800 F.2d 159 (7th Cir. 1986), 86-1418, United States v. Joudis

Docket Nº:86-1418.
Citation:800 F.2d 159
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jurgis JOUDIS, Defendant. In re the Contempt Petition Mecislovas MIKUTAITIS, Deponent-Appellant.
Case Date:September 02, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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800 F.2d 159 (7th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jurgis JOUDIS, Defendant.

In re the Contempt Petition Mecislovas MIKUTAITIS, Deponent-Appellant.

No. 86-1418.

United States Court of Appeals, Seventh Circuit

September 2, 1986

Argued May 13, 1986.

Rehearing and Rehearing En Banc Denied Oct. 3, 1986.

Ronnie L. Edelman, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Charles W. Nixon, Chicago, Ill., for defendant.

Before WOOD, COFFEY and FLAUM, Circuit Judges.

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FLAUM, Circuit Judge.

The appellant, Mecislovas Mikutaitis, appeals an order of the district court finding him in contempt under 28 U.S.C. Sec. 1826 for refusing to be deposed despite a grant of immunity pursuant to 18 U.S.C. Sec. 6002. Mikutaitis, who is of Lithuanian descent, asserted his Fifth Amendment right against self-incrimination because of the fear that the government's Office of Special Investigations (OSI) would, as it is currently attempting to do with Jurgis Joudis, seek his denaturalization and eventual deportation for his alleged cooperation with the occupying Nazi forces during World War II and the concealment of this cooperation in order to enter the United States following the war. He claims that the information requested by the OSI, if obtained by Soviet authorities, could result in his prosecution should the United States successfully seek his deportation. The district judge in the Middle District of Florida who was assigned the denaturalization case against Joudis attempted to shield Mikutaitis through a grant of immunity and an order that the deposition be put under seal. Mikutaitis considered these protections inadequate and the district court here in Illinois found him in contempt.

We find that the protections offered by the order of the Florida court were sufficient and thus Mikutaitis has failed to establish "a real and substantial fear of foreign prosecution." Therefore, we affirm the district court.

I.

Jurgis Joudis was allegedly a member of the Lithuanian Auxiliary Police between 1941 and 1944. This group of Lithuanian citizens assisted the occupying Nazi forces in the persecution and slaughter of Jews and other groups targeted by the Third Reich. The OSI is currently seeking to strip Joudis of his citizenship on the grounds that he misrepresented and concealed his wartime activities. As part of the discovery in the denaturalization proceedings being conducted in the United States District Court for the Middle District of Florida the government sought to depose Mecislovas Mikutaitis, a resident of Chicago and a wartime citizen of Lithuania. The attorneys for the government had reason to believe that Mikutaitis served in the Auxiliary Police and was familiar with Joudis's activities.

In 1983 the government attempted to depose Mr. Mikutaitis but he refused to answer any questions that went beyond his identity, asserting his rights under the Fifth Amendment. On October 23, 1985 the OSI obtained from the Florida court an order pursuant to 18 U.S.C. Sec. 6002 compelling Mikutaitis to provide the requested information. The order also provided that the testimony and ancillary information be kept under seal. One week later the Clerk of the Court for the Northern District of Illinois issued a deposition subpoena which was served upon Mikutaitis. Counsel for Joudis was also notified.

On November 21, 1985 the government once again attempted to depose Mikutaitis but, notwithstanding the grant of immunity and the sealing order, Mikutaitis continued to refuse to answer based on the privilege against self-incrimination. Immediately thereafter a Motion for Rule to Show Cause why the deponent should not be held in contempt under the Recalcitrant Witness Statute, 28 U.S.C. Sec. 1826, was filed in the district court.

Despite repeated government motions, an evidentiary hearing was not held until March 6 and 7, 1986, a month and one-half after discovery had been cut-off and the parties ordered to stand ready for trial in the denaturalization action in Florida. At the evidentiary hearing Mikutaitis called two witnesses: a professor from the University of Illinois, who testified about the Soviet treatment of alleged war criminals, and the government attorney, who spoke about OSI's basis for wanting to depose Mikutaitis and the nature of information sought. The deponent also attempted to introduce news items and bulletins published by an organization known as Americans for Due Process. These publications summarized published accounts of existing

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