541 F.3d 624 (6th Cir. 2008), 07-1965, United States v. Kalymon

Docket Nº:07-1965.
Citation:541 F.3d 624
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John KALYMON, Defendant-Appellant.
Case Date:September 04, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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541 F.3d 624 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

John KALYMON, Defendant-Appellant.

No. 07-1965.

United States Court of Appeals, Sixth Circuit.

September 4, 2008

Argued: Aug. 1, 2008.

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ARGUED:

David A. Domina, Dominalaw Group, Omaha, Nebraska, for Appellant.

William Henry Kenety V, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

David A. Domina, Dominalaw Group, Omaha, Nebraska, Elias T. Xenos, Metrolaw, Farmington Hills, Michigan, for Appellant.

William Henry Kenety V, Todd Schneider, United States Department of Justice, Washington, D.C., for Appellee.

Before: DAUGHTREY and McKEAGUE, Circuit Judges; VAN TATENHOVE, District Judge.[*]

OPINION

McKEAGUE, Circuit Judge.

American citizenship is “precious," and revoking it “can have severe and unsettling consequences." Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) (citation omitted). Nonetheless, failure to comply strictly with all of the congressionally imposed citizenship prerequisites, such as lawful entry into the country as a permanent resident, “renders the certificate of citizenship ‘illegally procured’ " and it can be set aside. Id. at 506, 101 S.Ct. 737 (quoting 8 U.S.C. § 1451(a)).

John Kalymon entered the United States after World War II as a permanent resident and later gained citizenship. In 2004, the Government sought to revoke his citizenship, alleging that his activities during the war made him ineligible for entry. After a bench trial, the district court held that the Government proved by clear, convincing, and unequivocal evidence that Kalymon persecuted Jews during the war, advocated or acquiesced in conduct contrary to civilization and human decency, and misrepresented a material fact on his visa application. The district court revoked Kalymon's citizenship.

On appeal, Kalymon raises several claims of error, including mistaken identity and various evidentiary errors by the district court. For the following reasons, we affirm.

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I

A. Nazi-Germany's Occupation of the City of L'viv

In 1941, Nazi-Germany invaded the European part of the Union of Soviet Socialist Republics, including the city of L'viv (in what is now the Ukraine), to implement its vision of a new racial order. L'viv became part of District Galacia, an administrative unit of the General Government created by Nazi-Germany during World War II. The General Government was a German-run government set up to rule parts of Poland and the Ukraine.

The Nazi-Germans enacted a set of racially motivated policies against civilian populations under their control, particularly Jewish populations. The district court summarized the persecutory measures Nazi-Germany enforced against the Jews in District Galacia, particularly in L'viv:

Nazi persecutory policy toward the Jews in District Galicia included 1) confining all Jews in ghettos and issuing new identification papers that identified them as Jews; 2) forcibly removing Jews from the ghetto for subsequent murder either by shooting or gassing; and 3) sparing a limited number of Jews whom the Germans considered “work capable" until they were transferred to forced labor camps where many died from starvation, disease and other inhumane conditions.

United States v. Kalymon, No. 04-60003, 2007 WL 1012983, at *3 (E.D.Mich. Mar.29, 2007).

B. The Ukrainian Auxiliary Police

The occupying German Reich established the Ukrainian Auxiliary Police (“UAP" ) in L'viv to maintain public order and to assist with constabulary police functions. The UAP was subordinate to the German Order Police, the general German police force, separate from both the German Security Police (ordinary criminal police) and the German Gestapo (secret state police). The UAP was divided into “commissariats." Each commissariat was responsible for a geographic section of the city. UAP members were recruited, but they were never drafted or required to serve. Each UAP member had a personnel file, was given uniforms, armed, paid a salary, and received other benefits such as food and firewood.

Candidates took oaths of loyalty to the German administration. Dr. Dieter Pohl, an expert historian, testified that Nazi ideological training (including instruction about the German Reich, Adolf Hitler, racial structure, and the Jewish people) was required for all UAP personnel. Training also included marching, exercise, and German language instruction. An oath of allegiance to the occupying German Reich was, likewise, required for most positions in the UAP.

Strict rules governed the issuing of firearms and ammunition. UAP policemen were trained in the use of firearms. Each UAP commissariat maintained a register that could be used to verify the issuance and return of firearms and munitions as well as the use of any munitions. One firearm was assigned to each pair of policemen during a shift, and duty officers returned the assigned firearms to the commissariat at the end of their shift. Notes were recorded in the register confirming that firearms and munitions were clean and fully transferred. Ammunition was, likewise, tightly regulated due to concerns over its supplies.

The UAP routinely enforced persecutory measures against the Jewish population, including control of the black market, mandatory armbands, curfews, and cleanliness violations. Documents indicated that UAP members also performed “extraordinary" duties with regard to the Jewish ghetto.

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These duties included participating in sweeps to reduce the Jewish ghetto population, manning cordon posts around the city to prevent Jews from escape, escorting and guarding Jews at and between assembly points, and searching for Jews attempting to hide or escape. In addition, the district court identified at least five distinct operations during which UAP members rounded up the Jewish population for transportation to a forced labor camp, deportation, or extermination. Kalymon, 2007 WL 1012983, at *5-7. UAP members shot at and killed Jews who attempted to escape during these operations.

C. Kalymon's UAP Service

Kalymon was born “Jan Kalymun" in Poland in 1921. In 1939, he moved to Bomblitz, Germany. In late 1941, Kalymon moved to L'viv, where he applied for and was hired as a police private in the UAP.

Kalymon admitted that he served in several UAP commissariats from at least May 1942 to March 1944. He testified that his duties in the UAP consisted of being a peacekeeper. He claimed never to have possessed or fired a firearm while on duty. Moreover, Kalymon asserted that he had no contact with or knowledge of the Jewish population in L'viv.

The Government relied upon several wartime documents to show that Kalymon was more involved in persecuting civilians, especially Jews, than he claimed. Several of these documents identified “Ivan," “Iwan," or “Jan" “Kalymon" or “Kalymun" as a UAP policeman. Defendant admitted that “Ivan" was essentially the equivalent of “Iwan" and “Jan." Dr. Pohl testified that German documents would account for the use of “Iwan," whereas in Cyrillic the name would be “Ivan" and in Polish the name would be “Jan." Defendant also admitted that he has used two spellings of his surname (“Kalymon" and “Kalymun" ) during various times of his life. While his birth record indicated his surname as “Kalymun," Defendant testified that he used “Kalymon" exclusively after 1941. According to the district court, the “Kalymon" spelling appears in many of the more innocuous documents (e.g., salary declaration, list of policemen receiving uniform fabric, driver's license). Kalymon, 2007 WL 1012983, at *10. On the other hand, the surname is spelled “Kalymun" in each document referencing the use of ammunition. Id.

Defendant testified that he did not know of any other UAP officers using the name “Kalymon" or “Kalymun" while serving in the UAP. Nonetheless, records indicated that there were three individuals with the name “Kalymon" -Roman, Stefan, and Ivan. However, there is no evidence showing that any other person served in the UAP with a surname spelled “Kalymun." One document admitted as evidence that used the spelling “Kalymun" contained Defendant's admitted date and place of birth. Moreover, Defendant admitted to serving in the Fourth, Fifth, and Seventh Commissariats in L'viv during the same time period that a person bearing the name “Ivan/Iwan" “Kalymun/Kalymon" served in these same units. In summary, the district court explained that the record showed no other person “bearing the name ‘Ivan/Iwan’ ‘Kalymun/Kalymon,’ with the same date and place of birth as Defendant, served in the UAP between May 1942 and March 1944, in the same commissariats as Defendant." Id.

While Kalymon testified that he did not participate in the rounding up or in the transportation of Jews from the ghetto, the district court noted that several documents countered his assertion. Documents indicated that “[o]n May 6, 1942, Iv Kalymun generated a cleanliness inspection

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report, in which he reported nonconforming properties." Id. at *11. Additionally, “[o]n May 11, 1942, Ivan Kalymun and another policeman were assigned to escort an unknown number of Jews to Pluvhov, the location of a SS-run, forced labor camp" and each expended six rounds of ammunition. Id. A report dated August 14, 1942, indicated that “Iv Kalymun recorded that he fired four shots while on duty," wounding one Jew and killing another. Id. Further, the chief of the commissariat filed a summary report on the same date indicating that policemen “delivered 2,128 Jews to a central assembly point." Id. The report stated that twelve Jews were “killed while escaping," seven Jews were wounded, and that “Ivan Kalymun" expended four rounds of ammunition. Id. Additionally, on August 20, 1942, “Kalymun" fired two rounds of ammunition...

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