U.S. v. Walus

• Decision Date: 13 February 1980
• Docket Number: Nos. 78-1732,79-1140,79-1587 and 79-1629,s. 78-1732
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank WALUS, a/k/a Franciszek Walus, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 283

616 F.2d 283

UNITED STATES of America, Plaintiff-Appellee, v. Frank WALUS, a/k/a Franciszek Walus, Defendant-Appellant.

Nos. 78-1732, 79-1140, 79-1587 and 79-1629.

United States Court of Appeals, Seventh Circuit.

Argued April 26, 1979.

Decided Feb. 13, 1980.

Charles W. Nixon, Charles O. Brizius, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Linda A. Wawzenski, Frederick H. Branding, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before PELL, Circuit Judge, MOORE, Senior Circuit Judge, ^* and WOOD, Circuit Judge.

PELL, Circuit Judge.

This case comes before us for decision as four consolidated appeals. In No. 78-1732 the defendant, Frank Walus, appeals from the judgment of the district court cancelling his Certificate of Naturalization. The other appeals, Nos. 79-1140, 79-1587, and 79-1629, are from two orders of the district court denying motions under Fed.R.Civ.P. 60(b)(2) to vacate the judgment based on newly-discovered evidence and a motion for letters rogatory under Fed.R.Civ.P. 28(b)(3). ¹

In January 1977, the Government filed a four-count complaint against Walus seeking to revoke his United States citizenship under 8 U.S.C. § 1451(a). The basis for the Government's action was Walus' alleged membership in the German Gestapo, Schutzstaffeln (SS), or other similar organization, the commission of atrocities in Kielce and Czestochowa, Poland, and failure to disclose these facts during the naturalization process. ² The defendant was tried on these charges without a jury. The trial court found against the defendant on each count and entered judgment in favor of the Government. United States v. Walus, 453 F.Supp. 699 (N.D.Ill.1978).

In summary, the following evidence was submitted at trial. The Government's case-in-chief consisted primarily of the testimony of twelve witnesses who said they saw the defendant commit various acts of brutality during the Nazi occupation of the Polish towns of Kielce and Czestochowa. ³ According to the witnesses the defendant was a member of the Gestapo. The Government's evidence also included testimony concerning admissions made by Walus to his neighbors and two of his coworkers about his activities during World War II. In his defense, Walus testified that he was a forced laborer in Germany during the years in question. Walus testified that the Germans sent him from his home in Fanislawice, Poland to Germany when he was seventeen years old and that he worked for farmers in Kleinkotz, Bubenhausen, and Wullenstetten, Germany. ⁴ To corroborate his testimony, Walus submitted, among other things, documentary evidence, including public health insurance records that placed him in the employ of these farmers during this period. Five witnesses also testified that they knew Walus when he was a laborer in these German towns. After hearing all of the evidence, the trial court concluded that "in the face of the case presented by the United States, it (simply) cannot accept what was essentially an alibi defense by Frank Walus." 453 F.Supp. at 715. The judgment was entered on May 30, 1978.

After the entry of judgment revoking his citizenship, Walus filed two motions to vacate under Fed.R.Civ.P. 60(b). Both of these motions were based on newly-discovered evidence. The first motion was filed on October 30, 1978. The evidence supporting this motion included documents, witnesses, and evidence of SS and Gestapo admission requirements. The first item at issue was a pair of documents from the State Archive Neuberg on the Danube. One of these documents is an application for a residence permit dated June 16, 1940. The other document, dated August 31, 1940 is a residence permit. On one of the documents is a photograph. The information recorded on both documents places the defendant in Kleinkotz, Germany from March 7, 1940, to June 4, 1940, and in Bubenhausen from June 4, 1940, to an indefinite date. The affidavits of three witnesses also accompany the Rule 60(b)(2) motion. One of the affidavits comes from a French citizen who claims to have been a prisoner of war and to have known Walus at Wullenstetten, Germany from 1941 to 1945. Another comes from a priest who claims to have known Walus at Wullenstetten from January 1, 1942, until the end of April 1945. The third affidavit comes from a factory worker in Germany who claims to have been brought to Wullenstetten, Germany, from Poland as a forced laborer in 1941, and who claims to have known Walus in Germany. This affidavit is accompanied by four photographs, which the witness claims show him with Walus and other forced laborers. Finally, the defendant has offered statements from the German Institut fur Zeitgeschichte asserting that Poles were not admitted in the Gestapo or SS and evidence as to height requirements for these organizations. Walus' second Rule 60(b) motion is based on the affidavits of five Polish citizens who also claim to have known Walus when he was a forced laborer in Germany. The district court denied both of these motions. ⁵

In his direct appeal from the judgment revoking his United States citizenship, Walus has raised numerous issues, most notably, the sufficiency of the evidence and the bias of the judge at trial. Although our reading of the record has revealed instances of attitudes we find somewhat disturbing on the part of this experienced trial judge, ⁶ the entire record and the ultimate findings do not sufficiently support the defendant's extraordinary charge of bias so as to require reversal on this ground. Furthermore, we have reviewed all of the evidence and have concluded that, although the defendant's argument that the evidence is insufficient is persuasively presented, outright reversal is not otherwise warranted. We do agree with the defendant's arguments under Fed.R.Civ.P. 60(b), however, that the Government's case was sufficiently weak, particularly as to impeachment of the defendant's documentary evidence, that the newly-discovered evidence would almost certainly compel a different result in the event of a new trial. We therefore reverse the district court's denial of the defendant's Rule 60(b) motions on the basis of the newly-discovered witness from France, the newly-discovered residency documents from the State Archive Neuberg on the Danube, and the five newly-discovered witnesses from Poland.

Both parties agree that the prerequisites for relief from the judgment under Rule 60(b)(2) are as follows:

(1) The evidence was discovered following the trial;

(2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred;

(3) the evidence is not merely cumulative or impeaching (4) the evidence is material;

(5) the evidence is such that a new trial would probably produce a new result.

See Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir. 1975), rev'd on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976); Giordano v. McCartney, 385 F.2d 154, 155 (3d Cir. 1967). ⁷ Our review is confined to a determination whether the district court abused its discretion in applying this standard. De Filippis v. United States, 567 F.2d 341 (7th Cir. 1977); International Nikoh Corp. v. H. K. Porter Co., 374 F.2d 82 (7th Cir. 1967).

In denying the defendant's motions for relief under Rule 60(b), the district court adhered to its earlier determination that the evidence against the defendant at trial was compelling and therefore concluded that the new evidence was not of the quality that justifies vacating the judgment. The strength or weakness of the evidence against the defendant is an important and often decisive factor in judging the new evidence supporting a motion to vacate, because the fundamental purpose of the Rule 60(b) motion is to prevent the judgment from becoming a vehicle of injustice. Compare Newsom v. United States, 311 F.2d 74 (5th Cir. 1962) with United States v. Beduna, 359 F.2d 147 (6th Cir. 1966). See generally 2 C. Wright, Federal Practice & Procedure § 557 (1969). The result of this action would be to strip the defendant of what is perhaps his most precious possession, his American citizenship. Accordingly, there is no dispute that section 1451(a) requires the Government to prove its allegations against the defendant by clear, convincing, and unequivocal evidence. See, e. g., Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); United States v. De Lucia, 256 F.2d 487 (7th Cir. 1958), cert. denied, 358 U.S. 836, 79 S.Ct. 59, 3 L.Ed.2d 72. We therefore turn first to an examination of the record at trial, keeping in mind the Government's heavy burden of proof and our fundamental duty to ensure that the judgment below speaks the truth. See Newsom v. United States, supra, 311 F.2d at 79. Only then can we properly review the decision of the district court that the new evidence is not of the quality to entitle the defendant to relief from the judgment.

The Evidence at Trial

1. The Government's Case

The bulk of the Government's case against the defendant was the testimony of twelve witnesses who identified Frank Walus as the perpetrator of crimes against civilians in the ghettos of Czestochowa and Kielce, Poland, between 1939 and 1943. Ten of the witnesses, David Gelbhauer, Josef Koenigsberg, Moniek Rozanski, Elieser Gliklich, Chaim Beigelman, Beinisz Neuhaus, Isaac Sternberg, Anna Kremski, Frank Silver, and Simon Mlodinow, were confined to the Jewish ghetto in Czestochowa. Two of the witness, Meylich Rozenwald and Sara Leichter, were confined to the ghetto in Kielce. Each of the persons testified to having witnessed horrible crimes committed against their people by one particular member of the Nazi Gestapo. According to the witness Gelbhauer, for example, this man beat people during interrogation sessions until they were bloody and had to be carried from the room. The witness Gliklich testified that he saw the man club people, including Gliklich's father, at the Gestapo...