Annual 3 Chapter 2 Part 1

Nazi Criminals in the United States:
Denaturalization after Fedorenko

by Henry Friedlander and
Earlean M. McCarrick

In January 1981, the Supreme Court ended years of confusion concerning the status of Nazi war criminals in the United States when it handed down its landmark Fedorenko decision. After the defeat of the Axis powers in 1945, numerous Nazi criminals entered the United States as displaced persons; these criminals, largely East European collaborators, lived undisturbed for almost three decades, and most eventually became naturalized citizens. In the 1970s, public opinion and congressional scrutiny forced action against them. The Immigration and Naturalization Service, together with the appropriate U.S. Attorney, investigated and moved to denaturalize. The first attempt by the Service to denaturalize an alleged Nazi criminal was a fiasco; this first prosecution, against a certain Frank Walus of Chicago, proved to be a case of mistaken identity and was dropped. The second attempt to denaturalize a Nazi criminal involved Feodor Fedorenko, who admitted serving as a Ukrainian SS auxiliary at the extermination camp of Treblinka. Nevertheless, the Service also lost this case when a federal district judge ruled in favor of the defendant. After these disasters, all investigation and litigation concerning Nazi criminals was transferred to the newly created Office of Special Investigations (OSI) in the Criminal Division of the Department of justice. The OSI was successful in obtaining a favorable judgment against Fedorenko from the court of appeals. Fedorenko took his case to the Supreme Court. Fedorenko lost. The Court upheld the Government's position, thus paving the way for the denaturalization of all Nazi criminals in the United States.1

In Fedorenko, the Court stripped the case of the complications and intricacies of the lower courts, going to the central issue of Fedorenko's eligibility to enter the United States and to become a naturalized citizen.2 The Displaced Persons Act (DPA) of 1948, under which Fedorenko and others like him immigrated to the United States, specifically excluded those who had "assisted the enemy in persecuting civil populations."3 The Court found that Fedorenko's service as a Ukrainian SS auxiliary at the Treblinka camp, where at least 700,000 Jewish men, women, and children were killed,4 constituted persecution within the meaning of the DPA. Fedorenko was thus ineligible to receive an American visa; he obtained a visa only because he concealed his Treblinka service. In addition, his failure to disclose his wartime record constituted "willful misrepresentation" on his visa application, and this made him ineligible to immigrate under another provision of the DPA.5 Thus the visa Fedorenko obtained by stealth was invalid and he was never "lawfully admitted for permanent residence" to the United States. To become a naturalized citizen, an alien must have been lawfully admitted for permanent residence on the basis of a valid unexpired immigrant visa. Fedorenko, and others like him, had therefore failed to meet the statutory requirement for citizenship.6 In Fedorenko, the Court concluded that citizenship had been "illegally procured" and must be revoked.7

In most denaturalization litigation instituted against Nazi criminals since Fedorenko, the Government has moved against East European nationals who entered the United States under the Displaced Persons Act of 1948 and who concealed their wartime activities. The charges in all these cases were essentially the same: that is, that they had wrongfully obtained their citizenship, because they had persecuted civilians and had lied about their past to get their visa and/or their naturalization, and that in such event the law mandates revocation of citizenship. The Immigration and Nationality Act (INA) provides in Section 340(a):

It shall be the duty of the United States attorneys ... to institute proceedings ... in the judicial district in which the naturalized citizen Denaturalization after Fedorenko may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and cancelling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation.... 8

The INA further provides in Section 316(a):

No person shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence ... (3) during all the period referred to in this subsection has been and still is a person of good moral character.... 9

Most Nazi criminals entered the United States under the very Displaced Persons Act that specifically excluded them. Designed for East European displaced persons-but not German nationals or ethnic Germans-it defined "refugees or displaced persons" in Section 2 as those accepted by the International Refugee Organization (IRO) of the United Nations.10 The IRO Constitution provided that the following should be excluded from DP status: 

1. War criminals, quislings and traitors, 2. Any other person who can be shown:

(a) to have assisted the enemy in persecuting civil populations of countries, members of the United Nations; or

(b) to have voluntarily assisted the enemy forces since the outbreak of the Second World War in their operations against the United Nations.11

In addition, the Displaced Persons Act itself excluded certain Nazi criminals in Section 13:

No visas shall be issued under the provisions of the Act to any person who has been a member of or participated in any movement hostile to the United States or who advocated or assisted in the persecution of any person because of race, religion, or national origin.... 12

Finally, Section 10 of the DPA excluded those who lied about their past: 

Any person who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States.... 13

1. The Demjanjuk Case

John (Ivan) Demjanjuk was born in 1920 in the Ukraine, a part of the Soviet Union. There Demjanjuk, who had little formal education, worked on a collective farm. Conscripted into the Soviet Army in 1940, he was wounded during the fighting that followed the German invasion of the Soviet Union on 22 June 1941. After recovering from his wounds, he continued to serve as a soldier in the Soviet army until his capture by the Germans during the battle of Kerch in the Crimea in May 1942. He was confined in POW camps in Rovno, the Western Ukraine, and Chelm, Poland, during May and June 1942. Thereafter he served as a volunteer SS auxiliary for the Germans. Trained in Trawniki, Poland, he was posted to the extermination camp Treblinka and remained there until the dissolution of the camp in September 1943. After service in Germany and Austria from 1943 to 1945, Demjanjuk found himself in the United States zone of occupation and, after residence in several camps, "arrived in Regensburg, Germany, where he drove a truck in an American Army motor pool from 1947-1949." In 1948 Demjanjuk "initiated procedures to immigrate to the United States." He applied to the IRO, to the Displaced Persons Commission, and in December 1951 for an immigration visa at an American consulate. He entered the United States in February 1952 and became a naturalized citizen in November 1958. In 1977, the Government brought action to denaturalize Demjanjuk in the United States District Court for the Eastern Division of the Northern District of Ohio.14

At his trial, the Government argued that Demjanjuk had participated in the mass murder of Jews at Treblinka. The court described Treblinka in the following way: "The ghoulish, diabolical operation of Treblinka, resulting in the almost incomprehensible annihilation of 900,000 Jews is indelibly stamped on the human conscience, and unfortunately is now a part of the human experience." The Government contended that Demjanjuk was the Ukranian guard, known to the Jewish prisoners at Treblinka as "Ivan the Terrible," who had operated the diesel motor that fed the gas into the lethal Treblinka chambers.

Demjanjuk denied all allegations. He maintained that he had never been trained at Trawniki and that he had never served at Treblinka. The Government produced documents, expert testimony, and eye witnesses to prove its allegations. The court was persuaded by the Government's evidence.

The Government's most important piece of evidence, in addition to the eyewitness identifications, was Demjanjuk's Trawniki identity card, showing his picture and signature, and providing his name, family history, and distinctive features. This document came from Soviet archives and a certified photographic copy was introduced as evidence. Demjanjuk contested its validity, claiming that it was a KGB forgery, but produced no evidence to prove this. The Government produced the original identity card, brought to the court by Soviet courier; it was returned to Soviet custody after examination by the court and the defense. Gideon Epstein, "an expert forensic documents examiner and specialist in the examination of questioned documents," testified for the Government concerning the validity of the identity card. He concluded that the signatures of two German officials on the card matched other signature samples of those officials and that tests proved that the card had not been fraudulently altered. Further, the Government's expert witness, Professor Wolfgang Scheffler of the Free University of Berlin, who had served as expert witness in numerous German trials of Nazi criminals during the 1960s and 1970s,15 testified that the information found on the Trawniki card conformed to the known facts of SS administration in occupied Poland. The court therefore concluded that Demjanjuk had been trained at Trawniki in July 1942.

The Treblinka extermination camp, where almost one million human beings were murdered, was run by a very small number of Germans; approximately 20- 30 Germans in SS uniforms supervised all operations. Their work was made possible only through the service of about 120 Ukrainian armed guards. The Germans recruited Soviet POWs who belonged to one of the non-Russian nationalitiesUkrainians, Latvians, etc.-to serve as volunteer SS auxiliaries (Hilfswillige, or Hiwis). Throughout Eastern Europe the SS used these Hiwis to guard ghettos, conduct roundups, accompany deportation trains, participate in mass executions, and serve in the extermination camps. Demjanjuk served as a Hiwi in Treblinka. The factual information concerning Treblinka and its Ukrainian guards was introduced through the testimony of the Government's expert witness Scheffler and had also been delineated in Fedorenko.16

Six eyewitnesses produced by the Government identified Demjanjuk as the Ivan who had operated the Treblinka gas chambers. Five witnesses, four men and one woman, were former Jewish prisoners at Treblinka who had escaped from the camp during the revolt of 2 August 1943. They had identified Demjanjuk from photospreads-four in Israel and one in New York. They testified in open court that they had observed Demjanjuk while he operated the gas chambers; they also testified that they had observed how he killed and tortured individual Jews outside the chambers. In addition, the Government produced the videotape testimony of a sixth witness. Otto Horn, who had served as a German supervisor at Treblinka, testified that Demjanjuk was the Ukrainian Ivan who had operated the gas chambers.

Demjanjuk challenged these identifications. He produced as a witness Feodor Fedorenko, who testified that he had never seen Demjanjuk at Treblinka. But the court found this testimony not credible, because it contradicted Fedorenko's earlier testimony at his own trial, where he had mentioned an Ivan who operated the motors of the gas chambers.17

Demjanjuk also argued that these identifications were invalid because they were based on photospreads compromised by being too suggestive. In Fedorenko the district court, later overruled by the Fifth Circuit and the Supreme Court, found for the defendant in part because the photospreads were too suggestive.18 But in the Demjanjuk case, the court did not accept the defense argument concerning photospreads. Although the photospreads used in Israel-the same ones used in Fedorenko-did not meet American standards, the court viewed them in the context of the entire testimony, including witness answers under cross-examination. Thus the court found as follows:

In conclusion, based on an examination of all the factual circumstances the Court finds that none of the pretrial photographic identifications was so impermissibly suggestive as to give rise to a likelihood of misidentification and deny the defendant due process of law. Since the Court finds both the pretrial and trial photographic identifications to be reliable, it must conclude that defendant was present at Treblinka in 1942-1943.

The district court denaturalized Demjanjuk as provided by the INA because he had procured his citizenship illegally as well as by willful concealment and misrepresentation of a material fact; for these reasons, he also lacked the good moral character required by the INA. The court found that his wartime activities excluded Demjanjuk under section 13 of the DPA and section 2(a) of the IRO Constitution from obtaining a valid visa and that his misrepresentations also excluded him under section 10 of the DPA.

In Fedorenko the Supreme Court focused only on the misrepresentation to obtain the visa. In the Demjanjuk case, the district court not only followed this precedent but also based the denaturalization of Demjanjuk on his misrepresentation to obtain his certificate of citizenship. True, unlike the application for a visa, the questions on the 1958 application for citizenship did not require Demjanjuk to divulge his service at Trawniki and Treblinka. However, one question asked on the citizenship application was whether the applicant had given false testimony for the purpose of obtaining any benefits under the immigration and naturalization laws. His negative answer con stituted a material misrepresentation; by denying that he had given false testimony in obtaining a visa, Demjanjuk suppressed facts that, if known, would have warranted denial of citizenship.

Demjanjuk appealed the district court's revocation of his citizenship to the Court of Appeals for the Sixth Circuit. In a brief per curiam opinion, the Court of Appeals affirmed:

We agree with the conclusion of law reached by the district court.... We further conclude that the district court's findings of fact are not clearly erroneous under a "clear and convincing" standard and the evidence properly admitted.19

2. The Osidach Case

Wolodymir Osidach, born in 1904, was an ethnic Ukrainian, native to the territory of Galicia, which belonged after World War I to the Republic of Poland. Galicia was occupied by the Soviet Union in September 1939 and by Nazi Germany after the invasion of the USSR in June 1941. Osidach, a Ukrainian nationalist who could speak German, served from 1941 to 1944 under the Germans as chief of the Ukrainian militia and, after its dissolution, as Hauptwachmann in the Ukrainian police in the town of Rawa Ruska, located in the District of Galicia of the General Government. In 1944, Osidach fled with the retreating German army; he survived the end of the war in Germany. There he claimed status as a displaced person and obtained an American visa. He entered the United States in July 1949 and became a naturalized citizen in August 1963. In 1979, the Government brought action to denaturalize Osidach in the United States District Court for the Eastern District of Pennsylvania in Philadelphia.20

At his trial, the Government introduced proof that Osidach had persecuted the Jewish residents of Rawa Ruska between 1941 and 1943. The Government argued that the Ukrainian police had engaged in such persecution as agents of the Germans, and that Osidach, who admitted membership in the Ukrainian police, had thus participated in such persecution. The Government introduced as evidence a German document, known as the Katzmann report,21 describing the participation of the Ukrainian police in the destruction of the Jews in Galicia and Rawa Ruska; it also introduced a report by a postwar Soviet commission describing the same events.

Further, the Government's expert witness, Professor Raul Hilberg of the University of Vermont, the author of The Destruction of the European Jews,22 testified about the killings of the Jews in Galicia and the participation of the Ukrainian police. Finally, the Government produced eyewitnesses from Rawa Ruska-whose testimony was videotaped in the Soviet Union-who detailed the Ukrainian participation in the killings. The Ukrainian police had aided the Germans in forcing the Jews of Rawa Ruska and the surrounding territory into a ghetto in the town of Rawa Ruska; there they existed in constant fear of torture, deprivation, and death while being forced to do compulsory labor. In March and July 1942, most of the Jews from Rawa Ruska were deported, again with the aid of the Ukrainian police, to the extermination camp of Belzec. In December 1942, the final roundup depopulated the ghetto, which was totally destroyed. The German authorities and the Ukrainian police deported the remaining Jews to Belzec with extraordinary brutality; large numbers of Jews were killed on the Spot.23

Osidach denied these allegations. He argued that the Ukrainian police in Rawa Ruska had no jurisdiction over Jewish affairs; he maintained that the Germans, who did not have the personnel to accomplish their task alone, relied for support only on the so-called Jewish police. The court, however, found Osidach's claims not believable. Because he had lied numerous times to the International Refugee Organization, the Immigration and Naturalization Service, and the court, his testimony simply lacked credibility. And his arguments did not, in the opinion of the court, agree with the facts established by "substantial and credible eyewitness testimony and corroborating documentary and expert evidence."

In March 1981, the same district court in Philadelphia that had conferred citizenship upon Osidach in 1963 ordered revocation of his certificate of naturalization. It did so as required by the INA provisions (sections 316a and 340a) concerning good moral character, illegal procurement, and willful misrepresentation, using as a basis the violation of sections 10 and 13 of the DPA and section 2(a) of the IRO constitution. Osidach died on 22 May 1981, before the United States Third Circuit Court of Appeals could rule on his appeal. The court granted the Government's motion to dismiss the appeal because Osidach's death made the question moot.

 

3. The Linnas Case

Karl Linnas was born in Tartu, Estonia, in 1919. After the German invasion of Estonia in June 1941, he served as "an active and voluntary member" of the Selbstschutz, an Estonian militia that supported the Germans. At the end of the war he fled to Germany and obtained registration as a displaced person in the United States zone of occupation. Linnas entered the United States in 1951 under the DPA and became a naturalized citizen in 1960. In 1979, the Government filed suit to denaturalize him and in 1981 the United States District Court for the Eastern District of New York revoked his citizenship.24

The Government charged that Linnas had lied about his activities during World War II to gain admittance to the United States. In his application for a visa, Linnas claimed to have been a university student in Tartu between 1940 and 1943. In fact, he had served as a senior member of the Selbstschutz in Tartu and also as chief of a concentration camp located in Tartu and its environs. In these capacities Linnas participated in the murder of numerous civiliansmen, women, and children. As a member of the Selbstschutz he participated in the killing of the Jews by aiding the SS Einsatzkontmando operating in Estonia; as chief of the Tartu camp he oversaw tortures and executions of the detained civilians. After his departure from Tartu, Linnas served as an SS volunteer in the German armed forces; in 1944 he had risen to the rank of lieutenant in the 38th Police Battalion.

The Government proved its case with three types of evidence. First, its expert witness Professor Raul Hilberg delineated how the Estonian Selbstschutz functioned as an integral component of the SS Einsatzgruppen, and how the Estonian volunteers were essential if the SS were to carry out its task of killing the Jews of Estonia. Second, the Government submitted witness testimony videotaped in the Soviet Union. These witnesses testified that Linnas occupied the position charged by the Government and that he directed and participated in the torture and killing of civilians. Third, the Government presented German documents from Soviet archives substantiating its charges. They included documents with Linnas' signature as chief of Tartu concentration camp and personnel records showing Linnas as a volunteer in the German armed forces.

Linnas refused to testify and did not even attend his own trial. His attorney attempted to refute the Government's evidence by charging that documents and witnesses from the Soviet Union were manipulated by the Soviet Communist party for the purpose of obtaining political objectives, but Judge Mishler rejected this defense, accepted the Government's evidence as credible, and ruled that Linnas had forfeited his citizenship under INA sections 316 (a) and 340 (a), DPA sections 10 and 13 and IRO Constitution sections 2 (a). Although Judge Mishler also found that Linnas had voluntarily served with German forces, he did not invoke the IRO Constitution, section 2 (b), which denied DPA status to those who "voluntarily assisted the enemy forces," as a basis for his decision.

Linnas appealed to the United States Court of Appeals for the Second Circuit. The appeals court unanimously upheld Judge Mishler's "thorough and carefully reasoned opinion."25

4. The Dercacz Case

Michael Dercacz was bom in 1909 at Zheldec in the Ukraine in what is today the Soviet Union. After the German invasion of the Soviet Union he served, from 1941 to 1944, as a member of the Ukrainian police in Novy Yarychev in the Lvov region in the Galicia district of the General Government. He entered the United States as a displaced person in 1949 and was naturalized in 1954. In 1980, the Government filed suit to strip him of his citizenship.

Pretrial depositions and interrogatories revealed that Dercacz, who had claimed that he spent the war years as a dairy farmer, had been issued a uniform and a rifle by the Germans and did his duty as a full-time salaried policeman. They further showed that in 1942, thousands of Jews from Novy Yarychev and surrounding villages "were forcibly concentrated in a ghetto . . . required to wear identifying armbands, were restricted in movement, trade, food and water, and some were used as forced laborers." They also showed that the Jews were rounded up and killed in January 1943.

On the basis of these facts, which emerged prior to trial, District Judge Neaher granted the Government's motion for a summary judgment under DPA sections 2 and 10 and INA sections 316 (a) and 340 (a). Dercacz's sole opposition to this judgment was his statement that the Ukrainian police had never dealt with Jews or the Jewish ghetto. The court found that

. . this conclusory statement dearly failed to meet the obligation imposed by rule 56. The cases uniformly hold that the opposing party must supply "supporting arguments or facts," and "concrete particulars," in order to present a genuine issue for trial. Defendant's unsupported denial makes the instance claim particularly appropriate for disposition without trial.

In addition, the court found Dercacz's denial not believable because the defendant had himself testified earlier that supervision of Jews was one of the duties imposed on the Ukrainian police.26

Dercacz failed to file a notice of appeal against this summary judgment before the time for such an appeal expired, and the revocation of his citizenship thus became final. The Office of Special Investigations filed papers to deport Dercacz; however, Dercacz died in August 1983.

5. The Kairys Case

Liudas Kairys was bom in Svihonys, Lithuania, in 1920. In 1940 he briefly served in the Lithuanian army and then, after the Russian occupation, continued his service in the Soviet army. After the German invasion, Kairys was captured and sent to a POW camp in Hammerstein, Pomerania. He entered the United States in 1949 as a displaced person and was naturalized in 1957. In 1980 the Government filed suit to strip him of his citizenship. Kairys disputed almost every fact presented by the Government; he even contested the Government's findings of his place and date of birth.

The Government claimed that as a POW Kairys was recruited by the Germans to train at Trawniki, a camp for the SS volunteer auxiliaries known as Hiwis. After completing his training, he served as a guard at the SS Commando Lublin and at the SS forced labor camp Treblinka.27 As a guard in Lublin and Treblinka, Kairys personally assisted in the persecution and killing of unarmed Jewish civilians. If the Government's version were correct, Kairys's citizenship had been illegally procured, because Section 2 (a) of the IRO Constitution, as incorporated into section 2 of the DPA, would have barred him from legal entry into the United States. If Kairys's version were correct, he was a genuine displaced person, entitled to a visa and to naturalization.

The United States District Court for the Northern District of Illinois accepted the Government's version. To support it, the Government had relied upon eyewitness testimonies and, most important, upon captured German documents. The most persuasive piece of documentary evidence proving Kairys's service as a SS auxiliary was a German personnel record (Personalbogen) with Kairys's photo and thumb print. Kairys contested the authenticity of the document; the court found it authentic. The Personalbogen proved that Kairys had trained at Trawniki and served in Lublin and Treblinka; as a matter of law, then, the court held that his citizenship was illegally procured and must, therefore, be cancelled. On 28 December 1984, District Judge Moran revoked his certificate of naturalization.28

6. The PaIdauskas Case

Kazys Palciauskas was born in Zagare, Lithuania, in 1907. During World War II he served as mayor of the capital city of Kovno (German name Kaunas). He entered the United States as a displaced person in 1949 and was naturalized in 1954. In 1981, the Government filed a denaturalization complaint in the United States District Court in Tampa, Florida. In 1983, Judge Morgan revoked his citizenship.29

The Government charged and Judge Morgan found that Palciauskas had assisted the Germans in persecuting civilians during the war. Specifically, the court found that during the brief period between the Soviet evacuation and the German occupation, Palciauskas had been appointed mayor of Kovno by the Lithuanian Provisional Government; when the Germans seized the city, Palciauskas remained mayor, carried out German policies, and was paid by the Germans for doing so. In Lithuania, as elsewhere in Eastern Europe, the Germans employed indigenous authorities both to perform routine governmental functions and to help implement repressive measures. The court found that in Kovno the Germans imposed various anti-Jewish policies: confiscation of property, ghettoization, forced labor, and finally mass execution. Judge Morgan found that Palciauskas both knew of the policies and supported their implementation. For example, Palciauskas visited the ghetto and, after the murder of its inhabitants, set up a committee to distribute the real estate of the murdered Jews.

When the Germans abandoned Kovno, he fled with them to Germany. After the Allied victory, he worked for the United States Army as an accountant and mail clerk. When he sought certification as a displaced person for admission to the United States, Palciauskas did not reveal his wartime tenure as mayor of Kovno under German occupation. The court accepted the testimony of a former member of the Displaced Persons Commission that "the standard policies of the DP Commission would have considered the mayor of a Nazi occupied town as either an active or passive collaborator," and would have denied such a person DP status. Palciauskas thus received a visa only because he concealed his wartime position. Similarly, when Palciauskas applied for naturalization, he again concealed his status during World War II; in addition, he swore that he had not given false testimony to gain entry into the United States.

On the basis of these findings of fact, Judge Morgan concluded that as a matter of law (DPA, sections 2 and 10; INA, sections 316 [a] and 340 [a]), Palciauskas's citizenship had to be revoked.

Palciauskas appealed to the United States Court of Appeals for the Eleventh Circuit. He argued in part that his inability "to conduct discovery in Lithuania," due to "the expense and the futility of using the Soviet justice system," had stymied his defense, and that the admission of documents from Soviet archives had been prejudicial because "such documents were inherently unreliable."

The court of appeals found the issues raised by Palciauskas to be "novel, complex, and in some respects troubling"; nevertheless, the court refused to consider any of these issues "because any error that may have occurred was harmless." For the court, the only relevant issue was the fact that the Government had proved that Palciauskas had obtained his citizenship by willful misrepresentation and concealment of a material fact: "we agree with the district court that Palciauskas's deliberate omission throughout the immigration and naturalization process of the fact that he was the mayor of a Nazi occupied town was a material misrepresentation."

Palciauskas argued that had the Government not frustrated his attempt at discovery30 he would have been able to show that the position of mayor of Kovno under German rule "was an impotent position of no discretion or power." The court of appeals, however, upheld the district court and rejected Palciauskas's defense:

Of course, had Palciauskas convinced the United States authorities in 1949 that his mayorship was impotent, or that he had actually used his position to sabotage the Nazi war effort, he may still have been allowed into the United States. But those facts were for government authorities to determine to their satisfaction based on complete and truthful information in 1949, not for Palciauskas to decide for himself then, or for us to decide now.31

For all these reasons, the court of appeals upheld the district court's denaturalization of Palciauskas.

7. The Koziy Case

Bohdan Koziy was born in Pukasiwci, Galicia, in 1923. During World War II he served as a Ukrainian policeman under the German occupation, fleeing to Germany in 1944. He entered the United States as a displaced person in 1949 and became a citizen in 1956. In 1981, the Government sued to denaturalize him, and in 1982, Judge Paine of the District Court for the Southern District of Florida stripped him of his citizenship.32

At the trial, the Government's expert witness, Professor Raul Hilberg, provided the historical background for the charges against Koziy. He showed how Galicia, populated by Ukrainians, Poles, and Jews, was in World War II first seized by the Soviet Union and in June 1941 by the Germans. The Germans incorporated Galicia as the fifth district into the General Government. They immediately instituted severe anti-Jewish repressions, including forced labor, ghettoization, and finally mass murder. Jews were rounded up and deported to the extermination camp Belzec; many, however, were killed on the spot. In all these activities, as shown by many German documents submitted as evidence and explained by the expert witness, the Ukrainian police participated in a crucially important way.

The Government proved, with documents from Soviet archives and with videotaped testimonies from witnesses in Poland and the Soviet Union, that Koziy had served as a Ukrainian policeman in the district of Stanislau, including the commune of Lisets. This evidence also showed that Koziy and other policemen had participated in the roundup, killing, and deportation to Belzec of the Jews in the Stanislau region. Further, the testimony showed that Koziy had personally committed murder: he shot the Jewish female child Singer in Lisets after she was discovered hidden with a Polish family.

Koziy denied all charges. On his visa and naturalization applications he had concealed his service as a policeman, stating instead that he had been a tailor's apprentice during World War II. He had also concealed his membership in the Organization of Ukrainian Nationalism (OUN), and the fact that he fought against the Red Army as a member of that organization.

Judge Paine ruled that the Government had proven its case. Koziy had obtained his visa by willful concealment and misrepresentation of material facts-his murder of civilians and his voluntary membership in the Ukrainian police and the OUN-under both sections 2(a) and 2(b) of the IRO Constitution and sections 10 and 13 of the DPA. He had thus illegally procured his naturalization under section 316 (a) of the INA.

Koziy appealed to the United States Court of Appeals for the Eleventh Circuit. The appeals court upheld the district court's decision in all respects.33 Two issues raised by Koziy were of special concern. Koziy argued that the German documents from Soviet archives submitted by the Government to prove Koziy's personal involvement in crimes were KGB forgeries. The appeals court, however, ruled on the basis of testimony by Professor Hilberg and Dr. Cantu, an expert documents examiner, that these documents were authentic. Koziy also argued that the OUN was not an organization hostile to the United States, and introduced an expert witness, Dr. Petro Murchuk, to prove this contention. The appeals court, however, pointed to the fact that Murchuk's credibility as a witness was compromised by a letter he had written to the Department of Justice claiming that the investigation of Koziy was a "KGB-Jewish plot," and thus ruled against Koziy:

Koziy also testified declaring that the OUN was never hostile to the United States. Koziy, however, stated that the OUN killed Russian partisans during World War II. The United States and Russia were allies during World War 11.

In a move unprecedented in the denaturalization of Nazi criminals, the Government demanded after trial that Koziy pay plaintiff's costs, and the District Court for the Southern District of Florida ordered Koziy to pay the Government $18,538.22. Koziy, however, had attempted to evade this order by the transfer of his title to a Florida motel, jointly owned with his wife, to his wife's sole ownership; she thereafter sold the motel for $410,000. This maneuver, which brought to the Koziy family $94,817 and a mortgage paying them $3,303.27 a month for a period of 240 months, left Bohdan Koziy officially indigent. The Government charged "fraudulent conveyance of real property," and asked the district court to "garnish the proceeds of the real property," and asked the district court to "garnish the proceeds of the sale."34 Ultimately, the Government collected this money.

NOTES

This article could not have been written without the many courtesies extended to the authors by Neal M. Sher, director, Michael Wolf, deputy director, and Allan A. Ryan, Jr., former director, of the Office of Special Investigations, Criminal Division, Department of Justice. We thank them and absolve them of responsibility for any errors herein.

1. See Henry Friedlander and Earlean M. McCarrick, "Nazi Criminals in the United States: The Fedorenko Case," SWC Annual 2 (1985): 63-93.

2. Fedorenko v. United States, 449 U.S. 490 (1981).

3. Ibid., p. 495.

4. For details about the extermination camp at Treblinka, see the court decision in the Treblinka trial (Dusseldorf 1965), in Justiz und NSVerbrechen. Sammlung deutscher Strafurteile wegen nationalsozialistischer Totungsverbrechen 22: No. 596.

5. Displaced Persons Act, Sec. 10, 62 Stat. 1009.

6. Immigration and Nationality Act, 8 U.S.C. Sec. 1451(a).

7. Fedorenko v. United States, 449 U.S. 490, 518 (1981).

8. 8 U.S.C. Sec. 1451(a). Italics added.

9. 8 U.S.C. Sec. 1427(a)(1)(3). Italics added.

10. 62 Stat. 1009.

11. 62 Stat. 3037-3055.

12. DPA as amended in 1950, 64 Stat. 227.

13. 62 Stat. 1009, 1013.

14. United States v. Demjanjuk, 518 F. Supp. 1362 (N.D. Ohio 1981).

15. See Wolfgang Scheffler, "The Liquidation of the Ghettos," SWC Annual 2 (1985): 31-51. He is the author of Judenverfolgung im Dritten Reich (rev. ed. Berlin, 1964) and, most recently, "Der Beitrag der Zeitgeschichte zur Erforschung der NS-Verbrechen: Versaumnisse, Schwierigkeiten, Aufgaben," in Vergangenheitsbewaltigung durch Strafverfahren? NS-Prozesse in der Bundesrepublik Deutschland, ed. Jurgen Weber and Peter Steinbach (Munich, 1984), pp. 114-33.

16. See Ino Arndt and Wolfgang Scheffler, "Organisierter Massenmord an Juden in nationalsozialistischen Vernichtungslagern," Vierteljahrshefte far Zeitgeschichte 24 (1976): 105-35; Adalbert Ruckerl, NS-Vernichtungslager im Spiegel deutscher Staffprozesse (Munich, 1977); United States v. Fedorenko, 455 F. Supp. 893 (1978).

17. The contradiction is noted by the district court in United States v. Demjanjuk, 518 F. Supp. 1362, 1376 (1981). Fedorenko testified at his own trial that an "Ivan" operated the motors of the gas chamber. Transcript United States v. Fedorenko, District Court of the United States for the Southern District of Florida, No. 77-2668-CIV-NCR, pp. 1458-59. However, at his Demjanjuk deposition, Fedorenko claimed he did not know such an Ivan. Deposition of Feodor Fedorenko, 7 March 1981, pp. 17-18, 22-23, 62-63, 66.

18. See Friedlander and McCarrick in SWC Annual 2: 78-79.

19. United States v. Demjanjuk, 680 F. 2d 32 (6th Cir. 1982).

20. United States v. Osidach, 515 F. Supp. 51 (E.D. Pa. 1981).

21. Nuremberg Doc. L-018. Katzmarm was the Higher SS and Police Leader in Galicia; his report delineated the extermination of the Jews in his district.

22. Chicago: Quadrangle Press, 1961. A revised 3-volume edition was published in 1985 by Holmes and Meier.

23. See Scheffler in SWC Annual 2: 31-51.

24. United States v. Linnas, 527 F. Supp. 426 (E.D. N.Y. 1981).

25. United States v. Linnas, No. 81-6165 (2nd Cir. 25 Jan. 1982).

26. United States v. Dercacz, 530 F. Supp. 1348 (E.D. N.Y. 1982).

27. The Treblinka forced labor camp, known as Treblinka 1, was located in the easternmost portion of the Warsaw district. It opened in 1940 and was closed in July 1944. It was located near the extermination camp of the same name. The Treblinka extermination camp was known as Treblinka IL See Comite International de la Croix-Rouge, International Tracing Service, Vorlaufiges Verzeichnis der Konzentrationslager und deren Aussenkommandos sowie anderer Haftstdtten unter dem Reischsfuhrer-SS in Deutschland und deutsch besetzten Gebieten 1933-1945 (Arolsen, 1969), pp. 433, 483.

28. United States v. Kairys, No. 80 C 4302 (N.D. Ill. 28 Dec. 1984). In Jan. 1986 the U.S. Court of Appeals for the Seventh Circuit upheld this decision: United States v. Kairys, Nos. 80-1314 and 85-1397 (7th Cir. 27 Jan. 1986).

29. United States v. Palciauskas, 559 F. Supp. 1294 (M.D. Fla. 1983).

30. It is not clear why Palciauskas thought that the Government had frustrated his attempt at discovery in Lithuania, as he had earlier argued that the expense and futility of using the Soviet justice system had prevented such discovery. Perhaps he expected the Government to pay all his expenses and also reform the Soviet justice system.

31. United States v. Palciauskas, 734 F.2d 625 (11th Cir. 1984).

32. United States v. Koziy, 540 F. Supp. 25 (S.D. Fla. 1982).

33. United States v. Koziy, 728 F.2d 1314 (11th Cir. 1984).

34. United States v. Koziy, Affidavit in Support of Award Costs, No. 79-6640-CIV- JCP (S.D. Fla. 18 May 1984), Motion for Taxation of Costs, No. 79-6640-CIV- JCP (S.D. Fla. 18 May 1984); Award of Costs, 79-6640CIV-JCP, (S.D. Fla. 14 June 1984).

Simon Wiesenthal Center-Museum of Tolerance Library & Archives 
For more information contact us at (310) 772-7605 or library@wiesenthal.net.
We are located at 1399 S. Roxbury Drive, Los Angeles, CA 90035, 3rd Floor

Sign Up for E-News

Facebook  Twitter  Google Plus  Instagram  pintrest 

Search