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On November 21, 1950 defendant filed a Declaration of Intention listing his birthplace as Sivash in the Ukraine. The same information is provided in his Declaration of Intention filed April 7, 1951.
The Government called Kempton Jenkins, a career foreign service officer as an expert witness; he was formerly a Vice-Consul reviewing Displaced Persons cases in south Germany subsequent to the time defendant came to America. Although the witness was a very engaging person, the court found a number of inaccuracies in his testimony and must therefore consider his testimony in the light all the evidence.
Any Vice-Consul had a number of materials presented to him by an applicant for a visa. At that point the applicant had been interviewed by a voluntary sponsoring group (in defendant's case the Tolstoy Foundation) and by the Displaced Persons Commission. The Vice-Consul had a report from the Displaced Persons Commission as well as one from the Army CIC (Counter-Intelligence Corps) which checked any service record with the Axis forces. In addition, a report on conduct from the local German police was furnished together with any report from the Berlin Depository Center which contained a depository of Nazi party documents.
If a prisoner indicated he was with a labor force a check was made of the records as to that labor force. In the instant case, defendant did advise them he had been at Poelitz.
Jenkins testified that the persons to be excluded under the Displaced Persons Act were ones who participated in or acquiesced in crimes against humanity or against civilians or served voluntarily with Axis military forces. He stressed that the benefit of the doubt was to be given to the applicant and the objective was to make a humanitarian solution. He testified that many applicants were members of the East European Waffen SS (Combat) divisions who claimed to be serving involuntarily. The Vice-Consul would have to decide whether to admit the applicant and testified the tendency would be to make a favorable judgment and admit the applicant. He testified that the Displaced Persons Commission and Vice-Consuls recognized that many East Europeans hated the Russians as much as they did the Germans. He also added the fact the Russians might execute the applicant was a realtiy that was considered. He acknowledged that some visas were granted to members of General Vlasov's army (The “Army of the Damned”), although that Army fought side-by-side with the Germans against the Russians and comprised Soviet volunteers.
Jenkins testified he knew of no camp guards whose applications were favorably processed but he admitted he only remembered three and his experience was with Dachau which was located in Southern Germany. He assumed the camps east of Germany, such as Treblinka and Sobibor, located to the east of Warsaw, would be more brutal because the German civilian population was less likely to learn of it. He also testified that thousands of Germans who were not Jewish were killed in concentration camps. The survivors' testimony about Treblinka indicates that only Jewish persons were exterminated there plus a few gypsies.
Jenkins' testimony about the structure of the death camp organization was hardly expert and conflicts consistently with other evidence presented at the trial. For example, he testified that the Ukrainian guards had the same uniforms as the SS with only sightly different insignia. However, the unanimous testimony was the Germans wore their usual gray-green uniforms but the prisoner-guards didn't. He testified that the camp guards could get leave and get away from the camp and could transfer. The testimony was clear that they could not take leave (and go to Berlin, as Jenkins opined) but could only get a two-to-four-hour pass to visit a small village a couple of miles away.
The testimony of defendant refutes the assumption that the camp guards could transfer to other duty. Jenkins also testified that the Germans commandeered all the best houses and the camp guards had excellent living conditions, had movies and were well-fed. There was no evidence about the quality of the meals or about movies in the camp but Soviet prisoner-guards lived in barracks rather than in "the best houses”.
Jenkins also would have considered the kapos as excludable because they assisted the Germans. This is totally contrary to the reaction of every witness who survived Treblinka; each of the Israeli witnesses testified the kapos did only what they had to do and the witnesses were quite indignant when asked if they had ever testified against the kapos. The witnesses replied that there was no reason to do so. In addition, Jenkins speculated that the kapos were probably shot in 1945 during a period of retaliation, but the testimony was to the contrary.
The Constitution of The International Refugee Organization described in part II of Annex I “Persons who will not be considered as displaced persons).” Under the second listing are two classifications:
2. Any other persons who can be shown:
(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations. It has troubled the court that the word “voluntarily” appears in connection with service with the Axis military forces but is deleted from the phrase in section 2(a). The concern arises because the traditional principles of statutory construction would hold that the deletion of the word "voluntarily” in one subsection while its inclusion in another compels the conclusion that any assistance, whether voluntary or involuntary, in connection with concentration camp treatment of civilian population would be sufficient to bar that person from being entitled to relief under the Displaced Persons Act. The difficulty with that construction is that it would bar every Jewish prisoner who survived Treblinka because each one of them assisted the ŠS in the operation of the camp. Each did so involuntarily and under the utmost duress. For example, working prisoners led arriving prisoners to the lazaret to be executed; or wore armbands as part of the ruse at the lazaret; or cut the hair of the females to be executed; others played in the orchestra at the gate as part of that ruse, etc. Technically, this is assistance. It is also absurd to deem their conduct as "assistance or acquiescence" inasmuch as it was involuntary-even though the word "voluntarily” was omitted from the definition.
The Government listed witnesses who were Treblinka survivors and now reside in America, presumably as U.S. citizens. To interpret “assistance or acquiescence” without requiring it to be done "voluntarily” could imperil their status.
The Government's expert witness, Mr. Jenkins, opined that he would bar kapos from the benefits of the Displaced Persons Act because of their assistance to the SS in supervising the activities of the other Jewish prisoners. Unanimously the survivors of the Treblinka prison camp defended the actions of the kapos. They pointed that the kapos had administered beatings at the command of the SS with just enough strength to avoid getting themselves into trouble with the SS while not being severe enough to injure the prisoner. Here again, if the word “voluntarily” is not read into subsection 2(a) kapos also would be denied admission under the Displaced Persons Act.
To construe the definition in that fashion would be to thwart totally the most obviously deserving persons: the prisoners who survived death camps such as Treblinka.
WAS FEDORENKO'S GUARD DUTY VOLUNTARY?
The court has previously found Fedorenko did not volunteer to go to Travnicki and did not volunteer to be a guard at Lublin or Treblinka. Nor did he volunteer for Warsaw, Danzig, Poelitz or Hamburg.
The question still remains whether Fedorendo could have made some feasible choice other than serving as a guard, particularly at Treblinka. The court has already found that defendant could not have transferred to another division.
Fedorenko had rights that the typical prisoner of war does not have, for example: carrying a rifle and a pistol, being able to go on liberty for four hours and even being given some small stipend from the Germans. On the other hand, he clearly did not have the right to walk out of the gate, go to a city of his choice, or catch a train to his home or wherever else he wanted to go. Although not a typical prisoner of war, he was clearly not one of the captors. He was in some limbo state of having privileges not usually conferred on a prisoner of war but still in a position where disobedience of any consequence or an attempt to escape would certainly result in death.
The privileges given to the Soviet prisoner-guards apparently were to mollify them enough to prevent disciplinary problems and also to prevent their revolting against their captors. The use of liberty for four hours to visit a nearby town seems calculated to keep the prisoner-guards contented while preventing their getting a safe headstart if they decided to escape. Defendant testified that four of them did try. and were surrounded by the Germans in a house and apparently executed. Approximately 15 prisoner-guards attempted to escape from Treblinka and defendant was unaware of what happened to them other than the four. One prisoner-guard was executed for disobedience and all the prisoner-guards were compelled to watch. With the benefit of hindsight seated in a comfortable chair in an air-conditioned office it would be relatively easy to conclude that defendant should have turned his rifle on the SS on the day of the uprising or that he should have attempted to escape once he got to the nearby village. Defendant testified he discussed escape once with a fellow prisoner-guard but nothing further came of it.
At the time of the uprising on August 2, 1943 defendant and the other prisonerguards near him fired over the heads of the prisoners under orders from the Commandant.22 Defendant did not fire at any of the prisoners and the court doubts that he did anything other than shoot over their heads.
22 When asked on cross-examination why he didn't shoot the commandant, he replied: "If you shoot the commandant, it is like shooting yourself.”
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However, the Code of Conduct for Members of the Armed Forces of the United States Imposing a Duty to Escape (Section III) was not promulgated until Executive Order No. 10631 dated August 17, 1955, after the Korean conflict. Previously with American military forces there had been only an unwritten tradition to escape although apparently a written duty was once published in 1863. No evidence was presented that defendant was under a Soviet duty to escape or that he had been so instructed in the few, presumably disorganized, days between Russian mobilization and his capture.
If Fedorenko had refused to carry out orders at Treblinka, there is little doubt from the evidence that his execution would have been swift and sure. It no doubt would have occurred before a formation of other prisoner-guards to serve as an example to them. For a prisoner-guard at Treblinka to have denounced publicly the SS and what they were doing there would indeed have been a dramatic act of decency. It also would have been a dramatic act of self-destruction. As a court of equity, this court cannot impose such a duty upon defendant.
CONCLUSIONS OF LAW
Based on the findings set forth the court now considers each count of the .complaint.
There is no dispute that defendant lied when he gave his birthplace as Sarny, Poland and stated he worked in a factory in Poelitz, Germany. This misrepresentation would have been cause to deny defendant's application for citizenship. Berenyi v. District Director, Immigration and Naturalization Service, 385 U.S. 630, 87 S.Ct. 666 (1967), In Re Petition of Haniatakis, 376 F. 2d 728 (3rd Cir. 1967). However, in a denaturalization proceeding a different standard obtains. Despite the fact that the immigration laws prohibit giving of false answers 23 and that therefore any misrepresentation is illegal”, once citizenship has been confirmed it may be taken away only if it can be clearly and convincingly shown that the misrepresentation was "material.” Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147 (1960). Although Chaunt considered only the question of obtaining citizenship through "willful misrepresentation of a material fact”, the court finds that the standard must be the same where the charge is “illegal procurement” by virtue of a false statement. See In Re: Field's Petition, 159 F. Supp. 144 (S.D.N.Y. 1958).
In Chaunt the Supreme Court held that proof of materiality requires clear and convincing proof that either (1) facts were suppressed “which, if known, would have warranted denial of citizenship” or (2) that their disclosure "might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship” 364 U.S. at 355, 81 S.Ct. at 149.
In the instant case the true facts regarding defendant's birthplace and nationality would not of themselves have justified denial of citizenship, for Ukrainians per se were not excluded under the Displaced Persons Act.24
Neither can the court conclude that the disclosure of these facts might have been useful in an investigation leading to the discovery of other facts possibly warranting denial of a citizenship. In fact, the truth regarding defendant's nationality and birthplace were revealed to the Government when defendant filed his Declaration of Intention in 1950 and again in 1951. Mr. Zimon, who interviewed defendant pursuant to his application for citizenship, testified that the disclosure of the previous false statement was not a cause for concern or further inquiry because it was a well known fact that many Ukrainians entering the country at that time had concealed their true nationality in order to avoid repatriation to the U.S.S.R. Further, Mr. Jenkins admitted defendant's being a Ukrainian was obvious from his name and religion.25
23 The Act of May 22, 1918, as amended 40 Stat. § 1(C) as in effect in 1949 prohibited the giving of any false statement in an application for permission to enter the United States. A similar provision in the current law may be found in Title 8 U.S.C. § 1325.
24 Displaced persons under the Act included any person who as a result of the actions of the authorities of Nazi or Fascist regimes, has been deported from or has been obliged to leave his country of nationality or of habitual residence. This definition would include Ukrainians who were forced from their homeland during the German invasion of the U.S.S.R.
25 Accord, and almost on all fours except it is an application rather than a denaturalization case: In Re Iwanenko's Petition, 145 F. Supp. 838 (N.D. Ill. 1956) Iwanenko came to U.S. in 1950 after defendant's arrival and the case describes the fear of repatriation in detail. Jenkins
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However, the question of defendant's whereabouts from 1942–1945 presents another matter. Defendant has admitted that he did not work in a factory in Poelitz, but instead worked as a prisoner-guard for ten months in Treblinka. However, he did serve as a prisoner-guard at Poelitz. If the Treblinka term had been known, it certainly would have prompted an investigation by the Vice-Counsl to determine whether defendant committed atrocities at Treblinka or served voluntarily as a guard, or was otherwise excludable from admission under Section 2(a) or 2(b) of the Displaced Persons Act. However, the knowledge of defendant's being at Poelitz whether as a forced laborer or a prisoner-guard would have triggered the search of the records as well.
The Government has argued that under Chaunt it is not necessary to prove that the facts which would have been revealed through the investigation would have required denial of citizenship; the Government contends it is sufficient that the conceded facts prevented the Government from making an investigation which might have resulted in a denial of citizenship.
The language in Chaunt is ambiguous. The word “possibly" in the phrase "possibly leading to the discovery of other facts warranting denial of citizenship" could be read to modify the entire phrase, thus supporting the Government's interpretation that existence of facts warranting denial of citizenship need only be a possibility. However, if this were the intent of the Court, it would have been clearer to state "facts which might warrant denial.” On the other hand, it appears that the proper grammatical interpretation is that “possibily” modifies only the first part of the phrase, meaning that the existence of facts justifying denial is presupposed, and the only question is whether the suppressed facts would have provided a link to their discovery.
This second interpretation has been adopted in two circuits. In United States v. Rossi, 299 F.2d 650 (9th Circ. 1962), the court considered whether the fact that defendant had personated his brother, a Chilean citizen thereby suppressing his true identity as an Italian, was material. The court found that although defendant thus succeeded in avoiding the quota restriction placed on Italians, the Government had not shown that defendant would not have been admissible because the quota had been filled, and the Government therefore had not met the burden of showing that the misrepresentation was material.
The Ninth Circuit more recently adhered to this same interpretation of Chaunt in holding in a deportation case that a suppressed fact is not material unless the truth would have justified denial of a visa. LaMadrid-Peraza v. Immigration and Naturalization Service, 492 F.2d 1297 (9th Cir. 1974).
Similarly, in United States v. Riela, 337 F.2d 986 (3rd Cir. 1964) the court cited Chaunt as holding that false statements are material if they resulted in the suppression of facts which if known would have warranted denial of citizenship.
Based on its reading of Chaunt, this court agrees with the interpretation followed in the Third and Ninth Circuits. The case of Langhammer v. Hamilton, 295 F.2d 642 (1st Cir. 1961) cited by plaintiffs, is not a denaturalization case and therefore is inapposite. Compare: Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955 (1958) with Berenyi v. District Director of Immigration and Naturalization Service, supra. Therefore the court must determine whether the Government has presented clear and convincing proof that the true facts would have warranted denial of citizenship.
APPROVAL OF DEFENDANT'S VISA APPLICATION Witness Jenkins testified that a Vice-Consul's determination to approve or disapprove an application could only be overruled by the Consul General, and that overruling didn't happen. If anything in an application indicated prior service in a labor battalion or German unit there would be an investigation made to see if applicant served voluntarily.
Although defendant did not mention Treblinka in his history given to the Displaced Persons Commission he did mention his service at Poelitz near_Stettin although he described it as a factory worker rather than a prisoner-guard. The case analyst signed off on the Displaced Persons Commission report on August 30, 1949. It was more than six weeks later on October 12, 1949 when the Vice-Consul at Hamburg approved defendant's application for a visa.
What happened in the intervening time? Was no inquiry made into the German records about Fedorenko being in whatever units were at Poelitz? Unlikely-Jen
Footnotes continued from last page claimed there was no repatriation as late as 1949 and no reason to fear it. However, the Iwanenko opinion described how rumors were still circulating among Russian nationals. Of course, defendant listed Sarny, Poland as his birthplace in 1945 when repatriation was unquestionably a peril and he was consistent in his 1949 application.
kins testified such information would have triggered an inquiry. Did the inquiry show his status there? If so, did the Vice-Consul apply the test that Jenkins had described, resolving the doubts to the benefit of the applicants? After all, doubts were resolved in favor of members of General Vlasov's army and their applications were approved. We can't be sure because the Government did not produce the ViceConsul to testify. Not only were the doubts often resolved in favor of applicants under the Displaced Persons Act, but the upreme Court instructs the United States Courts to resolve the law "as far as is reasonably possible" in favor of the naturalized citizen. Schneiderman, 320 U.S. at 122, 63 S.Ct. at 1335. Therefore this court must resolve the doubt in favor of defendant as to Counts 1, 2 and 3. This court specifically holds that petitioner lawfully entered the United States.
Count 4 of the complaint charges defendant with giving a false answer to question number 6 on the application form for citizenship (form N-400). That question asks “Have you ever committed any crime, whether or not you were arrested? Inasmuch as the court has determined that the Government has failed to prove defendant's commission of any crimes, it cannot be said that defendant's answer was not truthful. Therefore the Government has failed to meet its burden as to Count 4.
Turning now to Count 5, question number 7 asked defendant to list membership in any organizations, including foreign military service. Defendant listed only Russian military service in 1941. Mr. Zimon, the naturalization examiner who used red markings to indicate his additions, added “labor union at work” as an organization of which defendant was a member.
The Government contends that defendant willfully failed to reveal his status as an armed guard for the Germans 26 in response to the question.
It is clear that defendant served only in the Russian army until his capture in 1941. Defendant has maintained that he was a prisoner of war until his surrender to the British. It is clear that he was transported from place to place and was obliged to obey orders under penalty of death and was not free to do whatever he chose. In view of the evidence the court concludes that there would be strong reason in defendant's mind to view himself as a prisoner of war; it therefore cannot be said that his omission was willful. United States v. Tooma, 187 F. Supp. 928 (E.D. Mich. 1960), United States v. Profaci, 274 F.2d 289 (2d Cir. 1960). Even if defendant clearly understood the question and willfully concealed the truth, the court must necessarily hold in accordance with the previous findings that the false answer was not proved to be material.
Counts 6 and 7 charge defendant with not being a person of good moral character for the five years preceding naturalization both because of the commission of atrocities and because he lied on his N-400 form.
Good moral character is a difficult term to define. As the Supreme Court has stated, “the term, by itself is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitude, experience and prejudices of the definer”. Konigsberg v. State Bar of California, 353 U.S. 252, 263 (1957). Thus it has been consistently held that to meet the requirements for citizenship a petitioner's character must measure up to that of the average citizen in the community in which he resides. Brukiewicz v. Savoretti, 211 F.2d 541 (5th Cir. 1954). Although the immigration laws require proof of good moral character only for the five years preceding naturalization 27 conduct outside the statutory period is relevant and should be considered.28
The evidence concerning Fedorenko's good conduct for 29 years in America is uncontroverted. In contrast, the evidence concerning defendant's conduct at Treblinka is fraught with conflict and uncertainty and is therefore inconclusive.
While it may be true that defendant was not completely candid in his interviews with Immigration officials, and that such “temporizing with the truth” should not be condoned, the court cannot find under the circumstances that defendant was guilty of the type of willful deceit which alone might justify a revocation of citizenship. It must be again emphasized that the burden is no longer on defendant to demonstrate his entitlement to citizenship. Berenyi, supra, but is on the Government to show clearly and convincingly that he is not. Chaunt, supra. The court therefore concludes that the Government has not met its burden as to Counts 6 and 7 of the complaint.
26 The complaint originally charged defendant with being a member of the German Army. It was amended at the pretrial conference.
27 $ 316(a) of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1427(a).
28 § 316(e), 8 U.S.C. § 1427(e) provides that the court may take into consideration as a basis for its determination the petitioner's conduct and acts at any time prior to that period.