U.S. v. Schellong
| Decision Date | 24 August 1983 |
| Docket Number | No. 82-2948,82-2948 |
| Citation | 717 F.2d 329 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Conrad Heinrich SCHELLONG, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles W. Nixon, Chicago, Ill., for defendant-appellant.
Janet K. DeCosta, Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge. **
Defendant Conrad H. Schellong appeals from a district court order setting aside a prior order admitting defendant to citizenship, and cancelling defendant's Certificate of Naturalization. United States v. Schellong, 547 F.Supp. 569 (N.D.Ill.1982). Plaintiff, the United States of America, brought this action pursuant to Section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. Sec. 1451(a), to revoke the citizenship of the defendant on the grounds that he procured his citizenship illegally and by concealment or willful misrepresentation of a material fact.
The controversy centers around Schellong's activities between 1932 and 1939 as he described them in 1956 on his visa application, in 1962 on his petition for naturalization, and in a supplemental statement filed in connection with that petition. The evidence in the record shows that in 1932 defendant joined the para-military unit of the Nazi Party, the Sturmabteilungen, more commonly known as the storm troopers, "brown shirts" or "SA". He remained a member of the SA for several months. In December of 1932 defendant joined both the Nazi Party and the Schutzstaffel, commonly known as the Allgemeine SS, and he remained a member of the Allgemeine SS until 1934. As the district court found, "[t]he principal function of the Allgemeine SS in the early 1930's was to guard Nazi Party speakers and to carry out party intelligence, although the SS gradually assumed the additional responsibility of the administration and guarding of the concentration camps." 547 F.Supp. at 570. In February 1934, defendant joined the SS Sonderkommando "Sachsen" (SS Special Commando "Sachsen") which was stationed at the Sachsenburg Concentration Camp in Saxony, Germany. The SS Special Commando "Sachsen" was renamed the SS Wachverbande "Sachsen" (SS Guard Unit "Sachsen") in late 1934, and in April 1936 was again renamed the SS Totenkopfverbande "Sachsen" (SS Death's Head Unit "Sachsen").
In early 1936, defendant was assigned for approximately four months to the 11th Company of the SS Guard Unit "Oberbayern" at Dachau Concentration Camp, near Dachau, Germany, where he participated in a platoon leaders training course. He returned to Sachsenburg for several months, and was then transferred to Dachau and assigned to the 7th Company of the Death's Head Unit "Oberbayern". Defendant remained at Dachau until December 1939, commanding the Second Platoon of the 7th Death's Head Company, the 11th Death's Head Company, and the 9th Death's Head Company, all of which were rifle companies. In late 1939 as the German war effort mounted, the SS Death's Head Units were consolidated into a single military organization called the Waffen SS ("armed" SS). This organization was never considered a part of the German armed forces, the Wehrmacht. During this time, defendant rose from a corporal at Sachsenburg in October 1934 to a Captain at Dachau in August 1939. By the end of the war, he held the rank of Lieutenant Colonel.
While at Sachsenburg, defendant's responsibilities included training and supervising a platoon of guards, and service as a Security Officer and a Reserve Officer on a rotating basis with other platoon leaders. During defendant's rotation as Security Officer, he was in charge of security for the entire camp for twenty-four hour periods. Incident to defendant's duties, he instructed the guards under his supervision to prevent escapes from the camp, to warn escaping prisoners and then shoot to kill. Defendant also had responsibility on at least one occasion for checking on a prisoner, Erich Jacoby, who was being held in solitary confinement.
The district court found that "at Dachau, the defendant supervised guard troops who watched the prisoners on work detail manned the watchtowers to prevent escapes, and engaged in other guard-type activities." 547 F.Supp. at 574. Defendant contests this finding, arguing that at Dachau he was in charge of a platoon of military recruits who did not have to do guard duty. There is substantial evidence in the record, however, to support the finding that the recruits were trained for both military and guard duty, and kept on reserve in case they were needed to do guard duty or maintain order in the camp.
The district court's opinion contains a succinct summary of defendant's visa and citizenship applications, 547 F.Supp. at 572-573 (footnote omitted):
On December 3, 1956, the defendant filed an "Application for Immigrant Visa and Alien Registration" (Form FS-256a) with the United States Consular Office in Hamburg, Germany. In response to Question 26 on the application, requesting the applicant to state his places of previous residence, the defendant answered:
"Birth--1911, Dresden, Germany; 1911-1934, Leipzig, Germany; 1934-1939, German Waffen SS; 1939-1945, Waffen SS during the war, ..."
No mention was made on Schellong's application of his two years of residence at the Sachsenburg Concentration Camp, or of his three years of residence at Dachau.
On January 24, 1957, the defendant was granted a visa to enter the United States. The defendant entered the United States on or about February 23, 1957, and he has resided in this country ever since that time.
On or about January 29, 1962, the defendant filed an "Application to File Petition for Naturalization" (INS Form N-400) to the Immigration and Naturalization Service. The defendant signed the application on April 16, 1962. In response to Question 7 on the application, requesting the applicant to "[l]ist each organization, association, fund, foundation, club or society in the United States or in any other place that you have been a member of at any time, and the dates of membership in each," the defendant answered:
Christlicher Verein junger 1920-1927
Maenner (Church organization)
Leipziger Ballspiel club 1926-1932
(Soccer club)
National Sozialistische Arbeiter 1932-1945
Partie (Nazi Party)
Allgemeine SS ( ) 1932-1934
(elite corps)
Waffen SS ( ) 1934-1945
Member of the Church of St. Luke 1957-Date
(No others)
[The five items in brackets may have been written on the form by the immigration examiner.] No mention was made on Schellong's application of his association with the storm troopers in 1932, or with the SS Sonderkommando "Sachsen," the SS Wachverbande "Sachsen," or with the SS Totenkopfverbande "Sachsen," .... In addition, no mention was made as to the defendant's association with the SS Totenkopfverbande "Oberbayern" (SS Death's Head Unit "Oberbayern") while at Dachau.
On or about April 16, 1962, in connection with the processing of the defendant's application to file a petition for naturalization, the naturalization examiner, Frank M. Siracusa, now Judge of the Cook County Circuit Court, directed the defendant to provide a sworn written statement concerning certain information on his application. Although the request for a statement was not in writing, and Judge Siracusa was unable to recall the precise wording of his question(s) to Schellong, the defendant's response indicates that the question concerned his activities between 1934 and 1939. Schellong wrote:
* * *
* * *
On July 17, 1962, the District Court for the Northern District of Illinois, acting on this petition, granted the defendant's Petition for Naturalization and issued to him Certificate of Naturalization No. 8465738.
Defendant argues that the government has failed to show willful misrepresentation or concealment on the visa application, the petition for naturalization, or the supplemental statement by clear, unequivocal and convincing evidence. Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746-47, 66 L.Ed.2d 686; Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149-50, 5 L.Ed.2d 120. On the visa application, when asked to list residences, defendant listed "German Waffen SS" from 1934-1939, and "Waffen SS" from 1939-1945. Defendant failed to list Sachsenburg or Dachau as residences even though he lived at those locations for a total of five years. The government's expert, Dr. Sydnor, testified that the Waffen SS did not exist before 1939, and that consequently, listing "German Waffen SS" as a residence from 1934-1939 was not only not responsive to the question, but was also an impossibility. Defendant responds by claiming that the use of the term "Waffen SS" to mean "armed" SS was common before 1939, even though the...
To continue reading
Request your trial
-
US v. Schiffer
...not part of the Wehrmacht or the German Army. (Sydnor, March 16, 1993, pp. 67-69; Ziemke, pp. 13-15, 61, 72-73; United States v. Schellong, 717 F.2d 329, 331, (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984).) One could not be a member of both the Waffen -S......
-
El Dorado County v. Schneider
...jury trial. (See Shillitani v. United States (1966) 384 U.S. 364, 371 [86 S.Ct. 1531, 1536, 16 L.Ed.2d 622, 627]; United States v. Schellong (7th Cir.1983) 717 F.2d 329, 366, rehear. den., 717 F.2d 329, cert. den., (1984) 465 U.S. 1007 [104 S.Ct. 1002, 79 L.Ed.2d 234].) 2. Seventh Amendment......
-
County of El Dorado v. Schneider
...a jury trial. (See Shillitani v. United States (1966) 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622, 627; United States v. Schellong (7th Cir.1983) 717 F.2d 329, 366, rehear. den., 717 F.2d 329, cert. den., (1984) 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234.) 2. Seventh Amendment......
-
U.S. v. Cirrincione
...56 L.Ed. 1066 (1912); Schneiderman v. United States, 320 U.S. 119, 160, 63 S.Ct. 1333, 1353, 87 L.Ed. 1796 (1943); United States v. Schellong, 717 F.2d 329, 336 (7th Cir.1983); United States v. Minerich, 250 F.2d 721, 726 (7th Cir.1957), and thus the Japanese immigrant seeking asylum is not......