United States v. Negele, 99-3522

• Decision Date: 11 May 2000
• Docket Number: No. 99-3522,99-3522
• Citation: 222 F.3d 443
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. MICHAEL NEGELE, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 443

222 F.3d 443 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. MICHAEL NEGELE, APPELLANT.

No. 99-3522

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 11, 2000

Filed: August 17, 2000

Appeal from the United States District Court for the Eastern District of Missouri

Before Richard S. Arnold, Hansen, and Bye, Circuit Judges.

Bye, Circuit Judge.

In one of the most deplorable and grotesque chapters in human history, the Third Reich exterminated vast populations based upon their racial, ethnic, and religious characteristics. As this appeal demonstrates, that genocide continues to affect lives even today. The district court ¹ revoked Michael Negele's United States citizenship, finding that Negele misrepresented his war record as a Nazi concentration camp guard in order to obtain citizenship in this country. Negele challenges the adverse judgment on both jurisdictional and substantive grounds. We affirm.

BACKGROUND

Negele, ethnically German, was born in Romania in 1920. In 1942, the Romanian Army drafted Negele into service. In 1943, he moved from the Romanian Army to the German Schutzstaffel, ubiquitously shortened to SS. ² The SS, an organ of the Nazi party, acted as the federal police force in Germany. One part of the SS was called the Waffen SS; in German, waffen means "armed." The Waffen SS was further subdivided into two wings. One wing trained as a military formation, somewhat akin to the standing German army. The other wing, the Death's Head unit, operated and guarded the concentration camps. Negele joined the Waffen SS as a Death's Head guard. From 1943 to 1944, he guarded civilian prisoners at the Sachsenhausen concentration camp near Berlin.

The Sachsenhausen camp obtained the labor of prisoners before they died. The camp essentially worked prisoners to death. Death's Head guards at Sachsenhausen kept track of prisoners, guarded the slave-labor detail outside the camp, and brought the prisoners back to the camp at night. Guards were trained to perform various duties. They received weapons instruction in rifles and pistols, drill instruction, ideological indoctrination, instruction in identifying and guarding prisoners and loading and unloading prisoners from trains. The guards at Sachsenhausen were instructed to shoot prisoners who attempted to escape the camp.

Negele received special training with guard dogs beginning at Sachsenhausen. Death's Head guard dogs were used frequently around the prisoner work details. The Waffen SS trained dogs to attack prisoners when they attempted to escape.

In 1944, Negele was transferred (along with his guard dog) to Theresienstadt, a Jewish ghetto located in the former Czechoslovakia. Theresienstadt operated as an internment camp that held Jews and other prisoners awaiting transport to the death camps. Starvation and disease killed thousands of prisoners in Theresienstadt. Negele policed the exterior of the ghetto, attempting to prevent prisoner escapes. Guards at Theresienstadt also ensured the transport of prisoners to the trains destined for Auschwitz and other death camps.

In May 1945, as the Russian army advanced on Theresienstadt from the east, Negele and other guards rid their SS uniforms of all markings that linked them to the Death's Head unit. Negele discarded his SS identification card and uniform badge. As a result, the Russians never discovered Negele's participation in the Waffen SS. Negele was held as a prisoner of war until August 1945. He then lived in various towns in Germany until 1948. Negele ultimately traveled to Stuttgart, where he applied for an immigration visa to the United States.

In Stuttgart, Negele completed the application for an immigration visa with the aid of a clerk. The clerk asked Negele questions in German, then typed his responses onto the application form in English. When the clerk asked Negele about his wartime residences, Negele told the clerk he served in the "Romanian Army" and the "German Army." Negele did not disclose his service in the Waffen SS. ³ The application process required an applicant to sign the application after an interview with the vice consul, and swear to the truthfulness of the application information. Negele never changed his answers about his war record, and he ultimately signed the application.

On February 23, 1950, the government granted Negele an immigrant visa. Less than one month later, on March 22, 1950, Negele arrived in New York. On September 9, 1955, the Eastern District of Missouri granted Negele's petition for naturalization. Negele worked in the aircraft industry until his retirement in 1986. Negele now resides in St. Peters, Missouri.

The government filed a three-count complaint seeking to revoke Negele's citizenship in September 1997. Any one of the counts, if proven, entitled the government to denaturalize Negele. The district court held a bench trial in mid-April 1999. The court's findings of fact and conclusions of law credited the testimony of an expert witness ⁴ who opined that Waffen SS Death's Head guards were automatically rejected for immigration, whether they served voluntarily or not. ⁵ The court also relied upon the government's documentary evidence showing that the United States categorically rejected individuals because of their service in the Waffen SS Death's Head guard battalion at Sachsenhausen. Consequently, the court determined that Negele was ineligible for an immigration visa, and therefore ineligible for citizenship. On July 20, 1999, the court issued a comprehensive ninety-page memorandum opinion, entered judgment against Negele, and revoked his citizenship. Negele now appeals.

DISCUSSION

A. Subject Matter Jurisdiction

Negele challenges our exercise of jurisdiction. We must resolve jurisdictional questions first. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998). Most of Negele's jurisdictional arguments lack merit. We therefore limit our discussion to two points that deserve consideration.

The Immigration and Nationality Act of 1952 provides, inter alia, that the government shall

institute proceedings in any district court . . . for the purpose of revoking and setting aside the order admitting [a] person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation . . . .

8 U.S.C. 1451(a).

Section 1451(a) confers authority on the federal courts to hear revocation of citizenship actions brought by the government. Negele objects, apparently on the ground that he did not illegally procure the naturalization order. Insofar as Negele's objection is jurisdictional in character, the objection is unfounded. The government bears the burden of proving at trial that Negele illegally procured his citizenship. That is an "element of the offense," so to speak. If the government failed to prove illegal procurement, the district court would not be divested of jurisdiction. Rather, the district court would enter judgment for Negele because the government failed to prove a critical portion of its case. Negele's challenge is properly regarded as a substantive claim of error, rather than a jurisdictional challenge.

Negele also contends that an Article III court may not examine his visa eligibility. Such review would, he contends, amount to an "unconstitutional judicial encroachment into an exclusive Executive function . . . violat[ing] the constitutional doctrine of Separation of Powers." Negele's...