152. If the naturalization examiner knew that defendant had been a member of the Waffen -SS Death's Head Battalion, he would have marked the case for continuance and asked for an investigation. Membership in the Waffen -SS Death's Head Battalion would have been a substantial factor in the naturalization examiner's determination to grant or deny citizenship and would have precluded eligibility for citizenship on the basis of good moral character and attachment to principles of the Constitution. (P-155, pp. 94-96.)
153. Under the procedures, practices and guidelines in place at the time, if a naturalization examiner had discovered that an applicant had represented that he was never arrested, when in fact the applicant had been arrested, a naturalization examiner would have recommended denial of the Petition because the petition lacked good moral character. (P-155, pp. 114-115.)
154. In response to Question No. 23 of the Application, defendant asserted under oath that he was a person of good moral character and had not given false testimony for the purpose of obtaining any benefits under the immigration and naturalization laws. (P-2.)
155. In reliance upon defendant's representation that his citizenship was "stateless, last of Romania," and upon the Certificate of Loss in defendant's immigration file, as well as upon the misrepresentations and omissions in defendant's Application as described in paragraphs 150 and 151 above, the naturalization examiner approved defendant's application. (P-6; P-19; P-155, pp. 60-61.)
156. If the naturalization examiner had determined that defendant had given false statements to the INS in connection with his application to become a naturalized citizen of the United States, his petition for naturalization would have been denied. (P-155, pp. 103-105.)
157. On June 17, 1958, defendant filed a "Petition for Naturalization" No. 212361 (INS Form N-405) with the United States District Court for the Eastern District of Pennsylvania. (P-4.)
158. Defendant swore on the Petition that he was a person of good moral character and attached to the principles of the Constitution and that he was able to read, write and speak English. (P-4 at PP 14 and 15.)
159. On August 13, 1958, the United States District Court for the Eastern District of Pennsylvania, issued Certificate of Naturalization No. 7993986 to defendant. This certificate states that defendant's nationality was formerly "Romanian." (P-1.)
160. On May 17, 1967, defendant applied for and was issued a United States passport. Defendant stated on his passport application that before his naturalization he was a national of Romania. (P-9 at No. 1.)
161. On September 1, 1988, representatives from the Department of Justice interviewed defendant concerning his activities during World War II. At that time, defendant signed a sworn statement, wherein he indicated that he "joined" the Romanian Army and that he had served in concentration camps. (P-13.)
Before embarking on a lengthy analysis of the somewhat thorny legal issues involved in this case, we feel compelled to comment on the witnesses' credibility, in light of some conflicting testimony.
At the outset, we find much of Schiffer's testimony unbelievable. As set forth in great detail in the Government's Reply Brief, Schiffer's trial testimony in many instances plainly contradicts written and oral statements previously made by him. Often, his testimony from day-to-day was inconsistent and frequently at odds with the documentary evidence. Finally, much of Schiffer's testimony, especially on critical issues, was unsupported and completely self-serving. See Government's Reply Brief, pp. 18-35.
On the other hand, we found all of the Government's witnesses to be highly credible. We were particularly impressed by Dr. Sydnor, whose testimony was beyond reproach. The testimony of the concentration camp survivors was equally impressive and courageous. We found their testimony to be consistent with each other, expert testimony and historical accounts.
A. EXPATRIATION GENERALLY
We begin by reviewing the general principals of law which apply to cases such as this.
In Afroyim v. Rusk, 387 U.S. 253, 87 S. Ct. 1660, 18 L. Ed. 2d 757 (1967), the Supreme Court held that under the Fourteenth Amendment a United States citizen possesses "a constitutional right to remain a citizen ... unless he voluntarily relinquishes that citizenship." Afroyim, 387 U.S. at 268, 87 S. Ct. at 1668. In doing so, the Court found that the government has no power to strip an American of his United States citizenship. Id. at 263, 87 S. Ct. at 1665. In particular, the Court upon analyzing the language and history of the Fourteenth Amendment as well as expatriation legislation proposed and rejected by Congress, found an undeniable intent of the Amendment's framers to "put citizenship beyond the power of any governmental unit to destroy." Id. The Court also recognized the vital importance of United States citizenship:
in some instances, loss of citizenship can mean that a man is left without the protection of citizenship of any country in the world - as a man without a country. Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country and the country is its citizenry.
Id. at 368, 87 S. Ct. at 1668.
In Vance v. Terrazas, 444 U.S. 252, 100 S. Ct. 540, 62 L. Ed. 2d 461 (1980), the Supreme Court restated the holding of Afroyim that Congress has no "general power, express or implied, to take away an American citizen's citizenship without his assent ... § 1 of the Fourteenth Amendment is 'most reasonably read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it.'" Id. at 259-260, 100 S. Ct. at 545. The Court also elaborated on the "voluntary relinquishment" requirement. Specifically, in Terrazas, the Secretary of State argued that a citizen loses his citizenship simply by voluntarily performing an act that Congress has designated as an expatriating act. The Court rejected this argument and found instead that a person loses his citizenship only if he voluntarily commits an expatriating act with the intent to relinquish his citizenship, "whether the intent is expressed in words or is found as a fair inference from proved conduct." Id. at 260, 100 S. Ct. at 545. "In the last analysis," the Court said, "expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct." Id. Thus, under Afroyim and Terrazas, the government has the burden of proving that the defendant performed one of the expatriating acts enumerated by Congress and that he did so with the contemporaneous intent to relinquish his citizenship.
The applicable standard of proof for establishing expatriation is set forth in 8 U.S.C. § 1481(b), which provides that the government must demonstrate voluntariness and specific intent by a preponderance of the evidence. Section 1481(b) also provides that the voluntariness of the expatriating conduct is presumed. A person opposing expatriation may rebut this presumption by showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
There is no presumption, however, that the expatriating act was performed with the intent to relinquish citizenship. Vance v. Terrazas, 444 U.S. at 268, 100 S. Ct. at 549. Similarly, there is no presumption of voluntariness with respect to acts which demonstrate specific intent to relinquish citizenship. Richards v. Secretary of State, 752 F.2d 1413, 1418-19 (9th Cir. 1985); Kahane v. Secretary of State, 700 F. Supp. 1162, 1166 (D.D.C. 1988). Both the preponderance of the evidence standard and the presumption of voluntariness have been held to be constitutionally permissible. Vance v. Terrazas, 444 U.S. at 264-70, 100 S. Ct. at 547-50.
It is well settled that expatriation will not be found if the expatriating act was performed involuntarily or under conditions of duress. Richards, 752 F.2d at 1419; Stipa v. Dulles, 233 F.2d 551, 555 (3d Cir. 1956); Lehmann v. Acheson, 206 F.2d 592, 594-95 (3d Cir. 1953). A claim of involuntariness or duress is an affirmative defense to be proved by the party opposing expatriation. Vance v. Terrazas, 444 U.S. at 269, 100 S. Ct. at 550.
An analysis of the case law involving claims of involuntary foreign military service (or service under duress) reveals that in order for the party opposing expatriation to carry his burden, he must establish, by a preponderance of the evidence, that he took steps to avoid service or, alternatively, that such action on his part would have proven meaningless. For example, in Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950), the plaintiff, a native-born American citizen, sought a declaratory judgment that his service in the Romanian army was not expatriating. To support his claim of involuntary service, Podea established that, prior to service, he repeatedly applied to the American Consulate in Bucharest for a United States passport for the express purpose of avoiding military service. Podea, 179 F.2d at 307-08. On each occasion, Podea's application was denied. Id. As a result, the court found that "when the plaintiff was refused a passport by the State Department he was compelled to serve in the Romanian army . . ." Id.
Similarly, in Moldoveanu v. Dulles, 168 F. Supp. 1 (E.D.Mich. 1958), a United States citizen by birth petitioned for a judgment declaring him a United States citizen despite having served in the Romanian army and taken an oath of allegiance to the Government of Romania. Before attaining majority, Moldoveanu made inquiry at the United States Consulate at Bucharest about returning to the United States. Moldoveanu, 168 F. Supp. at 4. At age twenty one, Moldoveanu received notice that he was being inducted into military service. In response, he protested unsuccessfully that, as an American citizen, he was not subject to military service. Moldoveanu also attempted to secure the aid and intervention of the American Consulate in order to return to the United States. Id. Presented with this uncontradicted evidence, the court found "that the plaintiff did not enter voluntarily the military service of Romania" or take voluntarily the oath of allegiance. Id. at 5.
Duress or involuntary service may be found where the alleged expatriate establishes that he faced a Hobson's choice between asserting United States citizenship and thereby subjecting himself or his family to penal or corporal punishment, on the one hand, or relinquishing his United States citizenship, on the other. See Nishikawa v. Dulles, 356 U.S. 129, 137, 78 S. Ct. 612, 617, 2 L. Ed. 2d 659 (1958)(Japanese Military Service Law provided for imprisonment for evasion); Pandolfo v. Acheson, 202 F.2d 38 (2d Cir. 1953)(Plaintiff testified that if he had not reported for military service he would have been picked up by the Italian police the following morning);
Dos Reis ex rel Camara v. Nicolls, 161 F.2d 860 (1st Cir. 1947)(After protesting Portuguese military service, Camara was informed that the only alternative to service in the army was detention in a concentration camp.); Kamada v. Dulles, 145 F. Supp. 457 (N.D.Cal. 1956)(Plaintiff actually threatened with arrest and imprisonment upon protesting Japanese military service.).
An alleged expatriate may also prove duress or involuntary service by demonstrating that he protested military service on the grounds of United States citizenship. See Acheson v. Maenza, 92 U.S. App. D.C. 85, 202 F.2d 453 (D.C.Cir. 1953); Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950); Dos Reis ex rel. Camara v. Nicolls, 161 F.2d 860 (1st Cir. 1947); Moldoveanu v. Dulles, 168 F. Supp. 1 (E.D.Mich. 1958); Kamada v. Dulles, 145 F. Supp. 457 (N.D.Cal. 1956). Failure to protest military service on this grounds, however, does not conclusively establish voluntary service. Rather, even in the absence of a protest or other proof of attempts to avoid service, the alleged expatriate may carry his burden of proof by demonstrating that such a protest or attempt to avoid service would have been meaningless. See Nishikawa v. Dulles, 356 U.S. 129, 78 S. Ct. 612, 2 L. Ed. 2d 659 (1958)(Efforts to protest military service and seek aid of American officials would have been in vain); Lehmann v. Acheson, 206 F.2d 592, 594-95 (3d Cir. 1953)(Under pact between Switzerland and the United States, plaintiff was obliged to submit to conscription and American consulate could not intervene on his behalf).
Finally, under the law of this Circuit, "conscription into the Army of a foreign government of one holding dual citizenship is sufficient to establish prima facie that his entry and service were involuntary." Lehmann, 206 F.2d at 594; contra Acheson v. Maenza, 92 U.S. App. D.C. 85, 202 F.2d 453, 457-58 (D.C.Cir. 1953); Cafiero v. Kennedy, 262 F. Supp. 140, 146 (D.N.J. 1966)(citing Acheson v. Maenza, 92 U.S. App. D.C. 85, 202 F.2d 453, 458 (D.C.Cir. 1953)).
This prima facie showing may be rebutted by evidence "that on or after [the date of conscription] [the relevant foreign] law or military practice would have permitted the [alleged expatriate] to secure release, on the ground of his United States citizenship or otherwise." Perri v. Dulles, 206 F.2d 586, 589 (3d Cir. 1953). Read together, and in light of 8 U.S.C. § 1481(b) as well as the substantial body of case law in this area, we believe Lehmann and Perri stand for the proposition that the alleged expatriate can rebut the presumption of voluntariness created by § 1481(b) by proving conscription into foreign military service. The Government may, in turn, demonstrate voluntary conduct by proving, among other things, that the alleged expatriate could have secured release from military service but failed to do so. All in all, we believe this requires a district court to do nothing more than to give effect to the presumption of voluntariness created by § 1481(b) and, considering the evidence as a whole, to determine whether the alleged expatriate has rebutted it by a preponderance of the evidence.
2. Specific Intent
As noted above, a person loses his United States citizenship by voluntarily performing an expatriating act only if "the expatriating act was accompanied by an intent to terminate United States citizenship." Terrazas, 444 U.S. at 263, 100 S. Ct. at 546. The Supreme Court has recognized that "intent to renounce" may be evidenced through direct evidence, such as formal renunciation or admission, and also through conduct. Id. at 260, 100 S. Ct. at 545. Other courts have similarly recognized that direct evidence of a person's specific intent to relinquish citizenship is rarely available and, consequentially, circumstantial evidence may suffice. Terrazas v. Haig, 653 F.2d 285, 288 (7th Cir. 1981). In addition, the Ninth Circuit has suggested that:
some expatriating acts may be so inherently inconsistent with United States citizenship that persons performing them may be deemed to intend to relinquish their United States citizenship even in the absence of statements that they so intended the acts, or, indeed, even despite contemporaneous denials that they so intended the acts. Cf. Terrazas, 444 U.S. at 261, 100 S. Ct. at 545; Perez v. Brownell, 356 U.S. 44, 62-84, 78 S. Ct. 568, 578-89, 2 L. Ed. 2d 603 (1958) (Warren, C.J., dissenting).
Richards v. Secretary of State, 752 F.2d 1413, 1420 n.5 (9th Cir. 1985);
accord King v. Rogers, 463 F.2d 1188, 1189 (9th Cir. 1972). Moreover, specific intent may be established inferentially by evidence demonstrating what steps the defendant did or did not take in connection with the expatriating acts. See Cafiero v. Kennedy, 262 F. Supp. 140, 146 (D.N.J. 1966).
B. EXPATRIATING ACTS
We turn now to a discussion of the detailed rules of law and facts in this case.
The Government asserts that between 1940 and 1945, Schiffer committed four expatriating acts: (1) voluntarily serving in the Romanian army at a time it was engaged in hostilities with the United States; (2) swearing an oath of allegiance to King Carol II of Romania; (3) voluntarily joining and serving in the Waffen -SS, an armed paramilitary force of the Nazi party, at a time that Nazi Germany was engaged in hostilities with the United States; and (4) swearing an oath of allegiance to Adolf Hitler. In his post-trial brief, Schiffer raises several arguments asserting that the Government has failed to carry its burden of proof on the issue of his alleged expatriation. Like his trial testimony, these arguments are confusing and disjointed, often completely contradictory and inconsistent with the evidence.
Schiffer first argues that the Government is limited to the first ground of expatriation listed above. Under Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796 (1943), Schiffer argues, the Government is limited to the matters charged in its Complaint; the Complaint contains no allegations of expatriation and, therefore, only those grounds of expatriation set forth in the Certificate of Loss of Nationality issued by the State Department in 1952 are at issue. This argument is patently frivolous and completely ignores our prior ruling denying defendant's motion to dismiss. In that ruling, we explicitly found that:
the allegations in paragraphs 8 through 20 that Defendant swore allegiance to two different foreign sovereigns, served in the armed forces of two different foreign states, including the armed forces of Germany when the United States was at war with Germany, and that, consequently, the State Department issued a Certificate of Loss of Nationality, support an inference that Defendant relinquished his United States citizenship.