United States v. Stelmokas

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

11-12-1996

United States v. Stelmokas

Precedential or Non-Precedential:

Docket 95-1894

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-1894

UNITED STATES OF AMERICA

v.

JONAS STELMOKAS,

a/k/a JONAS STELMOKEVICIUS,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 92-03440)

Argued June 10, 1996

BEFORE: STAPLETON, GREENBERG, and ALDISERT, Circuit Judges

(Filed: November 12, l996)

Eli M. Rosenbaum

Susan L. Siegal

Robert G. Seasonwein (argued)

Ronnie L. Edelman

Office of Special Investigations

United States Department of

Justice

Criminal Division

1001 G Street, N.W.

Washington, DC 20530

Attorneys for Appellee

John R. Carroll (argued)

Carroll & Carroll

400 Market Street

Suite 850

Philadelphia, PA 19106

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. PROCEDURAL AND FACTUAL HISTORY

Defendant Jonas Stelmokas appeals from a final judgment

entered August 2, 1995, in favor of the government on six counts

of its seven-count complaint seeking judgment on seven discrete

bases revoking Stelmokas's citizenship and ordering him to

surrender his certificate of naturalization. The court entered

judgment in favor of Stelmokas on a seventh count of the

complaint.

The government initiated this action on June 15, 1992,

by filing the complaint against Stelmokas in the district court

pursuant to section 340(a) of the Immigration and Nationality Act

of 1952, as amended ("INA"). 8 U.S.C. § 1451(a). The government

sought judgment revoking and setting aside the judgment of the

United States District Court for the Eastern District of

Pennsylvania which admitted Stelmokas to citizenship in 1955. It

further sought judgment canceling Stelmokas's certificate of

naturalization.

In its complaint, the government alleged that Stelmokas

was born in Moscow, Russia, and resided in Lithuania commencing

in 1930. From 1936 until 1939 Stelmokas attended the Lithuanian

army officers' school in Kaunas, Lithuania, from which he

graduated in 1939. From August 1939 until July 1940 Stelmokas

was an officer in the Lithuanian army.

The complaint alleged that in June 1941 the armed

forces of Nazi Germany occupied Lithuania, which occupation

continued until August 1944. During the occupation, the Germans

organized armed Lithuanian units known as Schutzmannschaft to

assist the Germans in the occupation and in the persecution of

Jews and other unarmed persons on the basis of their race,

religion, national origin, or political opinion. The Germans

also organized Schutzmannschaft in other countries who arrested,

detained, assaulted, and murdered victims in Poland, Ukraine,

Byelorussia, and other areas. The Lithuanian Schutzmannschaft in

Kaunas assisted the Germans in confining and murdering Jews. The

government contended that Stelmokas was a voluntary member and

officer of the Schutzmannschaft and advocated, assisted,

participated, and acquiesced in the murder and persecution of

Jews and other unarmed civilians in Lithuania. Around August

1944, at the time the German occupation of Lithuania ended,

Stelmokas entered the German Air Force (Luftwaffe) in the 91st

Light Flak Replacement Unit.

The complaint further alleged that in July 1949

Stelmokas sought a determination from the United States Displaced

Persons Commission ("DPC") that he was a displaced person as

defined in the Displaced Persons Act of 1948 ("DPA"), Pub. L. No.

80-774, ch. 647, 62 Stat. 1009 (1948), and therefore was eligible

to immigrate to the United States. In connection with his

application, a DPC analyst interviewed Stelmokas. He did not

inform the analyst that he had served in the Schutzmannschaft or

the Luftwaffe. Rather, Stelmokas falsely claimed that he had

been a teacher in Seda, Lithuania, from July 1940 until August

1943. He claimed that he then was unemployed in Kaunas until

July 1944, and was a laborer in Dresden, Germany, from 1944 until

March 1945. The complaint alleged that in 1949 the DPC regarded

the Schutzmannschaft to be "inimical" to the United States,

meaning it was a hostile movement.

The complaint further stated that, in reliance on

Stelmokas's misrepresentations, the DPC analyst concluded that

Stelmokas was eligible for displaced person status, and that the

DPC so certified him on July 8, 1949. On or about August 10,

1949, Stelmokas applied for a visa to enter the United States.

In connection with that application, Stelmokas repeated to an

American vice-consul in Hamburg, Germany, the benign wartime

history that he had related to the DPC analyst and omitted his

actual wartime employment history. Based on Stelmokas's false

representations, the vice-consul approved Stelmokas's application

for a visa. Stelmokas then entered the United States as a

displaced person and permanent resident on August 31, 1949.

The complaint asserted that on or about November 12,

1954, Stelmokas filed an application for naturalization with the

Immigration and Naturalization Service. Again, Stelmokas

misrepresented under oath his personal history by claiming that

the only organization to which he belonged before 1945 was the

Lithuanian Boy Scouts. Thus, he concealed his membership in the

Schutzmannschaft and the Luftwaffe. On April 11, 1955, the

district court granted his petition for naturalization.

The government requested that the court revoke

Stelmokas's naturalization for the following reasons: (1) he

illegally procured his naturalization because he was ineligible

for a visa to enter the country as he had assisted in persecuting

civilian populations (Count I); (2) he illegally procured his

naturalization because he was ineligible to enter the country as

he voluntarily had assisted enemy forces during World War II in

their operations against the United Nations (Count II); (3) he

illegally procured his naturalization because as a member of the

Schutzmannschaft and the 91st Light Flak Replacement Unit he was

ineligible to enter the country because he had been a member of

and participated in movements hostile to the United States (Count

III); (4) he illegally procured his naturalization because he had

misrepresented his wartime service to the DPC and to the vice-

consul and thus was ineligible to enter the country (Count IV);

(5) he illegally procured his naturalization because he was

ineligible for a visa as he had advocated or acquiesced in

activities or conduct contrary to civilization and human decency

on behalf of Axis countries during World War II and thus was

ineligible to enter the country (Count V); (6) he illegally

procured his naturalization as his participation in the Nazi

program of persecution demonstrated that he was not of good moral

character and thus he was ineligible to enter the country (Count

VI); and he illegally procured his naturalization by concealing

and misrepresenting material facts, i.e., his service in the

Schutzmannschaft and the 91st Light Flak Battalion when he filed

his petition for naturalization (Count VII).

Stelmokas filed an answer to the complaint in which he

admitted the historical facts regarding the German occupation of

Lithuania and admitted that he had applied for entry into the

United States as a displaced person. However, he refused to

answer the allegations in the complaint regarding his wartime

activities as he claimed "that his answers could be used against

him in criminal proceedings in the United States and other

countries." The government then moved to compel Stelmokas to

answer the complaint on the ground that Stelmokas could not rely

on the Fifth Amendment to refuse to answer.

On April 16, 1993, the district court granted the

government's motion as it concluded that either the sections of

federal law under which Stelmokas feared prosecution were

inapplicable to him or the statute of limitations barred

prosecutions under them. Thus, the court concluded that

Stelmokas did not face a real and substantial threat of

prosecution in the United States. The court also found that

Stelmokas did not face a real and substantial threat of

prosecution in "other countries," and thus it had no need to

determine whether the Fifth Amendment applied to foreign

prosecutions. The court, however, protected Stelmokas by

ordering that his answer be filed under seal. Stelmokas never

complied with the order and did not file an amended answer.

Furthermore, at a deposition on August 4, 1993, Stelmokas pleaded

the Fifth Amendment and refused to answer questions germane to

this case.

The court conducted a bench trial from February 27,

1995, until March 3, 1995. At the outset of the trial

Stelmokas's attorney pointed out that Stelmokas had pleaded the

Fifth Amendment. He then indicated that he wanted to keep his

options open and that he did not know what he would advise

Stelmokas to do. He said that Stelmokas "may waive the

privilege." Stelmokas, however, did not waive the privilege and

did not testify at the trial.

The district court decided the case in a comprehensive

memorandum opinion dated August 2, 1995. In its opinion the

court set forth the background of Stelmokas's application to come

to the United States and his obtaining citizenship. The court

noted that citizenship is a precious right which once conferred

may not be revoked lightly. Consequently, the government in a

denaturalization proceeding must prove its case by clear,

unequivocal, and convincing evidence so as not to leave the

issue, i.e., the basis for denaturalization, in doubt. Kungys v.

United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547 (1988);

Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 747

(1981). The court noted, however, that aliens have no right to

naturalization unless all statutory requirements are complied

with. Consequently, every certificate of citizenship is granted

on the condition that the government may revoke it if it was not

issued in accordance with the applicable requirements.

Fedorenko, 449 U.S. at 506, 101 S.Ct. at 747.

The court pointed out that section 340(a) of the INA

provides the statutory bases for revocation of citizenship: that

the citizenship had been "illegally procured" or "procured by

concealment of a material fact or by willful misrepresentation."

8 U.S.C. § 1451(a). The court then indicated that citizenship is

"illegally procured" when obtained without compliance with the

statutory requirements for naturalization. Fedorenko, 449 U.S.

at 506, 101 S.Ct. at 747. When Stelmokas was naturalized in

1955, the INA required that he reside continuously in the country

for at least five years after being lawfully admitted for

permanent residence. 8 U.S.C. § 1427. See United States v.

Osidach, 513 F. Supp. 51, 63 & n.4 (E.D. Pa. 1981).

The court then observed that the DPA authorized the

issuance of immigration visas to eligible European "displaced

persons" without regard to immigration quotas, but that persons

who "assisted the enemy in persecuting the civilian populations"

of countries that were members of the United Nations or

voluntarily assisted the enemy forces since the outbreak of

World War II in their operations against the United Nations were

not displaced persons. DPA § 2(b), 62 Stat. 1009, 3051-52

(incorporating by reference International Refugee Organization

Constitution's definition of displaced person). See Fedorenko,

449 U.S. at 495 & n.3, 101 S.Ct. at 741 & n.3. Additionally, DPA

§ 13 prohibited the issuance of visas to "any person who is or

has been a member of, or participated in, any movement which is

or has been hostile to the United States or the form of

government of the United States." 62 Stat. 1014. Section 10 of

the DPA provided that any "person who shall willfully make a

misrepresentation for the purpose of gaining admission into the

United States as an eligible displaced person shall thereafter

not be admissible into the United States." 62 Stat. 1013.

The court further noted that at the time of Stelmokas's

immigration in 1949, a State Department regulation forbid the

issuance of a visa to any alien who had "advocated or acquiesced

in activities or conduct contrary to civilization and human

decency on behalf of the Axis countries" during World War II.

The court also indicated that when Stelmokas was naturalized in

1955, the law provided that citizenship could be conferred only

on persons "of good moral character, attached to the principles

of the Constitution of the United States, and well disposed to

the good order and happiness of the United States." 8 U.S.C. §

1427(a)(3). Finally, the court pointed out that the INA provided

that citizenship procured by willful concealment or

misrepresentation of a material fact must be revoked. 8 U.S.C. §

1451.

The district court made an evidentiary ruling in its

opinion that Stelmokas challenges on this appeal. It noted that

Stelmokas had pleaded the Fifth Amendment in his answer and had

refused on Fifth Amendment grounds to answer questions at his

deposition. Furthermore, Stelmokas had not testified at trial.

The court held that Stelmokas's attorney's statement at the

outset of the trial that Stelmokas "may waive the privilege" was

not a waiver of the privilege against self-incrimination, but was

the opposite, since it was not a statement that the privilege was

waived. The court then held that since the case was civil rather

than criminal it, as the finder of fact, could infer from

Stelmokas's invocation of the privilege against self-

incrimination that his testimony would have been unfavorable.

See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558

(1976). The court indicated, however, that while it could draw

adverse inferences from Stelmokas's claim of the privilege

against self-incrimination, it would not base its findings of

fact on adverse inferences. Rather, the court would use

Stelmokas's invocation of the Fifth Amendment for "independent

and additional support" for its findings of fact.

In its findings of fact, the court preliminarily noted

that the government had called four witnesses, two experts on the

Holocaust, Dr. Raul Hilberg and Michael MacQueen, and two

survivors of the Holocaust in Lithuania, David Levine and Abe

Malnick. In addition, the government introduced numerous

documents into evidence. Stelmokas did not call any witnesses

but did introduce three documents into evidence. The court

pointed out that Hilberg was a particularly credible witness with

a remarkable knowledge of the documents placed into evidence.

The court noted that many of the documents in evidence

had been stored in the archives of the former Soviet Union.

While Stelmokas argued that the documents were not trustworthy,

the court rejected this contention because Hilberg's and

MacQueen's testimony established that they were authentic.

Indeed, Hilberg testified that he was not aware of a single World

War II Soviet Union archival document that was a forgery. The

court concluded that the government "amply established the

authenticity and trustworthiness of the documents in evidence."

The court then related Stelmokas's personal history

prior to the German invasion, including his graduation from

military academy and his service as an officer in the Lithuanian

Army and the Soviet Red Army when the Soviet Union annexed

Lithuania in 1940. The court explained that the Germans took

over Lithuania within a few days of their attack on June 22,

1941, and that the German army was followed by a police unit

known as Einsatzgruppen, which implemented the German policy of

murdering the Jews. The court related that a segment of the

indigenous Lithuanian population cooperated with the

Einsatzgruppen in the murder of the Jews.

Starting in late June 1941, the Germans began

organizing Lithuanians who had fought against the Soviet Union

into volunteer police battalions. The Germans controlled these

units, which became known as the Schutzmannschaft. Their

function was to guard installations and prisoners, and they

guarded the Kaunas ghetto. The Schutzmannschaft assisted in the

murder of Jews and other persons.

The court found that on July 28, 1941, Stelmokas

voluntarily enlisted in the Schutzmannschaft and was appointed

platoon commander in the 7th Company. The court traced

Stelmokas's various assignments in the Schutzmannschaft, a

process made possible by the meticulous record keeping of the

Schutzmannschaft units, which court opinions demonstrate was

consistent with the Germans' practice during World War II of

recording their murderous conduct in specific detail. See, e.g.,

United States v. Koziy, 540 F. Supp. 25, 27 (S.D. Fla. 1982),

aff'd, 728 F.2d 1314 (11th Cir.), cert. denied, 469 U.S. 835, 105

S.Ct. 130 (1984). By August 30, 1944, Stelmokas had been

transferred to Germany where he served in the 91st Light Flak

Replacement Unit of the Luftwaffe. The records in evidence show

that Stelmokas was in a military hospital in Germany on February

12, 1945.

The court found that on September 15, 1941, Stelmokas

was a guard commander at Vilijampole, which was the ghetto in

Kaunas. The evidence showed clearly, unequivocally, and

convincingly, that Stelmokas served as the commander of the

ghetto guard for at least a 24-hour period commencing on

September 16, 1941, at 1:00 P.M., and, accordingly, that he

participated in confining the Jews to an area in which they were

regularly subjected to extreme deprivation, brutality, and

arbitrary shootings. The court then found, through a painstaking

analysis of the Schutzmannschaft records, that Stelmokas's

battalion took part in the Grosse Aktion of October 28 and

October 29, 1941, which involved the murder of precisely 9,200

Jews, and that Stelmokas was on duty at that time. Levine and

Malnik, who were children in the ghetto at the time, supported

the documentary evidence with eye-witness testimony. While

Levine and Malnick did not identify Stelmokas, both testified

that armed Lithuanians took part in the murders. The court also

made findings that Stelmokas participated in anti-partisan

actions and served in the Luftwaffe.

The court found that when Stelmokas applied for

displaced person status he did not inform the DPC analyst of his

Schutzmannschaft and Luftwaffe service, and that he

misrepresented his employment and places of residence for the

period of July 1940 until March 1945. The court also noted that

the Lithuanian Schutzmannschaft appeared on a "List of

Organizations Considered Inimical to the United States" issued by

the DPC Headquarters in Frankfurt, Germany. The court found that

Stelmokas made false statements under oath when he sought his

visa application, because he misrepresented his wartime

residences and did not reveal his Schutzmannschaft or Luftwaffeservice.

The court found that he obtained his visa because of

the misrepresentation. The court did not find, however, that

Stelmokas made false statements when he was naturalized.

The court then discussed the adverse inferences to be

drawn from Stelmokas's claim of the privilege against self-

incrimination. It emphasized, however, that the findings of fact

we have described did not depend on the drawing of inferences

from Stelmokas's claim of the privilege. The court said that it

inferred that Stelmokas's testimony would have revealed that he

voluntarily joined the Schutzmannschaft and served in it from

July 1941 until mid-1944, when he was transferred to Germany to

serve in the 91st Light Flak Battalion; he was commander of the

ghetto guard at Kaunsas in September 1941; he participated in the

murdering of Jews in the Grosse Aktion and in fighting against

anti-German partisans; and he made false representations to both

the DPC analyst and the vice-consul regarding his wartime

activities, particularly his service in the Schutzmannschaft and

the Luftwaffe, to facilitate his immigration to the United

States.

The court then set forth its conclusions of law. It

reiterated that the government had to prove its case by clear,

unequivocal, and convincing evidence, but that under 8 U.S.C. §

1451(a) Stelmokas's certificate of naturalization must be

canceled and his citizenship revoked if his citizenship was

"illegally procured" or "procured by concealment of a material

fact or by willful misrepresentation." It also pointed out that

Stelmokas could not have procured his citizenship lawfully in

1955 if his admission to permanent residence in 1949 had not been

lawful. 8 U.S.C. § 1427; Fedorenko, 449 U.S. at 514-16, 101

S.Ct. at 750-52.

The court held that under the DPA § 2(b), 62 Stat.

1009, Stelmokas had been ineligible to immigrate to the United

States because his actions in the Kaunas ghetto assisted the

enemy in persecuting civilian populations. Consequently,

Stelmokas's entry into the United States as a permanent resident

was unlawful and he had procured his citizenship unlawfully.

SeeFedorenko, 449 U.S. at 512, 101 S.Ct. at 750 ("an individual's

service as a concentration camp armed guard -- whether voluntary

or involuntary -- made him ineligible for a visa"). The court

then held that Stelmokas also had been ineligible for a visa

because he voluntarily had assisted enemy forces during World War

II. See United States v. Kowalchuk, 773 F.2d 488, 496-97 (3d

Cir. 1985) (in banc), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188

(1986). Thus, for this additional reason, his entry as a

permanent resident was unlawful and he had procured his

citizenship unlawfully. The court next held that the

Schutzmannschaft was a movement hostile to the United States, so

that Stelmokas was barred from entering the United States because

of his membership in it under DPA § 13, 62 Stat. 1014.

Consequently, he had procured his citizenship illegally.

The court held that DPA § 10, 62 Stat. 1013, barred

Stelmokas from entering the country for permanent residence

because he willfully had misrepresented material facts to gain

admission. In particular, he concealed his Schutzmannschaft and

Luftwaffe service from the DPC analyst and the vice-consul.

These concealments were material because they misrepresented the

facts that he had assisted the enemy in the persecution of

civilians, voluntarily assisted the Axis powers in their military

operations, and had been a member of a movement hostile to the

United States and its form of government. The court found that

these misrepresentations would have a natural tendency to

influence the DPC and the vice-consul in making their decisions

to classify Stelmokas as a displaced person and to admit him to

the United States. Consequently, Stelmokas's entry into the

United States as a permanent resident was unlawful so he had

procured his citizenship unlawfully. See United States v.

Kowalchuk, 773 F.2d at 493.

The court next held that Stelmokas had procured his

citizenship unlawfully because he was not entitled to a visa to

enter the country as a permanent resident as he had advocated or

acquiesced in activities or conduct contrary to civilization and

human decency on behalf of the Axis countries contrary to the

regulations then in effect. The court also held that he did not

qualify for naturalization because he lacked good moral character

when he was naturalized, so that he had procured his citizenship

unlawfully. 8 U.S.C. § 1427(a)(3); 8 U.S.C. § 1101(f). The

court held that Stelmokas lacked good moral character because he

voluntarily joined the Schutzmannschaft, enforced the confinement

of the Jews in the brutal conditions of the Kaunas ghetto, and

was on duty when his battalion assisted in the Gross Aktion.

The court held that the government had not established

its case in only one respect. Under the INA, procuring

citizenship "by concealment of a material fact or by willful

misrepresentation" is grounds for denaturalization. 8 U.S.C. §

1451(a). The court held, however, that concealment must be made

in order to obtain naturalization for that charge to apply, as

distinguished from concealment made to obtain a visa.

Accordingly, the court held that the misrepresentations to the

DPC analyst and to the vice-consul could not apply to the

concealment count with respect to procuring citizenship. The

court therefore held that the concealment count failed because

the government did not establish that Stelmokas's statements in

connection with his naturalization willfully concealed facts or

included material misrepresentations of fact.

The court ended its opinion by reiterating that

Stelmokas's citizenship could be revoked only on the basis of

clear, unequivocal, and convincing evidence. Consequently, the

government had a heavy burden in the case. The court then

emphasized that there was no doubt but that Stelmokas voluntarily

joined the Schutzmannschaft in 1941 and served in it until mid-

1944, when he was transferred to a Luftwaffe unit in Germany.

The court noted that he was the commander of the ghetto guard and

was on duty in Kaunas during the Gross Aktion, when his battalion

assisted in the massacre of 9,200 Jews. Furthermore, the court

stated that there was no doubt that he fought anti-German

partisans later in the war, and that he willfully misrepresented

his wartime activities when he applied for admission to this

country. For all these reasons, the court revoked his

citizenship. Stelmokas then appealed.

II. DISCUSSION

Stelmokas raises four issues on this appeal. He

contends that: (1) the district court erred in drawing adverse

inferences based on his Fifth Amendment plea; (2) the district

court erred in admitting as ancient documents records made during

the German occupation of Lithuania and certain other wartime

documents; (3) the government failed to establish its case by

clear, unequivocal and convincing evidence so as not to leave its

allegations regarding his wartime activities in doubt; and (4)

his alleged misrepresentations regarding his wartime employment

and residence were not shown to be material. We will discuss

these contentions in the order presented.

A. The privilege against self-incrimination

We are perplexed by aspects of Stelmokas's Fifth

Amendment argument. He initially contends that the district

court erred when it held that he did not face a real and

substantial threat of domestic and foreign prosecution. Yet we

do not understand how the alleged error prejudiced him because

the district court, though overruling his plea of the privilege

against self-incrimination, did not sanction him for persisting

with that plea. The court did not strike Stelmokas's answer,

deem the allegations of the complaint admitted, enter a default

judgment against him, preclude him from presenting witnesses

including even himself, or hold him in contempt. See S.E.C. v.

Graystone Nash, Inc., 25 F.3d 187, 189-91 (3d Cir. 1994).

Quite to the contrary, the district court merely drew

inferences against Stelmokas with respect to what his testimony

would have revealed had he testified. Of course, as we shall

demonstrate, the court could have drawn these inferences even if

it had upheld Stelmokas's claim of the privilege against self-

incrimination. Thus, while the court overruled Stelmokas's plea

of the Fifth Amendment, its ruling had no consequence because the

court acted as if it had upheld the plea. It thus appears that

to the extent the parties' briefs address whether the court

correctly overruled the claim of the privilege against self-

incrimination, they focus on a non-issue. Therefore, we will not

consider whether the court correctly held that Stelmokas could

not plead the privilege against self-incrimination.

Stelmokas argues, however, that the court was not

justified in drawing inferences against him for two reasons.

First, he suggests that, in view of his attorney's statement at

trial that Stelmokas "may" waive the privilege, it is not clear

that he, indeed, did claim the privilege. Second, he argues that

"no penalty may be imposed on a witness asserting the privilege"

against self-incrimination. Br. at 19.

We reject both of these contentions. First, the court

was justified in treating the case as though Stelmokas never

retreated from his claim of the privilege against self-

incrimination. Indeed, it hardly could have done otherwise.

After all, Stelmokas claimed the privilege in his answer and at

his deposition and he never filed an amended answer as the court

ordered, or indicate that he would make himself available to

complete his deposition by answering all the questions asked.

Rather, his attorney merely said at the trial that he "may" waive

the privilege, which he never did.

In S.E.C. v. Graystone Nash, Inc., we pointed out that

"because the privilege [against self-incrimination] may be

initially invoked and later waived at a time when an adverse

party can no longer secure the benefits of discovery, the

potential for exploitation is apparent [because abuse may cause]

unfair prejudice to the opposing litigant." 25 F.3d at 190. At

the very least, therefore, if a party initially claims the

privilege against self-incrimination and then intends to waive

it, he should do so clearly. If Stelmokas had waived the

privilege clearly at the outset of the trial, the government

could have asked for an opportunity to take a meaningful

deposition. Stelmokas's maneuvering precluded that possibility.

Indeed, Stelmokas's attorney at the trial, without apparent

recognition of the significance of his statement, essentially

admitted that he was abusing the claim of the privilege by

indicating that he was keeping his options open and that he did

not know what he would advise Stelmokas to do. We will not

reward such manipulation. Rather, Stelmokas must bear its

consequences.

Second, Stelmokas's argument that he cannot be

penalized for claiming the privilege relies on such cases as

Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132 (1977), and

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967). But

those cases dealt with the imposition of a substantial penalty

for the exercise of the privilege against self-incrimination,

e.g., the loss of public office. As we have pointed out, in this

case the court did not impose any sanction on Stelmokas because

of his refusal to answer questions.

Thus, this case is controlled by the principles set

forth in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551

(1976). There, a prisoner at a disciplinary hearing was advised

that he had a right to remain silent but that, if he did so, his

silence would be held against him. He remained silent and his

silence was given evidentiary value against him. The Supreme

Court held that the use of his silence in this manner was proper.

It distinguished the line of cases, including Lefkowitz and

Garrity, that did not allow the imposition of a penalty for

pleading the privilege because those cases involved the loss of

employment or the opportunity to contract with the state for

exercising Fifth Amendment rights. Id. at 316-17, 96 S.Ct. at

1557. The Court also distinguished Griffin v. California, 380

U.S. 609, 85 S.Ct. 1229 (1965), which held that in a criminalcase a jury

could not be instructed that it could draw an

inference of guilt from the defendant's failure to testify.

Baxter, 425 U.S. at 317, 96 S.Ct. at 1557.

The Supreme Court in Baxter held that the case was

controlled by the principle that, in civil cases, "the Fifth

Amendment does not forbid adverse inferences against parties . .

. when they refuse to testify in response to probative evidence

offered against them." Id. at 318, 96 S.Ct. at 1558. Thus, as

long as there was independent evidence to support the negative

inferences beyond the invocation of the privilege against self-

incrimination, the inferences could be drawn. See also United

States v. Local 560 of the Int'l Bhd. of Teamsters, etc., 780

F.2d 267, 292 n.32 (3d Cir. 1985), cert. denied, 476 U.S. 1140,

106 S.Ct. 2247 (1986). In this case, there was a plethora of

independent evidence to support the inferences that the district

court drew based on Stelmokas's claim of the privilege, so the

court was justified in drawing the inferences it did.

We recognize that even though this is a civil case, seeUnited

States v. Osidach, 513 F. Supp. 51, 57 (E.D. Pa. 1981), it

may have drastic consequences for Stelmokas. After all, at oral

argument the attorneys told us that an affirmance probably will

lead to his deportation. But the severity of the consequences do

not alter the legal determination of whether the court may draw

inferences against a person pleading the privilege against self-

incrimination. Baxter itself was a disciplinary case and had

penal overtones. We also note that the Supreme Court recently

has adhered to the sharp distinction between proceedings which,

though possessing what might be regarded as a punitive impact,

are civil, and traditional criminal proceedings. Thus, in United

States v. Ursery, 116 S.Ct. 2135, 2138 (1996), the Court held

that civil forfeitures in general do not constitute punishment

for purposes of the Double Jeopardy Clause. Accordingly, the

Court would not regard a civil forfeiture action as a criminal

proceeding, even though the proceeding resulted in an owner

losing his property. This case cannot be regarded as more

punitive than Ursery. In sum, a case is either civil or criminal

and in the present context this case is civil.

We make one final point on the self-incrimination

argument. In this case, there was a bench trial. Thus, unlike a

jury trial in which a jury will return a general verdict or

answer specific interrogatories, the district court had an

opportunity to explain the bases in the evidence for its factual

findings. It did so by making it crystal clear that, even if it

had not drawn any inferences from Stelmokas's claim of the

privilege, it would have made the same factual findings.

Accordingly, even if the district court erred in drawing the

inferences, its error would have been harmless for, as we explain

below, the evidence without the inferences supported the court's

findings.

B. The ancient documents

Stelmokas argues that the district court erred by

admitting into evidence occupation documents obtained from

Lithuanian archives and other sources as ancient documents

pursuant to Fed. R. Evid. 803(16) which, as an exception to the

hearsay rule, allows the admission of "[s]tatements in a document

in existence twenty years or more the authenticity of which is

established." The challenged documents demonstrated Stelmokas's

employment and activities during World War II. In particular,

Stelmokas argues that these documents "lack any assurance of

trustworthiness." Br. at 22.

Stelmokas focuses his objection on two groups of

documents, principally those recovered from the records of the

Lithuanian Schutzmannschaft that were located at Vilnius, the

Lithuanian capital, and secondarily those recovered from German

records found at other locations. While Stelmokas recognizes

that Germans or Lithuanians purportedly wrote the

Schutzmannschaft documents, he observes that the Vilnius

documents were kept from public inspection by the Soviet Union

until 1990. Though he also acknowledges that the government did

not have to demonstrate a strict chain of custody for the

documents to be admitted, in his view the documents cannot be

treated as authentic because it is unclear how they were moved to

the Vilnius archives. Thus, he argues that the documents were

not found in a place where, if authentic, they "would likely be"

as set forth in Fed. R. Evid. 901(b)(8).

Stelmokas further argues that the documents are

suspicious because the Germans destroyed many documents

demonstrating their criminal conduct, but "preserve[d] evidence

of Lithuanian misconduct." Br. at 27. Furthermore, he regards

the documents as questionable because they came from Soviet

sources, and he claims that it was Soviet policy to discredit the

Baltic states. Id. Finally, he argues, though with less

particularly, that the government did not establish the chain of

custody and authenticity of the second group of documents, i.e.,

those from German sources.

We review the district court's ruling that admitted the

evidence over a challenge to its authenticity under an abuse of

discretion standard. See United States v. McGlory, 968 F.2d 309,

328 (3d Cir.), cert. denied, 506 U.S. 956, 113 S.Ct. 415 (1992).

Federal Rule of Evidence 901(a) provides that the requirement of

"authentication . . . as a condition precedent to admissibility

is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims." Rule 901(a) is

written, of course, in general terms, but is followed by Rule

901(b) which includes examples of methods by which to

authenticate evidence. Rule 901(b)(8) provides that

authentication of an ancient document may be supplied by a

demonstration that a document is in such condition as to create

no suspicion concerning its authenticity, was in a place where,

if authentic, it likely would be, and has been in existence 20

years or more at the time it is offered. Ancient documents are

admissible into evidence as an exception to the hearsay rule.

See United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 1976).

We cannot say that the district court abused its

discretion in admitting the documents in question. Initially, we

observe that Stelmokas's argument in part is self-defeating

because his contention that the Germans destroyed documents

demonstrating their own criminal conduct, but preserved documents

incriminating the Lithuanians, supports rather than undermines

the district court's conclusions that the documents incriminating

him were legitimate. Furthermore, the documents were certified

by competent Lithuanian archival personnel. Hilberg, who has

testified in many cases regarding eastern European Holocaust

records and whose expertise cannot be doubted, testified that the

documents he examined were authentic and that the documents found

in Soviet possession are as reliable as documents from western

countries. He said that he found the documents to be reliable

and not to be forgeries. He also testified that one would expect

to find documents relating to the Lithuanian Schutzmannschaft in

Vilnius, the Lithuanian capital.

MacQueen testified that he personally searched archives

in Lithuania and that the documents he found were authentic and

reliable. In particular, he had found Schutzmannschaft records

implicating Stelmokas in Vilnius, which is where they were likely

to be found. Stelmokas simply has not produced any evidence or

forwarded any reason to impeach the validity of the documents.

See Sokaogon Chippewa Community v. Exxon Corp., 805 F. Supp. 680,

711 n.34 (E.D. Wis. 1992), aff'd, 2 F.3d 219 (7th Cir. 1993),

cert. denied, 114 S.Ct. 1304 (1994).

We also point out that German records demonstrate that

while Stelmokas was in the Luftwaffe, he was hospitalized in

Germany. We cannot conceive that any rational person would

believe that someone set out to incriminate Stelmokas and planted

fake documents in widely-scattered places for that purpose. If

anyone created the documents to injure Stelmokas, the fabricator

most peculiarly placed the bulk of the documents in a location

where they were not accessible to the public and from which, in

fact, they were not released for decades. There certainly is no

evidence in the record that anyone hatched such a bizarre plot.

Indeed, Stelmokas does not explain what motivation any person

would have had to fabricate documents so as to attribute

responsibility to him for the atrocities in Lithuania or how that

could have been accomplished. Stelmokas was hardly a prominent

figure in the war and it is difficult to conceive why someone

would go to the lengths he suggests in order to frame him.

Stelmokas's attack on the authenticity of the documents is not

substantial.

C. Sufficiency of the evidence

Stelmokas next argues that the government failed to

establish its case by clear, unequivocal, and convincing evidence

so as to leave no doubt as to its allegations regarding

Stelmokas's wartime activities. In considering this allegation,

we determine whether the district court's findings are clearly

erroneous. Oberti v. Board of Ed., 995 F.2d 1204, 1220 (3d Cir.

1993). Of course, they will not be clearly erroneous if

supported by clear, unequivocal, and convincing evidence.

We have reviewed the record and have concluded that the

district court's findings are not clearly erroneous, as the

evidence in the record fully supports them. The ultimate factual

issue for resolution in this case was whether Stelmokas resided

in the United States for five years "after being lawfully

admitted for permanent residence." 8 U.S.C. § 1427. If he was

not lawfully admitted, he was not eligible for citizenship.

Resolution of this issue in turn depends on whether the district

court's findings that Stelmokas should have been barred for six

different reasons from entering the country were clearly

erroneous as to all six. We thus emphasize that even if we

upheld the findings on only one of the six bases, we would

affirm.

In fact, the government demonstrated beyond all doubt

that Stelmokas was not lawfully admitted for permanent residence

for all six reasons. The evidence against Stelmokas was

overwhelming, even without the inferences the court drew from

Stelmokas's Fifth Amendment plea and, as Stelmokas called no

witnesses, the evidence was not rebutted. In the circumstances,

we would serve no useful purpose in detailing all the evidence to

support each of the charges against him.

We highlight two examples of how Stelmokas argues his

case. He contends that there is no proof that he joined the

Schutzmannschaft voluntarily. While it is true that no person

testified that he recalled seeing Stelmokas sign up for the

Schutzmannschaft, his contention that there is no proof that he

joined voluntarily ignores the record. The evidence shows that

when Stelmokas joined the Schutzmannschaft, service of all its

officers was voluntary as there was an ample supply of candidates

and conscription was not necessary. Indeed, for at least several

months after Stelmokas joined the Schutzmannschaft, its members

could be released at their own request. Obviously, if the

evidence demonstrated that service of all Schutzmannschaftofficers was

voluntary, then a finding that a particular officer

served voluntarily is supported in the record. We also point out

that in addition to this positive proof that Stelmokas joined the

Schutzmannschaft voluntarily, the court drew the entirely

justified inference from Stelmokas's claim of the privilege

against self-incrimination that he joined voluntarily.

Another example of the weakness of Stelmokas's factual

arguments is his claim that he did not misrepresent his wartime

employment by concealing his membership in the Schutzmannschaft.

This contention is frivolous, for he acknowledges that he

represented to the DPC analyst and the vice-consul that from 1940

until 1943 he was a teacher in Seda. It is difficult to

understand how Stelmokas can argue that he did not misrepresent

his status as a Schutzmannschaft officer when he represented that

he was a teacher for most of the time that he was in reality such

an officer.

Stelmokas, however, takes a different approach to what

constitutes a misrepresentation. In a post-argument brief that

he filed at our direction, he recites that "[a] relevant

concealment would have occurred if the government had produced

evidence that Stelmokas was asked if he had been a member of the

Schutzmannschaft and said no." Br. at 3. Thus, Stelmokas would

require that the examiner have a reason to ask about a specific

narrowly defined matter. We reject his approach. In our view,

if you falsely represent that your employment is one thing when

your actual employment is completely different, then you have

concealed your true employment. In these circumstances, it is

perfectly clear that Stelmokas himself demonstrates that he made

a material misrepresentation when he sought displaced person

status and a visa. Surely the misrepresentation that Stelmokas

was a teacher was material because it hid his true employment as

a Schutzmannschaft officer.

Notwithstanding Stelmokas's failure to mount a

substantial attack on the court's findings, we focus on two

aspects of the government's case: Stelmokas's participation in

the Schutzmannshaft as a movement hostile to the United States

and his false statements to the DPC analyst and to the vice-

consul. As we indicated, section 13 of the DPA prohibited

issuance of a visa to any person "who is or has been a member of,

or participated in, any movement which is or has been hostile to

the United States or the form of government of the United

States." 62 Stat. 1014. It is beyond doubt that Stelmokas was

an officer in the Schutzmannschaft. It is also clear that the

Lithuanian Schutzmannschaft was on the State Department "List of

Organizations Considered Inimical to the United States." The

inimical list states that members of the Schutzmannschaft "are

considered collaborators except for those members . . . who can

produce evidence that they were conscripted and did not commit

atrocities or otherwise persecute civilian populations." Seeexhibit

4.242, app. 1672.

Stelmokas did not produce any such evidence. Indeed,

except for a small number of exhibits, he did not produce any

evidence at all. It is clear that Stelmokas voluntarily joined

the Schutzmannschaft and, while there is no eye-witness testimony

identifying him as a person who committed atrocities or otherwise

persecuted the civilian population, the only reasonable inference

to be drawn from the record is that he did exactly that. In any

event, with or without the reasonable inferences to be drawn from

the record, Stelmokas's service as an officer in the

Schutzmannschaft disqualified him from obtaining displaced person

status and a visa, as the Schutzmannschaft was a movement hostile

to the United States. See United States v. Kowalchuk, 773 F.2d

at 497 n.11; United States v. Koziy, 540 F. Supp. at 34; United

States v. Osidach, 513 F. Supp. at 78-79.

In his post-argument brief, Stelmokas makes disturbing

contentions with respect to the inimical list. He indicates that

"there is no evidence of record as to what, if any [inimical]

list, was in use in July and August of 1949 when [he] made his

applications to the [DPC] and the consulate." He then adds that

the "government has placed the so-called inimical list in

evidence but it is undated and there is no testimony as to when

it was published and whether the Lithuanian Schutzmannschaft was

on the list as early as the summer of 1949, and if so, what

effect it might have had, if any, on the decision of the DPC

examiner or vice consul." Br. at 22.

While we agree that there was no testimony at trial as

to what effect the presence of the Schutzmannschaft on the

inimical list might have had on the decisions of the examiner or

the vice-consul, we regard the balance of the quoted statements

in Stelmokas's brief as material misrepresentations. Near the

end of the trial, after the government's witnesses had testified

and shortly before the government rested, the following

proceedings took place:

THE COURT: Fine. What remains to be

done today?

MS. SLAVIN [the government attorney]:

Well, we would like to move Exhibit 4.242,

which is the inimical list, into evidence.

We have reached a stipulation.

THE COURT: Let me...

(Pause in proceedings.)

THE COURT: Okay. It was not received

yesterday. Is it being received --

MS. SLAVIN: We are moving it in --

THE COURT: -- in evidence by agreement

or is there a stipulation that you want to

read into the record?

MS. SLAVIN: The stipulation we have

arrived at that was -- that the list was in

effect during the relevant period of Mr.

Stelmokas' immigration in 1949.

MR. CARROLL [Stelmokas's attorney]: And

I'm withdrawing my objection to that exhibit,

your Honor, for that reason.

THE COURT: Exhibit 4.242 will be

received in evidence.

(Government Exhibit 4.242 is admitted

into evidence.)

In the circumstances, it obviously is disingenuous for

Stelmokas's attorney on this appeal, who was trial counsel as

well, to challenge the use of the inimical list on the theory

that the evidence did not show it was in effect when Stelmokas

sought displaced person status and a visa. Of course, Exhibit

4.242 included the Lithuanian Schutzmannschaft on the list.

In any event, it would not matter if the

Schutzmannschaft was added to the inimical list after Stelmokas

obtained displaced person status and a visa and entered the

country. Stelmokas was barred from entering the country because

he was a member of the Schutzmannschaft, which was a movement

hostile to the United States. The date that the Schutzmannschaftwas

placed on the inimical list is not significant for purposes

of determining if it was a movement hostile to the United States

because its placement on the list established that it was such a

movement during World War II when Stelmokas was one of its

officers. The inimical list did not operate prospectively so

that a movement would be regarded as hostile to the United States

only after it was placed on the list. After all, the list

enumerated movements that existed during the Nazi era which ended

before the list's promulgation. Therefore, Stelmokas was

unlawfully admitted to the United States because, regardless of

when the Schutzmannschaft first appeared on the inimical list,

when Stelmokas served as a Schutzmannschaft officer it was a

movement hostile to the United States.

The second aspect of the evidence on which we comment

is Stelmokas' misrepresentations to the DPC analyst and the

American vice-consul in Hamburg. Neither the analyst nor the

vice-consul testified, but it is beyond dispute that when they

interviewed Stelmokas he told them nothing about his

Schutzmannschaft and Luftwaffe service. Rather, he told them

that during the war he was a teacher in Seda, Lithuania, and was

then a laborer in Dresden, Germany. There simply can be no doubt

but that the district court's findings demonstrate that Stelmokas

was not eligible to immigrate to the United States.

D. The materiality of Stelmokas's misrepresentation

Stelmokas's final argument is that the government did

not establish that his misrepresentations regarding his wartime

employment and residence were material. He contends that the

"government has usually attempted [to establish] proof of

materiality in these cases by calling consular or INS officials

to testify that their decisions would have been different if they

had known the truth." Br. at 48. See, e.g., United States v.

Kowalchuk, 773 F.2d at 496. He then correctly points out that

the government did not present any such evidence in this case.

Stelmokas's claim for relief on this basis faces the

insurmountable barrier that even if he is correct, we still must

affirm. The district court found for six different reasons, all

fully supported by evidence in the record, that Stelmokas was

ineligible for displaced person status and for a visa and thus

that he had not entered the United States lawfully and had not

been eligible for citizenship. Five of these reasons were

predicated on his conduct and associations during World War II,

and only one was based on his misrepresentations to the DPC

analyst and the vice-consul. Thus, even if Stelmokas had made no

misrepresentations to the DPC analyst or the vice-consul, we

would affirm because he procured his citizenship illegally as he

was not eligible for displaced person status and for a visa.

We recognize that a party might contend that if a court

of appeals rejected any of the bases for a district court's

conclusion that a defendant should be denaturalized, it should

remand the case so that the district court then could consider

whether to grant relief predicated on the findings the court of

appeals has upheld. In that event, a finding that a defendant

had not made material misrepresentations in connection with his

visa application could be significant. The problem with such an

argument is that the courts do not have equitable discretion to

deny the government a judgment of denaturalization to which it

otherwise would be entitled. Fedorenko, 449 U.S. at 517-18, 101

S.Ct. at 752-53. Thus, even if we held that Stelmokas's

misrepresentations were not material and, indeed, even if he made

no representations at all to obtain the visa, his appeal is

doomed, as he was not eligible for a visa, and we must uphold the

district court even if we sustain only one of the bases for its

conclusion that he had been ineligible to enter the United

States. Of course, we are sustaining the district court's

conclusions on all six counts that Stelmokas was ineligible to

enter the United States. Nevertheless, we will address the

materiality argument on its merits, as it does relate to one of

the bases for relief.

Initially, on this appeal Stelmokas and the government

agreed that Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537

(1988), set the standard for materiality in this case, even

though that case concerned materiality in citizenship

applications under the INA, 8 U.S.C. § 1451(a), rather than

materiality under section 10 of the DPA. Thus, in his opening

brief, Stelmokas said that the "current test of materiality is

found in Kungys." Br. at 47. Indeed, in his "Statement of

Issues" he included the following: "Were the defendant's

misrepresentations concerning his former occupation and residence

'material' as defined in Kungys v. United States, 485 U.S. 759

(1988)." Under Kungys, a misrepresentation is material if it has

a natural tendency to affect the officers' decisions, in this

case the decisions of the DPC analyst and the vice-consul. 485

U.S. at 770-72, 108 S.Ct. at 1546-47. Furthermore, it is clear

from Kungys that a misrepresentation can be material even where

if the truth had been told, the decision maker ultimately would

have reached the same result. Under Kungys, the materiality of a

misrepresentation in a denaturalization proceeding is a legal

rather than a factual question. Id. at 772, 108 S.Ct. at 1547.

While the government continues to rely on Kungys,

Stelmokas changed his position in his post-argument brief in

which he now contends that "Kungys simply did not deal with the

visa or DPA issues." Br. at 1. Furthermore, he cites United

States v. Gaudin, 115 S.Ct. 2310 (1995), for the first time on

this appeal in that brief, pointing out that the Supreme Court

held there that materiality was a factual rather than a legal

matter in the circumstances of that case. We would be justified

in refusing to entertain Stelmokas's post-argument change in

position, for we do not think that a party should be able to

change his legal contentions after oral argument. But, mindful

of the importance of this case to Stelmokas, we nonetheless will

discuss his new position.

While we cannot predict the ultimate implications of

Gaudin, we do know that Gaudin did not affect the Kungys holding

that, in a denaturalization proceeding, materiality of a

misrepresentation is a legal issue. Quite the contrary is true

because the Gaudin court discussed Kungys at length and made it

clear that it was distinguishing Kungys because that case dealt

with whether "an appellate court must remand to a district court

for a determination of materiality in a denaturalization

proceeding," whereas Gaudin was concerned with a defendant's

Sixth Amendment right to have a jury determine materiality in a

criminal proceeding. Gaudin, 115 S.Ct. at 2319.

Of course, Gaudin followed a familiar track because it

is not unusual for the Court to extend more extensive procedural

protections to a defendant in a criminal case than to a party in

a civil case. Indeed, as we point out above, the Court in Baxter

v. Palmigiano distinguished Griffin v. California on the ground

that Griffin, unlike Baxter, was a criminal case. Baxter, 425

U.S. at 317, 96 S.Ct. at 1557. Thus, while Gaudin may cause

courts to cabin Kungys to the extent that it holds that a

determination of materiality is a legal issue, Kungys's treatment

of materiality as a legal issue remains applicable here.

Stelmokas now also seems to contend that because the

procedure in an application for citizenship differs from that

under section 10 of the DPA, the definition of what is material

in Kungys is inapplicable here. In particular, in his post-

argument brief, he contends that "Kungys simply did not deal with

the visa or DPA eligibility issues." Br. at 1. This argument is

distinct from Stelmokas's contention that materiality is a

factual question. We reject this attempt to distinguish Kungys.

While the procedures followed and questions asked when an

applicant seeks a visa differ from those applicable when an

applicant seeks citizenship, we see no reason why the test of

materiality under Kungys would not apply in DPA eligibility

cases. Materiality, after all, refers to the effect of a

representation on a decision maker regardless of the nature of

the decision. In other words, no matter what is being decided,

the misrepresentation is material under Kungys if it has the

natural tendency to affect the decision. We see no reason not to

apply that test here. Thus, Kungys is doubly significant here,

for it establishes that the resolution of materiality is a legal

undertaking and it sets forth the test of what is material.

Inasmuch as under Kungys the materiality of a

misrepresentation in a denaturalization proceeding is a matter of

law, not fact, there cannot possibly be a need for the government

to produce evidence from officials that if the truth had been

told the officers would have reached a different result. Kungys,

485 U.S. at 772, 108 S.Ct. at 1547. After all, evidence is not

needed for a court to make a legal determination. Thus, while

the government frequently has produced evidence of that

character, the effect of Kungys in 1988 has been to eliminate the

need for such evidence, if it ever was required.

We do not go so far as to suggest that evidence of what

a consular or DPC official would have done if given the correct

information is not admissible because we have no need to reach

that point. Indeed, we even will assume that in a close case

evidence of that character would be useful for the court in

making a legal determination concerning the materiality of a

misrepresentation. After all, the Supreme Court, prior to Kungysin

Fedorenko v. United States, quoted and relied on such evidence

produced by the government, though it noted that it was proffered

and accepted by the court "[w]ithout objection" from the

defendant. 449 U.S. at 448-50, 101 S.Ct. at 743-44. Yet, in

Fedorenko the court did say that the defendant was ineligible for

a visa "as a matter of law." Fedorenko, 449 U.S. at 509, 101

S.Ct. at 749.

Though we thus acknowledge that in a close case

evidence of whether or not the consular official's decision would

have been different if he knew the truth might be helpful to the

court in deciding a materiality issue, this case is not close.

In our view, it cannot reasonably be argued that Stelmokas's

misrepresentation that he was a laborer and a school teacher when

in fact he was an officer in the Schutzmannschaft and served in

the Luftwaffe could not have had a natural tendency to influence

the DPC analyst and the vice-consul. Indeed, probably without

recognizing the implications of his statement, Stelmokas admits

as much, for in his post-argument brief he describes his

fabricated wartime employment as a "neutral" factor in the

decision to admit him to the United States. Br. at 3. He hardly

could contend that a revelation of his real Schutzmannschaft and

Luftwaffe service would have amounted to the disclosure of a

"neutral" factor.

We have no doubt that if Stelmokas had told the truth

about his service on behalf of Germany during World War II he

never would have obtained his visa for permanent residency in the

United States, and he never would have been naturalized. After

all, we have found that these activities disqualified him from

securing displaced person status and from obtaining a visa.

Thus, the misrepresentations surely were material. Of course,

there is a certain irony in Stelmokas's contention that his

misrepresentations were not material, because when he made them

he must have recognized the need to hide the truth so that he

could be admitted to this country. At least we can discern no

other motive that he might have had to conceal his wartime

activities. The truth is inescapable: he invented his wartime

history out of thin air so that he could be admitted to the

United States and ultimately obtain citizenship.

We make an additional observation with respect to the

custom of the government of calling consular or INS officials to

testify that their decisions would have been different if they

had known the truth. As we have indicated, Stelmokas seems to

believe that the materiality of a misrepresentation is a factual

issue and reasons that the fact of materiality cannot be

established without testimony as to what the consequence of the

provision of truthful information to the decision maker would

have been. Yet, even treating materiality as a factual question,

we see no reason why the district court as the trier of the fact

could not conclude, without such testimony, that the

misrepresentation had a natural tendency to affect the decision

and thus was material. We will not convert the government's

custom in producing consular or INS testimony to establish the

materiality of a misrepresentation into a requirement that it

must do so, for we are not aware of any case which holds that the

government must establish the materiality of a misrepresentation

with testimony from a consular or INS officer that a truthful

disclosure would have produced a different result.

We point out that our conclusion that evidence on

materiality of a misrepresentation is not necessary is in harmony

with our treatment of materiality in other contexts. Bethel v.

McAllister Bros., Inc., 81 F.3d 376 (3d Cir. 1996), is a recent

example. In Bethel, the plaintiff obtained a substantial verdict

on a defamation claim. Subsequently, the defendant moved for

relief from the judgment entered on the verdict based on the

plaintiff's testimony at an arbitration proceeding after the

trial in the defamation case which was inconsistent with his

earlier testimony at trial. The district court granted relief

and ordered a new trial on the defamation action. The plaintiff

appealed, and we affirmed.

Bethel is significant to this case because the district

court and this court in Bethel were concerned with whether the

"misrepresentation" was "material" to the plaintiff's case. Id.

at 385. We held that it was not merely material, it was crucial.

In entertaining the motion for relief from judgment, the district

court developed a record establishing the misrepresentation by

comparing the testimony at the trial and the arbitration. But no

witness testified that the misrepresentation was material.

Rather, the district court, predicated on its own view of the

record, concluded that it was material, and we reached the same

conclusion using an identical methodology. Thus, without citing

Kungys, both courts in Bethel followed the Kungys formula of

basing a determination of "the materiality of a statement . . .

upon a factual evidentiary showing" and then making "an

interpretation of substantive law." Kungys, 485 U.S. at 772, 108

S.Ct. at 1547 (omitting citation). That procedure is exactly

what the district court did here, and it is exactly what we do on

this appeal. In fact, materiality frequently is treated as a

legal question, sometimes in a trial context as in Kungys, see In

re Cohn, 54 F.3d 1108, 1115 (3d Cir. 1995), and sometimes in

other proceedings. See, e.g., United States v. Pelullo, 14 F.3d

881, 886 (3d Cir. 1994); United States v. Gray, 878 F.2d 702, 714

(3d Cir. 1989).

E. Comments on the dissent

We close the discussion portion of our opinion with

comment on two aspects of Judge Aldisert's dissent, sections VII

and VIII. We do not address the rest of the dissent as our

opinion adequately explains the bases for our conclusions and we

do not regard the dissent as detracting from them. We comment on

his discussion in section VII of the dissent on Count IV of the

complaint in which the government charged that Stelmokas

illegally procured his naturalization because he misrepresented

his wartime record to the DPC and to the vice-consul and thus was

ineligible to enter the country. We focus our attention on this

point because Judge Aldisert includes in his dissent a concession

which causes the dissent to self-destruct, namely "that

Stelmokas's failure to disclose his wartime military status would

have had a natural tendency to influence immigration decisions."

Dissent typescript at 29.

Initially on this point we reiterate that 8 U.S.C. §

1451(a) provides in the disjunctive for a certificate of

naturalization to be revoked if it was "illegally procured" or

was "procured by concealment of a material fact or by willful

misrepresentation." In an "illegally procured" case, the alien

obtains his naturalization illegally, in this case the illegality

being that Stelmokas was not eligible for naturalization as he

was not admissible into the United States. In a "procured by"

case, the alien obtains his naturalization by concealment of a

material fact or by misrepresentation. While Judge Aldisert

asserts that the government attempted in Count IV to rely on the

"procured by" language, in that count the references to

Stelmokas's misrepresentations to the DPC analyst and the vice-

counsel were germane only to the "illegally procured" component

of section 1451(a). Thus, Judge Aldisert's suggestion that Count

IV of the complaint related in any way to the "procured by"

language of section 1451(a) is simply not true. Furthermore,

while the government unsuccessfully did use Stelmokas's

misrepresentations to the DPC analyst and the vice-consul in the

only count of its complaint asserting a "procured by" charge,

Count VII, the government does not pursue its case on that count

on this appeal.

Judge Aldisert then indicates, quite correctly, that

the government's case on Count IV begins with the major premises

that DPA § 10, 62 Stat. 1013, barred from immigration any person

who willfully misrepresented material facts to gain entry as a

displaced person. He then correctly indicates that the

government argues that Stelmokas made material misrepresentations

so that his entry was unlawful and he thus illegally procured his

naturalization. He then indicates that the "critical inquiry is

whether the government met its important threshold burden of

proving a misrepresentation as defined in the Displaced Persons

Act." Dissent typescript At 27. (Emphasis added.)

The problem with the foregoing statement is inclusion

of the word "threshold" for if the government established that

Stelmokas made material misrepresentations to the DPC analyst and

the vice-consul the case is over and the government wins. Why is

this so? The answer is quite clear. DPA § 10 provides that any

"person who shall willfully make a misrepresentation for the

purpose of gaining admission into the United States as an

eligible displaced person shall thereafter not be admissible into

the United States." Of course, as we already have explained,

that person is thus ineligible for naturalization.

Rather, as Judge Aldisert acknowledges, the test of

materiality comes from Kungys, i.e., does the misrepresentation

have a natural tendency to influence or was it capable of

influencing the decision of the decision making body to which it

was addressed? While it appears that Judge Aldisert is reluctant

to acknowledge that Stelmokas's lies to the DPC analyst and the

vice-consul about his wartime activities were material, we

reiterate that he does concede "that Stelmokas' failure to

disclose his wartime military status would have had a natural

tendency to influence immigration decisions." Dissent typescript

at 29. Under Kungys the misrepresentations were therefore

material without any showing of their effect on the DPC analyst

or the vice-consul.

Notwithstanding the clear statutory scheme, Judge

Aldisert either tries to add more elements to the definition of

materiality or to demonstrate that the government had to show

that the misrepresentations led to Stelmokas's admission into the

country. As we have indicated, the government has demonstrated

the Stelmokas's misrepresentations led to his admission into the

United States but it did not have to do so. Nevertheless we

address the point Judge Aldisert makes. Judge Aldisert fails in

this effort to demonstrate that the government had to demonstrate

anything beyond the conceded fact that Stelmokas's

misrepresentations had a natural tendency to influence the

immigration decisions. The reason he fails is that he relies on

principles inapplicable in a case under the "illegally procured"

clause of section 1451(a) when the case is predicated, as is this

case in Count IV, on an alien having made a material

misrepresentation under DPA § 10 for the purpose of gaining

admission into the United States. Thus, Judge Aldisert makes the

following statement which is simply wrong in this "illegally

procured" case under section 1451(a): "In denaturalization cases,

equally important to establishing a material statement is the

presentation of evidence that the misrepresentation procured the

order and certificate of naturalization." Dissent typescript at

29. The problem with the statement is that in "illegally

procured" cases there is no requirement that a misrepresentation

enabled the alien to procure anything. Rather, in an illegally

procured case dependent on a misrepresentation made when the

alien sought admission into the United States, under DPA § 10 the

government merely need prove that the misrepresentation for the

purpose of obtaining admission into the United States was

material. Furthermore, Judge Aldisert's statement is wrong for

the additional reason that Stelmokas did not make his

misrepresentations to procure the order and certificate of

naturalization. He made them to obtain displaced person status

and to be admitted into the United States.

We reiterate that Stelmokas's misrepresentations to the

DPC analyst and the vice-consul are significant because under DPA

§ 10 an alien who makes a material misrepresentation thereafter

is not admissible into the United States. Thus, if an alien who

made a material misrepresentation is admitted and is naturalized,

he has illegally procured his naturalization without regard for

whether he procured anything by the misrepresentation. We

further emphasize that DPA § 10 in the clearest possible terms

speaks prospectively, i.e., "thereafter" an alien making

misrepresentations is not admissible into the United States.

Accordingly, it is clear beyond doubt that once Stelmokas made

his misrepresentations to the DPC analyst and the vice-consul, he

was ineligible to enter the United States, because, in Judge

Aldisert's words, his "failure to disclose his wartime military

status would have had a natural tendency to influence immigration

decisions." Accordingly, Stelmokas could not be naturalized and

he illegally procured his citizenship. Nothing in DPA § 10

requires that the alien procure his admission into the United

States or anything else by his misrepresentations for even if the

misrepresentations are uncovered immediately, so that the alien

does not obtain displaced persons status or is not admitted to

the United States, he is ineligible for admission to the United

States after he makes his misrepresentations.

For reasons that must be driven by Judge Aldisert's

sense that there is something unfair in the prosecution of this

case he continues to develop his dissent along the same erroneous

lines that we have described. Thus, he points out that in Kungys"the

government was obligated to demonstrate that Kungys'

citizenship status was procured by his material

misrepresentations." Dissent typescript at 29. He then

inferentially acknowledges that Kungys was not an "illegally

procured" case but was a case where the naturalization was

"procured by concealment of a material fact or by willful

misrepresentation," for he recites that the "Government seems to

ask this court to apply different meanings to the term 'procured'

in the two clauses of § 1451(a)." Id. at 29-30. He argues that

"[t]here is no rational support for the suggestion that Congress

intended such an anomalistic reading of the same word in the same

section of the same statute. There is absolutely no rational

support for the notion that the government is not required to

produce evidence showing precisely how Stelmokas was 'unlawfullyadmitted'

and whether his naturalization was in fact 'illegally

procured.'" Id. at 30. "If under the second clause in § 1451

the government must show that the naturalization was 'procured

by' the alleged misrepresentation, as the Court held in Kungys,

then under the first clause certainly the government must

demonstrate that Stelmokas was ineligible and therefore

unlawfully admitted." Id.

The problem with the foregoing quoted language from the

dissent is obvious. The government did demonstrate, in Judge

Aldisert's words, that Stelmokas "was ineligible and therefore

unlawfully admitted." The government demonstrated that Stelmokas

made a material misrepresentation under DPA § 10, which

representation we once again point out did not have to result in

Stelmokas procuring anything to violate that section. Thus,

Stelmokas illegally procured his naturalization. Nothing could

be clearer.

It is also clear that in the "illegally procured" and

"procured by" clauses, "procured" has the same meaning and the

government does not contend otherwise. We repeat the distinction

between the two types of cases. In a "procured by" case the

alien obtains his naturalization by his misrepresentation. In an

"illegally procured" case the alien obtains his naturalization

illegally, in Stelmokas's case by entering the country when he

could not be admitted. Thus, "procured" means the same thing in

"illegally procured" and "procured by" cases. What differs is

the interdicted conduct by which the alien procured his

naturalization.

Of course, there is a good reason why the "procured by"

clause in section 1451(a) requires that the government

demonstrate more than that an alien made a material

misrepresentation for naturalization to be revoked because,

unlike DPA § 10 which applies prospectively so as to render an

alien inadmissible to the United States, section 1451(a) always

applies in a situation in which the alien already has procured

his naturalization. Thus, Judge Aldisert's emphasized quotation

of Kungys that "the naturalized citizen must have procured

citizenship as a result of the misrepresentation or concealment,"

485 U.S. at 767, 108 S.Ct. at 1544, dissent typescript at 31,

does not support his position because there the Court was

discussing a "procured by" not an "illegally procured" case.

Judge Aldisert goes further in misusing the plain language of

Kungys. First, he correctly says that Kungys indicates that in a

denaturalization proceeding there are "four independent

requirements." Dissent typescript at 31. In fact, the Court

said the following with respect to a "procured by" case under

section 1451(a):

So understood, the provision plainly contains

four independent requirements: the

naturalized citizen must have misrepresented

or concealed some fact, the misrepresentation

or concealment must have been willful, the

fact must have been material, and the

naturalized citizen must have procured

citizenship as a result of the

misrepresentation or concealment.

Kungys, 485 U.S. at 767, 108 S.Ct. 1544-45.

Yet this language does not help Stelmokas for in the

quotation the Court was not discussing an "illegally procured"

case. Rather, it set forth the elements of a "procured by" case.

Furthermore, the Court emphasized that the requirements were

"independent." Thus, it is impossible to read the statement in

Kungys that the naturalized citizen have procured citizenship as

a result of the misrepresentation into the materiality

requirement of a misrepresentation under DPA § 10. The

materiality and procurement considerations are "independent" of

each other and cannot be fused. Furthermore, the requirement in

a "procured by" case that the misrepresentation have resulted in

the alien obtaining citizenship cannot be attached to the

government's burden to show that Stelmokas's misrepresentations

to obtain displaced person status and a visa in this "illegally

procured" case were material. Thus, Judge Aldisert's concession

that Stelmokas's misrepresentations would have had a natural

tendency to influence the immigration decisions should lead him

to vote to affirm even if he rejects, as he does, the rest of the

government's case, for as we explained above, if the government

establishes that Stelmokas illegally procured his naturalization

for a single reason we must affirm the district court.

Judge Aldisert discusses the possibility of the

government producing evidence of what consular officials would

have done if Stelmokas had not deceived them but we will not

discuss this point as we have addressed it above. Eventually he

gets back to his central theme on Count IV but at that point he

inexplicably compounds his errors for he says that "the

government has not met its high burden of proof in this case

because it failed to produce evidence that Stelmokas'

misrepresentations procured the decision of the DPC analyst and

the naturalization officials." Dissent typescript at 38.

(Emphasis added.) Of course, the "naturalization officials" have

nothing to do with this case on Count IV and thus the government

does not contend that any misrepresentation to them is germane to

that count. Furthermore, the government did not have to show

that Stelmokas's misrepresentations to the DPC analyst and the

vice-consul procured the decision of the naturalization officials

to grant naturalization as the misrepresentations were critical

as they led to his admission into the United States.

The second aspect of Judge Aldisert's dissent on which

we comment is part VIII in which he expresses due process and

fairness concerns. We point out that Stelmokas does not contend

that the prosecution of the case has denied him due process of

law. Accordingly, this court should not be concerned with Judge

Aldisert's observation that with the passage of time "witnesses

disappear and memories fade." Dissent typescript at 42. In any

event, lest too many tears be shed for Stelmokas, we point out

that one witness has not disappeared and we have no reason to

believe his memory has faded. That witness, of course, is

Stelmokas himself who with so much at stake persisted in his plea

of the privilege against self-incrimination notwithstanding the

order of the district court overruling the plea.

III. CONCLUSION

After a careful examination of this matter, we have

concluded that the district court made no errors of law and that

the record fully supports and, in fact, compels the district

court's conclusion that Stelmokas did not qualify for admission

to this country as a displaced person. Thus the district court

correctly revoked his citizenship and ordered him to surrender

his certificate of naturalization. While many years have passed

since his admission to the country and his obtaining of

citizenship, it is not too late to remedy the wrong done when he

was admitted. Accordingly, we will affirm the judgment of August

2, 1995.

UNITED STATES v. STELMOKAS - NO. 95-1894

STAPLETON, J., Concurring:

I feel compelled to write separately because an

accusation of personal participation in the atrocities of the

Holocaust is a grave matter, and a judicial finding of such

participation understandably carries with it extrajudicial,

collateral consequences unrelated to citizenship and

deportability. While I agree with the court that the government

has carried its burden on six counts of its complaint, I

conclude that the evidence of Stelmokas' participation in the

Grosse Aktion (Great Action) is not clear, convincing and

unequivocal, and that the district court clearly erred in finding

otherwise.

To be sure, there is substantial evidence that

Stelmokas was a member of a platoon of the 3rd Company of the 3rd

Battalion of the Lithuanian Schutzmannschaft and was not on leave

on the date of the Great Action. Moreover, there is substantive

evidence that Lithuanians in military uniforms aided the Germans

in the mass execution. It is a matter of speculation, however,

whether all, some or none of Stelmokas' Schutzmannschaft

Battalion participated.

On October 28-29, 1941, German troops, aided by

"Lithuanian partisans," conducted an operation they referred to

as the Great Action which resulted in the execution of 9,200 Jews

from the ghetto in Vilijampole. On the morning of October 28,

the Jews were lined up by the Jewish Ghetto Police, and the

Germans culled out those who were and were not fit to work.

Those not fit to work were marched to the "small ghetto," which

was adjacent to Vilijampole, and the next day they were marched,

in groups of five hundred at a time, to Fort IX and executed.

They were buried in mass graves dug by Soviet prisoners of war.

Two survivors from Vilijampole testified that they saw

Lithuanians in military uniforms aid the Germans in the Great

Action, but they did not identify whether the men were from

Stelmokas' Schutzmannschaft Battalion or from some other

Lithuanian group.

No testimony and no documentary evidence directly links

Stelmokas or the 3rd Battalion to the Great Action. The district

court, in finding participation by Stelmokas, relied largely on

the opinion of Dr. Raul Hilberg that the entire 3rd Battalion

must have participated in the Great Action. Dr. Hilberg's

opinion was based almost entirely on two observations. First, he

had "seen documents in which larger forces than one battalion

were deployed to kill fewer than 10,000 people." App. at 411.

From this, he inferred that in addition to the personnel of the

Einsatzkommando 3, the German unit of security police which

carried out the operation, at least 500 men, a full battalion,

were required for the Great Action. He acknowledged, however,

that the minimum number of men required would vary according to

factors such as the terrain and the degree of resistance from the

Jews. Second, there was a "shortage of manpower" because German

and Lithuanian units stationed near Kaunas had been sent to fight

the Soviets. Specifically, the majority of the German 11th

Reserve Police Battalion and the entire 2d Lithuanian Battalion

were in Byelorussia. Putting these two observations together,

Dr. Hilberg concluded that Stelmokas' entire Battalion must have

assisted in the Great Action. The balance of the 11th Reserve

Police Battalion and the ghetto police would not, in his opinion,

be sufficient in the absence of the entire 3rd Battalion of the

Lithuanian Schutzmannschaft.

I do not question in the least Dr. Hilberg's

qualifications as an expert in Holocaust history, nor do I doubt

the conviction with which he believes Stelmokas participated in

the Great Action. Nevertheless, I cannot conclude that his

observations, by themselves, clearly, convincingly and

unequivocally demonstrate that Stelmokas aided the Germans in

their massacre of October 28th and 29th. Dr. Hilberg believed a

full battalion was required based on the number of men used in

mass executions elsewhere about which he had read. He did not,

however, describe the circumstances of the other mass executions

and admitted that the minimum requirement would vary according to

local conditions and the resistance level. He did not identify

any local conditions that would have made the Great Action a

particularly labor intensive operation and candidly acknowledged,

based on contemporary documentation, that no Jewish resistance

was anticipated. He also testified that it was reasonable to

assume that some segment of the available manpower would have to

have been assigned to the responsibilities that occupied the

available troops on a day to day basis, e.g., protection of

facilities and communication and the maintenance of security.

Given the uncertainty involved in estimating manpower needs based

on other, perhaps dissimilar, situations and the reasonable

assumption that there were competing manpower demands in the

local area, it seems speculative to assert that the entire 3rd

Battalion participated despite the presence of a portion of the

11th Reserve Police Battalion and the ghetto police.

My concern, however, is not grounded solely in the

sufficiency of Dr. Hilberg's testimony; as Stelmokas points out,

the government's own evidence casts serious doubt on the

inferences drawn by Dr. Hilberg. Certain documents suggest that

a sizable contingent of Lithuanians not associated with the

Sonderkommando was available to help in the Great Action, and

that less than a full battalion of support troops may have been

needed. To make my point, a little background regarding the

organization of German police forces is helpful.

Following the occupation of Lithuania by the German

Army, German occupation police moved in and kept order. One

component of the German occupation police was the security

police; the other component was the order police. The security

police had mobile units called Einsatzgruppen, about the size of

a battalion, and these were broken down into companies called

Einsatzkommando and Sonderkommando. The Einsatzgruppen were in

charge of exterminating Jews and other "undesirable" elements of

the population. Einsatzgruppen A was assigned to Lithuania and

other Baltic states, and its subdivision Einsatzkommando 3,

commanded by Colonel Jaeger, operated in the area including

Kaunas. The order police were much larger than the security

police, and included the 11th Reserve Police Battalion mentioned

by Dr. Hilberg.

A government exhibit indicates that in addition to

Einsatzkommando 3, a sizable contingent of Sonderkommando was

available in the Kaunas area. This exhibit, entitled "USSR

Situation Report No. 19" and dated July 11, 1941, was prepared

for the Chief of Security Police and has a section devoted to the

situation in Kaunas. In this section, the report states that "We

have retained approximately 205 Lithuanian partisans as a

Sonderkommando, sustained them and deployed them for executions

as necessary even outside the area." App. at 1861. The

availability of nearly a half-battalion of Sonderkommando

substantially undermines the conclusion that the entire 3rd

Battalion of the Schutzmannschaft was necessary to carry out the

Great Action.

In addition to this Situation Report No. 19, there is

another contemporaneously prepared document that calls Dr.

Hilberg's opinion into question. As I have noted, Colonel Jaeger

commanded the Einsatzkommando 3, the unit of German security

police assigned to the Kaunas area. Colonel Jaeger prepared a

report, the Jaeger Report, which is dated December 10, 1941, and

which refers to the Great Action and many other executions of

Jews. Colonel Jaeger there wrote the following chilling lines:

The goal to make Lithuania "Jew free"

could only be attained through the formation

of a mobile detachment with specially

selected men under the leadership of SS

Obersturmfuhrer Hamann who shared my goals

completely and who would guarantee the

cooperation of the Lithuanian partisans and

the existing civil offices.

The carrying-out of such actions is, in

the first place, a question of organization.

. . . The Jews had to be collected in one or

in several locations. Based on the numbers

[of Jews] a place for the necessary pits had

to be found and dug up. . . . The Jews were

transported to the execution site in groups

of 500 and in intervals of at least 2 km.

What difficulties and nerve-racking work that

had to be accomplished is shown in the

following random example:

In Rokiskis, 3,208 people were to be

transported 4 1/2 km before they could be

liquidated. In order to accomplish this work

in 24 hours, 60 of the 80 available

Lithuanian partisans had to be detailed for

transport duty and perimeter security. The

remainder, who had to be repeatedly relieved,

carried out the work with my men. . . .

Attempts to escape that happened here and

there were prevented entirely by my men and

with some danger to their lives. . . . Only

through skillful use of time was it possible

to carry out up to 5 actions in a week's time

and to handle the work that had accumulated

in Kaunas so that no bottlenecks occurred in

the official functions.

The actions in Kaunas itself, where

there were sufficient reasonably well-trained

partisans available, were virtually duck

shoots compared with the enormous

difficulties which were often encountered

elsewhere.

All leaders and men in my detachment in

Kaunas took an active part in the major

actions in Kaunas.

. . .

App. 1133-34.

Colonel Jaeger reports the executions of thousands of

Jews and hundreds of others in such an impersonal, matter-of-fact

manner and with such pride that his account leaves one in a

horror-driven state of shock. Nevertheless, the Jaeger Report,

as documentary evidence, is important in the present context for

a number of reasons. First, in the context of a somewhat smaller

but nevertheless substantial mass execution, it provides a

contemporary estimate of the manpower necessary to perform the

grizzly task of mass execution from a German official having

responsibility for carrying out those executions. The report

indicates that the mass execution of 3,208 people at Rokiskis was

carried out by Einsatzkommando 3 personnel with the assistance of

only 80 "Lithuanian partisans."

Second, while Rokiskis provides an example of a mass

execution with "enormous difficulties," the execution of "2007

Jews, 2,920 Jewesses, and 4,273 Jewish children" in the course of

the Great Action did not present comparable problems. App. at

1129.

Putting these two pieces of evidence together, even if

one assumes that the number of potential victims in the Great

Action would require substantially more support from "Lithuanian

partisans" than was employed in Rokiskis, Dr. Hilberg's

insistence that a minimum of 500, in addition to the

Einsatzkommando 3 personnel, seems questionable, at least in the

absence of more explanation than he was able to give.

Finally, the Lithuanian partisans who in fact

participated in the Great Action are described as "reasonably

well trained." When one puts this together with the U.S.S.R.

Special Report 19's indication that approximately 205 Lithuanian

partisans had been formed into a Sonderkommando company

specifically to be "deployed . . . for executions as necessary,"

the most likely inference is that at least a large segment of the

need for Lithuanian participants during the Great Action were met

by Lithuanians who were not from the Schutzmannschaft 3rd

Battalion. In suggesting that this is the likely inference, I am

not unmindful of Dr. Hilberg's opinion that the reference to

"reasonably well trained partisans" in the Jaeger Report meant

Schutzmannschaft personnel. The basis for that opinion, in its

entirety, is found in the following excerpt from his testimony:

In this report, Jaeger is trying to

impress his superiors. That's a very common

phenomenon in reporting. And so he, first of

all, calls attention to the difficulties and

complexities of organizing such an operation.

He refers to thorough preparation of each

individual action and knowledge of the

conditions in the area in question. . . .

He then goes into some examples of towns

and then, referring on top of page 30 of the

English translation, he says that the actions

encompass itself a little bit easier because

there were well trained partisans, as he

calls them. Now what he is referring to, of

course, is the schutzmannschaft. And the

reference to the training can be explained by

the fact that right from the start [of the

schutzmannschaft], June 28th, 1941, the call

went out for volunteers who had military

experience. In other words, these people

knew how to fire a weapon, they knew how to

hit their target. And for that reason, the

operation was, in his view, like shooting at

a parade. It was well coordinated and well

done.

App. at 277, 277-78. Dr. Hilberg's inference is a plausible one.

However, once one is aware that a group of Lithuanian partisans

had been formed and were available specifically for this purpose,

I believe another inference becomes the more plausible one.

I acknowledge that the inferences I suggest based on

the Jaeger Report and Special Report No. 19 do not constitute

clear, convincing and unequivocal evidence that Stelmokas did

notparticipate in the Great Action. He may well have participated.

It was the government's burden, however, to produce clear,

convincing, and unequivocal evidence that Stelmokas didparticipate. In my

view, it did not come anywhere close to

carrying that burden.

While the district court reached its conclusion about

Stelmokas's participation in the Great Action without reference

to his failure to testify at the trial, it noted that it believed

an inference could appropriately be drawn from that failure which

confirmed its conclusion. I agree with the district court that

the Fifth Amendment did not foreclose it from drawing a negative

inference from Stelmokas's failure to explain what he was doing

on October 28 and 29, 1941. As the Supreme Court cautioned in

Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), however, a

party's silence should not be given "more evidentiary value than

[is] warranted by the facts surrounding [the] case." Here,

Stelmokas stands accused of a number of different forms of

conduct, any one of which would warrant the revocation of his

citizenship. If Stelmokas had taken the stand and denied

participation in the Great Action, he would have subjected

himself to cross-examination that almost certainly would have

established another ground for revocation. Under these

circumstances, I do not believe any appropriate, negative

inference from silence can boost Dr. Hilberg's speculative

opinion into the realm of clear, convincing and unequivocal

evidence.

Finally, I turn to the dissent's conclusion that there

is insufficient evidence to support the district court's finding

regarding Stelmokas's guarding of the Vilijampole ghetto. In

contrast to the state of the record regarding Stelmokas's

participation in the Great Action, I find the evidence supporting

this finding to be clear, convincing, and unequivocal.

The finding at issue reads as follows:

The Court finds that the Government has

not established by clear, unequivocal, and

convincing evidence that the shootings on

September 16-17, 1941 were carried out by

either the defendant or Schutzmannschaft

members under his command. However, the

Government has established by clear,

unequivocal, and convincing evidence that

defendant was commander of the ghetto guard

for a 24-hour period commencing September 16,

1941, at 1 p.m., that Jews in the ghetto were

subject to extreme deprivation, brutality,

and arbitrary shootings during that period,

and that defendant was responsible for

enforcing the confinement of Jews in such

conditions.

On September 1, 1941, Stelmokas's Battalion Commander

entered the following order:

TO THE 3rd AUXILIARY POLICE SERVICE BATTALION

Order Number 1, Secret

Kaunas, 1 September 1941

Operations Section

§ 1.

I announce the Battalion's schedule of guard

deployments and positions:

Guard Post

Number

Guard

duties

Guard place

of

assignment

Number on

Duty

Purpose

3

Guard at

the

captured

ammunition

warehouse

Vilijampole,

VIII Fort

4

To guard

the

ammunition

warehouse

21

"Ghetto

guard"

Vilijampole,

Veliuonos

street

17

32

Not to let

a single

Jew out of

the closed

quarter

Two weeks later, on September 15, 1941, the same

Battalion Commander entered another order, section 1 of which

made the following duty assignments:

Security and service duties for 16 September

of the current year:

Battalion Duty Officer Junior Lieutenant

TAMULAITIS, VYTAUTAS

Assistant to the Duty Officer - Corporal

KVARACIEJUS

Duty Clerk at the Battalion Headquarters -

Corporate AUKSORAITIS

Guard Commander in Vilijampole - Junior

Lieutenant STELMOKAS

Guards from the 3rd Company

While this order was lengthy and dealt with a variety of

subjects, these were the only current duty assignments recorded.

The record discloses that the ghetto was located in a

section of the city called "Vilijampole" and that "Vilijampole"

was frequently used as a synonym for the ghetto. As Stelmokas

stresses, the record also indicated, however, that Fort VIII,

while in the area called Vilijampole, was not in the ghetto.

Based on this evidence, Stelmokas suggests that the order

assigning him as "Guard Commander in Vilijampole" is ambiguous --

that the assignment might have been merely to guard ammunition at

Fort VIII.

While I agree with Stelmokas that the government had

the burden of proving Stelmokas's participation in the

persecution of Jews by clear, convincing and unequivocal

evidence, his suggestion of a significant ambiguity in the record

is unpersuasive. Dr. Hilberg and the September 1st order itself

indicate that in the context of guard duty, the words "Fort VIII"

was generally included in the designation of that guard post in

order to distinguish duty there from the duty of guarding the

ghetto. More importantly, Stelmokas commanded a platoon

consisting of something over 30 men and it is far more likely

that he was given responsibility for Guard Post 21 or both Guard

Posts 21 and 3, than that he commanded only the four guards at

Fort VIII. Finally, and most importantly, the September 15th

order reports only two command assignments: the "Battalion Duty

Officer" and the "Guard Commander at Vilijampole." The

suggestion that this order would record the identity of the

commander of a four man unit at Fort VIII and omit entirely any

mention of the Guard Commander of the ghetto strikes me as too

far fetched to raise even a reasonable doubt.

United States v. Jonas Stelmokas, No. 95-1894

ALDISERT, Circuit Judge, dissenting:

Again we are faced with a denaturalization proceeding

brought by the Office of Special Investigations (OSI) against an

American octogenarian for events that took place during the Nazi

occupation of Europe more than 50 years ago. Although stripping

an American of his citizenship is a civil proceeding, the effect

is so drastic that the government's burden is "substantially

identical with that required in criminal cases--proof beyond a

reasonable doubt." Klapprott v. United States, 335 U.S. 601,

611-612 (1949).

The predicate acts that form the basis of OSI prosecutions

take place in the midst of what must be acknowledged to be the

most craven and pusillanimous crime ever sponsored by a nation--

the Holocaust effectuated by the German Third Reich in the 1930s

and 1940s. This case is no exception.

The inhuman Nazi brutality that underlies these cases makes

especially arduous our obligation to require the government's

high burden of proof, but the law commands that we do just that,

and rightly so. Indeed, faced with a backdrop of such monstrous

and inhuman past behavior, a court's responsibility in 1996 to

insure the maximum protection of the law constitutes America's

best response to the Nazi juggernaut that crushed all semblance

of justice and freedom, and millions of innocent lives a half

century ago.

The district court revoked the citizenship of Jonas

Stelmokas because he joined and served in the Lithuanian 3rd

Auxiliary Police Service Battalion in 1941. At the time, he was

a 25-year-old junior lieutenant. The court ruled in favor of the

government on six separate, but related counts. It determined

that Stelmokas: voluntarily assisted the enemy in persecuting

civil populations, particularly on September 16, 1941 and October

28-29, 1941 (Count I); voluntarily assisted German forces in

military operations against the United States and its allies

(Count II); voluntarily joined and participated in a movement

hostile to the United States (Count III); advocated or acquiesced

in conduct contrary to civilization and human decency (Count V);

lacked good moral character by virtue of his Schutzmannschaftmembership

(Count VI); and willfully misrepresented material

facts in his application for admission to the United States as a

displaced person (Count IV). I would reverse the district

court's determination on each count. Accordingly I dissent.

What we as U.S. Circuit judges know as men and women

requires us to despise the loathsome conduct of the Nazis in

World War II. Knowledge of the Third Reich's intentional

brutalization and annihilation of innocent civilians is ingrained

in our senses as a revulsion of the worst genocide of the modern

era, if not of all time. Our role as appellate judges, however,

is not to proclaim our visceral reactions to the horrors of

history. Rather, we must confine ourselves to the trial record in

this case and decide, as a dispassionate reviewing court, whether

the OSI has proved by "clear, unequivocal, and convincing

evidence which does not leave the issue in doubt" that Stelmokas

in fact committed the alleged acts and that such conduct supports

a denaturalization proceeding. Schneiderman v. United States,

320 U.S. 118, 158 (1943). This the OSI has not done.

The OSI's case against Stelmokas does not rest on direct

evidence but solely on a series of rickety inferences that do not

rise to the high level of proof demanded of the government. To

this unimpressive framework has been added what the district

court describes as adverse inferences drawn from Stelmokas'

decision to exercise his Fifth Amendment privilege to refrain

from testifying at trial. See Dist. Ct. Op. at 47. The Supreme

Court has established that a defendant's Fifth Amendment plea in

a denaturalization case constitutes the basis for adverse

inferences only to the extent those inferences are supported by

"substantial evidence manifested in the record." Baxter v.

Palmigiano, 425 U.S. 308, 317-18 (1976). The OSI's case against

Stelmokas lacks such substantial evidence and is hobbled by

several fundamental weaknesses, which together are fatal to the

OSI's attempt to meet the unusually high burden of proof

required.

First, the OSI has been unable to present even one eye-

witness to support its charges. Second, the OSI failed to

present any direct evidence or any legitimate circumstantial

evidence of participation in proscribed activity that would, as

required, logically and unerringly support an incriminating

inference. Instead, the OSI relied on as many as five layers of

inference to conclude that: (1) that Stelmokas was responsible

for confining Jews in the Kaunas, Lithuania ghetto when two Jews

were shot on September 17, 1941 and (2) he participated in the

massacre of thousands of Jews in the Grosse Aktion at the same

location on October 28-29, 1941. Third, the OSI supported its

allegations by introducing undated documents, without

accompanying testimony as to their relevance and effect on

immigration officials at the relevant times. Fourth, and

especially fatal to its case, the OSI failed to present testimony

from Displaced Persons Commission personnel or consular

officials--as it has in all similar cases--that Stelmokas' non-

disclosure of his 3rd Battalion service in fact impacted or would

have impacted the immigration officials' decision-making process

and rendered him ineligible for a visa. For these reasons, I

would reverse the district court's judgment of denaturalization.

I.

Before analyzing the specific legal questions presented

here, I must describe conditions in Europe, and particularly in

the displaced-persons camps, at the time Stelmokas applied for

his visa in July, 1949. I start with V-E Day, May 8, 1945.

Notwithstanding the presence of European nation-states, the power

to rearrange the map of Europe had passed to the United States

and the Soviet Union. Although Hitler's Reich had come to an

end, at its peak the Nazi empire had stretched from the French

port of Brest to the Caucasus and from the tip of Norway to the

border of Egypt. As part of its rampage, the Nazi war machine

smashed into Lithuania on June 22, 1941; three days later it

occupied Kaunas, what was then the Lithuanian capital.

By the end of the six-year struggle to bring down the Nazi

empire, an estimated 40 million Europeans had lost their lives--

in combat, under the bombs that obliterated cities, through

Hitler's methodical genocide, or simply from hunger, cold and

disease. At the end of the war, the state of Germany had ceased

to exist. An innumerable mass of civilians, freed prisoners and

the first waves of 13 million refugees from Eastern Europe

wandered the country. Nearly eight million Germans were

homeless. People bartered household necessities for food and

clothing, often subsisting on little more than 1,000 calories a

day.

The onset of a chill between the Soviets and the Western

allies sealed the division of the country between two hostile

occupation zones. By 1947 it was becoming clear that Stalin had

no intention of fulfilling his promise, made to Roosevelt and

Churchill at Yalta, to hold free elections in Poland. Where the

Red Army stood, Soviet power reigned, straining westward. A

Communist insurgency, supported from bases in Bulgaria, Albania

and Yugoslavia, threatened the vulnerable British-backed monarchy

in Greece. Soviet pressure mounted against Turkey for control of

the Black Sea straits.

Such was the political climate surrounding the displaced-

persons camps when Stelmokas applied for his visa in 1949 at

Hamburg, Germany. Refugees were caught in a vicious political

struggle between the two superpowers. With American and Soviet

diplomatic armies posturing eyeball-to-eyeball, the de factodivision of

Germany already had taken place. The die having been

cast in both the west and the east by the occupying armies,

Central Europe remained the primary political battleground for

almost a decade after V-E Day.

It is against this complex and volatile political background

that I consider the legal issues arising from Stelmokas' visa

application. Indeed, the facts underlying the legal issues must

be viewed as they existed in the harsh environment of a battered

and shattered post-war Europe, not as they might be viewed from

the cozy environment of a 1996 federal courtroom.

I agree with the government that the wartime Lithuanian and

German documents generated in Lithuania and obtained by the OSI

from archives are admissible. However, I question whether these

documents alone are sufficient to support the government's high

burden of proof.

II.

I turn first to Count I, the linchpin of the government's

entire case against Stelmokas. In Count I the government alleges

that Stelmokas voluntarily assisted the Nazis in persecuting

civilian populations. The OSI anchors this contention on the

events of September 16-17, 1941 and October 28-29, 1941.

A. September 16-17, 1941

I accept that Order #10 of the 3rd Auxiliary Police Service

Battalion, dated September 15, 1941, indicates that "Junior

Lieutenant STELMOKAS" was detailed as "Guard Commander in

Vilijampole." A1316. From this, and from evidence that two Jews

were killed in the Kaunas ghetto between September 16 and 17,

1941, the district court reached the following conclusion:

The Court finds that the Government has not established

by clear, unequivocal, and convincing evidence that the

shootings on September 16-17, 1941 were carried out by

either the defendant or Schutzmannschaft members under

his command. However, the Government has established

by clear, unequivocal, and convincing evidence that

defendant was commander of the ghetto guard for a 24-

hour period commencing September 16, 1941, at 1 p.m.,

that Jews in the ghetto were subject to extreme

deprivation, brutality, and arbitrary shootings during

that period, and that defendant was responsible for

enforcing the confinement of Jews in such conditions.

F.F.60

A conclusory inference predicated on a clear and narrowly

established fact might have been sufficient to inculpate

Stelmokas. However, an inference teased from a series of other

inferences may not substitute for hard evidence where the

government's burden is so high. And that is the extent of the

government's case and that is also why the district court found

that "the government has not established by clear, unequivocal,

and convincing evidence that the shootings on September 16-17,

1941 were carried out by either the defendant or Schutzmannschaftmembers

under his command." F.F. 60. The district court went

further, however, and concluded that Stelmokas was commander of

the ghetto guard and enforced confinement of Jews in horrible

conditions. Because the government did not meet its high burden

of proving these aspects of its allegations, the district court

erred.

1.

Unlike virtually every other case prosecuted by the Office

of Special Investigations, here no direct evidence shows that

Stelmokas confined Jews to the ghetto during the days in

question. Indeed, the direct evidence presented in this case is

limited to the following: That deployed in the Kaunas, Lithuania

area were at least two Lithuanian army units under the control of

the Nazis--the 3rd Auxiliary Police Service Battalion (also

described hereafter as Schutzmannschaft), in which Stelmokas was

an officer, and a Sonderkommando company of approximately 205

Lithuanian partisans, in which Stelmokas was not a member; that

Stelmokas was listed as "Guard Commander in Vilijampole" of the

3rd Battalion; that shootings of Jews in the ghetto by Nazis and

Lithuanians frequently occurred; and that two Jews were killed

in the ghetto on September 17.

It is uncontradicted that "Vilijampole" was a neighborhood

containing not only the ghetto, but also surrounding areas

including Fort VIII, which was situated 100 meters or more from

one border of the ghetto. It bears repeating that although

Stelmokas is accused of commanding the Vilijampole guard on this

day, there is no direct proof that he commanded the ghetto guard

and was responsible for enforcing the confinement of Jews in the

ghetto. We are left to infer that a single written order that

Stelmokas was "Guard Commander in Vilijampole" demonstrates that

the 3rd Battalion, and not the Sonderkommando company, was the

ghetto guard on this day. We are left to speculate whether the

3rd Battalion was not merely assigned to guard adjacent areas,

including bridges, warehouses, ammunition depots etc. A518-A519.

The evidence leaves unanswered the question of whether the unit

patrolled parts of the Vilijampole neighborhood that did not

include the ghetto--an area that also encompassed non-Jewish

residences, businesses and an ammunition warehouse--the ghetto

itself, or both. To repeat, there was no direct evidence

supporting the district court's determination and the quality of

circumstantial evidence was so inferior that it did not satisfy

the government's high burden of proof.

No evidence supported the district court's conclusion other

than the fact that Stelmokas was assigned as "Guard commander of

Vilijampole" at the time two Jews were killed in the ghetto. No

evidence, beyond his assignment, indicated that he in fact served

with, or commanded, the ghetto guard. No evidence demonstrated

that Stelmokas engaged in the conduct or duties the district

court attributed to ghetto guards generally. F.F. 49-60.

2.

Alternatively, even if there was sufficient evidence to show

that Stelmokas served with the ghetto guard, the district court

failed to heed the teaching of Fedorenko v. United States, 449

U.S. 490, 512 n. 34 (1981) ("The solution to the problem...lies,

not in 'interpreting' the Act to include a voluntariness

requirement that the statute itself does not impose, but in

focusing on whether the particular conduct can be considered

assisting the persecution of civilians. Thus, an individual who

did no more than cut the hair of female inmates before they were

executed cannot be found to have assisted in the persecution of

civilians."). The cases that interpret Fedorenko in the context

of Nazi occupations, for the most part, emphasize the distinction

between active and passive collaboration with the Nazis. Of

necessity, each case is fact specific and turns on the particular

evidence in the case. In United States v. Koreh, 59 F.3d 431 (3d

Cir. 1995), for example, we concluded that the defendant who had

served as editor of pro-Nazi newspapers containing many anti-

Semitic articles assisted in the persecution of Hungarian Jews

through his activities. In United States v. Sprogis, 763 F.2d

115 (2d Cir. 1985), a case dealing with military or constabulary

activity under Nazi direction, with facts more onerous than those

in the case at bar, affirmed the denial of the denaturalization

complaint brought by OSI.

The court in Sprogis emphasized the difference between

active participation in hostile acts against civilians and

passive accommodation of the Nazis. The defendant Sprogis

admittedly served as a member of the local Latvian police,

sometimes used by Nazis "to locate, arrest, guard, transport or

execute Jews, and to confiscate their property." Id. at 117.

Sprogis testified that he voluntarily joined the police force.

Sprogis was Assistant Precinct Chief and eventually Police Chief.

Id. at 118. Sprogis conceded he signed and prepared certain

documents admitted into evidence demonstrating that he paid

farmers to transport Jews to camps for confinement and

persecution, of which he was aware. Id. He testified he was "the

highest ranking officer" present at a police station where nine

Jews were "forcibly detained." He conceded, and later

contradicted his concession, that he "ordered other policemen to

guard the prisoners." Id. at 119. Sprogis was in Litene on the

day 200 Jews were executed en masse and contended he was there at

the insistence of the district police chief and "only to witness,

on behalf of the police," the execution of a photographer.

Sprogis testified that as he was leaving Litene he saw 100 to 150

prisoners marching toward the camp where the photographer had

been executed. Testimony by other witnesses indicated that

"Sprogis, at the direction of the Nazis, ordered the arrest of

all Jews in the area. . . . that the [police force of which he

was a part], including Sprogis, participated in transporting and

guarding approximately 200 Jews just prior to their execution . .

. ." Id. at 120.

As in the case at bar, in Sprogis the government sought

denaturalization under 8 U.S.C. §§ 1451(a) and 1427, with

allegations grounded in § 10 of the Displaced Persons Act

("DPA"). The government claimed Sprogis' citizenship was

"illegally procured" because he failed to disclose in his

immigration papers that he assisted in persecuting Soviet

prisoners of war, Jews and other civilians while a Latvian police

officer. The government also asserted that his citizenship was

procured through misrepresentations concerning his participation

in persecution.

Confronted with such evidence, the court affirmed the

district court's conclusion and stated:

to prevail under any of its theories, the

government had to show that Sprogis assisted in

the persecution of Jews or other civilians and

that the government had not satisfied its

substantial burden of proving that assistance by

'clear, unequivocal, and convincing' evidence

which does 'not leave the issue in doubt.'

Sprogis, 763 F.2d at 120 (citing Fedorenko v. United States, 449

U.S. 490, 505 (1981), and quoting Schneiderman v. United States,

320 U.S. 118, 125 (1943)). The court reiterated the district

court's finding of "no credible evidence that Sprogis personally

arrested or ordered the arrest of a Jew or walked the streets . .

. with the demeanor of a uniformed or armed conqueror . . . he

performed the duties of an ordinary police officer." Sprogis, 763

F.2d at 120-21. The court stated:

Finally, he was present at the police station during the

detention of the prisoners and he allowed their

incarceration to continue. However, these were not acts of

oppression. They do not amount to the kind of active

assistance in persecution which the DPA condemns.

Id. at 122, (citing Laipenieks v. I.N.S. 750 F.2d 1427, 1432 (9th

Cir. 1985) (assistance in persecution under 8 U.S.C. §

1251(a)(19), a companion statute to the DPA, requires "proof of

personal active assistance or participation in persecutorial

acts")).

The court of appeals further noted that in each of even the

less-than-clear cases of assistance in persecution, "the

individual condemned as a persecutor had actively participated in

some act of oppression directed against persecuted civilians."

Id. at 122. The court went on to acknowledge Sprogis' passive

accommodation of the Nazis, but stated,

There is no clear evidence that he made any

decision to single out any person for arrest and

persecution or that he committed any hostile act

against any persecuted civilian. Sprogis' passive

accommodation of the Nazis, like that of so many

other civil servants similarly faced with the

Nazis' conquest of their homelands and the horrors

of World War II, does not, in our view, exclude

him from citizenship under the DPA.

Id.

The district court's conclusion that the government

established by clear, unequivocal, and convincing evidence that

defendant was commander of the ghetto guard during the relevant

period and thereby responsible for enforcing confinement of Jews

is based only upon the fact that he was "assigned" as "Guard

Commander in Vilijampole." Even if such a conclusion were

supported by the evidence, and I do not believe it was, it would

be insufficient grounds on which to denaturalize a citizen under

the reasoning of Sprogis. Accordingly, the evidence regarding

Stelmokas' conduct on September 17, 1942 was not sufficient to

sustain the district court's conclusion in Count I.

B. October 28, 1941

During the Grosse Aktion of October 28-29, 1941, more than

9,000 Jews were massacred in Kaunas, Lithuania. The OSI contends

that Stelmokas participated in this slaughter, again on the basis

of very limited direct evidence. The only direct evidence is

that two witnesses stated in 1994, drawing upon their childhood

memories 54 years past when they were 12 and 14 years of age,

that they recall seeing men in Lithuanian army uniforms

participating in the massacre. The record indicates that these

Lithuanian soldiers could have been members of either the

Sonderkommando company or the 3rd Battalion. No evidence

confirms that these Lithuanian soldiers were members of the 3rd

Battalion, of which Stelmokas was a member, or that he

participated in any massacre. Yet because a large number of Jews

was involved, Dr. Raul Hilberg, the OSI's expert witness,

concluded that the Nazis must have needed help to do their

killing and that Stelmokas must have participated in the

massacre. In so doing, Dr. Hilberg pieces together a rather

tenuous inferential chain:

Facts: Thousands of Jews were slaughtered in the ghetto on

October 28, 1941; two eye-witnesses testified 54 years later that

soldiers wearing Lithuanian uniforms participated. Such soldiers

could have been members of the Sonderkommando or the

Schutzmannschaft.

First Inference: Because many Jews were killed on that

date, the Nazi occupiers must have had insufficient numbers to

conduct the operation themselves.

Second Inference: Being unable to conduct the operation

themselves, the Nazis must have ordered Lithuanian uniformed

soldiers to assist.

Third Inference: Because the Nazis had to enlist such help,

and because two eye-witnesses testified that they saw men in

Lithuanian uniforms, the 3rd Battalion must have been one of the

two Lithuanian army units commanded by the Nazis to assist. This

is either a non sequitur or an invalid disjunctive syllogism.

Fourth Inference: Because the Nazis had to enlist the 3rd

Battalion, all battalion officers must have participated.

Fifth Inference: Assuming that the 3rd Battalion was the

group ordered by the Nazis to assist (Inference Three), and that

officers in that battalion participated (Inference Four), then

Stelmokas, as an officer, must have participated.

The ultimate inference urged by the OSI is that Stelmokas

participated in the Grosse Aktion. For an inference to be

legitimate, as set forth in note 3 ante, the reasoning upon which

it rests must pass from some evidentiary fact (the datum) to a

conclusion related in some way to that evidentiary fact and

accepted only because that fact has been established. Here,

however, the conclusion (Stelmokas participated) is not directly

related to the datum (many Jews were killed by soldiers and some

soldiers wore Lithuanian army uniforms). Instead, the conclusion

requires that one meander through four other inferences to reach

the datum. One cannot make this stretch in the law, piling

inference on inference on inference, and still meet the high

burden of "clear, unequivocal, and convincing evidence which does

not leave the issue in doubt."

That men in Lithuanian uniforms were allegedly present

simply cannot support the bold conclusion that these men must

have been members of the 3rd Battalion, let alone that one of

these men must have been Stelmokas. The men in Lithuanian

uniforms very well could have been members of the Sonderkommando

company. A comparable chain of quintuple inferences such as that

relied upon by the government and district court in this case,

could not, as a matter of law, support a charge of shoplifting,

let alone bolster the revocation of a petitioner's citizenship--a

punishment tantamount to exile or banishment. Accordingly, I

agree with Judge Stapleton and I accept his analysis in the

concurring opinion that the government did not meet its high

burden of proof that Appellant participated in the Grosse Aktion

of October 28-29, 1941.

For the reasons presented above, I would reverse the court's

determination on Count I.

III.

In Count II the government alleges that Stelmokas was

ineligible for a visa because he voluntarily assisted the enemy

forces in their operations against the United Nations. The heart

of this contention is that a finding of mere service in the 3rd Battalion

(Schutzmannschaft) and in the 91st Light Flak

Replacement Unit of the German Army was sufficient to meet the

government's high burden of proof required for

denaturalization. I find this argument unpersuasive for two

reasons.

First, the government relies on part II of the International

Relief Organization (IRO) Constitution, incorporated into the

Displaced Persons Act. That provision precludes certain people

from being considered for naturalization as follows.

Persons who will not be the concern of the organization:

2. Any person who can be shown:

. . . .

(b) to have voluntarily assisted the enemy forces since the

outbreak of the second world war in their operations against

the United Nations.

D.P.A. § 2(b), Pub. L. 80-774, ch. 647, 62 Stat. at 1009

(incorporating IRO Constitution, Annex I, Part II). An

explanatory regulation later adopted by the Displaced Persons

Commission (DPC) interprets "operations against the United

Nations" as follows:

[Anyone who] has voluntarily borne arms in armed forces or

auxiliary organizations against the United States or its

Allies on the Western Front (including North Africa and

Italy) during that period of World War II beginning December

8, 1941; a person shall not be deemed so to have served

voluntarily if he establishes that he was compelled against

his will to serve in the armed forces or auxiliary

organizations, against the United States or its Allies on

the Western Front.

8 C.F.R. § 702.8(f) (my emphasis). The 3rd Battalion served in

the occupied Baltic countries, not on the Western Front, and the

complained of activities took place before December 7, 1941.

Therefore, Stelmokas does not appear to be in that category of

persons who assisted the enemy in military operations against the

United States or its Allies in the Western Front.

Moreover, commentary to the IRO Constitution provides:

Mere continuance of normal and peaceful duties, not

performed with the specific purpose of aiding the enemy

against the Allies or against the civil population of

territory in enemy occupation, shall not be considered to

constitute "voluntary assistance."

IRO Constitution, Annex I, Part II, 62 Stat. 3037, 3052.

At trial, direct testimony was adduced that normal 3rd

Battalion duties included guarding stationary installations such

as bridges, warehouses, government buildings, peatbogs,

ammunition depots and communications facilities. A283-284.

Official interpretations of Section 2(b) of the IRO Constitution,

especially those limiting improper activities to those performed

on the Western Front, required the OSI to produce more evidence

than mere membership in a military or constabulary unit to

support its contention in Count II. See also the discussion in

Part IV, post, exempting from "movement which is or has been

hostile to the United States" service in military forces or local

constabularies. Under these circumstances I would hold that the

government failed to produce sufficient evidence to sustain Count

II.

IV.

In Count III the government charges that Stelmokas

participated in a movement hostile to the United States. The

district court concluded that mere participation in the 3rd

Battalion was sufficient to warrant denaturalization and that the

government met its burden by demonstrating that Stelmokas

volunteered to serve in the 3rd Battalion, a LithuanianSchutzmannschaft,

an organization on the U.S. government's

Inimical List. On this issue, I find unavailing both the

government's argument and the district court's conclusion.

Although the government placed an Inimical List in evidence,

A1644, it presented no evidence that mere membership in any

organization on the List was sufficient to deny an applicant a

visa. Indeed, in addressing "the materiality issue or rejections

under the inimical list," OSI trial counsel represented to the

district court that it was necessary to present "the testimony of

someone who was--who operated or applied it . . . ." A723. The

district court made clear that explanatory testimony was

mandatory: "It seems to me, with the list and with someone

explaining how the list was utilized at the time of Mr.

Stelmokas' application, yes, the answer is, it might [be

relevant]." Id. This exchange clearly demonstrated the need for

official explanation of how the List would have applied to

persons seeking displaced-persons status.

Yet no such explanatory testimony was forthcoming. The only

evidence introduced was an Inimical List in the nude. Although

Appellant's counsel stipulated that it was an Inimical List and

in effect at the relevant times, he did not stipulate that the

DPC or the Consular Service would deny visas on the basis of mere

membership in an organization on the List. More important, the

record is totally barren of testimony from any witness that

membership in the Schutzmannschaft, in and of itself, would have

been sufficient to deny displaced-person status in 1949.

Further, the federal regulation which governs § 13 of the

Displaced Persons Act limits the disqualification of applicants

for displaced-persons status to any person who:

(d) Is or has been a member of or participated in any

movement which is or has been hostile to the United States

or the form of government of the United States; such a

movement includes but is not limited to the communist, Nazi

or Fascist parties or political or subversive groups of an

ideological character similar to that of the aforementioned

parties; . . . .

8 C.F.R. §702.8(d) (my emphasis). By cable dated April 20, 1949,

Secretary of State Dean Acheson interpreted "movement" in § 13 of

the Act not to include military forces or local constabularies.

Appellant's Br., Exhibit A. Significantly, at the time Stelmokas

made his application in July, 1949, the Secretary of State's

directive was in full force and effect. Given that the 3rd

Battalion operated very much as the local constabulary,

Stelmokas' membership in that organization should not for

purposes of § 13 be construed as membership in a "movement"

hostile to the United States and its allies.

The government failed to produce testimony describing how

the List was used. There is not a smidgeon of evidence to

indicate that mere membership in an organization named on the

Inimical List was a sufficient basis on which to deny Stelmokas'

visa application. Moreover, Secretary Acheson's interpretation

of "movement" indicates that Stelmokas' membership in the 3rd

Battalion, a military force or constabulary, was not sufficient

to trigger disqualification for displaced-persons status under

the Displaced Persons Act. Accordingly, the government has

failed to meet its high burden of proving that Stelmokas, by mere

membership in a local military or constabulary organization,

voluntarily participated in a movement hostile to the United

States. I would therefore reverse the court's conclusion on

Count III.

V.

At the time of Stelmokas' immigration in July, 1949, U.S.

State Department regulations prohibited issuing visas to any

alien "who has advocated or acquiesced in activities or conduct

contrary to civilization and human decency on behalf of the Axis

countries." 22 C.F.R. § 53.33(j). In Count V the government

alleges that under this regulation Stelmokas was ineligible for a

visa. The government contends that he was ineligible first,

because he failed to leave the 3rd Battalion and second, because

he persecuted civilians on September 16-17 and October 28-29,

1941. I will address these arguments in turn.

The district court determined that Stelmokas' "failure to

leave the Schutzmannschaft or to act on behalf of the Jews

constituted acquiescence in conduct contrary to civilization."

The court thus concluded that the government had met its burden

on Count V. Dist. Ct. Op. at 55-56. The court erred. More than

mere membership in the Schutzmannschaft is necessary to prove

conduct contrary to civilization and human decency. Indeed, the

Supreme Court teaches that mere membership is not enough and that

there must be proof of actual participation in such conduct. The

Court "focusing on whether particular conduct can be considered

assisting in the persecution of civilians." Fedorenko v. United

States, 449 U.S. 490, 512-513 n.34 (1981). Although it is

undisputed that Stelmokas was a member of the 3rd Battalion, the

record provides no evidence that he participated in conduct that

amounted to persecution of civilians. It is conduct in an

organization, not mere membership, that determines culpability.

The government contends in Count V that Stelmokas acquiesced

in conduct contrary to human decency by participating in the

persecution of Jews on September 16-17 and October 28-29, 1941.

As I have indicated in my discussion in Part II, the government

did not meet its high burden of proving that Stelmokas actually

participated in persecuting Jews on these dates. Professor

Hilberg's testimony is significant in this respect: "I did not

see in any of the sequence of documents . . . anything that would

indicate [sic (implicate?)] Stelmokas directly in the arrest,

killing of Jews, but he is in the company in which these things

are going on." A626. Passive accommodation of the Nazis, as

distinguished from personal, active assistance in persecution,

does not constitute conduct contrary to civilization and human

decency. Fedorenko, 449 U.S. at 512-513 n.34. See also United

States v. Sprogis, 763 F.2d 115, 122-123 (2d Cir. 1985); Ofsua v.

McElroy, 933 F. Supp. 237, 243-244 (S.D. N.Y. 1995.)

The government has not demonstrated that Stelmokas' mere

membership in the 3rd Battalion constituted advocacy of, or

acquiescence in, conduct contrary to civilization. Moreover, the

record is devoid of any competent or persuasive evidence that

Stelmokas played a role in the persecution of Jews in September

and October, 1941. Thus, on Count V the government has failed to

meet the high burden of proof required for denaturalization.

Accordingly, I would reverse the district court's determination

on this issue.

VI.

In Count VI the government charges Stelmokas with illegally

procuring his citizenship because his membership in the 3rd

Battalion and his participation in the persecutions of September

and October, 1941 showed a lack of good character. The district

court found in favor of the government on the basis of Stelmokas'

voluntary enlistment in the Schutzmannschaft and direct

assistance and participation in the persecution of Jews in

Lithuania. The court concluded that these factors establish a

lack of good moral character. Dist. Ct. Op. at 56-57.

As I previously set forth in Part II, the government failed

to prove that Stelmokas was voluntarily and directly involved in

the persecution of Jews in September and October 1941. Moreover,

this court recently affirmed a district court's conclusion that

determination of a person's moral character must rely on

something more than superficial evidence of a person's status or

title:

[T]he very essence of meaningfully determining a person's

moral character is not simply to look at their status or

title . . . but to examine the actor's conduct and the

circumstances surrounding it. We refuse to revoke

citizenship by finding that a person prima facie lacks good

moral character simply because he held the title of

concentration camp guard without some further showing that

the person engaged in some morally reprehensible conduct and

did so voluntarily.

United States v. Schiffer, 831 F. Supp. 1166, 1199 (E.D. Pa.

1993), aff'd 31 F.3d 1175 (3d Cir. 1994.) Absent evidence of any

illegal conduct and based on nothing more than Stelmokas' mere

membership in the 3rd Battalion, the government could not prove

and the district court improperly concluded that he lacked the

good moral character required for citizenship. Accordingly, the

court erred in granting judgment to the government on Count V.

VII.

In Count IV the government alleges that Stelmokas' order and

certificate of naturalization should be revoked

on the ground that such order and certificate of

naturalization were illegally procured or were procured by

concealment of a material fact or by willful

misrepresentation.

8 U.S.C. § 1451 (a). In its complaint the government contended

"that in failing to list his wartime residences and occupation,

Stelmokas made a willful and material misrepresentation when

applying for Displaced Person status as defined in § 10 of the

Displaced Persons Act." Compl. ¶¶ 57-58, 62. The contention was

an attempt to prevail on the "procured by" clause of § 1451(a),

but the district court found against the government on that

claim. See note 1, ante. The court found in favor of the

government's claim brought under the "illegally procured" clause,

concluding that:

Defendant's misrepresentations and concealments to the DPC

and the U.S. vice-consul were material because they

concealed the fact that defendant had assisted the enemy in

the persecution of civilians, had voluntarily assisted the

military operations of the Axis powers, and had been a

member of a movement hostile to the United States and

its form of government.

Conc. Law 32.

From this the court concluded that Stelmokas was ineligible

to immigrate pursuant § 10 of the DPA; that such ineligibility

rendered his entry unlawful; and because his entry was unlawful,

"his naturalization as a United States citizen on April 11, 1955

was illegally procured." Conc. Law 33.

The government's reliance on the "illegally procured" clause

must not be evaluated in a vacuum. The district court's ultimate

determination is the conclusion of a polysyllogism with many

premises omitted. The polysyllogism begins with a major premise

stating that §10 of the DPA barred from immigration any person

who willfully misrepresented material facts in order to gain

entry as a displaced person. The argument next contends that

Stelmokas made misprepresentations and because the

misrepresentations were material, he was ineligible for entry;

therefore, Stelmokas' actual entry was unlawful and his

naturalization "illegally procured." The critical inquiry is

whether the government met its important threshold burden of

proving a misrepresentation as defined in the Displaced Persons

Act.

A.

Our starting point is the statute:

Any person who shall willfully make a misrepresentation for

the purpose of gaining admission into the United States as

an eligible displaced person shall thereafter not be

admissible into the United States.

D.P.A. § 10, Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948).

When Stelmokas applied for citizenship in 1949, eligibility

investigations and reports were made only by the Displaced

Persons Commission (DPC). The Commission defined

misrepresentation for the purpose of § 10 of the Act:

Misrepresentation. "Misrepresentation for the purpose of

gaining admission into the United States" refers to a

willful misrepresentation, oral or written, to any person

while he is charged with the enforcement or administration

of any part of the Displaced Persons Act, of any matter

material to an alien's eligibility for any of the benefits

of the said Act.

8 C.F.R. § 700.11. It is not disputed that Stelmokas

misrepresented his wartime residences and occupation. Thus, the

first inquiry is whether those misrepresentations met the legal

standard of materiality.

The Supreme Court established the current test in Kungys v.

United States:

[A] concealment or misrepresentation is material if it `has

a natural tendency to influence or was capable of

influencing, the decision of' the decision making body to

which it was addressed . . . We hold, therefore, that the

test of whether Kungys' concealments or misrepresentations

were material is whether they had a natural tendency to

influence the decisions of the Immigration and

Naturalization Service.

485 U.S. 759, 770-772 (1988)(citing, inter alia, Weinstock v.

United States, 231 F.2d 699, 701-02 (D.C. Cir. 1956). I concede

that Stelmokas' failure to disclose his wartime military status

would have had a natural tendency to influence immigration

decisions. However, as the Court made clear in Kungys and United

States v. Gaudin,___ U.S. ___, 115 S.Ct. 2310, 2319 (1995),

materiality is a mixed question of law and fact. As in all mixed

questions, the definition of the legal component must come first,

followed by a presentation of facts against which the legal

component must be measured.

In denaturalization cases, equally important to establishing

a material statement is the presentation of evidence that the

misrepresentation procured the order and certificate of

naturalization. See Gaudin, 115 S.Ct. at 2314. This is the

factual component of the mixed question. Establishing at least a

modicum of evidence on the procurement element is essential to

the government's burden of proof.

In Kungys, a prototype of OSI prosecution, the defendant

twice misrepresented his date and place of birth: once in 1947,

when applying for a visa, and again in 1954, when petitioning for

naturalization. The Court approved dismissal of the government's

complaint against Kungys because misrepresentations about his

place of birth, wartime occupations and residence were not shown

to be unequivocally material. In addition to being required to

demonstrate materiality as a matter of law, i.e., that a material

statement was made, the government was obligated to demonstrate

that Kungys' citizenship status was procured by his material

misrepresentations. The Government seems to ask this court to

apply different meanings to the term "procured" in the two

clauses of § 1451(a).

The government suggests that it has different ultimate

burdens depending on whether "procured" applies to

naturalizations that are "illegally procured" or to those

"procured by concealment of a material fact or by willful

misrepresentation." There is no rational support for the

suggestion that Congress intended such an anomalistic reading of

the same word in the same section of the same statute. There is

absolutely no rational support for the notion that the government

is not required to produce evidence showing precisely how

Stelmokas was "unlawfully admitted" and whether his

naturalization was in fact "illegally procured." If under the

second clause in § 1451 the government must show that the

naturalization was "procured by" the alleged misrepresentation,

as the Court held in Kungys, then under the first clause

certainly the government must demonstrate that Stelmokas was

ineligible and therefore unlawfully admitted.

The traditional procedure by which the government has shown

ineligibility, used in every case it has brought excepting this

one, is to proffer testimony that the applicant's naturalization,

or Displaced Persons status, resulted from the alleged

misrepresentations. Even if we do not require the government to

prove the visa or naturalization certificate would not have been

granted but for the misrepresentations, until today courts have

not permitted the government to proceed without any evidence

whatsoever on the question of whether the misrepresentations

procured the applicant's citizenship.

Indeed, the combined opinions of Justices Scalia and Brennan

in Kungys, and Justice Scalia's opinion for a unanimous court in

Gaudin, indicate that the government must establish by factual

evidence how immigration officials interpreted and administered

the immigration law during the period in question. The

government must show not only that the misrepresentation would

have a "natural tendency to influence" the DPC analyst's

decision, but also that the misrepresentation did in fact

influence that decision. Thus, Justice Scalia's opinion for the

Kungys Court points out that § 1451(a) of the denaturalization

statute contains four independent requirements:

the naturalized citizen must have [1] misrepresented or

concealed some fact, [2] the misrepresentation or

concealment must have been willful, [3] the fact must

have been material, and [4] the naturalized citizen

must have procured citizenship as a result of

misrepresentation and concealment.

485 U.S. at 767 (my emphasis).

The requirements above must similarly be established in this

case to prove the § 10 Displaced Persons Act allegations made by

the government. The repeated use of the word "procured" in both

grounds for revoking naturalization under § 1451 makes clear

Congress' intent to impose on the government the fourth

requirement--that some nexus be established between the

misrepresentation or unlawful conduct and the applicant's receipt

of the naturalization certificate--regardless of the clause under

which the government files suit.

I have acknowledged that the first three of the Kungysrequirements

were met here. In view of the Court's definition of

materiality, Stelmokas' misrepresentations were material to the

extent that they had "a natural tendency to influence the

decisions." Id. at 768. The critical lack of proof in this case

lies with the fourth requirement--that the misrepresentations

did, in fact, result in ineligibility. Without this critical

factual base, the argument may not properly proceed to subsequent

prosyllogisms and episyllogisms culminating in "unlawfully

admitted" and "illegally procured."

The fourth requirement was not controverted in Kungysbecause the

government produced the testimony of Ambassador

Seymour Maxwell Finger, a former vice-consul at Stuttgart,

Germany, who described how immigration officials had interpreted

and administered the immigration law during the period in

question. See United States v. Kungys, 793 F.2d 516, 530-31 (3d

Cir. 1986). Justice Brennan, who furnished the fifth vote for

the majority in Kungys, emphasized in his concurring opinion that

such testimony was essential. 485 U.S. at 783. Thus, the

precise holding in Kungys was that only after presentation of a

prima facie factual case and a demonstration of materiality was

the government entitled to a presumption that the applicant was

ineligible for citizenship. Justice Brennan's concurrence

eloquently articulates his concern that the "precious right" of

citizenship not be revoked unless the government has met its full

evidentiary burden:

I agree with this construction of the statute. I

wish to emphasize, however, that in my view a

presumption of ineligibility does not arise unless the

Government produces evidence sufficient to raise a fair

inference that a statutory disqualifying fact actually

existed. It is this fair inference of ineligibility,

coupled with the fact that the citizen's

misrepresentation necessarily frustrated the

Government's investigative efforts, that in my mind

justifies the burden-shifting presumption the Court

employs. Evidence that simply raises the possibility

that a disqualifying fact might have existed does not

entitle the Government to the benefit of a presumption

that the citizen was ineligible, for as we have

repeatedly emphasized, citizenship is a most precious

right, . . . and as such should never be forfeited on

the basis of mere speculation or suspicion.

Id. at 783 (citation omitted).

Fatal to the OSI's argument in the case before us is the

government's failure, in Justice Brennan's words, to "produce

evidence sufficient to raise a fair inference of ineligibility."

Id. The absence of factual evidentiary support regarding

ineligibility based on Stelmokas' statements renders wholly

speculative the conclusion that such misrepresentations led to an

unlawful admission to the United States and ultimately illegally

procured his naturalization.

I find no inconsistency between the teachings in the

opinions of the Court in Kungys and Gaudin, both authored by

Justice Scalia. In Kungys, a denaturalization case involving the

second "procured by" clause of § 1451, the Court required

presentation of factual evidence that "the naturalized citizen

must have procured citizenship as a result of misrepresentation

or concealment." 485 U.S. at 767. It follows inexorably that

when relying on the "illegally procured" clause, the government

must also present evidence demonstrating that the admittee was

ineligible for admission. In Gaudin the Court stressed the

necessity of developing the factual basis of "materiality" and

emphasized that materiality is "a mixed question of law and fact

[in which a characterization] for one purpose does not govern its

characterization for all purposes." 115 S.Ct. at 2319.

Similarly, the Court in Kungys stressed the importance of

presenting facts on the issue of illegal procurement of

citizenship by referring to the testimony of Ambassador Finger on

how immigration officials interpreted and administered

immigration law during that period. Making reference to this in

Gaudin, Justice Scalia described Kungys as an example where "the

appellate court's newly asserted standard of materiality could be

applied to the facts [of materiality] by the appellate court

itself, instead of requiring remand to the District Court for

that application." Id. at 722; 115 S.Ct. at 2314.

In every successful OSI prosecution that I have researched,

the government raised this fair inference by presenting evidence

in two discrete respects: (1) evidence detailing wartime

activities of the defendant; and (2) testimony from appropriate

U.S. officials that had these activities been known to the

Displaced Persons Commission analysts, the defendant's

application would have been denied or subjected to additional

investigation. Indeed, every OSI prosecution that I researched

contained testimony by officers of the Displaced Persons

Commission, consular officers or both describing the effect that

a particular misrepresentation would have had on the analysts

examining the application. This essential testimony sets forth

whether the authorities would have granted, denied, or referred

the application for further investigation, and it sets forth a

prima facie case on whether the applicant's alleged

misrepresentations procured the visa and naturalization decisions

made by the officers.

In the leading Supreme Court cases that inform our

denaturalization jurisprudence, the OSI presented witnesses who

testified that the visa would not have been issued had the true

facts been known. In Fedorenko, vice consul Kempton Jenkins

testified that the petitioner's service as an armed guard made

him ineligible for a visa. Fedorenko, 449 U.S. at 498-99. As

discussed above, in Kungys, Ambassador Finger described how

immigration officials interpreted and administered the

immigration law during the relevant period. Kungys, 793 F.2d at

530-531. Clearly the Supreme Court has underscored the necessity

for "testimony about how the Act was interpreted by the officials

who administered it." Fedorenko, 449 U.S. at 511.

In short, in every prosecution brought by the OSI that I

researched, including the Supreme Court decisions central to our

jurisprudence in denaturalization matters, the OSI presented

evidence not only that the alleged misrepresentations had a

natural tendency to influence, but also that they did in fact so

influence the visa decision--i.e., that the visa was procured by

the applicant's misrepresentations. Such evidence was starkly

absent in the present matter and this absence is fatal to the

OSI's argument that Stelmokas' naturalization was "unlawfully

procured."

My personal research may be faulted. Therefore, at oral

argument I asked counsel for the OSI to examine the records of

his office to determine whether any other OSI prosecutions have

been presented without testimony by a representative of the

Displaced Person Commission, the International Relief

Organization or the consular service as to the effect of the

misrepresentation on the applicant's procurement of citizenship.

Counsel responded, "I will send you a letter one way or another,

Judge Aldisert." Although the government's counsel filed a

supplemental brief following oral argument, the brief did not

supply the information requested by the court. Thus, I will draw

the appropriate inference.

B.

I have conceded that Stelmokas' misrepresentation of wartime

activities would have had the "natural tendency to influence the

decision" of DPC officials. Therefore, the government met its

burden of setting forth the legal component of the mixed

materiality question. However, the government has not met its

high burden of proof in this case because it failed to produce

evidence that Stelmokas' misrepresentations procured the decision

of the DPC analyst and the naturalization officials. The

government failed to produce any prima facie evidence that the

visa and naturalization decisions were procured by the alleged

unlawful conduct.

Although no such evidence was presented to the district

court, the court nonetheless concluded:

33. Defendant was ineligible to immigrate to the United

States pursuant to DPA § 10. His entry to the United

States for permanent residence in 1949 was therefore

unlawful and his naturalization as a United States

citizen on April 11, 1995 was illegally procured.

Dist. Ct. Op. at 54-55. Here the court conflated a question of

law with a question of fact. It decided, and properly so, that

the misrepresentation had a natural tendency to influence the

decision making. This was the question of law. It then decided,

as a matter of fact, that the misrepresentation did in fact

influence and procure the government's visa decision and,

therefore, subsequently procured unlawful naturalization. The

court erred here because the record was barren of any testimony

regarding what factors procured his visa, let alone which types

of misrepresentations would have made Stelmokas ineligible for

entry at the time he applied. That the procurement element in §

1451 is a question of fact is set forth in Kungys in both the

opinion of the Court and the concurring opinion of Justice

Brennan; it is also established in Gaudin and reflected in OSI's

universal practice of presenting testimony by officials as to the

immigration policy of the United States at the relevant time.

By way of analogy, a trial judge in a murder case would hear

the prosecution's evidence that, as a matter of law, a bullet

fired from a defendant's Colt .45 had the natural tendency to

cause death. However, the prosecution still would have to prove

that, as a matter of fact, a .45 bullet was a factor in the

decedent's death. Likewise, as an experienced judge reviewing

matters having to do with State Department or immigration policy,

I can decide as a matter of law the legal component of a mixed

question of law and fact. But it is absolutely necessary that,

before I may properly perform that judicial function, some facts

be developed against which the legal standard can be measured.

A fortiori, I confess ignorance as to the factual overlay of

discretionary powers vested in immigration officials in the

turbulent post-war years of the late 1940s. I suggest that my

distinguished judicial colleagues on this court, on the district

court and on the Supreme Court also lack this information. Such

crucial factual information is not the stuff of which judicial

notice is made; it is the stuff that must be presented as record

evidence at a trial. Yet the district court determined as a

matter of law, without even a prima facie showing regarding

relevant United States immigration policy, that "Defendant was

ineligible to immigrate to the United States pursuant to the DPA

§ 10." Dist. Ct. Op. at 54.

The OSI failed to present any evidence on this count.

Therefore, the district court was left to speculate about whether

the DPA analyst in 1949 would have referred to the Inimical List,

how the analyst would have interpreted it, and whether the

analyst would have decided to grant, deny, or further investigate

Stelmokas' visa application bas

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