441 F.3d 32 (1st Cir. 2006), 05-1457, United States v. Zajanckauskas

Docket Nº:05-1457.
Citation:441 F.3d 32
Party Name:UNITED STATES of America, Appellee, v. Vladas ZAJANCKAUSKAS, Defendant, Appellant.
Case Date:March 23, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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441 F.3d 32 (1st Cir. 2006)

UNITED STATES of America, Appellee,

v.

Vladas ZAJANCKAUSKAS, Defendant, Appellant.

No. 05-1457.

United States Court of Appeals, First Circuit.

March 23, 2006

Heard Feb. 9, 2006.

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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.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

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

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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 Aukstadvaris, 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.

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. Trawnikimen 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 country. Trawniki

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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 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.

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

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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 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...

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