United States Court of Appeals
For the First Circuit
No. 05-1457
UNITED STATES OF AMERICA,
Appellee,
v.
VLADAS ZAJANCKAUSKAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Robert L. Sheketoff, with whom Thomas Butters were on brief,
for appellant.
Jeffrey L. Menkin, Senior Trial Attorney, Office of Special
Investigations, Criminal Division, U.S. Department of Justice,
with whom William Henry Kenety V, Senior Trial Attorney, Susan L.
Siegal, Principal Deputy Director, Eli M. Rosenbaum, Director, Mark
Grady, Assistant United States Attorney, and Michael J. Sullivan,
United States Attorney, were on brief, for appellee.
March 23, 2006
TORRUELLA, Circuit Judge. On June 5, 2002, the United
States filed a civil action against Vladas Zajanckauskas
("Zajanckauskas" or "appellant"), a resident of Millbury,
Massachusetts and a naturalized citizen of the United States, to
revoke Zajanckauskas's citizenship based on his participation in
the notorious World War Two operation to clear and destroy the
Warsaw Ghetto and on certain misrepresentations on his visa
application. The complaint alleged that Zajanckauskas's
citizenship was illegally procured and therefore had to be revoked
pursuant to 8 U.S.C. § 1451(a). After a three-day bench trial, the
district court found that Zajanckauskas had made materially false
statements on his visa application. As a result, it revoked his
citizenship and cancelled his Certificate of Naturalization. In
this appeal, Zajanckauskas contests the finding of the district
court. After careful consideration, we affirm.
I. Background
A. Shifting allegiances
The facts of this case were largely stipulated by the
parties. The appellant was born on December 27, 1915, in
Aukštadvaris, in what is today independent Lithuania. On May 1,
1939, Zajanckauskas was inducted into the Lithuanian Army and,
following the Soviet annexation of Lithuania in 1940, he was
incorporated into the Soviet Army.
-2-
On June 22, 1941, Germany invaded the Soviet Union,
quickly overrunning Lithuania. The appellant was captured by
German forces the next month and was held as a prisoner of war
("POW") at the Hammerstein POW camp in Germany. As a prisoner,
Zajanckauskas discovered that the Germans drew distinctions among
the Soviet POWs according to Nazi racial and political ideology.
While the Germans shot thousands of Jews and Communist Party
members, members of certain nationalities, including Lithuanians,
Latvians, and Estonians, received better treatment and were sorted
out to determine whether they were suitable for German service.
In mid-1942, Zajanckauskas himself was recruited by the
Germans, and on July 23, 1942 he arrived at the Trawniki Training
Camp near the town of Trawniki, in Nazi-occupied Poland. Run
jointly by the SS1 and the German police, the Trawniki Training
Camp was established to meet the growing German need for manpower.
It trained individuals of various eastern European nationalities
for service in the German war machine. Following his arrival at
Trawniki, Zajanckauskas received Trawniki identification number
2122 and was assigned the rank of Wachmann (guard private).
"Trawniki men" (as Trawniki recruits were sometimes
termed in wartime records) were paid and received other benefits,
including home leave and family support payments. Trawniki men
1
The Schutzstaffel ("defense squadron"), or SS, was a large Nazi
paramilitary organization that played a key role in the Holocaust.
See http://en.wikipedia.org/wiki/SS.
-3-
also were eligible for promotion. Promotions were based on merit
and were not awarded at random, or automatically according to
length of service. Promotion brought with it increased pay,
status, and responsibility.
During training, Trawniki men practiced close-order
drills, learned how to handle various kinds of firearms, learned
German-language commands, were taught how to guard prisoners, and
received ideological instruction. Zajanckauskas underwent the same
training as other Trawniki recruits. He also received additional
training in a course for future Trawniki non-commissioned officers
("NCOs") and rose quickly, after two promotions, to the rank of
Gruppenwachmann (guard sergeant). By April 1943, Zajanckauskas had
himself become a trainer in the NCO course.
B. Trawniki men in Warsaw
Shortly after conquering Poland in 1939, the Germans
began to segregate the large Jewish population of Warsaw in a
restricted residential, or "ghetto," district, which they
physically sealed off from the rest of the city in November 1940.
The Germans also forced Jews from the surrounding areas to move
into the Warsaw Ghetto. At its peak in March 1941, the Ghetto
contained approximately 445,000 Jews.
The year 1941, however, saw the initiation of "Operation
Reinhard," the purpose of which was to implement the Nazis' so-
called "final solution" in Poland and murder all the Jews in the
-4-
country. Trawniki men participated in virtually every aspect of
the implementation of Operation Reinhard. The activities of
Trawniki men included extracting Jews from ghettos in German-
occupied territories and deporting them to killing centers and
labor camps; guarding the killing facilities at Belzec, Sobibor,
and Treblinka, where Jews were killed by gassing; and guarding
forced labor camps, including the Trawniki Labor Camp, located
adjacent to the Trawniki Training Camp.
Between March 1941 and April 1943, as part of Operation
Reinhard, German authorities reduced the population of the Warsaw
Ghetto by approximately eighty-five percent. Many Jews confined in
the Ghetto died of starvation and disease; many were transported to
slave labor camps; and the rest were murdered at Treblinka. In
April 1943, the Germans decided to liquidate the Ghetto entirely by
deporting the remaining Jews to either concentration camps, labor
camps, or Treblinka. To help accomplish this goal, on April 17,
1943, they ordered a battalion of 351 Trawniki men to Warsaw to
participate in the Ghetto liquidation. According to a
contemporaneous document -- the "Roster of guards detailed to the
Warsaw Detachment" ("Roster"), dated April 17, 1943 --
Zajanckauskas was assigned to Warsaw as part of this battalion.2
Two days later, on April 19, 1943, the Germans commenced
their assault on the Warsaw Ghetto. In addition to the Trawniki
2
Zajanckauskas stipulated to the authenticity of the Roster.
-5-
men, the Germans used men from the armed forces, the SS, and the
police. The men were supported by a tank, two armored cars, and
artillery. In command was SS Brigadeführer (Brigadier General)
Jürgen Stroop, who later issued a report ("the Stroop Report")
describing the liquidation in detail.
The duties of the Trawniki men assigned to Warsaw
included standing in the cordon around the Ghetto to prevent Jews
from escaping; guarding the transit square where captured Jews
awaited rail transport to concentration camps, labor camps, and
Treblinka; and escorting the train transports of captured Jews to
their final destinations. Trawniki men also conducted house-to-
house searches in the Ghetto for hidden Jews; skirmished with
resistance fighters; rousted Jews hiding in bunkers; and took part
in the shooting of some captured Jews, either as the actual
trigger-men or as cordon guards.
The Warsaw operation was expected to take only a few
days. However, the Ghetto inhabitants resisted with unanticipated
force and began an armed uprising, which lasted for several weeks.
The operation continued until mid-May 1943, by which time the
resistance was crushed and the Ghetto was cleared and destroyed.
Tens of thousands of Jews were killed during this operation,
thousands more were sent to be gassed at Treblinka, and thousands
were shipped to concentration and labor camps.
-6-
C. After Warsaw
After the Warsaw operation, the Trawniki men returned to
their home base. However, in July 1944, due to the approach of the
Soviet Army, the Germans hurriedly evacuated Trawniki and the
surrounding area. The commandant of the Trawniki Training Camp,
Karl Streibel, organized the Trawniki men into a unit bearing his
name, the SS Battalion Streibel. From August 1944 until January
1945, the SS Battalion Streibel served in central Poland along the
Nida River. Some of its members forced Polish civilians to work on
construction projects such as fortifications, roads, and airfields,
although surviving records do not establish that Zajanckauskas did
so.
In January 1945, the SS Battalion Streibel retreated into
Germany until it reached the area of Dresden. Zajanckauskas served
with the SS Battalion Streibel until March 4, 1945. In April 1945,
the unit disintegrated after retreating into the territory of the
present-day Czech Republic in the face of the Allied advance.
In 1949 or early 1950, Zajanckauskas sought a
determination from the United States Displaced Persons Commission
("DPC") that he was eligible to receive an immigrant visa under the
Displaced Persons Act of 1948 ("DPA"), 62 Stat. 1009.3 In seeking
3
Congress enacted the DPA "to enable European refugees driven
from their homelands by the war to emigrate to the United States
without regard to traditional immigration quotas." Fedorenko v.
United States, 449 U.S. 490, 495 (1981). The DPC was charged with
processing applicants for displaced persons status under the DPA;
-7-
this determination from the DPC, Zajanckauskas told American
officials that he had lived and worked on his parents' farm in
Lithuania from 1938 until 1944; that he fled to Dresden, arriving
there in November 1944; and that he then went to Austria where he
worked as a farmhand and laborer. The requested determination was
granted.
On January 24, 1950, Zajanckauskas filed an Application
for Immigration Visa and Alien Registration with the United States
Consulate in Salzburg, Austria in order to receive a visa to enter
the United States under the DPA. On his visa application,
Zajanckauskas stated that he was in Lithuania from 1929 until 1944;
in Poland from February to October 1944; in Germany from October
1944 to February 1945; and in Austria since March 1945. Based on
these statements, Zajanckauskas was issued a DPA visa, which he
used to enter the United States in February 1950. In April 1956,
Zajanckauskas applied for United States citizenship, and in June
1956, the Massachusetts Superior Court granted his application and
issued to him a Certificate of Naturalization.
D. The current case
On June 5, 2002, after an investigation, the United
States filed a two-count complaint against Zajanckauskas in the
United States District Court for the District of Massachusetts to
an applicant for a DPA visa had to receive the approval of the DPC
before a formal visa application could be submitted to a United
States consulate. Id.
-8-
revoke Zajanckauskas's citizenship based on his participation in
the Warsaw Ghetto liquidation and misrepresentations on his visa
application. Count I charged that Zajanckauskas was not lawfully
admitted to the United States because his participation in the
liquidation of the Warsaw Ghetto and his role as a trainer of other
men who served in that action constituted assistance in the
persecution of civil populations, thereby rendering him ineligible
for a visa under Section 2(b) of the DPA. Count II alleged that
Zajanckauskas misrepresented his wartime whereabouts and activities
-- in particular, his deployment to Warsaw and participation in the
Ghetto liquidation -- on his visa application and therefore was
ineligible for a visa under Section 10 of the DPA ("Section 10"),
which prohibited the issuance of a visa to any person who willfully
misrepresented material facts for the purpose of gaining admission
to the United States as an eligible displaced person.
In January 2005, a three-day bench trial was conducted in
the district court. Under 8 U.S.C. § 1451(a), the court was
required to revoke Zajanckauskas's citizenship and cancel his
Certificate of Naturalization if the government was able to show --
by clear, unequivocal, and convincing evidence -- that
Zajanckauskas's citizenship was illegally procured. The
requirements for the legal procurement of naturalized citizenship
are set forth in 8 U.S.C. § 1427. Pursuant to 8 U.S.C. § 1427(a)
(1), no person shall be naturalized unless such person has been
-9-
"lawfully admitted [to the United States] for permanent residence."
8 U.S.C. § 1427(a)(1). To meet that standard, an individual must
be in possession of a valid visa and be legally eligible for that
visa. See Fedorenko, 449 U.S. at 515. Since Zajanckauskas entered
the United States with a visa obtained under the DPA, the court
assessed his visa eligibility under that Act.
For the purposes of addressing the Section 10 claim
referenced in Count II of the complaint (the "material
misrepresentation" claim),4 the parties stipulated the following:
Zajanckauskas's wartime location and
activities were material facts capable of
affecting the decision of the vice consul who
reviewed Zajanckauskas's Application for
Immigration Visa in order to determine whether
he was eligible under the DPA for an immigrant
visa.
The parties also stipulated that:
If Zajanckauskas went to Warsaw in April
and/or May 1943 with a Trawniki-based unit, he
made a willful and material misrepresentation
of his wartime location and activities to the
DPC and on his visa application, and was
therefore ineligible under Section 10 of the
DPA to receive a visa.
Thus, the dispositive issue before the district court was
whether Zajanckauskas was present in Warsaw in April and/or May
1943. If Zajanckauskas was in Warsaw during that time period, he
willfully made a "material misrepresentation" and was ineligible
4
In its subsequent opinion, the district court did not rule on
Count I of the complaint.
-10-
for a visa under Section 10 of the DPA. If he was not legally
eligible for a visa, he was not "lawfully admitted [to the United
States] for permanent residence." 8 U.S.C. § 1427(a)(1). This
would mean that his citizenship was illegally procured and that his
citizenship had to be revoked and his Certificate of Naturalization
cancelled. 8 U.S.C. § 1451(a).
On January 26, 2005, the district court found that
Zajanckauskas was present in Warsaw in April and/or May 1943.
Therefore, as required under 8 U.S.C. § 1451(a), the court revoked
his citizenship and cancelled his Certificate of Naturalization.
Zajanckauskas now appeals the district court's finding.
II. Discussion
A. Standard of review
Federal Rule of Civil Procedure 52(a) provides that in
all actions tried without a jury
[f]indings of fact, whether based on oral or
documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court
to judge the credibility of the witnesses.
Fed. R. Civ. P. 52(a). Under this Rule, factual conclusions
rendered by a district court sitting without a jury are binding
unless the reviewing court "on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (citation
omitted).
-11-
However, in denaturalization proceedings, we have
qualified this standard to an extent. In Cufari v. United States,
217 F.2d 404 (1st Cir. 1954), we wrote that "while we accord weight
to a district court's findings in deference to the wisdom of the
general rule of judicial administration based on the opportunity
afforded that court to observe witnesses in the flesh and judge
their credibility, we do not weight those findings as heavily as we
would in other cases of a civil nature." Id. at 408.
We arrived at this standard after looking at several
Supreme Court cases in which the Court made clear that
denaturalization cases are of an unusual nature. See Baumgartner
v. United States, 322 U.S. 665, 671 (1944) ("emphasis on the
importance of 'clear, unequivocal, and convincing' proof on which
to rest the cancellation of a certificate of naturalization would
be lost if the ascertainment by the lower courts whether that
exacting standard of proof had been satisfied on the whole record
were to be deemed a 'fact' of the same order as all other 'facts',
not open to review here.") (internal citation omitted);
Schneiderman v. United States, 320 U.S. 118, 125 (1943) ("[R]ights
once conferred should not be lightly revoked. And more especially
is this true when the rights are precious and when they are
-12-
conferred by solemn adjudication, as is the situation when
citizenship is granted.").5
We review the district court's legal conclusions de novo.
See Powell v. Alexander, 391 F.3d 1, 7 (1st Cir. 2004); Southex
Exhibitions v. Rhode Island Builders Ass'n, 279 F.3d 94, 98 (1st
Cir. 2002).
B. The Stroop report and expert testimony
In the proceedings before the district court,
Zajanckauskas based much of his defense on the Stroop Report -- in
particular, the section of the report in which the author, SS
Brigadeführer Jürgen Stroop, wrote that the "average daily
deployment" of Trawniki men in Warsaw was 335. As we describe in
greater detail below, Zajanckauskas attempted to use this figure to
undermine the government's claim that he was present at Warsaw. In
its opinion, the district court rejected Zajanckauskas's argument.
The court, however, also rejected the government's argument
regarding the significance of this same "average daily deployment"
figure. In rejecting the arguments of both parties, the court went
5
The government urges us to abandon the standard articulated in
Cufari and adhere to the more deferential standard articulated in
Fed. R. Civ. P. 52(a). However, the Supreme Court cases which the
government cites in support of its position have nothing to do with
denaturalization. See Anderson, 470 U.S. at 564; Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485 (1984).
Furthermore, the Supreme Court precedents upon which we relied in
formulating the Cufari standard are still valid and have not been
overruled in any way. Accordingly, we see little reason to follow
the path advanced by the government.
-13-
on to provide its own opinion about the meaning of the "average
daily deployment" number.
The appellant's first argument in this appeal is that the
district court committed error when it interpreted the Stroop
Report without the aid of expert testimony. Under Fed. R. Evid.
702, a qualified expert may testify when specialized knowledge will
assist the trier of fact to understand the evidence or determine a
fact in issue. According to the appellant, the precise meaning of
the numbers in the Stroop Report, a report written by a German
general during World War Two, was a topic for an expert historian
and was not to be resolved by resort to common knowledge.
Therefore, the appellant argues, the district court should have
relied on expert testimony to support its interpretation.
We do not believe that the appellant's argument here
helps his case, because even assuming that he is correct and that
the district court was not permitted to make a determination about
the potential meaning of numbers in the Stroop Report without the
aid of expert witnesses, we do not think that the district court
based its eventual finding on its own interpretation. In its
"Memorandum of Decision," the court recognized that it could offer
no definitive explanation of the numbers in the Stroop Report.
This derived, in large part, from the fact that there was no way to
replicate Stroop's precise calculations. Several factors were
unknown to the court, including the number of days Stroop had used
-14-
to calculate the average in the report's "average daily
deployment," the exact criteria for declaring a man "available" for
duty, and whether kitchen staff were counted as being "available."
This uncertainty prevented its own view from being anything more
than an "interpretation." "Nonetheless" -- to use the court's
precise terminology -- it was confident that whatever the true
meaning of the Stroop Report, under any acceptable reading of that
document, it did not in any way "detract from the reliability of
the Roster as evidence that the Defendant was deployed to Warsaw."
Thus, the court did not rely on its own view of the numbers in the
Stroop Report in arriving at its conclusion that the report did not
support Zajanckauskas's argument.
Even if, arguendo, the court had done so, we believe that
this was a factual determination that the court was able to make
without the aid of any expert testimony. "Expert testimony does
not assist where the [trier of fact] has no need for an opinion
because it easily can be derived from common sense, common
experience, the [trier of fact's] own perceptions, or simple
logic." 29 Charles Alan Wright & Victor James Gold, Federal
Practice and Procedure § 6264 (2005). Having heard the proffered
explanations of Zajanckauskas and the government as to the meaning
of the "average daily deployment" figure in the Stroop Report, and
having rejected them as illogical, the district judge was able to
rely on his own perceptions of the circumstances behind the Stroop
-15-
Report, his common sense, and his use of simple logic to arrive at
what he believed was the "most plausible meaning" of the "average
daily deployment" number in the report. Therefore, there was no
need for the judge to support his factual determination by making
reference to any expert testimony.
C. The government's burden of proof
The appellant's second argument is that the district
court erred in finding that the government satisfied its heavy
burden of proof. "The evidence justifying revocation of
citizenship must be clear, unequivocal, and convincing and not
leave the issue in doubt." Fedorenko, 449 U.S. at 505 (citations
and internal quotation marks omitted); see also Klapprott v. United
States, 335 U.S. 601, 612 (1949). "'Especially is this so when the
attack is made long after the time when the certificate of
citizenship was granted and the citizen has meanwhile met his
obligations and has committed no act of lawlessness.'" Nowak v.
United States, 356 U.S. 660, 663 (1958) (quoting Schneiderman, 320
U.S. at 122-23).
The appellant claims that the Roster is the only piece of
evidence showing that he was present in Warsaw, and that the
probative value of that document is minimized as a result of
conflicting evidence contained within the Stroop Report. More
specifically, he contends that no reasonable person could clearly
and unequivocally conclude that he went to Warsaw if, as the Stroop
-16-
Report suggests, only 335 of the 351 men on the Roster actually
arrived in Warsaw. In other words, the appellant claims that
although his name may have been listed on the Roster, the Stroop
Report -- with its reference to the "average daily deployment" of
335 Trawniki men -- creates uncertainty as to whether 351 Trawniki
men were actually sent to Warsaw. The appellant claims there is a
reasonable possibility that he was one of the sixteen individuals
whose name was listed on the Roster, but who was not among the 335
sent to Warsaw. "Simply put," he writes, "the Stroop Report leaves
the issue of the defendant's participation in Warsaw in doubt."
The Stroop Report, however, does not create the doubt or
uncertainty that the appellant ascribes to it. The district court,
after rejecting the explanations proffered by Zajanckauskas and the
government regarding the report's mention of 335 Trawniki men,
found that "the Stroop Report does not suggest that fewer than 351
Trawniki men went to Warsaw." It also noted, as we recounted
above, that the report did not in any way "detract from the
reliability of the Roster as evidence that the Defendant was
deployed to Warsaw." In fact, the district court even found that
the Stroop Report, far from creating uncertainty or doubt,
strengthened the assumption that Zajanckauskas had been in Warsaw.
The court noted that "the correlation between the injuries
discussed in [other parts of] the Stroop Report and the names on
-17-
the Roster demonstrates that the Roster accurately recorded the
names of those men who were deployed to Warsaw."
Having disposed of the appellant's ineffective argument
about the Stroop Report, the district court found that there was a
great deal of evidence demonstrating that Zajanckauskas had been
deployed to Warsaw. For example, the Roster, undiminished by the
Stroop Report, provided important evidence that the appellant was
present in that city in April and/or May 1943. Knowing the
probative value of this document, Zajanckauskas made a last-ditch
effort to refute the information contained within it. At trial, he
made two additional claims: 1) that he was erroneously included on
the Roster, and 2) that the Roster was a "draft" to be superseded
by a later document. However, these attacks on the Roster came to
naught, as the government, in several ways, provided additional
evidence demonstrating that the Roster was an accurate accounting
of the Trawniki men who were actually deployed to Warsaw.
First, as the district court relates, the government
pointed to how, in two places on the Roster where other names had
been erroneously included, the transcriber made corrections on the
document. No such correction was made with respect to the
appellant. Second, the government offered several German troop
transfer orders that demonstrated that if a document stated that a
soldier was to be deployed somewhere and that order was
subsequently changed, the German practice was to make a correction
-18-
to the document. As the district court notes, "the lack of such a
correction with respect to Zajanckauskas's name on the Roster
clearly and unequivocally excludes the possibility that his
deployment order was changed after the creation of the Roster."
Third, regarding the notion that the Roster was a draft document,
the court accepted the explanation offered by the government's
expert, Dr. Peter Black, that the German military did not create
draft documents because typewriters rendered document production
time-consuming and tedious.6 Further, the Roster was signed by a
German officer. It is implausible that an officer would have
signed a draft document.
Not content to have its case rest on the Roster alone,
the government satisfied its demanding burden of proof in other
ways. It offered convincing documentary evidence that the Trawniki
men listed on the Roster actually arrived in Warsaw. For example,
it provided interrogation protocols in which several Trawniki men
who were listed on the Roster admitted that they had been present
in Warsaw. The government also offered a telegram sent from
German command in Warsaw disclosing the death of Borys
Odartschenko, a Trawniki man listed on the Roster.7
6
The government's expert, Dr. Peter R. Black, is the Director of
the Office of the Senior Historian at the Center for Advanced
Holocaust Studies of the United States Holocaust Memorial Museum.
7
The district court, it should be noted, also found the lack of
documentary evidence to be important. The court noted that "there
is no documentary evidence to suggest that any man listed on the
-19-
The district court found that "[t]he Roster, supporting
contemporaneous documents and the testimony of Dr. Black prove, to
the satisfaction of the [clear, unequivocal, and convincing]
standard, that Zajanckauskas was present in Warsaw in April and/or
May of 1943." We agree. We think the evidence presented was
sufficient to meet the government's heavy burden of proof. As
such, the district court committed no error.
III. Conclusion
For the reasons stated above, we affirm the judgment of
the district court.
Affirmed.
Roster was anywhere other than in Warsaw during the relevant time
period, e.g., there are no reports of injuries or activities
involving any of those men occurring elsewhere."
-20-
United States v. Zajanckauskas
Court: Court of Appeals for the First Circuit
Date filed: 2006-03-23
Citations: 441 F.3d 32
Copy Citations