The opinion of the court was delivered by: JOHNSON
Pursuant to Section 235(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1225(a), as amended, the United States seeks to enforce an administrative subpoena issued by the Director of the Office of Special Investigations (the "OSI").
The subpoena was issued in conjunction with the OSI's civil investigation into Aloyzas Balsys's ("Respondent" or "Balsys") immigration and entry into the United States.
Aloyzas Balsys is a resident alien presently living in Woodhaven, New York. He was born on February 6, 1913 in Ansieniai, Plateliai Province, Lithuania and entered the United States on June 30, 1961 pursuant to Section 221 of the Immigration and Naturalization Act. In connection with his application to enter the United States, Balsys swore that the information contained in his application for Immigrant Visa and Alien Registration was true.
The OSI contends that Balsys lied in his immigration application about his activities during World War II.
Specifically, the OSI claims to have information and evidence that Balsys assisted the Nazi forces then occupying Lithuania, and that he participated in the persecution of persons because of their race, religion, and/or political opinion. If this information had been available to the government when Balsys applied for entry into the United States, his application would most likely have been denied. Now that Respondent is in the United States, this information, if true, would likely subject him to deportation.
In furtherance of its investigation into Balsys' wartime activities, the OSI issued an administrative subpoena commanding him to give testimony and to produce documents relating to his immigration to the United States, and to his activities in Europe between 1940 and 1945. In response, Balsys appeared at a deposition, and, after providing his name and address, asserted a Fifth Amendment privilege as to all other questions. He also refused to produce the documents described in the subpoena, with the exception of his alien registration card.
Balsys contends that he is entitled to the protection afforded by the Fifth Amendment based on his fear that answering the government's questions could subject him to prosecution by the governments of Lithuania, Germany and Israel. The United States challenges Balsys's assertion of the Fifth Amendment privilege on three grounds: (1) that Balsys has not demonstrated a real and substantial fear of foreign prosecution; (2) that, even if Balsys had shown a real fear of prosecution abroad, the Fifth Amendment privilege is not applicable when a claimant fears prosecution on the part of a foreign government; and (3) waiver.
For the reasons set forth below, this Court concludes that Balsys does in fact face a real and substantial danger of foreign prosecution. The Court also finds that, under the facts of the present case, the Fifth Amendment privilege does not provide protection against fear of incrimination under foreign law. Even if the Fifth Amendment were applicable to Balsys, this Court finds that his representations to the immigration authorities in 1961 constituted a waiver of those rights.
I. The Fifth Amendment Privilege
The Fifth Amendment to the United States Constitution provides that "no person . . . shall be compelled in any criminal case to be a witness against himself . . . ." This privilege against self-incrimination "not only extends to answers that would in themselves support a conviction under a . . . criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a . . . crime." Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 71 S. Ct. 814 (1951).
The privilege protects both witnesses and defendants in any proceeding, whether civil or criminal. Kastigar v. United States, 406 U.S. 441, 444-45, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). The witness may invoke the privilege, however, only if he "has reasonable cause to apprehend danger from a direct answer." Hoffman, 341 U.S. at 486. A reasonable fear is one based on a prospect of penal liability that is "real and substantial" and not merely speculative. Zicarelli v. New Jersey Investigation Commission, 406 U.S. 472, 478, 32 L. Ed. 2d 234, 92 S. Ct. 1670 (1972). See also Marchetti v. United States, 390 U.S. 39, 53, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968) ("The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination.").
The Fifth Amendment privilege against self-incrimination is available to resident aliens as well as to American citizens. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 & n. 5, 97 L. Ed. 576, 73 S. Ct. 472 (1953).
Balsys has no reason to fear domestic prosecution in this case,
and indeed he has not alleged any such fear. Rather, he charges that forcing him to testify regarding his activities during World War II and his immigration to the United States could subject him to prosecution by the governments of Lithuania, Germany and Israel. Thus, the issue before the Court is whether Balsys can avoid complying with the OSI subpoena by asserting the Fifth Amendment privilege against self-incrimination based on a fear of foreign prosecution.
II. Fear of Foreign Prosecution
To date, neither the Supreme Court nor the Second Circuit has decided the question of whether the Fifth Amendment privilege against self-incrimination can be asserted on the grounds of fear of foreign prosecution. In Zicarelli v. New Jersey Investigation Commission, 406 U.S. 472, 32 L. Ed. 2d 234, 92 S. Ct. 1670 (1972), the Supreme Court granted certiorari to consider this question but then determined that it was unnecessary because Zicarelli's fear of being prosecuted by a foreign court was remote and speculative. Id. at 478.
The court held that, assuming a fear of foreign prosecution is within the scope of the privilege, a witness can assert the privilege only after establishing that the information sought would tend to incriminate him under foreign law and pose a substantial risk of foreign prosecution. Id. at 480-81.
A. Real and Substantial Fear
In In re Grand Jury Subpoena of Flanagan, 691 F.2d 116, 121 (2d Cir. 1982), the Second Circuit identified a number of factors that bear on whether the witness's fear of foreign prosecution is real or imaginary. In making this determination, the Court should "focus on questions such as whether there is an existing or potential foreign prosecution of him; what foreign charges could be filed against him; whether prosecution of them would be initiated or furthered by his testimony; whether any such charges would entitle the foreign jurisdiction to have him extradited from the United States; and whether there is a likelihood that his testimony given here would be disclosed to the foreign government." Id.
In 1992, Lithuania adopted a statute punishing Nazis and Nazi collaborators for crimes committed against the Lithuanian people during World War II.
The statute provides for punishments ranging from five years imprisonment to death. Law Concerning Responsibility for Genocide of the People of Lithuania, No. 1-2477, Article 1 (1992) (Lithuania) as translated in Appendix to Respondent's Memorandum at Tab 7. The law is retroactive, and there is no statute of limitations for prosecution of these crimes. Id.
In 1992, Lithuania also formed a commission to investigate crimes of genocide committed against the Lithuanian people during World War II when the country was under occupation by Germany and the Soviet Union. Resolution In re The Application of the Law "Concerning Responsibility for Genocide of the People of Lithuania," No. 1-2478 (1992) (Lithuania), as translated in Appendix to Respondent's Memorandum at Tab 7. In creating this commission, the Supreme Council of Lithuania resolved to enter into agreements with the United States, Israel and other states for judicial assistance in cases involving the investigation of crimes of genocide." Id. ...