United States v. Firishchak, Osyp

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 05-3852
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

OSYP FIRISHCHAK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03-CV-9360—Samuel Der-Yeghiayan, Judge.
___________________________

ARGUED SEPTEMBER 28, 2006—DECIDED NOVEMBER 20, 2006
___________________________

Before FLAUM, Chief Judge, and RIPPLE and EVANS,
Circuit Judges.
FLAUM, Chief Judge. In 1949, Osyp Firishchak filed an
application for a visa to the United States under the
Displaced Persons Act (“DPA”). In November 1954, he
became a naturalized United States citizen. Several decades
later, the Department of Justice uncovered documents
suggesting that Firishchak served in the Ukrainian Auxil-
iary Police (“UAP”) during World War II—a fact he did not
disclose in his 1949 visa application. The discovery of these
documents resulted in a trial, in which the district court
ordered Firishchak denaturalized. Firishchak now appeals
2 No. 05-3852

the judgment of the trial court. For the following reasons,
we affirm that judgment.

I. BACKGROUND
In December 2003, the government filed a four-count
complaint against Osyp Firishchak alleging that his
citizenship was illegally procured and must be revoked
according to § 340(a) of the Immigration and Naturalization
Act of 1952, 8 U.S.C. § 1451(a) (2000). The government
contended that Firishchak’s admission into the United
States was unlawful on several grounds: 1) he assisted in
the persecution of civilians during World War II; 2) he
participated in a movement hostile to the United States; 3)
he willfully misrepresented his wartime activities through-
out his visa application process; and 4) he advocated or
acquiesced in acts contrary to human decency.
In August 2005, the district judge conducted a four-day
bench trial and granted judgment for the government on all
four counts. United States v. Firishchak, 426 F. Supp. 2d
780 (N.D. Ill. 2005). The primary issue at trial was whether
Firishchak had served in the UAP. The government offered
documentary evidence linking Firishchak to the UAP,
expert testimony from a World War II historian, and
testimony about post-war visa application procedures, while
Firishchak testified in his own defense, denying any
involvement with the UAP. Instead, he testified that he
drifted from place to place during the war, hiding from the
Nazis in various coffee shops. The district court found
Firishchak’s account of his war-time activities “incredible”
and concluded that he had served in the UAP.

A. Firishchak’s Background Information
Osyp Firishchak was born on April 18, 1919 in
Trebuszany, a town that became a part of Czechoslovakia
No. 05-3852 3

after World War I and is now a part of Ukraine. No other
persons bearing his name were born in Trebuszany on that
date. His father was named Hryts Firishchak.
In his application under the DPA, Firishchak described
his employment and residences from 1941 to 1944, stating
that he had worked as a laborer for a factory in Nitra,
Slovakia, from 1939 to December 1941; a Ukrainian
cooperative in “Lwow” (L’viv), Poland, from December 1941
to April 1944; and a building firm in Nitra, Slovakia, from
April to October 1944. On his visa application, Firishchak
described his residences from 1941 to 1944 as Nitra,
Slovakia (1939 to December 1941); Lemberg (L’viv), Poland
(December 1941 to April 1944); and Nitra, Slovakia (April
1944 to October 1944). Firishchak swore to the truth of the
information on his visa application. He was admitted to the
United States and later became a naturalized United States
citizen.

B. The Ukrainian Auxiliary Police and World War II
In August 1941, following Nazi Germany’s June 1941
invasion of then-Soviet territory, German authorities
formed the UAP to aid in policing the newly-incorporated
District Galicia. Throughout its existence, the UAP was
financed, directed, and controlled by German authorities.
Ukrainian Auxiliary policemen in the city of L’viv were
uniformed, armed, salaried, and received various benefits,
including leave and preferential access to scarce commodi-
ties.
The Nazi policy toward Jews in District Galicia had
several components. First, the Nazis issued new identifica-
tion papers to Jews that identified their religion, and
oversaw their confinement in ghettos. Later, many of these
Jews were forcibly removed and killed. The Nazis tempo-
rarily spared a limited number of Jews, whom the Germans
considered “work capable,” transferring them to forced labor
4 No. 05-3852

camps where many died from starvation, disease, and other
inhumane conditions. These measures were implemented
and enforced from 1941 to 1943 in Galicia. During this time,
the UAP checked personal identification documents and
arrested Jews who lacked special work passes. They also
arrested any Jew who failed to wear an armband bearing
the Star of David.
At the time that Firishchak was admitted into the United
States, the UAP was not on the Inimical List of organiza-
tions hostile to the United States—a list maintained by the
Displaced Persons Commission to assist with processing
visa applications.

C. Stipulations and Evidence Presented at Trial
The parties stipulated to numerous facts and legal
conclusions in the pre-trial order that greatly reduced
Firishchak’s available defenses at trial. They stipulated,
among other things, that the UAP “enforced Nazi
persecutory measures against . . . Jews in the city,” by
checking personal identification documents and arresting
Jews for various violations and that the UAP assisted the
Nazis with the largest ghetto reduction action in L’viv,
commonly known as the “Great Operation.” Pre-trial Order
at 5-6.
As for legal conclusions, they stipulated if Firishchak
“performed the routine duties of a Ukrainian Auxiliary
policeman, he assisted in the persecution of civil popula-
tions.” Id. at 16. Moreover, the parties stipulated that if
Firishchak served in the UAP during WWII, he “was a
member of, or participated in, a hostile movement.” Id. at
18. In addition, the parties agreed that Firishchak’s
wartime activities, and UAP membership in particular,
“were material facts” and that if he actually served in the
UAP during WWII, “he made a willful and material misrep-
resentation of his wartime activities for the purpose of
gaining admission to the United States.” Id. at 19. Finally,
No. 05-3852 5

the parties stipulated that if Firishchak served in the UAP,
“which was subordinate to the Nazi security authorities and
routinely assisted in implementing a range of Nazi anti-
Jewish policies, he advocated or acquiesced in activities or
conduct contrary to civilization and human decency.” Id. at
20. The end result of these stipulations was that Firishchak
could only be absolved if the government failed to prove his
membership in the UAP altogether.
At trial, the government introduced twenty-one wartime
documents related to Firishchak’s UAP service, including
seven that bear his signature.1 Two of those documents
identify Firishchak by name and birth date and state that
he had been employed by the 1st Commissariat of the
Ukrainian Police since October 1941. One of the documents
lists the headquarters of the 1st Commissariat as
Firishchak’s residence and lists his father’s name as Hryts.
The signatures on the documents are spelled the same, and
all of the documents identify Firishchak as a police private
in the UAP. A few of the documents lacked specific dates.
During Firishchak’s trial, Dr. Dieter Pohl, a scholar who
has done extensive archival research on the Nazi occupation
of District Galicia and the UAP, testified generally about
the German occupation of Galicia and the role of the UAP
in implementing Nazi policy. In addition, Pohl testified that
there was no suspicion regarding the authenticity of the
twenty-one wartime documents and that they were all
housed in a location where one would expected to find
them—the L’viv State Regional Archive. He further testified
that all of the documents dated from 1942 to 1944.

1
During a sworn interview in 2003, Firishchak was shown a page
with eight Ukrainian-language Cyrillic signatures taken from
various exhibits, and he identified seven of them as his own. At
the time he identified the signatures, he did not know that they
came from documents related to the UAP. Later, he claimed he
did not understand the question he was being asked when he
identified the signatures as his own.
6 No. 05-3852

Robert Groner, a former Department of Justice trial
attorney, testified regarding Firishchak’s sworn interview,
in which Firishchak identified seven signature samples
(extracted from relevant UAP documents) as his own.
Groner stated that Firishchak declined the services of an
interpreter at the interview and was composed, lucid, and
responsive until he was shown the documents regarding his
UAP service, at which point he became nervous and
agitated.
The government also offered testimony from William
Weiss, a survivor of the L’viv Jewish ghetto. He did not
specifically testify about Firishchak or identify him as a
member of the UAP. Instead, Weiss testified about ghetto
conditions as well as the abuse that occurred at the hands
of both the Nazis and the UAP. Finally, the government
entered the de bene esse depositions—depositions taken for
use in the event of a witness’s absence at trial—of Mario
DeCapua and Everett Coe, who testified generally about
visa applications and procedures under the DPA, including
security investigations into applicants’ backgrounds. No one
with personal knowledge testified that Firishchak was a
member of the UAP or performed the duties of a Ukrainian
Auxiliary policeman in the streets of L’viv during World
War II.
Firishchak testified in his own defense at trial, denying
any service in the UAP. He admitted that the individual
identified in the incriminating documents had the same
name, the same birth date, the same father’s name, and
came from the same village. Firishchak admitted that he
resided in the same town during the war as the individual
identified in the wartime documents. As to his wartime
activities, Firishchak testified that he was homeless
throughout the war and drifted from place to place, hiding
out in coffee shops along the way. He testified that after
leaving his factory job in Germany, he went with little
money and without proper travel documents from town to
town, en route to a town whose name he did not know, to go
No. 05-3852 7

to school. He picked up occasional odd jobs along the way.
The government highlighted various inconsistencies in
Firishchak’s story. For example, he stated that he never
slept in the same place and was always on the move, but
later acknowledged that he had an address in L’viv for an
extended period of time.
The district court found the government’s witnesses
credible, but questioned both the substance of Firishchak’s
testimony and his mannerisms on the stand. Taking the
stipulations, the admitted documents, the admitted deposi-
tions, and the live testimony altogether, the district court
ruled against Firishchak on all four counts of the complaint.

II. DISCUSSION
Firishchak raises a number of issues on appeal. First, he
contends that the wartime documents evidencing his UAP
service were inadmissible. Second, he argues that the
district court abused its discretion by permitting Dr. Pohl
to testify on a subject that was not disclosed in his pre-trial
expert report. Third, Firishchak claims that the district
court should have granted him a continuance because the
government took two de bene esse depositions after the close
of discovery. Fourth, Firishchak challenges the sufficiency
of the evidence against him. Finally, he argues that he was
denied a fair trial.

A. Admissibility of the Wartime Documents
As a threshold matter, Firishchak disputes the admissi-
bility of the wartime documents, arguing that they were
improperly authenticated as ancient documents or business
records and that they constitute inadmissible hearsay. This
Court reviews a district court’s determination regarding the
admissibility of documents for an abuse of discretion.
Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 722 (7th
Cir. 2003).
8 No. 05-3852

Documents are authenticated by evidence “sufficient to
support a finding that the matter in question is what its
proponent claims.” Fed. R. Evid. 901(a); Chemetall, 320
F.3d at 722. Federal Rule of Evidence 901(b)(8) identifies
the means by which “ancient documents” are authenticated.
An ancient document should be (A) in such condition as to
create no suspicion concerning its authenticity; (B) in a
place where it, if authentic, would likely be; and (C) in
existence twenty years or more at the time it is offered. Fed.
R. Evid. 901(b)(8); United States v. Kairys, 782 F.2d 1374,
1379 (7th Cir. 1986). Whether the documents correctly
identify the defendant goes to their weight and is a matter
for the trier of fact; it is not relevant to the threshold
determination of admissibility. See Kairys, 782 F.2d at 1379
(affirming the admission of wartime document).
In this case, Dr. Pohl, an expert who has done extensive
archival research on the District Galicia, testified that there
was no suspicion regarding the documents’ authenticity and
that they were housed in a state regional archive where one
would expect to find such documents. He also testified
regarding the age of the documents, stating that each
document dated from between 1942 and 1944.
Firishchak correctly notes that mere recitation of the
contents of documents does not authenticate them or
provide for their admissibility, United States v. Wittje, 333
F. Supp. 2d 737, 743 (N.D. Ill. 2004), but Dr. Pohl’s testi-
mony was more than a mere recitation. Rather, he spoke of
how historians relied on the documents and where they
could be found in addition to their contents. Furthermore,
Firishchak’s identification of his own signature on seven of
the documents suggests that they are authentic.2

2
The government correctly asserts that many of the documents
in question qualified as either self-authenticating foreign public
documents or admissible certified copies. See Fed. R. Evid. 902(3);
(continued...)
No. 05-3852 9

Firishchak particularly questions the authentication of
those documents that lacked specific dates. While it is true
that several of the documents bear no specific date, their
age can be proven by other means. For example, the
appearance of the proffered evidence or even the contents
of the material itself together with the surrounding circum-
stances can be used to determine a document’s age. See Fed.
R. Evid. 901(b)(4). In addition, all but one of the documents
contain information—either month and year or season and
year—which permits their age to be determined. Finally,
Firishchak did not cite any particular characteristics of the
documents that raise doubts regarding their authenticity.
Considering Dr. Pohl’s testimony in addition to the con-
tents, location, and appearance of the documents them-
selves, the district court could reasonably determine the
threshold question of the documents’ authenticity. There-
fore, the district court’s decision to admit the wartime
documents was not an abuse of discretion.
Firishchak also argues that the wartime documents were
not admissible business records. This argument misses the
point because the ancient documents rule and the business
records exception are independent grounds for determining
admissibility. Compare Fed. R. Evid. 803(6) with Fed. R.
Evid. 901(b)(8); see also, e.g., George v. Celotex Corp., 914
F.2d 26, 30 (2d Cir. 1990). Because the documents in
question were admissible under the ancient documents rule,
whether they were kept in the ordinary course of UAP
business is irrelevant. Finally, Firishchak’s assertion that
the documents constitute inadmissible hearsay is without
merit. Under Federal Rule of Evidence 803(16), statements
contained in authenticated ancient documents are not
hearsay.

2
(...continued)
Fed. R. Evid. 902(4). Firishchak did not object to these grounds for
admissibility.
10 No. 05-3852

B. Pre-trial Discovery Issues
Firishchak has two complaints regarding the pre-trial
discovery phase. First, he asserts that the government
failed to disclose certain expert testimony in its required
pre-trial report. Second, he believes that the taking of two
de bene esse depositions after the close of discovery entitled
him to a continuance. We review a district court’s discovery
rulings for an abuse of discretion. Sims v. GC Servs. L.P.,
445 F.3d 959, 963 (7th Cir. 2006).
Firishchak contends that the government did not disclose
in its pre-trial expert report that Dr. Pohl would testify
regarding the authenticity of the wartime documents. As a
result, Firishchak argues, any such testimony should have
been excluded as a sanction for violating Federal Rule of
Civil Procedure 26(a)(2)(B), which requires expert reports
to “contain a complete statement of all opinions to be
expressed and the basis and the reasons therefore.”
Firishchak asserts that Dr. Pohl’s report did not disclose
any opinions regarding the authenticity of the wartime
documents. The government, on the other hand, argues that
Firishchak waived this claim because he did not object to
“Dr. Pohl’s qualification as an expert on the UAP and
documents relating thereto, thereby acknowledging Dr.
Pohl’s ability to authenticate UAP documents.” Gov. Br. at
44 (emphasis in original). Even if the claim was not waived,
Firishchak cannot prevail. Dr. Pohl’s 148-page expert report
discussed each historical exhibit that was subsequently
introduced at trial, including its archival source and locator
information. The report also contained passages about
where the historical documents are kept and how historians
rely on them. Therefore, the district court did not abuse its
discretion by permitting Dr. Pohl to testify regarding the
authenticity of the documents.
Firishchak also takes issue with the fact that the govern-
ment took two de bene esse depositions in the week leading
No. 05-3852 11

up to trial. Pursuant to a court order, all discovery in the
case closed on March 11, 2005 and trial was scheduled to
begin on August 1. According to Firishchak, on May 11, the
government sent notice to the defendant of its intention to
take the de bene esse depositions of Mario DeCapua and
Everett Coe in July—less than 30 days prior to the trial
date. Firishchak then filed a motion for a continuance, but
his motion was denied. The government took Mario
DeCapua’s deposition on July 20 and Everett Coe’s deposi-
tion on July 26.
The record reflects that more than ten weeks before trial,
the government notified Firishchak that it would be taking
videotaped de bene esse depositions of two elderly witnesses
pursuant to Federal Rule of Civil Procedure 32(a)(3)(C),
which permits the use of depositions “for any purpose” if the
court finds a witness is unable to attend or testify because
of age. Because the rule permits broad use of depositions in
these circumstances, the court’s decision not to grant
Firishchak a continuance due to a permitted use was not an
abuse of discretion. See United States v. Egwaoje, 335 F.3d
579, 587-88 (7th Cir. 2003) (noting that district courts have
broad discretion to grant or deny continuances).

C. Sufficiency of the Evidence
Firishchak next argues that the evidence was insufficient
to support the district court’s findings. Because the right to
acquire American citizenship is a precious one, the govern-
ment carries a heavy burden of proof when attempting to
divest a naturalized citizen of his citizenship. Fedorenko v.
United States, 449 U.S. 490, 505 (1981); Naujalis v. INS,
240 F.3d 642, 646 (7th Cir. 2001). The evidence justifying
revocation of citizenship must be clear, unequivocal and
convincing, not leaving the issue in doubt. Fedorenko, 449
U.S. at 505. Even though the government’s burden at trial
is heavy, this Court reviews the trial court’s findings of fact
12 No. 05-3852

under a deferential clearly erroneous standard. Spurgin-
Dienst v. United States, 359 F.3d 451, 453 (7th Cir. 2004).
We review the district court’s legal conclusions de novo. Id.
In this case, the district court derived many of its findings
of fact and conclusions of law from pre-trial stipulations.
Ordinarily, stipulations of fact will obviate the need for
appellate review of factual findings. TMF Tool Co. v.
Siebengartner, 899 F.2d 584, 588 (7th Cir. 1990). This Court
will, however, review findings derived from stipulated facts
for clear error. Id. In other words, where the district court
adopts a stipulated fact wholesale, it is binding on the
parties and thus waived, but where the court makes
inferences or derives factual findings from other stipulated
facts, the clear error standard of review applies.

1. Membership in UAP
As mentioned above, whether Firishchak was a member
of the Ukrainian Auxiliary Police is the linchpin of this case
because he stipulated to nearly all other relevant facts.
Firishchak contends that the government failed to prove his
membership in the UAP by clear and convincing evidence.
Firishchak’s argument relies heavily on two facts: 1) that he
denied UAP membership at all relevant times and 2) that
the government produced no evidence from anyone with
personal knowledge that Firishchak performed the duties
of the UAP. The United States argues that testimony from
people with personal knowledge is unnecessary, and cites
cases in which citizens were denaturalized based on
documentary evidence. See, e.g., United States v. Tittjung,
753 F. Supp. 251 (E.D. Wis. 1990); United States v.
Baumann, 764 F. Supp. 1335 (E.D. Wis. 1991).
Without deciding whether documentary evidence alone is
enough to revoke citizenship, we note that the district court
based its decision on more than the twenty-one wartime
documents. In addition to those documents, the district
court based its findings on Firishchak’s own testimony and
No. 05-3852 13

admissions. Firishchak identified seven signatures from
UAP documents as his own, and the district court’s credibil-
ity determination that Firishchak was lying on the stand
permitted it to conclude that the documents linking
Firishchak to UAP service were accurate. Consequently, the
evidence demonstrating Firishchak’s UAP membership was
sufficient to support the trial court’s factual finding.

2. Count One—Assistance in Persecution
Firishchak next questions the district court’s conclusion
that he assisted in the persecution of civil populations,
which would have rendered him ineligible for a visa under
§ 2(b) of the DPA. Because of numerous pre-trial stipula-
tions, which he did not mention in his brief, Firishchak is
bound by the facts leading to the trial court’s conclusion.
See, e.g., United States v. Flores-Sandoval, 94 F.3d 346, 349
(7th Cir. 1996) (stipulating to conduct waives any claim that
a defendant has not engaged in that conduct); Soo Line R.R.
v. St. Louis Sw. Ry., 125 F.3d 481, 483 (7th Cir. 1997)
(stipulations are binding upon the party making them).
Firishchak stipulated, for one, that the UAP enforced
“persecutory measures against Jews.” Pre-trial Order at 5.
He also stipulated that the UAP assisted in checking the
identification of Jews and arresting them for violating
various rules. Id. In fact, Firishchak specifically stipulated
that if he performed the routine duties of a Ukrainian
Auxiliary policeman, he assisted in the persecution of civil
populations.
Although we are not bound by stipulations to legal
conclusions, Saviano v. Comm’r of Internal Revenue, 765
F.2d 643, 645 (7th Cir. 1985), in determining whether
conduct amounted to assistance in persecution, the district
court’s application of the law to the facts of the case is
reviewed deferentially. See United States v. Mankiewicz,
122 F.3d 399, 403 n.1 (7th Cir. 1997). The district court
14 No. 05-3852

relied on the pre-trial stipulations and Dr. Pohl’s testimony
regarding the role of the UAP in the District Galicia to
conclude that Firishchak assisted in persecution. This
conclusion was within the court’s discretion since it had
already found that Firishchak was a member of the UAP
and that finding was not erroneous.
Firishchak also claims that the DPA requires evidence
that he committed a particular atrocity or persecutory act
in order to render him ineligible for a visa. However,
personal involvement in atrocities need not be proven. See,
e.g., Fedorenko, 449 U.S. at 510 n.32; United States v.
Ciurinskas, 148 F.3d 729, 734 (7th Cir. 1998). Firishchak’s
attempt to distinguish these cases by pointing out immate-
rial factual differences is unconvincing. Moreover, his own
pre-trial stipulations waive any argument that specific acts
need to be proven. NLRB v. P*I*E Nationwide, Inc., 894
F.2d 887, 892 (7th Cir. 1990) (noting that a party’s stipula-
tion can waive legal arguments).

3. Count Two—Service in a Movement Hostile to
the U.S.
Firishchak next contends that the government failed to
prove that he served in a movement hostile to the United
States, which would render him ineligible for a visa under
§ 13 of the DPA. Again, Firishchak stipulated to this legal
conclusion, so he waived the issue. P*I*E Nationwide, 894
F.2d at 892. Even if the argument had not been waived,
courts considering the issue have held that service in a
Nazi-sponsored police unit constitutes membership in a
hostile movement under the DPA. United States v.
Kowalchuk, 773 F.2d 488 (3d Cir. 1985) (holding that UAP
service amounts to membership in a hostile movement);
United States v. Koziy, 540 F. Supp. 25, 34 (S.D. Fla. 1982)
(same); United States v. Osidach, 513 F. Supp. 51 (E.D. Pa.
1981) (same).
No. 05-3852 15

Firishchak relies on United States v. Kwoczak, 210 F.
Supp. 2d 638, 652-53 (E.D. Pa. 2002), to argue that his UAP
membership did not disqualify him under the DPA because
the UAP was not named in a list of organizations consid-
ered hostile under the DPA (the “Inimical List”). Although
Kwoczak initially held that ineligibility under § 13 of the
DPA was limited to members of groups on the Inimical List,
the court issued an amended opinion holding that inclusion
on the list was not a prerequisite to disqualification. United
States v. Kwoczak , No. Civ.A. 97-5632 , 2002 WL 32137688,
at *2-3 (E.D. Pa. 2002). Moreover, Mario DeCapua, former
head of the Displaced Persons Commission Security Investi-
gations Division, testified that the Inimical List was not
exhaustive, and membership in an organization that did not
appear on the list could be disqualifying under the DPA,
depending on the nature of the group’s activities. Given the
trial court’s findings regarding the activities of the UAP, its
conclusion that Firishchak participated in an organization
hostile to the United States was proper.

4. Count Three—Misrepresentation of Material
Facts
Firishchak next argues that the government failed to
prove that he willfully misrepresented material facts in
order to gain admission into the United States. Such
misrepresentations would render him ineligible for admis-
sion under § 10 of the DPA. Again, this argument was
waived. P*I*E Nationwide, 894 F.2d at 892. The parties
stipulated that Firishchak’s wartime activities, including
his alleged membership in the UAP, were material facts,
and the trial court agreed. A misrepresentation is material
under the DPA if it has a natural tendency to affect the
decision of the Displaced Persons Commission regarding
visa eligibility. See Kungys v. United States, 485 U.S. 759,
770 (1988).
16 No. 05-3852

Even if this argument were not waived, Firishchak could
not prevail. In his visa application, Firishchak told immi-
gration officials that he was a laborer for a Ukrainian
cooperative in L’viv from December 1941 to April 1944.
However, the trial court found that he was serving in the
UAP during this time. This inconsistency demonstrates that
Firishchak misrepresented his wartime activities, and the
truth would have influenced his visa eligibility. Though
Firishchak suggests that UAP service is not a material fact,
two trial witnesses testified to the contrary. First, Everett
Coe, the vice consul who processed Firishchak’s visa
application, stated that he would not have issued
Firishchak a visa had Firishchak truthfully disclosed his
wartime activities. Second, Mario DeCapua testified that
the Commission routinely rejected the applications of
persons known to have served in Nazi-directed police forces.
Given these facts, the district court properly concluded that
Firishchak made material misrepresentations during the
visa application process.

5. Count Four—Conduct Contrary to Human
Decency
Finally, Firishchak contends that the government failed
to prove that he advocated or acquiesced in activities or
conduct contrary to civilization and human decency on
behalf of the Axis countries during WWII. Such conduct
would have rendered him ineligible for a visa under state
department regulations at the time of his application. 22
C.F.R. § 53.33(j) (1949). Again, this argument is subject to
the same waiver analysis, given that Firishchak stipulated
that UAP service constituted conduct contrary to civiliza-
tion and human decency. P*I*E Nationwide, 894 F.2d at
892. Further, given the facts established at trial, the
district court properly concluded that Firishchak’s UAP
service constituted conduct contrary to human decency.
No. 05-3852 17

D. Fair Trial Claim
Firishchak also claims that he was denied a fair trial.
Firishchak describes the judge’s comments on his demeanor
and mannerisms as completely unprofessional. The district
court opinion stated that “Firishchak’s demeanor and
mannerisms clearly showed that he was lying under oath on
the stand,” and the judge described Firishchak’s “shameless
attempt to excuse himself from an inexcusable act” as
“cowardly.” Firishchak, 426 F. Supp. 2d at 784. Although
the district court’s language may appear stern, the govern-
ment correctly states that “it is the job of any factfinder to
assess a witnesses’ credibility.” Gov. Br. at 49 (emphasis in
original); see Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 575 (1985).
Firishchak continues with what the government labels “a
hodgepodge of unsupported accusations and grievances,”
Gov. Br. at 49, but fails to cite any authority for his com-
plaints. He complains that he did not receive a jury trial, he
could not substitute a new judge, and his case was assigned
to “a career government attorney with experience only in
representing the government.” Firishchak Br. at 50-51.
Additionally, he argues that his trial was unfair because the
trial judge reminded the government to admit its exhibits
into evidence. Id.
Firishchak’s independent “fair trial” claims were not
preserved because he did not raise these issues at trial.
United States v. Walker, 9 F.3d 1245, 1249 (7th Cir. 1993).
As a result, this Court can only reverse if the district court
committed plain error. Id. A plain error is one that is so
obvious, crucial, and egregious that we should correct it
despite the absence of an objection below. See Backwater,
Inc. v. Penn-American Ins. Co., 448 F.3d 962, 965 (7th Cir.
2006). Although it is unclear whether plain error review is
available in appeals from denaturalization trials, we decline
to decide this issue, because the result is the same if
18 No. 05-3852

forfeiture precludes review altogether or if the decision
below is reviewed for plain error. Assuming, arguendo, that
plain error review applies, Firishchak has not established
that any of his unsubstantiated grievances amount to a
showing of plain error. Because denaturalization proceed-
ings are considered equitable rather than criminal, defen-
dants in those proceedings are entitled to neither a jury
trial nor a substitution of judge. Moreover, like all cases in
the district court, Firishchak’s case was randomly assigned
to a judge who is duty-bound to act impartially, and
Firishchak has offered no evidence that the district judge
neglected that duty. As a result, Firishchak’s claim that he
was denied a fair trial cannot succeed.

III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—11-20-06