US v. Lileikis

• Citation: 899 F. Supp. 802
• Decision Date: 15 September 1995
• Docket Number: Civ. A. No. 94-11902-RGS.
• Parties: UNITED STATES of America v. Aleksandras LILEIKIS.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

899 F. Supp. 802

UNITED STATES of America v. Aleksandras LILEIKIS.

Civ. A. No. 94-11902-RGS.

United States District Court, D. Massachusetts.

September 15, 1995.

David S. Mackey, Boston, MA, for plaintiff.

John Rogers Carroll, Philadelphia, PA, Thomas J. Butters, Boston, MA, for defendant.

MEMORANDUM OF DECISION AND ORDER ON GOVERNMENT'S MOTION TO COMPEL

STEARNS, District Judge.

Aleksandras Lileikis is accused of acts of genocide in his native Lithuania. Lacking jurisdiction to prosecute Lileikis, the government seeks to revoke his citizenship and expel him from the United States.

On September 21, 1994, the United States commenced a civil action to rescind Lileikis's citizenship pursuant to section 340(a) of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1451(a). The Complaint alleges that Lileikis, the Chief of the Lithuanian Security Police (the Saugumas) during the Nazi occupation, "was personally responsible for the arrest, detention and execution of Jews, those who aided Jews, suspected communists, and other civilians." In his answer, Lileikis invoked the Fifth Amendment privilege against self-incrimination and refused to admit or deny the government's substantive allegations. The United States challenges Lileikis's assertion of the Fifth Amendment privilege on three grounds: (1) that Lileikis has failed to provide the requisite foundation for the invocation of the privilege; (2) that the privilege is not applicable when a claimant fears prosecution on the part of a foreign government; and (3) waiver. The government seeks an Order compelling Lileikis to admit or deny those allegations of the Complaint to which he has asserted the privilege, or risk a finding of contempt.

DISCUSSION

The Fifth Amendment privilege "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it." McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924). The privilege "not only extends to answers that would in themselves support a conviction under a ... criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a ... crime." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). The centrality of the privilege to the values that animate our notions of justice was forcefully expounded by Justice Goldberg in Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964):

The privilege against self-incrimination "registers an important advance in the development of our liberty—`one of the great landmarks in man's struggle to make himself civilized.'" Ullmann v. United States, 350 U.S. 422, 426 76 S.Ct. 497, 500, 100 L.Ed. 511 (1956). It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates `a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load.' 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual `to a private enclave where he may lead a private life.' United States v. Grunewald, 233 F.2d 556, 581-582 (1956) (Frank J., dissenting), rev'd 353 U.S. 391 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes `a shelter to the guilty,' is often `a protection to the innocent.' Quinn v. United States, 349 U.S. 155, 162 75 S.Ct. 668, 673, 99 L.Ed. 964 (1955) internal footnote omitted.

A witness may invoke the privilege if he or she reasonably believes that a truthful answer could lead to a criminal prosecution. Kastigar v. United States, 406 U.S. 441, 444-445, 92 S.Ct. 1653, 1656-1657, 32 L.Ed.2d 212 (1972). The fear of prosecution, however, must not be speculative. It must be supported by reason or cause. Marchetti v. United States, 390 U.S. 39, 53-54, 88 S.Ct. 697, 705-706, 19 L.Ed.2d 889 (1968). In a civil proceeding, the assertion of the privilege is not without penalty. The finder of fact is permitted to draw an adverse inference when a party to a civil action declines to answer a question on grounds of potential self-incrimination. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976).

The crux of the government's argument is that the Fifth Amendment privilege is not available to one who fears prosecution by a foreign government.¹ For present purposes, the government is willing to concede that Lileikis's apprehension of prosecution by the Lithuanian authorities is well-founded.² See Government's Memorandum, at 10 n. 2. The intention of Lithuania to prosecute Lileikis for war crimes has been announced at the highest levels of its government.³ The United States, for its part, pursuant to a Memorandum of Understanding between the two countries, has provided information concerning Lileikis to the authorities in Lithuania and, consistent with its obligations under the Memorandum, acknowledges that it will continue to do so.

The United States Supreme Court has never decided whether the fear of foreign prosecution is a sufficient basis, in and of itself, for invocation of the Fifth Amendment privilege. In Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972), the Court considered the issue, but declined to decide it after determining that Zicarelli had failed to show a "real and substantial danger" that testimony sought under a grant of immunity would in fact incriminate him under foreign law. Zicarelli has been interpreted to mean that the validity of a Fifth Amendment claim should be considered only after a court determines that there is a well-founded fear of foreign prosecution.

While Zicarelli provides a framework for analysis, no consensus has emerged among the Courts of Appeals as to the extent of the Fifth Amendment's reach.⁴ The two decisions directly on point appear to reach different conclusions. The government relies on a Fourth Circuit decision, United States v. (Under Seal) (Araneta), 794 F.2d 920 (4th Cir.1986), while Lileikis points to a recent Eleventh Circuit case, United States v. Gecas, 50 F.3d 1549 (11th Cir.1995). In Araneta, a daughter and son-in-law of former Philippine President Ferdinand Marcos refused to testify before a grand jury investigating possible corruption in the awarding of Philippine arms contracts.⁵ The Aranetas argued that their answers would incriminate them in a prosecution then pending in the Philippines involving the alleged theft of public property. In Gecas, a case factually similar to this one, the defendant, also an alleged Nazi collaborator, contended that the answers sought by the government in a deportation proceeding would incriminate him under the laws of Israel, Germany and Lithuania.

In Araneta, the Fourth Circuit found little difficulty in surmounting the bar erected by Zicarelli to substantive consideration of the Aranetas' Fifth Amendment claims. Applying a test developed by the Second Circuit in In re Grand Jury Subpoena of Flanagan, 691 F.2d 116, 121 (2d Cir.1982), the Araneta court determined that the Aranetas were not only facing pending charges in the Philippines involving similar subject matter, but that the United States government's resolve to assist the Philippines in recapturing stolen public assets made it almost certain that the Aranetas would be bundled over at the request of the Philippine authorities.⁶ The Aranetas, for their part, while conceding that the grant of use and derivative use immunity (18 U.S.C. §§ 6002, 6003) had effectively foreclosed any fear that they might have had of prosecution by the United States, argued that they could not be compelled to answer questions posed by American officials that might incriminate them under the laws of the Philippines. Although the Fourth Circuit characterized the argument as advocating an extraterritorial effect for the Fifth Amendment, 794 F.2d at 923, more precisely the Aranetas' contention was that the extraterritorial consequences of compelled self-incrimination should act as a burden on the territorial power of the United States to overcome an assertion of the privilege. The Aranetas were refusing to give testimony before a grand jury investigating violations of United States, not Philippine law. They were not arguing that the Philippines had any obligation to respect the Fifth Amendment privilege in its own proceedings. Cf. Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914). Indeed it is the absence of any such obligation that prompted the Aranetas to claim the privilege in the first place.

In response, the Araneta court made essentially three points: (1) that the Fifth Amendment, by its own terms, "does not purport to have effect in foreign countries, and ordinarily, unless specifically stated otherwise, a provision of domestic law, statutory or constitutional, is deemed to apply only to the jurisdiction which enacts it," 794 F.2d at 925; (2) that the privilege applies only when the compelling sovereign and the using sovereign "are both restrained by the Fifth Amendment," id. at 926; and (3) that while "comity among nations dictates that the United States not intrude into the law enforcement activities of other countries conducted abroad," dictates of national sovereignty demand that the United States not forego "evidence legitimately within its reach solely...