Petition — Schellong v. United States

i 8 ~ 9 6 1 ETT re U.S.

No

° VEC @ jgeg

IN THE ALEXANDER L. STEVAS,

7 CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1983

CONRAD H. SCHELLONG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

Charles W. Nixon

29 S. LaSalle St.

Suite 330

Chicago, Ill. 60603

(312) 782-7450

Attorney for

Petitioner

(i)

QUESTIONS PRESENTED

WHETHER PETITIONER'S DENATURALIZATION

CAN STAND WHERE THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH

CIRCUIT FAILED TO PROPERLY APPLY

THE CLEAR AND CONVINCING STANDARD

OF PROOF, IGNORED THE COMMON

LANGUAGE USAGE OF THE TIME AND

PLACE IN ISSUE AND WHERE THE

GOVERNMENT FAILED TO PROVE ITS

CASE?

WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

ERRED BY EMPLOYING THE DISJUNCTIVE

CHAUNT TESTS OF MATERIALITY WHERE

THERE WERE INSUFFICIENT FACTS

ESTABLISHED TO DISQUALIFY PETITION-

ER FROM CITIZENSHIP?

(ii)

WHETHER PETITIONER WAS DENIED A FAIR

TRIAL DUE TO SUBSTANTIAL IMPEDIMENTS

TO ADEQUATE DISCOVERY AND USE OF

VIDEOTAPE DEPOSITIONS AT TRIAL WITH-

OUT CROSS-EXAMINATION?

WHETHER PETITIONER WAS DENIED HIS

RIGHT TO TRIAL BY JURY?

(iii)

TABLE OF CONTENTS

Questions Presented

Table of Authorities

Opinions Below and Dates

of Judgment

Jurisdiction

Constitutional and

Statutory Provisions

Involved

Prologue

Statement of the Case

Reasons for Granting the

Writ of Certiorari

I PETITIONER'S DE-

NATURALIZATION CANNOT

STAND WHERE THE UNITED

STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

FAILED TO PROPERLY AP-

r—-

PLY THE CLEAR AND CON-

VINCING STANDARD OF

PROOF, IGNORED THE

COMMON LANGUAGE OF THE

xi

(iv)

TIME AND PLACE IN ISSUE

AND THE GOVERNMENT

FAILED TO PROVE ITS

CASE.

II THE UNITED STATES

COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

ERRED BY EMPLOYING

THE DISJUNCTIVE CHAUNT

TESTS OF MATERIALITY

WHERE THERE WERE IN-

SUFFICIENT FACTS ESTAB-

LISHED TO DISQUALIFY

PETITIONER FROM CITIZEN-

SHIP.

III PETITIONER WAS DE-

NIED A FAIR TRIAL DUE

TO SUBSTANTIAL IMPEDI-

MENTS TO ADEQUATE DIS-

COVERY AND USE OF VIDEO-

TAPE DEPOSITIONS AT

19

32

(v)

TRIAL WITHOUT CROSS-

EXAMINATION.

IV PETITIONER WAS DE-

NIED HIS RIGHT TO TRIAL

BY JURY.

Conclusion

Appendix

A Order of United States

District Court Stripping

Petitioner of United

States Citizenship

B Opinion of the United

States Court of Appeals

for the Seventh Circuit

Affirming the Trial

Court

C Order of the United

States Court of Appeals

Denying Rehearing

48

53

63

(vi)

TABLE OF AUTHORITIES

Page

Baumgartner v. United

States, 322 U.S. 665

T1944) 31

Beacon Theatres, Inc.

v. Westover, 359 U.S.

500 (1959) 56

Bronston v. United States, ;

709 U.S. 352 (1973) 28

Cohens v. Virginia, 19

U.S. (6 Wheat.) 264 (1821) 58

Curtis v. Loether, 415

U.S. 189 (1974) 61

Dairy Queen, Inc. v. Wood,

369 U.S. 469 (1962) 56

Duncan v. Louisiana, 391

U.S. 145 (1968) 58

Goldberg v. Kelly, 397

w.s. ssh 25 TET 24

287, 90 S.Ct. 1011 50

Guilford Nat. Bank v.

Southern R. Co.,

N 2d 921 52

Harper and Rowe

Publishers, inc.

Decker, (7th Cir. 1970)

423 F.2d 487 52

Kennedy v. Mendoza-

Martinez, 372 U.S. 144

—

59,60

(vii)

Klapprott v. United

States, 335 U.S. OOl

Luria v. United States,

U.S. 9 (1913)

Mathews v. Eldridge,

72a U.Ss. 319 T1576)

Murray Lessee v.

Hoboken Land, 59 U.S.

(18 How.) 272 (1855).

Osborn v. Bank of the

United States, 22 U.S.

eat. 8 (1824)

Parklane Hosiery Co. v.

Shore, 439 U.S. 322 (1979)

Schneiderman v. United

tates, U.S.

Tiedman v. American

Pigment Corp., (4th Cir.)

554 F.2d 505

United States v. Chaunt,

364 U.S. 350 (1960)

United States v.

Fedorenko, 597 F.2d

Cir. 1979)

United States v.

Fedorenko, 449 U.S. 490

60

53

59

58

60

9,31,33,

38,41

(viii)

United States v. Proctor

& Gamble, 350 U.S. 677,

5 L.Ed.2d 1077, 78 S. Ct.

983

United States v. Profaci,

F.

United States v. Riela,

337 F.2d 986 (3rd Cir.

1964)

United States v.

Schellong, App.B.

F.2d (1983)

United States v. Walus,

. t ir.

1980)

Constitutional Provisions:

Article III, §2, United

States Constitution

Fifth Amendment, U.S.

Constitution

Sixth Amendment, U.S.

Constitution

Seventh Amendment, U.S.

Constitution

Statutes and Other

Authorities

8 U.S.c. § 1447

8 U.S.C. § 1451 (a)

23 Am. Jur. 2d §156--

Discovery —-

Page

52

29

46

47

54

59

58

59

51

736

(ix)

35 Cornell L.Q. 120

re-Statutory

Denaturalization

W. McKechnie, Magna

Carta (1905)

4 Blackstone's Comn.

343 (1769)

57

58

61

(x)

OPINIONS BELOW

The decision of the United States

District Court stripping Petitioner

of his United States Citizenship was

entered on September 9, 1982. A copy

of that decision is attached hereto as

Appendix A. The decision of the United

States Court of Appeals for the Seventh

Circuit affirming was entered on

August 24, 1983. A copy of that de-

cisions is attached hereto as Appendix

B. A petition for rehearing was timely

filed and was denied on September 22,

1983. A copy of the order denying

the petition for rehearing is at-

tached hereto as Appendix C.

JURISDICTION

This Court's jurisdiction is in-

voked pursuant to 28 U.S.C. §1254(i).

(xi)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States:

Article III, sec. 2

ees The Trial of all Crimes ...

shall be by Jury; ...

Amendment V

No person shall...be deprived of

life, liberty or property with-

out due process of law...

Amendment VI

In all criminal prosecutions,

the accused shall enjoy...an

impartial jury...

Amendment VII

In Suits of Common Law, where the

value in controversy shall ex-

ceed twenty dollars, the right

of trial by jury shall be pre-

served...

Statutes:

Immigration and Nationality Act

8 USC §1447:

Final hearing--Open court;

examination under oath

(a) Every final hearing upon

a petition for naturalization

shall be had in open court before

a judge or judges thereof, and

every final order which may be made

upon such petition shall be under

the hand of the court and entered

in full upon a record kept for that

purpose, and upon such final hear-

ing of such petition the petitioner

rv ae

(xii)

and the witnesses, except as pro-

vided in subsection (b) of this

section, shall be examined under

oath before the court and in the

presence of the court...

Immigration and Nationality Act

§304 (a)

8 U.S.C. §1451 (a)

(a) Concealment of material evidence;

refusal to testify. It shall be the

duty of the United States Attorneys

for the respective districts, upon

affidavit showing good cause there-

for, to institute proceedings in

any court specified in subsection

(a) of section 310 of this Title

[8 USCS 1421(a)] in the judicial

district in which the naturalized

citizen may reside at the time of

bringing suit, for the purpose of

revoking and setting aside the order

admitting such person to citizenship

and canceling the certificate of

naturalization on the ground that

such order and certificate of

naturalization were illegally pro-

cured or were procured by conceal-

ment of a material fact or by will-

ful misrepresentation, and such re-

vocation and setting aside of the

order admitting such person to

citizenship and such canceling of

certificate of naturalization shall

be effective as of the original

date of the order and certificate... .

ojo

PROLOGUE

The period of Adolph Hitler's control

of Germany is one of the darkest chapters

in modern history. The Nazi Party's

rise to power and its use of that power

stand in sharp contrast to the Spirit of

America. The barbarism of the Nazi govern-

ment in modern times can compare only with

the revolutionary period in Russia, the

darkest days of the Stalin regime and

the “cultural” revolution in Communist

China--if it can be compared at all.

Americans feel a strong sense of re-

vulsion when faced with the words--Nazi,

SS, Concentration Camp. These, indeed,

are words associated with your Petition-

er, Conrad Schellong. Mr. Schellong

joined the Nazi Party in 1932 and re-

mained until 1945. He was a member of

the SS in 1932 through 1945. He was

associated with German Concentration

Camps from 1934 through 1939. Almost

-2-

all of us have wondered why and how a

person could have ever become as-

sociated with such things. We ask how

could it happen. How could Germany--

the home of Schiller and Goethe--the

homeland of many Americans--? We

search for answers; we find no answers.

But America has another question in

need of answer. Can we be fair in spite

of our feelings, our biases and our

fears? Or do we turn our backs and dis-

pense with impartiality and fairness

when we believe someone has been as-

sociated with a group we feel is un-

worthy of decent treatment? The answer

to this question may answer more ques-

tions than we would, at first, suspect.

It was Hitler's government that dis-

pensed with impartiality and fairness

to people Hitler felt were unworthy

of decent treatment.

-3-

Our law requires an unbiased, impartial

review and this Court may undertake that

review to independently determine the

foundations of the findings under the

doctrine set forth in Schneiderman v.

United States, 320 U.S. 118 (1943).

STATEMENT OF THE CASE

The United States of America filed civil

action 81 C 1478 in the United States

District Court for the Northern District

of Illinois against the Petitioner, CONRAD

SCHELLONG. The Complaint was brought under

Title 8 U.S.C. para 145l(a) and in four

counts alleged that Petitioner had either

illegally procured, or procured by con-

cealment of a material fact or by willful

misrepresentation his Naturalized United

States Citizenship. The Plaintiff sought

for relief the revoking and setting aside

of the July 17, 1962 order of the United

States District Court for the Northern

+

afe

District of Illinois admitting Defendant

to United States Citizenship and canceling

Certificate of Naturalization No. 8465738.

Petitioner made demand for trial by jury

which was stricken on the Court's own

motion. The matter proceeded to a bench

trial before Honorable Bernard M. Decker.

On September 8, 1982 judgment was entered

setting aside the order of July 17, 1962

admitting Conrad Schellong to citizenship

and canceling his Certificate of Naturali-

zation (Appendix A).

Appeal was taken to the United States

Court of Appeals for the Seventh Circuit.

The judgment was affirmed (Appendix B).

On September 22, 1983 petition for re-

hearing was denied. (Appendix C)

aSe

STATEMENT OF THE FACTS

Petitioner joined an armed unit of the

Nazi SS in Dresden in 1934 (Tr.383). This

unit was part of the German Army (Schellong

Ex.5,p.3). Some months later this unit

was transferred to Sachsenburg Concentra-

tion Camp (Tr.429). In 1936 he was trans-

ferred to Dachau Concentration Camp and re-

mained attached to that regiment until

shortly after September 1, 1939, the be-

ginning of World War II (Tr.431,440).

He then served in several combat units

until the surrender of Germany. The

allegations in the Complaint concern

Petitioner's service in the SS during the

years 1934-1939 and his disclosure or

lack thereof in 1956 on his visa appli-

cation and in 1962 on his Citizenship

Application and a supplemental affidavit.

No one has accused Petitioner of any

atrocities or of directly harming

another (Tr.245,532). The thrust of

-6=-

all allegations relates to being assigned

as a troop or guard or willful false

statement. At these camps there were

several staffs. Each of these staffs

performed different functions. One staff

was the Commandant's. These men ran the

prison compound and the daily lives of the

prisoners. They took care of and were re-

sponsible for food, housing, work and

punishment of the prisoners. (Tr.252).

Among the other staffs were the troops

Or guards. The members of this group

lived in military barracks outside of

the prisoners area, engaged in military

training and performed the security

function--stood guard outside the camp

and escorted prisoners to and from work

sites outside of the camp. (Tr.165).

The troops or guards merely stood there

(Sch.Ex.1,p.3). The troops or guards were

forbidden to either talk to or touch a

prisoner (Tr.166,245). There is not so

o Fa

much as an allegation that Petitioner

struck a prisoner. It should be kept in

mind that Petitioner was a member of this

external troop or guard staff in 1934-1939,

never the Commandant's staff. In these

years the prisoners' food was good and

there was no systematic extermination

(Tr.247,R102,p.181). Petitioner acted in

an external guard capacity only at

Sachsenburg and only on 36 occasions over

a seven-month period in 1936 (G.Ex.36).

To use the words in an affidavit the prose-

cutor provided uttered by a former prisoner,

Monsignor Schelling:

Q “Were these guards especially brutal?

A. "They simply carried out their duty.

The simply stood there and guarded.

He said the people who gave them

trouble were the internal people;

Block Leaders, the Work Commando

Leaders. The guard units were

not permitted to be cruel to the

prisoners, they were only sup-

posed to stand there and guard.”

(Def.Ex.1, p.3 not addmited in

evidence).

-8-

In 1946 a former Dachau prisoner, Mr.

Gattinger, testified at the War Crimes

Tribunal where almost all of the Commandant's

staff were sentenced to death (R.94,p.47).

The *troops or guurds were not war criminals

under the Nuremburg Tribunal's mandate.

It is the fact Petitioner was a member

of the troops or guards that the Government

Claims Petitioner willfully misrepresented

or sought to conceal that allegedly

renders his Naturalized United States

Citizenship voidable. Petitioner denies

making any willful misrepresentation and

Petitioner claims these allegations are

not material under the first prong of the

Chaunt test (United States v. Chaunt,

364 U.S. 350, 1960). Petitioner concedes,

however, that under the literal wording

of the second prong of the Chaunt test

they may be material since the discovery

that Petitioner was a member of a troop

aa

or guard unit at a concentration camp

"might have been useful in an investigation

possibly leading to discovery of other

facts warranting denial of dtizenship."

The question of the meaning of the second

prong of the Chaunt test was carefully

discussed in the concurring and dissenting

opinions in United States v. Fedorenko,

449 U.S. 490 (1981) but without a resolu-

tion.

The Petitioner denies he made any willful

misrepresentations or concealment. The

Government claims concealment was allegedly

accomplished by false statements in his

visa application in 1956 and in his

naturalization papers in 1962:

Visa Application:

1. Failure of Petitioner to list his

residence addresses in 1934-1939

on the visa application. ..”

2. Using the term "German Waffen ss"

in 1934-1939 as place of resi-

dence on his visa application.

Naturalization Papers:

3. Failure to list the individual

units of the SS to which he be-

longed in 1934-1939. Petitioner

did disclose on the application

his membership in the Nazi Party,

Allgemeine SS and Waffen SS.

4. Stating the Waffen SS was part of

the German Army; and

5. Stating: "I had never to do any

service in an concentration camp..."

POINTS 1. and 2. are explained and the

explanation more or less accepted by the

Seventh Circuit:

If this case centered only around the

visa application, we would be reluc-

tant to uphold a finding of willful

concealment or misrepresentation. The

testimony of government witness L.

Donald Junior, a former consular of-

ficial, indicates that the visa appli-

cation itself was very limited in

space; the application's answer would

be expanded on the supplemental ques-

tionnaire which was also required and

in the face-to-face interview. Yet

no supplemental questionnaire was in-

troduced into evidence in this case, and

this Court can only hypothesize as to

whether or not Schellong was asked about

his Waffen SS service, as the government

Claims he must have been, and whether

or not he clarified or expanded his

answer. For all we know at this point,

Schellong might have entered "Waffen SS"

as a form of shorthand for his residences,

fully intending to clarify the answer if

@1j-<

given the opportunity to do so. App.B,

p.7.

The critical issues found against the

Petitioner are points i, 4 and 5 above.

POINT 3--Failure to list the individual

units of the SS to which he belonged. If

Petitioner was a liar, he surprizingly did

list Nazi Party, Allgemeine SS and Waffen

SS. The Government's claim of false state-

ment has two alleged bases: 1. There was

no Waffen SS in 1934-1939; 2. Even if there

was a Waffen SS in 1934-1939, he should

have listed the individual units of the SS,

as he did, in part, in a 1936 curriculum

vitae (G.Ex.D-3) prepared for the SS. But

the armed SS was called the Waffen SS in

1934-1939 popularly to discriminate it

from the general or Allegemeine SS.

"Waffen" means armed. Mr. Schellong so

testified. That is the usage in a 1940

document prepared by the Waffen SS

(G.Ex.D-21) and several years later by the

@12<@

Waffen SS in another document (Def.Ex.No.4).

Both of the documents were produced by the

Government from official German documents

captured in about 1945 and vouch for the

Petitioner's language as the common usage.

If the subdivisions were wanted, the

Petitioner's declaring the name of the

organization facilitates any further

questioning concerning the subdivisions

or units. No adverse inference arises

due to the 1936 curriculum vitae. The

Seventh Circuit used the 1936 curriculum

vitae to infer there was no Waffen SS in

1936 (G.Ex.D-3) by stating:

"In addition, even if the term ‘Waffen

SS' were used informally during that

period--a finding the district court

» rejected--the evidence shows that on

a 1936 curriculum vitae prepared by

defendant himself, he listed his

organizational affiliations by in-

dividual name rather than collec-

tively as Waffen SS." (App.B, p.8)

But a look at another document, G.Ex.D-28,

forecloses that inference. G.Ex.D-28 is

a curriculum vitae of Major Schellong

1, 3<

(Schellong was promoted to major in

hoveaber, 1942 (Def. Ex.2, p.2). It is

agreed that at that time the "Waffen SS"

term had been in use for years. This

curriculum vitae does not use the term

"Waffen SS' either. Nor does it list the

organizations the Seventh Circuit implied

should have been listed. Both curricula

vitae list the unit he joined and the

present assignment at the time of writing.

No adverse inference exists from these

documents taken in context.

POINT 4.--In 1962 Naturalization

Supplemental Affidavit by stating the

Waffen SS was part of the German Army.

Petitioner testified that the Waffen SS

was under the High Command of the German

Armed Forces. The Government's expert

testified it never was a part of the

army but was under the High Command of

the German Armed Forces in battle. At

-14-

the time Petitioner joined the armed SS

his official governmental service record,

recorded at about that time, states he

joined the army (Reichsheer) (Def.Ex.5,p.3).

“Reichsheer" means army of the realm.

"Waffen" means weapons or arms. Common

usage in the German language is:

"Waffendienst"--military service.

"Waffengattung"=--branch or arm of the

service.

The New Cassell's German Dictionary,

Funk & Wagnalls, New York, 1956, p.550.

The Merriam-Webster Dictionary, Pocket

Edition published August, 1974 states:

"army .. . 1: a body of men organized

for war 2 often cap: the complete

military organization of a country for

land warfare." Petitioner's service

record contains the recommendation for

the awarding of the German Cross in Gold

(Def.Ex.2) and award of the Knight's

Cross of the Iron Cross (Def.Ex.3) both

-15-

for combat service on the Russian Front.

These show that Petitioner's service was

in

part of "the complete military organi-

zation of a country for land warfare."

in

POINT 5--"I had never to do any service

an Concentration Camp."

"The evidence showed that he was a

trainer and supervisor of concentra-

tion camp guards. Defendant argues

that he never participated in super-

vising or punishing the camp prisoners;

that he was not part of the camp com-

mandant's staff, which was responsible

for the daily routine of the prisoners'

lives, but was only part of the ex-

ternal guard; that in fact he never

‘entered’ a concentration camp. The

government agrees there is no evidence

that defendant himself punished any

prisoners, though he did check on a

prisoner held in solitary confinement

at Sachsenburg at least once. The

government also agrees that defendant

was not part of the commandant's

staff, and that he was responsible

for prisoners only in that he was to

prevent their escape, both from the

camp and from outside work sites to

which they were escorted. But de-

fendant is playing a semantics game in

arguing that he never served 'in' a

concentration camp but merely served

"at' Sachsenburg and Dachau. Clearly,

the district court did not believe that

Schellong was capable of making such

-16-

a fine distinction in 1962. Even

if such a distinction were plausible,

it would be exceedingly difficult to

make in the case of Sachsenburg,

which was a fenceless camp, consisting

of one large building housing both

prisoners and guards in separate

sections." App.B, pp.8 and 9.

But Petitioner never said he never set

foot in such a camp in connection with his

visa or naturalization applications. The

issue is not whether a finder of fact be-

lieves Petitioner ever was "in" a camp.

The test avoids facing the real issue.

Whether Petitioner made a knowingly false

statement when he wrote: "I had never to

do any service in an Concentration Camp."

The Commandant's Staff were tried at

Nuremburg and almost all sentenced to

death (R94,p.47). The ones that cause

trouble were the "internal" ones, the

guards simply stood there (Def.Ex.1,p.3).

The distinction between Commandant's

Staff and the troops or guards is very

substantial.

ol Fa

On July 20, 1939 near the end of the

Petitioner's service in any way connected

with concentration camps, his direct com-

manding officer prepared a complete

evaluation of the Petitioner and his

qualifications (G.Ex. No.D-19). This

officer, without any motive to falsify

and using language as it was used by the

troops or guards in 1939 found Petition-

er not qualified to be an officer in a

concentration camp--after Petitioner's

five years of service as a trainer of

recruits at the concentration camps.

This is weighty evidence of contempo-

raneous use of language made at a time

without motive to falsify. The prose-

cutor put it best:

"Q (By Prosecutor Lynch) Counsel brought

our attention to the fact that ‘Officer

in a Concentration Camp' was not under-

lined indicating you weren't qualified

to be an officer in a Concent:ration

Camp. I would suggest that ‘Officer

in a Concentration Camp' in she German,

‘Fuhrer in Kozentrationslager' applied

-18-

only to the Kommandant's staff inside

the concentration camp?

"A (By Mr. Schellong) I think so.”

As the Germans used terms in 1939 the

Petitioner's 1962 statement, "I had never

to do any service in an Concentration

" means I never served on the

Camp,

Commandant's staff.

Petitioner employed language in

answering questions on his visa and

naturalization papers as it was used

in Germany in 1934-1945 by the Waffen SS,

the guard units and the prisoners.

I.

THE GOVERNMENT FAILED TO PROVE ANY FALSE

STATEMENTS OR WILLFUL MISREPRESENTATIONS

The Government brought this civil action

in order to strip the Petitioner of United

States Naturalized Citizenship. Petitioner's

application and other papers concerning

his visa and naturalization were subjected

to a test of strict historical accuracy

based upon a subsequent review of histori-

cal records and the beliefs of a youthful

and aggressive historian.

Petitioner had not seen his Waffen SS

records before the filing of the complaint

in this case. Petitioner had not seen the

historical documents from Germany, such

as proclamations and secret documents now

in evidence. Petitioner joined the armed

SS in 1934 as a private.

The Government set up Petitioner's

visa and naturalization statements against

an attempt at a strict historial view in

the 1980s, rather than Petitioner's under-

-20-

standing as a common man who had lived

through those experiences--his answers ac-

curately express the usage of the people

who lived through those times.

In essence three criticisms were made

by the Government of Petitioner's use of

language:

1. Using the term "Waffen SS" to de-

scribe his service in 1934-1939.

2. Saying the Waffen SS was part of

the army.

3. Saying "I had never to do any service

in an Concentration Camp."

1. The Waffen SS - 1934, 1939.

The SS was divided into two main groups:

a.) The Allgemeine SS or General SS, and

b.) the Waffen SS or armed SS. The General

SS worked at their civilian jobs, lived

in their homes, did not bear arms and wore

uniforms at public functions to show sup-

port for the party. The armed SS worked

=2le

at military posts, lived in barracks, bore

arms and wore uniforms at all times. In

1934 Petitioner joined a military unit,

he was issued uniforms, took basic mili-

tary training, lived in barracks, and bore

arms. Both Petitioner and his wife testi-

fied that his units in the armed SS were

referred to in the 1930s as Waffen SS--

"Waffen" meaning "armed." After the of-

ficial name came into use in 1939 or

1940 the official government records used

and recognized the common usage. For

example, there are two official Waffen SS

documents in evidence that display this

usage: a. Schellong Ex 4 prepared in

1942 promoting Petitioner from captain

to major states about Petitioner: "Duty

posts held after appointment as Waffen SS

officer: 1937-1938 Company Commander

1938-1939 battalion adjutant...”

(Note the Government mistranslated this

document omitting the critical word

a22@

"Waffen.") In 1942 the Waffen SS employed

the same usage as Petitioner: It referred

to Petitioner's duty in 1937-1938 and 1939

as service in the Waffen SS. A 1940 eval-

uation of Petitioner by his commanding

officer, Gov't Ex #D-21l, uses the same

vocabulary as Petitioner when he stated

that Petitioner joined the Waffen SS on

5 February 1934. Petitioner's usage in

1956 and in 1962 of the same le guage

constitutes a true statement!

2. The Waffen SS was part of the army.

When Petitioner joined the Waffen SS in

1934 the official records of that organi-

zation state Petitioner joined the army

("Reichsheer") (Schellong Ex #5,p3).

The 0.S.I. did not translate that ex-

hibit. The ordinary American English

meaning of the word "army" according to

The Merriam-Webster Dictionary, Pocket

Book edition published August, 1974

is: "ar.my ... 1: a body of men

-23-

organized for war 2 often cap: the com-

plete military organization of a country

for land warfare..." The Government

historian concedes that the military

training Petitioner received was superior

to the regular army. Petitioner was a

Grill instructor, platoon leader, company,

battalion and brigade commander who was

decorated for bravery in land battle. Ac-

cording to both the captured official

German record showing Petitioner joined

the army and ordinary English usage and

Petitioner's actual service - Petitioner

was in the army.

3. Petitioner did not serve ina

concentration camp. Most of the time

between 1934-1939 Petitioner was as-

signed to Sachsenburg Concentration Camp

and Dachau Concentration Camp. The United

States Court of Appeals for the Seventh

Circuit has characterized the facts

Petitioner asserts in defense of this

-24-

as--"playing a semantics game..."

The Merriam Webster Dictionary, Pocket

Book edition published August, 1974 de-

fines the word "semantics"--"1l: the study

of meanings in language 2: connotative

meaning." After the opinion (App B) calls

it a game in the study of meanings it then

creates a novel issue in the case: It

equates ever being in a concentration camp

with service in a concentration camp. Then

it rests its opinion on this sleight of

hand.

Petitioner's statement on his naturali-

zation papers was: "I had never to do any

service in an Concentration Camp..."

Since Petitioner was assigned to the troops

outside the camp, the question involved is:

What is service in a Concentration Camp?

If what Petitioner did was service in a

concentration camp, he told an untruth.

If what Petitioner did was not service

in a concentration camp, he told the truth.

At trial Petitioner testified he was

never in Dachau Concentration Camp and

he was never in Sachscnburg Concentration

Camp. If this be true he did not serve

in the camps. This is the question upon

which the Seventh Circuit ruled against

Petitioner. But from the language of

the Opinion itself, there is room for a

lingering doubt.

",.. Clearly, the district court did

not believe that Schellong was capable

of making such a fine distinction in

1962. Even if such a distinction

were plausible, it would be exceed-

ingly difficult to make in the case

cf Sachsenburg, which was a fenceless

camp, consisting of one large build-

ing housing both prisoners and guards

in separate sections." App. B, p.9.

The Opinion bases itself upon the trial

court's belief that Petitioner could not

make a "fine distinction" in 1962 and

that if the distinction were plausible

it would be exceedingly difficult to

make. To take an American's Citizenship

away because he can make a distinction

is nonsense. In addition, the issue is

=26@

Petitioner's service, not an argument

whether he was in a camp at one time or

the other.

There is no “fine distinction" between

the troops and the Commandant's Staff--

it's a glaring distinction. After World

War II the Commandant's Staff were

almost all sentenced to death as war

criminals. The troops were not even

charged. That's a distinction!

Former prisoners in those camps made

the distinction between the troops or

guards and the internal people.

Monsignor Schelling's statement taken

by the chief government counsel in

this case and translated by the

translator regularly employed by his

office stated:

Q Mr. Lynch: “Were these guards

especially brutal?

A Monsignor Schelling: “They simply

carried out their duty.

The, simply stood there

=27<

and guarded. He said

the people who gave

them trouble were the

internal people..."

(Schellong Ex l, p.3, not in evidence)

Monsignor Schelling distinguishes Petition-

er's group from those who performed in-

ternal service.

The Waffen SS in July 1939 made the

exact same distinction. Just at the

end of Petitioner's service in any way

connected with any concentration camp

his commanding officer prepared a com-

plete evaluation of Petitioner's years

of service (Gov't Ex D-19). The chief

trial counsel for the Government and

Petitioner expressed it best:

"Q (By Mr. Lynch) Counsel brought our

attention to the fact that ‘officer

in a Concentration Camp' was not un-

derlined indicating you weren't

qualified to be an officer in the

concentration camp. I would suggest

that ‘Officer in a Concentration

Camp' in the German, ‘Fuhrer in

Kozentrationslager' applied only to

the Kommandant's staff inside the

concentration camp.

" (By Mr. Schellong) I think so."

-28-

An officer who served in a concentration

camp was a member of the Commandant's

staff--it was not an officer of the troops

or guards such as Petitioner.

The prisoners, the Commandant's staff

and the troops all made the exact same

distinction in 1939 as your Petitioner

made in 1962. Petitioner's service was

not in a concentration camp. The state-

ment allegedly false is true!

The opinion below is in direct con-

flict with decision after decision of

this Court and the circuits.

The question asked your Petitioner that

brought forth the written statement "I

had never to do any service in an

Concentration Camp" is unknown. The

witness who asked the question cannot

recall the question. Chief Justice

Burger's opinion in a perjury case

for the unanimous court in Bronston

v. United States, 409 U.S. 352 (1973)

-29-

is instructive:

"Under the pressures and tensions

of interrogations, it is not un-

common for the most earnest wit-

nesses to give answers that are not

entirely responsive. Sometimes the

witness does not understand the ques-

tion, or may in an excess of caution

or apprehension read too much or

too little into it. ... It is the

responsibility of a lawyer to probe;

testimonial interrogation, and

cross-examination in particular, is

a probing, prying, pressing form

of inguiry. If a witness evades, it

is the lawyer's responsibility to

recognize the evasion and to bring

the witness back to the mark, flush

out the whole truth with the tools

of adversary examination."

The conviction for perjury of an arguably

evasive witness was reversed. The Second

Circuit was faced with a definitely

false statement in United States v.

Profaci, 274 F.2d 289 (1960). Profaci

answered no he had not been arrested to

his naturalization examiners. He had

been arrested, convicted and sentenced

to one year in prison in Italy before he

came to the United States. But the con-

text of that question was not known and

=30@

there was a possibility of misunderstanding.

In delivering its opinion of outright re-

versal of denaturalization it held:

"Fraudulent intent and knowledge, absent

a voluntary confession, is not often

easily established. Knauer v. United

States, 328 U.S. 654, 66 S.Ct. 1304,

90 L.Ed 1500. Nevertheless, the law

is not devoid of persuasive methods

of probing the actual state of a

man's mind. Cf. Smith v. California,

80 S.Ct. 215. And such a probe must

establish strong inferences of

falsification if citizenship is to be

revoked. Nowak v. United States,

supra; Baumgartner v. United States,

322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed.

1525. Often it is possible to infer

an intent to falsify and deceive

from the mere untruthful response

to a question, the clarity of which

leaves little or no room for a

reasonable explanation of misunder-

Standing. But, when a question

is not reasonably free from ambiguity,

a clear understanding thereof and an

intent to deceive are not to be

readily implied merely from a false

answer. Such, we think, is the case

here."

Here we do not know what question was

asked. We do have answers that are true

or, at least, Petitioner's understanding,

the understanding of the German govern-

ment, prisoners at the camps and the units

-3l-

of those camps.

The Supreme Court of the United States

set out the method of review in

Schneiderman v. United States, 320 U.S.

118 (1943). The evidence in a denaturali-

zation case must be weighed according to

three principles:

First: All inferences from the evi-

dence must be drawn as far

as reasonably possible in

favor of the citizen.

(320 U.S. at 122, 158-59).

Second: With all the inferences drawn

favorably to the accused, the

Government must prove each

element of its case by "clear,

unequivocal and convincing"

evidence. (320 U.S. at 135).

Third: So viewed, the evidence must

"not leave the issue in doubt”

on any element of the case.

(320 U.S. at 135).

In accord: Chaunt v. United States, 364

U.S. 350, 353 (1960); Baumgartner v.

United States, 322 U.S. 665, 670 (1944);

Fedorenko v. United States, 449 U.S. 490,

505 (1981).

o320

Your review of this case is essential

to assure the prevention of a miscarriage

of justice - to save an American Citizen

from the “hydraulic pressure" that

Justice Holmes counseled us to avoid.

II.

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT ERRED BY EMPLOYING

THE DISJUNCTIVE CHAUNT TESTS OF MATE-

RIALITY WHERE THERE WERE INSUFFICIENT

FACTS ESTABLISHED TO DISQUALIFY PETI-

TIONER FROM CITIZENSHIP.

This section assumes arguendo, that

there was a misrepresentation or conceal-

ment of fact. The Seventh Circuit held:

"But there were sufficient facts in-

troduced into evidence to show that

if the visa examiner or the naturali-

zation examiners had been aware of

defendant's role at Sachsenburg as

a trainer and supervisor of guards,

and as a rotating Security Officer

on Reserve; and of his role at

Dachau as a trainer of troops held

on reserve for guard duty; and as

a member of the SS Death's Head

Units, they would have either de-

nied his visa application and

naturalization petition (Tr.43,65,

94), Fedorenko v. United States,

449 U.S. at 514-516, or continued

then pending a more detailed in-

=33@

vestigation (Tr.67), ‘possibly leading

to the discovery of other facts war-

ranting denial of citizenship.' Chaunt

v. United States, 364 U.S. 350, 355;

United States v. Fedorenko, 597 F.2d

Cir.1575), affirmed

without affirming or denying this

particular aspect of materiality, 449

U.S. at 518 n.40."

See: App B

The ruling is in the disjunctive--"either

denied his visa application and naturali-

zation petition...or continued then (sic)

pending a more detailed investigation.”

The Seventh Circuit's opinion rests on

either prong of the Chaunt test.

The question is whether these mis-

representation and concealments constitute

"concealments of material facts" or "will-

ful misrepresentation” within the meaning

of Section 340 (a).

Guidance in making this determination is

provided by the Supreme Court decisions

in Chaunt v. United States, 364 U.S. 350

(1960) and Fedorenko v. United States,

449 U.S._ 490 (1981).

In Chaunt the United States petitioned

under section 340(a) to revoke and set

aside the order admitting petitioner

Chaunt to citizenship on the ground that

the order had been obtained by concealment

of a material fact or by willful misrepre-

sentation in his petition for naturaliza-

tion and in his examination under oath.

The district court cancelled petitioner's

naturalization finding that he had con-

cealed and misrepresented three arrests,

his membership in the Communist Party

and his lack of allegiance to the United

States. The Court of Appeals affirmed,

reaching only the question of concealing

the arrests.

The Supreme Court emphasized, as it has

done many times before and since, that

in view of the grave consequences to

the citizen, "naturalization decrees

are not lightly to be set aside--the

evidence must indeed be ‘clear, un-

-35-

equivocal, and convincing’ and not leave

‘the issue ... in doubt.'" 364 U.S. at

353. The Court, reversing the judgment

of the court of appeals, formulated a

rule which narrows considerably the

kinds of concealments and misrepre-

sentations which will provide a basis

for denaturalization:

Suppressed or concealed facts, if

known, might in and of themselves

justify denial of citizenship.

Or disclosure of the true facts

might have led to the discovery

of other facts which would

justify denial of citizenship.

364 U.S. at 352, 353.

It is clear from the two part Chaunt

rule that not all false statements or

concealments made during the naturali-

zation process will form a basis for

revocation of citizenship, even when

the person seeking citizenship made

the false statements or concealments

under oath. The dissent in Chaunt

emphasized this point, noting, "it is

nowhere suggested, for example, that the

petitioner's falsehoods were the result

of inadvertence of forgetfulness - that

they were anything but deliberate lies."

(at 356). This approach reflects the

extreme care which the Supreme Court

exercises when dealing with revocation

of citizenship.

In Fedorenko, the government sought

to revoke Fedorenko's citizenship both

on grounds of illegal procurement and

on grounds of concealment and mis-

representation. The ultimate ruling was

based upon the Displaced Persons Act.

That act excluded individuals who had

“assisted the enemy in persecuting

civilians" or who had "voluntarily

assisted the enemy forces...in their

operations." Petitioner here was a

regular quota applicant. The Displaced

Persons Act prohibitions do not apply.

The district court, applying the

@37=

Chaunt rule, held that although dis-

closure of Fedorenko's service as a

Treblinka guard would have prompted

an investigation into his activities,

the government had failed to prove

that such an inguiry would have un-

covered any additional facts warranting

denial of a visa. The court of appeals

reversed, disagreeing with the district

court's interpretation of the second

part of the Chaunt rule. The court

of appeals held that the second Chaunt

test requires only clear and convinc-

ing proof that (a) disclosure of the

true facts would have led to an in-

vestigation and (b) the investigation

might have uncovered other facts war-

ranting denial of citizenship.

The Supreme Court affirmed the court

of appeals but on different grounds.

It found that petitioner gave false

-38-

information in connection with his appli-

cation for a visa under the Displaced

Persons Act. The Court added, "This

does not, however, end our inquiry, be-

Cause we agree with the Government that

this provision only applies to willful

misrepresentations about ‘'material'

facts. The first issue we must examine

then, is whether petitioner's false

statements about his activities during

the war, particularly the concealment

of his Treblinka service, were 'material.'"

449 U.S. at 507, 508.

The Court held that "[a]t the very least,

a misrepresentation must be considered

material if disclosure of the true facts

would have made the applicant ineligible

for a visa." 449 U.S. at 509. The Court

then held that the true facts about

petitioner's service as an armed guard

at Treblinka death camp would, as a

matter of law, have made him ineligible

-39-

for a visa under the Displaced Persons

Act. Thus his certificate of citizen-

ship was revocable as "illegally pro-

cured" under § 340(a).

The concurring and two dissenting

opinions in Fedorenko analyze in some

detail the second Chaunt test of ma-

teriality.

Justice Blackmun concluded that there

is in reality only one Chaunt test, that

the so-called second test is simply

another method of stating what the govern-

ment must establish, namely the existence

of facts which would disqualify a person

from citizenship.

Justice White would give independent effect

to the second Chaunt test. If the govern-

ment proves by clear, unequivocal and con-

vincing evidence that an investigation

would have occurred if a truthful response

had been given and that the investigation

might have uncovered facts justifying

denial of citizenship, the defendant

could rebut the government's showing by

establishing that the underlying facts

would not have justified denial of

citizenship.

Justice Stevens concluded that the

second Chaunt test required that the

government establish by the requisite

quantum of evidence that a truthful

answer would have led to an investigation

and that disqualifying circumstances

actually existed.

It is necessary to apply these various

tests to Petitioner's assumed misrepre-

sentations and concealments to determine

whether they were "material" within the

meaning of Section 340(a). We need be

mindful of Justice Stevens' cautionary

observation in Fedorenko, that "[t]Jhe

gruesome facts recited in this record

create what Justice Holmes described

-41l-

as a sort of ‘hydraulic pressure' that

tends to distort our judgement." 449 U.S.

at 538.

First, the Petitioner has denied par-~

ticipating in any individual acts of

oppression and there is no evidence

that he so much as struck a prisoner.

The Government never made such a claim

(Tr.245,532). Historical perspective

is important. Petitioner served at the

camps from 1934-1939--before the war.

These camps were never death camps

(Tr.247); in 1934-1939 the food was good

(R102,p.181). This state of facts is

substantially removed from the 1945

newsreels of stark horror. In addition,

contrary to the misstatement in both

lower court opinions, Petitioner did not

join any group to be a guard at a concen-

tration camp--the unit he joined was

stationed in Dresden (Tr.428,9;383);

his unit was transferred to Sachsenburg

—

-42-

without his choice (Tr.429).

Petitioner's major pre-war function

was soldierly training or leading such

training (Tr.239). His sole function

in relation to the prisoners at the

concentration camps was to prevent

escapes (T.165). A separate staff, the

Commandant, had sole responsibility for

the details of the prisoners' daily lives

--food, quarters, work and punishment

(Tr.252).

The Government's employee-witnesses

testified that the Petitioner was not

eligible based upon misleading and er-

roneous hypothetical questions. Each

question assumed false statements and

assumed facts not in evidence. In

addition, none of those called by the

Government knew of the several staffs

or their separate functions at the camps;

that neither of the camps wast a death

camp (Tr.96,161-3,247); nor any of the

-43-

now known facts displayed in the record of

the trial. The Government failed to pro-

duce any regulations, rulings or memoranda

of the I.N.S. that bear on the question

of disqualification. The only reason

given for ineligibility was moral turpi-

tude or lack of good moral character

(Tr.65,94). It was not indicated whether

their opinion rested on alleged lies or

alleged duties or a combination of both or

of their misunderstanding of the pre-war

camps from post-1945 newsreels.

Is there clear and convincing evidence

that the conduct of Petitioner constituted

moral turpitude? The short and unpopular

answer is no!

Petitioner joined a military organiza-

tion of his then country. He obeyed his

orders. He did not desert. He did not

mutiny. He acted as an external guard

on 36 occasions to prevent escapes of

prisoners who had been lawfully im-

a44e .

prisoned under Nazi Law--President

Hindenburg had lawfully abrogated civil

rights under the German Constitution in

effect at the time (Tr.112). Petitioner

did not strike or otherwise injure the

prisoners. The words "Nazi" and 2

"Concentration Camp" invoke an intense

emotional response in almost everyone.

The strength of these emotional re-

sponses makes it extremely difficult

to objectively weigh the moral character

of a person who is in any way associated.

At the time these unfortunate events oc-

curred Germany was in a state of emergency--

world depression; the fear of communism;

hyperinflation. (Tr.107,109). In ex-

treme emergency governments, even free

and honorable governments, takes steps

that in retrospect are regretted. We

would rather not have put more than

100,000 U.S. citizens and aliens of

Japanese ancestry in camps in 1942.

-45-

In all fairness those American soldiers

who stood guard at those camps were not

guilty of moral turpitude nor of bad

moral character.

If we boast of freedom in America, which

we should, it is necessary to judge a man

by his own individual acts--not judge him

by the acts of associates or by acts as-

sociated with a place that occurred years

after he left that place.

The Petitioner was, in 1956, eligible

for a visa, and he was, in 1962,

eligible for United States Citizenship.

The Supreme Court should determine the

applicability of the second prong of the

test in Chaunt. Petitioner cannot and

does not maintain that knowledge by

counselor or naturalization officials

would not have led to an investigation.

The question is whether the second test

is a totally independent basis for de-

naturalization; or that there is in

-46-

reality only one Chaunt test, that the

so-called second test is simply another

way of saying the existence of facts must

be established to prove disqualification

for citizenship. Or, whether it has in-

dependent effect and shiftsthe burden

of proof.

The Office of Special Investigations,

based on passage of P.L. 95-549 in

1978--Immigration and Nationality

Act-Nazi Germany, is filing dozens

and dozens of suits to denaturalize

and deport American Citizens. The

courts need your guidance in deciding

these cases involving the most funda-

mental of rights--the right to have all

other rights--United States Citizenship.

There is a division of authority in

the several circuits. The Third

Circuit's application of Chaunt in

United States v. Riela, 337 F.2d 986

(1964) holds material, knowingly false

answers resulting in suppression of facts

which, if known, would have warranted de-

nial of citizenship. The Fifth and

Seventh Circuits hold material, knowingly

false answers resulting in suppression of

facts which, if known, would have caused

the conducting of an inquiry that might

have resulted in denial of a visa.

United States v. Fedorenko, 597 F.2d 946

(Sth Cir.1976) affirmed on other grounds.

United States v. Schellong, App.B.

F.2d, = (7th Cir. 1983).

Presented here is the vehicle to

clarify the meaning of the Chaunt test

--the opportunity to take the status of

United States Citizenship off tenuous

ground.

-48-

Ill.

PETITIONER WAS DENIED A FAIR TRIAL DUE TO

SUBSTANTIAL IMPEDIMENTS TO ADEQUATE DIS-

COVERY AND USE OF VIDEOTAPE DEPOSITIONS

AT TRIAL.

Suit filed March 30, 1981 (Rl).

Petitioner's first Interrogatories were

answered on June 22; July 13; October 19,

1981; January 18, February 24, March 15,

March 18, May 3 and May 13, 1982 (R5,15,

17,43,63,70,72,86,88). Petitioner's

Second Interrogatories were answered

February 12, 1982 (R36). Scheilong's Third

Interrogatories were timely filed (R85)

and stricken unanswered at start of trial

(T3,4).

Government produced thousands of pages

of documents. All but I.N.S. were in

German. More than 2,500 pages were never

translated (R60,Ex.B). Petitioner had no

money (R22,Ex.A.;R20).

At least one critical document was mis-

translated to Petitioner's substantial

disadvantage by omitting "Waffen" which,

-49-

if properly translated, directly corrobo-

rated the Petitioner. At least one page

of a document was not translated that in-

dicates Petitioner joined the German Army

in 1934 (Schellong Ex.5)--again direct

corroboration of the defense.

First disclosure of witnesses L. Donald

Junior and Judge Petrone was after close

of discovery (R118,p.24).

Government named only one expert,

Charles W. Sydnor (R36). It denied any

others (R56). It presented Dr. Sydnor

as an history expert. It surprisingly

presented Judge Siracusa, Judge Petrone

and L. Donald Junior as I.N.S. experts to

answer hypothetical questions. Petitioner

objected (T60,72).

Government took videotape depositions

in California and Europe (R73,R66,R89,R90,

R93,R94). The indigent Petitioner (R22,

Ex.A;R20) was unable to pay his attorney

fees. His request for a protective order

-50-

was denied (R22). He had no opportunity

to cross-examine contrary to Goldberg v.

Kelly, 397 U.S. 254, 25 L.Ed. 2d 287,

90 S.Ct. 1011.

Government called four live witnesses

and presented seven videotaped witnesses

against Petitioner.

Six of the videotaped witnesses' testi-

mony was not cross-examined and out of the

presence of Petitioner and attorney due to

poverty. The majority of the trial was in

absentia.

Of the four live witnesses, both Petrone

and Junior were surprise witnesses in two

ways: (1) Their names were provided after

discovery; (2) they acted as "experts,"

but were never disclosed as such.

Siracusa was disclosed in time, but not

as an expert. Sydnor was disclosed in

time but defense was not given time to

obtain the texts he relied upon (R50,R5l,

R69); the documents he relied upon were not

@8le

translated (R51,R69); and the defense was

not given sufficient time to depose him

R82).

In short, Petitioner had no meaningful

discovery--no fair chance to meet the evi-

dence.

23 Am Jur 2d para. 156 states:

"The various instruments of dis-

covery under the federal rules...

now serve as a device to narrow

and clarify the basic issues be-

tween the parties, and also as a

device for ascertaining the facts,

or information as to the existence

or whereabouts of facts, relative

to those issues, and the deposi-

tion-discovery procedure simply

advances the stage at which the

disclosure can be compelled

from the time of trial to the

period preceding it, thus re-

ducing the possibility of sur-

prise."

Only in the event a strong public yelicy

weights against disclosure, modern in-

struments of discovery are liberally

employed. These procedures make less of

a game of blind man's bluff and more a

fair contest with the basic issues and

-52-

facts disclosed to the fullest practicable

extent. United States v. Proctor & Gamble

Co., 356 U.S. 677, 2 L.Ed. 2d 1077, 78 S.

Ct. 983. The trial is to be a method of

arriving at the truth and not "a battle of

wits between counsel." Guilford Nat. Bank

v. Southern R. Co. (CA4 NC) 297 F.2d 921;

Tiedman v. American Pigment Corp. (CA4 Va)

253 F.2d 803; Harper and Rowe Publishers,

Inc. v. Decker, 423 F.2d 487 (7th Cir.

1970).

There is not one witness against

Petitioner that he had a fair and

reasonable opportunity to depose.

Eight of the eleven witnesses against

him, he had no opportunity to depose.

Six of the witnesses against him, he

had no opportunity to cross-examine.

Petitioner never was provided with

thousands of pages of relevant dis-

covery documents in any usable form,

a critical document was untranslated.

-53-

The Defendant was denied a fair trial--

he had no meaningful opportunity to be

heard--he was denied due process of law

based upon the substantial accumulation

of impediments to discovery and cross-

examination.

IV.

PETITIONER HAS THE RIGHT TO

TRIAL BY JURY IN A DENATURALIZATION

CASE UNDER 8 U.S.C. §145l(a).

Introduction

The Government filed suit against

Petitioner alleging that he had procured

his citizenship illegally and by conceal-

ment or willful misrepresentation of a

material fact (Rl). Petitioner timely

answered denying the Government's allega-

tions thereby putting the disputed facts

in controversy (R8). Petitioner demanded

trial by jury (R8).

On the Court's own motion the Petition-

er's jury demand was stricken (R57,59).

The Government orally relied on Luria v.

-54-

United States, 231 U.S. 9 (1913) and

United States v. Walus, 616 F.2d 283

(7th Cir. 1980). (Transcript of March 10,

1982, pp.4 and 5.) The Government filed

neither a motion nor a brief.

I. LURIA AND WALUS DO NOT CONTROL

A. Luria and Walus Considered Only

The Seventh Amendment Basis for

Trial by Jury.

The Government claims that, in Luria,

the Supreme Court held that a Defendant

in a denaturalization action has no right

to a jury trial. The Government over-

states. In Luria, the Court limited its

holding to a claim to a jury made solely

under the Seventh Amendment. The Supreme

Court's entire discussion of the jury-

trial issue was:

"Lastly it is urged that the District

Court erred in not according to the

defendart a trial by jury. The Claim

is predicated upon the Seventh Amendment

to the Constitution, which declares that

“in suits at common law, where the value

in controversy shall exceed twenty

dollars, the right of trial by jury shall

=§Se

be preserved.' This, however, was not

a suit at common law. The right as-

serted and the remedy sought were es-

sentially equitable, not legal, and

this, according to the prescribed tests,

made it a suit in equity. Parson v.

Bedford, 3 Pet. 433, 337; Irvine v.

Marshall, 20 How. 558, 565} Root v.

Railway Company,105 U.S. 189, 207.

In this Seapect it does not differ from

a suit to cancel a patent for public

land or letters patent for an invention.

See United States v. Stone, 2 Wall.525;

United States v. San Jacinto Tin Co.,

I25 U.S. 273; United States v. Bell

Telephone Co., U.S. °

(231 U.S. at 27-28) (emphasis added).

The Luria opinion never addressed the

other Constitutional principles on which

Petitioner relies.

The report of Luria's argument in the

Supreme Court reveals he claimed a right

to jury trial only under the Seventh

Amendment. (231 U.S. at 14). Further,

Luria's jury-trial discussion may qualify

as dictum. Luria, himself, remained in

South Africa during his trial. (231 U.S.

at 19). All the evidence at Luria's

trial was stipulated. (231 U.S. at 17).

a86ue

Juries, of course, resolve contested

issues of fact and witness credibility.

A jury at Luria's trial could have

served no function.

In its footnote treatment of the jury-

trial issue, the Walus Court found itself

"bound by” Luria and simply followed it

without further analysis. Walus made no

independent examination of the limited

logic of Luria, nor did it go beyond the

Seventh Amendment. The Court's citation

to the Seventh Amendment cases Beacon

Theatres, Inc. v. Westover, 359 U.S.

S00 (1959), and Dairy Queen, Inc. v. Wood,

369 U.S. 469 (1962), confirmed that it

grounded its holding solely on Seventh

Amendment grounds. United States v.

Walus, 616 F.2d at 304 n.53.

B. Luria Does Not Decide the Seventh

Amendment Issue Today. The 1913

Patent Analogy Does Not Apply to

Citizenship Obtained Under

"Solemn Adjudication.

In Luria, the Government sued to cancel

-57-

a citizenship certificate obtained in

1894 under naturalization procedures in

effect until 1906. The certificate was

obtained ex parte as one would obtain a

patent. These were "merely colorable

letters of citizenship.” (231 U.S. at 24).

Schellong's citizenship was acheived

by means of a judicial proceeding against

the Government. 8 U.S.C. §1447. These

rights are precious and conferred by

solemn adjuciation. Schneiderman v.

United States, 320 U.S. at 125. The

patent analogy does not fit present-

day citizenship. There is a review of

early procedures in Pre-Statutory

Denaturalization, 35 Cornell L.Q. 120

(1949).

C. This Court can, and Should, Give

Full Consideration to Petitioner's

Claim to A Jury Trial.

Controlling standards of interpretation

limit Luria to their facts and holdings:

-58-

",..general expressions, in every opinon,

are to be taken in connection with the

case...principles which may serve to

illustrate it are considered in their

relation to the case..., but their pos-

sible bearing on all other cases is

seldom completely investigated."

Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 399-400 (1821).

II. DUE PROCESS OF LAW INSURES PETITIONER

A_ JURY TRIAL

The Supreme Court has held that, where

the stakes for the defendant are as high

as they are here, due process of law in-

sures a jury. Duncan v. Louisiana, 391

U.S. 145, 156 (1968). Murray's Lessee v.

Hoboken Land, 59 U.S. (18 How.) 272(1855).

"Settled usages and modes of proceeding

existing in the common and statute law of

England" are the constituents of due pro-

cess. The English government was not al-

lowed to banish a citizen without a jury.

W. McKechnie, Magna Carta, 436 (1905).

Banishment, exile and transportation were

punishments for crimes only proved at a

-59-

trial by jury. 4 Blackstone's Comn.

368-70. Mathews v. Eldridge, 424 U.S.

319 (1976) sets out three distinct

factors the court should consider in

what is required of due process. The

division of labor in a jury trial between

the judge and the jury is a most meaning-

ful safeguard for an accused. The Govern-

ment's interest in a marginal reduction

of costs by bench trial does not out-

weigh the Defendant's interest in the

additional security which a jury trial

affords.

The public interest necessitates that

naturalized citizens enjoy the same

rights as the native born. Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963).

III. ARTICLE III, §2 AND THE SIXTH

AMENDMENT GUARANTEE PETITIONER

K TRIAL B

Y JURY.

The Supreme Court holds that for-

feiture of citizenship is penal and has

"throughout history been used as a punish-

-60-

ment." Kennedy v. Mendoza-Martinez,

supra. Denaturalization has conse-

quences which “may be more grave than

consequences that flow from conviction

for crimes." Klapprott v. United States,

335 U.S. at 611. Article III, §2 and

the Sixth Amendment to the Constitution

therefore guarantee Schellong a jury.

IV. EQUAL PROTECTION OF THE LAWS

EE ETITIONER A RY TRIAL.

Fifth Amendment "due process of Law" also

requires the federal government to insure

equal protection of the laws. In Osborn

v. Bank of the United States, 22 U.S.

(9 Wheat.) 738 (1824), Chief Justice

Marshall declared that naturalized

citizens enjoy equal with the native

born. If they are to enjoy equal rights

with the native born a naturalized

citizen must have a right to a trial

by jury if his citizenship is to be

taken.

@-6l<

V. THE SEVENTH AMENDMENT INSURES

PETITIONER A TRIAL BY JURY.

The Seventh Amendment “preserve([s] the

right to jury trial as it existed in

1791." Parklane Hosiery Co. v. Shore,

439 U.S. at 333. In 1791, Government

could not strip a citizen of his rights

and expel him from the country without

resort to a jury trial. Mr. Justice

Story's opinion was quoted in Curtis v.

Loether, 415 U.S. 189 at 193 (1974).

The thrust of Seventh Amendment right

to jury trial and what "common law"

meant is well defined there. Blackstone

wrote in 1769 that the jury-trial right

under Magna Carta protected the English

subject from such things as exile.

4 Blackstone's Comm. 343. No analogue

to a 1791 common-law proceeding better

fits the Government's pursuit of

Petitioner than a prosecution for the

common-law crime of perjury. The ele-

=62<

ments of the charge in the instant case

and the elements of the common-law crime

of perjury are virtually identical.

a€ 30

CONCLUSION

The Government has failed to prove

the case against Petitioner by clear

and convincing evidence. No willfully

false statement was proved; nor.do the

underlying facts, if known, constitute

a bar. At most they constitute reason

for an investigation. A proper appli-

cation of the second prong of the

Chaunt test will result in reversal.

Further, Petitioner suffered the

results of prejudicial error in the

trial court's denial of trial by jury,

substantial restraints on adequate

discovery and the admission into evi-

dence of videotape depositions without

-64-

cross-examination and the use of sur-

prise experts by the Government.

Respectfully submitted,

Charles W. Nixon

Attorney for Conrad

Schellcong

29 S. LaSalle St.

Chicago, IL 60603

(312) 782-7450

APP. A, P. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES

OF AMERICA,

Plaintiff,

CONRAD HEINRICH

)

)

)

)

)

-vs- ) No. 81 C 1478

)

)

SCHELLONG, )

)

)

Defendant.

MEMORANDUM OPINION AND AWARD

Plaintiff, the United States

of America, brought this action

pursuant to Section 340(a) of

the Immigration and Nationality

Act of 1952, as amended, 8

U.S.C. §1451(a), to revoke the

citizenship of the defendant,

Conrad Heinrich Schellong, on

the grounds that the defendant

procured his citizenship il-

legally and by concealment or

APP. A, P. 2

willful misrepresentation of a material

fact. The government contends that

the defendant, in applying for an

immigration visa and later per-

manent citizenship, willfully

concealed or misrepresented his

membership in certain Nazi~organi-

zations and his involvement with

the concentration camps in Nazi

Germany during the 1930's. Be-

ginning on May 26, 1982, this

court heard six days of testi-

mony concerning the government's

claims and Schellong's defenses.

This court has reviewed the

transcript of that trial and

the relevant exhibits, as well

as the parties' vost-trial

memoranda, and hereby enters

the following findings of fact

and conclusions of law.

APP. A, P. 3

I. Factual Background

Defendant Conrad Schellong was

born in Dresden, Germany, in

1910. In the Spring of 1932,

as Germany's economy was

failing and Hitler was coming

into power, the defendant be-

came a member of Germany's

Sturmabteilungen, a para-

military unit of the Nazi

Party, more commonly known

as the Storm Troopers or

"brown shirts." The duties

of the storm troopers were

generally to guard Nazi

meeting halls and to disrupt

meetings of ovposing political

parties. Although the storm

troopers are now known to have

also participated in numerous

APP. A, P. 4

acts of street violence and pogroms

against the Jewish people during

the late 1930's, the record in

this case indicates that Schellong

remained a member of the group

only until November, 1932, and

that his sole activities with

the organization consisted of

his participation in two demon-

strations or marches in support

of the Nazi Party.

In December, 1932, the defen-

dant joined both the German

Nazi Party (Nationalsozialistische

Deutsche Arbeiter Partie) and the

Schutzstaffel, an organization

more commonly known as the

"Allgemeine SS" or simply "SS."

For purposes of this litigation,

it need be noted only briefly

that the Nazi Party espoused a

APP. A, P. 5

Philosophy of racial purity, ra-

cial superiority, and intolerance

toward political and phi): so-

phical opposition. The principal

function of the Allgemeine SS in

the early 1930's was to guard

Nazi Party speakers and to carry

out party intelligence, al-

though the SS gradually assumed

the additional responsibility of

the administration and guarding

of the concentration camps. The

SS was, at all relevant times,

Gistinct from the Wehrmacht, or

German armed forces, which were

composed of Germany's army, air

force, and navy. According to

the evidence, the defendant re-

mained a member of the Allgemeine

SS until 1934, and was a member

of the Nazi Party until the fall

APP. A, P. 6

of Hitler's Germany in 1945.

Of particular importance to this

litigation are the defendant's

activities between 1934 and 1939.

In February 1934, the defendant

joined the SS Sonderkommando

"Sachsen" ("SS Special Commando

‘Sachsen'"), an organization

stationed at the Sachsenburg

Concentration Camp in Saxony,

Germany. Upon completion of

according to the testimony, the

Sachsenburg Concentration Camp

consisted of one large building,

which housed both prisoners and

guards in separate sections, a

guard house, a medical building,

work sites, and an assembly area.

The camp was surrounded by a

river on one side, and steep

hills in the rear. During the

time that the defendant was

stationed at Sachsenburg, the

camp held approximately 400-500

prisoners, including political

prisoners, Jehovah's Witnesses,

Protestant and Catholic clergy,

and Jews. It is uncontested

APP. A, P. 7

basic training, the men of the

SS Special Commando "Sachsen"

were considered wach truppe, or

"watch troops", distinct from

the Abteilung Drei or camp

commandant's staff, which was

responsible for the daily opera-

tio: ‘f the camp, prisoners'

work schedules, and punishment.

The defendant testified that

he began his assignment at

Sachsenburg in October 1934 as

a corporal, and that his res-

ponsibilities included the

supervision of a platoon of

guards and also service as a

Security Officer and a Reserve

1 cont.

that the prisoners at Sachsenburg

were not being held for committing

any criminal acts, but rather for

the perceived threat which they

represented to the success of

the Nazi Party.

ar? A, Ps. 8

(or "Alert") Officer on a rotating

basis with other platoon leaders.

During the defendant's rotation as

Security Officer, he was in charge

of security for the entire camp

for twenty-four hour periods. The

SS Special Commando "Sachsen"

was renamed the SS Wachverbande

"Sachsen" ("SS Guard Unit") in

late 1934, and renamed again as

the SS Totenkopfverbande "Sachsen"

("SS Death's Head Unit 'Sachsen'")

in April 1936. The defendant's

duties during that period, how~

ever, did not change signifi-

cantly. y

In early 1936, thé defendant

was assigned for approximately

four months to the llth Com-

pany of the SS Guard Unit

"Oberayern" at Germany's

APP. A, P. 9

Dachau Concentration Campo, near

Dachau, Germany, where he par-

ticipated in a platoon leaders

training course. Upon his

return to Sachsenburg in late

April 1936, the defendant was

promoted to the rank of Second

Lieutenant, and given command

over approximately 30 of the

100 to 120 SS men guarding the

camp. The guards under

Schellong's supervision served

as camp guards approximately

every fourth or fifth day, super-

vising the prisoners at the work

sites and performing other guard

duties to prevent escapes. Guards

were instructed to keep alert and

were told to warn and then shoot

to kill any prisoner attempting to

escape.

APP. A, P. 10

Although it appears that the SS

guards were not directly respon-

sible for the punishment of the

camp prisoners and their onerous

work schedules, the guards were

nevertheless aware of the

prisoners' cruel treatment.

Schellong testified that he

witnessed at least two floggings

of prisoners while at Sachsenburg,

and that he personally took turns

checking on prisoners being held

in solitary confinement at the

camp. Furthermore, the guards

were aware of the work detail of

hard labor assigned to the

prisoners, including shoveling

sewage, breaking rocks, and

hauling stones.

In late November, 1936,

Schellong was transferred to

APP. A, ae BI

the Dachau Concentration Camp,

where he was assigned to the

7th Death's Head Company of

the Death's Head Unit "Ober-

bayern. "* Between December

-witnesses testified that the

camp at Dachau was much larger

than Sachsenburg, accomodating

between 4,000 and 14,000

prisoners during the time

that Schellong was stationed

there. The camp itself con-

tained a protective arrest

area, shops, barracks for

the local SS administration,

SS guard barracks, officers’

quarters and an officers'

casino. Unlike Sachsenburg,

guards and prisoners were

not housed in the same

building at Dachau.

Dachau's prisoners con-

sisted largely of Jehovah's

Witnesses, Jews, Protes-

tant and Catholic clergy

and other opponents of

the Nazi Party.

Wr... Be Bean

1936 and December 1939, when

Schellong left Dachau, the

defendant commanded the Second

Platoon of the 7th Death's

Head Company, the llth Death's

Head Company, and the 9th

Death's Head Company, all of

which were rifle companies

that performed guard duty at

the camp. The defendant's

responsibilities at Dachau

included training new recruits,

preparation of the duty roster

of guards, and the supervision

of the guards under his com-

mand. Similar to the operation

at Sachsenburg, Schellong's

men performed their guard duties

on a rotating basis, manning

the watchtower, guarding the

APP. A, P. 13

gate, and supervising the forced

labor detail. The defendant was

promoted twice during his term

at Dachau, to First Lieutenant

in April 1937, and to Captain

in August 1939.

Although there was some tes-

timony that SS guards occasion-

ally participated in the

punishment of prisoners at

Dachau, and also some tes-

timony that the guards in at

least one of Schellong's units

were reputed to be among the

most abusive guards in the camp,

no evidence was presented that

Schellong personally beat or

physically abused any prisoner

at Dachau. Schellong admitted,

however, that he was aware of

the inhuman treatment of the

APP. A, P. 14

prisoners he guarded--the forced

labor, the living conditions, and

the punishment. In a volunteered

understatement, the defendant tes-

tified that he knew that Dachau

was not a "nice place to be," and

that the punishment of prisoners

and their living and work con-

ditions were "not a nice subject.”

In late 1939, as the German war

effort mounted, the prisoners at

the Dachau Concentration Camp were

temporarily reassigned to other

camps so that Dachau could be used

for actual military training of

the SS Death's Head Units. At

that time, the various Death's

Head Units were consolidated

into a single military organi-

zation and became, in effect,

a distinct and separate branch

APP. A, P. 15

of the German armed forces. The

name given to that military or-

ganization was Waffen SS, which

translated literally meant "armed

SS." Prior to 1939, no organi-

zation by that name existed.

At no time was the Waffen SS

considered a part of the German

Army.

The record shows that the

defendant served with the 6th

SS Death's Head Regiment of the

Waffen SS in Norway until 1941,

when he was transferred to the

eastern front for the remainder

of the war. Schellong in

November 1942 was promoted to

Major of his unit in the Waffen

SS, and by the end of the war,

held the rank of Lieutenant

Colonel.

APP. A, P. 16

II. The Defendant's Visa

and Citizenship Appli-

cations.

On December 3, 1956, the defen-

dant filed an “Application for

Immigrant Visa and Alien Registra-

tion" (Form FS-256a) with the

United States Consular Office in

Hamburg, Germany. In response to

Question 26 on the application,

requesting the applicant to state

his places of previous residence,

the defendant answered:

"Birth-1911, Dresden, Germany;

1911-1934, Leivozig, Germany;

1934-1939, German Waffen SS;

1939-1945, Waffen SS during

the war, .. .”"

No mention was made cn Schellong's

application of his two years of

residence at the Sachsenburg

Concentration Camp, or of his

three years of residence at

Dachau.

APP. A, P. 17

On January 24, 1957, the

defendant was granted a visa

to enter the United States.

The defendant entered the

United States on or about

February 23, 1957, as he has

resided in this country ever

since that time.

On or about January 29, 1962,

the defendant filed an "Appli-

cation to File Petition for

Naturalization" (INS Form

N-400) to the Immigration and

Naturalization Service. The

defendant signed the applica-

tion on April 16, 1962. In

response to Question 7 on the

application, requesting the

applicant to "[l]ist each

organization, association,

fund, foundation, club or

APP. A, P. 18

society in the United States or in

any other place that you have been

a member of at any time, and the

dates of membership in each," the

defendant answered:

Christlicher Verein junger

Maenner [Church organi-

zation] 1920-1927

Leipziger Ballspiel club

[Soccer club] 1926-1932

National Sozialistische

Arbeiter Partie

(Nazi Party] 1932-1945

Allgemeine SS

[elite corp.] 1932-1934

Waffen SS

[elite corp.] 1934-1945

Member of the Church of

St. Luke

3 1957-Date

{No others]

No mention was made on

Schellong's application of his

3the bracketed materials above

were written, not typed, on

the defendant's application,

and it appears that they may

have been written on the

form by the Immigration

Examiner during his inter-

view with the defendant.

*

APP. A, P. 19

association with the storm

troopers in 1932, or with the

SS Sonderkommando "Sachsen",

or SS Wachverbande "Sachsen",

or with the SS Totenkopfverbande

"Sachsen", the Death's Head

Unit with which he served for

over three years. In addition,

no mention was made as to the

defendant's association with the

SS Totenkopfverbande "Oberbayern"”

(SS Death's Head Unit

"Oberayern") while at Dachau.

On or about April 16, 1962,

in connection with the pro-

cessing of the defendant's

application to file a petition

for naturalization, the

naturalization examiner, Frank

M. Siracusa, now Judge of the

Cook County Circuit Court,

APP. A, i 20

directed the defendant to pro-

vide a sworn written statement

concerning certain information

on his application. Although

the request for a statement was

not in writing, and Judge

Siracusa was unable to recall

the precise wording of his ques-

tion(s) to Schellong, the defen-

dant's response indicates that

the question concerned his ac-

tivities between 1934 and 1939.

Schellong wrote:

"In the years 1927-1933:

the economy of Germany went

more and more down. The

most of the people were

out of work. There were

only 2 partys which could

come on the power: the

Communist party and the

N.S.D.A.P. I decided

with millions of others

for the N.S.D.A.P. I do

not believe in the supreme

blood of the German race.

APP. A, P. 21

"The Allgemeine SS were a part

organization of the N.S.D.A.P.

There member had to march and

to protect the speaker by the

vote campaign. Because I was

strong and healthy they asked

me to join and I did. I hath

no rang [sic: rank].

"The Waffen SS was a part of

the Germany Army. I like to

be soldier and I signed in

1934. I became in all the

years in peace and wartime

Lt. Colonel. I was highest

decorated. I fought only

in East against Russia.

I had never to do any ser-

vice in an concentration camp

and never arrest one man in

this matter. I was only

soldier.

2 w Y

On July 17, 1962, the District

Court for the Northern District of

Illinois, acting on this peti-

tion, granted the defendant's

Petition for Naturalization

and issued to him Certificate

of Naturalization No. 8465738.

APP. A, P. 22

III. Discussion

Section 212(a) of the Immigration

and Nationality Act, 8 U.S.C.

§1182(a)(19) provides that any

alien who has procured a visa

"by fraud, or by willfully mis-

representing a material fact"

shall be ineligible to obtain a

visa and shall be excluded from

admission to the United States.

Correspondingly, Section 340 (a)

of the Act, 8 U.S.C. §1451l(a),

provides that a certificate of

naturalization will be revoked

and set aside where it is later

found to have been "illegally

procured" or "procured by con-

cealment of a material fact or

by willful misrepresentation.”"

See, e.g., Fedorenko v. United

States, 449 U.S. 490 (1981).

APP. A, P. 23

In addition, the Act states that

persons who have given false tes-

timony for the purpose of

obtaining benefits under the Act

lack, as a matter of law, the

good moral character required

for obtaining citizenship.

8 U.S.C. §1101(f) (6). To

sustain its burden of proof,

the government must establish

the facts justifying revoca-

tion by "clear, unequivocal,

and convincing evidence."

Fedorenko v. United States, 449

U.S. at 505. As the Supreme

Court has noted, "[a]ny less

exacting standard would be in-

consistent with the importance

of the right that is at stake

in a denaturalization pro-

ceeding.” Id. at 505-506.

APP. A, P. 24

A. Concealment or

Misrepresentation.

In this case, the government

claims that Schellong's use of

the term "Waffen SS" in both

his visa application and his

application for a naturali-

zation petition covering the

period from 1934-1939 was

willfully false and that he

used that term for the purpose

of concealing his involvement

with the German concentration

camps. Furthermore, the

government contends that the

defendant's supplemental state-

ments that the Waffen SS was

"a part of the German Army,"

and that he "had never to do

any service in any concen-

tration camp," were also

APP. A, P. 25

false, and were also willfully

made for the purpose of con-

cealing his concentration camp

activities. Such misstatements,

the government argues, were

material. According to the

government, had either the con-

sular official who processed

the defendant's visa applica-

tion or the immigration examiner

who processed the defendant's

application for a naturaliza-

tion petition known of the

true extent of the defendant's

involvement in the SS Death's

Head Unit, including his in-

volvement with the concentra-

tion camps, his visa and

citizenship applications would

never have been approved.

APP. A, P. 26

It is the defendant's posi-

tion that he did not conceal

or misrepresent his activities

in the Sachsenburg or Dachau

concentration camps, or his

membership in the SS Death's

Head organization. The defen-

dant maintains that he never

really served in a concentra-

tion camp, but was only a

trainer of guard troops at

the camps. The defendant

denies that he ever actually

4 (from previous page)

The government has also raised

several alternative grounds

for revocation based on the

defendant's participation in

acts of persecution and im-

morality. The court need

not address those arguments,

however, if it finds that

the defendant willfully

concealed or misrepresented

Material facts on either his

visa or citizenship appli-

cation.

APP. A, P. 27

served as a camp guard, and

adamantly states that he

never struck or otherwise

injured a prisoner. Con-

cerning his use of the term

"Waffen SS" instead of

Death's Head Unit as his or-

ganizational affiliation from

1934-1939, and his use of

"Waffen SS" as his residence

during that period instead of

the Sachsenburg and Dachau

concentration camps where he

was actually residing, the

defendant testified that al-

though the military organiza-

tion known as the W:2ffen SS

did not actually come into

existence until 1939, long

before that time the term was

used as an informal designation

APP. A, P. 28

for all "armed" SS personnel.

Therefore, he claims that his

designation of the Waffen SS

for both his residence and also

as his only organizational af-

filiation (outside of the Nazi

Party), reflected a use of

common parlance for the time,

and not an intentional mis-

representation or concealment

of his Death's Head activities

in the camps.

The court, having heard all

of the evidence presented and

after having had the opportunity

to review and assess the

credibility of the various

witnesses, particularly the

testimony of the defendant,

the immigration examiner

Siracusa, and the government's

APP. A, P. 29

expert witness Dr. Charles

Sydnor, finds by clear, con-

vincing and unequivocal

evidence that the defendant

willfully concealed and mis-

represented material facts

in his visa and citizenship

applications which require

that his naturalization cer-

tificate be revoked.

The evidence presented by

the government conclusively

established that during the

period from approximately 1934-

1936, defendant Schellong re-

sided at the Sachsenburg Con-

centration Camp in Saxony,

Germany, and that while he

was there, he was a member

of the SS Death's Head Unit

"Sachsen." The evidence further

APP. A, P. 30

established that while he was at

Sachsenburg, the defendant's ac-

tivities included the training

of concentration camp guards, and

service as the camp Security

Officer and as a Reserve Of-

ficer on a rotating basis.

The record also shows that

incident to the defendant's

duties as a Death's Head of-

ficer at Sachsenburg, the

defendant instructed the

guards under his supervision

to prevent escapes from the

camp, and told the guards that

if a prisoner were seen es-

caping, the guard was to warn

the prisoner and then shoot

to kill him. Furthermore,

the court finds that incident

to the defendant's duties at

APP. A, P. 31

Sachsenburg, the defendant was

responsible for checking on a

prisoner, Erich Jacoby, who

was being held in solitary con-

finement, and that the defen-

dant personally witnessed two

floggings while he was at the

camp. Finally, the court finds

that the defendant was aware

of the regime of hard labor and

punishment imposed upon the

prisoners at Sachsenburg.

The court also finds, based

upon all of the evidence pre-

sented at trial, that the defen-

dant was stationed at the

Dachau Concentration Camp from

approximately November 1936-

1939, during which time he

served as a member of the SS

Death's Head unit at the camp,

APP. A, P. 32

commanding the Second Platoon

of the 7th Death's Head Com-

pany, the llth Death's Head

Company, and the 9th Death's

Head Company. With respect to

the defendant's service at

Dachau, the court finds that

although the defendant was not

housed in the same building

that housed the prisoners as he

had been at Sachsenburg, the

defendant's activities with res-

pect to the concentration camp

were significant. The evidence

convincingly established that

at Dachau, the defendant super-

vised guard troops who watched

the prisoners on work detail,

manned the watchtowers to prevent

escapes, and engaged in other

guard-type activities. The

APP. A, P. 33

evidence also established that

the defendant was aware of the

forced labor assignments at the

camp, ranging from breaking

rocks to hauling raw sewage,

and that the defendant was also

aware of the punishment in-

flicted upon the prisoners by

the members of the commandant's

staff and also by some guards.

In sum, the court finds that

the defendant misrepresented his

residence on his visa applica-

tion by deleting any mention of

his residence at Sachsenburg

and Dachau. Furthermore, the

court finds that the defendant

misrepresented his organizational

affiliations on his application

for a naturalization petition by

deleting any mention of his

APP. A, P. 34

affiliation with the SS Sonder-

kommando "Sachsen," the SS

Wachverbande "Sachsen," or par-

ticularly the SS Totenkopfverbande

"Sachsen" (or “Death's Head").

Defendant also failed to include

his affiliation with the SS

Totenkopfverbande "Oberbayern"

(SS Death's Head Unit "Oberbayern")

while at Dachau. Finally, the

court finds that the defendant

misrepresented certain information

on his supplemental statement in

support of his naturalization

petition, by stating that the | r

Waffen SS, a term which he had

used, was a branch of the German

Army and that he had not served

in any concentration camp. All

of the above misrepresentations,

the court finds, alternatively

APP. A, P. 35

represent statements which con-

ceal the fact of the defendant's

membership in the SS Death's

Head and his service super-

vising guards in the Sachsenburg

and Dac’au concentration camps.

B. Materiality

The Supreme Court has held

that for purposes of inter-

preting the immigration laws,

a misrepresentation "must be

considered material if dis-

closure of the true facts would

have made the applicant in-

eligible for a visa." Fedorenko

v. United States, 449 U.S. at

509. A second, more liberal

test for determining material-

ity in naturalization applications

not relied upon by the Supreme

APP. A, P. 36

Court in Fedorenko was expressed

in Chaunt v. United States, 364

U.S. 355 (1960). There, the

Court held that the government

must show either:

"(1) that facts were sup-

pressed which, if known,

would have warranted denial

of citizenship or (2) that

their disclosure might

have been useful in an in-

vestigation possibly leading

to the discovery of other

facts warranting denial of

citizenship."

In this case, the court finds

that had Schellong not concealed

his correct residence on his

visa application in 1956, he

would have been considered in-

eligible to receive an immigra-

tion visa by virtue of his service

at Sachsenburg and Dachau.

Lewis D. Junior, who served in

the Consular Office at Hamburg

for a three-year period following

APP. A, P. 37

early 1956, testified that visa

applications were routinely denied

whenever they disclosed service

in a concentration camp and that

defendant would have been re-

jected if his documentation

showed that he had been in-

volved in a SS Death's Head

division at a concentration

camp. As the Court in Fedorenko,

supra, pointed out, "At the very

least, a misrepresentation must

be considered material if dis-

closure of the true facts would

have made the applicant in-

eligible for a visa." 449 U.S.

at 509.

In addition, the court finds

that the defendant's misrepresen-

tations on his application for a

petition of naturalization were

APP. A, P. 38

material. There, in response

to a question requesting all

of his organizational af-

filiations, the defendant

failed to list his membership

in the SS Death's Head Unit,

an answer which would have

prompted further investigation

"possibly leading to the dis-

covery of other facts warranting

denial of citizenship." Chaunt,

supra. The materiality of the

defendant's concealment on his

supplemental statement is also

evident. Had the defendant

properly stated that the Waffen

SS (which he had listed as one

of his only organizational af-

filiations) was never considered

a part of the German Army,

and that his assignments were

APP. A, P. 39

at two German concentration camps,

the court is convinced that fur-

ther investigation would have

taken place, possibly leading

to the discovery of other facts

warranting denial of Schellong's

citizenship petition. See

Chaunt. The effect of these

misstatements and missions was

highlighted when the following

hypothetical question was

asked of the defendant's immigra-

tion examiner:

MS. WAWZENSKI: If the misrepresen-

tation had to do

with failing to dis-

close the service at

these camps, and

that he rose to the

level of a captain in

those camps, that he

supervised guards

who dealt with

forced labor, or-

dered those guards

to shoot to kill

anyone who es-

caped from the

camp. If that

APP. A, P. 40

was the misrep-

resentation that

had been made,

what would be

your conclusion?

THE WITNESS: My conclusion

would be to deny

the application.

Although the court is not

bound to accept the witness'

testimony as conclusive,

based upon all of the un-

rebutted testimony concerning

the extent of the defendant's

involvement in camp activities,

the court concludes that the

defendant's misrepresentations

and omissions were material and

if true and complete answers

had been given, defendant would

not have received his citizenship.

APP. A, P. 41

C. Intent

The parties have agreed that

only willful misrepresentations

or willful concealment of

material facts is actionable

under the immigration laws

at issue here. See 8 U.S.C.

§145l(a). In this case, the

court finds that the misrep-

resentations and concealment

were willful. It is sig-

nificant that from the time

defendant applied for his visa

in 1956 until he filed his

supplemental affidavit on

July 17, 1962, in support of

his petition for naturaliza-

tion, he carefully avoided

any references to his residence

and his activities at

APP. A, P. 42

Sachsenburg and Dachau. His

excuse for omitting this

damaging information is that

he used the term Waffen SS

to cover his army service

during this period.

Although the defendant in

his own behalf concerning the

common use of the term Waffen

SS as an umbrella term for

all armed SS personnel, he

failed to introduce any

evidence of consequence sup-

porting such a finding. The

only evidence offered by the

defendant was an officer's

evaluation of Schellong pre-

pared in 1940. In that

evaluation, the officer listed

Schellong as having been with

the Waffen SS since 1934. That

APP. A, P. 43

limited evidence, however, is

not seriously probative of any

recognized informal acceptance

of the term prior to 1940, par-

ticularly in light of Dr.

Sydnor's testimony that the

term was not used. In addition,

the government introduced a

curriculum vitae prepared by

the defendant himself in 1936, in

which he lists his organizational

affiliations by individual name,

rather than collectively as

Waffen SS. In fact, Schellong's

curriculum vitae makes no mention

of the term Waffen SS. Finally,

as evidence of willfulness, the

court notes that when the defen-

dant was given an opportunity

in 1962 to clarify just what he

meant by the term Waffen SS, he

APP. A, P. 44

erroneously stated that it was

a part of the German Army, thus

drawing attention away from his

connection with the concentra-

tion camps. Given the widely

recognized consequences to

an immigrant who had been linked

to the concentration camps, on

the basis of the testimony pre-

sented, defendant had ample

reasons to hide his guard ser-

vice during this period. The

court concludes that the govern-

ment has proven by clear and

convincing evidence that the

defendant's misrepresentations

were willful.

IV. Equitable Defenses.

The defendant has raised a

number of equitable defenses,

APP. A, P. 45

claiming that the representations

which he made on this adplica-

tion, including his admitted

affiliation with the Nazi Party,

should have been sufficient to

alert the government to his SS

activities as early as 1956 or

1962, and that the government's

failure to act on that infor-

mation until this late date

constitutes laches or estoppel,

with the same effect as a statute

of limitations.

A similar plea was listened to

sympathetically by the district

judge involved in the appeal in

Fedorenko v. United States, 449

U.S. at 516-18. In that case,

the district court had ruled

that even assuming that peti-

tioner had misrepresented

APP. A, P. 46

material facts, equitable and

mitigating circumstances re-

quired that the petitioner be

permitted to retain his citizen-

ship. In agreeing with the

court of appeals that the trial

court possessed no such dis-

cretion, Mr. Justice Marshall,

writing for the Supreme Court,

left no question as to the

limited authority of a district

judge in denaturalization

proceedings:

"{O]nce a district court

determines that the Govern-

ment has met its burden of

proving that a naturalized

citizen obtained his citizen-

ship illegally or by willful

misrepresentation, it has

no discretion to excuse

the conduct. Indeed, con-

trary to the District Court's

suggestion, .. . this

issue had been settled

by prior decisions of this

Court. [5] In case after

APP. A, P. 47

case, we have rejected lower

court efforts to moderate

or otherwise avoid the statu-

tory mandate of Congress in

denaturalization proceedings.

in ate We repeat here what

we said in one of these ear-

lier cases.

‘An alien who seeks poli-

tical rights as a member

of this Nation can right-

fully obtain them only

upon the terms and con-

ditions specified by

Congress. Courts are

without authority to

Sanction changes or

modifications; their

duty is rigidly to en-

force the legislative

will in respect of a

matter so vital to the

public welfare. United

States v. Ginsberg, [243

U.S. 472, at 474-475

(1917).)'"

Fedorenko, supra, at 517-518

5

For other cases to the same

effect as Fedorenko, see also

Costello v. United States, 365

U.S. 265, at 281 (1961); Knauer

v. United States, 328 U.S. 654

(1946); and United States v.

Ness, 245 U.S. 319 (1917).

APP. A, P. 48

(footnote added.)

At the least, Conrad Schellong

in applying for his visa and his

admission to citizenship was under

both a moral and a legal obliga-

tion to give truthful and complete

answers to the questions posed

to him. He failed in this test

and thereby obtained a grant of

citizenshiv which would otherwise

have been denied him. Having

taken this course and having

willfully made the material

misrepresentations and omissions

discussed in this opinion,

Schellong himself is responsible

for the order which follows:

It is the judgment of this

court that this court's order

of July 17, 1962, admitting

defendant to citizenship, is

APP. A, P. 49

hereby set aside, and it is further

ordered that defendant's Certifi-

cate of Naturalization No. 8465738

is hereby cancelled, and that

said certificate be surrendered

to the United States Attorney

for the Northern District of

Illinois.

ENTER

/ss/ Bernard M. Decker

United States

District Judge

DATED: September 9, 1982

APP. B, P. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 82-2948

UNITED STATES

OF AMERICA

Plaintiff-

Appellee,

Vv.

CONRAD HEINRICH

SCHELLONG,

Defendant-

Appellant.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS, EASTERN

DIVISION

NO. 81 C 1478-BERNARD M. DECKER,

JUDGE

ARGUED MAY 11, 1983-

DECIDED AUGUST 24, 1983*

*This appeal was originally de-

cided by unreported order on

August 24, 1983. See Circuit

Rule 35. The Court has sub-

sequently decided to issue the

decision as an opinion.

APP. B, P. 2

Before CUMMINGS, Chief Judge,

ESCHBACH, Circuit Judge, and

CAMPBELL, Senior District Judge.**

CUMMINGS, Chief Judge. Defendant

Conrad H. Schellong appeals from a

district court order setting aside

a prior order admitting defendant

to citizenship, and cancelling

defendant's Certificate of

Naturalization. United States

v. Schellong, 547 F. Supp. 569

(1982).

Plaintiff, the United States

of America, brought this action

pursuant to Section 340(a) of

the Immigration and Nationality

Act of 1952, as amended,

nx

The Honorable William J.

Campbell, Senior District:

Judge for the Northern D:s-

trict of Illinois, is sitting

by designation.

APP. B, P. 3

8 U.S.C. §145l1(a), to revoke

the citizenship of the defen-

dant on the grounds that he

procured his citizenship il-

legally and by concealment or

willful misrepresentation of

a material fact.

The controversy centers

around Schellong's activities

between 1932 and 1939 as he

described them in 1956 on his

visa application, in 1962 on

his petition for naturaliza-

tion, and in a supplemental

statement filed in connection

with that petition. The evi-

dence in the record shows that

in 1932 defendant joined the

para-military unit of the Nazi

Party, the Sturmabteilungen,

more commonly known as the

APP. B, P. 4

storm troopers, "brown shirts”

or "SA". He remained a mem-

ber of the SA for several

months. In December of 1932

defendant joined both the

Nazi Party and the Schutzstaffel,

commonly known as the Allgemeine

SS, and he remained a member of

the Allgemeine SS until 1934.

As the district court found,

"[t]he principal function of

the Allgemeine SS in the early

1930's was to guard Nazi Party

speakers and to carry out party

intelligence, although the SS

gradually assumed the addition-

al resvonsibility of the ad-

ministration and guarding of

the concentration camns."

547 F. Supp. at 570. In

February 1934, defendant joined

APP. B, P. 5

the SS Sonderkommando "Sachsen"

(SS Special Commando "Sachsen")

which was stationed at the

Sachsenburg Concentration Camp

in Saxony, Germany. The SS

Special Commando "Sachsen" was

renamed the SS Wachverbande

"Sachsen" (SS Guard Unit "Sachsen")

in late 1934, and in April 1936

was again renamed the SS

Totenkopfverbande "Sachsen" (SS

Death's Head Unit "Sachsen"”).

In early 1936, defendant was

assigned for approximately four

months to the llth Company of

the SS Guard Unit "Oberbayern”

at Dachau Concentration Camp,

near Dachau, Germany, where he

participated in a platoon

leaders training course. He

APP. B, P. 6

returned to Sachsenburg for

several months, and was then

transferred to Dachau and

assigned to the 7th Company

of the Death's Head Unit

"Oberbayern". Defendant re-

Mained at Dachau until

December 1939, commanding the

Second Platoon of the 7th

Death's Head Company, the 11th

Death's Head Company, and the

9th Death's Head Company, all

of which were rifle companies.

In late 1939 as the German war

effort mounted, the SS Death's

Head Units were consolidated

into a single military organi-

zation called the Waffen SS

("armed" SS). This organization

was never considered a part

APP. B, P. 7

of the German armed forces,

the Wehrmacht. During this

time, defendant rose from a

corporal at Sachsenburg in

October 1934 to a Captain

at Dachau in Auqust, 1939.

By the end of the war, he

held the rank of Lieutenant

Colonel.

While at Sachsenburg, defen-

dant's responsibilities included

training and supervising a

platoon of guards, and service

as a Security Officer anda

Reserve Officer on a rotating

basis with other platoon

leaders. During defendant's

rotation as Security Officer,

he was in charge of security

for the entire camp for twenty-

four hour periods. Incident

APP. B, P. 8

to defendant's duties, he in-

structed the guards under his

supervision to prevent escapes

from the camp, to warn es-

caping prisoners and then shoot

to kill. Defendant also had

responsibility on at least one

occasion for checking on a

prisoner, Erich Jacoby, who was

being held in solitary confine-

ment.

The district court found

that "at Dachau, the defendant

supervised guard troops who

watched the prisoners on work

detail, manned the watchtowers

to prevent escapes, and engaged

in other guard-tyve activities."

547 F. Supp. at 574. Defendant

contests this finding, arguing

that at Dachau he was in charge

APP. B, P. 9

of a platoon of military re-

cruits who did not have to

do guard duty. There is sub-

stantial evidence,.in the record,

however, to support the finding

that the recruits were trained

for both military and guard

duty, and kept on reserve in

case they were needed to do

guard duty or maintain order

in the camp.

The district court's opinion

contains a succinct summary of

defendant's visa and citizen-

shio applications, 547 F. Supp.

at 572-573 (footnote omitted):

On December 3, 1956,

the defendant filed an

"Application for Immigrant

Visa and Alien Registra-

tion” (Form FS-256a) with

APP. B, P. 10

the United States Consular

Office in Hamburq, Germany.

In response to Question 26

on the application, re-

questing the applicant to

state his places of previous

residence, the defendant

answered:

Birth-1911, Dresden,

Germany; 1911-1934,

Leipzig, Germany;

1934-1939, German

Waffen SS; 1939-1945,

Waffen SS during the

war, "

No mention was made on

Schellong's application of

his two years of residence

at the Sachsenburg Concen-

tration Camp, or of his

three years of residence

at Dachau.

On January 24, 1957, the

defendant was granted a visa

APP. B, P. ll

to enter the United States.

The defendant entered the

United States on or about

February 23, 1957, and he

has resided in this country

ever since that time.

On or about January 29,

1962, the defendant filed

an "Application to File

Petition for Naturalization"

(INS Form N-400) to the

Immigration and Naturaliza-

tion Service. The defendant |

Signed the application on

April 16, 1962. In response

to Question 7 on the appli-

cation, requesting the appli-

cant to "[l)ist each organi-

zation, association, fund,

foundation, club or society

in the United States or in any

APP. B, P. ia

other place that you have

been a member of at any

time, and the dates of mem-

bership in each,” the

defendant answered:

Christlicher Verein junger

Maenner [Church organi-

zation) 1920-1927

Leipziger Ballspiel club

[Soccer club] 1926-1932

National Soz‘.alistische

Arbeiter Partie

[Nazi Party] 1932-1945

Allgemeine SS

{elite corps) 1932-1934

Waffen SS

[elite corps] 1934-1945

Member of the Church of

St. Luke

[No others] 1957-Date

[The five items in brackets

may have been written on the

form by the immigration

examiner.) No mention was

made on Schellong's applica-

tion of his association with

the storm troopers in 1932,

or with the SS Sonderkommando

APP. B, P. 13

"Sachsen" the SS Wachverbande

“Sachsen" or with the SS

Totenkopfverbande "Sachsen",

. « « eIn addition, no men-

tion was made as to the

defendant's association with

the SS Totenkopfverbande

"“Oberbayern" (SS Death's

Head Unit "Oberbayern")

while at Dachau.

On or about April 16, 1962,

in connection with the pro-

cessing of the defendant's

application to file a peti-

tion for naturalization, the

naturalization examiner, Frank

M. Siracusa, now Judge of

the Cook County Ciruit Court,

directed the defendant to

provide a sworn written state-

ment concerning certain in-

APP. B, P. 14

formation on his application.

Although the request for a

statement was not in writing,

and Judge Siracusa was unable

to recall the precise wording

of his question(s) to

Schellong, the defendant's

response indicates that the

question concerned his ac-

tivities between 1934 and

1939. Schellong wrote:

"In the years 1927-1933:

the economy of Germany

went more and more

down. The most of the

people were out of

work. There were only

2 partys which could

come on the power: the

Communist party and the

N.S.D.A.P. I decided

with millions of others

for the N.S.D.A.P. I

do not believe in the

supreme blood of the

German race.

"The Allgemeine SS were

a part organization of

the N.S.D.A.P. There

member had to march

APP. B, P. 15

and to protect the speaker

by the vote campaign.

Because I was strong and

healthy they asked me to

join and I did. I hath no

rang [sic: rank].

"The Waffen SS was a part

of the German Army. I

like to be soldier and

I signed in 1934. I be-

came in all the years in

peace and wartime Lt.

Colonel. I was highest

decorated. I fought

only in East against

Russia. I had never to

do any service in an

concentration camp and

never arrest one man

in this matter. I was

soldier.

* * * *

On July 17, 1962, the Dis-

trict Court for the Northern

District of Illinois, acting

on this petition, granted the

defendant's Petition for

Naturalization and issued to

him Certificate of Naturali-

zation No. 8465738.

APP. B, P. 16

I. Insufficiency of the

evidence

Defendant argues that the

government has failed to show

willful misrepresentation or

concealment on the visa appli-

cation, the petition for

naturalization, or the sup-

plemental statement by clear,

unequivocal and convincing

evidence. Fedorenko v. United

States, 449 U.S. 490, 505;

Chaunt v. United States, 364

U.S. 350, 353. On the visa

application, when asked to list

residences defendant listed

"German Waffen SS" from 1934-

1939, and "Waffen SS" from

1939-1945. Defendant failed

to list Sachsenburg or Dachau

as residences even though he

APP. B, P. 17

lived at those locations for a

total of five years. The govern-

ment's expert, Dr. Sydnor, tes-

tified that the Waffen SS did not

exist before 1939, and that con-

sequently, listing "German Waffen

SS" as a residence from 1934-

1939 was not only not responsive

to the question, but was also an

impossibility. Defendant res-

ponds by claiming that the use

of the term "Waffen SS" to mean

"armed" SS was common before

1939, even though the Waffen SS

was not formally designated as

such until 1939. Defendant

supports this theory with tes-

timony from his wife, and by

introducing an evaluation of

Schellong written in 1940 and

APP. B, P. 18

referring to defendant as

joining the Waffen SS in

1934. The district court

gave little weight to this

evidence.

If this case centered only

around the visa application,

we would be reluctant to up-

hold a finding of willful

concealment or misrepresenta-

tion. The testimony of

government witness L. Donald

Junior, a former consular

official, indicates that the

visa aoplication itself was

very limited in space; the

applicant's answers would be

expanded on the supplemental

questionnaire which was also

reguired and in the face-to-

face interview. Yet no

APP. B, P. 19

supplemental questionnaire was

introduced into evidence in this

case, and this Court can only

hypothesize as to whether or not

Schellong was asked about his

Waffen SS service, as the

government claims he must have

been, and whether or not he

clarified or expanded his

answer. For all we know at

this point, Schellong might

have entered "Waffen SS" as

a form of shorthand for his

residences, fully intending

to clarify the answer if given

the opportunity to do so.

The visa application is not,

however, the only alleged in-

stance of willful misrepresen-

tation or concealment. Six

years later defendant was asked

APP..B, P. 20

on the naturalization petition

to list all the organizations

and clubs to which he belonged.

He failed to list his SA mem-

bership in 1932, claiming a

lapse of memory, though he did

remember to list his church

membership from 1920-1927, and

his membership in a soccer

Club from 1926-1932. He again

listed Waffen SS, but this time

from 1934-1945 rather than

dividing it up as in his visa

application, into "German

Waffen SS" from 1934-1939, and

"Waffen SS" from 1939-1945.

Defendant omitted his associa-

tion with the SS Sonderkommando

"Sachsen" the SS Wachverbande

"Sachsen", the SS Totenkopfver-

bande "Sachsen" and the SS

APP. B, P. 21

Totenkopfverbande "Oberbayern".

There are apparently no space

limitations on the naturaliza-

tion petition that could justify

using "Waffen SS" as a shorthand

notation. In addition, even if

the term "Waffen SS" were used

informally during that period-

a finding the district court

specifically rejected-the evi-

dence shows that on a 1936

curriculum vitae prepared by

defendant himself, he listed

his organizational affiliations

by individual name rather than

collectively as Waffen SS.

Finally, we know that defen-

dant was given the opportunity

to clarify or expand his

answer in 1962 because the

naturalization examiner asked

APP. B, P. 22

him to provide a supplemental

statement. Rather than clari-

fying the use of the term

"Waffen SS", defendant er-

roneously stated that it was

part of the German Army, "thus

drawing attention away from

his connection with the concen-

tration camns." 547 F. Supp.

at 576.

Defendant's further remark

on the supplemental statement-

"I had never to do any service

in an concentration camo"-

is by far the most damning.

The evidence showed that he

was a trainer and supervisor

of concentration camp guards.

Defendant argues that he never

participated in supervising

or punishing the camp vrisoners;

APP. B, P. 23

that he was not part of the

camp commandant's staff, which

was responsible for the daily

routine of the prisoners' lives,

but was only part of the external

guard; that in fact he never

"entered" a concentration camp.

The government agrees there is

no evidence that defendant him-

self punished any prisoners,

though he did check on a

Prisoner held in solitary con-

finement at Sachsenburg at

least once. The government

also agrees that defendant

was not part of the commandant's

staff, and that he was respon-

sible for prisoners only in that

he was to prevent their escape,

both from the camp and from out-

side work sites to which they were

APP. B, P. 24

escorted. But defendant is

playing a semantics game in

arguing that he never served

"in" a concentration camp but

merely served "at" Sachsenburg

and Dachau. Clearly, the dis-

trict court did not believe

that Schellong was canable of

making such a fine distinction

in 1962. Even if such a dis-

tinction were plausible, it

would be exceedingly difficult

to make in the case of

Sachsenburg, which was a fence-

less camp, consisting of one

large building housing both

prisoners and guards in separate

sections. In light of these

facts, the district court did

not err in finding willful

misrepresentation or concealment.

APP. B, P. 25

Defendant also challenges the

sufficiency of the evidence on

the issue of materiality by

challenging the hypothetical

questions asked of the govern-

ment witnesses. Frank Siracusa,

the naturalization examiner who

reviewed defendant's petition

and presently Judge of the

Circuit Court of Cook County,

Illinois, was asked whether

he would have granted it based

on the following facts: defen-

dant failed to mention he had

served as a guard at Sachsenburg

and Dachau; defendant was as-

signed regularly on a rotating

basis as concentration camp

Security Officer; he supervised

SS guards, vosted guards,

checked guard posts, ordered

guards to shoot to kill es-

caping vorisoners; and at

Sachsenburg he commanded a

Platoon of guards who performed

regular services at the camp,

accompanying prisoners to

their work sites and over-

seeing them during their

Gaily routine (Tr. 41-42).

Judge Siracusa responded that

he would have denied the peti-

tion based on those facts

(Tr. 43). Anthony Petrone,

the supervisory naturali-

zation examiner on Mr.

Schellong's petition, was

asked a similar question and

gave a similar answer (Tr.

63-65). Immigration Judge

Petrone was also asked what

he would have done if he

APP. B, P. 27

learned that an avovlicant had

participated in the Nazi pro-

gram of religious and political

persecution during the war,

and he responded that he would

have continued the case

pending further investigation

(Tr. 66-67). Finally, Mr.

Junior, a vice consul with

the State Department in Hamburg,

Germany in 1956+, was asked

a question similar to that asked

of Judge Siracusa, but embel-

lished with some additional

facts: the applicant volun-

tarily joined the SS Death's

Head division; prisoners were

subjected to beatings by SS

;

Defendant filed his visa ap-

plication in 1956 in Hamburg

but before a different con-

Sular officer.

APP. B, P. 28

guards, whippings and solitary

confinement; and the applicant

had trained voluntary recruits

in the ideology of the Nazi

regime (Tr. 92-93). The witness

responded that he would have

denied the visa (Tr. 94).

Some aspects of the hypo-

thetical questions were clearly

improper. For example, Mr.

Junior was asked what he

would have done if he had

known that the guards under

the applicant's supervision

beat prisoners, whipped them

and put them in solitary

confinement. There was no

evidence in the record that

defendant's guards had control

over punishment such as

solitary confinement. In

APP. B, P. 29

addition, a question directed to

Judge Siracusa implied that

defendant's duties as Security

Officer were performed both

at Dachau and Sachsenburg,

while the evidence indicates

that he served on a rotating

basis as camp Security Officer

only at Sachsenburg. Nonethe-

less, the district judge made

clear that defense counsel was

to call to his attention at

the end of the trial the failure

of the government to introduce

into evidence facts necessary

to sustain the hypotheticals

(Tr. 94). The district judge

himself was aware of the limi-

tations of the government's

evidence, for when the govern-

APP. B, P. 30

ment argued in closing that

the defendant "participated"

in the Nazi program of per-

secution, the judge noted

that there was no evidence

implicating defendant in any

specific incident (Tr. 532-

533). But there were suffi-

cient facts introduced into

evidence to show that if the

visa examiner or the naturali-

zation examiners had been aware

of defendant's role at Sachsen-

burg as a trainer and supervisor

of guards, and as a rotating

Security Officer and Officer on

Reserve; and of his role at

Dachau as a trainer of troops

held on reserve for guard duty;

and as a member of the SS

Death's Head Units, they would

APP. B, P. 31

have either denied his visa

application and naturaliza-

tion petition (Tr. 43, 65, 94),

Fedorenko v. United States,

449 U.S. at 514-516, or continued

then pending a more detailed in-

vestigation (Tr. 67), "possibly

leading to the discovery of

other facts warranting denial

of citizenship." Chaunt v.

United States, 364 U.S. 350,

355; United States v. Fedorenko,

597 F. 2d 946, 951 (5th Cir.

1979), affirmed without af-

firming or denying this

particular aspect of material-

ity, 449 U.S. at 518 n. 40.

II. Discovery

The government took several

videotaped depositions in

APP. B, P. 32

California and Europe. Defen-

dant's counsel did not attend

them, and consequently had

no opportunity to cross-examine

those witnesses whose deposi-

tion testimony was introduced

at trial. Although the govern-

ment offered to pay all travel

expenses plus a per diem for

food and lodging, defendant's

retained counsel demanded

attorney's fees, relying on

Local Rule 4 of the Northern

District of Illinois, which

provides that the court may,

in its discretion, condition

a discovery order on payment

of reasonable attorney's fees.

Counsel argued that he was

entitled to fees because he

had “more pressing obliaations"

APP. B, P. 33

in Chicago, and if he stayed

in Chicago instead of attending

the depositions he could make

$600 during one week (Tr. No. 12,

1981 at 16). In addition, counsel

claimed his client was indigent

despite a $4,000 retainer and a

fee agreement for $90 an hour.

As pointed out by the government

before the district court, defen-

dant's income statement showed

interest income without revealing

the underlying assets and was

thus incomplete. Defendant

never requested appointed

counsel. In light of these

facts, we do not think the

district court abused its dis-

cretion in denying fees in

this case. See also Cassata

APP. B, P. 34

v. Federal Savings and Loan

Insur. Corp, 445 F. 2d 122,

126 (7th Cir. 1971), inter-

preting North Atlantic & Gulf

S.S. Co. v. United States,

209 F. 2d 487 (2d Cir. 1954),

relied on by defendant, as

allowing attorney's fees in

connection with a deposition

to be assessed against the

United States based on the

fact that the United States

agreed to the condition. Des-

pite the fact that defendant

chose not to attend the deposi-

tions, the district court

granted him leave to object

during the replay of the video-

tapes. It should be noted that

the district court did not rely

on the depositions to any great

APP. B, P. 35

extent in its fact-finding.

Defendant raises numerous

other objections, all of

which are meritless. He argues

that government witnesses Im-

migration Judge Petrone and L.

Donald Junior were presented

as experts but were named only

after the close of discovery.

The government's only expert,

however, was Dr. Sydnor, and

defendant fails to mention

that none of his interroga-

tories ever sought the names

of the government's trial

witnesses. Both Judge Petrone

and Mr. Junior were listed on

the pretrial order, and

defendant did not object to

either of them before trial

(Tr. 60, 72).

APP. B, P. 36

Defendant also complains

about having insufficient time

to depose the government's

expert, Dr. Sydnor, and in-

sufficient time and money

to translate all the govern-

ment's documents. Defendant

thus moved to extend discovery

to the year 1999 A.D. Need-

less to say, the motion was

denied. The government pro-

vided translations for most

of the documents handed over

in discovery and gave defen-

dant ample time to depose its

expert. The district court

did not abuse its discretion

in closing discovery.

APP. B, P. 37

III. Jury Trial

Defendant argues that he is

entitled to a trial by jury.

This Court declined to recon-

sider that issue in United

States v. Walus, 616 F. 2d

283, 304 n.53 (7th Cir.

1980), and we decline to do

so now. We remain bound by

the Supreme Court's holding

in Luria v. United States,

231 U.S. 9, that there is no

right to a jury trial ina

denaturalization proceeding.

Defendant argues that there

are al*ernative constitutional

bases for a jury trial, and

that Luria only decided the

Seventh Amendment issue. He

argues that Article III and

APP. B, P. 38

the Sixth Amendment provide

defendant with the basis for

a jury trial in a denaturali-

zation proceeding. But a

denaturalization suit has

never been considered to be a

criminal prosecution; Kennedy

v. Mendoza-Martinez, 372 U.S.

144, does not mandate a con-

trary result. In that case,

the Court considered a

statute which provided for

automatic forfeiting of

citizenship as a penalty for

leaving the United States

to avoid the draft. Because

the loss of citizenship was

intended as a penal sanction,

the accused was entitled to a

criminal trial with all its

incidents including trial by

APP. B, P. 39

jury. A denaturalization vro-

ceeding such as this does not

entitle a defendant to all

the incidents of a criminal

trial. Rather, it is well

established that such a pro-

ceeding is civil in nature.

Schneiderman v. United States,

320 U.S. 118, 160; United

States v. Minerich, 250 F. 2d

Jal, 726 (7th Circ. 1957).

The fact that loss of citizen-

ship in Mendoza-Martinez,

supra, was intended as a penal

sanction explains why the

defendant in that case, a

native-born American, was

entitled to a jury trial;

defendant's equal protection

argument, based on the dif-

ference in treatment between

APP. B, P. 40

a native-born American and a

naturalized citizen, is there-

fore without merit. So too is

defendant's final argument, that

the due process clause requires

a jury trial in this case.

Mathews v. Eldridge, 424 U.S.

319. Though revocation of

citizenship is a severe sanc-

tion, due process was satisfied

by a fair trial before an im-

partial decision-maker.

The judgment of the district

court is affirmed.

A true Copy:

Teste:

Clerk of the United

States Court of

Appeals for the

Seventh Circuit

APP. C, P. l

UNITED STATES COURT OF APPEALS

For the Seventh Court

Chicago, Illinois 60604

September 22, 1983

Before

Hon. WALTER J. CUMMINGS,

Chief Judge

Hon. JESSE E. ESCHBACH,

Circuit Judge

Hon. WILLIAM J. CAMPBELL,

Senior District Judge*

UNITED STATES Appeal from

)

OF AMERICA, ) the United

Plaintiff- ) States Dis-

Appellee, ) trict Court

) for the

) Northern Dis-

No. 82-2948 vs. ) trict of

) Illinois,

) Eastern

CONRAD HEINRICH ) Division.

SCHELLONG, ) No. 81 C 1478

Defendant- ) Bernard M.

Appellant. ) Decker, Judge

The Honorable William J.

Campbell, Senior District

Judge of the Northern

District of Illinois is

sitting by designation.

On consideration of the peti-

tion for rehearing and sugges-

tion for rehearing en banc

filed in the above-entitled

cause by defendant-appellant

Conrad Heinrich Schellong, no

judge in active service has

requested a vote thereon, and

all of the judges on the

original panel have voted

to deny a rehearing. Ac-

cordingly,

IT IS ORDERED that the

aforesaid petition for re-

hearing be, and the same is

hereby, DENIED.