U.S. v. Kairys

• Decision Date: 27 January 1986
• Docket Number: Nos. 85-1314,85-1397,s. 85-1314
• Citation: 782 F.2d 1374
• Parties: 19 Fed. R. Evid. Serv. 1184 UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Liudas KAIRYS, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1374

782 F.2d 1374

19 Fed. R. Evid. Serv. 1184

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Liudas KAIRYS, Defendant-Appellant/Cross-Appellee.

Nos. 85-1314, 85-1397.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1985.

Decided Jan. 27, 1986.

Fred H. Bartlit, Jr., Kirkland & Ellis, Chicago, Ill., for defendant-appellant/cross-appellee.

Michael Wolf, Office of Special Investigations, Washington, D.C., for plaintiff-appellee/cross-appellant.

Before CUMMINGS, Chief Judge, BAUER and FLAUM, Circuit Judges.

CUMMINGS, Chief Judge.

The defendant, Liudas Kairys, appeals an order of the United States District Court for the Northern District of Illinois revoking his citizenship pursuant to 8 U.S.C. Sec. 1451(a). United States v. Kairys, 600 F.Supp. 1254 (1984). Section 1451(a) allows for revocation of citizenship that was "illegally procured" ¹ or "procured by concealment of a material fact or by willful misrepresentation." ² We affirm.

Statement of the Case and Facts

Denaturalization proceedings were commenced against Kairys on August 13, 1980, by the United States Justice Department. The government brought three pertinent counts against him under Sec. 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. Sec. 1451(a) (as amended in 1961). Count I charged willful misrepresentation or concealment of a material fact in defendant's petition for naturalization; Count II charged illegal procurement of naturalization because defendant's service as a Nazi camp guard made him ineligible for a visa; and Count III charged illegal procurement of citizenship due to willful misrepresentations in obtaining his visa. The district court entered an order under Count II revoking Kairys' citizenship ³ and dismissed the remaining four counts. Kairys appealed and the government cross-appealed on the dismissal of Counts I and III.

The main issue at trial was the defendant's identity--was Kairys the person the government claimed him to be? ⁴ The defendant contends that he is Liudas Kairys born in Kuanas, Lithuania, on December 20, 1924. As a child he moved to Svilionys, Lithuania, where he completed four years of grammar school. His schooling continued in Svencionys, Lithuania, and he then completed three years of secondary education in Vilnius, Lithuania. Defendant asserts that between 1940 and 1942 he worked on a farm in Radviliskis, Lithuania, and that in 1942 he was captured and sent to the Hammerstein prisoner of war (POW) camp. ⁵ The defendant claims he was a forced laborer in various locations throughout Lithuania and Poland for the remainder of the war.

The government, on the other hand, maintains that the defendant is Liudvikas Kairys born in Svilionys, then Polish, on December 24, 1920. He joined the Lithuanian army, which merged with the Russian army in 1939. The government contends that some time before March of 1940 Kairys moved to Vilnius, Lithuania, and obtained Lithuanian citizenship. ⁶ During the German invasion of Poland, Kairys was captured and placed in the Hammerstein POW camp. In June of 1942 he was recruited by the Nazis and sent to training camp at Trawniki, Poland. In March of 1943 Kairys was transferred to the Treblinka labor camp in Poland to serve as a Nazi camp guard, where he remained until the camp was closed in July 1944 when the Russians advanced into Poland. At some point during his service he was promoted to Oberwachmann of his Nazi guard unit.

The defendant argues that to be ineligible for a visa under the DPA, the government must show personal involvement in atrocities. However, the Supreme Court resolved that issue in Fedorenko, holding that disclosure of service as an armed camp guard results in ineligibility as a matter of law without a showing of individual involvement in persecutions. 449 U.S. at 510 n. 32, 512, 513, 101 S.Ct. at 749 n. 32, 750; see also United States v. Kairys, 600 F.Supp. at 1265 and n. 5. Because we find nothing significant to distinguish armed guard service at a labor camp from such service at a concentration camp, there is no need to show that Kairys was personally involved in persecution.

Although the Supreme Court notes that Fedorenko had testified to shooting in the direction of escaping prisoners, 449 U.S. at 512 n. 34, 101 S.Ct. at 750 n. 34, this was to distinguish Fedorenko's position as a camp guard from those concentration camp survivors who were forced to perform tasks within the camp. Thus in cases not involving armed guards such as defendant, a showing of personal involvement in persecutions may be necessary. Nonetheless, Fedorenko continues to stand for the proposition that service as an armed guard equals persecution.

Both parties are in agreement as to what transpired after the war. Kairys worked as a farm laborer in Wiesent, Germany. In 1947 he entered the United States Army Labor Service Corps. Kairys applied for a visa in April of 1949, which was granted shortly thereafter. In May of 1949 he arrived in Chicago where he has since resided. In 1957 Kairys applied for naturalization, the petition was approved and the district court granted him citizenship later that year. From 1951 to the present Kairys has held one job in Chicago, has married and has two daughters. He is active in community and Lithuanian community affairs.

Kairys raises several issues on appeal. First, he contends there is insufficient evidence in the record to uphold the district court's finding that he was a Nazi labor camp guard at Treblinka. Second, Kairys raises various issues concerning the retroactive application of a 1961 amendment to the Immigration and Nationality Act. Third, he contends that the illegal procurement standard of Sec. 1451(a) violates equal protection. Fourth, he argues that laches should bar the government's action. Finally, he claims he has the right to a jury trial. ⁷

I. SUFFICIENCY OF THE EVIDENCE

The government's burden of proof in a denaturalization case is heavy. The government must prove its case by "clear, convincing, and unequivocal" evidence and not "leave the issue in doubt." ⁸ Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 747, 66 L.Ed.2d 686 (1981) (quoting Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796 (1943)); Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960). Our review of the district court's findings is conducted under the clearly erroneous standard of Fed.R.Civ.P. 52(a). United States v. Koziy, 728 F.2d 1314, 1318-1319 (11th Cir.1984), certiorari denied, --- U.S. ----, 105 S.Ct. 130, 83 L.Ed.2d 70 (1984); United States v. Demjanjuk, 680 F.2d 32, 33 (6th Cir.1982), certiorari denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982); Here the district court found from the evidence presented that "beyond any reasonable doubt ... the defendant is Liudvikas Kairys, born in Svilionys [then Polish] on December 24, 1920, who later became a resident of Vilnius, a Lithuanian citizen and ultimately an Oberwachmann at Treblinka labor camp" and thus his citizenship was illegally procured. 600 F.Supp. at 1262. We hold that the court's factual findings are not clearly erroneous.

Kairys' argument focuses on the accuracy and admissibility of a Personalbogen, which is a German Waffen Schutzstaffel (SS) identity card. The government relied in part on the Personalbogen to establish its version of the defendant's identity. The district court admitted the Personalbogen under Federal Rule of Evidence 901(b)(8). The defendant argues that the admission of the document was error, claiming that it is a forgery fraught with inaccuracies, erasures, inconsistencies, and unexplained problems. The government counters that the defendant failed to produce any substantive evidence that the document was anything other than what it was purported to be--the defendant's Nazi SS personnel card.

A. Admissibility

Federal Rule of Evidence 901(b)(8) governs the admissibility of ancient documents. The Rule states that a document is admissible if it "(A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered." The question of whether evidence is suspicious and therefore inadmissible is a matter of the trial court's discretion. United States v. Bridges, 499 F.2d 179 (7th Cir.1974), certiorari denied, 419 U.S. 1010, 95 S.Ct. 330, 42 L.Ed.2d 284 (1974). We see no error here.

Although the Rule requires that the document be free of suspicion, that suspicion goes not to the content of the document, but rather to whether the document is what it purports to be. As Rule 901(a) states: "The requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." In other words, the issue of admissibility is whether the document is a Personalbogen from the German SS records located in the Soviet Union archives and is over 20 years old. Whether the contents of the document correctly identify the defendant goes to its weight and is a matter for the trier of fact; it is not relevant to the threshold determination of its admissibility. Koziy, 728 F.2d at 1322.

The defendant does argue that a question was raised about whether the document was actually an original Personalbogen. First, the defendant raises general allegations that the Soviet Union routinely disseminates forged documents as part of propaganda campaigns. Next the defendant contends that the thumbprint ink was "unusual" and that it could have been placed on the document by mechanical means. But government witnesses testified that the only likely way for the print to appear on the Personalbogen was from the defendant's pressing his thumb to the...