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When the government sets out to strip a suspected Nazi of his United States citizenship, it doesn’t need to prove “personal participation in atrocities,” but instead can win its case simply by proving that the man was an armed guard at a concentration camp and therefore “assisted in persecution,” a federal appeals court ruled. The ruling by a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals in United States v. Szehinskyj upholds a July 2000 decision by U.S. District Judge Stewart Dalzell, in the Eastern District of Pennsylvania. At trial, Theodor Szehinskyj, 77, of Delaware County, Pa., insisted that he had never worked at concentration camps, but instead had worked as an indentured servant on a farm in Austria for most of the war. He said he left the farm in 1945 and spent several months as a refugee before he was hired to work in an American camp. But Szehinskyj’s alibi fell apart during the trial when prosecutors presented testimony from an 88-year-old Austrian woman, Hildegarde Lechner, who said that Szehinskyj had left her farm in late 1942. Prosecutors also presented six documents that showed Szehinskyj worked at several concentration camps soon after leaving Lechner’s farm. Szehinskyj’s lawyer, Andre Michniak, argued that the Justice Department’s evidence was lacking since there were no eyewitnesses who placed Szehinskyj at the camps. But Dalzell found that the paper evidence was more trustworthy than any human witness. “The six Nazi wartime documents that mention Szehinskyj are clear, unequivocal and convincing evidence that he assisted in persecution [of concentration camp prisoners],” Dalzell wrote. “They are perhaps the most reliable evidence possible, since they, unlike memories, have not faded with time.” On appeal, Szehinskyj argued that the evidence against him was insufficient to show he worked at the camps. But even if he had, Szehinskyj insisted that proof of mere employment as a guard was not enough to show that he made misrepresentations when seeking a visa as a “displaced person” in 1950. Circuit Judge Maryanne Trump Barry rejected Szehinskyj’s reading of the law. “Whether or not Szehinskyj made, and the government proved, a material misrepresentation is irrelevant, for no such proof is required by the plain language of … the Displaced Persons Act,” Barry wrote. “The assistance in persecution ground for visa ineligibility is an independent ground that does not include a fraud element; once a determination of ineligibility is made on this ground, there is no need to look for and find a material misrepresentation,” Barry wrote in an opinion joined by Chief Circuit Judge Edward R. Becker and Circuit Judge Samuel A. Alito. Barry found that Szehinskyj’s legal position had shifted on appeal. At trial before Dalzell, she said, “his story was that he was never a guard at a concentration camp or a member of the SS.” On appeal, she said, Szehinskyj retreated from his flat denial of working in the camps and instead said that the government’s documents were not enough to clearly and convincingly show that he assisted in persecution. And at oral argument, Barry said, there was yet another subtle change in Szehinskyj’s position when his lawyer argued that even if Szehinskyj was a concentration camp guard at the Gross-Rosen, Sachenhausen and Warsaw concentration camps and a guard in a prisoner transport from Sachsenhausen to the concentration camp at Mauthausen, there was no evidence that he was an “armed” guard. Barry found that the “remarkable consistency” of the information in the government’s documents — each identifying Szehinskyj by name, date and place of birth, religion, and mother’s first and maiden names — made it “unlikely in the extreme that the documents referred to a different Theodor Szehinskyj.” She also found that Dalzell correctly concluded that Szehinskyj must have been armed on the basis of testimony from Dr. Charles Sydnor, a respected Holocaust scholar, who explained that concentration camp guards were always armed and under strict orders to shoot to kill any prisoner who attempted to escape.

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