to the INS, and what the --

ATTORNEY NASSIKAS: And then what the nature of the services described on the document is, your Honor.

THE COURT: All right.

Any objection?

(No audible response)

THE COURT: All right, admitted for the purpose of this hearing.

(Petitioner's Exhibits Nos. 1 and 2 admitted

into evidence.)

BY ATTORNEY NASSIKAS:

Q. What type of work, Mr. Shvets, do these two invoices indicate -

ATTORNEY AUGUSTINE: Excuse me, your Honor. I would just like to clarify the record. These invoices were not submitted to INS. They will were submitted to ALS, as they show from the documents.

THE COURT: All right, you may clarify that.

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, to whom did you submit these services, service invoices?

A. It was my arrangement with the INS that I submit my invoices for the services performed for the INS to the ALS.

Q. That is Mr. Werner Hendrichs' company?

A. Yes.

Q. And what type of work did these two invoices indicate that you performed for INS in July and August 1996?

Looking first at Plaintiff's Exhibit

Number 1 --

THE COURT: Well, I have admitted them, and they say what they say, don't they? They are in English, aren't they?

ATTORNEY NASSIKAS: They are, your Honor.

THE COURT: Did you ever get paid by the INS for this work?

THE WITNESS: My arrangement with Werner Hendrichs was that INS pays him, his company, and his company pays me.

THE COURT: Did you get paid by ALS?

THE WITNESS: Yes.

THE COURT: All right.

BY ATTORNEY NASSIKAS:

Q. And do these invoices describe the nature of your work as consulting work or translating work?

A. No, during the ones we are talking about, this hearing, I was consulting then, and I didn't do any translation for them at the time.

ATTORNEY NASSIKAS: And your Honor, one further short question of clarification.

BY ATTORNEY NASSIKAS:

Q. On Plaintiff's Exhibit Number 2, there is an entry dated August 8, 1996, for review of translation on the Konanykhine case. What was the nature of that work identified on Plaintiff's Exhibit 2?

A. It was several pages of translation performed by the ALS. But they were, it was transcription of a video interview conducted by Volevodz with one other witnesses. Since it wasn't in writing, it was hard to understand for ALS translator some of, some sentences. So, they asked me to clarify the sentences, and just to review the accuracy of this translation.

THE COURT: You are saying there was a video of an interview by Volevodz, the military prosecutor, of the petitioner, Mr. Konanykhine?

THE WITNESS: No, it was a Russia banker. I don't remember his name, but it wasn't of Mr. Konanykhine.

THE COURT: It was of a Russian banker?

THE WITNESS: Yes.

THE COURT: And was it in connection with the Konanykhine case?

THE WITNESS: Yes, it was.

THE COURT: And do you know why you were asked to do that translation -- other than the fact that it was unclear, do you know what the purpose of ALS asking you to do it?

THE WITNESS: The reason, for me it was obvious. I was performing for the ALS some translation services in the past, prior to the Konanykhine case. And they usually refer to me when the most complex translations were needed, mostly from English into Russian.

THE COURT: Well, let me ask you this: Do you know what the relationship is between ALS and the INS?

THE WITNESS: Yes, absolutely. I knew from Werner Hendrichs that he has a $3 million contract with the Justice Department, and a part of this contract is the, his translation for the INS.

THE COURT: Next question.

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, these invoices indicate you billed at a $40.00 an hour rate for the hours you worked. By contrast, how you would have billed translation services?

A. I have invoices for translation services, and I usually billed per words. So, I count words, how many words I translated, and then I bill by word.

Q. So, these invoices indicate consulting, not translating work?

A. Yes, absolutely.

ATTORNEY NASSIKAS: All right, thank you, Mr. Shvets.

BY ATTORNEY NASSIKAS:

Q. Now, did anyone, after your final meeting with Ms. Rosas, from INS, contact you about this case since that period of time?

A. No.

Q. And what did you do with the documents that you reviewed while you were at the INS over that several day period of time?

A. I left them at the INS.

Q. And in preparation for your testimony today, have you had an opportunity to look again at the letter rogatory documents?

A. Yes.

Q. About how much time have you spent reviewing those documents in preparation for this hearing today?

A. About two weeks.

Q. Has this more lengthy review by you over the past two weeks changed, in any way, your initial opinion expressed to the INS about the legitimacy of the Russian request?

A. No, it has only bolstered my opinions.

Q. Have you been paid by anyone for the hours you have spent preparing this case today?

A. No, I wasn't.

Q. And why have you spent so many hours preparing for the case today without compensation?

A. First, I was subpoenaed. I was aware of cross-examination, so I felt I had to be well-prepared.

Second, a consideration which actually directed me from the very start, I got a political asylum. The U.S. Government gave me political asylum, and I felt obliged to do the best there is I could. So, I did it at the INS.

If I had more time limit, I would have done more extensive research at the time. But I don't consider that today my attitude is in any way different.

Q. Did you recently testify at the INS exclusion case against a man named Mr. Nikolai Menschikov?

A. Yes, I did.

Q. And did you testify as a fact witness about the related Konanykhine and Menschikov cases in that proceeding?

A. Yes.

Q. And finally, did the INS Court in that Menschikov proceeding qualify you as an expert in the areas of the KGB, Russian document analysis and the Russian Legal System?

A. Yes.

ATTORNEY NASSIKAS: I have no further questions, your Honor.

THE COURT: All right, cross-examination, Ms. Augustine?

ATTORNEY AUGUSTINE: Thank you.

CROSS-EXAMINATION

BY ATTORNEY AUGUSTINE:

Q. Mr. Shvets, when you went to the INS, you informed them that you had no knowledge of who Mr. Konanykhine was; is that correct?

A. Yes. Actually I explained that the first time I learned about Mr. Konanykhine, I heard his name from Werner Hendrichs two days before this meeting.

Q. So, prior to that you had no independent knowledge about his activities in Russia; is that correct?

A. Yes.

Q. And you had no independent knowledge or firsthand knowledge about any of his activities with respect to embezzlement at the bank; is that correct?

A. Yes.

Q. And you had no knowledge of whether he was guilty or innocent of those charges that were contained in the letters rogatory; is that correct?

A. Yes.

Q. You also had no prior knowledge of Lieutenant Colonel Volevodz; is that correct?

A. Correct.

Q. And you had no knowledge that he was connected in any way to the KGB; is that correct?

A. Correct.

THE COURT: Well, I thought you said in fact he is not connected with the KGB; he is a military prosecutor.

THE WITNESS: Yes. But this is the question. The question as I understood was whether I knew that Volevodz -- I didn't have any information that Volevodz was somehow connected with the KGB.

THE COURT: And does that make any difference to the opinions you have given?

THE WITNESS: No, absolutely not.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. You went to -- you completed law school in about 1979; is that correct?

A. In 1990 -- I'm sorry, 1980.

Q. Nineteen Eighty?

A. Yes.

Q. You worked in a prosecutor's office for two months; is that correct?

A. Yes, about two or three months.

Q. And you only worked on two cases; is that correct?

A. Yes.

Q. And one was a murder case; is that correct?

A. It was a murder case and embezzlement.

Q. It was a murder case and embezzlement case, or --

A. Yes, they are different, two separate cases, murder case and embezzlement. And it was a small construction cooperative.

Q. It was an embezzlement case of what? I'm sorry, can you explain?

A. An embezzlement in small construction cooperative.

Q. So, you didn't work on any cases with regard to embezzlement from a bank; is that correct?

A. No.

Q. And since that time, almost twenty years ago, you have not worked in any legal offices; is that correct?

A. The KGB was part of the Soviet Law Enforcement Systems.

Q. You have not practiced as an attorney; is that correct?

A. That's correct.

Q. And you have not examined the banking laws of Russia; is that correct?

A. That's correct.

Q. So, you had no experience prosecuting any cases relating to bank fraud; is that correct?

A. I was not involved in any prosecution of bank fraud.

Q. Now, with regard to your alleged expertise in document analysis, have you ever testified as an expert in a document analysis case, in a case where document analysis was at issue?

A. It was my everyday job for ten years at the KGB.

Q. Have you testified in cases in --

A. In court?

Q. In court cases?

A. No.

Q. Okay.

THE COURT: What was your expertise in the Menschikov matter?

THE WITNESS: I was asked questions, the same kind of questions I am asked today. So, they asked me questions about Konanykhine case, rather than Menschikov case.

THE COURT: In other words, you were asked -- you said you were an expert in the Menschikov matter, you were qualified as an expert in the Menschikov case before an INS administrative law judge; is that correct?

THE WITNESS: No, it was a little bit different. I was qualified as an expert on the KGB, on the Soviet Legal System and document analysis.

THE COURT: And document analysis?

THE WITNESS: Yes.

THE COURT: And that was before an administrative law judge in the INS?

THE WITNESS: Yes.

THE COURT: Go ahead.

ATTORNEY NASSIKAS: Your Honor, I don't believe INS objected to that qualification at the time of the Menschikov proceeding.

THE COURT: Well, that's a matter of record.

Ms. Augustine?

ATTORNEY AUGUSTINE: We would disagree with that, your Honor.

THE COURT: In any event, you don't disagree, do you, that he was qualified as an expert in the Menschikov matter?

ATTORNEY AUGUSTINE: He was qualified as an expert in the KGB.

THE COURT: Do you have the transcript there?

ATTORNEY AUGUSTINE: No, your Honor, we do not have the transcript yet.

THE COURT: All right. Proceed.

BY ATTORNEY AUGUSTINE:

Q. Did you tell the INS -- you testified that you told the INS that there was KGB involvement in the case; is that correct?

A. Correct.

Q. But KGB involvement in the case does not mean that Alexandre Konanykhine was innocent of the embezzlement charges; is that correct?

A. My job was not to investigate whether he was guilt or not guilt. My, I --

Q. Sir, the question --

THE COURT: Let him finish his answer.

ATTORNEY AUGUSTINE: Okay.

THE WITNESS: They raised specific questions before me, which were: First, what the KGB was doing in this case, what the military prosecutor is doing in this case, what is my opinion on this case, and how the U.S. Government can cooperate.

BY ATTORNEY AUGUSTINE:

Q. And your opinion was that the KGB was somehow involved; is that correct?

A. Not just somehow involved; it was directly involved. The whole story is the KGB covert operation.

Q. Okay.

But you have no -- you are not able to point to any evidence that Konanykhine was actually innocent of the charges contained in the letters rogatory; is that right?

THE COURT: He has already testified, he wasn't even asked to do that.

Were you?

THE WITNESS: No, I wasn't asked to do that.

However, at my meeting, at my meeting with Mr. Paskey and the man, and during my meeting with Mrs. Deborah Todd, I made it clear that there was no hard evidence in this file which would really prove that Alexandre Konanykhine was guilty on two counts of stealing the money from the bank.

BY ATTORNEY AUGUSTINE:

Q. When you made these assertions to the INS, you pointed to no references to Russian Law or to the incompatibility of the charges to Russian Law; is that correct?

A. No, I indicated to gaps in conclusions which were made by the Russian prosecutor, and evidence he was trying to -- he presented in order to support --

Q. Well, the question --

A. -- his conclusions.

Q. The question was whether you pointed to any inconsistencies in the prosecution with the Russian Law?

A. No.

Q. Isn't it true, sir, that the INS never told you that they considered you an expert?

A. Excuse me. Please --

Q. Isn't it true that no one at the INS at any time ever told you that they considered you an expert?

A. No one told me that I was not considered an expert by them.

Q. And isn't it true that no one even told you that they believed the assertions that you were making about the KGB involvement in this case?

A. I didn't really hear any opinions from them, because it was complete silence, usually.

Q. And did you speak to other people in the office, in the INS office, other than the persons that you have stated that you spoke with today?

A. No.

Q. You didn't speak to any law clerks, any other law clerks?

A. No.

Q. Did you speak to the other lead prosecutor on the case, Antoinette Rizzi?

A. Excuse me?

Q. Antoinette Rizzi?

A. No, I didn't speak to her personally. She was present at the very first meeting, but later, I didn't speak to her.

Q. Ms. Rizzi was in charge of getting the documents translated. You are saying that you never spoke to her?

A. No.

ATTORNEY NASSIKAS: I object to the testimony by the questioner, your Honor. There has been no testimony that Ms. Rizzi was the person in charge --

THE COURT: I am aware of that.

BY ATTORNEY AUGUSTINE:

Q. What contacts have you had with Michael Maggio?

A. I didn't have a single contact with Michael Maggio until I first met him at the INS Court hearing.

Q. Subsequent to the hearing on the Konanykhine case, have you had any contact with him?

A. No, I didn't.

Q. Have you had any contact with Mr. Konanykhine?

A. No.

Q. Have you had any contact with Mr. Menschikov?

A. After the hearing we had a brief lunch, and they were -- Mr. Menschikov and two of his lawyers, and their legal -- and their counsel from Georgetown University.

Q. What did you discuss at your lunch?

A. Nothing. He was just overwhelmed. And basically his wife said that their relatives had lots of problems in Russia since they moved to this country, such as her, Menschikov's wife's brother was shot six times.

Q. Did you discuss the case, sir?

A. No.

Q. Subsequent to your work at the INS, have you had any contacts with Ms. Rizzi?

A. No.

Q. None whatsoever?

A. Absolutely, not a single.

Q. When did you first meet the attorneys who are representing Mr. Menschikov?

ATTORNEY NASSIKAS: I am going to object about the pertinence of Menschikov --

THE COURT: You mean relevance, 401.

ATTORNEY NASSIKAS: Thank you, your Honor.

THE COURT: What's the relevance, Ms. Augustine, of when he first met some attorneys for another person?

ATTORNEY AUGUSTINE: Your Honor, the relevance of any meetings between them is, I think that we can show that his testimony, it may be coached, and we need to get to the bottom of whether it has been coached. And I think that any testimony relating to any meetings with any attorneys who may have coached him on this matter is highly relevant.

THE COURT: I will permit you to ask him whether he has had any conversations with those attorneys about the Konanykhine case.

ATTORNEY AUGUSTINE: Thank you, your Honor.

BY ATTORNEY AUGUSTINE:

Q. Have you had any conversations with Mr. Menschikov's attorneys about Mr. Konanykhine's case?

A. They came to me for help on Menschikov case.

I said that I am not aware about Menschikov -- actually, I saw Menschikov's name in some papers which I read at the INS, that he was the one who help Alexandre Konanykhine to get visa.

However, I explained to them that I believe the crucial issue for Menschikov is the Konanykhine case, because they are very much related. And that's the real issue, about the Konanykhine case.

Q. And how many contacts have you had with them in regards to these cases?

A. First, they visited me at home, it was the first meeting.

And the second meeting we had, as I understood, Jack Blum, the defense attorney, was a kind of counsel. So, we had a meeting together about two weeks later.

And then I had a meeting, as they explained to me, the INS judge permitted them to meet me, to meet me before the hearing in the INS Court. So, we met at Georgetown Law School one time.

Q. Now, you spoke to Werner Hendrichs about meeting with the law students; isn't that correct?

A. He made me a phone call.

Q. And isn't it true that you told them that you never met with the Georgetown students?

A. No, it's impossible. He already knew that I met them, and he was worried about them, and that's why he called me.

Q. Isn't it true that you told him that you had not met with them, but rather that you would testify if you were subpoenaed?

A. No. He called me because he knew that I met them. It was the reason of him calling me. So, I had no reason to deny that. The only thing he asked me, not to help anybody on this case, and unless I am subpoenaed.

THE COURT: Who asked you that?

THE WITNESS: Werner Hendrichs.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. Now, you testified that you had prepared, you have spent the past two weeks preparing these documents and reviewing these letters rogatory; is that correct?

A. Not actually the past two weeks; it was two weeks prior to the INS hearing, in the INS Court.

Q. And about how many hours have you spent on that?

A. I didn't really count hours, because I didn't feel -- didn't feel any time pressure. But I would imagine about, maybe eighty.

Q. Eighty hours.

Isn't it true that you told the Immigration Court you had spent a hundred hours preparing for the testimony in Immigration Court?

A. It was, again, a guess. I was asked, "What do you think, about sixty hours?"

I said, "Maybe more."

"What do you think about eighty hours?"

I said, "Maybe."

"What about 100?"

I said, "Maybe."

So, it was not my definite answer, and still it's not now my definite answer. Maybe sixty, maybe sixty-five, maybe eighty-five. I didn't feel any time pressure, and since I was not paid I didn't count my hours.

Q. So, your memory of what you have done in the past month is not very clear, then. You don't know exactly how many hours you have worked?

A. It's pretty clear. The human memory usually concentrates on something, the most important and unusual, something which not important.

Q. Sir, you don't remember -- you just testified that you don't remember exactly --

THE COURT: He said, he is drawing a distinction between remembering exactly how many hours he spent, and the substance of what he did.

Is that the distinction you are drawing?

THE WITNESS: Absolutely.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. Well, why did you spend so many hours, whether it was sixty, eighty or a hundred, why did you spend so many hours analyzing the documents?

A. Because I understood that somebody would be cross-examining me, and I felt that I had to be pretty well-prepared for this.

Q. Isn't it true that you told the Immigration Court that the reason you had spent so many hours was because that is what it took to properly analyze them?

A. Not really, not really.

Q. You didn't tell that to the Immigration Court?

A. It took to, not to properly analyze --

THE COURT: No, she is asking you -- she is not asking whether that is true. She is asking you whether that's what you said to the Immigration Court.

THE WITNESS: No.

BY ATTORNEY AUGUSTINE:

Q. You didn't tell the Immigration Court that a hundred hours was necessary to properly analyze the documents?

A. No, I couldn't say that, because I don't believe that there should be any timetable in this investigation. It is too complex. It took Russian Government almost couple of years to investigate the case.

So, I don't feel that, for me, two weeks or three weeks, maybe a month, is enough. I can go ahead and investigate it for more.

Q. Are you aware that your assertion that the Russian Government took a couple of years to investigate the case is incorrect?

A. I cannot tell exactly the month they started. However, as I understood, the case was started, the officially, criminal proceedings were brought in March of '94.

Before this period, the managing prosecutor was investigating the claims made by Alexandre Konanykhine in several of his petitions. So, in total it would be about two years.

THE COURT: That's an estimate you've made after your review of the documents?

THE WITNESS: Yes.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. Now, you testified today very clearly that you spent three days' work at INS; is that correct?

A. Yes. At the very beginning I said that my memory somehow splits at the last part of the second day.

Q. So, what you are saying is that -- what you said was that your memory of how many days you spent there actually conflicts with the written records that you have of how many days you spent there; is that correct?

ATTORNEY NASSIKAS: I'm going to object to the mischaracterization of the testimony, your Honor.

THE COURT: Overruled.

You may answer.

THE WITNESS: Yes, actually, my best recollection conflicts with my written records.

BY ATTORNEY AUGUSTINE:

Q. And your written records show that you only spent two days there; is that correct?

A. Yes.

Q. And are you in the habit of working for three days and only charging for two?

Are you in the habit of working for three days and only charging for two?

A. No, I am not; but I am in the habit of working for two weeks without charging at all.

ATTORNEY AUGUSTINE: Well, we are talking, we are talking about the work that you did for INS, not the work that you did in preparation for the Immigration Court.

THE WITNESS: It was pretty much unusual. Again, I can rate it on substance --

THE COURT: She really didn't ask you a question. She was just commenting.

It is not appropriate right. Just ask questions, Ms. Augustine.

BY ATTORNEY AUGUSTINE:

Q. So, although your written records show that you only were there for two days, you are very sure about all the meetings that you say took place over the course of three days, with particularity?

A. Absolutely.

Q. Sir, earlier you were asked why you were testifying about this. You testified, am I correct, that it's just because you were subpoenaed, or are there other reasons why you are testifying?

A. Number one, I am subpoenaed.

Number two is that I really felt obliged. Werner Hendrichs asked me to do him a personal favor. But since I saw this file, I felt obliged to do the service for the U.S. Government, who had given me a political asylum.

Q. So, you felt that it was a service to make sure that your findings, or that your beliefs regarding these letters rogatory were made, what, public or --

A. No, not public.

Q. -- were made --

A. To made known to the representatives of the U.S. Government, who are going to make their decision on this particular matter.

Q. And you said that you noticed that there was FBI involvement in the letters rogatory; is that correct?

A. Yes, kind of marginal involvement.

Q. Do you know a man named Courtney West, sir?

A. Yes.

Q. Where does Courtney West work?

A. For the FBI.

Q. Do you have a -- or have you had in the past a fairly close relationship with him?

A. Yes.

Q. Isn't it true that you never told Courtney West about your concerns about the letters rogatory?

A. I told.

Q. Excuse me?

A. I did tell him.

Q. You did tell Courtney West that?

A. Yes.

Q. When did you tell Courtney West this?

A. It was shortly after I consulted the INS on this issue.

ATTORNEY AUGUSTINE: I want to clarify, because it is very serious, your testimony is very serious, as far as whether --

THE COURT: Again --

ATTORNEY AUGUSTINE: -- it is truthful or not.

THE COURT: -- Ms. Augustine, that kind of comment --

ATTORNEY AUGUSTINE: I'm sorry.

THE COURT: -- is inappropriate --

ATTORNEY AUGUSTINE: I'm sorry, your Honor.

THE COURT: -- and it is stricken.

But you may go ahead and ask the question.

BY ATTORNEY AUGUSTINE:

Q. You told Courtney West about your concerns about the letters rogatory, or that you had worked at the INS?

A. I told him about my concerns on the letter rogatory. However, I recommended him to contact an agent who was involved in this case.

THE COURT: Who was that?

THE WITNESS: I don't know. I don't remember the name. I just saw one name in the INS file, very small, brief document in this particular file.

THE COURT: When did you tell him this?

THE WITNESS: It was shortly after I consulted the INS.

THE COURT: And have you seen him since that time?

THE WITNESS: Yes.

THE COURT: Have you mentioned it on any other occasion?

THE WITNESS: No. No.

THE COURT: Does he know you are testifying here today?

THE WITNESS: I did not tell him about this. Maybe he knows from any other sources, but I don't know.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true that you wanted to come back and work at the INS after your initial encounter, those three days or two days?

A. No, I never considered this.

Q. You didn't -- you didn't consider this?

Isn't it true that Courtney West called the INS afterwards, to help you get a job there after your initial encounter with the INS?

A. He told me about this story, but I never asked him about this. We had a pretty close relationship. And since I moved to this country, Courtney West tried a lot to get, to help me to get a job, and when I actually needed this. So, I wasn't aware of any of his approaches to the INS.

Q. Isn't it true --

A. However, he told me that he can talk to the INS and he spoke to Ms. Eloise Rosas, and Ms. Rosas highly appreciated the job I had done in consulting in the Konanykhine case. He quoted her as saying that, "He actually opened our eyes on this file," unquote.

Q. You are saying that Courtney West said that?

A. Yes.

Q. Now, after your encounter with INS, where you expressed these concerns about the letters rogatory, isn't it true that you did not express those concerns to Werner Hendrichs?

A. I didn't spoke to Werner Hendrichs on any issues related to the Konanykhine case, until he called me shortly after my first meeting with the -- with Mr. Menschikov's defense attorney.

Q. Did you notice, sir, in the letters rogatory that the Swiss Government had sequestered some of Mr. Konanykhine's funds?

A. Yes.

Q. So, is it your belief that the Swiss Government is in cahoots with the KGB on this case?

A. When I was examining these files, no final decision on this were made by the Swiss Court --

Q. But they had sequestered the money already; is that correct?

THE COURT: Let him finish his answer, Ms. Augustine.

THE WITNESS: Yes.

Another question for me, as a former KGB officer, the Swiss Government's position on this case is not an authority. I was working on this for ten years, and I don't believe that the Swiss Government has better expertise on this. It's not because I was pride, but because no one from the Swiss Government worked inside the KGB and their files for ten years in a row.

BY ATTORNEY AUGUSTINE:

Q. So, you just think that the Swiss Government is naive on this matter, and that's why they sequestered his funds?

A. They are not naive; because when I was reading those files, they hadn't made the final decision.

Q. Well, they made a decision -- since they made a decision to sequester the funds in the first place -- let's deal with that decision -- was that a decision based on naivete (mispronounced) or --

THE COURT: You mean naivete?

ATTORNEY AUGUSTINE: Naivete, sorry.

THE WITNESS: Probably, yes.

BY ATTORNEY AUGUSTINE:

Q. It was?

A. Yes.

Q. Okay.

I wanted to ask you about -- you stated that, earlier, that one of the reasons why you felt that the letters rogatory were deficient was because the prosecutor drew a conclusion about a signature of Mr. Konanykhine's, when the lab had not drawn that conclusion?

A. Yes; it was just one piece.

Q. Wasn't it true that on page 186 of the letters rogatory, the lab concludes that it probably was Mr. Konanykhine's signature?

ATTORNEY NASSIKAS: Objection, your Honor. If she wants to show him page 186 of the report, he is welcome to look at it.

THE COURT: I'll overrule the objection.

Do you have it there with you?

THE WITNESS: Yes, I have, and I have reference.

THE COURT: You may answer the question.

THE WITNESS: Before going to page 186, I would refer to page 184, where the Russian experts say that they don't have enough materials to categorically say that this signature was made by Alexandre Konanykhine on behalf of Carol Miller, and we can only talk about the probability.

BY ATTORNEY AUGUSTINE:

Q. And isn't it true that at page 186, at the conclusion of the report, the forensic analyst concludes that that was probably Mr. Konanykhine's signature?

A. Probably.

Q. Okay.

A. But if we, if we look into the letter rogatory signed by Volevodz and written by Volevodz, we will see "the fact that Konanykhine put his signature." In Russian criminal law there is a big difference between probability and the established fact.

Q. Sir, another reason why you believe that the letters rogatory were deficient has to do with the ownership of the all-Russian Exchange Center with regard to Finn Invest Service and Ros Inform Bank [phonetic]; is that correct?

A. Not exactly. It was an example of logical leaps displayed by Prosecutor Volevodz on many occasions.

Q. Okay.

Can you explain to us why you thought the ownership of the bank was a logical leap?

A. It wasn't the ownership of the bank. It was --

Q. The shares?

THE COURT: Let him answer the question, Ms. Augustine.

ATTORNEY AUGUSTINE: I'm sorry.

THE WITNESS: Let me explain, because it will take some explanation. It takes about three pages for Prosecutor Volevodz to make this point. This is an example of, as I found it, logically. When Prosecutor Volevodz wants to show that Alexandre Konanykhine was not an owner of Russian Exchange Bank and some other commercial organizations he established, to some extent, the prosecutor's logic is as follows:

On page 438, for instance, Volevodz argues that Alexandre Konanykhine had shares with the Exchange Bank through the companies he owned, such as Trans-Consult [phonetic] and Holt and West.

However, Volevodz says that these two organizations were not properly registered with the Russian Federal and Moscow Local Registry.

Therefore, says Volevodz, the fact of their existence is not proven. Then logic goes that since these entities do not exist, therefore, their property is questionable.

He has some other arguments later on. He counts shares, et cetera, et cetera, et cetera.

However, I would draw attention to the first part of logic. Since these two organizations were not properly registered, the fact of their existence is not proven and their property is not legal.

If we apply the same logic to another group of facts, specifically to the company called Ros Incom Bank [phonetic], this company was the first who started and laid the foundation for the whole chain of enterprises built later on, including the Russian Exchange Bank.

If you look into apply the same logic to this, to this case, we will see that Russian prosecutor -- and he admits that -- he has failed to find any documentation pertaining to the registration and existence of this company, no documentation whatsoever. And in this particular case, he is not surprised.

But if he apply his logic, that this company is not -- was not properly registered, then the whole chain of companies built by this company are not legally valid, and therefore, we have all this chain of organization is a kind of KGB sham.

And I can explain why he didn't apply this logic, his logic, legal logic to Ros Incom Bank. Because Ros Incom Bank was established by the active duty KGB Officer Chudlanso [phonetic]. And in his testimony to Volevodz, he admits that he was working on the documentation, and on the basis of this documentation, this company was registered.

So, this is the kind of logical twist that Volevodz, from his service, he applies this legal logic where he likes it, and he doesn't apply the same logic where he doesn't want it.

BY ATTORNEY AUGUSTINE:

Q. So, are you saying that when Volevodz claimed that Konanykhine was president or running Ros Inform Bank, that that was incorrect? Is that what you are saying?

A. No, that's not what I am saying. I am saying that Volevodz displays logical leaps, what we call in the KGB manipulation by logic. It goes like this: He makes thesis, then he presents his argument ostensibly to support this thesis.

But during these arguments, he substitutes the subject, and later on he presents evidence or arguments which have nothing to do with the first statement.

And he concludes, by his conclusions, which is relevant to something he created in the middle, but has nothing to do with the first statement.

Q. So, he doesn't apply the logic that you would use; is that correct?

A. No, he doesn't apply the logic which is necessary to use.

Q. So, what you are saying -- okay, basically what you are saying is the organization, the structure of companies couldn't be the way it was; is that what you are saying?

A. No, it was, it was the way it was. My point here is that Volevodz deliberately hides the fact that all this chain of organization was created and controlled by the KGB.

Q. Sir, are you aware that Mr. Konanykhine has --

THE COURT: Had you finished your answer?

THE WITNESS: Yes, sir.

THE COURT: Okay. Go ahead, Ms. Augustine.

ATTORNEY AUGUSTINE: Thank you.

BY ATTORNEY AUGUSTINE:

Q. Are you aware that Mr. Konanykhine has admitted to arranging and starting these companies?

A. It is pretty clear to me, absolutely. It is pretty clear. And these documentations show that he participated in creating these --

Q. You're --

A. -- companies.

Q. I'm sorry.

What you are saying is that the KGB was in control of those?

A. Absolutely.

Let me --

Q. Well, are you aware that Mr. Konanykhine admits that he was in control of those companies?

A. I told the INS that what Mr. Konanykhine believes about himself and his role in this case is quite different from the real life, what actually happened. When the KGB usually -- this is a KGB classic operation of faking front organization.

When they set front organization, they choose an individual, a potential scapegoat, a smokescreen, who makes no basic decision, who is not involved in running the most important functions of the organization, but who will be potentially held responsible for all negative consequences if the scheme exposes. And this is exactly what the role assigned to Mr. Konanykhine by the KGB.

Q. So, what you are saying is that -- what you are saying is that the Russian prosecutor's logic is faulty, because he believes Konanykhine was in charge of these Companies, and Konanykhine believes he was in charge of these companies, but you don't believe that, and that's why his logic is faulty?

A. I am absolutely sure that Mr. Volevodz knows the whole truth. So what he is doing, he is deliberately covering these truths.

As for Mr. Konanykhine, I never had an opportunity to interview him, to talk to him, and I don't know his real knowledge of this case.

But according to the KGB requirements, this was the KGB top secret operation, and not a single KGB officer under the threat of court martial was supposed to inform Mr. Konanykhine on everything they were doing around. His role was potential scapegoat.

Q. You said that one of the other reasons why you felt there was KGB manipulation was because the documents were basically given to the U.S. Government in such a short amount of time that they didn't have the actual time to look at them, analyze them, correct?

A. Not actually; it was just one of something I saw when I was in the INS. I didn't mean the U.S. Government as a whole. I meant the INS, because when I talked to people from the INS and I saw that they didn't really have good knowledge on the situation -- on the facts described in this case.

Q. Well, are you aware that the U.S. Government did, in fact, carefully have a chance to review those documents?

THE COURT: Aren't you testifying again, Ms. Augustine?

ATTORNEY AUGUSTINE: No, well, I am asking -- your Honor, I'm asking --

THE COURT: Well, why don't you just ask him: Do you know whether any -- all he has testified to so far is that based on his conversations with INS folks, they didn't seem to him to reflect knowledge of these documents.

You may simply ask him: Well, do you have any knowledge of any other persons in the United States Government having knowledge of these documents.

And I assume his answer is going to be, "No."

But it's up to you, if you want to prove something, you can't put on evidence through your questions. You understand that.

ATTORNEY AUGUSTINE: Yes, your Honor, I understand.

THE COURT: All right.

Do you have any knowledge of anyone else in the U.S. Government having studied these documents?

THE WITNESS: No, I don't.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. Do you have any knowledge whether a court, a court like this one approved those documents?

THE COURT: "A court like this one"?

ATTORNEY AUGUSTINE: A court like -- a United States District Court, a Federal Court, as honorable as this one --

THE COURT: Well, Ms. Augustine, I do letters rogatory occasionally, and I don't -- I am not able to ascertain the validity of them.

ATTORNEY AUGUSTINE: Yes, your Honor.

The reason that I am asking the questions, your Honor, is because --

THE COURT: I assumed that it would -- in order for them to be letters rogatory, it would pass through some court.

ATTORNEY AUGUSTINE: That's correct.

But the reason the questions are being posed is because the witness has testified that part of the reason that he feels that there is a cover-up is because the United States Government wasn't given the opportunity to.

So, I would like to find out if that changes his opinion any --

THE COURT: All right, you may do so.

ATTORNEY AUGUSTINE: -- if he finds out that --

THE COURT: You may do so.

BY ATTORNEY AUGUSTINE:

Q. Are you aware, sir -- well, you already testified that you were not aware that any other division of the government had had the opportunity to review these documents?

A. No, I am not aware of this.

Q. And you were not aware -- were you similarly not aware that a court of law had approved these documents for execution in the United States?

A. No, I am not aware of this.

Q. Okay.

If you were aware of that, would that change your opinion about whether the Russian Government had tried to forge and rush these documents on the U.S. Government without them having a chance to examine them carefully.

ATTORNEY NASSIKAS: Objection to opinion, your Honor.

THE COURT: I'll overrule it.

You may answer.

THE WITNESS: No. I will stay with what's my conclusion, with my beliefs.

BY ATTORNEY AUGUSTINE:

Q. You said that you took notes when you were at the INS; is that correct -- are those the notes that you have with you today, sir?

A. Actually, I was taking handwritten notes, and the notes I have right now I just put them in little -- in a logical way and put it on computer to be more readable and presentable.

Q. So, earlier today you testified reading from those notes, a couple examples of what you had told Mr. Paskey; is that correct?

That's what you testified to earlier; is that correct?

A. Yes. I just wanted to be precise and to make a quotation, but --

Q. But you weren't being precise, were you, sir, if you don't have the actual notes that you took with you -- that you took from INS with you today; is that correct?

A. I would be absolutely precise. I --

Q. You are saying that --

ATTORNEY NASSIKAS: Objection; he wants to answer the question.

THE COURT: Let him answer the question, Ms. Augustine.

THE WITNESS: I would be precise in any case, because I have a very good command on the facts described in this file. What I wanted when I looked into the -- I wanted to refer to the specific page of the letter rogatory specific page, and obviously there are about 500 pages. So, I don't remember just without notes on which page Volevodz said what.

BY ATTORNEY AUGUSTINE:

Q. But isn't it true that when you talked to Mr. Paskey, you did not in fact point out any specific pages?

A. No, at that time I wasn't, because I couldn't. There was no -- the documentation was -- there were no file as such. The documentation was dissembled. There were separate documents, so I couldn't pinpoint on specific page of the file, because they didn't exist. However, I referred to specific names of the documentation and specific episodes.

Q. Where are those original notes, sir?

A. I have about three pages or four pages at my home that are ink, written with ink, handwritten ink.

Q. Could you present them to this Court if you were asked, if so directed?

A. Yes. But this is the notes, not the final notes I prepared for -- not the final report I was asked to prepare by the INS; just the factual references to specific pages and specific points made in the file.

Q. Other than the two concerns that you expressed on direct examination, that of the documents being rushed on the U.S. Government and that of the forensic report, isn't it true that you -- I strike the question, please.

Isn't it true that you did not point to these things to the INS attorneys when you were in their office?

A. These two questions are peripheral. They are not actually important to --

THE COURT: Answer her question. Did you tell the INS people about it when you were there?

THE WITNESS: Yes, I told them about this.

BY ATTORNEY AUGUSTINE:

Q. You told them about those specific problems, sir?

A. Yes, exactly.

Q. Isn't it true, sir, that all you really told them was -- all you really did was make vague allegations about the KGB being involved in the case?

A. Could you say that again, please?

Q. Isn't it true that all you really told the INS attorneys, was make vague allegations about the KGB being involved in this case?

A. No, it's not true. I was very strong in this, and there were very strong indications in this, in this file. And it starts really from the document called "Resolution," where you can read the name of people, activity duty KGB officers.

When I read this paragraph, it was a kind of red flag, because the only explanation why active duty KGB officers do not show up in their KGB office for months, work in commercial institutions such as Exchange Bank and travel abroad, there is just one, and only one, explanation for this: They were on their operation. This bank was a KGB operation.

I was in the KGB at the time when the events described in this file started unfolding. And at the time, number one priority for each and any KGB officer was to do exactly what these KGB people were doing, specifically, setting commercial enterprises, most importantly, banks.

So, when I read this --

Q. But you're saying from through your KGB experience. You had no firsthand knowledge that that is what, in fact, what was going on in this bank; is that correct?

A. No, when I was in the KGB I didn't have this knowledge. However, when I read this file, it was like I read dozens of similar cases when I was in the KGB. And the resemblance was so striking that I specifically drew INS attention to this fact.

Active duty KGB officers worked not in their office, but elsewhere, specifically in Exchange Bank, only because this bank is a KGB operation. And they are not private citizens, they are not authorized. They are officers.

They are not authorized to work elsewhere outside the KGB unless they are in an operation, and this operation is conducted and directed by the KGB.

And they travel abroad on many occasions. I can tell you that the KGB officer wasn't authorized to go abroad unless he goes on operation. In order to leave the Soviet Union, each Soviet citizen was supposed to have special foreign passport. The KGB officers didn't have it. The Personnel Department held them, just to make sure that the KGB officer does not go abroad without authorization.

So, these two facts to me, as a former KGB professional, leave no doubt that it was a KGB operation. Later on -- and it was these two episodes which immediately raised this red flag for me during my first year at -- I'm sorry -- the first day, first morning at the INS.

Q. But you did not express to the INS that you had firsthand knowledge about KGB involvement in this bank; is that correct?

A. I say now that I don't have -- when I worked at the KGB, I didn't have any information pertaining to this bank.

Q. The question was whether you had expressed that to INS, that you hadn't expressed that you did; is that correct?

You did not tell them that you had firsthand knowledge --

THE COURT: Your question is now compound --

ATTORNEY AUGUSTINE: I know.

THE COURT: -- three times over.

ATTORNEY AUGUSTINE: Let me rephrase it.

BY ATTORNEY AUGUSTINE:

Q. You did not tell the INS --

THE COURT: Instead: Did you tell the INS anything about whether you had knowledge of whether these banks were are KGB operations?

THE WITNESS: I told them that I believe on the basis of analysis. However, when I was in the KGB I didn't have any information that this bank was a KGB operation.

THE COURT: Did you tell them that?

THE WITNESS: No, no, I didn't, because they didn't ask me, and I didn't feel it was important.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. You stated earlier in your testimony that this -- the KGB needed a cover-up because Konanykhine had gone public; is that correct?

That's what you stated?

A. Not just gone public; that he reached the highest level of the Russian Government. He reached Boris Yeltsin, as I understood, and it was -- the KGB after that went in mortal danger, because it was Yeltsin's Government that --

Q. Can you point --

A. -- was defrauded of billions of dollars of the Soviet -- so-called Soviet Communist Party money.

Q. Can you point to anywhere in the letters rogatory that show that Mr. Konanykhine went public about that?

A. No, but there were documents, and I said that some documents I saw at the INS, they are not attached to this file now. I remember I read documents that Mr. Konanykhine sent several petitions to high ranking Russian officials.

And in this file, in the document called "Resolution," which -- where Volevodz exposes his findings on the basis of claims made by Alexandre Konanykhine in his petition, and there were references to these petitions.

Q. But isn't it true that all of those petitions were with regard to money that was stolen from Mr. Konanykhine?

A. I didn't read these petitions. There were just references to these petitions.

Q. Well, in anything you read, isn't it true that you didn't read anywhere that Mr. Konanykhine had gone public at any time about KGB using that bank to smuggle funds? Is that correct?

A. No, because I believe that Mr. Konanykhine may not known that. However, I read in the file that some of

Mr. -- of claims made by Alexander Konanykhine were about the KGB, irregularities of the KGB in the bank.

Q. But there was no -- but you didn't read anywhere that the KGB -- that he had gone public about the KGB using his bank to smuggle money; is that correct?

A. No, absolutely no.

ATTORNEY AUGUSTINE: That's all I have, your Honor. Thank you.

THE COURT: Any redirect?

ATTORNEY NASSIKAS: A few questions, your Honor.

REDIRECT EXAMINATION

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, in July 1996, in your meetings at INS, did you -- did INS indicate to you that they were interested in your background and qualifications?

A. Absolutely. This is what our first meeting started with.

Q. And did you tell them about your background and expertise?

A. Absolutely.

Q. And were they -- did they express any happiness about your --

A. Yes.

Q. -- your qualifications?

A. They said they would love to hear my expertise on this particular case.

Q. And in answer to Ms. Augustine's comments today about why you are testifying, do you have a concern about the U.S. Government being embarrassed for relying on these Russian letters rogatory?

THE WITNESS: It was number one motivation for me when I read this file --

ATTORNEY AUGUSTINE: Objection, your Honor.

THE COURT: Just a moment.

What's the nature of the objection?

ATTORNEY AUGUSTINE: He's asking -- he asked a leading question.

THE COURT: It was leading, but I'll permit it. It was leading, however.

Avoid leading, Mr. Nassikas.

ATTORNEY NASSIKAS: Thank you, your Honor.

THE COURT: Go ahead, you may finish your answer.

THE WITNESS: Absolutely, it was number one motivation, one of the most important motivations for me. Because I strongly believe that this file presented by the Russian side effort it, this is a fraud.

And I explained that to the INS, that given the Russian reality, there was no guarantee that the people who did this fraud in the near future will be in jail, and then the U.S. Government will be embarrassed by cooperating with these people. And it's not just a wishful thinking.

I would just remind you that the top Russian prosecutor general, who was in his office when this file -- when this case was investigated, is now behind bars on the charges of working with the Russian organized crime.

And his first deputy, who authorized, Mr. Uzbeker [phonetic], his document signed by him is in this file. I found this document in Russian version only. And Mr. Uzbeker authorized -- sent the joint investigation group on the Prosecutor Volevodz, to investigate this case.

Mr. Uzbeker is behind bars again, together with his former boss, and they are charged on the same counts, together they fraudulently obtained government license for Mr. Uzbeker's son-in-law.

So, I said in this situation, given the scale, unprecedented scale of corruption in the Russian Government, and specifically in the Prosecutor's Office, there is no evidence -- there is no -- it can be -- there is no hope, that pretty soon this fraud will be exposed in Russia and the U.S. Government will be embarrassed.

Q. Mr. Uzbeker and the other senior person you just described, were they in the Military Procuracy Office or some other office in Russian?

A. They are top civilian procurators.

Q. And in terms of the laboratory that you described in answer to one of the cross-examination questions about the handwriting analyzed in this letter rogatory, was that a civilian or military laboratory that Mr. Volevodz relied on?

A. I can't answer this question, because I didn't pay attention to this particular fact.

THE COURT: Could you tell by looking at it now?

THE WITNESS: Yes, I can.

THE COURT: What page? Direct him to a page, Mr. Nassikas.

ATTORNEY NASSIKAS: Your Honor, I don't have the page for the lab.

THE WITNESS: I should have it in my notes.

ATTORNEY NASSIKAS: The Court's indulgence.

THE COURT: It should be in the 180s, shouldn't it?

(Pause)

THE COURT: While they are looking for it, Mr. Shvets, I take it you do not know Mr. Volevodz?

THE WITNESS: No, I don't.

ATTORNEY NASSIKAS: I can ask a couple of questions --

THE COURT: Go ahead.

ATTORNEY NASSIKAS: -- your Honor, in the meantime.

THE COURT: Go ahead.

BY ATTORNEY NASSIKAS:

Q. Mr. Shvets, during the first six months of this year, approximately how much income have you received in your various businesses?

A. It's about $150,000.00.

Q. So, have you had any need to work as an employee of the INS in this period of time?

A. Absolutely not.

ATTORNEY NASSIKAS: That will be the end of my redirect, your Honor, with the one possible exception of the military lab reference.

THE COURT: Well, we don't know whether it's military or not.

(Counsel conferring)

BY ATTORNEY NASSIKAS:

Q. Directing your attention to the copy of the letter rogatory you currently have, does it have numbers in the bottom right-hand corner?

A. I have.

Q. Page 90 -- it looks like it is page 90. It's hard to read because the pages are cut off at the bottom of the letter rogatory provided by the INS, which as I understand is the way it was received from the Russians.

But directing your attention to the page, looks like 96, 97, 98, where the handwriting analysis is in that report, do you see that?

A. I am looking to different --

THE COURT: Show him --

ATTORNEY NASSIKAS: I can show him --

THE COURT: -- yours, Mr. Nassikas.

ATTORNEY NASSIKAS: -- this copy, your Honor.

BY ATTORNEY NASSIKAS:

Q. I would direct your attention to the "Conclusion" section at the bottom of the poorly marked page.

A. (Complied) Okay.

Q. Looking at the bottom there, at "Conclusion," and carrying over to the next page, is there any indication whether this was a civilian or a military laboratory that was relied on by Mr. -- or rather Lieutenant Colonel Volevodz?

A. Yes, this came out of Medical Military Service. And I found the exact document, this is on the page 179, the Forensic Expertise Department of Criminalistics.

And this is the Russian Federation Ministry of Defense, Central Forensic Medicine Laboratory. So, this is a miliary

THE COURT: Is that significant at all?

THE WITNESS: It's significant from one point, that they are close, very close, Defense Ministry, their experts, and the miliary prosecutors.

But even the military experts found the will and honor in this very difficult situation to say that they cannot categorically say that Carol Miller's signature was made by Alexandre Konanykhine.

I can imagine the pressure the people involved in this case were experiencing, because this is, it's a cutthroat case.

ATTORNEY AUGUSTINE: Objection, your Honor.

THE COURT: Yes, what's the nature of the objection?

Ms. Augustine, what's the nature?

ATTORNEY AUGUSTINE: I'm sorry, your Honor. The witness was not responding to the question that was asked of him.

THE COURT: Yes, I don't think it was responsive, Mr. Nassikas. It was speculative, in any event.

Anything further?

ATTORNEY NASSIKAS: Nothing further, your Honor. Thank you.

THE COURT: All right, you may step down.

(Witness excused)

THE COURT: Call your next witness.

ATTORNEY NASSIKAS: Antoinette Rizzi.

THE COURT: Call Ms. Rizzi.

ATTORNEY NASSIKAS: This witness, your Honor, may be excused, I take it, for the day?

THE COURT: Yes.

Come forward and take the oath, please, ma'am.

(Witness sworn)

THE COURT: All right, you may proceed, Mr. Nassikas.

ATTORNEY NASSIKAS: Thank you, your Honor.

ANTOINETTE J. RIZZI, after having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, could you please state your name for the record?

A. Antoinette J. Rizzi; A-n-t-o-i-n-e-t-t-e, middle initial J., last name R-i-z-z-i.

Q. Ms. Rizzi, are you testifying today pursuant to a subpoena served on you?

A. Yes, I was served by a subpoena on June 30th, and I am here and I brought documents, any documents that were in my possession with regard to this case.

Q. Have you brought those documents pursuant to the subpoena?

A. Yes, I have.

Q. And has the INS made any efforts in recent months to prevent you from talking about what you know about the Konanykhine case?

A. Yes, they have.

Q. Could you describe those efforts for the Court?

A. First of all, you said "recent months," but there are two particular instances.

First of all, I was served with a notice by the district counsel on August 20th, 1996, that any matters that I had prepared with regard to the Konanykhine habeas proceeding were confidential and could not be discussed with anybody outside the Department of Justice.

And then on June 9th I received, by certified mail, a letter dated June 5th, in which I was advised that the district director was asserting the attorney/client privilege with regard to all issues in the Konanykhine case, and the attorney work product privilege, and that I was not authorized to testify in the Immigration Menschikov proceeding.

However, there was no indication with regard specifically to this proceeding. I wasn't even aware of this proceeding until I got that letter. And -- but I was told in that letter that if I was issued a subpoena by any court, that I should respectfully decline to testify.

Q. Is the letter you just described the June letter, June of 1997?

A. Yes, that's correct.

Q. Do you have that June 1997 letter with you today?

A. Yes, I do.

ATTORNEY NASSIKAS: I would like to mark, your Honor, Petitioner's Exhibit 2 -- actually

THE WITNESS: That letter had two -- by the way, Mr. Nassikas, that letter had two attachments.

ATTORNEY NASSIKAS: Okay.

THE WITNESS: One was a notice from the regional counsel advising me that I was not permitted to testify in the Menschikov case.

And the second was a -- the second was a notice by the district director advising me that he was asserting the attorney/client, attorney work product privileges.

THE COURT: Let me have the court security officer move the microphone slightly, or else you may move away a little bit, Ms. Rizzi.

THE WITNESS: Okay; it's too loud?

THE COURT: No, your voice carries quite well, and --

THE WITNESS: Okay.

THE COURT: All right, go ahead, Mr. Nassikas.

ATTORNEY NASSIKAS: If I could hand up, your Honor, to the witness --

THE COURT: It would be Exhibit 3, wouldn't it?

ATTORNEY NASSIKAS: -- Exhibit 3. I was off on my count. Thank you, your Honor.

(Petitioner's Exhibit No. 3 marked for

identification.)

BY ATTORNEY NASSIKAS:

Q. Showing you has been marked as Plaintiff's Exhibit Number 3, Ms. Rizzi, are those the documents that you have just described from June and May 1997?

A. Yes, these are photocopies of the documents. I retained the originals.

Q. What have you done in response to receiving the written communications reflected in Plaintiff's Exhibit 3?

A. With regard to when I received this in the beginning of June, I prepared a response, but on reflection decided not to send a response back. I decided to wait until I was actually issued a subpoena, and take it to the Department of Justice for --

ATTORNEY AUGUSTINE: Objection, your Honor, to the relevance of the question.

THE COURT: I'll overrule it.

You may finish your answer.

THE WITNESS: Thank you, your Honor.

(Continuing) -- and I decided to wait until I was actually issued a subpoena, so I could take it to the Department of Justice to seek authorization to testify in this proceeding.

ATTORNEY NASSIKAS: At this time, I move the admission of Plaintiff's Exhibit 3, your Honor.

THE COURT: All right, it's admitted for purposes of this hearing.

(Petitioner's Exhibit No. 3 admitted into

evidence.)

THE COURT: Are you here today pursuant to some authorization?

THE WITNESS: No, your Honor. I will advise the Court that I attempted several avenues to obtain authorization with regard to this hearing.

I have not received -- both by telephone calling and in writing.

I have not received any response. I have not received a return call or anything with regard to the testimony.

However, I need to advise the Court that I am a member of the Bar of the State of New Jersey, and in the State of New Jersey the rules, the disciplinary rules require me, obligate me to inform the Court and to give information to the Court when I believe that either my silence will help perpetuate a fraud upon the Court or whether I know about facts that would -- that my client wishes to -- that my former client wishes to proceed that would cause a fraud upon the Court.

In that regard, your Honor, I am torn between both sides. I have come here to comply with the subpoena. I am prepared to testify if the Court orders me to do so.

But I also have to advise the Court that my testimony could lead to serious consequences, because I believe the Department of Justice could move to attempt to take my license away and discipline me. Because this case, as a matter of fact, was the reason why I am no longer employed by the Immigration and Naturalization Service. And attempting to fulfill ethical obligations last year, I was relieved of duties by the district counsel.

What I had intended was to request from this Court, because of the very tough predicament I am in, I believe my testimony is vital in this matter and that if it's -- if I remain silent, that this Court would be extremely misled on pertinent, material issues in this case.

So in that regard, your Honor, I would request, as is permitted by my state, to ask that the Court review my testimony, the documents that I have brought, in camera, in order to -- in order that I may fulfill my obligations to the Court and candor to the tribunal.

THE COURT: All right, Ms. Augustine, does the Department assert the privilege?

ATTORNEY AUGUSTINE: Your Honor, may we consult a moment?

THE COURT: Yes, you may.

(Counsel conferring)

ATTORNEY AUGUSTINE: Your Honor, the government is going to withdraw the assertion of the privilege.

THE COURT: All right. That would seem to the Court, Ms. Rizzi, to free you to testify in the circumstances.

Otherwise, the Court would have to consider whether there was any exception applicable to the privilege by examining, perhaps by examining the material in camera and considering whether the fraud exception applied.

But in view of counsel's waiver of that privilege on behalf of the government, I see no reason not to proceed at this time.

Mr. Nassikas, you may ask your next question.

ATTORNEY NASSIKAS: Thank you your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, before today, appearing in Court today, have you had any discussion with attorneys outside the government about the substance of your knowledge of the Konanykhine case?

A. I have not had any conversations with any attorneys outside of the government. And in fact, Mr. Nassikas, you don't know what I am going to testify to today.

Q. Have you had some meetings with attorneys, but only in the form of general questions that possibly might reveal information, but in effect have not provided any of in details of the knowledge you have?

A. When you contacted me on June 25th and advised me that there was a habeas proceeding going on in this Court, and that Judge Ellis had said that he wanted a subpoena issued for my testimony, I inquired upon you the nature of the testimony and the areas in which Judge Ellis was interested.

We then set a meeting on June 30th, at which time you served the subpoena upon me and gave me a general idea of what areas the judge was looking at, and you also gave me a copy of the transcript of the June 23, 1997, hearing.

In preparation of this hearing today, we met last week to discuss in general what areas you would be asking me questions about, and to discuss some specific questions. But I gave no answers to what I would be saying today.

THE COURT: In other words, are you saying he told you what he would ask, but you never told him what you would answer?

THE WITNESS: That's correct.

THE COURT: Next question.

BY ATTORNEY NASSIKAS:

Q. Except in the area of purely background information, for example, if you had gone to law school, the name of that law school?

A. That's correct, only with regard to background information or information that was in the public record.

Q. Ms. Rizzi, what is you occupation?

A. I am a lawyer.

Q. And what area of law do you specialize in?

A. Immigration and nationality matters.

Q. What bars are you a member of?

A. State of New Jersey.

Q. And where did you go to law school?

A. George Washington University in Washington, DC.

Q. And at George Washington itself, were you involved with its Immigration Clinic as a student?

A. Yes, I was, in the third year, in the Fall of 1986 and the Spring of 1987.

Q. What year did you graduate from law school?

A. Nineteen Eighty-seven.

Q. Where are your law offices currently?

A. I am currently in private practice with my own office in Falls Church, Virginia.

Q. And before setting up your current practice, where did you work?

A. Well, I was employed with the INS -- I wasn't really employed between October 28, 1996, and somewhere in January of '97. But prior to that, I was employed with the Immigration and Naturalization Service at the District -- the Washington District Office located in Arlington, Virginia.

Q. Could you describe for the Court just briefly the dates of your employment there and the different statuses you had?

A. I was hired on May 6th, 1996, as assistant district counsel, Grade 14, and I resigned involuntarily on October 28th, 1996.

Q. Now, before going to the INS, where did you practice law?

A. I had my own office for about six years. Immediately preceding that, I had worked for an immigration lawyer in DC, Thomas Elliott, from November 1995 until May 1996.

Before that, I had my own law office in Arlington, Virginia, from January 1990 until November 1995. And before that, I worked with various attorneys in the Washington, DC, area, exclusively practicing immigration and nationality law.

THE COURT: So, when did you begin your employment with the INS?

THE WITNESS: May 6th, 1996.

BY ATTORNEY NASSIKAS:

Q. Who hired you at the INS?

A. Eloise Rosas.

I was recommended by some attorneys in the office, and she recommended me for hire to the general counsel.

Q. And at the INS, who was your supervisor?

A. Eloise Rosas, the district counsel.

Q. Do you know who Ms. Rosas reported to?

A. The regional counsel, Jack Penca, Eastern Regional Counsel. That's P-e-n-c-a.

Q. Do you know who Mr. Penca reported to?

A. The general counsel, David Martin, the INS general counsel.

Q. Now, while at the INS did you become involved in the Alexandre Konanykhine case?

A. Yes, I did.

Q. When did you become involved in that particular case?

A. On June 27, 1996, about 5:45 in the evening, at the same day Mr. Konanykhine was arrested and his wife were arrested.

Q. Who brought you into the case late that afternoon on June 27th, 1996?

A. The district counsel, Eloise Rosas.

Q. And what was your role to be in the case?

A. Well, originally I was brought into the case because of my experience with adjustment in L-1 issues; also, my extensive experience in private practice on issues that normally the Immigration Service doesn't have.

At least in the beginning, up until July 12th, I was the lead attorney on the case. Although the case was supervised and the decisions were made by Eloise Rosas, I was primarily responsible for all of the actions, interviewing of persons, et cetera, obtaining documents in the case.

Q. Ms. Rizzi, are you aware of any INS meetings about Mr. Konanykhine in June of 1996, before the Konanykhines were arrested, that have been documented in writing?

A. There was, to my knowledge, in preparation of the case and also in testimony in the Immigration Court, there were a couple meetings, I know at least of one in particular, a couple weeks before the meeting. I was not present at that meeting.

However, I do have in my possession a cc-mail, which is an E-mail, from the district counsel to several persons, advising of that meeting --

Q. Now, was --

A. -- and the purpose of that meeting.

Q. Was this document prepared and maintained in the regular course of INS business?

A. Yes, it was a cc-mail from the district counsel to her supervisors and some other parties that were pertinent to the case.

ATTORNEY NASSIKAS: Without having seen the document, your Honor, I would like to have an opportunity to look at the document to see if we would move the admission of it.

THE COURT: All right. Show it to

Ms. Augustine as well.

(Document tendered)

THE COURT: In fact, I think this might be an opportune time to take a recess, and you can look at -- you and Ms. Augustine can look at the remainder of them.

ATTORNEY NASSIKAS: Thank you, your Honor.

THE COURT: Court stands in recess for fifteen minutes.

(Witness stood aside)

(Court recessed at 3:15 p.m.)

(Court called to order at 4:00 p.m.)

THE COURT: Ms. Rizzi, you will recall you are still under oath.

(Witness resumed stand)

THE COURT: Mr. Nassikas, you may proceed.

ATTORNEY NASSIKAS: Thank you, your Honor.

(Petitioner's Exhibit No. 4 marked for

identification.)

ATTORNEY NASSIKAS: We would like to move the admission of Plaintiff's Exhibit Number 4 at this time, your Honor.

THE COURT: All right, it's admitted for purposes of this hearing only.

(Petitioner's Exhibit No. 4 admitted into

evidence.)

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, have you shown what's been marked as Plaintiff's Exhibit Number 4 to anyone outside of the INS before today?

A. No, I haven't.

Q. Why not?

A. Because it's privileged and confidential.

Q. And what --

A. I wasn't authorized to reveal it.

Q. And what does -- on that document there, there is a reference to "HQCOU." What does that refer to?

A. That's the General Counsel's Office, headquarters, counsel. It refers to the General Counsel's Office of the INS.

Q. And there are a number of names listed on that document. Are you able to identify who those people are, what positions also they had?

A. Are you talking about the addressees?

Q. All of the names on the document, both the addressees and internal to the document?

A. Well, the addressees, Laurie Shalava [phonetic] is a deputy general counsel. Christina Hamilton is at the General Counsel's Office. I think she is assistant or associate general counsel for investigations.

Jack Penca is the eastern regional counsel. Linda Dominguez [phonetic] is an assistant district counsel within the Washington District Office. Robert Trent is an INS special investigator at the Washington District Office.

Jenny Lashuski [phonetic] was a DOJ attorney that provided some documents, I think even an affidavit in the case, I'm not sure. I don't know her very well. But her name came up several times in the litigation of the immigration case of Mr. Konanykhine.

Tru Pheeney, I don't know that is.

Q. What does that document basically describe?

A. It's a notice to -- it's a notice from the district counsel, Eloise Rosas, to supervisors and other interested parties in the General Counsel's Office, regarding a meeting that was supposed to take place regarding Mr. Konanykhine, and whether, despite the fact that there is no extradition treaty with Russia, whether the INS -- whether there were any possible deportation proceedings for --

ATTORNEY AUGUSTINE: Your Honor, I --

THE WITNESS: -- deportation.

ATTORNEY AUGUSTINE: -- would object.

THE COURT: Yes?

ATTORNEY AUGUSTINE: The document speaks for itself. I believe that the characterization made of the document is inaccurate. So, I would just ask that the document be --

THE COURT: Well, I take it she -- are you testifying from your own knowledge?

ATTORNEY AUGUSTINE: I am testifying from my own knowledge. I was not present at this meeting. This document was given to me by one of the addressees.

However, I did talk to Robert Trent, the special investigator, about the nature of this meeting through the course of my preparation for the immigration proceeding.

THE COURT: All right, you may answer. I'll overrule the objection.

BY ATTORNEY NASSIKAS:

Q. So based on your involvement and knowledge about this case and what you have described, what does this document mean --

THE COURT: Well, it's not what it means. Ms. Augustine is correct, it says what it means. You are asking: What do you understand the meeting was about? Is that your question?

ATTORNEY NASSIKAS: Thank you, your Honor. Yes.

THE COURT: All right.

The only knowledge you have of this meeting, since you did not attend, was the information you received from the investigator?

THE WITNESS: That's correct. And I think I may have participated in some conversations in which this meeting was discussed, with the district counsel.

THE COURT: All right. Now, based on those sources, what is your understanding of the purpose of this meeting?

THE WITNESS: My understanding was, is that the FBI had been involved with this case and the Moscow prosecutor and police had requested that Mr. Konanykhine and his wife, but particularly Mr. Konanykhine, be arrested for crimes that he may have committed in Russia.

And so the purpose of this meeting was to determine whether there were INS violations in order to institute deportation proceedings, because there was no extradition treaty with Russia.

BY ATTORNEY NASSIKAS:

Q. Now, at the beginning of your involvement in the Konanykhine case, were you given any guidance or instructions about the government's goal and underlying reasons in arresting and detaining Mr. Konanykhine?

A. Well, the first night that I was placed on the case, I was immediate advised that this individual,

Mr. Konanykhine, had been arrested, that the Moscow police, together with the FBI, had been surveilling him for a period of time, and that the purpose was to arrest Mr. Konanykhine and send him back to Russia; and that while there were some allegations of fraud at the meeting that is the subject of this Exhibit 4, there was given at that meeting by the Russia prosecutors to the INS, three letters from a Mr. Rudikov in Moscow.

And upon the basis of that, they determined that there was a fraudulent scheme that Mr. Konanykhine had set up in order to obtain an L-1 visa, to change his status to remain in the United States, and that there was -- that was the only documentation we had at that time to support that.

Mr. Konanykhine was taken into custody. When he was taken into custody, it was realized that, in fact, he had applied for adjustment of status and was on an advanced parole.

It was my duties in the beginning of the case to prepare a notice of intent to revoke the I-140 petition, which was the basis of that, and to assist in the preparation of a denial or Mr. Konanykhine's adjustment application, and the preparation of the Form I-122, placing being him in exclusion proceedings.

Q. Ms. Rizzi, you described a meeting that took place the first night of Mr. Konanykhine's arrest, in which the desire or purpose to send him back to Russia was discussed. Who was present at that meeting that you just described?

A. The district counsel, Eloise Rosas -- the first night on June 27th, it would have been the district counsel, Eloise Rosas; I believe also Deborah Todd, assistant district counsel.

There was an investigator in the office at that particular time, when I was first put on the case. It was not Bob Trent, and I don't remember exactly who it was. Because there was also another unrelated case going on that same day, dealing with a terrorist case, and so there were some people in there from -- with regard to that.

On the first night, that's probably all. But there were subsequent meetings, and I also had meetings at which I was present with the Lieutenant Colonel Volevodz and Igor Nusuyev, the Russian detective.

ATTORNEY NASSIKAS: I will turn to those meetings in a minute.

BY ATTORNEY NASSIKAS:

Q. In terms of the three letters from Mr. Rudikov, who provided those meetings at this meeting?

A. Again, I wasn't at the meeting, but I was told by Bob Trent that Lieutenant Colonel Volevodz provided those document.

And I have independent knowledge, with my meetings with Lieutenant Colonel Volevodz. I interviewed him quite extensively, and he also told me that he gave those documents.

Q. Who, at the beginning of your involvement in this case, in the meeting or meetings you are describing, was giving the kind of guidance or instructions to you about what the purpose was in arresting and detaining Mr. Konanykhine?

A. Well, at the beginning, we had a quick meeting in the evening of June 27th. Basically, the district counsel, district counsel filled me in on what the case was about.

We were set to do the documentation that we needed to in order to put Mr. Konanykhine in the exclusion proceedings.

It wasn't until the next day, on June 28th, that my day was primarily preoccupied, up until about 2:00 o'clock in the afternoon, with preparing that documentation to place Mr. Konanykhine in exclusion proceedings.

After that, I met with the district counsel, Robert Trent, and the two Russian prosecutors. We went to lunch and discussed the purposes of the case, the history of the case, FBI involvement in the case.

Then later on that day I attended a press conference that was given by INS, at which the Russian prosecutor -- by the way, he didn't speak any English. Everything was done through an INS translator, who was, I believe, a border patrol agent from either Louisiana or Texas. I only know his first name, Dave. He was assigned up here to do the translation.

And he was interviewed by Pam Constable of the Washington Post, in the district director's office. The district director gave a statement first, and present were Bob Trent and James Goldman, the assistant district director for investigations, and a couple other people from various offices.

Q. What was the date of the lunch you just described with Agent Trent and the Russian prosecutors?

A. Friday, June 28th.

Q. And is that also the day of the press conference you just described?

A. Yes.

Q. What was the day that you first became aware of the three letters of Mr. Rudikov?

A. On June 28th, on June -- on the evening of June 27th, the district counsel and I attempted to write an I-122 notice detaining -- placed in an exclusion proceeding.

However, another person, a senior examiner, was working on the revocation of the I-140 petition. It wasn't until June 28th I was assigned, early in the morning, to assist that senior examiner with the preparation of that notice of intent to deny, and also with the denial of the adjustment application.

And it was there that I saw the three Rudikov letters and the basis for the fraud that the INS was asserting against Mr. Konanykhine.

Q. And as of that period of time that you just described, did you, yourself, have any discomfort in the INS's reliance on the three Rudikov letters?

A. On that date of June 28th, no. However, the next week I met extensively with, for several hours, Bob Trent, the special investigator who was assigned to this case, and I, together with the translator, Dave, met with the two Russian prosecutors to go over what was needed for the prosecution of this case, and general questions.

Q. And turning to the meetings that you had with Lieutenant Colonel Volevodz and his -- the other police officer you mentioned was Nusuyev, is that the name?

A. Yes, Igor Nusuyev.

Q. Do you know how to spell Nusuyev?

Is it N-u- --

A. It's N-u-s-u-y-e-v, something like that.

Q. Nusuyev.

A. Yes.

Q. How many times, do you recall, in total did you meet with Lieutenant Colonel Volevodz?

A. I always met with both of them together. I met with them on June 28th, in the afternoon after the press conference, in order to go over what the process would be to have Mr. Konanykhine excluded from the United States, how long it would take.

I had a meeting, it probably began somewhere around 6:00, 6:30 in the evening on Monday, July 1st. Bob Trent, myself, the translator, and Lieutenant Colonel Volevodz and Mr. Nusuyev, met for probably two and a half, three hours.

We had the lunch on June 28th that I spoke of. And I believe I also met with them on July 2nd, after the master -- at some point after the master calendar hearing. It may have been towards the evening. I don't remember exactly what time it was. I believe I met with them again on July 2nd.

Q. Are you able --

A. Nineteen Ninety-six.

Q. Were there other meetings following the July 2nd one that you also had with the two Russian prosecutors or policemen?

A. No. I would have seen them, because at that time the INS was attempting to get visas in order to travel Special Agent Trent, the district counsel and this translator, were attempting to get visas to go to Moscow in order to obtain documents and information in support of the case.

And so, they were in the office before they left that week with regard to those issues. But, I wouldn't have had any meetings with them after July 2nd.

Q. Are you able to summarize for the Court the substance of the conversations that you were part of with Volevodz and Nusuyev at the end of June and the very beginning of July of 1996?

A. Sure.

On June 28th, after the press conference, I was asked by the district counsel to meet with the two Russians, the Russian prosecutor and the police, with regard to explaining to them what the procedure and the process was.

And I went into how the Immigration Court System works here in the United States, and what we needed to prove in order to prove a fraud case.

I also attempted to tell them at that time that it wasn't absolutely certain that Mr. Konanykhine, if he were excluded, would be going back to Russia. Because the way the law is, is that it has to be the country from whence the person came.

At that point, when I was explaining that, I was interrupted by the district counsel, who came in and who told them that despite that law, that they would seek the authorization of the Attorney General to make sure that Mr. Konanykhine would be sent back to Russia.

Q. Is that Ms. Rosas you are describing?

A. Yes.

So, that was the first time in my presence that the Russian prosecutors were promised that Mr. Konanykhine would be, not only sent back to Russia, but they guaranteed that he would be kept in custody until that time occurred.

Q. And who made the guarantee?

A. At -- on that date the district counsel, Eloise Rosas.

Q. Could you describe what you or the prosecutors said at this particular meeting when the guarantee and the authorization of the Attorney General to return Mr. Konanykhine back to Russia was being promised?

A. I didn't say anything. I sat in my chair and I was amazed. I said, well, maybe I don't know the law as well as I thought I did, and who was I to rebut what my supervisor or my boss was saying.

The Russian prosecutors -- that's what they were there for. They wanted the assurance that that would happen, and that it would be as expeditious as possible.

Q. And this was at the June 28th meeting after the press conference?

A. That's correct.

Q. Was anything else out of notable substance discussed at that meeting?

A. No.

Q. Moving forward to the meeting that followed that day, do you recall who was present and what the substance of the conversation was there?

A. Well, on July 1st, we knew that there was going to be a master calendar on July 2nd, and what we tried to attempt to do was to have at least Lieutenant Colonel Volevodz's testimony taken on that day --

THE COURT: You are talking about a master calendar in the INS Administrative Court?

THE WITNESS: Yes. It's a pleading --

THE COURT: All right, go on.

THE WITNESS: -- before the Immigration judge, that took place on July 2nd.

THE COURT: Go on.

THE WITNESS: And we were going to attempt to get the -- we did try. I asked the judge to take time out of his schedule to hear the testimony of Lieutenant Colonel Volevodz, because he was going to be going back to Russia, and he was the person who had provided the documents and also the person who had the most knowledge about Mr. Konanykhine.

The judge ultimately denied that request and set the hearing for July 19th.

But in preparation of that, I met with Lieutenant Colonel Volevodz and Igor Nusuyev on the evening of July 1st, with Special Agent Trent and the translator, Dave. And we were the only ones present at that meeting.

BY ATTORNEY NASSIKAS:

Q. Can you summarize the substance of the conversation that meeting?

A. Well, there were a couple things that happened at that meeting. First of all, Mr. Nusuyev was very actively with Special Agent Trent photocopying all the documents from Mr. and Mrs. Konanykhine's file -- well, Mr. Konanykhine and Ms. Grotscheva [phonetic].

Q. How did they --

A. Immigration file.

Q. How did they have -- oh, this is the INS file?

A. The INS immigration file.

And then we sat down to have discussions in preparation for additional documentation, looking first of all at the Rudikov letters. They weren't originals. They were photocopies. So, I wanted to know where the originals were. And I asked a series of questions with regard to how they were obtained, from whom they were obtained.

And I was concerned over the fact that they were not obtained -- and I was told by Lieutenant Colonel Volevodz that they were not obtained by the person who was the president of Greatis in Russia.

And I made several requests at that meeting of Lieutenant Colonel Volevodz -- I have an actual list of those requests that I made. I don't have them on my person -- all of my notes that I took on this case, and any documentation were put into Mr. Konanykhine's INS service file.

And there were like twenty-two files at the time that I was there, and I am the one that actually put the files together up at that point, while I was still employed with the Service.

And there was one specific file that contained all of my notes, all the people that I interviewed, all of the requests for investigations that I made, and notes that I took at trial. And it was marked "confidential, attorney/client privilege, do not release in a FOIA request."

With regard to that, I made several requests of Lieutenant Colonel Volevodz. I asked him to go back to Russia and, in cooperation with the INS Office in Moscow, to interview the president of Greatis Moscow and, if possible, to take an affidavit in the presence of an INS, US-INS official, or a videotape.

I asked him to go back, also, and have Mr. Rudikov reinterviewed with the presence of an INS official. I asked for documentation -- he made an allegation that a Russia company, in order to have a subsidiary in the United States, to be an international company, has to prepare a certain -- or fill out a certain tax form or a certain spot in the tax form.

And he indicated to me that he had tax forms that in those places where they ask whether this was an international company, that that was either left blank or indicated "no."

I asked him to -- I had a very long of documents that I asked him to obtain.

He was not pleased at having to do that. He didn't understand why I was requesting all of these documents.

And I explained to him that in order to prove a charge of fraud, we needed a stronger case than just those Rudikov letters. And I asked him to send me the originals of the Rudikov letters.

And I was -- I just was suspicious about those letters.

What made me even more suspicious is, is at that meeting Special Agent Trent advised me that Lieutenant Colonel Volevodz had called some associates in Moscow and advised them to go over to Greatis Moscow and to make sure that the president of Greatis Moscow did not testify for Mr. Konanykhine, that they were to locate him and to make sure that he would not be available for testimony.

Q. That's what Agent Trent told you --

A. Yes.

Q. -- that he had learned from Mr. Volevodz?

A. Yes.

Q. And who is the president of Greatis --

THE COURT: Say again what it was that Trent learned from Volevodz?

THE WITNESS: He learned that Lieutenant Colonel Volevodz had called some of his associates -- this would have been in the beginning of June, because this was on June [sic] 1st -- in Moscow, and requested that they contact the president of Greatis Moscow to make sure that he did not testify for Mr. Konanykhine.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, what was --

A. He was not available to give documentation for Mr. Konanykhine.

Q. What was your reaction when you heard that from Agent Trent?

A. I was quite surprised. It made me concerned about the source of the documents that were originally gotten with regard to the Rudikov letters, and it made me ask for more documents.

Q. Did Lieutenant Colonel Volevodz ever provided you with the originals of the Rudikov letters?

A. Yes. They were originally -- they were sent with a group of documents that were brought by plane, by INS Officer Thomas Walsh, who is stationed in the INS Office in Moscow. When he came to the United States to testify, he brought a lot of documents.

And they were maintained in -- at the time that I was employed by the INS, I had them in a white carton, all of the originals that we had with regard to this case.

Q. Who is the president of Greatis Moscow that you have been referring to?

A. At that time that I had the meeting, I didn't know who it was. But I later learned that it was Mr. Menschikov.

Q. Who was the subject of the other parallel INS proceeding in Immigration Court currently?

A. That's my understanding, that he is currently in proceedings.

Q. Did Lieutenant Colonel Volevodz and Mr. Nusuyev follow up on all the different requests that you had made at these early meetings with them?

A. In part yes and in part no. At first, as I said, the district counsel and Special Agent Trent and the translator were going to go to Russia. But their visas were not granted, and there was always some suspicion that the Lieutenant Colonel Volevodz actually attempted to block those --

ATTORNEY AUGUSTINE: Your Honor, I'm going to object to the testimony. That is speculation.

THE COURT: All right, I think it goes to the weight of it. You may argue that at the appropriate time.

ATTORNEY AUGUSTINE: Thank you, your Honor.

THE COURT: Whose visa was denied?

THE WITNESS: The district counsel and Special --

THE COURT: Is that --

THE WITNESS: -- Agent Trent --

THE COURT: -- Ms. Rosas' visa?

THE WITNESS: That's Ms. Rosas, to go to Moscow.

I think they went, it was about two times or whatever, to the Russian Consulate to attempt to get the visa. And Lieutenant Colonel Volevodz had promised that before he left the United States, he was going to help take care of that.

But ultimately they were not able to go to Russia to -- because they were going to go to collect more information and be present at any interviews or collection of documentation. And that ultimately did not occur.

THE COURT: Next question.

ATTORNEY NASSIKAS: Thank you, your Honor. BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, do you know whether associates of Lieutenant Colonel Volevodz did, in fact, meet with Mr. Menschikov in Russia?

A. I have no personal knowledge of that.

Q. Did Mr. Menschikov subsequently testify for Mr. Konanykhine at his Immigration Court hearing?

A. Yes.

Q. Do you have any knowledge of interest to the Court in this particular proceeding about the circumstances of Mr. Menschikov's testimony?

A. I don't understand your question.

Q. Well, do you know how it came to be that Mr. Menschikov was able to testify for Mr. Konanykhine?

A. He happened to be in the United States at the time that the proceedings were occurring. I don't remember the exact date he came into the United States. I think it may have been towards the end of April, but that's just a recollection and I am not -- I can't swear to that.

Q. Do you know if the INS facilitated in any way the passage of Mr. Menschikov to testify for Mr. Konanykhine?

A. Whether the INS facilitated his testimony?

Q. Yes.

A. No.

You did ask me a question previously, and I got caught up with regard to the district counsel going to Moscow and I never answered that question, with regard to whether Lieutenant Colonel Volevodz provided the documentation that I requested.

Q. Did he provide that documentation?

A. The answer is part yes and part no. He sent over certain documents that I had requested. However, with regard to interviews, he would not let any INS officials go with him to conduct the interviews. he would not allow people to be taken to the INS office in order to have the interviews done.

The -- I think she is officer in charge, Ann Aries-Corsano [phonetic], called me on July -- 12th, 11th, 10th -- on July 10th, and we had a discussion.

Because when the district counsel could not go to Moscow, then we faxed over to our INS Office in Moscow, I think it was about a two page list of documents that we wanted the INS in Moscow to help us obtain.

And the district counsel then was out of the office until Friday, July 12th, from July 9th until when she came back on Friday, July 12th. And so the officer in charge in Moscow called me and asked me to explain to her the nature of the document, the document request.

And also, there were some requests for authentication that's required by 8 CFR 287.6 of foreign documents that I had requested, and she didn't understand that request.

And I explained to her what was needed, and she was not sure that she could get it done in that quick of time.

But at that phone call, she advised me that Mr. Volevodz and Mr. Nusuyev had declined to allow the INS to go in on examination of witnesses or collection of documents.

I was particularly -- one of the requests that I had made was that an INS official go with the two Russian prosecutors to Greatis so that they could, for themselves, give me a report about the company and other information that was on the Rudikov letters.

And they wouldn't do that. And between ourselves, we expressed concern about that.

She told me that she was going to call --

THE COURT: Who is "she"?

THE WITNESS: Ann Aries-Corsano, the officer in charge of the INS in Moscow.

THE COURT: All right, go on.

THE WITNESS: She told me that she thought that FBI Special Agent DePaturo [phonetic], which was at the Ligat in Moscow, was familiar with Mr. Volevodz, and that he was going -- she was going to call him to see what he thought about it.

And later called me back -- and she also talked to Jim Goldman, the assistant district director for investigation at the Washington District Office, and she called to tell him her concerns.

And basically she called me to tell me -- called me back to tell me that Mr. DePaturo had said that he had met Mr. Volevodz previously, and that he found him to be a fun person, and he didn't have any concerns about Mr. Volevodz, and that it was not unusual for the Russian Society not to allow the INS or any U.S. authorities to go around and help collect evidence and do those types of things.

And then later that day, James Goldman called me and told me the same thing, and that Mr. Volevodz would be in charge of getting the documents.

BY ATTORNEY NASSIKAS:

Q. So, was the INS ultimately not allowed at any point in Russia to accompany Lieutenant Colonel Volevodz or anyone related to him, in interviewing witnesses or in the collection of documents?

A. That's correct. There may have one, towards the end of the trial -- I kept getting different addresses for Greatis in Moscow, and every time I got a new address off the witness stand or some other document we had in the file, we attempted to send someone out whether Greatis existed at that address. Because we were -- we believed that Greatis in Moscow doesn't even exist.

Q. Who believed that?

A. And --

Q. I'm sorry, who believed that the Greatis Moscow address provided on the Volevodz document was not a real address?

A. Actually, not the Volevldz document; documents provided by Mr. Konanykhine, and addresses provided by Menschikov.

And we sent out to INS -- Ann Aries-Corsano, the officer in charge in Moscow, went out to a couple different addresses. And I think at one point she was accompanied by Lieutenant Colonel Volevodz or Nusuyev with regard to those addresses.

ATTORNEY NASSIKAS: For the record, your Honor, I would like to show this witness the three Rudikov letters that she has been describing. We would mark them as Plaintiff's Exhibits 5A, 5B and 5C -- I'm sorry, one more.

(Petitioner's Exhibits Nos. 5A, 5B and 5C

marked for identification.)

BY ATTORNEY NASSIKAS:

Q. Do you recognize those documents, Ms. Rizzi?

A. Yes, I do.

Q. And are those the Rudikov letters you have been describing?

A. That's correct.

Q. And did you --

ATTORNEY NASSIKAS: I move the admission of Plaintiff's Exhibits 3A -- was it 5A, I'm sorry, your Honor, 5A, 5B and 5C.

THE COURT: For purposes of this hearing, they are admitted.

(Petitioner's Exhibits Nos. 5A, 5B and 5C

admitted into evidence.)

THE COURT: Let me see the --

ATTORNEY AUGUSTINE: Your Honor?

THE COURT: Yes?

ATTORNEY AUGUSTINE: Excuse me. They've already been submitted by the respondent in this case.

ATTORNEY NASSIKAS: That's right.

THE COURT: Yes.

ATTORNEY NASSIKAS: They are Exhibit --

THE COURT: They are elsewhere in the record. I am aware of that.

ATTORNEY NASSIKAS: I am, too, your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, are these the -- are these three documents, documents that you relied on in your work on this case?

A. At first, when I helped prepare the notice of intent to revoke the I-140 petition and the denial of the adjustment application, yes.

Later on, I was presented with other signs of possible unreliability of these documents. The first time was -- well, not the first time, but other than talking to Lieutenant Colonel Volevodz, the next time that these letters were -- gave me concern was, I did an informal deposition of Mr. Menschikov. He voluntarily came in with Mr. Maggio to the INS Office on July 11th.

By the way, I previously submitted an affidavit in the matter last year, which had a typo. It said July 10th instead of July 11th. But it was on July 11th of 1996.

And at that time, Mr. Menschikov gave me information that this Mr. Rudikov had never worked for Greatis Moscow, and that he had been employed as a security person, but that he didn't have any authority to write these letters. So, that gave me a bit of concern.

And then there was also, I think it was Mr. Menschikov that described to me with regard to the registration numbers that are on these documents and the dates that are on these documents, that -- they attempted to explain to me that these could not be accurate.

And so that there were some problems with these documents. And Mr. Menschikov advised me that the information that were on these documents was not true.

Now, at the same time I was attempting, through other sources of obtaining documentation, to still show that the basis of the information was not true, and especially the fact that Mr. Konanykhine had never worked for Greatis. And I believe that we had other outside additional information that was of greater weight than that.

Also at some point, and I am not sure whether it was one of the translators or whether it was Mr. Yuri Shvets -- I think it was in the course of one of the translators that we had, because we had a team of translators translating a lot of documents that were sent to us at the last minute from Russia, and there were a lot of company seals on these documents.

We had documents that had come from Lieutenant Colonel Volevodz that were from the Finance Ministry with regard to the taxes. And there were different seals on those. And Mr. -- this particular translator -- I don't remember which one it was -- pointed out to me at one time the varying different seals.

And we couldn't -- and so then I brought these letters down to him and I said, "Well, can you relate -- can you look at the seals that were on this letter, because you can see on the Russian that there were seals, and compare them?"

And there was no consistency with regard to the company seals.

Now, I didn't know which once were valid, which ones were real or not, but these letters concerned me.

So, from that point on I never relied upon them with regard to cross-examining or examining witnesses. They remained in the record, but I did not rely upon them.

Q. And did the INS try independently to corroborate the validity of these three letters in any ways beyond what you have described in the record so far?

A. Well, one of my requests to Lieutenant Colonel Volevodz was to bring Mr. Rudikov in for -- to submit an affidavit again, and to bring him into the INS in Moscow.

I was told, through Ann Aries-Corsano, that Lieutenant Colonel Volevodz advised her that he could not be found.

And I inquired periodically, and the answer was still, he could not be found during the litigation.

And then, quite to my surprise, towards the end of the litigation -- again, I cannot verify authenticity, but there was submitted by Mr. Konanykhine in this case a cassette recording that purported to be a conversation between Mr. Rudikov and, I think, Mr. Menschikov.

We subsequently had those recordings transcribed in Russian and then translated into English, and they showed some -- those recordings that were submitted by Mr. Konanykhine showed signs of some irregularities and manipulation.

At that point, towards that end of the case, I was taken off the case and I don't know what ever happened with regard to those tapes.

Q. Did Lieutenant Colonel Volevodz testify in the exclusion case against Mr. Konanykhine?

A. No, he didn't. He was supposed to testify. We were going to try and get his testimony on July 2nd. He was not present in court, but he was present in our offices on the day that we had the master calendar hearing.

The judge at that time said that he did not have the time and didn't think it was appropriate to take his testimony, because there was no preparation that could have been done by Mr. Maggio.

But the judge indicated that he wanted Mr. Volevodz to return to testify. And we promised at that time that we would.

I then had discussions with Assistant District Director for Investigations James Goldman about -- while Ms. Rosas was away during the week -- during the days of July 9th, 10th and 11th, I had discussions with Mr. Goldman about bringing Mr. Volevodz back. He had gotten a ticket for him to come back to testify.

He had asked me, was that what we wanted?

And I said, well, I didn't really make to make the decision.

But he told me that he needed to make the plans quickly.

And so I said, well, he needs to authenticate document, and he would be the best authenticator.

On July 12th, when the district counsel came back, Bob Trent from Investigations called -- and I was in the office at that time, actually at that point being berated by the district counsel -- and called on the phone and said that he had made plans, and he just wanted to finalize them before he paid for them, for Lieutenant Colonel Volevodz to come back.

And the district counsel became very angry and said, "Who authorized that," and that he was not to testify and he was not going to come here.

And throughout the trial I tried to talk to the district counsel about the need for legitimacy in the case, and an opportunity to cross-examine Lieutenant Colonel Volevodz, to have him come back.

But she said that she was the district counsel, she had made the decision, and he wasn't going to come to testify.

Q. Did she tell you the reasons why she did not want Lieutenant Colonel Volevodz to come testify?

A. At one point, when the question of Mr. Konanykhine applying for political asylum came up, she said that it was not a good idea, since Lieutenant Colonel Volevodz was the one that was being accused to be the persecutor.

And then when it became, in my mind, in my opinion, important in order to corroborate things that were going on -- documents we were receiving and things that were going on, things that were going on, I requested that he come back again.

And she felt that he would not be a useful witness for the INS.

Q. You mentioned that Eloise Rosas was berating you at the time Agent Trent called and raised the issue of Volevodz's testimony. Why were you being berated by Ms. Rosas?

A. Well, most of it was unrelated to this case. But it had to do, a large part, on an ethical issue that I raised in the office with regard to an individual coming to talk to us at a meeting that we were holding in the district counsel's office, and that she told me that I wasn't to question her ethical decisions, and that I didn't know what I was talking about, and --

ATTORNEY AUGUSTINE: Your Honor --

THE WITNESS: -- that I was going to --

(Simultaneous discussion)

ATTORNEY AUGUSTINE: -- this is irrelevant.

THE WITNESS: -- district counsel.

THE COURT: It is irrelevant.

ATTORNEY NASSIKAS: Yes.

THE COURT: In any event, it was ethical matters unrelated to this case.

THE WITNESS: That's correct.

ATTORNEY NASSIKAS: Thank you --

THE COURT: Next question.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, were you aware of any payments by the FBI or the INS or some other United States agency to Lieutenant Colonel Volevodz to fly to the United States to work on the Konanykhine case?

A. I have no knowledge with regard to the FBI. I can -- with regard to what I know in the INS, I know that we had an account in Investigations called "Operation Greatis," and I was told by Jim Goldman on July 11th that whatever resources I needed to prosecute this case were at my disposal.

We got several, the translations and things like that, and I had some investigators go out and get some information that needed to be paid for, and it was all labeled "Operation Greatis."

I also know that the last time when Lieutenant Colonel Volevodz was in the United States, they were here with their families. I know that the INS picked up tabs with regard to their expenses.

I know that Special Agent Trent, on, I think it was the 4th of July or on that weekend before July 4th, had them out to his house for a barbecue.

THE COURT: Let me ask you this, Ms. Rizzi --

THE WITNESS: Yes, your Honor.

THE COURT: -- the letters rogatory, did they come originally to you?

THE WITNESS: The letters rogatory were obtained by Special Agent Trent. I don't remember right now from exactly what office they were obtained. And they were given to me because I was collecting all of the documentation in preparation of the immigration case.

THE COURT: As you may know, letters rogatory typically are a request, or is a request from a court in one jurisdiction to a court in another jurisdiction, and independent jurisdiction, that a witness be examined on interrogatories, or something of that sort. It's a formal communication, written by one court to another court. It's governed under Rule 28 of the Federal Rules of Civil Procedure for depositions.

This, obviously, was not that kind of letters rogatory. Do you know -- which are typically communications from one court for another. These weren't communications necessarily from one court to another, were they?

THE WITNESS: I am not as well versed in letters rogatory, but my understanding of the documents -- and I have reviewed the documents in the course of preparation of the litigation -- was that it was a request by a foreign government, specifically by Lieutenant colonel Volevodz, to have Mr. Konanykhine arrested, because he had allegedly embezzled $8 million from a Russian bank.

THE COURT: Now, do you know -- yes.

Do you know whether these were submitted to a court in this country?

THE WITNESS: I know that the U.S. Attorney's Office -- I don't the procedures for these, really. What I was told is -- I know the U.S. Attorney's Office, Dan Seikaly submitted some type of letter. But with regard to the procedures, I really can't instruct you, your Honor. I don't know.

THE COURT: All right.

Ms. Augustine, you suggested that something was submitted to the U.S. District Court somewhere. Which court were you referring to?

ATTORNEY AUGUSTINE: That was the District of Columbia, your Honor. It has been submitted. We had submitted them to the District Court, or to the Court.

THE COURT: Was there a request for depositions or something of that sort under Rule 28? I believe that's the only purpose of a letters rogatory, typically, under the Federal Rules.

If so, I want to have -- I think I reviewed this back a year or so ago, but what was the letters rogatory for, and who was to be deposed?

ATTORNEY AUGUSTINE: The letters rogatory, we have --

THE COURT: Was it Mr. Konanykhine who was to be deposed?

ATTORNEY AUGUSTINE: Yes, your Honor.

We have them on our August -- I'm sorry, our June 23rd submissions to the Court. The order of the United States District Court for the District of Columbia states that the Prosecutor's Office in Moscow was seeking evidence for use in a --

THE COURT: Well, that's just what it says there. In other words, the Court is parroting what it says there.

Was anything ever submitted to the District Court in the District of Columbia about the concerns of an expert retained by the INS concerning what was really going on?

ATTORNEY AUGUSTINE: If I understand your question, your Honor, you are asking whether we had --

THE COURT: Yes.

ATTORNEY AUGUSTINE: -- submitted anything?

THE COURT: Yes.

ATTORNEY AUGUSTINE: No, your Honor, we did not, because we did not have any concerns.

THE COURT: All right.

Go ahead, Mr. Nassikas. Proceed.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, what activities do you know that Lieutenant Colonel Volevodz or other foreign agents involved in the Konanykhine case performed in the United States on this case?

A. As far as I know, they met with FBI representatives. They met with INS representatives. They were not present at the INS arrest -- as far as I am aware, they were not present at the INS arrest of Mr. Konanykhine.

I believe they were present at the FBI's execution of a search warrant at Mr. Konanykhine's residence. Other than that, I have no other knowledge.

THE COURT: You've testified, Ms. Rizzi, that Ms. Rosas said that the -- in your presence, essentially promised the Russian prosecutors that Konanykhine would be kept in custody until delivered to Russia; is that right?

THE WITNESS: That's correct, your Honor, and she said it more than once in my presence.

THE COURT: All right. And that surprised you, because U.S. Law would typically require that he be deported ultimately, or sent -- he wouldn't be deported, since he was in exclusion, but he would be sent to the country from whence he came.

THE WITNESS: Yes, your Honor.

Actually, to follow up on that, if I may, I was really perplexed by that, so I went to speak to the head of detention at our office, and asked them where persons who are in exclusion proceedings usually go and what the procedure is.

And we talked on various occasions about Mr. Konanykhine's case. And I told him that the district counsel kept saying that we were going to send him to Russia.

And he said, "Well, you know, that's not what the normal policy is." And he wasn't sure how that was going to be done.

One day, as a matter of fact, I was speaking to him in the hallway on the fourth floor, and the district counsel came up, and we were talking about that issue.

And she reverified her position that we would be sending him back to Russia.

THE COURT: And did you ever have any conversations with Carroll about this?

(Pause)

THE COURT: You know who I am referring to?

THE WITNESS: Yes, the district director.

No. I did have conversations with James Goldman about it, however.

THE COURT: WHo is James Goldman?

THE WITNESS: Assistant district director for investigations.

THE COURT: And what conversation was that?

THE WITNESS: I had several conversations with regard to that.

One of them, the first one probably was on July 11th. I went over -- well, I had two conversations with Mr. Goldman on July 11th. One was about probably about 1:00 o'clock in the afternoon, after I had finished the deposition -- informal deposition or Mr. Menschikov and Mr. Maggio.

Afterwards, Mr. Maggio expressed his interest in having Mr. Konanykhine paroled, and asked whether the district director would see him so he could speak to him about that.

And I said, "Well, come upstairs and wait in the district director's waiting room and I will see if he is available."

At that time I went into our offices -- that happened to be on the same floor -- and I ran into Mr. Goldman.

And he asked me why Mr. Maggio was there, and I told him, and he said, "Well, there is no way in hell that Mr. Konanykhine is getting out of jail."

He went into Mr. Carroll's office --

THE COURT: Did he tell you why?

THE WITNESS: Because the INS was afraid that if he were to get out of custody, that he would flee the country and they would not be able to return him to Russia.

And he went into the district director's office, and I remained outside of the office, but the door was still open.

Mr. Goldman told Mr. Carroll that Mr. Maggio was out here, and no way is Mr. Konanykhine getting out of jail.

Mr. Carroll said, "I'm not talking to Mr. Maggio."

They had had some previous problems prior to this case, about a month before, and he said, "Shut the door," and "I'm not talking to him."

And so then Mr. Goldman went out to tell Mr. Maggio that he wasn't going to speak to him.

Later in that day, I went over to Investigations because I needed to talk to three investigators on an unrelated matter. While I was there, Mr. Goldman saw me and he said that I needed to talk to Mr. Trent about some of the documents in this case.

I said, "Well, that's not the reason that I was there."

And he said, "Well, you need to make that your top priority. This case is very important to us. We need to make sure that the case is done as quickly as possible, and that we are able to look good with the Russians."

And I said, "Well, I understood your concern, but I'll have to share my time with regard to that."

The last time that I talked to Mr. Goldman about this matter was on August 13th, the day after we had a habeas hearing in this Court, in which the district counsel told your Honor that we had no intention of -- when we arrested Mr. Konanykhine, of sending him back to Russia.

I was concerned about that representation. She specifically stated that she could assure you that that wasn't the case, because Mr. Goldman had said that our only purpose was to prosecute the fraud and that was it.

Well, as luck would have it, on the morning of August 13th, I happened to be coming into the INS Building. I saw Mr. Goldman. We rode the elevator up together.

He said to me:

"I have been trying to get a hold of you all day yesterday to find out -- last night to find out what happened, and all day today. Special Agent Trent is calling in from his vacation to find out what is happening. We want to know, you know, what did the judge decide?"

And I told him that you had decided to deny the habeas, but that you were considering an additional issue with regard to the notice of revoking the parole.

And he told me:

"This case is important. We've got to make sure that Mr. Konanykhine doesn't get out of jail, and we've got to get him back to Russia."

I said:

"Well, we told the judge that our reasons have changed, and that we are solely concerned about the fraud issues and getting an exclusion order."

And he told me:

"Well, that's the means, but that's not what the purpose is. The whole purpose is to send Mr. Konanykhine back to Russia."

And I told him that, "Well, I think our purpose has changed," and that he should speak to the district counsel about it.

And he told me that he was there to have a meeting with the district counsel and the district director, they were having a regular manager's meeting, and that he would find a way to bring it up with the district counsel.

THE COURT: What country did Mr. Konanykhine enter the United States from?

THE WITNESS: Antigua.

THE COURT: And is that the country he would be returned to ordinarily under the policy of the INS?

THE WITNESS: That's my understanding.

THE COURT: All right, next question, Mr. Nassikas.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Did you, Ms. Rizzi, or anyone else INS that you are aware of, have any reservations about the propriety of the payments or payments to Volevodz or the other foreign agents involved here, or any of their actions on American soils?

A. I don't have any knowledge to answer that question.

Q. Did Volevodz receive any awards from the INS for his work on this case?

A. I understand, but I don't remember where I got this information from, that he received some type of certificate of appreciation. But I don't know where, I don't remember where I got that information from.

Q. For sake of clarity of the record, Ms. Rizzi, you indicated earlier on there were four meetings that you had with Volevodz and Nusuyev, along with other people.

You described one meeting on June 28th, one meeting on July 1st. There was another meeting, apparently at lunchtime on June 28th, and another one on July 2nd.

Could you just quickly summarize --

A. What I recall with regard to the lunch, which was at Rio Grand, across the street from INS -- and the persons that were present were the district counsel, myself, Bob Trent, the translator and the two Russians.

We talked about the length of time that this had taken for the FBI to do something. The Russians prosecutors were at that time praising INS for having finally arrested Mr. Konanykhine, and they were very hopeful that in very short order that Mr. Konanykhine would be returned to stand trial in Moscow.

We talked about some general things about Russia. They were showing their badges. I don't remember anything more with regard to substance in that, in that lunch.

Q. That was the June 28th lunch.

A. Yes.

Q. How about the July 2nd meeting you mentioned previously in your testimony?

A. I believe this was on July 2nd, because -- I know one of the topics had to do with the videotape that, I think it was the Office of International Affairs. Someone videotaped INS arresting Mr. Konanykhine.

And Mr. Maggio -- and his wife.

And Mr. Maggio had made allegations, I believe at that master calendar hearing or else in writing, that that videotape had been given to some news organization or whatever in Moscow, or in some surrounding satellite country, and that Mr. Konanykhine or Ms. Grotscheva's relatives had seen it and gotten upset. Mr. Maggio made that statement.

And so I got a hold of the videotape that the INS had made, and I was told that that hadn't been shown to anybody.

And the Russians wanted to see it, and we told them no, they couldn't see it. And when they were out of the room at one time, at one point, smoking, Bob Trent and I reviewed the tape, and actually, professionally, I don't think anybody really wanted to see the tape, because it didn't have any heads, and all you saw was arms and the rest.

So, I know also that -- I don't understand Russian, and I know the translator, Dave, was not translating everything, because Mr. Volevodz went into one of his tirades about supposedly some assertions that Mr. Maggio had made at the master calendar hearing, and also about how long this was going to take, because the judge had set this --

ATTORNEY AUGUSTINE: Your Honor, I'm going to object to hearsay.

THE COURT: Well, it's several hours old.

(Laughter)

THE COURT: I have heard a great deal of hearsay, and I am going to overrule the objection and evaluate it. I can evaluate hearsay in these circumstances.

ATTORNEY AUGUSTINE: Thank you.

ATTORNEY NASSIKAS: Thank you, your Honor.

THE COURT: Go ahead --

THE WITNESS: Okay.

THE COURT: -- finish your answer.

THE WITNESS: I was trying to remember what I was saying.

ATTORNEY NASSIKAS: You were talking about the Volevodz tirade.

THE WITNESS: Oh, yes that the judge had put the hearing over to July 19th, and he was --

THE COURT: This is the immigration judge?

THE WITNESS: The immigration judge.

(Continuing) -- and that he was not happy about how long that was going to take, why was it going to take so long.

THE COURT: You had a number of meetings -- or did you have a number of meetings with Mr. Shvets?

THE WITNESS: With regard to Mr. Shvets, he was called in when we finally got documentation from Moscow. We started receiving it late on Monday, July 15th, and in the morning of July 16th, with the time differences in Moscow. We got faxes, and the originals to be flown in with Mr. Walsh later in that week.

We hired a group of translators to come in on July 16th, headed by a person named Werner Hendrichs. And Deborah Todd and -- there was also a legal assistant in our office that had been assigned to me, and happened to be there during the Konanykhine case, and so we used him to help research and do some things. And Deborah Todd organized the translators, getting them set up and translating documents.

Later that afternoon, it came to my attention that Mr. Hendrichs knew of a person who was an expert in these types Russian affairs, that could give us some information with regard to the climate in Russia, and with regard to Mr. Konanykhine's asylum claim.

The asylum part of the case, I was not involved in it, practically at all. Ms. Rosas took care of that, together with legal assistance. Mr. Paskey was also involved in researching some asylum issues.

We went -- as far as I recall, Deborah Todd, myself, the district counsel --

THE COURT: All I'm getting at is, did you meet with him on one occasion or on more than one occasion?

THE WITNESS: I, myself, or the INS.

THE COURT: In a group, or alone?

THE WITNESS: Okay. I wasn't the person primarily responsible with regard to Mr. Shvets. Deborah Todd and the district counsel were the ones that, for the most part, met with him.

I was in a meeting on July 17th where he was given the letters rogatory and, I think, some other documents, but primarily the letters rogatory, to review.

THE COURT: That's the only time you met with him?

THE WITNESS: Yeah. When he gave his final report on July 18th, I believe it was, I was not present. I was supposed to be, but I was otherwise engaged in other matters.

THE COURT: All right.

THE WITNESS: But the district counsel told me the substance of the report.

THE COURT: Mr. Nassikas, is it at all significant for your position in this matter to know the identity of the unidentified person who was present?

ATTORNEY NASSIKAS: No, but it might be helpful, so I don't have to keep calling him "the man" in my questioning, your Honor. Because I believe Ms. Rizzi may know the name of the person.

THE COURT: All right.

BY ATTORNEY NASSIKAS:

Q. Who is the name of the legal assistant that you have mentioned?

A. He was a law intern from General Counsel's Office that was there for two weeks. His name was Brian Menard, M-e-n-a-r-d.

THE COURT: All right, proceed.

ATTORNEY NASSIKAS: Thank you.

I will follow up, your Honor, on the Shvets series of questions.

BY ATTORNEY NASSIKAS:

Q. Did you, yourself, Ms. Rizzi, learn what Mr. Shvets's conclusions were following his several-day analysis?

A. I don't know specifics. All I can tell you is what the district counsel told me.

Q. What did Ms. Rosas tell you?

A. After she had met with Mr. Shvets, she told me that his report was not of any use to the INS, that he would make a good witness for Mr. Konanykhine. He didn't support our side at all, and we had wasted two days and a lot of money in getting his opinion, and we couldn't use him as a witness.

Q. Was there any discussion that you are aware of, of any obligation to tell attorneys outside of the INS about what Mr. Shvets had found?

A. After I had a discussion with regard to ethics with Ms. Rosas on July 12th, I did not challenge any of her decisions after that.

THE COURT: That isn't what he asked you.

THE WITNESS: The answer is, is I didn't bring it up. I don't know whether Ms. Rosas had any discussions with anyone else about it.

THE COURT: All right, next question.

BY ATTORNEY NASSIKAS:

Q. Do you know if INS went out and hired any other expert after Mr. Shvets was dismissed, to conduct a similar review of the letter rogatory document?

A. No, not that I am aware of. For the most part, we relied on what different federal authorities knew of Lieutenant Colonel Volevodz and the dealings that the FBI had with him, and we basically relied on their experiences or whatever with him.

Q. I'm sorry, whose experiences were you relying on?

A. Well, the FBI, Mr. DePaturo in Moscow.

Q. Well, along those lines, Ms. Rizzi, did the INS in Moscow try independently to corroborate the validity of Volevodz's letter rogatory request and its underlying allegations?

A. The FBI or the INS?

Q. The INS, and then I will ask you next about whether you know anything about the FBI.

A. I don't know anything about the FBI. And as far as I know, the INS in Moscow didn't try to corroborate it.

Q. So, you don't have any personal knowledge of whether Agent DePaturo, the FBI legal attache that has been referred to today, in Moscow, whether he conducted any independent investigation in Moscow of the underlying allegations and their validity?

A. I have no knowledge.

Q. You have mentioned a number of individuals, Ms. Rizzi, who were the principal participants at the INS in the Konanykhine case. Aside from those whom you have already identified -- I believe you identified Ms. Rosas, Ms. Todd, Brian Menard, Jim Goldman, Bob Trent, Bill Carroll, and Ann Aries-Corsano and Tom Walsh -- are there some other individuals also who had a principal role in some fashion in this case?

These are INS individuals I am interested in.

A. Principal, no. Subsidiary roles, people did little things, researched specific issues; but no other principals.

Q. Did Raymond Smith, supervisor of detention, have any role in the case?

A. Well, with regard to the fact that he is the supervisor of detention, with regard to Mr. Konanykhine's detention, he had a role.

Q. And a Mr. Gilligan, are you familiar with him?

A. Mr. Gilligan is the assistant district director for detention and deportation. And ultimately, ultimate authority lies with him with regard to detention and deportation issues.

Also, towards the end of that, end of the Konanykhine case, in -- I don't know, sometime in August, perhaps, he was acting district -- acting deputy district director at some point, but I am not sure at which point in this case.

Q. And were there any other, were there other INS cases of which you are aware that involved this many personnel?

A. I had only been employed with the INS from May 6th, '96. Not up to that point. And there had been talk among the office that this was the biggest case, apart from Marlena Cook, Jack John Cook's wife.

Q. And did you have any understanding of why the case was so heavily staffed?

A. This case was important to the INS in establishing -- the FBI and the INS establishing fledgling offices in Moscow. And it would have led to great credibility and ability for American and Russian authorities to work in the future, which is a legitimate goal, with regard to law enforcement.

Q. When did Ms. Todd get involved in this case?

A. Approximately on -- well, actively on July 16th, when we started doing the translations of the documents from Moscow. When it was apparent that we weren't going to have an independent witness, we started looking for witnesses with regard -- from the FBI. And Ms. Todd was -- has a lot of experience with regard to obtaining authorization for witnesses from different DOJ departments.

We needed an extra hand in the case. Ms. Rosas had asked me who I would suggest.

I suggested someone, but she turned that down, and then Deborah Todd was placed in the case.

THE COURT: How much more do you anticipate, Mr. Nassikas?

ATTORNEY NASSIKAS: Approximately half an hour, your Honor.

THE COURT: I have a jury trial that commences tomorrow.

ATTORNEY NASSIKAS: I would like to be able to finish, obviously, tonight, your Honor. So, if it is possible to go beyond 5:30 we --

THE COURT: It's not possible to go much beyond 5:30. And Ms. Augustine needs an opportunity to cross-examine. See if you can --

ATTORNEY NASSIKAS: Thank you --

THE COURT: -- focus your examination sharply.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, when was the case -- when was the beginning of the case that was tried in Immigration Court against Mr. Konanykhine?

A. The individual actual trial started on July 19th, and went seven days, all the way through August 7th.

Q. Had the INS --

A. Excuse me, August 2nd.

Q. Had the INS asked for an expedited schedule for that trial?

A. We had asked to have the hearing set as soon as possible, and the judge had originally set it at the earliest possible time for him, which was to begin on July 19th.

Q. And what was the reason for wanting an expedited schedule?

A. Well, in my presence, the INS had promised, specifically the district counsel, that this case would be handled as expeditiously as possible.

Q. And how many days, then, did the INS have to prepare its case?

A. Well, in reality, only about three or four, because we had gotten documents -- Special Agent Trent had gotten documents from different, various government authorities with regard to the case.

But the documents that he needed from Moscow, first there were concerns about exactly how to do it and the authentications that were needed, and that Lieutenant Colonel Volevodz wasn't allowing the INS to go out there and help him do it.

Then we were scheduled to have the documents flown in by INS Officer Tom Walsh on Sunday, July 14th. I got a call at my home in the morning on Sunday, July 14th, saying that Lieutenant Colonel Volevodz and Igor Nusuyev had disappeared and had not come to the office with the documents like they were supposed to.

On July 15th, was when we were scheduled to submit all the documentation to the court for the hearing. And at that point, all we had were the three Rudikov letters, the letters rogatory and some odds and ends documents from different government authorities with regard to cases that had been going on with Mr. Konanykhine.

And we did not learn until late in the evening of July 15th that we were going to be able to get any documents at all from Russia. So, we had very few days to prepare those documents.

Q. Why did the INS -- or rather, I'm sorry, when did the INS make its decision to detain or parole Mr. Konanykhine?

A. Well, there were -- while I was employed by the INS there were three custody decisions. The first one was on July 15th.

Basically what happened is that when the documents didn't come, I had a conversation with the district counsel saying that I wasn't sure that we could sustain our burden with regard to the fraud issues in the case, and that the hearing was schedule for July 19th, and that we either -- and that we would need to request an extension of time in order to meet our burdens, in order to get documentation; and if we were going to request an extension of time, then we would have to consider paroling Mr. Konanykhine.

THE COURT: Why?

THE WITNESS: Because if we requested that the hearing take longer, that would mean that Mr. Konanykhine would have to stay in custody longer. And because we didn't have a strong basis for the fraud allegations on July 15th, I didn't think that we could sustain a reason why he should remain in custody.

That was my personal opinion, which I expressed to district counsel, and at which time we went to speak to the district director about it.

THE COURT: You did?

THE WITNESS: The district counsel and myself went to speak to the district director about it.

THE COURT: Go on, Mr. Nassikas.

BY ATTORNEY NASSIKAS:

Q. Can you describe what was discussed at that meeting?

A. We told him that we hadn't gotten the documents that we were supposed to from Russia. The district director was quite upset about that.

At that meeting we discussed the possibility of letting Mr. Konanykhine out on a bond. Mr. Carroll suggested that since Mr. Konanykhine had a lot of money, it should be a very high bond.

Ultimately, what the discussions -- when we left the room, Mr. Carroll had said to tell Mr. Maggio that we wanted a $25,000.00 bond.

We then went to the district counsel's office and called Mr. Maggio. I was present. Mr. Maggio was on speakerphone.

We had discussions with -- well, the district counsel had discussions, but I was present and I chimed in to let him know that I was there -- with regard to the bond.

While we were speaking with Mr. Maggio on the telephone, the district director also presented himself in the district counsel's office, unbeknownst to Mr. Maggio.

We had discussions at that time with regard to a bond. Mr. Maggio argued his points with regard to his reasons why he thought that Mr. Konanykhine should be let out.

He argued to the district counsel that based upon Mr. Menschikov's representations to me the previous week, and in the affidavit Mr. Menschikov had prepared, that there was some basis that possibly the documentation that we had was -- with regard to the Rudikov letters and Mr. Konanykhine's alleged embezzlement of $8 million was not correct.

There were lot of discussions back and forth. There was discussions of a $10,000.00 bond. Mr. Maggio mentioned that the INS had agreed to a $5,000.00 bond for Mr. Konanykhine's wife, Ms. Grotscheva, and therefore would the INS consider a $5,000.00 bond.

At that point, ultimately the district director agreed to the $5,000.00 bond, and we told Mr. Maggio that we agreed to a $5,000.00 bond.

Mr. Maggio represented that he would then advise his client and get back to us.

But the INS had agreed to a $5,000.00 bond.

Then, based upon that, assuming that Mr. Konanykhine would be getting out of --

THE COURT: You are running on a narrative now.

Do you have another question?

ATTORNEY NASSIKAS: Yes.

BY ATTORNEY NASSIKAS:

Q. Was there a subsequent decision no longer to -- or rather to withdraw the $5,000.00 bond that had been agreed on?

A. Somehow, Bob Trent --

THE COURT: Is the answer to that "yes" or "no"?

THE WITNESS: Yes.

THE COURT: All right, next question.

BY ATTORNEY NASSIKAS:

Q. What was the nature of that discussion?

A. Somehow, Bob Trent and James Goldman, who was on vacation, got news that --

ATTORNEY AUGUSTINE: Your Honor, I am going to object to hearsay.

ATTORNEY NASSIKAS: Your Honor --

THE COURT: I'll overrule it.

ATTORNEY NASSIKAS: -- this is a discovery proceeding.

THE COURT: I'll overrule it.

Proceed.

ATTORNEY AUGUSTINE: Thank you.

THE WITNESS: (Continuing) -- got news that we were going to release Mr. Konanykhine on a $5,000.00 bond -- actually, I think the district counsel -- I mean, the district director called over there, and the Investigations, especially Mr. Goldman, was not happy.

Bob Trent called me and said there is an arrest warrant in the letters rogatory. You need to give that to the district counsel. And Bob Trent, he said, "I will be over in five minutes."

And then he came over, and then they had discussions with regard to that, the district counsel, the district director, Bob Trent and Jim Goldman. I was not present for those discussions. I don't know what was said.

The only thing I know is about an hour later, the district counsel advised me that they had changed their mind, that she had felt all the time that it just wasn't right, in her guts, to let Mr. Konanykhine out, and that they were not going to release him because he was a fugitive from justice and there was an arrest warrant.

BY ATTORNEY NASSIKAS:

Q. Is the arrest warrant you are referring to the resolution in the letters rogatory?

A. Yes, that's what they referred to it as.

Q. Was there any confirmation at the INS that that resolution was, in fact, an arrest warrant?

A. No, not that I know of, one way or the other. I mean, it was always, it was always stated to us that it was an arrest warrant.

Q. Now, in July and August 1996, there were a series of letters in this voluminous record from the INS to Konanykhine or his counsel describing the various custody decisions in this case.

A. Uhm-hmm.

Q. Are you familiar with those, that series of letters?

A. Yes.

Q. Did you have any participation in drafting those letters or discussing the custody issue that is raised in those letters?

A. The, for the July 15th, I was present at the discussions, but I did not draft the letter. The district counsel drafted the letter. There was the district director's letter, and she also did a separate letter.

Then there was another custody decision made on August -- on Sunday, August 11th. That was after the first habeas proceeding in front of this Court. I was not present at that, because I was doing documentation to be submitted for the final submission for the Immigration Court.

Ms. Rosas came back to the office and advised that the judge was concerned over the fact that if the INS's intent was to send Mr. Konanykhine back to Russia, that he may release him from custody.

She also indicated that the judge had indicated in court that the INS could amend its decision or otherwise clarify its decision.

At that point, we took a position of attempting to make clearer why Mr. Konanykhine should be kept in custody.

At that point, you have to remember that the immigration proceeding was concluded, and we had vast amounts of documentation that had been submitted. There were clear signs that Mr. Konanykhine had committed fraud with regard to the "L" visas.

With regard to specific documentation, some of it may be unreliable, some of it not. But at that point we had a lot of reasons, and the hearing had been ended, and we were just waiting for the immigration judge's decision.

So, I participated had in preparing parts of the letter that was done on August 11th and submitted to this Court on August 12th.

Q. Did those July and August letters accurately reflect the reasons for INS's decision to detain Mr. Konanykhine?

A. Particularly the --

ATTORNEY AUGUSTINE: Your Honor, I'm going to object. This is opinion testimony that is being called for.

ATTORNEY NASSIKAS: Judge, she is the attorney involved in the drafting of some of these letters.

THE COURT: It's overruled. I'm going to permit her to answer. She has already indicated what the Russia prosecutors were promised.

Now, can you answer his question or not?

THE WITNESS: Yes, I can, your Honor.

THE COURT: What's the answer?

THE WITNESS: The answer is, is that the reasons -- there was basis for some of the reasons given there, but the overriding reason was, is that this individual, Mr. Konanykhine, was to be kept in custody until the end of the proceedings, with the anticipation that he would be turned over to the Russian authorities.

On August 11th, we maintained the position that we would wait and see what the decision of the immigration judge would be and make a determination at that point -- this is what we told the Court -- make a determination at that point to what court -- excuse me, to what country he would be deported to, which --

THE COURT: That's what was represented to the Court.

THE WITNESS: That is correct.

THE COURT: Was that true or not true?

THE WITNESS: That's not true.

THE COURT: Next question.

BY ATTORNEY NASSIKAS:

Q. In what way was that not true?

A. It's not true because we intended to send Mr. Konanykhine to Russia.

Q. Do you know what witnesses the INS proposed to call at the Immigration Court proceeding that began on July 19th?

A. There were various stages of preparing a witness list. At one point, Mr. Shvets was going to be a witness. But after we got his report on July 18th, the district counsel removed his name as a witness.

Mr. Hendrichs, who was a translator, was going to be a witness to authenticate translations, but that was later indicated that it wasn't necessary.

There was -- I think he was an FBI agent locally, in DC, I can't remember his name, I seem to recall it begins with a "C," but I don't remember the name off the top of my head -- that was also supposed to testify on July 19th, he was brought into the office, but it was later decided that he would not make a good witness.

THE COURT: How much more, Mr. Nassikas?

ATTORNEY NASSIKAS: A little, your Honor, just several different topics. I should be able to wrap up within the next ten minutes.

THE COURT: Make it shorter than that.

ATTORNEY NASSIKAS: Okay, your Honor.

BY ATTORNEY NASSIKAS:

Q. Do you know if anyone at the INS, Ms. Rizzi, reviewed the letter rogatory request from Volevodz in its entirety?

A. The district counsel did. I think Bob Trent looked at it. I reviewed it generally.

Q. Are you aware of any false statements made by INS lawyers or officials to this or any other court about the Konanykhine case, or any pressure to make such false statements?

A. Well, with regard to the August 12th hearing, it's my opinion that the district counsel misrepresented to this Court the motivation for arresting Mr. Konanykhine, and also misrepresented to the Court, and continues, the fact that the INS intends to send Mr. Konanykhine back to Russia.

Q. Are you aware of any pressure on you to make any false statements to this or any other court?

A. I prepared an affidavit -- when Mr. Konanykhine's attorneys filed a reconsideration of the habeas, I prepared an affidavit that was ultimately submitted on August 21st, 1996. I was directed to prepare that affidavit by the district counsel. I prepared a version of it, about seven different -- about five or six different drafts were done.

The district counsel wanted me to write in the affidavit that the INS had not agreed to a $5,000.00 bond when, in fact, they had agreed with Mr. Maggio to a 5,000.00 bond.

I refused to write that.

The district counsel wanted me to write that the INS had no interest in cooperating with the Russians with regard to this case.

And that wasn't true, and I refused to write that.

There were some other minor things with regard -- I mean, she wanted me to admit that I didn't fear retaliation from her, and that wasn't true.

But with regard to the issues in this case, those were the two main things.

And when I refused, I called the regional counsel, which is her supervisor, to advise him what was going on, and I spoke to the ethics officer in the region, who advised me that an affidavit is not supervisor -- is not product that a supervisor can review, and said that they would speak to Ms. Rosas.

And they told Ms. Rosas that either she accepted my affidavit the way it was, or not to submit an affidavit at all. Ms. Rosas then told me not to -- that I was not going to be submitting an affidavit.

But later, the U.S. Attorney's Office advised her that my affidavit was necessary, since my name was implicated in Mr. Maggio's affidavit, and it would -- they needed to have a response from me.

So, I submitted my affidavit directly to the U.S. Attorney's Office, with a note to Rob Spencer, saying this was the affidavit, that it was true and complete -- was accurate, that it didn't have all the complete information, but that it was true to the best of my knowledge and belief, that this is the affidavit that I wanted to submit, and if it was not sufficient, then I wasn't going to submit an affidavit at all.

Q. Ms. Rizzi, do you have copies of the draft of the affidavit you've just described?

A. I have photocopies of it.

Q. How did you happen to retain copies of those drafts?

A. Well, originally Ms. Rosas asked me -- she went rooting through my trash can for my copies, and I asked her what she was doing, and --

Q. You actually saw her rooting through your trash can?

A. Yes.

And she said that she wanted the copies of the affidavit, because she had scribbled some remarks on what she wanted written and what she wanted taken out.

And I had already made a photocopy of those, and I gave her the originals but I retained photocopies.

ATTORNEY NASSIKAS: I would ask that those be --

BY ATTORNEY NASSIKAS:

Q. Do you have those in your possession today?

A. Yes, I do.

ATTORNEY NASSIKAS: May I just ask, without even having seen them, your Honor, that they be marked and put into evidence in this case.

THE COURT: All right.

Do you have those with you, Ms. Rizzi?

THE WITNESS: Yes, I do, your Honor.

THE COURT: They are no different, are they -- or are they different from the affidavits ultimately submitted?

ATTORNEY NASSIKAS: These are the drafts, your Honor, I believe.

THE WITNESS: Yes, they are different, because there are remarks about what I am supposed to add and what I -- and they show what I didn't add --

THE COURT: All right.

THE WITNESS: -- and the comments that were going to be made.

THE COURT: All right, we will have those marked collectively as Petitioner's Exhibit 6.

(Government's Exhibit No. 6 marked for

identification, admitted into evidence.)

THE WITNESS: And just to inform the Court, I also put a copy of the note, the fax cover that I sent to Rob Spencer, indicating what I just testified to.

THE COURT: All right. A copy will be made of that, so that you will have it returned to you, Ms. Rizzi.

THE WITNESS: I have already retained a copy. That's an extra copy for the Court.

THE COURT: All right.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, is there handwriting on those drafts by Ms. Rosas?

A. Yes. All the handwriting that's on those drafts is Ms. Rosas' handwriting.

There were other instructions given to me verbally, which are not written on there.

Q. Aside from what you have already described to this Court to this point, Ms. Rosas, do you have any other knowledge --

THE COURT: This is Ms. Rizzi.

ATTORNEY NASSIKAS: I'm sorry, did I say Ms. Rosas?

THE COURT: Yes.

ATTORNEY NASSIKAS: I apologize, your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, aside from what you have already testified to today, do you have any other knowledge about the motivations of the INS in deciding to detain Mr. Konanykhine?

A. I don't think that there are any issues or subjects or conversations that we haven't touched upon.

Q. Did a time come when you were removed from working further on the Konanykhine case?

A. Yes. After the final habeas hearing on Friday, August 23rd, 1996, when I reported to duty on Monday, August 26th, I was relieved of duties by the district counsel.

Q. What were you told the reasons were for your removal?

A. I was told that I was relieved of duties pending investigation by the Department of Justice on the district's handling in the Konanykhine matter.

Q. And when you say, used the passive voice, was that Ms. Rosas that told you that?

A. Yes.

Q. And at a later point in time, were you put on administrative leave from the INS?

A. Yes. I was relieved of duties on August 26th, of all duties. And Ms. Rosas told me that that was by order of the general counsel.

I went to speak to the deputy general counsel the following day, who advised me that his only order was that I was to be put on non court duties.

Ms. Rosas later told me that that was what I couldn't do, that she was district counsel and there was nothing that I could do.

And then on September 20th, I was put on administrative leave and prohibited -- with pay, and prohibited from going back to the district office.

And then on October 28th, I resigned.

Q. And before testifying today, Ms. Rizzi, have you been concerned about having to testify?

A. I was very concerned, and I have not, until today, revealed any documents or information, because I was specifically told that the attorney/client privilege was being invoked, and I made sure that I didn't violate that.

Q. And why are you testifying today? is my final question.

A. Because I have an obligation as an officer of the Court to be truthful with the Court, and to let the Court know, if I believe that it has been deceived or a fraud has been committed upon it, that I need to advise the Court.

THE COURT: Why didn't you jump up instantly when Ms. Rosas said, as she did in a hearing earlier on, that the INS really didn't have any interest in returning him to Russia?

THE WITNESS: On August 12th, on the day that I was here, I was concerned about her representations. However, I was not sure whether certain things had changed. It was not until the following day, on August 13th, when I spoke to Mr. Goldman, that I verified for sure that things hadn't changed.

On August --

THE COURT: Why didn't you then communicate with the Court?

THE WITNESS: On August 21st I spoke to Rob Spencer about the issue, and we had a meeting between Rob Spencer, Rob Chestnut, Eloise Rosas and myself with regard to the issue.

At that time, the information and documentation that I had to prove that Ms. Rosas was not telling the truth was privileged. I was told that I was -- on August 20th that I was not to release any information or documentation with regard to Mr. Konanykhine's case, that it was privileged.

I had concerns about the extent of that privilege and with regard to authorization. I attempted several times to get a hold of the ethics officer in the General Counsel's Office at INS, and was not able to reach him.

Eventually, what I told Mr. Spencer -- the U.S. Attorney's Office told me that all their resources were at my disposal, and that I should advise this Court immediately.

Ultimately -- I told Mr. Spencer that I wanted to speak to the ethics officer, because I didn't want to violate any -- get in trouble with the Department of Justice with regard to confidentiality issues.

And I advised Mr. Spencer on August 23rd, when we had the hearing, that because I had not yet talked to -- been able to communicate with an ethics -- the ethics officer, that I could not release the information, which was -- which I was ordered was confidential.

And I have been wanting to have an opportunity for almost a year to be able to advise the Court of this issue.

THE COURT: Mr. Nassikas, anything further?

ATTORNEY NASSIKAS: No, your Honor.

THE COURT: Ms. Augustine, you may cross-examine.

I am not limiting you in any way, but do you have some sense of the extent of your cross-examination?

ATTORNEY AUGUSTINE: I would say about thirty minutes, your Honor.

THE COURT: All right, let's proceed.

ATTORNEY AUGUSTINE: Thank you.

CROSS-EXAMINATION

BY ATTORNEY AUGUSTINE:

Q. Ms. Rizzi, when you were hired by the Department, you were given a preliminary security clearance; is that correct?

A. That's correct.

Q. You were not given, at the time of your hiring, a complete security clearance; is that correct?

A. That's correct.

Q. At the point when your security clearance was completed, isn't it true that you it was determined that you had significant tax problems?

A. Actually, what had happened was, is that those issues had been adjudicated before I went to work with the INS --

ATTORNEY AUGUSTINE: Your Honor, I would ask that the witness answer --

ATTORNEY NASSIKAS: May I just ask that the witness be allowed to answer the question?

THE COURT: Yes, you may answer.

THE WITNESS: I had, before I entered on duty, had those issues with regard to the fact that I had been on an installment agreement for my tax returns for three years, come up; and also with regard to being late on some student loan payments; but that I was never in default. And those issues were resolved.

But after this hearing, they were reopened at the instance of the INS; and that because of these matters that were going on, the Office of Attorney Personnel Management made a decision that I was unfit to be a Department of Justice attorney because I had been on installment agreements for my taxes for three years. And they gave me the choice of either resigning or to have that finding made in my file.

And I resigned on the condition that an investigation by the Office of Professional Responsibility would continue.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true that at the time of the preliminary investigation, you were authorized to make payments to the IRS?

A. Yes.

Q. And isn't it true that at the time -- at the end of the investigation, it was concluded that during the pendency of your employment with the INS, you had missed some of those payments to the IRS?

A. I had missed one; but the main reason was the fact that I was still on an installment agreement while being employed by the Department of Justice.

Q. Isn't the fact that you missed a payment, wasn't that enough to deny you the security clearance?

A. No. Ultimately the payments were made and the agreement was current.

Q. Ms. Rizzi, isn't it true that the Office of Attorney and Personnel Management told you that you were being denied the security clearance because of the missed payments?

A. No.

What they told me was, is that because I had been on installment agreements for three years, and because I continued to be on installment agreements even after my employment with the INS, and because I had been late on some student loan payments, that those were tax and credit history problems that presented a problem, and that I was unfit to be a Department of Justice attorney.

ATTORNEY AUGUSTINE: Thank you.

BY ATTORNEY AUGUSTINE:

Q. At the time that the letters rogatory were submitted to the Court, isn't it true that a page of the letters rogatory was left out of the submission to the Immigration Court?

A. To the Immigration Court?

Q. To the Immigration Court.

Isn't it true that one of the pages, one of the pages, specifically the page in the arrest warrant, was left out of the evidentiary submission to the Immigration Court?

A. I don't think it was the Immigration Court, actually. I think it was this Court. As I recall from testimony at the August 9th hearing, that neither the Court nor Mr. Bucklin, who was representing Mr. Konanykhine at that time, had that page. And I wasn't responsible for photocopying it.

With regard to the immigration, I don't think so.

THE COURT: In any event, given the position you were advocating at the time, was there any benefit to you in excluding such a page?

THE WITNESS: No.

THE COURT: Or to your position?

THE WITNESS: No. It would have been a detriment, because we were claiming that the arrest warrant was the basis for having detained Mr. Konanykhine.

THE COURT: So far as you know, was it inadvertent by anybody?

THE WITNESS: If it was missing. I actually read the transcripts recently, and that was the first time I found out that that page was missing. And it would have been inadvertent. Because it's like a 500-page document, and it's very easy to get things misplaced.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true that you proposed to Ms. Rosas that you go over to the Immigration Court, to slip the document into the evidentiary packet?

A. To the Immigration Court, to a document?

Q. Yes.

Isn't it true that you proposed to Ms. Rosas that you would go over to the Immigration Court and slip in the page that you had inadvertently left out, into that evidentiary packet?

A. I don't recall a document being left out. I remember that when we had to do -- the letters rogatory submission to the Immigration Court was on July 15th, and we had very little time, we got it there right at 5:00 o'clock.

As a matter of fact, they originally rejected it because we didn't number the pages, and it had to be handed in the next day.

Q. So, you don't recall making a motion to the Court to accept that missing page?

A. I remember that there was some document, I can't say that it was from the letters rogatory. I remember there was some document with regard to one of our submissions, that that was left out. I can't say that it was specifically the letters rogatory.

I do, now that you mention, remember making that motion.

Q. But you don't remember telling Ms. Rosas that you would go over to the Court and slip that into the evidentiary packet?

A. I don't think there was anything that was sinister. If I did tell her that, it would have been -- the Court hadn't looked at the documents. There was no -- I mean, one page out of, I think at that point we were probably up to 800 or 900 pages -- would not have been something that -- I mean, it would have had to go to Mr. Maggio. So, it wasn't something that you would try to slip by somebody's eyes.

THE COURT: Did you ultimately file a motion?

THE WITNESS: I think, now that Ms. Augustine reminds me, I remember that there was some type of motion that was filed with regard to adding that.

THE COURT: Whose decision was it to file the motion?

THE WITNESS: It would have been -- eventually it would have been mine if we went -- I don't know. I can't say.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. You just testified that if you had left something out, it wouldn't be sinister; is that right?

If you had left something out of the packet, it wouldn't be sinister?

THE COURT: No, what she said -- she previously testified that if anything was left out, it was inadvertent. She just testified that by -- if she had said something like that, she didn't mean it to be sinister.

ATTORNEY AUGUSTINE: Thank you, Judge.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true that the immigration judge set a strict deadline for the admission of documents in that case?

A. Oh, he set a very strict deadline. And it was the district counsel's position that it didn't matter, that the judge would extend that deadline anyway, and we would be able to get documents in we wanted to.

I was the one that pushed the deadline, and I was the one that was concerned about the fact that we hadn't received the documents so we could submit them on July 15th.

Q. So, given the fact that the judge set a strict deadline, and if you had inadvertently left a document out, isn't it possible that the --

A. Mr. Augustine, you --

THE COURT: Just a moment. Let her finish her question.

Finish your question, Ms. Augustine.

BY ATTORNEY AUGUSTINE:

Q. Given the fact that the immigration judge had set such a strict deadline, isn't true that the immigration judge was not going to accept any further deadline -- any further documents after that deadline?

THE COURT: How would she know?

BY ATTORNEY AUGUSTINE:

Q. Did the Immigration Court make -- did the Immigration Court make it very clear to the parties that he was not going to accept any evidence after the deadline?

A. He said that the evidence was due on July 15th. There wasn't anything said that he would not consider after July 15th the submission of any additional documents.

In addition, if I had submitted a document, it wasn't like I was going to sneak into the Immigration Court and put it into the file. I would have had to speak to the clerk about it and advise the clerk about, that we were going to add a document to a submission that had been inadvertently left out. There is nothing sinister to it.

THE COURT: The implication is, by these questions, that a document was left out, or a page was left out, and that you suggested to Ms. Rosas that you could sneak in and put it in, because the deadline wouldn't be moved. Is that true or not true?

THE WITNESS: That is not true. That's false.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. You had a meeting with Rob Chestnut and with AUSA Rob Spencer about the misrepresentation that you alleged Ms. Rosas made to the Court; is that correct?

A. Yes.

Q. And you just testified that you had an obligation to disclose any fraud to the Court; is that correct?

A. That's correct.

Q. But you did not disclose that to the Court; is that correct?

A. That is correct. At the meeting that we had with Ms. Rosas and Mr. Chestnut and Mr. Spencer, they very delicately discussed the issue, and we particularly looked at the portion of the transcript which I felt that the district counsel had misrepresented herself.

And the district counsel's response was, "Well, I was not at the meeting that Jim Goldman had made that statement."

And I said that that was true; however, I had had that conversation with Jim Goldman the following day after the hearing, and Ms. Rosas' response was, "Well, did you tell Mr. Maggio that, too?"

Q. Well, isn't it true that although you did not disclose this information to the Court, you in fact did reveal this in private conversations to Mr. Maggio and Mr. Bucklin?

A. The only thing that I said to Mr. Maggio and Mr. Bucklin was, is that Mr. Maggio had called me up and said that he, at that time, was in California, and that he had received news back from the Court that, what Ms. Rosas had said, and that he said I knew that those were misrepresentations.

And then I said, "I have to deal with my own ethical obligations with regard to the issue, and yes, I believe that Ms. Rosas did make some misrepresentations, and I am trying to determine how to deal with it."

But I did not specify or we did not talk about what the nature of those misrepresentations were.

Q. And after your meeting -- and after your meeting with Rob Chestnut and Rob Spencer, isn't it true that you decided that no misrepresentation had been made?

A. No, that's not true at all. What I told Mr. Spencer was that I could not -- I could only prove it by testimony, by conversations and documents which were all privileged.

And because I had not been authorized by the Department of Justice to disclose that information, I could not comply with my obligations; much the same as when I came here to testify under subpoena by Judge Ellis, at the beginning of this hearing I stated that I was here because I was subpoenaed, but that because of the attorney/client privilege I was concerned that I could not testify and fulfill my obligation.

Q. And isn't it true that Ms. Rosas was there to state that you should submit the affidavit?

A. Oh, she never stated that I should submit the affidavit. As a matter of fact, she was very angry at a sentence that I put in the affidavit that said that I agreed with Mr. Maggio that the INS had a vested interest in cooperating with the Russians. And she thought that the purpose of the meeting that day was to discuss that sentence that I had put in the affidavit.

Q. Weren't you repeatedly encouraged by Rob Chestnut and Rob Spencer to submit an affidavit to the Court if you felt that any misrepresentations had been made?

A. I was very encouraged. I met with -- I had many conversations with Rob Spencer. I met with Rob Spencer individually that same day. I stayed an extra two hours at the U.S. Attorney's Office pondering over it.

Rob Spencer advised me what he usually looks for with regard to perjury prosecutions.

I advised him of my concerns. I also at that time was not sure of the relationship between the INS and the U.S. Attorney's Office with regard to attorney/client privilege and, therefore, could not divulge all of the information that I had with regard to that.

And I -- finally, at around 5:00 o'clock, I told Rob Chestnut and Rob Spencer together that I would have to try and get a hold of the ethics officer by tomorrow morning, and that I would let them know.

And they told me that I should report this to the judge as soon as possible, if I determined that I felt that it was a misrepresentation.

And because of my -- as I stated previously, because of the attorney/client privilege issue, I ultimately advised Mr. Spencer that I could not advise the Court, although I still maintained that the misrepresentation was -- that there was a misrepresentation made. And I still maintain it to this day.

Q. I would like to refer to the cc-mail that was introduced by counsel.

A. Yes.

Q. Where did you get this document?

A. From one of the addressees.

Q. And who is that?

A. I am at a pause to say who it is, because this person -- but unfortunately, there is only one person that still works under the supervision of the district counsel, so even my objection to responding to your question would give away the person. It was Linda Dominguez.

But I am worried about any retaliation that the district counsel may place upon her for having given me that letter.

Q. When did you get that document from Ms. Dominguez?

A. When I was still on the Konanykhine case, probably sometime in the week of August 19th through the 23rd, 1996. I don't remember exactly when, but it was when I was still on the case.

(Pause)

THE COURT: Do you need time Ms. Augustine?

BY ATTORNEY AUGUSTINE:

Q. With regards to Mr. Shvets --

A. Yes.

Q. -- isn't it true that Ms. Rosas told you that she did not consider Mr. Shvets an expert?

A. No, that's not true. She didn't tell me that.

Q. Isn't it true that she also told you that she thought he was a nut?

A. No, that's not true at all.

Q. Isn't it true that you, yourself, ridiculed Mr. Shvets?

A. I did not ridicule him. The one thing that I did was call him a -- because he has two eye teeth, we called him Dracula. But I wasn't the only one in the office that did that.

Q. Did you have concerns about the letters rogatory?

A. My focus primarily on the case, I did not deal with the letters rogatory. That letters rogatory was used in a custody decision that was originally made on July 15th.

It was in the immigration hearing, and most of the questioning and whatever any questions that came out of the letters rogatory were directed by Ms. Rosas, because she reviewed it in more detail than I did.

And the only thing that I ever -- I don't know for myself -- I read -- originally, when I saw that it said "Resolution," when Bob Trent called me up on July 15th and said there is a warrant of arrest in there, I'm like, "Well, where, where?" And that's why he came over to show me.

And I'm like, "This resolution is a warrant of arrest?"

And that's what he was told, and I don't know different. I don't know one way or the other.

Q. Well, isn't it true that you submitted the letters rogatory to the Court?

A. As counsel in the case, I was responsible for preparing almost all the documents, if not all the documents, for the Immigration Court.

Q. So, you submitted all the documents to the Immigration Court; is that correct?

A. Yes, under the direction of the district counsel. I mean, all the documents that I submitted were reviewed by the district counsel, or at least the district counsel knew that I was submitting those documents. There were some documents that we had discussed about submitting that weren't submitted.

Q. And you aggressively litigated that case, did you not?

A. Oh, yes, I did aggressively litigate that case. And my personal opinion is, is that Mr. Konanykhine did commit fraud. All I can say is that there were certain documents -- and that's my personal opinion, and that was my position in the case. I was the lawyer for the government.

ATTORNEY NASSIKAS: Your Honor, I would just object at this point to personal opinions that aren't responsive to the question, that really don't bear on the precise issues being litigated today.

THE COURT: Continue. Had you finished your answer?

THE WITNESS: I hadn't finished my answer.

I was going to say that there was certain documentation that were submitted in the Immigration Court that was less reliable than other documentation, and I attempted to rely on the more reliable documentation, and also to obtain additional documentation and do additional investigations as testimony was received from the stand.

BY ATTORNEY AUGUSTINE:

Q. So, what you are saying is that you submitted documents that you did not believe were reliable?

A. No, when I submitted the documents, I did not believe they were reliable. And with regard to the Rudikov letters, I had a discussion -- and Mr. Paskey was also present at one of the discussions, because I had a couple discussions with regard to the Rudikov letter -- with Ms. Rosa, especially towards the end of the prosecution, with regard to their unreliability.

I became very concerned over the fact that the addresses that supposedly Mr. -- Lieutenant Colonel Volevodz and Nusuyev went to, to get these letters, were different than the addresses that they directed the INS to later on, and where the INS testified that there was no Greatis Company at those addresses.

And one night I had a long discussion with Mr. Paskey about the fact that, wasn't it strange that when they went back -- and in conjunction with Mr. Konanykhine's allegations that some things had happened with regard to the Greatis Company in Moscow, I was concerned over the fact that, what role Mr. Volevodz was playing with regard to those Rudikov letters. Because the addresses -- the address of Greatis Moscow seemed to be changing weekly.

Q. Okay, let me ask the question again.

You submitted documents to the Court that you believed were not reliable?

A. When I submitted them, I did not -- I had no firm belief on unreliability. As the prosecution went on, there were certain documents in the record that I gained knowledge of that may be unreliable.

And I, particularly with regard to the Rudikov letters, asked Ms. Rosas -- I needed to prepare the final argument with regard to the immigration case, and I was in charge of the fraud part.

And originally when we had submitted our opening argument, Ms. Rosas had written that, and she had relied exclusively on the Rudikov letters.

And I told her that I didn't think that we should rely on those letters.

And she told me that she was district counsel, that we were going to rely on those. And I, I didn't.

Q. Despite the fact you started to feel afterwards that these documents were not reliable, you made no attempts to retract them from the record; is that correct?

A. I spoke to my supervisor, the district counsel, about retracting them from the record and about their unreliability.

And at that point, the district counsel's relationship with myself was not very good, and she made the decisions in the case. I did not have ultimate decisions in the submission or the retraction of documents from the immigration case.

Q. Well, when you were working at INS, you had problems with the way Ms. Rosas ran the office; is that correct?

A. There were certain problems that I had with her, yes.

Q. And you went to her supervisor about those problems; is that correct?

A. That's correct.

Q. And specifically you went to your supervisor about her litigation skills; is that correct?

A. I didn't go to her supervisor necessarily with regard to litigation skills. I had a meeting with the regional counsel on July 9th in Baltimore, at which I expressed a concern over the knowledge that the district counsel had with regard to the issues in this case, and that -- our ability to litigate it without resources and help from the central office. And I was concerned about how different policies and things were being made with regard to this case.

And at that time I was told by the regional counsel that as soon as he returned to his office that following Monday, that he would contact headquarters and ask that some persons from headquarters be involved. But he never did that.

Q. So, you complained to him about resources, but you never brought to his attention that you were concerned that unreliable documents were being used in the case?

A. At the end, on about August 8th, I sent a cc-mail to him. I was having ethical questions a lot. And I spoke -- every time I had a question or a problem in my mind, I spoke to different attorneys in the office.

I spoke to Mr. Paskey extensively about my concerns of ethical issues in this case, and for the most part Mr. Paskey agreed with me. And I was told by different members in the office that I should be sending a cc-mail to the regional counsel every time a problem presented.

And I said, well, because I was a provisional employee -- or I was still on probation, I was a new employee, that I didn't think it was appropriate to be going and complaining.

Finally, on about August 8th, I just felt that things were so serious that I sent a cc-mail to Jack Penca, the regional counsel, advising that I thought that there were ethical issues in this case that needed to be addressed.

Q. But you did not tell him that you had concerns about unreliable evidence being used; is that correct?

A. Well, as a matter of fact, I got a copy of the cc-mail here. I can see if I did or not. And I know that I sent subsequent cc-mails, after I was relieved of duties, with regard to the issues in this case to

Jack Penca, to the General Counsel's Office, and to the ethics officer, Fred Ternay.

Q. You said that you spoke extensively with Mr. Paskey about your complaints about Ms. Rosas; is that correct?

A. That's correct.

Q. Yet you never told him that you thought that unreliable documents were being used?

A. Oh, that's not true at all. I would like to see Mr. Paskey say that. I have expressed many concerns.

I also spoke to several other attorneys in the office. I spoke -- and I can name all the attorneys I spoke to. But I would probably not want to do that for fear that they may be retaliated against by the district counsel.

But I do mention Mr. Paskey because I am surprised to see him at counsel table.

Q. You had mentioned that earlier you had a meeting, you were having a meeting with Ms. Rosas on an ethical issue; is that correct?

A. Are you referring to on July 12th?

Q. Yes.

A. Yes.

Q. Isn't it true that that ethical involved whether we should hear -- whether we should receive a presentation from a doctor on post traumatic stress disorder?

A. Yes. And the specific ethical issue was, is that a person who testifies for aliens exclusively was going to talk to us about post traumatic stress disorder. And there was a concern that in the future, cases with the, with INS, that this doctor would assert that since he had come to talk to us, that we had no ground for challenging his credentials or his opinions.

And as a matter of fact, those concerns came to fruition, because there were some cases in the Immigration Court in which he specifically said that, and where the judges held that he -- the judge would consider that individual an expert because of that.

And I sent a cc-mail to the district counsel, and sent it around to every other attorney in the office, because several attorneys had expressed discomfort with that and concerns in varying degrees. and I decided to approach the district counsel with my concern.

And she told me I was ignorant and I didn't know what I was talking about, and that there were no ethical issues.

Q. You said that you stated that you had concerns with the Rudikov letters --

A. Yes.

Q. -- is that correct?

A. Uhm-hmm.

Q. And you stated that Ms. Rosas was relying only on the Rudikov letters at that time?

A. I said that in her opening argument with regard to the fraud issues, she relied almost exclusively on the Rudikov letters.

Q. Well, isn't it true that that letter wasn't -- that that letter, in fact, did predate any immigration proceedings against Mr. Konanykhine?

A. What letter?

Q. The Rudikov letters.

A. The Rudikov letters are dated in April. My understanding of the events, having been told by Bob Trent, was that basically the Russian prosecutors got nowhere with the FBI, and the FBI suggested that they contact INS to see if there were any deportation problems with regard to Mr. Konanykhine.

And then it was from, from a long line of preparing for court and also testimony in court by Bob Trent, that it was discerned that this individual was on L visas.

Later, Mr. -- Lieutenant Colonel Volevodz produced these letters saying, "Look, look, he really didn't work for this Greatis Company and he didn't do this." And that set up the basis of which the INS felt that Mr. Konanykhine, in the beginning, and why he was arrested, that Mr. Konanykhine had obtained a fraudulent L visa.

Q. Well, isn't it true that there are independent reasons why Ms. Rosas believed that the letters would be genuine?

A. I don't know Ms. Rosas' reasons for believing that they are genuine.

Q. Isn't it true that the person who -- Menschikov, who you have testified had led you to be concerned about the genuine -- about whether the letters were genuine -- isn't it true that Mr. Menschikov had a financial interest in protecting Mr. Konanykhine?

A. Yes, Mr. Menschikov did. However, he said -- he gave me information -- I would like to finish answering the question.

He gave me information at the deposition which could be verified, and I set out in an attempt to verify the information.

Q. And isn't it true that Rudikov was actually a security officer at Greatis Russia?

A. That's correct. But it wasn't the title that's on these Rudikov letters.

Q. And isn't it true --

THE COURT: "Security officer" there, as you came to understand it, meant more like a, not an officer --

THE WITNESS: A protection outfit.

THE COURT: A protection outfit.

All right, go ahead.

BY ATTORNEY AUGUSTINE:

Q. And isn't it true that despite all of that, you nevertheless submitted the documents to the Immigration Court?

A. Those Rudikov letters were submitted in our first submission on July 2nd at the master calendar hearing, before I had any conversations on July 11th with Mr. Menschikov.

Q. And you did not make any attempts to retract those letters; is that correct?

A. I already stated that I raised the concerns to the district counsel. It was not my -- I made no decisions in this case. The only decisions I made was to try and get information, and from whom to get information from.

Q. But you did not raise that issue to the Court; is that correct?

A. To the Immigration Court?

Q. Yes.

A. No. I was supervised. I was told repeatedly that I was not district counsel, and I was under a chain of command.

Q. Ms. Rizzi, even if you are supervised and you come across evidence that you believe is fraudulent or unreliable, don't you have an ethical obligation to come forward with that?

A. When the district counsel refused to remove the letters, the only thing that I could do was not rely upon them in my examination or direct examination of witnesses.

At the time that I determined that I felt that those documents were unreliable, I did not rely upon them at all in my examination or cross-examination of witnesses, or other documents that I submitted to the Court under my signature.

Q. Ms. Rizzi, you don't like Ms. Rosas, do you?

A. I don't think that it's a matter of like or dislike. I just feel that attorneys, especially attorneys that represent the Department of Justice, need to be truthful.

Q. Ms. Rizzi, isn't it true from the very beginning that you started working at INS, you began to constantly talk bad about Ms. Rosas?

A. No, that's not true at all, from the very beginning.

Q. Isn't it true that from the very beginning --

A. I will tell you when it started. It started on this Konanykhine --

(Simultaneous discussion)

Q. -- my question --

A. case because I understand -- because I understood the level of her knowledge, or lack thereof.

Q. Isn't it true that from the very beginning, you criticized how Ms. Rosas ran the office?

ATTORNEY NASSIKAS: Objection, your Honor.

THE WITNESS: No, not from the very beginning.

ATTORNEY NASSIKAS: I think we have covered this territory now, several different ways.

THE COURT: How much more do you have, Ms. Augustine?

Incidentally, I may be mispronouncing your name. How is it to be pronounced?

ATTORNEY AUGUSTINE: That's correct, your Honor, the way you are pronouncing it.

THE COURT: Augustine?

ATTORNEY AUGUSTINE: Yes, your Honor.

THE COURT: All right. How much more do you have?

ATTORNEY AUGUSTINE: I have -- I do have a little bit more, your Honor.

THE COURT: Well, I understand that. Can you give me an estimate?

ATTORNEY AUGUSTINE: I would say another ten or fifteen minutes.

THE COURT: All right, proceed.

ATTORNEY AUGUSTINE: I'm sorry, did your Honor rule on the objection?

THE COURT: It is plowed ground, but she had already answered. Go ahead and --

ATTORNEY AUGUSTINE: Thank you, your Honor.

THE COURT: -- go to your next question.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true that after you litigated the Konanykhine case, you sent a cc-mail, like the one that you showed the Court, thanking everyone for the wonderful job they had done on that case?

A. For the help that they had given, especially the persons who took over my calendars at a moment's notice and went into court. And yes, that's true.

ATTORNEY AUGUSTINE: Your Honor, I would like to have the cc-mail submitted.

THE COURT: Yes, you may hand a copy to Mr. Nassikas. Give a copy to the court security officer. It will be marked as Respondent Exhibit 1.

(Respondent's Exhibit No. 1 marked for

identification, admitted into evidence.)

THE COURT: Show it to the witness.

THE MARSHAL: (Complied)

THE COURT: Is that the e-mail that you sent?

THE WITNESS: Yes, it is, on July 30th --

THE COURT: All right.

THE WITNESS: -- before the Russian case was completed, actually. This is dated July 30th. It wasn't -- the immigration hearings weren't completed until August 2nd.

THE COURT: All right. It will be marked as Respondent's Exhibit 1.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true that in that letter, you state that the government exhibits had been magnificently produced?

A. Can I see the letter?

THE COURT: Yes.

Do you have another copy?

ATTORNEY AUGUSTINE: No, your Honor. I have three copies.

THE COURT: All right --

ATTORNEY NASSIKAS: We can provide the witness with our copy, your Honor.

THE COURT: All right, do so.

(Document tendered)

THE WITNESS: Yes. I was specifically talking to the two law clerks that worked extensively

with the preparation of the documents. And what I was referring there is, is that we had over 2,000 pages of documentation and exhibits that -- well, actually, it says there 1,172 at that time, 463 pages. And with regard to the tabs, there was actually more documents after that; and that they were responsible for tabbing them and page numbering them, and that they did a wonderful job with regard to that.

BY ATTORNEY AUGUSTINE:

Q. And isn't it true that you sent a copy of this "thank you to all" to Ms. Rosas?

A. I sent this because in my -- I had an address list, where I listed all of the attorneys that were in this office. And I just punched up on the screen that list of names, and didn't think about taking anybody off.

Q. But you could have taken her name off, couldn't you?

A. Yes, I could have taken her name off.

This was more likely, I'll tell you, with regard to Ms. Rosas, is to show that I did send out a thank you, to show that I was appreciative, to let her know that I did send out the thank you to other people in the office.

Q. Now, in your time at the INS, did you ever see a case where INS had information on a deportable alien where we did not seek to deport him?

A. No.

Q. And have you ever heard, in your career as an immigration attorney, of a case where INS had knowledge about someone who was deportable and did not seek to deport them?

A. Well, yes. As a matter of fact, I --

THE COURT: Ms. Augustine, I have seen that on more than a few occasions in this courtroom. You should be present sometime when I take guilty pleas from illegal aliens who have been around, and have even been dealing with the INS.

So, the answer to that is yes. I can only ascribe it to a lack of resources. I really don't know the reasons.

But it certainly -- if your question is, "Are there people in the United States the INS knows are deportable that they haven't deported yet," I would think the answer would be yes. But I don't see what it has to do with this case.

ATTORNEY AUGUSTINE: Your Honor, the relevance to this case, as Ms. Rizzi has insinuated with her testimony that the INS was only after Mr. Konanykhine to help the Russian authorities.

And I think it is pretty -- and think that it's pretty clear from our standpoint that if we have information about someone like that, we would have gone after him --

THE COURT: Well, the real issue though, Ms. Augustine, is whether, not whether you go after them to exclude them or to deport them, but whether you incarcerate them.

Are there any -- let me ask you this, Ms. Rizzi: Are there people who are excludable who are not incarcerated?

THE WITNESS: Right. As a matter of fact, yes, your Honor. And aliens come in, especially in the period of time that we are talking about, when Mr. Konanykhine was first arrested, aliens that are arriving aliens, that have no documents or submit fraudulent documents, but claim asylum, and are paroled into the United States.

THE COURT: Many of those are never seen or heard from again, are they?

THE WITNESS: I can't give you percentages, but that is true.

And also, with regard to those aliens, I was also -- I was surprised that, as Mr. Konanykhine applied for asylum, why he was never given an APSO, an asylum prescreening interview --

THE COURT: What's an APSO?

THE WITNESS: -- with regard to issues.

THE COURT: What is an APSO?

THE WITNESS: It's called asylum prescreening -- well, an APSO is an officer, asylum prescreening officer.

But for persons who are in exclusion proceedings that come in and say that they want to apply for asylum, they can request that -- an interview where there are less stringent standards, basically just have to show that there is someone in the United States or that you can support yourself, and that you have a credible fear for asylum in order to be released.

THE COURT: But I take it that doesn't surprise you in this case, if you accept that the INS considered that he had committed fraud and that he was a wanted criminal in another country?

THE WITNESS: Even if we have those facts, if the person requests it, we are still required to do the interview. But we would -- I'm saying "we," but the INS would deny it, the district director.

THE COURT: Next question.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true, Ms. Rizzi, that our agents found books in Mr. Konanykhine's home on how to change his identity?

A. I was told about that by Special Agent Trent.

Q. And isn't it true that --

A. I never saw them.

Q. Isn't it true Mr. Konanykhine has multiple passports?

A. Yeah, at the time he was arrested he had two Russian passports, a Uruguayan passport, and another passport from another, I think, South American country.

Q. And isn't it true that the Service believed that Mr. Konanykhine had a great amount of money available to him?

A. Yes.

Q. And --

A. That's particularly why they were afraid that he was going to get a passport and skip the country, and they wouldn't be able to deliver him over to the Russians.

Q. Now, aren't those three reasons that I just described, isn't that enough to find that someone is a flight risk?

THE COURT: That's up to the Court, not to Ms. Rizzi.

Next question.

BY ATTORNEY AUGUSTINE:

Q. You said that you assisted in helping the district director to write one of the letters?

A. I said I assisted the district counsel in writing the August 11th -- which I don't think that that letter is dated, but it was done on August -- Sunday, August 11th, and signed in the wee hours of the morning, because I just delivered it to the district director at his house and picked it up in the morning again.

I assisted the district counsel in preparing that letter for Mr. Carroll's signature, to be submitted to the Court the following -- this Court the following morning.

Q. Isn't it true that the district counsel, Ms. Rosas, expressed to you her concerns all along that Mr. Konanykhine was a flight risk?

A. Yes, exactly, he was a flight risk; a risk of leaving the United States, not of staying in the United States.

Yes, that is definitely a concern. That was INS's primary, number one concern, that he was going to get a passport and get his money and go out of the country.

As a matter of fact, many persons commented that they were surprised that his wife, once she got out, didn't get the money and take off and leave the country.

Q. Earlier you stated that counsel had provided you with a list of the questions that he was to ask?

A. He didn't provide me with a list. We reviewed in his office the areas that we would talk about, and he went over some questions that he would ask.

And I only answered questions that dealt with biographic information or information that was in the public record. But I did not show him any documents in advance of this hearing or any information which was confidential.

Q. Did you provide him with any questions that he may ask you?

A. No. I -- sometimes he asked me a question and I asked him whether he was going to ask me a foundation for that question with regard to my knowledge.

When I -- we talked about the questions twice. I met him in his office last Friday, around quarter of 3:00, and we went over -- he had already prepared a list of questions. And then yesterday he called me and he changed the order, or whatever.

I did suggest to him that a different order may be -- because I couldn't give him the answers, and I felt that the judge wanted to have this hearing as short and crisp as possible, and I wanted to aid in doing that, I suggested to Mr. Nassikas how he could better order the questions, since he didn't know what my responses were going to be.

THE COURT: Anything further?

BY ATTORNEY AUGUSTINE:

Q. Was it then that you had told him --

THE COURT: Is there anything further?

ATTORNEY AUGUSTINE: Oh, I'm sorry, your Honor. Yes, I have a few more questions.

THE COURT: All right, go ahead.

BY ATTORNEY AUGUSTINE:

Q. Was it then that you told him that you had been placed on administrative leave?

A. I definitely did tell him that I had been placed on administrative leave while we reviewed the questions. I am not sure -- I don't think I told him before that.

We had a discussion on June the 30th, when he served the subpoena upon me, and he gave me a copy of the transcript from the June 23rd hearing, because I wanted to know what the nature of the proceeding and what the issues were that Judge Ellis was looking into. I could have told him at that time, but I don't, I don't remember.

Q. Have you discussed the Konanykhine case with anyone after your employment with the INS terminated?

A. No. The only thing that I said is that I felt that Ms. Rosas made a misrepresentation to the judge, and that I ended up getting the brunt of it.

Q. Did you speak to any INS attorney about the Konanykhine matter after you termination with INS?

A. Yes.

Q. With whom did you speak?

A. I am really concerned about answering that question with regard to relevance, and I am really concerned that those individuals would be retaliated against by the district counsel.

Two of them already have EEO complaints against her, and I feel that this would jeopardize them even further, two of the people that I spoke to.

THE COURT: Haven't you just identified them?

(Laughter)

THE WITNESS: Yep.

ATTORNEY NASSIKAS: I will object as to the relevance.

THE COURT: It doesn't seem to be relevant, Ms. Augustine.

ATTORNEY AUGUSTINE: Thank you, your Honor.

BY ATTORNEY AUGUSTINE:

Q. After your employment with INS was terminated, why didn't you then go to the Court to tell the Court that misrepresentations had been made?

A. At that point I was still trying to work it out with the ethics officer. On the day that I actually met with the ethics -- finally met with the ethics officer of INS, which was on September -- 20, 19, 18 -- September 18th, that afternoon the district counsel met with the General Counsel's Office, and that was, I would later find out, when there were discussions about putting me on administrative leave.

I resigned with the condition that OPR would continue its investigation. I felt at that time that OPR did its investigation, I would be able to tell any and all confidential information that I may have with regard to this case, and be advised on what appropriate action that I should take.

And until today, I really didn't think that this matter was going to come up again. I had made a decision to get on with my life and not to deal with this case.

Q. Are you aware OPR has found that Ms. Rosas did not mislead the Court?

A. I am not aware of that, although I spoke to, in response to --

THE COURT: They didn't inform this Court, nor does your question inform this Court.

ATTORNEY AUGUSTINE: I withdraw the question, your Honor.

BY ATTORNEY AUGUSTINE:

Q. Now, you stated that Ms. Rosas had told you that she had reviewed all the documents that you submitted to Immigration Court; is that correct?

A. As things were reviewed, she was aware of the documents and knew what was being submitted. Some documents were reviewed with more care than other documents before they were submitted.

Q. Isn't it true that you told Ms. Rosas that you read all the evidence that you submitted to the Court?

A. I did read all the evidence that I submitted to the Court.

Q. But you nevertheless submitted it?

A. Yes. Not despite anything, I told you that whenever I submitted documents to the court, I did not submit any documents that I felt were unreliable at the time that I was submitting them to the court.

And again, I will emphasize with regard to the Rudikov letters, that those were submitted on July 2nd to the Immigration Court, and it wasn't until time later that I started getting more signs of the unreliability, specifically on July 11th when I did the deposition with Mr. Menschikov.

Q. Ms. Rizzi, you were afraid to approach the Court with the misrepresentation, but you were not afraid to approach Mr. Bucklin or Mr. Maggio?

A. I didn't approach Mr. Bucklin or Mr. Maggio with the misrepresentation. I had conversations with Mr. Maggio, who called me and was livid about what had taken place in court.

And I expressed to him -- he said that he had ethical obligations to do things, and I expressed to him that I also had ethical obligations and was trying to determine how best to comply with those ethical obligations, and that I felt also that Ms. Rosas had made misrepresentations.

I later, on the urgence of Mr. Maggio, talked to Mr. Bucklin to find out -- because -- to find out whether he was actually going to submit some kind of motion with regard to that.

And Mr. Bucklin had told me that he was basically going to wait to see what the decision of Judge Ellis was with regard to the habeas.

THE COURT: Was that about the bond?

THE WITNESS: That was with the habeas --

THE COURT: Yes, but is the misrepresentation you are referring to there about the bond or about the real purpose?

THE WITNESS: The real purpose of arresting and sending -- of arresting and keeping in custody Mr. Konanykhine.

THE COURT: All right. Next question.

BY ATTORNEY AUGUSTINE:

Q. Isn't it true that you told Mr. Maggio that he was going to get you fired because he was becoming too specific about what he was revealing in court?

A. No. Those representations, which were triple hearsay, which were made in a proffer by Mr. Bucklin, were not accurate and taken out of context.

Q. Wasn't it true that you spoke to Bucklin himself?

A. Yes.

Q. And isn't it true that then you thanked him for not revealing your name in court on that date?

A. When I finally found out that he was referring to a statement that I had made to Mr. Maggio on July 15th, after the original custody decision, Mr. Maggio was angry about the fact that the INS had reneged on the $5,000.00 bond, and -- I lost the train of my thought here. Mr. Bucklin. I forgot the question now, I'm sorry.

Could you repeat the question?

Q. The question was: Isn't it true that you thanked Mr. Bucklin for not mentioning your name --

A. Oh, okay. So, I had mentioned to Mr. Maggio that all the persons that were in the position of responsibility to make the custody decision were in agreement that Mr. Konanykhine should not be released and that, in fact, Mr. Goldman had called in from his vacation.

At that time, I didn't think that that was a privileged matter, that Mr. Goldman had called in from his vacation.

After I found out from Mr. Bucklin that I was the person he was referring to that had, quote, given information to Mr. Maggio, I then said -- I did thank him for not revealing it particularly at that point.

Q. Isn't it --

A. But at the time I was in court, I did not know that it was -- that Mr. Bucklin was referring to information that I had given Mr. Maggio.

Q. Isn't it true that you were placed on administrative leave because of your secret conversations where you revealed --

A. To tell you the truth, I don't know why I was placed --

(Simultaneous discussion)

Q. Could I --

A. -- on administrative leave. I have a letter from the General Counsel's Office placing me on administrative leave without any reason.

And I also have a cc-mail from Deputy General Counsel Paul Virche [phonetic] telling me, when I was originally relieved of duties, that -- and in conversation that I had with him, that it was during -- it was for an investigation of the entire district -- and I have a copy of the cc-mail to the Court, if you would like to see it -- that it was an investigation of the entire district's handling of the Konanykhine matter, and not specifically me, although I was the only one that was --

THE COURT: Well, you should wait until the question is completed.

But I think the answer certainly answers the question you had not completed. She didn't -- she said she didn't know why she was placed on administrative leave. And I remind you again, your questions don't put that into evidence.

Do you have anything further, Ms. Augustine?

ATTORNEY AUGUSTINE: No, your Honor. Thank you.

THE COURT: All right. Any redirect?

ATTORNEY NASSIKAS: Three questions, your Honor.

THE COURT: All right.

REDIRECT EXAMINATION

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, are you aware that in 1994, that Mr. Konanykhine was interviewed by the FBI on a couple separate occasions?

A. I don't know the specific dates or whatever. I know that there was some information with regard to that at the -- disclosed at the immigration hearings.

Q. And are you aware that in 1995, the FBI and the Department of Justice had apparently given Mr. Bucklin, who was Mr. Konanykhine's attorney at the time, copies of the letters rogatory and advice to avoid Mr. Volevodz?

THE COURT: That doesn't -- your questions don't put those things into evidence.

ATTORNEY NASSIKAS: I understand, your Honor. I'm leading to an ultimate question.

THE COURT: All right. What was the question you just asked?

BY ATTORNEY NASSIKAS:

Q. Are you aware of further contacts in 1995 by the FBI --

ATTORNEY AUGUSTINE: Your Honor, I object.

THE COURT: Let him finish his question. He withdrew the other question. He is about to ask a question. When he is finished, you may object.

Don't answer until I deal with the objection.

Finish your question.

ATTORNEY NASSIKAS: Thank you, your Honor.

BY ATTORNEY NASSIKAS:

Q. Ms. Rizzi, are you aware of any contacts or the fact of contacts in 1995 by the FBI or other American representatives, regarding -- to Mr. Konanykhine's counsel?

ATTORNEY AUGUSTINE: Your Honor, I object. The questions are beyond the scope of cross-examination.

ATTORNEY NASSIKAS: No, your Honor. There is an allegation that Mr. Konanykhine want to flee this country, and I am laying the foundation.

THE COURT: I will overrule it.

You may answer.

THE WITNESS: The only information I have is whatever Mr. Bucklin may have testified to in Immigration Court. And I wasn't really present at Mr. Bucklin's testimony, so I really can't answer that question.

BY ATTORNEY NASSIKAS:

Q. You are aware of the fact that for all the years that Mr. Konanykhine was in Washington, DC, with his wife, Elena Grotscheva in the courtroom today, that there has been no attempt by either one of them at any point in time to flee the country?

A. I have no knowledge of -- I mean, I can't answer that question. I have no personal --

ATTORNEY NASSIKAS: No further questions.

THE WITNESS: -- knowledge to answer that question.

THE COURT: All right, thank you. You may step down.

(Witness excused)

RULING BY THE COURT

THE COURT: The Court called this hearing of these two witnesses, plus a potential third witness, because of its concern stemming from the submission of affidavits about the reliability of certain documents and representations made to the Court.

The matter is before the Court on a petition for a writ of habeas corpus, to order his release from custody of the INS pending resolution of his immigration status. He is currently in exclusion, and the INS is seeking to have him excluded.

Now, the matter came originally before the Court in this respect. On June 23rd, there were several motions, and by order dated June 23rd, the motion for discovery by Konanykhine was granted, insofar as the respondent was to supply Konanykhine with copies of the letters rogatory, and subpoenas were to be issued for the testimony that was heard today, this, with the exception of the lawyer, Jack Blum -- and I am not sure, Mr. Nassikas and Ms. Augustine, that his testimony would really add anything to the case today, or to the issue today.

The June 23rd order further took under advisement the request for temporary release pending resolution of the habeas petition. The only motion currently before the Court, then, is the motion for bail or release on conditions pending the filing and final resolution of the habeas matter.

I deferred that decision, in part to hear the testimony today and to consider further the bases for doing so.

The authority to grant bail or release pending resolution of a habeas petition is inherent in a court's power to order release as a final disposition of any habeas petition. United States against Kelly in the DC Circuit at 790 Federal 2nd is one of many cases that stands for that general proposition.

In Kelly, a panel of the DC Circuit stated that:

"The Court's jurisdiction to order release as a final disposition of the action "includes an inherent power to grant relief pendente lite, to grant bail or release pending determination of the merits."

The power has also been recognized in cases in which a petitioner seeks habeas review of detention by the INS, as in ex parte Lee Phon Phook, which is a 1948 case.

But courts have uniformly held that bail pending resolution of a habeas petition should be exercised sparingly and is reserved for extraordinary involving special circumstances or a high probability of success.

Special circumstances can include a serious deterioration of health are while incarcerated, or unusual delay in the appeal process, and other matters as well.

Let me turn first to the likelihood of success. Konanykhine's petition attacks the district director's discretionary refusal to find that his parole is in the public interest.

The Congress, by enacting 1182(d)(5)(A), has committed the parole decision concerning excludable aliens to the attorney general or his designate. It's in their sound discretion.

More specifically, the statute provides that:

"The attorney general may, in his discretion --

the statute says "his" --

-- "his discretion parole into the United States temporarily, under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest, any alien applying for admission in the United States."

And there are implementing regulations, too, which I have been over in this case in the orders that I have entered several times.

Taken together, the statute and the regulations make clear that the parole decision is discretionary, and that the district director, the attorney general's designee in this regard, need only parole aliens whose parole serves the public interest, and who present neither a security risk nor a risk of absconding.

Now, courts are not in accord with the precise formulation -- and I have written on in this in case before -- to describe the judicial review standard. Some courts use an abuse of discretion standard. Other courts use a more deferential, apparently more deferential, facially legitimate and bone fide reasons standard.

Both standards are deferential and they both amount to the same thing. One may be simply a method of measuring whether the discretion was abused.

They focus, both of them focus a reviewing court's attention on the legitimacy of the reason or reasons given for the action, and whether there is some factual basis for the reason.

Thus, if a district director's termination of petitioner's parole is for some legitimate reason, with some factual basis in the record, a reviewing court should defer to the district director's finding. This is so, even if the reviewing court questions the wisdom or appropriateness of the decision, or would have exercised its discretion differently.

As the authorities uniformly me reflect, the burden is on the petitioner to show that the public interest warrants parole, and that this burden is a heavy one.

The district director ordered petitioner's arrest and detention, simultaneously initiating exclusion proceedings. This happened in 1996, in June. He has sought release from detention pending resolution of the immigration -- of his immigration status.

He has rejected the request, the district director, saying there is no public interest and that he is a risk of flight. These are what are attacked.

These reasons would provide adequate independent grounds for the district director's determination. The risk of flight presents a threshold issue justifying termination of parole, even in cases where release might be shown to be in the public interest.

But the reasons given by the district director for refusing parole must be more than acceptable under the regulations; they must also be the district director's bona fide or actual reasons for refusing parole.

This is a rather obvious point, namely that a pretextual reason cannot form the basis for inappropriate exercise of judicial -- I beg your pardon -- of discretion.

This is clear from the fact that, otherwise, the review of a district director's exercise of discretion would be meaningless. The district director could offer post hoc rationalization for refusals to parole based order impermissible considerations.

These principles, coupled with the evidence adduced today, convince this Court that Konanykhine has demonstrated a significant likelihood of success on the merits of the habeas petition.

The record that the Court has heard today suggests a basis, a significantly strong basis, on which the petitioner can argue that the district director acted for reasons other than risk of flight and absence of public interest, and that what he really wanted to do was to deliver this individual to the Russians, even though there is no extradition treaty.

This is precisely the question that I had asked on a number of occasions in previous proceedings, and had been assured otherwise. I had indicated at the time that I was concerned about that. These affidavits, I think, raised my concerns again.

The record now reflects a probability, in the Court's view, that the petitioner can demonstrate that the district director has not offered a bone fide reason for refusing to parole this petitioner. What he offered is reasons that weren't the real reasons.

Even if the district director did make a determination of the public's interest in this case, the determination may well have been significantly infected by fraud from the Russian military prosecutor, so as to undermine any factual basis relied on.

Even if the district director offered the military prosecutor's desires as the bone fide basis of his decision to refuse Konanykhine's parole, this reason does not, in the Court's view, amount to a legitimate basis on which he can exercise his discretion.

In the first -- one of the first opinions that I issued in the case, denying the initial request for habeas petition, I said there:

"While the Court is not naive of the role politics may legitimately play in immigration determinations, it can never be in the public interest to subvert the parole process by allowing political considerations to displace the statutory scheme.

Manipulation of INS proceedings to achieve an extradition not otherwise possible would not only exceed any discretion the statute confers on the district director, but would also undermine the legitimate operations of the INS in enforcing and administering the Immigration Laws. Congress did not intend to allow foreign powers to pull the strings the parole decisions."

So, if the military prosecutor's influence steered the district director's decision, that is, a desire to trade favors for establishing offices and the like in Russia in return for delivering this person in violation of an extradition treaty -- no, I have misstated that, it is not in violation of any treaty, it's -- in the absence of any extradition treaty, then, that isn't the reason that was proffered to this Court. Indeed, in this Court that was denied.

It seems to me -- I haven't asked Mr. Nassikas this -- but if he came from Antigua, and he is excludable under ordinary policy, INS policies, Mr. Nassikas, would the petitioner be willing to go to Antigua tomorrow?

ATTORNEY NASSIKAS: Your Honor, we would need time to address that question, because I have understood there are some potentially competing immigration issues that don't allow an adjacent island to be the territory where someone in the circumstances would return to. And Antigua is in adjacent waters. But I am not an immigration law expert, and I would like an opportunity to address that.

THE COURT: Well, I am persuaded that -- this petitioner now has been incarcerated for more than a year, and I am persuaded that I can establish conditions of bail and restraint that will insure that he is not a risk of flight, and that will allow the Court to resolve this habeas proceeding promptly without his continuing incarceration. And I find that there is a likelihood of success on his habeas petition, that there are special circumstances.

The hardship of long detention, the possibility of misrepresentations to the Court, and the possibility of the INS reliance on unreliable documents, persuades the Court that it is appropriate to set a bond and to have this petitioner released to electronic monitoring at his home, and not to leave the home. He would be, in effect, under house arrest. He would not leave the home under any circumstances. And he would also be subject to a bond.

Now, there is considerable dispute on whether he has any money, Mr. Nassikas. I have heard him -- heard previous statements by him where he did not and, indeed, I think there is an affidavit of indigency. Is that right?

ATTORNEY NASSIKAS: I believe that is true, your Honor. I don't know -- we are pro bono counsel. We are not getting paid. I don't know if there is any money to pay for a bond. I would like an opportunity to consult on that issue, if there is a need to post several thousand dollar bond.

THE COURT: Well, it's going to take a day to get the electronic monitoring in place. And it's going to take -- so it will take through the afternoon tomorrow.

Where is Ms. Konanykhine living?

ATTORNEY NASSIKAS: She lives, I believe, in an apartment in Washington, your Honor.

THE COURT: All right. Does that apartment have a telephone?

THE PETITIONER: Yes, it does.

ATTORNEY NASSIKAS: Yes.

THE COURT: Well, then it can be -- I think with little effort that telephone -- you are familiar with those things.

ATTORNEY NASSIKAS: Yes, your Honor.

THE COURT: But before he is to be released, that has to be completed. He has to be delivered by INS or appropriate authorities to his home, and he is not to leave under any circumstances.

If the INS wishes to -- I mean, the INS can do what they wish about watching his home.

ATTORNEY NASSIKAS: Your Honor, would Probation or Pretrial Services be the entity that --

THE COURT: Pretrial Services would be the proper entity.

ATTORNEY NASSIKAS: And presumably, Pretrial Services would have some discretion to allow, if there was, I assume, a medical emergency, or some opportunity to leave, as long as they gave the advance "okay" for some reason in this immediate area?

THE COURT: We can -- well, we will deal -- at the moment, no. At the moment, the Court will retain that.

But tomorrow I began a trial at 10:00 o'clock. You make the necessary arrangements, Mr. Nassikas, and you consult with Ms. Augustine about other terms and conditions.

Ms. Augustine, you can consult with him and with your client on whether there are other conditions which might serve to lessen the concerns of INS about his fleeing.

I am sure you have already confiscated all of his passports, but I would certainly make that a condition, that he give up his passports. And indeed, you may consider that there may be other conditions that might be established.

We will deal with medical emergencies on an ad hoc basis. I can't think of any other circumstance in which he could leave, but that would be about it.

Now, I am going to determine the final merits of this fairly promptly. This has been pending far too long.

Where does the INS matter stand, Ms. Augustine?

ATTORNEY AUGUSTINE: Your Honor, the case is set for oral argument at the Board of Immigration Appeals on July 31st.

THE COURT: All right. Has the Board of Immigration Appeals been advised of -- well, I'll leave that for your determination. You all have your own obligations.

I am concerned about the -- I am concerned not only about possible misrepresentations -- and I am going to look back carefully at the transcripts -- but it is my recollection that I was repeatedly assured that there was no desire by the INS to deliver Mr. Konanykhine specifically to the Russians, that that was not what was going on, and that all that was going on was that they thought they had some international crook here who would flee.

We are going to get to the bottom of it, anyway, fairly quickly. In the meantime, this individual having been incarcerated for more than a year, we are going to do it with his living in an apartment now.

If the INS wants to post somebody outside the apartment door, I won't say they may not do that.

I have also suggested, Mr. Nassikas, that you take this opportunity as his counsel to see if you can find some country to accept him.

Does part of the INS appeal deal with the asylum claim?

ATTORNEY AUGUSTINE: Your Honor, the Board found that -- I mean, excuse me, the immigration judge found that Mr. Konanykhine was excludable, he had engaged in fraud, and that he did not merit the relief of political asylum, that he did not qualify for it, and --

THE COURT: I see. So, even if he can make a case for asylum, the immigration judge found that his fraud would not permit him to claim that.

ATTORNEY AUGUSTINE: There are two -- it is two decisions. The threshold matter was whether he was excludable, and he found that he had engaged in fraud and was, therefore, excludable.

Once the issue one's excludability has been resolved, then the Court will proceed to deciding whether there is any relief available to him. And the Court found that he did not qualify for asylum, that he was not -- that he didn't meet the definition of a refugee.

THE COURT: Now, let me remember to say something, Mr. Nassikas. The costs of all of this will -- of the monitoring, will have to be paid by Mr. Konanykhine. The government will not pay for those costs.

ATTORNEY NASSIKAS: Well, I mean, if that's the case, your Honor, then we will have to manage. I don't what know what those costs are.

Once again, I just don't know what the financial ability --

THE COURT: Well, if he is truly destitute, then you will have to make that case tomorrow. I will set a time tomorrow in the midst of this jury trial when we will reconvene about further conditions.

ATTORNEY NASSIKAS: Yes, your Honor.

THE COURT: What I want you and Ms. Augustine to do is to confer on any further conditions, other than the electronic monitoring and the surrender of any travel documents -- which I am sure has already occurred --

ATTORNEY NASSIKAS: That has happened, your Honor.

THE COURT: -- and there may be others.

ATTORNEY NASSIKAS: Right.

THE COURT: There may be others as well. But --

ATTORNEY NASSIKAS: Your Honor, there is also -- there is a motion to remand that Immigration counsel had filed, and it will be argued, as I understand, at the time of -- at the end of this month, that potentially will remand the entire immigration proceeding back to the trial level in Immigration Court, based on some of the new information that has come out from

Mr. Shvets and others.

That oral argument, as I understand, has been granted by the Board of Immigration Appeals, not only on the appeal but on the remand motion. So -- for the record.

And your Honor, the point you make about the possibility of other countries, I mean, one item I know -- well, first of all Mr. Konanykhine, in the first position, I believe, would be for the political asylum process to run its course, and hopefully resolve a result in political asylum being granted by the INS.

Separately, though, if, in fact, there is a need to talk to other countries, I understand from Immigration counsel that there had been discussions in the past about that topic.

In order to get someone to another country, to agree -- to find another country that will agree to take anyone, that they do require an awful lot of personal interviewing, personal evaluation, that that can't be done when someone is not able to, in some ways, plead their case and present themselves.

And also, there is a substantial fee, as I understand, involved in any other alternative country's interest, for example, $25,000.00, $30,000.

THE COURT: Well, I mention that only if it's --

ATTORNEY NASSIKAS: If it's feasible.

THE COURT: -- if it's feasible. If it's not feasible, then the process here will have to run its course.

ATTORNEY NASSIKAS: I understand.

THE COURT: But in any event, I have reached the conclusion I have today because I find the testimony today -- it's not by any means conclusive on the merits, but I found the testimony today to be credible and somewhat disturbing. And I elucidated why I am going to enter the order tomorrow.

I want counsel to appear tomorrow at twelve -- no, let's make it, let's make it 3:30. I will recess the trial at 3:30, and we will take this matter up.

By then, Mr. Nassikas, I would expect that you and Ms. Augustine would have had time to make the necessary arrangements.

Again, what I have in mind is stating in the order that Mr. Konanykhine would be delivered, in custody, to the home, and that he would be in effect under house arrest during this period. He would be home, but he would not be able to leave.

Now, I will make some further determinations on -- Ms. Augustine, you may wish to offer some oral testimony on the issues that I heard from witnesses on today, and I will hear that. But the time --

When is your petition brief finally due, Mr. Nassikas?

ATTORNEY NASSIKAS: Your Honor, that has been subject to rescheduling based on the last hearing we had, and it has not been reset.

THE COURT: Is there any reason why you can't submit a final submission in twenty days?

ATTORNEY NASSIKAS: I think we can do that, your Honor.

I mean, in our view, the testimony today, in conjunction with what else has been put into the briefs in terms of legal argument and other factual information in the record, presents, in our view, an overpowering case not only for the temporary release, but for the permanent release.

In effect, the hope is, by counsel of Mr. Konanykhine, including Mr. Smith and I, that there may be some ripple effects on the political asylum cases currently pending in the Immigration Court.

THE COURT: Where is Mr. Menschikov at the moment?

ATTORNEY NASSIKAS: Mr. Menschikov is -- his case is pending, but he is not in custody. He is in Washington, DC, I believe.

THE COURT: He is not in custody?

ATTORNEY NASSIKAS: He is not in custody, neither Mr. Menschikov nor Mrs. Menschikov, as far as I understand k.

And there was -- that hearing is ongoing and, as I understand, the immigration judge --

THE COURT: All right, I want you to submit your find petition, supporting memorandum and everything, supporting documents, on or before 5:00 p.m. on August 22nd, which is a Friday. That's thirty days.

ATTORNEY NASSIKAS: The Court's indulgence, your Honor.

(Pause)

ATTORNEY NASSIKAS: Thank you, your Honor. That would work for me.

THE COURT: All right.

And Ms. Augustine, you may submit your response by the 19th of September. The Court will hear, if necessary, any further oral argument on the 26th of September at 2:00 o'clock.

And Mr. Nassikas, if you wish to file a response, as you have the burden, you may do so, but it has to be filed by noon on the 25th of September.

All right, I will see the parties tomorrow. He remains in custody for now until the arrangements can be made and the Court enters the order. And I will see the parties tomorrow at --

ATTORNEY NASSIKAS: Three thirty?

THE COURT: -- 3:30.

Court stands in recess until tomorrow morning.

(Court adjourned at 7:00 p.m.)

---

CERTIFICATE OF REPORTER

I, MICHAEL A. RODRIQUEZ, an Official Court Reporter for the United States District Court, Eastern District of Virginia, Alexandria Division, do hereby certify that I reported by machine shorthand, in my official capacity, the proceedings had upon the hearing on motions in the case of ALEXANDRE P. KONANYKHINE v. WILLIAM J. CARROLL.

I further certify that I was authorized and did report by stenotype the proceedings in said hearing on motions, and that the foregoing pages, numbered 1 to 273, inclusive, constitute the official transcript of said proceedings as taken from my machine shorthand notes.

IN WITNESS WHEREOF, I have hereto subscribed my name this day of , 1997.

Michael A. Rodriquez, RPR/CM/RMR

Official Court Reporter