United States v. Stelmokas

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

11-12-1996

United States v. Stelmokas
Precedential or Non-Precedential:

Docket 95-1894

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-1894

UNITED STATES OF AMERICA

v.

JONAS STELMOKAS,
a/k/a JONAS STELMOKEVICIUS,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 92-03440)

Argued June 10, 1996

BEFORE: STAPLETON, GREENBERG, and ALDISERT, Circuit Judges

(Filed: November 12, l996)

Eli M. Rosenbaum
Susan L. Siegal
Robert G. Seasonwein (argued)
Ronnie L. Edelman
Office of Special Investigations
United States Department of
Justice
Criminal Division
1001 G Street, N.W.
Washington, DC 20530

Attorneys for Appellee

John R. Carroll (argued)
Carroll & Carroll
400 Market Street
Suite 850
Philadelphia, PA 19106

Attorneys for Appellant

OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. PROCEDURAL AND FACTUAL HISTORY
Defendant Jonas Stelmokas appeals from a final judgment
entered August 2, 1995, in favor of the government on six counts
of its seven-count complaint seeking judgment on seven discrete
bases revoking Stelmokas's citizenship and ordering him to
surrender his certificate of naturalization. The court entered
judgment in favor of Stelmokas on a seventh count of the
complaint.
The government initiated this action on June 15, 1992,
by filing the complaint against Stelmokas in the district court
pursuant to section 340(a) of the Immigration and Nationality Act
of 1952, as amended ("INA"). 8 U.S.C. § 1451(a). The government
sought judgment revoking and setting aside the judgment of the
United States District Court for the Eastern District of
Pennsylvania which admitted Stelmokas to citizenship in 1955. It
further sought judgment canceling Stelmokas's certificate of
naturalization.
In its complaint, the government alleged that Stelmokas
was born in Moscow, Russia, and resided in Lithuania commencing
in 1930. From 1936 until 1939 Stelmokas attended the Lithuanian
army officers' school in Kaunas, Lithuania, from which he
graduated in 1939. From August 1939 until July 1940 Stelmokas
was an officer in the Lithuanian army.
The complaint alleged that in June 1941 the armed
forces of Nazi Germany occupied Lithuania, which occupation
continued until August 1944. During the occupation, the Germans
organized armed Lithuanian units known as Schutzmannschaft to
assist the Germans in the occupation and in the persecution of
Jews and other unarmed persons on the basis of their race,
religion, national origin, or political opinion. The Germans
also organized Schutzmannschaft in other countries who arrested,
detained, assaulted, and murdered victims in Poland, Ukraine,
Byelorussia, and other areas. The Lithuanian Schutzmannschaft in
Kaunas assisted the Germans in confining and murdering Jews. The
government contended that Stelmokas was a voluntary member and
officer of the Schutzmannschaft and advocated, assisted,
participated, and acquiesced in the murder and persecution of
Jews and other unarmed civilians in Lithuania. Around August
1944, at the time the German occupation of Lithuania ended,
Stelmokas entered the German Air Force (Luftwaffe) in the 91st
Light Flak Replacement Unit.
The complaint further alleged that in July 1949
Stelmokas sought a determination from the United States Displaced
Persons Commission ("DPC") that he was a displaced person as
defined in the Displaced Persons Act of 1948 ("DPA"), Pub. L. No.
80-774, ch. 647, 62 Stat. 1009 (1948), and therefore was eligible
to immigrate to the United States. In connection with his
application, a DPC analyst interviewed Stelmokas. He did not
inform the analyst that he had served in the Schutzmannschaft or
the Luftwaffe. Rather, Stelmokas falsely claimed that he had
been a teacher in Seda, Lithuania, from July 1940 until August
1943. He claimed that he then was unemployed in Kaunas until
July 1944, and was a laborer in Dresden, Germany, from 1944 until
March 1945. The complaint alleged that in 1949 the DPC regarded
the Schutzmannschaft to be "inimical" to the United States,
meaning it was a hostile movement.
The complaint further stated that, in reliance on
Stelmokas's misrepresentations, the DPC analyst concluded that
Stelmokas was eligible for displaced person status, and that the
DPC so certified him on July 8, 1949. On or about August 10,
1949, Stelmokas applied for a visa to enter the United States.
In connection with that application, Stelmokas repeated to an
American vice-consul in Hamburg, Germany, the benign wartime
history that he had related to the DPC analyst and omitted his
actual wartime employment history. Based on Stelmokas's false
representations, the vice-consul approved Stelmokas's application
for a visa. Stelmokas then entered the United States as a
displaced person and permanent resident on August 31, 1949.
The complaint asserted that on or about November 12,
1954, Stelmokas filed an application for naturalization with the
Immigration and Naturalization Service. Again, Stelmokas
misrepresented under oath his personal history by claiming that
the only organization to which he belonged before 1945 was the
Lithuanian Boy Scouts. Thus, he concealed his membership in the
Schutzmannschaft and the Luftwaffe. On April 11, 1955, the
district court granted his petition for naturalization.
The government requested that the court revoke
Stelmokas's naturalization for the following reasons: (1) he
illegally procured his naturalization because he was ineligible
for a visa to enter the country as he had assisted in persecuting
civilian populations (Count I); (2) he illegally procured his
naturalization because he was ineligible to enter the country as
he voluntarily had assisted enemy forces during World War II in
their operations against the United Nations (Count II); (3) he
illegally procured his naturalization because as a member of the
Schutzmannschaft and the 91st Light Flak Replacement Unit he was
ineligible to enter the country because he had been a member of
and participated in movements hostile to the United States (Count
III); (4) he illegally procured his naturalization because he had
misrepresented his wartime service to the DPC and to the vice-
consul and thus was ineligible to enter the country (Count IV);
(5) he illegally procured his naturalization because he was
ineligible for a visa as he had advocated or acquiesced in
activities or conduct contrary to civilization and human decency
on behalf of Axis countries during World War II and thus was
ineligible to enter the country (Count V); (6) he illegally
procured his naturalization as his participation in the Nazi
program of persecution demonstrated that he was not of good moral
character and thus he was ineligible to enter the country (Count
VI); and he illegally procured his naturalization by concealing
and misrepresenting material facts, i.e., his service in the
Schutzmannschaft and the 91st Light Flak Battalion when he filed
his petition for naturalization (Count VII).
Stelmokas filed an answer to the complaint in which he
admitted the historical facts regarding the German occupation of
Lithuania and admitted that he had applied for entry into the
United States as a displaced person. However, he refused to
answer the allegations in the complaint regarding his wartime
activities as he claimed "that his answers could be used against
him in criminal proceedings in the United States and other
countries." The government then moved to compel Stelmokas to
answer the complaint on the ground that Stelmokas could not rely
on the Fifth Amendment to refuse to answer.
On April 16, 1993, the district court granted the
government's motion as it concluded that either the sections of
federal law under which Stelmokas feared prosecution were
inapplicable to him or the statute of limitations barred
prosecutions under them. Thus, the court concluded that
Stelmokas did not face a real and substantial threat of
prosecution in the United States. The court also found that
Stelmokas did not face a real and substantial threat of
prosecution in "other countries," and thus it had no need to
determine whether the Fifth Amendment applied to foreign
prosecutions. The court, however, protected Stelmokas by
ordering that his answer be filed under seal. Stelmokas never
complied with the order and did not file an amended answer.
Furthermore, at a deposition on August 4, 1993, Stelmokas pleaded
the Fifth Amendment and refused to answer questions germane to
this case.
The court conducted a bench trial from February 27,
1995, until March 3, 1995. At the outset of the trial
Stelmokas's attorney pointed out that Stelmokas had pleaded the
Fifth Amendment. He then indicated that he wanted to keep his
options open and that he did not know what he would advise
Stelmokas to do. He said that Stelmokas "may waive the
privilege." Stelmokas, however, did not waive the privilege and
did not testify at the trial.
The district court decided the case in a comprehensive
memorandum opinion dated August 2, 1995. In its opinion the
court set forth the background of Stelmokas's application to come
to the United States and his obtaining citizenship. The court
noted that citizenship is a precious right which once conferred
may not be revoked lightly. Consequently, the government in a
denaturalization proceeding must prove its case by clear,
unequivocal, and convincing evidence so as not to leave the
issue, i.e., the basis for denaturalization, in doubt. Kungys v.
United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547 (1988);
Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 747
(1981). The court noted, however, that aliens have no right to
naturalization unless all statutory requirements are complied
with. Consequently, every certificate of citizenship is granted
on the condition that the government may revoke it if it was not
issued in accordance with the applicable requirements.
Fedorenko, 449 U.S. at 506, 101 S.Ct. at 747.
The court pointed out that section 340(a) of the INA
provides the statutory bases for revocation of citizenship: that
the citizenship had been "illegally procured" or "procured by
concealment of a material fact or by willful misrepresentation."
8 U.S.C. § 1451(a). The court then indicated that citizenship is
"illegally procured" when obtained without compliance with the
statutory requirements for naturalization. Fedorenko, 449 U.S.
at 506, 101 S.Ct. at 747. When Stelmokas was naturalized in
1955, the INA required that he reside continuously in the country
for at least five years after being lawfully admitted for
permanent residence. 8 U.S.C. § 1427. See United States v.
Osidach, 513 F. Supp. 51, 63 & n.4 (E.D. Pa. 1981).
The court then observed that the DPA authorized the
issuance of immigration visas to eligible European "displaced
persons" without regard to immigration quotas, but that persons
who "assisted the enemy in persecuting the civilian populations"
of countries that were members of the United Nations or
voluntarily assisted the enemy forces since the outbreak of
World War II in their operations against the United Nations were
not displaced persons. DPA § 2(b), 62 Stat. 1009, 3051-52
(incorporating by reference International Refugee Organization
Constitution's definition of displaced person). See Fedorenko,
449 U.S. at 495 & n.3, 101 S.Ct. at 741 & n.3. Additionally, DPA
§ 13 prohibited the issuance of visas to "any person who is or
has been a member of, or participated in, any movement which is
or has been hostile to the United States or the form of
government of the United States." 62 Stat. 1014. Section 10 of
the DPA provided that 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 admissible into the United States." 62 Stat. 1013.
The court further noted that at the time of Stelmokas's
immigration in 1949, a State Department regulation forbid the
issuance of a visa to any alien who had "advocated or acquiesced
in activities or conduct contrary to civilization and human
decency on behalf of the Axis countries" during World War II.
The court also indicated that when Stelmokas was naturalized in
1955, the law provided that citizenship could be conferred only
on persons "of good moral character, attached to the principles
of the Constitution of the United States, and well disposed to
the good order and happiness of the United States." 8 U.S.C. §
1427(a)(3). Finally, the court pointed out that the INA provided
that citizenship procured by willful concealment or
misrepresentation of a material fact must be revoked. 8 U.S.C. §
1451.
The district court made an evidentiary ruling in its
opinion that Stelmokas challenges on this appeal. It noted that
Stelmokas had pleaded the Fifth Amendment in his answer and had
refused on Fifth Amendment grounds to answer questions at his
deposition. Furthermore, Stelmokas had not testified at trial.
The court held that Stelmokas's attorney's statement at the
outset of the trial that Stelmokas "may waive the privilege" was
not a waiver of the privilege against self-incrimination, but was
the opposite, since it was not a statement that the privilege was
waived. The court then held that since the case was civil rather
than criminal it, as the finder of fact, could infer from
Stelmokas's invocation of the privilege against self-
incrimination that his testimony would have been unfavorable.
See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558
(1976). The court indicated, however, that while it could draw
adverse inferences from Stelmokas's claim of the privilege
against self-incrimination, it would not base its findings of
fact on adverse inferences. Rather, the court would use
Stelmokas's invocation of the Fifth Amendment for "independent
and additional support" for its findings of fact.
In its findings of fact, the court preliminarily noted
that the government had called four witnesses, two experts on the
Holocaust, Dr. Raul Hilberg and Michael MacQueen, and two
survivors of the Holocaust in Lithuania, David Levine and Abe
Malnick. In addition, the government introduced numerous
documents into evidence. Stelmokas did not call any witnesses
but did introduce three documents into evidence. The court
pointed out that Hilberg was a particularly credible witness with
a remarkable knowledge of the documents placed into evidence.
The court noted that many of the documents in evidence
had been stored in the archives of the former Soviet Union.
While Stelmokas argued that the documents were not trustworthy,
the court rejected this contention because Hilberg's and
MacQueen's testimony established that they were authentic.
Indeed, Hilberg testified that he was not aware of a single World
War II Soviet Union archival document that was a forgery. The
court concluded that the government "amply established the
authenticity and trustworthiness of the documents in evidence."
The court then related Stelmokas's personal history
prior to the German invasion, including his graduation from
military academy and his service as an officer in the Lithuanian
Army and the Soviet Red Army when the Soviet Union annexed
Lithuania in 1940. The court explained that the Germans took
over Lithuania within a few days of their attack on June 22,
1941, and that the German army was followed by a police unit
known as Einsatzgruppen, which implemented the German policy of
murdering the Jews. The court related that a segment of the
indigenous Lithuanian population cooperated with the
Einsatzgruppen in the murder of the Jews.
Starting in late June 1941, the Germans began
organizing Lithuanians who had fought against the Soviet Union
into volunteer police battalions. The Germans controlled these
units, which became known as the Schutzmannschaft. Their
function was to guard installations and prisoners, and they
guarded the Kaunas ghetto. The Schutzmannschaft assisted in the
murder of Jews and other persons.
The court found that on July 28, 1941, Stelmokas
voluntarily enlisted in the Schutzmannschaft and was appointed
platoon commander in the 7th Company. The court traced
Stelmokas's various assignments in the Schutzmannschaft, a
process made possible by the meticulous record keeping of the
Schutzmannschaft units, which court opinions demonstrate was
consistent with the Germans' practice during World War II of
recording their murderous conduct in specific detail. See, e.g.,
United States v. Koziy, 540 F. Supp. 25, 27 (S.D. Fla. 1982),
aff'd, 728 F.2d 1314 (11th Cir.), cert. denied, 469 U.S. 835, 105
S.Ct. 130 (1984). By August 30, 1944, Stelmokas had been
transferred to Germany where he served in the 91st Light Flak
Replacement Unit of the Luftwaffe. The records in evidence show
that Stelmokas was in a military hospital in Germany on February
12, 1945.
The court found that on September 15, 1941, Stelmokas
was a guard commander at Vilijampole, which was the ghetto in
Kaunas. The evidence showed clearly, unequivocally, and
convincingly, that Stelmokas served as the commander of the
ghetto guard for at least a 24-hour period commencing on
September 16, 1941, at 1:00 P.M., and, accordingly, that he
participated in confining the Jews to an area in which they were
regularly subjected to extreme deprivation, brutality, and
arbitrary shootings. The court then found, through a painstaking
analysis of the Schutzmannschaft records, that Stelmokas's
battalion took part in the Grosse Aktion of October 28 and
October 29, 1941, which involved the murder of precisely 9,200
Jews, and that Stelmokas was on duty at that time. Levine and
Malnik, who were children in the ghetto at the time, supported
the documentary evidence with eye-witness testimony. While
Levine and Malnick did not identify Stelmokas, both testified
that armed Lithuanians took part in the murders. The court also
made findings that Stelmokas participated in anti-partisan
actions and served in the Luftwaffe.
The court found that when Stelmokas applied for
displaced person status he did not inform the DPC analyst of his
Schutzmannschaft and Luftwaffe service, and that he
misrepresented his employment and places of residence for the
period of July 1940 until March 1945. The court also noted that
the Lithuanian Schutzmannschaft appeared on a "List of
Organizations Considered Inimical to the United States" issued by
the DPC Headquarters in Frankfurt, Germany. The court found that
Stelmokas made false statements under oath when he sought his
visa application, because he misrepresented his wartime
residences and did not reveal his Schutzmannschaft or Luftwaffeservice.
The court found that he obtained his visa because of
the misrepresentation. The court did not find, however, that
Stelmokas made false statements when he was naturalized.
The court then discussed the adverse inferences to be
drawn from Stelmokas's claim of the privilege against self-
incrimination. It emphasized, however, that the findings of fact
we have described did not depend on the drawing of inferences
from Stelmokas's claim of the privilege. The court said that it
inferred that Stelmokas's testimony would have revealed that he
voluntarily joined the Schutzmannschaft and served in it from
July 1941 until mid-1944, when he was transferred to Germany to
serve in the 91st Light Flak Battalion; he was commander of the
ghetto guard at Kaunsas in September 1941; he participated in the
murdering of Jews in the Grosse Aktion and in fighting against
anti-German partisans; and he made false representations to both
the DPC analyst and the vice-consul regarding his wartime
activities, particularly his service in the Schutzmannschaft and
the Luftwaffe, to facilitate his immigration to the United
States.
The court then set forth its conclusions of law. It
reiterated that the government had to prove its case by clear,
unequivocal, and convincing evidence, but that under 8 U.S.C. §
1451(a) Stelmokas's certificate of naturalization must be
canceled and his citizenship revoked if his citizenship was
"illegally procured" or "procured by concealment of a material
fact or by willful misrepresentation." It also pointed out that
Stelmokas could not have procured his citizenship lawfully in
1955 if his admission to permanent residence in 1949 had not been
lawful. 8 U.S.C. § 1427; Fedorenko, 449 U.S. at 514-16, 101
S.Ct. at 750-52.
The court held that under the DPA § 2(b), 62 Stat.
1009, Stelmokas had been ineligible to immigrate to the United
States because his actions in the Kaunas ghetto assisted the
enemy in persecuting civilian populations. Consequently,
Stelmokas's entry into the United States as a permanent resident
was unlawful and he had procured his citizenship unlawfully.
SeeFedorenko, 449 U.S. at 512, 101 S.Ct. at 750 ("an individual's
service as a concentration camp armed guard -- whether voluntary
or involuntary -- made him ineligible for a visa"). The court
then held that Stelmokas also had been ineligible for a visa
because he voluntarily had assisted enemy forces during World War
II. See United States v. Kowalchuk, 773 F.2d 488, 496-97 (3d
Cir. 1985) (in banc), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188
(1986). Thus, for this additional reason, his entry as a
permanent resident was unlawful and he had procured his
citizenship unlawfully. The court next held that the
Schutzmannschaft was a movement hostile to the United States, so
that Stelmokas was barred from entering the United States because
of his membership in it under DPA § 13, 62 Stat. 1014.
Consequently, he had procured his citizenship illegally.
The court held that DPA § 10, 62 Stat. 1013, barred
Stelmokas from entering the country for permanent residence
because he willfully had misrepresented material facts to gain
admission. In particular, he concealed his Schutzmannschaft and
Luftwaffe service from the DPC analyst and the vice-consul.
These concealments were material because they misrepresented the
facts that he had assisted the enemy in the persecution of
civilians, voluntarily assisted the Axis powers in their military
operations, and had been a member of a movement hostile to the
United States and its form of government. The court found that
these misrepresentations would have a natural tendency to
influence the DPC and the vice-consul in making their decisions
to classify Stelmokas as a displaced person and to admit him to
the United States. Consequently, Stelmokas's entry into the
United States as a permanent resident was unlawful so he had
procured his citizenship unlawfully. See United States v.
Kowalchuk, 773 F.2d at 493.
The court next held that Stelmokas had procured his
citizenship unlawfully because he was not entitled to a visa to
enter the country as a permanent resident as he had advocated or
acquiesced in activities or conduct contrary to civilization and
human decency on behalf of the Axis countries contrary to the
regulations then in effect. The court also held that he did not
qualify for naturalization because he lacked good moral character
when he was naturalized, so that he had procured his citizenship
unlawfully. 8 U.S.C. § 1427(a)(3); 8 U.S.C. § 1101(f). The
court held that Stelmokas lacked good moral character because he
voluntarily joined the Schutzmannschaft, enforced the confinement
of the Jews in the brutal conditions of the Kaunas ghetto, and
was on duty when his battalion assisted in the Gross Aktion.
The court held that the government had not established
its case in only one respect. Under the INA, procuring
citizenship "by concealment of a material fact or by willful
misrepresentation" is grounds for denaturalization. 8 U.S.C. §
1451(a). The court held, however, that concealment must be made
in order to obtain naturalization for that charge to apply, as
distinguished from concealment made to obtain a visa.
Accordingly, the court held that the misrepresentations to the
DPC analyst and to the vice-consul could not apply to the
concealment count with respect to procuring citizenship. The
court therefore held that the concealment count failed because
the government did not establish that Stelmokas's statements in
connection with his naturalization willfully concealed facts or
included material misrepresentations of fact.
The court ended its opinion by reiterating that
Stelmokas's citizenship could be revoked only on the basis of
clear, unequivocal, and convincing evidence. Consequently, the
government had a heavy burden in the case. The court then
emphasized that there was no doubt but that Stelmokas voluntarily
joined the Schutzmannschaft in 1941 and served in it until mid-
1944, when he was transferred to a Luftwaffe unit in Germany.
The court noted that he was the commander of the ghetto guard and
was on duty in Kaunas during the Gross Aktion, when his battalion
assisted in the massacre of 9,200 Jews. Furthermore, the court
stated that there was no doubt that he fought anti-German
partisans later in the war, and that he willfully misrepresented
his wartime activities when he applied for admission to this
country. For all these reasons, the court revoked his
citizenship. Stelmokas then appealed.

II. DISCUSSION
Stelmokas raises four issues on this appeal. He
contends that: (1) the district court erred in drawing adverse
inferences based on his Fifth Amendment plea; (2) the district
court erred in admitting as ancient documents records made during
the German occupation of Lithuania and certain other wartime
documents; (3) the government failed to establish its case by
clear, unequivocal and convincing evidence so as not to leave its
allegations regarding his wartime activities in doubt; and (4)
his alleged misrepresentations regarding his wartime employment
and residence were not shown to be material. We will discuss
these contentions in the order presented.

A. The privilege against self-incrimination

We are perplexed by aspects of Stelmokas's Fifth
Amendment argument. He initially contends that the district
court erred when it held that he did not face a real and
substantial threat of domestic and foreign prosecution. Yet we
do not understand how the alleged error prejudiced him because
the district court, though overruling his plea of the privilege
against self-incrimination, did not sanction him for persisting
with that plea. The court did not strike Stelmokas's answer,
deem the allegations of the complaint admitted, enter a default
judgment against him, preclude him from presenting witnesses
including even himself, or hold him in contempt. See S.E.C. v.
Graystone Nash, Inc., 25 F.3d 187, 189-91 (3d Cir. 1994).
Quite to the contrary, the district court merely drew
inferences against Stelmokas with respect to what his testimony
would have revealed had he testified. Of course, as we shall
demonstrate, the court could have drawn these inferences even if
it had upheld Stelmokas's claim of the privilege against self-
incrimination. Thus, while the court overruled Stelmokas's plea
of the Fifth Amendment, its ruling had no consequence because the
court acted as if it had upheld the plea. It thus appears that
to the extent the parties' briefs address whether the court
correctly overruled the claim of the privilege against self-
incrimination, they focus on a non-issue. Therefore, we will not
consider whether the court correctly held that Stelmokas could
not plead the privilege against self-incrimination.
Stelmokas argues, however, that the court was not
justified in drawing inferences against him for two reasons.
First, he suggests that, in view of his attorney's statement at
trial that Stelmokas "may" waive the privilege, it is not clear
that he, indeed, did claim the privilege. Second, he argues that
"no penalty may be imposed on a witness asserting the privilege"
against self-incrimination. Br. at 19.
We reject both of these contentions. First, the court
was justified in treating the case as though Stelmokas never
retreated from his claim of the privilege against self-
incrimination. Indeed, it hardly could have done otherwise.
After all, Stelmokas claimed the privilege in his answer and at
his deposition and he never filed an amended answer as the court
ordered, or indicate that he would make himself available to
complete his deposition by answering all the questions asked.
Rather, his attorney merely said at the trial that he "may" waive
the privilege, which he never did.
In S.E.C. v. Graystone Nash, Inc., we pointed out that
"because the privilege [against self-incrimination] may be
initially invoked and later waived at a time when an adverse
party can no longer secure the benefits of discovery, the
potential for exploitation is apparent [because abuse may cause]
unfair prejudice to the opposing litigant." 25 F.3d at 190. At
the very least, therefore, if a party initially claims the
privilege against self-incrimination and then intends to waive
it, he should do so clearly. If Stelmokas had waived the
privilege clearly at the outset of the trial, the government
could have asked for an opportunity to take a meaningful
deposition. Stelmokas's maneuvering precluded that possibility.
Indeed, Stelmokas's attorney at the trial, without apparent
recognition of the significance of his statement, essentially
admitted that he was abusing the claim of the privilege by
indicating that he was keeping his options open and that he did
not know what he would advise Stelmokas to do. We will not
reward such manipulation. Rather, Stelmokas must bear its
consequences.
Second, Stelmokas's argument that he cannot be
penalized for claiming the privilege relies on such cases as
Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132 (1977), and
Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967). But
those cases dealt with the imposition of a substantial penalty
for the exercise of the privilege against self-incrimination,
e.g., the loss of public office. As we have pointed out, in this
case the court did not impose any sanction on Stelmokas because
of his refusal to answer questions.
Thus, this case is controlled by the principles set
forth in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551
(1976). There, a prisoner at a disciplinary hearing was advised
that he had a right to remain silent but that, if he did so, his
silence would be held against him. He remained silent and his
silence was given evidentiary value against him. The Supreme
Court held that the use of his silence in this manner was proper.
It distinguished the line of cases, including Lefkowitz and
Garrity, that did not allow the imposition of a penalty for
pleading the privilege because those cases involved the loss of
employment or the opportunity to contract with the state for
exercising Fifth Amendment rights. Id. at 316-17, 96 S.Ct. at
1557. The Court also distinguished Griffin v. California, 380
U.S. 609, 85 S.Ct. 1229 (1965), which held that in a criminalcase a jury
could not be instructed that it could draw an
inference of guilt from the defendant's failure to testify.
Baxter, 425 U.S. at 317, 96 S.Ct. at 1557.
The Supreme Court in Baxter held that the case was
controlled by the principle that, in civil cases, "the Fifth
Amendment does not forbid adverse inferences against parties . .
. when they refuse to testify in response to probative evidence
offered against them." Id. at 318, 96 S.Ct. at 1558. Thus, as
long as there was independent evidence to support the negative
inferences beyond the invocation of the privilege against self-
incrimination, the inferences could be drawn. See also United
States v. Local 560 of the Int'l Bhd. of Teamsters, etc., 780
F.2d 267, 292 n.32 (3d Cir. 1985), cert. denied, 476 U.S. 1140,
106 S.Ct. 2247 (1986). In this case, there was a plethora of
independent evidence to support the inferences that the district
court drew based on Stelmokas's claim of the privilege, so the
court was justified in drawing the inferences it did.
We recognize that even though this is a civil case, seeUnited
States v. Osidach, 513 F. Supp. 51, 57 (E.D. Pa. 1981), it
may have drastic consequences for Stelmokas. After all, at oral
argument the attorneys told us that an affirmance probably will
lead to his deportation. But the severity of the consequences do
not alter the legal determination of whether the court may draw
inferences against a person pleading the privilege against self-
incrimination. Baxter itself was a disciplinary case and had
penal overtones. We also note that the Supreme Court recently
has adhered to the sharp distinction between proceedings which,
though possessing what might be regarded as a punitive impact,
are civil, and traditional criminal proceedings. Thus, in United
States v. Ursery, 116 S.Ct. 2135, 2138 (1996), the Court held
that civil forfeitures in general do not constitute punishment
for purposes of the Double Jeopardy Clause. Accordingly, the
Court would not regard a civil forfeiture action as a criminal
proceeding, even though the proceeding resulted in an owner
losing his property. This case cannot be regarded as more
punitive than Ursery. In sum, a case is either civil or criminal
and in the present context this case is civil.
We make one final point on the self-incrimination
argument. In this case, there was a bench trial. Thus, unlike a
jury trial in which a jury will return a general verdict or
answer specific interrogatories, the district court had an
opportunity to explain the bases in the evidence for its factual
findings. It did so by making it crystal clear that, even if it
had not drawn any inferences from Stelmokas's claim of the
privilege, it would have made the same factual findings.
Accordingly, even if the district court erred in drawing the
inferences, its error would have been harmless for, as we explain
below, the evidence without the inferences supported the court's
findings.

B. The ancient documents
Stelmokas argues that the district court erred by
admitting into evidence occupation documents obtained from
Lithuanian archives and other sources as ancient documents
pursuant to Fed. R. Evid. 803(16) which, as an exception to the
hearsay rule, allows the admission of "[s]tatements in a document
in existence twenty years or more the authenticity of which is
established." The challenged documents demonstrated Stelmokas's
employment and activities during World War II. In particular,
Stelmokas argues that these documents "lack any assurance of
trustworthiness." Br. at 22.
Stelmokas focuses his objection on two groups of
documents, principally those recovered from the records of the
Lithuanian Schutzmannschaft that were located at Vilnius, the
Lithuanian capital, and secondarily those recovered from German
records found at other locations. While Stelmokas recognizes
that Germans or Lithuanians purportedly wrote the
Schutzmannschaft documents, he observes that the Vilnius
documents were kept from public inspection by the Soviet Union
until 1990. Though he also acknowledges that the government did
not have to demonstrate a strict chain of custody for the
documents to be admitted, in his view the documents cannot be
treated as authentic because it is unclear how they were moved to
the Vilnius archives. Thus, he argues that the documents were
not found in a place where, if authentic, they "would likely be"
as set forth in Fed. R. Evid. 901(b)(8).
Stelmokas further argues that the documents are
suspicious because the Germans destroyed many documents
demonstrating their criminal conduct, but "preserve[d] evidence
of Lithuanian misconduct." Br. at 27. Furthermore, he regards
the documents as questionable because they came from Soviet
sources, and he claims that it was Soviet policy to discredit the
Baltic states. Id. Finally, he argues, though with less
particularly, that the government did not establish the chain of
custody and authenticity of the second group of documents, i.e.,
those from German sources.
We review the district court's ruling that admitted the
evidence over a challenge to its authenticity under an abuse of
discretion standard. See United States v. McGlory, 968 F.2d 309,
328 (3d Cir.), cert. denied, 506 U.S. 956, 113 S.Ct. 415 (1992).
Federal Rule of Evidence 901(a) provides that the requirement of
"authentication . . . as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims." Rule 901(a) is
written, of course, in general terms, but is followed by Rule
901(b) which includes examples of methods by which to
authenticate evidence. Rule 901(b)(8) provides that
authentication of an ancient document may be supplied by a
demonstration that a document is in such condition as to create
no suspicion concerning its authenticity, was in a place where,
if authentic, it likely would be, and has been in existence 20
years or more at the time it is offered. Ancient documents are
admissible into evidence as an exception to the hearsay rule.
See United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 1976).
We cannot say that the district court abused its
discretion in admitting the documents in question. Initially, we
observe that Stelmokas's argument in part is self-defeating
because his contention that the Germans destroyed documents
demonstrating their own criminal conduct, but preserved documents
incriminating the Lithuanians, supports rather than undermines
the district court's conclusions that the documents incriminating
him were legitimate. Furthermore, the documents were certified
by competent Lithuanian archival personnel. Hilberg, who has
testified in many cases regarding eastern European Holocaust
records and whose expertise cannot be doubted, testified that the
documents he examined were authentic and that the documents found
in Soviet possession are as reliable as documents from western
countries. He said that he found the documents to be reliable
and not to be forgeries. He also testified that one would expect
to find documents relating to the Lithuanian Schutzmannschaft in
Vilnius, the Lithuanian capital.
MacQueen testified that he personally searched archives
in Lithuania and that the documents he found were authentic and
reliable. In particular, he had found Schutzmannschaft records
implicating Stelmokas in Vilnius, which is where they were likely
to be found. Stelmokas simply has not produced any evidence or
forwarded any reason to impeach the validity of the documents.
See Sokaogon Chippewa Community v. Exxon Corp., 805 F. Supp. 680,
711 n.34 (E.D. Wis. 1992), aff'd, 2 F.3d 219 (7th Cir. 1993),
cert. denied, 114 S.Ct. 1304 (1994).
We also point out that German records demonstrate that
while Stelmokas was in the Luftwaffe, he was hospitalized in
Germany. We cannot conceive that any rational person would
believe that someone set out to incriminate Stelmokas and planted
fake documents in widely-scattered places for that purpose. If
anyone created the documents to injure Stelmokas, the fabricator
most peculiarly placed the bulk of the documents in a location
where they were not accessible to the public and from which, in
fact, they were not released for decades. There certainly is no
evidence in the record that anyone hatched such a bizarre plot.
Indeed, Stelmokas does not explain what motivation any person
would have had to fabricate documents so as to attribute
responsibility to him for the atrocities in Lithuania or how that
could have been accomplished. Stelmokas was hardly a prominent
figure in the war and it is difficult to conceive why someone
would go to the lengths he suggests in order to frame him.
Stelmokas's attack on the authenticity of the documents is not
substantial.

C. Sufficiency of the evidence
Stelmokas next argues that the government failed to
establish its case by clear, unequivocal, and convincing evidence
so as to leave no doubt as to its allegations regarding
Stelmokas's wartime activities. In considering this allegation,
we determine whether the district court's findings are clearly
erroneous. Oberti v. Board of Ed., 995 F.2d 1204, 1220 (3d Cir.
1993). Of course, they will not be clearly erroneous if
supported by clear, unequivocal, and convincing evidence.
We have reviewed the record and have concluded that the
district court's findings are not clearly erroneous, as the
evidence in the record fully supports them. The ultimate factual
issue for resolution in this case was whether Stelmokas resided
in the United States for five years "after being lawfully
admitted for permanent residence." 8 U.S.C. § 1427. If he was
not lawfully admitted, he was not eligible for citizenship.
Resolution of this issue in turn depends on whether the district
court's findings that Stelmokas should have been barred for six
different reasons from entering the country were clearly
erroneous as to all six. We thus emphasize that even if we
upheld the findings on only one of the six bases, we would
affirm.
In fact, the government demonstrated beyond all doubt
that Stelmokas was not lawfully admitted for permanent residence
for all six reasons. The evidence against Stelmokas was
overwhelming, even without the inferences the court drew from
Stelmokas's Fifth Amendment plea and, as Stelmokas called no
witnesses, the evidence was not rebutted. In the circumstances,
we would serve no useful purpose in detailing all the evidence to
support each of the charges against him.
We highlight two examples of how Stelmokas argues his
case. He contends that there is no proof that he joined the
Schutzmannschaft voluntarily. While it is true that no person
testified that he recalled seeing Stelmokas sign up for the
Schutzmannschaft, his contention that there is no proof that he
joined voluntarily ignores the record. The evidence shows that
when Stelmokas joined the Schutzmannschaft, service of all its
officers was voluntary as there was an ample supply of candidates
and conscription was not necessary. Indeed, for at least several
months after Stelmokas joined the Schutzmannschaft, its members
could be released at their own request. Obviously, if the
evidence demonstrated that service of all Schutzmannschaftofficers was
voluntary, then a finding that a particular officer
served voluntarily is supported in the record. We also point out
that in addition to this positive proof that Stelmokas joined the
Schutzmannschaft voluntarily, the court drew the entirely
justified inference from Stelmokas's claim of the privilege
against self-incrimination that he joined voluntarily.
Another example of the weakness of Stelmokas's factual
arguments is his claim that he did not misrepresent his wartime
employment by concealing his membership in the Schutzmannschaft.
This contention is frivolous, for he acknowledges that he
represented to the DPC analyst and the vice-consul that from 1940
until 1943 he was a teacher in Seda. It is difficult to
understand how Stelmokas can argue that he did not misrepresent
his status as a Schutzmannschaft officer when he represented that
he was a teacher for most of the time that he was in reality such
an officer.
Stelmokas, however, takes a different approach to what
constitutes a misrepresentation. In a post-argument brief that
he filed at our direction, he recites that "[a] relevant
concealment would have occurred if the government had produced
evidence that Stelmokas was asked if he had been a member of the
Schutzmannschaft and said no." Br. at 3. Thus, Stelmokas would
require that the examiner have a reason to ask about a specific
narrowly defined matter. We reject his approach. In our view,
if you falsely represent that your employment is one thing when
your actual employment is completely different, then you have
concealed your true employment. In these circumstances, it is
perfectly clear that Stelmokas himself demonstrates that he made
a material misrepresentation when he sought displaced person
status and a visa. Surely the misrepresentation that Stelmokas
was a teacher was material because it hid his true employment as
a Schutzmannschaft officer.
Notwithstanding Stelmokas's failure to mount a
substantial attack on the court's findings, we focus on two
aspects of the government's case: Stelmokas's participation in
the Schutzmannshaft as a movement hostile to the United States
and his false statements to the DPC analyst and to the vice-
consul. As we indicated, section 13 of the DPA prohibited
issuance of a visa to any person "who is or has been a member of,
or participated in, any movement which is or has been hostile to
the United States or the form of government of the United
States." 62 Stat. 1014. It is beyond doubt that Stelmokas was
an officer in the Schutzmannschaft. It is also clear that the
Lithuanian Schutzmannschaft was on the State Department "List of
Organizations Considered Inimical to the United States." The
inimical list states that members of the Schutzmannschaft "are
considered collaborators except for those members . . . who can
produce evidence that they were conscripted and did not commit
atrocities or otherwise persecute civilian populations." Seeexhibit
4.242, app. 1672.
Stelmokas did not produce any such evidence. Indeed,
except for a small number of exhibits, he did not produce any
evidence at all. It is clear that Stelmokas voluntarily joined
the Schutzmannschaft and, while there is no eye-witness testimony
identifying him as a person who committed atrocities or otherwise
persecuted the civilian population, the only reasonable inference
to be drawn from the record is that he did exactly that. In any
event, with or without the reasonable inferences to be drawn from
the record, Stelmokas's service as an officer in the
Schutzmannschaft disqualified him from obtaining displaced person
status and a visa, as the Schutzmannschaft was a movement hostile
to the United States. See United States v. Kowalchuk, 773 F.2d
at 497 n.11; United States v. Koziy, 540 F. Supp. at 34; United
States v. Osidach, 513 F. Supp. at 78-79.
In his post-argument brief, Stelmokas makes disturbing
contentions with respect to the inimical list. He indicates that
"there is no evidence of record as to what, if any [inimical]
list, was in use in July and August of 1949 when [he] made his
applications to the [DPC] and the consulate." He then adds that
the "government has placed the so-called inimical list in
evidence but it is undated and there is no testimony as to when
it was published and whether the Lithuanian Schutzmannschaft was
on the list as early as the summer of 1949, and if so, what
effect it might have had, if any, on the decision of the DPC
examiner or vice consul." Br. at 22.
While we agree that there was no testimony at trial as
to what effect the presence of the Schutzmannschaft on the
inimical list might have had on the decisions of the examiner or
the vice-consul, we regard the balance of the quoted statements
in Stelmokas's brief as material misrepresentations. Near the
end of the trial, after the government's witnesses had testified
and shortly before the government rested, the following
proceedings took place:
THE COURT: Fine. What remains to be
done today?

MS. SLAVIN [the government attorney]:
Well, we would like to move Exhibit 4.242,
which is the inimical list, into evidence.
We have reached a stipulation.

THE COURT: Let me...

(Pause in proceedings.)

THE COURT: Okay. It was not received
yesterday. Is it being received --

MS. SLAVIN: We are moving it in --

THE COURT: -- in evidence by agreement
or is there a stipulation that you want to
read into the record?

MS. SLAVIN: The stipulation we have
 arrived at that was -- that the list was in
effect during the relevant period of Mr.
Stelmokas' immigration in 1949.

MR. CARROLL [Stelmokas's attorney]: And
I'm withdrawing my objection to that exhibit,
your Honor, for that reason.

THE COURT: Exhibit 4.242 will be
received in evidence.

(Government Exhibit 4.242 is admitted
into evidence.)
In the circumstances, it obviously is disingenuous for
Stelmokas's attorney on this appeal, who was trial counsel as
well, to challenge the use of the inimical list on the theory
that the evidence did not show it was in effect when Stelmokas
sought displaced person status and a visa. Of course, Exhibit
4.242 included the Lithuanian Schutzmannschaft on the list.
In any event, it would not matter if the
Schutzmannschaft was added to the inimical list after Stelmokas
obtained displaced person status and a visa and entered the
country. Stelmokas was barred from entering the country because
he was a member of the Schutzmannschaft, which was a movement
hostile to the United States. The date that the Schutzmannschaftwas
placed on the inimical list is not significant for purposes
of determining if it was a movement hostile to the United States
because its placement on the list established that it was such a
movement during World War II when Stelmokas was one of its
officers. The inimical list did not operate prospectively so
that a movement would be regarded as hostile to the United States
only after it was placed on the list. After all, the list
enumerated movements that existed during the Nazi era which ended
before the list's promulgation. Therefore, Stelmokas was
unlawfully admitted to the United States because, regardless of
when the Schutzmannschaft first appeared on the inimical list,
when Stelmokas served as a Schutzmannschaft officer it was a
movement hostile to the United States.
The second aspect of the evidence on which we comment
is Stelmokas' misrepresentations to the DPC analyst and the
American vice-consul in Hamburg. Neither the analyst nor the
vice-consul testified, but it is beyond dispute that when they
interviewed Stelmokas he told them nothing about his
Schutzmannschaft and Luftwaffe service. Rather, he told them
that during the war he was a teacher in Seda, Lithuania, and was
then a laborer in Dresden, Germany. There simply can be no doubt
but that the district court's findings demonstrate that Stelmokas
was not eligible to immigrate to the United States.

D. The materiality of Stelmokas's misrepresentation

Stelmokas's final argument is that the government did
not establish that his misrepresentations regarding his wartime
employment and residence were material. He contends that the
"government has usually attempted [to establish] proof of
materiality in these cases by calling consular or INS officials
to testify that their decisions would have been different if they
had known the truth." Br. at 48. See, e.g., United States v.
Kowalchuk, 773 F.2d at 496. He then correctly points out that
the government did not present any such evidence in this case.
Stelmokas's claim for relief on this basis faces the
insurmountable barrier that even if he is correct, we still must
affirm. The district court found for six different reasons, all
fully supported by evidence in the record, that Stelmokas was
ineligible for displaced person status and for a visa and thus
that he had not entered the United States lawfully and had not
been eligible for citizenship. Five of these reasons were
predicated on his conduct and associations during World War II,
and only one was based on his misrepresentations to the DPC
analyst and the vice-consul. Thus, even if Stelmokas had made no
misrepresentations to the DPC analyst or the vice-consul, we
would affirm because he procured his citizenship illegally as he
was not eligible for displaced person status and for a visa.
We recognize that a party might contend that if a court
of appeals rejected any of the bases for a district court's
conclusion that a defendant should be denaturalized, it should
remand the case so that the district court then could consider
whether to grant relief predicated on the findings the court of
appeals has upheld. In that event, a finding that a defendant
had not made material misrepresentations in connection with his
visa application could be significant. The problem with such an
argument is that the courts do not have equitable discretion to
deny the government a judgment of denaturalization to which it
otherwise would be entitled. Fedorenko, 449 U.S. at 517-18, 101
S.Ct. at 752-53. Thus, even if we held that Stelmokas's
misrepresentations were not material and, indeed, even if he made
no representations at all to obtain the visa, his appeal is
doomed, as he was not eligible for a visa, and we must uphold the
district court even if we sustain only one of the bases for its
conclusion that he had been ineligible to enter the United
States. Of course, we are sustaining the district court's
conclusions on all six counts that Stelmokas was ineligible to
enter the United States. Nevertheless, we will address the
materiality argument on its merits, as it does relate to one of
the bases for relief.
Initially, on this appeal Stelmokas and the government
agreed that Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537
(1988), set the standard for materiality in this case, even
though that case concerned materiality in citizenship
applications under the INA, 8 U.S.C. § 1451(a), rather than
materiality under section 10 of the DPA. Thus, in his opening
brief, Stelmokas said that the "current test of materiality is
found in Kungys." Br. at 47. Indeed, in his "Statement of
Issues" he included the following: "Were the defendant's
misrepresentations concerning his former occupation and residence
'material' as defined in Kungys v. United States, 485 U.S. 759
(1988)." Under Kungys, a misrepresentation is material if it has
a natural tendency to affect the officers' decisions, in this
case the decisions of the DPC analyst and the vice-consul. 485
U.S. at 770-72, 108 S.Ct. at 1546-47. Furthermore, it is clear
from Kungys that a misrepresentation can be material even where
if the truth had been told, the decision maker ultimately would
have reached the same result. Under Kungys, the materiality of a
misrepresentation in a denaturalization proceeding is a legal
rather than a factual question. Id. at 772, 108 S.Ct. at 1547.
While the government continues to rely on Kungys,
Stelmokas changed his position in his post-argument brief in
which he now contends that "Kungys simply did not deal with the
visa or DPA issues." Br. at 1. Furthermore, he cites United
States v. Gaudin, 115 S.Ct. 2310 (1995), for the first time on
this appeal in that brief, pointing out that the Supreme Court
held there that materiality was a factual rather than a legal
matter in the circumstances of that case. We would be justified
in refusing to entertain Stelmokas's post-argument change in
position, for we do not think that a party should be able to
change his legal contentions after oral argument. But, mindful
of the importance of this case to Stelmokas, we nonetheless will
discuss his new position.
While we cannot predict the ultimate implications of
Gaudin, we do know that Gaudin did not affect the Kungys holding
that, in a denaturalization proceeding, materiality of a
misrepresentation is a legal issue. Quite the contrary is true
because the Gaudin court discussed Kungys at length and made it
clear that it was distinguishing Kungys because that case dealt
with whether "an appellate court must remand to a district court
for a determination of materiality in a denaturalization
proceeding," whereas Gaudin was concerned with a defendant's
Sixth Amendment right to have a jury determine materiality in a
criminal proceeding. Gaudin, 115 S.Ct. at 2319.
Of course, Gaudin followed a familiar track because it
is not unusual for the Court to extend more extensive procedural
protections to a defendant in a criminal case than to a party in
a civil case. Indeed, as we point out above, the Court in Baxter
v. Palmigiano distinguished Griffin v. California on the ground
that Griffin, unlike Baxter, was a criminal case. Baxter, 425
U.S. at 317, 96 S.Ct. at 1557. Thus, while Gaudin may cause
courts to cabin Kungys to the extent that it holds that a
determination of materiality is a legal issue, Kungys's treatment
of materiality as a legal issue remains applicable here.
Stelmokas now also seems to contend that because the
procedure in an application for citizenship differs from that
under section 10 of the DPA, the definition of what is material
in Kungys is inapplicable here. In particular, in his post-
argument brief, he contends that "Kungys simply did not deal with
the visa or DPA eligibility issues." Br. at 1. This argument is
distinct from Stelmokas's contention that materiality is a
factual question. We reject this attempt to distinguish Kungys.
While the procedures followed and questions asked when an
applicant seeks a visa differ from those applicable when an
applicant seeks citizenship, we see no reason why the test of
materiality under Kungys would not apply in DPA eligibility
cases. Materiality, after all, refers to the effect of a
representation on a decision maker regardless of the nature of
the decision. In other words, no matter what is being decided,
the misrepresentation is material under Kungys if it has the
natural tendency to affect the decision. We see no reason not to
apply that test here. Thus, Kungys is doubly significant here,
for it establishes that the resolution of materiality is a legal
undertaking and it sets forth the test of what is material.
Inasmuch as under Kungys the materiality of a
misrepresentation in a denaturalization proceeding is a matter of
law, not fact, there cannot possibly be a need for the government
to produce evidence from officials that if the truth had been
told the officers would have reached a different result. Kungys,
485 U.S. at 772, 108 S.Ct. at 1547. After all, evidence is not
needed for a court to make a legal determination. Thus, while
the government frequently has produced evidence of that
character, the effect of Kungys in 1988 has been to eliminate the
need for such evidence, if it ever was required.
We do not go so far as to suggest that evidence of what
a consular or DPC official would have done if given the correct
information is not admissible because we have no need to reach
that point. Indeed, we even will assume that in a close case
evidence of that character would be useful for the court in
making a legal determination concerning the materiality of a
misrepresentation. After all, the Supreme Court, prior to Kungysin
Fedorenko v. United States, quoted and relied on such evidence
produced by the government, though it noted that it was proffered
and accepted by the court "[w]ithout objection" from the
defendant. 449 U.S. at 448-50, 101 S.Ct. at 743-44. Yet, in
Fedorenko the court did say that the defendant was ineligible for
a visa "as a matter of law." Fedorenko, 449 U.S. at 509, 101
S.Ct. at 749.
Though we thus acknowledge that in a close case
evidence of whether or not the consular official's decision would
have been different if he knew the truth might be helpful to the
court in deciding a materiality issue, this case is not close.
In our view, it cannot reasonably be argued that Stelmokas's
misrepresentation that he was a laborer and a school teacher when
in fact he was an officer in the Schutzmannschaft and served in
the Luftwaffe could not have had a natural tendency to influence
the DPC analyst and the vice-consul. Indeed, probably without
recognizing the implications of his statement, Stelmokas admits
as much, for in his post-argument brief he describes his
fabricated wartime employment as a "neutral" factor in the
decision to admit him to the United States. Br. at 3. He hardly
could contend that a revelation of his real Schutzmannschaft and
Luftwaffe service would have amounted to the disclosure of a
"neutral" factor.
We have no doubt that if Stelmokas had told the truth
about his service on behalf of Germany during World War II he
never would have obtained his visa for permanent residency in the
United States, and he never would have been naturalized. After
all, we have found that these activities disqualified him from
securing displaced person status and from obtaining a visa.
Thus, the misrepresentations surely were material. Of course,
there is a certain irony in Stelmokas's contention that his
misrepresentations were not material, because when he made them
he must have recognized the need to hide the truth so that he
could be admitted to this country. At least we can discern no
other motive that he might have had to conceal his wartime
activities. The truth is inescapable: he invented his wartime
history out of thin air so that he could be admitted to the
United States and ultimately obtain citizenship.
We make an additional observation with respect to the
custom of the government of calling consular or INS officials to
testify that their decisions would have been different if they
had known the truth. As we have indicated, Stelmokas seems to
believe that the materiality of a misrepresentation is a factual
issue and reasons that the fact of materiality cannot be
established without testimony as to what the consequence of the
provision of truthful information to the decision maker would
have been. Yet, even treating materiality as a factual question,
we see no reason why the district court as the trier of the fact
could not conclude, without such testimony, that the
misrepresentation had a natural tendency to affect the decision
and thus was material. We will not convert the government's
custom in producing consular or INS testimony to establish the
materiality of a misrepresentation into a requirement that it
must do so, for we are not aware of any case which holds that the
government must establish the materiality of a misrepresentation
with testimony from a consular or INS officer that a truthful
disclosure would have produced a different result.
We point out that our conclusion that evidence on
materiality of a misrepresentation is not necessary is in harmony
with our treatment of materiality in other contexts. Bethel v.
McAllister Bros., Inc., 81 F.3d 376 (3d Cir. 1996), is a recent
example. In Bethel, the plaintiff obtained a substantial verdict
on a defamation claim. Subsequently, the defendant moved for
relief from the judgment entered on the verdict based on the
plaintiff's testimony at an arbitration proceeding after the
trial in the defamation case which was inconsistent with his
earlier testimony at trial. The district court granted relief
and ordered a new trial on the defamation action. The plaintiff
appealed, and we affirmed.
Bethel is significant to this case because the district
court and this court in Bethel were concerned with whether the
"misrepresentation" was "material" to the plaintiff's case. Id.
at 385. We held that it was not merely material, it was crucial.
In entertaining the motion for relief from judgment, the district
court developed a record establishing the misrepresentation by
comparing the testimony at the trial and the arbitration. But no
witness testified that the misrepresentation was material.
Rather, the district court, predicated on its own view of the
record, concluded that it was material, and we reached the same
conclusion using an identical methodology. Thus, without citing
Kungys, both courts in Bethel followed the Kungys formula of
basing a determination of "the materiality of a statement . . .
upon a factual evidentiary showing" and then making "an
interpretation of substantive law." Kungys, 485 U.S. at 772, 108
S.Ct. at 1547 (omitting citation). That procedure is exactly
what the district court did here, and it is exactly what we do on
this appeal. In fact, materiality frequently is treated as a
legal question, sometimes in a trial context as in Kungys, see In
re Cohn, 54 F.3d 1108, 1115 (3d Cir. 1995), and sometimes in
other proceedings. See, e.g., United States v. Pelullo, 14 F.3d
881, 886 (3d Cir. 1994); United States v. Gray, 878 F.2d 702, 714
(3d Cir. 1989).

E. Comments on the dissent
We close the discussion portion of our opinion with
comment on two aspects of Judge Aldisert's dissent, sections VII
and VIII. We do not address the rest of the dissent as our
opinion adequately explains the bases for our conclusions and we
do not regard the dissent as detracting from them. We comment on
his discussion in section VII of the dissent on Count IV of the
complaint in which the government charged that Stelmokas
illegally procured his naturalization because he misrepresented
his wartime record to the DPC and to the vice-consul and thus was
ineligible to enter the country. We focus our attention on this
point because Judge Aldisert includes in his dissent a concession
which causes the dissent to self-destruct, namely "that
Stelmokas's failure to disclose his wartime military status would
have had a natural tendency to influence immigration decisions."
Dissent typescript at 29.
Initially on this point we reiterate that 8 U.S.C. §
1451(a) provides in the disjunctive for a certificate of
naturalization to be revoked if it was "illegally procured" or
was "procured by concealment of a material fact or by willful
misrepresentation." In an "illegally procured" case, the alien
obtains his naturalization illegally, in this case the illegality
being that Stelmokas was not eligible for naturalization as he
was not admissible into the United States. In a "procured by"
case, the alien obtains his naturalization by concealment of a
material fact or by misrepresentation. While Judge Aldisert
asserts that the government attempted in Count IV to rely on the
"procured by" language, in that count the references to
Stelmokas's misrepresentations to the DPC analyst and the vice-
counsel were germane only to the "illegally procured" component
of section 1451(a). Thus, Judge Aldisert's suggestion that Count
IV of the complaint related in any way to the "procured by"
language of section 1451(a) is simply not true. Furthermore,
while the government unsuccessfully did use Stelmokas's
misrepresentations to the DPC analyst and the vice-consul in the
only count of its complaint asserting a "procured by" charge,
Count VII, the government does not pursue its case on that count
on this appeal.
Judge Aldisert then indicates, quite correctly, that
the government's case on Count IV begins with the major premises
that DPA § 10, 62 Stat. 1013, barred from immigration any person
who willfully misrepresented material facts to gain entry as a
displaced person. He then correctly indicates that the
government argues that Stelmokas made material misrepresentations
so that his entry was unlawful and he thus illegally procured his
naturalization. He then indicates that the "critical inquiry is
whether the government met its important threshold burden of
proving a misrepresentation as defined in the Displaced Persons
Act." Dissent typescript At 27. (Emphasis added.)
The problem with the foregoing statement is inclusion
of the word "threshold" for if the government established that
Stelmokas made material misrepresentations to the DPC analyst and
the vice-consul the case is over and the government wins. Why is
this so? The answer is quite clear. DPA § 10 provides that 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 admissible into
the United States." Of course, as we already have explained,
that person is thus ineligible for naturalization.
Rather, as Judge Aldisert acknowledges, the test of
materiality comes from Kungys, i.e., does the misrepresentation
have a natural tendency to influence or was it capable of
influencing the decision of the decision making body to which it
was addressed? While it appears that Judge Aldisert is reluctant
to acknowledge that Stelmokas's lies to the DPC analyst and the
vice-consul about his wartime activities were material, we
reiterate that he does concede "that Stelmokas' failure to
disclose his wartime military status would have had a natural
tendency to influence immigration decisions." Dissent typescript
at 29. Under Kungys the misrepresentations were therefore
material without any showing of their effect on the DPC analyst
or the vice-consul.
Notwithstanding the clear statutory scheme, Judge
Aldisert either tries to add more elements to the definition of
materiality or to demonstrate that the government had to show
that the misrepresentations led to Stelmokas's admission into the
country. As we have indicated, the government has demonstrated
the Stelmokas's misrepresentations led to his admission into the
United States but it did not have to do so. Nevertheless we
address the point Judge Aldisert makes. Judge Aldisert fails in
this effort to demonstrate that the government had to demonstrate
anything beyond the conceded fact that Stelmokas's
misrepresentations had a natural tendency to influence the
immigration decisions. The reason he fails is that he relies on
principles inapplicable in a case under the "illegally procured"
clause of section 1451(a) when the case is predicated, as is this
case in Count IV, on an alien having made a material
misrepresentation under DPA § 10 for the purpose of gaining
admission into the United States. Thus, Judge Aldisert makes the
following statement which is simply wrong in this "illegally
procured" case under section 1451(a): "In denaturalization cases,
equally important to establishing a material statement is the
presentation of evidence that the misrepresentation procured the
order and certificate of naturalization." Dissent typescript at
29. The problem with the statement is that in "illegally
procured" cases there is no requirement that a misrepresentation
enabled the alien to procure anything. Rather, in an illegally
procured case dependent on a misrepresentation made when the
alien sought admission into the United States, under DPA § 10 the
government merely need prove that the misrepresentation for the
purpose of obtaining admission into the United States was
material. Furthermore, Judge Aldisert's statement is wrong for
the additional reason that Stelmokas did not make his
misrepresentations to procure the order and certificate of
naturalization. He made them to obtain displaced person status
and to be admitted into the United States.
We reiterate that Stelmokas's misrepresentations to the
DPC analyst and the vice-consul are significant because under DPA
§ 10 an alien who makes a material misrepresentation thereafter
is not admissible into the United States. Thus, if an alien who
made a material misrepresentation is admitted and is naturalized,
he has illegally procured his naturalization without regard for
whether he procured anything by the misrepresentation. We
further emphasize that DPA § 10 in the clearest possible terms
speaks prospectively, i.e., "thereafter" an alien making
misrepresentations is not admissible into the United States.
Accordingly, it is clear beyond doubt that once Stelmokas made
his misrepresentations to the DPC analyst and the vice-consul, he
was ineligible to enter the United States, because, in Judge
Aldisert's words, his "failure to disclose his wartime military
status would have had a natural tendency to influence immigration
decisions." Accordingly, Stelmokas could not be naturalized and
he illegally procured his citizenship. Nothing in DPA § 10
requires that the alien procure his admission into the United
States or anything else by his misrepresentations for even if the
misrepresentations are uncovered immediately, so that the alien
does not obtain displaced persons status or is not admitted to
the United States, he is ineligible for admission to the United
States after he makes his misrepresentations.
For reasons that must be driven by Judge Aldisert's
sense that there is something unfair in the prosecution of this
case he continues to develop his dissent along the same erroneous
lines that we have described. Thus, he points out that in Kungys"the
government was obligated to demonstrate that Kungys'
citizenship status was procured by his material
misrepresentations." Dissent typescript at 29. He then
inferentially acknowledges that Kungys was not an "illegally
procured" case but was a case where the naturalization was
"procured by concealment of a material fact or by willful
misrepresentation," for he recites that the "Government seems to
ask this court to apply different meanings to the term 'procured'
in the two clauses of § 1451(a)." Id. at 29-30. He argues that
"[t]here is no rational support for the suggestion that Congress
intended such an anomalistic reading of the same word in the same
section of the same statute. There is absolutely no rational
support for the notion that the government is not required to
produce evidence showing precisely how Stelmokas was 'unlawfullyadmitted'
and whether his naturalization was in fact 'illegally
procured.'" Id. at 30. "If under the second clause in § 1451
the government must show that the naturalization was 'procured
by' the alleged misrepresentation, as the Court held in Kungys,
then under the first clause certainly the government must
demonstrate that Stelmokas was ineligible and therefore
unlawfully admitted." Id.
The problem with the foregoing quoted language from the
dissent is obvious. The government did demonstrate, in Judge
Aldisert's words, that Stelmokas "was ineligible and therefore
unlawfully admitted." The government demonstrated that Stelmokas
made a material misrepresentation under DPA § 10, which
representation we once again point out did not have to result in
Stelmokas procuring anything to violate that section. Thus,
Stelmokas illegally procured his naturalization. Nothing could
be clearer.
It is also clear that in the "illegally procured" and
"procured by" clauses, "procured" has the same meaning and the
government does not contend otherwise. We repeat the distinction
between the two types of cases. In a "procured by" case the
alien obtains his naturalization by his misrepresentation. In an
"illegally procured" case the alien obtains his naturalization
illegally, in Stelmokas's case by entering the country when he
could not be admitted. Thus, "procured" means the same thing in
"illegally procured" and "procured by" cases. What differs is
the interdicted conduct by which the alien procured his
naturalization.
Of course, there is a good reason why the "procured by"
clause in section 1451(a) requires that the government
demonstrate more than that an alien made a material
misrepresentation for naturalization to be revoked because,
unlike DPA § 10 which applies prospectively so as to render an
alien inadmissible to the United States, section 1451(a) always
applies in a situation in which the alien already has procured
his naturalization. Thus, Judge Aldisert's emphasized quotation
of Kungys that "the naturalized citizen must have procured
citizenship as a result of the misrepresentation or concealment,"
485 U.S. at 767, 108 S.Ct. at 1544, dissent typescript at 31,
does not support his position because there the Court was
discussing a "procured by" not an "illegally procured" case.
Judge Aldisert goes further in misusing the plain language of
Kungys. First, he correctly says that Kungys indicates that in a
denaturalization proceeding there are "four independent
requirements." Dissent typescript at 31. In fact, the Court
said the following with respect to a "procured by" case under
section 1451(a):
So understood, the provision plainly contains
four independent requirements: the
naturalized citizen must have misrepresented
or concealed some fact, the misrepresentation
or concealment must have been willful, the
fact must have been material, and the
naturalized citizen must have procured
citizenship as a result of the
misrepresentation or concealment.

Kungys, 485 U.S. at 767, 108 S.Ct. 1544-45.
Yet this language does not help Stelmokas for in the
quotation the Court was not discussing an "illegally procured"
case. Rather, it set forth the elements of a "procured by" case.
Furthermore, the Court emphasized that the requirements were
"independent." Thus, it is impossible to read the statement in
Kungys that the naturalized citizen have procured citizenship as
a result of the misrepresentation into the materiality
requirement of a misrepresentation under DPA § 10. The
materiality and procurement considerations are "independent" of
each other and cannot be fused. Furthermore, the requirement in
a "procured by" case that the misrepresentation have resulted in
the alien obtaining citizenship cannot be attached to the
government's burden to show that Stelmokas's misrepresentations
to obtain displaced person status and a visa in this "illegally
procured" case were material. Thus, Judge Aldisert's concession
that Stelmokas's misrepresentations would have had a natural
tendency to influence the immigration decisions should lead him
to vote to affirm even if he rejects, as he does, the rest of the
government's case, for as we explained above, if the government
establishes that Stelmokas illegally procured his naturalization
for a single reason we must affirm the district court.
Judge Aldisert discusses the possibility of the
government producing evidence of what consular officials would
have done if Stelmokas had not deceived them but we will not
discuss this point as we have addressed it above. Eventually he
gets back to his central theme on Count IV but at that point he
inexplicably compounds his errors for he says that "the
government has not met its high burden of proof in this case
because it failed to produce evidence that Stelmokas'
misrepresentations procured the decision of the DPC analyst and
the naturalization officials." Dissent typescript at 38.
(Emphasis added.) Of course, the "naturalization officials" have
nothing to do with this case on Count IV and thus the government
does not contend that any misrepresentation to them is germane to
that count. Furthermore, the government did not have to show
that Stelmokas's misrepresentations to the DPC analyst and the
vice-consul procured the decision of the naturalization officials
to grant naturalization as the misrepresentations were critical
as they led to his admission into the United States.
The second aspect of Judge Aldisert's dissent on which
we comment is part VIII in which he expresses due process and
fairness concerns. We point out that Stelmokas does not contend
that the prosecution of the case has denied him due process of
law. Accordingly, this court should not be concerned with Judge
Aldisert's observation that with the passage of time "witnesses
disappear and memories fade." Dissent typescript at 42. In any
event, lest too many tears be shed for Stelmokas, we point out
that one witness has not disappeared and we have no reason to
believe his memory has faded. That witness, of course, is
Stelmokas himself who with so much at stake persisted in his plea
of the privilege against self-incrimination notwithstanding the
order of the district court overruling the plea.

III. CONCLUSION
 After a careful examination of this matter, we have
concluded that the district court made no errors of law and that
the record fully supports and, in fact, compels the district
court's conclusion that Stelmokas did not qualify for admission
to this country as a displaced person. Thus the district court
correctly revoked his citizenship and ordered him to surrender
his certificate of naturalization. While many years have passed
since his admission to the country and his obtaining of
citizenship, it is not too late to remedy the wrong done when he
was admitted. Accordingly, we will affirm the judgment of August
2, 1995.

UNITED STATES v. STELMOKAS - NO. 95-1894

STAPLETON, J., Concurring:

I feel compelled to write separately because an
accusation of personal participation in the atrocities of the
Holocaust is a grave matter, and a judicial finding of such
participation understandably carries with it extrajudicial,
collateral consequences unrelated to citizenship and
deportability. While I agree with the court that the government
has carried its burden on six counts of its complaint, I
conclude that the evidence of Stelmokas' participation in the
Grosse Aktion (Great Action) is not clear, convincing and
unequivocal, and that the district court clearly erred in finding
otherwise.
To be sure, there is substantial evidence that
Stelmokas was a member of a platoon of the 3rd Company of the 3rd
Battalion of the Lithuanian Schutzmannschaft and was not on leave
on the date of the Great Action. Moreover, there is substantive
evidence that Lithuanians in military uniforms aided the Germans
in the mass execution. It is a matter of speculation, however,
whether all, some or none of Stelmokas' Schutzmannschaft
Battalion participated.
On October 28-29, 1941, German troops, aided by
"Lithuanian partisans," conducted an operation they referred to
as the Great Action which resulted in the execution of 9,200 Jews
from the ghetto in Vilijampole. On the morning of October 28,
the Jews were lined up by the Jewish Ghetto Police, and the
Germans culled out those who were and were not fit to work.
Those not fit to work were marched to the "small ghetto," which
was adjacent to Vilijampole, and the next day they were marched,
in groups of five hundred at a time, to Fort IX and executed.
They were buried in mass graves dug by Soviet prisoners of war.
Two survivors from Vilijampole testified that they saw
Lithuanians in military uniforms aid the Germans in the Great
Action, but they did not identify whether the men were from
Stelmokas' Schutzmannschaft Battalion or from some other
Lithuanian group.
No testimony and no documentary evidence directly links
Stelmokas or the 3rd Battalion to the Great Action. The district
court, in finding participation by Stelmokas, relied largely on
the opinion of Dr. Raul Hilberg that the entire 3rd Battalion
must have participated in the Great Action. Dr. Hilberg's
opinion was based almost entirely on two observations. First, he
had "seen documents in which larger forces than one battalion
were deployed to kill fewer than 10,000 people." App. at 411.
From this, he inferred that in addition to the personnel of the
Einsatzkommando 3, the German unit of security police which
carried out the operation, at least 500 men, a full battalion,
were required for the Great Action. He acknowledged, however,
that the minimum number of men required would vary according to
factors such as the terrain and the degree of resistance from the
Jews. Second, there was a "shortage of manpower" because German
and Lithuanian units stationed near Kaunas had been sent to fight
the Soviets. Specifically, the majority of the German 11th
Reserve Police Battalion and the entire 2d Lithuanian Battalion
were in Byelorussia. Putting these two observations together,
Dr. Hilberg concluded that Stelmokas' entire Battalion must have
assisted in the Great Action. The balance of the 11th Reserve
Police Battalion and the ghetto police would not, in his opinion,
be sufficient in the absence of the entire 3rd Battalion of the
Lithuanian Schutzmannschaft.
I do not question in the least Dr. Hilberg's
qualifications as an expert in Holocaust history, nor do I doubt
the conviction with which he believes Stelmokas participated in
the Great Action. Nevertheless, I cannot conclude that his
observations, by themselves, clearly, convincingly and
unequivocally demonstrate that Stelmokas aided the Germans in
their massacre of October 28th and 29th. Dr. Hilberg believed a
full battalion was required based on the number of men used in
mass executions elsewhere about which he had read. He did not,
however, describe the circumstances of the other mass executions
and admitted that the minimum requirement would vary according to
local conditions and the resistance level. He did not identify
any local conditions that would have made the Great Action a
particularly labor intensive operation and candidly acknowledged,
based on contemporary documentation, that no Jewish resistance
was anticipated. He also testified that it was reasonable to
assume that some segment of the available manpower would have to
have been assigned to the responsibilities that occupied the
available troops on a day to day basis, e.g., protection of
facilities and communication and the maintenance of security.
Given the uncertainty involved in estimating manpower needs based
on other, perhaps dissimilar, situations and the reasonable
assumption that there were competing manpower demands in the
local area, it seems speculative to assert that the entire 3rd
Battalion participated despite the presence of a portion of the
11th Reserve Police Battalion and the ghetto police.
My concern, however, is not grounded solely in the
sufficiency of Dr. Hilberg's testimony; as Stelmokas points out,
the government's own evidence casts serious doubt on the
inferences drawn by Dr. Hilberg. Certain documents suggest that
a sizable contingent of Lithuanians not associated with the
Sonderkommando was available to help in the Great Action, and
that less than a full battalion of support troops may have been
needed. To make my point, a little background regarding the
organization of German police forces is helpful.
Following the occupation of Lithuania by the German
Army, German occupation police moved in and kept order. One
component of the German occupation police was the security
police; the other component was the order police. The security
police had mobile units called Einsatzgruppen, about the size of
a battalion, and these were broken down into companies called
Einsatzkommando and Sonderkommando. The Einsatzgruppen were in
charge of exterminating Jews and other "undesirable" elements of
the population. Einsatzgruppen A was assigned to Lithuania and
other Baltic states, and its subdivision Einsatzkommando 3,
commanded by Colonel Jaeger, operated in the area including
Kaunas. The order police were much larger than the security
police, and included the 11th Reserve Police Battalion mentioned
by Dr. Hilberg.
A government exhibit indicates that in addition to
Einsatzkommando 3, a sizable contingent of Sonderkommando was
available in the Kaunas area. This exhibit, entitled "USSR
Situation Report No. 19" and dated July 11, 1941, was prepared
for the Chief of Security Police and has a section devoted to the
situation in Kaunas. In this section, the report states that "We
have retained approximately 205 Lithuanian partisans as a
Sonderkommando, sustained them and deployed them for executions
as necessary even outside the area." App. at 1861. The
availability of nearly a half-battalion of Sonderkommando
substantially undermines the conclusion that the entire 3rd
Battalion of the Schutzmannschaft was necessary to carry out the
Great Action.
In addition to this Situation Report No. 19, there is
another contemporaneously prepared document that calls Dr.
Hilberg's opinion into question. As I have noted, Colonel Jaeger
commanded the Einsatzkommando 3, the unit of German security
police assigned to the Kaunas area. Colonel Jaeger prepared a
report, the Jaeger Report, which is dated December 10, 1941, and
which refers to the Great Action and many other executions of
Jews. Colonel Jaeger there wrote the following chilling lines:
The goal to make Lithuania "Jew free"
could only be attained through the formation
of a mobile detachment with specially
selected men under the leadership of SS
Obersturmfuhrer Hamann who shared my goals
completely and who would guarantee the
cooperation of the Lithuanian partisans and
the existing civil offices.

The carrying-out of such actions is, in
the first place, a question of organization.
. . . The Jews had to be collected in one or
 in several locations. Based on the numbers
[of Jews] a place for the necessary pits had
to be found and dug up. . . . The Jews were
transported to the execution site in groups
of 500 and in intervals of at least 2 km.
What difficulties and nerve-racking work that
had to be accomplished is shown in the
following random example:

In Rokiskis, 3,208 people were to be
transported 4 1/2 km before they could be
liquidated. In order to accomplish this work
in 24 hours, 60 of the 80 available
Lithuanian partisans had to be detailed for
transport duty and perimeter security. The
remainder, who had to be repeatedly relieved,
carried out the work with my men. . . .
Attempts to escape that happened here and
there were prevented entirely by my men and
with some danger to their lives. . . . Only
through skillful use of time was it possible
to carry out up to 5 actions in a week's time
and to handle the work that had accumulated
in Kaunas so that no bottlenecks occurred in
the official functions.

The actions in Kaunas itself, where
there were sufficient reasonably well-trained
partisans available, were virtually duck
shoots compared with the enormous
difficulties which were often encountered
elsewhere.

All leaders and men in my detachment in
Kaunas took an active part in the major
actions in Kaunas.
. . .
App. 1133-34.
Colonel Jaeger reports the executions of thousands of
Jews and hundreds of others in such an impersonal, matter-of-fact
manner and with such pride that his account leaves one in a
horror-driven state of shock. Nevertheless, the Jaeger Report,
as documentary evidence, is important in the present context for
a number of reasons. First, in the context of a somewhat smaller
but nevertheless substantial mass execution, it provides a
contemporary estimate of the manpower necessary to perform the
grizzly task of mass execution from a German official having
responsibility for carrying out those executions. The report
indicates that the mass execution of 3,208 people at Rokiskis was
carried out by Einsatzkommando 3 personnel with the assistance of
only 80 "Lithuanian partisans."
Second, while Rokiskis provides an example of a mass
execution with "enormous difficulties," the execution of "2007
Jews, 2,920 Jewesses, and 4,273 Jewish children" in the course of
the Great Action did not present comparable problems. App. at
1129.
Putting these two pieces of evidence together, even if
one assumes that the number of potential victims in the Great
Action would require substantially more support from "Lithuanian
partisans" than was employed in Rokiskis, Dr. Hilberg's
insistence that a minimum of 500, in addition to the
Einsatzkommando 3 personnel, seems questionable, at least in the
absence of more explanation than he was able to give.
Finally, the Lithuanian partisans who in fact
participated in the Great Action are described as "reasonably
well trained." When one puts this together with the U.S.S.R.
Special Report 19's indication that approximately 205 Lithuanian
partisans had been formed into a Sonderkommando company
specifically to be "deployed . . . for executions as necessary,"
the most likely inference is that at least a large segment of the
need for Lithuanian participants during the Great Action were met
by Lithuanians who were not from the Schutzmannschaft 3rd
Battalion. In suggesting that this is the likely inference, I am
not unmindful of Dr. Hilberg's opinion that the reference to
"reasonably well trained partisans" in the Jaeger Report meant
Schutzmannschaft personnel. The basis for that opinion, in its
entirety, is found in the following excerpt from his testimony:
In this report, Jaeger is trying to
impress his superiors. That's a very common
phenomenon in reporting. And so he, first of
all, calls attention to the difficulties and
complexities of organizing such an operation.
He refers to thorough preparation of each
individual action and knowledge of the
conditions in the area in question. . . .

He then goes into some examples of towns
and then, referring on top of page 30 of the
English translation, he says that the actions
encompass itself a little bit easier because
there were well trained partisans, as he
calls them. Now what he is referring to, of
course, is the schutzmannschaft. And the
reference to the training can be explained by
the fact that right from the start [of the
schutzmannschaft], June 28th, 1941, the call
went out for volunteers who had military
experience. In other words, these people
knew how to fire a weapon, they knew how to
hit their target. And for that reason, the
operation was, in his view, like shooting at
a parade. It was well coordinated and well
done.

App. at 277, 277-78. Dr. Hilberg's inference is a plausible one.
However, once one is aware that a group of Lithuanian partisans
had been formed and were available specifically for this purpose,
I believe another inference becomes the more plausible one.
 I acknowledge that the inferences I suggest based on
the Jaeger Report and Special Report No. 19 do not constitute
clear, convincing and unequivocal evidence that Stelmokas did
notparticipate in the Great Action. He may well have participated.
It was the government's burden, however, to produce clear,
convincing, and unequivocal evidence that Stelmokas didparticipate. In my
view, it did not come anywhere close to
carrying that burden.
While the district court reached its conclusion about
Stelmokas's participation in the Great Action without reference
to his failure to testify at the trial, it noted that it believed
an inference could appropriately be drawn from that failure which
confirmed its conclusion. I agree with the district court that
the Fifth Amendment did not foreclose it from drawing a negative
inference from Stelmokas's failure to explain what he was doing
on October 28 and 29, 1941. As the Supreme Court cautioned in
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), however, a
party's silence should not be given "more evidentiary value than
[is] warranted by the facts surrounding [the] case." Here,
Stelmokas stands accused of a number of different forms of
conduct, any one of which would warrant the revocation of his
citizenship. If Stelmokas had taken the stand and denied
participation in the Great Action, he would have subjected
himself to cross-examination that almost certainly would have
established another ground for revocation. Under these
circumstances, I do not believe any appropriate, negative
inference from silence can boost Dr. Hilberg's speculative
opinion into the realm of clear, convincing and unequivocal
evidence.
Finally, I turn to the dissent's conclusion that there
is insufficient evidence to support the district court's finding
regarding Stelmokas's guarding of the Vilijampole ghetto. In
contrast to the state of the record regarding Stelmokas's
participation in the Great Action, I find the evidence supporting
this finding to be clear, convincing, and unequivocal.
The finding at issue reads as follows:
The Court finds that the Government has
not established by clear, unequivocal, and
convincing evidence that the shootings on
September 16-17, 1941 were carried out by
either the defendant or Schutzmannschaft
members under his command. However, the
Government has established by clear,
unequivocal, and convincing evidence that
defendant was commander of the ghetto guard
for a 24-hour period commencing September 16,
1941, at 1 p.m., that Jews in the ghetto were
subject to extreme deprivation, brutality,
and arbitrary shootings during that period,
and that defendant was responsible for
enforcing the confinement of Jews in such
conditions.

On September 1, 1941, Stelmokas's Battalion Commander
entered the following order:
TO THE 3rd AUXILIARY POLICE SERVICE BATTALION
Order Number 1, Secret
Kaunas, 1 September 1941
Operations Section
§ 1.

I announce the Battalion's schedule of guard
deployments and positions:

Guard Post
Number
Guard
duties
Guard place
of
assignment
Number on
Duty
Purpose

3
Guard at
the
captured
ammunition
warehouse
Vilijampole,
VIII Fort
4
To guard
the
ammunition
warehouse

21
"Ghetto
guard"
Vilijampole,
Veliuonos
street
17
32
Not to let
a single
Jew out of
the closed
quarter
 Two weeks later, on September 15, 1941, the same
Battalion Commander entered another order, section 1 of which
made the following duty assignments:
Security and service duties for 16 September
of the current year:

Battalion Duty Officer Junior Lieutenant
TAMULAITIS, VYTAUTAS

Assistant to the Duty Officer - Corporal
KVARACIEJUS

Duty Clerk at the Battalion Headquarters -
Corporate AUKSORAITIS

Guard Commander in Vilijampole - Junior
Lieutenant STELMOKAS

Guards from the 3rd Company

While this order was lengthy and dealt with a variety of
subjects, these were the only current duty assignments recorded.
The record discloses that the ghetto was located in a
section of the city called "Vilijampole" and that "Vilijampole"
was frequently used as a synonym for the ghetto. As Stelmokas
stresses, the record also indicated, however, that Fort VIII,
while in the area called Vilijampole, was not in the ghetto.
Based on this evidence, Stelmokas suggests that the order
assigning him as "Guard Commander in Vilijampole" is ambiguous --
that the assignment might have been merely to guard ammunition at
Fort VIII.
While I agree with Stelmokas that the government had
the burden of proving Stelmokas's participation in the
persecution of Jews by clear, convincing and unequivocal
evidence, his suggestion of a significant ambiguity in the record
is unpersuasive. Dr. Hilberg and the September 1st order itself
indicate that in the context of guard duty, the words "Fort VIII"
was generally included in the designation of that guard post in
order to distinguish duty there from the duty of guarding the
ghetto. More importantly, Stelmokas commanded a platoon
consisting of something over 30 men and it is far more likely
that he was given responsibility for Guard Post 21 or both Guard
Posts 21 and 3, than that he commanded only the four guards at
Fort VIII. Finally, and most importantly, the September 15th
order reports only two command assignments: the "Battalion Duty
Officer" and the "Guard Commander at Vilijampole." The
suggestion that this order would record the identity of the
commander of a four man unit at Fort VIII and omit entirely any
mention of the Guard Commander of the ghetto strikes me as too
far fetched to raise even a reasonable doubt.
United States v. Jonas Stelmokas, No. 95-1894

ALDISERT, Circuit Judge, dissenting:

Again we are faced with a denaturalization proceeding
brought by the Office of Special Investigations (OSI) against an
American octogenarian for events that took place during the Nazi
occupation of Europe more than 50 years ago. Although stripping
an American of his citizenship is a civil proceeding, the effect
is so drastic that the government's burden is "substantially
identical with that required in criminal cases--proof beyond a
reasonable doubt." Klapprott v. United States, 335 U.S. 601,
611-612 (1949).
The predicate acts that form the basis of OSI prosecutions
take place in the midst of what must be acknowledged to be the
most craven and pusillanimous crime ever sponsored by a nation--
the Holocaust effectuated by the German Third Reich in the 1930s
and 1940s. This case is no exception.
The inhuman Nazi brutality that underlies these cases makes
especially arduous our obligation to require the government's
high burden of proof, but the law commands that we do just that,
and rightly so. Indeed, faced with a backdrop of such monstrous
and inhuman past behavior, a court's responsibility in 1996 to
insure the maximum protection of the law constitutes America's
best response to the Nazi juggernaut that crushed all semblance
of justice and freedom, and millions of innocent lives a half
century ago.
The district court revoked the citizenship of Jonas
Stelmokas because he joined and served in the Lithuanian 3rd
Auxiliary Police Service Battalion in 1941. At the time, he was
a 25-year-old junior lieutenant. The court ruled in favor of the
government on six separate, but related counts. It determined
that Stelmokas: voluntarily assisted the enemy in persecuting
civil populations, particularly on September 16, 1941 and October
28-29, 1941 (Count I); voluntarily assisted German forces in
military operations against the United States and its allies
(Count II); voluntarily joined and participated in a movement
hostile to the United States (Count III); advocated or acquiesced
in conduct contrary to civilization and human decency (Count V);
lacked good moral character by virtue of his Schutzmannschaftmembership
(Count VI); and willfully misrepresented material
facts in his application for admission to the United States as a
displaced person (Count IV). I would reverse the district
court's determination on each count. Accordingly I dissent.
What we as U.S. Circuit judges know as men and women
requires us to despise the loathsome conduct of the Nazis in
World War II. Knowledge of the Third Reich's intentional
brutalization and annihilation of innocent civilians is ingrained
in our senses as a revulsion of the worst genocide of the modern
era, if not of all time. Our role as appellate judges, however,
is not to proclaim our visceral reactions to the horrors of
history. Rather, we must confine ourselves to the trial record in
this case and decide, as a dispassionate reviewing court, whether
the OSI has proved by "clear, unequivocal, and convincing
evidence which does not leave the issue in doubt" that Stelmokas
in fact committed the alleged acts and that such conduct supports
a denaturalization proceeding. Schneiderman v. United States,
320 U.S. 118, 158 (1943). This the OSI has not done.
The OSI's case against Stelmokas does not rest on direct
evidence but solely on a series of rickety inferences that do not
rise to the high level of proof demanded of the government. To
this unimpressive framework has been added what the district
court describes as adverse inferences drawn from Stelmokas'
decision to exercise his Fifth Amendment privilege to refrain
from testifying at trial. See Dist. Ct. Op. at 47. The Supreme
Court has established that a defendant's Fifth Amendment plea in
a denaturalization case constitutes the basis for adverse
inferences only to the extent those inferences are supported by
"substantial evidence manifested in the record." Baxter v.
Palmigiano, 425 U.S. 308, 317-18 (1976). The OSI's case against
Stelmokas lacks such substantial evidence and is hobbled by
several fundamental weaknesses, which together are fatal to the
OSI's attempt to meet the unusually high burden of proof
required.
First, the OSI has been unable to present even one eye-
witness to support its charges. Second, the OSI failed to
present any direct evidence or any legitimate circumstantial
evidence of participation in proscribed activity that would, as
required, logically and unerringly support an incriminating
inference. Instead, the OSI relied on as many as five layers of
inference to conclude that: (1) that Stelmokas was responsible
for confining Jews in the Kaunas, Lithuania ghetto when two Jews
were shot on September 17, 1941 and (2) he participated in the
massacre of thousands of Jews in the Grosse Aktion at the same
location on October 28-29, 1941. Third, the OSI supported its
allegations by introducing undated documents, without
accompanying testimony as to their relevance and effect on
immigration officials at the relevant times. Fourth, and
especially fatal to its case, the OSI failed to present testimony
from Displaced Persons Commission personnel or consular
officials--as it has in all similar cases--that Stelmokas' non-
disclosure of his 3rd Battalion service in fact impacted or would
have impacted the immigration officials' decision-making process
and rendered him ineligible for a visa. For these reasons, I
would reverse the district court's judgment of denaturalization.

I.
Before analyzing the specific legal questions presented
here, I must describe conditions in Europe, and particularly in
the displaced-persons camps, at the time Stelmokas applied for
his visa in July, 1949. I start with V-E Day, May 8, 1945.
Notwithstanding the presence of European nation-states, the power
to rearrange the map of Europe had passed to the United States
and the Soviet Union. Although Hitler's Reich had come to an
end, at its peak the Nazi empire had stretched from the French
port of Brest to the Caucasus and from the tip of Norway to the
border of Egypt. As part of its rampage, the Nazi war machine
smashed into Lithuania on June 22, 1941; three days later it
occupied Kaunas, what was then the Lithuanian capital.
By the end of the six-year struggle to bring down the Nazi
empire, an estimated 40 million Europeans had lost their lives--
in combat, under the bombs that obliterated cities, through
Hitler's methodical genocide, or simply from hunger, cold and
disease. At the end of the war, the state of Germany had ceased
to exist. An innumerable mass of civilians, freed prisoners and
the first waves of 13 million refugees from Eastern Europe
wandered the country. Nearly eight million Germans were
homeless. People bartered household necessities for food and
clothing, often subsisting on little more than 1,000 calories a
day.
The onset of a chill between the Soviets and the Western
allies sealed the division of the country between two hostile
occupation zones. By 1947 it was becoming clear that Stalin had
no intention of fulfilling his promise, made to Roosevelt and
Churchill at Yalta, to hold free elections in Poland. Where the
Red Army stood, Soviet power reigned, straining westward. A
Communist insurgency, supported from bases in Bulgaria, Albania
and Yugoslavia, threatened the vulnerable British-backed monarchy
in Greece. Soviet pressure mounted against Turkey for control of
the Black Sea straits.
Such was the political climate surrounding the displaced-
persons camps when Stelmokas applied for his visa in 1949 at
Hamburg, Germany. Refugees were caught in a vicious political
struggle between the two superpowers. With American and Soviet
diplomatic armies posturing eyeball-to-eyeball, the de factodivision of
Germany already had taken place. The die having been
cast in both the west and the east by the occupying armies,
Central Europe remained the primary political battleground for
almost a decade after V-E Day.
It is against this complex and volatile political background
that I consider the legal issues arising from Stelmokas' visa
application. Indeed, the facts underlying the legal issues must
be viewed as they existed in the harsh environment of a battered
and shattered post-war Europe, not as they might be viewed from
the cozy environment of a 1996 federal courtroom.
I agree with the government that the wartime Lithuanian and
German documents generated in Lithuania and obtained by the OSI
from archives are admissible. However, I question whether these
documents alone are sufficient to support the government's high
burden of proof.

II.
I turn first to Count I, the linchpin of the government's
entire case against Stelmokas. In Count I the government alleges
that Stelmokas voluntarily assisted the Nazis in persecuting
civilian populations. The OSI anchors this contention on the
events of September 16-17, 1941 and October 28-29, 1941.
A. September 16-17, 1941
I accept that Order #10 of the 3rd Auxiliary Police Service
Battalion, dated September 15, 1941, indicates that "Junior
Lieutenant STELMOKAS" was detailed as "Guard Commander in
Vilijampole." A1316. From this, and from evidence that two Jews
were killed in the Kaunas ghetto between September 16 and 17,
1941, the district court reached the following conclusion:
The Court finds that the Government has not established
by clear, unequivocal, and convincing evidence that the
shootings on September 16-17, 1941 were carried out by
either the defendant or Schutzmannschaft members under
his command. However, the Government has established
by clear, unequivocal, and convincing evidence that
defendant was commander of the ghetto guard for a 24-
hour period commencing September 16, 1941, at 1 p.m.,
that Jews in the ghetto were subject to extreme
deprivation, brutality, and arbitrary shootings during
that period, and that defendant was responsible for
enforcing the confinement of Jews in such conditions.

F.F.60

A conclusory inference predicated on a clear and narrowly
established fact might have been sufficient to inculpate
Stelmokas. However, an inference teased from a series of other
inferences may not substitute for hard evidence where the
government's burden is so high. And that is the extent of the
government's case and that is also why the district court found
that "the government has not established by clear, unequivocal,
and convincing evidence that the shootings on September 16-17,
1941 were carried out by either the defendant or Schutzmannschaftmembers
under his command." F.F. 60. The district court went
further, however, and concluded that Stelmokas was commander of
the ghetto guard and enforced confinement of Jews in horrible
conditions. Because the government did not meet its high burden
of proving these aspects of its allegations, the district court
erred.

1.
Unlike virtually every other case prosecuted by the Office
of Special Investigations, here no direct evidence shows that
Stelmokas confined Jews to the ghetto during the days in
question. Indeed, the direct evidence presented in this case is
limited to the following: That deployed in the Kaunas, Lithuania
area were at least two Lithuanian army units under the control of
the Nazis--the 3rd Auxiliary Police Service Battalion (also
described hereafter as Schutzmannschaft), in which Stelmokas was
an officer, and a Sonderkommando company of approximately 205
Lithuanian partisans, in which Stelmokas was not a member; that
Stelmokas was listed as "Guard Commander in Vilijampole" of the
3rd Battalion; that shootings of Jews in the ghetto by Nazis and
Lithuanians frequently occurred; and that two Jews were killed
in the ghetto on September 17.
It is uncontradicted that "Vilijampole" was a neighborhood
containing not only the ghetto, but also surrounding areas
including Fort VIII, which was situated 100 meters or more from
one border of the ghetto. It bears repeating that although
Stelmokas is accused of commanding the Vilijampole guard on this
day, there is no direct proof that he commanded the ghetto guard
and was responsible for enforcing the confinement of Jews in the
ghetto. We are left to infer that a single written order that
Stelmokas was "Guard Commander in Vilijampole" demonstrates that
the 3rd Battalion, and not the Sonderkommando company, was the
ghetto guard on this day. We are left to speculate whether the
3rd Battalion was not merely assigned to guard adjacent areas,
including bridges, warehouses, ammunition depots etc. A518-A519.
The evidence leaves unanswered the question of whether the unit
patrolled parts of the Vilijampole neighborhood that did not
include the ghetto--an area that also encompassed non-Jewish
residences, businesses and an ammunition warehouse--the ghetto
itself, or both. To repeat, there was no direct evidence
supporting the district court's determination and the quality of
circumstantial evidence was so inferior that it did not satisfy
the government's high burden of proof.
No evidence supported the district court's conclusion other
than the fact that Stelmokas was assigned as "Guard commander of
Vilijampole" at the time two Jews were killed in the ghetto. No
evidence, beyond his assignment, indicated that he in fact served
with, or commanded, the ghetto guard. No evidence demonstrated
that Stelmokas engaged in the conduct or duties the district
court attributed to ghetto guards generally. F.F. 49-60.

2.
Alternatively, even if there was sufficient evidence to show
that Stelmokas served with the ghetto guard, the district court
failed to heed the teaching of Fedorenko v. United States, 449
U.S. 490, 512 n. 34 (1981) ("The solution to the problem...lies,
not in 'interpreting' the Act to include a voluntariness
requirement that the statute itself does not impose, but in
focusing on whether the particular conduct can be considered
assisting the persecution of civilians. Thus, an individual who
did no more than cut the hair of female inmates before they were
executed cannot be found to have assisted in the persecution of
civilians."). The cases that interpret Fedorenko in the context
of Nazi occupations, for the most part, emphasize the distinction
between active and passive collaboration with the Nazis. Of
necessity, each case is fact specific and turns on the particular
evidence in the case. In United States v. Koreh, 59 F.3d 431 (3d
Cir. 1995), for example, we concluded that the defendant who had
served as editor of pro-Nazi newspapers containing many anti-
Semitic articles assisted in the persecution of Hungarian Jews
through his activities. In United States v. Sprogis, 763 F.2d
115 (2d Cir. 1985), a case dealing with military or constabulary
activity under Nazi direction, with facts more onerous than those
in the case at bar, affirmed the denial of the denaturalization
complaint brought by OSI.
The court in Sprogis emphasized the difference between
active participation in hostile acts against civilians and
passive accommodation of the Nazis. The defendant Sprogis
admittedly served as a member of the local Latvian police,
sometimes used by Nazis "to locate, arrest, guard, transport or
execute Jews, and to confiscate their property." Id. at 117.
Sprogis testified that he voluntarily joined the police force.
Sprogis was Assistant Precinct Chief and eventually Police Chief.
Id. at 118. Sprogis conceded he signed and prepared certain
documents admitted into evidence demonstrating that he paid
farmers to transport Jews to camps for confinement and
persecution, of which he was aware. Id. He testified he was "the
highest ranking officer" present at a police station where nine
Jews were "forcibly detained." He conceded, and later
contradicted his concession, that he "ordered other policemen to
guard the prisoners." Id. at 119. Sprogis was in Litene on the
day 200 Jews were executed en masse and contended he was there at
the insistence of the district police chief and "only to witness,
on behalf of the police," the execution of a photographer.
Sprogis testified that as he was leaving Litene he saw 100 to 150
prisoners marching toward the camp where the photographer had
been executed. Testimony by other witnesses indicated that
"Sprogis, at the direction of the Nazis, ordered the arrest of
all Jews in the area. . . . that the [police force of which he
was a part], including Sprogis, participated in transporting and
guarding approximately 200 Jews just prior to their execution . .
. ." Id. at 120.
As in the case at bar, in Sprogis the government sought
denaturalization under 8 U.S.C. §§ 1451(a) and 1427, with
allegations grounded in § 10 of the Displaced Persons Act
("DPA"). The government claimed Sprogis' citizenship was
"illegally procured" because he failed to disclose in his
immigration papers that he assisted in persecuting Soviet
prisoners of war, Jews and other civilians while a Latvian police
officer. The government also asserted that his citizenship was
procured through misrepresentations concerning his participation
in persecution.
Confronted with such evidence, the court affirmed the
district court's conclusion and stated:
to prevail under any of its theories, the
government had to show that Sprogis assisted in
the persecution of Jews or other civilians and
that the government had not satisfied its
substantial burden of proving that assistance by
'clear, unequivocal, and convincing' evidence
which does 'not leave the issue in doubt.'
Sprogis, 763 F.2d at 120 (citing Fedorenko v. United States, 449
U.S. 490, 505 (1981), and quoting Schneiderman v. United States,
320 U.S. 118, 125 (1943)). The court reiterated the district
court's finding of "no credible evidence that Sprogis personally
arrested or ordered the arrest of a Jew or walked the streets . .
. with the demeanor of a uniformed or armed conqueror . . . he
performed the duties of an ordinary police officer." Sprogis, 763
F.2d at 120-21. The court stated:
Finally, he was present at the police station during the
detention of the prisoners and he allowed their
incarceration to continue. However, these were not acts of
oppression. They do not amount to the kind of active
assistance in persecution which the DPA condemns.

Id. at 122, (citing Laipenieks v. I.N.S. 750 F.2d 1427, 1432 (9th
Cir. 1985) (assistance in persecution under 8 U.S.C. §
1251(a)(19), a companion statute to the DPA, requires "proof of
personal active assistance or participation in persecutorial
acts")).
The court of appeals further noted that in each of even the
less-than-clear cases of assistance in persecution, "the
individual condemned as a persecutor had actively participated in
some act of oppression directed against persecuted civilians."
Id. at 122. The court went on to acknowledge Sprogis' passive
accommodation of the Nazis, but stated,
There is no clear evidence that he made any
decision to single out any person for arrest and
persecution or that he committed any hostile act
against any persecuted civilian. Sprogis' passive
accommodation of the Nazis, like that of so many
other civil servants similarly faced with the
Nazis' conquest of their homelands and the horrors
of World War II, does not, in our view, exclude
him from citizenship under the DPA.

Id.

The district court's conclusion that the government
established by clear, unequivocal, and convincing evidence that
defendant was commander of the ghetto guard during the relevant
period and thereby responsible for enforcing confinement of Jews
is based only upon the fact that he was "assigned" as "Guard
Commander in Vilijampole." Even if such a conclusion were
supported by the evidence, and I do not believe it was, it would
be insufficient grounds on which to denaturalize a citizen under
the reasoning of Sprogis. Accordingly, the evidence regarding
Stelmokas' conduct on September 17, 1942 was not sufficient to
sustain the district court's conclusion in Count I.

B. October 28, 1941
During the Grosse Aktion of October 28-29, 1941, more than
9,000 Jews were massacred in Kaunas, Lithuania. The OSI contends
that Stelmokas participated in this slaughter, again on the basis
of very limited direct evidence. The only direct evidence is
that two witnesses stated in 1994, drawing upon their childhood
memories 54 years past when they were 12 and 14 years of age,
that they recall seeing men in Lithuanian army uniforms
participating in the massacre. The record indicates that these
Lithuanian soldiers could have been members of either the
Sonderkommando company or the 3rd Battalion. No evidence
confirms that these Lithuanian soldiers were members of the 3rd
Battalion, of which Stelmokas was a member, or that he
participated in any massacre. Yet because a large number of Jews
was involved, Dr. Raul Hilberg, the OSI's expert witness,
concluded that the Nazis must have needed help to do their
killing and that Stelmokas must have participated in the
massacre. In so doing, Dr. Hilberg pieces together a rather
tenuous inferential chain:
Facts: Thousands of Jews were slaughtered in the ghetto on
October 28, 1941; two eye-witnesses testified 54 years later that
soldiers wearing Lithuanian uniforms participated. Such soldiers
could have been members of the Sonderkommando or the
Schutzmannschaft.
First Inference: Because many Jews were killed on that
date, the Nazi occupiers must have had insufficient numbers to
conduct the operation themselves.
Second Inference: Being unable to conduct the operation
themselves, the Nazis must have ordered Lithuanian uniformed
soldiers to assist.
Third Inference: Because the Nazis had to enlist such help,
and because two eye-witnesses testified that they saw men in
Lithuanian uniforms, the 3rd Battalion must have been one of the
two Lithuanian army units commanded by the Nazis to assist. This
is either a non sequitur or an invalid disjunctive syllogism.
Fourth Inference: Because the Nazis had to enlist the 3rd
Battalion, all battalion officers must have participated.
Fifth Inference: Assuming that the 3rd Battalion was the
group ordered by the Nazis to assist (Inference Three), and that
officers in that battalion participated (Inference Four), then
Stelmokas, as an officer, must have participated.
The ultimate inference urged by the OSI is that Stelmokas
participated in the Grosse Aktion. For an inference to be
legitimate, as set forth in note 3 ante, the reasoning upon which
it rests must pass from some evidentiary fact (the datum) to a
conclusion related in some way to that evidentiary fact and
accepted only because that fact has been established. Here,
however, the conclusion (Stelmokas participated) is not directly
related to the datum (many Jews were killed by soldiers and some
soldiers wore Lithuanian army uniforms). Instead, the conclusion
requires that one meander through four other inferences to reach
the datum. One cannot make this stretch in the law, piling
inference on inference on inference, and still meet the high
burden of "clear, unequivocal, and convincing evidence which does
not leave the issue in doubt."
That men in Lithuanian uniforms were allegedly present
simply cannot support the bold conclusion that these men must
have been members of the 3rd Battalion, let alone that one of
these men must have been Stelmokas. The men in Lithuanian
uniforms very well could have been members of the Sonderkommando
company. A comparable chain of quintuple inferences such as that
relied upon by the government and district court in this case,
could not, as a matter of law, support a charge of shoplifting,
let alone bolster the revocation of a petitioner's citizenship--a
punishment tantamount to exile or banishment. Accordingly, I
agree with Judge Stapleton and I accept his analysis in the
concurring opinion that the government did not meet its high
burden of proof that Appellant participated in the Grosse Aktion
of October 28-29, 1941.
For the reasons presented above, I would reverse the court's
determination on Count I.
III.
In Count II the government alleges that Stelmokas was
ineligible for a visa because he voluntarily assisted the enemy
forces in their operations against the United Nations. The heart
of this contention is that a finding of mere service in the 3rd Battalion
(Schutzmannschaft) and in the 91st Light Flak
Replacement Unit of the German Army was sufficient to meet the
government's high burden of proof required for
denaturalization. I find this argument unpersuasive for two
reasons.
First, the government relies on part II of the International
Relief Organization (IRO) Constitution, incorporated into the
Displaced Persons Act. That provision precludes certain people
from being considered for naturalization as follows.
Persons who will not be the concern of the organization:

2. Any person who can be shown:

. . . .

(b) to have voluntarily assisted the enemy forces since the
outbreak of the second world war in their operations against
the United Nations.

D.P.A. § 2(b), Pub. L. 80-774, ch. 647, 62 Stat. at 1009
(incorporating IRO Constitution, Annex I, Part II). An
explanatory regulation later adopted by the Displaced Persons
Commission (DPC) interprets "operations against the United
Nations" as follows:
[Anyone who] has voluntarily borne arms in armed forces or
auxiliary organizations against the United States or its
Allies on the Western Front (including North Africa and
Italy) during that period of World War II beginning December
8, 1941; a person shall not be deemed so to have served
voluntarily if he establishes that he was compelled against
his will to serve in the armed forces or auxiliary
organizations, against the United States or its Allies on
the Western Front.

8 C.F.R. § 702.8(f) (my emphasis). The 3rd Battalion served in
the occupied Baltic countries, not on the Western Front, and the
complained of activities took place before December 7, 1941.
Therefore, Stelmokas does not appear to be in that category of
persons who assisted the enemy in military operations against the
United States or its Allies in the Western Front.
Moreover, commentary to the IRO Constitution provides:
Mere continuance of normal and peaceful duties, not
performed with the specific purpose of aiding the enemy
against the Allies or against the civil population of
territory in enemy occupation, shall not be considered to
constitute "voluntary assistance."

IRO Constitution, Annex I, Part II, 62 Stat. 3037, 3052.
At trial, direct testimony was adduced that normal 3rd
Battalion duties included guarding stationary installations such
as bridges, warehouses, government buildings, peatbogs,
ammunition depots and communications facilities. A283-284.
Official interpretations of Section 2(b) of the IRO Constitution,
especially those limiting improper activities to those performed
on the Western Front, required the OSI to produce more evidence
than mere membership in a military or constabulary unit to
support its contention in Count II. See also the discussion in
Part IV, post, exempting from "movement which is or has been
hostile to the United States" service in military forces or local
constabularies. Under these circumstances I would hold that the
government failed to produce sufficient evidence to sustain Count
II.

IV.
In Count III the government charges that Stelmokas
participated in a movement hostile to the United States. The
district court concluded that mere participation in the 3rd
Battalion was sufficient to warrant denaturalization and that the
government met its burden by demonstrating that Stelmokas
volunteered to serve in the 3rd Battalion, a LithuanianSchutzmannschaft,
an organization on the U.S. government's
Inimical List. On this issue, I find unavailing both the
government's argument and the district court's conclusion.
Although the government placed an Inimical List in evidence,
A1644, it presented no evidence that mere membership in any
organization on the List was sufficient to deny an applicant a
visa. Indeed, in addressing "the materiality issue or rejections
under the inimical list," OSI trial counsel represented to the
district court that it was necessary to present "the testimony of
someone who was--who operated or applied it . . . ." A723. The
district court made clear that explanatory testimony was
mandatory: "It seems to me, with the list and with someone
explaining how the list was utilized at the time of Mr.
Stelmokas' application, yes, the answer is, it might [be
relevant]." Id. This exchange clearly demonstrated the need for
official explanation of how the List would have applied to
persons seeking displaced-persons status.
Yet no such explanatory testimony was forthcoming. The only
evidence introduced was an Inimical List in the nude. Although
Appellant's counsel stipulated that it was an Inimical List and
in effect at the relevant times, he did not stipulate that the
DPC or the Consular Service would deny visas on the basis of mere
membership in an organization on the List. More important, the
record is totally barren of testimony from any witness that
membership in the Schutzmannschaft, in and of itself, would have
been sufficient to deny displaced-person status in 1949.
Further, the federal regulation which governs § 13 of the
Displaced Persons Act limits the disqualification of applicants
for displaced-persons status to any person who:
(d) Is or has been a member of or participated in any
movement which is or has been hostile to the United States
or the form of government of the United States; such a
movement includes but is not limited to the communist, Nazi
or Fascist parties or political or subversive groups of an
ideological character similar to that of the aforementioned
parties; . . . .

8 C.F.R. §702.8(d) (my emphasis). By cable dated April 20, 1949,
Secretary of State Dean Acheson interpreted "movement" in § 13 of
the Act not to include military forces or local constabularies.
Appellant's Br., Exhibit A. Significantly, at the time Stelmokas
made his application in July, 1949, the Secretary of State's
directive was in full force and effect. Given that the 3rd
Battalion operated very much as the local constabulary,
Stelmokas' membership in that organization should not for
purposes of § 13 be construed as membership in a "movement"
hostile to the United States and its allies.
The government failed to produce testimony describing how
the List was used. There is not a smidgeon of evidence to
indicate that mere membership in an organization named on the
Inimical List was a sufficient basis on which to deny Stelmokas'
visa application. Moreover, Secretary Acheson's interpretation
of "movement" indicates that Stelmokas' membership in the 3rd
Battalion, a military force or constabulary, was not sufficient
to trigger disqualification for displaced-persons status under
the Displaced Persons Act. Accordingly, the government has
failed to meet its high burden of proving that Stelmokas, by mere
membership in a local military or constabulary organization,
voluntarily participated in a movement hostile to the United
States. I would therefore reverse the court's conclusion on
Count III.

V.
At the time of Stelmokas' immigration in July, 1949, U.S.
State Department regulations prohibited issuing visas to any
alien "who has advocated or acquiesced in activities or conduct
contrary to civilization and human decency on behalf of the Axis
countries." 22 C.F.R. § 53.33(j). In Count V the government
alleges that under this regulation Stelmokas was ineligible for a
visa. The government contends that he was ineligible first,
because he failed to leave the 3rd Battalion and second, because
he persecuted civilians on September 16-17 and October 28-29,
1941. I will address these arguments in turn.
The district court determined that Stelmokas' "failure to
leave the Schutzmannschaft or to act on behalf of the Jews
constituted acquiescence in conduct contrary to civilization."
The court thus concluded that the government had met its burden
on Count V. Dist. Ct. Op. at 55-56. The court erred. More than
mere membership in the Schutzmannschaft is necessary to prove
conduct contrary to civilization and human decency. Indeed, the
Supreme Court teaches that mere membership is not enough and that
there must be proof of actual participation in such conduct. The
Court "focusing on whether particular conduct can be considered
assisting in the persecution of civilians." Fedorenko v. United
States, 449 U.S. 490, 512-513 n.34 (1981). Although it is
undisputed that Stelmokas was a member of the 3rd Battalion, the
record provides no evidence that he participated in conduct that
amounted to persecution of civilians. It is conduct in an
organization, not mere membership, that determines culpability.
The government contends in Count V that Stelmokas acquiesced
in conduct contrary to human decency by participating in the
persecution of Jews on September 16-17 and October 28-29, 1941.
As I have indicated in my discussion in Part II, the government
did not meet its high burden of proving that Stelmokas actually
participated in persecuting Jews on these dates. Professor
Hilberg's testimony is significant in this respect: "I did not
see in any of the sequence of documents . . . anything that would
indicate [sic (implicate?)] Stelmokas directly in the arrest,
killing of Jews, but he is in the company in which these things
are going on." A626. Passive accommodation of the Nazis, as
distinguished from personal, active assistance in persecution,
does not constitute conduct contrary to civilization and human
decency. Fedorenko, 449 U.S. at 512-513 n.34. See also United
States v. Sprogis, 763 F.2d 115, 122-123 (2d Cir. 1985); Ofsua v.
McElroy, 933 F. Supp. 237, 243-244 (S.D. N.Y. 1995.)
The government has not demonstrated that Stelmokas' mere
membership in the 3rd Battalion constituted advocacy of, or
acquiescence in, conduct contrary to civilization. Moreover, the
record is devoid of any competent or persuasive evidence that
Stelmokas played a role in the persecution of Jews in September
and October, 1941. Thus, on Count V the government has failed to
meet the high burden of proof required for denaturalization.
Accordingly, I would reverse the district court's determination
on this issue.
VI.
In Count VI the government charges Stelmokas with illegally
procuring his citizenship because his membership in the 3rd
Battalion and his participation in the persecutions of September
and October, 1941 showed a lack of good character. The district
court found in favor of the government on the basis of Stelmokas'
voluntary enlistment in the Schutzmannschaft and direct
assistance and participation in the persecution of Jews in
Lithuania. The court concluded that these factors establish a
lack of good moral character. Dist. Ct. Op. at 56-57.
As I previously set forth in Part II, the government failed
to prove that Stelmokas was voluntarily and directly involved in
the persecution of Jews in September and October 1941. Moreover,
this court recently affirmed a district court's conclusion that
determination of a person's moral character must rely on
something more than superficial evidence of a person's status or
title:
[T]he very essence of meaningfully determining a person's
moral character is not simply to look at their status or
title . . . but to examine the actor's conduct and the
circumstances surrounding it. We refuse to revoke
citizenship by finding that a person prima facie lacks good
moral character simply because he held the title of
concentration camp guard without some further showing that
the person engaged in some morally reprehensible conduct and
did so voluntarily.
United States v. Schiffer, 831 F. Supp. 1166, 1199 (E.D. Pa.
1993), aff'd 31 F.3d 1175 (3d Cir. 1994.) Absent evidence of any
illegal conduct and based on nothing more than Stelmokas' mere
membership in the 3rd Battalion, the government could not prove
and the district court improperly concluded that he lacked the
good moral character required for citizenship. Accordingly, the
court erred in granting judgment to the government on Count V.

VII.
In Count IV the government alleges that Stelmokas' order and
certificate of naturalization should be revoked
on the ground that such order and certificate of
naturalization were illegally procured or were procured by
concealment of a material fact or by willful
misrepresentation.

8 U.S.C. § 1451 (a). In its complaint the government contended
"that in failing to list his wartime residences and occupation,
Stelmokas made a willful and material misrepresentation when
applying for Displaced Person status as defined in § 10 of the
Displaced Persons Act." Compl. ¶¶ 57-58, 62. The contention was
an attempt to prevail on the "procured by" clause of § 1451(a),
but the district court found against the government on that
claim. See note 1, ante. The court found in favor of the
government's claim brought under the "illegally procured" clause,
concluding that:
Defendant's misrepresentations and concealments to the DPC
and the U.S. vice-consul were material because they
concealed the fact that defendant had assisted the enemy in
the persecution of civilians, had voluntarily assisted the
military operations of the Axis powers, and had been a
member of a movement hostile to the United States and
its form of government.

Conc. Law 32.

From this the court concluded that Stelmokas was ineligible
to immigrate pursuant § 10 of the DPA; that such ineligibility
rendered his entry unlawful; and because his entry was unlawful,
"his naturalization as a United States citizen on April 11, 1955
was illegally procured." Conc. Law 33.
The government's reliance on the "illegally procured" clause
must not be evaluated in a vacuum. The district court's ultimate
determination is the conclusion of a polysyllogism with many
premises omitted. The polysyllogism begins with a major premise
stating that §10 of the DPA barred from immigration any person
who willfully misrepresented material facts in order to gain
entry as a displaced person. The argument next contends that
Stelmokas made misprepresentations and because the
misrepresentations were material, he was ineligible for entry;
therefore, Stelmokas' actual entry was unlawful and his
naturalization "illegally procured." The critical inquiry is
whether the government met its important threshold burden of
proving a misrepresentation as defined in the Displaced Persons
Act.
A.
Our starting point is the statute:
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
admissible into the United States.
D.P.A. § 10, Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948).
When Stelmokas applied for citizenship in 1949, eligibility
investigations and reports were made only by the Displaced
Persons Commission (DPC). The Commission defined
misrepresentation for the purpose of § 10 of the Act:
Misrepresentation. "Misrepresentation for the purpose of
gaining admission into the United States" refers to a
willful misrepresentation, oral or written, to any person
while he is charged with the enforcement or administration
of any part of the Displaced Persons Act, of any matter
material to an alien's eligibility for any of the benefits
of the said Act.

8 C.F.R. § 700.11. It is not disputed that Stelmokas
misrepresented his wartime residences and occupation. Thus, the
first inquiry is whether those misrepresentations met the legal
standard of materiality.
The Supreme Court established the current test in Kungys v.
United States:
[A] concealment or misrepresentation is material if it `has
a natural tendency to influence or was capable of
influencing, the decision of' the decision making body to
which it was addressed . . . We hold, therefore, that the
test of whether Kungys' concealments or misrepresentations
were material is whether they had a natural tendency to
influence the decisions of the Immigration and
Naturalization Service.

485 U.S. 759, 770-772 (1988)(citing, inter alia, Weinstock v.
United States, 231 F.2d 699, 701-02 (D.C. Cir. 1956). I concede
that Stelmokas' failure to disclose his wartime military status
would have had a natural tendency to influence immigration
decisions. However, as the Court made clear in Kungys and United
States v. Gaudin,___ U.S. ___, 115 S.Ct. 2310, 2319 (1995),
materiality is a mixed question of law and fact. As in all mixed
questions, the definition of the legal component must come first,
followed by a presentation of facts against which the legal
component must be measured.
In denaturalization cases, equally important to establishing
a material statement is the presentation of evidence that the
misrepresentation procured the order and certificate of
naturalization. See Gaudin, 115 S.Ct. at 2314. This is the
factual component of the mixed question. Establishing at least a
modicum of evidence on the procurement element is essential to
the government's burden of proof.
In Kungys, a prototype of OSI prosecution, the defendant
twice misrepresented his date and place of birth: once in 1947,
when applying for a visa, and again in 1954, when petitioning for
naturalization. The Court approved dismissal of the government's
complaint against Kungys because misrepresentations about his
place of birth, wartime occupations and residence were not shown
to be unequivocally material. In addition to being required to
demonstrate materiality as a matter of law, i.e., that a material
statement was made, the government was obligated to demonstrate
that Kungys' citizenship status was procured by his material
misrepresentations. The Government seems to ask this court to
apply different meanings to the term "procured" in the two
clauses of § 1451(a).
The government suggests that it has different ultimate
burdens depending on whether "procured" applies to
naturalizations that are "illegally procured" or to those
"procured by concealment of a material fact or by willful
misrepresentation." There is no rational support for the
suggestion that Congress intended such an anomalistic reading of
the same word in the same section of the same statute. There is
absolutely no rational support for the notion that the government
is not required to produce evidence showing precisely how
Stelmokas was "unlawfully admitted" and whether his
naturalization was in fact "illegally procured." If under the
second clause in § 1451 the government must show that the
naturalization was "procured by" the alleged misrepresentation,
as the Court held in Kungys, then under the first clause
certainly the government must demonstrate that Stelmokas was
ineligible and therefore unlawfully admitted.
The traditional procedure by which the government has shown
ineligibility, used in every case it has brought excepting this
one, is to proffer testimony that the applicant's naturalization,
or Displaced Persons status, resulted from the alleged
misrepresentations. Even if we do not require the government to
prove the visa or naturalization certificate would not have been
granted but for the misrepresentations, until today courts have
not permitted the government to proceed without any evidence
whatsoever on the question of whether the misrepresentations
procured the applicant's citizenship.
Indeed, the combined opinions of Justices Scalia and Brennan
in Kungys, and Justice Scalia's opinion for a unanimous court in
Gaudin, indicate that the government must establish by factual
evidence how immigration officials interpreted and administered
the immigration law during the period in question. The
government must show not only that the misrepresentation would
have a "natural tendency to influence" the DPC analyst's
decision, but also that the misrepresentation did in fact
influence that decision. Thus, Justice Scalia's opinion for the
Kungys Court points out that § 1451(a) of the denaturalization
statute contains four independent requirements:
the naturalized citizen must have [1] misrepresented or
concealed some fact, [2] the misrepresentation or
concealment must have been willful, [3] the fact must
have been material, and [4] the naturalized citizen
must have procured citizenship as a result of
misrepresentation and concealment.

485 U.S. at 767 (my emphasis).
The requirements above must similarly be established in this
case to prove the § 10 Displaced Persons Act allegations made by
the government. The repeated use of the word "procured" in both
grounds for revoking naturalization under § 1451 makes clear
Congress' intent to impose on the government the fourth
requirement--that some nexus be established between the
misrepresentation or unlawful conduct and the applicant's receipt
of the naturalization certificate--regardless of the clause under
which the government files suit.
I have acknowledged that the first three of the Kungysrequirements
were met here. In view of the Court's definition of
materiality, Stelmokas' misrepresentations were material to the
extent that they had "a natural tendency to influence the
decisions." Id. at 768. The critical lack of proof in this case
lies with the fourth requirement--that the misrepresentations
did, in fact, result in ineligibility. Without this critical
factual base, the argument may not properly proceed to subsequent
prosyllogisms and episyllogisms culminating in "unlawfully
admitted" and "illegally procured."
The fourth requirement was not controverted in Kungysbecause the
government produced the testimony of Ambassador
Seymour Maxwell Finger, a former vice-consul at Stuttgart,
Germany, who described how immigration officials had interpreted
and administered the immigration law during the period in
question. See United States v. Kungys, 793 F.2d 516, 530-31 (3d
Cir. 1986). Justice Brennan, who furnished the fifth vote for
the majority in Kungys, emphasized in his concurring opinion that
such testimony was essential. 485 U.S. at 783. Thus, the
precise holding in Kungys was that only after presentation of a
prima facie factual case and a demonstration of materiality was
the government entitled to a presumption that the applicant was
ineligible for citizenship. Justice Brennan's concurrence
eloquently articulates his concern that the "precious right" of
citizenship not be revoked unless the government has met its full
evidentiary burden:
I agree with this construction of the statute. I
wish to emphasize, however, that in my view a
presumption of ineligibility does not arise unless the
Government produces evidence sufficient to raise a fair
inference that a statutory disqualifying fact actually
 existed. It is this fair inference of ineligibility,
coupled with the fact that the citizen's
misrepresentation necessarily frustrated the
Government's investigative efforts, that in my mind
justifies the burden-shifting presumption the Court
employs. Evidence that simply raises the possibility
that a disqualifying fact might have existed does not
entitle the Government to the benefit of a presumption
that the citizen was ineligible, for as we have
repeatedly emphasized, citizenship is a most precious
right, . . . and as such should never be forfeited on
the basis of mere speculation or suspicion.

Id. at 783 (citation omitted).
Fatal to the OSI's argument in the case before us is the
government's failure, in Justice Brennan's words, to "produce
evidence sufficient to raise a fair inference of ineligibility."
Id. The absence of factual evidentiary support regarding
ineligibility based on Stelmokas' statements renders wholly
speculative the conclusion that such misrepresentations led to an
unlawful admission to the United States and ultimately illegally
procured his naturalization.
I find no inconsistency between the teachings in the
opinions of the Court in Kungys and Gaudin, both authored by
Justice Scalia. In Kungys, a denaturalization case involving the
second "procured by" clause of § 1451, the Court required
presentation of factual evidence that "the naturalized citizen
must have procured citizenship as a result of misrepresentation
or concealment." 485 U.S. at 767. It follows inexorably that
when relying on the "illegally procured" clause, the government
must also present evidence demonstrating that the admittee was
ineligible for admission. In Gaudin the Court stressed the
necessity of developing the factual basis of "materiality" and
emphasized that materiality is "a mixed question of law and fact
[in which a characterization] for one purpose does not govern its
characterization for all purposes." 115 S.Ct. at 2319.
Similarly, the Court in Kungys stressed the importance of
presenting facts on the issue of illegal procurement of
citizenship by referring to the testimony of Ambassador Finger on
how immigration officials interpreted and administered
immigration law during that period. Making reference to this in
Gaudin, Justice Scalia described Kungys as an example where "the
appellate court's newly asserted standard of materiality could be
applied to the facts [of materiality] by the appellate court
itself, instead of requiring remand to the District Court for
that application." Id. at 722; 115 S.Ct. at 2314.
In every successful OSI prosecution that I have researched,
the government raised this fair inference by presenting evidence
in two discrete respects: (1) evidence detailing wartime
activities of the defendant; and (2) testimony from appropriate
U.S. officials that had these activities been known to the
Displaced Persons Commission analysts, the defendant's
application would have been denied or subjected to additional
investigation. Indeed, every OSI prosecution that I researched
contained testimony by officers of the Displaced Persons
Commission, consular officers or both describing the effect that
a particular misrepresentation would have had on the analysts
examining the application. This essential testimony sets forth
whether the authorities would have granted, denied, or referred
the application for further investigation, and it sets forth a
prima facie case on whether the applicant's alleged
misrepresentations procured the visa and naturalization decisions
made by the officers.
In the leading Supreme Court cases that inform our
denaturalization jurisprudence, the OSI presented witnesses who
testified that the visa would not have been issued had the true
facts been known. In Fedorenko, vice consul Kempton Jenkins
testified that the petitioner's service as an armed guard made
him ineligible for a visa. Fedorenko, 449 U.S. at 498-99. As
discussed above, in Kungys, Ambassador Finger described how
immigration officials interpreted and administered the
immigration law during the relevant period. Kungys, 793 F.2d at
530-531. Clearly the Supreme Court has underscored the necessity
for "testimony about how the Act was interpreted by the officials
who administered it." Fedorenko, 449 U.S. at 511.
In short, in every prosecution brought by the OSI that I
researched, including the Supreme Court decisions central to our
jurisprudence in denaturalization matters, the OSI presented
evidence not only that the alleged misrepresentations had a
natural tendency to influence, but also that they did in fact so
influence the visa decision--i.e., that the visa was procured by
the applicant's misrepresentations. Such evidence was starkly
absent in the present matter and this absence is fatal to the
OSI's argument that Stelmokas' naturalization was "unlawfully
procured."
My personal research may be faulted. Therefore, at oral
argument I asked counsel for the OSI to examine the records of
his office to determine whether any other OSI prosecutions have
been presented without testimony by a representative of the
Displaced Person Commission, the International Relief
Organization or the consular service as to the effect of the
misrepresentation on the applicant's procurement of citizenship.
Counsel responded, "I will send you a letter one way or another,
Judge Aldisert." Although the government's counsel filed a
supplemental brief following oral argument, the brief did not
supply the information requested by the court. Thus, I will draw
the appropriate inference.
B.
I have conceded that Stelmokas' misrepresentation of wartime
activities would have had the "natural tendency to influence the
decision" of DPC officials. Therefore, the government met its
burden of setting forth the legal component of the mixed
materiality question. However, the government has not met its
high burden of proof in this case because it failed to produce
evidence that Stelmokas' misrepresentations procured the decision
of the DPC analyst and the naturalization officials. The
government failed to produce any prima facie evidence that the
visa and naturalization decisions were procured by the alleged
unlawful conduct.
Although no such evidence was presented to the district
court, the court nonetheless concluded:
33. Defendant was ineligible to immigrate to the United
States pursuant to DPA § 10. His entry to the United
States for permanent residence in 1949 was therefore
unlawful and his naturalization as a United States
citizen on April 11, 1995 was illegally procured.

Dist. Ct. Op. at 54-55. Here the court conflated a question of
law with a question of fact. It decided, and properly so, that
the misrepresentation had a natural tendency to influence the
decision making. This was the question of law. It then decided,
as a matter of fact, that the misrepresentation did in fact
influence and procure the government's visa decision and,
therefore, subsequently procured unlawful naturalization. The
court erred here because the record was barren of any testimony
regarding what factors procured his visa, let alone which types
of misrepresentations would have made Stelmokas ineligible for
entry at the time he applied. That the procurement element in §
1451 is a question of fact is set forth in Kungys in both the
opinion of the Court and the concurring opinion of Justice
Brennan; it is also established in Gaudin and reflected in OSI's
universal practice of presenting testimony by officials as to the
immigration policy of the United States at the relevant time.
By way of analogy, a trial judge in a murder case would hear
the prosecution's evidence that, as a matter of law, a bullet
fired from a defendant's Colt .45 had the natural tendency to
cause death. However, the prosecution still would have to prove
that, as a matter of fact, a .45 bullet was a factor in the
decedent's death. Likewise, as an experienced judge reviewing
matters having to do with State Department or immigration policy,
I can decide as a matter of law the legal component of a mixed
question of law and fact. But it is absolutely necessary that,
before I may properly perform that judicial function, some facts
be developed against which the legal standard can be measured.
A fortiori, I confess ignorance as to the factual overlay of
discretionary powers vested in immigration officials in the
turbulent post-war years of the late 1940s. I suggest that my
distinguished judicial colleagues on this court, on the district
court and on the Supreme Court also lack this information. Such
crucial factual information is not the stuff of which judicial
notice is made; it is the stuff that must be presented as record
evidence at a trial. Yet the district court determined as a
matter of law, without even a prima facie showing regarding
relevant United States immigration policy, that "Defendant was
ineligible to immigrate to the United States pursuant to the DPA
§ 10." Dist. Ct. Op. at 54.
The OSI failed to present any evidence on this count.
Therefore, the district court was left to speculate about whether
the DPA analyst in 1949 would have referred to the Inimical List,
how the analyst would have interpreted it, and whether the
analyst would have decided to grant, deny, or further investigate
Stelmokas' visa application based on that List. Because the OSI
failed to present any evidence, the court could only conjecture
that the analyst would have thought conditions in occupied
Lithuania justified a finding of ineligibility. Because the OSI
failed to present any evidence, the court had to surmise that the
analyst would have found the 3rd, 11th or 253rd Battalion of the
Lithuanian National Labor Defense Battalions actively assisted
the Nazis in the persecution of civilian populations.
In short, the government failed to present any testimony by
witnesses to prove an actual, a probable, or even a possible
impact on the analyst's eligibility decision in July, 1949.
Therefore, we are left to hypothesize. Hypothesizing is no
substitute for proof, especially where the burden is
"substantially identical with that required in criminal cases--
proof beyond a reasonable doubt." Klapprott v. United States,
335 U.S. 601, 612 (1949). Therefore, the judgment of unlawful
procurement on Count IV must be reversed.

VIII.
This too must be said. In American jurisprudence there is
no analogue to permitting a trial on events that occurred a half-
century in the past. Indeed, with the exception of murder cases,
all criminal and civil proceedings are rigorously circumscribed
by fixed statutes of limitations. Such statutes preclude the
institution of criminal or civil complaints after a finite number
of years. Similarly, in equity petitions, stale actions are
barred by the doctrine of laches.
The policy that undergirds our statutory and judicial
limitations on such actions is rooted in an understanding that
with the passage of time, witnesses disappear and memories fade.
Such a policy reflects appreciation for the reality that, because
our memories are fragile and inevitably compromised by the
ravages of time, at some point they can no longer be considered
trustworthy for presentation under oath as "the truth, the whole
truth and nothing but the truth." It may well be that a half
century after a Displaced Persons Commission's analyst examined
the visa application of Jonas Stelmokas, witnesses are either no
longer available or incapable of testifying as to the immigration
practices of the United States in 1949. This is the price that
the government must pay for bringing any case so long after these
events took place.
Given contemporary concepts of due process, it is doubtful
that one could be tried in 1996 for a murder that took place in
1941. Nevertheless, the judiciary continues to permit the
prosecution of stale denaturalization cases like this one.
Perhaps this is because such cases embody a fundamental tension
between two venerated precepts of the American legal tradition.
One precept dictates that those responsible for the Holocaust be
punished: that they be sought out in America and either
extradited to Israel or denaturalized, deported and ultimately
punished by the sovereignty where the despicable acts took place.
The other precept demands full compliance with the letter and
spirit of the American judicial process; it demands that a
prosecution be held to every aspect of its burden of proof,
particularly in so important a matter as a denaturalization
proceeding. Because such cherished values are at stake, decision
by judicial fiat must never replace decision-making based on the
presentation of evidence. Thus, when we come to the intersection
of such esteemed precepts, we must be especially vigilant to
protect the procedures that lie at the heart of our judicial
process, lest in our zeal to avenge the victims of the Holocaust,
we unwittingly permit our judicial traditions to be victimized.
Those of us who sacrificed years of our youth in World War
II to combat the forces of tyranny are understandably sensitive
to these issues. We are sensitive to the danger that fundamental
values of our glorious American tradition, including the
protections guaranteed by our legal system which we fought to
preserve, might be compromised in a fervor to punish one who may
have aided the bestiality of our common enemy. We are especially
sensitive when that effort to punish is initiated more than half
a century after the last shot in anger was fired. Certainly
those who violate the rules of society must be punished, but
society itself must never breach its own rules to achieve that
end.
To continue the prosecution of octogenarians (and soon
nonagenarians) is, to be sure, a political decision. Such
decisions are properly left to the exclusive discretion of our
executive branch. Nevertheless, if these prosecutions have not
already pushed the envelope beyond traditional notions of due
process, soon they will do just that. There is no precedent in
our tradition that permits a prosecution on events that occurred
so far in the past. Although I have grave doubts about the
constitutionality of so stale a prosecution, I do not meet the
due process issue here because I would grant relief on other
grounds.
For all the foregoing reasons, I dissent. I would reverse
the judgment of the district court ordering denaturalization.