U.S. v. Dailide

• Decision Date: 15 January 2003
• Docket Number: No. 01-3820.,01-3820.
• Citation: 316 F.3d 611
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Algimantas M. DAILIDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

316 F.3d 611

UNITED STATES of America, Plaintiff-Appellee, v. Algimantas M. DAILIDE, Defendant-Appellant.

No. 01-3820.

United States Court of Appeals, Sixth Circuit.

Argued: October 16, 2002.

Decided and Filed: January 15, 2003.

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Michael Anne Johnson (briefed), Assistant United States Attorney, Cleveland OH, Jeffrey L. Menkin (argued and briefed), United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff-Appellee.

Joseph T. McGinness (argued and briefed), Cleveland, OH, for Defendant-Appellant.

Before BOGGS, SUHRHEINRICH, and CLAY, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Defendant-Appellant Algimantas Mykolas Dailide, a former member of the Lithuanian Saugumas, a police organization that aided the Nazis in exterminating the Jewish population of Vilnius during World War II, appeals from the decision entered on June 21, 2001, in the United States District Court for the Northern District of Ohio, denying his collateral challenges to the court's order of January 29, 1997, which granted summary judgment revoking Dailide's citizenship and cancelling his certificate of naturalization. United States v. Dailide, 953 F.Supp. 192 (N.D.Ohio 1997) (Dailide I).

On appeal, Dailide raises four issues. First, he claims the federal courts lack jurisdiction to cancel his citizenship. He claims that 8 U.S.C. § 1451 only gives the federal judiciary the power to review certificates of naturalization to determine if they were "illegally procured," but does not give us the power to substitute our judgment for that of the original Immigration and Naturalization Service (INS) inspector. Furthermore, he claims that even if the courts do have jurisdiction under the Displaced Persons Act of 1948 (DPA), that act does not apply to him because it expired three years prior to his naturalization. He argues his case should have been examined under the Immigration and Naturalization Act of 1952 (INA) (the successor to the DPA), wherein he believes the courts' jurisdiction to revoke citizenship is limited to cases where the alien failed to follow correct procedural avenues.

Second, Dailide claims that the district court lacked a factual basis for its denaturalization order because, on appeal, this Court declined to address Count IV of the original complaint, which was an allegation that Dailide had made misrepresentations to the Army Counter Intelligence Corps (CIC) in obtaining his visa. See United States v. Dailide, 227 F.3d 385, 399 (6th Cir.2000) (Dailide II) (Nelson, J., concurring) (indicating that although a majority of the panel held that Dailide's citizenship was "illegally procured," a majority did not agree that he had made misrepresentations). Dailide claims that without affirmance of this count, the denaturalization order is factually deficient because the Supreme Court has made misrepresentation a necessary prerequisite to a finding of "illegal procurement."

Third, he claims the district court abused its discretion in denying his motion for a new trial based on newly discovered evidence.

Finally, he argues that the revocation of his citizenship was in violation of the Equal Protection Clause of the Fifth Amendment to the Constitution because similarly situated Nazi persecutors would have been treated differently, and judged under the INA rather than the DPA, depending on when they entered the country.

We affirm the decision of the district court on all counts. First, through § 1451, Congress has expressly granted jurisdiction to the federal judiciary to substitute its judgment for that of the INS. In order to determine if citizenship was "illegally procured," it is necessary for the federal judiciary to re-examine an alien's criminal past to ascertain whether he was legally eligible for his visa at the time he received it. Furthermore, it is proper to apply the DPA to Dailide because it was in effect when he entered the country, even though it was abrogated before he was naturalized.

Second, a finding of misrepresentation is unnecessary for revocation of citizenship because § 1451 does not condition denaturalization on misrepresentation if the certificate of naturalization was otherwise "illegally procured."

Third, the district court did not abuse its discretion in denying Dailide's motion for a new trial because the motion was untimely and his newly discovered evidence could have been discovered earlier through due diligence and would not have led to a different result.

Finally, Dailide's Equal Protection argument fails because Congress may distinguish among classes of aliens, and regardless, "former Nazi henchmen who entered the United States in 1950" is not a suspect class within the meaning of the Fifth Amendment.

I. Facts

Dailide was born in the independent nation of Lithuania in 1921. He lived in the capital, Vilnius, and was enrolled in forestry school when the Soviet Union swept through the Baltics, and annexed Lithuania in 1940. Subsequently, Dailide, as a nineteen year-old student, voiced his opposition to Josef Stalin and the Communist Party and was expelled from school.

The Soviets did not hold Lithuania long, for in the Summer of 1941, while Europe was in the midst of World War II, the Nazis invaded and the whole of the Baltics fell under their control. Aside from eliminating the Lithuanian government in August 1941, one of the Nazis' first acts in Lithuania was to reconstitute the Saugumas, the Lithuanian Security Police, which had been disbanded by the Soviets just prior to the Nazi invasion. The Saugumas was recommissioned to aid the Nazis in controlling the local population by performing searches and investigations and making arrests.

Dailide became a Saugumas desk clerk soon after its re-establishment. Two months later, he became a Saugumas "police candidate." This promotion coincided with Aleksandris Lileikis becoming chief of the Vilnius Saugumas. See United States v. Lileikis, 929 F.Supp. 31, 32-36 (D.Mass. 1996) (reviewing the role that the Saugumas and Lileikis played in the extermination of Lithuanian Jews). Dailide was appointed to the Komunistu-Zydu Sekcijas (the "Communist-Jews Section").¹ This section is believed responsible for the investigation and monitoring of communists and Jews in the area. Subsequently, he was transferred to the Information Section, where he claims his duties included gathering background information on potential employees to ensure they were not communists. Later, around the end of 1942, Dailide received a field assignment.

The Saugumas played a significant role in helping the Nazis exterminate the Lithuanian Jews. The Saugumas was placed under the control of the Einsatzkommando 3, led by Nazi Colonel Karl Jäger. Upon the Nazi invasion, the Vilnius Jews were arrested and herded into two ghettos. Many were sent to hard labor at Lukiski prison, then taken to Paneriai, a wooded area six miles away, and shot in groups of ten. By the end of 1941, 30,000 Vilnius Jews had been murdered. One ghetto was completely liquidated in 1941, and the other in 1943. By the end of the Nazi occupation in 1944, 55,000 Jews had been killed in Vilnius. Dailide claims he had no knowledge of any of these atrocities.

In 1944, as the tide of World War II was turning and the Allies were beginning to get a foothold in Nazi-occupied Europe, the Soviet Union marched into Lithuania and re-annexed the country. The Soviets held Lithuania as a Socialist Republic until its people gained independence on March 11, 1990. See Paul Quinn-Judge, Lithuania Declares its Freedom from USSR, BOSTON GLOBE, Mar. 12, 1990, at 1. Dailide, fearing repercussions from the Soviets, fled the Baltics in 1944, along with many other Nazi sympathizers. He established residence in Germany, where he met his wife, settled down, and lived until 1950.

In that year, he applied for emigration to the United States. Dailide's immigration process, like that of all aliens seeking entry in 1950, consisted of three steps. First, he had to qualify as a refugee with the International Refugee Organization (IRO). IRO Constitution, 62 Stat. 3037, 3051 (1948). Second, he had to receive a determination of displaced person status from the Displaced Persons Commission (DPC). Finally, he had to apply for and receive a visa from the United States Department of State. Dailide II, 227 F.3d at 401-02. Once lawfully admitted under a visa, he could apply for naturalization after five years.

There is no record of whether or when Dailide qualified as a refugee, but it is presumed he did. In order to receive displaced person status, Dailide was required to fill out a questionnaire from the CIC. The form inquired as to Dailide's activities during the war, to which he responded he had been a "practitioner forester." Further, the form inquired as to whether Dailide had ever been a member of a police service, to which he answered "no." Based on his form, Dailide received displaced person status. Dailide subsequently received his visa, without problem, from the Department of State. In 1955, he was naturalized and became a citizen of the United States. Upon his entry, he moved to Ohio and was living in Brecksville, outside of Cleveland, as of 1994.

II. Procedural Background

Upon the collapse of the Soviet Union, Saugumas records finally became available to INS and Office of Special Investigations (OSI) agents in 1993. Although agents had been aware for years of the role the Saugumas played in the extermination of the Vilnius Jews, see, e.g., United States v. Kungys, 571 F.Supp. 1104 (D.N.J. 1983), rev'd., 793 F.2d 516 (3rd Cir.1986), rev'd., 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988), this was the first opportunity to learn of the composition of its membership. Agents discovered that Dailide was listed as a Saugumas member, and in July of that year, interviewed Dailide in Cleveland.

On December 7, 1994, the Government initiated proceedings to revoke Dailide's citizenship...