100 F.3d 302 (3rd Cir. 1996), 95-1894, United States v. Stelmokas

Docket Nº:95-1894.
Citation:100 F.3d 302
Party Name:UNITED STATES of America v. Jonas STELMOKAS, a/k/a Jonas Stelmokevicius, Appellant.
Case Date:November 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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100 F.3d 302 (3rd Cir. 1996)

UNITED STATES of America

v.

Jonas STELMOKAS, a/k/a Jonas Stelmokevicius, Appellant.

No. 95-1894.

United States Court of Appeals, Third Circuit

November 12, 1996

Argued June 10, 1996.

Sur Petition for Rehearing Jan. 21, 1997.

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[Copyrighted Material Omitted]

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

John R. Carroll (argued), Carroll & Carroll, Philadelphia, PA, for Appellant.

Before: STAPLETON, GREENBERG, and ALDISERT, Circuit Judges.

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

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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

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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, 99 L.Ed.2d 839 (1988); Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 747, 66 L.Ed.2d 686 (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...

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