United States v. Mandycz

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0172p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-1424
v.
,
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IWAN MANDYCZ, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 00-40148—Paul V. Gadola, District Judge.
Argued: March 7, 2006
Decided and Filed: May 22, 2006
Before: SUTTON and GRIFFIN, Circuit Judges; OBERDORFER, District Judge.*
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COUNSEL
ARGUED: Joseph A. Siciliano, HALIW, SICILIANO, MYCHALOWYCH, VAN DUSEN &
FEUL, Farmington Hills, Michigan, for Appellant. Adam S. Fels, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Andrew J. Haliw
III, Elias T. Xenos, HALIW, SICILIANO, MYCHALOWYCH, VAN DUSEN & FEUL, Farmington
Hills, Michigan, for Appellant. Adam S. Fels, Jeffrey L. Menkin, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
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OPINION
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SUTTON, Circuit Judge. Iwan Mandycz challenges the district court’s determination that
he “illegally procured” his naturalization as an American citizen by failing to acknowledge his
service as a prison guard in two concentration camps during World War II. See 8 U.S.C. § 1451(a).
In bringing this challenge, he argues that the denaturalization order is not supported by the evidence,
that the trial violated his due process rights, that laches barred the government from bringing this
action and that the court erred in admitting certain evidence under the ancient-documents exception
to the hearsay rule. We affirm.
*
The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.
1
No. 05-1424 United States v. Mandycz Page 2
I.
On January 23,1920, Iwan Mandycz was born in Olievo-Korolivka, a small village located
in what was then Poland, for a time was Nazi Germany, for a longer time was the Soviet Union and
is now Ukraine. In the summer of 1941, as part of Operation Barbarossa, Nazi Germany took
control of Poland and, with it, Olievo-Korolivka.
As the war began to turn against Germany in 1942 and 1943, the country committed
increasing numbers of troops to the eastern and western fronts, forcing it to recruit Eastern
Europeans to fill positions vacated by the mobilized Germans. From February to April 1943,
various SS units (“Schutzstaffel” or “protection squads,” JA 2073) recruited men from the Olievo-
Korolivka area to work as guards (Wachmann) at German concentration and forced-labor camps.
Mandycz was one such recruit.
On April 7, 1943, Mandycz arrived by train at an SS training camp in Trawniki, Poland,
where the Germans assigned him a unique identification number—3308. All guards at Trawniki
signed a declaration that they were “subject to the disciplinary code of ‘Police Troops’ and not to
the jurisdiction of local or German civil courts.” JA 911 (expert testimony). All guards “received
rifles and live ammunition.” JA 912. All guards “received service pay,” id., “free food, medical
care, shelter and clothing,” JA 913. And all guards were eligible for “both an informal type of leave
that might last an afternoon or for a single day, or more formally issued leave that would run
anywhere from one week to three weeks.” JA 2021. The Germans did not treat the guards as part
of the German army but as “part of the German police ap[p]aratus.” JA 2023.
Adjacent to the training camp was a forced-labor camp “in which the SS and police
authorities incarcerated up to 6,000 Jewish prisoners and compelled them to work in war-related
industries.” JA 886. As part of their training, the Trawniki enrollees guarded the camp.
A German transfer roster, dated May 25, 1943, indicates that the Germans transferred
Wachmann No. 3308, identified as “Iwan Manditsch,” to another Polish labor camp, Poniatowa. JA
985–86. On November 4, 1943, while Mandycz worked as a guard at Poniatowa, the Nazis
massacred approximately 14,000 prisoners held at the labor camp. During the massacre, Trawniki-
trained guards cordoned off the camp while German SS troops forced Jewish men, women and
children to stand in long, wide trenches, where the SS troops shot them with machine guns. The
shooting lasted “all day long until the early evening,” JA 2105, after which the SS troops burned the
victims’ bodies.
A second transfer roster indicates that on November 17, 1943, the Germans transferred
Wachmann No. 3308, identified as “Iwan Manntitsch,” from Poniatowa to Trawniki. JA 994–97.
A third transfer roster created three days later indicates that the Germans reassigned Wachmann No.
3308, identified as “Iwan Mandytsch,” from Trawniki to the “SS Death’s Head Guard Battalion,
Sachsenhausen.” JA 1015–16. It is not clear “whether Guard 3308 actually reached
Sachsenhausen,” D. Ct. Op. at 14, and his whereabouts from this point until the end of the war
remain unclear.
In 1946, the United Nations established the International Refugee Organization to care for
“the approximately 1,200,000 remaining World War II refugees in Europe.” JA 233; see Fedorenko
v. United States, 449 U.S. 490, 495 n.5 (1981). Consistent with this goal, it assisted “refugees and
displaced persons” in returning “to their countries of origin or resettling in different countries.” JA
233. Two years later, in 1948, “Congress enacted the Displaced Persons Act . . . to enable European
refugees driven from their homelands by the war to emigrate to the United States without regard to
traditional immigration quotas.” Fedorenko, 449 U.S. at 495.
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In 1948, Mandycz sought to emigrate from Salzburg, Austria to the United States. To
receive an immigrant visa under the Displaced Persons Act, he had to show that he was “the
concern” of the International Refugee Organization. Displaced Persons Act of 1948, Pub. L. No.
80-774, § 2(b), 62 Stat. 1009 (defining a displaced person as “any displaced person or
refugee . . . who is the concern of the International Refugee Organization”). The Constitution of the
International Refugee Organization excluded from this category any person who could “be shown
[ ] to have assisted the enemy in persecuting civil populations.” Fedorenko, 449 U.S. at 495 n.4.
Relying on a questionnaire completed by Mandycz, the International Refugee Organization certified
to the Displaced Persons Commission that Mandycz had not engaged in persecution.
The Commission in turn referred the case to the Army Counterintelligence Corps, which
interviewed Mandycz to determine whether he was “admissible into the United States under
authority of the [Displaced Persons] Act of 1948.” JA 331. Mandycz informed the Corps that from
1943 to 1944 he had worked as a forced laborer for the “Seuring Company” in Vienna. JA 547, 970.
He also produced a birth certificate dated July 23, 1920. The investigators did not have access to
the records that would have implicated Mandycz as a prison guard because “the three rosters
identifying Iwan Mandycz as guard 3308 . . . [were] held behind the Iron Curtain.” JA 2389. The
Corps also did not receive “cooperation from local authorities or security agencies in countries under
Soviet occupation [such as Poland and Ukraine], so it was difficult . . . to verify the background of
applicants from these countries.” JA 486–87 (report of Mario DeCapua, head of investigations for
the Commission after World War II). “In such cases, the [Corps and Commission] were forced to
rely more heavily on full disclosure and honesty by the applicants.” Id. at 487. Relying on
Mandycz’s representations, the Corps reported to the Commission that the “investigation disclosed
no evidence that [the] Subject is or has been a member of, or a participant in, any movement which
is or has been hostile to the United States.” JA 533.
On December 2, 1949, while still in Austria, Mandycz received his visa. He sailed from
Bremerhaven, Germany, later that month, and on December 27, he entered the United States. On
May 13, 1955, he applied for naturalization as a United States citizen with the Immigration and
Naturalization Service; on June 30, the United States District Court for the Eastern District of
Michigan granted his petition for naturalization. Mandycz settled in Detroit, where he has lived to
this day. Beginning in 1950 or so, he began working at Chrysler, first as a janitor and then as an
auto worker, and remained employed there until his retirement from the company in 1983.
After the dissolution of the Soviet Union, the United States gained access to archives that
implicated a number of post-war immigrants in assisting Nazi Germany. In March 1993, the Office
of Special Investigations (OSI), a division of the Department of Justice that “detects and investigates
individuals who took part in Nazi-sponsored acts of persecution abroad before and during World
War II,” OSI website, available at http://www.usdoj.gov/criminal/osi.html (last visited May 12,
2006), received materials from post-war Soviet interrogations indicating that an Iwan Mandycz had
served as a guard at the Trawniki and Poniatowa camps. On September 17, 1996, after additional
information implicated Mandycz in acts of persecution, OSI requested “a voluntary interview” with
him to discuss the materials it had gathered. JA 82. Mandycz “declined to be interviewed.” Id. In
March 1997, OSI attempted to confirm Mandycz’s birth date with Ukrainian authorities. After a
couple of years (and some prodding by OSI), the Procurator General of Ukraine certified in August
1999 that Mandycz was born on January 23, 1920, exactly six months earlier than the birth date he
had given during the immigration process.
On April 19, 2000, OSI filed a complaint in the Eastern District of Michigan under 8 U.S.C.
§ 1451(a) to revoke Mandycz’s citizenship, alleging that he had illegally procured it. At some point
between 1996 and the filing of the complaint, Mandycz began to suffer from Alzheimer’s disease.
On January 12, 2001, following an examination by OSI’s doctors, the court appointed a guardian
under Rule 17(c) of the Federal Rules of Civil Procedure to represent Mandycz throughout the
No. 05-1424 United States v. Mandycz Page 4
proceedings. After several pretrial proceedings (including a June 2002 appeal that this court
dismissed as an impermissible interlocutory appeal, see United States v. Mandycz, 351 F.3d 222 (6th
Cir. 2003)), the district court held a bench trial from June 14 to June 17, 2004. On February 28,
2005, the court determined that Mandycz had participated in acts of persecution and revoked his
citizenship.
II.
“The Constitution authorizes Congress to ‘establish a uniform Rule of Naturalization’ (Art. I,
§ 8, cl. 4),” and naturalization remains “a privilege to be given or withheld on such conditions as
Congress sees fit.” Schneiderman v. United States, 320 U.S. 118, 131 (1943). In exercising this
authority, the National Legislature has provided for the “revocation” of “illegally procured”
certificates of naturalization. 8 U.S.C. § 1451. “[A] naturalized citizen’s failure to comply with the
statutory prerequisites for naturalization renders his certificate of citizenship revocable as ‘illegally
procured’ under 8 U.S.C. § 1451(a).” Fedorenko, 449 U.S. at 514. The “statutory prerequisite[] for
naturalization” in place at the time of Mandycz’s naturalization—“the Immigration and Nationality
Act of 1952, 8 U.S.C. §§ 1427(a) and 1429”—“required that the individual possess a valid unexpired
immigrant visa.” Id. at 514–15. Whether Mandycz possessed a valid visa turns on the requirements
of the Displaced Persons Act. Because it is by now well established that “service as a guard at a
Nazi training camp, and subsequent concentration camps, would make him ineligible for a visa
under the [Displaced Persons Act],” United States v. Demjanjuk, 367 F.3d 623, 630 (6th Cir. 2004),
the question comes down to this: Did Iwan Mandycz serve as a guard at Trawniki and Poniatowa
or, put another way, was he Guard 3308? If he was, he agrees that he would not have been eligible
for a visa in 1949. And if he was, he agrees that he illegally procured his 1955 naturalization and
that it must be revoked today.
In challenging the district court’s conclusion that Mandycz and Guard 3308 are one and the
same, Mandycz makes one substantive argument and three procedural arguments: (1) the district
court erred in finding he was Guard 3308; (2) the Due Process Clause prohibited the government
from undertaking this denaturalization proceeding once it learned he was suffering from Alzheimer’s
disease; (3) laches barred the government from bringing this denaturalization proceeding; and (4) the
district court erred in admitting certain evidence. In resolving these disputes, we review the district
court’s findings of fact for clear error, id. at 628, its conclusions of law for error, id. at 636, and its
evidentiary rulings for abuse of discretion, id. at 633.
A.
Mandycz begins by contending that “OSI’s evidence did not meet the unusually high burden
of proof required in denaturalization proceedings.” Mandycz Br. at 14 (capitalization removed).
The government, it is true, faces a rigorous burden of proof in this setting. Schneiderman, 320 U.S.
at 125 (“To set aside such a grant [of citizenship] the evidence must be clear, unequivocal, and
convincing—it cannot be done upon a bare preponderance of evidence which leaves the issue in
doubt.”) (internal quotation marks omitted). But in our view, clear, unequivocal and convincing
evidence supports the district court’s finding that Mandycz was Guard 3308 and that he “‘assisted
the enemy in persecuting civil populations.’” Fedorenko, 449 U.S. at 496 n.4 (quoting the Int’l
Refugee Org. Const., Annex I, Part II, 62 Stat. 3051–52).
The government’s proof rested on a collection of German guard-transfer rosters, which
identified Mandycz as Guard 3308, and evidence corroborating that identification. First, the three
rosters identify Guard 3308 as having the same first name as Iwan Mandycz and as having a last
name that phonetically matches Mandycz’s last name. The rosters variously describe Guard 3308
as “Iwan Manditsch,” JA 986, “Iwan Manntitsch,” JA 997, and “Iwan Mandytsch,” JA 1016. Each
spelling of the last name, sure enough, does not match “Mandycz” letter for letter, but the
No. 05-1424 United States v. Mandycz Page 5
differences are fairly explained. As the evidence showed, German clerks processing Eastern
European guards repeatedly faced challenges in transliterating unfamiliar names. The name
Mandycz was no exception: His last name ends with a sound that is rendered “sh” in English, “cz”
in Polish, “ch” in Russian and “sch” in German. JA 880 (expert testimony). A similar problem
plagued the clerks in trying to reduce the initial sound of the second syllable of Mandycz’s name
to letters—with variations from “dy” to “di” to “ti.” JA 881 (expert testimony); see also id. (“As
a result of [ ] haphazard transliteration decisions and general difficulties with foreign names, the
German clerks spelled names inconsistently throughout their records.”). Because Guard 3308 had
the same first name as Mandycz and the same phonetic last name as Mandycz, the transfer records
support the district court’s decision. See generally Grannis v. Ordean, 234 U.S. 385, 395–96 (1914)
(“But, even in names, ‘due process of law’ does not require ideal accuracy. In the spelling and
pronunciation of proper names there are no generally accepted standards; and the well-established
doctrine of idem sonans [‘the same sound’] . . . is a recognition of this.”); United States v.
Emuegbunam, 268 F.3d 377, 395 (6th Cir. 2001) (“Emuegbunem’s argument that the misspelling
of his name vitiates the indictment is likewise unavailing. A name need not be correctly spelled in
an indictment, if substantially the same sound is preserved.”) (internal quotation marks omitted).
Second, in addition to matching Mandycz’s first name exactly and his last name phonetically,
the rosters identify his acknowledged place of birth and the only ascertainable date of birth for him.
The third roster identifies “Iwan Mandytsch, 3308” as being “born on 23 January 1920 in Oliwa
Koroliwka, Horodenka.” JA 1016. This birthplace matches Mandycz’s admitted birthplace and
represents the birth date of the only Iwan Mandycz for whom the Ukrainian government has a record
of birth in 1920. The parents listed on his Ukrainian birth certificate (“Dmytro Mandych” and
“Mariya Skits’ko,” JA 1064) match the names admitted by Mandycz to be those of his parents
(“Dmytro Mandycz” and “Maria Skidzka,” JA 762). And the evidence supported the district court’s
conclusion that no other Iwan Mandycz was born in Olievo-Korolivka in 1920. Mandycz, it is true,
proffered a birth certificate dated “23 July 1920” in connection with his application for an
immigration visa. JA 338. But forensic analysis revealed that the date on this birth certificate,
exactly six months after the date listed on the Ukrainian-issued certificate and the transfer roster,
could not be trusted because the authenticating stamp on the document had been “hand retouched.”
JA 2441. This evidence led the forensic expert and the district court to determine that the birth
certificate should “not be considered an authentic document” when it comes to the July 23 birth date
listed there. JA 2452.
Third, the guard-identification numbers further eliminate the possibility that the transfer
rosters identify someone other than the defendant. In each instance, the roster lists Mandycz’s name
next to the same number—3308. Expert testimony, credited by the district court, showed that these
numbers were “specific to the individual guard and were never changed as long as he belonged to
the Guard Forces of the SS.” JA 882. “Trawniki officials never ‘re-used’ or recycled the
identification numbers of discharged men.” JA 910. Nor were these numbers “reassigned after a
man left the Guard Forces or was killed.” JA 882. The repeated correlation of the same name
(Mandycz) with the same number (3308), in combination with the biographical information listed
on the third roster, provides compelling evidence that there was one and only one Iwan Mandycz
who was born in Olievo-Korolivka and who served as Guard 3308.
Fourth, still other evidence corroborates the information contained in the transfer rosters.
Statements made by other Trawniki guards during postwar Soviet interrogations identified Mandycz
as a guard at Trawniki and Poniatowa and correctly remembered his birth date, birthplace, rank,
nationality and itinerary. Trawniki-trained guard Stepan Perig remembered “Ivan Dmitrievich
Mandych” and remembered that his “year of birth was 1920,” that his “place of birth is in O.-
Korolivka,” that “[h]e enrolled in the SS police training camp in Travniki in April 1943,” that “[h]e
underwent special training and guarded prisoners” and that “[h]e guarded prisoners in the camp of
Ponyatovo.” JA 1082. Ivan Sidorak also remembered “Ivan Dmitrievich Mandych” and
No. 05-1424 United States v. Mandycz Page 6
remembered that his “year of birth [was] approximately 1920,” that “[h]is place of birth is in the
village of Olievo Korolivka,” that “[h]e is Ukrainian by nationality,” that “[h]e was drafted with me
to serve in the SS” and that “[h]e served as a Wachmann in the SS police training camp in Travniki
from April 1943 until October 1943, after which he was sent to the death camp in Ponyatovo.”
JA 1124.
Perig’s and Sidorak’s recollection of the middle name “Dmitrievich” further ties Mandycz
to Guard 3308. As a patronymic, a name derived from one’s father, the middle name of
“Dmitrievich” connects Mandycz to his father, whose name (Mandycz concedes) is Dmytro.
Still another individual, Vasilij Gajdich, recalled that “Mandich and I arrived at the ‘SS’
police training camp at Travniki at the same time,” that “[h]e swore an oath and gave a commitment
of voluntary service for the German punitive organs,” that “[h]e underwent a specialized course of
training, after which he served as an ‘SS Wachmann’ and guarded prisoners” and that “[u]pon
completing training, he and I were sent to the ‘SS’ camp in Ponyatovo.” JA 1243; see 473–74.
Fifth, Mandycz’s postwar relationship with Petro Perih, another guard at Trawniki,
corroborates the district court’s identification finding. During the postwar interrogations, Perig and
Sidorak stated that Petro Perih had served at Trawniki. See JA 1102–03 (Perig: “[Perih] arrived at
the SS training camp in Travniki with me.”); JA 1125 (Sidorak: “From April 1943, [Perih] served
at the SS police training camp in Travniki. He performed the duties of an SS Wachmann.”). They
also gave similar estimates of Perih’s date of birth (1922 or 1923) and remembered that he came
from the same hometown (Olievo-Korolivka). Perih’s Canadian immigration documents tie him to
the Perih remembered by Perig and Sidorak, as they state that he was born in Olievo-Korolivka in
1924. After the war, Perih attended the wedding of Mandycz’s daughter. Mandycz’s telephone
records also reveal that shortly before the government filed the complaint in this case, someone used
his telephone to place three calls to Perih’s home. Mandycz also listed Petro Perih during discovery
in this case as a person who would have “knowledge or information concerning your whereabouts,
employment or activities in Europe between or including 1939 and 1945.” JA 792–93. As the
district court permissibly found, Mandycz’s “post-war contacts with Petro Perih corroborate
[Mandycz’s] identification with Guard 3308.” D. Ct. Op. at 26.
While considerable direct and corroborating evidence links Mandycz to Guard 3308, little
evidence supports his contrary account of activities between 1943 and his arrival in this country.
In one version of events, recounted in his October 1949 visa application, Mandycz claimed to work
for a “Seuring Company” located in Vienna, Austria. JA 547. Yet neither Mandycz nor anyone else
has produced any evidence showing that such a company existed. “[R]esearch has not turned up any
record that a firm by the name of ‘Seuring’ or ‘Seyring’ ever existed in Vienna,” JA 974 (expert
testimony), and Mandycz stated in his 2001 deposition that he had never worked in Vienna and did
not think that he had worked at Seuring.
In another version of events, recounted by Mandycz and confirmed by his daughter based
on what Mandycz has told her throughout her life, Mandycz did not work in Vienna, but resided “in
a camp in the Linz [Austria] area and was assigned out frequently to different farmers to work as
an agricultural laborer.” JA 2126. Yet the account of Mandycz as a forced agricultural worker has
no documentary support and conflicts with other evidence. See JA 976 (noting that no extant
account “depicts living in a camp with others and being picked up as needed by local farmers”); JA
977 (noting that “[a]gricultural laborers typically lived on the farms where they worked” because
“German labor authorities realized significant cost savings by shifting the costs . . . onto individual
farmers”); JA 2126 (“[F]orced laborers who were forced to reside in camps together were generally
deployed at industrial concerns or in rural processing factories.”). Austria also created social-
insurance records for forced laborers (in the event the laborer destroyed property of the employer),
but the Austrian government’s “search[] for records verifying that Mandycz served as a forced
No. 05-1424 United States v. Mandycz Page 7
laborer during World War II . . . . produced no evidence that Iwan Mandycz resided as a forced
laborer or was employed as a forced laborer in Austria . . . between 1943 and 1945.” JA 2124. In
the face of considerable evidence that Mandycz was Guard 3308 and in the absence of competing
evidence that he was not, we credit the district court’s amply supported finding that that is who he
was.
Trying to fend off this conclusion, Mandycz points out that the government did not produce
evidence that it has produced in similar denaturalization proceedings—namely, a Trawniki personnel
file that would have contained Mandycz’s photograph and fingerprint as well as other biographical
information. Doubtless, the district court (and we) would have preferred the record to contain this
highly probative evidence. But just 1,200 out of 5,082 Trawniki guard files survived the war. So
the absence of such a file does not prove that one never existed. The question rather is whether the
evidence produced clearly and unequivocally showed that Mandycz was Guard 3308. The
government’s evidence satisfied that burden, and other courts have credited similar forms and
amounts of evidence in reaching similar conclusions. See, e.g., United States v. Szehinskyj, 277 F.3d
331, 337 (3d Cir. 2002); United States v. Hajda, 135 F.3d 439, 444 (7th Cir. 1998); United States
v. Tittjung, 753 F. Supp. 251, 256 (E.D. Wis. 1990), aff’d, 948 F.2d 1292 (7th Cir. 1991).
Mandycz also questions whether the district court should have relied on the Soviet
interrogations, noting that they contain inconsistencies in his physical description. Perig described
Mandycz as “tall, full build, blond hair,” JA 1103, while Gajdich described him as “tall in height,
thin build, elongated face, brown-black hair,” JA 1243. The district court held that “[i]n light of the
documentary and corroborating evidence, the variance[s] in physical descriptions of Iwan Mandycz
provided in the interrogations are factually insignificant and unpersuasive.” D. Ct. Op. at 26.
Given the considerable documentary and corroborating evidence connecting Guard 3308’s
name, birth date, birthplace and parents to Mandycz, these modest discrepancies—occurring in two
pieces of corroborative, otherwise consistent evidence and concerning shades of hair color and
build—do not undermine the district court’s identification finding. The statements were given in
1948, five years after these two individuals served with Mandycz over the course of a seven-month
period from April 1943 to November 1943. “[P]hysical descriptions,” as the record confirmed, “are
often relative and often depend on the self-perception of the individual who is describing the person
in question.” JA 1996. And even if the two men accurately recollected and assessed these physical
features, no evidence shows that the two men perceived Mandycz at the same time. Summer of
course may give brown hair a blond appearance, and it would hardly be unusual for guard service
during a war to convert a full build into a thin one in a matter of months. In the end, these alleged
discrepancies do not undermine the district court’s finding—as other courts have found in similar
circumstances. See, e.g., Hajda, 135 F.3d at 444 (“[T]here are many explanations for the difference
[in height] . . . and, in any event, the perfect matches in the other categories more than made up for
this rather minor difference. The discrepancy in hair color is in the same boat—a minor variance.”);
see also, e.g., Neal v. Acevedo, 114 F.3d 803, 807 (8th Cir. 1997) (“The minor discrepancies in the
victim’s descriptions of Neal were brought before the jury by defense counsel. The jury could have
rationally discounted these discrepancies in light of the victim’s positive identification of Neal at
trial, the other circumstantial evidence connecting Neal to the crime, and the problems with Neal’s
alibi defense.”).
Mandycz, more generally, contends that the district court should not have credited the Soviet
interrogation records, noting that in 1995 (in the district court’s words) “three men told Canadian
authorities that Soviet investigators coerced or falsified confessions from them in the 1940’s.”
D. Ct. Op. at 27. But in choosing not to credit these recantations, the district court observed that the
three statements “contradict reliable historical evidence indicating that each [individual]
participated in Nazi service” and that the three individuals made the statements to “avoid[]
implicating themselves in atrocities and other bad acts.” Id. at 27. Under these circumstances, the
No. 05-1424 United States v. Mandycz Page 8
district court did not abuse its discretion in declining categorically to reject the use of any and all
Soviet interrogation records. See, e.g., United States v. Kungys, 793 F.2d 516, 520 n.2 (3d Cir.
1986) (“[W]e reject the suggestion that all depositions taken in the Soviet Union should be
automatically excluded from evidence.”), rev’d on other grounds, 485 U.S. 759 (1988).
Nor, more specifically, has Mandycz shown that the interrogation records used in this
instance were of dubious value. The three cited individuals have no connection to Mandycz, and
the transfer records corroborate the interrogation records that the district court considered. On this
record, we cannot say that the district court committed reversible error in considering these records.
B.
Mandycz next argues that the government violated his due process rights by bringing this
denaturalization proceeding against him while he was mentally incompetent. The incompetence of
any party to a denaturalization suit, he argues, operates as an absolute bar to the action, and even if
that is not the case, the circumstances of his incompetency should have required the district court
to halt this proceeding. We disagree.
In September 2000, OSI’s doctors examined Mandycz and determined that Alzheimer’s had
taken a sufficient toll on him such that he was no longer of sound mind. Had the district court found
that Mandycz was incompetent based on these examinations, that finding would have precluded the
government from proceeding against him in a criminal proceeding. As the Supreme Court has
“repeatedly and consistently recognized,” the criminal prosecution “of an incompetent defendant
violates due process.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (internal quotation marks
omitted). A criminal defendant must have “sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding” and “a rational as well as a factual understanding of
the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see also Cooper,
517 U.S. at 368 (“The test for competence to stand trial . . . is whether the defendant has the present
ability to understand the charges against him and communicate effectively with defense counsel.”).
The problem is that “[a] denaturalization suit is not a criminal proceeding,” Schneiderman,
320 U.S. at 160; it is a “civil case,” Addington v. Texas, 441 U.S. 418, 424 (1979); see United States
v. Joudis, 800 F.2d 159, 162 (7th Cir. 1986) (“Denaturalization and deportation are civil
proceedings.”). Criminal cases offer many due process protections—e.g., jury trial, indictment,
beyond-a-reasonable-doubt burden of proof, right to counsel—that civil proceedings, including
denaturalization proceedings, do not. See, e.g., United States v. Schellong, 717 F.2d 329, 336 (7th
Cir. 1983); United States v. Koreh, 144 F.R.D. 218, 220 (D.N.J. 1992); see also INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038–39 (1984); Nelson v. INS, 232 F.3d 258, 261 (1st Cir. 2000).
All of this remains true even when the case involves an incompetent party. See Doe v. City
of Lafayette, Ind., 377 F.3d 757, 767 (7th Cir. 2004); Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th
Cir. 1977); United States v. Weinstein, 511 F.2d 622, 628 (2d Cir. 1975); see also Mohamed v.
TeBrake, 371 F. Supp. 2d 1043, 1046 (D. Minn. 2005); United States v. Bonanno Organized Crime
Family of La Cosa Nostra, 695 F. Supp. 1426, 1432 (E.D.N.Y. 1988).
So while the commencement of a civil case does not suspend the Due Process Clause, it does
alter the fairness requirements of the Clause. Whereas due process protects incompetent criminal
defendants by imposing an outright prohibition on trial, it protects incompetent civil parties by
requiring the court to appoint guardians to protect their interests and by judicially ensuring that the
guardians protect those interests. See Fed. R. Civ. P. 17(c) (“The court shall appoint a guardian ad
litem for an infant or incompetent person not otherwise represented in an action or shall make such
other order as it deems proper for the protection of the infant or incompetent person.”); see also
Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003) (“[T]he district judge
No. 05-1424 United States v. Mandycz Page 9
should be aware that due process considerations attend an incompetency finding and the subsequent
appointment of a guardian ad litem.”); Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1309
(11th Cir. 2001), vacated on other grounds, 537 U.S. 1085 (2002); Neilson v. Colgate-Palmolive
Co., 199 F.3d 642, 652 (2d Cir. 1999); Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989);
Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 285 (4th Cir. 1979). Independent of the court’s
duty to appoint a guardian to look after his interests, Mandycz of course also is entitled to the other
basic protections of due process in a civil setting. See United States v. Kairys, 782 F.2d 1374, 1384
(7th Cir. 1986) (“[B]ecause denaturalization is civil and equitable in nature, due process [is] satisfied
by a fair trial before an impartial decisionmaker.”).
In Mandycz’s earlier appeal in this case, our court suggested a similar resolution of this
issue. Soon after OSI’s doctors determined that he was incompetent, Mandycz filed an interlocutory
appeal seeking to halt the denaturalization proceeding because it was sufficiently akin to a criminal
proceeding. In denying leave to appeal, the court noted that “[d]enaturalization proceedings are
technically considered suits in equity, not criminal actions.” United States v. Mandycz, 351 F.3d
222, 225 n.1 (6th Cir. 2003). “In civil cases,” it added, “the competency of a defendant is not
irrelevant, of course. Incompetent and infant civil defendants are entitled to the appointment of a
guardian ad litem. However, a civil defendant’s mental incompetence does not trigger an abatement
of trial as it does in the criminal context.” Id. (citations omitted). Whether these earlier statements
were necessary to the resolution of the earlier appeal and therefore bind us as part of the law of the
case, see Moss v. United States, 323 F.3d 445, 458 (6th Cir. 2003), or represent footnoted dicta
unnecessary to the court’s determination that it lacked jurisdiction over Mandycz’s interlocutory
appeal need not detain us. The salient point is that we independently reach the same conclusion
today.
Perhaps appreciating this entrenched distinction between the civil and criminal due process
protections for incompetent individuals, Mandycz has filed a supplemental brief indicating that he
“is not arguing for due process protection for all ‘civil’ defendants” but only for protection for
denaturalization defendants facing his unique circumstances. Mandycz Supp. Br. at 13; see id.
(“Recognition of such a due process right is only reasonable in light of the extraordinarily unique
posture of this case.”). While we need not decide today whether there could be a denaturalization
proceeding in which due process requires more protection than this civil defendant received,
Mandycz has not convinced us that his circumstances warrant an exception to the rule. In one sense,
the district court exceeded the requirements of due process as it appointed a guardian for Mandycz
without making a finding that he was incompetent; the court apparently determined that the
examination results of OSI’s doctors sufficed to make the appointment of a guardian appropriate.
Nor has anyone alleged that the guardian failed to look after Mandycz’s interests or that Mandycz
otherwise failed to receive “a fair trial before an impartial decisionmaker.” Kairys, 782 F.2d at
1384; see Mandycz Supp. Br. at 15 (conceding that the denial of other criminal procedure
protections—e.g., jury trial—in denaturalization cases was appropriate because of “the assurance
that one will still receive a fair trial”).
In another sense, the district court was presented with a party who, despite his illness, was
able to offer considerable assistance to his defense, a feature of this case that will not invariably be
replicated in other civil proceedings involving incompetent parties. Keep in mind that the
government first notified Mandycz of its investigation in 1996 when it asked to interview him about
whether he had been a guard at Nazi labor and concentration camps. And the government filed this
complaint in 2000. Mandycz first complained about memory loss in 2000, and no one contends that
he was unable to assist his defense in 1996 when he first learned about this inquiry. Indeed, the
district court found that Mandycz exhibited “lucidity at his deposition” in May 2001, D. Ct. Op. at
34, as he “recounted that he was taken from his home to work on a farm in Linz during World War
II,” a story that was “the same one [he] told his adult daughter throughout her life” and to which she
was permitted to testify, id. at 33. He told this story in considerable detail, giving his attorneys
No. 05-1424 United States v. Mandycz Page 10
ample opportunity to verify his claims and substantiate them with evidence—whether from
immigration records, from his family or from acquaintances.
Mandycz, notably, has not challenged the district court’s finding that he exhibited “lucidity”
at his deposition or the court’s finding that his daughter’s independent recollections corroborated
his version of events. Compare JA 1510–11, 1518, 1631 (Mandycz) (agreeing that “in 1943 the
Germans were recruiting young men in [Olievo-Korolivka],” and remembering that he was taken
“[t]o Austria to work,” “to Linz in Austria,” and that after the war ended, he went “[t]o Salzburg”)
with Donna Christina Depo. at 132–33 (daughter) (“He said Linz” was where he stayed; “I know
he was at home, Olijewa Korliwka, and then he was in Linz. Then he went to Salzburg . . . . I think
it was ‘43 and then ‘45 the war was over.”); compare also JA 1519 (Mandycz) (“Trucks came and
they were taking us somewhere to camps and we were told you’re going to live here. And from here
you will be taken to farms.”) with Christina Depo. at 50–51 (daughter) (“[H]e worked on the farm
during the summer” and stayed in “some kind of area where the workers lived . . . .”). Even if we
were to acknowledge the possibility of granting an exception to the traditional civil rules for
denaturalization proceedings, Mandycz has not shown that this is an appropriate case for doing so.
Mandycz, finally, points out that “an incompetent person may not, as a matter of law,
voluntarily renounce his or her citizenship.” Mandycz Br. at 27. That may be true but it does not
help his claim. Under 8 U.S.C. § 1481(a)(5), “[a] person who is a national of the United
States . . . shall lose his nationality by voluntarily . . . making a formal renunciation of nationality
before a diplomatic or consular officer of the United States in a foreign state.” The statute thus
requires renunciation to “be by voluntary act,” Perri v. Dulles, 206 F.2d 586, 589 (3d Cir. 1953),
and the law generally places restrictions on the ability of incompetent individuals to accomplish
voluntary and legally binding acts, see McGrath v. Tadayasu Abo, 186 F.2d 766, 772 (9th Cir.
1951); see also Spytma v. Howes, 313 F.3d 363, 370 (6th Cir. 2002). But all of this means only that
Mandycz could not voluntarily relinquish his citizenship, not that the government lacks authority
to commence an involuntary denaturalization proceeding against him under 8 U.S.C. § 1451.
C.
Mandycz next argues that laches barred the government from bringing this denaturalization
claim given the lapse of time between the government’s first discovery of evidence that Mandycz
was a prison guard and the filing of this complaint. We disagree.
Because the United States acted in its sovereign capacity when it sought to denaturalize
Mandycz, the common law doctrine of laches does not apply. “It is well settled that the United
States is not . . . subject to the defense of laches in enforcing its rights.” United States v. Summerlin,
310 U.S. 414, 416 (1940). “The ancient rule quod nullum tempus occurit regi—‘that the sovereign
is exempt from the consequences of its laches . . .’—has enjoyed continuing vitality for centuries.”
United States v. Peoples Household Furnishings, Inc., 75 F.3d 252, 254 (6th Cir. 1996); see also
Hatchett v. United States, 330 F.3d 875, 887 (6th Cir. 2003) (“It is well established that the
Government generally is exempt from the consequences of its laches.”); United States v. Weintraub,
613 F.2d 612, 618 (6th Cir. 1979).
Whatever the scope of the exception to this rule—triggered when the government stands in
the shoes of a private party, as opposed to when it acts in its sovereign capacity, see Hatchett, 330
F.3d at 887; cf. United States v. California, 507 U.S. 746, 757 (1993)—it does not apply here. When
the United States acts to grant or take away the right of citizenship, it quintessentially acts in its
sovereign capacity, see Haile v. Gonzales, 421 F.3d 493, 494 (7th Cir. 2005), Faddoul v. INS, 37
F.3d 185, 189 (5th Cir. 1994), a legal reality confirmed by the incapacity of private parties to remove
a fellow American’s citizenship or grant it in the first instance.
No. 05-1424 United States v. Mandycz Page 11
Costello v. United States, 365 U.S. 265 (1961), does not hold otherwise. Noting that it “has
consistently adhered to [the] principle” “that laches is not a defense against the sovereign,” id. at
281, the Court commented that it had not “considered the question of the application of laches in a
denaturalization proceeding,” id. at 282. But “even if we assume the applicability of laches,” the
Court then held “that the petitioner failed to prove both of the elements which are necessary to the
recognition of the defense.” Id. Invoking this language, Mandycz says that “Costello appeared to
recognize the possibility laches could be raised as a defense to denaturalization.” Mandycz Br.
at 49.
But circuit precedent forecloses Mandycz from threading this needle. In United States v.
Weintraub, 613 F.2d 612, 618 (6th Cir. 1979), we read Costello to “admit[] to no exceptions to the
rule that laches cannot defeat the government.” The “primary holding” of Costello, we have already
decided, is that “laches was inapplicable.” Id. at 619; see also id. at 619–20 (“The rule is of such
long standing that we do not believe the Supreme Court would carve out an exception to it without
expressly saying so.”); United States v. Arrow Transp. Co., 658 F.2d 392, 395 (5th Cir. 1981)
(“Costello by no means holds that laches is applicable against the United States.”).
But even if we were to consider the defense, it would not aid Mandycz. The laches defense
has “two elements: (1) unreasonable delay in asserting one’s rights; and (2) a resulting prejudice
to the defending party.” Brown-Graves Co. v. Cent. States, Se. & Sw. Areas Pension Fund, 206 F.3d
680, 684 (6th Cir. 2000). Any “delay” in initiating this case was not unreasonable. Quite
understandably, Mandycz does not contend that the government unduly delayed this proceeding
during the years between 1949, when Mandycz first entered the country, and 1993, when the
government first learned that he might have been a Nazi guard. While Mandycz does challenge the
government’s decision to wait until 2000 to file this complaint, there were legitimate reasons for that
delay. The government acquired the first piece of the puzzle in 1993, when it learned of statements
from Gajdich’s post-war Soviet trial placing Mandycz at Poniatowa. Fairly choosing not to
commence a proceeding on this basis alone, the government “suspended” further investigation
“unless and until further personal details . . . came to light.” JA 81. More information surfaced in
1994, this time identifying an Iwan Mandycz with a 1920 birth date and a birthplace in Olievo-
Korolivka. In 1995, the government received a transfer roster, again with a birth date and birthplace.
An impediment remained, however, because the birth dates on these documents (January 23, 1920)
did not match the birth date on file for Mandycz (July 23, 1920). To resolve this disparity and others
(the existence for example of the Seuring Company), the government requested an interview with
Mandycz. When Mandycz, through counsel, refused to be interviewed, that forced the government
to confirm independently which of the two birth dates was accurate—which could be done only with
the assistance of the then-recently-independent Ukrainian government. This process consumed over
two years and required considerable effort. See, e.g., JA 101 (May 20, 1998 letter from OSI to
Ukrainian procurator: “[Y]our office indicated that it believed it had responded to all of the requests
for assistance that we had submitted since March 1997. In fact, we have received almost none of
the materials that Mr. Kyrylenko indicates were forwarded to us.”). Having reasonably waited until
it could confirm that Mandycz was Guard 3308 and having been unable to obtain Mandycz’s
cooperation in resolving ambiguities in the record, the government cannot be said to have
unreasonably delayed the commencement of this action.
D.
Mandycz, lastly, challenges the authenticity of the Soviet interrogation records and their
admissibility under the ancient-documents exception to the hearsay rule. Under that exception,
courts may admit into evidence “[s]tatements in a document in existence twenty years or more the
authenticity of which is established.” Fed. R. Evid. 803(16). Authenticity in turn is a function of
whether the document “(A) is in such condition as to create no suspicion concerning its authenticity,
No. 05-1424 United States v. Mandycz Page 12
(B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or
more at the time it is offered.” Fed. R. Evid. 901(b)(8).
Though conceding that the Soviet interrogation records are at least 20 years old, Mandycz
claims that this hearsay exception does not apply because the documents are not “authentic.” In
support of this argument, he marshals a variety of sources to make the point that the Soviet Union
did not value truth—e.g., “To speak the truth is a petty bourgeois prejudice. To lie, on the other
hand, is often justified by its ends,” Vladimir Lenin in Chapman Pincher, The Secret Offensive 24
(1985)—then reasons that all documents of the old regime “lack trustworthiness.” Mandycz Br. at
35. Putting to one side the sweeping breadth of his argument, it suffers from a more basic problem.
“Although Rule 901(b)(8) requires that the document be free of suspicion, that suspicion goes not
to the content of the document, but rather to whether the document is what it purports to be.”
Demjanjuk, 367 F.3d at 631. “Whether the contents of the document correctly identify the defendant
goes to its weight and is a matter for the trier of fact; it is not relevant to the threshold determination
of its admissibility.” Kairys, 782 F.2d at 1379; see also Kalamazoo River Study Group v. Menasha
Corp., 228 F.3d 648, 661 (6th Cir. 2000) (citing Kairys and noting that “[q]uestions as to the
documents’ content and completeness bear upon the weight to be accorded the evidence and do not
affect the threshold question of authenticity”). The authenticity inquiry, then, turns on “whether the
document is what it purports to be,” not its veracity. Demjanjuk, 367 F.3d at 631. Because
Mandycz does not argue, much less prove, that the Soviet interrogation records are not what they
purport to be—Soviet interrogation records—his contention fails. See, e.g., Hajda, 135 F.3d at
442–45 (admitting statements given to communist interrogators); Kalejs, 10 F.3d at 447 (same);
United States v. Stelmokas, 100 F.3d 302, 312 (3d Cir. 1996) (admitting documents that came from
Soviet sources or were in Soviet possession); United States v. Linnas, 527 F. Supp. 426, 433–34
(E.D.N.Y. 1981) (admitting depositions videotaped by Soviets), aff’d, 685 F.2d 427 (2d Cir. 1982).
*****
While Iwan Mandycz has only the prospect of review in the Supreme Court before this
denaturalization proceeding comes to an end, that does not mean he has reached the end of the road
when it comes to deportation. A denaturalization finding permits the Attorney General to seek
deportation; it does not require him to do so. The government concedes as much, see Gov’t Supp.
Br. at 1 (“[T]he Government does have prosecutorial discretion” “to refrain from removing
incompetent persons . . . .”), and acknowledges that it has exercised such discretion before. See also
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999); Carranza v. INS,
277 F.3d 65, 72 (1st Cir. 2002). Whether the stamp now placed on Mandycz of having aided Nazi
Germany in the persecution and killing of thousands of Jews suffices to vindicate the policies
underlying the Displaced Persons Act of 1948 and the Immigration and Nationality Act of 1952 or
whether the deportation of this incompetent 86 year old is required as well we leave to the discretion
delegated by Congress to the Attorney General. For present purposes, the district court fairly and
permissibly concluded that Mandycz was Guard 3308 and accordingly should never have been
granted the benefits of United States citizenship.
III.
For these reasons, we affirm.