                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-7-2002

USA v. Szehinskyj
Precedential or Non-Precedential:

Docket 0-2467




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Filed January 7, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2467

UNITED STATES OF AMERICA

v.

THEODOR SZEHINSKYJ
a/k/a
FEDOR SZEHINSKI
a/k/a
THEODOR SZEHNISKIJ
a/k/a
THEODOR SZEHINSKY
a/k/a
THEODOR SZEHINSKI
a/k/a
THEODOR SZEHNKYJ

THEODOR SZEHINSKYJ,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 99-cv-05348
District Judge: The Honorable Stewart Dalzell

Argued: September 7, 2001

Before: BECKER, Chief Judge, ALITO and
BARRY, Circuit Judges

(Opinion Filed: January 7, 2002)
       Andre Michniak, Esq. (Argued)
       Suite 1000
       1420 Walnut Street
       Philadelphia, PA 19102

       Attorney for Appellant

       William H. Kenety, V., Esq. (Argued)
       United States Department of Justice
       Office of Special Investigations
       1001 G Street, N.W.
       Washington, D.C. 20530
        AND
       David W. Folts, Esq.
       Robert J. Groner, Esq.
       Suite 200
       United States Department of Justice
       Office of Special Investigations
       1301 New York Avenue, N.W.
       Washington, D.C. 20530

       Attorneys for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

Appellant Theodor Szehinskyj participated in what has
accurately been described as the Third Reich's "closed
culture of murder" which saw millions of victims die in the
Holocaust, the "greatest moral catastrophe of our
civilization." United States v. Szehinskyj , 104 F. Supp. 2d
480, 500-01 (E.D. Pa. 2000). The revocation of his United
States citizenship is now before us, with Szehinskyj arguing
that he was not what the evidence resoundingly showed
him to be -- an armed concentration camp guard who
"assisted in persecution . . . because of race, religion or
national origin"; indeed, he argues that he never set foot in
the camps in which it was shown that he served. He
argues, as well, that even if the government proved that he
was an armed guard, it did not prove that he made a
material misrepresentation on his visa application and,

                                2
thus, his citizenship should not have been revoked. He is,
in a word, wrong.

I.

In 1950, Theodor Szehinskyj, who was born in Poland
but claims to be a Ukranian national, entered the United
States, together with his wife and daughter, on an
immigrant visa issued to him under the Displaced Persons
Act of 1948 ("DPA"), Pub. L. No. 80-774, 62 Stat. 1009, as
amended, June 16, 1950, Pub. L. No. 81-555, 64 Stat. 219.
Eight years later, the Delaware County Court of Common
Pleas granted his petition for naturalization, and he became
a United States citizen on March 13, 1958.

In 1999, the government filed an action under section
340(a) of the Immigration and Nationality Act of 1952
("INA"), 8 U.S.C. S 1451(a), seeking revocation of
Szehinskyj's citizenship on the ground that he assisted the
Nazi government of Germany in persecuting individuals
because of their race, religion and national origin when he
served as an armed Nazi concentration camp guard during
World War II. The District Court, after a five-day bench
trial, concluded in extensive findings of fact and
conclusions of law that Szehinskyj served as a Waffen SS
Totenkopf (or "Death's Head") Division concentration camp
guard who "assisted in persecution." He was not, therefore,
entitled to the immigrant visa he received under the DPA
and consequently was not lawfully admitted and eligible for
naturalization under 8 U.S.C. S 1427(a)(1). 1 His citizenship
was revoked. The District Court had jurisdiction under 28
U.S.C. SS 1331 & 1345. We have jurisdiction under 28
U.S.C. S 1291. We will affirm.
_________________________________________________________________

1. 8 U.S.C. S 1427(a) provides:

       No person . . . shall be naturalized unless such applicant, (1)
       immediately preceding the date of filing his application for
       naturalization has resided continuously, after being lawfully
       admitted for permanent residence, within the United States for at
       least five years.

                                  3
A. Material Misrepresentation Not Required

As suggested at the outset, Szehinskyj raises two issues
on appeal: insufficiency of the evidence, albeit with various
permutations and combinations, and the failure of the
government to prove that he made a material
misrepresentation on his visa application. We will deal with
these issues in reverse order because the latter issue can
be swiftly put to rest. Our review of what is a pure issue of
law is plenary.

It is beyond dispute that "there must be `strict
compliance' with all the congressionally imposed
prerequisites to naturalization, and failure to comply with
any of these terms renders the naturalization illegally
procured and subject to revocation under section 1451(a) of
the Immigration and Nationality Act." United States v.
Breyer, 41 F.3d 884, 889 (3d Cir. 1994) (quoting Fedorenko
v. United States, 449 U.S. 490, 506 (1981)). Because
Szehinskyj entered this country under a visa issued to him
pursuant to the DPA, the legality of his naturalization
ultimately turns on his eligibility under that Act. Id.

Section 3(a) of the DPA made immigration visas available
to "eligible displaced persons." 62 Stat. 1010. Any person
who "assisted the enemy in persecuting civil populations"
was excluded from the definition of an eligible displaced
person. DPA S 2(b), 62 Stat. 1009 (incorporating the
definition of displaced person in Annex I to the Constitution
of the International Refugee Organization); see also
Fedorenko, 449 U.S. at 495 & n.3. Section 13 of the Act,
the section at issue here, states in pertinent part:

       No visas shall be issued under the provisions of this
       Act, as amended . . . to any person . . . who advocated
       or assisted in the persecution of any person because of
       race, religion or national origin.

DPA, as amended, 64 Stat. 219, 227. Thus, Szehinskyj was
not eligible for his visa if, prior to obtaining the visa, he had
advocated or assisted in persecution based on race,
religion, or national origin. Assistance in persecution
constitutes illegal procurement. Breyer, 41 F.3d at 889;
United States v. Koreh, 59 F.3d 431, 438-42 (3d Cir. 1995).

                               4
But, says Szehinskyj, the government failed to prove that
he obtained his visa because of a material
misrepresentation and that this, too, is required. It is not.
Whether or not Szehinskyj made, and the government
proved, a material misrepresentation is irrelevant, for no
such proof is required by the plain language of section 13
of the DPA.

We now make explicit that which has heretofore been
implicit in our cases. The assistance in persecution ground
for visa ineligibility is an independent ground that does not
include a fraud element; once a determination of
ineligibility is made on this ground, there is no need to look
for and find a material misrepresentation. United States v.
Tittjung, 235 F.3d 330, 341 (7th Cir. 2000); cf. Breyer, 41
F.3d at 889-91 (finding ineligibility without examining
whether any misrepresentation occurred); Koreh , 59 F.3d at
438-42 (same).

As the Tittjung Court explained:

       To adopt Tittjung's reasoning, we would be forced to
       ignore the plain language of S 13(a) of the DPA as
       amended in 1950, something we cannot do. That
       Section states that `No visas shall be issued under the
       provision of this Act, as amended . . . to any person
       who advocated or assisted in the persecution of any
       person because of race, religion, or national origin.'
       Section 13(a) does not contain a fraud element, but
       rather provides wholly independent grounds for
       denaturalization.

The Court concluded:

       Once [the] determination was made [that Tittjung's
       service as an armed concentration camp guard meant
       that he had assisted in persecution], the [district] court
       did not and was under no obligation to assess whether
       Tittjung had made misrepresentations in order to
       procure his visa.

       Requiring a finding of misrepresentation in order to
       determine illegal procurement would not only be
       inconsistent with the plain meaning of [section 13 of]
       the DPA, but would be in direct conflict with previous
       federal case law on the matter.

                               5
Tittjung, 235 F.3d at 341.

Szehinskyj, ignoring the plain language of the DPA and
ignoring Tittjung, argues that a material misrepresentation
is the jurisdictional fact under which, in Fedorenko, the
Court predicated the invalidity of the visa before it. But,
aside from other distinctions between that case and this,
the Fedorenko Court was not considering an assistance in
persecution charge. Rather, the Court was considering a
charge against petitioner under section 340(a) of the INA,
66 Stat. 260, as amended, 8 U.S.C. S 1451(a), which
requires revocation of citizenship that was "illegally
procured" or "procured by concealment of a material fact or
by willful misrepresentation," and section 10 of the DPA, 62
Stat. 1013, which provided that "[a]ny 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."

Specifically, as relevant to the issue before the Court,
Fedorenko was charged with willfully concealing on his visa
application (and his application for citizenship) that he had
served as an armed guard at the infamous Treblinka
concentration camp and had committed crimes or atrocities
against inmates because they were Jewish. The
government's case rested on the claim that he had procured
his naturalization illegally or by willfully misrepresenting
material facts. Fedorenko, 449 U.S. at 497-98. The one
count complaint before us did not allege, as a basis for
revocation of citizenship, any such thing but, instead, relied
on the independent ground of assistance in persecution.
There is nothing in Fedorenko that even suggests that in
such a case a material misrepresentation must still be
proved.2
_________________________________________________________________

2. One final note in this regard. While, of course, at no point did
Szehinskyj disclose his wartime service to the Third Reich, courts have
had little difficulty, even in a misrepresentation case, finding such a
sin
of omission to be, nonetheless, a sin sufficient to warrant revocation of
citizenship. As the Fedorenko Court put it,"we conclude that disclosure
of the true facts about petitioner's service as an armed guard at
Treblinka would, as a matter of law, have made him ineligible for a visa

                               6
Szehinskyj's material misrepresentation argument is
without merit.

B. The Evidence was Sufficient

We now turn to the heart of this case -- whether the
evidence supported the District Court's conclusion that
Szehinskyj was an armed concentration camp guard who
"assisted in the persecution of any person because of race,
religion, or national origin." Szehinskyj, 104 F. Supp. 2d at
493. The District Court's conclusion is based on numerous
findings of fact, which we review for clear error, and our
review of its conclusions of law is plenary. Stelmokas, 100
F.3d at 313. In conducting our review, we must keep in
mind that "the right to acquire American citizenship is a
precious one," Fedorenko, 449 U.S. at 505, and, therefore,
the government "carries a heavy burden of proof in a
proceeding to divest a naturalized citizen of his citizenship."
Id. (quoting Costello v. United States, 365 U.S. 265, 269
(1961)). The evidence for revocation must be "clear,
unequivocal, and convincing" and not leave "the issue in
doubt." Id. (quoting Schneiderman v. United States, 320
U.S. 118, 125 (1943)).

We note at the outset that Szehinskyj's response to the
evidence against him has shifted. Before the District Court,
his story was that he was never a guard at a concentration
camp or a member of the SS. Rather, he claimed, he had
worked on a farm in Austria as a "slave laborer" from
February 1942 until November 1944 for Frau Hildegard
_________________________________________________________________

under the DPA." Id. at 509. And, as we observed in United States v.
Stelmokas, where we considered the case of a Schutzmannschaft officer
who represented that he was a teacher:

       In our view, if you falsely represent that your employment is one
       thing when your actual employment is completely different, then you
       have concealed your true employment. In these circumstances, it is
       perfectly clear that Stelmokas himself demonstrates that he made a
       material misrepresentation when he sought displaced person status
       and a visa.

100 F.3d 302, 314 (3d Cir. 1996).

                                 7
Lechner while her husband was on military duty in Russia
and, after leaving her, did various unremarkable things. We
note that after Szehinskyj had dug in his heels on this
position -- according to the District Court, he had supplied
Frau Lechner's name as an alibi -- somewhat miraculously
the government found Frau Lechner, then eighty-eight
years old, and her de bene esse deposition was thereafter
taken. She recalled, clearly and in specific detail, that
Szehinskyj left her farm in the late summer of 1942, and
how and why he did so. The District Court listed numerous
and specific reasons why it credited her "compelling"
testimony in its entirety, finding her "completely credible"
and "remarkably exact in her answers," with a"precise
recollection of dates." Szehinskyj, 104 F. Supp. 2d at 495.
It also listed numerous and specific reasons why it found
Szehinskyj's testimony incredible, not the least of which
were the powerful wartime documents which showed,
beyond any question, where, in fact, he was during the
relevant years and what, in fact, he was doing. But more
about those later.

Before us his position somewhat subtly changed. Aside
from arguing that Frau Lechner's testimony should not be
believed and his should be, Szehinskyj argued not so much
that he was not where the documents placed him, but that
the documents were not enough to clearly and convincingly
show that he assisted in persecution. There were no fact
witnesses who pointed the finger at him nor was his
signature on any documentation, he complained, and there
were no photographs or fingerprints of him. At oral
argument before us, there was yet another subtle change,
to wit: even if he was there, and even if he was a
concentration camp guard at the Gross-Rosen,
Sachenhausen, and Warsaw concentration camps and a
guard in a prisoner transport from Sachsenhausen to the
concentration camp at Mauthausen, there was no evidence
that he was an armed guard and, thus, the government did
not prove that he "assisted in persecution." Indeed, for
purposes of argument, Szehinskyj was effectively willing to
concede everything but the "armed" status.

After carefully reviewing the record, we find no reason to
believe that the District Court clearly erred in determining

                               8
that Szehinskyj served as an SS Totenkopf guard. The
remarkable consistency of the information contained in the
six Nazi wartime documents retrieved from Russian,
German, and Ukrainian archives -- concentration camp
Change of Strength Reports, Troop Muster Rolls, and a
Transfer Order -- incontrovertibly supports the District
Court's finding. Not only did each of those documents
identify Szehinskyj by name, but each also noted his date
of birth, place of birth, religion, and mother's first and
maiden names, making it unlikely in the extreme that the
documents referred to a different Theodor Szehinskyj. As
the District Court put it:

       Szehinskyj has been convicted by incontrovertible
       documents, all but one of which did not see the light
       of Western eyes until after the collapse of the Soviet
       Union on December 31, 1991. These wholly consistent
       ancient documents, having reposed for over fifty years
       in Moscow, Kiev, and Berlin, leave no doubt that this
       Theodor Szehinskyj was a member of the Totenkopf
       battalion at the Gross Rosen, Sachsenhausen and
       Warsaw concentration camps, and almost certainly at
       Mauthausen and Flossenburg as well. From January of
       1943 through at least April of 1945, Szehinskyj was
       thus part of the Totenkopf guard in at least three
       venues of the Final Solution.

Szehinskyj, 104 F. Supp. 2d at 500. The testimony of Frau
Lechner provides further corroboration of the story outlined
in the documents, as does the consistency of those
documents with yet other documents. Based on this
evidence, the District Court found "without hesitation" that
the Theodor Szehinskyj before the Court and the Theodor
Szehinskyj mentioned in the Nazi documents were identical.
Id. at 499. We reach the same conclusion.

Szehinskyj argues, however, that even if he did serve as
a concentration camp guard, the government presented no
proof that he was armed and no proof of any other specific
conduct that constituted assistance in persecution. We
disagree. Szehinskyj correctly notes that similar cases in
recent years have involved somewhat more individualized
evidence of assistance in persecution than is present here.
See, e.g., Breyer, 41 F.3d at 890 ("The record is

                                9
uncontroverted that [the defendant] was a trained, paid,
uniformed armed Nazi guard who patrolled the perimeters
of two such camps with orders to shoot those who tried to
escape."). Lacking specific accounts of Szehinskyj's day-to-
day activities in the SS Totenkopf, -- accounts increasingly
difficult to obtain given the passage of so many years -- the
government chiefly relied on the testimony of Dr. Charles
Sydnor, a respected Holocaust scholar, to show beyond
peradventure that Szehinskyj was armed based on the fact
that he was a concentration camp guard. Beyond Dr.
Sydnor's testimony, the record is replete with accounts of
the inhuman orders carried out by members of the Death's
Head Battalion in which Szehinskyj served, including the
accounts of four survivors of the camps involved in this
case.

The District Court, in a comprehensive opinion,
synopsized this evidence, graphically describing the
"horrifyingly clear picture of life in the concentration
camps" in which Szehinskyj was shown to have served and
the survivors' "vivid living testimony of what a nightmare a
prisoner's daily life was" in those camps -- camps which
were a "thoroughly considered, meticulously organized
enterprise of state-sponsored murder." Szehinskyj, 104 F.
Supp. 2d at 487 & 500. We could not improve on that
description and will not attempt to do so. Instead, we will
quote the relevant portions virtually in full, deleting the
citations to the record and the notes in margin, some of
which make the case that Szehinskyj had to have been
armed even more powerfully.

        The Nazis, under the direction of Hitler, SS Head
       Heinrich Himmler, and Himmler's protege, Theodor
       Eicke, created three basic types of concentration camps
       under the exclusive control of the SS: confinement and
       slave labor camps, extermination camps, and, as the
       war progressed, combined slave labor and death
       camps. Conditions in the camps were inhuman:
       disease was rampant, sanitation, medical care, and
       heat were nonexistent, and inmates received little food,
       less than 1,000 calories per day. At labor camps,
       inmates were made to work eleven- or twelve- hour
       days in brutal conditions, even at night in the bitter

                               10
winter. Prisoners died every day from malnutrition,
exhaustion, disease, beatings, suicide, or murder.
Many were subject to cruel and deadly medical
experiments. One such experiment involved inflicting a
flesh wound with a poison-tipped bullet and
documenting how long it took the prisoner to die from
the poison.

*   *   *

 As is made clear from the survivor accounts . . . the
Waffen SS Death's Head Battalion guards were vital to
maintaining the terror of the camps. Dr. Sydnor
testified that the camps simply could not have
functioned without them. The guards, who were
uniformed, armed, paid, and given leave, were
instructed to shoot any prisoner who attempted to
escape. They subjected inmates to both official and
unofficial physical punishments as well as verbal
abuse and persecution.

*   *   *

 All of the guards were armed at all times. An
"Instruction on Tasks and Duties of the Guard"
circular quotes the General Guard Directive, to wit:"It
is forbidden to the guard, unless explicitly determined
otherwise, to lay his weapon down." Also, an illustrated
instruction book for guards who did not speak German
depicts every guard, without exception, holding a gun.

 Dr. Sydnor emphasized that Totenkopf guards were
not assigned to the same jobs every day at the camps.
They had to be able to perform each type of duty-night
patrol, escorting inmates to and from work details,
guarding them at work, service in the watchtower,
patrolling the perimeter of the camp, etc. They also had
to be ready at any moment to search for escapees.

 The Totenkopf Battalion guards also were used in
prisoner transports from one camp to another. On
these hellish transports, during which prisoners
routinely died, the duty of the guards was the same as
at the camps: to make sure no prisoners escaped.
Guards surrounded the train cars with guns drawn at

                        11
       every stop. ("Wrong/Right" illustration book depicting
       guards with guns pointed at prisoners as they board
       and exit a boxcar). Conditions for prisoners were
       abysmal, with no heat, food, or sanitation.

        While the Nazi documents and Dr. Sydnor's
       testimony paint a horrifyingly clear picture of life in the
       concentration camps, the stories contained in the
       affidavits of four camp survivors offer vivid living
       testimony of what a nightmare a prisoner's daily life
       was in the camps involved in this case.

       *   *   *

        Dr. Sydnor specifically noted that these inhuman
       conditions, of which we have provided only a flavor,
       existed at the camps at Gross Rosen, Sachsenhausen,
       and Warsaw from 1943 through 1945, during
       Szehinskyj's alleged period of Nazi service. Conditions
       at Mauthausen and Flossenburg were no better.

Szehinskyj, 104 F. Supp. 2d at 485-488.

It is clear that personal participation in atrocities is not
required for one to have assisted in persecution-- being an
armed concentration camp guard is sufficient. Fedorenko,
449 U.S. at 512; Breyer, 41 F.3d at 890; United States v.
Kairys, 782 F.2d 1374, 1377 n.3 (7th Cir. 1986). Indeed,
we have found assistance in persecution by an editor who
was "armed" only with a newspaper which spewed anti-
Semitic bile. In so doing, we recalled the maxim that "the
pen is at least as mighty, if not mightier, than the sword."
Koreh, 597 F.3d at 439.

The District Court found that, given the "horrific" camp
regulations and practices, it was "unlikely" that Szehinskyj
never physically harmed an inmate. Szehinskyj , 104 F.
Supp. 2d at 499. This is the only reasonable conclusion to
be drawn from the record. Even if he did not, the Court
continued, the concentration camp guards all carried guns
and were under strict orders to use them, and Szehinskyj
was an armed Totenkopf concentration camp guard."By
definition" -- and, we add, by "clear, unequivocal, and
convincing" evidence -- "the Totenkopf assisted in [the]
persecution of Jews and others considered racially inferior

                               12
or `defective' " -- this was Szehinskyj's"very role at the
camp[s]." Id. Szehinskyj was, thus, ineligible for a visa
under the DPA and could not have been lawfully
naturalized in 1958. The evidence clearly supported that
conclusion.

II.

The District Court's order revoking Szehinskyj's
citizenship and ordering him to surrender his certificate of
naturalization will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
