U.S. v. Firishchak
| Decision Date | 20 November 2006 |
| Docket Number | No. 05-3852.,05-3852. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Osyp FIRISHCHAK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William H. Kenety, Department of Justice Criminal Division, Special Investigation, Jeff Menkin (argued), U.S. Department of Justice, Washington, DC, for Plaintiff-Appellee.
James Maher (argued), Chicago, IL, for Defendant-Appellant.
Before FLAUM, Chief Judge, and RIPPLE and EVANS, Circuit Judges.
In 1949, Osyp Firishchak filed an application for a visa to the United States under the Displaced Persons Act ("DPA"). In November 1954, he became a naturalized United States citizen. Several decades later, the Department of Justice uncovered documents suggesting that Firishchak served in the Ukrainian Auxiliary Police ("UAP") during World War II—a fact he did not disclose in his 1949 visa application. The discovery of these documents resulted in a trial, in which the district court ordered Firishchak denaturalized. Firishchak now appeals the judgment of the trial court. For the following reasons, we affirm that judgment.
In December 2003, the government filed a four-count complaint against Osyp Firishchak alleging that his citizenship was illegally procured and must be revoked according to § 340(a) of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1451(a) (2000). The government contended that Firishchak's admission into the United States was unlawful on several grounds: 1) he assisted in the persecution of civilians during World War II; 2) he participated in a movement hostile to the United States; 3) he willfully misrepresented his wartime activities throughout his visa application process; and 4) he advocated or acquiesced in acts contrary to human decency.
In August 2005, the district judge conducted a four-day bench trial and granted judgment for the government on all four counts. United States v. Firishchak, 426 F.Supp.2d 780 (N.D.Ill.2005). The primary issue at trial was whether Firishchak had served in the UAP. The government offered documentary evidence linking Firishchak to the UAP, expert testimony from a World War II historian, and testimony about post-war visa application procedures, while Firishchak testified in his own defense, denying any involvement with the UAP. Instead, he testified that he drifted from place to place during the war, hiding from the Nazis in various coffee shops. The district court found Firishchak's account of his war-time activities "incredible" and concluded that he had served in the UAP.
Osyp Firishchak was born on April 18, 1919 in Trebuszany, a town that became a part of Czechoslovakia after World War I and is now a part of Ukraine. No other persons bearing his name were born in Trebuszany on that date. His father was named Hryts Firishchak.
In his application under the DPA, Firishchak described his employment and residences from 1941 to 1944, stating that he had worked as a laborer for a factory in Nitra, Slovakia, from 1939 to December 1941; a Ukrainian cooperative in "Lwow" (L'viv), Poland, from December 1941 to April 1944; and a building firm in Nitra, Slovakia, from April to October 1944. On his visa application, Firishchak described his residences from 1941 to 1944 as Nitra, Slovakia (1939 to December 1941); Lemberg (L'viv), Poland (December 1941 to April 1944); and Nitra, Slovakia (April 1944 to October 1944). Firishchak swore to the truth of the information on his visa application. He was admitted to the United States and later became a naturalized United States citizen.
In August 1941, following Nazi Germany's June 1941 invasion of then-Soviet territory, German authorities formed the UAP to aid in policing the newly-incorporated District Galicia. Throughout its existence, the UAP was financed, directed, and controlled by German authorities. Ukrainian Auxiliary policemen in the city of L'viv were uniformed, armed, salaried, and received various benefits, including leave and preferential access to scarce commodities.
The Nazi policy toward Jews in District Galicia had several components. First, the Nazis issued new identification papers to Jews that identified their religion, and oversaw their confinement in ghettos. Later, many of these Jews were forcibly removed and killed. The Nazis temporarily spared a limited number of Jews, whom the Germans considered "work capable," transferring them to forced labor camps where many died from starvation, disease, and other inhumane conditions. These measures were implemented and enforced from 1941 to 1943 in Galicia. During this time, the UAP checked personal identification documents and arrested Jews who lacked special work passes. They also arrested any Jew who failed to wear an armband bearing the Star of David.
At the time that Firishchak was admitted into the United States, the UAP was not on the Inimical List of organizations hostile to the United States—a list maintained by the Displaced Persons Commission to assist with processing visa applications.
The parties stipulated to numerous facts and legal conclusions in the pre-trial order that greatly reduced Firishchak's available defenses at trial. They stipulated, among other things, that the UAP "enforced Nazi persecutory measures against ... Jews in the city," by checking personal identification documents and arresting Jews for various violations and that the UAP assisted the Nazis with the largest ghetto reduction action in L'viv, commonly known as the "Great Operation." Pre-trial Order at 5-6.
As for legal conclusions, they stipulated if Firishchak "performed the routine duties of a Ukrainian Auxiliary policeman, he assisted in the persecution of civil populations." Id. at 16. Moreover, the parties stipulated that if Firishchak served in the UAP during WWII, he "was a member of, or participated in, a hostile movement." Id. at 18. In addition, the parties agreed that Firishchak's wartime activities, and UAP membership in particular, "were material facts" and that if he actually served in the UAP during WWII, "he made a willful and material misrepresentation of his wartime activities for the purpose of gaining admission to the United States." Id. at 19. Finally, the parties stipulated that if Firishchak served in the UAP, "which was subordinate to the Nazi security authorities and routinely assisted in implementing a range of Nazi anti-Jewish policies, he advocated or acquiesced in activities or conduct contrary to civilization and human decency." Id. at 20. The end result of these stipulations was that Firishchak could only be absolved if the government failed to prove his membership in the UAP altogether.
At trial, the government introduced twenty-one wartime documents related to Firishchak's UAP service, including seven that bear his signature.1 Two of those documents identify Firishchak by name and birth date and state that he had been employed by the 1st Commissariat of the Ukrainian Police since October 1941. One of the documents lists the headquarters of the 1st Commissariat as Firishchak's residence and lists his father's name as Hryts. The signatures on the documents are spelled the same, and all of the documents identify Firishchak as a police private in the UAP. A few of the documents lacked specific dates.
During Firishchak's trial, Dr. Dieter Pohl, a scholar who has done extensive archival research on the Nazi occupation of District Galicia and the UAP, testified generally about the German occupation of Galicia and the role of the UAP in implementing Nazi policy. In addition, Pohl testified that there was no suspicion regarding the authenticity of the twenty-one wartime documents and that they were all housed in a location where one would expected to find them—the L'viv State Regional Archive. He further testified that all of the documents dated from 1942 to 1944.
Robert Groner, a former Department of Justice trial attorney, testified regarding Firishchak's sworn interview, in which Firishchak identified seven signature samples (extracted from relevant UAP documents) as his own. Groner stated that Firishchak declined the services of an interpreter at the interview and was composed, lucid, and responsive until he was shown the documents regarding his UAP service, at which point he became nervous and agitated.
The government also offered testimony from William Weiss, a survivor of the L'viv Jewish ghetto. He did not specifically testify about Firishchak or identify him as a member of the UAP. Instead, Weiss testified about ghetto conditions as well as the abuse that occurred at the hands of both the Nazis and the UAP. Finally, the government entered the de bene esse depositions—depositions taken for use in the event of a witness's absence at trial—of Mario DeCapua and Everett Coe, who testified generally about visa applications and procedures under the DPA, including security investigations into applicants' backgrounds. No one with personal knowledge testified that Firishchak was a member of the UAP or performed the duties of a Ukrainian Auxiliary policeman in the streets of L'viv during World War II.
Firishchak testified in his own defense at trial, denying any service in the UAP. He admitted that the individual identified in the incriminating documents had the same name, the same birth date, the same father's name, and came from the same village. Firishchak admitted that he resided in the same town during the war as the individual identified in the wartime documents. As to his wartime activities, Firishchak testified that he was homeless throughout the war and drifted from place to place, hiding out in coffee shops along the way. He testified that after leaving his factory job in...
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