Amicus Brief — Fedorenko v. United States

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IN THE

Supreme Court of the United States

October Term, 1979

No.. 79-5602

FEODOR FEDORENKO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuii

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE AND BRIEF OF THE AMERICAN

JEWISH CONGRESS ON BEHALF OF

ITSELF AND THE NATIONAL JEWISH

COMMUNITY RELATIONS ADVISORY

COUNCIL, AMICI CURIAE

Pum Baum

NatHan Z. DersHow1tz

Attorneys for the Amici Curiae

The American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 879-4500

Marc D. Stern

Of Counsel

IN THE

Supreme Court of the United States

October Term, 1979

No. 79-5602

Fropor F'rporenxKo,

Petitioner,

Unitep States or America,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE

The undersigned, as counsel for the American Jewish

Congress, and the National Jewish Community Relations

Advisory Council respectfully move this Court for leave to

file the accompanying brief amici curiae in support of re-

spondent’s assertion that the court below properly revoked

petitioner’s citizenship. Pursuant to Rule 42, the parties’

consent to the filing of the attached brief was sought. The

Solicitor General, on behalf of respondent, assented, but

Brian M. Gildea, Esq., petitioner’s attorney, refused to

do so.

The American Jewish Congress is a national organiza-

tion of American Jews founded in 1918 and concerned with

the preservation of the security and constitutional rights of

American Jews through preservation of the rights of all

Americans.

The National Jewish Community Relations Advisory

Council (NJCRAC) is a coordinating body comprised of

eleven national lay Jewish organizations* concerned with

American Jewish Community relations and 108 local Jewish

Community Councils, including all the major cities in the

United States. One of the important goals of NJCRAC is

the prosecution of denaturalization cases against alleged

Nazi war criminals.

The American Jewish Congress has a long history of

combating anti-Semitism both in the United States and

abroad. In the years following World War I, as Jews across

the European Continent found themselves once again the

hapless victims of national frustrations and as virulent

anti-Semitism, notably in the form of N azism, mounted, it

began actively to meet the threat which anti-Semitism

posed to the Jewish people and world civilization. During

and since World War II, the American Jewish Congress

and N.J.C.R.A.C. have sought to have world governments

bring to justice those responsible for the heinous crimes of

the Nazi regime. They have particularly emphasized the

need for the Department of Justice to insure that Nazi war

* These organizations are: American Jewish Committee, Ameri-

can Jewish Congress, B’nai Brith—Anti-Defamation League, Hadas-

sah, Jewish Labor Committee, Jewish War Veterans of the U.S.A.,

National Council of Jewish Women, Union of American Hebrew Con-

gregations, Union of Orthodox Jewish Congregations of America,

United Synagogue of America, Women’s American ORT,

III

criminals not find a haven in this country. That Depart-

ment has instituted a series of lawsuits, of which this is one,

designed to deprive Nazi war criminals of American citizen-

ship. A reversal of the decision below would place insur-

mountable obstacles in the way of that effort. Because the

American Jewish Congress and NJCRAC believe that such

a result would be intolerable, they seek leave to file this

brief,

Respectfully submitted,

Pum Baum

Natuan Z, DersHow1tz

Attorneys for the Amici Curiae

‘he American Jewish Congress

15 Hast 84th Street

New York, New York 10028

(212) 879-4500

TABLE OF CONTENTS

Questions Presented RUT RE in Sts

Decisions Below

Jurisdiction |.

Summary of Argument

Statutory Provisions Involved ._. One |

Statement

Argument

of the Case

Point I—The Court of Appeals correctly held that

the government need not prove that an investi-

gation would have uncovered facts showing an

alien to be excludable ..0....0.........ccccecccscsses

The language of Chaunt is unambiguous -

The facts in Chaunt support the decision

Sa RO PRAN LC DEN: pa nbisiedanti eto een eae

The decision below comports with the pur-

poses of 8 U.S.C. § 1451(a) .

The Court of Appeals did not intrude on

the District Court’s role as finder of fact _

Point II—The court below correctly held that the

District Court erred in holding that it could

deny denaturalization because of equitable con-

MOMMIOEE Soo Ee ee |

Conclusion

District Courts have no power to deny

denaturalization on the basis of the equities

No weight should be given to Fedorenko’s

conduct in this country o.oo.

TABLE OF AUTHORITIES

Cases:

PAGE

Assman v. Fleming, 159 F.2d 332 (8th Cir. 1947) ........ 15

Barker v. Wingo, 407 U.S. 514, 519-21 (1972) ............ 13

Chaunt v. U.S., 364 U.S. 350 (1960) oo, passim

Costello v. U.S., 365 U.S. 265 (1961) oon. 9

In re Haniatakis, 376 F.2d 728 (3d Cir. 1967) ................ 8

Johanssen v. U.S., 225 U.S. 227 (1912) 15

Kassab v. I.N.S., 364 F.2d 806 (6th Cir. 1966) ......... | 8

La Madrid-Peraza v. I.N.S., 492 F.2d 1297 (9th Cir.

Gi spay sched scars sintbssecosenpervesderssvscvoarsvesetbeneser 8

Longhammer v. Hamilton, 295 F.2d 642 (1st Cir.

ei aie pv cpodosbprindkeccdovcaronsesicvaserevaccesvennostvabes 8

Luria v. U.S., 231 U.S. 9 (1918) ooo 21

Maney v. U.S., 278 U.S. 17 (1928) 0000. 20

Mullaney v. Wilbur, 421 U.S. 684 (1975) oo, 15

Rogers v. Bellei, 401 U.S. 815 (1971) oo... 20

Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.

lr hice in cai viruisudiscsiposneseebssiesendlvevnyeesdavedeartassvas 15

Toledo Co. v. Computing Co., 261 U.S. 399 (1923) .. 15

U.S. v. Fedorenko, 455 F.Supp. 893 (S.D. Fla. 1978),

rev’d 597 F.2d 946 (5th Cir. 1979) oo. passim

USS. v. Ginsberg, 243 U.S. 472 (1917) oo. 20, 21

U.S. v. Ness, 245 U.S. 319 (1917) .00.00 ee. 15, 20

PAGE

U.S. v. Oddo, 314 F.2d 115 (2nd Cir.), cert. demed,

vj if ak Sk: eM Rr a 8

U.S. v. Rossi, 299 F.2d 650 (9th Cir. 1962) .................. 8

U.S. v. Walus, 616 F.2d 283 (7th Cir. 1980) ................ 14

Vasques-Mondragon v. I.N.S., 560 F.2d 1225 (5th Cir.

Bee iy SUE GRAN anata ey eRn alae AN Ws tea 16

Statutes:

PIE EN pl ee a ICM passim

ee Ws ND Seiwa bn chcuteeia ec ame 2

Constitution of the International Refugee Organiza-

tion of the United Nations, 62 Stat. 3037, T.I.A.S.

Boos (1066) Annex I, Part OF ........5.0.00665.0.5......... 3

Displaced Persons Act, 62 Stat. 1009 § 2(b) Chapter

he ce 5 REPU TERA S atop ins SE Ae eR 4

Fed. R. Civ. P. 60(b) (38). ................... Femi Meh eee Sieataee.

Other Authorities:

Ino Arndt and Wolfgang Scheffler, ‘‘Organisierter

Massenmord an Juden in nationalsozialistischen

Vernichtungslagern,’’? in Vierteljahrshefte fiir

Zeitgeschichte 24 (1976) oo...cccccccccccccscccscccscecececes. 18

Hearings Before the House Committee on Foreign

Affairs on Punishment of War Criminals, 79th

Congress, 1st Session on H. J. Res. 93 ............ 19

5A Moore’s Federal Practice, | 52.03[2] n.4................ 16

Remarks of Attorney General Benjamin Civiletti,

126 Cong. Rec. EK 2204 (April 23, 1980) (Daily

Edition) (Remarks of Rep. Holtzman) ........... 14

Sobibor Trial, Hagen District Court, Landgericht

Hagen, 20 December 1966, 11 Ks 1/64 in Ns-Ver-

nichtungslager im Spiegel Deutscher Straf-

I eet ge crie Rectverle ranked erie telo, 23

VIII

PAGE

Y. Suhl, They Fought Back: The Story of Jewish

MONI CE oi icdheccedssbiesicsllagedl st csssivccezecesevsnccass 19

2A Sutherland’s Statutory Construction § 57.16

GAO 3 MW PNM oc hesorechchdodesnssacscacdickccceses. 21

Treblinka, 15 Encyclopedia Judaica 1364 .............. 17,18

Trial of Kurt Franze and Others: Landgericht Diis-

seldorf, 3 September 1965, 8 I Ks 2/64 in Ns-Ver-

nichtungslager im Spiegel Deutscher Strafpro-

zesse, ed. Adalbert Riickerl (Munich 1977)

lpn a RS Doe RRC Ee Rite aN 19

Trial of Josef Hirtreiter: Justiz und Ns-Verbrechen

ey ee PL och i 18

IN THE

Supreme Court of the United States

October Term, 1979

No. 79-5602

A ns

Fropor FEeporEenxo,

Petitioner,

Unirep Srates or America,

o Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF THE AMERICAN JEWISH CONGRESS

ON BEHALF OF ITSELF AND THE NATIONAL

JEWISH COMMUNITY RELATIONS ADVISORY

COUNCIL, AMICI CURIAE

Questions Presented

1. Whether petitioner’s failure to disclose, in obtain-

ing a visa in 1949, that he had been an armed guard at the

Treblinka concentration camp during the Nazi occupation

of Poland was a material misrepresentation of fact under

8 U.S.C. § 1451(a).

2. Whether a District Court possesses discretion to ex-

cuse a material misrepresentation of fact and to allow a

person who procured his naturalization by fraud to retain

United States citizenship.

Decisions Below

The opinion of the District Court is reported at 455

F. Supp. 893 (S.D. Fla. 1978). The decision of the United

States Court of Appeals for the Fifth Circuit is reported

at 597 F.2d 946 (5th Cir. 1979).

Jurisdiction

The judgment of the Court of Appeals was entered on

June 28, 1979, and a petition for rehearing was denied on

August 15, 1979. Certiorari was granted on February 19,

1980. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

Summary of Argument

I. The court below correctly interpreted the second

branch of the test established in Chaunt v. United States,

364 U.S. 350 (1960), as requiring a showing that the peti-

tioner had suppressed facts which might have led to the

discovery of facts warranting exclusion. This conclusion is

supported by the language and facts of Chaunt and the deci-

sions of the lower courts applying that decision. Moreover,

the decision below is the only one consistent with the policies

embodied in 8 U.S.C. §1451(a). Any other result would

penalize the government for petitioner’s misconduct and

would make it altogether too difficult for the government

to denaturalize a person who had obtained citizenship by

concealing material information,

II. The Court of Appeals correctly concluded that the

District Court lacked discretion to balance the equities as

between the government and petitioner. The statute con-

fers no such authority and the decisions of this Court make

clear that none exists. In any event, the District Court

erred in its balancing of the equities in this case, for, in con-

cluding that those equities favored petitioner, it in effect

concluded that by obeying the law in this country, petitioner

had washed his hands of the blood of the victims of Treb-

linka.

Statutory Provisions Involved

The Immigration and Nationality Act, Section 340(a),

8 U.S.C. § 1451(a), provides:

It shall be the duty of the United States attorneys for

the respective districts, upon affidavit showing good

cause therefor, to institute proceedings in any court

.. . for the purpose of revoking and setting aside

the order admitting such persons to citizenship and

cancelling the certificate of naturalization on the

ground that such order and certificate of naturalization

were illegally procured or procured by concealment of

a material fact or by willful misrepresentation, and

such revocation and setting aside of the order ad-

mitting such person to citizenship and such cancelling

of certificate of naturalization shall be effective as

of the original date of the order and certificate, respec-

i. 2 ae

The Constitution of the International Refugee Organiza-

tion of the United Nations, 62 Stat. 3037, T.I.A.S. 1864

(1946), Annex I, Part II, provides that the following per-

sons would not be considered displaced persons:

1. War Criminals, quislings, and traitors.

2. Any other persons who can be shown:

(a) to have assisted the enemy in persecuting civil

populations of countries, Members of the United Na-

tions; or

(b) to have voluntarily assisted the enemy forces

since the outbreak of the second world war in their

operations against the United Nations... .

The Displaced Persons Act, 62 Stat. 1009, § 2(b), Chap-

ter 647 (1948), provides that

‘* Displaced person’’ means any displaced person or

refugee as defined in Annex I of the Constitution of the

International Refugee Organization and who is the

concern of the International Refugee Organization.

Statement of the Case

This case began in August, 1977 when the United States

Attorney for the Southern District of Florida filed an action

under 8 U.S.C. § 1451(a) to strip petitioner of his American

citizenship. Petitioner was admitted to the United States

in 1950, under the Displaced Persons Act (DPA), which

provided that persons who had assisted the Nazi regime

in the persecution of civilians, or who had voluntarily as-

sisted the enemy forces, were ineligible for admission,

U.S. v. Federenko, 455 F. Supp. 893, 897 (S.D. Fla. 1978).

The government’s case against the petitioner had three

distinct claims, stated in seven counts in the complaint.

Proof of any one of these elements would have sustained

the government’s case. These claims were (1) actual com-

mission of war crimes or atrocities; (2) willful misrepre-

sentation of facts on the application for a visa, which facts

would, if disclosed, have resulted in exclusion; (3) willful

concealment of facts which would have been helpful in an

investigation, leading to other facts justifying exclusion,

id. at 897-98. The question presented by this petition con-

cerns only this last aspect of the case. For this reason, al-

though we believe that the District Court’s conclusion that

the first two claims were not proven is tainted by numerous

errors of fact and law, we do not discuss those conclusions

in this brief.

The District Court found that petitioner was a Ukrain-

ian serving in the Soviet army who, having been taken

prisoner in 1941 by the Germans, was transferred from

one prisoner of war camp to another, id. at 899. At one,

Travnicki, he trained as a guard, although the parties dis-

agree whether he volunteered for that assignment. For a

brief period, petitioner served in that capacity at the Poelitz

forced labor camp. In September 1942, he was transferred

to the extermination camp at Treblinka, id. at 899-901.1

Petitioner denied having committed atrocities at Treb-

linka. The District Court credited this testimony, rather

than that of the inmates of Treblinka, who identified him

as having committed such crimes, id. at 901-09.

When Fedorenko applied for admission to the United

States under the DPA, his application for admission dis-

closed only his presence at Poelitz, but not that at Treb-

linka, and not even the nature of his activities at Poelitz,

id, at 911. The District Court found that disclosure of

Fedorenko’s service at Treblinka on the application would

1. The operation of Treblinka is described in greater detail infra

at 17-20.

have led to an investigation of Fedorenko’s service there.

That court also found that, ordinarily, disclosure of service

or presence at a forced labor camp would have resulted in

an investigation, but did not in this case, id. at 915.

The government argued that, had Fedorenko disclosed

his service as a guard at Treblinka, it would have been able

to inquire into the facts and circumstances of that service

at a time when it would have been possible to conduct a

complete investigation. Despite its finding that full dis-

closure would have led to an investigation, the District

Court held that the government had not met its burden of

proof under 8 U.S.C. § 1451(a) because, in its view, the

second branch of the test enunciated in Chaunt v. US.,

364 U.S. 350 (1960), required a showing that the facts

concealed would ultimately have led to facts which would

support denaturalization, 455 F. Supp. at 915-16. In

view of its finding that the government had failed to prove

such facts, id. at 908-09, the District Court concluded that

the government had not carried its burden of proof, id.

at 914-17.

As an alternative basis for its judgment, the District

Court held that a denaturalizaion proceeding was an equita-

ble action, that equitable principles were controlling and

that those principles required it to balance the equities be-

tween the parties, id. at 918. Reviewing petitioner’s con-

duct in the United States and balancing it against his ac-

tivities at Treblinka, the court concluded that it would be

inequitable to strip him of his citizenship, id. at 920-21.

The Fifth Circuit reversed, U.S. v. Fedorenko, 597 F.2d

946 (5th Cir. 1979), and ordered that a judgment of de-

naturalization be entered. That court did not review the

District Court’s factual findings that Fedorenko had not

voluntarily committed war crimes or atrocities, or its con-

clusion that revelation of Fedorenko’s service as a camp

guard would not have resulted in his exclusion, id. at 953.

Instead, it rejected the District Court’s interpretation of

Chaunt in favor of a reading more favorable to the govern-

ment. Specifically, it held that it was sufficient for the gov-

ernment to prove, as the Fifth Circuit concluded that it had,

that Fedorenko had suppressed facts on his application for

admission which would have been helpful in an investigation

of his wartime activities, which investigation might have led

to the discovery of facts warranting exclusion, id. at 949-53.

It also held that the District Court did not have authority

to balance the equities between the parties. Jd. at 953-54.

ARGUMENT

POINT I

The Court of Appeals correctly held that the gov-

ernment need not prove that an investigation would

have uncovered facts showing an alien to be exclud-

able.

A lie which deprives the United States of the opportu-

nity to make an informed judgment on the admissibility of

an alien by aborting a timely investigation of an applicant

for admission to the United States is as destructive of the

proper administration of the immigration laws as a lie

about a fact that would be a ground for exclusion. <As in-

terpreted by this Court in Chaunt vy. U.S., 364 U.S. 350

(1960), the statute under which the government proceeds

here, 8 U.S.C. §1451(a), is a statutory formulation of

that principle. Because the court below properly inter-

preted the statute in light of Chaunt, and properly applied

that rule in this case, its judgment should be affirmed.

A. The language of Chaunt is unambiguous.

As interpreted by the Court of Appeals in this case, and

by all but one of the Circuit Courts that have considered

the issue,’ the second test established in Chaunt requires

a two-fold showing: (1) that the truth, if disclosed, might

have been helpful in an investigation® which (2) might

have led to the discovery of facts justifying exclusion. It

thus rejected the District Court’s reading of the Chaunt

decision, based on what that court believed was an am-

biguity in Chaunt, 455 F. Supp. at 915-16,

In Chaunt, this Court twice stated the elements of the

government’s case under 8 U.S.C. § 1451(a). The District

Court’s interpretation was based on this Court’s restate-

ment of its holding at the end of its opinion (364 U.S. at

355) :

We only conclude that, in the circumstances of this

case, the Government has failed to show by ‘‘clear, un-

2. U.S. v. Oddo, 314 F.2d 115 (2nd Cir.), cert. denied, 375 U.S.

833 (1963) ; Longhammer v. Hamilton, 295 F.2d 642 (1st Cir. 1961) ;

In re Haniatakis, 376 F.2d 728 (3d Cir. 1967) ; Kassab vy. INS, 364

F.2d 806 (6th Cir. 1966). Contra, La Madrid-Peraza v. INS, 492

F.2d 1297 (9th Cir. 1974) ; U.S. v. Rossi, 299 F.2d 650 (9th Cir.

1962). .

3. The Fifth Circuit held—and we agree with this analysis—that

the government must, under the second branch of the Chaunt test,

demonstrate that had it had the truth before it, it would have con-

ducted an investigation, not merely that it might have done so, 597

.2d at 952 n.6. That requirement is met here by the District Court's

finding that such an investigation would have occurred, 455 F. Supp.

at 915. The reading of Chaunt adopted by the court below would not

give the Executive Branch untrammeled authority to denaturalize

citizens for trivial misstatements, having no contemporaneous signifi-

cance, made decades previously.

equivocal, and convincing’’ evidence either (1) that

facts were suppressed which, if known, would have

warranted denial of citizenship or (2) that their dis-

closure might have been useful in an investigation

possibly leading to the discovery of other facts war-

ranting denial of citizenship.

The District Court found this passage ambiguous be-

cause it thought that it was not clear what the word ‘‘pos-

sibly’’ modified.

However, the test was stated earlier in Chaunt (364

U.S. at 352-53) :

Suppressed or concealed facts, if known, might in and

of themselves justify denial of citizenship. Or dis-

closure of the true facts might have led to the discov-

ery of other facts which would justify denial of cit-

izenship. Complete replies are essential so that the

qualifications of the applicant or his lack of them may

be ascertained.

That passage, neither cited nor discussed by the District

Court, is unambiguous and supports the interpretation

adopted by the Court of Appeals, as that court observed,

597 F.2d at 951.

This analysis is consistent with this Court’s holding in

Costello v. U.S., 365 U.S. 265 (1961). There, Costello failed

to disclose his activities as a bootlegger in his petition for

naturalization. This Court referred, without passing on

their correctness, to a number of lower federal court deci-

sions holding that bootlegging activities were a sufficient

basis to deny citizenship, and it concluded that Costello’s

concealment probably—but not definitely—affected the deci-

sion on his application for citizenship. Citing Chaunt v.

U.S., supra, 364 U.S. at 352-53, this Court held that that pos-

sibility was sufficient to justify denaturalization. On peti-

tioner’s view of Chaunt, Costello was incorrectly decided.

The District Court’s reading of Chaunt merges what this

Court obviously thought were two alternative criteria for

denaturalization into one. In every case under that court’s

approach, it would be necessary to show the same ultimate

fact—that the naturalized citizen concealed facts which

would have justified exclusion. Plainly, that was not what

this Court intended in Chauwnt.

B. The facts in Chaunt support the decision below.

The Court of Appeals’ analysis is the only one consist-

ent with the facts in Chaunt. Chaunt, in his application for

naturalization, denied ever having been arrested, although

he had been arrested for distributing handbills, making a

speech in a park and for a breach of peace. This Court

found those arrests, at least two of which involved activity

presumptively entitled to First Amendment protection, did

not support denaturalization.

The government also argued that disclosure of the ar-

rests might have led to discovery of the fact that petitioner

was a Communist party official. In finding an insufficient

nexus between the arrests and Chaunt’s alleged member-

ship in the Communist party, this Court, dealing with the

second branch of the Chawnt test, noted that Chaunt had

disclosed his membership in the International Workers’

Order (IWO), a Communist-controlled organization. Since

no investigation was undertaken as a result of that dis-

closure—one more likely to have led to the discovery of

Chaunt’s relationship to the Communist party—this Court

rejected the government’s claim that the facts concealed

were material.

The failure of the government’s proof in Chaunt was

not its failure to prove that petitioner was a Communist.

Nothing in this Court’s opinion suggests that such a finding

was a necessary predicate to the inquiry. On the contrary,

the question of whether Chaunt was a Communist was not

before this Court.* Rather, the defect in the government’s

case was the failure to demonstrate that the concealed facts

would have instigated an investigation of Chaunt or would

have constituted evidence in such an investigation.

Petitioner argues that, since his application acknowl-

edged his presence at the Poelitz forced labor camp, and the

government’s own expert testified that that disclosure

would ordinarily have resulted in an investigation—al-

though it did not in Fedorenko’s case—the additional dis-

closure of his service at Treblinka was not material, just as

the concealment of Chaunt’s arrest record was immaterial

in light of the disclosure of his IWO membership.

The analogy fails. The Chawnt Court stressed that the

concealed facts did not involve either moral turpitude or

activities which would ‘‘even peripherally’’ indicate a dis-

qualification for citizenship and that a very different case

would be presented by the concealment of a fact, such as

service as a guard at Treblinka, which did.

4. In remanding that case, this Court ordered the Court of Ap-

peals to consider that factual question, which was relevant to a deter-

mination of whether the government had carried its burden under

the first branch of the test, 364 U.S. at 151.

Second, this Court in Chaunt treated the non-disclosure

of the arrests as immaterial because facts of much greater

significance were disclosed. Here, by contrast, petitioner

disclosed facts of lesser significance—presence at a forced

labor camp—and argues that the failure of the government

to investigate those facts proves that it would not have

investigated facts of far greater significance—service at the

‘‘human abattoir’ that was Treblinka. Not only is this

argument illogical, but even on its own terms it ignores the

real possibility that the cumulative effect of the disclosure

of Fedorenko’s service at Poelitz and Treblinka would have

shed a different light on his service at Poelitz.® And, unlike

Chaunt’s disclosure of [WO membership, Fedorenko’s dis-

closure concerning Poelitz was not complete, for it did not

reveal that he served as a guard there.

But, more importantly, this argument flies in the face of

the District Court’s finding, accepted by the Court of Ap-

peals, that had Fedorenko disclosed his service at Treblinka

an investigation would have taken place. That investiga-

tion would have looked not merely at a remote link in an

evidentiary chain leading to other facts which would have

justified exclusion, as in Chawnt; rather, the concealed

facts themselves would have both instigated, and been the

focus of, an investigation designed to determine the precise

nature of petitioner’s activities at Treblinka. Those activi-

ties cannot remotely be compared to the matters concealed

in Chaunt.

5. The phrase is the District Court’s, 455 F. Supp. at 901 n.12.

6. While it is arguable that, under the DPA, petitioner’s service

at Poelitz was alone sufficient to justify exclusion, petitioner is in no

position to complain that the government was willing to overlook that

service, but not his service at Treblinka.

C. The decision below comports with

the purposes of 8 U.S.C. § 1451(a).

Because of the passage of time, the government will

often not be able to make out a case for denaturalization

under the first branch of the Chaunt test. A rule which

required the government to prove, under the second branch

of Chaunt, facts justifying denaturalization, would provide

an applicant with a powerful incentive to conceal facts

detrimental to the granting of the application. As the

Court of Appeals put it, 597 F.2d at 951, petitioner’s

interpretation of Chaunt would give applicants ‘‘every-

thing to gain and nothing to lose by lying under oath to the

I.N.S.”’

This case illustrates the difficulties faced by the govern-

ment in trying to reconstruct what Fedorenko did some 35

years ago. The shortcomings that the District Court found

in the government’s proof that Fedorenko had voluntarily

engaged in activities justifying exclusion would not have

existed had a timely investigation occurred. Thus, for ex-

ample, the District Court denigrated the survivor witnesses’

credibility because they were testifying to events that had

occurred over a third of a century earlier. It commented

adversely on the absence of the vice-consul who passed upon

Fedorenko’s application. It noted the absence of docu-

mentary evidence. 445 F.Supp. at 902, 905, 907-08, 911.

As this Court has noted in the speedy trial context,

Barker v. Wingo, 407 U.S. 514, 519-21 (1972), delays in

prosecuting criminal cases often result in the destruction

of evidence to the prejudice of the government, the defend-

ant and the public. Such prejudice is inherent in all of the

denaturalization cases brought against Nazi war criminals.

The handful of inmates of the Nazi concentration camps

who survived have scattered to various parts of the world.

Many have died. Some who have succeeded in forgetting

the horrors through which they lived are understandably

unwilling to recall those horrors, even to assist in the prose-

cution of their oppressors. Documentary evidence which

might have been available is now destroyed, lost in obscure

archives, or unreachable behind the Iron Curtain. See gen-

erally, U.S. v. Walus, 616 F.2d 283, 303-04 (7th Cir. 1980).

See also, Remarks of Attorney General Benjamin Civiletti,

reprinted in 126 Cona. Rec. E 2004 (April 23, 1980) (Daily

Edition) (Remarks of Rep. Holtzman).

The delay here is attributable solely to petitioner. It

was his lie which prevented the United States from making

a timely investigation of his activities. It was his lie which

lulled the United States into admitting him. It was his lie

which is responsible for the delay which is now used to

question the credibility of the survivors of Treblinka, as

well as the government’s failure to produce documentary

evidence. It is outrageous that petitioner, having erected

by his lie these obstacles to the government’s case, now

argues that the government must prove that he was exclud-

able. It is—and ought to be—sufficient that the government

has demonstrated the real and substantial possibility that

the facts suppressed might have been helpful in a timely

investigation.

The incentive to lie inherent in the holding of the Dis-

trict Court, however, is not the only deficiency in its ap-

proach. That approach fundamentally misconceives a

court’s role in a proceeding such as this. Congress, acting

under the plenary authority conferred on it by Article I, ¢ 8,

cl. 4, has entrusted the Judicial Branch with the respon-

sibility for determining who shall be admitted to citizenship

and for policing the integrity of those determinations.

The function of the court in an 8 U.S.C. § 1451(a) pro-

ceeding, similar to the court’s role under Fed. R. Civ. P.

60(b)(3), is to set aside a judgment awarding citizenship

which is procured by fraud, U.S. v. Ness, 245 U.S. 319

(1917) ; Johanssen v. U.S., 225 U.S. 227 (1912).

The Fifth Cireuit’s reading of Chaunt is consistent

with the practice under Rule 60(b) (3), under which a party

need show only that it was denied, as a result of the other

party’s fraud, a full and fair opportunity to present its

case, and not that a different result would necessarily have

obtained, see Toledo Co. v. Computing Co., 261 U.S. 399, 421

(1923) ; Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th

Cir. 1978); Assman v. Fleming, 159 F.2d 332 (8th Cir.

1947).

Moreover, as the Court of Appeals noted, 597 F.2d at

951 n.4, when Fedorenko applied for admission to the

United States, Section 10 of the DPA, 62 Stat. 1013, placed

the burden on him to prove eligibility. In a denaturaliza-

tion proceeding, by contrast, the government bears the

burden of proving its case by ‘‘clear, convincing and un-

equivocal evidence.’’ Chaunt v. U.S. supra, 364 U.S. at 353.

As this Court has held in the criminal context, the question

of who bears the burden of proof is often crucial to the

outcome of a case, Mullaney v. Wilbur, 421 U.S. 684

(1975). Thus, if only the limited facts concerning the

precise nature of Fedorenko’s wartime activities before

the District Court in 1978 were before the vice-consul in

1949, the vice-consul could reasonably have concluded that

Fedorenko had failed to carry his burden of proof. Now

that Fedorenko has shifted the burden of proof by his lie

to the United States, the government is, according to the

petitioner, unable to exclude him because it is unable to

carry its burden of proof. Chaunt cannot be read to permit

such a result.

D. The Court of Appeals did not intrude on

the District Court’s role as finder of fact.

Contrary to petitioner’s claim (Brief for Petitioner at

19-20), the Fifth Circuit did not improperly substitute its

evaluation of the facts surrounding his activities at Treb-

linka for that of the trial court. Under the reading given to

Chaunt by the court below it was not necessary for it to

decide—nor did it—whether Fedorenko had committed war

crimes or atrocities. Rather, having determined that the

District Court had announced an erroneous legal standard,

the Fifth Circuit applied the correct standard to the un-

disputed fact that petitioner had concealed his service at

Treblinka. That fact alone, it coucluded, as it had to under

Chaunt, was sufficient to require denaturalization.”

7. Vasques-Mondragon v. INS, 560 F.2d 1225 (5th Cir. 1977),

cited by petitioner (Brief for Petitioner at 19), is irrelevant to the

case at bar. There, the decision reviewed depended on the correctness

of the factual findings made by an Immigration Judge. The Fifth

Circuit held that a reviewing court was required to defer to the factual

findings made by that officer. Here, however, the question is not

whether Fedorenko can now be proven to be a war criminal, but

whether his concealment of facts relevant to the inquiry was material

under the second branch of the Chaunt test, a question of law on which

the Court of Appeals was not bound by the lower court’s conclusion.

In any event, it is well settled that findings of fact tainted, as were

the findings here, by errors of law are not accorded the same deference

as other findings of fact. 5A Moore’s Feperat Practice, ff 52.03[2]

n.4 and cases cited.

The conclusion that an investigation might have dis-

closed information about Fedorenko justifying a denial of

entry under the DPA follows inevitably from the known

facts, some of which are recited in the District Court’s dpin-

ion, 455 F. Supp. at 901 n.12, about the operation of Treb-

linka, and particularly the role of Ukrainian guards there.

The Treblinka extermination camp opened in July 1942,

only two months before Fedorenko’s arrival, and closed

shortly after an inmate revolt in August 1943. In that

brief period, approximately 750,000 persons were murdered

at Treblinka. Unlike some other concentration camps,

Treblinka served only as a facility for mass murder. Vir-

tually every man, woman and child arriving there was killed,

usually immediately upon arrival. The few not killed im-

mediately were used to sort the victims’ belongings and to

burn their bodies after the gold fillings had been extracted

from their teeth. Only a very few persons, chiefly those

who escaped during the revolt in August 1943, survived to

tell about Treblinka. Z'reblinka, 15 Enoycuopepia JupaAica

1364,

Murder was reduced to a science at Treblinka. The

victims arrived in cattle cars, chiefly from the Polish

ghettos, but from other countries in occupied Europe as

well. Driven from the cars, the men were separated from

the women and children; all were forced to undress and

hand over their valuables. The victims were then driven

either to the lazaret or to the gas chambers, which were

disguised as shower rooms. 455 F. Supp. at 901 n.12.

Urged on by comments such as ‘‘the water is getting cold,’’

the victims entered a narrow path variously known as the

‘*tube,’’ ‘* Ascension Boulevard’’ (Himmelfahrtsallee) or

‘the road without return,’’ id.; ENncycroprpia Jupatca,

supra.

With hands raised above their heads, the victims were

driven with canes and whips through the ‘‘tube’’ and

into the gas chambers; the capacity of the chambers

was utilized to the fullest. After the doors were

closed, the order to start the motor was given by calling

‘‘Ivan, water!’’—Ukrainians ran the motor. The

gassing took 30 to 40 minutes, then the doors were

opened and the removal of the bodies began.$

Although Treblinka was a factory for the production of

death on a mass scale, the staff was quite small. A West

German trial court, reviewing the evidence presented to it

in connection with the trial of some of those responsible

for Treblinka’s operation, wrote: 7

During the last months of the year 1942, ... there

were approximately twenty Germans in the camp. All

of them wore the uniform of the Waffen-SS regardless

whether they were members of the SS, belonged to a

police unit, or were only ... attached to it. They

were armed with pistols .... At the end of 1942 the

guard units (Wachmannschaften) in the camp were

made up of 100-200 Ukrainians. In contrast to the

Germans, the Ukrainians wore the black uniforms of

the General-SS and were armed with carbines.®

These findings are in essential agreement with those of the

trial court here.

8. Ino Arndt and Wolfgang Scheffler, “Organisierter Massen-

mord an Juden in nationalsozialistischen Vernichtungslagern,” in

Vierteljahrshefte fiir Zeitgeschichte 24, 277-78 (1976); ENcycLo-

PEDIA JUDAICA, supra, at 1368-69.

9. Trial of Josef Hirtreiter: Justig und NS-Verbrechen VIII No.

270, p. 263.

Another West German court in a later and larger Treb-

linka trial found:

The staff of the Treblinka camp, which was responsible

for the smooth execution of the mass exterminations,

consisted of ca. 35 to 40 Germans, all of whom wore

the field-grey uniform of the Waffen-SS .... Aside

from this German staff, there were ca. 90 to 120

Ukrainian voluntary auxiliaries ... at the camp. They

were primarily assigned to guard duty, but in addition

they were to a certain extent also detailed to the

killing operations. In contrast to the Germans, they

wore black uniforms, were armed with carbines and

rifles, and a great majority also carried long leather

whips, partly also bayonets."

These findings suggest that persons in Fedorenko’s

position served voluntarily and were routinely assigned to

tasks connected with those genocidal operations. This last

fact is particularly significant because several witnesses

testified that Fedorenko in fact participated in such atroci-

ties, 455 F’. Supp. at 901-03.

More important than the specific differences between

these findings and Fedorenko’s story—all of which sup-

port the conclusion of the court below that an investigation

made when Fedorenko applied for citizenship might have

led to facts justifying exclusion—is the almost inescapable

conclusion that, given the small German staff at Treblinka,

10. Trial of Kurt Franz and others: Landgericht Diisseldorf, 3

September 1965, 8 I Ks 2/64 in Ns-Vernichtungslager im Spiegel

deutscher Strafprozesse, ed, Adalbert Riicker! (Munich 1977) pp.

207-08. For further evidence of a similar nature, see Hearings Before

the House Committee on Foreign Affairs on Punishment of War

Criminals, 79th Congress, Ist Session, on H. J. Res. 93; Y. Suhl,

Tuey Foucut Back: Tue Story or Jewisu Resistance (1967).

the presence of Ukrainians such as Fedorenko was indis-

pensable if the ‘production’ of the Treblinka death factory

was to continue. Perhaps Fedorenko could have shown

that he did not aid in the mass murder perpetrated at

Treblinka. But just as surely, the United States was en-

titled to a fair chance to prove the more likely hypothesis

—that Fedorenko is a mass murderer.

POINT II

The court below correctly held that the District

Court erred in holding that it could deny denaturaliza-

tion because of equitable considerations.

A. District Courts have no power to deny

denaturalization on the basis of the equities.

The court below correctly concluded that the District

Court had no authority to weigh equitable considerations in

deciding whether to award a judgment of denaturaliza-

tion. The availability of such discretion is not an open

question. In U.S. v. Ginsberg, 243 U.S. 472, 474 (1917),

this Court squarely rejected the existence of such a

power:

An alien who seeks political rights as a member of

this Nation can rightfully obtain them only upon

terms and conditions specified by the Congress. Courts

are without authority to sanction changes or modifica-

tions; their duty is rigidly to enforce the legislative

will in respect of a matter so vital to the public

welfare,

Accord, Rogers v. Bellei, 401 U.S. 815, 880 (1971); U.S. v.

Ness, supra; Maney v. U.S., 278 U.S. 17, 22-23 (1928).

The very language of the statute compels this result,

for it directs that courts ‘‘shall’’ enter judgments of

denaturalization when the government carries its burden

of proof. The decision below fully comports with this

Congressional use of the word ‘‘shall,’? which, when di-

rected to the judiciary, is ordinarily mandatory, 2A

SuTHERLAND’s Statutory Construction, § 57.16 (Sands

Edition, 1973).

Petitioner asserts that the holding in Luria v. U.S.,

231 U.S. 9, 27-28 (1913), to the effect that a denaturaliza-

tion proceeding is ‘‘essentially equitable,’’ supports the

District Court’s invocation of equity power. The holding

in that case, however, was merely that a denaturalization

proceeding is not one at ‘‘common law’’ within the mean-

ing of the Seventh Amendment. It was a procedural hold-

ing only, and not one governing the substantive law to be

applied. The power to determine the substantive law of

naturalization is vested by the Constitution in the Congress,

which, as this Court emphasized in U.S. v. Ginsberg, supra,

has determined not to accord the courts discretion in

8 U.S.C. § 1451(a) proceedings.

Finally, the Fifth Cireuit was plainly correct in re-

jecting petitioner’s attempt to analogize a denaturalization

proceeding to one granting citizenship despite allegations

of moral turpitude, 597 F.2d at 954:

In the former situation, the court must consider facts

and circumstances relevant to determining whether an

individual meets such requirements for naturalization

‘as good moral character and an understanding of

the English language, basic American history, and

civics .... The district courts must be accorded

some discretion to make these determinations. See,

e.g., Petition of R., 1944, D. Mass., 56 F.Supp. 969.

Once it has been determined that a person does not

qualify for citizenship, however, the district court has

no discretion to ignore the defect and grant citizenship.

United States v. Ginsberg, 1917, 243 U.S. 472, 474. The

denaturalization statute, 8 U.S.C. § 1451, does not ac-

cord the district courts any authority to excuse the

fraudulent procurement of citizenship... .

B. No. weight should be given to Fedorenko’s

conduct in this country.

Even if discretion exists, however, we believe that the

District Court improperly exercised that discretion in this

ease. The equity found to favor petitioner in this case was

an unblemished record in this country. Nothing less, of

course, could be expected of a person with petitioner’s back-

ground. Plainly, no former concentration camp guard who

has succeeded in finding refuge in this country would pro-

claim his admiration of Hitler. Neither would he engage

in questionable activities that might prompt an investigation

into his past.

If the sort of unblemished record apparently compiled

by Fedorenko is a factor to be considered in determining

whether to denaturalize him, a further burden is imposed

on the government’s ability to police the availability of

that precious commodity which is American citizenship.

The government would not only have to bear the burden

of proving years later that petitioner was originally ex-

cludable, but that his good behavior in the interim was not

sufficient to outweigh that misconduct. This Court rejected

the significance of post-application conduct in Costello v.

U.S., supra, 365 U.S. at 283. There, this Court was un-

willing to excuse misstatements on petitioner’s application

for naturalization based on his 65 years of residence in this

country. It did so not because it felt that that fact was

outweighed by Costello’s misdeeds, but because it was

legally irrelevant.

Whether or not Fedorenko can be shown to have per-

sonally participated in atrocities, it cannot be disputed that

his service at Treblinka facilitated such activities and that

his lie has made it difficult for the government to determine

what he did do there. But, as a German court put it in a

case involving officials of another concentration camp:

It cannot be proved that any of these nine defendants

killed Jews with his own hands or that he caused on

his own initiative Jews to be killed. On the other

hand, wherever they were employed within the camp

structure they aided and abetted the mass murder of

the Jews, and through their functional collaboration

in the immediate proximity of the deed helped make it

possible,”

Petitioner’s hands are not merely unclean in the usual

equitable sense. They were and still are unclean with the

blood of the victims of Treblinka. The District Court’s de-

termination that that blood has been washed out by petition-

er’s self-serving good conduct is nothing less than obscene.

It should be repudiated by this Court.

11. Sobibor Trial, Hagen District Court, Landgericht Hagen, 20

December 1966, 11 Ks 1/64, in Ns-Vernichtungslager im Spiegel

deutscher Strafprozesse, supra n.10, p.310.

Conclusion

For the reasons stated, the judgment should be

affirmed.

Respectfully submitted,

Pum Baum

Naruan Z. DersHowr1tz

Attorneys for the Amici Curiae

The American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 879-4500

Maxc D. Srern

Of Counsel

July 1980

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.