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JGR/Nazi Prosecutions (3 of 9)
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JGR/Nazi Prosecutions (3 of 9)
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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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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
(3 of 9)
Box: 33
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
C.
Distorted printing.
On the reverse side of GX 32, in the area behind the
photograph, the printing has been seriously distorted. This is
evident even from looking at a copy of the document. This
distortion was caused when the original picture was removed
from GX 32. (Tr. 873). On close scrutiny Purtell discovered
a mysterious print character that could not be aligned with
any of the typeset on that page. (Tr. 873). A blow-up of
this character (DX 527) demonstrated that:
A.
This area has been torn. The letters and
the tearing of it has distorted the printing.
Also on it, I noticed down here is one
little piece attached to the paper and then
some printing. The design of that does not
correspond to any of the printing appearing
upon this document.
*
*
*
a
Did you make an effort to find out whether
that little piece of type was part of any
of these other words that are torn up?
A.
Yes, I did.
Q.
What did you conclude?
A.
I could not tie that in with any of the
other printing above it.
(Tr. 873-74).
There is no explanation for how a print character
that must have come from another piece of paper could have
appeared on such a "critical" document. The Government's
experts totally overlooked this character in their study.
d. Erasures.
At trial, both document experts testified that GX 32
has many erasures and interlineations. Purtell documented
fifteen deletions; Epstein, after first reporting none, even-
tually discovered eleven. The number of erasures and the
nature of the material erased both undercut the Personalbogen's
authenticity.
The erasures excised much important material, includ-
ing: date (Tr. 853; DX 491); name (Tr. 854-56; DX 492-93);
address (Tr. 856; DX 494); nationality (Tr. 856; DX 494);
citizenship (Tr. 858-59; DX 495-96); dates at camps (Tr. 861;
DX 498); length of service at camp (Tr. 863; DX 500-01); lan-
guages spoken (Tr. 867; DX 505); physical description (Tr.
868-70; DX 506-08); and the important "comments" ("Bemerkungen")
section (Tr. 865-66; DX 502-04).
Fragments of what may or may not have been a few
original responses were deciphered by Purtell, but few are more
than a stray pencil stroke. No complete responses can be
deciphered. The original responses to these entries will never
be known.
The Government has failed to offer credible expla-
nations for all the erasures. The primary argument is that the
pencil remnants and numerous erasures indicate the form was
filled out in pencil, erased, and then typed over. (Gov't Br.
62). This story has several flaws. First, there are pencil
remnants that cannot be explained by either side's document
expert. Epstein, the Government's expert, testified:
Q.
It is true, isn't it, that when you went
back, you found what you called pencil
remnants that you couldn't decipher or
explain?
A.
Yes
I found pencil remnants that I
couldn't explain when I first conducted the
examination in the Soviet Embassy in November
of 1981.
(Tr. 488).
Secondly, erasures appear on the document areas
devoid of typing. As Epstein testified:
Q.
It is also true, isn't it, that you found
erasures in places on the personalbogen,
GX-32, where there wasn't any typing over,
isn't that true?
A.
That's correct.
(Tr. 488-89). Contrary to the Government's theory, Purtell
also discovered areas of erasures without corresponding typing.
Most important was the response to the "Bemerkungen" or "com-
ments" section:
a
What is the next part of the personalbogen
you examined?
A.
The next part would be in the line starting
with Bemerkungen.
*
*
*
[DX] 503, I found the remains of just a
little graphite stroke in the one part of
the line. There was just some slight
disturbance of fibers across the area.
There are some remains of graphite
here, here, there are five little spots
of the remains of pencil graphite.
(Tr. 863-866). These unexplained erasures contradict the
Government's "typing over" theory. Plainly, some important
data was not typed over; rather, it was permanently erased.
The Government's explanation for over a dozen dele-
tions was not supported by the Government's expert on military
procedure at concentration camps: Dr. Wolfgang Scheffler.
Dr. Scheffler, claimed to be among a handful of elite scholars
who might have knowledge to substantiate the Government's
theory, was silent on this issue.
e. Erasures of the signature line.
Erasures around the signature of the Government's
Personalbogen further undercut the genuineness of the document.
Purtell's final report states: "The disturbance of fibers that
indicate an erasure in the area of the signatures on Exhibit Q4
[GX 32] and Q5 [GX 36] makes it a possibility that the signa-
tures are forgeries." (DX 463, pp. 4-5). Purtell candidly
stated that he could not conclude definitely that the signatures
were forgeries or inauthentic, but at trial he reiterated that
fiber disturbances, indicating an erasure, permeate the signa-
ture line. This finding exposes an additional problem with the
Government's "typed over" hypothesis: A military clerk would
have no reason to erase a signature line if he was simply
typing over the information that was originally placed on the
document. The existence of an erasure on the signature line of
the Government's "critical" document raises a grave doubt about
the documents's authenticity.
Purtell also identified, and DX 514 demonstrated, an
unexplainable erasure and pencil remnant on GX 37, the "Erklarung"
signature. (Tr. 889). Once again the Government offers the
unsupported supposition that this erasure was also part of
military procedure. No documentary or testimonial evidence was
offered to buttress this speculation. The Government's histor-
ical expert, Wolfgang Scheffler, was again silent on the issue.
The Government's repeated efforts to rationalize
inconsistencies, erasures, and pencil remnants do not resolve
these doubts. For example, the Government argues that the
erased pencil markings on GX 37 were checkmarks that indicated
where an individual was to sign. This is a possibility albeit
one with no evidentiary support. It is equally possible that
the Personalbogen and Erklarung erasures indicate tampering
with the signature. This possiblity is supported by the
record. The testimony of Lesinskis demonstrates that the
Soviets -- possessors of the documents for over 30 years --
have forged signatures frequently in the past. (DX 537, p. 28).
f. Age of paper.
Al Lyter, defendant's expert in the chemical analysis
of paper and ink detected the possible presence of dialdehyde
starches. Since these starches were not introduced into paper
until 1947 (Tr. 1130), their potential presence in "captured
German records" dated in the early 1940's raises further suspi-
cion as to their genuineness. Lyter's conclusions are not
dispositive because other known materials are known to inter-
fere with the test performed. However, Lyter concluded that
the existence of dialdehyde starches could not be eliminated.
(Tr. 1130). This factor weighs against the authenticity of the
Government's documents.
-30-
g.
Thumbprint on Personalbogen.
The Government experts cannot eliminate the possibil-
ity that the single Personalbogen thumbprint was placed on the
document by mechanical means. Nor can they explain why the
print's ink is inconsistent with normal fingerprint ink.
As discussed above, the document on which the thumb-
print is affixed has erasures, interlineations, and incon-
sistencies. For these reasons, the Personalbogen is not trust-
worthy. The fingerprint evidence does not remove this doubt;
it compounds it.
One of the Government's Soviet witnesses, Semen
Kharkovskii, testified that when he arrived at Trawniki all of
his fingerprints were taken, not simply the right thumb. As he
stated:
Q.
You testified that when you were at Trawniki
they took your fingerprints?
A. Yes.
Q.
Did the Germans take each of your fingers
and take the print?
A.
The Germans did, yes, each of the fingers.
(GX 81, p.45). The Government produced no other evidence
regarding the fingerprinting procedure actually used at the
time.
The actual print itself creates more uncertainty.
Oakes testified that the print encompassed only 25% of the top
tip of the right thumb. (Tr. 284). As Oakes conceded, the
print was not taken by someone -- such as a clerk -- who regu-
larly took fingerprints as part of his job. (Tr. 284).
The unusual ink used in the print fragment is an
additional ground for suspicion. Unlike all FBI and most
domestic fingerprints, the thumbprint on GX 32 was not a carbon
based ink. (Tr. 355). Indeed, while Government expert Noblett
testified that the "vast majority" of inks he has examined were
"black fingerprint ink,' the Personalbogen fragment was "a
purplish brown, a non black color." The Government presented
no evidence on whether this unusual ink was used at concentra-
tion camps. Moreover, this peculiar ink shading made analysis
more difficult since carbon based black ink provides greater
contrast with the paper for easier identification. (Tr. 355).
In light of the peculiarly-shaded print, it was of
paramount importance to test the ink to determine its chemical
origins and possibly its date. Government experts conducted no
such tests. Defendant's acknowledged ink expert, Al Lyter,
wanted to but was prevented from conducting an ink test on the
print. Lyter examined the print microscopically to determine
if he could sample the print. He observed an ink-soaked fiber
standing perpendicularly to the paper and could have removed it
without damage. Government counsel barred such a test, citing
the risk to the print's integrity. 29 This concern had no
technical basis. No Government expert could point to any risk
to the print from the removal of one ink-soaked fiber. Since
tests on the print had already been completed, there was no
29/ The prejudice to defendant is not speculative; Lyter testi-
fied that a lone fiber was sufficient for ink analysis.
Moreover, a score of other holes were punched in the docu-
ment for other tests.
risk that removal of one fiber would have made any difference.
The chemical test of the ink, admitted by the Government's
experts to be non-carbon and atypical, was never performed
because the Government would not allow it.
Beyond these problems with the print fragment itself,
doubt remains about how the print got on to the document in the
first place. Neither Oakes nor Noblett had any prior experi-
ence analyzing fingerprints from Soviet documents. Both admit-
ted ignorance as to Soviet printing technology. Noblett, an
expert in mechanical printing methods, conceded that laser
scanning was one method of storing a fingerprint for later
retrieval. (Tr. 356). This method could have been used to
transfer a 25% fragment of a right thumbprint onto the Personal-
bogen. Noblett recognized this possibility when he conceded
that he could not say definitely "one way or the other" whether
the thumbprint had been placed there by human hand or by mechan-
ical means. (Tr. 361-62).
The Government experts knew nothing about the capabil-
ities of foreign print technologies. They could not say defi-
nitely how the print was placed on the paper. This inability,
combined with the small size of the fragment and the peculiar
untested ink, raise continuing doubts. The law requires resolu-
tion of them in Kairys's favor.
h. Promotion order.
GX 38, an untitled order purporting to promote "SS
Wachmann Kairis" (note spelling) to "SS Oberwachman" (also
misspelled), is also flawed. The order is dated August 21,
1942, but the official printer's code indicates the document
was not printed until January 7, 1943. This evidence of post-
dating casts this document, as well as the companion documents
with which it is found, into question.
In the lower left-hand corner of GX 38 is a printer's
code which states: "St. Dzal 7.1.43. 500." These numerals
30
indicate when the document was printed and by what company.
Consequently, the August 21, 1942 promotion, at a minimum five
months prior to the printing of the form, raises doubt.
The Government relies on a speculative explanation
offered by Dr. Wolfgang Scheffler. Dr. Scheffler stated that
such a postdating is explicable under German military procedure.
But Dr. Scheffler has no personal knowledge of any fact in
issue. His sole "expertise" derives from examination of books,
captured documents, and witnesses' testimony in prior cases.
Dr. Scheffler's testimony is hearsay evidence of facts the
Government must prove directly. If such postdating is a common
procedure, the Government is required to provide some evidence,
30/ On cross-examination Purtell named Ordway Hilton's Scien-
tific Examination of Questioned Documents, as an authori-
tative work in the area of questioned documents. (Tr.
941). At page 81 of this work, the author presents a
photograph of a printer's code similar to that appearing
on GX 38 and states:
"Code numbers appearing on printed forms often
give information about the source and date of
printing. In this case the third group of
digits, 31, indicates a 1931 printing."
A copy of page 81 is attached as Appendix A.
such as a witness personally familiar with these filing proce-
dures, or similar postdated documents that are established as
authentic. The testimony of a third-party who was not there
is inadmissible hearsay. Dr. Scheffler has no direct knowl-
edge and did not proffer similar examples of postdating.
Therefore, serious doubt beclouds the authenticity of GX 38 and
prevents its admission into evidence.
31/
i.
Signature analysis.
Six questioned signatures were submitted to handwrit-
ing experts Purtell and Epstein. 32, One signature, on defendant's
31/ Of course, even if the Government proved that some post-
dated documents are authentic, postdating of a particular
document would still be cause for suspicion.
32/ The following table details each signature document with
its corresponding exhibit number and reference number used
by the signature experts in their examination.
QUESTIONED SIGNATURES
Exhibit Number
Reference Number
Description
DX 1
Q1
Defendant's Identity
Card (1941)
GX 40
Q2
Vidaus Reikalu Ministrui
(1940)
GX 41
03
Asmems Zimos (1940)
GX 32
04
Personalbogen (1942)
GX 36
Q5
Dienstverpflichtung
(1942)
GX 37
Q6
Erklarung (1943)
(Footnote continued on following page)
temporary identity card (DX 1), was positively identified as the
known writing of defendant. (See Sec. I,C. infra). Signatures
on the two "Lithuanian documents" (GX 40, GX 41) were not
positively identified by either expert. The final signatures
on the three "Treblinka documents" (GX 32, 36, 37) were not
identified by Purtell because they contained too many differences
from the defendant's known writing. Epstein's identification
of these signatures, in light of all these differences, is
questionable. The Government's attempt to authenticate the
Lithuanian and Treblinka documents by positive signature
identification does not resolve the doubts as required by law.
(Footnote continued from preceding page)
Exhibit Number
Reference Number
Description
KNOWN SIGNATURES
GX 5
Kl
Application for Immigra-
tion Visa (1949)
GX 9
K2
Petition for Naturaliza-
tion (1957)
GX 8
K3
Application to File
Petition for Naturali-
zation (1957)
GX 10
K4
Certificate of Naturali-
zation (1957)
DX 13
K5
Certificate of Discharge
(1949)
DX 4
K6
Lithuanian Passport
(1948)
-45-
The Lithuanian documents, Vidaus Reikalo Ministui
(GX 40) and Asmes Zinios (GX 41), were both signed "L. Kairys. "
Both experts failed to make a positive identification. (Tr.
431 (Epstein); Tr. 892 (Purtell)). As Epstein said:
I felt that those two signatures had various
restrictions in them and I could not reach a
definitive conclusion as it involved those two
signatures.
(Tr. 431). Purtell concluded that if the questioned and known
documents had been written contemporaneously, he would have
been able to eliminate the writer of the Lithuanian documents
as the author of the known. (Tr. 900-01).
There is consequently no connection between the
defendant and the Lithuanian documents. Both GX 40 and GX 41
have defendant's place of birth as Svilionys, when his actual
birthplace is Kaunas. In addition, the birth date given is
over four years earlier than defendant's (DX 1). The conclu-
sion that these documents refer to a different "Kairys" has
solid basis.
Purtell and Epstein reached opposite conclusions on
the GX 32 (Personalbogen), GX 36, and GX 37 signatures. Purtell,
a leading handwriting expert retained by the United States
House of Representatives Select Committee on Assassinations,
was unable to identify these signatures. His conclusion,
standing alone, raises sufficient doubt as to preclude the
documents' admission at trial. In addition, Epstein's analysis
overlooked critical differences in the questioned and known
signatures.
-46-
As Purtell demonstrated, there were at least six
recognizable differences in the questioned signature that
precluded any identification of the writer. These are cata-
logued below.
Capital Letter "L". On all three questioned documents
the capital letter "L" begins with a slight downstroke
before moving up to form a small "o" at the top of
the letter. Conversely, on each known the author begins
the capital "L" by a straight upward movement. (Tr. 907).
Questioned
Known
Q4 (GX 32)
K1 (GX 5)
Knirus Luiobre
Hachninm
Liudas Kairys -
Hychnizm
Q5 (GX 36)
K1 (GX 5)
Luisbic Kainis
P.L. 774.
WACHMANN
Lindao Kairys -
(Signature of applicant)
7 April 1940
Q6 (GX 37)
K5 (DX 13)
TM The BUY pussession OIL ""5"
-
Kainys a. Zusame Lindning
(Signature of Disclarges)
K6 (DX 4)
Lindas Kairys Signatu
ir
-48-
Bowl of the Capital "L." All questioned signatures
have a large bowl at the base of the capital "L."
These bowls are quite high in relation to the height
of the letter. Conversely, in the known writing, the
bowl of the capital "L" is small in relation to the
letter. (Tr. 908).
Questioned
Known
04 (GX 32)
K1 (GX 5)
Kninus Luiobio
Machbinn
Lizdas Kairys- -
Q5 (GX 36)
K1
(GX 5)
recreases P.L. 774.35
Luistin Kairus
Lindas Koriys
1
WACHMANN
(Signature of applicant)
7 April 1940 49
Q6 (GX 37)
K5 (DX 13)
"Y procession are mcgan
Kainys a. Zuzame Lindning
LindaoRDiays (Signature of Discharges)
K6 (DX 4)
Liudas Kairys Signatu
ir
-49-
Small letter "d." II In all questioned documents, the staff
of the small letter "d" is disconnected with the bowl of
the "d." Purtell concluded that after making the bowl of
the letter, the writer picks up the pen and applies a staff
to the right of the bowl. This peculiar style is absent in
the known signatures. The bowl and staff of the "d" are
touching in all four samples. (Tr. 908-09).
Questioned
Known
Q4 (GX 32)
K1 (GX 5)
Kisirus Livio'vio
Lindas Kairys
I
Hachhinn
05
(GX 36)
K1 (GX 5)
Luisbic Kainis
REGISTRAR P.L.774.'
WACHMANN
Lindao Koinys -
(Signature of applicant)
7 April 1940
Q6
(GX 37)
K5 (DX 13)
"Y'Y BIL ""5"
--
Kairys Vor. n. Zusame Linduig
LindroLairys (Signature of Disclasies)
K6 (DX 4)
Liudas Kairys Signatu
ir
-50-
Capital Letter "K." In all questioned signatures the
capital letter "K" begins with an extensive compound
curve. Conversely, K5 and the two K1 signatures begin with
a small hook at the top of the letter. In natural varia-
tion, K6 begins with a small wave that is also unlike the
large compound curves of the questioned signature. In
addition, in the questioned documents, the arm and leg of
the "K" meet above or at the halfway mark of the staff of
the letter. Conversely, in the known documents, the arm
and leg join well below the halfway point on the staff.
(Tr. 909-10).
Questioned
Known
04
(GX 32)
K1
(GX 5)
Knirus Livio'vio
Hachhinn
Liudas Kairys
Q5
(GX 36)
K1 (GX 5)
REGISTRAR P.L.774. TIA.
Swobic Kairys
Lindas Kainys-
WACHMANN
THE
April
(Signature of applicant) 1940
1949
Q6
(GX 37)
K5 (DX 13)
8474 The processions are mgan
1
Kainys Vor- a. Zusame Linding
LindroLDings (Signature of Discharges)
K6
(DX 4)
Liudas Kairys Signatu
ir
-51-
Bottom Leg of Capital "K." In the questioned signatures
the bottom leg of the capital "K" comes straight down to
the baseline. Conversely, in the known writing, the
bottom leg proceeds at an angle from the staff of the leg
to the base of the letter before turning up to begin the
"a." (Tr. 910).
Questioned
Known
04 (GX 32)
K1 (GX 5)
Knirus
Hachnizin
Liudas Kairys
Q5 (GX 36)
K1
(GX 5)
Suishic WACHMANN Rainys
P.L.774.
Lindao Korinys
1
(Signature of applicant)
7 April 1949 1940
Q6
(GX 37)
K5 (DX 13)
"Y'Y are ""5""
Kainys Zusame Livelning
(Signature of Disclarges) gee)
K6 (DX 4)
Liudas Kairys Signatu
ir
-52-
Slope of Writing. Finally, the slopes of the ques-
tioned writing vary widely. The questioned signatures
were: Q-4 68°; Q-5 67°; Q-6 64°. All known samples
were 60° or below: Kl 57°; Kl 58°; K5 58°; K6 60°.
(Tr 911-12).
Purtell stressed that any one unexplained difference
in two writings is enough to eliminate a questioned signature.
(DX 463, p.4; Tr. 890). Accord, A.S. Osborn Questioned
Documents 245 (2d. ed. 1929). The above differences, combined
with the other numerous erasures and tangible flaws, raise
substantial doubt which the law requires be resolved favorably
to defendant.
In contrast to Purtell's methodical analysis, Epstein
asserted from the outset, without qualification, that the
Treblinka documents were signed by the defendant. His testi-
mony reveals that he made a hasty initial decision which had
to be subsequently defended in the light of facts he had over-
looked. The result was a collection of inconsistencies.
When asked to identify the "particularly significant"
factors which supported his identification of the "Treblinka
signatures", Epstein labeled the similarity between capital K's.
As detailed above, however, Purtell stressed the same letter
in illustrating the differences between the known and questioned
signatures. Purtell focused on the compound curve at the
beginning of the "K," the joining of arm and leg of the "K" on
the staff, and the angle of the bottom leg of the "K" as
indications that the signatures were different, not similar.
-53-
Epstein then made a sweeping conclusion that cannot
be substantiated:
The overall letter construction in all of the
signatures is exactly the same as the signatures
appearing on lines 1 through 3 in Government
Exhibit 46.
(Tr. 430). One need only look at the actual letters being
compared to see that Epstein was wrong. At the least, the
beginning of the capital letter "L," the small letter "d," and
the capital letter "K" are quite different in the questioned
signatures when contrasted with the known. Epstein's broad
brush statement that all letter construction is exactly the
same undercuts the credibility of his overall testimony.
Epstein's conclusion that the Lithuanian and Treblinka
signatures were not forgeries is also subject to doubt. In
explaining the principles of handwriting analysis, Epstein
stressed that all natural writing is rapidly written, without
variations created by drawing or tracing:
The basic principles in handwriting examination
are that
the writing must be rapidly
written, it must have the spontaneity and the
careless abandon that we associate with natural
writing. It can't be a drawn or a slowly written
signature where there may be a possibility of
drawing or tracing.
(Tr. 422-23). Later, caught in the difficulty of justifying
his unqualified conclusion, Epstein cited the absence of these
same characteristics as support for his contention that the
signatures were not forged:
Q.
[D]oes that mean you found indications of
an attempt to forge his signature?
A.
No, there were, I did not feel there were
any attempts to forge this signature
-54-
If someone were to try to forge this signa-
ture it would be done in a much more rapid,
natural movement and it would not contain
some of these slow drawn effects.
(Tr. 434). Epstein is thus caught in a classic contradiction:
one signature is genuine because of its free-flowing style and
absence of drawn effects; yet another is genuine because a well
done forgery would have more rapid free-flowing movement and
would not have any slow-drawn effects. Under his approach, no
signature could ever be a forgery.
j. Epstein's conclusions of authenticity.
Epstein's entire testimony must be viewed in light of
his initial failure to detect the numerous erasures on the
Personalbogen. Although he disclaimed such a failure at trial,
his notes and preliminary reports reveal that Purtell's second
deposition was the first time Epstein learned of any erasures
in the Soviet documents. These reports, combined with his
trial testimony, disclose that Epstein came to a hasty conclu-
sion concerning the documents' authenticity. When Purtell came
on the scene, Epstein had to rationalize his initial erroneous
decision and was eventually forced to retreat from it.
Epstein admitted at trial that he has examined similar
Soviet documents in five cases for the Office of Special Inves-
tigations (OSI). (Tr. 486). In none of those cases did Epstein
discover an erasure. 33 He first examined the documents in this
33 This fact itself further undercuts the Government's theory
that GX 32 was first filled out in pencil, erased, and then
(Footnote continued on following page)
-55-
case at the Soviet Embassy in November, 1981. At that time he
reviewed the documents for one hour and fifteen minutes in
conjunction with Dr. Cantu, Larry Stewart and Nancy Kramp. On
the basis of this short review he formed his opinion of authen-
ticity.
Epstein conceded at trial that a basic foundation for
any opinion of authenticity is the presence or absence of
erasures. (Tr. 479). Yet, when Epstein drafted his initial
conclusions, which he himself termed "critical" to the case, he
stated:
Examination of exhibits Q(2-6) [GX 40, 41, 32,
36, 37] failed to reveal any indications of
mechanical or chemical erasures, interlineations
or substitution.
(DX 125). This preliminary draft is dated March 26, 1982.
Epstein thus reached his opinion without knowledge of what he
would later characterize as erasures. (Tr. 453).
This state of mind continued through March 31, 1982
when Epstein's final report to Norman Moscowitz stated:
Examination of exhibits Q(2-6), failed to reveal
any indications of mechanical or chemical eras-
ures, interlineations or substitutions.
(DX 126). The identical language is repeated in the Govern-
ment's Rule 26 report to defendant. (DX 124, p.2). As of May 5,
the date of his Rule 26 report, one month prior to the
(Footnote continued from preceding page)
typed over. If this procedure was a common practice among
military clerks, surely similar documents would exist to
substantiate such a claim. The Government has produced
none. The inference favorable to defendant is that none
exists.
-56-
beginning of trial, and twenty-one months after commencing this
proceeding, Epstein and the Government had no knowledge of the
numerous erasures, interlineations, and inconsistences in the
Soviet documents.
David Purtell, the first outside questioned document
examiner ever to appear in a case of this kind, examined the
documents at the Soviet Embassy. Epstein was present at Purtell's
deposition when he testified about the erasures Epstein had over-
looked. As a result, the parties agreed to have both experts
reexamine the documents at Epstein's office in an attempt to
decipher the erasures. (Tr. 979). It was only on this second
examination that Epstein saw the problem himself. His subsequent
writings and testimony are an after-the-fact attempt to rational-
ize his initial conclusion. Eventually, Epstein conceded the
inaccuracy of his earlier reports. (Tr. 484).
Epstein stated initially that this first examination
was simply "to see whether alterations or erasures on the
document changed the final product of the document." (Tr. 439).
Although his preliminary report, final report, and Rule 26
report all stated categorically that there were no indications
of any "mechanical or chemical erasures, interlineations or
substitutions, " he explained at trial that what he really meant
was:
I found no alterations, substitutions or erasures
that I felt were, had anything to do with the
final product.
(Tr. 439). This rationalization deserves no credit. The
language of the preliminary and final reports is clear and
-57-
unequivocal. Epstein's strained attempt to avoid his prior
unqualified conclusion shows the importance of the erasures.
Rather than admit any error, Epstein tried to ratio-
nalize his initial opinions by noting the erasures were "obvious."
He went so far as to say:
I felt that the type of remnants and erasures
that were present added to the authenticity of
the document rather than to any suspicious
nature that might have caused the document to be
non genuine.
(Tr. 453). If Epstein really felt that the fifteen erasures,
unexplained pencil remnants, and a torn-off picture, added to
the authenticity of the document, he would have included those
indicia of authenticity in his initial reports. No such refer-
ence was made.
His final conclusion is also inconsistent with his
prior testimony. As discussed above, Epstein finally concluded
that there were no alterations, substitutions, or erasures that
had anything to do with the final product of the document.
Yet, at trial, Epstein admitted that he found pencil remnants
he could not explain (Tr. 488), and erasures on the Personal-
bogen where there was not any typing over. Epstein admits to
both these facts but still persists in his conclusion that
there were no alterations that caused the documents to be
suspect. His contention that unexplainable pencil strokes and
"obvious" erasures that have no corresponding typing do not
cause a document to be suspect marks him as an advocate defend-
ing a preconceived position, not an independent expert.
Epstein also failed to mention that the picture on
GX 32 may have been removed. This possibility was conceded by
-58-
Dr. Cantu, and Gerald Richards, the Government's other experts.
(Tr. 558 (Cantu); Tr. 383 (Richards) ) A thorough, objective
report would have at least mentioned this, along with the
distorted printing on the reverse side of the Personalbogen, if
only to attempt to explain their existence. The unexplained
print character and the peculiar characteristics on the Personal-
bogen photo also went unmentioned by Epstein.
Finally, during cross-examination, Epstein conceded
the mistake of his initial reports when he was asked about the
blatant inconsistency between his final report and his trial
testimony:
Q.
In your carefully selected words, though,
you didn't say that your examination, your
scientific examination failed to reveal any
indications of erasures that affected the
document. You just flatly unqualifiedly
said failed to reveal any indication of
erasures, didn't you.
A.
And if I were to write it again, I would be
sure that I would qualify that portion,
(Tr. 484). This admission undermines Epstein's conclusions
and marks his earlier rationalizations as the arguments of an
advocate.
k. Purtell's conclusions.
In contrast to Epstein's unyielding, often incorrect,
conclusions, Purtell objectively reported what the documents
presented. At trial, Purtell painstakingly explained each
document and both identified indicia of inauthenticity and
conceded indicia of authenticity. Purtell's analysis revealed
the inconsistencies in the Personalbogen and other Soviet
documents that are catalogued above. In his signature analysis,
-59-
Purtell methodically illustrated the many differences between
the questioned and known signatures for the Court. Purtell's
expertise in this area is highlighted by the reliance the
United States House of Representatives Select Committee on
Assassinations placed on him.
Recognizing his neutrality and expertise, the Govern-
ment emphasizes that Purtell did not conclude the documents
were inauthentic. This is correct. But neither did he con-
clude they were authentic. Purtell's ultimate conclusion on
the Government's most critical document, the Personalbogen, is
instructive:
Q. Now, I want to get your final conclusions
as to GX 32, because this is a very impor-
tant document in this case
[B]ased
on your tests, your analysis, your examina-
tions, it is your expert opinion as an
expert for the defense that the probabili-
ties of GX 32 being authentic are the same
as the probabilities of it being inauthen-
tic, is that correct?
A. I --
Q.
Didn't you testify that way in your deposi-
tion?
A. Yes.
Q.
So that is your conclusion?
A. Right.
(Tr. 998). Purtell's final conclusion was that he could not
say one way or another. 34/ He recognized not only a 50%
34/ Government counsel went on to ask whether Purtell's con-
clusion was "tipped" toward inauthenticity by the hypo-
thetical results of the fingerprint and pen and ink experts.
The hypothetical addressed to Purtell seriously misstated
(Footnote continued on following page)
-60-
possibility of authenticity but also a 50% possibility of inau-
thenticity. This substantial doubt about the most critical docu-
ments in the Government's case must be resolved in Kairys's favor.
The testimony of Wolfgang Scheffler contributes
nothing to the Government's claim of authenticity for the
Soviet documents. The Government argues that Scheffler "con-
cluded, based on his familiarity with German personnel files,
that [the documents] appear genuine (Scheffler Dep. [DX 535],
pp. 169-79) (Gov't Br. 44). The actual record does not
support this Government overstatement:
Q. [By Mr. Moscowitz:] Doctor Scheffler,
based on you examination of the documents
do you have an opinion as to whether these
documents are authentic?
[objection]
A.
I have not found anything which would lead
me to hold the opinion that it could be in
any way be falsified or manipulated. I
named my considerations before that I made
when occupying myself with documents. One
could, of course, enlarge on that but I am
not under the impression that I would come
to the conclusion that this were a falsi-
fied paper.
(DX 535, pp. 169-70). Dr. Scheffler did not testify that the
documents "appear genuine." He simply had not "found" anything
(Footnote continued from preceding page)
the facts of this case. (See Section I, B, 1, g, supra
(discussion of fingerprint)) Moreover, Dr. Cantu's ink
and paper analysis revealed that he could not say the
documents were authentic (Tr. 546), nor would he state when
the ink was made (Tr. 546). Importantly, Dr. Cantu could
not rule out the possibility that the ink was placed on the
documents in the early 1970's. (Tr. 547). These conclusions,
not presented in the Government's hypothetical to Purtell,
hardly "tip the scales" toward inauthenticity.
-61-
indicating lack of genuineness. 35/ Because Dr. Scheffler's
Scheffler's "negative assurance" does not amount to evidence of
authenticity, it provides no support for the admission of the
Soviet documents.
Serious questions remain about the authenticity of
the Government's "critical" Soviet documents. The Government's
experts could not put those doubts to rest. As a result,
there remains a "troubling doubt" which bars the documents'
admission in evidence. Baumgartner, 322 U.S. at 670.
2.
The Federal Rules of Evidence bar admission
of Soviet documents.
The Soviet documents are not authentic under the
requirements of the Federal Rules of Evidence. Even if authen-
tic, they are inadmissible hearsay.
a.
The Soviet papers are not "ancient
documents" under Federal Rule of
Evidence 901 (b) (8).
Federal Rule of Evidence 901( (a) conditions admis-
sibility of all documents on authenticity. 36/ Only a small
class of material can be authenticated as ancient documents
under Rule 901 (b) (8) :
35/ As the Government points out, Scheffler examined only
"copies" of the documents. (Gov't Br. 44). Perhaps if he
had seen the originals, he would have "found" the era-
sures, interlineations, and fiber disturbances which
infect the documents. As it was, he never identified
those anomalies. His limited negative assurance of gen-
uineness carries even less weight in light of his cursory
examination.
36 Documents that have been authenticated are still subject
to hearsay and other challenges. United States V. One
1968 Piper Navajo Twin Engine Aircraft, 594 F.2d 1040 (5th
Cir. 1979). See Section I, B, 2, infra.
-62-
Ancient documents or data compilation. Evidence
that a document or data compilation, in any
form, (A) is in such condition as to create no
suspicion concerning its authenticity, (B) was
in a place where it, if authentic, would likely
be, and (C) has been in existence 20 years or
more at the time it is offered.
As the preceding discussion (Section I, B, 1) illustrates, the
Personalbogen (GX 32), Dienstverpflichtung (GX 36), Erklarung
(GX 37), Vidaus Reikalu Ministrui (GX 40), Asmens Zinios (GX 41),
Promotion Order (GX 38) all contain suspicious inconsistencies
and therefore cannot qualify as ancient documents under 901 (b) (8).
Likewise, the other Soviet documents proffered by the Government
are inadmissible since there is no testimony as to how or when
the documents were created, how they fell into the hands of the
37/
Soviet Union, or who possessed them from 1940 to 1982.
37/ Contrary to Government assertion, these documents are not
in evidence at this time. The Court made clear repeatedly
that questions of admissibility for foreign documents was
subject to briefing by the parties. See, e.g., Tr. 177,
195-96. This class of documents consists of: GX 14
(Zajanckauskas Trawniki Personalbogen) ; GX 15 (Zajanckauskas
Dienstverpflichtung) ; GX 16 (Zajanckauskas Promotion,
10/9/42) ; GX 17 (Zajanckauskas Promotion, 1/20/43) ; GX 18
(Zajanckauskas Promotion, 1/19/44) ; GX 19 (Amanaviczius
Trawniki Personalbogen) ; GX 20 (Amanaviczius Dienstver-
pflictung) ; GX 21 (Amanaviczius Erklarung) ; GX 22
(Amanaviczius Promotion) ; GX 23 (Baltschys Trawniki
Personalbogen) ; GX 24 (Baltschys Dienstverpflichtung) ; GX 25
(Baltschys Erklarung); GX 26 (Baltschys Promotion) ; GX 39
(Ubergabverhandlung) ; GX 42 (Pazymejimas) ; GX 43 (Liudvikas
Kairys Citizenship Certificate) ; GX 44 (Baptismal Certificate
1/1/21) ; GX 52 (Swidersky Trawniki Personalbogen) ; GX 53
(Swidersky Dienstverpflichtung) ; GX 54 (Swidersky Erklarung);
GX 55 (Swidersky Promotion) i GX 56, Reimer Trawniki
Personalbogen; GX 57 (Reimer Dienstverpflichtung) ; GX 58
(Reimer Promotion) ; GX 65 (Letter of SS Obersturmbannfuehrer
Muller) ; GX 66 (Excerpt of Monthly Report of German Military
Government 2/16-3/15/43) i GX 67 (SS Report).
-63-
Federal Rule 901(b)(8) requires that any ancient
document must be "in such condition as to create no suspicion
concerning its authenticity. ,38/ The Personalbogen cannot
satisfy this requirement. Two expert document examiners testi-
fied that the document is riddled with erasures and several
experts concluded that the picture may have been removed. The
Dienstverpflichtung, Erklarung and promotion order are similarly
suspicious. The Erklarung and Dienstverpflichtung both have
fiber disturbances throughout the signature, while the promotion
order is clearly backdated by at least five months. As Judge
Weinstein notes, this suspicious condition prevents a finding
of authenticity:
A document is not free of suspicion if it appears
that part of the document was written at a time
later than that alleged for the whole, or if it
appears that the document has been forged,
altered or tampered with.
5 Weinstein & Berger, Weinstein's Evidence, 901 (b) (8) [01] at
901-101-02. See also 7 Wigmore, Evidence § 2140 at 728 (Chadborn
Ed. 1974). Cf. McGuire V. Blount, 199 U.S. 142, 145 (1905)
(ancient documents admitted because "There is nothing about
them to suggest that they have been forged as tampered with.
38/ The emanation of these critical documents from the Soviet
Union creates a substantial doubt concerning their authen-
ticity. Imants Lesinskis, a defector from the KGB,
testified that the Soviets used forged and falsified
documents to attack Baltic emigres inimical to the Soviet
regime as Nazi "war criminals.' (DX 537, pp.27-28). He
further testified that a man in Kairys's position would be
a "prime target" of such a Soviet effort. (DX 537,
pp.34-35). The Soviet documents against Kairys surfaced
in the midst of what Congress termed the Soviet "forgery
offensive." (DX 14).
-64-
They present an honest as well as ancient appearance and come
from official custody.").
Moreover, the Personalbogen contains numerous mis-
spellings and erroneous background data. These alone perclude
employment of the ancient document rule. In Apo V. Dillingham
Investment Corporation, 440 P.2d 965, 50 Hw. 369 (s.ct. Hw.
1968), the Court refused to authenticate a 1881 deed because
the grantor's name was in parentheses and misspelled. (440
P.2d at 967). Similarly, the information on the Asmens Zinios
and Vidaus Reikalu Ministrui is flatly contradicted by the
defendant's identity card and consequently suspicious.
The numerous other Soviet documents proffered by the
Government cannot satisfy the second requirement of Rule
901(b)(8); namely, that they were in a place where, if authen-
tic, they would likely be. The majority of these documents
purport to be German World War II records. Yet, inexplicably
they came into Soviet hands and, after a thirty-year hiatus,
only surfaced again in the late 1970's.
The Government's story to substantiate Soviet custody
is that these documents may have been loaded on a train by the
Germans at the end of World War II and this train may have been
captured by the advancing Russian army. (Gov't Br. 42). This
theory is unsupported by testimony from any of the custodians
of the documents. Such testimony is required, as the Court in
Wright V. Hull, 83 Ohio St. 385, 94 N.E. 813, (1911) explained:
"In order to render it [a debt instrument] admissible as evidence,
there must be at least some evidence accounting for its custody
-65-
and that it was produced from the proper custody." 94 N.E. at 815.
In fact, the only witness with any personal knowledge, Imants
Lesinkis, testified that the KGB admitted possessing no
archives of documents incriminating Baltic emigres as Nazi
"war criminals." (DX 537, pp. 28-29). The appearance of the
"Kairys" documents in the Soviet archives has never been
adequately explained.
In a similar context, the Court in Sage V. Dayton
Coal & Iron Co., 148 Tenn. 1, 251 S.W. 780, (1922), refused to
find a land contract authentic, even though the present custodian
was proper and the document appeared authentic on its face. As
the court stressed, there was an evidentiary gap in the custody
of the document that precluded authentication:
The serious question is: When and how did Col.
Norwood come into the possession of this paper
and is there any evidence to connect his posses-
sion thereof with the Shannons so as to make him
its proper custodian?
We have searched the record with great care
and have been unable to find any evidence to
support this contention. There is absolutely no
evidence as to when or how this instrument came
into the possession of Col. Norwood
The
record is absolutely silent as to the custody of
this deed from 1853 until it was seen in the
possession of Col. Norwood in 1879
(251 S.W.2d at 783). Similarly, the record is silent on how
these purported German military documents fell into the hands
of Soviet officials. See also, Rio Bruno Oil Co. V. Statey
Oil Co., 138 Tex. 198, 158 S.W.2d 293 (1942) (land deed excluded
absent showing of proper custody).
-66-
Nor are the Soviet documents proffered by the Government
"self-authenticating" under Rule 902 (3) and (4) 39 / As the
final sentence of 902(3) and its precursor, Federal Rule of Civil
Procedure (a) (2) illustrate, the central concern with foreign
documents is authenticity. When, after examination by the
experts of both sides, the authenticity is still in issue, the
short-cut of self-authentication cannot be employed. Cf.
Linnas, 527 F.Supp. 426 (Soviet documents authenticated under
Rule 902 (3) only after the documents were proved to be "authentic
and unaltered").
Moreover, the circumstances in which the Soviet
documents arose creates suspicion as to authenticity. The
charges against defendant first appeared in the Communist Party
organ Tiesa and were subsequently picked up by the western
press. This is a standard method of Soviet disinformation. (DX
14). That the Soviet Union would hold such documents in secrecy
for over thirty years strains belief. Their resurfacing at this
time creates further suspicion as to their genuineness. In
United States V. Regner, 677 F.2d 754 9th Cir. (1982), the Ninth
Circuit found the records of a Hungarian-owned taxicab company
39 Similarly these documents are not authentic under the
Public Records exception of Rule 901(b)(7). As Judge
Weinstein points out, this Rule refers only to records
from "federal, state, or local or other public offices."
5 Weinstein & Berger, Weinstein's Evidence, 1(901(b)(7)[01]
901-94-95. Consequently, only domestic public records can
be authenticated under this provision.
-67-
authentic under Rule 901(3) only after concluding that Hungarian
officials had no animus against an ex-Hungarian citizen:
The record, however, is devoid of any evidence
that the particular Hungarian officials harbored
any ill will against Regner or that they were
brazed or prejudiced against him or would be
motivated to prepare false documents. Without
such facts, we are in no position to conclude
that every document executed by public officials
of communist countries is a fabrication and
presumptively unreliable.
(677 F.2d at 754). Such evidence does exist in this case.
Defendant is a leader of the independent Lithuanian community.
(Tr. 1065-66). His father fought in the war of Lithuanian
Independence against the Russians. He was editor-in-chief of a
Lithuanian cultural magazine which focused exclusively on pre-
serving the memory of a Lithuania free from Soviet oppression.
(Tr. 1067). All of these activities are anathema to the Soviet
Union. As Lesinkas testified, defendant is a "prime target" for
such mischief. (DX 537, pp.34-35). Consequently, the Soviet
documents cannot be ruled self-authenticating under Rule 901.
b. Even if authentic, the Soviet docu-
ments are inadmissible hearsay.
The Government argues that the "Trawniki documents"
(GX 32, GX 36, GX 37) are admissible as a party admission under
Rule 801 (d) (2) (A) because they purportedly bear defendant's
signature. As the previous discussion details, however, these
documents do not refer to defendant. In no way can they consti-
tute a party admission.
Quite simply, there is no link between the documents
and defendant. Absent this nexus, the party admission principle
-68-
of 801 (d) (2) (1) cannot apply. As Judge Weinstein emphasizes,
for Rule 801 (d) (2) to apply it is essential that all "admissions"
be made by the party. 4 Weinstein & Berger, Weinstein's Evidence,
T801 (d) (2) (A) [01] at 801-42 ("All that is required is that the
statements have been made by the party.' ").
Even if Kairys's actual signature and thumbprint were
on these documents (which is disputed), the documents would
still not qualify as "admissions." An admission must be a
party's "own statement" or one "of which he has manifested his
adoption or belief in its truth." Fed.R.Evid. 801 (d) (2) (A) - (B).
There is no evidence that the statements on the documents are
Kairys's "own" or that he ever "manifested his adoption or belief
in [their] truth." In fact, even assuming that the documents are
"authentic," they contain statements (e.g., dates and places of
service) that necessarily were added after any signature or
thumbprint were affixed. These statements perforce cannot
qualify as "admissions."
The Government next argues that the transfer list and
promotion order, referring to a "Kairis" (note spelling) are
admissible as an exception to the hearsay rule for ancient
documents. For a document to overcome the hearsey rule as an
ancient document, however, it must first be authenticated as an
ancient document under 901 (b) (8). Connecticut Light & Power Co. V.
Federal Power Commission, 557 F.2d 349 (2d Cir. 1977) (ancient
documents are only admitted into evidence as an exception to
the hearsay rule if "generally considered authentic"), quoting,
Montana Power Co. V. Federal Power Commission, 185 F.2d 491, 498
-69-
(D.C.Cir. 1950). Neither the promotion order nor transfer
sheet can be authenticated. Both misspell defendant's name:
The back dating of the promotion order and custody of both
documents also raise suspicion. This alone bars authenticity
under 901(b)(8). (See Section I,B,2,a, supra).
Finally, the Government asserts that the Soviet docu-
ments constitute "public records and reports" and are thereby
admissible under Rule 803(8). The Government cannot get to first
base on this claim. Rule 803(8) limits admissibility to docu-
ments of "public offices or agencies." As Dr. Scheffer testified,
the operations of the SS and its records were secret. (DX 535,
pp.161-62). The Government also claims that the existence of
several similar personnel files confirms that the records were
regularly kept and accurate. 40 The face of the Personalbogen
belies this assertion. Even according to the Government's
story, there are numerous misspellings including place and
county of birth and languages spoken. The undisputed existence
of at least eleven erasures throughout the form undercuts the
assertion that such records were accurately kept.
In addition, admission of public records under Rule
803(8), like business records under Rule 803(6), should be
supported by testimony of the records custodian or other qualified
40 The Government conveniently overlooks the fact that the
Trawniki personnel records it sponsored in the Demjanjuk
case bear no resemblance to the "Kairys" Personalbogen,
GX 32. Not only are the forms completely different, but
GX 32 lacks the stamps, seals, and signatures featured
prominently in the Demjanjuk documents. Compare GX 32 with
DX 370, 371. Moreover, the "Kairys' Trawniki documents also
lack the stamps and signatures which appear on Zajanckanskas's
documents. See GX 15-18.
-70-
witness.
41/
Such foundation testimony is necessary to substan-
tiate the record keeper's duty of accuracy. Cf. E.C. Ernst,
Inc. V. Koppers, Co., 626 F.2d 324 (3d Cir. 1980) (proper founda-
tion under 803 (6) where custodian of records testified that he
helped prepare sheets, they were checked for accuracy, and that
this was done routinely). Dr. Scheffler could not provide such
a foundation. He had no personal knowledge of the record
keeping procedures. Moreover, he lacked even "expert"
knowledge. He conceded that he had never read documents or
regulations concerning the creation and maintenance of Trawniki
personnel documents. (DX 535, pp.154-56). The Government
thus failed to lay an adequate foundation for the admission of
the Trawniki personnel files as "public" or "business" records.
They must, therefore, be excluded.
C.
Defendant's Identity Card (DX 1) Substantiates
his Whereabouts During World War II, is
Authentic and Reliable.
All experts agree that defendant's known signature
appears on DX 1. Unlike the Soviet documents, the card contains
no alterations, substitutions, or interlineations. The document
correctly describes defendant's physical characteristics and
contains defendant's admitted photograph. Moreover, the identity
41/ Courts construe the business records exception of 803 (6)
in substantial overlap with the public records exception
of 803 (8). United States V. Oates, 560 F.2d 45 (2d Cir.
1977) ; United States V. Smith, 521 F.2d 957 (D.C.Cir.
1975).
-71-
card substantiates defendant's personal history and corroborates
his presence in Radviliskis and Vainutas, Lithuania during
World War II.
Neither Purtell nor Epstein found any evidence to
dispute the authenticity of the identity card. As Purtell
stated in his final report of May 24, 1982:
The document contains no signs of mechanical of
[sic] liquid erasures, nor signs of alterations
or substitutions. The paper has the wear charac-
teristics of an old well handled document.
(DX 463 pp.2-3). Epstein's reports substantiate this
conclusion.
42/
The identity card was further corroborated by evidence
showing that such cards were carried by all Lithuanian citizens.
Bronius Kviklys, a Secretary for the central office of the
Lithuanian Police Department from 1941 to 1942, explained that
from 1919 to 1939 all Lithuanian citizens carried a Lithuanian
passport. (Tr. 1072). In 1939, the central office began
issuing temporary identity cards as surrogate identification
until more passports could be printed. This procedure was
abandoned during the Bolshevik takeover but started again with
the German occupation in 1941. (Tr. 1072-73).
Due to a shortage of paper during the German occupa-
tion, the central office of the police department directed
42/ See 11/4/81 Preliminary Notes (DX 123) ("the document has
not been altered by either mechanical or liquid eradica-
tion"); 3/26/82 notes (DX 125) ("the document bears no
visual signs of mechanical or chemical erasures") i 3/31/82
Final Report (DX 126) (same). In regard to the clinical
tests on paper and ink, Dr. Cantu could also not find any
evidence to indicate that the temporary identity card is
not authentic. (Tr. 560).
-72-
local communities to issue their own identity documents.
Consequently, each local police precinct developed a separate
form which, because paper was scarce in local communities as
well, often appeared on different types of paper. (Tr. 1074).
While the form of the document and the paper on which it was
printed would vary, Kviklys explained that the central police
office would issue identical residence registration stamps to
the different locales:
Q.
Where did these [residence registration]
stamps come from?
A.
The central office of the Police Department
used to order stamps for the entire police
precincts in Lithuania, usually more than
300 of them.
(Tr. 1076-77).
These identity papers were presented by the bearer to
the officials in each village when the person switched resi-
dences. Defendant's card was issued in Radviliskis on August 7,
1941 and as the reverse side reveals, he resided in that town
until May, 1942. At that time, he moved to Vainutas, as a
second stamp on the back of the document attests. Kviklys
affirmed that there were police stations in both Radviliskis
(ten to twelve policemen) and Vainutas (three). (Tr. 1077).
Unlike the Government's "very important" Personalbogen
photo, the picture on the identity card is conceded to be
defendant's. There is no indication it was not on the original
document in 1942. As Epstein's notes of November 4, 1981 state:
"There was no evidence of photo substatution [sic] and the wet
stamp impressions over the photograph and page fit as expected."
-73-
(DX 123, p.1). Purtell reinforced this conclusion when he
testified that the signature was placed on the identity card
after the picture was affixed to the document. (Tr. 919). As
Purtell concluded, a telltale dot of ink on the bottom edge of
the picture revealed that it was placed on the document before
the signature:
Q.
Did you try to determine whether the signa-
ture was put on before or after the photo-
graph was put on?
A. Yes.
Q.
What did you find out when you did that?
*
*
*
A.
Only on the capital letter K, the right
arm, there is a spot of ink that touched
the photograph when the letter was written.
It shows that the photograph was on before
the signature was written.
(Tr. 918-19). This tangible evidence demonstrates the identity
card is an original unaltered document and bears the information
that was first placed on the document.
43/
The identity card also depicts defendant's physical
characteristics. It states correctly that defendant's eyes are
blue and hair dark. It substantiates defendant's testimony that
he was born in Kaunas, Lithuania on December 20, 1924. (The
document reveals that this information was also cross-checked with
the birth registry in Kaunas.) These vital statistics contradict
43 / In this regard, Epstein emphasized that the card "was
made out from blank for information that is presently
contained on it. " (DX 123, p.2) Importantly, Epstein
does not make this conclusion about any of the Soviet
documents.
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the data on the Soviet's Asmens Zinios (GX 41) and Vidaus
Reikalu Ministrui (GX 40), two documents with signatures that
neither expert could identify.
Finally, both experts agreed that the signature on
the identity card is a known signature of defendant. Epstein
concluded that "there is no doubt that the [DX 1] signature was
made by the writer of the known Kairys signatures that are
available for examination." (DX 123, p.1). In comparing the
known signatures with the identity card, Purtell concluded
there were no significant differences. (Tr. 913).
In the face of this tangible proof of authenticity,
the Government asserts that defendant somehow forged this
document after the war and submitted it to immigration officials
44/
as a genuine article.
Defendant's identity card has two residential regis-
tration stamps on the reverse side. The Government asserts
that both stamps are identical and thus must have been forged.
The Government's speculation that the residential stamps are
"identical" is not supported by any expert testimony. This
subject was never even addressed by either expert. Moreover,
44, This rationale for exculpatory evidence was employed by
the Government in a prior Seventh Circuit case and
rejected. See United States V. Walus, 616 F.2d at 283,
297.
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Kviklys testified that, with some exceptions, the same residen-
tial stamp design was used by different towns.
45/
Additional stamps on the identity card from the
municipalities of Radviliskis and Vainutas reinforce the
document's authenticity. The Government argues that these
stamps were made by some unknown "German stamp engraver" at
some unknown time, in some unknown locale. The Government has
no proof to support these claims. In contrast, defendant did
adduce evidence that the Radviliskis stamp designs are identical
to that of other known Radviliskis stamps (DX 520, DX 521).
A comparison of the design reveals:
45/ Kviklys' precise testimony was:
"Q. Mr. Kviklys, listen to my question. The
stamps you are saying are the police regis-
tration stamps are these two rectangular
stamps on the back of the document, is that
correct?
A.
Yeah, this is correct. This is for --
Q. Okay.
A.
-- This is, this is most of the time they
used to be same type of stamps for the whole
Lithuania, but there were some exceptions
when they used to make up their own stamps."
(Tr. 1084).
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Miesto
Miesto
DEPARTMENT
DX 1 Radviliskis
DX 520
DX 521
Defendant's expert could not state that the designs were iden-
tical because the stamps were smudged during application. (Tr.
921). Examination of the exhibits does reveal the very similar
designs. Such similarity is not the work of a speculative
faceless, nameless, dateless "German Stamp Engraver."
The Government next asserts the document must be a
forgery because the identification picture depicts defendant
with his head turned slightly. The prosecution refers to other
temporary identity cards produced by defendant, and argues that
all other pictures were taken head on. The Government's asser-
tion is not accurate. Purtell did not testify that all identity
cards produced by defendant had full-faced photographs. Rather
his testimony was:
Q.
Isn't it true, Mr. Purtell, that the vast,
vast majority of those documents, the
pictures on those documents appearing as
Defense Exhibit 259 are, indeed, full face?
A.
I remember going through them in the depo-
sition, just handling them most of them
were full-faced photographs, yes.
(Tr. 1005).
Mr. Kviklys testified that during World War II the
temporary identity card was often issued with angled photo-
graphs and, at times, with no photograph at all. (Tr. 1093).
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Significantly, there is no dispute that the temporary identity
card does depict defendant. Both ears are not showing, but
during World War II in Lithuania, photographs were scarce and
proper photographic techniques were not common. As Kviklys
stated succintly:
A.
(In English) Is wartime. You Americans,
you cannot understand what is wartime.
(Tr. 1093).
The Government also asserts that two 1946 regis-
tration papers (GX 123, GX 124) from the town of Wiesent, Germany
reveal that defendant did not have an identity card with him at
that time. The Government argues that because there is no listing
of identification papers on the form, the defendant must have
obtained the identity card at some time after 1946.
This theory has several flaws. First, review of the
registration forms reveals that much of the requested informa-
tion was not transcribed onto the forms. The entrance papers
contain no response to questions concerning prior residence,
military history, city of last registration, husband's
parents, and family history. The exit form also contains
several omissions. Clearly, the Wiesent, Germany residence
registration forms were not prepared carefully. The lack of an
entry in response to the question for identification papers is
consistent with these several other omissions.
Moreover, there is doubt that these 1946 residence
forms even refer to defendant. They are not signed, although
the copy defendant received from the Government appears to have
some writing near the signature area. In addition, the entrance
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form contains an improper birth date for defendant and even
different from the Government's contentions. If these forms
do refer to defendant, the birth date error alone reveals the
haphazard manner in which the forms were created.
The Government introduced no testimony to support the
Wiesent documents. The form was transcribed from an oral
interview. There is no assurance that defendant, or the person
to whom the document refers, ever reviewed the answers to
determine their accuracy. Without any foundation testimony to
provide some context to these papers, they mean nothing.
Finally, Epstein testified that the temporary identity
card signature, while definitely Kairys' known signature, was
"in some very small respects" closer to the late 1940's signa-
tures of defendant. (Tr. 459). This, the Government argues,
supports the conclusion that the identity card was prepared in
the late 1940's. Epstein's equivocal conclusion is based on an
erroneous comparison of the early 1940's questioned signatures
with the known documents. (Tr. 459-60). Purtell expressly
denounced such tactics. (Tr. 992). Epstein's uncertain
opinion, therefore, cannot be credited.
Epstein's November 4, 1981 notes (DX 123), March 26,
1982 draft report (DX 125), and final report (DX 126), state
only that the signature on the identity card is the known
signature of Liudas Kairys. There is no mention of a greater
similarity between the DX 1 signature and the late 1940's
writing. The first reference to dating the identity card
signature was in the Government's Rule 26 Report to defendant
on May 5, 1982. (DX 124). At trial, Epstein explained that
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once he concluded the questioned documents contained defendant's
signature, he treated those signatures as known and compared
them with the identity card signature:
[T] hose three signatures [GX 32, 36, 37] I have
already been identified as being done by Kairys
and are, in my examination, known signatures now.
Although they are still a question to the Court
I have identified them and I can use the varia-
tion that exists within those three signatures
in my comparison in conjunction with the knowns.
(Tr. 459-60).
By taking a questioned signature, identifying it, and
then treating it as a known signature by which to compare other
questioned signatures, Epstein commits the ultimate bootstrap of
signature analysis. Under these tactics a questioned signature
can become the basis for identifying another questioned signature
ad infinitum. Moreover, as Purtell unequivocally stated, a
questioned signature can never be used to prove another ques-
tioned signature:
Q.
In your opinion, is it proper in the science
of questioned handwritings to have two sets
of questioned documents and make a deter-
mination that one set, because of certain
comparisons, is known, not questioned, and
then use the set which it was once questioned
and now is concluded to be known as a means
for a comparison with still further unknown
documents, is that proper?
A.
Any one questioned document remains a
questioned document in your examination.
Q.
Why is that, Mr. Purtell?
A.
Because you can't use a questioned document
to prove another questioned document.
(Tr. 922). That is, of course, exactly what Epstein did when
he treated the early 1940's documents as a known writing.
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Most importantly, Epstein's determination concerning
the dating of the personal identity and signature is extremely
tentative. He cannot state with any degree of scientific
certainty, indeed any certainty at all, when the temporary
identity card was signed. (Tr. 464, 467).
The Government asserts that even if the temporary
identity card were authentic, it would not provide an alibi for
Kairys. The temporary identity card most certainly does
substantiate defendant's alibi. Initially, the identity card
flatly contradicts the Soviet documents on such crucial areas
as age, birth date, birth place, hair and eye color. Moreover,
defendant was in Vainutas, Lithuania commencing on May 15, 1942
as the stamp on the reverse side of the document attests.
Defendant remained in Vainutas for the balance of the summer of
1942, before he was captured and interned at Hammerstein.
Consequently, the June 17, 1942 date appearing on the Personal-
bogen cannot refer to the defendant.
*
*
*
The Government's evidence fell far short of the
required "clear, unequivocal, and convincing evidence that
does not leave the issue in doubt" that defendant ever served
in the SS Wachmannschaft. Its "identifications" turned on
questionable use of a questionable photograph. Its "critical"
documents turned out to be riddled with erasures, interlinea-
tions, and inconsistencies. In a matter of this importance,
a conviction cannot rest on such shaky evidence. These substan-
tial doubts on the basic issue of identification require dis-
missal of the Government's case.
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II. THE GOVERNMENT FAILED TO PROVE, AS REQUIRED
UNDER COUNT I, THAT KAIRYS MISREPRESENTED OR
CONCEALED MATERIAL FACTS DURING THE
IMMIGRATION AND NATURALIZATION PROCESS.
Count I required the Government to prove Kairys's
knowing, intentional misrepresentation or concealment of mate-
rial facts during the immigration and naturalization process.
46/
The Government's scant evidence fails to establish that Kairys
was ever asked or required to disclose concentration camp
service. Moreover, it similarly failed to prove that the few
inaccuracies on the relevant forms are either "material" or
sufficient to support an inference, much less a finding, of
"willful" misrepresentation or concealment.
A.
The Government Offered no Evidence
Regarding Kairys's Dealings with the
International Refugee Organization.
After World War II, millions of war refugees found
their way to areas occupied by the Western Allies. (Tr. 639
(Curry)). As Government witness Curry explained, for refugees
like Kairys who wished to migrate to the United States under
the Displaced Persons Act, the first stop was the International
Refugee Organization ("IRO"). (Tr. 640-41. ) 47 At the IRO, the
would-be immigrant was given a questionnaire -- entitled the
"CM/1" form or "Fragebogen" -- to set forth his personal history
46, The Supreme Court has stated that, for purposes both of
visa and citizenship applications, concealments and mis-
representations must be both willful and relate to a
material fact. Fedorenko, 449 U.S. at 507-08 n.28.
47/ The IRO became the successor to the United Nations Relief
and Rehabilitation Agency ("UNRRA") in 1947. (Tr. 640-41).
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to "determine his eligibility with the requirements of IRO."
(Tr. 642-45). The IRO then determined whether the applicant
was a "concern" of that organization and made a determination
of eligibility as a "displaced person." (Tr. 645-46). If
found eligible, the applicant received a certificate of
eligibility from the IRO. (Tr. 646).
As Government counsel stated at trial: "There is no
evidence that this is what occurred with respect to Mr. Kairys
in this record." (Tr. 644). In discovery, defendant requested
the Government to produce "every initial form for the determi-
nation of status, form CM/1, Fragenbogen, or Personalien of the
IRO. If (Tr. 644). The Government's answer was "None."
(Tr. 644). Moreover, the Government produced no witness from
the IRO to explain what Kairys said to the IRO or what informa-
tion he provided that organization. In short, there is no
evidence of what information Kairys gave to the IRO, much less
that he willfully misrepresented or concealed material facts.
48/
48 A misrepresentation to the IRO could not, in any event,
sustain a claim of "illegal procurement" of citizenship by
reason of initial inadmissibility to the United States
under the Displaced Persons Act. Section 10 of the Dis-
placed Persons Act of 1948 provided, in part: "Any person
who shall willfully make a misrepresentation for the
purpose of gaining admission into the United States as an
eligible displaced person shall thereafter not be admissi-
ble into the United States." (62 Stat. 1013; DX 158,
p.5). The applicable regulations defined "misrepresen-
tation for the purpose of gaining admission into the
United States" as a "wilful misrepresentation, oral or
written, to any person while he is charged with the
enforcement or administration of any part of the act, of
any matter material to an alien's eligibility for any of
the benefits of the act." (DX 148, p.9170046). As
(Footnote continued on following page)
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