1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-12-1996

United States v. Stelmokas

Precedential or Non-Precedential:

Docket 95-1894

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Recommended Citation

"United States v. Stelmokas" (1996). 1996 Decisions. Paper 25.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/25
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 95-1894 

 

 UNITED STATES OF AMERICA 

 v. 

 JONAS STELMOKAS, 

 a/k/a JONAS STELMOKEVICIUS, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civil No. 92-03440) 

 

 Argued June 10, 1996 

 BEFORE: STAPLETON, GREENBERG, and ALDISERT, Circuit Judges 

 (Filed: November 12, l996) 

 

 Eli M. Rosenbaum 

 Susan L. Siegal 

 Robert G. Seasonwein (argued) 

 Ronnie L. Edelman 

 Office of Special Investigations 

 United States Department of 

 Justice 

 Criminal Division 

 1001 G Street, N.W.

 Washington, DC 20530 

 Attorneys for Appellee 

 John R. Carroll (argued) 

 Carroll & Carroll 

 400 Market Street 

 Suite 850 

 Philadelphia, PA 19106 

 Attorneys for Appellant 

 

 OPINION OF THE COURT 

 
GREENBERG, Circuit Judge. 

 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. § 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 viceconsul 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. § 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. § 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 § 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 

§ 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. § 

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. § 

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 selfincrimination 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 Luftwaffeservice. 

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 selfincrimination. 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. § 
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. § 1427; Fedorenko, 449 U.S. at 514-16, 101 

S.Ct. at 750-52. 

 The court held that under the DPA § 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. 

SeeFedorenko, 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 § 13, 62 Stat. 1014. 

Consequently, he had procured his citizenship illegally. 

 The court held that DPA § 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. § 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. § 

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 mid1944, 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. 

 II. DISCUSSION 

 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 selfincrimination. 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 selfincrimination, 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 selfincrimination. 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 criminalcase 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 selfincrimination, 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, seeUnited 

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 selfincrimination. 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. 

 B. The ancient documents 

 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. § 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 Schutzmannschaftofficers 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 viceconsul. 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." Seeexhibit 

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: Let me... 

 (Pause in proceedings.) 

 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 Schutzmannschaftwas 

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 

States. Of course, we are sustaining the district court's 

conclusions on all six counts that Stelmokas was ineligible to 

enter the United States. Nevertheless, we will address the 

materiality argument on its merits, as it does relate to one of 

the bases for relief. 

 Initially, on this appeal Stelmokas and the government 

agreed that Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537 

(1988), set the standard for materiality in this case, even 

though that case concerned materiality in citizenship 

applications under the INA, 8 U.S.C. § 1451(a), rather than 

materiality under section 10 of the DPA. Thus, in his opening 

brief, Stelmokas said that the "current test of materiality is 

found in Kungys." Br. at 47. Indeed, in his "Statement of 

Issues" he included the following: "Were the defendant's 

misrepresentations concerning his former occupation and residence 

'material' as defined in Kungys v. United States, 485 U.S. 759 

(1988)." Under Kungys, a misrepresentation is material if it has 
a natural tendency to affect the officers' decisions, in this 

case the decisions of the DPC analyst and the vice-consul. 485 

U.S. at 770-72, 108 S.Ct. at 1546-47. Furthermore, it is clear 

from Kungys that a misrepresentation can be material even where 

if the truth had been told, the decision maker ultimately would 

have reached the same result. Under Kungys, the materiality of a 

misrepresentation in a denaturalization proceeding is a legal 

rather than a factual question. Id. at 772, 108 S.Ct. at 1547. 

 While the government continues to rely on Kungys, 

Stelmokas changed his position in his post-argument brief in 

which he now contends that "Kungys simply did not deal with the 

visa or DPA issues." Br. at 1. Furthermore, he cites United 

States v. Gaudin, 115 S.Ct. 2310 (1995), for the first time on 

this appeal in that brief, pointing out that the Supreme Court 

held there that materiality was a factual rather than a legal 

matter in the circumstances of that case. We would be justified 

in refusing to entertain Stelmokas's post-argument change in 

position, for we do not think that a party should be able to 

change his legal contentions after oral argument. But, mindful 

of the importance of this case to Stelmokas, we nonetheless will 

discuss his new position. 

 While we cannot predict the ultimate implications of 

Gaudin, we do know that Gaudin did not affect the Kungys holding 

that, in a denaturalization proceeding, materiality of a 

misrepresentation is a legal issue. Quite the contrary is true 

because the Gaudin court discussed Kungys at length and made it 

clear that it was distinguishing Kungys because that case dealt 

with whether "an appellate court must remand to a district court 

for a determination of materiality in a denaturalization 

proceeding," whereas Gaudin was concerned with a defendant's 

Sixth Amendment right to have a jury determine materiality in a 

criminal proceeding. Gaudin, 115 S.Ct. at 2319. 

 Of course, Gaudin followed a familiar track because it 

is not unusual for the Court to extend more extensive procedural 

protections to a defendant in a criminal case than to a party in 

a civil case. Indeed, as we point out above, the Court in Baxter 

v. Palmigiano distinguished Griffin v. California on the ground 

that Griffin, unlike Baxter, was a criminal case. Baxter, 425 

U.S. at 317, 96 S.Ct. at 1557. Thus, while Gaudin may cause 

courts to cabin Kungys to the extent that it holds that a 

determination of materiality is a legal issue, Kungys's treatment 

of materiality as a legal issue remains applicable here. 

 Stelmokas now also seems to contend that because the 

procedure in an application for citizenship differs from that 

under section 10 of the DPA, the definition of what is material 

in Kungys is inapplicable here. In particular, in his postargument brief, he contends that "Kungys simply did not deal with 

the visa or DPA eligibility issues." Br. at 1. This argument is 

distinct from Stelmokas's contention that materiality is a 

factual question. We reject this attempt to distinguish Kungys. 

While the procedures followed and questions asked when an 

applicant seeks a visa differ from those applicable when an 

applicant seeks citizenship, we see no reason why the test of 

materiality under Kungys would not apply in DPA eligibility 
cases. Materiality, after all, refers to the effect of a 

representation on a decision maker regardless of the nature of 

the decision. In other words, no matter what is being decided, 

the misrepresentation is material under Kungys if it has the 

natural tendency to affect the decision. We see no reason not to 

apply that test here. Thus, Kungys is doubly significant here, 

for it establishes that the resolution of materiality is a legal 

undertaking and it sets forth the test of what is material. 

 Inasmuch as under Kungys the materiality of a 

misrepresentation in a denaturalization proceeding is a matter of 

law, not fact, there cannot possibly be a need for the government 

to produce evidence from officials that if the truth had been 

told the officers would have reached a different result. Kungys, 

485 U.S. at 772, 108 S.Ct. at 1547. After all, evidence is not 

needed for a court to make a legal determination. Thus, while 

the government frequently has produced evidence of that 

character, the effect of Kungys in 1988 has been to eliminate the 

need for such evidence, if it ever was required. 

 We do not go so far as to suggest that evidence of what 

a consular or DPC official would have done if given the correct 

information is not admissible because we have no need to reach 

that point. Indeed, we even will assume that in a close case 

evidence of that character would be useful for the court in 

making a legal determination concerning the materiality of a 

misrepresentation. After all, the Supreme Court, prior to Kungysin 

Fedorenko v. United States, quoted and relied on such evidence 

produced by the government, though it noted that it was proffered 

and accepted by the court "[w]ithout objection" from the 

defendant. 449 U.S. at 448-50, 101 S.Ct. at 743-44. Yet, in 

Fedorenko the court did say that the defendant was ineligible for 

a visa "as a matter of law." Fedorenko, 449 U.S. at 509, 101 

S.Ct. at 749. 

 Though we thus acknowledge that in a close case 

evidence of whether or not the consular official's decision would 

have been different if he knew the truth might be helpful to the 

court in deciding a materiality issue, this case is not close. 

In our view, it cannot reasonably be argued that Stelmokas's 

misrepresentation that he was a laborer and a school teacher when 

in fact he was an officer in the Schutzmannschaft and served in 

the Luftwaffe could not have had a natural tendency to influence 

the DPC analyst and the vice-consul. Indeed, probably without 

recognizing the implications of his statement, Stelmokas admits 

as much, for in his post-argument brief he describes his 

fabricated wartime employment as a "neutral" factor in the 

decision to admit him to the United States. Br. at 3. He hardly 

could contend that a revelation of his real Schutzmannschaft and 

Luftwaffe service would have amounted to the disclosure of a 

"neutral" factor. 

 We have no doubt that if Stelmokas had told the truth 

about his service on behalf of Germany during World War II he 

never would have obtained his visa for permanent residency in the 

United States, and he never would have been naturalized. After 

all, we have found that these activities disqualified him from 

securing displaced person status and from obtaining a visa. 
Thus, the misrepresentations surely were material. Of course, 

there is a certain irony in Stelmokas's contention that his 

misrepresentations were not material, because when he made them 

he must have recognized the need to hide the truth so that he 

could be admitted to this country. At least we can discern no 

other motive that he might have had to conceal his wartime 

activities. The truth is inescapable: he invented his wartime 

history out of thin air so that he could be admitted to the 

United States and ultimately obtain citizenship. 

 We make an additional observation with respect to the 

custom of the government of calling consular or INS officials to 

testify that their decisions would have been different if they 

had known the truth. As we have indicated, Stelmokas seems to 

believe that the materiality of a misrepresentation is a factual 

issue and reasons that the fact of materiality cannot be 

established without testimony as to what the consequence of the 

provision of truthful information to the decision maker would 

have been. Yet, even treating materiality as a factual question, 

we see no reason why the district court as the trier of the fact 

could not conclude, without such testimony, that the 

misrepresentation had a natural tendency to affect the decision 

and thus was material. We will not convert the government's 

custom in producing consular or INS testimony to establish the 

materiality of a misrepresentation into a requirement that it 

must do so, for we are not aware of any case which holds that the 

government must establish the materiality of a misrepresentation 

with testimony from a consular or INS officer that a truthful 

disclosure would have produced a different result. 

 We point out that our conclusion that evidence on 

materiality of a misrepresentation is not necessary is in harmony 

with our treatment of materiality in other contexts. Bethel v. 

McAllister Bros., Inc., 81 F.3d 376 (3d Cir. 1996), is a recent 

example. In Bethel, the plaintiff obtained a substantial verdict 

on a defamation claim. Subsequently, the defendant moved for 

relief from the judgment entered on the verdict based on the 

plaintiff's testimony at an arbitration proceeding after the 

trial in the defamation case which was inconsistent with his 

earlier testimony at trial. The district court granted relief 

and ordered a new trial on the defamation action. The plaintiff 

appealed, and we affirmed. 

 Bethel is significant to this case because the district 

court and this court in Bethel were concerned with whether the 

"misrepresentation" was "material" to the plaintiff's case. Id. 

at 385. We held that it was not merely material, it was crucial. 

In entertaining the motion for relief from judgment, the district 

court developed a record establishing the misrepresentation by 

comparing the testimony at the trial and the arbitration. But no 

witness testified that the misrepresentation was material. 

Rather, the district court, predicated on its own view of the 

record, concluded that it was material, and we reached the same 

conclusion using an identical methodology. Thus, without citing 

Kungys, both courts in Bethel followed the Kungys formula of 

basing a determination of "the materiality of a statement . . . 

upon a factual evidentiary showing" and then making "an 
interpretation of substantive law." Kungys, 485 U.S. at 772, 108 

S.Ct. at 1547 (omitting citation). That procedure is exactly 

what the district court did here, and it is exactly what we do on 

this appeal. In fact, materiality frequently is treated as a 

legal question, sometimes in a trial context as in Kungys, see In 

re Cohn, 54 F.3d 1108, 1115 (3d Cir. 1995), and sometimes in 

other proceedings. See, e.g., United States v. Pelullo, 14 F.3d 

881, 886 (3d Cir. 1994); United States v. Gray, 878 F.2d 702, 714 

(3d Cir. 1989). 

 E. Comments on the dissent 

 We close the discussion portion of our opinion with 

comment on two aspects of Judge Aldisert's dissent, sections VII 

and VIII. We do not address the rest of the dissent as our 

opinion adequately explains the bases for our conclusions and we 

do not regard the dissent as detracting from them. We comment on 

his discussion in section VII of the dissent on Count IV of the 

complaint in which the government charged that Stelmokas 

illegally procured his naturalization because he misrepresented 

his wartime record to the DPC and to the vice-consul and thus was 

ineligible to enter the country. We focus our attention on this 

point because Judge Aldisert includes in his dissent a concession 

which causes the dissent to self-destruct, namely "that 

Stelmokas's failure to disclose his wartime military status would 

have had a natural tendency to influence immigration decisions." 

Dissent typescript at 29. 

 Initially on this point we reiterate that 8 U.S.C. § 

1451(a) provides in the disjunctive for a certificate of 

naturalization to be revoked if it was "illegally procured" or 

was "procured by concealment of a material fact or by willful 

misrepresentation." In an "illegally procured" case, the alien 

obtains his naturalization illegally, in this case the illegality 

being that Stelmokas was not eligible for naturalization as he 

was not admissible into the United States. In a "procured by" 

case, the alien obtains his naturalization by concealment of a 

material fact or by misrepresentation. While Judge Aldisert 

asserts that the government attempted in Count IV to rely on the 

"procured by" language, in that count the references to 

Stelmokas's misrepresentations to the DPC analyst and the vicecounsel were germane only to the "illegally procured" component 

of section 1451(a). Thus, Judge Aldisert's suggestion that Count 

IV of the complaint related in any way to the "procured by" 

language of section 1451(a) is simply not true. Furthermore, 

while the government unsuccessfully did use Stelmokas's 

misrepresentations to the DPC analyst and the vice-consul in the 

only count of its complaint asserting a "procured by" charge, 

Count VII, the government does not pursue its case on that count 

on this appeal. 

 Judge Aldisert then indicates, quite correctly, that 

the government's case on Count IV begins with the major premises 

that DPA § 10, 62 Stat. 1013, barred from immigration any person 

who willfully misrepresented material facts to gain entry as a 

displaced person. He then correctly indicates that the 
government argues that Stelmokas made material misrepresentations 

so that his entry was unlawful and he thus illegally procured his 

naturalization. He then indicates that the "critical inquiry is 

whether the government met its important threshold burden of 

proving a misrepresentation as defined in the Displaced Persons 

Act." Dissent typescript At 27. (Emphasis added.)

 The problem with the foregoing statement is inclusion 

of the word "threshold" for if the government established that 

Stelmokas made material misrepresentations to the DPC analyst and 

the vice-consul the case is over and the government wins. Why is 

this so? The answer is quite clear. DPA § 10 provides 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." Of course, as we already have explained, 

that person is thus ineligible for naturalization. 

 Rather, as Judge Aldisert acknowledges, the test of 

materiality comes from Kungys, i.e., does the misrepresentation 

have a natural tendency to influence or was it capable of 

influencing the decision of the decision making body to which it 

was addressed? While it appears that Judge Aldisert is reluctant 

to acknowledge that Stelmokas's lies to the DPC analyst and the 

vice-consul about his wartime activities were material, we 

reiterate that he does concede "that Stelmokas' failure to 

disclose his wartime military status would have had a natural 

tendency to influence immigration decisions." Dissent typescript 

at 29. Under Kungys the misrepresentations were therefore 

material without any showing of their effect on the DPC analyst 

or the vice-consul. 

 Notwithstanding the clear statutory scheme, Judge 

Aldisert either tries to add more elements to the definition of 

materiality or to demonstrate that the government had to show 

that the misrepresentations led to Stelmokas's admission into the 

country. As we have indicated, the government has demonstrated 

the Stelmokas's misrepresentations led to his admission into the 

United States but it did not have to do so. Nevertheless we 

address the point Judge Aldisert makes. Judge Aldisert fails in 

this effort to demonstrate that the government had to demonstrate 

anything beyond the conceded fact that Stelmokas's 

misrepresentations had a natural tendency to influence the 

immigration decisions. The reason he fails is that he relies on 

principles inapplicable in a case under the "illegally procured" 

clause of section 1451(a) when the case is predicated, as is this 

case in Count IV, on an alien having made a material 

misrepresentation under DPA § 10 for the purpose of gaining 

admission into the United States. Thus, Judge Aldisert makes the 

following statement which is simply wrong in this "illegally 

procured" case under section 1451(a): "In denaturalization cases, 

equally important to establishing a material statement is the 

presentation of evidence that the misrepresentation procured the 

order and certificate of naturalization." Dissent typescript at 

29. The problem with the statement is that in "illegally 

procured" cases there is no requirement that a misrepresentation 

enabled the alien to procure anything. Rather, in an illegally 
procured case dependent on a misrepresentation made when the 

alien sought admission into the United States, under DPA § 10 the 

government merely need prove that the misrepresentation for the 

purpose of obtaining admission into the United States was 

material. Furthermore, Judge Aldisert's statement is wrong for 

the additional reason that Stelmokas did not make his 

misrepresentations to procure the order and certificate of 

naturalization. He made them to obtain displaced person status 

and to be admitted into the United States. 

 We reiterate that Stelmokas's misrepresentations to the 

DPC analyst and the vice-consul are significant because under DPA 

§ 10 an alien who makes a material misrepresentation thereafter 

is not admissible into the United States. Thus, if an alien who 

made a material misrepresentation is admitted and is naturalized, 

he has illegally procured his naturalization without regard for 

whether he procured anything by the misrepresentation. We 

further emphasize that DPA § 10 in the clearest possible terms 

speaks prospectively, i.e., "thereafter" an alien making 

misrepresentations is not admissible into the United States. 

Accordingly, it is clear beyond doubt that once Stelmokas made 

his misrepresentations to the DPC analyst and the vice-consul, he 

was ineligible to enter the United States, because, in Judge 

Aldisert's words, his "failure to disclose his wartime military 

status would have had a natural tendency to influence immigration 

decisions." Accordingly, Stelmokas could not be naturalized and 

he illegally procured his citizenship. Nothing in DPA § 10 

requires that the alien procure his admission into the United 

States or anything else by his misrepresentations for even if the 

misrepresentations are uncovered immediately, so that the alien 

does not obtain displaced persons status or is not admitted to 

the United States, he is ineligible for admission to the United 

States after he makes his misrepresentations. 

 For reasons that must be driven by Judge Aldisert's 

sense that there is something unfair in the prosecution of this 

case he continues to develop his dissent along the same erroneous 

lines that we have described. Thus, he points out that in Kungys"the 

government was obligated to demonstrate that Kungys' 

citizenship status was procured by his material 

misrepresentations." Dissent typescript at 29. He then 

inferentially acknowledges that Kungys was not an "illegally 

procured" case but was a case where the naturalization was 

"procured by concealment of a material fact or by willful 

misrepresentation," for he recites that the "Government seems to 

ask this court to apply different meanings to the term 'procured' 

in the two clauses of § 1451(a)." Id. at 29-30. He argues that 

"[t]here is no rational support for the suggestion that Congress 

intended such an anomalistic reading of the same word in the same 

section of the same statute. There is absolutely no rational 

support for the notion that the government is not required to 

produce evidence showing precisely how Stelmokas was 'unlawfullyadmitted' 

and whether his naturalization was in fact 'illegally 

procured.'" Id. at 30. "If under the second clause in § 1451 

the government must show that the naturalization was 'procured 

by' the alleged misrepresentation, as the Court held in Kungys, 
then under the first clause certainly the government must 

demonstrate that Stelmokas was ineligible and therefore 

unlawfully admitted." Id. 

 The problem with the foregoing quoted language from the 

dissent is obvious. The government did demonstrate, in Judge 

Aldisert's words, that Stelmokas "was ineligible and therefore 

unlawfully admitted." The government demonstrated that Stelmokas 

made a material misrepresentation under DPA § 10, which 

representation we once again point out did not have to result in 

Stelmokas procuring anything to violate that section. Thus, 

Stelmokas illegally procured his naturalization. Nothing could 

be clearer. 

 It is also clear that in the "illegally procured" and 

"procured by" clauses, "procured" has the same meaning and the 

government does not contend otherwise. We repeat the distinction 

between the two types of cases. In a "procured by" case the 

alien obtains his naturalization by his misrepresentation. In an 

"illegally procured" case the alien obtains his naturalization 

illegally, in Stelmokas's case by entering the country when he 

could not be admitted. Thus, "procured" means the same thing in 

"illegally procured" and "procured by" cases. What differs is 

the interdicted conduct by which the alien procured his 

naturalization. 

 Of course, there is a good reason why the "procured by" 

clause in section 1451(a) requires that the government 

demonstrate more than that an alien made a material

misrepresentation for naturalization to be revoked because, 

unlike DPA § 10 which applies prospectively so as to render an 

alien inadmissible to the United States, section 1451(a) always 

applies in a situation in which the alien already has procured 

his naturalization. Thus, Judge Aldisert's emphasized quotation 

of Kungys that "the naturalized citizen must have procured 

citizenship as a result of the misrepresentation or concealment," 

485 U.S. at 767, 108 S.Ct. at 1544, dissent typescript at 31, 

does not support his position because there the Court was 

discussing a "procured by" not an "illegally procured" case. 

Judge Aldisert goes further in misusing the plain language of 

Kungys. First, he correctly says that Kungys indicates that in a 

denaturalization proceeding there are "four independent 

requirements." Dissent typescript at 31. In fact, the Court 

said the following with respect to a "procured by" case under 

section 1451(a): 

 So understood, the provision plainly contains 

 four independent requirements: the 

 naturalized citizen must have misrepresented 

 or concealed some fact, the misrepresentation 

 or concealment must have been willful, the

 fact must have been material, and the 

 naturalized citizen must have procured 

 citizenship as a result of the 

 misrepresentation or concealment. 

Kungys, 485 U.S. at 767, 108 S.Ct. 1544-45. 

 Yet this language does not help Stelmokas for in the 
quotation the Court was not discussing an "illegally procured" 

case. Rather, it set forth the elements of a "procured by" case. 

Furthermore, the Court emphasized that the requirements were 

"independent." Thus, it is impossible to read the statement in 

Kungys that the naturalized citizen have procured citizenship as 

a result of the misrepresentation into the materiality 

requirement of a misrepresentation under DPA § 10. The 

materiality and procurement considerations are "independent" of 

each other and cannot be fused. Furthermore, the requirement in 

a "procured by" case that the misrepresentation have resulted in 

the alien obtaining citizenship cannot be attached to the 

government's burden to show that Stelmokas's misrepresentations 

to obtain displaced person status and a visa in this "illegally 

procured" case were material. Thus, Judge Aldisert's concession 

that Stelmokas's misrepresentations would have had a natural 

tendency to influence the immigration decisions should lead him 

to vote to affirm even if he rejects, as he does, the rest of the 

government's case, for as we explained above, if the government 

establishes that Stelmokas illegally procured his naturalization 

for a single reason we must affirm the district court. 

 Judge Aldisert discusses the possibility of the 

government producing evidence of what consular officials would 

have done if Stelmokas had not deceived them but we will not 

discuss this point as we have addressed it above. Eventually he 

gets back to his central theme on Count IV but at that point he 

inexplicably compounds his errors for he says that "the 

government has not met its high burden of proof in this case 

because it failed to produce evidence that Stelmokas' 

misrepresentations procured the decision of the DPC analyst and 

the naturalization officials." Dissent typescript at 38. 

(Emphasis added.) Of course, the "naturalization officials" have 

nothing to do with this case on Count IV and thus the government 

does not contend that any misrepresentation to them is germane to 

that count. Furthermore, the government did not have to show 

that Stelmokas's misrepresentations to the DPC analyst and the 

vice-consul procured the decision of the naturalization officials 

to grant naturalization as the misrepresentations were critical 

as they led to his admission into the United States. 

 The second aspect of Judge Aldisert's dissent on which 

we comment is part VIII in which he expresses due process and 

fairness concerns. We point out that Stelmokas does not contend 

that the prosecution of the case has denied him due process of 

law. Accordingly, this court should not be concerned with Judge 

Aldisert's observation that with the passage of time "witnesses 

disappear and memories fade." Dissent typescript at 42. In any 

event, lest too many tears be shed for Stelmokas, we point out 

that one witness has not disappeared and we have no reason to 

believe his memory has faded. That witness, of course, is 

Stelmokas himself who with so much at stake persisted in his plea 

of the privilege against self-incrimination notwithstanding the 

order of the district court overruling the plea. 

 III. CONCLUSION 
 After a careful examination of this matter, we have 

concluded that the district court made no errors of law and that 

the record fully supports and, in fact, compels the district 

court's conclusion that Stelmokas did not qualify for admission 

to this country as a displaced person. Thus the district court 

correctly revoked his citizenship and ordered him to surrender 

his certificate of naturalization. While many years have passed 

since his admission to the country and his obtaining of 

citizenship, it is not too late to remedy the wrong done when he 

was admitted. Accordingly, we will affirm the judgment of August 

2, 1995. 

 

UNITED STATES v. STELMOKAS - NO. 95-1894 

STAPLETON, J., Concurring: 

 I feel compelled to write separately because an 

accusation of personal participation in the atrocities of the 

Holocaust is a grave matter, and a judicial finding of such 

participation understandably carries with it extrajudicial, 

collateral consequences unrelated to citizenship and 

deportability. While I agree with the court that the government 

has carried its burden on six counts of its complaint, I 

conclude that the evidence of Stelmokas' participation in the 

Grosse Aktion (Great Action) is not clear, convincing and 

unequivocal, and that the district court clearly erred in finding 

otherwise. 

 To be sure, there is substantial evidence that 

Stelmokas was a member of a platoon of the 3rd Company of the 3rd 

Battalion of the Lithuanian Schutzmannschaft and was not on leave 

on the date of the Great Action. Moreover, there is substantive 

evidence that Lithuanians in military uniforms aided the Germans 

in the mass execution. It is a matter of speculation, however, 

whether all, some or none of Stelmokas' Schutzmannschaft 

Battalion participated. 

 On October 28-29, 1941, German troops, aided by 

"Lithuanian partisans," conducted an operation they referred to 

as the Great Action which resulted in the execution of 9,200 Jews 

from the ghetto in Vilijampole. On the morning of October 28, 

the Jews were lined up by the Jewish Ghetto Police, and the 

Germans culled out those who were and were not fit to work. 

Those not fit to work were marched to the "small ghetto," which 

was adjacent to Vilijampole, and the next day they were marched, 

in groups of five hundred at a time, to Fort IX and executed. 

They were buried in mass graves dug by Soviet prisoners of war. 

Two survivors from Vilijampole testified that they saw 

Lithuanians in military uniforms aid the Germans in the Great 

Action, but they did not identify whether the men were from 
Stelmokas' Schutzmannschaft Battalion or from some other 

Lithuanian group. 

 No testimony and no documentary evidence directly links 

Stelmokas or the 3rd Battalion to the Great Action. The district 

court, in finding participation by Stelmokas, relied largely on 

the opinion of Dr. Raul Hilberg that the entire 3rd Battalion 

must have participated in the Great Action. Dr. Hilberg's 

opinion was based almost entirely on two observations. First, he 

had "seen documents in which larger forces than one battalion 

were deployed to kill fewer than 10,000 people." App. at 411. 

From this, he inferred that in addition to the personnel of the 

Einsatzkommando 3, the German unit of security police which 

carried out the operation, at least 500 men, a full battalion, 

were required for the Great Action. He acknowledged, however, 

that the minimum number of men required would vary according to 

factors such as the terrain and the degree of resistance from the 

Jews. Second, there was a "shortage of manpower" because German 

and Lithuanian units stationed near Kaunas had been sent to fight 

the Soviets. Specifically, the majority of the German 11th 

Reserve Police Battalion and the entire 2d Lithuanian Battalion 

were in Byelorussia. Putting these two observations together, 

Dr. Hilberg concluded that Stelmokas' entire Battalion must have 

assisted in the Great Action. The balance of the 11th Reserve 

Police Battalion and the ghetto police would not, in his opinion, 

be sufficient in the absence of the entire 3rd Battalion of the 

Lithuanian Schutzmannschaft. 

 I do not question in the least Dr. Hilberg's 

qualifications as an expert in Holocaust history, nor do I doubt 

the conviction with which he believes Stelmokas participated in 

the Great Action. Nevertheless, I cannot conclude that his 

observations, by themselves, clearly, convincingly and 

unequivocally demonstrate that Stelmokas aided the Germans in 

their massacre of October 28th and 29th. Dr. Hilberg believed a 

full battalion was required based on the number of men used in 

mass executions elsewhere about which he had read. He did not, 

however, describe the circumstances of the other mass executions 

and admitted that the minimum requirement would vary according to 

local conditions and the resistance level. He did not identify 

any local conditions that would have made the Great Action a 

particularly labor intensive operation and candidly acknowledged, 

based on contemporary documentation, that no Jewish resistance 

was anticipated. He also testified that it was reasonable to 

assume that some segment of the available manpower would have to 

have been assigned to the responsibilities that occupied the 

available troops on a day to day basis, e.g., protection of 

facilities and communication and the maintenance of security. 

Given the uncertainty involved in estimating manpower needs based 

on other, perhaps dissimilar, situations and the reasonable 

assumption that there were competing manpower demands in the 

local area, it seems speculative to assert that the entire 3rd 

Battalion participated despite the presence of a portion of the 

11th Reserve Police Battalion and the ghetto police. 

 My concern, however, is not grounded solely in the 

sufficiency of Dr. Hilberg's testimony; as Stelmokas points out, 
the government's own evidence casts serious doubt on the 

inferences drawn by Dr. Hilberg. Certain documents suggest that 

a sizable contingent of Lithuanians not associated with the 

Sonderkommando was available to help in the Great Action, and 

that less than a full battalion of support troops may have been 

needed. To make my point, a little background regarding the 

organization of German police forces is helpful. 

 Following the occupation of Lithuania by the German 

Army, German occupation police moved in and kept order. One 

component of the German occupation police was the security 

police; the other component was the order police. The security 

police had mobile units called Einsatzgruppen, about the size of 

a battalion, and these were broken down into companies called 

Einsatzkommando and Sonderkommando. The Einsatzgruppen were in 

charge of exterminating Jews and other "undesirable" elements of 

the population. Einsatzgruppen A was assigned to Lithuania and 

other Baltic states, and its subdivision Einsatzkommando 3, 

commanded by Colonel Jaeger, operated in the area including 

Kaunas. The order police were much larger than the security 

police, and included the 11th Reserve Police Battalion mentioned 

by Dr. Hilberg. 

 A government exhibit indicates that in addition to 

Einsatzkommando 3, a sizable contingent of Sonderkommando was 

available in the Kaunas area. This exhibit, entitled "USSR 

Situation Report No. 19" and dated July 11, 1941, was prepared 

for the Chief of Security Police and has a section devoted to the 

situation in Kaunas. In this section, the report states that "We 

have retained approximately 205 Lithuanian partisans as a 

Sonderkommando, sustained them and deployed them for executions 

as necessary even outside the area." App. at 1861. The 

availability of nearly a half-battalion of Sonderkommando 

substantially undermines the conclusion that the entire 3rd 

Battalion of the Schutzmannschaft was necessary to carry out the 

Great Action. 

 In addition to this Situation Report No. 19, there is 

another contemporaneously prepared document that calls Dr. 

Hilberg's opinion into question. As I have noted, Colonel Jaeger 

commanded the Einsatzkommando 3, the unit of German security 

police assigned to the Kaunas area. Colonel Jaeger prepared a 

report, the Jaeger Report, which is dated December 10, 1941, and 

which refers to the Great Action and many other executions of 

Jews. Colonel Jaeger there wrote the following chilling lines: 

 The goal to make Lithuania "Jew free"

 could only be attained through the formation 

 of a mobile detachment with specially 

 selected men under the leadership of SS 

 Obersturmfuhrer Hamann who shared my goals

 completely and who would guarantee the 

 cooperation of the Lithuanian partisans and 

 the existing civil offices. 

 The carrying-out of such actions is, in 

 the first place, a question of organization. 

 . . . The Jews had to be collected in one or 
 in several locations. Based on the numbers 

 [of Jews] a place for the necessary pits had 

 to be found and dug up. . . . The Jews were 

 transported to the execution site in groups 

 of 500 and in intervals of at least 2 km. 

 What difficulties and nerve-racking work that 

 had to be accomplished is shown in the 

 following random example: 

 In Rokiskis, 3,208 people were to be 

 transported 4 1/2 km before they could be

 liquidated. In order to accomplish this work 

 in 24 hours, 60 of the 80 available 

 Lithuanian partisans had to be detailed for 

 transport duty and perimeter security. The 

 remainder, who had to be repeatedly relieved, 

 carried out the work with my men. . . . 

 Attempts to escape that happened here and 

 there were prevented entirely by my men and 

 with some danger to their lives. . . . Only 

 through skillful use of time was it possible 

 to carry out up to 5 actions in a week's time 

 and to handle the work that had accumulated 

 in Kaunas so that no bottlenecks occurred in 

 the official functions. 

 The actions in Kaunas itself, where 

 there were sufficient reasonably well-trained 

 partisans available, were virtually duck 

 shoots compared with the enormous 

 difficulties which were often encountered 

 elsewhere. 

 All leaders and men in my detachment in 

 Kaunas took an active part in the major 

 actions in Kaunas. 

 . . . 

App. 1133-34. 

 Colonel Jaeger reports the executions of thousands of 

Jews and hundreds of others in such an impersonal, matter-of-fact 

manner and with such pride that his account leaves one in a 

horror-driven state of shock. Nevertheless, the Jaeger Report, 

as documentary evidence, is important in the present context for 

a number of reasons. First, in the context of a somewhat smaller 

but nevertheless substantial mass execution, it provides a 

contemporary estimate of the manpower necessary to perform the 

grizzly task of mass execution from a German official having 

responsibility for carrying out those executions. The report 

indicates that the mass execution of 3,208 people at Rokiskis was 

carried out by Einsatzkommando 3 personnel with the assistance of 

only 80 "Lithuanian partisans." 

 Second, while Rokiskis provides an example of a mass 

execution with "enormous difficulties," the execution of "2007 

Jews, 2,920 Jewesses, and 4,273 Jewish children" in the course of 
the Great Action did not present comparable problems. App. at 

1129. 

 Putting these two pieces of evidence together, even if 

one assumes that the number of potential victims in the Great 

Action would require substantially more support from "Lithuanian 

partisans" than was employed in Rokiskis, Dr. Hilberg's 

insistence that a minimum of 500, in addition to the 

Einsatzkommando 3 personnel, seems questionable, at least in the 

absence of more explanation than he was able to give. 

 Finally, the Lithuanian partisans who in fact 

participated in the Great Action are described as "reasonably 

well trained." When one puts this together with the U.S.S.R. 

Special Report 19's indication that approximately 205 Lithuanian 

partisans had been formed into a Sonderkommando company 

specifically to be "deployed . . . for executions as necessary," 

the most likely inference is that at least a large segment of the 

need for Lithuanian participants during the Great Action were met 

by Lithuanians who were not from the Schutzmannschaft 3rd 

Battalion. In suggesting that this is the likely inference, I am 

not unmindful of Dr. Hilberg's opinion that the reference to 

"reasonably well trained partisans" in the Jaeger Report meant 

Schutzmannschaft personnel. The basis for that opinion, in its 

entirety, is found in the following excerpt from his testimony: 

 In this report, Jaeger is trying to 

 impress his superiors. That's a very common 

 phenomenon in reporting. And so he, first of 

 all, calls attention to the difficulties and 

 complexities of organizing such an operation. 

 He refers to thorough preparation of each 

 individual action and knowledge of the 

 conditions in the area in question. . . . 

 He then goes into some examples of towns 

 and then, referring on top of page 30 of the 

 English translation, he says that the actions 

 encompass itself a little bit easier because 

 there were well trained partisans, as he 

 calls them. Now what he is referring to, of 

 course, is the schutzmannschaft. And the 

 reference to the training can be explained by 

 the fact that right from the start [of the

 schutzmannschaft], June 28th, 1941, the call 

 went out for volunteers who had military 

 experience. In other words, these people 

 knew how to fire a weapon, they knew how to 

 hit their target. And for that reason, the 

 operation was, in his view, like shooting at 

 a parade. It was well coordinated and well 

 done. 

App. at 277, 277-78. Dr. Hilberg's inference is a plausible one. 

However, once one is aware that a group of Lithuanian partisans 

had been formed and were available specifically for this purpose, 

I believe another inference becomes the more plausible one. 
 I acknowledge that the inferences I suggest based on 

the Jaeger Report and Special Report No. 19 do not constitute 

clear, convincing and unequivocal evidence that Stelmokas did 

notparticipate in the Great Action. He may well have participated. 

It was the government's burden, however, to produce clear, 

convincing, and unequivocal evidence that Stelmokas didparticipate. In my 

view, it did not come anywhere close to 

carrying that burden. 

 While the district court reached its conclusion about 

Stelmokas's participation in the Great Action without reference 

to his failure to testify at the trial, it noted that it believed 

an inference could appropriately be drawn from that failure which 

confirmed its conclusion. I agree with the district court that 

the Fifth Amendment did not foreclose it from drawing a negative 

inference from Stelmokas's failure to explain what he was doing 

on October 28 and 29, 1941. As the Supreme Court cautioned in 

Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), however, a 

party's silence should not be given "more evidentiary value than 

[is] warranted by the facts surrounding [the] case." Here, 

Stelmokas stands accused of a number of different forms of 

conduct, any one of which would warrant the revocation of his 

citizenship. If Stelmokas had taken the stand and denied 

participation in the Great Action, he would have subjected 

himself to cross-examination that almost certainly would have 

established another ground for revocation. Under these 

circumstances, I do not believe any appropriate, negative 

inference from silence can boost Dr. Hilberg's speculative 

opinion into the realm of clear, convincing and unequivocal 

evidence. 

 Finally, I turn to the dissent's conclusion that there 

is insufficient evidence to support the district court's finding 

regarding Stelmokas's guarding of the Vilijampole ghetto. In 

contrast to the state of the record regarding Stelmokas's 

participation in the Great Action, I find the evidence supporting 

this finding to be clear, convincing, and unequivocal. 

 The finding at issue reads as follows: 

 The Court finds that the Government has 

 not established by clear, unequivocal, and

 convincing evidence that the shootings on 

 September 16-17, 1941 were carried out by 

 either the defendant or Schutzmannschaft 

 members under his command. However, the 

 Government has established by clear, 

 unequivocal, and convincing evidence that 

 defendant was commander of the ghetto guard 

 for a 24-hour period commencing September 16, 

 1941, at 1 p.m., that Jews in the ghetto were 

 subject to extreme deprivation, brutality,

 and arbitrary shootings during that period, 

 and that defendant was responsible for 

 enforcing the confinement of Jews in such 

 conditions. 

 On September 1, 1941, Stelmokas's Battalion Commander 
entered the following order: 

 TO THE 3rd AUXILIARY POLICE SERVICE BATTALION 

 Order Number 1, Secret 

 Kaunas, 1 September 1941 

 Operations Section 

 § 1. 

 I announce the Battalion's schedule of guard 

deployments and positions: 

Guard Post 

Number 

Guard 

duties 

Guard place 

of 

assignment 

Number on 

Duty 

Purpose 

 3 

Guard at 

the 

captured 

ammunition 

warehouse 

Vilijampole, 

VIII Fort 

 4 

To guard 

the 

ammunition 

warehouse 

 21 

"Ghetto 

guard" 

Vilijampole, 

Veliuonos 

street 

17 

 32 

Not to let 

a single 

Jew out of 

the closed 

quarter 
 Two weeks later, on September 15, 1941, the same 

Battalion Commander entered another order, section 1 of which 

made the following duty assignments: 

 Security and service duties for 16 September 

 of the current year: 

 Battalion Duty Officer Junior Lieutenant 

 TAMULAITIS, VYTAUTAS 

 Assistant to the Duty Officer - Corporal 

 KVARACIEJUS 

 Duty Clerk at the Battalion Headquarters -

 Corporate AUKSORAITIS 

 Guard Commander in Vilijampole - Junior 

 Lieutenant STELMOKAS 

 

 Guards from the 3rd Company 

While this order was lengthy and dealt with a variety of 

subjects, these were the only current duty assignments recorded. 

 The record discloses that the ghetto was located in a 

section of the city called "Vilijampole" and that "Vilijampole" 

was frequently used as a synonym for the ghetto. As Stelmokas 

stresses, the record also indicated, however, that Fort VIII, 

while in the area called Vilijampole, was not in the ghetto. 

Based on this evidence, Stelmokas suggests that the order 

assigning him as "Guard Commander in Vilijampole" is ambiguous -- 

that the assignment might have been merely to guard ammunition at 

Fort VIII. 

 While I agree with Stelmokas that the government had 

the burden of proving Stelmokas's participation in the 

persecution of Jews by clear, convincing and unequivocal 

evidence, his suggestion of a significant ambiguity in the record 

is unpersuasive. Dr. Hilberg and the September 1st order itself 

indicate that in the context of guard duty, the words "Fort VIII" 

was generally included in the designation of that guard post in 

order to distinguish duty there from the duty of guarding the 

ghetto. More importantly, Stelmokas commanded a platoon 

consisting of something over 30 men and it is far more likely 

that he was given responsibility for Guard Post 21 or both Guard 

Posts 21 and 3, than that he commanded only the four guards at 

Fort VIII. Finally, and most importantly, the September 15th 

order reports only two command assignments: the "Battalion Duty 

Officer" and the "Guard Commander at Vilijampole." The 

suggestion that this order would record the identity of the 

commander of a four man unit at Fort VIII and omit entirely any 

mention of the Guard Commander of the ghetto strikes me as too 

far fetched to raise even a reasonable doubt. 
United States v. Jonas Stelmokas, No. 95-1894 

ALDISERT, Circuit Judge, dissenting: 

 Again we are faced with a denaturalization proceeding 

brought by the Office of Special Investigations (OSI) against an 

American octogenarian for events that took place during the Nazi 

occupation of Europe more than 50 years ago. Although stripping 

an American of his citizenship is a civil proceeding, the effect 

is so drastic that the government's burden is "substantially 

identical with that required in criminal cases--proof beyond a 

reasonable doubt." Klapprott v. United States, 335 U.S. 601, 

611-612 (1949). 

 The predicate acts that form the basis of OSI prosecutions 

take place in the midst of what must be acknowledged to be the 

most craven and pusillanimous crime ever sponsored by a nation-- 

the Holocaust effectuated by the German Third Reich in the 1930s 

and 1940s. This case is no exception. 

 The inhuman Nazi brutality that underlies these cases makes 

especially arduous our obligation to require the government's 

high burden of proof, but the law commands that we do just that, 

and rightly so. Indeed, faced with a backdrop of such monstrous 

and inhuman past behavior, a court's responsibility in 1996 to 

insure the maximum protection of the law constitutes America's 

best response to the Nazi juggernaut that crushed all semblance 

of justice and freedom, and millions of innocent lives a half 

century ago. 

 The district court revoked the citizenship of Jonas 

Stelmokas because he joined and served in the Lithuanian 3rd 

Auxiliary Police Service Battalion in 1941. At the time, he was 

a 25-year-old junior lieutenant. The court ruled in favor of the 

government on six separate, but related counts. It determined 

that Stelmokas: voluntarily assisted the enemy in persecuting 

civil populations, particularly on September 16, 1941 and October 

28-29, 1941 (Count I); voluntarily assisted German forces in 

military operations against the United States and its allies 

(Count II); voluntarily joined and participated in a movement 

hostile to the United States (Count III); advocated or acquiesced 

in conduct contrary to civilization and human decency (Count V); 
lacked good moral character by virtue of his Schutzmannschaftmembership 

(Count VI); and willfully misrepresented material 

facts in his application for admission to the United States as a 

displaced person (Count IV). I would reverse the district 

court's determination on each count. Accordingly I dissent. 

 What we as U.S. Circuit judges know as men and women 

requires us to despise the loathsome conduct of the Nazis in 

World War II. Knowledge of the Third Reich's intentional 

brutalization and annihilation of innocent civilians is ingrained 

in our senses as a revulsion of the worst genocide of the modern 

era, if not of all time. Our role as appellate judges, however, 

is not to proclaim our visceral reactions to the horrors of 

history. Rather, we must confine ourselves to the trial record in 

this case and decide, as a dispassionate reviewing court, whether 

the OSI has proved by "clear, unequivocal, and convincing 

evidence which does not leave the issue in doubt" that Stelmokas 

in fact committed the alleged acts and that such conduct supports 

a denaturalization proceeding. Schneiderman v. United States, 

320 U.S. 118, 158 (1943). This the OSI has not done. 

 The OSI's case against Stelmokas does not rest on direct 

evidence but solely on a series of rickety inferences that do not 

rise to the high level of proof demanded of the government. To 

this unimpressive framework has been added what the district 

court describes as adverse inferences drawn from Stelmokas' 

decision to exercise his Fifth Amendment privilege to refrain 

from testifying at trial. See Dist. Ct. Op. at 47. The Supreme 

Court has established that a defendant's Fifth Amendment plea in 

a denaturalization case constitutes the basis for adverse 

inferences only to the extent those inferences are supported by 

"substantial evidence manifested in the record." Baxter v. 

Palmigiano, 425 U.S. 308, 317-18 (1976). The OSI's case against 

Stelmokas lacks such substantial evidence and is hobbled by 

several fundamental weaknesses, which together are fatal to the 

OSI's attempt to meet the unusually high burden of proof 

required. 

 First, the OSI has been unable to present even one eyewitness to support its charges. Second, the OSI failed to 

present any direct evidence or any legitimate circumstantial 

evidence of participation in proscribed activity that would, as 

required, logically and unerringly support an incriminating 

inference. Instead, the OSI relied on as many as five layers of 

inference to conclude that: (1) that Stelmokas was responsible 

for confining Jews in the Kaunas, Lithuania ghetto when two Jews 

were shot on September 17, 1941 and (2) he participated in the 

massacre of thousands of Jews in the Grosse Aktion at the same 

location on October 28-29, 1941. Third, the OSI supported its 

allegations by introducing undated documents, without 

accompanying testimony as to their relevance and effect on 

immigration officials at the relevant times. Fourth, and 

especially fatal to its case, the OSI failed to present testimony 

from Displaced Persons Commission personnel or consular 

officials--as it has in all similar cases--that Stelmokas' nondisclosure of his 3rd Battalion service in fact impacted or would 

have impacted the immigration officials' decision-making process 
and rendered him ineligible for a visa. For these reasons, I 

would reverse the district court's judgment of denaturalization. 

 I. 

 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. 

 By the end of the six-year struggle to bring down the Nazi 

empire, an estimated 40 million Europeans had lost their lives-- 

in combat, under the bombs that obliterated cities, through 

Hitler's methodical genocide, or simply from hunger, cold and 

disease. At the end of the war, the state of Germany had ceased 

to exist. An innumerable mass of civilians, freed prisoners and 

the first waves of 13 million refugees from Eastern Europe 

wandered the country. Nearly eight million Germans were 

homeless. People bartered household necessities for food and 

clothing, often subsisting on little more than 1,000 calories a 

day. 

 The onset of a chill between the Soviets and the Western 

allies sealed the division of the country between two hostile 

occupation zones. By 1947 it was becoming clear that Stalin had 

no intention of fulfilling his promise, made to Roosevelt and 

Churchill at Yalta, to hold free elections in Poland. Where the 

Red Army stood, Soviet power reigned, straining westward. A 

Communist insurgency, supported from bases in Bulgaria, Albania 

and Yugoslavia, threatened the vulnerable British-backed monarchy 

in Greece. Soviet pressure mounted against Turkey for control of 

the Black Sea straits. 

 Such was the political climate surrounding the displacedpersons camps when Stelmokas applied for his visa in 1949 at 

Hamburg, Germany. Refugees were caught in a vicious political 

struggle between the two superpowers. With American and Soviet 

diplomatic armies posturing eyeball-to-eyeball, the de factodivision of 

Germany already had taken place. The die having been 

cast in both the west and the east by the occupying armies, 

Central Europe remained the primary political battleground for 

almost a decade after V-E Day. 

 It is against this complex and volatile political background 

that I consider the legal issues arising from Stelmokas' visa 

application. Indeed, the facts underlying the legal issues must 

be viewed as they existed in the harsh environment of a battered 

and shattered post-war Europe, not as they might be viewed from 

the cozy environment of a 1996 federal courtroom. 

 I agree with the government that the wartime Lithuanian and 

German documents generated in Lithuania and obtained by the OSI 
from archives are admissible. However, I question whether these 

documents alone are sufficient to support the government's high 

burden of proof. 

 II. 

 I turn first to Count I, the linchpin of the government's 

entire case against Stelmokas. In Count I the government alleges 

that Stelmokas voluntarily assisted the Nazis in persecuting 

civilian populations. The OSI anchors this contention on the 

events of September 16-17, 1941 and October 28-29, 1941. 

 A. September 16-17, 1941 

 I accept that Order #10 of the 3rd Auxiliary Police Service 

Battalion, dated September 15, 1941, indicates that "Junior 

Lieutenant STELMOKAS" was detailed as "Guard Commander in 

Vilijampole." A1316. From this, and from evidence that two Jews 

were killed in the Kaunas ghetto between September 16 and 17, 

1941, the district court reached the following conclusion: 

 The Court finds that the Government has not established 

 by clear, unequivocal, and convincing evidence that the 

 shootings on September 16-17, 1941 were carried out by 

 either the defendant or Schutzmannschaft members under 

 his command. However, the Government has established 

 by clear, unequivocal, and convincing evidence that 

 defendant was commander of the ghetto guard for a 24- 

 hour period commencing September 16, 1941, at 1 p.m., 

 that Jews in the ghetto were subject to extreme 

 deprivation, brutality, and arbitrary shootings during 

 that period, and that defendant was responsible for 

 enforcing the confinement of Jews in such conditions. 

F.F.60 

 A conclusory inference predicated on a clear and narrowly 

established fact might have been sufficient to inculpate 

Stelmokas. However, an inference teased from a series of other 

inferences may not substitute for hard evidence where the 

government's burden is so high. And that is the extent of the 

government's case and that is also why the district court found 

that "the government has not established by clear, unequivocal, 

and convincing evidence that the shootings on September 16-17, 

1941 were carried out by either the defendant or Schutzmannschaftmembers 

under his command." F.F. 60. The district court went 

further, however, and concluded that Stelmokas was commander of 

the ghetto guard and enforced confinement of Jews in horrible 

conditions. Because the government did not meet its high burden 

of proving these aspects of its allegations, the district court 

erred. 

 

 1. 

 Unlike virtually every other case prosecuted by the Office 

of Special Investigations, here no direct evidence shows that 

Stelmokas confined Jews to the ghetto during the days in 

question. Indeed, the direct evidence presented in this case is 

limited to the following: That deployed in the Kaunas, Lithuania 
area were at least two Lithuanian army units under the control of 

the Nazis--the 3rd Auxiliary Police Service Battalion (also 

described hereafter as Schutzmannschaft), in which Stelmokas was 

an officer, and a Sonderkommando company of approximately 205 

Lithuanian partisans, in which Stelmokas was not a member; that 

Stelmokas was listed as "Guard Commander in Vilijampole" of the 

3rd Battalion; that shootings of Jews in the ghetto by Nazis and 

Lithuanians frequently occurred; and that two Jews were killed 

in the ghetto on September 17. 

 It is uncontradicted that "Vilijampole" was a neighborhood 

containing not only the ghetto, but also surrounding areas 

including Fort VIII, which was situated 100 meters or more from 

one border of the ghetto. It bears repeating that although 

Stelmokas is accused of commanding the Vilijampole guard on this 

day, there is no direct proof that he commanded the ghetto guard 

and was responsible for enforcing the confinement of Jews in the 

ghetto. We are left to infer that a single written order that 

Stelmokas was "Guard Commander in Vilijampole" demonstrates that 

the 3rd Battalion, and not the Sonderkommando company, was the 

ghetto guard on this day. We are left to speculate whether the 

3rd Battalion was not merely assigned to guard adjacent areas, 

including bridges, warehouses, ammunition depots etc. A518-A519. 

The evidence leaves unanswered the question of whether the unit 

patrolled parts of the Vilijampole neighborhood that did not 

include the ghetto--an area that also encompassed non-Jewish 

residences, businesses and an ammunition warehouse--the ghetto 

itself, or both. To repeat, there was no direct evidence 

supporting the district court's determination and the quality of 

circumstantial evidence was so inferior that it did not satisfy 

the government's high burden of proof. 

 No evidence supported the district court's conclusion other 

than the fact that Stelmokas was assigned as "Guard commander of 

Vilijampole" at the time two Jews were killed in the ghetto. No 

evidence, beyond his assignment, indicated that he in fact served 

with, or commanded, the ghetto guard. No evidence demonstrated 

that Stelmokas engaged in the conduct or duties the district 

court attributed to ghetto guards generally. F.F. 49-60. 

 2. 

 Alternatively, even if there was sufficient evidence to show 

that Stelmokas served with the ghetto guard, the district court 

failed to heed the teaching of Fedorenko v. United States, 449 

U.S. 490, 512 n. 34 (1981) ("The solution to the problem...lies, 

not in 'interpreting' the Act to include a voluntariness 

requirement that the statute itself does not impose, but in 

focusing on whether the particular conduct can be considered 

assisting the persecution of civilians. Thus, an individual who 

did no more than cut the hair of female inmates before they were 

executed cannot be found to have assisted in the persecution of 

civilians."). The cases that interpret Fedorenko in the context 

of Nazi occupations, for the most part, emphasize the distinction 

between active and passive collaboration with the Nazis. Of 

necessity, each case is fact specific and turns on the particular 

evidence in the case. In United States v. Koreh, 59 F.3d 431 (3d 
Cir. 1995), for example, we concluded that the defendant who had 

served as editor of pro-Nazi newspapers containing many antiSemitic articles assisted in the persecution of Hungarian Jews 

through his activities. In United States v. Sprogis, 763 F.2d 

115 (2d Cir. 1985), a case dealing with military or constabulary 

activity under Nazi direction, with facts more onerous than those 

in the case at bar, affirmed the denial of the denaturalization 

complaint brought by OSI. 

 The court in Sprogis emphasized the difference between 

active participation in hostile acts against civilians and 

passive accommodation of the Nazis. The defendant Sprogis 

admittedly served as a member of the local Latvian police, 

sometimes used by Nazis "to locate, arrest, guard, transport or 

execute Jews, and to confiscate their property." Id. at 117. 

Sprogis testified that he voluntarily joined the police force. 

Sprogis was Assistant Precinct Chief and eventually Police Chief. 

Id. at 118. Sprogis conceded he signed and prepared certain 

documents admitted into evidence demonstrating that he paid 

farmers to transport Jews to camps for confinement and 

persecution, of which he was aware. Id. He testified he was "the 

highest ranking officer" present at a police station where nine 

Jews were "forcibly detained." He conceded, and later 

contradicted his concession, that he "ordered other policemen to 

guard the prisoners." Id. at 119. Sprogis was in Litene on the 

day 200 Jews were executed en masse and contended he was there at 

the insistence of the district police chief and "only to witness, 

on behalf of the police," the execution of a photographer. 

Sprogis testified that as he was leaving Litene he saw 100 to 150 

prisoners marching toward the camp where the photographer had 

been executed. Testimony by other witnesses indicated that 

"Sprogis, at the direction of the Nazis, ordered the arrest of 

all Jews in the area. . . . that the [police force of which he 

was a part], including Sprogis, participated in transporting and 

guarding approximately 200 Jews just prior to their execution . . 

. ." Id. at 120. 

 As in the case at bar, in Sprogis the government sought 

denaturalization under 8 U.S.C. §§ 1451(a) and 1427, with 

allegations grounded in § 10 of the Displaced Persons Act 

("DPA"). The government claimed Sprogis' citizenship was 

"illegally procured" because he failed to disclose in his 

immigration papers that he assisted in persecuting Soviet 

prisoners of war, Jews and other civilians while a Latvian police 

officer. The government also asserted that his citizenship was 

procured through misrepresentations concerning his participation 

in persecution. 

 Confronted with such evidence, the court affirmed the 

district court's conclusion and stated: 

 to prevail under any of its theories, the

 government had to show that Sprogis assisted in 

 the persecution of Jews or other civilians and 

 that the government had not satisfied its

 substantial burden of proving that assistance by 

 'clear, unequivocal, and convincing' evidence 

 which does 'not leave the issue in doubt.' 
 

Sprogis, 763 F.2d at 120 (citing Fedorenko v. United States, 449 

U.S. 490, 505 (1981), and quoting Schneiderman v. United States, 

320 U.S. 118, 125 (1943)). The court reiterated the district 

court's finding of "no credible evidence that Sprogis personally 

arrested or ordered the arrest of a Jew or walked the streets . . 

. with the demeanor of a uniformed or armed conqueror . . . he 

performed the duties of an ordinary police officer." Sprogis, 763 

F.2d at 120-21. The court stated: 

 Finally, he was present at the police station during the 

 detention of the prisoners and he allowed their 

 incarceration to continue. However, these were not acts of 

 oppression. They do not amount to the kind of active 

 assistance in persecution which the DPA condemns. 

 

Id. at 122, (citing Laipenieks v. I.N.S. 750 F.2d 1427, 1432 (9th 

Cir. 1985) (assistance in persecution under 8 U.S.C. § 

1251(a)(19), a companion statute to the DPA, requires "proof of 

personal active assistance or participation in persecutorial 

acts")). 

 The court of appeals further noted that in each of even the 

less-than-clear cases of assistance in persecution, "the 

individual condemned as a persecutor had actively participated in 

some act of oppression directed against persecuted civilians." 

Id. at 122. The court went on to acknowledge Sprogis' passive 

accommodation of the Nazis, but stated, 

 There is no clear evidence that he made any 

 decision to single out any person for arrest and 

 persecution or that he committed any hostile act 

 against any persecuted civilian. Sprogis' passive 

 accommodation of the Nazis, like that of so many 

 other civil servants similarly faced with the 

 Nazis' conquest of their homelands and the horrors 

 of World War II, does not, in our view, exclude 

 him from citizenship under the DPA. 

 

 Id. 

 The district court's conclusion that the government 

established by clear, unequivocal, and convincing evidence that 

defendant was commander of the ghetto guard during the relevant 

period and thereby responsible for enforcing confinement of Jews 

is based only upon the fact that he was "assigned" as "Guard 

Commander in Vilijampole." Even if such a conclusion were 

supported by the evidence, and I do not believe it was, it would 

be insufficient grounds on which to denaturalize a citizen under 

the reasoning of Sprogis. Accordingly, the evidence regarding 

Stelmokas' conduct on September 17, 1942 was not sufficient to 

sustain the district court's conclusion in Count I.

 B. October 28, 1941 

 During the Grosse Aktion of October 28-29, 1941, more than 

9,000 Jews were massacred in Kaunas, Lithuania. The OSI contends 

that Stelmokas participated in this slaughter, again on the basis 
of very limited direct evidence. The only direct evidence is 

that two witnesses stated in 1994, drawing upon their childhood 

memories 54 years past when they were 12 and 14 years of age, 

that they recall seeing men in Lithuanian army uniforms 

participating in the massacre. The record indicates that these 

Lithuanian soldiers could have been members of either the 

Sonderkommando company or the 3rd Battalion. No evidence 

confirms that these Lithuanian soldiers were members of the 3rd 

Battalion, of which Stelmokas was a member, or that he 

participated in any massacre. Yet because a large number of Jews 

was involved, Dr. Raul Hilberg, the OSI's expert witness, 

concluded that the Nazis must have needed help to do their 

killing and that Stelmokas must have participated in the 

massacre. In so doing, Dr. Hilberg pieces together a rather 

tenuous inferential chain: 

 Facts: Thousands of Jews were slaughtered in the ghetto on 

October 28, 1941; two eye-witnesses testified 54 years later that 

soldiers wearing Lithuanian uniforms participated. Such soldiers 

could have been members of the Sonderkommando or the 

Schutzmannschaft. 

 First Inference: Because many Jews were killed on that 

date, the Nazi occupiers must have had insufficient numbers to 

conduct the operation themselves. 

 Second Inference: Being unable to conduct the operation 

themselves, the Nazis must have ordered Lithuanian uniformed 

soldiers to assist. 

 Third Inference: Because the Nazis had to enlist such help, 

and because two eye-witnesses testified that they saw men in 

Lithuanian uniforms, the 3rd Battalion must have been one of the 

two Lithuanian army units commanded by the Nazis to assist. This 

is either a non sequitur or an invalid disjunctive syllogism. 

 Fourth Inference: Because the Nazis had to enlist the 3rd 

Battalion, all battalion officers must have participated. 

 Fifth Inference: Assuming that the 3rd Battalion was the 

group ordered by the Nazis to assist (Inference Three), and that 

officers in that battalion participated (Inference Four), then 

Stelmokas, as an officer, must have participated. 

 The ultimate inference urged by the OSI is that Stelmokas 

participated in the Grosse Aktion. For an inference to be 

legitimate, as set forth in note 3 ante, the reasoning upon which 

it rests must pass from some evidentiary fact (the datum) to a 

conclusion related in some way to that evidentiary fact and 

accepted only because that fact has been established. Here, 

however, the conclusion (Stelmokas participated) is not directly 

related to the datum (many Jews were killed by soldiers and some 

soldiers wore Lithuanian army uniforms). Instead, the conclusion 

requires that one meander through four other inferences to reach 

the datum. One cannot make this stretch in the law, piling 

inference on inference on inference, and still meet the high 

burden of "clear, unequivocal, and convincing evidence which does 

not leave the issue in doubt." 

 That men in Lithuanian uniforms were allegedly present 

simply cannot support the bold conclusion that these men must 

have been members of the 3rd Battalion, let alone that one of 
these men must have been Stelmokas. The men in Lithuanian 

uniforms very well could have been members of the Sonderkommando 

company. A comparable chain of quintuple inferences such as that 

relied upon by the government and district court in this case, 

could not, as a matter of law, support a charge of shoplifting, 

let alone bolster the revocation of a petitioner's citizenship--a 

punishment tantamount to exile or banishment. Accordingly, I 

agree with Judge Stapleton and I accept his analysis in the 

concurring opinion that the government did not meet its high 

burden of proof that Appellant participated in the Grosse Aktion 

of October 28-29, 1941. 

 For the reasons presented above, I would reverse the court's 

determination on Count I. 

 III. 

 In Count II the government alleges that Stelmokas was 

ineligible for a visa because he voluntarily assisted the enemy 

forces in their operations against the United Nations. The heart 

of this contention is that a finding of mere service in the 3rd Battalion 

(Schutzmannschaft) and in the 91st Light Flak 

Replacement Unit of the German Army was sufficient to meet the 

government's high burden of proof required for 

denaturalization. I find this argument unpersuasive for two 

reasons. 

 First, the government relies on part II of the International 

Relief Organization (IRO) Constitution, incorporated into the 

Displaced Persons Act. That provision precludes certain people 

from being considered for naturalization as follows. 

 Persons who will not be the concern of the organization: 

 2. Any person who can be shown: 

 . . . . 

 

 (b) to have voluntarily assisted the enemy forces since the 

 outbreak of the second world war in their operations against 

 the United Nations. 

D.P.A. § 2(b), Pub. L. 80-774, ch. 647, 62 Stat. at 1009 

(incorporating IRO Constitution, Annex I, Part II). An 

explanatory regulation later adopted by the Displaced Persons 

Commission (DPC) interprets "operations against the United 

Nations" as follows: 

 [Anyone who] has voluntarily borne arms in armed forces or 

 auxiliary organizations against the United States or its 

 Allies on the Western Front (including North Africa and 

 Italy) during that period of World War II beginning December 

 8, 1941; a person shall not be deemed so to have served 

 voluntarily if he establishes that he was compelled against 

 his will to serve in the armed forces or auxiliary 

 organizations, against the United States or its Allies on 

 the Western Front. 

8 C.F.R. § 702.8(f) (my emphasis). The 3rd Battalion served in 

the occupied Baltic countries, not on the Western Front, and the 
complained of activities took place before December 7, 1941. 

Therefore, Stelmokas does not appear to be in that category of 

persons who assisted the enemy in military operations against the 

United States or its Allies in the Western Front. 

 Moreover, commentary to the IRO Constitution provides: 

 Mere continuance of normal and peaceful duties, not 

 performed with the specific purpose of aiding the enemy 

 against the Allies or against the civil population of 

 territory in enemy occupation, shall not be considered to 

 constitute "voluntary assistance." 

IRO Constitution, Annex I, Part II, 62 Stat. 3037, 3052. 

 At trial, direct testimony was adduced that normal 3rd 

Battalion duties included guarding stationary installations such 

as bridges, warehouses, government buildings, peatbogs, 

ammunition depots and communications facilities. A283-284. 

Official interpretations of Section 2(b) of the IRO Constitution, 

especially those limiting improper activities to those performed 

on the Western Front, required the OSI to produce more evidence 

than mere membership in a military or constabulary unit to 

support its contention in Count II. See also the discussion in 

Part IV, post, exempting from "movement which is or has been 

hostile to the United States" service in military forces or local 

constabularies. Under these circumstances I would hold that the 

government failed to produce sufficient evidence to sustain Count 

II. 

 IV. 

 In Count III the government charges that Stelmokas 

participated in a movement hostile to the United States. The 

district court concluded that mere participation in the 3rd 

Battalion was sufficient to warrant denaturalization and that the 

government met its burden by demonstrating that Stelmokas 

volunteered to serve in the 3rd Battalion, a LithuanianSchutzmannschaft, 

an organization on the U.S. government's 

Inimical List. On this issue, I find unavailing both the 

government's argument and the district court's conclusion. 

 Although the government placed an Inimical List in evidence, 

A1644, it presented no evidence that mere membership in any 

organization on the List was sufficient to deny an applicant a 

visa. Indeed, in addressing "the materiality issue or rejections 

under the inimical list," OSI trial counsel represented to the 

district court that it was necessary to present "the testimony of 

someone who was--who operated or applied it . . . ." A723. The 

district court made clear that explanatory testimony was 

mandatory: "It seems to me, with the list and with someone 

explaining how the list was utilized at the time of Mr. 

Stelmokas' application, yes, the answer is, it might [be 

relevant]." Id. This exchange clearly demonstrated the need for 

official explanation of how the List would have applied to 

persons seeking displaced-persons status. 

 Yet no such explanatory testimony was forthcoming. The only 

evidence introduced was an Inimical List in the nude. Although 

Appellant's counsel stipulated that it was an Inimical List and 
in effect at the relevant times, he did not stipulate that the 

DPC or the Consular Service would deny visas on the basis of mere 

membership in an organization on the List. More important, the 

record is totally barren of testimony from any witness that 

membership in the Schutzmannschaft, in and of itself, would have 

been sufficient to deny displaced-person status in 1949. 

 Further, the federal regulation which governs § 13 of the 

Displaced Persons Act limits the disqualification of applicants 

for displaced-persons status to any person who: 

 (d) 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; such a 

 movement includes but is not limited to the communist, Nazi 

 or Fascist parties or political or subversive groups of an 

 ideological character similar to that of the aforementioned 

 parties; . . . . 

8 C.F.R. §702.8(d) (my emphasis). By cable dated April 20, 1949, 

Secretary of State Dean Acheson interpreted "movement" in § 13 of 

the Act not to include military forces or local constabularies. 

Appellant's Br., Exhibit A. Significantly, at the time Stelmokas 

made his application in July, 1949, the Secretary of State's 

directive was in full force and effect. Given that the 3rd 

Battalion operated very much as the local constabulary, 

Stelmokas' membership in that organization should not for 

purposes of § 13 be construed as membership in a "movement" 

hostile to the United States and its allies. 

 The government failed to produce testimony describing how 

the List was used. There is not a smidgeon of evidence to 

indicate that mere membership in an organization named on the 

Inimical List was a sufficient basis on which to deny Stelmokas' 

visa application. Moreover, Secretary Acheson's interpretation 

of "movement" indicates that Stelmokas' membership in the 3rd 

Battalion, a military force or constabulary, was not sufficient 

to trigger disqualification for displaced-persons status under 

the Displaced Persons Act. Accordingly, the government has 

failed to meet its high burden of proving that Stelmokas, by mere 

membership in a local military or constabulary organization, 

voluntarily participated in a movement hostile to the United 

States. I would therefore reverse the court's conclusion on 

Count III. 

 V. 

 At the time of Stelmokas' immigration in July, 1949, U.S. 

State Department regulations prohibited issuing visas to any 

alien "who has advocated or acquiesced in activities or conduct 

contrary to civilization and human decency on behalf of the Axis 

countries." 22 C.F.R. § 53.33(j). In Count V the government 

alleges that under this regulation Stelmokas was ineligible for a 

visa. The government contends that he was ineligible first, 

because he failed to leave the 3rd Battalion and second, because 

he persecuted civilians on September 16-17 and October 28-29, 

1941. I will address these arguments in turn. 

 The district court determined that Stelmokas' "failure to 
leave the Schutzmannschaft or to act on behalf of the Jews 

constituted acquiescence in conduct contrary to civilization." 

The court thus concluded that the government had met its burden 

on Count V. Dist. Ct. Op. at 55-56. The court erred. More than 

mere membership in the Schutzmannschaft is necessary to prove 

conduct contrary to civilization and human decency. Indeed, the 

Supreme Court teaches that mere membership is not enough and that 

there must be proof of actual participation in such conduct. The 

Court "focusing on whether particular conduct can be considered 

assisting in the persecution of civilians." Fedorenko v. United 

States, 449 U.S. 490, 512-513 n.34 (1981). Although it is 

undisputed that Stelmokas was a member of the 3rd Battalion, the 

record provides no evidence that he participated in conduct that 

amounted to persecution of civilians. It is conduct in an 

organization, not mere membership, that determines culpability. 

 The government contends in Count V that Stelmokas acquiesced 

in conduct contrary to human decency by participating in the 

persecution of Jews on September 16-17 and October 28-29, 1941. 

As I have indicated in my discussion in Part II, the government 

did not meet its high burden of proving that Stelmokas actually 

participated in persecuting Jews on these dates. Professor 

Hilberg's testimony is significant in this respect: "I did not 

see in any of the sequence of documents . . . anything that would 

indicate [sic (implicate?)] Stelmokas directly in the arrest, 

killing of Jews, but he is in the company in which these things 

are going on." A626. Passive accommodation of the Nazis, as 

distinguished from personal, active assistance in persecution, 

does not constitute conduct contrary to civilization and human 

decency. Fedorenko, 449 U.S. at 512-513 n.34. See also United 

States v. Sprogis, 763 F.2d 115, 122-123 (2d Cir. 1985); Ofsua v. 

McElroy, 933 F. Supp. 237, 243-244 (S.D. N.Y. 1995.) 

 The government has not demonstrated that Stelmokas' mere 

membership in the 3rd Battalion constituted advocacy of, or 

acquiescence in, conduct contrary to civilization. Moreover, the 

record is devoid of any competent or persuasive evidence that 

Stelmokas played a role in the persecution of Jews in September 

and October, 1941. Thus, on Count V the government has failed to 

meet the high burden of proof required for denaturalization. 

Accordingly, I would reverse the district court's determination 

on this issue. 

 VI. 

 In Count VI the government charges Stelmokas with illegally 

procuring his citizenship because his membership in the 3rd 

Battalion and his participation in the persecutions of September 

and October, 1941 showed a lack of good character. The district 

court found in favor of the government on the basis of Stelmokas' 

voluntary enlistment in the Schutzmannschaft and direct 

assistance and participation in the persecution of Jews in 

Lithuania. The court concluded that these factors establish a 

lack of good moral character. Dist. Ct. Op. at 56-57. 

 As I previously set forth in Part II, the government failed 

to prove that Stelmokas was voluntarily and directly involved in 

the persecution of Jews in September and October 1941. Moreover, 

this court recently affirmed a district court's conclusion that 
determination of a person's moral character must rely on 

something more than superficial evidence of a person's status or 

title: 

 [T]he very essence of meaningfully determining a person's 

 moral character is not simply to look at their status or 

 title . . . but to examine the actor's conduct and the 

 circumstances surrounding it. We refuse to revoke 

 citizenship by finding that a person prima facie lacks good 

 moral character simply because he held the title of 

 concentration camp guard without some further showing that 

 the person engaged in some morally reprehensible conduct and 

 did so voluntarily. 

United States v. Schiffer, 831 F. Supp. 1166, 1199 (E.D. Pa. 

1993), aff'd 31 F.3d 1175 (3d Cir. 1994.) Absent evidence of any 

illegal conduct and based on nothing more than Stelmokas' mere 

membership in the 3rd Battalion, the government could not prove 

and the district court improperly concluded that he lacked the 

good moral character required for citizenship. Accordingly, the 

court erred in granting judgment to the government on Count V. 

 VII. 

 In Count IV the government alleges that Stelmokas' order and 

certificate of naturalization should be revoked 

 on the ground that such order and certificate of 

 naturalization were illegally procured or were procured by 

 concealment of a material fact or by willful 

 misrepresentation. 

8 U.S.C. § 1451 (a). In its complaint the government contended 

"that in failing to list his wartime residences and occupation, 

Stelmokas made a willful and material misrepresentation when 

applying for Displaced Person status as defined in § 10 of the 

Displaced Persons Act." Compl. ¶¶ 57-58, 62. The contention was 

an attempt to prevail on the "procured by" clause of § 1451(a), 

but the district court found against the government on that 

claim. See note 1, ante. The court found in favor of the 

government's claim brought under the "illegally procured" clause, 

concluding that: 

 Defendant's misrepresentations and concealments to the DPC 

 and the U.S. vice-consul were material because they 

 concealed the fact that defendant had assisted the enemy in 

 the persecution of civilians, had voluntarily assisted the 

 military operations of the Axis powers, and had been a 

 member of a movement hostile to the United States and 

 its form of government. 

Conc. Law 32. 

 From this the court concluded that Stelmokas was ineligible 

to immigrate pursuant § 10 of the DPA; that such ineligibility 

rendered his entry unlawful; and because his entry was unlawful, 

"his naturalization as a United States citizen on April 11, 1955 

was illegally procured." Conc. Law 33. 

 The government's reliance on the "illegally procured" clause 
must not be evaluated in a vacuum. The district court's ultimate 

determination is the conclusion of a polysyllogism with many 

premises omitted. The polysyllogism begins with a major premise 

stating that §10 of the DPA barred from immigration any person 

who willfully misrepresented material facts in order to gain 

entry as a displaced person. The argument next contends that 

Stelmokas made misprepresentations and because the 

misrepresentations were material, he was ineligible for entry; 

therefore, Stelmokas' actual entry was unlawful and his 

naturalization "illegally procured." The critical inquiry is 

whether the government met its important threshold burden of 

proving a misrepresentation as defined in the Displaced Persons 

Act. 

 A. 

 Our starting point is the statute: 

 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. 

D.P.A. § 10, Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948). 

When Stelmokas applied for citizenship in 1949, eligibility 

investigations and reports were made only by the Displaced 

Persons Commission (DPC). The Commission defined 

misrepresentation for the purpose of § 10 of the Act: 

 Misrepresentation. "Misrepresentation for the purpose of 

 gaining admission into the United States" refers to a 

 willful misrepresentation, oral or written, to any person 

 while he is charged with the enforcement or administration 

 of any part of the Displaced Persons Act, of any matter 

 material to an alien's eligibility for any of the benefits 

 of the said Act. 

 8 C.F.R. § 700.11. It is not disputed that Stelmokas 

misrepresented his wartime residences and occupation. Thus, the 

first inquiry is whether those misrepresentations met the legal 

standard of materiality. 

 The Supreme Court established the current test in Kungys v. 

United States: 

 [A] concealment or misrepresentation is material if it `has 

 a natural tendency to influence or was capable of 

 influencing, the decision of' the decision making body to 

 which it was addressed . . . We hold, therefore, that the 

 test of whether Kungys' concealments or misrepresentations 

 were material is whether they had a natural tendency to 

 influence the decisions of the Immigration and 

 Naturalization Service. 

485 U.S. 759, 770-772 (1988)(citing, inter alia, Weinstock v. 

United States, 231 F.2d 699, 701-02 (D.C. Cir. 1956). I concede 

that Stelmokas' failure to disclose his wartime military status 

would have had a natural tendency to influence immigration 

decisions. However, as the Court made clear in Kungys and United 

States v. Gaudin,___ U.S. ___, 115 S.Ct. 2310, 2319 (1995), 

materiality is a mixed question of law and fact. As in all mixed 
questions, the definition of the legal component must come first, 

followed by a presentation of facts against which the legal 

component must be measured. 

 In denaturalization cases, equally important to establishing 

a material statement is the presentation of evidence that the 

misrepresentation procured the order and certificate of 

naturalization. See Gaudin, 115 S.Ct. at 2314. This is the 

factual component of the mixed question. Establishing at least a 

modicum of evidence on the procurement element is essential to 

the government's burden of proof. 

 In Kungys, a prototype of OSI prosecution, the defendant 

twice misrepresented his date and place of birth: once in 1947, 

when applying for a visa, and again in 1954, when petitioning for 

naturalization. The Court approved dismissal of the government's 

complaint against Kungys because misrepresentations about his 

place of birth, wartime occupations and residence were not shown 

to be unequivocally material. In addition to being required to 

demonstrate materiality as a matter of law, i.e., that a material 

statement was made, the government was obligated to demonstrate 

that Kungys' citizenship status was procured by his material 

misrepresentations. The Government seems to ask this court to 

apply different meanings to the term "procured" in the two 

clauses of § 1451(a). 

 The government suggests that it has different ultimate 

burdens depending on whether "procured" applies to 

naturalizations that are "illegally procured" or to those 

"procured by concealment of a material fact or by willful 

misrepresentation." There is no rational support for the 

suggestion that Congress intended such an anomalistic reading of 

the same word in the same section of the same statute. There is 

absolutely no rational support for the notion that the government 

is not required to produce evidence showing precisely how 

Stelmokas was "unlawfully admitted" and whether his

naturalization was in fact "illegally procured." If under the 

second clause in § 1451 the government must show that the 

naturalization was "procured by" the alleged misrepresentation, 

as the Court held in Kungys, then under the first clause 

certainly the government must demonstrate that Stelmokas was 

ineligible and therefore unlawfully admitted. 

 The traditional procedure by which the government has shown 

ineligibility, used in every case it has brought excepting this 

one, is to proffer testimony that the applicant's naturalization, 

or Displaced Persons status, resulted from the alleged 

misrepresentations. Even if we do not require the government to 

prove the visa or naturalization certificate would not have been 

granted but for the misrepresentations, until today courts have 

not permitted the government to proceed without any evidence 

whatsoever on the question of whether the misrepresentations 

procured the applicant's citizenship. 

 Indeed, the combined opinions of Justices Scalia and Brennan 

in Kungys, and Justice Scalia's opinion for a unanimous court in 

Gaudin, indicate that the government must establish by factual 

evidence how immigration officials interpreted and administered 

the immigration law during the period in question. The 
government must show not only that the misrepresentation would 

have a "natural tendency to influence" the DPC analyst's 

decision, but also that the misrepresentation did in fact 

influence that decision. Thus, Justice Scalia's opinion for the 

Kungys Court points out that § 1451(a) of the denaturalization 

statute contains four independent requirements: 

 the naturalized citizen must have [1] misrepresented or 

 concealed some fact, [2] the misrepresentation or 

 concealment must have been willful, [3] the fact must 

 have been material, and [4] the naturalized citizen 

 must have procured citizenship as a result of 

 misrepresentation and concealment. 

485 U.S. at 767 (my emphasis). 

 The requirements above must similarly be established in this 

case to prove the § 10 Displaced Persons Act allegations made by 

the government. The repeated use of the word "procured" in both 

grounds for revoking naturalization under § 1451 makes clear 

Congress' intent to impose on the government the fourth 

requirement--that some nexus be established between the 

misrepresentation or unlawful conduct and the applicant's receipt 

of the naturalization certificate--regardless of the clause under 

which the government files suit. 

 I have acknowledged that the first three of the Kungysrequirements 

were met here. In view of the Court's definition of 

materiality, Stelmokas' misrepresentations were material to the 

extent that they had "a natural tendency to influence the 

decisions." Id. at 768. The critical lack of proof in this case 

lies with the fourth requirement--that the misrepresentations 

did, in fact, result in ineligibility. Without this critical 

factual base, the argument may not properly proceed to subsequent 

prosyllogisms and episyllogisms culminating in "unlawfully 

admitted" and "illegally procured." 

 The fourth requirement was not controverted in Kungysbecause the 

government produced the testimony of Ambassador 

Seymour Maxwell Finger, a former vice-consul at Stuttgart, 

Germany, who described how immigration officials had interpreted 

and administered the immigration law during the period in 

question. See United States v. Kungys, 793 F.2d 516, 530-31 (3d 

Cir. 1986). Justice Brennan, who furnished the fifth vote for 

the majority in Kungys, emphasized in his concurring opinion that 

such testimony was essential. 485 U.S. at 783. Thus, the 

precise holding in Kungys was that only after presentation of a 

prima facie factual case and a demonstration of materiality was 

the government entitled to a presumption that the applicant was 

ineligible for citizenship. Justice Brennan's concurrence 

eloquently articulates his concern that the "precious right" of 

citizenship not be revoked unless the government has met its full 

evidentiary burden: 

 I agree with this construction of the statute. I 

 wish to emphasize, however, that in my view a 

 presumption of ineligibility does not arise unless the 

 Government produces evidence sufficient to raise a fair 

 inference that a statutory disqualifying fact actually 
 existed. It is this fair inference of ineligibility, 

 coupled with the fact that the citizen's 

 misrepresentation necessarily frustrated the 

 Government's investigative efforts, that in my mind 

 justifies the burden-shifting presumption the Court 

 employs. Evidence that simply raises the possibility 

 that a disqualifying fact might have existed does not 

 entitle the Government to the benefit of a presumption 

 that the citizen was ineligible, for as we have

 repeatedly emphasized, citizenship is a most precious 

 right, . . . and as such should never be forfeited on 

 the basis of mere speculation or suspicion. 

Id. at 783 (citation omitted). 

 Fatal to the OSI's argument in the case before us is the 

government's failure, in Justice Brennan's words, to "produce 

evidence sufficient to raise a fair inference of ineligibility." 

Id. The absence of factual evidentiary support regarding 

ineligibility based on Stelmokas' statements renders wholly 

speculative the conclusion that such misrepresentations led to an 

unlawful admission to the United States and ultimately illegally 

procured his naturalization. 

 I find no inconsistency between the teachings in the 

opinions of the Court in Kungys and Gaudin, both authored by 

Justice Scalia. In Kungys, a denaturalization case involving the 

second "procured by" clause of § 1451, the Court required 

presentation of factual evidence that "the naturalized citizen 

must have procured citizenship as a result of misrepresentation 

or concealment." 485 U.S. at 767. It follows inexorably that 

when relying on the "illegally procured" clause, the government 

must also present evidence demonstrating that the admittee was 

ineligible for admission. In Gaudin the Court stressed the 

necessity of developing the factual basis of "materiality" and 

emphasized that materiality is "a mixed question of law and fact 

[in which a characterization] for one purpose does not govern its 

characterization for all purposes." 115 S.Ct. at 2319. 

Similarly, the Court in Kungys stressed the importance of 

presenting facts on the issue of illegal procurement of 

citizenship by referring to the testimony of Ambassador Finger on 

how immigration officials interpreted and administered 

immigration law during that period. Making reference to this in 

Gaudin, Justice Scalia described Kungys as an example where "the 

appellate court's newly asserted standard of materiality could be 

applied to the facts [of materiality] by the appellate court 

itself, instead of requiring remand to the District Court for 

that application." Id. at 722; 115 S.Ct. at 2314. 

 In every successful OSI prosecution that I have researched, 

the government raised this fair inference by presenting evidence 

in two discrete respects: (1) evidence detailing wartime 

activities of the defendant; and (2) testimony from appropriate 

U.S. officials that had these activities been known to the 

Displaced Persons Commission analysts, the defendant's 

application would have been denied or subjected to additional 

investigation. Indeed, every OSI prosecution that I researched 
contained testimony by officers of the Displaced Persons 

Commission, consular officers or both describing the effect that 

a particular misrepresentation would have had on the analysts 

examining the application. This essential testimony sets forth 

whether the authorities would have granted, denied, or referred 

the application for further investigation, and it sets forth a 

prima facie case on whether the applicant's alleged

misrepresentations procured the visa and naturalization decisions 

made by the officers. 

 In the leading Supreme Court cases that inform our 

denaturalization jurisprudence, the OSI presented witnesses who 

testified that the visa would not have been issued had the true 

facts been known. In Fedorenko, vice consul Kempton Jenkins 

testified that the petitioner's service as an armed guard made 

him ineligible for a visa. Fedorenko, 449 U.S. at 498-99. As 

discussed above, in Kungys, Ambassador Finger described how 

immigration officials interpreted and administered the 

immigration law during the relevant period. Kungys, 793 F.2d at 

530-531. Clearly the Supreme Court has underscored the necessity 

for "testimony about how the Act was interpreted by the officials 

who administered it." Fedorenko, 449 U.S. at 511. 

 In short, in every prosecution brought by the OSI that I 

researched, including the Supreme Court decisions central to our 

jurisprudence in denaturalization matters, the OSI presented 

evidence not only that the alleged misrepresentations had a 

natural tendency to influence, but also that they did in fact so 

influence the visa decision--i.e., that the visa was procured by 

the applicant's misrepresentations. Such evidence was starkly 

absent in the present matter and this absence is fatal to the 

OSI's argument that Stelmokas' naturalization was "unlawfully 

procured." 

 My personal research may be faulted. Therefore, at oral 

argument I asked counsel for the OSI to examine the records of 

his office to determine whether any other OSI prosecutions have 

been presented without testimony by a representative of the 

Displaced Person Commission, the International Relief 

Organization or the consular service as to the effect of the 

misrepresentation on the applicant's procurement of citizenship. 

Counsel responded, "I will send you a letter one way or another, 

Judge Aldisert." Although the government's counsel filed a 

supplemental brief following oral argument, the brief did not 

supply the information requested by the court. Thus, I will draw 

the appropriate inference. 

 B. 

 I have conceded that Stelmokas' misrepresentation of wartime 

activities would have had the "natural tendency to influence the 

decision" of DPC officials. Therefore, the government met its 

burden of setting forth the legal component of the mixed 

materiality question. However, the government has not met its 

high burden of proof in this case because it failed to produce 

evidence that Stelmokas' misrepresentations procured the decision 

of the DPC analyst and the naturalization officials. The 

government failed to produce any prima facie evidence that the 

visa and naturalization decisions were procured by the alleged 
unlawful conduct. 

 Although no such evidence was presented to the district 

court, the court nonetheless concluded: 

 33. Defendant was ineligible to immigrate to the United 

 States pursuant to DPA § 10. His entry to the United 

 States for permanent residence in 1949 was therefore 

 unlawful and his naturalization as a United States 

 citizen on April 11, 1995 was illegally procured. 

 

Dist. Ct. Op. at 54-55. Here the court conflated a question of 

law with a question of fact. It decided, and properly so, that 

the misrepresentation had a natural tendency to influence the 

decision making. This was the question of law. It then decided, 

as a matter of fact, that the misrepresentation did in fact 

influence and procure the government's visa decision and, 

therefore, subsequently procured unlawful naturalization. The 

court erred here because the record was barren of any testimony 

regarding what factors procured his visa, let alone which types 

of misrepresentations would have made Stelmokas ineligible for 

entry at the time he applied. That the procurement element in § 

1451 is a question of fact is set forth in Kungys in both the 

opinion of the Court and the concurring opinion of Justice 

Brennan; it is also established in Gaudin and reflected in OSI's 

universal practice of presenting testimony by officials as to the 

immigration policy of the United States at the relevant time. 

 By way of analogy, a trial judge in a murder case would hear 

the prosecution's evidence that, as a matter of law, a bullet 

fired from a defendant's Colt .45 had the natural tendency to 

cause death. However, the prosecution still would have to prove 

that, as a matter of fact, a .45 bullet was a factor in the 

decedent's death. Likewise, as an experienced judge reviewing 

matters having to do with State Department or immigration policy, 

I can decide as a matter of law the legal component of a mixed 

question of law and fact. But it is absolutely necessary that, 

before I may properly perform that judicial function, some facts 

be developed against which the legal standard can be measured. 

 A fortiori, I confess ignorance as to the factual overlay of 

discretionary powers vested in immigration officials in the 

turbulent post-war years of the late 1940s. I suggest that my 

distinguished judicial colleagues on this court, on the district 

court and on the Supreme Court also lack this information. Such 

crucial factual information is not the stuff of which judicial 

notice is made; it is the stuff that must be presented as record 

evidence at a trial. Yet the district court determined as a 

matter of law, without even a prima facie showing regarding 

relevant United States immigration policy, that "Defendant was 

ineligible to immigrate to the United States pursuant to the DPA 

§ 10." Dist. Ct. Op. at 54. 

 The OSI failed to present any evidence on this count. 

Therefore, the district court was left to speculate about whether 

the DPA analyst in 1949 would have referred to the Inimical List, 

how the analyst would have interpreted it, and whether the 

analyst would have decided to grant, deny, or further investigate 

Stelmokas' visa application based on that List. Because the OSI 
failed to present any evidence, the court could only conjecture 

that the analyst would have thought conditions in occupied 

Lithuania justified a finding of ineligibility. Because the OSI 

failed to present any evidence, the court had to surmise that the 

analyst would have found the 3rd, 11th or 253rd Battalion of the 

Lithuanian National Labor Defense Battalions actively assisted 

the Nazis in the persecution of civilian populations. 

 In short, the government failed to present any testimony by 

witnesses to prove an actual, a probable, or even a possible 

impact on the analyst's eligibility decision in July, 1949. 

Therefore, we are left to hypothesize. Hypothesizing is no 

substitute for proof, especially where the burden is 

"substantially identical with that required in criminal cases-- 

proof beyond a reasonable doubt." Klapprott v. United States, 

335 U.S. 601, 612 (1949). Therefore, the judgment of unlawful 

procurement on Count IV must be reversed. 

 

 VIII. 

 This too must be said. In American jurisprudence there is 

no analogue to permitting a trial on events that occurred a halfcentury in the past. Indeed, with the exception of murder cases, 

all criminal and civil proceedings are rigorously circumscribed 

by fixed statutes of limitations. Such statutes preclude the 

institution of criminal or civil complaints after a finite number 

of years. Similarly, in equity petitions, stale actions are 

barred by the doctrine of laches. 

 The policy that undergirds our statutory and judicial 

limitations on such actions is rooted in an understanding that 

with the passage of time, witnesses disappear and memories fade. 

Such a policy reflects appreciation for the reality that, because 

our memories are fragile and inevitably compromised by the 

ravages of time, at some point they can no longer be considered 

trustworthy for presentation under oath as "the truth, the whole 

truth and nothing but the truth." It may well be that a half 

century after a Displaced Persons Commission's analyst examined 

the visa application of Jonas Stelmokas, witnesses are either no 

longer available or incapable of testifying as to the immigration 

practices of the United States in 1949. This is the price that 

the government must pay for bringing any case so long after these 

events took place. 

 Given contemporary concepts of due process, it is doubtful 

that one could be tried in 1996 for a murder that took place in 

1941. Nevertheless, the judiciary continues to permit the 

prosecution of stale denaturalization cases like this one. 

Perhaps this is because such cases embody a fundamental tension 

between two venerated precepts of the American legal tradition. 

One precept dictates that those responsible for the Holocaust be 

punished: that they be sought out in America and either 

extradited to Israel or denaturalized, deported and ultimately 

punished by the sovereignty where the despicable acts took place. 

The other precept demands full compliance with the letter and 

spirit of the American judicial process; it demands that a 

prosecution be held to every aspect of its burden of proof, 

particularly in so important a matter as a denaturalization 
proceeding. Because such cherished values are at stake, decision 

by judicial fiat must never replace decision-making based on the 

presentation of evidence. Thus, when we come to the intersection 

of such esteemed precepts, we must be especially vigilant to 

protect the procedures that lie at the heart of our judicial 

process, lest in our zeal to avenge the victims of the Holocaust, 

we unwittingly permit our judicial traditions to be victimized. 

 Those of us who sacrificed years of our youth in World War 

II to combat the forces of tyranny are understandably sensitive 

to these issues. We are sensitive to the danger that fundamental 

values of our glorious American tradition, including the 

protections guaranteed by our legal system which we fought to 

preserve, might be compromised in a fervor to punish one who may 

have aided the bestiality of our common enemy. We are especially 

sensitive when that effort to punish is initiated more than half 

a century after the last shot in anger was fired. Certainly 

those who violate the rules of society must be punished, but 

society itself must never breach its own rules to achieve that 

end. 

 To continue the prosecution of octogenarians (and soon 

nonagenarians) is, to be sure, a political decision. Such 

decisions are properly left to the exclusive discretion of our 

executive branch. Nevertheless, if these prosecutions have not 

already pushed the envelope beyond traditional notions of due 

process, soon they will do just that. There is no precedent in 

our tradition that permits a prosecution on events that occurred 

so far in the past. Although I have grave doubts about the 

constitutionality of so stale a prosecution, I do not meet the 

due process issue here because I would grant relief on other 

grounds. 

 For all the foregoing reasons, I dissent. I would reverse 

the judgment of the district court ordering denaturalization.