29 August 2013, 19:00

Ustinov case: US third-party extradition practices - interview

Дмитрий Устинов россия литва сша

The Russian Government has expressed concerns over the US’ practice of sending requests for the extradition of Russian citizens directly to third-party countries, in particular in the case of Dmitry Ustinov, suspected of smuggling export-restricted military equipment and can face up to 20 years in jail if found guilty. Douglas McNabb, Senior Principal at McNabb Associates, P.C., and adjunct professor of law specializing in international criminal law, has given an exclusive interview to the Voice of Russia in which he sheds light on the seemingly strange extradition policy of the US and whether or not he believes this is politically motivated.

Russia has reportedly warned against extraditing Ustinov to the US. What do you think the political repercussions of his extradition will be?

I don’t see any political ramifications because this is solely within the legal arena in the sense that there is an extradition treaty between the US and Lithuania, certainly not between the US and the Russian Federation, but there is with Lithuania. It went into force in 2003. In addition to that there is a protocol where the US has an extradition treaty with all of the EU countries. And that went into force in 2010.

So, this gentleman was arrested in Lithuania based on the US federal criminal charges and there is a process in place, where the US can seek to have someone extradited from Lithuania to the US. The fact that he is a Russian citizen or any other state’s citizen really doesn't make any difference at all.

But there is a strange back story to this. I mean, you just mentioned the fact that we have a non-American citizen but a Russian citizen who is not in America and yet he is being extradited to America to face charges in America. I just don’t get it. I don’t see how this is possible.

Your question and your concern certainly make a lot of sense. But there are a lot of individuals who are non-US citizens that are arrested outside the US and facing extradition and potential jail time in the US. Let me use an example. Let’s assume that an individual is in London and wire transfers a sum of money to an individual in Berlin. Let’s assume further that these two individuals have absolutely no idea where the US is, don’t care where the US is, have no intent to involve the US at all.

But if the US believes that those individuals in London and Berlin are involved in money laundering, the US under its extraterritorial jurisdiction statutes has the right to indict both of those individuals, place both of them in extradition proceedings, have both of them extradited to the US to face trial up to 20 years for each of the two individuals because the US takes a very aggressive approach extraterritorially with regards to their federal criminal statutes. I’m not saying it is right, I’m saying it is legal under the US law.

The situation is kind of fantastic though. You have a gentleman sitting in London. He wires money to a gentleman in Berlin. Maybe they are criminals. Maybe they are not. But the US somehow gets involved and then could actually out them in jail in America. Let me ask you this. Do you think the tone of the extradition can be seen as something of a tit-for-tat for Russia’s reluctance to extradite the former US spy agency contractor Edward Snowden?

I think that the Russian Foreign Ministry is upset that one of its nationals has been placed in extradition proceedings and apparently, ultimately, will be extradited to the US. Russia doesn't like that. They are wanting to protect their own nationals, as well as they should. But the point is that Lithuania as a sovereign state entered into a bilateral extradition treaty with the US. It didn’t have to do that if it didn’t want to. And it has international obligations under that extradition treaty.

So, I don’t see that Lithuania is doing anything wrong because it has an international agreement with the US. Lithuania certainly could withdraw from the extradition treaty, but it’s chosen not to do that and certainly as far as the EU as well and the EU extradition treaty.

Let’s ask a different question here. Is it relevant to draw any parallels between Ustinov’s case and that of Viktor Bout, the convicted Russian arms smuggler that is still in jail in America?

I followed both cases very-very closely. With regards to Mr. Bout, he was arrested and placed in extradition proceedings out of Thailand. There is an extradition treaty been Thailand and the US. With regards to Mr. Bout’s case however, it was very political and we’ve seen that from the disclosure of the WikiLeaks where the US Government, in my view, did a full-court press with the Thai Government in an effort to have Mr. Bout extradited to the US. And as we saw, he ultimately was extradited and convicted, and given a very long jail time.

There is no extradition treaty though between the US and Russia. And Russia certainly doesn't have to return Mr. Snowden if it doesn’t want to, there is no treaty in place. As the US Ambassador said, we are not asking that Mr. Snowden be extradited, we are asking that he be returned. But that is still up to the sovereign state of Russia to make that determination as to whether Russia wants to do that or not.

So, I don’t know, but certainly all of this with regards to Mr. Snowden is political. It started out legal, but I think it ultimately was 10% legal and 90% political. And we’ll just have to see how it goes. But no, I don’t really see a relationship between what is going on with regards to Mr. Snowden, the extradition for Mr. Bout and this particular Lithuanian individual. I just don’t see the politics in it.

I see. And the last question that I have. Looking forward, what do you forecast for Ustinov’s sentence, if he is sentenced and if he is found guilty? Could he possibly get up to 20 years in prison, in your opinion?

He potentially could get up to 20 years without parole, without any early release at all. In all of our US federal criminal statutes there is no early release. You basically do what you get. There is about 15% credit for good time but 20 years plus 15% is still a very long time. But it is going to depend upon the dollar amount involved in the alleged money laundering, the dollar amount involved in the items that were allegedly being smuggled. And I don’t have those details to be able to tell you.

But I can say that the US Government will consider this to be a national security case. There will probably be an assistant US attorney as well as a Department of Justice trial attorney, both of which with the national security will be taking an aggressive approach in terms of the extradition of this gentleman.

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