United States v. Firishchak, Osyp

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3852

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSYP FIRISHCHAK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03-CV-9360—Samuel Der-Yeghiayan, Judge.

___________________________

ARGUED SEPTEMBER 28, 2006—DECIDED NOVEMBER 20, 2006

___________________________

Before FLAUM, Chief Judge, and RIPPLE and EVANS,

Circuit Judges.

FLAUM, Chief Judge. In 1949, Osyp Firishchak filed an

application for a visa to the United States under the

Displaced Persons Act (“DPA”). In November 1954, he

became a naturalized United States citizen. Several decades

later, the Department of Justice uncovered documents

suggesting that Firishchak served in the Ukrainian Auxil-

iary Police (“UAP”) during World War II—a fact he did not

disclose in his 1949 visa application. The discovery of these

documents resulted in a trial, in which the district court

ordered Firishchak denaturalized. Firishchak now appeals

2 No. 05-3852

the judgment of the trial court. For the following reasons,

we affirm that judgment.

I. BACKGROUND

In December 2003, the government filed a four-count

complaint against Osyp Firishchak alleging that his

citizenship was illegally procured and must be revoked

according to § 340(a) of the Immigration and Naturalization

Act of 1952, 8 U.S.C. § 1451(a) (2000). The government

contended that Firishchak’s admission into the United

States was unlawful on several grounds: 1) he assisted in

the persecution of civilians during World War II; 2) he

participated in a movement hostile to the United States; 3)

he willfully misrepresented his wartime activities through-

out his visa application process; and 4) he advocated or

acquiesced in acts contrary to human decency.

In August 2005, the district judge conducted a four-day

bench trial and granted judgment for the government on all

four counts. United States v. Firishchak, 426 F. Supp. 2d

780 (N.D. Ill. 2005). The primary issue at trial was whether

Firishchak had served in the UAP. The government offered

documentary evidence linking Firishchak to the UAP,

expert testimony from a World War II historian, and

testimony about post-war visa application procedures, while

Firishchak testified in his own defense, denying any

involvement with the UAP. Instead, he testified that he

drifted from place to place during the war, hiding from the

Nazis in various coffee shops. The district court found

Firishchak’s account of his war-time activities “incredible”

and concluded that he had served in the UAP.

A. Firishchak’s Background Information

Osyp Firishchak was born on April 18, 1919 in

Trebuszany, a town that became a part of Czechoslovakia

No. 05-3852 3

after World War I and is now a part of Ukraine. No other

persons bearing his name were born in Trebuszany on that

date. His father was named Hryts Firishchak.

In his application under the DPA, Firishchak described

his employment and residences from 1941 to 1944, stating

that he had worked as a laborer for a factory in Nitra,

Slovakia, from 1939 to December 1941; a Ukrainian

cooperative in “Lwow” (L’viv), Poland, from December 1941

to April 1944; and a building firm in Nitra, Slovakia, from

April to October 1944. On his visa application, Firishchak

described his residences from 1941 to 1944 as Nitra,

Slovakia (1939 to December 1941); Lemberg (L’viv), Poland

(December 1941 to April 1944); and Nitra, Slovakia (April

1944 to October 1944). Firishchak swore to the truth of the

information on his visa application. He was admitted to the

United States and later became a naturalized United States

citizen.

B. The Ukrainian Auxiliary Police and World War II

In August 1941, following Nazi Germany’s June 1941

invasion of then-Soviet territory, German authorities

formed the UAP to aid in policing the newly-incorporated

District Galicia. Throughout its existence, the UAP was

financed, directed, and controlled by German authorities.

Ukrainian Auxiliary policemen in the city of L’viv were

uniformed, armed, salaried, and received various benefits,

including leave and preferential access to scarce commodi-

ties.

The Nazi policy toward Jews in District Galicia had

several components. First, the Nazis issued new identifica-

tion papers to Jews that identified their religion, and

oversaw their confinement in ghettos. Later, many of these

Jews were forcibly removed and killed. The Nazis tempo-

rarily spared a limited number of Jews, whom the Germans

considered “work capable,” transferring them to forced labor

4 No. 05-3852

camps where many died from starvation, disease, and other

inhumane conditions. These measures were implemented

and enforced from 1941 to 1943 in Galicia. During this time,

the UAP checked personal identification documents and

arrested Jews who lacked special work passes. They also

arrested any Jew who failed to wear an armband bearing

the Star of David.

At the time that Firishchak was admitted into the United

States, the UAP was not on the Inimical List of organiza-

tions hostile to the United States—a list maintained by the

Displaced Persons Commission to assist with processing

visa applications.

C. Stipulations and Evidence Presented at Trial

The parties stipulated to numerous facts and legal

conclusions in the pre-trial order that greatly reduced

Firishchak’s available defenses at trial. They stipulated,

among other things, that the UAP “enforced Nazi

persecutory measures against . . . Jews in the city,” by

checking personal identification documents and arresting

Jews for various violations and that the UAP assisted the

Nazis with the largest ghetto reduction action in L’viv,

commonly known as the “Great Operation.” Pre-trial Order

at 5-6.

As for legal conclusions, they stipulated if Firishchak

“performed the routine duties of a Ukrainian Auxiliary

policeman, he assisted in the persecution of civil popula-

tions.” Id. at 16. Moreover, the parties stipulated that if

Firishchak served in the UAP during WWII, he “was a

member of, or participated in, a hostile movement.” Id. at

18. In addition, the parties agreed that Firishchak’s

wartime activities, and UAP membership in particular,

“were material facts” and that if he actually served in the

UAP during WWII, “he made a willful and material misrep-

resentation of his wartime activities for the purpose of

gaining admission to the United States.” Id. at 19. Finally,

No. 05-3852 5

the parties stipulated that if Firishchak served in the UAP,

“which was subordinate to the Nazi security authorities and

routinely assisted in implementing a range of Nazi anti-

Jewish policies, he advocated or acquiesced in activities or

conduct contrary to civilization and human decency.” Id. at

20. The end result of these stipulations was that Firishchak

could only be absolved if the government failed to prove his

membership in the UAP altogether.

At trial, the government introduced twenty-one wartime

documents related to Firishchak’s UAP service, including

seven that bear his signature.1 Two of those documents

identify Firishchak by name and birth date and state that

he had been employed by the 1st Commissariat of the

Ukrainian Police since October 1941. One of the documents

lists the headquarters of the 1st Commissariat as

Firishchak’s residence and lists his father’s name as Hryts.

The signatures on the documents are spelled the same, and

all of the documents identify Firishchak as a police private

in the UAP. A few of the documents lacked specific dates.

During Firishchak’s trial, Dr. Dieter Pohl, a scholar who

has done extensive archival research on the Nazi occupation

of District Galicia and the UAP, testified generally about

the German occupation of Galicia and the role of the UAP

in implementing Nazi policy. In addition, Pohl testified that

there was no suspicion regarding the authenticity of the

twenty-one wartime documents and that they were all

housed in a location where one would expected to find

them—the L’viv State Regional Archive. He further testified

that all of the documents dated from 1942 to 1944.

1

During a sworn interview in 2003, Firishchak was shown a page

with eight Ukrainian-language Cyrillic signatures taken from

various exhibits, and he identified seven of them as his own. At

the time he identified the signatures, he did not know that they

came from documents related to the UAP. Later, he claimed he

did not understand the question he was being asked when he

identified the signatures as his own.

6 No. 05-3852

Robert Groner, a former Department of Justice trial

attorney, testified regarding Firishchak’s sworn interview,

in which Firishchak identified seven signature samples

(extracted from relevant UAP documents) as his own.

Groner stated that Firishchak declined the services of an

interpreter at the interview and was composed, lucid, and

responsive until he was shown the documents regarding his

UAP service, at which point he became nervous and

agitated.

The government also offered testimony from William

Weiss, a survivor of the L’viv Jewish ghetto. He did not

specifically testify about Firishchak or identify him as a

member of the UAP. Instead, Weiss testified about ghetto

conditions as well as the abuse that occurred at the hands

of both the Nazis and the UAP. Finally, the government

entered the de bene esse depositions—depositions taken for

use in the event of a witness’s absence at trial—of Mario

DeCapua and Everett Coe, who testified generally about

visa applications and procedures under the DPA, including

security investigations into applicants’ backgrounds. No one

with personal knowledge testified that Firishchak was a

member of the UAP or performed the duties of a Ukrainian

Auxiliary policeman in the streets of L’viv during World

War II.

Firishchak testified in his own defense at trial, denying

any service in the UAP. He admitted that the individual

identified in the incriminating documents had the same

name, the same birth date, the same father’s name, and

came from the same village. Firishchak admitted that he

resided in the same town during the war as the individual

identified in the wartime documents. As to his wartime

activities, Firishchak testified that he was homeless

throughout the war and drifted from place to place, hiding

out in coffee shops along the way. He testified that after

leaving his factory job in Germany, he went with little

money and without proper travel documents from town to

town, en route to a town whose name he did not know, to go

No. 05-3852 7

to school. He picked up occasional odd jobs along the way.

The government highlighted various inconsistencies in

Firishchak’s story. For example, he stated that he never

slept in the same place and was always on the move, but

later acknowledged that he had an address in L’viv for an

extended period of time.

The district court found the government’s witnesses

credible, but questioned both the substance of Firishchak’s

testimony and his mannerisms on the stand. Taking the

stipulations, the admitted documents, the admitted deposi-

tions, and the live testimony altogether, the district court

ruled against Firishchak on all four counts of the complaint.

II. DISCUSSION

Firishchak raises a number of issues on appeal. First, he

contends that the wartime documents evidencing his UAP

service were inadmissible. Second, he argues that the

district court abused its discretion by permitting Dr. Pohl

to testify on a subject that was not disclosed in his pre-trial

expert report. Third, Firishchak claims that the district

court should have granted him a continuance because the

government took two de bene esse depositions after the close

of discovery. Fourth, Firishchak challenges the sufficiency

of the evidence against him. Finally, he argues that he was

denied a fair trial.

A. Admissibility of the Wartime Documents

As a threshold matter, Firishchak disputes the admissi-

bility of the wartime documents, arguing that they were

improperly authenticated as ancient documents or business

records and that they constitute inadmissible hearsay. This

Court reviews a district court’s determination regarding the

admissibility of documents for an abuse of discretion.

Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 722 (7th

Cir. 2003).

8 No. 05-3852

Documents are authenticated by evidence “sufficient to

support a finding that the matter in question is what its

proponent claims.” Fed. R. Evid. 901(a); Chemetall, 320

F.3d at 722. Federal Rule of Evidence 901(b)(8) identifies

the means by which “ancient documents” are authenticated.

An ancient document should be (A) in such condition as to

create no suspicion concerning its authenticity; (B) in a

place where it, if authentic, would likely be; and (C) in

existence twenty years or more at the time it is offered. Fed.

R. Evid. 901(b)(8); United States v. Kairys, 782 F.2d 1374,

1379 (7th Cir. 1986). Whether the documents correctly

identify the defendant goes to their weight and is a matter

for the trier of fact; it is not relevant to the threshold

determination of admissibility. See Kairys, 782 F.2d at 1379

(affirming the admission of wartime document).

In this case, Dr. Pohl, an expert who has done extensive

archival research on the District Galicia, testified that there

was no suspicion regarding the documents’ authenticity and

that they were housed in a state regional archive where one

would expect to find such documents. He also testified

regarding the age of the documents, stating that each

document dated from between 1942 and 1944.

Firishchak correctly notes that mere recitation of the

contents of documents does not authenticate them or

provide for their admissibility, United States v. Wittje, 333

F. Supp. 2d 737, 743 (N.D. Ill. 2004), but Dr. Pohl’s testi-

mony was more than a mere recitation. Rather, he spoke of

how historians relied on the documents and where they

could be found in addition to their contents. Furthermore,

Firishchak’s identification of his own signature on seven of

the documents suggests that they are authentic.2

2

The government correctly asserts that many of the documents

in question qualified as either self-authenticating foreign public

documents or admissible certified copies. See Fed. R. Evid. 902(3);

(continued...)

No. 05-3852 9

Firishchak particularly questions the authentication of

those documents that lacked specific dates. While it is true

that several of the documents bear no specific date, their

age can be proven by other means. For example, the

appearance of the proffered evidence or even the contents

of the material itself together with the surrounding circum-

stances can be used to determine a document’s age. See Fed.

R. Evid. 901(b)(4). In addition, all but one of the documents

contain information—either month and year or season and

year—which permits their age to be determined. Finally,

Firishchak did not cite any particular characteristics of the

documents that raise doubts regarding their authenticity.

Considering Dr. Pohl’s testimony in addition to the con-

tents, location, and appearance of the documents them-

selves, the district court could reasonably determine the

threshold question of the documents’ authenticity. There-

fore, the district court’s decision to admit the wartime

documents was not an abuse of discretion.

Firishchak also argues that the wartime documents were

not admissible business records. This argument misses the

point because the ancient documents rule and the business

records exception are independent grounds for determining

admissibility. Compare Fed. R. Evid. 803(6) with Fed. R.

Evid. 901(b)(8); see also, e.g., George v. Celotex Corp., 914

F.2d 26, 30 (2d Cir. 1990). Because the documents in

question were admissible under the ancient documents rule,

whether they were kept in the ordinary course of UAP

business is irrelevant. Finally, Firishchak’s assertion that

the documents constitute inadmissible hearsay is without

merit. Under Federal Rule of Evidence 803(16), statements

contained in authenticated ancient documents are not

hearsay.

2

(...continued)

Fed. R. Evid. 902(4). Firishchak did not object to these grounds for

admissibility.

10 No. 05-3852

B. Pre-trial Discovery Issues

Firishchak has two complaints regarding the pre-trial

discovery phase. First, he asserts that the government

failed to disclose certain expert testimony in its required

pre-trial report. Second, he believes that the taking of two

de bene esse depositions after the close of discovery entitled

him to a continuance. We review a district court’s discovery

rulings for an abuse of discretion. Sims v. GC Servs. L.P.,

445 F.3d 959, 963 (7th Cir. 2006).

Firishchak contends that the government did not disclose

in its pre-trial expert report that Dr. Pohl would testify

regarding the authenticity of the wartime documents. As a

result, Firishchak argues, any such testimony should have

been excluded as a sanction for violating Federal Rule of

Civil Procedure 26(a)(2)(B), which requires expert reports

to “contain a complete statement of all opinions to be

expressed and the basis and the reasons therefore.”

Firishchak asserts that Dr. Pohl’s report did not disclose

any opinions regarding the authenticity of the wartime

documents. The government, on the other hand, argues that

Firishchak waived this claim because he did not object to

“Dr. Pohl’s qualification as an expert on the UAP and

documents relating thereto, thereby acknowledging Dr.

Pohl’s ability to authenticate UAP documents.” Gov. Br. at

44 (emphasis in original). Even if the claim was not waived,

Firishchak cannot prevail. Dr. Pohl’s 148-page expert report

discussed each historical exhibit that was subsequently

introduced at trial, including its archival source and locator

information. The report also contained passages about

where the historical documents are kept and how historians

rely on them. Therefore, the district court did not abuse its

discretion by permitting Dr. Pohl to testify regarding the

authenticity of the documents.

Firishchak also takes issue with the fact that the govern-

ment took two de bene esse depositions in the week leading

No. 05-3852 11

up to trial. Pursuant to a court order, all discovery in the

case closed on March 11, 2005 and trial was scheduled to

begin on August 1. According to Firishchak, on May 11, the

government sent notice to the defendant of its intention to

take the de bene esse depositions of Mario DeCapua and

Everett Coe in July—less than 30 days prior to the trial

date. Firishchak then filed a motion for a continuance, but

his motion was denied. The government took Mario

DeCapua’s deposition on July 20 and Everett Coe’s deposi-

tion on July 26.

The record reflects that more than ten weeks before trial,

the government notified Firishchak that it would be taking

videotaped de bene esse depositions of two elderly witnesses

pursuant to Federal Rule of Civil Procedure 32(a)(3)(C),

which permits the use of depositions “for any purpose” if the

court finds a witness is unable to attend or testify because

of age. Because the rule permits broad use of depositions in

these circumstances, the court’s decision not to grant

Firishchak a continuance due to a permitted use was not an

abuse of discretion. See United States v. Egwaoje, 335 F.3d

579, 587-88 (7th Cir. 2003) (noting that district courts have

broad discretion to grant or deny continuances).

C. Sufficiency of the Evidence

Firishchak next argues that the evidence was insufficient

to support the district court’s findings. Because the right to

acquire American citizenship is a precious one, the govern-

ment carries a heavy burden of proof when attempting to

divest a naturalized citizen of his citizenship. Fedorenko v.

United States, 449 U.S. 490, 505 (1981); Naujalis v. INS,

240 F.3d 642, 646 (7th Cir. 2001). The evidence justifying

revocation of citizenship must be clear, unequivocal and

convincing, not leaving the issue in doubt. Fedorenko, 449

U.S. at 505. Even though the government’s burden at trial

is heavy, this Court reviews the trial court’s findings of fact

12 No. 05-3852

under a deferential clearly erroneous standard. Spurgin-

Dienst v. United States, 359 F.3d 451, 453 (7th Cir. 2004).

We review the district court’s legal conclusions de novo. Id.

In this case, the district court derived many of its findings

of fact and conclusions of law from pre-trial stipulations.

Ordinarily, stipulations of fact will obviate the need for

appellate review of factual findings. TMF Tool Co. v.

Siebengartner, 899 F.2d 584, 588 (7th Cir. 1990). This Court

will, however, review findings derived from stipulated facts

for clear error. Id. In other words, where the district court

adopts a stipulated fact wholesale, it is binding on the

parties and thus waived, but where the court makes

inferences or derives factual findings from other stipulated

facts, the clear error standard of review applies.

1. Membership in UAP

As mentioned above, whether Firishchak was a member

of the Ukrainian Auxiliary Police is the linchpin of this case

because he stipulated to nearly all other relevant facts.

Firishchak contends that the government failed to prove his

membership in the UAP by clear and convincing evidence.

Firishchak’s argument relies heavily on two facts: 1) that he

denied UAP membership at all relevant times and 2) that

the government produced no evidence from anyone with

personal knowledge that Firishchak performed the duties

of the UAP. The United States argues that testimony from

people with personal knowledge is unnecessary, and cites

cases in which citizens were denaturalized based on

documentary evidence. See, e.g., United States v. Tittjung,

753 F. Supp. 251 (E.D. Wis. 1990); United States v.

Baumann, 764 F. Supp. 1335 (E.D. Wis. 1991).

Without deciding whether documentary evidence alone is

enough to revoke citizenship, we note that the district court

based its decision on more than the twenty-one wartime

documents. In addition to those documents, the district

court based its findings on Firishchak’s own testimony and

No. 05-3852 13

admissions. Firishchak identified seven signatures from

UAP documents as his own, and the district court’s credibil-

ity determination that Firishchak was lying on the stand

permitted it to conclude that the documents linking

Firishchak to UAP service were accurate. Consequently, the

evidence demonstrating Firishchak’s UAP membership was

sufficient to support the trial court’s factual finding.

2. Count One—Assistance in Persecution

Firishchak next questions the district court’s conclusion

that he assisted in the persecution of civil populations,

which would have rendered him ineligible for a visa under

§ 2(b) of the DPA. Because of numerous pre-trial stipula-

tions, which he did not mention in his brief, Firishchak is

bound by the facts leading to the trial court’s conclusion.

See, e.g., United States v. Flores-Sandoval, 94 F.3d 346, 349

(7th Cir. 1996) (stipulating to conduct waives any claim that

a defendant has not engaged in that conduct); Soo Line R.R.

v. St. Louis Sw. Ry., 125 F.3d 481, 483 (7th Cir. 1997)

(stipulations are binding upon the party making them).

Firishchak stipulated, for one, that the UAP enforced

“persecutory measures against Jews.” Pre-trial Order at 5.

He also stipulated that the UAP assisted in checking the

identification of Jews and arresting them for violating

various rules. Id. In fact, Firishchak specifically stipulated

that if he performed the routine duties of a Ukrainian

Auxiliary policeman, he assisted in the persecution of civil

populations.

Although we are not bound by stipulations to legal

conclusions, Saviano v. Comm’r of Internal Revenue, 765

F.2d 643, 645 (7th Cir. 1985), in determining whether

conduct amounted to assistance in persecution, the district

court’s application of the law to the facts of the case is

reviewed deferentially. See United States v. Mankiewicz,

122 F.3d 399, 403 n.1 (7th Cir. 1997). The district court

14 No. 05-3852

relied on the pre-trial stipulations and Dr. Pohl’s testimony

regarding the role of the UAP in the District Galicia to

conclude that Firishchak assisted in persecution. This

conclusion was within the court’s discretion since it had

already found that Firishchak was a member of the UAP

and that finding was not erroneous.

Firishchak also claims that the DPA requires evidence

that he committed a particular atrocity or persecutory act

in order to render him ineligible for a visa. However,

personal involvement in atrocities need not be proven. See,

e.g., Fedorenko, 449 U.S. at 510 n.32; United States v.

Ciurinskas, 148 F.3d 729, 734 (7th Cir. 1998). Firishchak’s

attempt to distinguish these cases by pointing out immate-

rial factual differences is unconvincing. Moreover, his own

pre-trial stipulations waive any argument that specific acts

need to be proven. NLRB v. P*I*E Nationwide, Inc., 894

F.2d 887, 892 (7th Cir. 1990) (noting that a party’s stipula-

tion can waive legal arguments).

3. Count Two—Service in a Movement Hostile to

the U.S.

Firishchak next contends that the government failed to

prove that he served in a movement hostile to the United

States, which would render him ineligible for a visa under

§ 13 of the DPA. Again, Firishchak stipulated to this legal

conclusion, so he waived the issue. P*I*E Nationwide, 894

F.2d at 892. Even if the argument had not been waived,

courts considering the issue have held that service in a

Nazi-sponsored police unit constitutes membership in a

hostile movement under the DPA. United States v.

Kowalchuk, 773 F.2d 488 (3d Cir. 1985) (holding that UAP

service amounts to membership in a hostile movement);

United States v. Koziy, 540 F. Supp. 25, 34 (S.D. Fla. 1982)

(same); United States v. Osidach, 513 F. Supp. 51 (E.D. Pa.

1981) (same).

No. 05-3852 15

Firishchak relies on United States v. Kwoczak, 210 F.

Supp. 2d 638, 652-53 (E.D. Pa. 2002), to argue that his UAP

membership did not disqualify him under the DPA because

the UAP was not named in a list of organizations consid-

ered hostile under the DPA (the “Inimical List”). Although

Kwoczak initially held that ineligibility under § 13 of the

DPA was limited to members of groups on the Inimical List,

the court issued an amended opinion holding that inclusion

on the list was not a prerequisite to disqualification. United

States v. Kwoczak , No. Civ.A. 97-5632 , 2002 WL 32137688,

at *2-3 (E.D. Pa. 2002). Moreover, Mario DeCapua, former

head of the Displaced Persons Commission Security Investi-

gations Division, testified that the Inimical List was not

exhaustive, and membership in an organization that did not

appear on the list could be disqualifying under the DPA,

depending on the nature of the group’s activities. Given the

trial court’s findings regarding the activities of the UAP, its

conclusion that Firishchak participated in an organization

hostile to the United States was proper.

4. Count Three—Misrepresentation of Material

Facts

Firishchak next argues that the government failed to

prove that he willfully misrepresented material facts in

order to gain admission into the United States. Such

misrepresentations would render him ineligible for admis-

sion under § 10 of the DPA. Again, this argument was

waived. P*I*E Nationwide, 894 F.2d at 892. The parties

stipulated that Firishchak’s wartime activities, including

his alleged membership in the UAP, were material facts,

and the trial court agreed. A misrepresentation is material

under the DPA if it has a natural tendency to affect the

decision of the Displaced Persons Commission regarding

visa eligibility. See Kungys v. United States, 485 U.S. 759,

770 (1988).

16 No. 05-3852

Even if this argument were not waived, Firishchak could

not prevail. In his visa application, Firishchak told immi-

gration officials that he was a laborer for a Ukrainian

cooperative in L’viv from December 1941 to April 1944.

However, the trial court found that he was serving in the

UAP during this time. This inconsistency demonstrates that

Firishchak misrepresented his wartime activities, and the

truth would have influenced his visa eligibility. Though

Firishchak suggests that UAP service is not a material fact,

two trial witnesses testified to the contrary. First, Everett

Coe, the vice consul who processed Firishchak’s visa

application, stated that he would not have issued

Firishchak a visa had Firishchak truthfully disclosed his

wartime activities. Second, Mario DeCapua testified that

the Commission routinely rejected the applications of

persons known to have served in Nazi-directed police forces.

Given these facts, the district court properly concluded that

Firishchak made material misrepresentations during the

visa application process.

5. Count Four—Conduct Contrary to Human

Decency

Finally, Firishchak contends that the government failed

to prove that he advocated or acquiesced in activities or

conduct contrary to civilization and human decency on

behalf of the Axis countries during WWII. Such conduct

would have rendered him ineligible for a visa under state

department regulations at the time of his application. 22

C.F.R. § 53.33(j) (1949). Again, this argument is subject to

the same waiver analysis, given that Firishchak stipulated

that UAP service constituted conduct contrary to civiliza-

tion and human decency. P*I*E Nationwide, 894 F.2d at

892. Further, given the facts established at trial, the

district court properly concluded that Firishchak’s UAP

service constituted conduct contrary to human decency.

No. 05-3852 17

D. Fair Trial Claim

Firishchak also claims that he was denied a fair trial.

Firishchak describes the judge’s comments on his demeanor

and mannerisms as completely unprofessional. The district

court opinion stated that “Firishchak’s demeanor and

mannerisms clearly showed that he was lying under oath on

the stand,” and the judge described Firishchak’s “shameless

attempt to excuse himself from an inexcusable act” as

“cowardly.” Firishchak, 426 F. Supp. 2d at 784. Although

the district court’s language may appear stern, the govern-

ment correctly states that “it is the job of any factfinder to

assess a witnesses’ credibility.” Gov. Br. at 49 (emphasis in

original); see Anderson v. City of Bessemer City, N.C., 470

U.S. 564, 575 (1985).

Firishchak continues with what the government labels “a

hodgepodge of unsupported accusations and grievances,”

Gov. Br. at 49, but fails to cite any authority for his com-

plaints. He complains that he did not receive a jury trial, he

could not substitute a new judge, and his case was assigned

to “a career government attorney with experience only in

representing the government.” Firishchak Br. at 50-51.

Additionally, he argues that his trial was unfair because the

trial judge reminded the government to admit its exhibits

into evidence. Id.

Firishchak’s independent “fair trial” claims were not

preserved because he did not raise these issues at trial.

United States v. Walker, 9 F.3d 1245, 1249 (7th Cir. 1993).

As a result, this Court can only reverse if the district court

committed plain error. Id. A plain error is one that is so

obvious, crucial, and egregious that we should correct it

despite the absence of an objection below. See Backwater,

Inc. v. Penn-American Ins. Co., 448 F.3d 962, 965 (7th Cir.

2006). Although it is unclear whether plain error review is

available in appeals from denaturalization trials, we decline

to decide this issue, because the result is the same if

18 No. 05-3852

forfeiture precludes review altogether or if the decision

below is reviewed for plain error. Assuming, arguendo, that

plain error review applies, Firishchak has not established

that any of his unsubstantiated grievances amount to a

showing of plain error. Because denaturalization proceed-

ings are considered equitable rather than criminal, defen-

dants in those proceedings are entitled to neither a jury

trial nor a substitution of judge. Moreover, like all cases in

the district court, Firishchak’s case was randomly assigned

to a judge who is duty-bound to act impartially, and

Firishchak has offered no evidence that the district judge

neglected that duty. As a result, Firishchak’s claim that he

was denied a fair trial cannot succeed.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-20-06