*1 paying appropriate court costs and first
filing fees.” UNITED STATES of America rejected present by cases injunction. in accord with Abdul- clerk KOWALCHUK, Serge a/k/a liberally, papers, construed call into lah’s Serhij Kowalczuk question propriety injunction. he is to He claims that because unable Appeal Serge KOWALCHUK. bring in the federal courts other actions No. 83-1571. by proceeding pauperis, than forma Court unconstitutionally Appeals, States injunction bars him from Third concerning Circuit. bringing any action whatsoever imprisonment. Argued April 1984. authority, A has the district court Argued 6,May In Banc 1985. determining grant to deny whether or Sept. Decided prisoner’s proceed pau motion to in forma “impose peris, to conditions a liti gant long onerous conditions—so as —even
they making assist court case [the] [its poverty, frivolity, case determination are, maliciousness], long so together, so
taken burdensome as meaningful
deny litigant access to the Green,
courts.” In re F.2d
(D.C.Cir.1981). A court district
may protect ability carry but should against
out its constitutional functions onerous, multiplicitous,
threat of and base litigation.
less Martin-Trigona, In re Cir.1984). (2d
F.2d 1254
We believe that district court limiting
was within its discretion Abdul- ability bring pauperis
lah’s in forma believe, however,
actions at will. We order in effectively is overbroad block-
ing any relating action whatsoever to his
arrest, imprisonment conviction and in that precludes
it from filing Abdullah even
meritorious claim. Whatever overbreadth
exists, however, easily can cured
modifying injunction require Abdul- to seek
lah leave of district court be- filing
fore such actions. cases, however,
We do not remand these independently
because we have determined deny
them to be frivolous. We therefore proceed
the motions for leave in forma
pauperis appeals. and dismiss the 1915(d).
U.S.C. trust We nevertheless injunction will be modified in the
manner opinion. described in this *2 Rogers (argued), Carroll Carroll &
John Carroll, Pa., Philadelphia, appellant, for Al- Pease, lison on brief. Sher, Director, Wolf,
Neal M. Michael Director,- (ar- Deputy Jeffrey N. Mausner Rosenthal, (argued), gued), U.S. Samuel D.C., Justice, Washington, Department of appellee. SEITZ, ALDISERT, Judge, Before Chief HUNTER, WEIS, GIBBONS, ADAMS, SLOVITER, HIGGINBOTHAM, GARTH, ROSENN, MANSMANN, BECKER, Judges Circuit THE COURT OPINION OF ROSENN, Judge. Circuit proceedings instituted The Government to re- District Court States admitting the set aside an order voke and Kowalchuk, defendant, Serge illegal- naturalization had been because his of a material ly procured by concealment misrepresentation.1 fact or willful essence, alleged the de- complaint response to failed to disclose fendant procedure during the admissions questions membership facts: his certain material militia employment by the Ukrainian Poland, Lubomyl, dur- his residence years 1941 and 1942. ing the war (1982) and 28 pursuant complaint § under sec- U.S.C. filed its to 8 1. The Government (1982). appellate 340(a) Nationality Immigration This court has § U.S.C. tion amended, 1451(a) (1982). § 8 U.S.C. jurisdiction Act of 28 U.S.C. under jurisdiction court exercised The district complaint alleged pressed by services, thus that he entered this his superiors, his country unlawfully, procured perma- his August defendant, sent the according fraud, nent residence obtained to his testimony, special elsewhere for illegally. naturalization training expense at no to him. He was the court, selectee from area in a conclud- The district *3 class of between Upon 45 and 50. illegally procured ed that the defendant his conclusion of his entering six months citizenship by country with an “additional training in local administration” separate grounds It had two and Ger- invalid visa. language man First, study, he received a the defendant certifi- for this conclusion. completion cate of and returned to genuine refugee a of concern to the was not duties with Lubomyl (IRO) Refugee Organization schutzmanns- International chaft. His duties now were full time ineligible and therefore was for admission the militia3 until he fled Lubomyl Displaced Act with the under the Persons of 1948 (DPA), 80-774, retreating Pub.L. No. 62 Stat. 1009 army. Germaii As was the case (1948) (codified App.U.S.C. at 50 only 1951- with deputy commandant and §§ com- (1982)). Second, mandant, the defendant was private defendant had his own ineligible under section 10 of the DPA be- occupied office and quarters these for al- misrepresenta- cause he had made material years, most three the remainder of the tions to the visa. obtain The court accord- occupation. Nazi ingly revoked the defendant’s citizenship and canceled his certificate of naturaliza- A. tion. affirm. We fully appreciate To the defendant’s role schutzmannschaft, with the an under
I. standing of its function and its crucial im proceedings These revocation have their portance to the Germans in carrying out genesis Serge Kowalchuk’s activities policies army of the German in the shortly after military the German forces may Ukraine helpful. The Germans or occupied Lubomyl in June 1941. Within ganized indigenous personnel and formed two or occupation, three weeks after auxiliary them into They organized forces. organized Germans the Ukrainian schutz- Lubomyl pre schutzmannschaft into Shortly thereafter, mannschaft.2 the de- cisely body. such auxiliary These forces fendant, then an twenty-one able-bodied carry enabled the Nazis to repres out their year man, service, military old suitable for and, policies sive and brutal at the same successfully sought out the collaborating time, wage aggressive an military cam mayor city of the for employment. paign. found, As the district court “the assignment His first was to the food occupying rely upon ‘indige authorities did distribution center serving government em- forces,’ i.e., nous segments of the local ployees and the apparently militia. He population, carry on the functions of charge, for the employee other government and to enforce the observance there was his assistant. In about one and of restrictive edicts.” United States v. months, one-half assigned he was to the Kowalchuk, (E.D.Pa. headquarters schutzmannschaft across the 1983). street. He worked at the food distribution center in mornings and at According militia head- Hilberg, Professor Raul quarters in Apparently afternoons. im- leading authority produc- the Holocaust Lubomyl 2. The officially Kowalchuk, Mykola brother, militia was known as defendant’s testi- interchangeably supplemental schutzmannschaft but was fied that after his brother’s train- ing given referred Lubomyl defendant was witnesses as the additional duties in Mykola acknowledged the militia. police further militia or force. Prior to the schutz- deposition mannschaft, trial that in his 1981 his brother at times wore a he testified that Lubomyl had no force or uniform, as did all militia. the schutzmannschaft. responsibili- defendant of the by the was aware expert Government ed as witness auxiliary assigned schutzmannschaft, trial, availability of an ties to the “the personnel occupied responsible position, was of force of Ukrainian al- made Germans, particu- clerical, largely organiza- importance beit within that crucial nothing at all larly them without tion. because accomplished” carrying could have been apparent ... It is that members ... army German policies of the out the accompanied the schutzmannschaft Hilberg Dr. further occupied territories. gendarmes many German on the occa- the sheer numbers of those testified that sions disclosed when re- liquidation of the killed in the Jews persons up forced were rounded la- indigenous personnel. quired the use of bor, supposed or arrested for various found, magnitude court
As the district infractions; persons many liquidate day in one plan to of the brutal apprehended thus were killed soon after- 6,000 living 5,000 *4 the Jews ward; and of the that members schutz- required only the German soldiers during mannschaft present were such ex- “significant available, also but numbers ecutions. es- militiamen to assist them in Ukrainian F.Supp. 571 at 81. ghetto the to the corting the Jews from The that district court concluded al- site, escapes.” prevent execution disclose, though the did not with evidence Kowalchuk, F.Supp. 571 United States requisite clarity, the that the defendant court found The district 81. personally participated in individual evidence does establish with What the atrocities,4 found: the court nonetheless clarity and convictionis that requisite the evidence as a whole leaves little [T]he regularly Lubomyl the schutzmannschaft everyone that with doubt associated the the law routinely enforced martial schutzmannschaft, including the defend- Germans, imposed by the in- restrictions ant, must of the harsh have known re- beating found the cluding Jews outside pressive the measures which schutz- curfew, beating severely ghetto after or carrying pursuant out mannschaft were reprimanding Jews who failed to wear to German direction. insignia, assisting required the the Ger- F.Supp. 571 at 81. confiscating from the mans in valuables inhabitants, arresting partici- Jewish punishment per- B.
pating in the harsh from retreated in black-market activities When Germans sons involved Ukraine, to flee elected with activities hostile to the defendant subversive forces; The them to defendant occupation German and that the Czechoslovakia.5 Sir, fragebogen Q. on is there a government produced ... sec- three non-Soviet 4. you you forcibly at the trial witnesses who testified to the defend- tion ... said in.which participation personal in in Lu- transported ant’s atrocities by the Germans Czechoslo- judge Although expressed bomyl. the trial con- "forcibly vakia? the words trans- You used honestly,” "testified fidence that these witnesses ported;” is that correct? good ques- he tioning there were reasons for believed A. Yes. reliability He evidence. testified, fact, you previously Q. When in as witnesses, testimony of six viewed the Soviet go; your go or not to it was choice to own deposition by videotape who testified about that correct? personal participation atrocities Kowalchuk’s in A. Yes. skepticism Lubomyl, greater in with court, (A 1173) brief to this Govern- ground by had been selected the Soviet notes, misrepresentations among ment other under its control. and were defendant, that he also claimed “[he] (GA forcibly transported by the Germans been in this case leaves no doubt that The record 5. fact, 26, 30; 15A,([42) as when in he Gov’t Ex. departed voluntarily. The de- the defendant (A voluntarily Lubomyl trial, left left on admitted he testified that he the evacuation fendant 1170-71, 1335) 1255).” 1335)(A (A family. train with his Mykola amplified this on cross-exam- following: ination with brother, Mykola, responses fragebo- ultimate- Kowalchuk’s younger and his persons camp gen misleading displaced near were false and in fol- ly at a arrived (1) lowing spending respects: Austria. After four Kowalchuk concealed Salzburg, there, applied membership in in years the defendant No- the Ukrainian schutz- necessary by falsely stating mannschaft 1947 for the clearance that .he vember refugee “of a tailor’s assistant certifying that he was con- Kremianec from 1939 (2) obtain to 1944. He concealed his cern” to IRO. To this certifica- residence Lubomyl falsely tion, required by stating executed a de- the defendant he had history (the (3) personal form CM/1 lived Kremianec from tailed form). form He listed The defendant stated on this attendance at trade school Chelm, Poland, during occupation German between and 1939 Kremianec, Ukraine, sent, he Lubo- and concealed the fact lived that he was claims, special a tailor. he now myl, schooling and that he worked there as Lubomyl by He his service with the govern- concealed Nazi-controlled (4) during Lubomyl. court ment of militia war. district He concealed his form, personal-history voluntary departure retreating found: “In his CM/1 with the intentionally misrepresented military Lubomyl the defendant German forces Czechoslovakia, residence in falsely stating and/or concealed his govern- employment forcibly left his and his town homeland because he was transported (5) during occupation.” ment the German there Germans. In re- sponse question concerning to a member- *5 ship any political, non-political, param- or step The defendant then took the next to ilitary organization, falsely replied he gain admission to the United States as a “none,” thereby concealing membership his permanent purpose, resident. For this he in the schutzmannschaft.6 personal history submitted additional questionnaire, “fragebogen,” together II. documentation,
with
representa-
his IRO
to
Displaced
tives of the United States
Per-
appeal,
argues
On
Kowalchuk
that
(DPC).
sons
After
Commission
re-
district court
committed reversible error
quired investigation,
duly
he was
certified
(1)
respects:
legal
two
its
conclusions
meeting
eligibility require-
in 1949 as
supported
by
either
own
factual
applied
ments of the DPA. He then
to the
findings
record;
by
or
the evidence
and
vice consul of
the United
States
(2) his
process rights
due
were violated
Austria,
Salzburg,
and
December
investigate
because he was unable to
and
1949, he obtained a
for
visa
admission to
“potentially
interview
favorable witnesses
permanent
the United States for
residence.
him”
residing
to
Soviet-controlled terri-
petition
granted
His
for naturalization was
tory.
30, 1960,
on November
and he was admit-
under
Government
sued
section
citizenship.
ted to
340(a)
Immigration
Nationality
of the
fragebogen opened
amended,
with
1451(a)
the admoni- Act
8 U.S.C. §
questions
(1982)
tion
“all
that
must be answered
to have Kowalchuk denaturalized.
complete”
all information must be
provides
and This statute
for the revocation of
signature
admitting
concluded with Kowalchuk’s
person
citizenship
an order
a
his attestation that “if it is
found
be
if such order and naturalization certificate
untrue,
incomplete,
misleading
any
or
illegally procured
procured
“were
or were
point, may
entry
be
by
denied
into the Unit-
of a
concealment
material fact or
ed States.”
misrepresentation.”
To
willful
obtain
Although
complaint charged
fragebogen
the Government's
also failed to disclose on the
only misrepresentations concerning the defend-
special training
misrepresented
his volun-
membership
ant's militia
Lubomyl,
and his residence in
tary flight
with
Germans.
undisputed
it is
that the defendant
stake____”
right
is at
applicant
tance
legally, an
citizenship
grant of
States,
for at Fedorenko
United
country
449 U.S. at
resided
must
505-06, 101
having
lawfully
been
years after
five
least
pursuant
permanent residence
for
admitted
proof
Although the burden of
1181(a) and
visa. 8 U.S.C.
a valid
§§
in a denaturalization
upon the Government
(1982).
1427(a)(1)
heavy, a
of citizen
proceeding is
certificate
States un-
entered the United
Kowalchuk
challenge.
It is
ship is not immune from
the DPA
pursuant
visa issued
der a
political privi
granting
instrument
“an
DPA
time. The
quota structure
grants
leges,
open
public
like other
immigration into
increased
permitted
it shall
found to
revoked if and when
be
persons displaced
eligible
States of
unlawfully
fraudulently pro
or
have been
gain
To
lawful admis-
War II.
World
Johannessen v. United
cured.”
permanent
for
the United States
sion to
DPA,
applicant
under
residence
Fedor
L.Ed. 1066
As the Court
a dis-
first had to establish
observed,
enko
aptly
the cases have also
refugee of concern to
person
placed
recognized
applicant
that an
for
Refugee Organization
International
comply
strictly
congres
with all the
must
DPA,
2(b).
guide-
(IRO).
The IRO
See
sionally imposed prerequisites
acqui
any per-
their concern
excluded from
lines
citizenship.
sition of
enemy
per-
either “assisted
son who
con-
comply
Failure to
of these
...” or “volun-
secuting
populations
civil
the certificate of citizen-
ditions renders
in their
forces ...
tarily assisted
“illegally procured,” and naturaliza-
ship
against
the United Nations.”
operations
unlawfully procured can be
tion that
provided
anyone
who
Finally, the DPA
in one of
explained
As we
set aside.
misrepresentation for the
a willful
made
prior decisions:
these
obtaining
would be inad-
purpose of
a visa
political rights as
An
who seeks
alien
Thus,
person
eligible
missible.
rightfully
can
of this Nation
a member
displaced person status under
refugee or
terms and con-
them
obtain
guidelines or who
IRO Constitution or
*6
by Congress ...
specified
ditions
misrepresentation on
made a material
application could be denaturalized
his visa
right to
slightest
alien has the
“No
v.
1451(a).
Fedorenko
See
section
under
statutory re-
unless all
naturalization
States, 449 U.S.
490,
737,
101 S.Ct.
United
with; and ev-
complied
quirements
(1981).
also United States required that the DPA (3d Cir.1964). exacting nent resident under “Any less stan- person displaced as a impor- he establish himself with the dard would be inconsistent impossible refugee concern to the IRO. The It is inference of avoid the or that the defendant had found favor with court found that the defendant was district occupiers Lubomyl, the Nazi of and was because he “of concern to the IRO” being greater trained for even service in forces,” enemy “voluntarily assisted the the future. that, under the Constitution determination IRO, If the defendant’s had been activities excluded the de- of have claims, innocuous as he there would eligibility from as a fide refu- fendant bona little reason for him been to leave Lubo- 2(b) displaced person. gee or Section of myl retreating Germans. incorporated DPA of a the definition person in the displaced set forth IRO Con- 571 Thomas, eligi- Michael chief R. stitution. provisions of constitut the IRO bility officer for the IRO in and co-au- ion,7 Thomas, Conan, and the Eligibility IRO Manual for thor Hilberg support the district court’s membership Officers, testified that in a findings convincingly demonstrate presumption police force or militia raised voluntary membership the defendant’s voluntary enemy. assistance the Ukrainian constitut schutzmannschaft enemy using forces “freed the These voluntary enemy. ed assistance to the Conan, people.” employed by A.P. its own court Serge The district also found that 1952, served the DPC between 1948 and perse- Kowalchuk “assisted the charge as a senior officer in stint cuting populations,” civilian an alternative commissioner’s activities for British basis its conclusion that the defendant essentially eligibili- He Zone. reviewed refugee a bona fide was not of concern to ty applications those whose Commis- We do IRO. not need to reach this proposed reject. sion He testified that Thus, issue. the defendant’s citation to applicant who had served Ukrain- Sprogis, (2d Cir.1985) U.S. v. F.2d 115 ian schutzmannschaft would have been re- is irrelevant.
jected
presumption
unless he overcame the
against
eligibility
showing
that his
V.
involuntary,
service
he had
grant
citizenship may
A
re-
also be
persecuted any
not committed atrocities or
“illegally procured
voked if it was
or ...
person
ground
religion, race,
on the
procured
concealment
material
of a
origin.
national
1451(a) (1982).
fact....”
U.S.C.
Un-
preconditions
less the
to naturalization are
Professor Raul Hilberg testified that the
met, citizenship
“illegally procured”
forces were totally
“German
insufficient to
Fedorenko v. United
may
revoked.
policies
Germany
undertake the
of Nazi
States, occupied territories,”
and that
the as-
obtain a
*7
To
auxiliary
of an
sistance
force of Ukranian
grant
citizenship,
applicant
of
must have
personnel
importance.”
was “of crucial
pursuant
entered the United States
to a
importance of those forces was acknowl-
applicant
An
ineligible
valid visa.
under
IRO,
edged
Appen-
which
II
in Part
may
the law
not obtain a valid visa.
dix IV of Provisional
42 defined “en-
Order
emy
“police, paramilitary
forces” to include
Kowalchuk obtained his visa and entered
auxiliary organizations.”
country
The district
provisions
under the
of the
also
court
observed:
DPA. The Act enumerated certain auto-
IRO,
II,
enemy
7. The Constitution
Annex
presumed
I-Part
to the
sistance
shall be
to have
Manual,
reprinted
Chapter
voluntary” by
VI of
enumer-
been
police, para-military
a member
either "the
of
categories
persons
auxiliary organisa-
ates
of
will
who
not be the
[or]
organization.
applicant
joined
concern of the
Section
thereof
Once an
one
tions."
has
persons
organizations,
ap-
excludes
voluntarily
who can
shown "to have
such
plicant
for an
answer
language
assisted the
forces
under
...
27 is “to
section
operations against
disprove
voluntary
the United Nations." A
nature of
enlist-
reading of sections 22 and 27 reveals that "as-
ment."
eligibility.
ferial. At issue was
matic exclusions from
Section
Chaunt’s failure to
reveal arrests that were
10 stated:
made more than
years prior
five
to the time of naturaliza-
person
eligible displaced
shall be
No
totality
tion. The Court stated that “[t]he
into the United States unless
admitted
surrounding
circumstances
the of-
thorough
a
shall have first been
there
charged
extremely
fenses
makes them of
investigation
report
re-
and written
...
slight
354,
consequence,” id. at
81 S.Ct. at
character, history,
garding
person’s
such
150 and therefore would not of themselves
eligibility
under this Act. The bur-
provided ground
deny
have
a
citizenship.
proof
person
shall be
den of
rejected
The Court also
the Government’s
eligibility
to establish his
un-
who seeks
argument that had it known
arrests
Any person
der this Act.
who shall will-
might
investigated
it
Chaunt
fully
misrepresentation
for the
further
make
might
well have discovered a link be-
purpose
gaining
admission into the
tween him and the
Party,
Communist
ex-
eligible displaced
States as an
United
plaining that the information that Chaunt
person
thereafter not be
shall
admissible
revealed
disclosed
a more substantial
(Emphasis
States.
add-
into
United
Party
nexus with the Communist
than the
ed.)
355,
undisclosed arrests did. Id. at
81 S.Ct.
case,
undisputed
In this
it is
that
at 150.9 The
then
Court
concluded that the
“wilfully
misrepresen
Kowalchuk
ma[d]e
decision to denaturalize Chaunt should be
purpose
gaining
for the
admission
tation
reversed because
eligible
into the United States as an
dis
Government ...
failed to show
placed person.”
argues, how
Kowalchuk
“clear, unequivocal,
convincing”
evi-
ever,
misrepresentations
that the
about his
(1)
dence either
sup-
facts were
wartime activities were not “material.”8
which,
pressed
known,
if
would have
disagree.
We
(2)
citizenship
warranted denial of
might
their disclosure
have been useful
A.
possibly
investigation
leading
in an
States,
In Chaunt v. United
364 U.S.
discovery
warranting
of other facts
deni-
350,
147,
(1960),
81 S.Ct.
L.Ed.2d
citizenship.
al of
attempted
peti
Government
to revoke the
355,
Id. at
B. organizations. (A 1512-13) ical Govern- applica- ment exhibits demonstrate that the facts which Had Kowalchuk revealed rejected tions in fact had in 1952 suppressed on December been Warren, deputy alleged George to have a member of a Ukrainian L. former senior offi- been 10i Displaced cer for Persons the United States unit not on a list of unit. If the Salzburg, personally certified ineligible organizations, Commission that he he testified eligibility Warren tes- Kowalchuk’s certificate. application to Frank- would have referred the signed the certifi- tified that he would not have investigation. for review and further furt cate had he been aware that Kowalchuk
497 organization.” on that 571 1311 of the Act DPC under section on the and the Truthful answers CM/1 membership. More- ground of such fragebogen prevented would have the de- over, applications of testified that Conan obtaining fendant from a visa under the schutzmanns- of the Ukrainian members DPA. prior to the rejected have been chaft would DPA. amendment of the we conclude that disclosure of Because concerning facts defendant’s the true war- in Chapin, American vice-consul John ineligi- time would made him activities Austria, Salzburg, testified that the visa, unnecessary ble for a we find it documents, fragebogen, the attested IRO question of whether defend- resolve investigation report ac- the DPC’s misrepresentations ant’s were material un- application for a visa. The companied prong test. der second Chaunt procedure every case was for standard v. See Fedorenko United frage- to read the the American vice-consul 101 S.Ct. applicant bogen, personally interview the occupa- concerning residence and wartime VI. tion, applicant swear to and to have The defendant also contends that he applica- statements in the truth of all the process. was denied due He asserts that tion, (A including fragebogen. 1032- when his counsel was the Soviet Union 33) appli- paid attention was to the Close depositions for the wit during occupation and residence cant’s nesses, the Soviet Union denied him the years applicant and the had the burden war opportunity Lubomyl investigate to visit eligibility for a proving under the law of However, potential or interview witnesses. Persons who had served visa. observed, as the district court Soviet Rus police or militia would have been Ukrainian imposed sia also same limitations ineligible. counsel. The defendant does Government motivation,12 Whatever the defendant’s deprived claim that he was not make misrepresentations and concealment testimony. any specific evidence or He material the IRO’s determination were showing any testimony makes no has Kowalchuk was a bona 1947 of whether excluded that “would have been mate been refugee and “of concern” to the IRO. fide rial and favorable to his defense.” United Valenzuela-Bernal, They plainly material to the vice con- U.S. States L.Ed.2d 1193 sul’s determination Kowalchuk eligible to the for admission permanent resident. The evi- States as a defense informed point, At one counsel misrepresentation, conceal- dence of willful eighteen that he knew of the Government ment, clear, materiality convincing, he in the Soviet Union whom witnesses unequivocal. Regardless of whether Yet, request made no like to call. personally participated the defendant depose any of them or to them. to interview by the atrocities and brutalities committed hand, the Government On the other schutzmannschaft, the district informed de- letter dated March per- that the “defendant was aware requesting court found that it was fense counsel responsibilities assigned bring mission from the Soviet Union to schutzmannschaft, occupied respon- deposed to the United States to witnesses clerical, testify “to make a similar re- largely within and offered position, albeit sible provides: he made the mis- visa 12. The defendant testified that 13 of the DPA "No 11. Section provisions pre- representations of the Act IRO to be issued under the of residence to the shall of, any person against has been a member who is or possible the Soviets retaliation vent in, any However, brother, participated movement which is or Mykola, pre- parents. his States____” This hostile to the United has been truthfully viously in Lu- had stated his residence ground independent provides another section bomyl knew this. the IRO and the defendant ineligibility in this case and was for a visa subject amended com- of the Government’s the plaint. *10 of the Kowalchuks that ber of a known Ukrainian anti-Communist quest on behalf produced testify on specific witnesses family, possibly deport and him the Sovi- The defense failed to follow their behalf.” pro- et Union based on a denaturalization offer. Their through on the Government’s ceeding initiated information that first request interview witnesses made was Trud, appeared newspaper, in the Soviet only after defense counsel was Sovi- organ the official of the notorious state it infor- et Union and even then was made security police, the That KGB? is the over- Moreover, the trial factual mally. court’s arching question implicated appeal. in this are based conclusions My negative. in answer resounds Ac- and his witnesses or other of the defendant cordingly, I dissent. with that testimo- evidence not inconsistent ny. defendant’s due I.
We see no merit to the process contention. Appellant was in Kremianec in the born
Ukraine in and later moved to Lubo- VII. myl, Shortly in also the Ukraine. after the sum, of Russia in the Nazis over- invasion In the district court revoked the following on the Lubomyl defendant’s in- ran and took control of the local (1) dependent grounds: the defendant was government. During period of Nazi genuine refugee not a “of concern” to the occupation, appellant a clerk worked as IRO and therefore was entitled to the (also Lubomyl police known as the Displaced benefits of the Persons Act be- militia) schutzmannschaft or and did food (a) cause as a member of the schutzmann- distribution work. As clerk he voluntarily schaft he enemy assisted the uniform, occasionally wore a was aware of in operations against forces the United placed Lubomyl the restrictions Jewish Nations, (b) capacity such he assisted residents, typed duty rosters which civilians, persecuting the Nazis in (2) assigned patrol the other militia men to illegally the defendant obtained his visa be- ghetto. Lubomyl Jewish As in other areas cause he made willful material misrepresen- occupation, Lubomyl under Nazi Jews gain tations to admission to the United abuse, subject persecution, degra- were permanent States as a resident. dation, eventually massive extermina- Although we do not decide whether the popula- At the time tions. when Jewish supports record the district conclu- court’s exterminated, tion was how- enemy sion that the defendant assisted the ever, appellant village; was not in the civilians, persecuting we that the hold receiving special training at German fully supports judge’s record the trial find- expense at a school another town. ings concerning and his conclusions the de- Moreover, impressed I am that no evidence voluntary fendant’s assistance to performed any appellant establishes that misrepresen- forces and his willful material patrol militia duties himself or that he was tations. engaged directly persecuting the Jewish Accordingly judgment of the district people. affirmed. court will be appellant moved west. His fam-
ALDISERT, Judge, ily’s feelings Chief with whom ardent anti-Communist WEIS, Judge, joins, and with whom Circuit generally Obviously well known. he did Mansmann, Judges join Hunter and Circuit Lubomyl, not wish to remain return to V-IX, parts dissenting. then under Soviet control. He fled the armies,1 advancing eventually Russian strip
Should this court
American citizen-
Kowalchuk,
ship away
Serge
displaced persons’ camp
a mem-
entered a
in Aus-
that,
majority allege
army
approached Lubomyl, appellant
family
and his
Russian
cases,
appellate
the Interna-
court should adhere
whether
tria. To determine
*11
closely to the district court’s
Organization
properly
of the United
tional Relief
(IRO)
classify him either a
could
as
found facts based on that court’s determi-
Nations
displaced person,
credibility;
Kowalchuk
refugee or
nations witness
under these
form,
conditions,
this
he stated
special
requirement
a form CM/1. On
filed
as-
Kremianec,
in
during the war he lived
proportions.
sumes a fortiori
Lubomyl,
that he worked as
and
emphasized
must
is
What
that our
This,
tailor,
Lubomyl
militia.
not for
concern here is with evidence found credi-
course,
explained
He later
was not true.
below,
by the fact
ble
finder
not with testi-
lied on his
form because
that he
CM/1
mony offered. Our concern here is with
reprisals against his
was fearful of Soviet
conduct,
personal
gen-
Kowalchuk’s
antipathy to the
family, because of his
Lubomyl,
eral conditions in war-torn
as
Communists,
he did not wish
and because
as
horrible
no doubt were. Our con-
He did
returned to the Soviet Union.
to be
militia,
Lubomyl
cern here is his role in the
precisely
all
not know
where
members
grant
and the effect of that role on his
of a
family were located and he knew
visa.
to the
Mission would have access
Soviet
form. Kowal-
information on
CM/1
II.
as to his resi-
misrepresentations
chuk’s
arguments
Kowalchuk raises two
in his
war,
during
set
employment
dence
appeal
judgment
from the district court’s
form, were transcribed
forth on the CM/1
(1)
that ordered denaturalization:
that the
visa
appended
onto his United States
legal
district court’s
conclusions that he
granted a visa in
application. He was
Displaced
(a)
violated
Persons’ Act
1949.
forces,” (b)
“voluntarily
enemy
assisted the
facts,
majority
In its rendition of
persecuting
“assisted the
in
civil
attempt
paint
picture
much harsher
(c)
populations,”
wilfully
misrep-
made
Lubomyl
general
militia in
both of the
application;
(2)
resentations
his visa
appellant’s
particular.
activities in
wartime
process rights
that his due
were violated
quickly recognize
always
I
that it is
diffi-
present
area
because
Soviet control
happened
actually
cult to reconstruct what
alleged
place
conduct took
essen-
where
any point
history,
at
and more difficult
tially prevented
presenting
him from
an
consequence
oc-
still when
events
effective defense.
during totally devastating
curred
wartime
Thus,
statutory question presented
conditions,
enemy territory,
forty
over
disposition
applying
is whether
Indeed,
years ago.
lies at
this realization
1451(a),the district court erred in
U.S.C.
process
the core of the due
issues which
revoking Kowalchuk’s naturalization on
will soon discuss. The task is further com-
(1)
because,
grounds:
three
that as member of
by
here
noted
the dis-
plicated
as
voluntarily
court,
virtually every
Lubomyl militia he
assisted
trict
“unlike
other
(2)
case,
enemy;
a member of the
reported denaturalization
there is in
Lubo-
scrap
documentary myl
perse-
not one
militia he assisted the Nazis
this case
(3)
relating
pertinent
cuting
populations;
civilian
that he
events.”
evidence
willful,
Kowalchuk,
F.Supp.
misrepresentation
In all
made a
material
"departed voluntarily,"
considerably
by
ment
weakened
the fact
at 491 n.
and that he
least,
"voluntary departure
the re-
parents,
concealed his
that the defendant’s
at
had val-
treating
military
time,
German
leaving
forces."
and it
Id. at
id reasons for
equivocal
The district court found this evidence
quite
family
that the
would be
understandable
best, stating:
Moreover,
together.
wish to
remain
Lubomyl
If the defendant’s activities
army
[in
flight
advancing
Russian
was a
claims,
as he
had been as innocuous
militia]
widely prevalent mode of behavior.
little reason for him to
there would
been
Kowalchuk,
F.Supp.
v.
United States
retreating
leave
with the
Germans.
(E.D.Pa.1983).
admitted, however,
argu-
must be
that this
It
lying
pressure
against
of fact
about his wartime resi Soviet
Turkey
mounted
employment.
dence and
See United States
for control of the Black Sea straits.2
(E.D.
Kowalchuk,
82-83
political
Such were the
elouds that hov-
Pa.1983).
process
But Kowalchuk’s due
ered
displaced persons’ camp
over the
claim,
insignificant by the ma
deemed so
applied
when Kowalchuk
for his visa. Ref-
it,
they summarily
jority that
dismissed
see
ugees in
Europe’s camps
Central
498-499,
page
important
me
is to
so
pawns
political
struggle
a vicious
acted
issue that I choose to address it first.
superpowers
out
the two
in the late
Europe.
forties in central
having
The die
*12
III.
been cast
both the west
and
the east
analyzing
specific legal ques-
the
Before
armies,
by
occupying
the
Europe
Central
tions, I
in Europe
must describe conditions
primary political
remained the
battleground
displaced persons camps
and in the
at the
for almost a decade
Day.
after V-E
Amer-
applied
appli-
time Kowalchuk
for the visa
diplomatic
postured
ican and Soviet
armies
Day, May
cation. I start with V-E
1945.
eyeball-to-eyeball. The
division of
defacto
Notwithstanding
presence
European
of
Germany
already
place
had
taken
but the
nation-states,
power
rearrange
airlift,
Berlin
and the Berlin wall
yet
map
Europe
passed
of
to the United
Austria,
precise
to come.
location of
States and
Soviet Union. The Hitlerian
application,
Kowalchuk’s visa
was still a
Reich had
peak
come to an end. At its
pawn
East,
between the West and the
and
empire
Nazi
stretched from the French
yet
subject
was
to be the
of the later
port of Brest to the Caucasus and from the
checkmate which conferred
that coun-
tip Norway
Egypt.
of
to the border of
In
unallied,
try an
neutral status.
six-year struggle
bring
down that
empire,
Europeans
an estimated 40 million
saying goes,
history.
As the
the rest is
combat,
lost
lives—in
under
the The cold war has continued
between
cities,
bombs that obliterated
through Hit- United States and the Soviets for over 40
genocide,
ler’s
simply
methodical
from years
charge
countercharge.
and
hunger, cold and disease.
Soviets have continued to make use of its
KGB,
security police,
state
Germany,
within and
the state had ceased to ex-
Union;
civilians,
ist. A
without
the Soviet
prisoners
espionage
mass of
freed
operations making devastating
the first
refugees
waves of 13 million
infiltrations
Europe
Eastern
wandered the coun- within the
United States
1985 the U.S.
try. Nearly 8 million
Navy
Germans were home-
Investiga-
and the Federal Bureau of
less.
people
It was a time when
bartered
tion. For
I
regard
reasons that
refuse to
household
clothing
necessities for food and
altruistic,
completely
the Soviet KGB
and often subsisted on little more than
singled
has
out
Serge
American citizen
1,000
day.
calories a
Kowalchuk for
immediate attention
our
government,
extravagant
in a stream of
The onset of a chill between the Soviets
subsequently
proved
accusations
in the
and Western allies sealed the division of
district
court.
Should these denatu-
country
occupation
two hostile
between
proceedings
successful,
ralization
how-
By
zones.
becoming
1947 it
clear that
was
ever,
subsequent deportation
to the
Stalin
fulfilling
had no intention of
(ostensibly
Soviet Union be effected
promise to
Roosevelt
Churchill at Yalta
Ukraine), I am certain
to hold
that the KGB will
free elections in Poland. Where the
stood,
Army
welcoming
awaiting
Red
have a
committee
power reigned
Soviet
probed
insurgen-
family
westward. A Communist
return of a member of a
that dared
cy, supported
Bulgaria,
defy
dogma
from bases in
Communist
Alba-
Ukraine
Yugoslavia,
nia and
early
threatened the
background,
vulnera-
forties. With such a
ble
monarchy
British-backed
why
Greece.
it is understandable
the Soviet authori-
Special
2. See
Report, Forty
Day,
Magazine
April
Years After V-E
Time
16-23
opportunity
proceedings
to sowed the seeds
these
Kowalchuk the
ties denied
blasting away
against
of a
Kowal-
primitive preparation
accusations
even
conduct
Trud,
organ
chuk in
the house
of the KGB.
background it should
such a
defense. With
con-
surprise that this Soviet
no
come as
citizen, Kowalchuk,
When this American
Kowalchuk the most basic
duct denied
prepare
attempted to
defense to these
rights.
process
due
Soviet-instigated charges, he found the So-
keeper
fox to be the
viet
chicken
IV.
therefore,
contention,
house. Kowalchuk’s
an
goes
beyond
argument
far
that he was
nor-
recognize
I
that we would
Although
poten-
opportunity
if denied
to interview
the constitutional issue
mally not address
Rather,
that he
tial witnesses.
it is
statutory ground supports
independent
opportunity
develop
a mean-
denied
outcome,
partic-
I
these
feel
under
ingful
any type.3
defense
Because I
viola-
the constitutional
ular circumstances
right
present
that the
witnesses
believe
compelling
requires
that it
discus-
tion
sois
establish
defense is a fundamental
Department of
re-
sion first. Our
Justice
process
law,
of due
element
also be-
quired Serge
to defend himself
Kowalchuk
Serge
revocation
Kowalchuk’s
lieve that
that oc-
against charges based
events
*13
here,
citizenship, under the circumstances
forty years ago in the Soviet
curred over
a
very
constitutes
blatant violation of a
Carroll,
experi-
Rogers
Union.
John
precious
right.
fundamental
Philadelphia
lawyer, represent-
trial
enced
obtain,
him,
inter-
ed
but was not able to
A.
view,
even seek witnesses in
Soviet
or
Washington
Texas,
388 U.S.
87
to
Attorney
permitted
Union.
Carroll
18
the Su-
S.Ct.
L.Ed.2d 1019
Union, but, incredibly,
the Soviet
travel to
preme Court observed:
only those wit-
was allowed to interview
testimony
by
right
the Sovi-
to offer the
of wit-
nesses obtained
controlled
nesses,
attendance,
Carroll,
compel
government.
et
Mr.
Kowalchuk’s
and to
their
if
necessary,
plain
right
permitted
was also not
to visit
is
terms the
to
attorney,
defense,
right
present
to
Lubomyl,
purpose
present
for the
of either obtain-
a
facts as
ing
collecting physical
or
evi-
the defendant’s version of the
witnesses
dence;
prosecution’s
jury so
incredibly he was denied access to
well as the
it
government
may
where
truth lies. Just as
very town where the
decide
illegal
right
has the
confront the
claims the
of Kowalchuk
an accused
to
conduct
purpose
App.
for the
place.
prosecution’s
took
at 1689. The Soviets
witnesses
But, your
please,
Carroll stated
court:
if
Honor
that betokens the
As Mr.
in the district
we are
faced with and the utter
attitude
What we have
handouts of the NKVD
[are]
futility
attempting they
of
told us when we
That is all
Government
that the
[the KGB].
—
give.
Lubomyl
That is all that the Russians will
there that
is a closed
has.
went
town.
complaint
process-wise
say
foreigners
due
Our
doesn't
not allowed.
That means
It
being deprived
specific
we are
witness-
really
arbitrarily
means
Russian
says
says
It
It
a lot more.
... we couldn’t
es.
go
saying,
is
in there
"You can’t
people because of our fears of
name these
you
even if
wanted to.”
happen to
what would
them.
Lubomyl
map
I tried to reconstruct a
by
testimony
up
The situation is backed
Mykola
to
Kowalchuk described Your
which
Bilinsky
as an ex-
of Professor
who testifies
having an
which made
Honor as
elevation
it
pert,
is no contra-
Your Honor—and there
partic-
impossible for some of the witnesses—
quarrel
what
diction or
about
this—that
vantage
ularly
whose
these Israeli witnesses
happen
people
to those
if we went and
would
pinned
testimony—
point were
down in their
them as
would be un-
tried to use
witnesses
they
say.
they
to see what
claimed
couldn’t
speakable. Their lives
be made miser-
verify
even
a visit to
much
try
somebody
they
help
were to
to
able if
any inquiry.
could we make
less
week,
who,
ago
year
me
described
App. at 1654-55.
Kowal-
the advocate of
Nazi murderer
adju-
papers
ahead of
in their
somewhat
chuk
dication.
Court,
challenging
testimony,
he has
and in which
justices
three other
right
present
his own witnesses
accord,
to were at least in substantial
Justice
right
establish a defense. This
is a fun- Black stated:
process
damental element
due
of law.
Denaturalization consequences may be
grave
more
consequences
than
Id.
at 1923.4
that flow
S.Ct.
crimes____
from conviction for
This
cases
Numerous other
have established
long recognized
court has
plain
fact
right
present
of the
contours
wit-
deprive
person
that to
of his American
nesses and to establish
defense. For
citizenship is an extraordinarily severe
example,
judge’s
has held that a
Court
penalty.
consequences
of such a
consequences
warning
per-
stern
deprivation may
heavily upon
even rest
witness,
jury
a defense
which caused the
children____
As a result of the de-
stand, deprived
witness not to take the
here, petitioner
naturalization
has been
process right
his due
defendant of
to offer
deported.
deport
ordered
“To
one who
v.Webb Tex-
of witnesses.
citizen,
so
obviously
claims to be a
de-
as, 409 U.S.
95, 98,
351, 353,
prives him liberty____
may
It
result
(1972). Likewise,'
L.Ed.2d 330
we have
life;
also in loss of both property and
exculpatory
held that
the removal of
evi-
of all that makes life
Ng
living.”
worth
“denpes]
dence
a defendant an
White,
Fung
Ho v.
opportunity
present competent proof
[42
(1922)
tain, interview favor- locate or even Also, operations range the KGB’s far Lubomyl; witnesses in able borders; routinely beyond Soviet KGB obtaining 3) reliable the unlikelihood operates throughout conducting the world witnesses. testimony from the Soviet inciting intelligence operations, revolution- activities, ary acting Party’s as the sys- unique role Soviet The KGB’s Barron, KGB, agency. enforcement See J. political power guard dog of the tem as the Agents Work Soviet Secret Secret In the twenties structure is well known.5 (Readers Press, Digest New York 1-28 .thirties, principal the KGB was 1974) (hereinafter KGB). cited as For ex- cruel rural collectiviza- weapon of Stalin’s ample, “[approximately 400 officers of the later admitted campaign, which Stalin tion GRU, subsidiary, the military and its KGB also million victims. Stalin claimed ten York, permanently stationed New effec- organization with ruthless used Francisco, spy Washington and San crushing political opposition tiveness Measures. Their labors are conduct Active and forties. purges of the thirties by hundreds more officers of the abetted masterpiece, Solzhenitsyn’s I. Aleksander German, Polish, Cuban, Bulgarian, East vividly chronicles Gulag Archipelago Czechoslovakian, Hungarian intelli- organization performed role this the brutal *15 services, which function KGB Medvedev, gence also R. during period. See Barron, Today: The auxiliaries.” J. KGB (Knopf, New York History Judge Let Press, (Readers Digest Hand 195 1971), VII, “Illegal of In- Hidden Chapter Methods 1983). Frequently, the KGB’s York a New for Soviet- vestigation and Confinement” na- continuing campaign against Ukrainian methods of the brutal published account Ukraine, beyond the Soviet has reached The be- tionalists employed by the KGB. KGB, Communists, borders, lethal effect. See su- resistance to the cause of its Therefore, the KGB’s in- pra, at 311-16. campaigns. After of these bore brunt origination assistance in the II, “A volvement and the terror continued: War World subsequent prosecution of these was and the police of secret concern particular area duty accompanied by equally acronym This broad was for the Komitet-Gosu- is the 5. "KGB" translated, organization’s powers; lead- because the darstvennoy Bezopasnosti, broad directly Security. incep- their orders from Commu- its ers took for State Since Committee Cheka, they essentially Party leadership, be- were nist as the tion on December GPU, by any laws. yond Thus, other Soviet restriction organization has been known as NKVD, NKGB, Party OGPU, GUGB, or- controlled the central MGB. "whoever and the investiga- ganization in the secret original constitution vested Soviet scope and punitive tremendous duty tive and arm of predecesor broad "to unite with the KGB’s Slusser, power." The Soviet Se- Republics S. Wolin & R. revolutionary the Union efforts of Press, (Greenwood Westport, Conn. struggle against political cret Police and economic in the 1957). counterrevolution, espionage and banditism.” endanger safety. charges authenticity highly makes those citizens’ Id. suspect. trial, Additionally, at his Kowalchuk Other expressed hesitancy courts have presented testimony of Nina S. Koran crediting evidence from Soviet sources. vaska, Ph.D., Kudirka, Simas and Profes Kungys, United States v. Bilinsky support sor Yaroslav his claim (D.N.J.1983), involving a case facts that are political legal sys that because of the and quite similar appeal, to those of this U.S.S.R., tem of the he was not able to emphasized court the Soviet’s motivation obtain, interview, or even seek witnesses discrediting emigres: his favor in the Soviet Union. The testimo Despite Soviet conquest [of Lithuania] ny of Koranvaska and the other defense there remain strong feelings nationalistic witnesses established that the Soviet continuing and allegiance by significant government has used accusations of war portion of population to the Roman embarrassing crimes as a means of and Catholic Church. attempts by Soviet harassing emigres Ukrainian they whom stamp authorities to out these influences view as anti-Communist or as advocates of and to myth create the of historic friend- Bilinsky, Ukrainian nationalism. Professor ship people between the of the Soviet immigrant expert Polish on Soviet Union and its various national groups are Studies, European and Eastern testified in by presence weakened abroad of deposition govern that: Soviet “[T]he large groups emigres experienced who ment, including the Soviet Ukrainian personally the effects occupa- of Soviet government, wants to discredit the Ukrain tion help keep and who alive Lithuanian emigres. ian They want to discredit them national religious convictions. eyes of the other Soviet Ukrainians. They want to discredit eyes them in the In 1964 there was formed the Latvian citizens,
American want to dis Committee for Cultural Relations of Lat- credit them in eyes of the American abroad, vians during 1970-76 Le- App. Government.” at 1386.6 Professor sinskis Latvian member of the KGB Hilberg, [a Raul one of the Government wit who defected nesses, was chairman of 1978] acknowledged that Soviet authori presidium, receiving instructions tightly ties control all access to all doc the KGB. objective Its uments also to dis- concerning World War II war emigres, crimes. credit Latvian particularly Id. at 827-30. those Additionally, testi mony of actively sought who defense witnesses the end of the established Soviet occupation. Soviet routinely manipulate accomplished authorities This was witnesses, especially political trials, publication of purport- books and articles efforts ing defendant to obtain to describe the war crimes and collab- favorable evidence from Soviet citizens oration emigres of which guilty. Koranvaska, 6. See also the Only of Nina lately immigrants did the Ukrainian immigrant Ukrainian and doctor of begin microbiolo- story to tell the about Ukraine in Soviet gy, who now works for the Ukrainian Therefore, World Union. the Soviet Union is inter- *16 Congress Rights, for Freedom of Human destroy political image ested to the of Ukrain- testified at trial as follows: immigrants ian outside of its borders. Q What is the interest of the Soviet Govern- BY MR. CARROLL: immigrants? ment in Ukrainian Q Is it in the interest of the Soviet Govern- great. Very A portray immigrants ment Ukrainian as Q What is the nature of that? How does the anti-Semitic? Soviet Government look a Ukrainian it, question A There is no about since the immigrant? Soviet Government even in the Ukraine has a policy country. of anti-Semitism in its So THE occupied WITNESS: Ukraine is [The] they policy therefore continue the same which factually by the Soviet Union and the immi- immigrants concerns the outside of the bor- grant borders, beyond beyond the the Soviet ders of Soviet Union. Union only representatives spread the App. at 1352-53. the truth position about Ukrainian there. otherwise tainted was not coerced or embellished and were often The facts documents, pressures. forged improper supplemented with pure invention. testimony and false also United States v. Id. at 1131-32. See post in the assigned to a he was When (2d Cir.1985); 120-21 Sprogis, 763 F.2d ob- job was to Lesinskis’ I.N.S., 750 F.2d 1435- Laipenieks v. Latvian communi- about tain information Cir.1985). (9th abroad, discord within promote ties Supreme Congruent with Court’s leaders. All discredit their and to them teaching Washington, I conclude that a function. was a KGB of this process significant deprivation of due oc- The court concluded Id. con- curred because Soviet authorities a situation where are faced with We supplied the witnesses trolled both continuing, strong Union has the Soviet government and Kowalchuk’s access to finding that defendant interest in a state exculpatory information. possible conduct while of atrocious guilty was occupation collaborating German C. the fact faced with We also are forces. special proce- uses Soviet Union
that the majority rely upon The United States such as political cases Valenzuela-Bernal, dures least, which, result in false on occasion support in order to achieve evidence or distorted summary of Kowalchuk’s due dismissal interest re- the state the result which argument. easily That case is dis- process quires. Valenzuela-Bernal, de- tinguished. In illegal aliens a car with five fendant drove Id. at patrol check-point. through a border court found Kungys the district passengers ap- and three were defendant not credible and de- government’s evidence passengers prehended, but two of petition to revoke government’s nied the defend- deported after identified citizenship. The court rebuked Kungys’s admitted of the car and ant as driver sup- government for its use of Soviet country. illegally in the One they were plied evidence: Romero-Morales, was detained passenger, elected collaborate Subsequently, the defendant a witness. this case with the prosecution of, with, trans- charged and convicted Union, a totalitarian state. It has Soviet alien, namely Romero-Mo- porting illegal authori- accepted the assistance Soviet rales. ties, testimony particularly the of wit- interrogated by who had been So- argued deportation nesses The defendant state- investigators and from whom viet had passengers other violated by those inter- depor- had been obtained right ments “the because sixth amendment rogators. opportunity him of the deprived tation remaining passengers the two legal to interview
Knowing
nature of the Soviet
in his
they could aid
to determine whether
government had an obli-
system,
861,
presence, might upon bear whether strong feeling that had the United States he knew that Romero-Morales was an given opportunity been thoroughly to illegal alien country who had entered the investigate case, might it well have past years____ within the three Romero prosecute. decided not was, to As it Morales, course, fully remained avail- government’s case is based on evidence by able examination the defendant produced by the KGB po- to effectuate its attorney. and his litical Congruence ends. pur- between that Id. at S.Ct. 3448. Kowalchuk’s pose and justice individual yet has to be attorney was not denied convenient established. The net result is that witnesses, access to essentially was de- prosecution is in the position uncomfortable ability present any nied the to defense at arguing allegations which it has not had Valenzuela-Bernal, all. Unlike Kowalchuk the opportunity verify it, to and which in all was denied access to the location of the good conscience, must suspect. view as alleged themselves, disqualifying acts Lu- I now turn to Kowalchuk’s statutory con- bomyl, to refute the testimony of hostile tentions. physical witnesses based on the location of Although the events. Kowalchuk was de- nied completely ability obtain, inter- V. view, or even seek witnesses, favorable proceedings Denaturalization operate Valenzuela-Bernal merely was denied con- competing two interests at stake. On venient access to two known witnesses. hand, the one a certificate citizenship Finally, Kowalchuk had to defend himself “an instrument granting political privi while looking year gulf time, across a 40 leges, open public like grants other present a factor not in Valenzuela-Bernal. be revoked if and when it shall be found to deprivation Kowalchuk, suffered unlawfully have been fraudulently pro therefore, far exceeds that of Valenzuela- cured.” States, Johannessen v. United
Bernal, and makes that inapposite. case 227, 238, 613, 615, U.S. The district court’s treatment of Kowal- (1923). L.Ed. 1066 hand, On the other be process chuk’s due claim totally inade- cause American citizenship once obtained is quate. The ignored district court Kowal- right, government inestimable must right chuk’s investigate and obtain wit- highest meet one of the proof burdens of nesses, compensating by discarding the tes- jurisprudence; modern grant set aside a timony produced of those Soviet witnesses government’s evidence testify: who did clear, must unequivocal and convincing part, therefore, For the most the factual and not leave the issue in doubt. Fedoren conclusions which follow are based ko v. of the defendant and his Our witnesses, or other evidence not incon- standard of review of the historical or nar sistent with that testimony. facts, (or rative either basic or inferred Purportedly ignoring facts”) sometimes “subsidiary called is the the Soviet witnesses in way no corrects familiar clearly erroneous rule. Krasnov inability present Kowalchuk’s Dinan, (3d defense. 465 F.2d 1302-03 Cir. inquiry essential 1972). is whether Kowal-
507
facts “must be
sentation on
application,
Yet basic and inferred
his visa
he could
distinguished
concept
a
described
a
1451(a).
be denaturalized under
Fe-
See
§
”
term of art as an ‘ultimate fact.’ Univer-
490,
dorenko v. United
449 U.S.
Co.,
Hughes
Minerals Inc. v. C.A.
&
sal
737,
(1981).
101 S.Ct.
YI.
peaceful
of normal
continuance
Mere
appellant
to have
sued
purpose
duties,
specific
performed
not
enemy against
Allies or
aiding
1451(a).
under 8 U.S.C.
denaturalized
§
territory in ene-
population against the civil
grant of citi-
provides that a
This statute
to con-
be considered
my occupation, shall not
“illegally
if
zenship may
revoked
it was
acts of
"voluntary
Nor shall
assistance.”
stitute
procured by
concealment
procured or ...
or
humanity,
care of wounded
such as
general
fact____”
except
where
in cases
dying
considered
be so
grant of
material
For a
of a
given to
nationals
help of this nature
legally,
appli-
procured
to be
given
Allied
equally
have been
well
could
country
for at
must have been
cant
purposely withheld from
and was
nationals
being lawfully admit-
years
five
after
least
them.
8 U.S.C.
pursuant
to a valid visa.
ted
original.]
[Footnote
1181(a), 1427(a)(1). Appellant entered
§§
Refugee Or-
of International
Constitution
pur-
issued
States under
visa
the United
II,
I,
opened
Part
Annex
ganization,
for
Displaced
Persons Act of
suant
15, 1946, 62 Stat.
Dec.
signature
(DPA),
62 Stat. 1009
Pub.L. No.
3051-52,
The DPA also
T.I.A.S. No. 1846.
Congress to ease the
enacted
which was
“Any person
provided that:
who shall will-
and allow for
existing quota structure
then
pur-
fully
misrepresentation
make a
for the
II dis-
immigration of World War
increased
pose
gaining
admission into the United
If,
persons into the United States.
placed
eligible displaced person shall
States as an
therefore,
eligible
person
either was
into the United
thereafter
be admissible
un-
refugee
displaced person
status
DPA
date of an individual’s
the force
ness” limitation where it felt that one was
evaluating
eligi
would not be critical
necessary
plain
2(a)
from comparing §
bility for a visa under the
2(b)____”
constitution.
Id. at
S.Ct. at
App.
Hilberg
at 429. Professor
also testi
fied that local
forces sometimes were
Moreover, the definition of voluntariness
integrated
schutzmannschaft,
into the
contained in the explanatory footnote and
might
normal duties
continue.
the IRO manual
require-
establish an intent
933-35,
Keeping
Id. at
943-44.
in mind ment. The footnote states that “[m]ere
case,
that in a denaturalization
“the facts
duties,
continuance of
peaceful
normal and
law should be construed as far as
performed
with the specific purpose
reasonably possible
citizen,”
in favor of the
aiding
... shall not be con-
Anastasio,
United States v.
226 F.2d
sidered to constitute ‘voluntary assist-
(3d Cir.1955) (footnotes omitted),
cert.
”
*21
Constitution,
ance.’
IRO
stitution persons who can be “(a) shown to have assisted enemy turn now to the district court’s conclu- persecuting populations____” civil Section 2(a) sion that under appellant “assisted § 2(b) speaks persons who can be shown enemy in persecuting populations.” civil “(b) to have voluntarily assisted the ene- This conclusion finding is an ultimate my (Emphasis forces.” supplied). therefore analysis merits the same applied voluntary to the issue of assistance In Fedorenko v. United enemy. 2(a) The difference between the 101 S.Ct. 66 L.Ed.2d § 2(b) government issue Supreme is that the has § Court ruled that language regard 2(a). a lesser burden difference between these two § sections—the government presence prove, 2(a), need not “voluntarily” 2(b) under and its § § voluntarily persecuted absence in Kowalchuk 2(a) produces a civil fundamental § — populations. 2(b) proof. question distinction in the As with burden of In Fe- § whether 2(a) prove dorenko the the basic facts requisite Court ruled that under § it necessary was not government persecuting popula- for the assistance civilian prove that the tions is one that implicates legal defendant voluntarily compo- as- sisted Again, nent. persecuting the issue civilian is whether the populations, clearly government implying high met proof, burden of making proving by had to do so in convincing out a clear and evidence 2(b): case under Congress “That persecuted was that Kowalchuk pop- the civilian perfectly capable adopting a “voluntari- ulation. yet held such a reported case has No
A.
minimal level of involvement
be suffi
performed
he
argues that
Appellant
persecution
of civilian
cient assistance
he,
militia and
duties for the
clerical
grounds for
populations to constitute
de
actively in
not involved
personally, was
leading Supreme
naturalization. The
Court
em-
point, we must
At this
persecutions.
States, 449
case is Fedorenko v. United
as
findings
the district court
phasize
U.S.
Specifically,
inferred facts.
to basic and
Fedorenko,
found
the Court
that “defendant
court found
the district
person
that a
could be denaturalized where
of food
responsible for the distribution
application
he failed to disclose on his visa
persons
entitled
supplies
and other
guard
an armed
at a Nazi
that he had been
employ-
same
virtue of
receive the
concluded,
camp. The Court
concentration
government____”
part
ment as
of the local
law,
being
a matter of
an armed
Kowalchuk,
The court
F.Supp. at 80.
camp guard
concentration
constituted suffi
occupy a
did
found that “defendant
also
persecution
of civil
cient assistance
responsibility
some
position of
time,
ians, that, had it been known at the
had his own office
He
schutzmannschaft.
precluded the issuance of a
would have
duty
...;
typed up and issued
he
there
512-13,
found sufficient to constitute assistance persecution populations. of civilian I Affairs, Czechoslovak Ministry Foreign appellant’s do not believe that conduct Two Years Oppression German approaches herein level of involve- (Unwin Ltd., Czechoslovakia 48 Brothers ment. analogous believe it more to that 1941). Great Britain police officer in Sprogis. To facilitate their persecute abilities to populations, local special the Nazis took B. interest departments. local *23 tyranny horrors of inflicted police The Nazis would oversee all activi- populations civil in by territories controlled ties, maintaining more direct involvement occupying during Nazi forces World War II functions, in police “especially selected are so notorious that no citation is neces- sphere police of the secret state and the sary. accounts, histories, News official police security criminal ... while internal articles, dramas, and novels, thousands of public order ... [would left] pictures, motion and television documenta- principal by to be maintained the ... [local] ries bear witness to this tragedy. universal police____” Id. at occupa- 32-33. As Nazi Although the by holocaust suffered mil- six continued, tion their control over the sub- lion apogee Jews is the of degeneracy, Nazi ject tightened areas suffering and the of the Nazis did not limit their ruthless mur- populations grew. local pres- Additional ders, tortures, and terror to members of applied through sures were police the local particular religious one faith. It is a mat- and, directives, if the resisted Nazi ter of record that 20 million Soviet citi- pressure applied directly was on them. zens—civilian and military perished by — is, experience again, The Czech instructive. the sword of the Third Reich. To a lesser There, ferocity cruelly German ... “[t]he extent, Polish, French, numerical Belgian, leading affected the officials of the Czech Danish and slaugh- Italian civilians were police. they As would not lend themselves by tered firing squads punish- random persecution of their fellow-citizens ment for violating rules of occupying ar- help would not the barbarous treat- mies. prisoners, ment of the they were them- by Atrocities carried out the Nazis selves arrested and treated with incredible against general populations occupied cruelty.” Id. at 50. occupation. these worse in the Nazi Under circumstanc- even
The situation was occupied areas. es, large per- than in other of Europeans Ukraine if this number particularly ex- occupation there was Nazi government formed or other service under in a figured ploitive because the Ukraine occupation, person Nazi no reasonable large-scale German colonization long-term, each of “assisted conclude that them Occupa Kamenetsky, I. Hitler’s scheme. persecution populations” civil (Mar (1941-1944) 35-88 tion Ukraine would, thereby, even the be forever denied 1956). Press, quette University Wisconsin possibility citizenship. of American Can plan, or Lebensr While this colonization say that the who delivered bread we baker throughout Eu aum, pursued Eastern guilty militia was of assist- applied particular zeal in it was rope persecutions? Nazi ing in Or the char Nazis where the Ukraine janitor office woman or who cleaned the inferior, in racially regarded all slavs as as a A line where Kowalchuk toiled clerk? subhuman, intended achieve fact Although must be drawn. to do so objectives by sophisticated German difficult, arbitrary, if very ultimately force____ tactics, but sheer brute act, do required we so in this case period occupation, During the of German whether we affirm or reverse the district labo- thus a wretched became Ukraine court. experiments ratory such as] [with ...— Jews, extermination of the the mass I believe that we should not extend deportation and brutalization cases Fedorenko-Dercacz-Osidach line of [and] the German coloniza- Ukrainians—and Further, presently to the facts before us. its inherent feature of enslave- tion with doctrine, Supreme consistent with Court exploita- and the ment of inhabitants required am our own decision Anas- country’s Ukraine tion of the resources. to resolve all doubts favor of the tasio probably more than other suffered standard, I against Measured citizen. country____ meet conclude did not Doroshenko, Survey A Dmytro Ukrain- ei- high proof burden of this issue (Humeniuk History 745 Publication ian ther. Foundation, 1975). Winnipeg Once in the Ukraine Nazis achieved control IX. policy a dual of annihilation of “launched ethnically politically undesirable brings question This me to final and the enslavement of the re- elements appellant’s false statements about whether mainder.” Id. at 748. As result of their during the occupation residence and techniques pursuit of their merciless of material misrepresentations war domination, goals thou- *24 of “hundreds of denied him a visa facts sufficient to have of Jews and ... were sands Ukrainians the under DPA. coldly systematically and the butchered bringing government action the this not fit into Hitler’s Nazis because did only misrepresentations by Kowal- charged ” order.’ Id. ‘new military membership concerning his chuk Lubomyl, district his residence in The and
C. court, at least of the agreeing with some type pressure, this Under of relentless Kowal- government’s arguments, revoked torture, arrest, the of and with alternatives (1) grounds: on three citizenship chuk’s in staring death them imprisonment, and Lubomyl militia he as a member of the that face, many hardly surprising is it that the (2) voluntarily enemy; the that as assisted pas- occupied of were inhabitants countries Lubomyl of militia he assist- member Many sively accommodating to the Nazis. popula- persecuting Nazis in ed the civilian undoubtedly government of these (3) willful, tions; mate- made and that he continued and civil servants who workers by lying positions misrepresentation of fact government under rial in assumed or 514 and employ- fact, his wartime residence sentation or concealment of
about a material ment.9 prove by Government clear must
convincing evidence: A. (1) suppressed either that facts were which, known, if warranted have provides DPA in 10 of the rele- Section (2) of citizenship denial dis- part: vant might closure have been useful in an person willfully shall Any who make a investigation possibly leading to the dis- misrepresentation purpose for the covery warranting of other gaining into the States facts denial admission United eligible displaced person shall citizenship. as thereafter not be admissible into the States, 350, Chaunt United 364 U.S. States. United 355, 81 S.Ct. development 62 1013. In the Stat. case prong The first with deals cases where law, 10 longer no can be considered in § denial citizenship prem- could have been itself. least and of At since Chaunt v. ised on the undisclosed information itself. States, 147, United 364 U.S. 5 The prong second deals with cases where (1960), especially L.Ed.2d since Fe not, the undisclosed information would dorenko v. 449 U.S. itself, justify and of denial of L.Ed.2d S.Ct. where, known, but had it been other facts provision analyzed of the DPA must be could been justifying discovered a de- conjunction incorpo with which in turn § citizenship. nial of (b) 2(a) rates IRO constitu §§ government part The I company Supreme yet tion. Court has to decide our evaluation of prongs. my both From applied whether the material facts test 2(a) discussion of IRO “assisted the ene- § applications applies naturalization also my in persecuting populations,” civil applications. visa it find unneces “[W]e 2(b) “voluntarily IRO assisted the sary question to resolve the whether [of] forces,” VIII., supra, Parts VIL and materiality governs Chaunt's test also government conclude that the did not satis- false in visa applications.” statements Fe dorenko, fy prong analysis at first An at Chaunt. 748. However, in proceedings naturalization which prong, majority second that, prove meet, Court has misrepre- stated does not difficult. more respect 9. misrepresentations, With Lubomyl army with material German as majority go First, decide misrepresentations. much further than the did not court majority appellant district court. appellant’s leaving state Lubomyl find that with the misrepresentations made five army material voluntary departure concern- German constituted militia; ing: employment Lubomyl his in the supra, n. them. See 1. The Lubomyl; special his wartime residence his finding does not assert such was error. schooling expense; voluntary Second, issue, at German special de- schooling as parture forces; Lubomyl trial, with the German government argued appellant’s not that Lubomyl membership and his in the militia. At misrepresen- failure to disclose it awas material majority explain tation, fabrication,” 492-493. Because fail to complete "a but it was membership the difference between and em- designed provide appellant with an alibi for militia, ployment Lubomyl and because I liquidated time when Nazis significance see no difference of between the Kowalchuk, ghetto. Only contentions, proceed though two I will these majority, government, *25 the not the asserts either substantively misrepresentation. the same alleged misrepresentations of these two as a above, affirming basis for the district order misrepresen- As noted court’s of of these asserted tations, Therefore, expressly denaturalization. because the factu- the district court addressed predicate only concerning al for those one was not found the fact appellant’s "residence in finder, employment by because the other runs to and his the town counter the trial, government’s government during occupa- case at there the German in chief and because Kowalchuk, government the tion.” 571 at 81. Not sur- has asserted either as an prisingly, ap- affirming the court did not district discuss alternative rationale for the district (cid:127) court, pellant’s special schooling departure or his I choose not to address either here.
515 Sheshtawy. considering in After B. court all implications, court Sheshtawy the conclud- in appeals courts of What has divided the that ed: “We the Chaunt Court believe applicabili application cases is not the visa and, effect, tension in considered this con- Chaunt, import the ty of but rather though may that be cluded even there some prong denaturalization of Chaunt’s second lie, encouraged importance to the that, who held in visa Some courts have test. cases, putting of naturalized well be- government only prove need that, yond danger of unwarranted misrepresentation not been revocation had made, investigation adoption of justifies an would have been so severe test.” facts might Sheshtawy, that have uncovered F.2d at 1041. conducted 714 Other warranting denial of a visa.10 The issue comes down to this: If this courts, one, require including more. court, court, any including Supreme require government prove to We Court, adopts meaning the literal of one that, only had correct information been “might,” Chaunt, in word contained available, investigation have been would wipe gal- then one word will out an entire that uncov undertaken but it would have axy Applied literally, of settled case law. warranting ered facts visa denial. United prong ap- all the second would Chaunt 986, (3d Riela, 337 Cir. F.2d 989 States v. require government prove pear to is 1964). also United States v. Shesh See that, told, truth been it “might 1038, (10th F.2d 1040-41 Cir. tawy, 714 in a subsequent have been useful” investi- 1983); I.N.S., v. 492 La Madrid-Peraza investigation might gation “possi- (9th Cir.1974); 1297, F.2d 1298 United bly discovery” disqualify- lead[] 650, Rossi, (9th 299 v. F.2d 652-53 States read, ing facts. Thus Chaunt would un- Cir.1962). cases from dermine Schneiderman v. ex- believe that most well-reasoned 118, 1333, States, S.Ct. 320 U.S. 63 United prong is plication of second Chaunt (1943), L.Ed. v. 87 1796 Fedorenko Unit- Sheshtawy, v. 714 found United States 490, 737, 449 101 66 ed U.S. S.Ct. (10th Cir.1983), only which is the F.2d 1038 L.Ed.2d 686 which establish that appeals that has made an intelli- court citizenship, granted, precious is a once gent consequences to discuss the effort that, proceed- right; in a denaturalization adopting meaning a literal of the term heavy burden; government ing, the bears “might” in The other cases do Chaunt. clear, prove its un- it must case such a not contain “reasoned elaboration” evidence, convincing so as equivocal, and construing meaning of the liberally unclear; that, leave not to the issue “might.” term See States v. Ko- United cases, all doubt to be resolved such 1320, I.N.S., ziy, 728 F.2d at Kassab v. 364 favor of defendant. 807, Oddo, at 314 F.2d United v. States beyond the must be construed Chaunt provide only F.2d at 118. The case to meaning language. literal holding reasoned elaboration for Supreme explication is significant Court “might” literally, sim- should read relies in Justice Blackmun’s concurrence found reasoning hold plistically on the Fedorenko, which the Tenth Circuit relied require otherwise would There, Black- upon' Sheshtawy. Justice investigation and conduct an extensive recognized the between the mun tension encourage an “applicant with some- supervising commitment lie “Government’s thing to hide” to to the I.N.S. United Fedorenko, citizenship process and the naturalized at 597 F.2d v. States court, however, preserving his status.” interest did not mention citizen’s Fedorenko Fedorenko, 522, considerations, 101 449 U.S. as did the alternative 806, (6th Cir.1966); 1314, I.N.S., Koziy, F.2d 1319-20 sab v. 364 F.2d 807 10. United States 728 — Oddo, (2d denied, U.S.-, (11th Cir.), F.2d 105 S.Ct. United States v. cert. denied, Cir.), (1984); v. Fe cert. 83 L.Ed.2d States dorenko, (5th 1979); Cir. Kas- L.Ed.2d 63 F.2d *26 J., (Blackmun, concurring). He noted been disclosed have led to an Government investigation warranting when “the seeks re denial? I have citizenship], Court grant voke government concluded that failed to [a consistently forcefully has held that it prove appellant's and wartime activities scrupulously justi on may do so clear voluntary constituted either assistance to 523, 101 proof.” Id. at at fication and S.Ct. persecution or assistance addressing prong the second populations. of civilian No additional reli- Chaunt, Blackmun concluded that Justice conclusively able evidence indicated that contemplated only rigorous this it “indeed misrepresentations had the not made been id., ...,” and that standard under this appellant’s application visa would have government prove prong the “must the ex rejected, most, been at it indicates that it facts, simply disqualifying istence of not investigation. would have caused further hypothesized lead might Therefore, facts that dis hold, law, I would as a matter qualifying Id. at at facts.” government that the prove by has failed to by stating: 756. Justice Blackmun ended requisite clear convincing and evidence can years “If naturalization be revoked that, appellant divulged had his actual war- conferred, on decades after it the mere occupation time residence and on his visa suspicion that certain undisclosed facts application, investigation an would have un- exclusion, have I fear might warranted covered facts that would have resulted in rights valued are in the denial of the visa. Bound as I am 525-26, danger of erosion.” Id. precedent, rejected by court’s not S.Ct. at 757. Supreme Fedorenko, Court I do not question meet the of what such an investi- I analy- believe that Justice Blackmun’s gation might have uncovered. sis is correct. To be consistent with prior Supreme subsequent Court’s deci- sions, prong the second of Chaunt must be X. requiring proof, clear, read unequivo- I Accordingly, would reverse the district convincing evidence, cal and of the exist- judgment separate court’s grounds: two disqualifying Thus, ence of actual facts. (1) the erred in concluding court that the that, government prove must had the government proving met its burden in known, been investiga- undisclosed facts Displaced violations of the Act of Persons
tion would have been conducted
dis-
(2)
charged,
appellant
1948 as
qualifying facts would
been
discover- deprived rights guaranteed by
pro-
the due
ed.
clause.
I
cess
would reverse and remand
proceedings
these
with a direction that
C.
judgment
appel-
be entered in favor of the
By the district
own
court’s
determina-
lant.
tions and our discussion in Parts
VII.
VIII., supra,
government
clearly did
HUNTER,
Judge,
Circuit
with whom
not meet
prong
its burden under the first
Judge
joins, dissenting:
Mansmann
test. The
Chaunt
district court
did
government
determined that
believe that
I
had
facts,
proved
known,
meet its
Accordingly,
if
burden
this case.
which
would have
I
Judge
warranted denial of
concur Chief
Kowalchuk’s visa.
Aldisert’s dissent
and would
district court
reverse and remand
di-
declared
is not
“[i]t
that,
judgment
at all clear
rection to enter
membership
appellant.
in ...
pre-
would have
[the militia]
join
Judge’s
I
the Chief
discussion in
cluded the issuance of a visa.” Kowal-
which,
through
view,
Parts
IX
V
in our
chuk,