U.S. v. Balsys

Decision Date15 July 1997
Docket NumberD,No. 504,504
Citation119 F.3d 122
Parties48 Fed. R. Evid. Serv. 299 UNITED STATES of America, Petitioner-Appellee, v. Aloyzas BALSYS, Respondent-Appellant. ocket 96-6144.
CourtU.S. Court of Appeals — Second Circuit

Ivars Berzins, Babylon, NY, for Respondent-Appellant.

Robert G. Seasonwein, Office of Special Investigations, United States Department of Justice, Criminal Division (Susan L. Siegal; Eli M. Rosenbaum, of counsel) Washington, DC, for Petitioner-Appellee.

Before: MESKILL and CALABRESI, Circuit Judges, and BLOCK, District Judge. *

CALABRESI, Circuit Judge, with whom Judge BLOCK joins:

Aloyzas Balsys appeals from a decision and order of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge ), entered on March 13, 1996, granting the government's motion for an order compelling compliance with a Department of Justice Office of Special Investigations ("OSI") administrative subpoena that sought answers to deposition questions and requested documents as part of an investigation into whether Balsys lied on his immigration application about his activities during WWII.

In this appeal, we are asked to consider two questions that delineate the scope of the Fifth Amendment privilege against self-incrimination. First, we must determine whether the privilege protects a witness from being compelled to testify where there is a real and substantial risk that the testimony, or the evidence derived therefrom, will be used against him in a foreign criminal prosecution. Second, we must decide whether an alien's voluntary statements on an application for an entry visa to the United States constitute a waiver of the Fifth Amendment with respect to a deportation investigation concerning those statements.

We find that the language and purposes of the Fifth Amendment are best followed by allowing a witness with a real and substantial fear of foreign prosecution to invoke the privilege against self-incrimination in domestic proceedings, that permitting the privilege in such cases need not hamper the legitimate goals of the United States to a significantly greater degree than does invocation of the privilege in the face of domestic prosecution, and that this interpretation of the privilege is most consistent with the precedents of the Supreme Court and of this court. We also conclude that Balsys did not waive his right to invoke the privilege by completing a visa application in 1961. Accordingly, we vacate the district court's order.

BACKGROUND

Aloyzas Balsys is a resident alien currently living in Woodhaven, New York. He was born on February 6, 1913 in Lithuania and entered the United States on June 30, 1961. In his application for Immigrant Visa and Alien Registration, Balsys stated that between 1934 and 1940, he served in the Lithuanian army, and that between 1940 and 1944 he lived in Lithuania in hiding. As part of that application, Balsys swore that the information contained in his application for Immigrant Visa and Alien Registration was true. The application also included a declaration that Balsys understood that if he made any willfully false or misleading statements or concealed any material fact, and he entered the United States, he could be subject to criminal prosecution and/or deportation.

OSI is an arm of the Criminal Division of the United States Department of Justice. It was created to investigate and institute denaturalization and deportation proceedings against suspected Nazi war criminals. It claims to have evidence that Balsys assisted the Nazi forces occupying Lithuania during World War II and that he persecuted Jews and other civilians as a member of the Lithuanian Security Police. If Balsys did assist the Nazi forces and persecute Jews and other civilians, he might be eligible for deportation, pursuant to 8 U.S.C. §§ 1182(a)(3)(E), 1251(a)(4)(D), for persecuting persons because of their race, religion, national origin or political opinion, as well as pursuant to 8 U.S.C. §§ 1182(a)(6)(c)(i), 1251(a)(1)(A), for lying on his immigration application.

In furtherance of its investigation of Balsys's wartime activities, OSI issued an administrative subpoena commanding Balsys to give testimony and to produce documents relating to his activities during the war and to his immigration to the United States. Balsys appeared at a deposition, and provided his name and address; he then asserted Balsys argued to the district court that he is entitled to assert the privilege against self-incrimination because his answers could subject him to prosecution by the governments of Lithuania, Germany, and Israel. The government argued that Balsys had not demonstrated a real and substantial fear of foreign prosecution, that the privilege is inapplicable where the claimant fears prosecution by a foreign government, and that Balsys had waived his privilege.

the Fifth Amendment privilege and refused to answer all other questions. These questions addressed, inter alia, his residence in Europe during the war, his association with Lithuanian police units and political groups, and his knowledge of and participation in the adverse treatment of Jews and others during the Nazi occupation of Lithuania. The only document he produced was his alien registration card. The United States brought suit in the district court to enforce the administrative subpoena.

In United States v. Balsys, 918 F.Supp. 588 (E.D.N.Y.1996), the district court granted the petition for enforcement of the subpoena and ordered Balsys to testify. It held that Balsys does, in fact, face a real and substantial danger of foreign prosecution in Lithuania and in Israel because: (1) the responses OSI sought from Balsys could incriminate him under both Lithuania's statute punishing Nazis and Nazi collaborators for crimes committed against the Lithuanian people during World War II and Israel's law imposing the death penalty for those who committed crimes against the Jewish people, in countries like Lithuania, during the Nazi regime; (2) Balsys's testimony would very likely be disclosed to Israel and Lithuania, since part of OSI's mandate is to "[m]aintain liaison with foreign prosecution, investigation and intelligence offices," Order of Att'y Gen. No. 851-79 (Sept. 4, 1979), since OSI has an agreement to collect and provide Lithuanian authorities with evidence on suspected Nazi collaborators, and since OSI has "shared similarly incriminative evidence with Israel in the past," Balsys, 918 F.Supp. at 596; and (3) if Balsys gives the answers OSI seeks, he could be deported to these countries.

The district court then considered whether Balsys could invoke the Fifth Amendment to avoid providing testimony and documents that might aid the potential foreign prosecutions. The court relied on United States v. Lileikis, 899 F.Supp. 802 (D.Mass.1995), which stated:

If a governmental interest in enforcing the organic laws of the United States is involved, and the United States has a legitimate need for a witness's testimony in furthering that interest, the privilege must yield if the sole basis for claiming its protections is the fact that a resident of the United States faces the likelihood of a foreign prosecution. It would be an unacceptable affront to the sovereignty of the United States if the operation of its laws could be stymied by the desire of a foreign government to prosecute the same witness.

Id. at 809. Following this reasoning, the district court held that Balsys could not invoke the privilege since the United States government sought his testimony out of a legitimate interest in a matter of domestic law, namely, investigating Balsys's alleged lies on his application for entry:

In declining to extend the Fifth Amendment privilege in the present case, the Court concludes that the fundamental purpose of the privilege is to protect individuals against governmental overreaching. Balsys seeks to assert the privilege as a means to thwart the enforcement of domestic law. This is contrary to the values the Fifth Amendment was intended to protect. Although Balsys may suffer harm as a result of the incriminating nature of the disclosure, the government has a valid purpose....

A contrary decision by this Court would allow individuals attempting to immigrate to the United States to misrepresent their personal histories and other relevant information in order to gain access to this country, leaving the government without recourse and seriously eroding domestic law enforcement. Accordingly, the Court concludes that Respondent is not entitled Balsys, 918 F.Supp. at 599-600.

to invoke the Fifth Amendment privilege against compelled self-incrimination.

Lastly, the district court held that even if Balsys were entitled to assert the privilege, he waived that privilege when he first applied for immigration. The court found that, in applying for a visa in 1961, Balsys initiated an immigration proceeding, that this proceeding remained open, and that the visa application and current OSI investigation were therefore parts of the same proceeding. Since voluntary statements given on a subject during a single proceeding create an implied waiver with respect to that subject, the court found that Balsys had waived his Fifth Amendment privilege when, in his 1961 application, he answered questions concerning his activities during World War II. See id. at 600.

On appeal, Balsys challenges the district court's conclusion that he may not invoke the Fifth Amendment privilege to avoid giving evidence that could be used against him in a foreign prosecution, and denies that he waived the privilege when he completed the visa application before his entry to the United States. Neither party challenges the finding that Balsys has a real and substantial danger of prosecution by Lithuania and Israel, and an uncertain risk of prosecution by Germany.

DISCUSSION
I. The Privilege Against Self-Incrimination and the...

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