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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
(5 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:
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Contact a reference archivist at: [email protected]
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295
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINECEIVED
EASTERN DIVISION
NOV 18 1982
UNITED STATES OF AMERICA,
)
)
H. STUART CUNNINGRAM
Plaintiff,
)
UNITED STATES DISTRICT COURT
)
vs.
)
Civil Action No. 80 C 4302
)
LIUDAS KAIRYS,
)
(Hon. James B. Moran)
)
Defendant.
)
DEFENDANT'S POST-TRIAL REPLY BRIEF
DATED: November 18, 1982
Fred H. Bartlit, Jr.
David E. Springer
Thomas O. Kuhns
Philip S. Beck
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
Counsel for Defendant, LIUDAS KAIRYS
TABLE OF CONTENTS
Page
TABLE OF CONTENTS
i
TABLE OF AUTHORITIES
iii
INTRODUCTION
1
I.
THE GOVERNMENT FAILS TO PUT TO REST
THE SUBSTANTIAL DOUBTS LEFT BY
THE "IDENTIFICATION" EVIDENCE
3
A.
No Survivor Identified Kairys
3
B.
The Government Used Leading
Photospreads and Relies on Doubtful
"Identifications"
6
C. The Soviet Documents Remain Rife with
Doubt
11
D.
The Lietuva Articles Substantiate
Kairys's Testimony
14
II. "TROUBLING DOUBTS" INFECT THE
GOVERNMENT'S "PROOF" THAT KAIRYS
MADE WILLFUL MISREPRESENTATIONS
OR CONCEALMENTS IN HIS IMMIGRATION
AND NATURALIZATION
16
A.
A "Presumption of Official
Regularity" Does Not Overcome
Kairys's Evidence That He Was Not
Questioned About Guard Service in
Applying for a Visa
17
B.
The Government Leaves Unanswered
Kairys's Showing That it Failed to
Prove He Made "Willful Misrepresen-
tations or Concealments of Material
Facts" to Obtain Citizenship
20
III. THE GOVERNMENT HAS NOT JUSTIFIED
RETROACTIVE APPLICATION OF THE
"ILLEGAL PROCUREMENT" GROUNDS FOR
DENATURALIZATION
22
A.
The Government Does Not Overcome the
"First Rule of Statutory Construction"
Barring Retroactivity
23
-i-
Page
B.
Johannessen and Luria No Longer
Govern Whether the Ex Post Facto
Clause Applies
28
IV. LACHES IS AVAILABLE AND APPROPRIATE
TO BAR THIS PROSECUTION
30
CONCLUSION
33
-ii-
TABLE OF AUTHORITIES
Cases
Page
Ashwander V. Tennessee Valley Authority,
297 U.S. 288 (1936)
22
Baumgartner V. United States,
322 U.S. 665 (1944)
2
Blair V. Chicago,
201 U.S. 400 (1906)
24-25
Board of County Commissioners V.
United States,
308 U.S. 343 (1939)
31, 32
Costello V. United States,
365 U.S. 265 (1961)
30-32
Davis V. Alaska,
415 U.S. 308 (1974)
9
Interstate Circuit, Inc. V. United States,
306 U.S. 208 (1939)
21
Israel V. Odom,
521 F.2d 1370 (7th Cir. 1975)
7
Johannessen V. United States,
225 U.S. 227 (1912)
28
Kirschner V. Broadhead,
671 F.2d 1034 (7th Cir. 1982)
12-13
Luria V. United States,
231 U.S. 9 (1913)
28
Manson V. Brathwaite,
432 U.S. 98 (1977)
6
Ng Fung Ho V. White,
259 U.S. 276 (1922)
33
Norris V. United States,
687 F.2d 899 (7th Cir. 1982)
29
Schneiderman V. United States,
320 U.S. 118 (1943)
19, 29, 32
Simmons V. United States,
390 U.S. 377 (1968)
9
-iii-
Cases
Page
Simons V. United States,
333 F. Supp. 855 (S.D.N.Y.),
aff'd, 452 F.2d 1110 (2d Cir. 1971)
25-26,
30-31
Styers V. Smith,
659 F.2d 293 (2d Cir. 1981)
7-8
Trop V. Dulles,
356 U.S. 86 (1958)
28
Union P.R.Co. V. Laramie Stock Yards Co.,
231 U.S. 190 (1913)
23
United States V. Boston,
508 F.2d 1171 (2d Cir. 1974),
cert. denied, 421 U.S. 1001 (1975)
11
United States V. Cueto,
611 F.2d 1056 (5th Cir. 1980)
11
United States V. Dercacz,
530 F.Supp. 1348 (E.D.N.Y. 1982)
19
United States V. Dow,
457 F.2d 246 (7th Cir. 1972)
10
United States V. Fedorenko,
455 F. Supp. 893 (S.D. Fla. 1978),
rev'd, 597 F.2d 946 (5th Cir. 1979),
aff'd, 449 U.S. 490 (1981)
1, 16,
29, 31
United States V. Gambler,
662 F.2d 834 (D.C.Cir. 1981)
10
United States V. Heth,
7 U.S. (3 Cranch) 399 (1806)
23
United States V. Hoar,
26 Fed.Cas. 329 (No. 15,373)
(C.C.D.Mass. 1821)
31, 32
United States V. Jarvis,
560 F.2d 494 (2d Cir. 1977),
cert. denied, 435 U.S. 934 (1978)
8
United States V. Kirkpatrick,
22 U.S. (9 Wheat.) 720 (1824)
31, 32
United States V. Knight,
39 U.S. (14 Pet.) 301 (1840)
31, 32
-iv-
Cases
Page
United States V. Nez,
661 F.2d 1203 (10th Cir. 1981)
10
United States V. Oddo,
314 F.2d 115 (2d Cir. ),
cert. denied, 375 U.S. 833 (1963)
30
United States V. Robertson,
606 F.2d 853 (9th Cir. 1979)
7
United States V. Summerlin,
310 U.S. 414 (1940)
31, 32
United States V. Thompson,
98 U.S. 486 (1879)
31, 32
United States V. Trifa,
662 F.2d 447 (6th Cir. 1981),
cert. denied, 102 S.Ct. 2239
(1982)
31
United States V. Walus,
453 F.Supp. 699 (N.D.I11. 1978),
rev'd, 616 F.2d 283 (7th Cir. 1980)
31
United States V. Weintraub,
613 F.2d 612 (6th Cir. 1979),
cert. denied, 447 U.S. 905 (1980)
31
United States V. Wesevich,
666 F.2d 984 (5th Cir. 1982)
10
United States Fidelity and Guaranty Co.
V. Struthers Wells Co.,
209 U.S. 306 (1908)
24, 27
Winfree V. Northern P.R.Co.
227 U.S. 296 (1913)
24
In re Winship,
397 U.S. 358 (1970)
2
-V-
Page
Statutes And Rules
8 U.S.C. $1451 (a)
24, 27
8 U.S.C. $1451 (i)
25, 26, 27
34 Stat. 601 (1907)
27
54 Stat. 1137 (1940)
27
66 Stat. 163 (1952)
27
75 Stat. 650 (1961)
27
Fed.R.Evid. 301
18, 19
OTHER AUTHORITIES
1A Sutherland, Statutory Construction,
$22.35, 22.36 (4th ed. 1972)
24, 25, 26
3A J. Wigmore, Evidence §940
(Chadborn Rev. 1970)
9
-vi-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
vs.
)
Civil Action No. 80 C 4302
)
LIUDAS KAIRYS,
)
(Hon. James B. Moran)
)
Defendant.
)
DEFENDANT'S POST-TRIAL REPLY BRIEF
The Government neither accepts nor understands its
burden of proof. Throughout its reply brief, it attempts to
shift the burden of proof to Kairys. It argues that he should
lose his citizenship because
[he] makes no affirmative showing that an error
has been made. He merely attacks the sufficiency
of the Government's evidence, claiming that
"troubling doubts" remain.
(Gov't R.Br. 5). But denaturalization defendants need not
affirmatively show that "an error has been made" to save their
citizenship from Government attack. Rather, the Supreme Court
has held that it is the Government that "carries a heavy burden
of proof," and that the Government's evidence must be "clear,
unequivocal and convincing" and "not leave the issue in doubt."
As the Court has stressed: "Any less exacting standard would be
inconsistent with the importance of the right that is at stake
in a denaturalization proceeding." Fedorenko V. United States,
449 U.S. 490, 505-06 (1981).
-1-
The Government must meet this burden of proof as to
every fact necessary to support the offenses charged. Cf.
In re Winship, 397 U.S. 358 (1970). "Troubling doubts" as to
any necessary fact under these theories requires judgment for
the citizen. Baumgartner V. United States, 322 U.S. 665, 670
(1944).
Such doubts infect the Government's case against
Kairys. The lack of any survivor identification creates a
substantial question whether he ever served as a guard at
Treblinka. This doubt is compounded rather than removed by the
Government's "identification" evidence: documents produced by
the Soviet Union, a known forger who would regard Kairys as a
"prime target" for a disinformation effort, and photo "identi-
fications" based on leading photospreads shown under questionable
circumstances. This insufficient proof on identification,
standing alone, requires dismissal of the Complaint.
The Government's proof as to each of the elements of
illegal and fraudulent procurement of citizenship is equally
weak. The evidence shows that Kairys was probably never asked
to disclose guard service, even if he had any. Moreover,
The Government suggests hopefully that "[d]efendant now
appears to have largely abandoned the claim that he is the
victim of a Soviet disinformation campaign
"
(Gov't R.Br. 2). Hardly so. The numerous unanswered
questions about the Soviet-produced documents, coupled
with the testimony of a witness with personal knowledge
that the Soviets would treat Kairys as a "prime target"
for a disinformation campaign, give rise to substantial
doubts concerning the authenticity of the Soviet-produced
documents and the reliability of the witnesses under
Soviet control.
-2-
according to the Government's own naturalization expert, guard
service, as such, was not a bar to citizenship. The Government
needs more than this shaky evidence to take away the citizen-
ship Kairys has held for twenty-five years.
I. THE GOVERNMENT FAILS TO PUT TO REST THE SUBSTANTIAL
DOUBTS LEFT BY THE "IDENTIFICATION" EVIDENCE.
A. No Survivor Identified Kairys.
During trial, this Court repeatedly emphasized that
if the Government had a survivor identification of the defen-
dant, it should produce it. (Tr. 1393). The Government never
did because no such identification exists.
The Government mistakenly claims that one of the two
survivors who testified, Simon Friedman, identified defendant's
photograph. (Gov't R.Br. 16). Friedman, however, could only
state that several pictures in the Government's photospread looked
familiar. He could not even say where he saw those men, much less
that any one of them served as a Treblinka guard. (Tr. 63)
2/
Friedman's actual testimony was:
"Q.
Is it true that when you looked at the
pictures that the Government showed you,
that you were unable to associate any of
the faces that you saw with any act of
atrocity which you had seen at Treblinka?
A.
I stated before that's what I said. I
cannot point out this man did this, this
man. I saw faces, which I am stating
again, I looked at all these pictures and I
saw some faces which they are very familiar
to me. Where I saw them, I don't remember."
(Tr. 63). (All emphasis is added throughout this Brief
unless otherwise indicated).
-3-
Friedman's refusal to identify defendant was by no means an
aberration. To the contrary, the Government offered no identi-
fication testimony by any of the sixteen Treblinka survivors it
interviewed.
This absence of survivor testimony fatally under-
mines the Government's case. As Dr. Niederland emphasized,
concentration camp survivors are unusual in that they can
reliably recall events of forty years ago. (Def. Br. 4-6).
The Government attempts to avoid the impact of Dr. Niederland's
testimony by suggesting that age, health, and subsequent life
experience might somehow affect a survivor's hyperamnesia.
(Gov't R.Br. 17). Dr. Niederland testified, however, that
hyperamnesia is an indelible imprint that does not fade:
&
Now, this indelible character, is this
something that doesn't dim as an ordinary
memory would 30 or 35 years later? Would
it be just as vivid as the day it happened?
A. Yes.
*
*
*
a
To clarify my own mind, doctor, what you
are saying is there is no time limit to
this hyperamnesia?
A. No.
&
Fifty, seventy years?
A. Yes. It is an indelible imprint.
(DX 536, pp. 23-24, 51-52)
3/
Contrary to the Government's assertion (Gov't R.Br. 17
n.20), Dr. Niederland's testimony is in evidence. Both
sides designated passages and the deposition was submitted
to and received by the Court. (Tr. 1029-30).
The Government also suggests that few survivors
suffer from hyperamnesia. Its own expert found otherwise.
Hyperamnesia makes up an integral part of the "survivor syndrome"
which plagues concentration camp victims. Dr. Niederland found
it present in the "great majority" of the nearly 2,000 survivors
he interviewed. (DX 536, pp. 8, 25).
The Government misleadingly asserts that the sixteen
survivors it interviewed included "people" who were not at
Treblinka when it claims Kairys served there. (Gov't R.Br. 16).
The Government identified only one survivor it interviewed,
Beno Benari, as having escaped Treblinka before Kairys allegedly
arrived. The fifteen other Treblinka survivors -- Simon Friedman,
Fred Kort, Mieczyslaw Chodzko, Wanda Cwiklinka, Edward Sypko,
Wanda Kacak, Wolf Szejnberg, Abraham Katz, Roman Weglinski,
Szymon Cegiel, Stefan Smolak, Hirsh Nashevski, Jonie Figowy,
Mendel Rzepka, and Genia Hochberg -- were all there during the
relevant time. The Government talked to all of them, yet
none could identify defendant at trial.
See Government's Response to Defendant's First Request for
Admissions (filed May 1, 1981) ; Government's Response to
Defendant's First Set of Interrogatories (filed March 13,
1981) ; Government's Response to Defendant's Second Set of
Interrogatories (filed June 9, 1981) ; Government's Supple-
mental Answers to Defendant's Interrogatories (filed
September 28, 1981).
-5-
B.
The Government Used Leading Photospreads and
Relies on Doubtful Identifications.
Given the hyperamnesia that is part of the "survivor
syndrome," the silence of the survivors is much more probative
than any identification by former guards, even if such identi-
fications were otherwise untainted. Here, moreover, Kairys has
detailed the specific problems with the Zvezdun, Latakas, and
Amanaviczius photospreads and identifications. (Def. Br.
9-27). In reply, the Government only glosses these problems
and argues that the identifications are permissible in "the
totality of the circumstances." (Gov't R.Br. 18-22). But
each step in the identification process -- the photospread,
the procedure surrounding its display, and the absence of
corroborating in-court identification -- compounded the sub-
stantial risk of misidentification. The resulting "identifi-
cations" are valueless. Manson V. Brathwaite, 432 U.S. 98,
114 (1977).
The Government simply asserts at the outset that the
Personalbogen photograph used in each photospread undoubtedly
depicts defendant. (Gov't R.Br. 18). The Government's own
photographic expert, however, could not say with "any degree of
scientific certainty" that this was the case. (Tr. 386). He
couched his final conclusion only as "more probably than not."
(Tr. 381). This testimony, reminiscent of the civil standard
of proof rather than the more exacting standard applicable
here, undermines each subsequent identification. Substantial
-6-
doubt exists as to whether the photospreads even presented a
picture of defendant.
Moreover, the individual photospreads shown Zvezdun,
Latakas, and Amanaviczius are impermissibly suggestive. Each
display contrasts a "Kairys" garbed in a closed-collar military
tunic with younger men sporting white shirts, coats, and ties.
Contrary to the Government's assertion, this is not an "insig-
nificant" distinction. (Gov't R.Br. 20). The Government gains
no support from its citation of United States V. Robertson, 606
F.2d 853 (9th Cir. 1979), where the defendant's distinctive
hairstyle made no difference:
Because the robbers wore knit caps, completely
hiding their hair, the differences in hairstyle
could not have been a substantial factor in
identifying Robertson as one of them.
(606 F.2d at 857). Here, of course, uncontradicted testimony
corroborates what common experience suggests: SS guards did
not wear white shirts, coats, and ties. 5
The Second Circuit's decision in Styers V. Smith, 659
F.2d 293 (2d Cir. 1981), provides a direct analogy to this
case, where differences in clothing and appearance are crucial.
In Styers, the Court struck down a photographic identification
because "none of the other men pictured in the photographic
display remotely resembled [the suspects], or answered the broad
5/
The Government ignores the Seventh Circuit's instruction
that the risk of misidentification is substantially
increased when defendant is the only individual wearing
distinctive clothing. Israel V. Odom, 521 F.2d 1370, 1374
(7th Cir. 1975). See also Def. Br. 12-15.
-7-
general descriptions given earlier by [two witnesses]. " (659
F.2d at 297-98).
The procedures employed by the Soviets during their
questioning of Zvezdun and Latakas increased the likelihood of
misidentification. (Def. Br. 21-27). Before their "identifi-
cations," both Latakas and Zvezdun were questioned at length
outside the presence of Government or defense counsel. Since
even seemingly innocuous American police comments can fatally
prejudice an identification, what Soviet officials told the
witnesses takes on critical importance. In United States V.
Jarvis, 560 F.2d 494, 500 (2d Cir. 1977), cert. denied, 435
U.S. 934 (1978), the Second Circuit held an FBI agent's sugges-
tions that a witness's identification was correct or incorrect
could constitute reversible error. With the Soviets' docu-
mented hostility toward Kairys, Soviet "suggestions" appear
likely.
The possibility of Soviet "suggestions" becomes a
strong probability in light of the Soviets' refusal to allow
cross-examiation into their dealings with the witnesses. The
Soviet procurator repeatedly "overruled" defense counsel's
inquiries on this topic:
&
Have you had discussions with officials of
the Soviet Government regarding these
proceedings?
A.
[By the Procurator:] Overruled equally.
(GX 80, P. 73). Moreover, after defense counsel elicited that
a KGB agent had delivered a subpoena to the witness, the Soviet
-8-
procurator barred all further questioning on the subject.
(GX 80, P. 75).
The Supreme Court has held that the accused must
rely on free-ranging cross-examination into the "totality
of the circumstances" surrounding a photo identification to
test the admissibility and reliability of a photo identifi-
cation. Simmons V. United States, 390 U.S. 377, 384 (1968).
(See Def. Br. 21-27.) Preclusion of such cross-examination
necessarily draws the "identification" into doubt.
The forbidden subjects during cross-examination
precluded inquiry into not only the possibility of "innocent"
misidentification, but also the possibility of Soviet-
engendered hostility toward Kairys. The Soviet procurator
barred questioning into Zvezdun's motivations. (GX 80, pp.
71-72). The opportunity to attack a witness's motivations,
however, is central to the right of cross-examination. As
the Supreme Court concluded in Davis V. Alaska, 415 U.S. 308,
316-17 (1974)
The partiality of a witness is subject to explor-
ation at trial, and is "always relevant as dis-
crediting the witness and affecting the weight
of his testimony." 3A J. Wigmore, Evidence
$940, p. 775 (Chadborn Rev. 1970). We have
recognized that the exposure of a witness' moti-
vation in testifying is a proper and important
function of the constitutionally protected right
of cross-examination.
-9-
Accord, United States V. Gambler, 662 F.2d 834, 838 (D.C. Cir.
1981); United States V. Nez, 661 F.2d 1203, 1206 (10th Cir.
1981)
Cross-examination into a witness's motivations becomes
especially important when a Government "star witness," such as
Zvezdun, is involved:
This Court has recognized on a number of occa-
sions that when a "star" government witness is
involved, the importance of cross examination is
amplified.
The prohibition on cross-
examination imposed here prevented defendant
from developing his defense. He was not able to
reveal to the jury the fact that Czapla was not
a credible witness. There is no way to evaluate
the harm of the limitations imposed. We cannot
allow a conviction to stand where we are left in
doubt about so important an issue as Czapla's
trustworthiness and credibility.
United States V. Wesevich, 666 F.2d 984, 990 (5th Cir. 1982).
Here, the Soviet Procurator's preclusion of defense questioning
into Zvezdun's prison history and contacts with Soviet officials
hostile to defendant unfairly cut off Kairys's ability to
challenge Zvezdun's trustworthiness and credibility.
Finally, the absence of any corroborating in-court
identification aggravates the doubts the suggestive photospreads
created. An in-court identification becomes vital when, as
6/
The Government cites United States V. Dow, 457 F.2d 246
(7th Cir. 1972), to support its claim that questioning about
Zvezdun's prior prison record was properly barred. But
Dow involved a prosecution attempt to "destroy the character
of the accused, and not merely to impeach him as a witness."
(457 F.2d at 250). Zvezdun, of course, is not accused of
anything in this case, and thus requires no special protec-
tion from impeaching questions that might unduly prejudice
a jury.
-10-
here, the witness's initial identification proves uncertain
(e.g., Zvezdun, Def. Br. 18) or when over four decades have
passed since the events in issue. United States V. Cueto, 611
F.2d 1056, 1064 (5th Cir. 1980).
This point is underscored by one of the cases on
which the Government itself relies, United States V. Boston,
508 F.2d 1171 (2d Cir. 1974), cert. denied, 421 U.S. 1001
(1975) (cited at Gov't R.Br. 22). There, a corroborating
in-court identification answered the defendant's claim that
pre-trial publicity had tainted the earlier photo identifica-
tion:
[T]he in-court identifications of Boston were
made over two years after the newspaper episode
and cannot realistically be deemed tainted by
that exposure.
(508 F.2d at 1178). In contrast, no ex-guard took the witness
stand here to corroborate his questionable out-of-court identi-
fication. Coupled with the absence of any survivor identifica-
tion, in court or out, this failure dooms the Government's
case.
C. The Soviet Documents Remain Rife with Doubt
The Government's reply brief fails to address, let
alone explain, the numerous erasures, interlineations, fiber
disturbances, torn-off picture, and mysterious print characters
which riddle the Soviet documents. (Def. Br. 31-62). Instead,
the Government claims that, since no expert called the Soviet
documents definite "forgeries," this Court must accept them as
trustworthy. This presents another example of the continuing
-11-
Government effort to shift, rather than meet, its burden of
proof.
The Government remains silent on why, how, and by
whom the picture on the "critical" Personalbogen was torn off.
(Def. Br. 33). Rather, it hopes that because no expert posi-
tively concluded that the picture had been removed, the docu-
ment must be reliable. (Gov't R.Br. 10-11). The experts,
however, agree that the photo may have been removed. They
differ only as to the likelihood that that occurred. Purtell
testified that the tearing of the paper behind and around the
Personalbogen photograph was "most likely" from the removal of
the photograph. (Tr. 987). Government expert Richards noticed
"scarring" around the picture. (Tr. 383). Dr. Cantu accepted
the removal of the picture as a possibility. (Tr. 559). The
evidence demonstrates the probability that the Personalbogen
picture was removed.
Nor does the Government deny that the Personalbogen
contains over a dozen erasures. It simply chants its unsub-
stantiated theory that the document was initially filled out in
pencil, erased, and re-typed. The record does not support this
hypothesis. Dr. Scheffler, the Government's expert on German
military procedure, never addressed this issue. Rather, the
Government relies exclusively on Epstein's and Purtell's obser-
vations that such a "typed over" theory was "possible." Of
course, their testimony about a "possibility" does not consti-
tute evidence that the "theory" occurred in practice. Kirschner V.
Broadhead, 671 F.2d 1034, 1039-40 (7th Cir. 1982) ("[A] mere
-12-
possibility is not an affirmative basis for a finding of fact").
Epstein's testimony, in fact, tips the probabilities against
the Government "theory." He found no similar erasures on any
of the other five sets of "German documents" he had examined.
(Tr. 486-47).
Purtell's testimony further undercuts the Government
theory. (Def. Br. 37-38). First, stray pencil remnants appear
on the document which do not correspond with any typing.
Second, entire lines of the Personalbogen were erased without
any re-typing. Third, there are disturbed fibers, possibly
erasures, around the signature line. Finally, a mysterious
print character from an unknown source found its way onto the
back of the Personalbogen. The character does not align with
any existing printing and cannot be explained by any source,
yet another fact which Epstein missed and the Government does
not deign to discuss. These anomalies undermine the Govern-
ment's theory and place the Personalbogen under a cloud of
doubt.
1/
In addition, several inconsistencies appeared on the
Personalbogen photograph. (Def. Br. 33-35). While Pur-
tell could not affirmatively conclude that the picture was
doctored, these peculiarities raise further doubt. This
doubt is not dispelled by examination of copies of yet
other unsubstantiated documents. Purtell explained the
originals, not Government photocopies, are required for
any comparison of the Personalbogen with similar doc-
uments. Such originals were never provided. Defendant's
opening brief catalogued still more problems with the
Soviet documents. (Def. Br. 31-62.)
-13-
D.
The Lietuva Articles Substantiate
Kairys's Testimony.
From 1972-73 Kairys served as editor-in-chief of
Lietuva, a Lithuanian philatelic magazine. During that time
he received, from inside Lithuania, an article entitled "Vil-
nius Post Office 1939 -- Between September 17th and October
28th" by K. Milvidas. The text excoriates the Russian plun-
der of Lithuania in World War II. If it were published under
his name, the article would have endangered Milvidas in Lith-
uania. (Tr. 1208). Consequently, as editor-in-chief, Kairys
signed the article to preserve the true author's anonymity.
(Tr. 1204).
The Government cites another Lietuva article, "The
First Lithuanian Stamps," which was written and signed by
Milvidas, as evidence that Milvidas could write for Lietuva
without risk of Soviet reprisal. (Gov't Br. 81). Conse-
quently, the Government implies that Kairys, not Milvidas,
wrote the first article concerning life in Vilnius in 1939.
A review of the Vilnius article, however, substanti-
ates Kairys's testimony. Milvidas naturally refused to sign
the Vilnius article because of its strong anti-Soviet tone. He
lambasts the 1939 Russian invasion of independent Lithuania and
refers to the advancing Russian phalanx as the Bolshevik "devils"
whose "primary purpose" was to:
8/
GX 109T is a complete translation of this article.
9/
A certified translation of this article appears as
Appendix A.
-14-
plunder the Territory and take into the Soviet
Union whatever possible, and, on returning the
Vilnius Territory to Lithuania, a small country
which could in no way restore the ruined economy,
to peacefully occupy all of Lithuania under the
pretense of aiding the population.
(GX 109T, P. 3). An individual still residing in Lithuania
would hardly want these remarks attributed to him.
In contrast, the signed Milvidas article recounts the
origins of the Lithuanian postal system in the early 1900's.
(See Appendix A). It is a scholarly, analytical piece with no
anti-Soviet rhetoric. Thus, the articles themselves confirm
defendant's testimony that Milvidas could safely sign this
neutral piece, even though he was forced to remove his name
10
from the anti-Bolshevik article.
10/ The Government continues to assert that, on its face,
defendant's identity card (DX 1) is not exculpatory.
(Gov't R.Br. 1 n.1). As shown in defendant's opening
brief, however, the identity card is both authentic and
exculpatory. (Def. Br. 71-81). Initially, both experts
agreed that the signature on the card is Kairys's known
signature. ((DX 123, p. 1) (Epstein); (Tr. 913) (Purtell)).
In addition, unlike the Soviet documents, DX 1 correctly
depicts defendant's hair and eye color as well as his age
and birthplace. This information flatly contradicts the
material on the Soviet-produced Asmen Zinios (GX 41) and
Vidaus Reikalu Ministui (GX 40), two documents with signa-
tures that neither expert could identify.
Finally, the Government's effort to explain away the
contradictions between DX 1 and the Personalbogen ignores
the simple geographics of what defendant must have done in
the first two weeks of June. Defendant's card undeniably
attests that he arrived in Vainutas on May 15, 1942, just
one month before the beginning of his alleged service at
Trawniki. Defendant stayed in Vainutas for "a couple of
weeks," even by the Government's story. Then, according
to the Government, he was captured, placed in Hammerstein,
(Footnote continued on following page)
-15-
II. "TROUBLING DOUBTS" INFECT THE GOVERNMENT'S "PROOF"
THAT KAIRYS MADE WILLFUL MISREPRESENTATIONS OR
CONCEALMENTS IN HIS IMMIGRATION AND NATURALIZATION.
To sustain its claim of "illegal procurement" of
citizenship, the Government needed to prove, by "clear, unequivo-
cal, and convincing evidence that does not leave the issue in
doubt," that Kairys made willful misrepresentations or conceal-
ments of material facts in obtaining his visa. 11/ To prove
that Kairys obtained his citizenship by "willful misrepre-
sentation or concealments of material facts," the Government
needed to prove similar misrepresentations or concealments in
connection with his naturalization. 12/ The Government proved
(Footnote continued from preceding page)
introduced to Zajanckauskas, contracted dysentery, recov-
ered, was selected for guard service, taken to Trawniki,
Poland, and inducted into the Waffen SS -- all within two
weeks. Such geographical hopscotch strains credulity even
in the abstract. The Government, of course, offers no
support that this scenario ever occurred.
11/ This same proof is required to sustain the Government's
alternative theories: (i) that Kairys obtained his citi-
zenship by "willful misrepresentation or concealment of
material facts" when he denied on his naturalization
papers that he had given false testimony to secure bene-
fits (namely, his visa) under the immigration laws; and
(ii) that Kairys illegally procured his citizenship and
procured his citizenship by willful misrepresentation or
concealment because he lacked good moral character by
reason of having given false testimony to secure his visa.
(See Def. Br. 92 n.60).
12/ "Willful misrepresentations or concealments" to obtain a
visa cannot sustain a claim of procurement of citizenship
by "willful misrepresentation or concealment." In the
first case, only a visa was procured, not citizenship.
The Supreme Court has recognized "the distinction between
false statements in a visa application and false state-
ments in an application for citizenship." Fedorenko, 449
U.S. at 509 n.30.
-16-
neither. Rather, the evidence shows that Kairys was never
asked about guard service. Moreover, the fact of guard ser-
vice, standing alone, was not a bar to citizenship. Both its
claims of "illegal procurement" of citizenship and "procurement
by willful misrepresentation or concealment" must, therefore,
be dismissed.
A.
A "Presumption of Official Regularity"
Does Not Overcome Kairys's Evidence
That He Was Not Questioned About
Guard Service in Applying for a Visa.
Kairys's opening brief (Def. Br. 82-91) showed that
the Government did not prove that Kairys made willful misrep-
resentations or concealments of material facts in connection
with his visa application. The Government now seeks refuge
behind a "presumption of official regularity." Such a "presump-
tion,' however, does not overcome Kairys's uncontradicted
testimony that he was not questioned about the challenged
entries on his visa application, GX 5.
The Government states that "the material misrepresen-
tations made by defendant are on his visa application." (Gov't
R.Br. 29). Government witness Rhodes admitted, however, that
the visa application contains no question which required an
applicant to disclose camp-guard service. (Tr. 710). In an
attempt to cover over this obvious hole in its misrepresenta-
tion/concealment theory, the Government claims that Rhodes
testified "that the 'uniform' practice was to obtain the infor-
mation from 'a full interrogation (of the applicant concerning)
all aspects of his eligibility.' (Gov't R.Br. 30). The
-17-
Government then attempts to ground its "presumption of official
regularity" on this questionable testimony.
The Government's selective quotation of Rhodes's
testimony distorts the record. Rhodes failed to show that any
"regular procedure" existed or was followed. Rhodes never
testified, nor could he, 13/ that the procedures other visa
officers followed were "uniform." In fact, the Court would not
allow Rhodes to speculate about what other consular officials
did. (Tr. 703).
Also, any "presumption of official regularity" has no
force since here the evidence refutes it. Rule 301 of the
Federal Rules of Evidence provides:
In all civil actions
a presumption imposes
on the party against whom it is directed the
burden of going forward with evidence to rebut
or meet the presumption, but does not shift to
such party the burden of proof in the sense of
the risk of nonpersuasion, which remains through-
out the trial upon the party on whom it was
originally cast.
Kairys testified that, in his case, the Vice Consul did not
follow what the Government claims were "regular" procedures.
He was asked at most a "few" questions about "himself." (Tr.
1173). He expressly denied (Tr. 1175) that the Vice Consul
questioned him about his "wartime whereabouts," which the
Government states is "[t]he only critical information [on the
13 Kairys demonstrated in his opening brief (Def. Br. 87
n.53) that Rhodes was unqualified to testify about the
practices followed by other consular officials in issuing
visas under the DP Act. The Government's reply makes no
effort to revive Rhodes's testimony.
-18-
visa application] which is incorrect
"
(Gov't Br.
77-78) 14
The Government's retreat to a "presumption of offi-
cial regularity" does not relieve the Government of its obli-
gation to adduce "clear, unequivocal and convincing evidence
that does not leave the issue in doubt." Kairys testified that
"regular procedures" were not followed in his case. This
evidence more than met, it overcame, any "presumption." The
Government simply failed to prove that Kairys misrepresented or
concealed material facts from the Vice Consul.
The Government's belated claim that the entry "farm-
er" under "occupation" represents a "material misrepresenta-
tion" does not supply the missing proof. As an initial matter,
the Government has no answer to the legal rule that, since the
Government said nothing about the "farmer" entry in its Com-
plaint, nothing can turn on this charge now. "[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." Schneiderman V. United States, 320 U.S. 118, 160
(1943).
Moreover, the Government's extract of Rhodes's testi-
mony does not prove that the entry "farmer" under "occupation"
on the visa application (GX 5) constitutes a "material" mis-
representation. The extract reads (Gov't R.Br.32):
14 Thus, this case bears no resemblance to United States V.
Dercacz, 530 F.Supp. 1348 (E.D.N.Y. 1982), on which the
Government relies, which applied the presumption only
because "the defendant [could] not recall the events which
transpired." (530 F.Supp. at 1352).
-19-
Question:
In your opinion, if an applicant
said he was a farmer during the
war and you learned he had actu-
ally been a concentration camp or
labor camp guard for the Nazis,
would he have been eligible for a
visa under the Displaced Persons
Act?
Answer:
No he would not. (Tr. 701).
The Government offered no evidence, however, that Kairys ever
told consular officials that "he was a farmer during the war."
The application itself does not ask for "occupation during the
war." It simply asks for "occupation. 15/ The Government also
ignores Rhodes's admission 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, by "clear, unequi-
vocal, and convincing evidence that does not leave the issue in
doubt" that Kairys willfully made any material misrepresenta-
tions or concealments in applying for his visa. It's claims of
"illegal procurement" of citizenship therefore fail.
B. The Government Leaves Unanswered Kairys's Show-
ing That it Failed to Prove He Made "Willful
Misrepresentations or Concealments of Material
Facts" to Obtain Citizenship.
The Government's reply brief is strangely taciturn on
the subject of the only claim it can make under the statute, that
Kairys procured his citizenship by "willful misrepresentations
15/ The answer "farmer" hardly amounts to a "willful misrepre-
sentation" in any event. Kairys had worked as a farmer
and the Army had given him training and tests which quali-
fied him as a farmer. (Tr. 1175-78; DX 7). Army person-
nel told Kairys he could therefore give his occupation as
"farmer." (Tr. 1177).
-20-
or concealments of material facts. ,16/ The Government limits
itself to a footnote assertion (Gov't R.Br. 32 n.33) that,
according to Judge Petrone, "defendant was required to reveal
his membership in the SS Wachmannschaft and that, based on the
revelation and the fact that he had given false testimony to
secure his visa, he would have been denied citizenship." The
Government overlooks Judge Petrone's concession that no ques-
tion on the naturalization papers required disclosure of con-
centration camp guard service. (Tr. 594). Presumably, the
Government still rests on Judge Petrone's "assumption" that the
preliminary examiner, Irving Schwartz, had asked Kairys whether
he had served in a concentration camp. (Tr. 579, 596).
Judge Petrone's "assumption" about what Irving Schwartz
asked Kairys is not "clear, unequivocal, and convincing evidence
that does not leave the issue in doubt." Irving Schwartz works
in the same building in which this trial was held. The Govern-
ment could have called him to testify as to what questions he
had actually asked Kairys, or any citizenship applicant. The
Government's failure to do so creates the strong inference that
he never asked anyone, including Kairys, about camp guard
service. As in Interstate Circuit, Inc. V. United States, 306
U.S. 208, 226 (1939), "The production of weak evidence when
strong is available can lead only to the conclusion that the
strong would have been adverse."
16/ As Kairys shows in Section III, infra, principles of stat-
utory construction and the ex post facto clause require
dismissal of the Government's four "illegal procurement"
counts.
-21-
The Government similarly avoids any discussion of the
"materiality" of a concealment of service in the SS Wachmannschaft.
As Judge Petrone himself testified, service as a labor camp
guard was not, by itself, a bar to obtaining American citizenship.
He would have recommended a grant of citizenship to a Baltic
emigre whom the Germans had coerced to serve as a guard and who
had committed no atrocities. (Tr. 597-98). Failure to disclose
such service was not, therefore, a "material" concealment.
The Government failed to prove, by "clear, unequivocal,
and convincing evidence that does not leave the issue in doubt,"
that Kairys willfully concealed or misrepresented material
facts in connection with his naturalization. Count I, therefore,
must also fall.
III. THE GOVERNMENT HAS NOT JUSTIFIED RETROACTIVE
APPLICATION OF THE "ILLEGAL PROCUREMENT"
GROUNDS FOR DENATURALIZATION.
The Government offers only a disjointed and confused
array of assertions to avoid the "first rule of statutory con-
struction" barring use of the 1961 addition of "illegal pro-
curement" to strip Kairys of his 1957 citizenship. so too, it
simply rehashes the discredited holdings of Luria and Johan-
nessen to dodge the ex post facto bar to its approach, despite
Kairys's showing that those cases are no longer controlling.
17/
17/ Principles of statutory construction and the ex post facto
clause provide separate, independent grounds barring
retroactive use of "illegal procurement." In fact, courts
look first to principles of statutory construction to
avoid possible constitutional problems with legislation.
See, e.g., Ashwander V. Tennessee Valley Authority, 297
U.S. 288, 347 (1936) (Brandeis, J., concurring).
-22-
The Government's argument does nothing to cure a fatal flaw in
four of its five counts against Kairys.
A.
The Government Does Not Overcome the
"First Rule of Statutory Construction"
Barring Retroactivity.
The Government's reply fails to avoid the "first rule
of statutory construction" precluding retroactive application
of the "illegal procurement" grounds for denaturalization. At
the outset, the Government mischaracterizes Kairys's position
on this issue as a "defense" in an attempt to shift the burden
to him. It states:
Defendant contends (pp. 97-109) that the retro-
spective application to him of the "illegal
procurement" ground of 8 U.S.C. $1451 (a) would
violate both statutory intent and the ex post
facto clause of the Constitution.
(Gov't R.Br. 37). Kairys need not show, however, that retro-
active application of the 1961 amendment to his 1957 citizen-
ship "violate[s]
statutory intent." Rather, under ancient
principles of statutory construction, the Government must show
that, in enacting the 1961 amendment, Congress intended its
provisions to apply retrospectively.
[A] retrospective operation will 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 intention
of the legislature."
Union P.R.Co. V. Laramie Stock Yards Co., 231 U.S. 190, 199
(1913), quoting, United States V. Heth, 7 U.S. (3 Cranch) 399,
413 (1806).
-23-
The fact that "illegal procurement" was added by way
of a 1961 amendment to 8 U.S.C. $1451(a), rather than through a
wholly new statute, does not avail the Government. The same
principles of statutory construction apply to amendatory legis-
lation:
In accordance with the rule applicable to original
acts, it is presumed that provisions added by
the amendment affecting substantive rights are
intended to operate prospectively. Provisions
added by the amendment that affect substantive
rights will not be construed to apply to trans-
actions and events completed prior to its enact-
ment unless the legislature has expressed its
intent to that effect or such intent is clearly
implied by the language of the amendment or by
the circumstances surrounding its enactment.
1A Sutherland, Statutory Construction, $22.36 at 200 (4th ed.
1972) (footnotes omitted). See also Winfree V. Northern P.R.Co.,
227 U.S. 296 (1913) ; United States Fidelity and Guaranty Co. V.
Struthers Wells Co., 209 U.S. 306 (1908).
Indeed, the Government's own cited authorities (Gov't
R.Br. 39) confirm that the rule against retroactive application
applies to amendments as well as original enactments.
Thus, in Blair V. Chicago, 201 U.S. 400 (1906), the
Supreme Court stated:
The rule is correctly stated in Endlich on
Statutes, section 294, as follows: "A statute
which is amended is thereafter, and as to all
acts subsequently done, to be construed as if
the amendment had always been there, and the
amendment itself so thoroughly becomes a part of
the original statute, that it must be construed,
in view of the original statute, as it stands
after the amendments are introduced and the
matters superseded by the amendments eliminated.
-24-
(201 U.S. at 475). Similarly, 1A Sutherland, Statutory Con-
struction $22.35 at 197 (4th ed. 1972), on which the Government
also relies, provides:
The original section as amended and the unal-
tered sections of the act, code, or compilation
of which it is a part, relating to the same
subject matter, are to be read together. The
act or code as amended should be construed
as to future events as if it had been originally
enacted in that form.
In short, while an amendment should be construed as if it were
part of the original enactment, this principle refers, by its
terms, only to prospective applications of the amendment.
The Government also advances the curious contention
that, when Congress enacted Section 340(i) of the Immigration
and Nationality Act (8 U.S.C. $1451(i)) in 1952, it somehow
expressed its intent that the later 1961 amendment should apply
retroactively. (Gov't R.Br. 39). The Government ignores the
basic principle that it is the language of the 1961 amendment
and the intent of the 1961 Congress in enacting it which deter-
mine whether an amendment applies retroactively. 1A Sutherland,
Statutory Construction, $22.36 at 200 (4th ed. 1972) (quoted at
p. 24, supra).
The Government next mistakenly claims that "the clear
language of [§340(i)] shows that retrospective application is
to be given to 'the provisions' of [8 U.S.C.] $1451, without
any limitation." (Gov't R.Br. 39). 18 When Congress enacted
18 The Government erroneously claims that Simons V. United
States, 333 F.Supp. 855, 864 n.13 (S.D.N.Y.), aff'd, 452
F.2d 1110 (2d Cir. 1971), supports its assertion that
"[t]here can be no question
that the intent of
(Footnote continued on following page)
Section 340(i), however, "the provisions" of 8 U.S.C. §1451
said nothing about civil denaturalization for "illegal pro-
curement" of citizenship. To the contrary, the 1952 Congress
intentionally eliminated "illegal procurement" from the grounds
for civil denaturalization. (Def. Br. 99 n.65). The Govern-
ment thus argues, paradoxically, that the 1952 Act eliminating
"illegal procurement" shows a Congressional intent in 1952 that
an amendment nine years later restoring "illegal procurement"
should be given retroactive application. Law and logic will
not be tortured that far.
As a last ditch, the Government claims that "Congress
has always intended its denaturalization statutes to have
retrospective application, without regard to the date of the
challenged naturalization." (Gov't R.Br. 39). It therefore
(Footnote continued from preceding page)
Congress is that [8 U.S.C.] §1451 (a) is to apply to all
naturalization [sic] without any limitation of time."
(Gov't R.Br. 38). In Simons, the Court rejected the
Government's claim that the plaintiff, who wished to have
her own and her late husband's naturalizations cancelled
as obtained by fraud, could not rely on $340(j of the
Immigration and Nationality Act of 1952, 8 U.S.C. $1451(j)
to support jurisdiction of her suit. The Government
argued that since the naturalizations had been obtained in
1946, the plaintiff could not rely on $340(j), which was
enacted in 1952. The Court found this Government claim
"without merit" since "8 U.S.C. $1451 (i) specifically pro-
vides that the entire section ($1451) applies 'to all
certificates of naturalization and citizenship which may
have been issued heretofore by any court or by the Commis-
sioner based upon naturalization granted by any court. "
(333 F. .Supp. at 864 n.13). Congress made no such expres-
sion of intent with regard to retroactive application of
the 1961 illegal procurement amendment.
-26-
asserts that "retrospective construction of $1451(a) is sup-
ported by the history of the predecessor denaturalization
statutes." (Gov't R.Br. 39). The 1961 amendment to $1451 (a)
adding illegal procurement differs sharply, however, from the
history of the predecessor statutes. The Government overlooks
the fact that in the case of every denaturalization statute but
the 1961 amendment, Congress expressly provided for retroactive
application of its denaturalization laws by an explicit statu-
tory provision. Compare Section 15 of the Act of June 29, 1906
(34 Stat. 601 (1907)), Section 338(g) of the Nationality Act of
1940 (54 Stat. 1137, 1160 (1940)), and Section 340(i) of the
Immigration and Nationality Act of 1952 (8 U.S.C. §1451 (i), 66
Stat. 163, 262 (1952)) with Pub. L. 87-301 (75 Stat. 650, 656
(1961) )
Thus, far from supporting the Government's asser-
tion that the earlier statutory provisions support retroactive
application of the 1961 amendment, the history of the denatu-
ralization laws shows that when Congress intended retroactiv-
ity, it explicitly provided for it. It did not do so in the
case of the 1961 amendment adding illegal procurement. The
Supreme Court's observation in Struthers Wells, 209 U.S. at
315, thus applies to bar retroactivity:
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.
-27-
To justify retroactive application of the 1961 amend-
ment, the burden rests on the Government to point to "unequivo-
cal and inflexible terms" of the amendment and "the manifest
intention" of Congress supporting retroactivity. It has done
neither. Counts II through V of the Complaint must, therefore,
be dismissed.
B.
Johannessen and Luria No Longer Govern
Whether the Ex Post Facto Clause Applies.
The Government offers nothing new to rebut Kairys's
showing (Def. Br. 105-09) that retroactive application of the
1961 "illegal procurement" grounds for denaturalization to
Kairys's 1957 citizenship also offends the ex post facto clause
of the Constitution. Rather, the Government simply reiterates
the "civil" label affixed to denaturalization proceedings and
retreats to the dated holdings in Johannessen V. United States,
225 U.S. 227 (1912), and Luria V. United States, 231 U.S. 9
(1913).
The labels "civil" or "criminal" resolve nothing. In
Trop V. Dulles, 356 U.S. 86, 94 (1958) (plurality opinion), a
case finding a Government cancellation of citizenship "penal,"
Chief Justice Warren cautioned:
How simple would be the tasks of constitutional
adjudication and of law generally if specific
problems could be solved by inspection of the
labels pasted on them!
Kairys demonstrated that, under modern Supreme Court precedents,
denaturalization also amounts to a "penalty." (Def. Br. 106-07).
Retroactive application of "illegal procurement" to denaturalize
-28-
Kairys would therefore violate the ex post facto clause. The
Government leaves these points totally unanswered.
Rather than facing up to Kairys's arguments, the
Government simply recites the holdings of Johannessen and
Luria, both decided 70 years ago. Those decisions likened
citizenshp to an industrial patent and called the citizenship
certificate merely "an instrument granting political privi-
leges." Subsequently, however, the Supreme Court expressly
disavowed the patent analogy. Schneiderman, 320 U.S. at 124
n.3. It now calls citizenship a "precious right," Schneiderman,
320 U.S. at 125, and a "priceless treasure." Fedorenko, 449
U.S. at 507.
In light of the Supreme Court's repudiation of the
Luria-Johannessen view of citizenship, this Court need not
slavishly follow those decisions. As the Seventh Circuit
recently stated:
Constitutional law is very largely a prediction
of how the Supreme Court will decide particular
issues when presented to it for decision.
Ordinarily the best predictor of how the Court
will decide an issue in a future case is how it
decided the same issue in a past case, and when
that is so the law is what is stated in the
earlier decision. But sometimes later deci-
sions, though not explicitly overruling or even
mentioning an earlier decision, indicate that
the Court very probably will not decide the
issue the same way the next time. In such a
case, to continue to follow the earlier case
blindly until it is formally overruled is to
apply the dead, not the living, law.
Norris V. United States, 687 F.2d 899, 904 (7th Cir. 1982).
Today's "living law, not the "dead law" on which the
Government relies, means that the ex post facto clause bars
-29-
retroactive use of "illegal procurement" to strip Kairys of the
"priceless treasure" of citizenship.
IV. LACHES IS AVAILABLE AND APPROPRIATE
TO BAR THIS PROSECUTION.
Faced with its own concessions that "these cases
should have been brought thirty years ago" and that its Army
"erroneously destroyed" documents vital to Kairys's defense,
the Government tries to slip away from the necessary conclusion
that laches bars this prosecution. The Government claims that
"[i]t is well settled that laches is not a defense in a denatur-
alization proceeding" (Gov't R.Br. 43), citing Costello V.
United States, 365 U.S. 265 (1961), as its only supporting
authority. If Costello makes the issue so "well-settled," why
did the Supreme Court consider it necessary -- despite lower-
court opinions ruling out the defense altogether -- to go on to
say that Costello had not satisfied the elements of laches?
(365 U.S. at 282-84). The Government never answers this ques-
tion. 19
Moreover, Costello itself suggests that the rationale
for the rule precluding use of laches against the Government
does not apply here:
19 Kairys stands by his statement in his opening brief that
"[t]he only subsequent appellate 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) (Def. Br. 114). The Gov-
ernment's cases (Gov't R.Br. 44) do not show otherwise.
Simons V. United States, 452 F.2d 1110 (2d Cir. 1971), was
not a denaturalization case. Rather, the citizen there
(Footnote continued on following page)
-30-
The reason underlying the principle, said
Mr. Justice Story, is "to be found in the great
public policy of preserving the public rights,
revenues, and property from injury and loss, by
the negligence of public officers." United
States V. Hoar, 26 Fed.Cas. 329, 330 (No.
15,373) [(C.C.D.Mass. 1821)]. This Court has
consistently adhered to this principle. See,
for example, United States V. Kirkpatrick,
[22 U.S.] 9 Wheat. 720, 735-737 (1824)
United States V. Knight, [39 U.S.] 14 Pet. 301,
315 (1840) see also United States V. Summer-
lin, 310 U.S. 414, 416 (1940) Board of County
Commissioners v.United States, 308 U.S. 343, 351
[(1939) United States V. Thompson, 98 U.S. 486,
489 [ (1879)
(Footnote continued from preceding page)
sued to have her own and her late husband's citizenship
cancelled as fraudulently procured. The District Court
held (and the Court of Appeals affirmed) that laches
barred her suit. The Court of Appeals simply observed
that Costello, "holding laches not to be a defense to a
denaturalization proceeding by the Government, does not
assist her." (452 F.2d at 1117). Similarly, United
States V. Weintraub, 613 F.2d 612 (6th Cir. 1979), cert.
denied, 447 U.S. 905 (1980), was a Government tax case,
not a denaturalization proceeding. In United States V.
Trifa, 662 F.2d 447 (6th Cir. 1981), cert. denied, 102
S.Ct. 2239 (1982), the Court of Appeals affirmed the
denaturalization solely on the basis of the consent decree
Bishop Trifa had signed agreeing to his denaturalization.
Laches played no part in the Sixth Circuit's decision. In
United States V. Fedorenko, 455 F.Supp. 893, 919 (S.D.Fla.
1978), rev'd, 597 F.2d 946 (5th Cir. 1979), aff'd, 449
U.S. 490 (1981), the District Court merely observed that
"in Costello the Court found no reason to apply the
equitable principles of laches in favor of defendant."
Fedorenko had not even asserted laches as a defense.
Similarly, in United States V. Walus, 453 F. Supp. 699,
716 (N.D.Ill. 1978), rev'd, 616 F.2d 283 (7th Cir. 1980),
Judge Hoffman did not hold, as the Government represents,
that there was "'nothing to indicate' that there was any
merit to the defense. (Gov't R.Br. 44). Rather,
he only ruled that since the Government had sued only six
years after Walus's naturalization and there was "nothing
to indicate a lack of diligence by the United States,' " the
laches defense "is not available in this denaturalization
proceeding." The unreported Koziy opinion is not presently
available to Kairys.
-31-
(365 U.S. at 281). The cases the Supreme Court cited each
involved a Government effort to recover property, such as a
20/
surety on a bond or taxes.
None involved a Government
attack on an individual's liberty, as in the case here. Since
the rationale for the rule against use of laches against the
Government has no application here, and since "the facts and
the law should be construed as far as is reasonably possible in
favor of the citizen,' " Schneiderman, 320 U.S. at 122, laches is
an available defense.
21,
The Government next argues that Kairys cannot assert
laches because "the primary cause for any delay in bringing
this proceeding is his own fraudulent concealment and misrepre-
sentation about his identity and background." (Gov't R.Br. 45,
47). The Government's argument assumes what it must prove.
Had the Government not delayed thirty years in bringing this
suit, now deceased witnesses would have testified for Kairys.
And had the Government not "erroneously destroyed" them over
the years, now unavailable documents would have strengthened
his defense. Having deprived the defendant of this key evidence,
20 United States V. Hoar, 26 Fed.Cas. 329 (action in assump-
sit for money had and received); United States V. Kirk-
patrick, 22 U.S. (9 Wheat.) 720 (action in debt on surety
bond) ; United States V. Knight, 39 U.S. (14 Pet. ) 301
(action in debt) ; United States V. Summerlin, 310 U.S. 414
(action on claim against an estate) ; Board of County Com-
missioners V. United States, 308 U.S. 343 (action to
recover taxes paid in violation of federal Indian rights);
United States V. Thompson, 98 U.S. 486 (action in debt on
surety bond).
21/ The Costello court probably declined to rule out laches as
a defense in denaturalization cases on principle because
such cases do not involve "preserving public rights,
revenues, and property."
-32-
the Government cannot claim the evidence would have made no
difference.
Nor can the Government escape its lack of diligence.
The Government Accounting Office investigated and found just
such a lack of diligence. The Immigration and Naturalization
Service's "investigations of most cases before 1973 were defi-
cient or perfunctory. In some, no investigation was conducted."
(DX 389, p. 162).
The Government's fault in long delay prejudiced
Kairys. Witnesses for his cause have died. The Government
erroneously destroyed vital documents. If this case remains in
any sense "equitable," as the Government claims, then the
equitable defense of laches bars this prosecution.
Conclusion
American citizenship is the right that "makes life
worth living." Ng Fung Ho V. White, 259 U.S. 276, 284 (1922).
Before it is stripped away, the Government must make a powerful
showing under the most exacting standards of proof. The Govern-
ment has made no such showing here. Troubling doubts infect
the Government's evidence on the threshold question of identity,
as well as the questions of illegal and fraudulent procurement.
The Government's approach is to sweep these doubts
aside, apparently because of the gravity of the offense with
which defendant is charged. The Government has it backwards.
Our system of justice is grounded on the principle that the
more serious the charge, the more persuasive must be the proof.
-33-
This principle underlies the different standards in civil and
criminal cases. It is at the core of the special standard
fashioned by the Supreme Court for denaturalization cases --
proof that is "clear, unequivocal and convincing" and does "not
leave the issue in doubt."
The issue is in doubt here. Consequently, the Com-
plaint should be dismissed, and Liudas Kairys and his family
should be permitted to live out the rest of their lives in
their adopted country.
DATED: November 18, 1982
Respectfully submitted,
Fred H. Bartlit, Jr. (D45)
Fred H. Bartlit, Jr.
David
Дамаћ E. Springer Springhn
Thomas
Thomas O. Kuhns
Philip Phly
S. Beck S Beck
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
Counsel for Defendant, LIUDAS KAIRYS
-34-
APPENDIX
The First Lithuanian Stamps
K. Milvydas
During the First World War, in September of 1915, the Post Offices of the
Lithuanian Territory were taken over by German military-occupational administration
"Ober Ost", which published special stamps for the occupied Eastern czarist Russian
countries, marking some of them - published edition of 1905-1915 - with the stamp
print "Postgebiet Ob-Ost". These redone stamps were valid in the Lithuanian
Territory from January 1916 intil the end of 1918.
By the end of 1918 the collapsing German army, pursued and attacked by the
Red army, started to flee. On November 16, 1918, the first efforts were started
in Vilnius to establish the Lithuanian Postal Service. But the Germans did every-
thing in their power to prevent it.
It was essential for the Lithuanian Postal Service to provide their offices
with stamps. Therefore in the beginning it was suggested that German stamps of
the smallest nominal value be purchased and a special imprint be made over them.
But again the German Postal Service refused flatly to sell them.
Then it was decided to print the stamps the simplest way, without any design,
just with a plain overprint. For that purpose, there was contacted one of the
oldest Lithuanian publishers - Martynas Kukta, who has his printing shop in
Vilnius.
On December 25, 1918, Kukta was visited by A. Sruoga, the Assistant Postmaster
of the Postal Service and was asked to print stamps in a rush - by the next
morning.
Right there the overprint was discussed and it was agreed that the stamps
should be of two nominal prices (10 and 15 sk.) and the quantity would be as
much as it was possible to print overnight, but in no case less that 10,000.
At Kukta's printing shop there were published books, newspapers and other
printed matter, but it was small, quite primitive and poor - having very poor
printing equipment. Therefore the frames of the stamps were made from simple
circles (from the letter "o"). Inside the frames was put the text of 4 lines,
"Lithuanian Post 10 (or 15) skatiku".
While printing the word "Skatiky" there was difficulty in finding the
Lithuanian letter "u". Because of this, that letter was printed three different
ways ("u", overturned "h" and overturned "n"). This shortage of letters has
made for the stamp collectors the socalled three types of stamps.
Altogether there were arranged 20 stamp printing matrixes (size 1.8 X 2.25cm)
which were typeset into 4 lines of 5 matrixes each. That way 20 stamps made one
printed sheet. It was used for printing of both prices of the stamp - only the
numerals were then changed.
Printing was made with a flat printing press. The stamps were printed on
large sheets of plain book-newspaper paper, of a yellowish-gray color, which later
were perforated (little teeth like rows of 11½ size) and cut into sheets of 20
stamps, 12.2 X 11.5 cm size. The cut sheets did not have perforation in the
corners, therefore the corner stamps of each sheet were perforated only from
two sides, and the side stamps from three sides, and only the 6 middle stamps
of each sheet were perforated from all four sides. The stamps were not covered
with glue.
The first Lithuanian stamps were published December 25, 1918 (during the night
into the 26th day), and December 26 early in the morning Kukta personally took
them to the Postal Service of Lithuania, where they were recognized as suitable
for use. By counting them it was realized that there were not quite 10,000 of
them, therefore right away additional stamps were published so that for each price
there would be at least 5,000 stamps.
Translated by COSMOPOLITAN TRANSLATION BUREAU, 116 So. Michigan Are Chicago, 60603, RA 6-2610. Date
19
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Translation certified by
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- 2 -
On December 27 these stamps were already sold in the post office of Vilnius,
and on December 28 in Kaunas and in some other cities.
In a couple of days the stamps were sold out completely and there was a strong
need again to go to Kukta with a request to publish a second edition of stamps.
For that purpose there was used a typographical selection of the first edition.
Only the numerals of the price were changed in that edition - they were printed
much thicker.
The order read to publish the stamps of different prices: 10, 15, 20, 40 and
50 "Skatiku", 20,000 of each. But their circulation was different. The stamps
of the second edition were first presented to the public on December 31, 1918.
In spite of very rush work and lack of control the printing was quite neat
and orderly. Because of the printing and perforating mistakes it could be mentioned
only (see the price list): 1) Horizontal couple of stamps, Nos. 1, 4, 6, perforated
through the middle. Of the vertical perforation some lines are missing. 2) Stamps
of the numbers 6, 7, 8 have double printing. Also there are some stamps with
pushed away (moved) perforation, with some of the sheets of the stamps some
perforation of corners and overturned printing on the other side.
The first very primitive and humble Lithuanian stamps reflected in all fullness
how poor the country was, swept over and destroyed by the war and German occupation.
The simplicity and primitiveness of the stamps created another problem - the
forgery of them.
At first glance, it would seem that to produce such forged stamps is really
not a complicated matter, yet in reality it was found that to notice the difference
between the false stamps and the reals ones was very easy.
To find and choose such a worn out publisher's script and even such a paper
of very poor quality as was used in 1918 seemed later on almost impossible - not
to mention that every stamp from the sheet of 20, because of the worn out printing
script, has identifying marks from which could even be judged their place in the
sheet. The script of all the forged stamps does not have exceptionally worn out
identifying marks, their paper is much whiter and it is immediately noticeable by
comparing them with the original stamps. Mostly there are forgeries of the first
type, perforated from all four sides.
Now the first Lithuanian stamps happen to be rarities; most rare are Nos.
1 - 4. In spite of this, that circulation of the stamps of numbers 3 - 4 is much
bigger than circulation of numbers 1 - 2, they are found quite a bit less than the
last ones. This can be explained by the fact that stamp collectors did not pay
much attention to them in the beginning and they did not see any difference between
them and Nos. 1 - 2. Therefor the largest part was used for ordinary correspondence
and they did not find their way into the hands of stamp collectors. At that time
the collecting of used stamps was much more popular. Even the unused stamps
were specially stamped for collections. Because of that, unused first Lithuanian
stamps can be found very seldom now.
Lithuanian
10
Skatiku
Post
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Translation certified by
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The Price List of the Fir Lithuanian Stamps
CIRCULATIONS
Three different types, identified
Full
by the letter "u"
Edition
Stamp No. Stamp Price
Circulation
Type I
Type II
Type III
"y"
"4"
"y"
7 stamps
12 stamps
1 stamp
on the
on the
on the
sheet
sheet
sheet
First
December 27,
1918
1
10 sk.
5,000
1750
3000
250
2
15 sk.
5,000
1750
3000
250
Second
December 31,
1918
3
10 sk.
15,960
5586
9576
798
4
15 sk.
16,080
5628
9648
804
5
20 sk.
23,000
8050
13800
1150
6
30 sk.
20,000
7000
12000
1000
7
40 sk.
13,780
4823
8268
689
8
50 sk.
17,700
6195
10620
885
This article was printed in the Russian language
in the Moscow monthly magazine "Filatelija SSSR",
No. 5, 1973.
J. Dainauskas translated it into the Lithuanian
language.
NOTICE of our "Biuletenio" Editor.
Once in a while there appear articles in the Soviet papers about Lithuanian
stamp collecting. The first two editions of Lithuania, called Vilnius, and their
history are still not completely explored.
K. Milrydas did not mention that the Lithuanian "whities" stamps mostly were
sold out to the German soldies of the occupational army. That is why they are not
such a rarity in the West now as they are in Lithuania. Besides, collections of
Lithuanian stamps, among other things, were destroyed by the Second World War and
with that war were connected the Soviet Communist Russian and German occupations,
destroying of people, deportations, etc. Only sometime in the future might there be
an opportunity and then it will become clear what has been the fate of the
Lithuanian stamp collections.
BEGLAUBIGUNG DER UEBERSETZUNG
LEGALISATION DE LA TRADUCTION
LEGALIZACION DE LA TRADUCCION
CERTIFICATION OF TRANSLATION
Chicago, Illinois Sept. 10 19 82
Ss.
This Is to certify that the foregoing translation from Lithuanian
into
English
was mode under the personal supervision of the undersigned by . qualified
translator conversant with both these langedges. and that to the best of my knowledge and understanding. it Is . true and
COUNTY OF COOK
Signed: complete rendition of the corresponding original document.
Title
Administrative Assistant
IL
Subscribed and sworn to before me, 8 Notary Public in and for
Cook County illinois, on this 10th day of September 19 82
Haves Chara
COSMOPOLITAN TRANSLATION BUREAU
TTA
116 So. Michigan Are. Chicago 3
My commission expires Oct. 4, 1982
RA 6-2610