U.S. v. Klimavicius, 87-2034

• Decision Date: 08 April 1988
• Docket Number: No. 87-2034,87-2034
• Citation: 847 F.2d 28
• Parties: UNITED STATES of America, Appellee, v. Jonas KLIMAVICIUS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 28

847 F.2d 28

11 Fed.R.Serv.3d 332

UNITED STATES of America, Appellee, v. Jonas KLIMAVICIUS, Defendant, Appellant.

No. 87-2034.

United States Court of Appeals First Circuit.

Heard April 8, 1988.

Decided May 26, 1988.

Ivars Berzins, P.C., Babylon, N.Y., with whom Daniel G. Lilley, P.A., Portland, Me., was on brief, for appellant.

Alan Held, Office of Special Investigations, Crim. Div., with whom Ronnie L. Edelman, Neal M. Sher, Director, Bruce J. Einhorn, Deputy Director, Washington, D.C., Richard S. Cohen, U.S. Atty., and F. Mark Terison, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

The issue in this case is whether the district court abused its discretion in revoking the citizenship of a defendant in a denaturalization proceeding by means of a default judgment issued under Federal Rule of Civil Procedure 37(b)(2) as a sanction for failure to comply with discovery orders. Defendant-appellant, Jonas Klimavicius, refused to comply with the government's discovery requests on fifth amendment grounds. Klimavicius continued to assert the privilege even after the district court found the fifth amendment inapplicable. Citing bad faith and willful misconduct, the court entered a default judgment and revoked Klimavicius' certificate of naturalization. Because of the serious consequences of a loss of citizenship, we find that the entry of the default judgment constituted an abuse of discretion.

I. FACTS AND PROCEDURAL HISTORY

Klimavicius was born on August 29, 1907, in Marijampole, Lithuania. He entered the United States on May 14, 1949, from West Germany under the Displaced Persons Act of 1948, ch. 647, Pub.L. 774, 62 Stat. 1009. Klimavicius continues to reside in the United States.

On May 30, 1984, the Office of Special Investigations in the Criminal Division of the Department of Justice (OSI) filed a complaint against Klimavicius under Section 340(a) of the Immigration and Nationality Act, as amended, 8 U.S.C. Sec. 1451(a), charging illegal procurement of citizenship. The complaint alleges that during the German occupation of Lithuania, in the fall of 1941, Klimavicius was a member of a Nazi controlled police battalion, the Lithuanian Schutzmannschaft. The complaint further alleges that as a member of the Lithuanian Schutzmannschaft, Klimavicius "assisted in the persecution of Jews and other civilians by detaining and murdering unarmed civilians." The government charges that Klimavicius concealed his membership in the Schutzmannschaft and misrepresented his wartime activities to obtain his United States visa and citizenship.

From the outset of this litigation, appellant has met all discovery requests with the assertion of a fifth amendment privilege grounded on an alleged fear of foreign prosecution for war crimes and domestic prosecution for perjury. We review the history of these requests and claims of privilege to place the entry of the Rule 37 default judgment in context.

The government first noticed appellant's deposition for August 17, 1984. The government coupled the deposition notice with a document production request. Klimavicius failed to appear at his deposition, claiming objections to the scope of the government's request. Pursuant to appellant's motion for a protective order, the Magistrate modified OSI's document production request. The government then noticed the deposition of Klimavicius for March 6, 1985, and included a request for the production of documents in conformity with the Magistrate's order. On the appointed date, Klimavicius appeared for his deposition; he refused, however, to answer all questions except those concerning his name and current address or to produce or identify any of the requested documents. Klimavicius based his refusal on an assertion of the fifth amendment privilege against self-incrimination. The government filed a motion to compel discovery and for sanctions pursuant to Rule 37(a), (b) and (d) of the Federal Rules of Civil Procedure. ¹ Klimavicius opposed the motion by memorandum and affidavit in which he alleged "a reasonable and substantial fear of criminal prosecution by foreign sovereigns, particularly Israel, the Soviet Union and West Germany" and a fear of domestic perjury charges arising out of his prior statements to the OSI during an interrogation in July 1983. The district court ruled, inter alia, that insufficient evidence existed on the record to assess Klimavius' claim of privilege. Noting the importance of the privilege against self-incrimination, the court granted appellant an opportunity to produce additional documentation to support his claim of fear of prosecution. See United States v. Klimavicius, 613 F.Supp. 1222 (D.Me.1985).

On October 30, 1985, the district court granted the government's motion to compel discovery. See United States v. Klimavicius, 671 F.Supp. 814 (D.Me.1985). The court reviewed the documents submitted by Klimavicius pursuant to the prior order and found them inadequate:

The Court allowed the Defendant another opportunity to present a record because the privilege against self-incrimination plays such an important role in the American scheme of justice.... The Court requested that the Defendant submit certified, translated copies of the text of foreign laws which indicate he might be subject to prosecution and to make some showing that the laws would be applied to him if the allegations in the Complaint were proved. Defendant has not complied with this Court's Order, but instead, has relied on a plethora of unsubstantiated statements, irrelevant documents and copies of laws which have not been shown to be accurate or current.

671 F.Supp. at 815 (citation and footnote omitted). The court ruled that Klimavicius had failed to demonstrate a real and substantial threat of either foreign or domestic prosecution; ² it rejected, however, the government's request for attorney's fees and expenses, finding that Klimavicius had not invoked the privilege in bad faith.

The district court ruling did not deter appellant's reliance upon the fifth amendment. Subsequent to the denial of his motions for reconsideration and for a protective order, Klimavicius continued to assert the fifth amendment both at a second scheduled deposition and in response to the government's interrogatories, requests for the production of documents and request for admissions. The government, therefore, filed a motion for sanctions under Rule 37(b)(2), requesting an order prohibiting Klimavicius from testifying at trial or introducing into evidence those documents which he had refused to produce. The government also requested an order treating appellant's failure to comply with the prior court order as contempt of court and awarding costs and attorney's fees. In its decision, the district court found that Klimavicius' continued refusal to answer questions at this deposition and to produce documents was willful and justified severe sanctions under Rule 37. It declined, however, to impose immediate sanctions: "[B]ecause of the seriousness of this matter to the Defendant, the court is going to afford him one last opportunity to comply with the lawful discovery orders of this Court and provide a full and complete response to discovery requests made by the Plaintiff in this proceeding." United States v. Klimavicius, 116 F.R.D. 54, 57 (D.Me.1987).

Pursuant to the order of the district court, the government scheduled a third deposition of Klimavicius for June 1, 1987. Once again, appellant appeared, stated his name and address, and refused to answer all other questions on the basis of an asserted fifth amendment privilege. The government therefore filed a renewed motion for sanctions, requesting in the alternative (1) a default judgment under Rule 37(b)(2)(C); (2) an order prohibiting appellant from opposing the government's claims or supporting any defenses pursuant to Rule 37(b)(2)(B), taking as established certain designated facts pursuant to Rule 37(b)(2)(A), and rendering a judgment for the government based upon those facts; or (3) an order granting the relief requested in its previous motion for sanctions. The government also requested costs and attorney's fees.

In its decision, the court recognized the severity of the use of a default judgment to sanction appellant's behavior. It found, however, that Klimavicius' repeated failure to comply with discovery orders constituted bad faith and willful misconduct sufficient to justify the harshest response:

This Court is fully aware of the severity of rendering a default judgment against a defendant in a denaturalization proceeding. Although this Court was reluctant to impose severe sanctions, as evidenced by its giving Defendant one last opportunity to comply with its orders, there are circumstances where the harshest of the Rule 37 sanctions must be imposed. This is such a case.

United States v. Klimavicius, 117 F.R.D. 12, 14 (D.Me.1987). The court stated that decisive action was necessary both as a punitive measure and to deter other defendants from similar misconduct. It therefore concluded: "The imposition of the sanction of judgment by default should not be made lightly. Given the circumstances of this case, however, it is both a proper and necessary exercise of this Court's discretionary power under Rule 37(b)(2)." Id. at 15. Accordingly, the district court issued a judgment on September 28, 1987, revoking and setting aside Klimavicius' certificate of naturalization and enjoining appellant from claiming any rights, privileges or advantages of United States citizenship. This appeal ensued.

II. DENATURALIZATION THROUGH DEFAULT

Klimavicius attacks the decision of the district court on two grounds. First, he argues that the court erred in its rejection of his fifth amendment claim of privilege. Second, he argues that even if he did fail to establish the basis for a fifth amemdment claim, the court...