Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
135838720
label
JGR/Nazi Prosecutions (4 of 9)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
135838720
contentType
document
title
JGR/Nazi Prosecutions (4 of 9)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
135838720
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
cd418ab0fb8d6dc8
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Nazi Prosecutions
(4 of 9)
Box: 33
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
B.
Kairys Never Made or Gave any Statements
to the Displaced Persons Commission.
The Government alleges that Kairys made misrepre-
sentations to and concealed material facts from the Displaced
Persons Commission. (Cmplt. 115, 16, 19, 22(a), 27, 40, 41,
52). The Government failed to adduce any evidence that Kairys
ever gave or made any statements -- much less misrepresentations
-- to the DP Commission.
After the IRO certified an applicant as a "displaced
49
person, II the Commission then conducted its own investigation
/
of the applicant and made a determination -- based first on the
IRO certificate -- of eligibility under the DP Act. (Tr. 648;
DX 148, p.9170048) 50/ The DP Commission rendered its decision
in a final report. (GX 4).
(Footnote continued from preceding page)
Government witness Curry admitted, "for there to be a dis-
qualification under Section 10, any misrepresentation had
to be made to somebody who was enforcing the DP Act."
(Tr. 656). As Curry acknowledged, employees of the IRO
were not "charged with enforcing the DP Act." (Tr. 656-58).
49 Curry explained that if the applicant served -- as did
Kairys -- with the U.S. Army, then the Army would have
thoroughly checked its records. (Tr. 649). Kairys testi-
fied that, when he joined the Army, he turned over docu-
ments -- which the Government subsequently "erroneously
destroyed" (DX 372) -- substantiating his identity and
wartime whereabouts. (Tr. 1152). Based on its review,
the Army's Counter-Intelligence Corps found "nothing
derogatory" about Kairys. (DX 344).
50 While it is true that Kairys had the burden or proving
that he was "the concern of the International Refugee
Organization" to qualify for a D.P. Act visa, Displaced
Persons Act of 1948, ch. 647, §§2(b) & 10, 62 Stat. 1009,
(Footnote continued on following page)
-84-
The Government offered no evidence that Kairys com-
pleted any forms or made any oral statements to the DP Commission.
Leo Curry, the DP Commission official who handled Kairys's case,
could remember nothing about it. (Tr. 663). From his examina-
tion of the final report on Kairys, Curry concluded that the
Commission probably never interviewed Kairys. (Tr. 650-51).
As for the DP Commission report (GX 4), Curry conceded that it
cannot be said Kairys swore to the truth of any statements in
the report because he never saw them. (Tr. 651-52). Kairys's
signature, of course, appears nowhere on the D.P. Commission
Report, GX 4.
There is no evidence Kairys ever even spoke to the
D.P. Commission, much less that he misrepresented or concealed
anything.
C.
Kairys Made no Willful Misrepresentations
or Concealments of Material Facts to the
Vice Consul.
After the D.P. Commission prepared its final report,
it sent it, and the associated documentation, to the American
consular office, which issued United States visas. (Tr. 616,
696-97). The Government failed to prove, by the required
(Footnote continued from preceding page)
the IRO certificate of eligibility and public documentation
satisfied this burden. The regulations of the D.P. Commis-
sion provided that these documents "shall be accepted as
establishing prima facie the existence of the matters stated
therein.
" (DX 148, p.9170048; DPC Regs. $700.5,
"Eligibility Proof"). Kairys's IRO certificate of eligi-
bility thus satisfied his burden of proof.
-85-
"clear, unequivocal, and convincing evidence that does not
leave the issue in doubt,' If that Kairys willfully misrepresented
or concealed material facts in his dealings with the consular
office.
Kairys testified to his contacts with the American
Vice Consul in Stuttgart. Army officers conducted interviews
with him about his desire to go to the United States and helped
with the documentation before his appearance at the consular
office. (Tr. 1156-58) 51/ The Army took Kairys and 18 to 20
men from his company to Stuttgart. (Tr. 1158). They were taken
to the head of a long line waiting to see the consul and after
only two or three minutes of processing, he was given an oath.
(Tr. 1158-60). At most he was asked a "few" questions, including
whether he was a member of the Communist Party.
52/
(Tr.
1173-74). Afterwards he signed the visa application under oath.
(GX 5).
51 / The defense requested the Government, and in particular
the Army, to produce all documents concerning Kairys.
These documents would have included materials relating to
the Army's assistance to Kairys in immigrating to the
United States. The Army responded that it had no such
documents because they had been transferred from Germany
to a domestic depository and there "erroneously destroyed."
(Tr. 1152-53; DX 372). This Government error prejudiced
Kairys. Indeed, the favorable inference that the des-
troyed documents would have been helpful to Kairys's case
must be accepted.
52 The Government mistakenly describes the evidence when it
claims that Kairys "admitted on cross-examination that he
was questioned by the consular official concerning his back-
ground." (Gov't Br. 77). The testimony was that he was
asked a "couple" or a "few" questions about "himself."
(Tr. 1173).
-86-
Government witness Rhodes admitted that the visa
application contained no question which required the applicant
to disclose his service, if he had any, in a Nazi concentration
camp. (Tr. 710). Moreover, the question whether an applicant
had served as a concentration camp guard was not regularly
specifically asked by consular officials. (Tr. 710). Because
Kairys was never asked, there is no evidence to support the
Government's claim that Kairys "willfully concealed" any alleged
53
service as a Treblinka guard.
The Government claims that Kairys misrepresented his
wartime whereabouts, identity, date and place of birth in his
visa application. (Cmplt. 28) 54, The Government admits,
53 / The Government grounds its charge that Kairys made misrep-
resentations and concealments to the Vice Consul on the
"expert" testimony of William C. Rhodes. Rhodes's testi-
mony does not amount to the requisite "clear, unequivocal,
and convincing" evidence. Unlike witness Jenkins in
Fedorenko (449 U.S. at 498), Rhodes was not trained to
administer the DP Act. (Tr. 692). Moreover, Rhodes was
never specifically assigned to the job of issuing visas
under the DP Act. (Tr. 692). Rhodes could not recall
issuing "even so much as one" such visa. (Tr. 690). His
testimony about what other consular officials did in
interviewing applicants for D.P. Act visas is speculation.
He himself had no recollection of conducting such an
interview (Tr. 693-94), nor could he recall observing
anyone else conduct one. (Tr. 694-95). The Government
could have called a witness who knew what he was talking
about. Rhodes did not. His testimony should have been
excluded. Cufari V. United States, 217 F.2d 404 (1st Cir.
1954).
54 / The Government makes an additional charge in its brief
which is not in its Complaint. The belated claim is that
on his visa application Kairys misrepresented his occupa-
tion as "farmer." (Gov't Br. 78). No legal consequence
can follow from this statement. The Supreme Court stated
(Footnote continued on following page)
-87-
however, that "[t]he only critical information which is incor-
rect concerns [Kairys's] wartime whereabouts." (Gov't Br.
55/
77-78)
The probabilities are that Army officials attended
to the completion of Kairys's visa application before he even
arrived at Stuttgart. The Government offered nothing to rebut
this plausible explanation. Moreover, Kairys testified, without
cross-examination, that no one at the consular office read him
the visa application entry concerning his wartime whereabouts
(Footnote continued from preceding page)
in Schneiderman, 320 U.S. at 160: "[W]e think the Government
should be limited [in a denaturalization case], as in a
criminal proceeding, to the matters charged in its com-
plaint." The charge of misrepresentation of occupation
appears nowhere in the Complaint. Moreover, the Government
did not prove, by "clear, unequivocal, and convincing
evidence that does not leave the issue in doubt" that the
answer "farmer" was a willful misrepresentation of a
material fact. As Kairys explained at trial, he had
worked as a farmer and the Army had conducted training and
tests which had established Kairys's qualifications as a
farmer. (Tr. 1175-78; DX 7). Army officials instructed
Kairys that he could give his occupation as farmer. (Tr.
1177). These facts rebut any implication of a willful
misrepresentation. In addition, Government witness Rhodes
admitted that a misstatement, even willful, of wartime
occupation was not, standing alone, a sufficient basis on
which to deny a visa. (Tr. 708). The Government thus
failed to show that the "misrepresentation" was "material."
La Madrid-Peraza V. Immigration & Naturalization Service,
492 F.2d 1297, 1298 (9th Cir. 1974); United States V.
Rossi, 299 F.2d 650, 652-53 (9th Cir. 1962) ) ; United States
ex rel. Leibowitz V. Schlotfeldt, 94 F.2d 263 (7th Cir.
1938).
55 This concession necessarily followed from the Government's
failure to prove that a misrepresentation of identity,
date, or place of birth was material. The Government
offered nothing to show that disclosure of the "true"
facts would not have resulted in denial of a visa or even
an investigation that might have uncovered facts warranting
such a denial. Cf. Chaunt, 364 U.S. at 352.
-88-
before he signed the application. (Tr. 1175) 56/ As Government
witness Curry acknowledged, an applicant could make a misrepre-
sentation "without prejudice" by reason of lapse of memory or
translation error. (Tr. 659).
The Government's failure to prove what questions the
consular officials actually asked Kairys precludes a finding of
"willful" misrepresentation or concealment. As the Court held
in United States V. Profaci, 274 F.2d 289 (2d Cir. 1960), a
failure of proof on this issue defeats a Government claim of
willful misrepresentation or concealment:
"From the Government's evidence, it thus appears,
at most, that it was normal practice in 1927 to
ask an applicant, "Were you ever arrested?" but
that the practice and phraseology was not invar-
iable or one compelled by statute, regulation,
or order. But even so, we feel that the Govern-
ment has failed to establish in a clear and con-
vincing manner the content of the actual arrest
question to which Profaci allegedly gave an
intentionally false answer. And any doubts
created by the Government's own evidence must be
resolved in favor of the [citizen].
(274 F.2d at 291-92). See also Cufari V. United States, 217
F.2d 404 (1st Cir. 1954) (no proof of question actually asked).
The Government's case suffers from the same infirmity here.
The Government's failure to prove that Kairys actually
understood the question also bars a finding of willfulness.
The visa application form is in English. There is no evidence
56/ Cf. United States V. Tooma, 187 F.Supp. 928, 930 (E.D.Mich.
1960) ("It is significant that question 18 in the prelimi-
nary application was neither read nor explained to the
defendant by the examiners. He was merely asked if he had
read and truthfully answered the question.").
-89-
that it was actually translated or explained to Kairys. In
fact, Kairys denied that the consular officials read him the
entry concerning wartime whereabouts. (Tr. 1175). Once again,
the Second Circuit's observations in Profaci apply:
"Even if it were sufficiently proved that Profaci
was specifically asked "Were you ever arrested?"
the Government's proof does not convincingly
demonstrate that the defendant actually under-
stood the question to refer to arrests outside
the United States, and especially to those
preceding his hearing by more than five years.
Such proof, we hold was essential
since
illegal procurement as a ground for revocation
of citizenship has been eliminated by the 1952
Act. 57
(274 F.2d at 292) Absent proof that Kairys was actually asked
about his wartime whereabouts and that he actually understood
the question, the Government cannot establish that Kairys made
58
a "willful" misrepresentation.
57 Standard canons of statutory construction and the ex post
facto clause bar use of the 1961 addition of illegal
procurement to the grounds for denaturalization to strip
Kairys of citizenship he obtained in 1952. See Section III,
infra.
58 The Government shuns any direct analysis of the actual
question on the visa application, GX 5. The actual entry
requests: "That since reaching the age of 14 years I have
resided at the following places, during the periods stated,
to wit." As Rhodes conceded, of course, no question on
the form, including the foregoing entry, actually required
disclosure of concentration camp service. (Tr. 710).
Moreover, the Government offered no evidence that Kairys
supplied the responsive information to the consular offi-
cials or that they read and translated the entry to him
before he signed the application. The question itself is
hardly unambiguous. To "reside" may imply more than mere
presence. It typically means to "dwell permanently or
continously, have a settled abode for a time, have one's
residence or domicile." (Webster's Third New Int'l.
(Footnote continued on following page)
-90-
The Government also never showed that any "misrepre-
sentation" Kairys made, even assuming it was "willful," was
also material. 59 To the contrary, Government witness Rhodes
admitted that in order for any misrepresentation to be material,
it had to "bear directly on eligibility." (Tr. 708). The Govern-
ment offered nothing to show that the question of wartime where-
abouts bore "directly on eligibility." The only evidence was to
the contrary. Government witness Curry explained that a misrepre-
sentation of wartime residence could be immaterial. (Tr. 659).
The Government never proved that Kairys ever made any
willful misrepresentations to or concealments of material facts
from the Displaced Persons Commission or the American Vice
Consul. Its claims that Kairys must lose his citizenship by
(Footnote continued from preceding page)
Dict. ) (1961) An individual taken by the Germans during
wartime from his home could readily and understandably
exclude from his "residences" those places where the Germans
put him. Under the circumstances, a false answer cannot
support a finding of "willful misrepresentation or con-
cealment." See Profaci, 274 U.S. at 292; Tooma, 187
F. Supp. at 930. Cf. United States V. Wall, 371 F.2d 398
(6th Cir. 1967) (perjury prosecution) ("In a case where the
question propounded admits of several plausible meanings,
the defendant's belief cannot be adequately tested and it
is necessary to determine what the question meant to him
when he gave the disputed answer. ").
59/ The Government strains to reconstruct the missing evidence
on the issue of what Kairys told immigration officials.
Thus, it argues (Gov't Br. 78): "On GX 7 (a 1949 D.P.
registration record), defendant denied he had been a
POW.
He now admits it was incorrect and claims he
was a POW. (Tr. 1178-79) " But defendant did not fill
in or sign GX 7. (Tr. 1179). Moreover, the question was
"Do you claim to be a prisoner of war?" (GX 7). The card
was not completed until 1949, when Kairys was in the U.S.
Army. Moreover, Kairys never testified the information on
GX 7 was "incorrect."
-91-
reason of these alleged misrepresentations or concealments
60/
must, therefore, fail.
D.
The Government Failed to Prove Willful
Misrepresentations or Concealments in
Connection with Kairys's Application for
Citizenship.
The Government also failed to prove, by "clear,
unequivocal, and convincing evidence that does not leave the
issue in doubt," that Kairys made willful misrepresentations or
concealments of material facts in connection with his 1957
application for citizenship. This failure alone requires
dismissal of Count I of the Government's Complaint.
Immigration Judge Anthony Petrone testified for the
Government concerning naturalization procedures. Judge Petrone
explained that the process entailed three steps. First, the
would-be citizen completed and submitted an "Application to
File Petition for Naturalization" (INS Form 400) (e.g., GX 8).
(Tr. 576-77). The "preliminary examiner" then questioned the
applicant about the information on the application. (Tr. 578).
60/ The Government's failure to prove that Kairys "willfully
misreprsented or concealed material facts" in his visa
application also defeats its charges: (i) that Kairys
procured his citizenship by willful misrepresentation or
concealment when he denied having given any false testimony
to secure benefits (namely, his visa) under the immigration
laws (Cmplt. 192; Gov't Br. 93-94), and (ii) that Kairys
illegally procured his citizenship (Cmplt. 1152-53) and
procured his citizenship by willful misrepresentation or
concealment (Cmplt. 129) because he lacked good moral
character by reason of having given false testimony to
obtain his visa. Each of these theories assumes that
Kairys had lied in connection with his visa application.
Because the Government failed to prove that Kairys had, in
fact, lied to obtain his visa, the Government cannot
sustain these alternative theories.
-92-
Second, a clerk typed up the "Petition for Naturalization" (INS
Form 405) (e.g., GX 9) based on the verified information con-
tained on INS Form 400. (Tr. 580). Another INS official
called the "designated examiner" then went over the Petition
(Form 405) with the applicant and his witnesses. (Tr. 581).
Finally, the completed Petition was submitted to the Court with
the designated examiner's recommendation. A designated examiner
thereafter presented the INS recommendation to the Court and
moved the applicant's admission to citizenship. (Tr. 582).
The Government represents, without any citation to
the record, that in applying for citizenship, Kairys "concealed
his membership in the SS Wachmannschaft, which he was required
to reveal pursuant to a question on his Application to File a
Petition for Naturalization," GX 8. (Gov't Br. 93-94) 61
/
61 / The Government apparently grounds this claim on question 9
of the Petition to File Application for Naturalization
(GX 8) The Government, however, once again studiously
avoids any analysis of the actual question. The question
asks:
"What organizations, clubs, or societies in the United
States or in any other country have you been a member of
before the last 10 years.' Kairys answered "None. " The
question, however, hardly amounts to an unambiguous request
to disclose concentration camp service. The Government's
own expert admitted that no question on GX 8 required
disclosure of such service. (Tr. 594).
Recognizing the ambiguity of the question, the Government
amended the question sometime after Kairys's naturaliza-
tion. Cf. Tooma, 187 F.Supp. at 930.
Thus, the question on Fedorenko's 1969 citizenship appli-
cation asked for disclosure of foreign military service.
(Fedorenko, 449 U.S. at 497 n.9). Moreover, today the
application is even more specific:
(Footnote continued on following page)
-93-
Judge Petrone admitted, however, that no question on INS Form
400, GX 8, required Kairys to disclose his service, if any, as
a camp guard. (Tr. 594). He testified only that it was a
"general policy" of the INS examiners during those years to ask
questions about an applicant's camp guard service.
62/
Judge
(Footnote continued from preceding page)
"During the period March 23, 1933 to May 8,
1945, did you serve in, or were you affiliated
with, either directly or indirectly, any military
unit, paramilitary unit, police unit, self-
defense unit, vigilante unit, citizen unit, unit
of the Nazi Party or SS, government agency or
office, extermination camp, concentration camp,
prisoner of war camp, prison, labor camp, deten-
tion camp or transit camp, under the control of
or affiliated with: (a) the Nazi Government of
Germany; (b) any Government in any area occupied
by, allied with, or established with the assis-
tance or cooperation of, the Nazi Government of
Germany?
"During the period March 23, 1933 to May 8,
1945, did you ever order, incite, assist, or
otherwise participate in the persecution of any
person because of race, religion, national
origin, or political opinion?"
(App. B). This specificity is a far cry from the question
which asked Kairys to disclose membership in "organiza-
tions, clubs, and societies." Kairys's answer "none,"
even if false, cannot support a finding of a "willful"
misrepresentation.
"[W]hen 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."
Profaci, 274 F.2d at 292. See also Tooma, 187 F. Supp. at
930.
62/ Judge Petrone testified that this policy stemmed from a
directive from Washington. (Tr. 584-85). Judge Petrone
did not have a copy of this directive (Tr. 588) and the
Government never produced it in discovery or offered it in
evidence.
-94-
Petrone could only "assume" that the preliminary examiner,
Irving Schwartz, (Tr. 579), had asked Kairys this critical
question in 1957. (Tr. 596).
The Government could have, but did not, call Irving
Schwartz to testify as to what questions Kairys had actually
been asked. Irving Schwartz is now an immigration judge like
Judge Petrone, and indeed works for the Government in the same
federal courthouse building where the case was tried. The
Government's failure to call Judge Schwartz to testify, under
these circumstances, creates an inference that his testimony
would have been that he never asked anyone, including Kairys,
about camp guard service. 63 As the Supreme Court observed in
Interstate Circuit Inc. V. United States, 306 U.S. 208, 226
(1939), when noting the defendants' failure to call the witnesses
who had personal knowledge of the disputed facts: "The produc-
tion of weak evidence when strong is available can lead only to
the conclusion that the strong would have been adverse."
The Government's failure to prove what questions the
preliminary examiner, Irving Schwartz, actually asked Kairys,
coupled with Judge Petrone's acknowledgment that none of the
naturalization forms specifically required disclosure of camp
63 The Government claims that Kairys misrepresented his name
and date and place of birth in his citizenship applica-
tions. (Cmplt. 110, 11). The Government offered no
evidence and now makes no argument that these "misrepre-
sentations, " even if true, were "material." The Government
made no showing the true facts "if known, would have
warranted denial of citizenship or (2) that their disclo-
sure might have been useful in an investigation possibly
leading to the discovery of other facts warranting denial
of citizenship." Chaunt V. United States, 364 U.S. 350,
355 (1960).
-95-
guard service, precludes a finding that Kairys willfully con-
cealed his alleged service in the SS Wachmannschaft. The
Government simply failed to meet its burden of proof on the
question of intent. See Nowak V. United States, 356 U.S. 660,
663-65 (1958) Baumgartner V. United States, 322 U.S. 665, 675
64
(1944) Profaci, 274 F.2d at 291-92; Cufari, 217 F.2d 404.
The Government's failure of proof also extended to
the materiality of the facts which Kairys allegedly concealed
or misrepresented. Judge Petrone acknowledged that previous
service as a labor camp guard was not, standing alone, a bar to
64 Indeed, because of the close parallel of procurement of
citizenship by willful misrepresentation and concealment
to perjury, long-settled principles governing perjury
prosecutions should govern here. Thus, a finding of
"willful misrepresentation or concealment" should not be
able to rest on the speculation offered by Rhodes concerning
Kairys's visa application or the "assumption" tendered by
Judge Petrone concerning the citizenship application. The
"two witness rule" for perjury should apply here so that a
conviction cannot stand on the "uncorroborated testimony
of a single witness." Weiler V. United States, 323 U.S.
606, 608 (1945). The character and persuasiveness of
evidence required to sustain a perjury conviction should
also apply in the case of alleged "willful misrepresentations
and concealments" to obtain citizenship. Thus, the standard
here should be, as it is in a perjury case, that:
"[T]he Government has the burden of proving by
clear, convincing, and direct evidence to a
moral certainty and beyond a reasonable doubt
that the defendant knowingly and intentionally
swore to a falsehood. The Government's proof
must be by substantial evidence excluding to the
satisfaction of the jury every other hypothesis
than that the defendant in testifying as he did
purposely misstated the fact knowing it to be
false and untrue."
Van Liew V. United States, 321 F.2d 674, 679 (5th Cir.
1963). Under this standard, Rhodes's and Judge Petrone's
testimony could not, as a matter of law, sustain a
conviction.
-96-
the acquisition of American citizenship. He testified that he
would have recommended to grant citizenship to a Baltic emigre
who had been coerced by the Germans to serve as a guard but who
had committed no acts of atrocities. (Tr. 597-98). Because
camp guard service of this character was not a bar to the
acquisition of citizenship, failure to disclose it was not a
"material" concealment. United States V. Riela, 337 F.2d 986
(3d Cir. 1964); United States V. Rossi, 299 F.2d 650 (9th Cir.
1962) ) La Madrid-Peraza V. Immigration and Naturalization
Service, 492 F.2d 1297 (9th Cir. 1974).
Because the Government failed to prove, by "clear,
unequivocal, and convincing evidence that does not leave the
issue in doubt" that Kairys willfully misrepresented or con-
cealed material facts in his citizenship application, Count I
of the Complaint must be dismissed.
III. THE GOVERNMENT MAY NOT DENATURALIZE KAIRYS
FOR "ILLEGAL PROCUREMENT" OF CITIZENSHIP.
Four of the five counts of the Government's Complaint
against Kairys demand his denaturalization, under $340(a) of
the Immigration and Nationality Act, 8 U.S.C. §1451 (a) (1976), on
the grounds that he "illegally procured" his citizenship. (Cmplt.
1132-55). The Government may not, however, proceed against
Kairys on those grounds.
When Kairys obtained his citizenship in 1957, the
"illegal procurement grounds" relied on by the Government were
not a basis for denaturalization. Congress did not add "illegal
procurement" to $340(a) until 1961. When Congress made the
-97-
addition, it made no provision for retroactive use of "illegal
procurement" as a grounds to cancel citizenship obtained before
the amendment.
The retroactive application of "illegal procurement"
to Kairys's citizenship would violate what the Supreme Court
has called "the first rule" of statutory construction: "[L]egis-
lation must be considered as addressed to the future, not the
past." Union P.R.R. V. Laramie Stock Yard Co., 231 U.S. 190,
199 (1913), quoted in Greene V. United States, 376 U.S. 149,
160 (1964). Such an application of the 1961 amendment to
$340 (a) also runs afoul of the constitutional prohibition
against ex post facto prosecutions. U.S. Const. Art. I, §9,
cl.3. The Government's claim that Kairys "illegally procured"
his citizenship must, therefore, be dismissed.
A. The "First Rule" of Statutory Construction
Bars Retroactive Use of "Illegal Procurement"
as Grounds to Strip Kairys of his Citizenship.
The first paragraph of the Complaint sets forth the
Government's sole statutory basis for its demand to denaturalize
Kairys:
This is an action brought pursuant to Section
340(a) of the Immigration and Nationality Act of
1952, as amended, 8 U.S.C. $1451(a).
(Cmplt. 1). Section 340(a) of the Act now provides, in its
pertinent part:
It shall be the duty of the United States attor-
neys for the respective districts, upon affidavit
showing good cause therefor, to institute pro-
ceedings in any court specified in subsection (a)
of section 1421 of this title in the judicial
district in which the naturalized citizen may
-98-
reside at the time of bringing suit, for the
purpose of revoking and setting aside the order
admitting such person to citizenship and cancel-
ing the certificate of naturalization on the
ground that such order and certificate of natu-
ralization were illegally procured or were
procured by concealment of a material fact or
by willful misrepresentation
(8 U.S.C. $1451 $1451(a))
When Section 340(a) was originally enacted on June 27,
1952, it did not, however, provide for denaturalization on the
grounds of "illegal procurement" of citizenship. (See 66 Stat.
260 (1953)
65/ When Kairys obtained his citizenship, July 16, 1957,
65 / Previous denaturalization laws had provided for denatural-
ization on the basis of illegal procurement. See
Section 15, Act of June 29, 1906 (34 Stat. 601 (1907)) and
Section 338 of the Nationality Act of 1940 (54 Stat.
1158-59). In United States V. Stromberg, 227 F.2d 903
(5th Cir. 1955), the Court held that the "savings provi-
sion" of the Immigration and Nationality Act of 1952,
$340(i), 8 U.S.C. $1451 (i), did not preserve "illegal
procurement" as a ground for denaturalization.
The deletion of "illegal procurement" from the grounds for
denaturalization in 1952 was not a Congressional oversight.
The legislative history of $340 reveals that Congress was
aware of the change:
"One of the major changes in existing nationality
law provided by the bill is contained in section
340 which authorizes judicial revocation of
naturalization. Under the provision of section
338 of the Nationality Act of 1940, revocation
is possible where the naturalization was obtained
by fraud or was procured illegally.
"The bill changes the basis for judicial revoca-
tion of naturalization from fraud and illegal
procurement to procurement by concealment of a
material fact or by willful misrepresentation."
H. Rep. No. 1365, 82d Cong., 2d Sess. (1952), reprinted in
1952 U.S. Code Cong. and Admin. News 1741. See also
S. Rep. No. 1137, 82d Cong., 2d Sess. 45 (1952).
(Footnote continued on following page)
-99-
Section 340(a) still contained no provision for denaturalization
on the basis of "illegal procurement." Only on September 26,
1961, some four years later, did Congress pass "An Act to Amend
the Immigration and Nationality Act," to add "illegal procure-
ment" to the grounds for denaturalization under Section 340(a).
Pub. L. 87-301, §18; 75 Stat. 656 (1961).
The Government thus rests four of the five counts of
its Complaint on this after-the-fact amendment to Section 340(a).
Rules of statutory construction preclude reliance on
the 1961 change of law to strip Kairys of citizenship he obtained
in 1957. In Union P.R.R. V. Laramie Stock Yard Co., 231 U.S. 190
(1913), the Supreme Court reiterated familiar principles:
[T]he first rule of [statutory] construction is
that legislation must be considered as addressed
to the future, not to the past. The rule is one
of obvious justice and prevents the assigning of
a quality or effect to acts or conduct which
they did not have or did not contemplate when
they were performed. The rule has been expressed
in varying degrees of strength, but always of
one import, that a retrospective operation will
(Footnote continued from preceding page)
The 1952 Act did not leave the Government without a remedy
for illegal procurement. It did, however, provide the
accused with more rights than the 1961 amendment adding
"illegal procurement" to the grounds for denaturalization
under § 340(a). Title 18, United States Code, Section
1425 (1976) has provided since 1952 that "whoever knowingly
procures or attempts to procure, contrary to law, the
naturalization of any person" is guilty of a felony. By
operation of 8 U.S.C. §1451 (g) (1976), conviction under
18 U.S.C. $1425 also results in loss of citizenship. Under
these provisions, the defendant enjoys all criminal law safe-
guards, including presentment to a grand jury, a jury
trial, and the barrier of a statute of limitations. The
Government claims that under the 1961 amendment to $340 (a)
the defendant does not specifically enjoy these protections.
-100-
not be given to a statute which interferes with
antecedent rights or by which human action is
regulated, unless such be "the unequivocal and
inflexible import of the terms, and the manifest
intent of the legislature." United States V.
Heth, 3 Cranch 399, 413; Reynolds V. McArthur, 2
Pet. 417; United States V. American Sugar Refin-
ing Co., 202 U.S. 563, 577.
(231 U.S. at 199).
The Seventh Circuit recently underscored the continu-
ing strength of this settled doctrine:
There are few principles of our law more ancient,
and none more respected, than the canon which
holds that laws are enacted for the future.
A legislative pronouncement may not operate on
acts which predate its passage. Neither may it
serve to divest rights which have come into
existence before its date of effect.
South East Chicago Commission V. Department of Housing & Urban
Development, 488 F.2d 1119, 1122 (7th Cir. 1973).
Use of the 1961 amendment to strip Kairys of the
citizenship he obtained in 1957 would amount to a retroactive
application of the amendment. But "a legislative pronouncement
may not operate on acts which predate its passage." South East
Chicago Commission, 488 F.2d at 1122. The claimed "acts" by
which Kairys obtained his citizenship occurred before and
during 1957. Yet the Government claims that the 1961 amendment
may "operate" to subject him to loss of that citizenship.
Moreover, legislation may not "divest rights which have come
into existence before the date of its effect." (488 F.2d at
1122). The Supreme Court has described naturalized citizenship
as "rights solemnly conferred" under the judgment of naturaliza-
tion. Schneiderman, 320 U.S. at 123. Those rights "came into
existence" for Kairys in 1957. The Government seeks to employ
-101-
the 1961 amendment to "divest" him of them. The Government
effort thus presents a classic attempt to secure retroactive
66
effect to legislation.
Nothing in the Immigration and Nationality Act, the
1961 amendment, or its legislative history supports retroactive
application of the "illegal procurement" grounds for denatural-
ization. In United States Fidelity and Guaranty Co. V. Struthers
Wells Co., 209 U.S. 306, 314 (1908), the Supreme Court stated:
There are certain principles which have been
adhered to with great strictness by the courts
in relation to the construction of statutes as
to whether they are or are not retroactive in
their effect. The presumption is very strong
that a statute was not meant to act retrospec-
tively and it ought never to receive such a
construction if it is susceptible of any other.
It ought not to receive such a construction
unless the words used are so clear, strong, and
imperative that no other meaning can be annexed
66 See also Society for the Propagation of the Gosepl V.
Wheeler, 22 Fed. Cas. 756, 767 (C.C.D.N.H. 1814) (No.
13,156) (Story, Circuit Justice) ("Upon principle, every
statute, which takes away or impairs vested rights acquired
under existing laws, or create a new obligation, imposes a
new duty, or attaches a new disability, in respect to trans-
actions or considerations already past, must be deemed
retrospective ) 2 Sutherland, Statutory Construction,
$41.01 at 245 ("The terms 'retroactive' and 'retrospective'
are synonymous in judicial usage and may be employed inter-
changeably. They describe acts which operate on transactions
which have occurred or rights and obligations which existed
before passage of the act. ) Cf. United States V. Hall,
26 Fed. Cas. 84, 86 (C.C.D.Pa. 1809) (No. 15,285) (Washington,
Circuit Justice) (An ex post facto law is one "which in
relation to the offense or its consequences, alters the
situation of the party to his disadvantage.' See generally
Smead, The Rule Against Retroactive Legislation: A Basic
Principle of Jurisprudence, 20 Minn.L.Rev. 775 (1938).
-102-
to them or unless the intention of the legisla-
ture cannot be otherwise satisfied. 67 /
Public Law 87-301, which contained the 1961 amendments, says
nothing about retroactive application of the "illegal procure-
ment" grounds for denaturalization. See 75 Stat. 650-57 (1962).
Similarly, the legislative history of the 1961 amendment says
nothing of a Congressional intent to apply "illegal procurement"
retroactively. See H. Rep. No. 1086, 87th Cong., 1st Sess.
(1961), reprinted in 1961 U.S. Code Cong. & Admin. News 2950,
2982-84. Under these circumstances, nothing overcomes the
"very strong presumption" that the 1961 amendment should only
apply prospectively.
Nor does the "savings" provision ($340(i)) of the
Immigration and Nationality Act of 1952, 8 U.S.C. §1451(i) (1976),
save the Government's "illegal procurement" claims against
Kairys. Section 340(i) was enacted as part of the original act
in 1952. See 66 Stat. 262 (1953). It provides, as enacted, and
unchanged to this day:
The provisions of this section [namely, $340]
shall apply not only to naturalization granted
and to citizenship issued under the provisions
of this subchapter [namely, Subchapter III,
"Nationality and Naturalization, " 8 U.S.C.
$$1401-1503], but to any naturalization hereto-
fore granted by any court, and to all certifi-
cates of naturalization and citizenship which
may have been issued heretofore by any court
67/ See also Winfree V. Northern P.R., 227 U.S. 296, 301 (1913);
United States V. St. Louis, S.F. & T. Ry., 270 U.S. 1, 3
(1926); Union P.R. V. Snow, 231 U.S. 204, 213 (1913) ; Greene V.
United States, 376 U.S. 149, 160 (1964); South East Chicago
Commission V. Department of Housing and Urban Development,
488 F.2d at 1123.
-103-
"Naturalization heretofore granted" could mean only citizenship
acquired before 1952, when the statute was enacted. Congress
thus specifically provided for retroactive coverage of the 1952
statute to pre-1952 citizenship. Kairys's citizenship, by
contrast, was acquired in 1957, "under the provisions of this
subchapter." At that time, Section 340(a), one of the "provi-
sions of this subchapter," said nothing about denaturalization
for "illegal procurement" of citizenship.
When Congress added "illegal procurement" to the
grounds for denaturalization in 1961, it did not provide, as it
had done in 1952, for retroactive application of this grounds
for denaturalization to pre-1961 citizenship. The "savings"
provision demonstrates that Congress knew how to specify retro-
active application of the denaturalization statutes when it
wanted to do SO. Because it did not do so in the case of its
addition of "illegal procurement" in 1961, retroactive applica-
tion is precluded. The Supreme Court's observation in
Struthers Wells is pertinent here:
If Congress had intended otherwise, we think it
would have still further amended the original
act by providing in plain language that the
amendment should apply to all cases, and not be
confined to the future.
(209 U.S. at 315).
Because "illegal procurement" was not added to the
statutory grounds for denaturalization until 1961, some four
years after Kairys obtained his citizenship, stripping him of
his certificate on those grounds would entail a retroactive
application of the 1961 amendment. In light of the silence of
-104-
Congress on this issue, canons of statutory construction bar
the retroactive application which the Government seeks.
Counts II through V of the Complaint, therefore, must be dis-
missed.
B.
Retroactive Application of the 1961 Addition
of "Illegal Procurement" to Kairys's 1957
Citizenship Violates the Ex Post Facto Clause
of the Constitution.
Even if principles of statutory construction are
disregarded, the Constitutional prohibition of ex post facto
prosecutions stands as a further bar to the Government effort.
As shown above, reliance on "illegal procurement" as
a grounds to denaturalize Kairys would amount to a retroactive
application of the 1961 amendment to $340(a) to the citizenship
Kairys obtained in 1957. In light of modern understanding of
the value of citizenship and the consequences of denaturalization
for the individual, the ex post facto clause (U.S. Const.
Art. I, §9, cl. 3) of the Constitution bars retroactive applica-
tion.
In Calder V. Bull, 3 U.S. (3 Dall.) 386 (1798), the
Supreme Court first discussed, in dictum, 68/ the meaning of the
68 The Calder discussion of the ex post facto clause qualifies
as dictum because the Court grounded its decision on the
contract clause. As Mr. Justice Johnson explained in his
concurrence in Satterlee V. Mathewson, 27 U.S. (2 Pet.)
380, 685 (1829)
"It is obvious, in the case of Calder V. Bull,
that the great reason which influenced the
opinion of the three judges who gave an exposi-
tion of the phrase ex post facto, was that they
considered its application to civil cases unnec-
essary, and fully supplied by the prohibition to
pass laws impairing the obligations of contracts."
-105-
ex post facto clause. The Court's opinions emphasize that the
clause principally operates to protect individual liberty:
The prohibition, in the letter, is not to pass
any law concerning, and after the fact; but the
plain and obvious meaning of the prohibition in
this; that the Legislatures of the several states
shall not pass laws, after a fact done by a sub-
ject, or citizen, which shall have relation to
such fact, and shall punish him for having done
it. The prohibition considered in this light,
is an additional bulwark in favor of the personal
security of the subject, to protect his person
from punishment by legislative acts, having a
retrospective operation.
(3 U.S. (3 Dall. ) at 390) 69/ See also Fletcher V. Peck, 10
U.S. (6 Cranch) 87, 138 (1810) Ogden V. Saunders, 25 U.S. (12
Wheat.) 213, 266 (1827)
The Court has also stated that the substance of the
effect of the retroactive statute on the individual, not the
label "criminal" or "civil" given the proceeding, governs in
determining whether the ex post facto clause has been violated.
Thus, in Cummings V. Missouri, 71 U.S. (4 Wall.) 277 (1866),
the Court invalidated a Missouri constitutional provision
which, through the operation of an oath requirement, debarred
certain individuals from some professions by reason of their
participation in acts which were not prohibited when committed.
The Court reasoned:
69, Calder dealt with the ex post facto clause restriction on
the states. The Constitution, of course, imposes the
identical restriction on the Federal Government.
-106-
The disabilities created by the constitution of
Missouri must be regarded as penalties -- they
constitute punishment. We do not agree with the
counsel of Missouri that "to punish one is to
deprive him of life, liberty, or property, and
that to take from him anything less than these
is no punishment at all."
The deprivation
of any rights, civil or political, previously
enjoyed, may be punishment, the circumstances
attending and the causes of the deprivation
determining this fact.
(71 U.S. (4 Wall.) at 320).
These principles dictate that retrospective applica-
tion of "illegal procurement" to denaturalize Kairys would
amount to a punishment which the ex post facto clause prohibits.
Denaturalization threatens an individual's liberty. Chaunt,
364 U.S. at 353. The Supreme Court has held that forfeiture of
citizenship is penal and has "throughout history been used as a
punishment." Kennedy V. Mendoza-Martinez, 372 U.S. 144, 168
n.23 (1963). Moreover, denaturalization has consequences which
"may be more grave than consequences that flow from conviction
for crimes.' If Klapprott, 335 U.S. at 611. 70/ Retroactive appli-
cation of a statute which would inflict these consequences on
Kairys offends the basic rationale of the ex post facto clause.
The Government may rely on Johannessen V. United States,
225 U.S. 227 (1912), to avoid application of the ex post facto
70, Moreover, denaturalization under these circumstances would
constitute a penalty under the Supreme Court's six-pronged
analysis in Mendoza-Martinez, 372 U.S. at 168-69. See
"Defendant's Memorandum in Opposition to the Government's
Motion to Strike His Jury Demand," pp.22-29 (April 19,
1982).
-107-
clause to preclude retroactive application of "illegal procure-
ment" to Kairys's case. 71/ Johannessen, however, concerned a
citizenship certificate far different than the certificate
Kairys obtained. Johannessen had obtained his by way of
ex parte application. 72/ The Court described this citizenship
as merely an "instrument granting political privileges
closely analogous to a public grant of land to make, use and
vend a new and useful invention." (225 U.S. at 238).
Kairys, by contrast, obtained his citizenship by way
of adversarial proceedings against the Government. (Tr. 588-
90). The Supreme Court has called this kind of citizenship a
"precious right, If Schneiderman, 320 U.S. at 125, and a "price-
less treasure." Fedorenko, 449 U.S. at 507. The Court has
stated that this kind of citizenship "cannot be compared (as
was done in Johannessen
) to an administrative grant of
land or of letters patent.
II
Schneiderman, 320 U.S. at
124 n.3.
Moreover, precious rights should not today turn on
the Johannessen court's anachronistic characterization of
citizenship as merely "an instrument granting political privi-
leges." The Supreme Court has "rejected the concept that
71/ Johannessen provides no basis for ignoring the canons of
statutory construction which preclude retroactive applica-
tion of the "illegal procurement" grounds for denaturaliz-
ation. In Johannessen the challenged statute expressly
provided for retroactive coverage. (225 U.S. at 274). In
this case, of course, the belated 1961 amendments to
§340 (a) made no provision for retroactivity.
72/ See "Defendant's Memorandum in Opposition to the Govern-
ment's Motion to Strike His Jury Demand," pp.6-8.
-108-
constitutional rights turn upon whether a governmental benefit
is characterized as a 'right' or a 'privilege.'" Morrissey V.
Brewer, 408 U.S. 471, 481 (1972). In short, the discredited
language of Johannessen applies neither by its terms nor its
reasoning to Kairys's case. If the ex post facto clause does
serve as a protection to individual liberties, as the Supreme
Court has repeatedly said, then it protects Kairys's "most
precious right" from a retroactive attack by the Government.
C.
The Government Failed to Prove that Kairys
"Illegally Procured" his Citizenship within
the Meaning of Fedorenko.
The Government has argued from the outset that its
case requires no legal analysis beyond a wooden application of
the Fedorenko decision. (E.g., Gov't Br. 18 n.*). This sim-
plistic approach ignores the self-described limitations of the
Fedorenko decision and the Court's duties closely to examine
the factual record itself, e.g., Nowak V. United States, 356
U.S. 660 (1958), and to construe both "the facts and the law
...
as far as is reasonably possible in favor of the citizen."
Schneiderman, 320 U.S. at 122. This approach follows from the
Supreme Court's injunction to the Courts to maintain a "jealous
regard" for the rights of the citizen. Schneiderman, 320 U.S.
at 120.
As a first limitation, the Supreme Court decided only
that Fedorenko should lose the citizenship he obtained in 1970
by reason of its "illegal procurement." The Government may not
proceed against Kairys for "illegal procurement" of citizenship,
however, because that ground for denaturalization had been
-109-
eliminated in 1952 and not restored until 1961, four years
after Kairys was naturalized. (See Sections III. A-B, supra).
Congress itself recognized:
Elimination of the illegality ground bars denat-
uralization under section 340 unless it is
proved that the naturalized person has been
guilty of wrongdoing amounting to concealment of
a material fact or willful misrepresentation
within the meaning of that section.
H.R. Rep. No. 1086, 87th Cong., 1st Sess., 38 (1961), reprinted
in 1961 U.S. Code Cong. & Admin. News 2950, 2992. Section II
demonstrated that the Government failed to prove that Kairys
willfully misrepresented or concealed any material facts in
connection with his immigration and naturalization.
Moreover, important factual differences distinguish
Kairys's case from Fedorenko's. Fedorenko admitted he had
"willingly" lied to the Displaced Persons Commission and the
vice consul about his wartime activities in applying for his
visa. (449 U.S. at 496-97, 500, 507). These lies disqualified
Fedorenko for a visa under §10 of the D.P. Act, because "dis-
closure of the true facts about [his] service as an armed guard
at Treblinka would, as a matter of law, have made him ineligible
for a visa under the D.P. [Act]
"
(449 U.S. at 509). This
conclusion rested on the D.P. Act's declaration that individuals
who "assisted the enemy in persecuting civili[ans]" were ineli-
gible for visa under the Act. (449 U.S. at 509-10). The Court
found that Fedorenko was just such a person:
[T]here can be no question that a guard who was
issued a uniform and armed with a rifle and a
pistol, who was paid a stipend and was regularly
allowed to leave the concentration camp to visit
a nearby village, and who admitted to shooting
-110-
at escaping inmates on orders from the comman-
dant of the camp, fits within the statutory
language about persons who assisted in the perse-
cution of civilians.
(449 U.S. at 512-13 n.34). The Court then recognized that
other factual situations could lead to different results:
"Other cases may present more difficult line-drawing problems,
but we need only decide this case." (Id.).
The facts in Fedorenko's case differ sharply from
Kairys's, even assuming the Government places Kairys at the
Treblinka Labor Camp. First, the evidence shows that in no
sense was service at the Treblinka Labor Camp a voluntary
affair. Men were either simply taken from prisoner of war
camps ((GX 80, p.17 (Zvezdun); GX 81, pp.11, 14, 23, 43-44
(Kharkovskii) or coerced to "volunteer" by witnessing the
killing of others who declined. (GX 77, pp.14 (Amanaviczius).
None knew what the service would entail beforehand. (GX 81,
p.44 (Kharkovskii) Once in the camp, there was no escape.
Those who tried were shot. (GX 81, p.43 (Kharkovskii) Those
who went on leave had to return or their families would have
been killed. (GX 77, p.17 (Amanaviczius) )
The "Kairys" of the Treblinka Labor Camp never hurt
any of the inmates. No survivor could identify that "Kairys"
as a perpetrator of murder or beatings. Government witness
Amanaviczius testified that "Kairys" was not present at the
bloody liquidation of the camp. Moreover, the Government
declined to ask any witness other than Ivan Zvezdun whether the
"Kairys" he knew had killed anyone. Shielded from cross-
examination about his preparatory sessions with the KGB, Zvezdun
-111-
came up at his deposition with a story he had never told before.
He claimed to have "witnessed" murders of two prisoners by
"Kairys" and another guard (whom he could not identity) from a
watchtower at a distance of 100 to 150 meters. This testimony
does not deserve to be admitted in evidence, much less given
any weight. The Government certainly did not prove by "clear,
unequivocal, and convincing evidence that does not leave the
issue in doubt," that its "Kairys" hurt or tried to hurt anyone
at Treblinka. 73
This factual distinction makes a difference. Judge
Petrone testified that he would have recommended an individual
for citizenship whose concentration camp service paralleled
that of the "Kairys" at Treblinka. (Tr. 597-98). Moreover, as
Justice White observed, dissenting in Fedorenko, "one could
argue that the words 'assist' and 'persecute' suggest that
§2 (a) would not apply to an individual whose actions were truly
coerced." (449 U.S. at 527 n.3). The ordinary definition of
"assist" is "to give support or aid" (Webster's Third New Int'l
Dict. 1961), which implies a volitional act. E.g., Peterson V.
Hopson, 29 N.E.2d 140, 148, 306 Mass. 597, (Mass. 1940)
"[A]ssistance imports a voluntary participation in the wrongful
acts."). The record is devoid of any showing that a Baltic
73/ The Government's failure to prove that Kairys committed
murder or administered beatings at Treblinka defeats its
claims that he "illegally procured" his citizenship because
he lacked good moral character (Cmplt. 1146-49) and that
he obtained his citizenship by "willful misrepresentation"
when he indicated on his naturalization papers that he had
not committed any crimes entailing moral turpitude.
(Cmplt. 129).
-112-
Treblinka guard named "Kairys" ever "voluntarily" participated
in persecution.
Similarly, the absence of credible evidence of actual
harm to prisoners precludes a finding of "persecution." In
interpreting the term "persecution" under $243(h) of the Immi-
gration and Nationality Act, 8 U.S.C. $1253(h) (1981), the Ninth
Circuit observed:
But there is nothing to indicate that Congress
intended section 243(h) to encompass anything
less than the word "persecution" ordinarly
conveys -- the infliction of suffering or harm
upon those who differ (in race, religion, or
political opinion) in a way regarded as offensive.
Kovac V. Immigration and Naturalization Service, 407 F.2d 102,
107 (9th Cir. 1969). See also Moghanian V. United States Depart-
ment of Justice, 577 F.2d 141, 142 (9th Cir. 1978). No credible
evidence shows that the "Kairys" of Tréblinka actually "inflicted"
harm on civilian prisoners. The Government's failure to prove by
"clear, unequivocal, and convincing evidence that does not leave
the issue in doubt" that the "Kairys" of Treblinka voluntarily
assisted in inflicting actual harm on civilian prisoners removes
this case from under Fedorenko and defeats the Government claim
of "illegal procurement."
IV. LACHES BARS THIS PROSECUTION.
O.S.I. Director Allan Ryan recently spoke to the
press about the current Nazi "war criminal" prosecutions. He
stated:
I've often said what we are doing now should
have been done 30 years ago. All the witnesses
are 30 years older, all the defendants are 30
years older, all the documents are 30 years
older with all of the problems that that
connotes.
-113-
(Chicago Lawyer, October 1982, p. 16 c.1). Kairys agrees. The
Government's admitted fault in waiting decades before prose-
cuting limits his ability to present a defense. Important
witnesses for Kairys's cause have died. The Government admits
that it "erroneously destroyed" documents relevant to his
defense. Defendant was denied a jury because the proceeding
was deemed "equitable." Consequently, the equitable defense of
laches bars this prosecution.
A.
The Doctrine of Laches Applies Against
the Government in this Case.
When Kairys claimed the right to the protection of a
jury trial, the Government refused, citing Supreme Court state-
ments terming denaturalization proceedings "equitable." (Gov't
Mem. in Support of its Motion to Strike Def.'s Jury Demand
(April 29, 1982), pp.1-2, 5). If this proceeding is "equitable,"
then Kairys may rely on the equitable defense of laches.
The Supreme Court has considered the question of the
availability of the laches defense to the denaturalization
defendant. Costello V. United States, 365 U.S. 265 (1961).
Despite appellate opinions ruling out the defense in denatural-
ization cases, the Supreme Court declined to follow suit. (365
U.S. at 281). It held, instead, that Costello had not sustained
the defense. (365 U.S. at 281-84). The only subsequent appel-
late opinion has likewise refused to rule out the availability
of laches to an American threatened with confiscation of his
citizenship. United States V. Oddo, 314 F.2d 115 (2d Cir.),
cert. denied, 375 U.S. 833 (1963). Adherence to the Supreme
-114-
Court's injunction that in these cases "both the facts and the
law should be construed as far as is reasonably practicable in
favor of the citizen," Schneiderman, 320 U.S. at 122, results,
on this record, in barring the Government's claims against
Kairys by laches.
B. The Government's Admitted Fault in
Long Delay Prejudiced Kairys.
In Costello, the Supreme Court applied the traditional
elements of the laches defense: (1) lack of diligence in the
plaintiff, and (2) prejudice to the defendant. (365 U.S. at
282). Both elements are present here, in spades.
The Government admits its lack of diligence. OSI
Director Ryan acknowledges that these cases should have been
brought thirty years ago. A congressional committee held
hearings on the delay in investigating charges that Nazi "war
criminals" were living in the United States. (DX 389-92). It
directed the General Accounting Office to investigate. (DX
389, Alleged Nazi War Criminals, Hearings Before the Subcomm.
on Immigration, Citizenship, and International Law of the House
Comm. on the Judiciary, House of Representatives, 95th
Cong., 1st Sess. (1977)) The GAO concluded that the Immigration
and Naturalization Service's "investigations of most cases
before 1973 were deficient or perfunctory. In some, no investi-
gation was conducted." (DX 389, p. 162) 74/
74/ Congress authorized the Government Accounting Office to
investigate whether the delay was a product of a "conspir-
acy" within the Government. The GAO's report states:
"While GAO concludes that no widespread conspiracy existed,
(Footnote continued on following page)
-115-
The Government has been particularly derelict in this
case. Kairys first came into contact with the United States
when he joined the Army Labor Service Company in 1947, 35 years
ago. He had been in the United States over 30 years and a
citizen for more than 23 years before the Government chose to
move against him. The Swidersky case, which the Government has
identified as the source of the evidence allegedly most damning
to Kairys, began in 1969. Nonetheless, the Government waited
until 1980 before acting.
The long delay has prejudiced Kairys. Five important
witnesses from Lithuania who could have substantiated Kairys's
75
identity and wartime whereabouts have died.
(Tr. 1147-50).
(Footnote continued from the preceding page)
it cannot absolutely rule out the possibility of undetected,
isolated instances of deliberate obstruction of investiga-
tions of some alleged Nazi war criminals." (DX 389,
p.161).
75 For example, Kairys testified that the late Dr. Puzinas
was one of several individuals who could have substanti-
ated his whereabouts during the Second World War.
Dr. Puzinas was an part-time instructor at the Vilnius
high school which Kairys attended. The Government asserts
that that memory of Mrs. Puzinas, the late doctor's widow,
contradicts Kairys's testimony. According to the Govern-
ment, Dr. Puzinas "was not a teacher at any high school in
Vilnius and did not engage in any other part time work." If
(Gov't Br. at 76). Mrs. Puzinas's testimony indicates
otherwise. As she stated:
Q.
Just to be clear, you have no knowledge of
your husband working as an instructor at
the gymnasium in Vilnius do you?
A.
No, never, I don't know for sure.
*
*
*
As I was telling, he might have given some
lectures.
(Footnote continued on following page)
-116-
Moreover, Harrison Dick, the Vice Consul who personally handled
Kairys's visa application, has also died. (Tr. 701). The
Supreme Court has noted that, as here, laches
is peculiarly applicable where the difficulty of
doing entire justice arises through the death of
the principal participants in the transactions
complained of, or the witness or witnesses
Hammond v. Hopkins, 143 U.S. 224, 250 (1892).
Beyond the death of witnesses, the Government's delay
in prosecution has resulted in the loss of significant docu-
ments. The "CM/1 Form" or "Fragebogen" which Kairys submitted
to the IRO has disappeared. So have Kairys's entire Army
records -- save those he kept himself. The Army records included
not only documents which Kairys gave to the Army substantiating
his identity and wartime whereabouts (Tr. 1152), but also
records relating to any Army investigations of Kairys (Tr. 649)
prepared as part of Kairys's efforts while in the Army to go to
the United States. (Tr. 1156-59). These Army records, the
Government concedes, were transferred from Germany to the
United States and "erroneously destroyed" in the 1950's. (DX
372).
The death of witnesses and the Government's own
destruction of documents substantially prejudiced Kairys's
defense. The prejudice caused by avoidable delay takes on
increased importance in the light of the many doubts created by
(Footnote continued from preceding page)
(Tr. 1309). Mrs. Puzinas and defendant's recollection
are not inconsistent. The Government proffered no other
witness to contradict Kairys's claims.
-117-
the evidence here. Since "laches goes to the difficulty of
proof, Hudson V. Alabama, 493 F.2d 171, 173 (5th Cir. 1974),
the demonstrated loss of vital defense evidence justifies the
defense of laches agains the Government here.
Conclusion
The Government's evidence leaves a trail of doubt at
every turn. Treblinka survivors who could have made a positive
identification of Kairys did not. Treblinka guards who made
"identifications" did so in questionable circumstances from a
questionable photo on questionable photospreads. The Govern-
ment's key documents, produced by a known forger with an animus
towards Kairys, proved riddled with inconcistencies the Govern-
ment could never answer.
Moreover, the facts concerning Kairys's immigration
and naturalization remain in a fog. The evidence fails to show
that Kairys was even asked whether he served at Treblinka, much
less that he lied. These doubts doom the prosecution, for
denaturalization demands they be silenced:
"We cannot escape the conviction that the case
made out by the Government lacks that solidity
of proof which leaves no troubling doubt in
deciding a question of such gravity as is implied
in an attempt to reduce a person to the status
of alien from that of citizen."
-118-
Baumgartner, 322 U.S. at 670. "Troubling doubts" remain in
this Government attempt against Liudas Kairys. Those "troubl-
ing doubts" require his acquittal.
DATED: October 18, 1982
Respectfully submitted,
David E. Springer
Truther
Thomas O. Kuhns
Place
Philip S. Beck
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
Counsel for Defendant, LIUDAS KAIRYS
-119-
CERTIFICATE OF SERVICE
I, DAVID E. SPRINGER, one of the attorneys for the
defendant, hereby certify that on October 18, 1982, I caused a
copy of "Defendant's Post-Trial Brief" to be served upon plain-
tiff's counsel, Linda Wawzenski, and on October 19, 1982 to be
served upon Neal Sher, Norman Moscowitz, Clarice Feldman and
Eli Rosenbaum.
David E. Springer
APPENDIX
May Reveal
Instruments and Materials Used to Prepare Documents
81
outlines.
ter areas,
rbs water.
27-2103-31-Bu No. 3
rollers pass
the other
e blanket
Figure 3.28. Code numbers appearing on printed forms often give information about the
source and date of printing In this case the third group of digits, 31, indicates a 1931
printing.
hand for
Linotype.
inted page.
typesetting or the presswork, can be derived from a study of the doc-
are further
ument itself, which may have some value in the investigation of the
problem. Many standard forms prepared by letterpress or offset have
the final
printing codes that identify their source (Figure 3.28). Thus certain
printing, a
questions can be answered from the printed document alone, but far
the copy.
more can be told by comparison of it with known material, a problem
h certain
discussed more fully in Chapter 12.
ract, hand-
copy is pho-
plastic, or
Engraved and Lithographed Forms
PY can be
Questions regarding the origin or genuineness of engraved or litho-
the possible
graphed material are encountered in document problems from time to
emple ref-
time. While these documents resemble ordinary printed material, the
may also
methods of preparation are different.
Consultation
The finest-quality work is produced by engraving or etching a reus-
-nd a well-
able steel or copper plate to print engraved letterheads, business cards,
and similar material. In reusing, it is always possible that slight flaws
mough very
may be found in the plate due to mishandling, but this is unusual.
work or the
Otherwise it would be difficult to distinguish the work of different
the press
runs. Letterheads, currency, and stock and bond certificates are com-
ecognized
mon documents prepared by engraving today.
bled master
This class of printing can be easily distinguished from lithographed
e finished
forms, since the engraving produces raised ink while lithographs are
sible type
smooth surface printing. The lithograph process is similar to offset
printing in the final product. Birth, marriage, and baptismal certificates,
mination.
some letterheads, and check blanks are among the common documents
an supply
prepared by lithography. In the majority of problems, however, the
document
most valuable information is derived from comparison of the disputed
was done.
material with specimens from known sources or different printings,
: type was
rather than from the disputed document alone.
ity of the
"Forms of either class are printed from solid plates rather than from the assembled pieces of type
tht, 19521. is a
used for ordinary (letterpress) printing Engraved (intaglio) printing uses a plate with the design cut
of
identification.
into the face, offset printing is produced from a smooth plate in which only the printing areas hold
mk.
UNITED STATES DEPARTMENT OF JUSTICE
OMB NO. 1115-0009
IMMIGRATION AND NATURALIZATION SERVICE
Approval Expires 1/31/84
FEE STAMP
APPLICATION TO FILE PETITION FOR NATURALIZATION
Mail or take to:
IMMIGRATION AND NATURALIZATION SERVICE
ALIEN REGISTRATION
(Show the exact spelling of your name as it appears on your alien registration
(See INSTRUCTIONS BE SURE YOU UNDERSTAND EACH
receipt card. and the number of your card. If you did not register, so stare.)
QUESTION BEFORE YOU ANSWER IT. PLEASE PRINT OR
Name
TYPE)
No.
Section of Law
Date:
(Leave Blank)
(1) My full true and correct name is
(Full true name without abbreviations)
(2) I now live at
(Number and street ,
(City county. state. zip code)
(3) I was born on
in
(Month) (Day) (Year)
(Ciry or town)
( County, province. or state)
(Country)
(4) I request that my name be changed to
(5) Other names I have used are:
(Include maiden name)
Sex:
Male
Female
(6) Was your father or mother ever a United States citizen?
Yes
No
(If "Yes", explain fully)
(7) Can you read and write English?
Yes
No
(8) Can you speak English?
Yes
No
(9) Can you sign your name in English?
Yes
No
(10) My lawful admission for permanent residence was on
under the name of
Month)
(Day)
(Year)
at
(Ciry)
(Stare)
(11) (a) I have resided continuously in the United States since
(Month)
(Day)
(Year)
(b) I have resided continuously in the State of
since
(Month)
(Day)
(Year)
(c) During the last five years I have been physically in the United States for a total of
months
FROM
To.
STREET ADDRESS
CITY AND STATE
(a)
19
PRESENT TIME
(b)
19
19
(c)
19
19
(d)
19
19
(14) (a) Have you been out of the United States since your lawful admission as a permanent resident?
Yes
No
If "Yes" fill in the following information for every absence of less than 6 months. no matter how short it was.
NAME OF SHIP. OR OF AIRLINE. RAILBOAD COMPANY. BL'S
DATE DEPARTED
DATE RETURNED
COMPANY. OR OTHER MEANS USED TO RETURN TO THE
PLACE OR PORT OF ENTRY THROUGH WHICH YOU
UNITED STATES
RETURNED TO THE UNITED STATES
(b) Since your lawful admission, have you been out of the United States for a period of 6 months or longer?
Yes
No
If "No", state "None"; If "Yes", fill in following information for every absence of more than 6 months.
NAME OF SHIP OR OF AIRLINE. RAILBOAD COMPANY. BUS
DATE DEPARTED
DATE RETURNED
COMPANY. OR OTHER MEANS USED TO RETURN TO THE
PLACE OR PORT OF ENTRY THROUGH WHICH YOU
UNITED STATES
RETURNED TO THE UNITED STATES
Form N-400 (Rev. 4-14-81)Y
(OVER)
(1)
(2)
(15) The law provides that you may not be regarded as qualified for naturalization, if you knowingly committed certain offenses or crimes, even
though you may not have been arrested. Have you ever, in or ourside the United States:
(a) knowingly committed any crime for which you have not been arrested?
Yes
No
(b) been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance,
including traffic regulations?
Yes
No
If you answer "Yes" to (a) or (b), give the following information as to each incident.
WHEN
WHERE
(City)
(State)
(Country)
NATURE OF OFFENSE
OUTCOME OF CASE. IF ANY
(a)
(b)
(6)
(d)
(e)
(16) List your present and past membership in or affiliation with every organization, association. fund, foundation, party, club, society or similar
group in the United States or in any other country or place, and your foreign military service. (If none, write "None.")
(a)
19
to 19
(b)
19
to 19
(c)
19
to 19
(d)
19
to 19
(e)
19
to 19
(f)
19
to 19
(g)
19
to 19
(17) (a) Are you now, or have you ever, in the United States or in any other place. been a member of, or in any other way con-
nected or associated with the Communist Party? (If "Yes", attach full explanation)
Yes
No
(b) Have you ever knowingly aided or supported the Communist Party directly, or indirectly through another organization,
group or person? (If "Yes", attach full explanation)
Yes
No
(c) Do you now or have you ever advocated, taught, believed in, or knowingly supported or furthered the interests of
Communism? (If "Yes", attach full explanation)
Yes
No
(18) During the period March 23, 1933 to May 8, 1945. did you serve in, or were you in any affiliated with, either directly or indirectly,
any military unit. paramilitary unit. police unit, self-defense unit. vigilante unit, citizen unit, unit of the Nazi Parry or SS, government
agency or office. extermination camp, concentration camp. prisoner of war camp. prison, labor camp. detention camp or transit camp,
under the control of or affiliated with:
(a) the Nazi Government of Germany
Yes
No
(b) any Government in any area occupied by. allied with, or established with the assistance or cooperation of. the Nazi
Government of Germany?
Yes
No
(19) During the period March 23. 1933 to May 8, 1945, did you ever order. incite, assist, or otherwise participate in the persecution of any
person because of race, religion, national origin, or political opinion?
Yes
No
(20) Have you borne any hereditary title or have you been of any order of nobility in any foreign state?
Yes
No
(21) Have you ever been declared legally incompetent or have you ever been confined as a patient in a mental institution?
Yes
No
(22) Are deportation proceedings pending against you, or have you ever been deported or ordered deported. or have you ever applied
for suspension of deportation?
Yes
No
(23) (a) My last Federal income tax return was filed
year) Do you owe any Federal taxes?
Yes
No
(b) Since becoming a permanent resident of the United States, have you:
-filed an income tax return as a nonresident?
Yes
No
-failed to file an income tax return because you regarded yourself as a nonresident?
Yes
No
(If you answer "Yes" to (a) or (b) explain fully.)
(24) Have you ever claimed in writing, or in any other way, to be a United States citizen?
Yes
No
(25) (a) Have you ever deserted from the military. air, or naval forces of the United States?
Yes
No
(b) If male, have you ever left the United States to avoid being drafted into the Armed Forces of the United States?
Yes
No
(26) The law provides that you may not be regarded as qualified for naturalization if, at any time during the period for which
you are required to prove good moral character, you have been a habirual drunkard. committed adultery: advocated or practiced
polygamy. have been a prostitute or procured anyone for prostitution; have knowingly and for gain helped any alien to enter the
United States illegally: have been an illicit gfafficker in narcotic drugs or marijuana, have received your income mostly from illegal
gambling. or have given false testimony for the purpose of obtaining any benefits under this Act. Have you ever, anywhere.
been such a person or committed any of these acts? (If you answer yes to any of these, attach full explanation.)
Yes
No
(27) Do you believe in the Constitution and form of government of the United States?
Yes
No
(28) Are you willing to take the full oath of allegiance to the United States? (See Instructions)
Yes
No
(29) If the law requires it, are you willing:
(a) to bear arms on behalf of the United States? (If "No", attach full explanation)
Yes
No
(b) to perform noncombatant services in the Armed Forces of the United States? (If "No", artach full explanation)
Yes
No
(c) to perform work of national importance under civilian direction? (If "No", attach full explanation
Yes
No
(30) (6) If male, did you ever register under United States Selective Service laws or draft laws?
Yes
No
If "Yes" give date
Selective Service No
: Local Board No
; Present classification
(b, Did you ever apply for exemption from military service because of alienage, conscientious objections, or other reasons?
Yes
No
If "Yes," explain fully
(3)
(31) If serving or ever served in the Armed Forces of the United States, give branch
:
from
19
to
19
and from
19
to
19
inducted or
enlisted at
: Service No
;
type of discharge
:
;
rank at discharge
Honorable Dishonorable etc
reason for discharge
(shenage conscientious objector. other
Reserve or
National Guard from
19
to
(32) My occupation is
List the names, addresses. and occupations (or types of business of your employers during the last , years. (If none, write "None.")
List present employment FIRST
FROM.
To
EMPLOYER'S NAME
ADDRESS
OCCUPATION OR TYPE
OF BUSINESS
(a)
19
PRESENT TIME
ib,
19
19
'''
19
19
(d)
19
19
(33) Complete this block if you are or have been married.
I am
The first name of m) husband or wife is (was)
(Separated married divorced undered
We were married on
at
He or she was born at
on
He or she entered the United States at (place)
on (date)
for permanent residence and now resides
with me
apart from me at
(Show full address if not living with you
He or she was naturalized on
at
: Certificate No
or became a citizen by
His or her Alien Registration No. is
(34) How many times have you been married?
How many times has your husband or wife been married?
If either of you has
been married more than once. fill in the following information for each previous marriage.
'Che. & One
DATE MARRIED
DATE MARRIAGE ENDED
NAME OF PERSON TO WHOM MARRIED
SEX
PERSON MARRIED HAS
How MARRIAGE
CITIZEN
ALIEN
ENDED
(a)
(b)
(c)
(d)
(35) I have
children: (Complete columns (a) to (h) as to each child If child lives with you, state "with me" in column (h). other.
(Number)
wise give city and State of child's residence
(c) Place Born
(d Date
(e) Date
(1) Port of Entry
(R) Alien
(a) Given Names
(b) Sex
(Country
Born
of Entry
Registration No
(h) Now Living at.
(36) READ INSTRUCTION NO. 6 BEFORE ANSWERING QUESTION (36)
I
want certificates of citizenship for those of my children who are in the U.S. and are under age IN years that are named below.
(Do) (Do Not)
(Enclose $15 for each child for whom you want certificates, otherwise, send no money with this application.)
Write names of children under act 18 years and who are in the US for shom you want certificate
If present spouse is not the parent of the children named above. Rive parent's name, date and place of naturalization, and number of marriages
(4)
Signature of person preparing form, if other than applicant.
SIGNATURE OF APPLICANT
I declare that this document was prepared by me at the request of ap-
plicant and is based on all information of which I have any knowledge.
ADDRESS AT WHICH APPLICANT RECEIVES MAIL
SIGNATURE
ADDRESS:
DATE:
APPLICANT'S TELEPHONE NUMBER
TO APPLICANT: DO NOT FILL IN BLANKS BELOW THIS LINE.
NOTE CAREFULLY-This application must be sworn to before an officer of the Immigration and Naturalization Service at the time you
appear before such officer for examination on this application.
AFFIDAVIT
I do swear that I know the contents of this application comprising
Subscribed and sworn to before me by applicant at the preliminary
pages 1 to 4, inclusive, and the supplemental forms thereto, No (s)
investigation (
) at
subscribed to by me;
that the same are true to the best of my knowledge and belief; that
this
day of
19
corrections numbered ( ) to ( ) were made by me or at my
I certify that before verification the above applicant stated in my presence
request; and that this application was signed by me with my full, true,
that he/she had (heard) read the foregoing application, corrections
and correct name, so HELP ME GOD.
therein and supplemental form(s) and understood the contents thereof.
(Complete and true signature of applicant)
(Naturalization examiner)
(For demonstration of applicant's ability to write English
(1st witness. Occupation)
Nonfiled
(2nd witness. Occupation)
(Date, Reasons)
NOTICE TO APPLICANTS:
Authority for collection of the information requested on this form and those forms mentioned in the instructions
thereto is continued in Sections 328, 329, 332, 334, 335 or 341 of the Immigration and Nationality Act of 1952 (8 U.S.C. 1439,
1440, 1443, 1445, 1446 or 1452). Submission of the information is voluntary inasmuch as the immigration and nationality laws
of the United States do not require an alien to apply for naturalization. If your Social Security number is omitted from a
form, no right, benefit or privilege will be denied for your failure to provide such number. However, as military records are
indexed by such numbers, verification of your military service, if required to establish eligibility for naturalization, may
prove difficult. The principal purposes for soliciting the information are to enable designated officers of the Immigration
and Naturalization Service to determine the admissibility of a petitioner for naturalization and to make appropriate
recommendations to the naturalization courts. All or any part of the information solicited may, as a matter of routine use, be
disclosed to a court exercising naturalization jurisdiction and to other federal, state, local or foreign law enforcement or
regulatory agencies, Department of Defense, including any component thereof, the Selective Service System, the
Department of State, the Department of the Treasury, Central Intelligence Agency, Interpol and individuals and
organizations in the processing of the application or petition for naturalization, or during the course of investigation to elicit
further information required by the Immigration and Naturalization Service to carry out its function. Information solicited
which indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature may be referred, as
routine use, to the appropriate agency, whether federal, state, local or foreign, charged with the responsibility of
investigating, enforcing or prosecuting such violations. Failure to provide any or all of the solicited information may result
in an adverse recommendation to the court as to an alien's eligibility for naturalization and denial by the court of a petition
for naturalization.
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 (per 100)
U.S. GOVERNMENT PRINTING OFFICE 1981 0-331-29
the