United States v. Fedorenko
| Decision Date | 25 July 1978 |
| Docket Number | No. 77-2668-Civ-NCR.,77-2668-Civ-NCR. |
| Citation | 455 F. Supp. 893 |
| Parties | UNITED STATES of America, Plaintiff, v. Feodor FEDORENKO, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
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J. V. Eskenazi, U. S. Atty., Alan M. Lubiner, Gen. Atty. (Nationality) Immigration & Naturalization Service, Miami, Fla., for plaintiff.
Gregg J. Pomeroy, Fort Lauderdale, Fla., Celentano & Gildea, New Haven, Conn., for defendant.
The Government seeks to strip defendant of his American citizenship granted in 1970. Basically the Government charges that defendant lied on his application for a visa in 1949, particularly in not disclosing he served as a guard at the death camp at Treblinka during World War II. Further, the Government charges he participated in atrocities at Treblinka, precluding him from having the good moral character necessary to become an American citizen. Defendant, originally a Ukrainian, contends that he was not a guard voluntarily but he was forced to be one as a prisoner of war of Nazi Germany and denies committing any atrocities at Treblinka or elsewhere.1
Defendant Fedorenko came to America in 1949 and has been a respectable resident ever since. Following his arrival he worked on a farm in Connecticut. After a year he worked in a factory in Waterbury and then went to work for Scovill, a manufacturer of brass and copper products; he worked there, usually as a foundry worker, for 20 years until his retirement. He was emphatically described by fellow-workers at Scovill as an "excellent" worker who did not speak unkindly of anyone; that he was so good a worker he had no problems and was a "real gentleman" with no apparent prejudices of any type. The union representative at Scovill testified strongly as to his reliability and performance — a man who never put in a grievance and never had one filed against him. His foreman described defendant as a man who did his job well and cheerfully — a very conscientious and a very good worker.2 The court accepts these appraisals as accurately reflecting defendant's work-life and personal life for 29 years.
The defendant married while in America but his American wife has died. For background: until the early 1960's defendant believed his wife and two children in Russia had been killed during World War II. He had been so advised at a prisoner of war camp by two brothers from his home town. He has since discovered his wife and sons are alive and living in Crimea; he has visited them in the 1970's. His only schooling was in his native Ukraine for three years from 1915 to 1918, during the defeat and collapse of Czarist Russia.
Defendant has retired on a social security pension and a pension from his 20 years labor at Scovill. He doesn't own a car; he doesn't own a house; he owns no real estate except a cemetery lot, and he has a burial insurance policy. He has accumulated a life savings of $5,000 but owes his attorney an unknown fee for a trial which lasted 14 days. He has never been arrested in 29 years — not even for a traffic offense. His one failure as a resident and citizen in 29 years: he received one parking ticket. Feodor Fedorenko has been a hard-working and responsible American citizen.
This suit was instituted in August, 1977 while defendant was a resident in Miami Beach, pursuant to the requirement of 8 U.S.C. § 1451 (a) that suit be filed "in the district in which defendant resides." Defendant challenged venue on the grounds that his presence in Miami Beach, where he was then living, was only temporary and that his permanent residence was in Waterbury, Connecticut. The court denied defendant's motion to transfer, holding that venue properly lay in the Southern District of Florida.3
However, in an effort to alleviate defendant's claim of financial hardship in producing witnesses in Florida the court — through the gracious hospitality of the United States District Court for the District of Connecticut — held a portion of the trial in Waterbury.4 Although the hearing in Connecticut was originally scheduled to follow presentation of the Government's case in Fort Lauderdale in April, the Government's case was postponed until late May and June because of a recent appearance by Florida defense counsel.5
Consequently, part of defendant's case was heard out of turn prior to the presentation of the Government's case in Fort Lauderdale without objection by either side. Two government witnesses also testified in Waterbury without objection, as a convenience to the witnesses.
A second problem developed prior to trial with regard to the Government's obtaining testimony of foreign witnesses. Early in November 1977, the court learned of the Government's intention to take depositions out of the country. Because it was concerned that the Government might intend to produce only deposition testimony of foreign witnesses, the court sua sponte entered an order prohibiting the use of deposition testimony at trial in order to enable the court to observe the witnesses' faces, body language and reactions in the courtroom, particularly in the presence of defendant and also his reactions to their testimony. The court felt that in-court testimony would be particularly critical in view of possible identification problems and the passage of 35 years since the events complained of at Treblinka. In addition, depositions taken by the Government in Israel almost surely would not have provided cross-examination. In compliance with the court's order the Government was compelled to bring its witnesses from Israel to Fort Lauderdale.6
Title 8 U.S.C. § 1451 (a) provides that for good cause shown the United States Attorney shall institute proceedings to set aside an order admitting a person to citizenship and cancel the certificate of naturalization on the grounds that such order and certificate were "illegally procured or were procured by concealment of a material fact or by willful misrepresentation".
In Count 1 the Government charges that defendant gave false information in his application for Immigration Visa and Alien Registration, and that his citizenship was therefore "illegally procured" because he was never lawfully admitted to the United States.
Counts 2 and 3 allege that defendant was not admissible to the United States under the Displaced Persons Act of 1948, Pub.L. No. 80-774, 62 Stat. 1009, nor was he otherwise admissible under the Immigrations Laws and Orders and Regulations issued thereunder because he participated in the commission of crimes and atrocities against civilians in the Treblinka concentration camp during 1942-43.
Count 4 alleges that defendant wilfully failed to disclose the commission of crimes at Treblinka in response to question # 6 on his Application to File Petition for Naturalization (Form N-400).
In Count 5 the Government charges that defendant wilfully failed to disclose his service as an armed guard for the Germans in response to question # 7 on the N-400 form.
Finally, Counts 6 and 7 allege that defendant lacked the good moral character required to become a citizen by virtue of his commission of atrocities at Treblinka and the giving of false statements with request to questions # 6 and # 7 as alleged in Counts 4 and 5.
Defendant Fedorenko in his answer raised the special defenses of waiver and estoppel, improper venue, and the statute of limitations. Primarily defendant contended that the long passage of time between the incidents at issue and the institution of this law suit served to bar the Government from proceeding. The defense of improper venue was based on the allegation that defendant did not reside in Florida at the commencement of this law suit.
At trial, defendant virtually abandoned these special defenses; instead he denied generally having committed atrocities or crimes against humanity while a prison guard at Treblinka. Also, defendant sought to establish that his service as a guard at Treblinka and elsewhere was performed involuntarily while he was himself a prisoner of war.
Because of the importance of a loss of citizenship to the individual, a denaturalization proceeding is a most sensitive trial.
Thus, the burden of proof in denaturalization cases has been clearly stated by the Supreme Court in Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 955, 957, 2 L.Ed.2d 1048 (1958), as follows:
Where citizenship is at stake the Government carries the heavy burden of proving its case by "`clear, unequivocal, and convincing' evidence which does not leave `the issue in doubt' * * *." Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796. "Especially is this so when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness." Id., 320 U.S. at pages 122-123, 63 S.Ct. at page 1335.
As the Supreme Court has stated:
Denaturalization cases are extremely serious problems. They involve not only fundamental principles of our political system designed for the protection of minorities and majorities alike. They also involve tremendously high stakes for the individual. For denaturalization, like deportation, may result in the loss "of all that makes life worth living." (citation omitted) Knauer v. United States, 328 U.S. 654, 659, 66 S.Ct. 1304, 1307, 90 L.Ed. 1500 (1947).
A failure to follow the published policy of the Department of Justice does not bar the bringing of the suit. United States v. Nelligan, 573 F.2d 251 (5th Cir. 1978). However, it is interesting to observe the policy of the Department of Justice with respect to bringing denaturalization cases:
In the opinion of the department, as a general rule, a good cause is not shown for the institution of...
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