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. e du/thir dc ir c uit_1996/25UNITED 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 Pennsylvan ia (D.C. Civil No. 92-03440)

Argued June 10, 1996

BEFORE: STAPLETON, GREENBERG, and ALDISERT, Cir cuit Judges

(Filed: November 12, l996)

Eli M. Rosenbaum Susan L. Siegal
Robert G. Seasonwei n (argued)
Ronnie L. Edelman Office of Special I nvestigations United States Depar tment of
Justice
Criminal Division 1001 G Street, N.W. Washington, DC 2053 0

Attorneys for Appellee

John R. Carroll (ar gued)

Carroll & Carroll
400 Market Street
Suite 850 Philadelphia, PA 19 106

Attorneys for Appellant

OPINION OF THE COURTGREENBERG, Circuit Judge.

I. PROCEDURAL AND FACTUAL HISTORY Defendant Jonas Stelmokas appeals from a f inal judgment entered August 2, 1995, in favor of the government on six counts of its seven-count complaint seeking judgment on se ven discrete bases revoking Stelmokas's citizenship and ordering him to
surrender his certificate of naturalization. The c ourt entered judgment in favor of Stelmokas on a seventh count o f the complaint. The government initiated this action on Ju ne 15, 1992, by filing the complaint against Stelmokas in the di strict court pursuant to section 340(a) of the Immigration and N ationality Act of 1952, as amended ("INA"). 8 U.S.C. § 1451(a). The government sought judgment revoking and setting aside the judg ment of the
United States District Court for the Eastern Distri ct of Pennsylvania which admitted Stelmokas to citizenshi p in 1955. It further sought judgment canceling Stelmokas's certi ficate of
naturalization. In its complaint, the government alleged t hat Stelmokas was born in Moscow, Russia, and resided in Lithuani a commencing
in 1930. From 1936 until 1939 Stelmokas attended t he Lithuanian army officers' school in Kaunas, Lithuania, from wh ich he graduated in 1939. From August 1939 until July 194 0 Stelmokas was an officer in the Lithuanian army. The complaint alleged that in June 1941 th e armed forces of Nazi Germany occupied Lithuania, which oc cupation continued until August 1944. During the occupation , the Germans organized armed Lithuanian units known as Schutzman nschaft to assist the Germans in the occupation and in the per secution of Jews and other unarmed persons on the basis of thei r race, religion, national origin, or political opinion. T he Germans also organized Schutzmannschaft in other countries who arrested, detained, assaulted, and murdered victims in Poland , Ukraine, Byelorussia, and other areas. The Lithuanian Schut zmannschaft in Kaunas assisted the Germans in confining and murder ing Jews. The government contended that Stelmokas was a voluntary member and officer of the Schutzmannschaft and advocated, assi sted, participated, and acquiesced in the murder and pers ecution of
Jews and other unarmed civilians in Lithuania. Aro und August 1944, at the time the German occupation of Lithuani a 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 St ates 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 therefor e was eligible to immigrate to the United States. In connection w ith his application, a DPC analyst interviewed Stelmokas. He did not inform the analyst that he had served in the Schutz mannschaft or the Luftwaffe. Rather, Stelmokas falsely claimed t hat he had been a teacher in Seda, Lithuania, from July 1940 u ntil August 1943. He claimed that he then was unemployed in Ka unas untilJuly 1944, and was a laborer in Dresden, Germany, f rom 1944 until

March 1945. The complaint alleged that in 1949 the DPC regarded
the Schutzmannschaft to be "inimical" to the UnitedStates, meaning it was a hostile movement. The complaint further stated that, in reli ance on Stelmokas's misrepresentations, the DPC analyst con cluded 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 Uni ted States. In connection with that application, Stelmokas repe ated to an American vice-consul in Hamburg, Germany, the benig n wartime history that he had related to the DPC analyst and omitted his actual wartime employment history. Based on Stelmo kas's false representations, the vice-consul approved Stelmokas 's application
for a visa. Stelmokas then entered the United Stat es as a displaced person and permanent resident on August 3 1, 1949. The complaint asserted that on or about No vember 12, 1954, Stelmokas filed an application for naturaliza tion with the Immigration and Naturalization Service. Again, Ste lmokas misrepresented under oath his personal history by c laiming that the only organization to which he belonged before 1 945 was the Lithuanian Boy Scouts. Thus, he concealed his memb ership in the Schutzmannschaft and the Luftwaffe. On April 11, 1 955, the district court granted his petition for naturalizat ion. The government requested that the court re voke Stelmokas's naturalization for the following reason s: (1) he illegally procured his naturalization because he wa s ineligible for a visa to enter the country as he had assisted in persecuting civilian populations (Count I); (2) he illegally pr ocured his naturalization because he was ineligible to enter t he country as he voluntarily had assisted enemy forces during Wor ld 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 Replacemen t Unit he was ineligible to enter the country because he had been a member of and participated in movements hostile to the UnitedStates (Count III); (4) he illegally procured his naturalization because he had misrepresented his wartime service to the DPC and t o the viceconsul and thus was ineligible to enter the country (Count IV); (5) he illegally procured his naturalization becaus e he was ineligible for a visa as he had advocated or acquie sced in activities or conduct contrary to civilization and human decency on behalf of Axis countries during World War II andthus was ineligible to enter the country (Count V); (6) he i llegally 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 c ountry (Count VI); and he illegally procured his naturalization b y concealing and misrepresenting material facts, i.e., his servi ce 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 entr y into theUnited States as a displaced person. However, he r efused to

answer the allegations in the complaint regarding h is wartime
activities as he claimed "that his answers could be used against him in criminal proceedings in the United States an d other countries." The government then moved to compel St elmokas to answer the complaint on the ground that Stelmokas c ould not rely
on the Fifth Amendment to refuse to answer. On April 16, 1993, the district court gran ted the government's motion as it concluded that either the sections of federal law under which Stelmokas feared prosecutio n were inapplicable to him or the statute of limitations b arred prosecutions under them. Thus, the court concludedthat
Stelmokas did not face a real and substantial threa t of prosecution in the United States. The court also f ound that
Stelmokas did not face a real and substantial threa t of prosecution in "other countries," and thus it had n o need to determine whether the Fifth Amendment applied to fo reign prosecutions. The court, however, protected Stelmo kas by ordering that his answer be filed under seal. Stel mokas never complied with the order and did not file an amendedanswer. Furthermore, at a deposition on August 4, 1993, Ste lmokas pleaded the Fifth Amendment and refused to answer questions germane to
this case.
The court conducted a bench trial from Feb ruary 27, 1995, until March 3, 1995. At the outset of the tr ial Stelmokas's attorney pointed out that Stelmokas hadpleaded 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 c omprehensive memorandum opinion dated August 2, 1995. In its op inion the court set forth the background of Stelmokas's appli cation to come to the United States and his obtaining citizenship. The court noted that citizenship is a precious right which on ce conferred may not be revoked lightly. Consequently, the gove rnment in a denaturalization proceeding must prove its case by clear, unequivocal, and convincing evidence so as not to l eave the issue, i.e., the basis for denaturalization, in dou bt. Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1 547 (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 ar e complied with. Consequently, every certificate of citizensh ip is granted on the condition that the government may revoke it if it was not issued in accordance with the applicable requiremen ts. 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 citi zenship: that the citizenship had been "illegally procured" or "p rocured by concealment of a material fact or by willful misrep resentation." 8 U.S.C. § 1451(a). The court then indicated that citizenship is "illegally procured" when obtained without complian ce with thestatutory requirements for naturalization. Fedoren ko, 449 U.S.

at 506, 101 S.Ct. at 747. When Stelmokas was natur alized in 1955, the INA required that he reside continuously in the country for at least five years after being lawfully admitt ed 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 autho rized 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 Nation s or voluntarily assisted the enemy forces since the out break of World War II in their operations against the UnitedNations were not displaced persons. DPA § 2(b), 62 Stat. 1009, 3051-52 (incorporating by reference International Refugee O rganization Constitution's definition of displaced person). Se e Fedorenko, 449 U.S. at 495 & n.3, 101 S.Ct. at 741 & n.3. Add itionally, DPA § 13 prohibited the issuance of visas to "any perso n who is or has been a member of, or participated in, any movem ent which is
or has been hostile to the United States or the for m of government of the United States." 62 Stat. 1014. Section 10 of the DPA provided that any "person who shall willful ly make a misrepresentation for the purpose of gaining admiss ion 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 o f 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 a nd human decency on behalf of the Axis countries" during Wor ld War II.
The court also indicated that when Stelmokas was na turalized in 1955, the law provided that citizenship could be co nferred only on persons "of good moral character, attached to th e 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 th e INA provided that citizenship procured by willful concealment or misrepresentation of a material fact must be revoke d. 8 U.S.C. §

1451. The district court made an evidentiary rul ing in its opinion that Stelmokas challenges on this appeal. It noted that Stelmokas had pleaded the Fifth Amendment in his an swer and had refused on Fifth Amendment grounds to answer questi ons at his deposition. Furthermore, Stelmokas had not testifi ed at trial. The court held that Stelmokas's attorney's statemen t at the outset of the trial that Stelmokas "may waive the p rivilege" was not a waiver of the privilege against self-incrimin ation, but was the opposite, since it was not a statement that the privilege was
waived. The court then held that since the case wa s civil rather than criminal it, as the finder of fact, could infe r from Stelmokas's invocation of the privilege against sel fincrimination that his testimony would have been un favorable. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.C t. 1551, 1558 (1976). The court indicated, however, that while i t could drawadverse inferences from Stelmokas's claim of the pr ivilege

against self-incrimination, it would not base its f indings of fact on adverse inferences. Rather, the court woul d 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 prelimi narily noted that the government had called four witnesses, two experts on the Holocaust, Dr. Raul Hilberg and Michael MacQueen, a nd two survivors of the Holocaust in Lithuania, David Levi ne and Abe Malnick. In addition, the government introduced nu merous documents into evidence. Stelmokas did not call an y witnesses
but did introduce three documents into evidence. T he court pointed out that Hilberg was a particularly credibl e 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 Sovie t 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 aut hentic. Indeed, Hilberg testified that he was not aware of a single World
War II Soviet Union archival document that was a fo rgery. The court concluded that the government "amply establis hed the authenticity and trustworthiness of the documents i n evidence." The court then related Stelmokas's persona l history prior to the German invasion, including his graduat ion from military academy and his service as an officer in t he Lithuanian Army and the Soviet Red Army when the Soviet Union annexed Lithuania in 1940. The court explained that the Ge rmans took over Lithuania within a few days of their attack on June 22, 1941, and that the German army was followed by a po lice unit known as Einsatzgruppen, which implemented the Germ an policy of murdering the Jews. The court related that a segme nt of the indigenous Lithuanian population cooperated with th e Einsatzgruppen in the murder of the Jews. Starting in late June 1941, the Germans be gan organizing Lithuanians who had fought against the S oviet Union into volunteer police battalions. The Germans cont rolled these units, which became known as the Schutzmannschaft. Their function was to guard installations and prisoners, and they guarded the Kaunas ghetto. The Schutzmannschaft as sisted in the murder of Jews and other persons. The court found that on July 28, 1941, Ste lmokas voluntarily enlisted in the Schutzmannschaft and wa s appointed platoon commander in the 7th Company. The court tr aced Stelmokas's various assignments in the Schutzmannsc haft, a process made possible by the meticulous record keep ing of the Schutzmannschaft units, which court opinions demons trate was consistent with the Germans' practice during World War II of recording their murderous conduct in specific detai l. See, e.g., United States v. Koziy, 540 F. Supp. 25, 27 (S.D. F la. 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 ha d been transferred to Germany where he served in the 91st Light Flak Replacement Unit of the Luftwaffe. The records in evidence showthat Stelmokas was in a military hospital in German y 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 commande r of the ghetto guard for at least a 24-hour period commenci ng on September 16, 1941, at 1:00 P.M., and, accordingly, that he participated in confining the Jews to an area in wh ich they were regularly subjected to extreme deprivation, brutali ty, and arbitrary shootings. The court then found, through a painstaking analysis of the Schutzmannschaft records, that Stel mokas's battalion took part in the Grosse Aktion of October 28 and October 29, 1941, which involved the murder of prec isely 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. T he court also made findings that Stelmokas participated in anti-p artisan
actions and served in the Luftwaffe. The court found that when Stelmokas applie d for displaced person status he did not inform the DPC a nalyst of his Schutzmannschaft and Luftwaffe service, and that he misrepresented his employment and places of residen ce for the period of July 1940 until March 1945. The court al so noted that the Lithuanian Schutzmannschaft appeared on a "List of Organizations Considered Inimical to the United Sta tes" issued by the DPC Headquarters in Frankfurt, Germany. The co urt found that

Stelmokas made false statements under oath when he sought his visa application, because he misrepresented his war time
residences and did not reveal his Schutzmannschaft or Luftwaffeservice.
The court found that he obtained his visa because o f the misrepresentation. The court did not find, how ever, that

Stelmokas made false statements when he was natural ized.
The court then discussed the adverse infer ences to be drawn from Stelmokas's claim of the privilege again st selfincrimination. It emphasized, however, that the fi ndings 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 reve aled that he voluntarily joined the Schutzmannschaft and served in it from July 1941 until mid-1944, when he was transferred t o Germany to serve in the 91st Light Flak Battalion; he was comm ander of the ghetto guard at Kaunsas in September 1941; he parti cipated in the murdering of Jews in the Grosse Aktion and in fight ing against anti-German partisans; and he made false representa tions to both the DPC analyst and the vice-consul regarding his w artime activities, particularly his service in the Schutzm annschaft and the Luftwaffe, to facilitate his immigration to the United

States.
The court then set forth its conclusions o f law. It reiterated that the government had to prove its cas e by clear, unequivocal, and convincing evidence, but that unde r 8 U.S.C. §1451(a) Stelmokas's certificate of naturalization m ust be

canceled and his citizenship revoked if his citizen ship was "illegally procured" or "procured by concealment of a material fact or by willful misrepresentation." It also poi nted out that Stelmokas could not have procured his citizenship l awfully in 1955 if his admission to permanent residence in 194 9 had not been lawful. 8 U.S.C. § 1427; Fedorenko, 449 U.S. at 51 4-16, 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 ass isted the enemy in persecuting civilian populations. Consequ ently, Stelmokas's entry into the United States as a perma nent resident was unlawful and he had procured his citizenship un lawfully. SeeFedorenko, 449 U.S. at 512, 101 S.Ct. at 750 ("a n individual's service as a concentration camp armed guard -- whet her voluntary or involuntary -- made him ineligible for a visa"). The court then held that Stelmokas also had been ineligible f or a visa because he voluntarily had assisted enemy forces du ring 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 entr y as a permanent resident was unlawful and he had procuredhis citizenship unlawfully. The court next held that t he
Schutzmannschaft was a movement hostile to the Unit ed States, so that Stelmokas was barred from entering the United States because of his membership in it under DPA § 13, 62 Stat. 10 14. Consequently, he had procured his citizenship illeg ally. The court held that DPA § 10, 62 Stat. 101 3, barred Stelmokas from entering the country for permanent r esidence because he willfully had misrepresented material fa cts to gain admission. In particular, he concealed his Schutzm annschaft and Luftwaffe service from the DPC analyst and the vice -consul. These concealments were material because they misre presented the facts that he had assisted the enemy in the persecu tion of civilians, voluntarily assisted the Axis powers in their military operations, and had been a member of a movement hos tile to the United States and its form of government. The cour t found that these misrepresentations would have a natural tende ncy to influence the DPC and the vice-consul in making the ir 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 St ates v. Kowalchuk, 773 F.2d at 493. The court next held that Stelmokas had pro cured his citizenship unlawfully because he was not entitled to a visa to enter the country as a permanent resident as he hadadvocated or acquiesced in activities or conduct contrary to civ ilization and human decency on behalf of the Axis countries contr ary to the regulations then in effect. The court also held th at he did not qualify for naturalization because he lacked good m oral character when he was naturalized, so that he had procured hi s citizenship unlawfully. 8 U.S.C. § 1427(a)(3); 8 U.S.C. § 1101 (f). Thecourt held that Stelmokas lacked good moral charact er because he

voluntarily joined the Schutzmannschaft, enforced t he confinement
of the Jews in the brutal conditions of the Kaunas ghetto, and was on duty when his battalion assisted in the Gros s Aktion. The court held that the government had not established its case in only one respect. Under the INA, procu ring citizenship "by concealment of a material fact or b y 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 t o apply, as distinguished from concealment made to obtain a vis a. Accordingly, the court held that the misrepresentat ions to the DPC analyst and to the vice-consul could not apply to the concealment count with respect to procuring citizen ship. The
court therefore held that the concealment count fai led because the government did not establish that Stelmokas's s tatements in connection with his naturalization willfully concea led facts or included material misrepresentations of fact. The court ended its opinion by reiterating that Stelmokas's citizenship could be revoked only on th e basis of clear, unequivocal, and convincing evidence. Conse quently, the government had a heavy burden in the case. The cou rt then emphasized that there was no doubt but that Stelmok as voluntarily joined the Schutzmannschaft in 1941 and served in i t until mid1944, when he was transferred to a Luftwaffe unit i n Germany. The court noted that he was the commander of the gh etto guard and was on duty in Kaunas during the Gross Aktion, when his battalion assisted in the massacre of 9,200 Jews. Furthermor e, the court stated that there was no doubt that he fought anti- German partisans later in the war, and that he willfully m isrepresented his wartime activities when he applied for admissio n to this country. For all these reasons, the court revoked his citizenship. Stelmokas then appealed.

II. DISCUSSION Stelmokas raises four issues on this appea l. He contends that: (1) the district court erred in dra wing adverse inferences based on his Fifth Amendment plea; (2) t he district court erred in admitting as ancient documents recor ds made during the German occupation of Lithuania and certain othe r wartime documents; (3) the government failed to establish i ts case by clear, unequivocal and convincing evidence so as no t to leave its allegations regarding his wartime activities in dou bt; and (4) his alleged misrepresentations regarding his wartim e employment
and residence were not shown to be material. We wi ll discuss these contentions in the order presented.

A. The privilege against self-incrimina tion

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 rea l and substantial threat of domestic and foreign prosecut ion. Yet wedo not understand how the alleged error prejudiced him because

the district court, though overruling his plea of t he privilege against self-incrimination, did not sanction him fo r persisting with that plea. The court did not strike Stelmokas 's answer, deem the allegations of the complaint admitted, ent er a default judgment against him, preclude him from presenting witnesses including even himself, or hold him in contempt. S ee 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 h is testimony would have revealed had he testified. Of course, a s we shall demonstrate, the court could have drawn these infer ences even if it had upheld Stelmokas's claim of the privilege ag ainst selfincrimination. Thus, while the court overruled Ste lmokas's plea of the Fifth Amendment, its ruling had no consequen ce because the court acted as if it had upheld the plea. It thus appears that to the extent the parties' briefs address whether t he court correctly overruled the claim of the privilege agai nst selfincrimination, they focus on a non-issue. Therefor e, we will not consider whether the court correctly held that Stel mokas 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 t he privilege" against self-incrimination. Br. at 19. We reject both of these contentions. Firs t, the court was justified in treating the case as though Stelmo kas never retreated from his claim of the privilege against s elfincrimination. Indeed, it hardly could have done o therwise. After all, Stelmokas claimed the privilege in his a nswer and at his deposition and he never filed an amended answer as the court ordered, or indicate that he would make himself ava ilable to complete his deposition by answering all the questi ons 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 poin ted out that "because the privilege [against self-incrimination] may be initially invoked and later waived at a time when a n adverse party can no longer secure the benefits of discover y, the potential for exploitation is apparent [because abu se may cause] unfair prejudice to the opposing litigant." 25 F.3dat 190. At the very least, therefore, if a party initially cla ims the privilege against self-incrimination and then inten ds to waive it, he should do so clearly. If Stelmokas had waiv ed the privilege clearly at the outset of the trial, the g overnment could have asked for an opportunity to take a meani ngful deposition. Stelmokas's maneuvering precluded that possibility. Indeed, Stelmokas's attorney at the trial, without apparent recognition of the significance of his statement, e ssentially admitted that he was abusing the claim of the privi lege by indicating that he was keeping his options open andthat he didnot know what he would advise Stelmokas to do. We will not

reward such manipulation. Rather, Stelmokas must b ear its

consequences. Second, Stelmokas's argument that he canno t be penalized for claiming the privilege relies on such cases as Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 213 2 (1977), and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 ( 1967). But those cases dealt with the imposition of a substant ial penalty for the exercise of the privilege against self-incr imination, e.g., the loss of public office. As we have pointe d out, in this case the court did not impose any sanction on Stelm okas because of his refusal to answer questions. Thus, this case is controlled by the princ iples set forth in Baxter v. Palmigiano, 425 U.S. 308, 96 S.C t. 1551 (1976). There, a prisoner at a disciplinary hearin g was advised that he had a right to remain silent but that, if h e did so, his silence would be held against him. He remained sil ent and his silence was given evidentiary value against him. T he Supreme
Court held that the use of his silence in this mann er was proper. It distinguished the line of cases, including Lefko witz and Garrity, that did not allow the imposition of a pen alty for pleading the privilege because those cases involvedthe 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. Cali fornia, 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 agains t parties . . . when they refuse to testify in response to probat ive evidence offered against them." Id. at 318, 96 S.Ct. at 155 8. Thus, as long as there was independent evidence to support t he negative inferences beyond the invocation of the privilege a gainst 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, 47 6 U.S. 1140, 106 S.Ct. 2247 (1986). In this case, there was a p lethora of independent evidence to support the inferences that the district court drew based on Stelmokas's claim of the privil ege, so the court was justified in drawing the inferences it di d. We recognize that even though this is a ci vil case, seeUnited States v. Osidach, 513 F. Supp. 51, 57 (E.D. Pa. 19 81), it may have drastic consequences for Stelmokas. After all, at oral argument the attorneys told us that an affirmance p robably will lead to his deportation. But the severity of the c onsequences do not alter the legal determination of whether the co urt may draw inferences against a person pleading the privilege against selfincrimination. Baxter itself was a disciplinary ca se and had penal overtones. We also note that the Supreme Cou rt recently has adhered to the sharp distinction between procee dings which, though possessing what might be regarded as a punit ive impact,are civil, and traditional criminal proceedings. T hus, 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. Accord ingly, 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 civ il or criminal and in the present context this case is civil. We make one final point on the self-incrim ination argument. In this case, there was a bench trial. Thus, unlike a jury trial in which a jury will return a general ve rdict or answer specific interrogatories, the district court had an opportunity to explain the bases in the evidence fo r its factual findings. It did so by making it crystal clear tha t, even if it had not drawn any inferences from Stelmokas's claim of the privilege, it would have made the same factual find ings. Accordingly, even if the district court erred in dr awing the inferences, its error would have been harmless for, as we explain below, the evidence without the inferences supporte d the court's findings.

B. The ancient documents Stelmokas argues that the district court e rred by admitting into evidence occupation documents obtain ed from
Lithuanian archives and other sources as ancient do cuments pursuant to Fed. R. Evid. 803(16) which, as an exce ption 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 demonstrate d Stelmokas's employment and activities during World War II. In particular, Stelmokas argues that these documents "lack any ass urance of
trustworthiness." Br. at 22. Stelmokas focuses his objection on two gro ups of documents, principally those recovered from the rec ords of the
Lithuanian Schutzmannschaft that were located at Vi lnius, 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 Vi lnius documents were kept from public inspection by the S oviet Union until 1990. Though he also acknowledges that the g overnment did not have to demonstrate a strict chain of custody f or 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 doc uments were not found in a place where, if authentic, they "wou ld likely be" as set forth in Fed. R. Evid. 901(b)(8). Stelmokas further argues that the document s are suspicious because the Germans destroyed many docum ents demonstrating their criminal conduct, but "preserve [d] evidence
of Lithuanian misconduct." Br. at 27. Furthermore , he regards the documents as questionable because they came fro m Sovietsources, and he claims that it was Soviet policy to discredit the

Baltic states. Id. Finally, he argues, though wit h less particularly, that the government did not establish the chain of custody and authenticity of the second group of doc uments, 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 r equirement of "authentication . . . as a condition precedent to a dmissibility is satisfied by evidence sufficient to support a fi nding that the matter in question is what its proponent claims." Rule 901(a) is written, of course, in general terms, but is follow ed by Rule 901(b) which includes examples of methods by which to authenticate evidence. Rule 901(b)(8) provides tha t authentication of an ancient document may be suppli ed 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 e xistence 20 years or more at the time it is offered. Ancient d ocuments are admissible into evidence as an exception to the hea rsay rule. See United States v. Goichman, 547 F.2d 778, 784 (3 d Cir. 1976). We cannot say that the district court abus ed its discretion in admitting the documents in question. Initially, we observe that Stelmokas's argument in part is self-d efeating because his contention that the Germans destroyed d ocuments demonstrating their own criminal conduct, but prese rved documents incriminating the Lithuanians, supports rather than undermines
the district court's conclusions that the documents incriminating him were legitimate. Furthermore, the documents we re certified by competent Lithuanian archival personnel. Hilber g, who has testified in many cases regarding eastern European Holocaust records and whose expertise cannot be doubted, test ified that the
documents he examined were authentic and that the d ocuments found in Soviet possession are as reliable as documents f rom western
countries. He said that he found the documents to be reliable and not to be forgeries. He also testified that on e would expect to find documents relating to the Lithuanian Schutz mannschaft in Vilnius, the Lithuanian capital. MacQueen testified that he personally sear ched archives
in Lithuania and that the documents he found were a uthentic and reliable. In particular, he had found Schutzmannsc haft records implicating Stelmokas in Vilnius, which is where th ey 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 C ir. 1993), cert. denied, 114 S.Ct. 1304 (1994). We also point out that German records demo nstrate that while Stelmokas was in the Luftwaffe, he was hospit alized in Germany. We cannot conceive that any rational pers on would
believe that someone set out to incriminate Stelmok as and planted fake documents in widely-scattered places for that purpose. Ifanyone created the documents to injure Stelmokas, t he fabricator

most peculiarly placed the bulk of the documents in a location where they were not accessible to the public and fr om which, in fact, they were not released for decades. There ce rtainly is no evidence in the record that anyone hatched such a b izarre plot. Indeed, Stelmokas does not explain what motivation any person would have had to fabricate documents so as to attr ibute responsibility to him for the atrocities in Lithuan ia or how that could have been accomplished. Stelmokas was hardly a prominent figure in the war and it is difficult to conceive w hy someone would go to the lengths he suggests in order to fra me him. Stelmokas's attack on the authenticity of the docum ents is not
substantial.

C. Sufficiency of the evidence Stelmokas next argues that the government failed to establish its case by clear, unequivocal, and convi ncing evidence so as to leave no doubt as to its allegations regar ding Stelmokas's wartime activities. In considering thi s 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 erroneo us if supported by clear, unequivocal, and convincing evi dence.
We have reviewed the record and have concl uded that the district court's findings are not clearly erroneous , as the evidence in the record fully supports them. The ul timate factual
issue for resolution in this case was whether Stelm okas resided in the United States for five years "after being la wfully admitted for permanent residence." 8 U.S.C. § 1427 . If he was not lawfully admitted, he was not eligible for citi zenship. Resolution of this issue in turn depends on whether the district court's findings that Stelmokas should have been ba rred for six different reasons from entering the country were cl early erroneous as to all six. We thus emphasize that ev en if we upheld the findings on only one of the six bases, w e would
affirm. In fact, the government demonstrated beyon d all doubt that Stelmokas was not lawfully admitted for perman ent residence for all six reasons. The evidence against Stelmoka s 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 c ircumstances, we would serve no useful purpose in detailing all t he 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 j oined the Schutzmannschaft voluntarily. While it is true tha t no person testified that he recalled seeing Stelmokas sign up for the Schutzmannschaft, his contention that there is no p roof that he joined voluntarily ignores the record. The evidenc e 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 severalmonths after Stelmokas joined the Schutzmannschaft, its members

could be released at their own request. Obviously, if the
evidence demonstrated that service of all Schutzman nschaftofficers 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 Stelmo kas joined the Schutzmannschaft voluntarily, the court drew the en tirely justified inference from Stelmokas's claim of the p rivilege against self-incrimination that he joined voluntari ly. Another example of the weakness of Stelmok as's factual arguments is his claim that he did not misrepresent his wartime employment by concealing his membership in the Schu tzmannschaft. This contention is frivolous, for he acknowledges t hat he represented to the DPC analyst and the vice-consul that from 1940
until 1943 he was a teacher in Seda. It is difficu lt to understand how Stelmokas can argue that he did not misrepresent
his status as a Schutzmannschaft officer when he re presented that
he was a teacher for most of the time that he was i n reality such
an officer. Stelmokas, however, takes a different appr oach to what constitutes a misrepresentation. In a post-argumen t brief that he filed at our direction, he recites that "[a] rel evant concealment would have occurred if the government h ad produced
evidence that Stelmokas was asked if he had been a member of the Schutzmannschaft and said no." Br. at 3. Thus, St elmokas would require that the examiner have a reason to ask abou t a specific narrowly defined matter. We reject his approach. In our view, if you falsely represent that your employment is on e thing when your actual employment is completely different, the n you have concealed your true employment. In these circumsta nces, it is perfectly clear that Stelmokas himself demonstrates that he made a material misrepresentation when he sought displac ed person status and a visa. Surely the misrepresentation th at Stelmokas
was a teacher was material because it hid his true employment as
a Schutzmannschaft officer. Notwithstanding Stelmokas's failure to mou nt a substantial attack on the court's findings, we focu s on two aspects of the government's case: Stelmokas's part icipation in
the Schutzmannshaft as a movement hostile to the Un ited States and his false statements to the DPC analyst and to the viceconsul. As we indicated, section 13 of the DPA pro hibited issuance of a visa to any person "who is or has bee n a member of, or participated in, any movement which is or has be en hostile to the United States or the form of government of the United States." 62 Stat. 1014. It is beyond doubt that S telmokas was
an officer in the Schutzmannschaft. It is also cle ar that the Lithuanian Schutzmannschaft was on the State Depart ment "List of Organizations Considered Inimical to the United Sta tes." The
inimical list states that members of the Schutzmann schaft "are considered collaborators except for those members . . . who can produce evidence that they were conscripted and did not commit atrocities or otherwise persecute civilian populati ons." Seeexhibit 4.242, app. 1672. Stelmokas did not produce any such evidenc e. Indeed,except for a small number of exhibits, he did not p roduce any

evidence at all. It is clear that Stelmokas volunt arily joined the Schutzmannschaft and, while there is no eye-wit ness testimony identifying him as a person who committed atrocitie s or otherwise persecuted the civilian population, the only reason able 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 th e Schutzmannschaft disqualified him from obtaining di splaced person status and a visa, as the Schutzmannschaft was a mo vement hostile
to the United States. See United States v. Kowalch uk, 773 F.2d at 497 n.11; United States v. Koziy, 540 F. Supp. a t 34; United States v. Osidach, 513 F. Supp. at 78-79. In his post-argument brief, Stelmokas make s 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 [h e] made his applications to the [DPC] and the consulate." He t hen adds that the "government has placed the so-called inimical l ist in
evidence but it is undated and there is no testimon y as to when it was published and whether the Lithuanian Schutzm annschaft 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 o f 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 th e examiner or the vice-consul, we regard the balance of the quote d 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 follo wing 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 receive d yesterday. Is it being received --

MS. SLAVIN: We are moving it in --

THE COURT: -- in evidence by agreeme nt or is there a stipulation that you want to
read into the record?

MS. SLAVIN: The stipulation we havearrived at that was -- that the list was i n

effect during the relevant period of Mr. Stelmokas' immigration in 1949.

MR. CARROLL [Stelmokas's attorney]: And I'm withdrawing my objection to that exhib it, 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 whe n Stelmokas sought displaced person status and a visa. Of cour se, Exhibit
4.242 included the Lithuanian Schutzmannschaft on t he list. In any event, it would not matter if the
Schutzmannschaft was added to the inimical list aft er Stelmokas obtained displaced person status and a visa and ent ered the country. Stelmokas was barred from entering the co untry because he was a member of the Schutzmannschaft, which was a movement
hostile to the United States. The date that the Sc hutzmannschaftwas 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 prospe ctively so that a movement would be regarded as hostile to the United States only after it was placed on the list. After all, t he list enumerated movements that existed during the Nazi e ra which ended before the list's promulgation. Therefore, Stelmok as was unlawfully admitted to the United States because, r egardless of when the Schutzmannschaft first appeared on the ini mical 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 analy st nor the vice-consul testified, but it is beyond dispute tha t when they interviewed Stelmokas he told them nothing about hi s Schutzmannschaft and Luftwaffe service. Rather, he told them that during the war he was a teacher in Seda, Lithu ania, and was then a laborer in Dresden, Germany. There simply c an 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 misrepres entation

Stelmokas's final argument is that the gov ernment did not establish that his misrepresentations regarding his wartimeemployment and residence were material. He contend s that the

"government has usually attempted [to establish] pr oof of materiality in these cases by calling consular or I NS officials to testify that their decisions would have been dif ferent if they had known the truth." Br. at 48. See, e.g., Unite d States v. Kowalchuk, 773 F.2d at 496. He then correctly poin ts 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 Ste lmokas was ineligible for displaced person status and for a vi sa and thus that he had not entered the United States lawfully and had not been eligible for citizenship. Five of these reaso ns were predicated on his conduct and associations during W orld War II, and only one was based on his misrepresentations to the DPC analyst and the vice-consul. Thus, even if Stelmok as had made no misrepresentations to the DPC analyst or the vice-c onsul, we would affirm because he procured his citizenship il legally as he was not eligible for displaced person status and fo r a visa. We recognize that a party might contend th at 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 cou ld 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 connect ion with his visa application could be significant. The problem with such an argument is that the courts do not have equitable d iscretion to deny the government a judgment of denaturalization to which it otherwise would be entitled. Fedorenko, 449 U.S. a t 517-18, 101 S.Ct. at 752-53. Thus, even if we held that Stelm okas's misrepresentations were not material and, indeed, e ven if he made no representations at all to obtain the visa, his a ppeal is doomed, as he was not eligible for a visa, and we m ust uphold the district court even if we sustain only one of the b ases 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 in eligible to enter the United States. Nevertheless, we will add ress the materiality argument on its merits, as it does rela te to one of
the bases for relief. Initially, on this appeal Stelmokas and th e government agreed that Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537 (1988), set the standard for materiality in this ca se, even though that case concerned materiality in citizensh ip applications under the INA, 8 U.S.C. § 1451(a), rat her than materiality under section 10 of the DPA. Thus, in his opening brief, Stelmokas said that the "current test of mat eriality is found in Kungys." Br. at 47. Indeed, in his "Stat ement of Issues" he included the following: "Were the defen dant's misrepresentations concerning his former occupation and residence 'material' as defined in Kungys v. United States, 4 85 U.S. 759 (1988)." Under Kungys, a misrepresentation is mate rial if it hasa natural tendency to affect the officers' decision s, 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 materia l even where if the truth had been told, the decision maker ulti mately would have reached the same result. Under Kungys, the ma teriality 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 d eal with the visa or DPA issues." Br. at 1. Furthermore, he ci tes United States v. Gaudin, 115 S.Ct. 2310 (1995), for the fi rst time on this appeal in that brief, pointing out that the Su preme Court held there that materiality was a factual rather th an a legal
matter in the circumstances of that case. We wouldbe justified in refusing to entertain Stelmokas's post-argument change in position, for we do not think that a party should b e able to change his legal contentions after oral argument. But, mindful of the importance of this case to Stelmokas, we non etheless will discuss his new position. While we cannot predict the ultimate impli cations of Gaudin, we do know that Gaudin did not affect the K ungys holding that, in a denaturalization proceeding, materiality of a misrepresentation is a legal issue. Quite the cont rary is true because the Gaudin court discussed Kungys at length and made it clear that it was distinguishing Kungys because tha t case dealt with whether "an appellate court must remand to a d istrict court for a determination of materiality in a denaturaliz ation proceeding," whereas Gaudin was concerned with a de fendant's Sixth Amendment right to have a jury determine mate riality in a criminal proceeding. Gaudin, 115 S.Ct. at 2319. Of course, Gaudin followed a familiar trac k because it
is not unusual for the Court to extend more extensi ve procedural protections to a defendant in a criminal case than to a party in a civil case. Indeed, as we point out above, the C ourt in Baxter v. Palmigiano distinguished Griffin v. California o n 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, Kung ys's treatment of materiality as a legal issue remains applicable here.

Stelmokas now also seems to contend that b ecause 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 didnot deal with the visa or DPA eligibility issues." Br. at 1. Th is argument is
distinct from Stelmokas's contention that materiali ty is a factual question. We reject this attempt to distin guish Kungys. While the procedures followed and questions asked w hen an applicant seeks a visa differ from those applicable when an applicant seeks citizenship, we see no reason why t he test of materiality under Kungys would not apply in DPA eli gibilitycases. Materiality, after all, refers to the effec t of a

representation on a decision maker regardless of th e nature of the decision. In other words, no matter what is be ing decided, the misrepresentation is material under Kungys if i t has the natural tendency to affect the decision. We see no reason not to apply that test here. Thus, Kungys is doubly signi ficant here,
for it establishes that the resolution of materiali ty is a legal undertaking and it sets forth the test of what is m aterial. Inasmuch as under Kungys the materiality o f 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 trut h had been
told the officers would have reached a different re sult. Kungys, 485 U.S. at 772, 108 S.Ct. at 1547. After all, evi dence 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 evi dence of what a consular or DPC official would have done if given the correct
information is not admissible because we have no ne ed 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 materia lity of a misrepresentation. After all, the Supreme Court, p rior to Kungysin Fedorenko v. United States, quoted and relied on su ch evidence produced by the government, though it noted that it was proffered and accepted by the court "[w]ithout objection" fro m 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. a t 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 h elpful to the court in deciding a materiality issue, this case is not close. In our view, it cannot reasonably be argued that St elmokas's misrepresentation that he was a laborer and a schoo l teacher when
in fact he was an officer in the Schutzmannschaft a nd served in the Luftwaffe could not have had a natural tendency to influence the DPC analyst and the vice-consul. Indeed, proba bly without recognizing the implications of his statement, Stel mokas admits as much, for in his post-argument brief he describe s 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 Schutzm annschaft and
Luftwaffe service would have amounted to the disclo sure of a

"neutral" factor.
We have no doubt that if Stelmokas had tol d the truth about his service on behalf of Germany during WorldWar II he never would have obtained his visa for permanent re sidency in the United States, and he never would have been natural ized. After all, we have found that these activities disqualifi ed 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 inventedhis wartime history out of thin air so that he could be admitte d to the United States and ultimately obtain citizenship.
We make an additional observation with res pect to the custom of the government of calling consular or INS officials to testify that their decisions would have been differ ent if they had known the truth. As we have indicated, Stelmok as seems to believe that the materiality of a misrepresentation is a factual issue and reasons that the fact of materiality cann ot be established without testimony as to what the conseq uence of the provision of truthful information to the decision m aker would have been. Yet, even treating materiality as a fac tual question, we see no reason why the district court as the trie r of the fact could not conclude, without such testimony, that th e misrepresentation had a natural tendency to affect the decision and thus was material. We will not convert the gov ernment's custom in producing consular or INS testimony to es tablish the materiality of a misrepresentation into a requireme nt that it must do so, for we are not aware of any case which holds that the government must establish the materiality of a misr epresentation 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 evid ence 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 subst antial verdict on a defamation claim. Subsequently, the defendant moved for relief from the judgment entered on the verdict bas ed 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 gra nted 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, i t was crucial. In entertaining the motion for relief from judgment , the district court developed a record establishing the misrepres entation by comparing the testimony at the trial and the arbitr ation. But no witness testified that the misrepresentation was ma terial. Rather, the district court, predicated on its own v iew of the record, concluded that it was material, and we reac hed the same conclusion using an identical methodology. Thus, w ithout citing Kungys, both courts in Bethel followed the Kungys f ormula of basing a determination of "the materiality of a sta tement . . . upon a factual evidentiary showing" and then making "aninterpretation 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 tr eated 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 som etimes in other proceedings. See, e.g., United States v. Pel ullo, 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 opi nion with comment on two aspects of Judge Aldisert's dissent, sections VII
and VIII. We do not address the rest of the dissen t as our opinion adequately explains the bases for our concl usions and we do not regard the dissent as detracting from them. We comment on
his discussion in section VII of the dissent on Cou nt IV of the complaint in which the government charged that Stel mokas illegally procured his naturalization because he mi srepresented
his wartime record to the DPC and to the vice-consu l and thus was ineligible to enter the country. We focus our atte ntion on this point because Judge Aldisert includes in his dissen t a concession which causes the dissent to self-destruct, namely "that
Stelmokas's failure to disclose his wartime militar y status would have had a natural tendency to influence immigratio n decisions." Dissent typescript at 29. Initially on this point we reiterate that 8 U.S.C. § 1451(a) provides in the disjunctive for a certifica te of naturalization to be revoked if it was "illegally p rocured" or was "procured by concealment of a material fact or by willful misrepresentation." In an "illegally procured" cas e, the alien obtains his naturalization illegally, in this case the illegality being that Stelmokas was not eligible for naturaliz ation as he was not admissible into the United States. In a "p rocured by" case, the alien obtains his naturalization by conce alment of a material fact or by misrepresentation. While Judge Aldisert asserts that the government attempted in Count IV t o rely on the "procured by" language, in that count the reference s to Stelmokas's misrepresentations to the DPC analyst a nd the vicecounsel were germane only to the "illegally procure d" component of section 1451(a). Thus, Judge Aldisert's suggest ion that Count IV of the complaint related in any way to the "proc ured by" language of section 1451(a) is simply not true. Fu rthermore, while the government unsuccessfully did use Stelmok as's misrepresentations to the DPC analyst and the vice- consul in the only count of its complaint asserting a "procured b y" charge, Count VII, the government does not pursue its case on that count on this appeal. Judge Aldisert then indicates, quite corre ctly, that the government's case on Count IV begins with the m ajor premises that DPA § 10, 62 Stat. 1013, barred from immigrati on any person who willfully misrepresented material facts to gain entry as a displaced person. He then correctly indicates that thegovernment argues that Stelmokas made material misr epresentations

so that his entry was unlawful and he thus illegall y procured his
naturalization. He then indicates that the "critic al inquiry is whether the government met its important threshold burden of proving a misrepresentation as defined in the Displ aced Persons Act." Dissent typescript At 27. (Emphasis added.) The problem with the foregoing statement i s inclusion of the word "threshold" for if the government estab lished that Stelmokas made material misrepresentations to the D PC analyst and the vice-consul the case is over and the government wins. Why is this so? The answer is quite clear. DPA § 10 prov ides that any "person who shall willfully make a misrepresentatio n for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be a dmissible into the United States." Of course, as we already have explained, that person is thus ineligible for naturalization. Rather, as Judge Aldisert acknowledges, th e test of materiality comes from Kungys, i.e., does the misre presentation have a natural tendency to influence or was it capa ble of influencing the decision of the decision making bod y to which it was addressed? While it appears that Judge Aldiser t is reluctant to acknowledge that Stelmokas's lies to the DPC ana lyst and the
vice-consul about his wartime activities were mater ial, we
reiterate that he does concede "that Stelmokas' fai lure to disclose his wartime military status would have hada natural tendency to influence immigration decisions." Diss ent typescript at 29. Under Kungys the misrepresentations were th erefore 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 d efinition of materiality or to demonstrate that the government h ad to show that the misrepresentations led to Stelmokas's admi ssion into the country. As we have indicated, the government has demonstrated the Stelmokas's misrepresentations led to his admis sion into the
United States but it did not have to do so. Nevert heless we address the point Judge Aldisert makes. Judge Aldi sert 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 influe nce the immigration decisions. The reason he fails is that he relies on principles inapplicable in a case under the "illega lly procured" clause of section 1451(a) when the case is predicat ed, as is this case in Count IV, on an alien having made a materia l misrepresentation under DPA § 10 for the purpose of gaining admission into the United States. Thus, Judge Aldi sert makes the following statement which is simply wrong in this " illegally procured" case under section 1451(a): "In denatural ization cases, equally important to establishing a material statem ent 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 "ill egally procured" cases there is no requirement that a misr epresentation enabled the alien to procure anything. Rather, in an illegallyprocured case dependent on a misrepresentation made when the

alien sought admission into the United States, unde r DPA § 10 the government merely need prove that the misrepresenta tion for the purpose of obtaining admission into the United Stat es was material. Furthermore, Judge Aldisert's statement is wrong for
the additional reason that Stelmokas did not make h is misrepresentations to procure the order and certifi cate of naturalization. He made them to obtain displaced p erson status
and to be admitted into the United States. We reiterate that Stelmokas's misrepresent ations to the DPC analyst and the vice-consul are significant bec ause under DPA § 10 an alien who makes a material misrepresentatio n thereafter is not admissible into the United States. Thus, if an alien who made a material misrepresentation is admitted and i s naturalized, he has illegally procured his naturalization withou t regard for whether he procured anything by the misrepresentati on. We further emphasize that DPA § 10 in the clearest pos sible terms speaks prospectively, i.e., "thereafter" an alien m aking misrepresentations is not admissible into the Unite d States. Accordingly, it is clear beyond doubt that once Ste lmokas made his misrepresentations to the DPC analyst and the v ice-consul, he was ineligible to enter the United States, because, in Judge Aldisert's words, his "failure to disclose his wart ime military status would have had a natural tendency to influen ce immigration decisions." Accordingly, Stelmokas could not be na turalized 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 f or even if the misrepresentations are uncovered immediately, so th at the alien does not obtain displaced persons status or is not admitted to the United States, he is ineligible for admission t o the United States after he makes his misrepresentations. For reasons that must be driven by Judge A ldisert's sense that there is something unfair in the prosecu tion 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 naturalizat ion was "procured by concealment of a material fact or by w illful misrepresentation," for he recites that the "Govern ment seems to ask this court to apply different meanings to the t erm 'procured' in the two clauses of § 1451(a)." Id. at 29-30. H e argues that "[t]here is no rational support for the suggestion that Congress intended such an anomalistic reading of the same wo rd in the same section of the same statute. There is absolutely n o rational support for the notion that the government is not r equired to produce evidence showing precisely how Stelmokas wa s 'unlawfullyadmitted' and whether his naturalization was in fact 'illegal ly procured.'" Id. at 30. "If under the second claus e in § 1451 the government must show that the naturalization wa s 'procured by' the alleged misrepresentation, as the Court hel d in Kungys,then under the first clause certainly the governmen t must

demonstrate that Stelmokas was ineligible and there fore unlawfully admitted." Id. The problem with the foregoing quoted lang uage from the dissent is obvious. The government did demonstrate , in Judge Aldisert's words, that Stelmokas "was ineligible an d therefore unlawfully admitted." The government demonstrated that Stelmokas made a material misrepresentation under DPA § 10, w hich representation we once again point out did not have to result in Stelmokas procuring anything to violate that sectio n. Thus, Stelmokas illegally procured his naturalization. N othing could

be clearer. It is also clear that in the "illegally pr ocured" and "procured by" clauses, "procured" has the same mean ing and the government does not contend otherwise. We repeat t he distinction between the two types of cases. In a "procured by" case the alien obtains his naturalization by his misrepresen tation. In an "illegally procured" case the alien obtains his nat uralization illegally, in Stelmokas's case by entering the coun try 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 procuredhis
naturalization. Of course, there is a good reason why the "procured by" clause in section 1451(a) requires that the governm ent
demonstrate more than that an alien made a material misrepresentation for naturalization to be revoked because, unlike DPA § 10 which applies prospectively so as t o render an alien inadmissible to the United States, section 14 51(a) always applies in a situation in which the alien already h as procured his naturalization. Thus, Judge Aldisert's emphasi zed quotation of Kungys that "the naturalized citizen must have p rocured citizenship as a result of the misrepresentation or concealment," 485 U.S. at 767, 108 S.Ct. at 1544, dissent typescr ipt at 31, does not support his position because there the Cou rt was discussing a "procured by" not an "illegally procur ed" case. Judge Aldisert goes further in misusing the plain l anguage of Kungys. First, he correctly says that Kungys indic ates that in a denaturalization proceeding there are "four indepen dent 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 conta ins four independent requirements: the naturalized citizen must have misrepresent ed or concealed some fact, the misrepresentat ion 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 thequotation the Court was not discussing an "illegall y procured"

case. Rather, it set forth the elements of a "proc ured by" case. Furthermore, the Court emphasized that the requirem ents were "independent." Thus, it is impossible to read the statement in Kungys that the naturalized citizen have procured c itizenship as a result of the misrepresentation into the material ity requirement of a misrepresentation under DPA § 10. The materiality and procurement considerations are "ind ependent" of each other and cannot be fused. Furthermore, the r equirement in a "procured by" case that the misrepresentation hav e resulted in the alien obtaining citizenship cannot be attached to the government's burden to show that Stelmokas's misrep resentations to obtain displaced person status and a visa in thi s "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 sho uld lead him to vote to affirm even if he rejects, as he does, t he rest of the government's case, for as we explained above, if th e government establishes that Stelmokas illegally procured his n aturalization for a single reason we must affirm the district cou rt. Judge Aldisert discusses the possibility o f the government producing evidence of what consular offi cials 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 t hat 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 Stelmoka s' misrepresentations procured the decision of the DPC analyst and the naturalization officials." Dissent typescript at 38. (Emphasis added.) Of course, the "naturalization o fficials" have nothing to do with this case on Count IV and thus t he government does not contend that any misrepresentation to them is germane to that count. Furthermore, the government did not ha ve to show that Stelmokas's misrepresentations to the DPC anal yst and the vice-consul procured the decision of the naturaliza tion officials to grant naturalization as the misrepresentations w ere critical as they led to his admission into the United States

. The second aspect of Judge Aldisert's diss ent on which we comment is part VIII in which he expresses due p rocess and fairness concerns. We point out that Stelmokas doe s not contend that the prosecution of the case has denied him due process of law. Accordingly, this court should not be concern ed with Judge Aldisert's observation that with the passage of tim e "witnesses disappear and memories fade." Dissent typescript a t 42. In any event, lest too many tears be shed for Stelmokas, w e point out that one witness has not disappeared and we have no reason to believe his memory has faded. That witness, of cou rse, is Stelmokas himself who with so much at stake persist ed in his plea of the privilege against self-incrimination notwith standing the order of the district court overruling the plea.

III. CONCLUSIONAfter 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 f or admission to this country as a displaced person. Thus the di strict court correctly revoked his citizenship and ordered him t o surrender his certificate of naturalization. While many year s have passed since his admission to the country and his obtainin g of citizenship, it is not too late to remedy the wrong done when he was admitted. Accordingly, we will affirm the judg ment of August 2, 1995.

UNITED STATES v. STELMOKAS - NO. 95-1894

STAPLETON, J., Concurring:

I feel compelled to write separately becau se an accusation of personal participation in the atrocit ies of the Holocaust is a grave matter, and a judicial finding of such participation understandably carries with it extraj udicial, collateral consequences unrelated to citizenship an d deportability. While I agree with the court that t he government has carried its burden on six counts of its complai nt, I conclude that the evidence of Stelmokas' participat ion in the Grosse Aktion (Great Action) is not clear, convinci ng and unequivocal, and that the district court clearly er red in finding
otherwise. To be sure, there is substantial evidence that Stelmokas was a member of a platoon of the 3rd Comp any of the 3rd
Battalion of the Lithuanian Schutzmannschaft and wa s not on leave on the date of the Great Action. Moreover, there i s substantive evidence that Lithuanians in military uniforms aide d the Germans in the mass execution. It is a matter of speculati on, however, whether all, some or none of Stelmokas' Schutzmanns chaft Battalion participated. On October 28-29, 1941, German troops, aid ed 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 gh etto," which was adjacent to Vilijampole, and the next day they were marched, in groups of five hundred at a time, to Fort IX andexecuted. They were buried in mass graves dug by Soviet priso ners 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 w ere fromStelmokas' Schutzmannschaft Battalion or from some other

Lithuanian group. No testimony and no documentary evidence d irectly links
Stelmokas or the 3rd Battalion to the Great Action. The district court, in finding participation by Stelmokas, relie d largely on the opinion of Dr. Raul Hilberg that the entire 3rdBattalion must have participated in the Great Action. Dr. Hi lberg's opinion was based almost entirely on two observatio ns. 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 pers onnel of the Einsatzkommando 3, the German unit of security poli ce which carried out the operation, at least 500 men, a full battalion, were required for the Great Action. He acknowledge d, however, that the minimum number of men required would vary according to factors such as the terrain and the degree of resis tance from the Jews. Second, there was a "shortage of manpower" b ecause German
and Lithuanian units stationed near Kaunas had been sent to fight the Soviets. Specifically, the majority of the Ger man 11th
Reserve Police Battalion and the entire 2d Lithuani an Battalion were in Byelorussia. Putting these two observation s together, Dr. Hilberg concluded that Stelmokas' entire Battal ion must have
assisted in the Great Action. The balance of the 1 1th Reserve Police Battalion and the ghetto police would not, i n his opinion,
be sufficient in the absence of the entire 3rd Batt alion of the
Lithuanian Schutzmannschaft. I do not question in the least Dr. Hilberg 's qualifications as an expert in Holocaust history, n or do I doubt the conviction with which he believes Stelmokas par ticipated 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. Hilbe rg 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 ma ss executions and admitted that the minimum requirement would var y 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 rea sonable to assume that some segment of the available manpower would have to have been assigned to the responsibilities that occ upied the available troops on a day to day basis, e.g., prote ction of
facilities and communication and the maintenance of security. Given the uncertainty involved in estimating manpow er needs based on other, perhaps dissimilar, situations and the re asonable assumption that there were competing manpower deman ds in the local area, it seems speculative to assert that the entire 3rd Battalion participated despite the presence of a po rtion of the 11th Reserve Police Battalion and the ghetto police

. My concern, however, is not grounded solel y in the sufficiency of Dr. Hilberg's testimony; as Stelmoka s points out,the government's own evidence casts serious doubt o n 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 A ction, and that less than a full battalion of support troops m ay have been needed. To make my point, a little background rega rding the organization of German police forces is helpful. Following the occupation of Lithuania by t he German Army, German occupation police moved in and kept or der. One component of the German occupation police was the s ecurity police; the other component was the order police. The security police had mobile units called Einsatzgruppen, abou t the size of a battalion, and these were broken down into compan ies called Einsatzkommando and Sonderkommando. The Einsatzgru ppen were in charge of exterminating Jews and other "undesirable " elements of the population. Einsatzgruppen A was assigned to L ithuania and other Baltic states, and its subdivision Einsatzkommando 3, commanded by Colonel Jaeger, operated in the area i ncluding Kaunas. The order police were much larger than the security police, and included the 11th Reserve Police Battal ion mentioned by Dr. Hilberg. A government exhibit indicates that in add ition to Einsatzkommando 3, a sizable contingent of Sonderko mmando was available in the Kaunas area. This exhibit, entitl ed "USSR Situation Report No. 19" and dated July 11, 1941, w as prepared for the Chief of Security Police and has a section devoted to the situation in Kaunas. In this section, the report s tates that "We have retained approximately 205 Lithuanian partisan s as a Sonderkommando, sustained them and deployed them fo r executions as necessary even outside the area." App. at 1861. The availability of nearly a half-battalion of Sonderko mmando substantially undermines the conclusion that the en tire 3rd Battalion of the Schutzmannschaft was necessary to carry out the
Great Action. In addition to this Situation Report No. 1 9, there is another contemporaneously prepared document that ca lls 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 exe cutions of Jews. Colonel Jaeger there wrote the following chi lling lines: The goal to make Lithuania "Jew free" could only be attained through the formati on 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 an d the existing civil offices.

The carrying-out of such actions is, in the first place, a question of organizatio n. . . . The Jews had to be collected in one orin several locations. Based on the number s

[of Jews] a place for the necessary pits h ad to be found and dug up. . . . The Jews we re transported to the execution site in group s of 500 and in intervals of at least 2 km. What difficulties and nerve-racking work t hat 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 w ork in 24 hours, 60 of the 80 available Lithuanian partisans had to be detailed fo r transport duty and perimeter security. Th e remainder, who had to be repeatedly reliev ed, carried out the work with my men. . . . Attempts to escape that happened here and there were prevented entirely by my men an d with some danger to their lives. . . . On ly through skillful use of time was it possib le to carry out up to 5 actions in a week's t ime

and to handle the work that had accumulate d
in Kaunas so that no bottlenecks occurred in
the official functions.

The actions in Kaunas itself, where there were sufficient reasonably well-trai ned 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 t housands 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 Ja eger Report, as documentary evidence, is important in the presen t context for a number of reasons. First, in the context of a so mewhat smaller but nevertheless substantial mass execution, it pro vides a contemporary estimate of the manpower necessary to perform the grizzly task of mass execution from a German offici al having responsibility for carrying out those executions. The report indicates that the mass execution of 3,208 people a t 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 executi on of "2007 Jews, 2,920 Jewesses, and 4,273 Jewish children" in the course ofthe Great Action did not present comparable problem s. App. at

1129. Putting these two pieces of evidence toget her, even if one assumes that the number of potential victims in the Great Action would require substantially more support fro m "Lithuanian partisans" than was employed in Rokiskis, Dr. Hilbe rg's insistence that a minimum of 500, in addition to th e Einsatzkommando 3 personnel, seems questionable, at least in the absence of more explanation than he was able to giv e. Finally, the Lithuanian partisans who in f act participated in the Great Action are described as " reasonably well trained." When one puts this together with th e U.S.S.R. Special Report 19's indication that approximately 2 05 Lithuanian partisans had been formed into a Sonderkommando company specifically to be "deployed . . . for executions a s necessary," the most likely inference is that at least a large segment of the need for Lithuanian participants during the Great A ction were met by Lithuanians who were not from the Schutzmannscha ft 3rd Battalion. In suggesting that this is the likely i nference, I am not unmindful of Dr. Hilberg's opinion that the ref erence to "reasonably well trained partisans" in the Jaeger R eport meant Schutzmannschaft personnel. The basis for that opi nion, in its entirety, is found in the following excerpt from hi s testimony: In this report, Jaeger is trying to impress his superiors. That's a very comm on phenomenon in reporting. And so he, first of all, calls attention to the difficulties a nd complexities of organizing such an operati on. 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 to wns and then, referring on top of page 30 of t he English translation, he says that the acti ons encompass itself a little bit easier becau se 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 explainedby the fact that right from the start [of the schutzmannschaft], June 28th, 1941, the ca ll went out for volunteers who had military experience. In other words, these people knew how to fire a weapon, they knew how t o hit their target. And for that reason, th e operation was, in his view, like shooting at a parade. It was well coordinated and wel l

done.

App. at 277, 277-78. Dr. Hilberg's inference is a plausible one. However, once one is aware that a group of Lithuani an partisans had been formed and were available specifically for this purpose, I believe another inference becomes the more plausi ble one.I acknowledge that the inferences I sugges t based on

the Jaeger Report and Special Report No. 19 do not constitute clear, convincing and unequivocal evidence that Ste lmokas did notparticipate in the Great Action. He may well ha ve 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 concl usion about Stelmokas's participation in the Great Action witho ut reference to his failure to testify at the trial, it noted th at it believed an inference could appropriately be drawn from that failure which confirmed its conclusion. I agree with the distric t court that
the Fifth Amendment did not foreclose it from drawi ng a negative inference from Stelmokas's failure to explain what he was doing on October 28 and 29, 1941. As the Supreme Court c autioned in Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), how ever, a party's silence should not be given "more evidentia ry value than [is] warranted by the facts surrounding [the] case. " Here,
Stelmokas stands accused of a number of different f orms of conduct, any one of which would warrant the revocat ion of his citizenship. If Stelmokas had taken the stand and denied participation in the Great Action, he would have su bjected himself to cross-examination that almost certainly would have established another ground for revocation. Under t hese circumstances, I do not believe any appropriate, ne gative inference from silence can boost Dr. Hilberg's spec ulative opinion into the realm of clear, convincing and une quivocal
evidence. Finally, I turn to the dissent's conclusio n that there is insufficient evidence to support the district co urt's finding regarding Stelmokas's guarding of the Vilijampole g hetto. In contrast to the state of the record regarding Stelm okas's participation in the Great Action, I find the evide nce supporting this finding to be clear, convincing, and unequivoc al. The finding at issue reads as follows:
The Court finds that the Government h as 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 guar d for a 24-hour period commencing September 16, 1941, at 1 p.m., that Jews in the ghetto w ere 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 Battalio n Commanderentered the following order:

TO THE 3rd AUXILIARY POLICE SERVICE BATTA LION Order Number 1, Secret Kaunas, 1 September 1941 Operations Section
§ 1.

I announce the Battalion's schedule of gua rd 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 quarterTwo weeks later, on September 15, 1941, th e same

Battalion Commander entered another order, section 1 of which made the following duty assignments: Security and service duties for 16 Septemb er 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 varie ty of subjects, these were the only current duty assignme nts recorded. The record discloses that the ghetto was l ocated in a section of the city called "Vilijampole" and that " Vilijampole" was frequently used as a synonym for the ghetto. A s Stelmokas stresses, the record also indicated, however, that Fort VIII, while in the area called Vilijampole, was not in th e ghetto. Based on this evidence, Stelmokas suggests that the order assigning him as "Guard Commander in Vilijampole" i s ambiguous -- that the assignment might have been merely to guardammunition at

Fort VIII. While I agree with Stelmokas that the gove rnment had the burden of proving Stelmokas's participation in the persecution of Jews by clear, convincing and unequi vocal 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 wor ds "Fort VIII" was generally included in the designation of that g uard post in order to distinguish duty there from the duty of gu arding the ghetto. More importantly, Stelmokas commanded a pl atoon consisting of something over 30 men and it is far m ore likely that he was given responsibility for Guard Post 21 or both Guard Posts 21 and 3, than that he commanded only the fou r guards at Fort VIII. Finally, and most importantly, the Sept ember 15th order reports only two command assignments: the "B attalion Duty Officer" and the "Guard Commander at Vilijampole." The suggestion that this order would record the identit y of the
commander of a four man unit at Fort VIII and omit entirely any mention of the Guard Commander of the ghetto strike s 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 proc eeding brought by the Office of Special Investigations (OS I) against an American octogenarian for events that took place du ring the Nazi occupation of Europe more than 50 years ago. Altho ugh stripping an American of his citizenship is a civil proceedin g, the effect is so drastic that the government's burden is "subs tantially identical with that required in criminal cases--pro of beyond a reasonable doubt." Klapprott v. United States, 335 U.S. 601, 611-612 (1949). The predicate acts that form the basis of OSI p rosecutions take place in the midst of what must be acknowledge d 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 go vernment's high burden of proof, but the law commands that we do just that, and rightly so. Indeed, faced with a backdrop of s uch monstrous and inhuman past behavior, a court's responsibility in 1996 to insure the maximum protection of the law constitute s America's best response to the Nazi juggernaut that crushed a ll semblance of justice and freedom, and millions of innocent li ves a half century ago. The district court revoked the citizenship of J onas Stelmokas because he joined and served in the Lithu anian 3rd Auxiliary Police Service Battalion in 1941. At the time, he was a 25-year-old junior lieutenant. The court ruled i n favor of the government on six separate, but related counts. It determined that Stelmokas: voluntarily assisted the enemy in p ersecuting civil populations, particularly on September 16, 19 41 and October 28-29, 1941 (Count I); voluntarily assisted German forces in military operations against the United States and i ts allies (Count II); voluntarily joined and participated in a movement hostile to the United States (Count III); advocatedor acquiesced in conduct contrary to civilization and human decen cy (Count V);lacked good moral character by virtue of his Schutz mannschaftmembership

(Count VI); and willfully misrepresented material facts in his application for admission to the Unite d States as a displaced person (Count IV). I would reverse the d istrict court's determination on each count. Accordingly I dissent. What we as U.S. Circuit judges know as me n and women requires us to despise the loathsome conduct of the Nazis in World War II. Knowledge of the Third Reich's inten tional
brutalization and annihilation of innocent civilian s 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 jud ges, however, is not to proclaim our visceral reactions to the ho rrors of history. Rather, we must confine ourselves to the t rial record in this case and decide, as a dispassionate reviewing court, whether the OSI has proved by "clear, unequivocal, and conv incing
evidence which does not leave the issue in doubt" t hat Stelmokas in fact committed the alleged acts and that such co nduct supports a denaturalization proceeding. Schneiderman v. Uni ted States, 320 U.S. 118, 158 (1943). This the OSI has not don e. The OSI's case against Stelmokas does not rest on direct evidence but solely on a series of rickety inferenc es that do not rise to the high level of proof demanded of the gov ernment. To this unimpressive framework has been added what the district
court describes as adverse inferences drawn from St elmokas' 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 Amen dment plea in
a denaturalization case constitutes the basis for a dverse inferences only to the extent those inferences are supported by
"substantial evidence manifested in the record." B axter v. Palmigiano, 425 U.S. 308, 317-18 (1976). The OSI's case against
Stelmokas lacks such substantial evidence and is ho bbled 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 fa iled to present any direct evidence or any legitimate circu mstantial evidence of participation in proscribed activity th at would, as required, logically and unerringly support an incri minating inference. Instead, the OSI relied on as many as f ive 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 particip ated in the
massacre of thousands of Jews in the Grosse Aktion at the same location on October 28-29, 1941. Third, the OSI su pported its allegations by introducing undated documents, witho ut accompanying testimony as to their relevance and ef fect on immigration officials at the relevant times. Fourt h, and especially fatal to its case, the OSI failed to pre sent testimony from Displaced Persons Commission personnel or cons ular
officials--as it has in all similar cases--that Ste lmokas' nondisclosure of his 3rd Battalion service in fact imp acted or would have impacted the immigration officials' decision-m aking processand rendered him ineligible for a visa. For these reasons, I

would reverse the district court's judgment of dena turalization.

I. Before analyzing the specific legal questi ons presented here, I must describe conditions in Europe, and par ticularly 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-sta tes, the power to rearrange the map of Europe had passed to the Un ited 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 N orway 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 capit al. By the end of the six-year struggle to bri ng 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 Germa ny 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 fo r food and clothing, often subsisting on little more than 1,00 0 calories a day.
The onset of a chill between the Soviets a nd the Western allies sealed the division of the country between t wo hostile occupation zones. By 1947 it was becoming clear th at Stalin had no intention of fulfilling his promise, made to Roo sevelt and Churchill at Yalta, to hold free elections in Polan d. Where the Red Army stood, Soviet power reigned, straining wes tward. A Communist insurgency, supported from bases in Bulga ria, Albania and Yugoslavia, threatened the vulnerable British-b acked 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 i n 1949 at Hamburg, Germany. Refugees were caught in a viciou s political struggle between the two superpowers. With America n and Soviet diplomatic armies posturing eyeball-to-eyeball, the de factodivision of Germany already had taken place. The die having be en cast in both the west and the east by the occupying armies, Central Europe remained the primary political battl eground for almost a decade after V-E Day. It is against this complex and volatile po litical background that I consider the legal issues arising from Stelm okas' visa application. Indeed, the facts underlying the lega l 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 warti me Lithuanian and German documents generated in Lithuania and obtaine d by the OSIfrom archives are admissible. However, I question whether these

documents alone are sufficient to support the gover nment's high burden of proof.

II. I turn first to Count I, the linchpin of t he government's entire case against Stelmokas. In Count I the gove rnment alleges that Stelmokas voluntarily assisted the Nazis in pe rsecuting civilian populations. The OSI anchors this content ion 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 Auxilia ry Police Service Battalion, dated September 15, 1941, indicates that "Junior
Lieutenant STELMOKAS" was detailed as "Guard Comman der 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 conc lusion:
The Court finds that the Government has no t established by clear, unequivocal, and convincing evid ence that the shootings on September 16-17, 1941 were ca rried out by
either the defendant or Schutzmannschaft m embers under his command. However, the Government has established by clear, unequivocal, and convincing evid ence that defendant was commander of the ghetto guar d for a 24- hour period commencing September 16, 1941, at 1 p.m., that Jews in the ghetto were subject to ex treme deprivation, brutality, and arbitrary shoo tings during that period, and that defendant was respon sible for enforcing the confinement of Jews in such conditions.

F.F.60

A conclusory inference predicated on a cle ar and narrowly established fact might have been sufficient to incu lpate Stelmokas. However, an inference teased from a ser ies of other inferences may not substitute for hard evidence whe re the government's burden is so high. And that is the ex tent 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 Septe mber 16-17, 1941 were carried out by either the defendant or Sc hutzmannschaftmembers
under his command." F.F. 60. The district court we nt further, however, and concluded that Stelmokas was commander of the ghetto guard and enforced confinement of Jews i n horrible conditions. Because the government did not meet it s high burden of proving these aspects of its allegations, the di strict court

erred.

1. Unlike virtually every other case prosecut ed by the Office of Special Investigations, here no direct evidence shows that Stelmokas confined Jews to the ghetto during the da ys in question. Indeed, the direct evidence presented in this case is limited to the following: That deployed in the Kaun as, Lithuaniaarea were at least two Lithuanian army units under the control of

the Nazis--the 3rd Auxiliary Police Service Battali on (also described hereafter as Schutzmannschaft), in which Stelmokas was an officer, and a Sonderkommando company of approxi mately 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 n eighborhood containing not only the ghetto, but also surroundin g 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 o f Jews in the ghetto. We are left to infer that a single written order that Stelmokas was "Guard Commander in Vilijampole" demo nstrates that the 3rd Battalion, and not the Sonderkommando compa ny, was the ghetto guard on this day. We are left to speculate whether the 3rd Battalion was not merely assigned to guard adja cent areas, including bridges, warehouses, ammunition depots et c. A518-A519. The evidence leaves unanswered the question of whet her the unit patrolled parts of the Vilijampole neighborhood tha t did not include the ghetto--an area that also encompassed n on-Jewish residences, businesses and an ammunition warehouse- -the ghetto itself, or both. To repeat, there was no direct ev idence supporting the district court's determination and t he quality of
circumstantial evidence was so inferior that it didnot satisfy the government's high burden of proof. No evidence supported the district court's conc lusion other than the fact that Stelmokas was assigned as "Guardcommander of Vilijampole" at the time two Jews were killed in th e 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 evi dence to show that Stelmokas served with the ghetto guard, the di strict court failed to heed the teaching of Fedorenko v. United States, 449 U.S. 490, 512 n. 34 (1981) ("The solution to the pr oblem...lies, not in 'interpreting' the Act to include a voluntar iness requirement that the statute itself does not impose , but in focusing on whether the particular conduct can be c onsidered assisting the persecution of civilians. Thus, an i ndividual who
did no more than cut the hair of female inmates bef ore they were executed cannot be found to have assisted in the pe rsecution of civilians."). The cases that interpret Fedorenko i n the context of Nazi occupations, for the most part, emphasize t he distinction between active and passive collaboration with the N azis. Of necessity, each case is fact specific and turns on the particular evidence in the case. In United States v. Koreh, 5 9 F.3d 431 (3dCir. 1995), for example, we concluded that the defe ndant who had

served as editor of pro-Nazi newspapers containing many antiSemitic articles assisted in the persecution of Hun garian Jews through his activities. In United States v. Sprogi s, 763 F.2d 115 (2d Cir. 1985), a case dealing with military or constabulary activity under Nazi direction, with facts more oner ous than those in the case at bar, affirmed the denial of the dena turalization complaint brought by OSI. The court in Sprogis emphasized the difference between active participation in hostile acts against civili ans 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." I d. at 117. Sprogis testified that he voluntarily joined the po lice force. Sprogis was Assistant Precinct Chief and eventually Police Chief. Id. at 118. Sprogis conceded he signed and prepare d 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 testifi ed he was "the highest ranking officer" present at a police statio n where nine Jews were "forcibly detained." He conceded, and la ter 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 h e was there at the insistence of the district police chief and "on ly to witness, on behalf of the police," the execution of a photog rapher. Sprogis testified that as he was leaving Litene he saw 100 to 150 prisoners marching toward the camp where the photog rapher had been executed. Testimony by other witnesses indica ted that "Sprogis, at the direction of the Nazis, ordered th e arrest of all Jews in the area. . . . that the [police force of which he was a part], including Sprogis, participated in tra nsporting and guarding approximately 200 Jews just prior to their execution . .

. ." Id. at 120. As in the case at bar, in Sprogis the governme nt sought denaturalization under 8 U.S.C. §§ 1451(a) and 1427 , with allegations grounded in § 10 of the Displaced Perso ns Act ("DPA"). The government claimed Sprogis' citizensh ip 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 cit izenship was procured through misrepresentations concerning his participation in persecution. Confronted with such evidence, the court affirm ed the
district court's conclusion and stated: to prevail under any of its theories, the government had to show that Sprogis assis ted in the persecution of Jews or other civilian s and that the government had not satisfied its substantial burden of proving that assist ance by 'clear, unequivocal, and convincing' evid ence which does 'not leave the issue in doubt. 'Sprogis, 763 F.2d at 120 (citing Fedorenko v. Unite d States, 449

U.S. 490, 505 (1981), and quoting Schneiderman v. U nited States, 320 U.S. 118, 125 (1943)). The court reiterated th e district court's finding of "no credible evidence that Sprog is personally

arrested or ordered the arrest of a Jew or walked t he streets . . . with the demeanor of a uniformed or armed conquer or . . . 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 sta tion during the detention of the prisoners and he allowedtheir incarceration to continue. However, these were not acts of oppression. They do not amount to the ki nd of active assistance in persecution which the DPA c ondemns.

Id. at 122, (citing Laipenieks v. I.N.S. 750 F.2d 1 427, 1432 (9th Cir. 1985) (assistance in persecution under 8 U.S.C . § 1251(a)(19), a companion statute to the DPA, requir es "proof of personal active assistance or participation in pers ecutorial
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 p articipated in some act of oppression directed against persecuted civilians." Id. at 122. The court went on to acknowledge Sprog is' passive accommodation of the Nazis, but stated,
There is no clear evidence that he made a ny decision to single out any person for arr est and persecution or that he committed any host ile 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 th e horrors of World War II, does not, in our view, e xclude him from citizenship under the DPA.

Id.

The district court's conclusion that the govern ment established by clear, unequivocal, and convincing e vidence that defendant was commander of the ghetto guard during the relevant period and thereby responsible for enforcing confin ement of Jews is based only upon the fact that he was "assigned" as "Guard Commander in Vilijampole." Even if such a conclusi on 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 evidenc e regarding Stelmokas' conduct on September 17, 1942 was not su fficient 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. Th e OSI contends that Stelmokas participated in this slaughter, agai n on the basisof very limited direct evidence. The only direct e vidence is

that two witnesses stated in 1994, drawing upon the ir childhood memories 54 years past when they were 12 and 14 yea rs of age, that they recall seeing men in Lithuanian army unif orms participating in the massacre. The record indicate s that these
Lithuanian soldiers could have been members of eith er the Sonderkommando company or the 3rd Battalion. No ev idence
confirms that these Lithuanian soldiers were member s 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 wi tness, concluded that the Nazis must have needed help to d o their killing and that Stelmokas must have participated i n the massacre. In so doing, Dr. Hilberg pieces together a rather
tenuous inferential chain: Facts: Thousands of Jews were slaughtered in t he ghetto on October 28, 1941; two eye-witnesses testified 54 ye ars later that soldiers wearing Lithuanian uniforms participated. Such soldiers

could have been members of the Sonderkommando or th e Schutzmannschaft. First Inference: Because many Jews were killedon 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 enli st such help, and because two eye-witnesses testified that they s aw men in Lithuanian uniforms, the 3rd Battalion must have be en 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 enl ist the 3rd Battalion, all battalion officers must have partici pated. Fifth Inference: Assuming that the 3rd Battali on was the group ordered by the Nazis to assist (Inference Thr ee), 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 inferenc e to be legitimate, as set forth in note 3 ante, the reason ing 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 establishe d. Here, however, the conclusion (Stelmokas participated) is not directly related to the datum (many Jews were killed by sold iers and some soldiers wore Lithuanian army uniforms). Instead, the conclusion requires that one meander through four other infere nces 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 evide nce which does
not leave the issue in doubt." That men in Lithuanian uniforms were allegedly present simply cannot support the bold conclusion that thes e men must have been members of the 3rd Battalion, let alone t hat one ofthese men must have been Stelmokas. The men in Lit huanian

uniforms very well could have been members of the S onderkommando company. A comparable chain of quintuple inference s 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. Acco rdingly, I agree with Judge Stapleton and I accept his analysi s 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 r everse the court's
determination on Count I.

III. In Count II the government alleges that St elmokas was ineligible for a visa because he voluntarily assist ed the enemy forces in their operations against the United Natio ns. The heart of this contention is that a finding of mere servic e 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 unpersuasiv e for two

reasons. First, the government relies on part II of the International Relief Organization (IRO) Constitution, incorporate d into the Displaced Persons Act. That provision precludes ce rtain 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 Displac ed 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 UnitedStates or its Allies on the Western Front (including Nor th Africa and Italy) during that period of World War II beginning December 8, 1941; a person shall not be deemed so t o have served voluntarily if he establishes that he was compelled against
his will to serve in the armed forces or a uxiliary organizations, against the United States o r its Allies on

the Western Front.

8 C.F.R. § 702.8(f) (my emphasis). The 3rd Battali on served in the occupied Baltic countries, not on the Western F ront, and thecomplained 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 operatio ns against the
United States or its Allies in the Western Front. Moreover, commentary to the IRO Constituti on provides: Mere continuance of normal and peaceful du ties, not performed with the specific purpose of aid ing the enemy against the Allies or against the civil po pulation of territory in enemy occupation, shall not b e considered to constitute "voluntary assistance."

IRO Constitution, Annex I, Part II, 62 Stat. 3037, 3052. At trial, direct testimony was adduced tha t normal 3rd Battalion duties included guarding stationary insta llations such as bridges, warehouses, government buildings, peatb ogs, ammunition depots and communications facilities. A2 83-284. Official interpretations of Section 2(b) of the IRO Constitution, especially those limiting improper activities to th ose performed on the Western Front, required the OSI to produce m ore evidence than mere membership in a military or constabulary unit to support its contention in Count II. See also the d iscussion in Part IV, post, exempting from "movement which is or has been hostile to the United States" service in military f orces or local
constabularies. Under these circumstances I would h old that the government failed to produce sufficient evidence to sustain Count

II.

IV. In Count III the government charges that S telmokas participated in a movement hostile to the United St ates. The district court concluded that mere participation in the 3rd
Battalion was sufficient to warrant denaturalizatio n and that the government met its burden by demonstrating that Ste lmokas volunteered to serve in the 3rd Battalion, a Lithua nianSchutzmannschaft, an organization on the U.S. government's Inimical List. On this issue, I find unavailing bo th the government's argument and the district court's conc lusion. Although the government placed an Inimical List in evidence, A1644, it presented no evidence that mere membershi p 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 represe nted to the district court that it was necessary to present "th e testimony of someone who was--who operated or applied it . . . . " A723. The district court made clear that explanatory testimon y 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 migh t [be relevant]." Id. This exchange clearly demonstrate d the need for official explanation of how the List would have app lied to persons seeking displaced-persons status. Yet no such explanatory testimony was fort hcoming. The only
evidence introduced was an Inimical List in the nud e. Although Appellant's counsel stipulated that it was an Inimi cal List andin effect at the relevant times, he did not stipula te 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 witn ess that membership in the Schutzmannschaft, in and of itsel f, 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 o f applicants for displaced-persons status to any person who: (d) Is or has been a member of or participatedin any
movement which is or has been hostile to the U nited States or the form of government of the United States ; such a
movement includes but is not limited to the co mmunist, Nazi or Fascist parties or political or subversive groups of an ideological character similar to that of the a forementioned parties; . . . .

8 C.F.R. §702.8(d) (my emphasis). By cable dated April 20, 1949, Secretary of State Dean Acheson interpreted "moveme nt" in § 13 of the Act not to include military forces or local con stabularies. Appellant's Br., Exhibit A. Significantly, at the time Stelmokas made his application in July, 1949, the Secretary o f State's
directive was in full force and effect. Given that the 3rd Battalion operated very much as the local constabul ary, Stelmokas' membership in that organization should n ot for purposes of § 13 be construed as membership in a "m ovement"
hostile to the United States and its allies. The government failed to produce testimony desc ribing how the List was used. There is not a smidgeon of evid ence to indicate that mere membership in an organization na med on the
Inimical List was a sufficient basis on which to de ny Stelmokas' visa application. Moreover, Secretary Acheson's in terpretation of "movement" indicates that Stelmokas' membership in the 3rd Battalion, a military force or constabulary, was no t sufficient to trigger disqualification for displaced-persons s tatus under the Displaced Persons Act. Accordingly, the govern ment has failed to meet its high burden of proving that Stel mokas, by mere membership in a local military or constabulary orga nization, voluntarily participated in a movement hostile to t he United

States. I would therefore reverse the court's conc lusion on

Count III.

V. At the time of Stelmokas' immigration in July, 1949, U.S. State Department regulations prohibited issuing vis as to any alien "who has advocated or acquiesced in activitie s or conduct contrary to civilization and human decency on behal f of the Axis countries." 22 C.F.R. § 53.33(j). In Count V the government alleges that under this regulation Stelmokas was in eligible for a visa. The government contends that he was ineligib le first,
because he failed to leave the 3rd Battalion and se cond, because he persecuted civilians on September 16-17 and Octo ber 28-29, 1941. I will address these arguments in turn.
The district court determined that Stelmokas' " failure toleave the Schutzmannschaft or to act on behalf of t he Jews

constituted acquiescence in conduct contrary to civ ilization." The court thus concluded that the government had me t its burden on Count V. Dist. Ct. Op. at 55-56. The court err ed. More than mere membership in the Schutzmannschaft is necessar y to prove conduct contrary to civilization and human decency. Indeed, the Supreme Court teaches that mere membership is not e nough and that there must be proof of actual participation in such conduct. The Court "focusing on whether particular conduct can b e considered assisting in the persecution of civilians." Fedore nko v. United States, 449 U.S. 490, 512-513 n.34 (1981). Althoug h it is undisputed that Stelmokas was a member of the 3rd B attalion, the record provides no evidence that he participated in conduct that amounted to persecution of civilians. It is conduc t in an organization, not mere membership, that determines culpability. The government contends in Count V that Stelmok as acquiesced in conduct contrary to human decency by participati ng in the persecution of Jews on September 16-17 and October 28-29, 1941. As I have indicated in my discussion in Part II, th e government did not meet its high burden of proving that Stelmo kas actually participated in persecuting Jews on these dates. P rofessor Hilberg's testimony is significant in this respect: "I did not see in any of the sequence of documents . . . anyth ing that would indicate [sic (implicate?)] Stelmokas directly in t he 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 p ersecution, does not constitute conduct contrary to civilizatio n 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. 1 985); Ofsua v. McElroy, 933 F. Supp. 237, 243-244 (S.D. N.Y. 1995. ) The government has not demonstrated that Stelmo kas' mere membership in the 3rd Battalion constituted advocac y of, or acquiescence in, conduct contrary to civilization. Moreover, the record is devoid of any competent or persuasive evi dence 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 denatura lization. Accordingly, I would reverse the district court's d etermination
on this issue.

VI. In Count VI the government charges Stelmokas wi th 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 di rect 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 gover nment failed to prove that Stelmokas was voluntarily and directl y involved in the persecution of Jews in September and October 19 41. Moreover, this court recently affirmed a district court's con clusion thatdetermination of a person's moral character must re ly on

something more than superficial evidence of a perso n'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 rev oke citizenship by finding that a person prima faci e lacks good moral character simply because he held the titl e of concentration camp guard without some further s howing that the person engaged in some morally reprehensibl e 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 e vidence of any illegal conduct and based on nothing more than Stel mokas' mere membership in the 3rd Battalion, the government cou ld not prove and the district court improperly concluded that he lacked the good moral character required for citizenship. Acc ordingly, the court erred in granting judgment to the government on Count V.

VII. In Count IV the government alleges that Stelmok as' order and
certificate of naturalization should be revoked on the ground that such order and certificate o f 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 governme nt contended "that in failing to list his wartime residences and occupation, Stelmokas made a willful and material misrepresenta tion 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 o f § 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 pro cured" 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 a ssisted the military operations of the Axis powers, and hadbeen a
member of a movement hostile to the United Stat es and its form of government.

Conc. Law 32.

From this the court concluded that Stelmokas wa s ineligible to immigrate pursuant § 10 of the DPA; that such in eligibility 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 pro cured" clausemust not be evaluated in a vacuum. The district co urt'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 orde r to gain entry as a displaced person. The argument next con tends that Stelmokas made misprepresentations and because the misrepresentations were material, he was ineligible for entry; therefore, Stelmokas' actual entry was unlawful andhis naturalization "illegally procured." The critical inquiry is whether the government met its important threshold burden of proving a misrepresentation as defined in the Displ aced Persons

Act.

A. Our starting point is the statute: Any person who shall willfully make a misrepres entation for the purpose of gaining admission into the Unite d States as an eligible displaced person shall thereafter n ot 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, eli gibility investigations and reports were made only by the Di splaced Persons Commission (DPC). The Commission defined misrepresentation for the purpose of § 10 of the Ac t: Misrepresentation. "Misrepresentation for the purpose of gaining admission into the United States" refer s to a willful misrepresentation, oral or written, to any person while he is charged with the enforcement or adm inistration of any part of the Displaced Persons Act, of an y matter material to an alien's eligibility for any of t he benefits
of the said Act.

8 C.F.R. § 700.11. It is not disputed that Stelmokas misrepresented his wartime residences and occupatio n. Thus, the first inquiry is whether those misrepresentations m et the legal standard of materiality. The Supreme Court established the current test in Kungys v.
United States: [A] concealment or misrepresentation is materia l if it `has a natural tendency to influence or was capable of influencing, the decision of' the decision maki ng body to which it was addressed . . . We hold, therefore , that the test of whether Kungys' concealments or misrepr esentations were material is whether they had a natural ten dency to influence the decisions of the Immigration and
Naturalization Service.

485 U.S. 759, 770-772 (1988)(citing, inter alia, We instock v. United States, 231 F.2d 699, 701-02 (D.C. Cir. 1956 ). I concede
that Stelmokas' failure to disclose his wartime mil itary status would have had a natural tendency to influence immi gration decisions. However, as the Court made clear in Kun gys and United States v. Gaudin,___ U.S. ___, 115 S.Ct. 2310, 2319 (1995), materiality is a mixed question of law and fact. A s in all mixedquestions, the definition of the legal component mu st come first,

followed by a presentation of facts against which t he legal component must be measured. In denaturalization cases, equally important to establishing a material statement is the presentation of evidenc e that the misrepresentation procured the order and certificat e of naturalization. See Gaudin, 115 S.Ct. at 2314. Th is is the factual component of the mixed question. Establish ing at least a modicum of evidence on the procurement element is e ssential to the government's burden of proof. In Kungys, a prototype of OSI prosecution, the defendant twice misrepresented his date and place of birth: o nce in 1947, when applying for a visa, and again in 1954, when p etitioning for naturalization. The Court approved dismissal of th e government's complaint against Kungys because misrepresentations about his place of birth, wartime occupations and residence w ere not shown to be unequivocally material. In addition to being required to demonstrate materiality as a matter of law, i.e., t hat 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 th is court to apply different meanings to the term "procured" in the two clauses of § 1451(a). The government suggests that it has different u ltimate burdens depending on whether "procured" applies to naturalizations that are "illegally procured" or to those "procured by concealment of a material fact or by w illful misrepresentation." There is no rational support f or the suggestion that Congress intended such an anomalist ic reading of
the same word in the same section of the same statu te. There is absolutely no rational support for the notion that the government is not required to produce evidence showing precise ly how Stelmokas was "unlawfully admitted" and whether his naturalization was in fact "illegally procured." I f under the second clause in § 1451 the government must show th at the naturalization was "procured by" the alleged misrep resentation, as the Court held in Kungys, then under the first c lause certainly the government must demonstrate that Stel mokas was ineligible and therefore unlawfully admitted. The traditional procedure by which the governme nt has shown ineligibility, used in every case it has brought ex cepting this one, is to proffer testimony that the applicant's n aturalization, or Displaced Persons status, resulted from the alle ged 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 misrepres entations procured the applicant's citizenship. Indeed, the combined opinions of Justices Scali a and Brennan in Kungys, and Justice Scalia's opinion for a unani mous 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. Thegovernment must show not only that the misrepresent ation would

have a "natural tendency to influence" the DPC anal yst's decision, but also that the misrepresentation did i n fact influence that decision. Thus, Justice Scalia's op inion for the Kungys Court points out that § 1451(a) of the denat uralization statute contains four independent requirements: the naturalized citizen must have [1] misrepres ented or concealed some fact, [2] the misrepresentation or concealment must have been willful, [3] the fac t must have been material, and [4] the naturalized cit izen must have procured citizenship as a result of misrepresentation and concealment.

485 U.S. at 767 (my emphasis). The requirements above must similarly be establ ished in this case to prove the § 10 Displaced Persons Act allega tions made by the government. The repeated use of the word "proc ured" in both grounds for revoking naturalization under § 1451 ma kes clear Congress' intent to impose on the government the fo urth requirement--that some nexus be established between the misrepresentation or unlawful conduct and the appli cant's receipt of the naturalization certificate--regardless of th e 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 o f materiality, Stelmokas' misrepresentations were mat erial to the extent that they had "a natural tendency to influen ce the decisions." Id. at 768. The critical lack of proo f in this case lies with the fourth requirement--that the misrepre sentations did, in fact, result in ineligibility. Without thi s critical factual base, the argument may not properly proceedto subsequent prosyllogisms and episyllogisms culminating in "unl awfully 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 Stu ttgart, Germany, who described how immigration officials ha d interpreted and administered the immigration law during the per iod in question. See United States v. Kungys, 793 F.2d 51 6, 530-31 (3d Cir. 1986). Justice Brennan, who furnished the fif th vote for the majority in Kungys, emphasized in his concurrin g opinion that such testimony was essential. 485 U.S. at 783. Th us, the precise holding in Kungys was that only after prese ntation of a prima facie factual case and a demonstration of mat eriality was the government entitled to a presumption that the a pplicant was ineligible for citizenship. Justice Brennan's conc urrence eloquently articulates his concern that the "precio us right" of citizenship not be revoked unless the government ha s met its full evidentiary burden: I agree with this construction of the stat ute. I wish to emphasize, however, that in my view a presumption of ineligibility does not arise unl ess the Government produces evidence sufficient to rais e a fair inference that a statutory disqualifying fact a ctuallyexisted. It is this fair inference of ineligib ility,

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 C ourt employs. Evidence that simply raises the possi bility that a disqualifying fact might have existed do es not entitle the Government to the benefit of a pres umption that the citizen was ineligible, for as we have repeatedly emphasized, citizenship is a most pr ecious right, . . . and as such should never be forfei ted 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, t o "produce
evidence sufficient to raise a fair inference of in eligibility." Id. The absence of factual evidentiary support reg arding ineligibility based on Stelmokas' statements render s wholly speculative the conclusion that such misrepresentat ions led to an
unlawful admission to the United States and ultimat ely illegally procured his naturalization. I find no inconsistency between the teachings i n the opinions of the Court in Kungys and Gaudin, both au thored by Justice Scalia. In Kungys, a denaturalization case involving the second "procured by" clause of § 1451, the Court re quired presentation of factual evidence that "the naturali zed citizen must have procured citizenship as a result of misre presentation
or concealment." 485 U.S. at 767. It follows inexo rably that when relying on the "illegally procured" clause, th e government must also present evidence demonstrating that the a dmittee was ineligible for admission. In Gaudin the Court stre ssed the necessity of developing the factual basis of "mater iality" 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 2 319. Similarly, the Court in Kungys stressed the importa nce of presenting facts on the issue of illegal procuremen t of citizenship by referring to the testimony of Ambass ador Finger on how immigration officials interpreted and administe red immigration law during that period. Making referen ce to this in Gaudin, Justice Scalia described Kungys as an examp le where "the appellate court's newly asserted standard of materi ality could be applied to the facts [of materiality] by the appell ate 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 presen ting evidence in two discrete respects: (1) evidence detailing wa rtime 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 defendan t's application would have been denied or subjected to additional investigation. Indeed, every OSI prosecution that I researchedcontained testimony by officers of the Displaced Pe rsons

Commission, consular officers or both describing th e effect that a particular misrepresentation would have had on th e analysts examining the application. This essential testimon y sets forth whether the authorities would have granted, denied, or referred the application for further investigation, and it s ets forth a prima facie case on whether the applicant's alleged misrepresentations procured the visa and naturaliza tion decisions made by the officers. In the leading Supreme Court cases that inform our denaturalization jurisprudence, the OSI presented w itnesses who
testified that the visa would not have been issued had the true facts been known. In Fedorenko, vice consul Kempto n 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 descr ibed 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 underscoredthe 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 O SI that I researched, including the Supreme Court decisions c entral to our jurisprudence in denaturalization matters, the OSI presented evidence not only that the alleged misrepresentatio ns had a natural tendency to influence, but also that they d id in fact so influence the visa decision--i.e., that the visa wa s procured by the applicant's misrepresentations. Such evidence was starkly absent in the present matter and this absence is fa tal 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 prose cutions have been presented without testimony by a representativ e of the Displaced Person Commission, the International Reli ef Organization or the consular service as to the effe ct of the misrepresentation on the applicant's procurement of citizenship. Counsel responded, "I will send you a letter one wa y or another, Judge Aldisert." Although the government's counsel filed a supplemental brief following oral argument, the bri ef did not supply the information requested by the court. Thu s, I will draw the appropriate inference.

B. I have conceded that Stelmokas' misrepresentati on of wartime activities would have had the "natural tendency to influence the decision" of DPC officials. Therefore, the governm ent 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 failedto produce evidence that Stelmokas' misrepresentations procure d the decision of the DPC analyst and the naturalization officials . The government failed to produce any prima facie eviden ce that the visa and naturalization decisions were procured by the allegedunlawful conduct.

Although no such evidence was presented to the district court, the court nonetheless concluded: 33. Defendant was ineligible to immigrate to th e United States pursuant to DPA § 10. His entry to the United States for permanent residence in 1949 was ther efore
unlawful and his naturalization as a United Sta tes citizen on April 11, 1995 was illegally procure d.

Dist. Ct. Op. at 54-55. Here the court conflated a question of law with a question of fact. It decided, and prope rly so, that the misrepresentation had a natural tendency to inf luence the decision making. This was the question of law. It then decided, as a matter of fact, that the misrepresentation didin fact influence and procure the government's visa decisio n and, therefore, subsequently procured unlawful naturaliz ation. The

court erred here because the record was barren of a ny testimony regarding what factors procured his visa, let alone which types of misrepresentations would have made Stelmokas ine ligible for entry at the time he applied. That the procurement element in § 1451 is a question of fact is set forth in Kungys i n both the opinion of the Court and the concurring opinion of Justice Brennan; it is also established in Gaudin and refle cted in OSI's universal practice of presenting testimony by offic ials as to the immigration policy of the United States at the rele vant time. By way of analogy, a trial judge in a murder ca se would hear the prosecution's evidence that, as a matter of law , a bullet
fired from a defendant's Colt .45 had the natural t endency to cause death. However, the prosecution still would have to prove that, as a matter of fact, a .45 bullet was a facto r in the decedent's death. Likewise, as an experienced judg e reviewing matters having to do with State Department or immig ration policy, I can decide as a matter of law the legal component of a mixed question of law and fact. But it is absolutely nec essary that, before I may properly perform that judicial functio n, some facts be developed against which the legal standard can b e measured. A fortiori, I confess ignorance as to the factu al overlay of discretionary powers vested in immigration official s in the turbulent post-war years of the late 1940s. I sugg est that my distinguished judicial colleagues on this court, on the district court and on the Supreme Court also lack this infor mation. Such
crucial factual information is not the stuff of whi ch judicial notice is made; it is the stuff that must be presen ted as record
evidence at a trial. Yet the district court determ ined as a matter of law, without even a prima facie showing r egarding relevant United States immigration policy, that "De fendant was ineligible to immigrate to the United States pursua nt 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 whet her the analyst would have decided to grant, deny, or furth er investigate Stelmokas' visa application based on that List. Bec ause the OSIfailed to present any evidence, the court could onl y conjecture

that the analyst would have thought conditions in o ccupied Lithuania justified a finding of ineligibility. Be cause the OSI failed to present any evidence, the court had to su rmise that the analyst would have found the 3rd, 11th or 253rd Bat talion of the
Lithuanian National Labor Defense Battalions active ly assisted the Nazis in the persecution of civilian population s. 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 Jul y, 1949. Therefore, we are left to hypothesize. Hypothesizi ng is no substitute for proof, especially where the burden i s "substantially identical with that required in crim inal cases-- proof beyond a reasonable doubt." Klapprott v. Uni ted 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 jurispruden ce there is no analogue to permitting a trial on events that oc curred a halfcentury in the past. Indeed, with the exception of murder cases, all criminal and civil proceedings are rigorously c ircumscribed by fixed statutes of limitations. Such statutes pr eclude the institution of criminal or civil complaints after a finite number of years. Similarly, in equity petitions, stale ac tions are barred by the doctrine of laches. The policy that undergirds our statutory and ju dicial
limitations on such actions is rooted in an underst anding that with the passage of time, witnesses disappear and m emories fade. Such a policy reflects appreciation for the reality that, because our memories are fragile and inevitably compromisedby the ravages of time, at some point they can no longer b e considered trustworthy for presentation under oath as "the tru th, the whole truth and nothing but the truth." It may well be t hat a half century after a Displaced Persons Commission's anal yst examined the visa application of Jonas Stelmokas, witnesses are either no longer available or incapable of testifying as to t he immigration practices of the United States in 1949. This is th e price that the government must pay for bringing any case so lo ng 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 t ook place in 1941. Nevertheless, the judiciary continues to per mit the prosecution of stale denaturalization cases like th is one. Perhaps this is because such cases embody a fundame ntal tension between two venerated precepts of the American lega l tradition. One precept dictates that those responsible for the Holocaust be punished: that they be sought out in America and ei ther extradited to Israel or denaturalized, deported andultimately punished by the sovereignty where the despicable ac ts 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 o f proof, particularly in so important a matter as a denatura lizationproceeding. Because such cherished values are at s take, decision

by judicial fiat must never replace decision-making based on the presentation of evidence. Thus, when we come to th e intersection of such esteemed precepts, we must be especially vi gilant 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 i n World War II to combat the forces of tyranny are understandab ly sensitive to these issues. We are sensitive to the danger th at fundamental values of our glorious American tradition, includin g the protections guaranteed by our legal system which we fought to preserve, might be compromised in a fervor to punis h one who may have aided the bestiality of our common enemy. We are especially sensitive when that effort to punish is initiated m ore than half a century after the last shot in anger was fired. Certainly those who violate the rules of society must be puni shed, but society itself must never breach its own rules to a chieve 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 discre tion of our executive branch. Nevertheless, if these prosecuti ons have not already pushed the envelope beyond traditional noti ons 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 a bout the constitutionality of so stale a prosecution, I do n ot meet the due process issue here because I would grant relief on other grounds. For all the foregoing reasons, I dissent. I wo uld reverse the judgment of the district court ordering denatur alization.