U.S. v. Mandycz

• Decision Date: 22 May 2006
• Docket Number: No. 05-1424.,05-1424.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Iwan MANDYCZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

447 F.3d 951

UNITED STATES of America, Plaintiff-Appellee, v. Iwan MANDYCZ, Defendant-Appellant.

No. 05-1424.

United States Court of Appeals, Sixth Circuit.

Argued: March 7, 2006.

Decided and Filed: May 22, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Joseph A. Siciliano, Haliw, Siciliano, Mychalowych, Van Dusen & Feul, Farmington Hills, Michigan, for Appellant. Adam S. Fels, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Andrew J. Haliw III, Elias T. Xenos, Haliw, Siciliano, Mychalowych, Van Dusen & Feul, Farmington Hills, Michigan, for Appellant. Adam S. Fels, Jeffrey L. Menkin, United States Department of Justice, Washington, D.C., for Appellee.

Before: SUTTON and GRIFFIN, Circuit Judges; OBERDORFER, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Iwan Mandycz challenges the district court's determination that he "illegally procured" his naturalization as an American citizen by failing to acknowledge his service as a prison guard in two concentration camps during World War II. See 8 U.S.C. § 1451(a). In bringing this challenge, he argues that the denaturalization order is not supported by the evidence, that the trial violated his due process rights, that laches barred the government from bringing this action and that the court erred in admitting certain evidence under the ancient-documents exception to the hearsay rule. We affirm.

I.

On January 23, 1920, Iwan Mandycz was born in Olievo-Korolivka, a small village located in what was then Poland, for a time was Nazi Germany, for a longer time was the Soviet Union and is now Ukraine. In the summer of 1941, as part of Operation Barbarossa, Nazi Germany took control of Poland and, with it, Olievo-Korolivka.

As the war began to turn against Germany in 1942 and 1943, the country committed increasing numbers of troops to the eastern and western fronts, forcing it to recruit Eastern Europeans to fill positions vacated by the mobilized Germans. From February to April 1943, various SS units ("Schutzstaffel" or "protection squads," JA 2073) recruited men from the Olievo-Korolivka area to work as guards (Wachmann) at German concentration and forced-labor camps. Mandycz was one such recruit.

On April 7, 1943, Mandycz arrived by train at an SS training camp in Trawniki, Poland, where the Germans assigned him a unique identification number—3308. All guards at Trawniki signed a declaration that they were "subject to the disciplinary code of `Police Troops' and not to the jurisdiction of local or German civil courts." JA 911 (expert testimony). All guards "received rifles and live ammunition." JA 912. All guards "received service pay," id., "free food, medical care, shelter and clothing," JA 913. And all guards were eligible for "both an informal type of leave that might last an afternoon or for a single day, or more formally issued leave that would run anywhere from one week to three weeks." JA 2021. The Germans did not treat the guards as part of the German army but as "part of the German police ap[p]aratus." JA 2023.

Adjacent to the training camp was a forced-labor camp "in which the SS and police authorities incarcerated up to 6,000 Jewish prisoners and compelled them to work in war-related industries." JA 886. As part of their training, the Trawniki enrollees guarded the camp.

A German transfer roster, dated May 25, 1943, indicates that the Germans transferred Wachmann No. 3308, identified as "Iwan Manditsch," to another Polish labor camp, Poniatowa. JA 985-86. On November 4, 1943, while Mandycz worked as a guard at Poniatowa, the Nazis massacred approximately 14,000 prisoners held at the labor camp. During the massacre, Trawniki-trained guards cordoned off the camp while German SS troops forced Jewish men, women and children to stand in long, wide trenches, where the SS troops shot them with machine guns. The shooting lasted "all day long until the early evening," JA 2105, after which the SS troops burned the victims' bodies.

A second transfer roster indicates that on November 17, 1943, the Germans transferred Wachmann No. 3308, identified as "Iwan Manntitsch," from Poniatowa to Trawniki. JA 994-97. A third transfer roster created three days later indicates that the Germans reassigned Wachmann No. 3308, identified as "Iwan Mandytsch," from Trawniki to the "SS Death's Head Guard Battalion, Sachsenhausen." JA 1015-16. It is not clear "whether Guard 3308 actually reached Sachsenhausen," D. Ct. Op. at 14, and his whereabouts from this point until the end of the war remain unclear.

In 1946, the United Nations established the International Refugee Organization to care for "the approximately 1,200,000 remaining World War II refugees in Europe." JA 233; see Fedorenko v. United States, 449 U.S. 490, 495 n. 5, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Consistent with this goal, it assisted "refugees and displaced persons" in returning "to their countries of origin or resettling in different countries." JA 233. Two years later, in 1948, "Congress enacted the Displaced Persons Act . . . to enable European refugees driven from their homelands by the war to emigrate to the United States without regard to traditional immigration quotas." Fedorenko, 449 U.S. at 495, 101 S.Ct. 737.

In 1948, Mandycz sought to emigrate from Salzburg, Austria to the United States. To receive an immigrant visa under the Displaced Persons Act, he had to show that he was "the concern" of the International Refugee Organization. Displaced Persons Act of 1948, Pub.L. No. 80-774, § 2(b), 62 Stat. 1009 (defining a displaced person as "any displaced person or refugee . . . who is the concern of the International Refugee Organization"). The Constitution of the International Refugee Organization excluded from this category any person who could "be shown [ ] to have assisted the enemy in persecuting civil populations." Fedorenko, 449 U.S. at 495 n. 4, 101 S.Ct. 737. Relying on a questionnaire completed by Mandycz, the International Refugee Organization certified to the Displaced Persons Commission that Mandycz had not engaged in persecution.

The Commission in turn referred the case to the Army Counterintelligence Corps, which interviewed Mandycz to determine whether he was "admissible into the United States under authority of the [Displaced Persons] Act of 1948." JA 331. Mandycz informed the Corps that from 1943 to 1944 he had worked as a forced laborer for the "Seuring Company" in Vienna. JA 547, 970. He also produced a birth certificate dated July 23, 1920. The investigators did not have access to the records that would have implicated Mandycz as a prison guard because "the three rosters identifying Iwan Mandycz as guard 3308 . . . [were] held behind the Iron Curtain." JA 2389. The Corps also did not receive "cooperation from local authorities or security agencies in countries under Soviet occupation [such as Poland and Ukraine], so it was difficult . . . to verify the background of applicants from these countries." JA 486-87 (report of Mario DeCapua, head of investigations for the Commission after World War II). "In such cases, the [Corps and Commission] were forced to rely more heavily on full disclosure and honesty by the applicants." Id. at 487. Relying on Mandycz's representations, the Corps reported to the Commission that the "investigation disclosed no evidence that [the] Subject is or has been a member of, or a participant in, any movement which is or has been hostile to the United States." JA 533.

On December 2, 1949, while still in Austria, Mandycz received his visa. He sailed from Bremerhaven, Germany, later that month, and on December 27, he entered the United States. On May 13, 1955, he applied for naturalization as a United States citizen with the Immigration and Naturalization Service; on June 30, the United States District Court for the Eastern District of Michigan granted his petition for naturalization. Mandycz settled in Detroit, where he has lived to this day. Beginning in 1950 or so, he began working at Chrysler, first as a janitor and then as an auto worker, and remained employed there until his retirement from the company in 1983.

After the dissolution of the Soviet Union, the United States gained access to archives that implicated a number of post-war immigrants in assisting Nazi Germany. In March 1993, the Office of Special Investigations (OSI), a division of the Department of Justice that "detects and investigates individuals who took part in Nazi-sponsored acts of persecution abroad before and during World War II," OSI website, available at http://www.usdoj.gov/ criminal/osi.html (last visited May 12, 2006), received materials from post-war Soviet interrogations indicating that an Iwan Mandycz had served as a guard at the Trawniki and Poniatowa camps. On September 17, 1996, after additional information implicated Mandycz in acts of persecution, OSI requested "a voluntary interview" with him to discuss the materials it had gathered. JA 82. Mandycz "declined to be interviewed." Id. In March 1997, OSI attempted to confirm Mandycz's birth date with Ukrainian authorities. After a couple of years (and some prodding by OSI), the Procurator General of Ukraine certified in August 1999 that Mandycz was born on January 23, 1920, exactly six months earlier than the birth date he had given during the immigration process.

On April 19, 2000, OSI filed a complaint in the Eastern District of Michigan under 8 U.S.C. § 1451(a) to revoke Mandycz's citizenship, alleging that he had illegally procured it. At some point between 1996 and the filing of the complaint, Mandycz began to suffer from Alzheimer's disease. On January 12, 2001, following an examination by OSI's doctors, the court appointed a guardian under Rule 17(c) of the Federal Rules of Civil Procedure to represent Mandycz throughout the proceedings. After several pretrial proceedings (including a June 2002 appeal that this court dismissed as an impermissible interlocutory appeal, see United States v....