United States 7th Circuit Court of Appeals Reports
U.S. v. FIRISHCHAK, 05-3852 (7th Cir. 11-20-2006) UNITED
STATES OF AMERICA, Plaintiff-Appellee v. OSYP FIRISHCHAK,
Defendant-Appellant. No. 05-3852. United States Court of
Appeals, Seventh Circuit. Argued September 28, 2006.
Decided November 20, 2006.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division. No.
03-CV-9360 — Samuel Der-Yeghiayan, Judge.
Before FLAUM, Chief Judge, and RIPPLE and EVANS, Circuit
Judges.
FLAUM, Chief Judge.
In 1949, Osyp Firishchak filed an application for a visa to
the United States under the Displaced Persons Act (“DPA”).
In November 1954, he became a naturalized United States
citizen. Several decades later, the Department of Justice
uncovered documents suggesting that Firishchak served in
the Ukrainian Auxiliary Police (“UAP”) during World War II
— a fact he did not disclose in his 1949 visa
application. The discovery of these documents resulted in a
trial, in which the district court ordered Firishchak
denaturalized. Firishchak now appeals the judgment of the
trial court. For the following reasons, we affirm that
judgment.
I. BACKGROUND
In December 2003, the government filed a four-count
complaint against Osyp Firishchak alleging that his
citizenship was illegally procured and must be revoked
according to § 340(a) of the Immigration and
Naturalization Act of 1952, 8 U.S.C. § 1451(a)
(2000). The government contended that Firishchak’s
admission into the United States was unlawful on several
grounds: 1) he assisted in the persecution of civilians
during World War II; 2) he participated in a movement
hostile to the United States; 3) he willfully
misrepresented his wartime activities throughout his visa
application process; and 4) he advocated or acquiesced in
acts contrary to human decency.
In August 2005, the district judge conducted a four-day
bench trial and granted judgment for the government on all
four counts. United States v. Firishchak, 426 F. Supp. 2d
780 (N.D. Ill. 2005). The primary issue at trial was
whether Firishchak had served in the UAP. The government
offered documentary evidence linking Firishchak to the UAP,
expert testimony from a World War II historian, and
testimony about post-war visa application procedures, while
Firishchak testified in his own defense, denying any
involvement with the UAP. Instead, he testified that he
drifted from place to place during the war, hiding from the
Nazis in various coffee shops. The district court found
Firishchak’s account of his war-time activities
“incredible” and concluded that he had served in the UAP.
A. Firishchak’s Background Information
Osyp Firishchak was born on April 18, 1919 in Trebuszany, a
town that became a part of Czechoslovakia after World War I
and is now a part of Ukraine. No other persons bearing his
name were born in Trebuszany on that date. His father was
named Hryts Firishchak.
In his application under the DPA, Firishchak described his
employment and residences from 1941 to 1944, stating that
he had worked as a laborer for a factory in Nitra,
Slovakia, from 1939 to December 1941; a Ukrainian
cooperative in “Lwow” (L’viv), Poland, from December 1941 to
April 1944; and a building firm in Nitra, Slovakia, from
April to October 1944. On his visa application, Firishchak
described his residences from 1941 to 1944 as Nitra,
Slovakia (1939 to December 1941); Lemberg (L’viv), Poland
(December 1941 to April 1944); and Nitra, Slovakia (April
1944 to October 1944). Firishchak swore to the truth of the
information on his visa application. He was admitted to the
United States and later became a naturalized United States
citizen.
B. The Ukrainian Auxiliary Police and World War II
In August 1941, following Nazi Germany’s June 1941 invasion
of then-Soviet territory, German authorities formed the UAP
to aid in policing the newly-incorporated District Galicia.
Throughout its existence, the UAP was financed, directed,
and controlled by German authorities. Ukrainian Auxiliary
policemen in the city of L’viv were uniformed, armed,
salaried, and received various benefits, including leave
and preferential access to scarce commodities.
The Nazi policy toward Jews in District Galicia had
several components. First, the Nazis issued new
identification papers to Jews that identified their
religion, and oversaw their confinement in ghettos. Later,
many of these Jews were forcibly removed and killed. The
Nazis temporarily spared a limited number of Jews, whom the
Germans considered “work capable,” transferring them to
forced labor camps where many died from starvation,
disease, and other inhumane conditions. These measures were
implemented and enforced from 1941 to 1943 in Galicia.
During this time, the UAP checked personal identification
documents and arrested Jews who lacked special work passes.
They also arrested any Jew who failed to wear an armband
bearing the Star of David.
At the time that Firishchak was admitted into the United
States, the UAP was not on the Inimical List of
organizations hostile to the United States — a list
maintained by the Displaced Persons Commission to assist
with processing visa applications.
C. Stipulations and Evidence Presented at Trial
The parties stipulated to numerous facts and legal
conclusions in the pre-trial order that greatly reduced
Firishchak’s available defenses at trial. They stipulated,
among other things, that the UAP “enforced Nazi persecutory
measures against . . . Jews in the city,” by checking
personal identification documents and arresting Jews for
various violations and that the UAP assisted the Nazis with
the largest ghetto reduction action in L’viv, commonly
known as the “Great Operation.” Pre-trial Order at 5-6.
As for legal conclusions, they stipulated if Firishchak
“performed the routine duties of a Ukrainian Auxiliary
policeman, he assisted in the persecution of civil
populations.” Id. at 16. Moreover, the parties stipulated
that if Firishchak served in the UAP during WWII, he “was a
member of, or participated in, a hostile movement.” Id. at
18. In addition, the parties agreed that Firishchak’s
wartime activities, and UAP membership in particular, “were
material facts” and that if he actually served in the UAP
during WWII, “he made a willful and material
misrepresentation of his wartime activities for the purpose
of gaining admission to the United States.” Id. at 19.
Finally, the parties stipulated that if Firishchak served
in the UAP, “which was subordinate to the Nazi security
authorities and routinely assisted in implementing a range
of Nazi anti-Jewish policies, he advocated or acquiesced in
activities or conduct contrary to civilization and human
decency.” Id. at 20. The end result of these stipulations
was that Firishchak could only be absolved if the
government failed to prove his membership in the UAP
altogether.
At trial, the government introduced twenty-one wartime
documents related to Firishchak’s UAP service, including
seven that bear his signature.[fn1] Two of those documents
identify Firishchak by name and birth date and state that
he had been employed by the 1st Commissariat of the
Ukrainian Police since October 1941. One of the documents
lists the headquarters of the 1st Commissariat as
Firishchak’s residence and lists his father’s name as
Hryts. The signatures on the documents are spelled the
same, and all of the documents identify Firishchak as a
police private in the UAP. A few of the documents lacked
specific dates.
During Firishchak’s trial, Dr. Dieter Pohl, a scholar who
has done extensive archival research on the Nazi occupation
of District Galicia and the UAP, testified generally about
the German occupation of Galicia and the role of the UAP in
implementing Nazi policy. In addition, Pohl testified that
there was no suspicion regarding the authenticity of the
twenty-one wartime documents and that they were all housed
in a location where one would expected to find them
— the L’viv State Regional Archive. He further
testified that all of the documents dated from 1942 to
1944.
Robert Groner, a former Department of Justice trial
attorney, testified regarding Firishchak’s sworn interview,
in which Firishchak identified seven signature samples
(extracted from relevant UAP documents) as his own. Groner
stated that Firishchak declined the services of an
interpreter at the interview and was composed, lucid, and
responsive until he was shown the documents regarding his
UAP service, at which point he became nervous and agitated.
The government also offered testimony from William Weiss, a
survivor of the L’viv Jewish ghetto. He did not
specifically testify about Firishchak or identify him as a
member of the UAP. Instead, Weiss testified about ghetto
conditions as well as the abuse that occurred at the hands
of both the Nazis and the UAP. Finally, the government
entered the de bene esse depositions — depositions
taken for use in the event of a witness’s absence at trial
— of Mario DeCapua and Everett Coe, who testified
generally about visa applications and procedures under the
DPA, including security investigations into applicants’
backgrounds. No one with personal knowledge testified that
Firishchak was a member of the UAP or performed the duties
of a Ukrainian Auxiliary policeman in the streets of L’viv
during World War II.
Firishchak testified in his own defense at trial, denying
any service in the UAP. He admitted that the individual
identified in the incriminating documents had the same
name, the same birth date, the same father’s name, and came
from the same village. Firishchak admitted that he resided
in the same town during the war as the individual
identified in the wartime documents. As to his wartime
activities, Firishchak testified that he was homeless
throughout the war and drifted from place to place, hiding
out in coffee shops along the way. He testified that after
leaving his factory job in Germany, he went with little
money and without proper travel documents from town to
town, en route to a town whose name he did not know, to go
to school. He picked up occasional odd jobs along the way.
The government highlighted various inconsistencies in
Firishchak’s story. For example, he stated that he never
slept in the same place and was always on the move, but
later acknowledged that he had an address in L’viv for an
extended period of time.
The district court found the government’s witnesses
credible, but questioned both the substance of Firishchak’s
testimony and his mannerisms on the stand. Taking the
stipulations, the admitted documents, the admitted
depositions, and the live testimony altogether, the
district court ruled against Firishchak on all four counts
of the complaint.
II. DISCUSSION
Firishchak raises a number of issues on appeal. First, he
contends that the wartime documents evidencing his UAP
service were inadmissible. Second, he argues that the
district court abused its discretion by permitting Dr. Pohl
to testify on a subject that was not disclosed in his
pre-trial expert report. Third, Firishchak claims that the
district court should have granted him a continuance
because the government took two de bene esse depositions
after the close of discovery. Fourth, Firishchak challenges
the sufficiency of the evidence against him. Finally, he
argues that he was denied a fair trial.
A. Admissibility of the Wartime Documents
As a threshold matter, Firishchak disputes the
admissibility of the wartime documents, arguing that they
were improperly authenticated as ancient documents or
business records and that they constitute inadmissible
hearsay. This Court reviews a district court’s
determination regarding the admissibility of documents for
an abuse of discretion. Chemetall GMBH v. ZR Energy, Inc.,
320 F.3d 714, 722 (7th Cir. 2003).
Documents are authenticated by evidence “sufficient to
support a finding that the matter in question is what its
proponent claims.” Fed.R.Evid. 901(a); Chemetall, 320 F.3d
at 722. Federal Rule of Evidence 901(b)(8) identifies the
means by which “ancient documents” are authenticated. An
ancient document should be (A) in such condition as to
create no suspicion concerning its authenticity; (B) in a
place where it, if authentic, would likely be; and (C) in
existence twenty years or more at the time it is offered.
Fed.R.Evid. 901(b)(8); United States v. Kairys, 782 F.2d
1374, 1379 (7th Cir. 1986). Whether the documents correctly
identify the defendant goes to their weight and is a matter
for the trier of fact; it is not relevant to the threshold
determination of admissibility. See Kairys, 782 F.2d at
1379 (affirming the admission of wartime document).
In this case, Dr. Pohl, an expert who has done extensive
archival research on the District Galicia, testified that
there was no suspicion regarding the documents’
authenticity and that they were housed in a state regional
archive where one would expect to find such documents. He
also testified regarding the age of the documents, stating
that each document dated from between 1942 and 1944.
Firishchak correctly notes that mere recitation of the
contents of documents does not authenticate them or provide
for their admissibility, United States v. Wittje, 333 F.
Supp. 2d 737, 743 (N.D. Ill. 2004), but Dr. Pohl’s
testimony was more than a mere recitation. Rather, he spoke
of how historians relied on the documents and where they
could be found in addition to their contents. Furthermore,
Firishchak’s identification of his own signature on seven
of the documents suggests that they are authentic.[fn2]
Firishchak particularly questions the authentication of
those documents that lacked specific dates. While it is
true that several of the documents bear no specific date,
their age can be proven by other means. For example, the
appearance of the proffered evidence or even the contents
of the material itself together with the surrounding
circumstances can be used to determine a document’s age. See
Fed.R.Evid. 901(b)(4). In addition, all but one of the
documents contain information — either month and
year or season and year — which permits their age to
be determined. Finally, Firishchak did not cite any
particular characteristics of the documents that raise
doubts regarding their authenticity. Considering Dr. Pohl’s
testimony in addition to the contents, location, and
appearance of the documents themselves, the district court
could reasonably determine the threshold question of the
documents’ authenticity. Therefore, the district court’s
decision to admit the wartime documents was not an abuse of
discretion.
Firishchak also argues that the wartime documents were not
admissible business records. This argument misses the point
because the ancient documents rule and the business records
exception are independent grounds for determining
admissibility. Compare Fed.R.Evid. 803(6) with Fed.R.Evid.
901(b)(8); see also, e.g., George v. Celotex Corp., 914
F.2d 26, 30 (2d Cir. 1990). Because the documents in
question were admissible under the ancient documents rule,
whether they were kept in the ordinary course of UAP
business is irrelevant. Finally, Firishchak’s assertion
that the documents constitute inadmissible hearsay is
without merit. Under Federal Rule of Evidence 803(16),
statements contained in authenticated ancient documents are
not hearsay.
B. Pre-trial Discovery Issues
Firishchak has two complaints regarding the pre-trial
discovery phase. First, he asserts that the government
failed to disclose certain expert testimony in its required
pre-trial report. Second, he believes that the taking of
two de bene esse depositions after the close of discovery
entitled him to a continuance. We review a district court’s
discovery rulings for an abuse of discretion. Sims v. GC
Servs. L.P., 445 F.3d 959, 963 (7th Cir. 2006).
Firishchak contends that the government did not disclose in
its pre-trial expert report that Dr. Pohl would testify
regarding the authenticity of the wartime documents. As a
result, Firishchak argues, any such testimony should have
been excluded as a sanction for violating Federal Rule of
Civil Procedure 26(a)(2)(B), which requires expert reports
to “contain a complete statement of all opinions to be
expressed and the basis and the reasons therefore.”
Firishchak asserts that Dr. Pohl’s report did not disclose
any opinions regarding the authenticity of the wartime
documents. The government, on the other hand, argues that
Firishchak waived this claim because he did not object to
“Dr. Pohl’s qualification as an expert on the UAP and
documents relating thereto, thereby acknowledging Dr.
Pohl’s ability to authenticate UAP documents.” Gov. Br. at
44 (emphasis in original). Even if the claim was not
waived, Firishchak cannot prevail. Dr. Pohl’s 148-page
expert report discussed each historical exhibit that was
subsequently introduced at trial, including its archival
source and locator information. The report also contained
passages about where the historical documents are kept and
how historians rely on them. Therefore, the district court
did not abuse its discretion by permitting Dr. Pohl to
testify regarding the authenticity of the documents.
Firishchak also takes issue with the fact that the
government took two de bene esse depositions in the week
leading up to trial. Pursuant to a court order, all
discovery in the case closed on March 11, 2005 and trial
was scheduled to begin on August 1. According to Firishchak,
on May 11, the government sent notice to the defendant of
its intention to take the de bene esse depositions of Mario
DeCapua and Everett Coe in July — less than 30 days
prior to the trial date. Firishchak then filed a motion for
a continuance, but his motion was denied. The government
took Mario DeCapua’s deposition on July 20 and Everett
Coe’s deposition on July 26.
The record reflects that more than ten weeks before trial,
the government notified Firishchak that it would be taking
videotaped de bene esse depositions of two elderly
witnesses pursuant to Federal Rule of Civil Procedure
32(a)(3)(C), which permits the use of depositions “for any
purpose” if the court finds a witness is unable to attend or
testify because of age. Because the rule permits broad use
of depositions in these circumstances, the court’s decision
not to grant Firishchak a continuance due to a permitted
use was not an abuse of discretion. See United States v.
Egwaoje, 335 F.3d 579, 587-88 (7th Cir. 2003) (noting that
district courts have broad discretion to grant or deny
continuances).
C. Sufficiency of the Evidence
Firishchak next argues that the evidence was insufficient
to support the district court’s findings. Because the right
to acquire American citizenship is a precious one, the
government carries a heavy burden of proof when attempting
to divest a naturalized citizen of his citizenship.
Fedorenko v. United States, 449 U.S. 490, 505 (1981);
Naujalis v. INS, 240 F.3d 642, 646 (7th Cir. 2001). The
evidence justifying revocation of citizenship must be
clear, unequivocal and convincing, not leaving the issue in
doubt. Fedorenko, 449 U.S. at 505. Even though the
government’s burden at trial is heavy, this Court reviews
the trial court’s findings of fact under a deferential
clearly erroneous standard. Spurgin-Dienst v. United
States, 359 F.3d 451, 453 (7th Cir. 2004). We review the
district court’s legal conclusions de novo. Id. In this
case, the district court derived many of its findings of
fact and conclusions of law from pre-trial stipulations.
Ordinarily, stipulations of fact will obviate the need for
appellate review of factual findings. TMF Tool Co. v.
Siebengartner, 899 F.2d 584, 588 (7th Cir. 1990). This Court
will, however, review findings derived from stipulated
facts for clear error. Id. In other words, where the
district court adopts a stipulated fact wholesale, it is
binding on the parties and thus waived, but where the court
makes inferences or derives factual findings from other
stipulated facts, the clear error standard of review
applies.
1. Membership in UAP
As mentioned above, whether Firishchak was a member of the
Ukrainian Auxiliary Police is the linchpin of this case
because he stipulated to nearly all other relevant facts.
Firishchak contends that the government failed to prove his
membership in the UAP by clear and convincing evidence.
Firishchak’s argument relies heavily on two facts: 1) that
he denied UAP membership at all relevant times and 2) that
the government produced no evidence from anyone with
personal knowledge that Firishchak performed the duties of
the UAP. The United States argues that testimony from
people with personal knowledge is unnecessary, and cites
cases in which citizens were denaturalized based on
documentary evidence. See, e.g., United States v. Tittjung,
753 F. Supp. 251 (E.D. Wis. 1990); United States v.
Baumann, 764 F. Supp. 1335 (E.D. Wis. 1991).
Without deciding whether documentary evidence alone is
enough to revoke citizenship, we note that the district
court based its decision on more than the twenty-one
wartime documents. In addition to those documents, the
district court based its findings on Firishchak’s own
testimony and admissions. Firishchak identified seven
signatures from UAP documents as his own, and the district
court’s credibility determination that Firishchak was lying
on the stand permitted it to conclude that the documents
linking Firishchak to UAP service were accurate.
Consequently, the evidence demonstrating Firishchak’s UAP
membership was sufficient to support the trial court’s
factual finding.
2. Count One — Assistance in Persecution
Firishchak next questions the district court’s conclusion
that he assisted in the persecution of civil populations,
which would have rendered him ineligible for a visa under
§ 2(b) of the DPA. Because of numerous pre-trial
stipulations, which he did not mention in his brief,
Firishchak is bound by the facts leading to the trial
court’s conclusion. See, e.g., United States v.
Flores-Sandoval, 94 F.3d 346, 349 (7th Cir. 1996)
(stipulating to conduct waives any claim that a defendant
has not engaged in that conduct); Soo Line R.R. v. St. Louis
Sw. Ry., 125 F.3d 481, 483 (7th Cir. 1997) (stipulations
are binding upon the party making them). Firishchak
stipulated, for one, that the UAP enforced “persecutory
measures against Jews.” Pre-trial Order at 5. He also
stipulated that the UAP assisted in checking the
identification of Jews and arresting them for violating
various rules. Id. In fact, Firishchak specifically
stipulated that if he performed the routine duties of a
Ukrainian Auxiliary policeman, he assisted in the
persecution of civil populations.
Although we are not bound by stipulations to legal
conclusions, Saviano v. Comm’r of Internal Revenue, 765
F.2d 643, 645 (7th Cir. 1985), in determining whether
conduct amounted to assistance in persecution, the district
court’s application of the law to the facts of the case is
reviewed deferentially. See United States v. Mankiewicz, 122
F.3d 399, 403 n. 1 (7th Cir. 1997). The district court
relied on the pre-trial stipulations and Dr. Pohl’s
testimony regarding the role of the UAP in the District
Galicia to conclude that Firishchak assisted in
persecution. This conclusion was within the court’s
discretion since it had already found that Firishchak was a
member of the UAP and that finding was not erroneous.
Firishchak also claims that the DPA requires evidence that
he committed a particular atrocity or persecutory act in
order to render him ineligible for a visa. However,
personal involvement in atrocities need not be proven. See,
e.g., Fedorenko, 449 U.S. at 510 n. 32; United States v.
Ciurinskas, 148 F.3d 729, 734 (7th Cir. 1998). Firishchak’s
attempt to distinguish these cases by pointing out
immaterial factual differences is unconvincing. Moreover,
his own pre-trial stipulations waive any argument that
specific acts need to be proven. NLRB v. P*I*E Nationwide,
Inc., 894 F.2d 887, 892 (7th Cir. 1990) (noting that a
party’s stipulation can waive legal arguments).
3. Count Two — Service in a Movement Hostile to the
U.S.
Firishchak next contends that the government failed to
prove that he served in a movement hostile to the United
States, which would render him ineligible for a visa under
§ 13 of the DPA. Again, Firishchak stipulated to
this legal conclusion, so he waived the issue. P*I*E
Nationwide, 894 F.2d at 892. Even if the argument had not
been waived, courts considering the issue have held that
service in a Nazi-sponsored police unit constitutes
membership in a hostile movement under the DPA. United
States v. Kowalchuk, 773 F.2d 488 (3d Cir. 1985) (holding
that UAP service amounts to membership in a hostile
movement); United States v. Koziy, 540 F. Supp. 25, 34
(S.D. Fla. 1982) (same); United States v. Osidach, 513 F.
Supp. 51 (E.D. Pa. 1981) (same).
Firishchak relies on United States v. Kwoczak, 210 F. Supp.
2d 638, 652-53 (E.D. Pa. 2002), to argue that his UAP
membership did not disqualify him under the DPA because the
UAP was not named in a list of organizations considered
hostile under the DPA (the “Inimical List”). Although
Kwoczak initially held that ineligibility under § 13
of the DPA was limited to members of groups on the Inimical
List, the court issued an amended opinion holding that
inclusion on the list was not a prerequisite to
disqualification. United States v. Kwoczak, No. Civ.A.
97-5632, 2002 WL 32137688, at *2-3 (E.D. Pa. 2002).
Moreover, Mario DeCapua, former head of the Displaced
Persons Commission Security Investigations Division,
testified that the Inimical List was not exhaustive, and
membership in an organization that did not appear on the
list could be disqualifying under the DPA, depending on the
nature of the group’s activities. Given the trial court’s
findings regarding the activities of the UAP, its
conclusion that Firishchak participated in an organization
hostile to the United States was proper.
4. Count Three — Misrepresentation of Material Facts
Firishchak next argues that the government failed to prove
that he willfully misrepresented material facts in order to
gain admission into the United States. Such
misrepresentations would render him ineligible for
admission under § 10 of the DPA. Again, this argument
was waived. P*I*E Nationwide, 894 F.2d at 892. The parties
stipulated that Firishchak’s wartime activities, including
his alleged membership in the UAP, were material facts, and
the trial court agreed. A misrepresentation is material
under the DPA if it has a natural tendency to affect the
decision of the Displaced Persons Commission regarding visa
eligibility. See Kungys v. United States, 485 U.S. 759, 770
(1988).
Even if this argument were not waived, Firishchak could not
prevail. In his visa application, Firishchak told
immigration officials that he was a laborer for a Ukrainian
cooperative in L’viv from December 1941 to April 1944.
However, the trial court found that he was serving in the
UAP during this time. This inconsistency demonstrates that
Firishchak misrepresented his wartime activities, and the
truth would have influenced his visa eligibility. Though
Firishchak suggests that UAP service is not a material
fact, two trial witnesses testified to the contrary. First,
Everett Coe, the vice consul who processed Firishchak’s
visa application, stated that he would not have issued
Firishchak a visa had Firishchak truthfully disclosed his
wartime activities. Second, Mario DeCapua testified that
the Commission routinely rejected the applications of
persons known to have served in Nazi-directed police forces.
Given these facts, the district court properly concluded
that Firishchak made material misrepresentations during the
visa application process.
5. Count Four — Conduct Contrary to Human Decency
Finally, Firishchak contends that the government failed to
prove that he advocated or acquiesced in activities or
conduct contrary to civilization and human decency on
behalf of the Axis countries during WWII. Such conduct
would have rendered him ineligible for a visa under state
department regulations at the time of his application. 22
C.F.R. § 53.33(j) (1949). Again, this argument is
subject to the same waiver analysis, given that Firishchak
stipulated that UAP service constituted conduct contrary to
civilization and human decency. P*I*E Nationwide, 894 F.2d
at 892. Further, given the facts established at trial, the
district court properly concluded that Firishchak’s UAP
service constituted conduct contrary to human decency.
D. Fair Trial Claim
Firishchak also claims that he was denied a fair trial.
Firishchak describes the judge’s comments on his demeanor
and mannerisms as completely unprofessional. The district
court opinion stated that “Firishchak’s demeanor and
mannerisms clearly showed that he was lying under oath on
the stand,” and the judge described Firishchak’s “shameless
attempt to excuse himself from an inexcusable act” as
“cowardly.” Firishchak, 426 F. Supp. 2d at 784. Although
the district court’s language may appear stern, the
government correctly states that “it is the job of any
factfinder to assess a witnesses’ credibility.” Gov. Br. at
49 (emphasis in original); see Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 575 (1985).
Firishchak continues with what the government labels “a
hodgepodge of unsupported accusations and grievances,” Gov.
Br. at 49, but fails to cite any authority for his
complaints. He complains that he did not receive a jury
trial, he could not substitute a new judge, and his case
was assigned to “a career government attorney with
experience only in representing the government.” Firishchak
Br. at 50-51. Additionally, he argues that his trial was
unfair because the trial judge reminded the government to
admit its exhibits into evidence. Id.
Firishchak’s independent “fair trial” claims were not
preserved because he did not raise these issues at trial.
United States v. Walker, 9 F.3d 1245, 1249 (7th Cir. 1993).
As a result, this Court can only reverse if the district
court committed plain error. Id. A plain error is one that
is so obvious, crucial, and egregious that we should correct
it despite the absence of an objection below. See
Backwater, Inc. v. Penn-American Ins. Co., 448 F.3d 962,
965 (7th Cir. 2006). Although it is unclear whether plain
error review is available in appeals from denaturalization
trials, we decline to decide this issue, because the result
is the same if forfeiture precludes review altogether or if
the decision below is reviewed for plain error. Assuming,
arguendo, that plain error review applies, Firishchak has
not established that any of his unsubstantiated grievances
amount to a showing of plain error. Because
denaturalization proceedings are considered equitable rather
than criminal, defendants in those proceedings are entitled
to neither a jury trial nor a substitution of judge.
Moreover, like all cases in the district court,
Firishchak’s case was randomly assigned to a judge who is
duty-bound to act impartially, and Firishchak has offered no
evidence that the district judge neglected that duty. As a
result, Firishchak’s claim that he was denied a fair trial
cannot succeed.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
[fn1] During a sworn interview in 2003, Firishchak was shown
a page with eight Ukrainian-language Cyrillic signatures
taken from various exhibits, and he identified seven of
them as his own. At the time he identified the signatures,
he did not know that they came from documents related to
the UAP. Later, he claimed he did not understand the
question he was being asked when he identified the
signatures as his own.
[fn2] The government correctly asserts that many of the
documents in question qualified as either
self-authenticating foreign public documents or admissible
certified copies. See Fed.R.Evid. 902(3); Fed.R.Evid.
902(4). Firishchak did not object to these grounds for
admissibility.