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JGR/Nazi Prosecutions (2 of 9)
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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
(2 of 9)
Box: 33
To see more digitized collections visit:
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To see all Ronald Reagan Presidential Library inventories visit:
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1281
1
IN THE UNITED STATES DISTRICT COURT
2
NORTHERN DISTRICT OF ILLINOIS
3
EASTERN DIVISION
4
UNITED STATES OF AMERICA,
)
5
Plaintiff, )
6
VS.
) No. 80 C 4302,
7
LIUDA KAIRYS,
)
8
Defendant. )
9
Before the Honorable JAMES B. MORAN,
10
Friday, June 25, 1982, at the hour of 10:50 a.m.
11
The trial resumed pursuant to adjournment.
1)
12
APPEARANCES:
13
14
MR. NEAL M. SHER
15
MR. NORMAN A. MOSCOWITZ
16
MS. CLARICE FELDMAN
17
MR. ELI M. ROSENBAUM
18
MR. MICHAEL WOLF
19
appeared on behalf of Plaintiff;
20
21
MR. FRED H. BARTLIT, JR.
22
MR. DAVID E. SPRINGER
23
MR. THOMAS O. KUHNS
24
appeared on behalf of Defendant.
25
-
-
-
1318
1
THE COURT: Since we are in all likelihood,
2
with one exception, done with live testimony and down to
3
questions on exhibits, there are a couple of comments I really
4
would like to make; one major comment, rather.
5
I am aware that this case is related to events in
6
central Europe going back 40 years ago almost and the evidence
7
concerning the case has been widely scattered in western
8
Europe, in central Europe, in the United States, and I am
9
certainly aware that, as I think we all do, that citizenship
10
is a basic status from which a great many other rights derive,
11
certainly from the Government's point of view, and, therefore,
12
its acquisition should not be abused, and from the defense,
13
its removal of status is one which should be done only in the
14
most clear circumstances, and I think the Supreme Court has
15
recognized both of those points of view.
16
I certainly recognize the Government's resources to
17
prosecute this kind of an action are very considerable and
18
that, as I think this trial has demonstrated, that it has been
19
very ably represented by highly competent counsel. I also
20
know that there is just no legal aid or legal assistance that
21
can be provided from any governmental source for defense of
22
cases of this nature other than the Government picking up a
23
certain amount of the travel expenses of depositions and such
24
abroad, and certainly in these circumstances to remit a
25
defendant to a local neighborhood lawyer would be a travesty
1319
1
of justice.
2
Judge John powers Crowley, who has now left the
3
bench, when this case was initiated, called upon Mr. Bartlit
4
and his firm, Kirkland & Ellis, to undertake the defense and
5
he of course, has associated himself with Mr. Springer, Mr.
6
Kuhns, Mr. Beck and others.
7
I certainly recognize that in a case of this
8
nature, there are emotional overtones which may perhaps cause
9
some hesitation in undertaking that kind of representation.
10
Mr. Bartlit and his colleagues did accept that representation
11
at the request of the Court. It has involved an immense
12
amount of time and a great deal of expense which the firm has
13
absolutely no hope of being compensated for. It has been a
14
tenacious and a thorough defense, as it should have been, and
15
as Judge of this Court I would just like to express my
16
personal gratitude to Mr. Bartlit and to his colleagues and to
17
his firm for stepping in and acting in a most commendable
18
fashion and in a most professional manner.
19
MR. BARTLIT: I appreciate that more than Your
20
Honor can understand. Thank you.
21
THE COURT: Shall we break for lunch?
22
MR. SHER: Yes. Two o'clock?
23
THE COURT: Two o'clock.
24
MR. SHER: Fine.
25
THE COURT: See you then.
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,
)
Honorable James B. Moran
)
Defendant.
)
DEFENDANT'S POST-TRIAL BRIEF
DATED: October 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
iv
I.
THE IDENTIFICATION EVIDENCE
RAISES NUMEROUS SUBSTANTIAL
DOUBTS
4
A.
The Claimed Eyewitness Testimony --
and Lack Thereof -- Raises Doubts
4
1.
The survivor testimony
4
2.
The documentary evidence iden-
tifies a different "Kairys";
it does not identify defendant
6
3.
Amanaviczius, Zvezdun, and
Latakas did not identify a
photo of defendant
9
a.
Each of the identification
photospreads used is
impermissibly suggestive
12
b.
Other evidence casts
further doubt on the
photo identifications
15
C.
Soviet bar on cross-
examination precludes
the Zvezdun photo
identification
21
4.
Prior consistent statements
of Government's witnesses
are not admissible
27
a.
Testimony of individuals
who testified in 1982
and 1969-71
27
b.
Testimony of individuals
who did not testify in
1982
29
B.
The Soviet Union's Documents
are not Admissible
31
Page
1.
The documents delivered
to the Department of
Justice contain numerous
unexplainable erasures,
inconsistencies, and
interlineations
31
a.
Removal of the photo-
graph on GX 32
32
b.
Inconsistencies in
the GX 32 picture
33
C.
Distored printing
35
d.
Erasures
36
e.
Erasures of the
signature line
38
f.
Age of paper
39
g.
Thumbprint on
Personalbogen.
40
h.
Promotion order
42
i.
Signature analysis
44
j.
Epstein's conclusions
of authenticity
55
k.
Purtell's conclusions
59
2.
The Federal Rules of Evidence
bar admission of Soviet
documents
62
a.
The Soviet papers are
not "ancient documents"
under Federal Rule of
Evidence 901 (b) (8)
62
b.
Even if authentic,
the Soviet documents are
inadmissible hearsay
68
C.
Defendant's Identity Card (DX 1)
Substantiates his Whereabouts
During World War II, is Authentic
and Reliable
71
Page
II.
THE GOVERNMENT FAILED TO PROVE, AS
REQUIRED UNDER COUNT I, THAT KAIRYS
MISREPRESENTED OR CONCEALED MATERIAL
FACTS DURING THE IMMIGRATION AND
NATURALIZATION PROCESS.
82
A.
The Government Offered no
Evidence Regarding Kairys's
Dealings with the International
Refugee Organization
82
B.
Kairys Never Made or Gave
any Statements to the Displaced
Persons Commission
84
C.
Kairys Made no Willful Misrep-
resentations or Concealments
of Material Facts to the Vice
Consul
85
D.
The Government Failed to Prove
Willful Misrepresentations or
Concealments in Connection with
Kairys's Application for
Citizenship
92
III.
THE GOVERNMENT MAY NOT DENATURALIZE
KAIRYS FOR "ILLEGAL PROCUREMENT"
OF CITIZENSHIP
97
A.
The "First Rule" of
Statutory Construction Bars
Retroactive use of "Illegal
Procurement" as Grounds to
Strip Kairys of his Citizenship
98
B.
Retroactive Application of the
1961 Addition of "Illegal
Procurement" to Kairys's 1957
Citizenship Violates the
Ex Post Facto Clause of the
Constitution
105
C.
The Government Failed to Prove
that Kairys "Illegally Procured"
his Citizenship within the
Meaning of Fedorenko
109
IV.
LACHES BAR THIS PROSECUTION
113
A.
The Doctrine of Laches Applies
Against the Government in
this Case
114
Page
B.
The Government's Admitted Fault
in Long Delay Prejudiced
Kairys
115
CONCLUSION
118
TABLE OF AUTHORITIES
Page
Cases
Alford V. United States,
282 U.S. 687 (1931)
24, 25
Apo V. Dillingham Investment Corporation,
440 P.2d 965, 50 Hw. 369 (s.ct. Hw. 1968)
65
Baumgartner V. United States,
322 U.S. 665 (1944)
1, 62, 96,
119
Brookhart V. Janis,
384 U.S. 1 (1966)
25
Calder V. Bull,
3 U.S. (3 Dall.) 386 (1798)
105
California V. Green,
399 U.S. 149 (1970)
25
Chaunt V. United States,
364 U.S. 350 (1960)
1, 88, 95
107
Connecticut Light & Power Co. V.
Federal Power Commission,
557 F.2d 349 (2d Cir. 1977)
69
Costello V. United States,
365 U.S. 265 (1961)
114, 115
Cufari V. United States,
217 F.2d 404 (1st Cir. 1954)
87, 89, 96
Cummings V. Missouri,
71 U.S. (4 Wall.) 277 (1866)
106
Davis V. Alaska,
415 U.S. 308 (1974)
24, 25
E.C. Ernst, Inc. V. Koppers Co.,
626 F.2d 324 (3d Cir. 1980)
71
Fedorenko V. United States,
449 U.S. 490 (1981)
455 F.Supp. 843 (S.D.Fla. 1978),
Rev'd, 597 F.2d 946 (5th Cir. 1979),
Aff'd, 499 U.S. 490 (1981)
1, 20, 82,
87, 93, 108,
110, 111, 11
Page
Fletcher V. Peck,
10 U.S. (6 Cranch) 87 (1810)
106
Foster V. California,
394 U.S. 440 (1969)
22
Green V. McElroy,
360 U.S. 474 (1959)
24
Greene V. United States,
376 U.S. 149 (1964)
98, 103
Haberstroh V. Montanye,
362 F.Supp. 838 (W.D.N.Y. 1973),
aff'd, 493 F.2d 983 (2d Cir. 1974)
15, 27
Hammond V. Hopkins,
143 U.S. 224 (1892)
117
Hudson V. Alabama,
493 F.2d 171 (5th Cir. 1974)
118
Interstate Circuit, Inc. V. United States,
306 U.S. 208 (1939)
95
Israel V. Odom,
521 F.2d 1370 (7th Cir. 1975)
12
Johannessen V. United States,
225 U.S. 227 (1912)
107, 108
In re Johns Manville/Asbestos Cases,
93 F.R.D. 853 (N.D.Ill. 1982)
30
Kennedy V. Mendoza-Martinez,
372 U.S. 144 (1963)
107
Kimbrough V. Cox,
444 F.2d 8 (4th Cir. 1971)
17
Klapprott V. United States,
335 U.S. 601 (1949)
2, 107
Kovac V. Immigration & Naturalization Service,
407 F.2d 102 (9th Cir. 1969)
113
La Madrid-Peraza V. Immigration &
Naturalization Service,
492 F.2d 1297 (9th Cir. 1974)
88, 97
Lloyd V. American Export Lines, Inc.,
580 F.2d 1179 (3d Cir.), cert. denied,
439 U.S. 969 (1978)
30
Page
Manson V. Brathwaite
432 U.S. 98 (1977)
15, 17
23, 27
McGuire V. Blount,
199 U.S. 142 (1905)
64
Moghanian V. United States Department of Justice,
577 F.2d 141 (9th Cir. 1978)
113
Morgan V. United States,
304 U.S. 1 (1938)
24
Morrissey V. Brewer,
408 U.S. 471 (1972)
109
Neil V. Biggers,
409 U.S. 188 (1972)
16, 17
Nowak V. United States,
356 U.S. 660 (1958)
96, 109
Ogden V. Saunders,
25 U.S. (12 Wheat.) 213 (1827)
106
Passman V. Blackburn,
652 F.2d 559 (5th Cir. 1981), cert. denied,
102 S.Ct. 1722 (1982)
12, 17,
27
Peterson V. Hopson,
306 Mass. 597, 29 N.E.2d 140 (1940)
112
Rio Bruno Oil Co. V. Statley Oil Co.,
138 Tex. 198, 158 S.W.2d 293 (1942)
66
Rudd V. Florida,
343 F.Supp. 212 (M.D.Fla. 1972)
22
Sage V. Dayton Coal & Iron Co.,
148 Tenn. 1, 251 S.W. 780 (1922)
66
Satterlee V. Matthewson,
27 U.S. (2 Pet.) 380 (1829)
105
Schniderman V. United States,
320 U.S. 118 (1943)
1, 3, 10,
88, 101, 108,
109, 115
Simmons V. United States,
390 U.S. 377 (1968)
14, 20
Page
Society for the Propagation of the Gospel V.
Wheeler,
22 Fed. Cas. 756 (C.C.D.N.H. 1814)
(No. 13,156)
102
South East Chicago Commission V. Department
of Housing & Urban Development,
488 F.2d 1119 (7th Cir. 1973)
101, 103
Styers V. Smith,
659 F.2d 293 (2d Cir. 1981)
14
Union P.R.R. V. Laramie Stock Yard Co.,
231 U.S. 190 (1913)
100
Union P.R.R. V. Snow,
231 U.S. 204 (1913)
103
United States V. Baykowski,
583 F.2d 1046 (8th Cir. 1978)
17
United States V. Bowie,
515 F.2d 3 (7th Cir. 1975)
12, 27
United States ex rel. John V. Casscles,
358 F.Supp. 517 (E.D.N.Y.), rev'd
on other grounds, 489 F.2d 20 (2d
Cir. 1973), cert. denied, 416 U.S.
959 (1974)
14, 23, 27
United States V. Cueto,
611 F.2d 1056 (2d Cir. 1980)
18, 19
United States V. Demjanjuk,
518 F.Supp. 1362 (N.D.Ohio 1981),
Aff'd, 680 F.2d 32 (6th Cir. 1982)
6
United States V. Gidley,
527 F.2d 1345 (5th Cir.),
cert. denied, 429 U.S. 841 (1976)
14
United States V. Guevara,
598 F.2d 1094 (7th Cir. 1979)
29
United States V. Hall,
26 Fed. Cas. 84 (C.C.D.Pa.1809)
(No. 15,285)
102
United States V. Keller,
512 F.2d 182 (3d Cir. 1975)
14
United States V. Kimbrough,
528 F.2d 1242 (7th Cir. 1976)
16
Page
United States V. Linnas
527 F.Supp. 426 (E.D.N.Y. 1981)
aff'd. -- F.2d -- (2d Cir. 1982),
cert. denied, -- U.S. -- (1982)
6, 66
United States V. Look,
464 F.2d 251 (8th Cir. ), cert. denied,
409 U.S. 1011 (1972)
17
United States V. Mann,
557 F.2d 1211 (5th Cir. 1977)
22
United States V. Oates,
560 F.2d 45 (2d Cir. 1977)
71
United States V. Oddo,
314 F.2d 115 (2d Cir. ), cert. denied,
375 U.S. 833 (1963)
114
United States V. One 1968 Piper Navajo Twin
Engine Aircraft,
594 F.2d 1040 (5th Cir. 1979)
62
United States V. Profaci,
274 F.2d 289 (2d Cir. 1960)
3, 89, 90,
91, 94, 96
United States V. Regner,
677 F.2d 754 (9th Cir. 1982)
67,68
United States V. Riela,
337 F.2d 986 (3d Cir. 1964)
97
United States V. Rossi,
299 F.2d 650 (9th Cir. 1962)
88, 97
United States ex rel. Leibowitz V. Schlotfeldt,
94 F.2d 263 (7th Cir. 1938)
88
United States V. Smith,
521 F.2d 957 (D.C.Cir. 1975)
71
United States V. St. Louis, S.F. & T. Ry.
270 U.S. 1 (1926)
103
United States V. Stromberg,
227 F.2d 903 (5th Cir. 1955)
99
United States V. Tooma,
187 F.Supp. 928 (E.D.Mich. 1960)
89, 91, 93,
94
United States V. Wall,
371 F.2d 398 (6th Cir. 1967)
91
United States V. Walus,
616 F.2d 283 (7th Cir. 1980)
11, 15, 17,
27, 75
United States V. Washington,
292 F.Supp. 284 (D.C. 1968)
12, 17
United States V. West,
670 F.2d 675 (7th Cir.), cert. denied, 102
S.Ct. 2944 (1982)
29
United States Fidelity and Guaranty Co. V.
Struthers Wells Co.
209 U.S. 306 (1908)
102, 104
Van Liew V. United States
321 F.2d 674 (5th Cir. 1963)
96
Weiler V. United States,
323 U.S. 606 (1945)
96
Winfree V. Northern P. Ry.,
227 U.S. 296 (1913)
103
In re Winship,
397 U.S. 358 (1970)
2
Wright V. Hull,
83 Ohio St. 385, 94 N.E. 813 (1911)
64
Zenith Radio Corporation V.
Matsushita Electric Industrial Co.,
505 F. Supp. 1190 (E.D.Pa. 1980)
30, 31
Zenith Radio Corporation V.
Matsushita Electric Industrial Co.,
505 F.Supp. 1125 (E.D.Pa. 1980)
31
STATUTES AND RULES
U.S. Const. Art. I, §9, cl. 3
98, 105
8 U.S.C. $1253 (h) (1981)
113
8 U.S.C. $1421-51 (1976)
95
8 U.S.C. $1451(a) (1976)
97-113
8 U.S.C. $1451 (g) (1976)
100
8 U.S.C. $1451 (i) (1976)
99, 103
18 U.S.C. $1425 (1976)
100
Page
34 Stat. 601 (1907)
99
66 Stat. 260 (1953)
99, 105
66 Stat. 262 (1953)
103
75 Stat. 649 (1962)
103
75 Stat. 650-657 (1962)
103
75 Stat. 656 (1962)
100
Fed.R.Civ.P. 44(a)(2)
67
Fed.R.Evid. 801(d)(1)(B)
28, 29
Fed.R.Evid. 801(d)(2)
69
Fed.R.Evid. 803(6)
70, 71
Fed.R.Evid. 803(8)
70, 71
Fed.R.Evid. 804(b)(1)
29
Fed.R.Evid. 901(a)
62
Fed.R.Evid. 901(b)(7)
67
Fed.R.Evid. 901(b)(8)
62-65, 69
Fed.R.Evid. 901(d)(1)(B)
28
Fed.R.Evid. 901(d)(8)
70
Fed.R.Evid. 901(3)
68
Fed.R.Evid. 902(3) and (4)
67
OTHER AUTHORITIES
Alleged Nazi War Criminals, Hearings
Before the Subcomm. on Immigration,
Citizenship, and International Law of
the House Comm. on the Judiciary,
95th Cong., 1st Sess.
(1977)
115
Chicago Lawyer, October 1982, pp.16-18
114
Hilton, Scientific Examination of
Questioned Documents 81 (1982)
43
Page
H.R. Rep. No. 1086, 87th Cong., 1st Sess. (1961)
reprinted in 1961 U.S. Code Cong. &
Admin. News 2950
103, 110
H.R. Rep. No. 1365, 82d Cong., 2d Sess. (1952),
reprinted in 1952 U.S. Code Cong. and
Admin. News 1741
99
Nesselson & Lubet, Eyewitness
Identification in War Crimes Trials,
2 Cardozo L. Rev. 71 (1980)
16
Osborn, Questioned Documents, 245 (2d ed. 1929)
53
S. Rep. No. 1137, 82d Cong.
2d Sess. 45 (1952)
99
Smead, The Rule Against Retroactive
Legislation: A Basic Principle of
Jurisprudence, 20 Minn.L.Rev. 775 (1938)
102
2 Sutherland, Statutory Construction,
$41.01 at 245 (1973)
102
Taylor, Courts of Terror (1976)
22
Wall, Eye-Witness Identification in
Criminal Cases 74 (1965)
20
4 Weinstein & Berger, Weinstein's Evidence,
1801 (d) (2) (A) [01] at 801-42 (1978)
69
5 Weinstein & Berger, Weinstein's Evidence,
1901 (b) (7) [01] at 901-94-95 (1978)
67
901 (b) (8) [01] at 901-101-02 (1978)
64
5 Wigmore, Evidence §1367 at 32,
(Chadborn Ed. 1974)
25
7 Wigmore, Evidence §2140 at 728
(Chadborn Ed. 1974)
64
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,
)
Honorable James B. Moran
)
Defendant.
)
DEFENDANT'S POST-TRIAL BRIEF
The Supreme Court held in Schneiderman V. United
States, 320 U.S. 118 (1943), that the evidence in a denatural-
ization case like this must be weighed according to three
principles:
First:
All inferences from the evidence must
be drawn as far as reasonably possible
in favor of the citizen. (320 U.S. at
122, 158-59).
Second:
With all the inferences drawn favorably
to the accused, the Government must
prove each element of its case by
"clear, unequivocal and convincing"
evidence. (320 U.S. at 135).
Third:
So viewed, the evidence must "not
leave the issue in doubt" on any
element of the case. (320 U.S. at
135).1/
1/
The Government's brief attempts to avoid this third
requirement. (E.g., Gov't Br. 1-2, 18, 19). The Supreme
Court's requirement that the evidence "not leave the issue
in doubt" comes verbatim from its Schneiderman decision
(320 U.S. at 135) and has been repeatedly reiterated
(e.g., Chaunt V. United States, 364 U.S. 350, 353 (1960)
Baumgartner V. United States, 322 U.S. 665, 670 (1944)),
including in the Supreme Court's most recent discussion of
denaturalization. Fedorenko V. United States, 449 U.S.
490, 505 (1981).
The result is to impose on the Government a burden of
proof "substantially identical with that required in criminal
cases -- proof beyond a reasonable doubt." Klapprott V. United
States, 335 U.S. 601, 612 (1949) (opinion of Black and Douglas,
JJ.
)
This heavy burden of proof follows by reason of the
serious consequences of losing American citizenship, by the
disparity in resources of the parties, by the Government's
refusal to accede to a jury trial, and by the difficulty of
proving facts after the passage of forty years.
Defendant respectfully urges that the Court apply
these standards consistently and stringently to every single
factual and legal element of this matter. Cf. In re Winship,
397 U.S. 358 (1970) (due process in a criminal case requires
proof beyond a reasonable doubt on every element of the case).
This is a burden of proof case. The issue is not what happened,
or even what probably happened. The only issue facing this
Court is whether there are reasonable inferences that create
doubt.
Section I discusses the numerous unanswered questions
raised by the identification evidence. Resolving these ques-
tions favorably to defendant produces substantial doubt that he
was the "Kairys" who served at Treblinka. These many substan-
tial doubts require dismissal of the Government's claims.
This burden of proof is especially appropriate because the
evidence shows that Kairys would be criminally prosecuted
and probably sentenced to death if deported to the Soviet
Union. (DX 537, pp.37-38 (Lesinskis)).
Sections II and III address the applicable denatural-
ization law. The Government Complaint is based on four counts
of "illegal procurement" of citizenship and one count of
procurement of citizenship by "willful misrepresentation or
concealment of material facts." Section II establishes that
the Government failed to pin down Kairys's actual immigration
dealings with the International Refugee Organization, the
Displaced Persons Commission, American consular officials,
American Army officers, or the naturalization personnel handling
his case. The misrepresentation count requires actual proof of
the questions asked, defendant's understanding of the questions,
and his knowingly false answers. E.g., United States V. Profaci,
274 F.2d 289 (2d Cir. 1960). The confusion, lack of clarity,
and vacuums in proof left by the Government's evidence requires
dismissal of the misrepresentation count.
Section III shows that two reasons require dismissal
of the four remaining "illegal procurement" counts: First,
Congress added the "illegal procurement" basis for denatural-
ization ex post facto to the statute in 1961, four years after
Kairys's 1957 naturalization. The language of the statute,
principles of statutory construction, and the Constitution bar
use of this after-the-fact change of law, particularly in a
case where "the law should be construed as far as reasonably
possible in favor of the citizen." Schneiderman, 320 U.S. at
122. Finally, even if the subsequent statutory change could be
applied retroactively, the Government's evidence on "illegal
procurement" does not satisfy the Supreme Court's standards in
Fedorenko.
Section IV discusses the two ways in which the
Government's unreasonably long delay in bringing this action
have so prejudiced Kairys that laches bar this prosecution.
I.
THE IDENTIFICATION EVIDENCE RAISES
NUMEROUS SUBSTANTIAL DOUBTS.
The Government's identification evidence consisted of
"eyewitness" testimony and documents. This section will demon-
strate that each type of evidence was rife with unanswerable
doubt.
A.
The Claimed Eyewitness Testimony --
and Lack Thereof -- Raises Doubts.
1. The survivor testimony.
No survivor identified defendant as a Treblinka
guard. The absence of such evidence is telling because concen-
tration camp survivors would recall a guard. (DX 536, pp.31-
32, 35, 37 (Niederland)). Survivor identification has proved
pivotal in all other "Nazi" denaturalization cases.
The absence of survivor identification did not result
from lack of resources or effort. Government counsel contacted
sixteen Treblinka survivors in four different countries. No
survivor could identify Kairys. (DX 529).
All survivors were shown a photograph alleged to be
Kairys. None could make an identification. No survivor has
ever identified defendant as being at Treblinka, Trawniki, or
Lublin. Neither Simon Friedman nor Fred Kort, the only
Treblinka camp survivors to testify, was able to identify
defendant's known photograph or the mysterious Personalbogen
photograph. (Tr. 40 (Friedman); Tr. 131 (Kort)). Moreover,
neither Friedman nor Kort had heard the name "Kairys" while at
the Treblinka camp. (Tr. 40 (Friedman); Tr. 129 (Kort)
Dr. William Niederland, a psychiatrist previously
employed by the Government as an expert witness, testified that
hyperamnesia is the "indelible imprint" of a prior traumatic
experience that has been "engrained" in the mind of a con-
centration camp survivor. (DX 536, pp.31-32, 35, 37). Victims
can voluntarily recall the precise details of camp guards last
seen forty years ago. (DX 536, pp.30, 51). Survivor memory
is vivid, accurate, and exact. As Dr. Niederland testified:
&
How detailed would this picture be in your
mind as time passed by?
Would it be the same clarification of
detail as the time it happened, say, 20 or
30 years later?
A. Yes.
a
The same identical detail?
A.
Yes.
*
*
*
Q.
For example, color of hair?
A.
Yes.
Q.
Color of eyes?
A.
Color of hair, color of eyes.
3/
Hyperamnesia has also been researched by three leading
West German psychiatrists at the University of Heidleberg:
Walter Ritter Von Baeyer, Heinz Hafner, and Karl Peter
Kisker in their work "Psychiatries Der Volgerten,' " or
"Psychiatry of Persecutees. " These experts substantiate
Dr. Niederland's findings. (DX 536, pp.25-26).
Q.
Height, how tall?
A.
Configuration of the nose, size of the
person.
(DX 536, pp.30-31).
The Government's reliance on survivor testimony in
prior denaturalization cases highlights the significance of the
failure to produce such evidence here. See United States V.
Demjanjuk, 518 F.Supp. 1362, 1369-70 (N.D.Ohio 1981), aff'd,
680 F.2d 32 (6th Cir. 1982) (five survivors testify at trial);
United States V. Linnas, 527 F.Supp. 426, 433 (E.D.N.Y. 1981),
aff'd, -- F.2d -- (2d Cir.), cert. denied, -- U.S. -- (1982)
(survivor testimony relied on at trial).
These facts alone raise strong doubts. The survivors'
unanimous failure to identify Kairys raises the reasonable
inference that he never served at Treblinka. Under the strin-
gent burden of proof, the Government's failure to remove that
doubt requires dismissal of its case.
2. The documentary evidence identifies
a different "Kairys"; it does not
identify defendant.
Evidence produced at trial indicates that an individ-
ual named "Kairys" might have served as a guard at the Treblinka
Labor Camp. The documents themselves demonstrate that they
refer to some other "Kairys," not to defendant.
4/
"Kairys" is a common Lithuanian name. (Tr. 1053). The
evidence is strongly conflicting on the individual's first
name. Most testimony refers to a "Kairys" alone. See
table of the Government's conflicting documents at page 8,
infra.
The Soviet Personalbogen, GX 32, states that the
"Kairys" at Treblinka had a scar on his left hip. Defendant,
however, has no such scar.
Dr. Herbert Greenlee physically examined Kairys for
the Government to detect any scars. In the memorandum request-
ing the physical examination, the Government stated:
Doctor Greenlee has advised that if a hip scar
resulted from a serious injury, such as a stab
wound or bullet wound, it would be visible today
upon medical inspection.
(Govt's Mem. in Support of Motion for Physical Examination of
Defendant, p.3 (March 26, 1982)) Dr. Greenlee found that
Kairys has no scar on his left hip. At trial, Dr. Greenlee
testified that, while defendant has several scars resulting
from prior stomach operations, including one in the "lateral
mid-back," he does not have a scar on the left hip. (Tr. 1288,
1299). Dr. Greenlee agreed that the lateral mid-back scar "is
some distance from
the hip in most people's minds." (Tr.
1290).
Dr. Greenlee's admission that Kairys has no scar on
his left hip and that the one scar is "some distance" from the
left hip in most people's minds raises critical doubt that the
"Kairys" of the Personalbogen is defendant.
5/
The Government argues (Gov't Br. 59-60) that Kairys somehow
admitted having a scar on his left hip by failing to
circle that area of the Personalbogen in his letter to
United States Attorney Sullivan, GX 112. As GX 112 demon-
strates, Kairys possessed only the Sun Times reproduction
of the Personalbogen when he wrote the letter to Sullivan.
The statement that the applicant has a scar on his left
hip is written in an almost illegible foreign scrawl. The
failure of defendant to assert the falsity of such mate-
rial, under these circumstances, hardly amounts to an
"admission."
In the memorandum requesting permission for physical
examination, the Government also stated that members of the
Waffen SS were given a blood group tattoo under their left
armpits. Dr. Scheffler, the Government's expert on German
military procedures, confirmed that 1940 German regulations
mandated that members of the SS, including concentration camp
guards, receive such blood tattoos. (DX 535, pp.36-37).
Dr. Greenlee confirmed that defendant has neither a tattoo nor
any scar resulting from the removal of a tattoo. (Tr. 1288).
Defendant's name is and always has been Liudas
Kairys. Defendant was a Lithuanian citizen and born in Kaunas,
Lithuania. Defendant has never waivered on these points. The
Government's documents give five different spellings for defen-
dant's name, none of which is correct. Further, all documents
record an incorrect birth place and, even among themselves, are
inconsistent:
Place of
Name
Birth
Document
GX Number
Kayrov
Svilyany
Baptismal Record
GX 44
Kairys, Ludwig
Luilionys
Personalbogen
GX 32
Kairis
--
Promotion Order
GX 38
Kairys, Ludwig
Luiliones
Transfer List
GX 39
Kairys, Liudvig
--
Dienstverpflichtung
GX 36
Kairys, Liudwig
--
Erklarung
GX 37
Kairys, Liudvikas
Svilioniu
Vidaus Reikalu
GX 40
Ministrui
Kairys, Liudvikas
Svilioniu
Asmens Zinios
GX 41
Kairys, Liudvikas
Svilioniu
Pazymejimas
GX 42
Place of
Name
Birth
Document
GX Number
Kairys, Liudvikas
:
Untitled Document
GX 43
Kairys, Liudvikas
Svilioniu
Vyriausybes Ziniu
GX 50
No. 702
Kairis, Ludwig
--
Treblinka Guard List
GX 60
The Personalbogen contains other errors of physical
description besides the scar. The Personalbogen lists
"Kairys's" hair color as dark blond ("dunkelblond"). Defendant's
hair is black and has always been black. Photographs taken
during defendant's service in the United States Army (1946-49)
and his Lithuanian identity card (1942) prove this. (DX 10,
DX 11, DX 12, DX 1). Moreover, as defendant's presence in the
courtroom revealed, his eyes are blue, not gray as the
Personalbogen asserts. The number and significance of these
errors in physical description raises further unanswered doubt.
3.
Amanaviczius, Zvezdun, and
Latakas did not identify a
photo of defendant.
The "identifications" of "Kairys" relied on by the
Government refer to the photograph on the Personalbogen,
GX 32. This is not defendant's photograph. The Government's
own forensic photographer could not positively identify this
picture as defendant's. (Tr. 384). Moreover, experts for the
Government and defense agree that the Personalbogen picture may
have been removed. This uncertainty, along with the inherent
inconsistencies in the picture itself, undermine these attempted
identifications.
The Government used the Personalbogen picture in
every identification in question. The Government's forensic
photographer, Gerald Richards, could only state that the known
photo and the Personalbogen picture were "more probably than
not" of the same individual. (Tr. 381). He was "unable to say
with any degree of scientific certainty that those are the same
man." (Tr. 386, 388). Richard's equivocal conclusion does not
meet the burden of proof applicable here, for "the facts and
law should be construed as far as is reasonably possible in
favor of the citizen." Schneiderman, 320 U.S. at 122.
Another explanation of the alleged similarity of
photographs is equally probable. Richards explained that
individuals of the same ethnic background share many of the
same class characteristics, such as hairline, cheek structure
and ear indentations. (Tr. 384). Indeed, the closer the
ethnic relationship between individuals, the likelier they
would share common class characteristics. Richards expected
that ethnically-related individuals would share such character-
istics. (Tr. 384). Consequently, the evidence creates the
Other ex-guards Zajanckauskas, Kharkovskii, Vilshun and
Fessler, who were contacted by the Government but not
called to trial, could not identify even the Personalbogen
photograph. Zajanckauskas's failure is significant because
he testified that he was friendly with the "Kairys" at
Trawniki and spent hours talking with his fellow Lithua-
nians. (Tr. 234). Moreover, former guard Vilshun identi-
fied someone else as resembling "Kairys" (DX 94, p.47),
even though "Kairys" was in the same platoon. (GX 80,
p.65 (Zvezdun)). In fact, Vilshun testified that the
"Kairys" Personalbogen photograph was of someone he had
never even seen before. (DX 94, p.49).
distinct possibility that the Personalbogen depicts a different,
although ethnically-related individual, than defendant.
The Government could have used a known photo in the
photospread. Its failure to do so is not Kairys's fault. The
Government possesses several known pictures of defendant,
including one from his 1957 Naturalization application, GX 8.
Nonetheless, it chose to use the Personalbogen picture in its
photospreads. The poor quality of the photograph and the fact
that it depicts only the individual's face seriously undermines
any "identification" based on it. See United States V. Walus,
616 F.2d 283, 292-293 (7th Cir. 1980).
Questions about the integrity of the Personalbogen
photograph further impeach the Government's "identifications."
The photograph was, in fact, probably removed from the original
Personalbogen. Richards testified that in examining the photo-
graph, he noted an "alteration" and some "scarring" to the
Personalbogen in the exact area of the picture. (Tr. 383).
Government witness Cantu admitted the possibility that the
picture was removed. (Tr. 558). David Purtell's opinion went
even further. In his view, the photograph was "most likely"
taken off the original document. (Tr. 987).
Each photospread in issue presented this suspect
photograph. Each "identification" is thus inherently unreliable
and consequently inadmissible. As will next be shown, the
questionable procedures the Government followed in the individ-
ual identifications reinforce this conclusion.
a.
Each of the identification
photospreads used is imper-
missibly suggestive.
The array of photographs used in each photospread
renders each resulting "identification" suspect.
The Latakas photospread, GX 63, contains only four
pictures. In this Circuit, a permissible photospread must
have, at a minimum, at least five photographs of individuals
not of the same race, age, and body type. United States V.
Bowie, 515 F.2d 3, 7 (7th Cir. 1975). Cf. United States V.
Washington, 292 F.Supp. 284, 288 (D.D.C. 1968) (spread con-
taining only four suspect pictures labelled a "suggestive
practice"). In the Latakas spread, the remaining three
individuals are heavy set and distinctly younger in appearance
than the Personalbogen photograph.
As the Seventh Circuit recognized in Israel V. Odom,
521 F.2d 1370, 1374 (7th Cir. 1975), the risk of misidentifica-
tion increases substantially when the suspect is the only
individual wearing distinctive clothing. In Israel, the Court
held a line-up procedure illegally suggestive because the
accused was the only one of five individuals wearing glasses.
Similarly, in the Latakas spread only the claimed "Kairys"
photograph presents an individual garbed in the classic closed
collar military tunic. By constrast, the two other individuals
have white shirts and one even wears a tie. The third individ-
ual is much more heavy set, with glasses and an open collar.
As such, the claimed Kairys picture stands out "like the pro-
verbial sore thumb." Passman V. Blackburn, 652 F.2d 559, 570
(5th Cir. 1981), cert. denied, 102 S.Ct. 1722 (1982) (twelve-
picture photospread found impermissively suggestive).
The Zvezdun photospread, GX 29, is even worse. of
the eight individuals depicted, five are young businessmen in
jackets, white shirts, and ties. Obviously, these individuals
are not credible suspects as "criminals" of the Second World
War. Zvezdun admitted as much:
Q.
During the time that you were in the custody
of the Germans, did the Germans ever issue
a white shirt and necktie?
A. No. We never saw any ties. We were wearing
civilian shirts.
*
*
*
Q.
None of the Wachmann in Treblinka wore
white shirts and neckties, did they?
A. No.
(GX 80, pp.52-53). Similarly, a sixth is depicted in a spotted
sportshirt and sweater. None of the Wachmann wore this type of
garb either.
Q.
And none of the wachmann in Treblinka wore
sportshirts and sweaters, did they?
A. No.
(GX 80, p.53). Finally, the seventh individual, Vladas
Zajanckauskas, is extremely heavy set and much older in
appearance than the Personalbogen photo.
Thus the Zvezdun photospread impermissibly suggests
the GX 32 picture by emphasizing a single photo, a tactic
1/
At the time of the deposition Zajanckauskas had been
publicly identified and accused by the Soviets as a Nazi
"war criminal." (DX 19; DX 50; Gov't Br. 36).
condemned by the Supreme Court. In Simmons V. United States,
390 U.S. 377, 384 (1968), the Supreme Court emphasized the
inherent problems in any photospread identification:
Even if the police subsequently follow the most
correct photographic identification procedures
and show him the pictures of a number of indi-
viduals without indicating whom they suspect,
there is some danger that the witness may make
an incorrect identification. This danger will
be increased if the police display to the witness
only the picture of a single individual who
generally resembles the person he saw, or if
they show him the pictures of several persons
among which the photograph of a single such
individual recurs or is in some way emphasized.
(390 U.S. at 384) Consequently, photospreads should be
developed with care and reflection, especially when time does
not necessitate a hurriedly prepared display. See United States
ex rel. John V. Casscles, 358 F.Supp. 517, 523 (E.D.N.Y.), rev'd
on other grounds, 489 F.2d 20 (2d Cir. 1973), cert. denied, 416
U.S. 959 (1974) (prosecution had "no excuse" for suggestive
procedure since there was no urgent need for prompt identifica-
tion). The Government ignored these principles here.
Emphasis has been added to all citations to the record and
authorities unless otherwise indicated.
See also, Styers V. Smith, 659 F.2d 293, 297-98 (2d Cir.
1981) ( [N]one of the other men pictured in the photographic
display remotely resembled either [defendants], or answered
the broad general descriptions given earlier. ");
United States V. Gidley, 527 F.2d 1345, 1350-51 (5th Cir.),
cert. denied, 429 U.S. 841 (1976) (five picture photo array
ruled suggestive because other photographs emphasized the
distinctive characteristics of defendant); United States
V. Keller, 512 F.2d 182, 184-85 (3d Cir. 1975) (suspect's
picture emphasized by overwhelming youth of all other
individuals depicted -- photospread ruled "blatantly
suggestive").
The Amanaviczius spread, GX 88, suffers from the same
fatal deficiencies present in Zvezdun's. Again, as with the
other displays, no known photo was used.
Moreover, five of the eight Amanaviczius individuals
are again wearing jackets, white shirts, and neckties. 10/
This
reduces the number of pictures to three, with the remaining two
unlike the Personalbogen picture in body type and age. As
outlined above, such emphasis on a single photograph is imper-
missible and, when effectively reduced to three possible
pictures, "impermissibly suggestive." Haberstroh V. Montanye,
362 F.Supp. 838, 840 (W.D.N.Y. 1973), aff'd, 493 F.2d 983 (2d
Cir. 1974).
b. Other evidence casts further doubt
on the photo identifications.
In cases involving impermissibly suggestive photo
spreads "reliability is the linchpin in determining the admissi-
bility of identification testimony. " Manson V. Brathwaite, 432
U.S. 98, 114 (1977) 11/
10 The photos in the Amanaviczius spread only depict the neck
and face. The Seventh Circuit stressed this limited view
as an additional factor undermining reliability. United
States V. Walus, 616 F.2d at 293-94.
11/ Although the photospread case law developed in criminal
cases, the reliability standards are equally applicable
to civil denaturalization. United States V. Walus, 616
F.2d at 292 n.15. Further, the Government has judicially
conceded the appropriateness of criminal procedural safe-
guards in denaturalization proceedings. In discussing
the appropriate restriction on the use of photospreads in
a denaturalization case, the Government argued to the
Fifth Circuit:
(Footnote continued on following page)
Guided by this Supreme Court precedent, the Seventh Circuit has
developed the following standard to determine the admissibility
of an out-of-court identification:
The most recent decision of Neil V. Biggers,
incorporates both the guidelines of Stovall and
Simmons and directs us to ask "whether under the
'totality of circumstances' the identification
was reliable even though the confrontation
procedure was suggestive." The key element is
the reliability of the identification, whether
made by a single photo or a photo spread, a line
up of five persons, or a show up of one person.
United States V. Kimbrough, 528 F.2d 1242, 1245 (7th Cir.
1976) (citations omitted). Defendant challenges the admission
of the Zvezdun, Latakas, and Amanaviczius identifications as
unreliable and the use of any such identification as a viola-
tion of due process of law.
The passage of forty years renders any subsequent
identification inherently suspect. 12/ The Supreme Court has
(Footnote continued from preceding page)
"[W]e agree with the district court that,
although this is not a criminal action, the
[criminal law] standards announced in Simmons V.
United States
and its progeny for use of
photo spreads should apply here
Any
lesser standard has no place where a defendant's
citizenship is at stake, "
Brief for the United States at 51, United States V.
Fedorenko, 597 F.2d 946 (5th Cir. 1979) (citations omit-
ted), quoted in, Nesselson & Lubet, Eyewitness Identification
in War Crimes Trials, 2 Cardozo L.Rev. 71, 76 n.28 (1980).
12/ An exception to this principle is the small group of
persons who suffer from hyperamnesia, see Section I.A.1,
supra. Unlike concentration camp victims, there is no
reason to assume that guards suffered a similar trauma
which would enable them to recall a face forty years
after the fact.
stressed repeatedly that the passage of time between the inci-
dent and the identification is a critical factor in gauging
reliability. See, e.g., Manson V. Brathwaite, 432 U.S. at
13/
115-16. Even delays of two months raise doubts,
and
a
seven-month delay is a "seriously negative factor in most
cases. If Neil V. Biggers, 409 U.S. at 201. Obviously, a forty-
year lapse geometrically compounds the prejudice. As the
Seventh Circuit emphasized in Walus, the passage of four decades
brings into question even the most positive identifications:
The long time span between the incidents and the
viewings of this exhibit in the mid 1970's would
itself require scrutiny of identifications, even
if they were made under laboratory conditions."
Cf. Neil V. Biggers, 409 U.S. 188, 201 (1972)
(lapse of seven months between incident and
confrontation would be "seriously negative
factor in most cases"). Generally, the circum-
stances surrounding the showing of Government
Exhibit 1, however, can hardly be described as
"laboratory" in nature.
(616 F.2d at 293).
13 See, e.g., Passman V. Blackburn, 652 F.2d 559, 572 (5th
Cir. 1981), cert. denied, 102 S.Ct. 1722 (1982) (pre-
identification delay of nine days, two year delay prior to
trial held to be a "serious negative factor"); United States V.
Baykowski, 583 F.2d 1046, 1047-48 (8th Cir. 1978) (two
month delay after incident cited as factor draining reliabil-
ity); United States V. Look, 464 F.2d 251, 253 (8th Cir.)
(four and one-half months delay before identification
undermines identification), cert. denied, 409 U.S. 1011
(1972) ; Kimbrough V. Cox, 444 F.2d 8, 10 (4th Cir. 1971)
(two week delay created a "very substantial likelihood of
misidentification"); United States V. Washington, 292
F.Supp. 284, 288 (D.D.C. 1968) "[P]hotographs were shown
to the witnesses approximately two months after the event,
when memories would obviously have faded."). Cf. Manson
V. Brathwaite, 432 U.S. at 116 (Court cites delay of weeks
or months from time of incident as a factor that undermines
reliability of identification).
Similarly, the Government's procedures in this case
can hardly be described as "laboratory conditions." Each
photospread used was suggestive. Moreover, the uncertainty of
the witnesses' identification, inconsistencies in their testi-
mony, pre-identification publicity of defendant's name and the
suspect photograph, and the preclusion of cross-examination
into the identification procedure remove the remaining props
from under the Government's "identifications."
Thus, for example, Zvezdun's identification of the
Personalbogen was far from certain:
I cannot fully guarantee that the person seen
here in this photograph is Kairys for sure. I
cannot do this as many other -- many of the rest
of his features, trace of his outer appearance
have already disappeared from my memory.
(GX 80, p. 46). Zvezdun later admitted that his recollection
of a "Kairys" from a concentration camp was sketchy at best:
I cannot remember his outer appearance. I only
remember that he was a strong guy, tall, but I
do not remember the color of his eyes and the
color of his hair.14/
(GX 80, p.67).
The total absence of an in-court identification
further cripples the reliability of each "identification" of
the Personalbogen picture. In United States V. Cueto, 611 F.2d
14/ Zvezdun's identification of a "Kairys" striking persons at
the camp has no credibility. Zvezdun stated he recognized
"Kairys" from 100 to 150 meters (more than the length of a
football field), but was unable to describe the features
of the other Wachmann present. (GX 80, pp.60-61). This
concession, combined with Zvezdun's admitted inability to
describe Kairys's "outer appearance," renders Zvezdun's
testimony valueless.
1056 (2d Cir. 1980), the Court emphasized the necessity of a
substantiating in-court identification when the initial
photospread procedure is suspect. In Cueto, as with Zvezdun,
the witness was unable to provide a positive identification.
This highlighted the importance of corroborating in-court
identification:
The reliability of the photographic identifica-
tion in this case is very weak, especially with
regard to the level of certainty demonstrated by
the witness, Kosiba. Kosiba never made an in
court identification of Cueto. In cases such as
Manson and Hudson, courts have relied upon clear
and positive in court identifications by the
witnesses as an important factor to show the
reliability of suggestive photographic displays.
In those cases the witnesses were exposed to
suggestive displays only before the trial as a
means of preparing for a later in-court identi-
fication. In this case the improper photographic
display constituted the witness' only identifi-
cation of the defendant at the trial itself.
(611 F.2d at 1064). The absense of a single in-court identifi-
cation assumes paramount importance when the photograph chosen
is not a known photo of defendant. Without such an in-court
procedure, substantiation of a forty-year-old recollection is
lacking.
Latakas's identification is rendered suspect by,
among other things, factual inconsistencies between his testi-
mony and the Personalbogen. Latakas states he knew a Kairys
while growing up in Svylionys and last saw him "the end of
1943, beginning [of] 1944. " (GX 82, p.39). At this time,
Latakas testified, the Kairys he knew returned to Svylionys for
a weekend. Yet, the timing of this meeting is totally incon-
sistent with the Personalbogen, which states that a Kairys
received furlough from October 1 to October 14, 1942 -- over a
year earlier than when Latakas allegedly met the "Kairys" he
knew from Svylionys.
15/
In addition, Latakas admitted that he first saw the
Personalbogen photograph in an article attacking Kairys as a
"bourgeois nationalist war criminal" in Tiesa, the local
Communist Party newspaper. (DX 50). Such pre-identification
exposure to the photograph and accompanying accusations fatally
taints the Latakas identification. As the Supreme Court empha-
sized in Simmons, such tactics plant the suspect in the witness'
mind and thereby greatly enhance the potential for misidentifi-
cation:
The chance of misidentification is also height-
ened if the police indicate to the witnesses
that they have evidence that one of the persons
pictured committed the crimes.
(390 U.S. at 383). See generally, P. Wall, Eye-Witness
Identification in Criminal Cases 74-77 (1965). The Latakas
identification and supporting testimony must, therefore, be
excluded.
Amanaviczius similarly made no in-court identification
to corroborate his initial recognition of the Personalbogen
photograph. In Amanaviczius's case the Government has no
excuse for the absence of affirmative, reliable in-court iden-
tification. He lives in Belgium, not Russia. The Government
has routinely brought witnesses from overseas to provide
in-court identifications in these cases. E.g., United States
15/ This evidence thus again indicates the strong likelihood
of two different individuals named "Kairys."
V. Fedorenko, 455 F.Supp. 843, 901-09 (S.D.Fla. 1978), rev'd,
597 F.2d 946 (5th Cir. 1979), aff'd, 449 U.S. 490 (1981). The
Government failed to provide this vital, corroborating evidence
here. 16/
C.
Soviet bar on cross-examination
precludes the Zvezdun photo
identification.
The Soviet Procurator's preclusion of defense cross-
examination violated due process of law and requires the exclu-
sion of the Soviet witnesses' testimony. Defense counsel
sought to determine the Soviet witnesses' reliability by probing
the circumstances surrounding photospread procedures including
the identities of the individuals who had talked to the wit-
nesses about the matter.
Zvezdun and Latakas first selected the Personalbogen
photo before their depositions at a meeting with Soviet offi-
cials. Neither a representative of the United States Government
nor the defendant was present. (GX 80, p.71; GX 63(t)).
Zvezdun testified that at this earlier meeting, Soviet officials
questioned him for two days prior to showing the photospread.
Q. Do you recall that you were shown the
photographs at the end of two days of
questions about Mr. Kairys?
A. Yes.
16 Moreover, it is fair to assume that Amanaviczius, like
Latakas, was also exposed to the accusations against
Kairys spread by the Soviets in Gimtasis Krastas (DX 19),
a propaganda publication sent to Lithuanian emigres. (DX
537, pp.11, 13, 19, 21).
(GX 80, p.68). This Soviet woodshedding alone renders any
subsequent identification unreliable and inadmissible.
17/
The Soviet Procurators prohibited questioning about
the circumstances surrounding this two-day preparation session
that resulted in Zvezdun's identification:
17/ Preidentification discussions with authorities are rou-
tinely condemned as a suggestive practice. See, e.g.,
Foster V. California. 394 U.S. 440, 443 (1969) (police
statements that "this is the man" to witness made identi-
fication all but inevitable) ; United States V. Mann. 557
F.2d 1211, 1215 (5th Cir. 1977) (FBI suggestion to witness
held to be impermissibly suggestive) ; Rudd V. Florida,
343 F.Supp. 212, 221 (M.D.Fla. 1972) (police suggestively
managed to transfer the recollection of witness to suspect
photograph). The Soviets regularly prostitute their own
laws to achieve the results they want in "political" cases
such as this. (DX 16, "[1981] Country Report on Human
Rights Practices," p.898; T. Taylor, Courts of Terror
(1976) )
Latakas was also subjected to just such suggestive prac-
tices. When asked about the circumstances surrounding his
identification of the Personalbogen photograph, the tran-
script indicates that Latakas stated:
"The Procurator called and there was a talk."
(GX 82, p.53). This sentence was an example of the
Soviet's selective translation, as defendant's motion to
correct the record and the Affidavit of Ester Igolnikov
reveals. The videotape at 18:01:56 demonstrates that
Latakas' actual answer to the question about the identifi-
cation procedures was:
"The Procurator called and there was a talk
about some Kairys from the village."
The failure fully to translate Latakas's statement derailed
further questioning about the Procurator's discussions.
Moreover, standing alone, the presence of a Soviet Procu-
rator prior to the identification taints the substance of
the witnesses' identification and causes exclusion of the
evidence. See Foster, 394 U.S. at 443; Mann, 557 F.2d at
1215; Rudd, 343 F.Supp. at 221.
&
Plaintiff's Exhibit 2 [Soviet protocol
accompanying the photospread] shows that
the photographs attached thereto were
presented in Irkutsk, 14 November 1980. Who
asked Mr. Zvezdun to go to the meeting?
A. A Procurator. I think Malayev by name. It
seems to me so.
a
Did he visit you personally in your residence?
A.
I lived at a distance of 700 kilometers
from Irkutsk. I was called. They sent me
a paper. Subpoena.
&
Who delivered the paper to you?
THE INTERPRETER: Sorry.
Mr. Baccuchonis' question: Is this question of
any relevance to Kairys' case, how the witness
got the paper and whether he came by train or
somehow? I think this question doesn't refer to
the substance of the matter.
Other questions, please.
MR. BARTLIT: Under our law the circumstances
under which a meeting like this was set up and
what was said are relevant. That is why I
pursue it, respectfully.
THE PROCURATOR: Under our law these questions
are of no relevance and that is why we came to
the conclusion to be guided by the Soviet law.
(GX 80, pp. 74-75) . 18/
18 In Zvezdun's deposition, cross examination was tailored to
the circumstances and discussions surrounding the Zvezdun
identifications. As defense counsel stated:
"I desire to pursue the facts surrounding the
arranging of these meetings and what was said.
If the decision is that I may not, then I will
make my record and go to another subject."
(GX 80, p.76). The Soviet Procurator responded: "Another
theme that would be closer to Kairys' case?" In American
courts cross-examination about the circumstances of an
alleged photo identification is central to any case.
Manson V. Brathwaite, 432 U.S. at 113-14 n. 14; United
States V. Casscles, 489 F.2d at 26.
The right of cross-examination is the cornerstone of
a fair trial. The Supreme Court has emphasized that this
principle is especially applicable where the governmental
action may seriously injure an individual citizen:
Certain principles have remained relatively
immutable in our jurisprudence. One of these is
that where governmental action seriously injures
an individual, and the reasonableness of the
action depends on fact findings, the evidence
used to prove the Government's case must be
disclosed to the individual so that he has an
opportunity to show that it is untrue. While
this is important in the case of documentary
evidence, it is even more important where the
evidence consists of the testimony of individ-
uals whose memory might be faulty or who, in
fact, might be perjurers or persons motivated by
malice, vindictiveness, intolerance, prejudice,
or jealousy. We have formalized these protec-
tions in the requirements of confrontation and
cross-examination.
(Green V. McElroy, 360 U.S. 474, 496 (1959) ) 19/ This principle
applies to both criminal and civil proceedings. Green V.
McElroy, 360 U.S. at 497. See Morgan V. United States, 304
U.S. 1, 18-19 (1938) (right of cross-examination implicit even
in an administrative hearing).
The Soviet Procurator's bar to cross-examination into
the "totality of the circumstances" surrounding the Zvezdun
identification violated defendant's basic rights. Cross-
examination into these precise areas was held the "essence of a
fair trial" by the Supreme Court in Alford V. United States,
282 U.S. 687, 692 (1931)
It is the essence of a fair trial that reasonable
latitude be given to the cross-examiner, even
19/ See also Davis V. Alaska, 415 U.S. 308, 316 (1974) ("Cross-
examination is the principle means by which the believability
of a witness and the truth of his testimony are tested. ").
though he is unable to state to the court what
facts a reasonable cross-examination might
develop. Prejudice ensues from a denial of the
opportunity to place the witness in his proper
setting and put the weight of his testimony and
credibility to the test, without which the jury
cannot fairly appraise them.
The Government's effort to condone the Soviet behavior offends
these basic precepts.
A Soviet Procurator has no right to restrict defense
cross-examination. Defense freedom to attack the direct testi-
mony, search out crucial inconsistencies, and highlight factors
of unreliability is vital to due process of law. Further, the
denial of what Wigmore termed "beyond doubt the greatest legal
engine ever invented for the discovery of truth, II cannot be
cured by the Government's elicitation of self-serving statements
from the witness. 5 J.H. Wigmore, Evidence §1367 at 32 (Chad-
born ed. 1974), cited in California V. Green, 399 U.S. 149, 158
(1970). As the Supreme Court stated in Alford:
To say that prejudice can be established only by
showing that the cross-examination, if pursued,
would necessarily have brought out facts tending
to discredit the testimony in chief, is to deny
a substantial right and withdraw one of the
safequards essential to a fair trial. In this
respect a summary denial of the right of
cross-examination is distinguishable from the
erroneous admission of harmless testimony.
(282 U.S. at 692) (citations omitted). The denial of cross-
examination is prejudical error and mandates the exclusion of
the entire Zvezdun testimony. Davis V. Alaska, 415 U.S. 308,
321 (1974) (cross-examination denied improperly -- new trial
granted); Brookhart V. Janis, 384 U.S. 1, 3 (1966) (denial of
cross-examination is "constitutional error of first magnitude
and no amount of showing of want of prejudice would cure it. ").
Kairys suffered tangible prejudice by reason of the
improper restriction of cross-examination into the identifica-
tion procedure. Zvezdun admitted that Soviet officials --
almost certainly the KGB -- had questioned him for two days
before showing the photospread. The Soviet translator failed
to translate Zvezdun's response to a question about this topic.
As defendant's Motion to Correct the Record and the supporting
Affidavit of Ester Igolnikov (certified Russian translator)
indicates, when asked who contacted him about testifying,
Zvezdun responded "KGB, KGB. 20/ After Zvezdun gave his truth-
ful response, Soviet Procurator Baccuchonis interrupted with a
flurry of objections. The failure to translate this response
and the Soviet Procurator's attempt to obscure the topic further
erodes the reliability of Zvezdun's testimony. 21/
20 This passage is clearly visible and audible at 13:32:35 of
the Zvezdun videotape.
21/ These tactics seriously prejudiced defendant. Not only
were the witnesses not brought into the United States to
testify and attempt an in-court identification, but
defense counsel had but a single opportunity for question-
ing in the Soviet Union. Translator omissions, along
with closely circumscribed cross-examination, fettered
defendant's opportunity for fair preparation of his
defense. As defense counsel emphasized during the
proceedings:
I have to make one more point for the U.S.
lawyers, and that is this, that the reason that
I want them to know that if I am precluded from
pursuing this point and have no opportunity to
return and pursue it at another date I will
consider it highly prejudicial.
(GX 80, p. 72).
Wholly apart from the fair trial issue, cross-exami-
nation into the "totality of the circumstances" surrounding the
identification, including who said what to the witness, plays a
vital role in determining the reliability of an indentification.
Manson V. Brathwaite, 432 U.S. at 113-14 n.14; United States V.
Bowie, 515 F.2d 3, 8 (7th Cir. 1975) 22/ The Seventh Circuit
made this point forcefully in Walus:
It is obvious that one of the major goals of
defense cross-examination of eyewitnesses was to
show that their memories of the man who committed
the crimes had blurred over thirty five years
The questioning would also have been helpful in
probing the suggestiveness of identification
procedures.
(616 F.2d at 290). The Court found the trial judge's restric-
tion of cross-examination on these subjects "most disturbing,"
especially in light of the questionable photographs and iden-
tification procedures. 616 F.2d at 292-93. Accord, United
States ex rel. John V. Casscles, 489 F.2d 20, 26 (2d Cir.
1973) (extent of defense counsel's cross-examination held an
"important factor" in identification reliability). The same
applies to the Soviet Procurator's behavior here.
22/ See also, e.g., Passman V. Blackburn, 652 F.2d 559, 571
(5th Cir. 1981) (defense cross-examination cited as factor
in establishing reliability of identification) United
States V. Bowie, 515 F.2d 3, 8 (7th Cir. 1975) (defense
cross-examination "explored all of the circumstances
surrounding the prior photographic identification");
Haberstroh V. Montanye, 362 F.Supp. 838, 841 (W.D.N.Y. 1973)
("cross examination lessens the possibility of misidenti-
fication, especially when there is a long period between
the crime and the trial"); United States ex rel. John V.
Casscles, 489 F.2d at 26 ("an important factor to consider
is cross-examination by defense counsel").
4.
Prior consistent statements of the Govern-
ment's witnesses are not admissible.
a.
Testimony of individuals who
testified in 1982 and 1969-71.
The Government has offered the prior statements of
Zvezdun (GX 30), Kharkovskii (GX 62), Fessler (GX 27, GX 28)
and Amanaviczious (GX 90, GX 91) into evidence. Each of these
individuals testifed at trial. Their prior statements were
made in conjunction with the 1969 West German proceeding in
Swidersky. Under Rule 801 (d) (1) (B), these prior statements
are admissible only to rehabilitate the credibility of existing
testimony; otherwise such testimony is excluded as cummulative
and hearsay. 23/ Since the defendant does not contest that a
Kairys may have been present at the camp, the Swidersky wit-
nesses' statements corroborating this are not impeached.
Hence, their prior consistent statements are cummulative and
excluded as hearsay under 801 (d) (1) (B).
23/ The text of Rule 801 (d) (1) (B) provides:
" (d) Statements which are not Hearsay.
A statement is not hearsay if:
(1) Prior statement by witness. The declarant
testifies at trial or hearing and is subject
to cross-examination concerning the state-
ment and the statement is
.
(B) consis-
tent with his testimony and is offered to
rebut an expressed or implied charge against
him of recent fabrication or improper influ-
ence or motive."
The Seventh Circuit recently emphasized that admissi-
bility of prior consistent testimony under Rule 801(d)(1)(B)
requires satisfaction of four elements:
(1) the out-of-court declarant must testify at
trial; (2) the declarant must be subject to
cross examination concerning the out-of-court
declarant; (3) the out-of-court declaration must
be consistent with declarant's trial testimony;
and (4) the evidence must be offered to rebut a
charge of recent fabrication.
United States V. West, 670 F.2d 675, 686 (7th Cir. ), cert.
denied, 102 S.Ct. 2944 (1982). See also, United States V.
Guevara, 598 F.2d 1094, 1100 (7th Cir. 1979). The Swidersky
testimony is inadmissible because defendant does not contest
that a "Kairys" may have been at the Treblinka camp. Hence,
the fourth element outlined in West -- a charge of recent
fabrication -- does not exist.
24/
b. Testimony of individuals who
did not testify in 1982.
The Government has offered the August 26, 1944 state-
ment of Nikita Rekalo (GX 31) 25 and the 1968 and 1971 state-
ments of Franz Swidersky (GX 59, GX 83, GX 84, GX 85) into
evidence. Such prior statements are clearly inadmissible
hearsay under Federal Rule of Evidence 804(b)(1), which states:
The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:
24 Additionally, the denial of cross-exmaination in Zvezdun's
deposition precludes the prior statement under the third
element of the West requirements.
25 Rekalo's "statement" was given to SMERSH, Soviet military
counter-intelligence during the war. (DX 537, pp. 8-9
(Lesinskis)). That the United States Government would
sponsor "evidence" from this notorious organization against
an American citizen is astounding.
20
(1) Former testimony. Testimony given as
a witness at another hearing of the
same or a different proceeding,
if the party against whom the testi-
mony is now offered, or, in a civil
action or proceeding, a predecessor in
interest, had an opportunity and
similar motive to develop the testi-
mony by direct, cross or redirect
examination.
No one but SMERSH cross-examined Rekalo. Defendant,
moreover, was obviously not present for cross-examination at
the Swidersky proceedings. Nor did any prior party have the
"similar interest or motive to develop" the same testimony as
defendant. As the Third Circuit emphasized in Lloyd V.
American Export Lines, 580 F.2d 1179, 1187 (3d Cir. ), cert.
denied, 439 U.S. 969 (1978), for a party to constitute a
successor in interest it must appear: "that in the former suit
a party having a like motive to cross-examine about the same
matters as the present party would have, was accorded an
adequate opportunity for cross-examination." Accord, In re
Johns Manville/Asbestosis Cases, 93 F.R.D. 853, 856 (N.D.Ill.
1982) (prior party must have "same motive"); Zenith Radio Corp.
V. Matsushita Electric Industrial Co., 505 F.Supp. 1190, 1255
(E.D.Pa. 1980) (prior party must have "like motive to develop
the testimony about the same material facts as the other
defendant. )
Counsel in Swidersky did not have similar motives in
the cross-examination as defendant's counsel. Quite simply, at
the European trial, Kairys was not a defendant. To admit the
Swidersky and Rekalo statements unfairly saddles defendant with
20
direct testimony without an opportunity to cross-examine. As
the court in Zenith Radio noted:
[I]t is generally unfair to impose upon the present
party the responsibility for the manner in which
the witness was previously handled by another
party.
(505 F.Supp. at 1255). Such unfairness precludes admission of
the prior Swidersky testimony.
26/
B. The Soviet Union's Documents are not Admissible.
1. The documents delivered to the
Department of Justice contain
numerous unexplainable erasures,
inconsistencies, and interlineations.
The Government has conceded, on several occasions,
that the documents supplied by the Soviet Union are "important," "
even "critical," to their case. (Tr. 482, 998; Remarks at Pre-
trial Conference, May 13, 1982, p.8). The Governement's failure
to produce reliable eyewitness testimony further heightens
these admissions. Without these papers the Government has no
case. Both the Government and the defendant, therefore, retained
26/ Similarly, the 1971 judgment of the West German Court in
Swidersky is inadmissible. The opinion of a judicial
panel is not the type of "factual findings" excluded from
the hearsay rule by Rule 803(8)(c). As the Court in
Zenith Radio emphasized:
"First, a reading of the text of § 803 (8) (c)
makes it plain that the drafters were not talking
about judicial findings; rather, the rule speaks
of factual findings resulting from "an investiga-
tion made pursuant to authority granted by law. II
Surely Judge Higgenbotham was not engaged in
that pursuit."
(505 F.Supp. at 1185).
expert document examiners to determine their authenticity. 27/
These tests establish that the Soviet documents are replete
with unexplained erasures, interlineations, unknown typewritten
characters, a torn-off picture, and unexplained fiber distur-
bances around several of the signatures.
A complete list of all erasures, interlineations and
inconsistencies is catalogued below. In no instance has the
Government offered credible testimonial or documentary evidence
to resolve these doubts.
a. Removal of the photograph on GX 32.
The Government's most important document is GX 32:
an alleged Personalbogen for one "Kairys, Ludwig." The picture
on this document is claimed to be that of the defendant. It
serves as the foundation for every photospread identification
made by Government witnesses. (See Sec. I,A,3 supra). As pointed
out earlier, this is not a photograph of defendant. Experts
for both sides also agree that a photograph was possibly torn
off the Personalbogen and replaced. David Purtell, defendant's
document examiner, concluded that the photograph appeared to
have been removed and reglued. (Tr. 986-87). In his final
27 Government counsel initiated this action against defendant
without first having these admittedly "critical" Soviet
documents analyzed by experts. The suit was filed against
defendant on August 30, 1980 (Complaint) and Government
counsel waited until November 1981 -- over 14 months --
before Epstein and Cantu viewed the documents. (Tr. 545,
556). Even then, their examination totaled 1 hour and 15
minutes. The propriety of basing this case on their
after-the-fact justification is questionable.
report, Purtell noted: "behind the photograph [on GX 32] the
paper has been torn and the printing has been distorted." (DX
463, p.3). This finding was substantiated by Dr. Cantu, a
Government expert, who affirmed that it was possible the
GX 32 picture was removed and reglued. (Tr. 559).
It is not the defendant's burden to explain the
removal of the only identifying picture on this "critical"
document. That task rests with the prosecution. Gideon Epstein,
the document expert enlisted by the Government, offered no
explanation for the mysterious removal. Indeed, Government
counsel never even asked Epstein about it. Cantu, an expert
in the chemical properties of ink and paper, was asked to
explain the removal but demurred, stating that the question
was outside his area of expertise. (Tr. 559). .
The probability that someone removed the original
photograph and replaced it with the existing picture cannot be
discounted. This explanation is supported by Purtell's find-
ings. He stated that the tearing of the paper was not caused
by either the heaviness of the glue or the poor quality of the
paper, but "[m]ost likely it was from the removal of the photo-
graph tearing the paper that has disturbed the printing on the
back." (Tr. 987).
b. Inconsistencies in the GX 32 picture.
Even beyond the "most likely" probability that the
original picture on GX 32 was removed, the existing picture has
several inconsistencies that cause suspicion. Purtell's final
report stated:
The placement of the number "1628" on the photo-
graph and the alignment of these numerals are
suspicious. There is a darkened area in the
picture below the shoulders of the subject that
makes the photograph highly suspicious.
(DX 463, p.4). Purtell explained at trial that the numerals
"1628" were not properly aligned, and that the "8" was printed
upside down. (Tr. 875). Moreover, the "1628" tag apparently
was not affixed to the shirt because it overlapped the pocket
flap thereby rendering the pocket useless. 28/ (Tr.
875-76).
The Government's document expert did not even notice
these characteristics, let alone offer any explanation. The
Government's historical expert, Dr. Scheffler, was similarly
silent about the photograph's characteristics. Only Government
counsel made an attempt at explanation when, in cross-examination
of Purtell, he intimated that these peculiarities might have
been the normal course of procedures at concentration camps.
(Tr. 988). This speculation lacks any support.
28 On cross-examination Government counsel suggested that
these peculiarities might not be suspicious in light of
similar characteristics present in other Personalbogen
provided by the Soviet Union. Suspicious characteristics
of one questioned document cannot be substantiated by
copies of other questioned documents. Further, as both
Purtell and Epstein stressed, conclusions can only be made
after examining the originals, not copies. The originals
of the alleged substantiating documents were never avail-
able. Moreover, Government counsel's suggestions that
these numerals were haphazardly slapped on guards is
speculative. No evidence of German uniform procedure or
picture-taking methods was presented to the Court. Govern-
ment "star" witness Ivan Zvezdun could not recall any
photographs taken by the Germans. (GX 80, p.53).