728 F.2d 1314 (11th Cir. 1984), 82-5749, United States v. Koziy

Docket Nº:82-5749.
Citation:728 F.2d 1314
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bohdan KOZIY, a/k/a Bogdanus Kosij, a/k/a Bohdan Jozij, Defendant-Appellant.
Case Date:February 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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728 F.2d 1314 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bohdan KOZIY, a/k/a Bogdanus Kosij, a/k/a Bohdan Jozij,

Defendant-Appellant.

No. 82-5749.

United States Court of Appeals, Eleventh Circuit

February 27, 1984

Rehearing Denied April 2, 1984.

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Philip Carlton, Jr., Thomas A. Wills, Miami, Fla., for defendant-appellant.

Kathleen Coleman, Trial Atty., Allan A. Ryan, Jr., Jovi Tenev, Dept. of Justice, Washington, D.C., Stanley Marcus, U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HENDERSON and HATCHETT, Circuit Judges, and JONES, Senior Circuit Judge.

HATCHETT, Circuit Judge:

The appellant, Bohdan Koziy, appeals an order of the United States District Court, 540 F.Supp. 25, for the Southern District of Florida, revoking his citizenship pursuant to 8 U.S.C.A. Sec. 1451(a) which provides that citizenship must be revoked if it was illegally procured, or procured by concealment of a material fact or by willful misrepresentation. 1 After a review of the record, we find the district court committed no error and therefore, we affirm.

FACTS

Before the outbreak of World War II, the Stanislau region was part of Poland. In 1939, Germany and Russia invaded the region and agreed to divide the territory; the Russians gained control of the Stanislau area. On June 22, 1941, Germany invaded Russia and the Germans occupied the region. The towns of Lisets and Stanislau lie within the Stanislau region.

From 1941 until its surrender in 1945, Germany attempted to annihilate the Jewish people residing within its occupied territories. The task of killing millions of Jewish people was so enormous it required the aid of the indigenous population. In the Stanislau region, the Ukranian Police aided the Germans in their task by guarding the Jewish ghetto in Stanislau and killing Jewish residents. They also aided the Germans in deporting the Jewish people to extermination camps.

Bohdan Koziy was born on February 23, 1923, in the town of Pukasiwci, located in the Stanislau region. From 1936 through 1939, Koziy attended various schools in the Stanislau region. In 1939, Koziy became involved in the Organization of Ukranian Nationalists (OUN) which was dedicated to the establishment of an independent Ukranian state. He remained active in the organization until 1944. In 1944, fleeing the Russian advance, Koziy and his family moved to Heide, Germany, where he worked as a farmer. After the Germans surrendered in 1945, the Koziys lived in various displaced persons camps. The Displaced Persons Commission (DPC) operated these camps to establish an orderly method of resettling World War II refugees. After the DPC interviewed Koziy, he entered the United States on December 17, 1949, under the Displaced Persons Act of 1948. On April 25, 1955, Koziy filed his application to file a petition for naturalization. On July 25, 1955, he filed a petition for naturalization and on February 9, 1956, Bohdan Koziy became a United States citizen.

On November 20, 1979, the United States brought this action pursuant to 8 U.S.C.A. Sec. 1451(a), to revoke and set aside the order of the Supreme Court of New York, Oneida County, on February 9, 1956, admitting Koziy to United States citizenship. The United States also requested the cancellation of Koziy's certificate of naturalization. The United States alleged that Koziy had illegally procured his citizenship by concealment

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of a material fact or by willful misrepresentation by failing to disclose his involvement in the Ukranian police and the OUN. Koziy denied involvement in the Ukranian police and contended his actions in the OUN were insufficient to support revocation of his citizenship.

The district court agreed with the United States. It held Koziy's failure to reveal his activities in the Ukranian Police and the OUN made him ineligible to receive a visa under the Displaced Person's Act of 1948 (Act). Therefore, Koziy was unlawfully admitted to the United States and his citizenship was illegally procured. The failure to disclose his activities in the Ukranian Police and the OUN also provided the basis for the district court's ruling that Koziy had procured his citizenship by concealment of a material fact.

The district court found that the Ukranian Police and the OUN were organizations hostile to the United States. Koziy's affiliation with those organizations resulted in his ineligibility for a visa under section 13 of the Act which prohibits the issuance of a visa to anyone who was a "member of, or participated in, any movement hostile to the United States or the form of government of the United States."

The district court also found that Koziy assisted enemy forces and persecuted civilians thereby making him ineligible for a visa under section 2(b) of the Act. The Act declares that anyone who has "assisted the enemy in persecuting civil populations of countries ... or voluntarily assisted the enemy since the outbreak of the second world war in their operations against the United Nations" is of no concern to the Displaced Persons Commission. If the DPC was unconcerned with Koziy, he was ineligible for a visa under section 2(b).

The district court ruled that Koziy's failure to disclose his connections with the Ukranian Police and the OUN on his immigration forms made him ineligible for a visa under section 10 of the Act which precludes the issuance of a visa to any person "who shall willfully make a misrepresentation for the purpose of gaining admission into the United States." The district court also ruled Koziy lacked good moral character which is a prerequisite for admission into the United States under 8 U.S.C.A. Sec. 1427(a)(3) by failing to reveal his wartime activities. Additionally, the district court revoked Koziy's citizenship pursuant to 8 U.S.C.A. Sec. 1451(a) because his failure to disclose his connections with the Ukranian Police and the OUN resulted in his procuring citizenship by concealment of a material fact.

Koziy raises four issues on appeal. (1) Koziy contends the district court erred in finding he was a member of the Organization of Ukranian Nationalists (OUN) and the Ukranian Police. (2) Koziy argues the district court erred in excluding two defense witnesses whose names were not disclosed by his attorney within the time set in the court's pretrial order. (3) Koziy claims the district court violated the ex post facto clause and the due process clause by revoking his citizenship on the ground of illegal procurement. Koziy contends that at the time he obtained citizenship, the statutory provisions for denaturalization did not include illegal procurement, and therefore, the district court's reliance on illegal procurement as a basis for denaturalization violated the due process clause and the ex post facto clause. (4) Koziy argues the district court erred in admitting into evidence an anmeldung, an abmeldung, and an inimical list. 2

I. The Trial Court's Revocation of Koziy's Citizenship Pursuant to 8 U.S.C.A. Sec. 1451(a).

Title 8 U.S.C.A. Sec. 1451(a) provides two methods for revocation of an individual's

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citizenship: (1) If the individual illegally procured his citizenship, or (2) if citizenship were procured by concealment of a material fact or wilful misrepresentation.

  1. Illegal Procurement of Citizenship

    Citizenship is illegally procured if "some statutory requirement which is a condition precedent to naturalization is absent at the time the petition is granted." H.R.Rep. 1086, 87 Cong., 1st Sess. 39, reprinted in [1961] U.S.Code Cong. & Admn.News, 2950, 2983. See also, Fedorenko v. United States, 449 U.S. 490, 515, 101 S.Ct. 737, 751, 66 L.Ed.2d 686 (1981). Lawful admittance to the United States is a statutory condition precedent to naturalization. 8 U.S.C.A. Sec. 1429. If Koziy were ineligible for a visa, he would be unlawfully admitted to the United States. The United States produced various witnesses to testify to Koziy's affiliations with the Ukranian Police and the OUN. Involvement with the Ukranian Police or the OUN would preclude Koziy from receiving a visa under the Displaced Persons Act of 1948.

    The United States produced witnesses who testified they saw Bohdan Koziy in a Ukranian police uniform killing unarmed civilians in the town of Lisets. Josef-Waclaw Jablonski testified he saw Koziy at least once a week in a Ukranian police uniform. He also saw Koziy kill the Singer girl and members of the Kandler family. Jablonski stated that he was 100 percent positive that Koziy committed both acts. Anton Vatseb corroborated Jablonski's story. Vatseb testified he saw Koziy kill the Kandlers and the Singer girl. Vatseb also testified he was with Jablonski when Koziy shot the Singer girl. Vatseb stated that the Kandler family was shot in the same fashion as Jablonski had stated. Three witnesses, Anna Snigur, Maria Antoniva Il'kovs'ka, and Yosif Frankovich Il'kovs'kii, testified that they saw Koziy kill the Bredgolts's family while wearing a Ukranian police uniform.

    The United States also produced two exhibits which corroborated the witnesses' testimony declaring that Koziy was a member of the Ukranian police force. The anmeldung and the abmeldung, Ukranian police employment forms, both contained Koziy's signature. Each document represented Koziy's affiliation with the Ukranian police. Koziy, however, claims he was never employed in the Ukranian police force.

    Koziy presented his testimony and the testimony of three witnesses to refute the government's contention that he was a member of the Ukranian police force. First, his wife testified and contended that Koziy was never a member of the Ukranian police force. Second, Wasyl Ostapiak, Koziy's father-in-law, and a resident of the town of Lisets during World War II,...

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