On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 92-03440)
Before analyzing the specific legal questions presented here, I must describe conditions in Europe, and particularly in the displaced-persons camps, at the time Stelmokas applied for his visa in July, 1949. I start with V-E Day, May 8, 1945. Notwithstanding the presence of European nation-states, the power to rearrange the map of Europe had passed to the United States and the Soviet Union. Although Hitler's Reich had come to an end, at its peak the Nazi empire had stretched from the French port of Brest to the Caucasus and from the tip of Norway to the border of Egypt. As part of its rampage, the Nazi war machine smashed into Lithuania on June 22, 1941; three days later it occupied Kaunas, what was then the Lithuanian capital.
GREENBERG, Circuit Judge.
(Filed: November 12, l996)
I. PROCEDURAL AND FACTUAL HISTORY
Defendant Jonas Stelmokas appeals from a final judgment entered August 2, 1995, in favor of the government on six counts of its seven-count complaint seeking judgment on seven discrete bases revoking Stelmokas's citizenship and ordering him to surrender his certificate of naturalization. The court entered judgment in favor of Stelmokas on a seventh count of the complaint.
The government initiated this action on June 15, 1992, by filing the complaint against Stelmokas in the district court pursuant to section 340(a) of the Immigration and Nationality Act of 1952, as amended ("INA"). 8 U.S.C. Section(s) 1451(a). The government sought judgment revoking and setting aside the judgment of the United States District Court for the Eastern District of Pennsylvania which admitted Stelmokas to citizenship in 1955. It further sought judgment canceling Stelmokas's certificate of naturalization.
In its complaint, the government alleged that Stelmokas was born in Moscow, Russia, and resided in Lithuania commencing in 1930. From 1936 until 1939 Stelmokas attended the Lithuanian army officers' school in Kaunas, Lithuania, from which he graduated in 1939. From August 1939 until July 1940 Stelmokas was an officer in the Lithuanian army.
The complaint alleged that in June 1941 the armed forces of Nazi Germany occupied Lithuania, which occupation continued until August 1944. During the occupation, the Germans organized armed Lithuanian units known as Schutzmannschaft to assist the Germans in the occupation and in the persecution of Jews and other unarmed persons on the basis of their race, religion, national origin, or political opinion. The Germans also organized Schutzmannschaft in other countries who arrested, detained, assaulted, and murdered victims in Poland, Ukraine, Byelorussia, and other areas. The Lithuanian Schutzmannschaft in Kaunas assisted the Germans in confining and murdering Jews. The government contended that Stelmokas was a voluntary member and officer of the Schutzmannschaft and advocated, assisted, participated, and acquiesced in the murder and persecution of Jews and other unarmed civilians in Lithuania. Around August 1944, at the time the German occupation of Lithuania ended, Stelmokas entered the German Air Force (Luftwaffe) in the 91st Light Flak Replacement Unit.
The complaint further alleged that in July 1949 Stelmokas sought a determination from the United States Displaced Persons Commission ("DPC") that he was a displaced person as defined in the Displaced Persons Act of 1948 ("DPA"), Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948), and therefore was eligible to immigrate to the United States. In connection with his application, a DPC analyst interviewed Stelmokas. He did not inform the analyst that he had served in the Schutzmannschaft or the Luftwaffe. Rather, Stelmokas falsely claimed that he had been a teacher in Seda, Lithuania, from July 1940 until August 1943. He claimed that he then was unemployed in Kaunas until July 1944, and was a laborer in Dresden, Germany, from 1944 until March 1945. The complaint alleged that in 1949 the DPC regarded the Schutzmannschaft to be "inimical" to the United States, meaning it was a hostile movement.
The complaint further stated that, in reliance on Stelmokas's misrepresentations, the DPC analyst concluded that Stelmokas was eligible for displaced person status, and that the DPC so certified him on July 8, 1949. On or about August 10, 1949, Stelmokas applied for a visa to enter the United States. In connection with that application, Stelmokas repeated to an American vice-consul in Hamburg, Germany, the benign wartime history that he had related to the DPC analyst and omitted his actual wartime employment history. Based on Stelmokas's false representations, the vice-consul approved Stelmokas's application for a visa. Stelmokas then entered the United States as a displaced person and permanent resident on August 31, 1949.
The complaint asserted that on or about November 12, 1954, Stelmokas filed an application for naturalization with the Immigration and Naturalization Service. Again, Stelmokas misrepresented under oath his personal history by claiming that the only organization to which he belonged before 1945 was the Lithuanian Boy Scouts. Thus, he concealed his membership in the Schutzmannschaft and the Luftwaffe. On April 11, 1955, the district court granted his petition for naturalization.
The government requested that the court revoke Stelmokas's naturalization for the following reasons: (1) he illegally procured his naturalization because he was ineligible for a visa to enter the country as he had assisted in persecuting civilian populations (Count I); (2) he illegally procured his naturalization because he was ineligible to enter the country as he voluntarily had assisted enemy forces during World War II in their operations against the United Nations (Count II); (3) he illegally procured his naturalization because as a member of the Schutzmannschaft and the 91st Light Flak Replacement Unit he was ineligible to enter the country because he had been a member of and participated in movements hostile to the United States (Count III); (4) he illegally procured his naturalization because he had misrepresented his wartime service to the DPC and to the vice-consul and thus was ineligible to enter the country (Count IV); (5) he illegally procured his naturalization because he was ineligible for a visa as he had advocated or acquiesced in activities or conduct contrary to civilization and human decency on behalf of Axis countries during World War II and thus was ineligible to enter the country (Count V); (6) he illegally procured his naturalization as his participation in the Nazi program of persecution demonstrated that he was not of good moral character and thus he was ineligible to enter the country (Count VI); and he illegally procured his naturalization by concealing and misrepresenting material facts, i.e., his service in the Schutzmannschaft and the 91st Light Flak Battalion when he filed his petition for naturalization (Count VII).
Stelmokas filed an answer to the complaint in which he admitted the historical facts regarding the German occupation of Lithuania and admitted that he had applied for entry into the United States as a displaced person. However, he refused to answer the allegations in the complaint regarding his wartime activities as he claimed "that his answers could be used against him in criminal proceedings in the United States and other countries." The government then moved to compel Stelmokas to answer the complaint on the ground that Stelmokas could not rely on the Fifth Amendment to refuse to answer.
On April 16, 1993, the district court granted the government's motion as it concluded that either the sections of federal law under which Stelmokas feared prosecution were inapplicable to him or the statute of limitations barred prosecutions under them. Thus, the court concluded that Stelmokas did not face a real and substantial threat of prosecution in the United States. The court also found that Stelmokas did not face a real and substantial threat of prosecution in "other countries," and thus it had no need to determine whether the Fifth Amendment applied to foreign prosecutions. The court, however, protected Stelmokas by ordering that his answer be filed under seal. Stelmokas never complied with the order and did not file an amended answer. Furthermore, at a deposition on August 4, 1993, Stelmokas pleaded the Fifth Amendment and refused to answer questions germane to this case.
The court conducted a bench trial from February 27, 1995, until March 3, 1995. At the outset of the trial Stelmokas's attorney pointed out that Stelmokas had pleaded the Fifth Amendment. He then indicated that he wanted to keep his options open and that he did not know what he would advise Stelmokas to do. He said that Stelmokas "may waive the privilege." Stelmokas, however, did not waive the privilege and did not testify at the trial.
The district court decided the case in a comprehensive memorandum opinion dated August 2, 1995. In its opinion the court set forth the background of Stelmokas's application to come to the United States and his obtaining citizenship. The court noted that citizenship is a precious right which once conferred may not be revoked lightly. Consequently, the government in a denaturalization proceeding must prove its case by clear, unequivocal, and convincing evidence so as not to leave the issue, i.e., the basis for denaturalization, in doubt. Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547 (1988); Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 747 (1981). The court noted, however, that aliens have no right to naturalization unless all statutory requirements are complied with. Consequently, every certificate of citizenship is granted on the condition that the government may revoke it if it was not issued in accordance with the applicable requirements. Fedorenko, 449 U.S. at 506, 101 S.Ct. at 747.
The court pointed out that section 340(a) of the INA provides the statutory bases for revocation of citizenship: that the citizenship had been "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." 8 U.S.C. Section(s) 1451(a). The court then indicated that citizenship is "illegally procured" when obtained without compliance with the statutory requirements for naturalization. Fedorenko, 449 U.S. at 506, 101 S.Ct. at 747. When Stelmokas was naturalized in 1955, the INA required that he reside continuously in the country for at least five years after being lawfully admitted for permanent residence. 8 U.S.C. Section(s) 1427. See United States v. Osidach, 513 F. Supp. 51, 63 & n.4 (E.D. Pa. 1981).
The court then observed that the DPA authorized the issuance of immigration visas to eligible European "displaced persons" without regard to immigration quotas, but that persons who "assisted the enemy in persecuting the civilian populations" of countries that were members of the United Nations or voluntarily assisted the enemy forces since the outbreak of World War II in their operations against the United Nations were not displaced persons. DPA Section(s) 2(b), 62 Stat. 1009, 3051-52 (incorporating by reference International Refugee Organization Constitution's definition of displaced person). See Fedorenko, 449 U.S. at 495 & n.3, 101 S.Ct. at 741 & n.3. Additionally, DPA Section(s) 13 prohibited the issuance of visas to "any person who is or has been a member of, or participated in, any movement which is or has been hostile to the United States or the form of government of the United States." 62 Stat. 1014. Section 10 of the DPA provided that any "person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States." 62 Stat. 1013.
The court further noted that at the time of Stelmokas's immigration in 1949, a State Department regulation forbid the issuance of a visa to any alien who had "advocated or acquiesced in activities or conduct contrary to civilization and human decency on behalf of the Axis countries" during World War II. The court also indicated that when Stelmokas was naturalized in 1955, the law provided that citizenship could be conferred only on persons "of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." 8 U.S.C. Section(s) 1427(a)(3). Finally, the court pointed out that the INA provided that citizenship procured by willful concealment or misrepresentation of a material fact must be revoked. 8 U.S.C. Section(s) 1451.
The district court made an evidentiary ruling in its opinion that Stelmokas challenges on this appeal. It noted that Stelmokas had pleaded the Fifth Amendment in his answer and had refused on Fifth Amendment grounds to answer questions at his deposition. Furthermore, Stelmokas had not testified at trial. The court held that Stelmokas's attorney's statement at the outset of the trial that Stelmokas "may waive the privilege" was not a waiver of the privilege against self-incrimination, but was the opposite, since it was not a statement that the privilege was waived. The court then held that since the case was civil rather than criminal it, as the finder of fact, could infer from Stelmokas's invocation of the privilege against self-incrimination that his testimony would have been unfavorable. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558 (1976). The court indicated, however, that while it could draw adverse inferences from Stelmokas's claim of the privilege against self-incrimination, it would not base its findings of fact on adverse inferences. Rather, the court would use Stelmokas's invocation of the Fifth Amendment for "independent and additional support" for its findings of fact.
In its findings of fact, the court preliminarily noted that the government had called four witnesses, two experts on the Holocaust, Dr. Raul Hilberg and Michael MacQueen, and two survivors of the Holocaust in Lithuania, David Levine and Abe Malnick. In addition, the government introduced numerous documents into evidence. Stelmokas did not call any witnesses but did introduce three documents into evidence. The court pointed out that Hilberg was a particularly credible witness with a remarkable knowledge of the documents placed into evidence.
The court noted that many of the documents in evidence had been stored in the archives of the former Soviet Union. While Stelmokas argued that the documents were not trustworthy, the court rejected this contention because Hilberg's and MacQueen's testimony established that they were authentic. Indeed, Hilberg testified that he was not aware of a single World War II Soviet Union archival document that was a forgery. The court concluded that the government "amply established the authenticity and trustworthiness of the documents in evidence." The court then related Stelmokas's personal history prior to the German invasion, including his graduation from military academy and his service as an officer in the Lithuanian Army and the Soviet Red Army when the Soviet Union annexed Lithuania in 1940. The court explained that the Germans took over Lithuania within a few days of their attack on June 22, 1941, and that the German army was followed by a police unit known as Einsatzgruppen, which implemented the German policy of murdering the Jews. The court related that a segment of the indigenous Lithuanian population cooperated with the Einsatzgruppen in the murder of the Jews.
Starting in late June 1941, the Germans began organizing Lithuanians who had fought against the Soviet Union into volunteer police battalions. The Germans controlled these units, which became known as the Schutzmannschaft. Their function was to guard installations and prisoners, and they guarded the Kaunas ghetto. The Schutzmannschaft assisted in the murder of Jews and other persons.
The court found that on July 28, 1941, Stelmokas voluntarily enlisted in the Schutzmannschaft and was appointed platoon commander in the 7th Company. The court traced Stelmokas's various assignments in the Schutzmannschaft, a process made possible by the meticulous record keeping of the Schutzmannschaft units, which court opinions demonstrate was consistent with the Germans' practice during World War II of recording their murderous conduct in specific detail. See, e.g., United States v. Koziy, 540 F. Supp. 25, 27 (S.D. Fla. 1982), aff'd, 728 F.2d 1314 (11th Cir.), cert. denied, 469 U.S. 835, 105 S.Ct. 130 (1984). By August 30, 1944, Stelmokas had been transferred to Germany where he served in the 91st Light Flak Replacement Unit of the Luftwaffe. The records in evidence show that Stelmokas was in a military hospital in Germany on February 12, 1945.
The court found that on September 15, 1941, Stelmokas was a guard commander at Vilijampole, which was the ghetto in Kaunas. The evidence showed clearly, unequivocally, and convincingly, that Stelmokas served as the commander of the ghetto guard for at least a 24-hour period commencing on September 16, 1941, at 1:00 P.M., and, accordingly, that he participated in confining the Jews to an area in which they were regularly subjected to extreme deprivation, brutality, and arbitrary shootings. The court then found, through a painstaking analysis of the Schutzmannschaft records, that Stelmokas's battalion took part in the Grosse Aktion of October 28 and October 29, 1941, which involved the murder of precisely 9,200 Jews, and that Stelmokas was on duty at that time. Levine and Malnik, who were children in the ghetto at the time, supported the documentary evidence with eye-witness testimony. While Levine and Malnick did not identify Stelmokas, both testified that armed Lithuanians took part in the murders. The court also made findings that Stelmokas participated in anti-partisan actions and served in the Luftwaffe.
The court found that when Stelmokas applied for displaced person status he did not inform the DPC analyst of his Schutzmannschaft and Luftwaffe service, and that he misrepresented his employment and places of residence for the period of July 1940 until March 1945. The court also noted that the Lithuanian Schutzmannschaft appeared on a "List of Organizations Considered Inimical to the United States" issued by the DPC Headquarters in Frankfurt, Germany. The court found that Stelmokas made false statements under oath when he sought his visa application, because he misrepresented his wartime residences and did not reveal his Schutzmannschaft or Luftwaffe service. The court found that he obtained his visa because of the misrepresentation. The court did not find, however, that Stelmokas made false statements when he was naturalized.
The court then discussed the adverse inferences to be drawn from Stelmokas's claim of the privilege against self-incrimination. It emphasized, however, that the findings of fact we have described did not depend on the drawing of inferences from Stelmokas's claim of the privilege. The court said that it inferred that Stelmokas's testimony would have revealed that he voluntarily joined the Schutzmannschaft and served in it from July 1941 until mid-1944, when he was transferred to Germany to serve in the 91st Light Flak Battalion; he was commander of the ghetto guard at Kaunsas in September 1941; he participated in the murdering of Jews in the Grosse Aktion and in fighting against anti-German partisans; and he made false representations to both the DPC analyst and the vice-consul regarding his wartime activities, particularly his service in the Schutzmannschaft and the Luftwaffe, to facilitate his immigration to the United States.
The court then set forth its conclusions of law. It reiterated that the government had to prove its case by clear, unequivocal, and convincing evidence, but that under 8 U.S.C. Section(s) 1451(a) Stelmokas's certificate of naturalization must be canceled and his citizenship revoked if his citizenship was "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." It also pointed out that Stelmokas could not have procured his citizenship lawfully in 1955 if his admission to permanent residence in 1949 had not been lawful. 8 U.S.C. Section(s) 1427; Fedorenko, 449 U.S. at 514-16, 101 S.Ct. at 750-52.
The court held that under the DPA Section(s) 2(b), 62 Stat. 1009, Stelmokas had been ineligible to immigrate to the United States because his actions in the Kaunas ghetto assisted the enemy in persecuting civilian populations. Consequently, Stelmokas's entry into the United States as a permanent resident was unlawful and he had procured his citizenship unlawfully. See Fedorenko, 449 U.S. at 512, 101 S.Ct. at 750 ("an individual's service as a concentration camp armed guard -- whether voluntary or involuntary -- made him ineligible for a visa"). The court then held that Stelmokas also had been ineligible for a visa because he voluntarily had assisted enemy forces during World War II. See United States v. Kowalchuk, 773 F.2d 488, 496-97 (3d Cir. 1985) (in banc), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188 (1986). Thus, for this additional reason, his entry as a permanent resident was unlawful and he had procured his citizenship unlawfully. The court next held that the Schutzmannschaft was a movement hostile to the United States, so that Stelmokas was barred from entering the United States because of his membership in it under DPA Section(s) 13, 62 Stat. 1014. Consequently, he had procured his citizenship illegally.
The court held that DPA Section(s) 10, 62 Stat. 1013, barred Stelmokas from entering the country for permanent residence because he willfully had misrepresented material facts to gain admission. In particular, he concealed his Schutzmannschaft and Luftwaffe service from the DPC analyst and the vice-consul. These concealments were material because they misrepresented the facts that he had assisted the enemy in the persecution of civilians, voluntarily assisted the Axis powers in their military operations, and had been a member of a movement hostile to the United States and its form of government. The court found that these misrepresentations would have a natural tendency to influence the DPC and the vice-consul in making their decisions to classify Stelmokas as a displaced person and to admit him to the United States. Consequently, Stelmokas's entry into the United States as a permanent resident was unlawful so he had procured his citizenship unlawfully. See United States v. Kowalchuk, 773 F.2d at 493.
The court next held that Stelmokas had procured his citizenship unlawfully because he was not entitled to a visa to enter the country as a permanent resident as he had advocated or acquiesced in activities or conduct contrary to civilization and human decency on behalf of the Axis countries contrary to the regulations then in effect. The court also held that he did not qualify for naturalization because he lacked good moral character when he was naturalized, so that he had procured his citizenship unlawfully. 8 U.S.C. Section(s) 1427(a)(3); 8 U.S.C. 1101(f). The court held that Stelmokas lacked good moral character because he voluntarily joined the Schutzmannschaft, enforced the confinement of the Jews in the brutal conditions of the Kaunas ghetto, and was on duty when his battalion assisted in the Gross Aktion.
The court held that the government had not established its case in only one respect. Under the INA, procuring citizenship "by concealment of a material fact or by willful misrepresentation" is grounds for denaturalization. 8 U.S.C. Section(s) 1451(a). The court held, however, that concealment must be made in order to obtain naturalization for that charge to apply, as distinguished from concealment made to obtain a visa. Accordingly, the court held that the misrepresentations to the DPC analyst and to the vice-consul could not apply to the concealment count with respect to procuring citizenship. The court therefore held that the concealment count failed because the government did not establish that Stelmokas's statements in connection with his naturalization willfully concealed facts or included material misrepresentations of fact.
The court ended its opinion by reiterating that Stelmokas's citizenship could be revoked only on the basis of clear, unequivocal, and convincing evidence. Consequently, the government had a heavy burden in the case. The court then emphasized that there was no doubt but that Stelmokas voluntarily joined the Schutzmannschaft in 1941 and served in it until mid-1944, when he was transferred to a Luftwaffe unit in Germany. The court noted that he was the commander of the ghetto guard and was on duty in Kaunas during the Gross Aktion, when his battalion assisted in the massacre of 9,200 Jews. Furthermore, the court stated that there was no doubt that he fought anti-German partisans later in the war, and that he willfully misrepresented his wartime activities when he applied for admission to this country. For all these reasons, the court revoked his citizenship. Stelmokas then appealed.
Stelmokas raises four issues on this appeal. He contends that: (1) the district court erred in drawing adverse inferences based on his Fifth Amendment plea; (2) the district court erred in admitting as ancient documents records made during the German occupation of Lithuania and certain other wartime documents; (3) the government failed to establish its case by clear, unequivocal and convincing evidence so as not to leave its allegations regarding his wartime activities in doubt; and (4) his alleged misrepresentations regarding his wartime employment and residence were not shown to be material. We will discuss these contentions in the order presented.
A. The privilege against self-incrimination
We are perplexed by aspects of Stelmokas's Fifth Amendment argument. He initially contends that the district court erred when it held that he did not face a real and substantial threat of domestic and foreign prosecution. Yet we do not understand how the alleged error prejudiced him because the district court, though overruling his plea of the privilege against self-incrimination, did not sanction him for persisting with that plea. The court did not strike Stelmokas's answer, deem the allegations of the complaint admitted, enter a default judgment against him, preclude him from presenting witnesses including even himself, or hold him in contempt. See S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 189-91 (3d Cir. 1994).
Quite to the contrary, the district court merely drew inferences against Stelmokas with respect to what his testimony would have revealed had he testified. Of course, as we shall demonstrate, the court could have drawn these inferences even if it had upheld Stelmokas's claim of the privilege against self-incrimination. Thus, while the court overruled Stelmokas's plea of the Fifth Amendment, its ruling had no consequence because the court acted as if it had upheld the plea. It thus appears that to the extent the parties' briefs address whether the court correctly overruled the claim of the privilege against self-incrimination, they focus on a non-issue. Therefore, we will not consider whether the court correctly held that Stelmokas could not plead the privilege against self-incrimination.
Stelmokas argues, however, that the court was not justified in drawing inferences against him for two reasons. First, he suggests that, in view of his attorney's statement at trial that Stelmokas "may" waive the privilege, it is not clear that he, indeed, did claim the privilege. Second, he argues that "no penalty may be imposed on a witness asserting the privilege" against self-incrimination. Br. at 19.
We reject both of these contentions. First, the court was justified in treating the case as though Stelmokas never retreated from his claim of the privilege against self-incrimination. Indeed, it hardly could have done otherwise. After all, Stelmokas claimed the privilege in his answer and at his deposition and he never filed an amended answer as the court ordered, or indicate that he would make himself available to complete his deposition by answering all the questions asked. Rather, his attorney merely said at the trial that he "may" waive the privilege, which he never did. In S.E.C. v. Graystone Nash, Inc.,
we pointed out that "because the privilege [against self-incrimination] may be initially invoked and later waived at a time when an adverse party can no longer secure the benefits of discovery, the potential for exploitation is apparent [because abuse may cause] unfair prejudice to the opposing litigant." 25 F.3d at 190. At the very least, therefore, if a party initially claims the privilege against self-incrimination and then intends to waive it, he should do so clearly. If Stelmokas had waived the privilege clearly at the outset of the trial, the government could have asked for an opportunity to take a meaningful deposition. Stelmokas's maneuvering precluded that possibility. Indeed, Stelmokas's attorney at the trial, without apparent recognition of the significance of his statement, essentially admitted that he was abusing the claim of the privilege by indicating that he was keeping his options open and that he did not know what he would advise Stelmokas to do. We will not reward such manipulation. Rather, Stelmokas must bear its consequences.
Second, Stelmokas's argument that he cannot be penalized for claiming the privilege relies on such cases as Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132 (1977), and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967). But those cases dealt with the imposition of a substantial penalty for the exercise of the privilege against self-incrimination, e.g., the loss of public office. As we have pointed out, in this case the court did not impose any sanction on Stelmokas because of his refusal to answer questions.
Thus, this case is controlled by the principles set forth in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551 (1976). There, a prisoner at a disciplinary hearing was advised that he had a right to remain silent but that, if he did so, his silence would be held against him. He remained silent and his silence was given evidentiary value against him. The Supreme Court held that the use of his silence in this manner was proper. It distinguished the line of cases, including Lefkowitz and Garrity, that did not allow the imposition of a penalty for pleading the privilege because those cases involved the loss of employment or the opportunity to contract with the state for exercising Fifth Amendment rights. Id. at 316-17, 96 S.Ct. at 1557. The Court also distinguished Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229 (1965), which held that in a criminal case a jury could not be instructed that it could draw an inference of guilt from the defendant's failure to testify. Baxter, 425 U.S. at 317, 96 S.Ct. at 1557.
The Supreme Court in Baxter held that the case was controlled by the principle that, in civil cases, "the Fifth Amendment does not forbid adverse inferences against parties . . . when they refuse to testify in response to probative evidence offered against them." Id. at 318, 96 S.Ct. at 1558. Thus, as long as there was independent evidence to support the negative inferences beyond the invocation of the privilege against self-incrimination, the inferences could be drawn. See also United States v. Local 560 of the Int'l Bhd. of Teamsters, etc., 780 F.2d 267, 292 n.32 (3d Cir. 1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2247 (1986). In this case, there was a plethora of independent evidence to support the inferences that the district court drew based on Stelmokas's claim of the privilege, so the court was justified in drawing the inferences it did.
We recognize that even though this is a civil case, see United States v. Osidach, 513 F. Supp. 51, 57 (E.D. Pa. 1981), it may have drastic consequences for Stelmokas. After all, at oral argument the attorneys told us that an affirmance probably will lead to his deportation. But the severity of the consequences do not alter the legal determination of whether the court may draw inferences against a person pleading the privilege against self-incrimination. Baxter itself was a disciplinary case and had penal overtones. We also note that the Supreme Court recently has adhered to the sharp distinction between proceedings which, though possessing what might be regarded as a punitive impact, are civil, and traditional criminal proceedings. Thus, in United States v. Ursery, 116 S.Ct. 2135, 2138 (1996), the Court held that civil forfeitures in general do not constitute punishment for purposes of the Double Jeopardy Clause. Accordingly, the Court would not regard a civil forfeiture action as a criminal proceeding, even though the proceeding resulted in an owner losing his property. This case cannot be regarded as more punitive than Ursery. In sum, a case is either civil or criminal and in the present context this case is civil.
We make one final point on the self-incrimination argument. In this case, there was a bench trial. Thus, unlike a jury trial in which a jury will return a general verdict or answer specific interrogatories, the district court had an opportunity to explain the bases in the evidence for its factual findings. It did so by making it crystal clear that, even if it had not drawn any inferences from Stelmokas's claim of the privilege, it would have made the same factual findings. Accordingly, even if the district court erred in drawing the inferences, its error would have been harmless for, as we explain below, the evidence without the inferences supported the court's findings.
Stelmokas argues that the district court erred by admitting into evidence occupation documents obtained from Lithuanian archives and other sources as ancient documents pursuant to Fed. R. Evid. 803(16) which, as an exception to the hearsay rule, allows the admission of "[s]tatements in a document in existence twenty years or more the authenticity of which is established." The challenged documents demonstrated Stelmokas's employment and activities during World War II. In particular, Stelmokas argues that these documents "lack any assurance of trustworthiness." Br. at 22.
Stelmokas focuses his objection on two groups of documents, principally those recovered from the records of the Lithuanian Schutzmannschaft that were located at Vilnius, the Lithuanian capital, and secondarily those recovered from German records found at other locations. While Stelmokas recognizes that Germans or Lithuanians purportedly wrote the Schutzmannschaft documents, he observes that the Vilnius documents were kept from public inspection by the Soviet Union until 1990. Though he also acknowledges that the government did not have to demonstrate a strict chain of custody for the documents to be admitted, in his view the documents cannot be treated as authentic because it is unclear how they were moved to the Vilnius archives. Thus, he argues that the documents were not found in a place where, if authentic, they "would likely be" as set forth in Fed. R. Evid. 901(b)(8).
Stelmokas further argues that the documents are suspicious because the Germans destroyed many documents demonstrating their criminal conduct, but "preserve[d] evidence of Lithuanian misconduct." Br. at 27. Furthermore, he regards the documents as questionable because they came from Soviet sources, and he claims that it was Soviet policy to discredit the Baltic states. Id. Finally, he argues, though with less particularly, that the government did not establish the chain of custody and authenticity of the second group of documents, i.e., those from German sources.
We review the district court's ruling that admitted the evidence over a challenge to its authenticity under an abuse of discretion standard. See United States v. McGlory, 968 F.2d 309, 328 (3d Cir.), cert. denied, 506 U.S. 956, 113 S.Ct. 415 (1992). Federal Rule of Evidence 901(a) provides that the requirement of "authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(a) is written, of course, in general terms, but is followed by Rule 901(b) which includes examples of methods by which to authenticate evidence. Rule 901(b)(8) provides that authentication of an ancient document may be supplied by a demonstration that a document is in such condition as to create no suspicion concerning its authenticity, was in a place where, if authentic, it likely would be, and has been in existence 20 years or more at the time it is offered. Ancient documents are admissible into evidence as an exception to the hearsay rule. See United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 1976).
We cannot say that the district court abused its discretion in admitting the documents in question. Initially, we observe that Stelmokas's argument in part is self-defeating because his contention that the Germans destroyed documents demonstrating their own criminal conduct, but preserved documents incriminating the Lithuanians, supports rather than undermines the district court's conclusions that the documents incriminating him were legitimate. Furthermore, the documents were certified by competent Lithuanian archival personnel. Hilberg, who has testified in many cases regarding eastern European Holocaust records and whose expertise cannot be doubted, testified that the documents he examined were authentic and that the documents found in Soviet possession are as reliable as documents from western countries. He said that he found the documents to be reliable and not to be forgeries. He also testified that one would expect to find documents relating to the Lithuanian Schutzmannschaft in Vilnius, the Lithuanian capital.
MacQueen testified that he personally searched archives in Lithuania and that the documents he found were authentic and reliable. In particular, he had found Schutzmannschaft records implicating Stelmokas in Vilnius, which is where they were likely to be found. Stelmokas simply has not produced any evidence or forwarded any reason to impeach the validity of the documents. See Sokaogon Chippewa Community v. Exxon Corp., 805 F. Supp. 680, 711 n.34 (E.D. Wis. 1992), aff'd, 2 F.3d 219 (7th Cir. 1993), cert. denied, 114 S.Ct. 1304 (1994).
We also point out that German records demonstrate that while Stelmokas was in the Luftwaffe, he was hospitalized in Germany. We cannot conceive that any rational person would believe that someone set out to incriminate Stelmokas and planted fake documents in widely-scattered places for that purpose. If anyone created the documents to injure Stelmokas, the fabricator most peculiarly placed the bulk of the documents in a location where they were not accessible to the public and from which, in fact, they were not released for decades. There certainly is no evidence in the record that anyone hatched such a bizarre plot. Indeed, Stelmokas does not explain what motivation any person would have had to fabricate documents so as to attribute responsibility to him for the atrocities in Lithuania or how that could have been accomplished. Stelmokas was hardly a prominent figure in the war and it is difficult to conceive why someone would go to the lengths he suggests in order to frame him. Stelmokas's attack on the authenticity of the documents is not substantial.
C. Sufficiency of the evidence
Stelmokas next argues that the government failed to establish its case by clear, unequivocal, and convincing evidence so as to leave no doubt as to its allegations regarding Stelmokas's wartime activities. In considering this allegation, we determine whether the district court's findings are clearly erroneous. Oberti v. Board of Ed., 995 F.2d 1204, 1220 (3d Cir. 1993). Of course, they will not be clearly erroneous if supported by clear, unequivocal, and convincing evidence.
We have reviewed the record and have concluded that the district court's findings are not clearly erroneous, as the evidence in the record fully supports them. The ultimate factual issue for resolution in this case was whether Stelmokas resided in the United States for five years "after being lawfully admitted for permanent residence." 8 U.S.C. Section(s) 1427. If he was not lawfully admitted, he was not eligible for citizenship. Resolution of this issue in turn depends on whether the district court's findings that Stelmokas should have been barred for six different reasons from entering the country were clearly erroneous as to all six. We thus emphasize that even if we upheld the findings on only one of the six bases, we would affirm.
In fact, the government demonstrated beyond all doubt that Stelmokas was not lawfully admitted for permanent residence for all six reasons. The evidence against Stelmokas was overwhelming, even without the inferences the court drew from Stelmokas's Fifth Amendment plea and, as Stelmokas called no witnesses, the evidence was not rebutted. In the circumstances, we would serve no useful purpose in detailing all the evidence to support each of the charges against him.
We highlight two examples of how Stelmokas argues his case. He contends that there is no proof that he joined the Schutzmannschaft voluntarily. While it is true that no person testified that he recalled seeing Stelmokas sign up for the Schutzmannschaft, his contention that there is no proof that he joined voluntarily ignores the record. The evidence shows that when Stelmokas joined the Schutzmannschaft, service of all its officers was voluntary as there was an ample supply of candidates and conscription was not necessary. Indeed, for at least several months after Stelmokas joined the Schutzmannschaft, its members could be released at their own request. Obviously, if the evidence demonstrated that service of all Schutzmannschaft officers was voluntary, then a finding that a particular officer served voluntarily is supported in the record. We also point out that in addition to this positive proof that Stelmokas joined the Schutzmannschaft voluntarily, the court drew the entirely justified inference from Stelmokas's claim of the privilege against self-incrimination that he joined voluntarily.
Another example of the weakness of Stelmokas's factual arguments is his claim that he did not misrepresent his wartime employment by concealing his membership in the Schutzmannschaft. This contention is frivolous, for he acknowledges that he represented to the DPC analyst and the vice-consul that from 1940 until 1943 he was a teacher in Seda. It is difficult to understand how Stelmokas can argue that he did not misrepresent his status as a Schutzmannschaft officer when he represented that he was a teacher for most of the time that he was in reality such an officer.
Stelmokas, however, takes a different approach to what constitutes a misrepresentation. In a post-argument brief that he filed at our direction, he recites that "[a] relevant concealment would have occurred if the government had produced evidence that Stelmokas was asked if he had been a member of the Schutzmannschaft and said no." Br. at 3. Thus, Stelmokas would require that the examiner have a reason to ask about a specific narrowly defined matter. We reject his approach. In our view, if you falsely represent that your employment is one thing when your actual employment is completely different, then you have concealed your true employment. In these circumstances, it is perfectly clear that Stelmokas himself demonstrates that he made a material misrepresentation when he sought displaced person status and a visa. Surely the misrepresentation that Stelmokas was a teacher was material because it hid his true employment as a Schutzmannschaft officer.
Notwithstanding Stelmokas's failure to mount a substantial attack on the court's findings, we focus on two aspects of the government's case: Stelmokas's participation in the Schutzmannshaft as a movement hostile to the United States and his false statements to the DPC analyst and to the vice-consul. As we indicated, section 13 of the DPA prohibited issuance of a visa to any person "who is or has been a member of, or participated in, any movement which is or has been hostile to the United States or the form of government of the United States." 62 Stat. 1014. It is beyond doubt that Stelmokas was an officer in the Schutzmannschaft. It is also clear that the Lithuanian Schutzmannschaft was on the State Department "List of Organizations Considered Inimical to the United States." The inimical list states that members of the Schutzmannschaft "are considered collaborators except for those members . . . who can produce evidence that they were conscripted and did not commit atrocities or otherwise persecute civilian populations." See exhibit 4.242, app. 1672.
Stelmokas did not produce any such evidence. Indeed, except for a small number of exhibits, he did not produce any evidence at all. It is clear that Stelmokas voluntarily joined the Schutzmannschaft and, while there is no eye-witness testimony identifying him as a person who committed atrocities or otherwise persecuted the civilian population, the only reasonable inference to be drawn from the record is that he did exactly that. In any event, with or without the reasonable inferences to be drawn from the record, Stelmokas's service as an officer in the Schutzmannschaft disqualified him from obtaining displaced person status and a visa, as the Schutzmannschaft was a movement hostile to the United States. See United States v. Kowalchuk, 773 F.2d at 497 n.11; United States v. Koziy, 540 F. Supp. at 34; United States v. Osidach, 513 F. Supp. at 78-79.
In his post-argument brief, Stelmokas makes disturbing contentions with respect to the inimical list. He indicates that "there is no evidence of record as to what, if any [inimical] list, was in use in July and August of 1949 when [he] made his applications to the [DPC] and the consulate." He then adds that the "government has placed the so-called inimical list in evidence but it is undated and there is no testimony as to when it was published and whether the Lithuanian Schutzmannschaft was on the list as early as the summer of 1949, and if so, what effect it might have had, if any, on the decision of the DPC examiner or vice consul." Br. at 22.
While we agree that there was no testimony at trial as to what effect the presence of the Schutzmannschaft on the inimical list might have had on the decisions of the examiner or the vice-consul, we regard the balance of the quoted statements in Stelmokas's brief as material misrepresentations. Near the end of the trial, after the government's witnesses had testified and shortly before the government rested, the following proceedings took place:
THE COURT: Fine. What remains to be done today?
MS. SLAVIN [the government attorney]: Well, we would like to move Exhibit 4.242, which is the inimical list, into evidence. We have reached a stipulation.
THE COURT: Okay. It was not received yesterday. Is it being received --
MS. SLAVIN: We are moving it in --
THE COURT: -- in evidence by agreement or is there a stipulation that you want to read into the record?
MS. SLAVIN: The stipulation we have arrived at that was -- that the list was in effect during the relevant period of Mr. Stelmokas' immigration in 1949.
MR. CARROLL [Stelmokas's attorney]: And I'm withdrawing my objection to that exhibit, your Honor, for that reason.
THE COURT: Exhibit 4.242 will be received in evidence.
(Government Exhibit 4.242 is admitted into evidence.)
In the circumstances, it obviously is disingenuous for Stelmokas's attorney on this appeal, who was trial counsel as well, to challenge the use of the inimical list on the theory that the evidence did not show it was in effect when Stelmokas sought displaced person status and a visa. Of course, Exhibit 4.242 included the Lithuanian Schutzmannschaft on the list.
In any event, it would not matter if the Schutzmannschaft was added to the inimical list after Stelmokas obtained displaced person status and a visa and entered the country. Stelmokas was barred from entering the country because he was a member of the Schutzmannschaft, which was a movement hostile to the United States. The date that the Schutzmannschaft was placed on the inimical list is not significant for purposes of determining if it was a movement hostile to the United States because its placement on the list established that it was such a movement during World War II when Stelmokas was one of its officers. The inimical list did not operate prospectively so that a movement would be regarded as hostile to the United States only after it was placed on the list. After all, the list enumerated movements that existed during the Nazi era which ended before the list's promulgation. Therefore, Stelmokas was unlawfully admitted to the United States because, regardless of when the Schutzmannschaft first appeared on the inimical list, when Stelmokas served as a Schutzmannschaft officer it was a movement hostile to the United States.
The second aspect of the evidence on which we comment is Stelmokas' misrepresentations to the DPC analyst and the American vice-consul in Hamburg. Neither the analyst nor the vice-consul testified, but it is beyond dispute that when they interviewed Stelmokas he told them nothing about his Schutzmannschaft and Luftwaffe service. Rather, he told them that during the war he was a teacher in Seda, Lithuania, and was then a laborer in Dresden, Germany. There simply can be no doubt but that the district court's findings demonstrate that Stelmokas was not eligible to immigrate to the United States.
D. The materiality of Stelmokas's misrepresentation
Stelmokas's final argument is that the government did not establish that his misrepresentations regarding his wartime employment and residence were material. He contends that the "government has usually attempted [to establish] proof of materiality in these cases by calling consular or INS officials to testify that their decisions would have been different if they had known the truth." Br. at 48. See, e.g., United States v. Kowalchuk, 773 F.2d at 496. He then correctly points out that the government did not present any such evidence in this case.
Stelmokas's claim for relief on this basis faces the insurmountable barrier that even if he is correct, we still must affirm. The district court found for six different reasons, all fully supported by evidence in the record, that Stelmokas was ineligible for displaced person status and for a visa and thus that he had not entered the United States lawfully and had not been eligible for citizenship. Five of these reasons were predicated on his conduct and associations during World War II, and only one was based on his misrepresentations to the DPC analyst and the vice-consul. Thus, even if Stelmokas had made no misrepresentations to the DPC analyst or the vice-consul, we would affirm because he procured his citizenship illegally as he was not eligible for displaced person status and for a visa.
We recognize that a party might contend that if a court of appeals rejected any of the bases for a district court's conclusion that a defendant should be denaturalized, it should remand the case so that the district court then could consider whether to grant relief predicated on the findings the court of appeals has upheld. In that event, a finding that a defendant had not made material misrepresentations in connection with his visa application could be significant. The problem with such an argument is that the courts do not have equitable discretion to deny the government a judgment of denaturalization to which it otherwise would be entitled. Fedorenko, 449 U.S. at 517-18, 101 S.Ct. at 752-53. Thus, even if we held that Stelmokas's misrepresentations were not material and, indeed, even if he made no representations at all to obtain the visa, his appeal is doomed, as he was not eligible for a visa, and we must uphold the district court even if we sustain only one of the bases for its conclusion that he had been ineligible to enter the United ...