U.S. v. Sokolov

Decision Date24 March 1987
Docket NumberNo. 524,D,524
Citation814 F.2d 864
PartiesUNITED STATES of America, Appellee, v. Vladimir SOKOLOV, a/k/a Vladimir Dmetrivich Sokolov, Vladimir Sokolov-Samarin, Vladimir Samarin, Appellant. ocket 86-6157.
CourtU.S. Court of Appeals — Second Circuit

Kevin W. Smith, Hamden, Conn. (Brian M. Gildea, New Haven, Conn., of counsel), for appellant.

Michael Wolf, Deputy Director, Office of Special Investigations, Crim. Div., Dept. of Justice, Washington, D.C. (Stanley A. Twardy, Jr., U.S. Atty. for Dist. of Conn., Neal M. Sher, Director, Office of Special Investigations, Joseph F. Lynch, Bruce J. Einhorn, Aron A. Golberg, Trial Attys., of counsel), for appellee.

Before OAKES, CARDAMONE, and DAVIS, * Circuit Judges.

OAKES, Circuit Judge:

This appeal by Vladimir Sokolov is from a judgment of denaturalization rendered by the United States District Court for the District of Connecticut, Thomas F. Murphy, Judge, pursuant to section 340(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1451(a) (1982). Under section 340(a), a person who has been admitted to citizenship may be denaturalized if the order admitting him and his certificate of naturalization "were illegally procured or were procured by concealment of a material fact or by willful misrepresentation." The district court ordered Sokolov denaturalized because he collaborated with the Nazis during World War II, and thus was ineligible for a visa or for naturalization as a United States citizen, and because he concealed his wartime activities from immigration and naturalization officials when he applied for a visa and again later when he applied for naturalization.

Government proof at trial was to the effect that Sokolov, a Russian living in the German-occupied Soviet Union, worked voluntarily as a writer for and later also as deputy chief editor of the Russian-language newspaper Rech ("Speech"), which was published by the German army. Under the pseudonym "Samarin," Sokolov wrote anti-Semitic articles urging the Soviet population to support anti-Jewish/Bolshevik actions taken by the Nazis, and articles criticizing the United States and Great Britain and seeking to aid in their military defeat. In addition, as deputy chief editor of Rech, Sokolov edited articles with these same themes.

On appeal, Sokolov urges that the Government failed to prove by the clear, unequivocal and convincing evidence required by Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746, 66 L.Ed.2d 686 (1981), that he made material misrepresentations about his activities to immigration officials. He argues too that the evidence was insufficient to support the conclusion that his visa and naturalization were illegally procured. He claims, first, that there was insufficient evidence that he "advocated or assisted in the persecution of any person because of race, religion, or national origin," and hence that the Government failed to show that he was ineligible to receive a visa by virtue of section 13 of the Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009, 1014 (1948), as amended, ch. 262, 64 Stat. 219, 227 (1950) (the "DPA"). See United States v. Sprogis, 763 F.2d 115, 117 n. 2 (2d Cir.1985). Second, Sokolov argues that the evidence was insufficient to prove that he was ineligible to receive a visa as a displaced person under section 2(b) of the DPA, 62 Stat. at 1009, by reason of having "voluntarily assisted the enemy forces ... in their operations against the United Nations," within the meaning of the Constitution of the United Nations International Refugee Organization ("IRO"), opened for signature December 15, 1946, 62 Stat. 3037, 3051-52, T.I.A.S. No. 1846. As to the issues of misrepresentation and illegal procurement, we affirm.

Additionally, Sokolov makes evidentiary arguments to the effect (1) that he should have had access to certain documents in his immigration file both for preparation before trial and in connection with the cross-examination of a Government witness; (2) that copies of Rech should not have been admitted into evidence; and (3) that the district court improperly amended its conclusions of law by substituting the phrase "clear and convincing evidence" for "preponderance of the evidence" as the standard by which the court found for the Government. As to the first of these evidentiary points, we reverse and remand for in camera scrutiny by the trial court of the immigration file, but as to the other points, we affirm.

I. BACKGROUND
A. Sokolov's Background

Sokolov was born in 1913 in Orel, Russia, a city approximately 200 miles south of Moscow. Before World War II and for 14 months after the June 1941 German invasion of the Soviet Union he lived and worked near Voronezh. In August 1942, however, he returned to Orel, which was under German occupation, and applied for employment as a writer for the Russian-language newspaper Rech. Rech was at the time controlled by the German Army Panzer Propaganda Company 693. It was published three times weekly with at least 50,000 copies being distributed. Its purpose was to spread Nazi propaganda to the people living in occupied Soviet territory. By his own admission, Sokolov wrote articles for Rech "on the Jewish question" because if he did not do so he would "be thrown out and then ... liquidated." He also "had to" write articles against the nations fighting Nazi Germany, and others encouraging Russians to volunteer for work in Germany. As an employee of Rech, Sokolov received a weekly salary and also obtained preferential treatment in housing and food supplies for his family. He was so successful at his job that the Germans awarded him medals for "Bravery" and "Merit" in March and April, 1943, and he was promoted to deputy chief editor of the newspaper.

When the German army retreated westward in the late summer of 1943, the editorial personnel of Rech, including Sokolov, became attached to Propaganda Company 612 and were relocated to the cities of Bryansk and Bobruisk in Nazi-occupied Soviet territory. In the fall of 1944 Sokolov followed the retreat of the German army to Germany and until the end of the war he was employed in Berlin as a writer for the German-controlled Russian-language propaganda newspapers Zarya ("Dawn") and Volya Naroda ("Will of the People"). These newspapers, like Rech, published attacks on the Jews and exhortations to the Soviet people to support Nazi Germany against the Allies.

B. Sokolov's Writings

The district court noted that each of the seventeen articles produced in evidence bearing Samarin's by-line "contains vicious attacks on Jews." Examples from two of them will suffice to portray the type of material for which Sokolov bears responsibility. The first, dated May 30, 1943, appearing in Rech No. 61 (244), is entitled "The Former Masters of Orel." This article pictures the "Kikes" as "the true masters" of the USSR, who "did not work," "hid in the shadows," but "made the decisions." This was true all over the USSR: "Kikes were masters of every institution, every city, the whole country." Sokolov complains that "[i]f in a city the Kikes made up 10% of the inhabitants, then they were 90% of the 'responsible persons.' " He speaks of the head in Orel of the Narodnyi Komissariat Vnutrennikh Del ("NKVD"), the Russian Security Police, as one and then names others who were in the Soviet hierarchy running Orel. Altogether, Sokolov names forty-seven Jews in positions of responsibility, and at the end of his article he exhorts his readers to "Thrash them."

On June 20, 1943, in Rech No. 70 (253), again under the Samarin by-line, Sokolov wrote "Protocols of the Elders of Zion," an article about the Russian translation of a book purporting to lift the veil on "the shady affairs of world Jewry." Sokolov first reminds the reader of the "Jewish threat" and of the Jews' move toward "world domination" by "seizing first economic and then political power." Then, after recounting the "Protocols," supposed Jewish goals and methods for achieving them, he says that much that is found in them "was realized and instituted in the Kikes' state--the USSR," and refers to Stalin as being "on the throne, on the Kike throne, placed there by Kikes and by their servants on top of the bones of millions of Russians." Sokolov speaks of war being "provoked against Germany" because of "a great deal of hatred from world Jewry towards Germany," and says that in this war "Kike-Bolshevism united with the capitalist countries England and America," because "in the USSR, England and America, Kikes are in power."

At trial Sokolov testified that whereas he had used the word "Jews," this was changed by his editor to "Kikes" toward the end of the "Protocols" article, and indeed that at the very end of the article a certain amount of new material was added. Nevertheless, he admitted having written an article on the subject of the "Protocols." The district court stated that Sokolov's "republication of 'The Protocols of the Elders of Zion' by his explanation [of them] compounds the insult." As to his article on "The Masters of Orel," Sokolov agreed that it was anti-Semitic, but he did not agree that its purpose and intent was to encourage hatred for the 47 people named because "they were not there any more." Sokolov also testified that the names were inserted and, indeed, that he could not recognize a single paragraph of the piece because everything was "written over."

The district court gave credence, however, to the videotaped testimony of Artur Bay, a corporal in the German army, attached to Panzer Propaganda Company 693 and Sokolov's superior at Rech. Bay testified that the main propaganda theme routinely published in Rech was the fight against "Jewish Bolshevism." As a Rech writer, he testified, "[y]ou should not say 'Bolshevism,' but you should also use the name 'Jewish Bolshevism.' That was propaganda for the Nazi ideology." Rech writers' propaganda "should prove...

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