Full opinion text
ROETTGER, District Judge. The Government seeks to strip defendant of his American citizenship granted in 1970. Basically the Government charges that defendant lied on his application for a visa in 1949, particularly in not disclosing he served as a guard at the death camp at Treblinka during World War II. Further, the Government charges he participated in atrocities at Treblinka, precluding him from having the good moral character necessary to become an American citizen. Defendant, originally a Ukrainian, contends that he was not a guard voluntarily but he was forced to be one as a prisoner of war of Nazi Germany and denies committing any atrocities at Treblinka or elsewhere. DEFENDANT’S CONDUCT IN AMERICA Defendant Fedorenko came to America in 1949 and has been a respectable resident ever since. Following his arrival he worked on a farm in Connecticut. After a year he worked in a factory in Waterbury and then went to work for Scovill, a manufacturer of brass and copper products; he worked there, usually as a foundry worker, for 20 years until his retirement. He was emphatically described by fellow-workers at Scovill as an “excellent” worker who did not speak unkindly of anyone; that he was so good a worker he had no problems and was a “real gentleman” with no apparent prejudices of any type. The union representative at Scovill testified strongly as to his reliability and performance — a man who never put in a grievance and never had one filed against him. His foreman described defendant as a man who did his job well and cheerfully — a very conscientious and a very good worker. The court accepts these appraisals as accurately reflecting defendant’s work-life and personal life for 29 years. The defendant married while in America but his American wife has died. For background: until the early 1960's defendant believed his wife and two children in Russia had been killed during World War II. He had been so advised at a prisoner of war camp by two brothers from his home town. He has since discovered his wife and sons are alive and living in Crimea; he has visited them in the 1970’s. His only schooling was in his native Ukraine for three years from 1915 to 1918, during the defeat and collapse of Czarist Russia. Defendant has retired on a social security pension and a pension from his 20 years labor at Scovill. He doesn’t own a car; he doesn’t own a house; he owns no real estate except a cemetery lot, and he has a burial insurance policy. He has accumulated a life savings of $5,000 but owes his attorney an unknown fee for a trial which lasted 14 days. He has never been arrested in 29 years — not even for a traffic offense. His one failure as a resident and citizen in 29 years: he received one parking ticket. Feodor Fedorenko has been a hard-working and responsible American citizen. VENUE AND PRELIMINARY MATTERS This suit was instituted in August, 1977 while defendant was a resident in Miami Beach, pursuant to the requirement of 8 U.S.C. § 1451 (a) that suit be filed “in the district in which defendant resides.” Defendant challenged venue on the grounds that his presence in Miami Beach, where he was then living, was only temporary and that his permanent residence was in Waterbury, Connecticut. The court denied defendant’s motion to transfer, holding that venue properly lay in the Southern District of Florida. However, in an effort to alleviate defendant’s claim of financial hardship in producing witnesses in Florida the court — through the gracious hospitality of the United States District Court for the District of Connecticut — held a portion of the trial in Waterbury. Although the hearing in Connecticut was originally scheduled to follow presentation of the Government’s case in Fort Lauderdale in April, the Government’s case was postponed until late May and June because of a recent appearance by Florida defense counsel. Consequently, part of defendant’s case was heard out of turn prior to the presentation of the Government’s case in Fort Lauderdale without objection by either side. Two government witnesses also testified in Waterbury without objection, as a convenience to the witnesses. A second problem developed prior to trial with regard to the Government’s obtaining testimony of foreign witnesses. Early in November 1977, the court learned of the Government’s intention to take depositions out of the country. Because it was concerned that the Government might intend to produce only deposition testimony of foreign witnesses, the court sua sponte entered an order prohibiting the use of deposition testimony at trial in order to enable the court to observe the witnesses’ faces, body language and reactions in the courtroom, particularly in the presence of defendant and also his reactions to their testimony. The court felt that in-court testimony would be particularly critical in view of possible identification problems and the passage of 35 years since the events complained of at Treblinka. In addition, depositions taken by the Government in Israel almost surely would not have provided cross-examination. In compliance with the court’s order the Government was compelled to bring its witnesses from Israel to Fort Lauderdale. CHARGES AND DEFENSES Title 8 U.S.C. § 1451 (a) provides that for good cause shown the United States Attorney shall institute proceedings to set aside an order admitting a person to citizenship and cancel the certificate of naturalization on the grounds that such order and certificate were “illegally procured or were procured by concealment of a material fact or by willful misrepresentation”. In Count 1 the Government charges that defendant gave false information in his application for Immigration Visa and Alien Registration, and that his citizenship was therefore “illegally procured” because he was never lawfully admitted to the United States. Counts 2 and 3 allege that defendant was not admissible to the United States under the Displaced Persons Act of 1948, Pub.L. No. 80-774, 62 Stat. 1009, nor was he otherwise admissible under thjs Immigrations Laws and Orders and Regulations issued thereunder because he participated in the commission of crimes and atrocities against civilians in the Treblinka concentration camp during 1942-43. Count 4 alleges that defendant wilfully failed to disclose the commission of crimes at Treblinka in response to question # 6 on his Application to File Petition for Naturalization (Form N-400). In Count 5 the Government charges that defendant wilfully failed to disclose his service as an armed guard for the Germans in response to question #7 on the N-400 form. Finally, Counts 6 and 7 allege that defendant lacked the good moral character required to become a citizen by virtue of his commission of atrocities at Treblinka and the giving of false statements with request to questions #6 and #7 as alleged in Counts 4 and 5. DEFENSES Defendant Fedorenko in his answer raised the special defenses of waiver and estoppel, improper venue, and the statute of limitations. Primarily defendant contended that the long passage of time between the incidents at issue and the institution of this law suit served to bar the Government from proceeding. The defense of improper venue was based on the allegation that defendant did not reside in Florida at the commencement of this l^w suit. At trial, defendant virtually abandoned these special defenses; instead he denied generally having committed atrocities or crimes against humanity while a prison guard at Treblinka. Also, defendant sought to establish that his service as a guard at Treblinka and elsewhere was performed involuntarily while he was himself a prisoner of war. BURDEN OF PROOF Because of the importance of a loss of citizenship to the individual, a denaturalization proceeding is a most sensitive trial. Thus, the burden of proof in denaturalization cases has been clearly stated by the Supreme Court in Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 955, 957, 2 L.Ed.2d 1048 (1958), as follows: Where citizenship is at stake the Government carries the heavy burden of proving its case by “ ‘clear, unequivocal, and convincing’ evidence which does not leave ‘the issue in doubt’ * * Schneiderman v. United States, 320 U.S. 118,158, 63 S.Ct. 1333,1352, 87 L.Ed. 1796. “Especially is this so when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness.” Id., 320 U.S. at pages 122-123, 63 S.Ct. at page 1335. As the Supreme Court has stated: [Denaturalization cases] are extremely serious problems. They involve not only fundamental principles of our political system designed for the protection of minorities and majorities alike. They also involve tremendously high stakes for the individual. For denaturalization, like deportation, may result in the loss “of all that makes life worth living.” (citation omitted) Knauer v. United States, 328 U.S. 654, 659, 66 S.Ct. 1304, 1307, 90 L.Ed. 1500 (1947). PUBLISHED POLICY CONCERNING DENATURALIZATION CASES A failure to follow the published policy of the Department of Justice does not bar the bringing of the suit. United States v. Nelligan, 573 F.2d 251 (5th Cir. 1978). However, it is interesting to observe the policy of the Department of Justice with respect to bringing denaturalization cases: In the opinion of the department, as a general rule, a good cause is not shown for the institution of proceedings to cancel certificates of naturalization alleged to have been fraudulently or illegally procured unless some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country. The court cannot help but question the application of this policy towards defendant in view of his 29 years of lawful conduct — except for one parking ticket — and hard work here in America. The court observed at the trial and iterates it here: never in six years on the bench has the court seen the Government indulge in such expenses as daily copy of the reporter’s transcript of testimony or having four lawyers at the Government’s counsel table. Such expenditures of the taxpayers’ treasure and talent have not occurred in this court’s previous cases such as the prosecution of an alleged Mafia don, a continuing criminal enterprise case, the only dangerous special offender indictment in this district for the reputed salaried slayer for a narcotics importation gang which was responsible for at least 26 murders in the South Florida area according to the testimony in the District Court in Miami, as well as many other serious prosecutions. Clearly the expenditure of the resources of the Executive Branch lies within the discretion of that branch of the Government. However, the court must venture that in view of the similarity in the burden of proof between criminal cases and denaturalization cases, and in view of what is at stake for the naturalized American citizen, the defendant in a denaturalization case ought to have the same resources that are provided a defendant in a criminal case under the Criminal Justice Act; in short the naturalized citizen — provided the defendant’s financial condition warrants it— should receive the benefit of court-appointed counsel and other experts at the Government’s expense. One more observation needs to be made before moving to a consideration of the evidence. If ever a case supported the Judicial Conference ruling barring cameras from the courtroom, this case does. From the beginning it was like a Hollywood spectacular and polarized the residents of South Florida. As an example of some of the emotional intensity surrounding the trial, the Jewish Defense League ran ads in newspapers offering chartered buses from Miami Beach to Fort Lauderdale on opening day. A demonstration outside the courtroom ensued with a chant: “Who do we want? Fedorenko. How do we want him? Dead.” After the court was interrupted twice and the first three warnings were ignored by the demonstrators, a leader who was using an amplified bullhorn was arrested. A counter-demonstrator appeared two days later with an ensuing confrontation. If the trial had been brought into South Florida homes by television, the incidence of such confrontations likely would have increased. EVIDENCE AS TO DEFENDANT’S CONDUCT, 1941-1949 PRE-TREBLINKA Defendant was mobilized on June 23, 1941, almost immediately after the invasion of the Soviet Union by Nazi Germany. He was a truck driver and the truck he drove was also mobilized. He had no previous military training and in the next two to three weeks his group was encircled twice by the German Army. He escaped the first time but was captured three days later by the Germans with about one-third of his fellow Russian soldiers. The Germans transported several truckloads of prisoners to Zytomir, a former Soviet training camp, and defendant described the conditions as very bad and with little water or food; the camp housed about 50,-000 to 100,000 prisoners, with no barracks available for them. After two to three weeks he was then transferred to Rovno for about 10 days where there were fewer people than at Zytomir; the camp was surrounded by electrified barbed wire. Next he was transferred to Chelm, Poland, a camp also ringed by barbed wire rolls. The prisoners who tried to escape were trapped in the barbed wire and their plight was quite visible to fellow-prisoners in the morning. While at Chelm he worked in the kitchen, dug holes and built barracks. Defendant estimated the population at Chelm at about 80,000 prisoners. Defendant described the conditions at Chelm as so bad that if you became ill you rarely recovered. He also indicated that food was at a minimum and that approximately 40,000 prisoners of war died over the winter of 1941-1942. Defendant testified that he supplemented his food intake by eating grass and roots. Defendant testified he would receive beatings from German soldiers when he didn’t understand and comply with orders. On two occasions he was hit with a rifle butt, once when he went to pick up a beet and also when he picked up an apple a Polish citizen had thrown. Defendant testified the conditions at Chelm were so bad that he would have died if he had not been transferred to Travnicki. One day at Chelm the Germans assembled the Russian prisoners and walked down the line selecting 200 to 300 who were sent on to Travnicki. Defendant vehemently denies volunteering and described the selection process: “they (the Germans) didn’t ask; if you didn’t go they’d shoot you down like a dog.” The court specifically finds that the defendant did not volunteer for transfer to Travnicki. At Travnicki most of the guards were Volksdeutschers (ethnic Germans who resided outside Germany in the areas occupied by the German Army). Defendant is not a Volksdeutscher but Ukrainian. He was doing carpentry work at Travnicki and testified he had to work or he might be executed. He received several beatings from the guards. Just as defendant was a hard-worker in America, he clearly did not shirk work responsibility at Travnicki — undoubtedly why the Germans selected him. He indicated that sometimes a loaf of bread was given for working. In the spring of 1942 the Germans gave black uniforms to all of the prisoners. Volksdeutschers also wore black uniforms but theirs were well-tailored and of better material. After the barracks had been constructed at Travnicki the Germans gave instruction in the firing of rifles, such as field-stripping and in marching. They were not allowed to fire a rifle or to keep one. They also received some privileges such as being able to walk down the road outside of the camp. Defendant testified that he went to a Polish home where he gave them soap and they fed him. He added that if a prisoner did not come back he would be executed (when located). In the spring of 1942 defendant was sent to Lublin where at first the prisoners guarded their own camp and then were sent to the Jewish ghetto; again the Germans did not ask for volunteers but demanded them to go. At Lublin the Soviet prisoners guarded houses, furniture — whatever was left; they were issued rifles which were not fired. The Soviet prisoners were converted from workers to guards at Lublin. From Lublin defendant was sent to Warsaw along with about 80 to 100 others and the Soviet prisoners were asked if they wanted to go but none volunteered: there was “no choice.” They were transported with a few Germans and two or three zugwachmaenner (spelled Zugwachmanner in German). Defendant was transported to Treblinka as a prisoner-guard in approximately September 1942. TREBLINKA The Government called six survivors at Treblinka, four of whom served as working prisoners at Camp 1 and two in what was described as Camp 2 (where the gas chambers were located.) Each of the Government witnesses testified as to general or specific instances of murder or brutality on the part of defendant. Defendant admits he was a guard at Treblinka; however, he claims that he was a guard involuntarily and denied emphatically that he committed any atrocities or any of the specific acts of brutality described by the witnesses. It is important to bear in mind that no documentary evidence whatsoever was introduced by the Government or defendant as to the duties or conduct of defendant at Treblinka. Therefore the issue turns entirely on the testimony and credibility of the witnesses. The first witness, Eugen Turowski, testified that he had seen defendant at the lazaret many times shooting prisoners. He testified that defendant carried a leather whip with metal balls on it and frequently saw him beating arriving prisoners. He also claimed defendant shot prisoners who, after escaping and then being recaptured, were hung upside down as an example to the other prisoners. Turowski described defendant in 1942 as having specific eyes that • were “slightly Chinese looking” and that defendant was a non-commissioned officer who spoke “bad German” and was called by name by the SS personnel. Turowski claimed there were no Volksdeutschers at Treblinka but that Biedermann was the leader of the “Ukrainian” guards and that Rohoza was not a leader of an Ukrainian unit. The second witness, Schalom Kohn, testified that defendant beat him with his whip on two occasions and he saw defendant beat other Jewish prisoners at the arrival of the transport. He also testified he saw defendant beating prisoners at the lazaret. Kohn described defendant as “mean-looking”, and when he walked around the courtroom there was the same “mean-looking” face; that was his explanation for being able to identify defendant in the courtroom. Josef Czarny, clearly the least credible of the survivor witnesses, testified that at the arrival of every transport he saw defendant beating people as they emerged from the cars, and that he saw defendant on one occasion shoot a prisoner at the lazaret. Czarny claimed to have seen defendant at every one of the twice-daily assemblies, and that there were no other Ukrainians at the daily assemblies. Mr. Gustaw Boraks was the last of the survivor witnesses who worked in Camp 1, the receiving area where the lazaret was located. He was the most candid and credible of the survivor witnesses. Boraks testified he would go to the arrival of the transport two or three times a week to look for friends or relatives and saw defendant there although he had only a few minutes to stay in that area. He never saw defendant hitting prisoners or had any personal confrontations with him. From his position in the barber shop nearest the door at the end of the barracks where the women had to undress, he heard a shot one day. Boraks rushed to the door and saw defendant, the SS and other Soviet guards and a woman who had been shot in the shoulder. He did not see Fedorenko shoot her but testified that defendant had a revolver in his hand and was closer to the woman than anyone else. He subsequently cut the woman’s hair before she was sent to the gas chamber; she told Boraks that she had been shot because she did not want to undress. He didn’t know who shot the woman and the woman said she didn’t know who it was either. He further testified that defendant did nothing wrong in the barracks with the women who were undressing. He testified he had seen defendant chasing people on the pathway to Camp 2 a few times and he knew it was defendant because he wore a black uniform while the others wore khaki. He testified that Fedorenko was some type of leader of the Ukrainian guards. Two witnesses testified about working in Camp 2, where the gas chambers were located. The first, Sonja Lewkowicz, testified that defendant had a long and terrifying face and that she saw him in Camp 2 many times. She testified that on one occasion she saw him from a distance of 20 meters shoot a Jewish prisoner in Camp 2, but when she realized what was happening quickly turned her head. She never remembers defendant being at the twice-daily assemblies and never remembers seeing him beat or mistreat any prisoners other than the shooting incident. The last of the survivor witnesses, Pinchas Epstein, was a witness with considerable intensity showing on his face; he testified he saw defendant beat Jewish prisoners and that on one occasion defendant shot and killed a friend of his named Laibel from his home town. On direct examination he described the incident as having occurred when Laibel’s partner was returning alone from dumping a corpse into one of the pits in Camp 2. On cross-examination Epstein stated he was Laibel’s stretcher-bearer partner on the day Laibel was shot. That answer was completely inconsistent with his testimony on direct; upon his realization of that he began to squirm and fidget in the witness stand. In addition, Epstein did not mention to investigator Martin Kolar the matter of the shooting of his hometown friend or of any of the beating incidents attributed by him to defendant despite a three hour conversation with Kolar. Epstein acknowledged that Kolar told him at the interview that the purpose of the interview was for testimony against Fedorenko. Defendant’s testimony was basically a denial of all charges. He contended he was a wachmann — a sentry or guard — not a non-commissioned officer. He testified that he was never in the barracks with the women undressed; he was only at the arrival of the transport on one or two occasions and did not know what was going on at the camp. At least the latter is not credible to this court, neither in content nor from the manner in which the testimony was given. Defendant was far from convincing in his manner of speaking and appearance when he testified about unawareness of what was going on at Treblinka. (That testimony was in distinct contrast to his usual earnest testimony where he often volunteered extra items in his answers.) He testified he patrolled the fence as a guard and served in the tower. He testified he only served as a sentry outside of Camp 2 one day and saw what was going on, and reported to his zugwachmann — whom he identified as Rohoza — that he couldn’t eat or sleep and didn’t want to go back to that post again. He denied participating at all in Camp 2 or ever being near the gas chambers. The phrase most constantly used throughout the trial was zugwachmann. The survivors were all convinced and all testified that zugwachmaenner were leaders among the Ukrainian or Soviet guards and that defendant was one. The word does not translate easily and despite the request of the court for any source of material providing a translation, none was offered. The survivor witnesses claimed that defendant was a zugwachmann because he had one or two stripes on his shoulder. Defendant explained the stripes away as being good conduct awards because he didn’t walk around dirty or get drunk. The Government offered no expert testimony on the rank-structure and testimony of their expert witness, Mr. Kempton Jenkins, didn’t quite touch on the subject. His testimony about the camps was consistently inaccurate. Defendant’s description of who was a zugwachmann at least fits a logical pattern. He characterized zugwachmaenner as being Volksdeutschers because the Volksdeutschers’, who were of ethnic German background, ability to speak both German and Russian or Ukrainian enabled the SS to use the Volksdeutschers as zugwachmaenner to transmit orders. From the evidence the chain of command in a descending order went as follows: SS (Schutzstaffeln); Volksdeutschers as zugwachmaenner; Soviet, basically Ukrainian, guards; working prisoners with a Nazi-imposed hierarchy of a head kapo, kapos, vorarbeiters (foremen), and regular working prisoners. There is nothing in the evidence to suggest that Fedorenko is a Volksdeutscher and there is nothing in the record from his background or education to raise the slightest suspicion that he could have learned more than a few words of German. Fedorenko’s testimony that only Volksdeutschers qualified as zugwachmaenner is supported by the berthing and messing arrangements at Treblinka. The SS didn't let the Volksdeutschers sleep or eat in the same barracks with them. Instead, the Volksdeutschers were permitted to sleep in a separate barracks — apparently giving them some privileges because of their German background — but were required to eat with the Soviet prisoner-guards, facilitating supervision of the guards by the zugwachmaenner. The court specifically finds defendant was not a Volksdeutscher and not a zugwachmann. PHOTO SPREADS In view of defendant’s assertion that he was only a perimeter guard who didn’t commit any atrocities at Treblinka, the issue of identification is the heart of this case. The witnesses’ identifications of defendant as the perpetrator of the crimes described were based on recognition of his photo and his person in the courtroom. In view of the passage of 35 years from the date of the incidents, the court must scrutinize these identifications and the circumstances under which they were made with great care. The subject of pretrial and in-court identification and their reliability have received thorough attention by the courts in criminal cases. This attention has been focused on the dangers that pretrial identification may taint or make unreliable subsequent in-court identification. Thus to preserve the integrity and fairness of pretrial identification procedures, courts have imposed on their use certain requirements of due process. See, e. g., Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Although the instant case is a civil case, the concerns of the Supreme Court regarding the reliability and probative value of identifications made in criminal cases are no less applicable here. Thus the court turns to those cases to determine what weight to give the testimony in this case in view of the circumstances surrounding the witnesses’ identifications. The problems inherent in the use of photo spreads as a pretrial identification procedure were pointed out in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In the usual case, where a witness has not had an opportunity to get a good look at a criminal under favorable conditions, there is a danger of misidentification of a photograph, even under the best of circumstances. This danger is greatly increased when the photograph is placed in a photo spread in such a manner that the witnesses’ attention is drawn to it because of its size, color, placement or other distinguishing mark. Thus while the Court recognized that use of photo spreads was necessary in police work, it held that a conviction based on an in-court identification following a pretrial identification would not stand if the photo spread was so unduly suggestive as to foster “a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971. Cases following Simmons have therefore followed a two-step formula in determining the admissibility of an in-court identification based on an out-of-court photo spread: “ . . . (1) whether the procedures followed were ‘impermissibly suggestive’, and then (2) whether, being so, they created ‘a substantial risk of misidentification’ ”. United States v. Henderson, 489 F.2d 802 (5th Cir. 1973). With a time interval of 35 years, rather than days or a few weeks as in the typical criminal case, the threshold of what suggestibility becomes impermissible must necessarily be lowered. The court cannot find a decision considering the question with a time lag of many years’ duration. The Supreme Court did observe in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) that a lapse of seven months between the event and the confrontation “ . . . would be a seriously negative factor in most cases.” Id. at 201, 93 S.Ct. at 383. In the instant case where there is a gap of almost 35 years between the event and the witnesses’ ability to observe the suggestive photo spreads, the photo spread should have been as clinically impartial as humanly possible to construct. Prior to giving testimony in this trial, each survivor-witness was interviewed in Israel by the Israeli police concerning events at Treblinka. Each was shown a group of photographs and asked if they recognized anyone. The photo spread (Government’s Exhibit 17) was prepared by Maria Radwiker, an Israeli attorney who worked as an inspector investigating Nazi crimes from January 1965 until her recent retirement in January of this year. She showed only the first three pages of the photo spread to witnesses Turowski and Czarny and all six pages to Kohn. Mr. Boraks was shown only page 3 of the exhibit, Ms. Radwiker’s successor, Martin Kolar, showed witness Lewkowicz pages 2 and 3 of the exhibit and only page 3 after a three hour interview to witness Epstein. Only two of the photographs of the photo spread are claimed by Ms. Radwiker to be guards who were at Treblinka — # 16 and # 17. Page 3, which was shown by itself to several of the witnesses, contains 8 photographs, numbers 10 thru 17. Not only is each of the first six smaller than either # 16 or # 17 but each is also blurred, shadowed or otherwise indistinct. By contrast, photographs # 16 and # 17 are both much larger than the other photographs and are the only clear ones. Not only is defendant’s photograph larger than the others but it is also unnecessarily so: along each side is a superfluous black border approximately one-half inch in width. At the very minimum, it should have been trimmed to reduce the size of the picture. A review of the first two pages reveals more blurred or otherwise indistinct photographs. The only one with any clarity is # 9, and it is smaller and less clear than either # 16 or # 17. All six of these witnesses escaped from Treblinka during the uprising on August 2, 1943. Several of the witnesses had trouble identifying defendant’s photograph in the sense that it took one to five minutes to do so. For example, Boraks took one to two minutes to identify photograph # 17 although he had looked at the same photo spread in an interview earlier that same day where the investigators were investigating # 16; witness Epstein looked at the picture four to five minutes after a three-hour interview and identified the person as a zugwachmann but couldn’t remember his name. Turowski testified that he immediately recognized the person in picture # 16 (not Fedorenko). Ms. Radwiker indicated to him that # 17 was Fedorenko and asked if he recognized Fedorenko; Turowski testified that after awhile he came to the conclusion he recognized him. The Government only asked the first three of the witnesses to identify defendant in the courtroom, a subject which will be discussed in detail subsequently. Kolar testified that in Israel the showing of three photographs is sufficient and Ms. Radwiker defended her manner of presentation of the photo spread as “my method.” Considering all circumstances surrounding the photo identifications, it seems clear that the makeup of the photo spread in this case is impermissibly suggestive. There was no reason at all for the Israeli investigators to set up the photo spread in the suggestive manner in which it was done. Perhaps the explanation given by Mr. Kolar that only three photographs are required in Israel provides the answer to why it was done in this fashion. However, the photo spread simply does not pass muster under American law. The court must conclude not only was the photo spread impermissibly suggestive but it also led to a substantial act of misidentificatioh for the three witnesses who attempted courtroom identification. It also tainted testimonial identification of defendant, critical because of the serious question whether the survivor-witnesses were describing defendant or another Russian at Treblinka. COURTROOM IDENTIFICATION' OF DEFENDANT Turowski, the first-survivor witness, was asked to identify defendant in the courtroom on direct examination. He stood up in the witness stand and looked around the courtroom for forty seconds. Then Government counsel asked if the witness could come down from the witness stand to make an identification, if possible. The witness stepped down from the stand and took only one minute to make an identification of a middle-aged spectator sitting in the last row of the courtroom. Apparently sensing from the crowd reaction he had blundered, the witness backed away from the gentleman he had identified, then moved around the courtroom and in exactly another minute identified defendant. The courtroom is square, approximately 40 feet to a side. Defendant sat approximately 22 feet from the witness stand, with his lawyer and associate, ages 30 and 26 respectively and translator, under 30. At the Government’s counsel table sat four lawyers, whose ages ranged from 31 to 36. The second witness Kohn never once looked at the spectators’ section when asked to identify defendant in the courtroom. At this point the court became quite suspicious that Federal Evidence Rule 615 excluding witnesses, invoked by defendant at the beginning of the trial, was being violated. The court had given the instruction that witnesses were not to discuss the case among themselves. Kohn scanned only the counsel tables and easily identified defendant — not exactly a difficult task in view of defendant’s age being twice that of any of the other seven persons at the counsel tables. Czarny’s performance at the witness stand was almost a carbon copy of witness Kohn in the identification of defendant, with the exception that Czarny was more theatrical. Mr. Boraks was not asked to identify defendant and responded to questions by talking directly to his translator. His translator was located on the side opposite from defendant’s location. Exactly eighteen minutes after' he took the witness stand Boraks quickly turned more than 90 degrees to look directly at the position where defendant was sitting and without ever scanning the courtroom he quickly looked back to the interpreter. The court was convinced the witnesses were discussing the trial among themselves, at least; and at worst someone was coaching them. Defense counsel had made the motion to sequester witnesses at the beginning of the trial but had not objected to Ms. Radwiker remaining in the courtroom and sitting directly behind Government’s counsel table after she had finished her testimony. Defense counsel now insisted the rule be enforced and that she be excluded from the courtroom; the court enforced the motion and excluded Ms. Radwiker from the courtroom for the remainder of the trial. The in-court identification of defendant by the three witnesses would have been rather weak under any circumstances because of the obvious location of defendant (obvious except to Mr. Turowski) and the great difference between his age and that of the other seven persons at counsel tables plus defendant was the only one with a translator. However, because of the obvious discussion of the case by the witnesses in violation of the rule, the court rejects the in-court identification in toto. IDENTIFICATION OF DEFENDANT In addition to the grave identification deficiencies of the Government’s case, there are many other grave flaws in the identification testimony of the Government’s witnesses as well as the credibility problems. Perhaps it is understandable that there are flaws in identification evidence after 35 years. That is part of the difficulty the Government faced in trying to meet its burden of proof. Among the more obvious identification flaws: Turowski described defendant as “slightly Chinese-looking”. However, defendant Fedorenko simply does not look Oriental. He doesn’t now and he didn’t in the picture attached to his visa application. Kohn described defendant as “mean-looking”, and when he walked around the courtroom there was the same “mean-looking” face. That was his explanation for being able to identify defendant in the courtroom. Czarny testified that he could identify Fedorenko when he walked around the courtroom because there was the “same mean-looking face”. After the two days of testimony in Connecticut before beginning the Fort Lauderdale portion of the trial, and also at the close of all the testimony, the court concluded that defendant had a kind-looking, not hard-looking face, somewhat courtly in appearance. In no way can this court conclude he has a mean-looking face at this time. Czarny also emphatically identified defendant’s exhibit # 3 as Fedorenko and announced he could never make a mistake. Of course the photograph was not of Fedorenko. Boraks identified Fedorenko as being the only Soviet guard who wore black, completely contrary to the testimony of all the other witnesses about the uniforms worn by the Soviet guards. Witness Lewkowicz quickly looked away after the only incident when she described the atrocity allegedly committed by Fedorenko. Epstein talked for over three hours in the interview with Israeli investigator Kolar but never mentioned anything about Fedorenko. He had trouble in identifying Fedorenko even from the suggestive photo spread. In addition to the inability to remember the alleged shooting of his hometown friend, whom he claimed was his stretcher-bearer partner, he was squirming when he realized he had blundered into an indefensibly-inconsistent description of the event. His testimony against Fedorenko simply lacks credibility. Fedorenko’s cross-examination perhaps supplied the missing piece in the puzzle when the Government’s counsel persisted in asking defendant to describe his zugwachmann Rohoza. Fedorenko testified that Rohoza was “just like me” in height and his hair color was “just like mine.” The persistent questioning about Rohoza’s appearance elicited this response: “ . . . like my face, almost like my brother.” And to a further question, that the resemblance between the two was such they looked like brothers. The court watched Fedorenko even more closely than usual when that line of questioning began and the court is firmly convinced that the answers were given guilelessly. From observation of his testimony and demeanor the court concludes defendant is unsophisticated — and perhaps feeling some effects of being in his eighth decade (e. g., see p. 1419 of transcript). The court doubts defendant is aware at this time of the exculpatory nature of the answers. At the close of cross-examination the court asked questions of defendant for 50 minutes. Although defendant denied committing the atrocities during direct-examination, the court wanted the key answer from defendant face-to-face without the necessity of any translation. Confident that its location in the questioning would not favor or disfavor defendant and confident that defendant understood the question completely, the court instructed the translator to ask the question whether defendant had done any of the shooting and beating of prisoners as testified to in the courtroom and instructed defendant to “Please look at me, tell me either nyet or da, did you?” From about 10 feet away with unobstructed eye contact defendant’s answer was sincere and strong: Nyet. The court considered the answer credible. Even without defendant’s testimony, the Government’s evidence on the claimed commission of atrocities by Fedorenko fell short of meeting the “clear, convincing and unequivocal” burden of proof. In fact, the court should have granted a motion for involuntary dismissal on those particular counts at the close of the Government’s case. With defendant’s testimony the Government’s evidence fell woefully short of meeting the burden. The evidence left the court with suspicions about whether defendant participated in atrocities at Treblinka but they were only suspicions. EXONERATION TESTIMONY BY RUSSIAN WITNESSES At the beginning of the Fort Lauderdale proceedings, defendant filed a motion for continuance claiming that there were six witnesses in Russia who could give exculpatory testimony. Defense counsel asserted that defendant had just brought these matters to counsel’s attention because of his difficulty in communicating with defendant about the nature of the charges. Defendant has been back to the Soviet Union three times in the 1970’s: once in 1972 “as a tourist”; again in 1973 for approximately three months and in 1975 for a period of 50 weeks. In late September or early October of 1973, several weeks before his departure from the Soviet Union in November, defendant asserts the Soviet Union investigated him at some length concerning his status in World War II and activities at Treblinka. A Russian Colonel asked questions of him on three different days, for a period of six hours on one occasion. The only other witness he saw was a witness named Kuzmienko who was only interrogated for five or ten minutes. He said the Russians came for him in a car and took him to the city of Siemferopol in the Crimea. He claimed that the Russian investigation cleared him of any wrongdoing and that they had taken statements of the six persons, Nikolai Korotkey, Wasyl Wasylenko, Michael Dudnik, Petro Schelno, Ivan Schevchenko and Nikolai Rohoza, whose testimony he wanted to obtain for this trial. Defendant sought a continuance in order to obtain the testimony or evidence of these six persons, five of them guards at Treblinka as well as Rohoza, defendant’s zugwachmann. The court urged both sides to begin immediately to obtain more information about the potential witnesses and the procedures available and necessary to obtain the evidence from them. At a post-recess hearing one evening after two weeks of trial and the Government not having rested its case, the court commented during colloquy on scheduling and the motion for continuance that it felt it was necessary in the interests of fair trial to give defendant an opportunity to present the testimony of these witnesses to corroborate his denial or claim of involuntariness. The court emphasized that it might be able to decide the case without the continuance but also recognized that, because of the uncertainty about obtaining testimony from the Russian witnesses, it might take years to obtain the testimony and decide the case. If the Soviet Government conducted an inquiry in 1973 and cleared defendant of any complicity in war crimes at Treblinka or of collaborating with the Nazis, such a proceeding would be interesting to muse about but it would not be admissible per se in an American court. The fact such an inquiry was held is indeed curious, particularly because defendant testified that amnesty was given by the Soviet Union in 1955. Edict on Amnesty for the Soviet Citizens Who Collaborated with the Occupying Powers During the Great Patriotic War 1941-1945, Vedomosti Verkhovnogo Soveta SSSR [official law gazette of the USSR] No. 17, at 345 (1955). Defendant volunteered this information. The court has concluded that it is not necessary to obtain the testimony of the Russian witnesses in order to decide the case. POST-TREBLINKA Following the uprising at Treblinka, Fedorenko and other Soviet prisoner-guards were transported by the SS back to Travnicki in different groups. One of the groups killed a German officer and fled after no other prisoner-guards would join them. After a few days in Travnicki defendant was transported to Danzig with about 80 or so other prisoners, including Russians, Ukrainians, Byelo-Russians and Poles. Defendant served there as a guard for approximately eight months; the camp at Danzig was not a death camp. Defendant was then transferred to Poelitz, a prisoner-of-war camp where many prisoners died from starvation. At Poelitz he was used as a guard but never left the camp; defendant claimed the Germans didn’t trust him and the others who were transferred to Poelitz, probably because the Russian army was getting closer. After five or six months at Poelitz defendant was transferred to Hamburg where he was assigned to guard produce and warehouses. After a short period of time the British occupied Hamburg; defendant worked for the British from 1945 to 1949. In Hamburg defendant had a work uniform and an after-hours uniform. He described better conditions under the British: he received good food and 100 marks per month. In 1945 the prisoners of the British were required to register and defendant listed his birthplace as Sarny, Poland because every Russian citizen had to return to the Soviet Union. He selected the town of Sarny because some friends suggested it. Defendant used his correct name and birth date on the registration, visa applications and relevant documents for naturalization. The testimony of a fellow-inmate of the camp in Hamburg indicates there were about 1,000 persons there; all were Polish except 200 to 300 Russians, mostly Ukrainian, and the camp was supervised by Polish officers. When Russian investigators came seeking Russians for repatriation, Polish officers protected the Ukrainians and Soviet residents by advising the Russians that all residents of the camp were Polish. Defendant feared repatriation as did the other Soviet citizens at the camp. One witness testified that thousands committed suicide rather than be repatriated to the Soviet Union. While residing at the displaced persons camp at Osdorf near Hamburg, defendant applied for an immigration visa giving his correct name and date of birth, listing his place of birth as Sarny, Poland. In his history, considered by the Displaced Persons Commission, the same information was given together with some additional information: that he was a member of the Greek Orthodox faith and received his education at Sarny consisting of elementary school from 1915 to 1918. In addition he contended he was a farmer at Sarny until March 1942 when he was deported to Germany and employed as a worker at Poelitz. A typist who evidently spoke English but not German mistakenly typed Pelez rather than Poelitz in both places it appears on the Displaced Persons Commission report. Clearly a German location could not be spelled Pelez and the court must presume that the case analyst and reviewing persons on the Displaced Persons Commission and, more importantly, the reviewing Vice-Consul knew Poelitz was the location, particularly because it was identified as being “near Stettin.” Jenkins testified vice-consuls received several months of German language training. Defendant’s application for a visa was executed before the Vice-Consul on October 12, 1949 at the Consular office at Wentorf near Hamburg. He was approved by the Vice-Consul for admission to the United States under the Displaced Persons Act and arrived in America on November 5th, 1949, and went to work on a farm in Litchfield, Connecticut. Unfortunately, and inexplicably, the Government did not find the Vice-Consul who approved defendant’s application. On November 21, 1950 defendant filed a Declaration of Intention listing his birthplace as Sivash in the Ukraine. The same information is provided in his Declaration of Intention filed April 7, 1951. The Government called Kempton Jenkins, a career foreign service officer as an expert witness; he was formerly a Vice-Consul reviewing Displaced Persons cases in south Germany subsequent to the time defendant came to America. Although the witness was a very engaging person, the court found a number of inaccuracies in his testimony and must therefore consider his testimony in the light of all the evidence. Any Vice-Consul had a number of materials presented to him by an applicant for a visa. At that point the applicant had been interviewed by a voluntary sponsoring group (in defendant’s case the Tolstoy Foundation) and by the Displaced Persons Commission. The Vice-Consul had a report from the Displaced Persons Commission as well as one from the Army CIC (CounterIntelligence Corps) which checked any service record with the Axis forces. In addition, a report on conduct from the local German police was furnished together with any report from the Berlin Depository Center which contained a depository of Nazi party documents. If a prisoner indicated he was with a labor force a check was made of the records as to that labor force. In the instant case, defendant did advise them he had been at Poelitz. Jenkins testified that the persons to be excluded under the Displaced Persons Act were ones who participated in or acquiesced in crimes against humanity or against civilians or served voluntarily with Axis military forces. He stressed that the benefit of the doubt was to be given to the applicant and the objective was to make a humanitarian solution. He testified that many applicants were members of the East European Waffen SS (combat) divisions who claimed to be serving involuntarily. The Vice-Consul would have to decide whether to admit the applicant and testified the tendency would be to make a favorable judgment and admit the applicant. He testified that the Displaced Persons Commission and Vice-Consuls recognized that many East Europeans hated the Russians as much as they did the Germans. He also added the fact the Russians might execute the applicant was a reality that was considered. He acknowledged that some visas were granted to members of General' Vlasov’s army (The “Army of the Damned”), although that Army fought side-by-side with the Germans against the Russians and comprised Soviet volunteers. Jenkins testified he knew of no camp guards whose applications were favorably processed but he admitted he only remembered three and his experience was with Dachau which was located in Southern Germany. He assumed the camps east of Germany, such as Treblinka and Sobibor, located to the east of Warsaw, would be more brutal because the German civilian population was less likely to learn of it. He also testified that thousands of Germans who were not Jewish were killed in concentration camps. The survivors’ testimony about Treblinka indicates that only Jewish persons were exterminated there plus a few gypsies. Jenkins’ testimony about the structure of the death camp organization was hardly expert and conflicts consistently with other evidence presented at the trial. For example, he testified that the Ukrainian guards had the same uniforms as the SS with only slightly different insignia. However, the unanimous testimony was the Germans wore their usual gray-green uniforms but the prisoner-guards didn’t. He testified that the camp guards could get leave and get away from the camp and could transfer. The testimony was clear that they could not take leave (and go to Berlin, as Jenkins opined) but could only get a two-to-four-hour pass to visit a small village a couple of miles away. The testimony of defendant refutes the assumption that the camp guards could transfer to other duty. Jenkins also testified that the Germans commandeered all the best houses and the camp guards had excellent living conditions, had movies and were well-fed. There was no evidence about the quality of the meals or about movies in the camp but Soviet prisoner-guards lived in barracks rather than in “the best houses”. Jenkins also would have considered the kapos as excludable because they assisted the Germans. This is totally contrary to the reaction of every witness who survived Treblinka; each of the Israeli witnesses testified the kapos did only what they had to do and the witnesses were quite indignant when asked if they had ever testified against the kapos. The witnesses replied that there was no reason to do so. In addition, Jenkins speculated that the kapos were probably shot in 1945 during a period of retaliation, but the testimony was to the contrary. The Constitution of The International Refugee Organization describes in part II of Annex I “Persons who will not be [considered as displaced persons].” Under the second listing are two classifications: 2. Any other persons 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. It has troubled the court that the word “voluntarily” appears in connection with service with the Axis military forces but is deleted from the phrase in section 2(a). The concern arises because the traditional principles of statutory construction would hold that the deletion of the word “voluntarily” in one subsection while its inclusion in another compels the conclusion that any assistance, whether voluntary or involuntary, in connection with concentration camp treatment of civilian population would be sufficient to bar that person from being entitled to relief under the Displaced Persons Act. The difficulty with that construction is that it would bar every Jewish prisoner who survived Treblinka because each one of them assisted the SS in the operation of the camp. Each did so involuntarily and under the utmost duress. For example, working prisoners led arriving prisoners to the lazaret to be executed; or wore armbands as part of the ruse at the lazaret; or cut the hair of the females to be executed; others played in the orchestra at the gate as part of that ruse, etc. Technically, this is assistance. It is also absurd to deem their conduct as “assistance or acquiescence” inasmuch as it was involuntary— even though the word “voluntarily” was omitted from the definition. The Government listed witnesses who were Treblinka survivors and now reside in America, presumably as U. S. citizens. To interpret “assistance or acquiescence” without requiring it to be done “voluntarily” could imperil their status. The Government’s expert witness, Mr. Jenkins, opined that he would bar kapos from the benefits of the Displaced Persons Act because of their assistance to the SS in supervising the activities of the other Jewish prisoners. Unanimously the survivors of the Treblinka prison camp defended the actions of the kapos. They pointed that the kapos had administered beatings at the command of the SS with just enough strength to avoid getting themselves into trouble with the SS while not being severe enough to injure the prisoner. Here again, if the word “voluntarily” is not read into subsection 2(a) kapos also would be denied admission under the Displaced Persons Act. To construe the definition in that fashion would be to thwart totally the most obviously deserving persons: the prisoners who survived death camps such as Treblinka. WAS FEDORENKO’S GUARD DUTY VOLUNTARY? The court has previously found Fedorenko did not volunteer to go to Travnicki and did not volunteer to be a guard at Lublin or Treblinka. Nor did he volunteer for Warsaw, Danzig, Poelitz or Hamburg. The question still remains whether Fedorenko could have made some feasible choice other than serving as a guard, particularly at Treblinka. The court has already found that defendant could not have transferred to another division. Fedorenko had rights that the typical prisoner of war does not have, for example: carrying a rifle and a pistol, being able to go on liberty for four hours and even being given some small stipend from the Germans. On the other hand, he clearly did not have the right to walk out of the gate, go to a city of his choice, or catch a train to his home or wherever else he wanted to go. Although not a typical prisoner of war, he was clearly not one of the captors. He was in some limbo state of having privileges not usually conferred on a prisoner of war but still in a position where disobedience of any consequence or an attempt to escape would certainly result in death. The privileges given to the Soviet prisoner-guards apparently were to mollify them enough to prevent disciplinary problems and also to prevent their revolting against their captors. The use of liberty for four hours to visit a nearby town seems calculated to keep the prisoner-guards contented while preventing their getting a safe head-start if they decided to escape. Defendant testified that four of them did try and were surrounded by the Germans in a house and apparently executed. Approximately 15 prisoner-guards attempted to escape from Treblinka and defendant was unaware of what happened to them other than the four. One prisoner-guard was executed for disobedience and all the prisoner-guards were compelled to watch. At the time of the uprising on August 2, 1943 defendant and the other prisoner-guards near him fired under orders from the Commandant. However, defendant did not fire at any of the prisoners and the court doubts that he did anything other than shoot over their heads. With the benefit of hindsight seated in a comfortable chair in an air-conditioned office it would be relatively easy to conclude that defendant should have turned his rifle on the SS on the day of the uprising or that he should have attempted to escape once he got to the nearby village. Defendant testified he discussed escape once with a fellow prisoner-guard but nothing further came of it. However, the Code of Conduct for Members of the Armed Forces of the United States Imposing a Duty to Escape (Section III) was not promulgated until Executive Order No. 10631 dated August 17, 1955, after the Korean conflict. Previously with American military forces there had been only an unwritten tradition to escape although apparently a written duty was once published in 1863. No evidence was presented that defendant was under a Soviet duty to escape or that he had been so instructed in the few, presumably disorganized, days between Russian mobilization and his capture. If Fedorenko had refused to carry out orders at Treblinka, there is little doubt from the evidence that his execution would have been swift and sure. It no doubt would have occurred before a formation of other prisoner-guards to serve as an example to them. For a prisoner-guard at Treblinka to have denounced publicly the SS and what they were doing there would indeed have been a dramatic act of decency. It also would have been a dramatic act of self-destruction. As a court of equity, this court cannot impose such a duty upon defendant. CONCLUSIONS OF LAW Based on the findings set forth the court now considers each count of the complaint. There is no dispute that defendant lied when he gave his birthplace as Sarny, Poland and stated he worked in a factory in Poelitz, Germany. This misrepresentation would have been cause to deny defendant’s application for citizenship. Berenyi v. District Director, Immigration and Naturalization Service, 385 U.S. 630, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967), In Re Petition of Haniatakis, 376 F.2d 728 (3rd Cir. 1967). However, in a denaturalization proceeding a different standard obtains.