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UNITED STATES v. HUTYRCZYK

October 2, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
SERGIS HUTYRCZYK, Defendant.



The opinion of the court was delivered by: HAROLD A. ACKERMAN

 Ackerman, D.J.

 In this matter, the United States ("the Government") is attempting to denaturalize defendant Sergis Hutyrczyk ("Hutyrczyk"), because his naturalization allegedly was procured in violation of the Displaced Persons Act. While the Government brought several counts against Hutyrczyk, it seeks with this motion summary judgment on Count I only. That Count alleges that since Hutyrczyk assisted in the enemy's persecution of civilians during World War II, his naturalization was illegally procured and must be revoked.

 After carefully reviewing the entire record in this case, as well as the oral arguments of July 27, 1992, and after recognizing and reflecting on the grave nature of the act of denaturalization, I nonetheless have concluded that as a matter of law, the Government is entitled to summary judgment on Count I of its Complaint.

 I. Standard of Review for Summary Judgment

 Summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Todaro v. Bowman, 872 F.2d 43, 46 (3rd Cir. 1989); Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3rd Cir.), cert. dism'd, 483 U.S. 1052 (1987). Put differently, "summary judgment may be granted if the movant shows that there exists no genuine issues of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hospital, 843 F.2d 139, 143 (3rd Cir. 1988), cert. denied, 488 U.S. 870 (1988). An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48 (1986). A fact is material if it influences the outcome under the governing law. Id. at 248.

 Within the framework set out above, the moving party essentially bears two burdens: First, there is the burden of production, of making a prima facie showing that it is entitled to summary judgment. This burden may be met either by demonstrating there is no genuine issue of fact and that as a matter of law, the moving party must prevail or by demonstrating the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Once either showing is made, this burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Second, there is the burden of persuasion. This burden is a stringent one which always remains with the moving party. If there remains any doubt as to whether a trial is necessary, summary judgment should not be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61 (1970); Advisory Committee's Notes on Fed. Rule of Civ. Pro. 56(e), 1963 Amendment; see generally C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727 (2nd ed. 1983).

 In light of this standard, the following factual chronology is taken from defendant's own testimony and the undisputed and uncontradicted statements of others.

 Sergis Hutyrczyk was born on March 3, 1924 *fn1" in Ucios, a village in Poland that later became known as Byelorussia and now is part of the Republic of Belarus. In about June 1941, the area was invaded by Germany. That same month, Mayor Hunko of Ucios conscripted five young men, including Hutyrczyk, to form a self-defense unit for the Borough. *fn2" The group wore civilian clothes and patrolled the village at night. *fn3"

 After serving in two other posts, defendant and thirteen other men were chosen at random and taken to an estate at Koldyczewo in June or July of 1942. *fn4" This proceeding revolves around the state of the camp and Hutyrczyk's role at the camp *fn5" during the time period that he served there.

 A. The Camp at Koldyczewo

 The camp at Koldyczewo was started by the Germans in early-to-mid 1942 *fn6" to serve, as a forced labor site and later, an execution site and concentration camp. *fn7" About two weeks after defendant's arrival at the camp, about 100 Jews were sent to the camp by the Germans, *fn8" ostensibly to perform such professional tasks as tailoring and shoemaking. The Jews were visibly identifiable and distinguishable from other prisoners because they wore a yellow Star of David on their clothing *fn9" and were housed in separate barracks -- a barn. *fn10" According to the uncontradicted and undisputed testimony of another guard at the camp, there was no floor in the barn -- only dirt -- and at night the barn was locked and the prisoners were not allowed to leave. *fn11" At night, guards patrolled the perimeter of the camp to guard against partisan attacks and to ensure that no prisoner, including the Jews, left the camp. *fn12" During the day, Jews were generally not allowed to leave the camp to go to the nearby village. Occasionally, however, they could obtain a special permit to go to the village to buy food. *fn13" Food rations were meager, *fn14" labor was forced, *fn15" and lengthy. *fn16" The Jews were, in every sense of the description, prisoners *fn17" solely because of their religion. *fn18"

 B. Hutyrczyk's duties at the Camp

 As part of their effort to implement the "Final Solution," the Germans depended on assistance from the local populations that they occupied. *fn19" For instance, the camp at Koldyczewo was run by local Byelorussians. *fn20"

 During June or July of 1942, Hutyrczyk was one of 14 Byelorussian men taken by the Germans to Koldyczewo to serve in various functions. *fn21" While he claims to have been unaware of any German control of the camp, his deposition transcript indicates the opposite. *fn22" The persons in charge of the camp were Byelorussians named Levusz and Bobko, the latter being known for his cruelty. *fn23" While stationed at Koldyczewo, Hutyrczyk wore a uniform *fn24" and carried a rifle. *fn25" He was paid for his work and on occassion allowed to leave the camp. *fn26"

 Hutyrczyk's duties were twofold. First, it was his responsibility to train recruits. *fn27" Periodically, a group of Byelorussian recruits would arrive at the camp for three to four week stints of training, which defendant and other guards *fn28" supervised. After training was completed, the newly trained regiment would be sent to Minsk, to serve in Byelorussian battalions set up by the Germans. *fn29"

 Along with training the recruits, Hutyrczyk also served as a guard. He would guard the perimeter of the camp at night until 8:00 in the morning, see Hutyrczyk Deposition at 77. His duties involved guarding against partisan attacks as well as enforcing a curfew that was in effect after 8:00 in the evening. If, while defendant was patrolling the perimeter of the camp at night, he saw someone attempting to leave the camp, he was to "stop the person and ask, request what to do, and on. A little bit investigate." Hutyrczyk Deposition at 81. His duties after stopping someone can best be understood by quoting from his deposition transcript:

 Q: So if one of the Jews was trying to leave, and you would stop them and say what are you doing, where are you going?

 A: Yes. If I am in duty, on the perimeter, I must stop them because you don't know who is who.

 Q: Then after you investigated, what were you supposed to do?

 A: But this is not happens.

 Q: This did not happen?

 A: Did not happen. Because curfew is curfew, nobody want to break up the law. This is war time. If you break ...


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