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Shofar FTP Archive File: people/d/demjanjuk.john/circuit-court/appeal-order.apdx-07


Newsgroups: alt.revisionism
Subject: Demjanjuk Case - U.S. Court of Appeals (17 of 17)
Followup-To: alt.revisionism
Organization: The Nizkor Project http://www.nizkor.org
Keywords: Sobibor,Treblinka,Demjanjuk

   APPENDIX 7

UNITED STATES GOVERNMENT

Memorandum

To: Walter J. Rockler and Allan A. Ryan, Jr.

Director Deputy Director, Litigation

DATE: February 28, 1980

146-2-47-43 SI

FROM: George Parker

Trial Attorney

SUBJECT: Demjanjuk Memo

I am usually  [**103]   reluctant to reduce to writing that
which I have written in the attached memo. I was convinced,
however, that it was imperative to focus your attention on
the issues that have arisen in handling this case which now
necessitate a resolution. The memo obviously needs to be
discussed. I am perfectly willing to wait until Norman and
John return from Europe and are able to join the discussion.
I nonetheless urge you to read this before they return and
be prepared to make a decision shortly after they return. I
anticipate the judge will set this case for a final pre-
trial as early as March 15, 1980.

Memorandum

TO: Walter J. Rockler and Allan A. Ryan, Jr.

Director Deputy Director, Litigation

DATE: February 28, 1980

146-2-47-43 SI

FROM: George Parker

Trial Attorney

SUBJECT: Demjanjuk--A Reappraisal

Background


In 1977, the U.S. Attorney's office in Cleveland, Ohio filed
a denaturalization suit alleging in essence that the
defendant should be stripped of his citizenship because he
had lacked the requisite good moral character for
citizenship on account of his status and actions as a guard
at the Treblinka extermination camp. No mention was made in
the pleadings of Sobibor  [**104]
or the Trawniki Training Camp.

The complaint was filed on the basis of witness statements
received from the Israeli police. The statements were
credible inasmuch as these same individuals had identified
the photograph of Fedorenko as a guard at Treblinka and
Fedorenko subsequently admitted he had been a guard.
Moreover, any serious doubt as to the witnesses sincerity
was assuaged by the circumstance that the INS officials had
advised the Israelis that Demjanjuk was thought to have been
as [sic] Sobibor. When the first two Treblinka survivors who
identified Demjanjuk's photo as a guard at Treblinka were
informed by the Israeli investigator that it was believed
that the man was at Sobibor, the witnesses insisted that
this man had been at Treblinka between 1942-1943.

So at the time of filing, the only indication the government
possessed that Demjanjuk was at Sobibor was a brief
reference in a book written by Michael Hanusiak called Lest
We Forget. It recited that a man named Danilchenko met
Demjanjuk as a guard at Sobibor in the spring of 1943, and
that subsequently he, along with Demjanjuk was transferred
to Flossenburg where they guarded political prisoners.
Despite a specific request  [**105]   to the Soviets for
information pertaining to Demjanjuk, none was forthcoming.

Demjanjuk at Sobibor -- Evidence Developed

The initial allegation against Demjanjuk by Hanusiak
included reference to a document--a card issued at the
Trawniki Training Camp bearing a photograph similar to that
of Demjanjuk and biographical information identical to that
of the defendant's. John Horrigan set out to secure a copy
of it. He succeeded in securing a photocopy from private
sources. Still we needed a copy from official sources.

In August 1979, Norman Moscowitz prepared a request for the
card, a statement from  Danilchenko and any other witnesses.
In January 1980 we received a certified copy of the card
from the Soviets plus statments [sic] from Danilchenko and
two other guards at Sobibor. The card is identical to that
which Horrigan had previously received and which had been
published in Hanusiak's book. The card states that Demjanjuk
was assigned to Sobibor in the spring of 1943. (Attachment
A)

The statement of Danilchenko is consistent with and
elaborates upon the information attributed to him by
Hanusiak. (Attachment B) He identifies him by name and
photo. Most significant, perhaps, is  [**106] Danilchenko's
assertion that at Flossenberg [sic] all the Ukrainian guards
were tattooed on their left arm above the elbow with their
blood type. Also noteworthy is
Danilchenko's claim that Demjanjuk stood taller than six
feet.

Demjanjuk has continuously denied being at either
extermination camp. Nevertheless, information he has
supplied renders this denial dubious when read in the
context of this case. First, in his Application for
Assistance from the IRO in 1948, he stated that he had been
a farmer at Sobibor from 1937 to 1943. (We received this
form within the last 8 months.) Second, at his deposition
taken on February 20, 1980, he admitted that he had been
tattooed by the Germans
on his left arm, above his elbow, with his blood type.

 The Soviet Union and Poland have each investigated the
crimes committed at Treblinka. Each has compiled lists of
Ukrainian guards known to have worked at Treblinka. The two
Ukrainians who incessantly worked at the gas chambers were
well known (Fedorenko refers to them by first names in his
statement to INS officials in February 1976). Given these
circumstances it is disturbing, as Norman Moscowitz has
pointed out repeatedly, that Demjanjuk's name  [**107]
does not appear on either list.

Admissible Accusatory Evidence

If this case were to be tried in April 1980, we can
reasonably expect to present the following evidence to prove
that Demjanjuk was trained as a guard by the Germans: (1) He
was a Russian soldier attached to the artillery, who
received a back injury and was captured by the Germans at a
battle at Kerch on the Crimea in either November 1941 or May
1942. (2) He was placed in two successive POW camps, Povno
and Chelm where living conditions were horrible and from
which the Germans selected POW's with mechanical skills and
inoffensive political backgrounds to  train as camp guards.
(3) He was at Trawniki as indicated by the card received by
the Soviets.

At Trawniki the Germans trained Ukrainian POW's to be ghetto
and extermination camp guards. The POWs did not knowingly
volunter [sic] for either the training camp nor their
ultimate camp assignments. The signatures of the German
officials, Teufel and Streibel, whose names appear on the
cards will be authenticted [sic] by Schaefer, a
volkdeutsche, who worked at the camp.

Unfortunately, Schaefer cannot say he has ever seen this
type of card.  Consequently, the judge may   [**108]   not
even admit the card into evidence, but he probably will. But
since we cannot trace its history for the last 38 years, we
cannot expect the court to extend too much weight to the
card.

We can reasonable [sic] expect to present the following
direct evidence that Demjanjuk was at Sobibor: The Trawniki
card which is fraught with problems described above.
Danilchenko's statement is obviously hearsay and is in all
probability not even a literal statement. Demjanjuk's
testimony that his blood type was marked on his arm is of
little significance without the admission of Danilchenko's
testimony.

Finally, we can reasonably expect to present the following
evidence that Demjanjuk was at Treblinka: (1) the testimony
of two or three Israeli's and one German, each of whom was
initially interviewed by the Israeli Police. Each will
identify the defendant as Ivan the Ukrainian who worked at
the gas chambers and brutally beat Jews solely on the basis
of the defendant's visa photograph taken in 1952. They will
state that the photograph bears a striking resemblance to
Ivan -- that like the photo he had protruding ears, short
receding hairline, full face, broad shoulders and stood
about 175 cm. (5'8").   [**109]

The three Israeli witnesses are unwilling to say with
absolute certainty that the photo is of Ivan. These three
individuals also identified Fedorenko and two of them
testified at his trial. (2) The testimony of Otto Horn, a
German officer who worked near the gas chambers, who like
the Israelis can identify Demjanjuk only by his photographs.
(3) The testimony of one American
survivor whose identification is also based on photos, and
whose statement is considerable
[sic] weaker than those of the others. (4) Possibly, the
testimony of a survivor living outside the U.S. and Israel
who was initially interviewed by American consulate
officials. (Now being done)

Flaws with Treblinka Evidence

The reliability of the Treblinka evidence is flawed by the
following: (1) Its premised exclusively on the basis of
photographs which may at best closely resemble the facial
features of man witnesses knew. Survivors are more likely to
recognize the photograph taken in 1952 than that taken in
1942 at Trawniki as man they knew at Treblinka. (2) Several
Treblinka survivors, including SS officer Suchomil, insist
that Ivan rarely if ever left the camp.

Indeed, Suchomil insists that Ivan was at the   [**110] camp
continuously from July 1942 until November 1943, at which
time he departed along with Kurt Franz, Suchomil and others
for Trieste, for the purpose of establishing other camps.
(3) The witnesses fairly consistently, with the exception of
Franz, say that Ivan was one of the taller Ukrainians, about
175 cm. whereas Demjanjuk is now and was at the time he
applied to enter the U.S. closer to 6'1". (4) The
conflicting Sobibor, Flossenburg, and Regensburg statement
from Danilchenko which cannot be reconciled with information
supplied by Suchomil and others.

Strategic Options; Ethical Responsibilities

We have little admissible evidence that defendant was at
Sobibor yet serious doubts as to whether he was at
Treblinka. Even if we may be comforted that we may have the
right man for the wrong act, the ethical cannons [sic]
probably require us to alter our present position. I will
now discuss several options theoretically available to us
and my recommendation with respect to each.

   A. Maintain Status Quo. Proceed with the Treblinka case
as presently plead. Positive factors: (a) the trial is
likely to be scheduled within the next 100 days so it's to
[sic] late to ask to change our  [**111]   pleadings. (b)
Any attempt to change our pledings [sic] would appear to be
a sign of weakenss [sic] or indecisiveness. (c) We believe
our witnesses to be sincere in their  identification and
will be credible witnesses, and (d) even if he was at
Sobibor there is some possibility he was also at Treblinka
or that he was committing offensive acts at Sobibor.
Negative
Factors: (a) We have good reason to believe he was at
Sobibor and as such could not have been at Treblinka. (b)
Canon 7-103, and Ethical Consideration EC 7-13,14 of the ABA
Code of Professional Responsibility cautions against a
public prosecutor going forward in a criminal
cause with a case with which he has serious doubts.

Although this is not a a [sic] criminal case per se, I think
the deprivation the defendant will suffer if he loses
requires us to follow this stricture of the code. If this
canon does, in fact, apply, then I must, based upon my
knowledge of this case, strongly recommend against this
first option.

   B. Amend to Strike Treblinka and Supplement Trawniki and
Sobibor We submit an extensive alteration to our pleadings.
Although this amendment may most closely parallel what we
now believe to be the truth,   [**112]   I consider it
tactically suicidal. The positive factors are: (a) we
believe he was at Sobibor and assisted directly in the
persecution of civilians as is reflected in
Danilchenko's statement recently received along with two
other Soviets who were guards and recall Demjanjuk by name.
Their statements dovetail with the Trawniki card and are
circumstantially supported by Demjanjuk's assertion to the
IRO that he was at Sobibor from 1937 to 1943 and that he was
tattooed by the Germans.

The negative factors are: (a) the case is reduced to the
weight the court will give the Trawniki card. Since the card
is primarily a supply card issued to a trainee at Trawniki
and only incidentally refers to Sobibor, we cannot
reasonably expect the Court to find him culpable of any more
that [sic] being a trainee of the Germans by no volitional
act of his, and his subsequent failure to report this
training to screening officials. I consider this option to
be a strategic blunder. Legally and ethically, our viable
choices (assuming my analysis of my ethical responsibilities
is correct) are reduced to the following two.

   C. Dismiss the Case--at Least Temporarily. If we don't
believe he was at Treblinka and  [**113]   lack the evidence
at the present time to prove that he was at Sobibor as a
guard, then dismiss it--at least until the Soviets make
Danilchenko available. The negative factors are largely
political [sic] and obviously considerable, and it should be
remembered that the judge may not permit us to dismiss in
such a fashion that allows us the possibility to refile
against him at a later time alleging his involvement in
Sobibor. Finally, we do believe that he was a guard at
Sobibor and may therefore lose opportunity to proceed
against him entirely.

   D. Amend Pleadings--Add Sobibor and Trawniki to Treblinka
Allegations. Move to amend pleadings to give defendant
notice that we now allege that he was at Sobibor as of the
spring of 1943 and previously received training as a camp
guard. At trial our focus will be substantially altered from
that of showing he was the operator of the gas chambers who
commited [sic]
heinous acts. We will instead focus on the fact that he was
a Russian POW who was trained by the Germans as a guard and
that he was a guard at an extermination camp. We will not
employ survivors of Treblinka to describe in excruciating
detail what bestial acts he commited [sic] as  [**114]
Ivan the Terrible.

Instead we will simply employ one or two witnesses
(preferably non-Israelis) to testify that they saw him at
Treblinka as a guard, the Trawniki card to prove that he was
at Trawniki and Sobibor. Since we will have no way to
account for what he did at Sobibor, we will focus on the
fact that he was a guard and if he had disclosed it to
either a displaced persons official or a vise [sic] consul
he would have been rejected without resort to further
investigation. The positive factors are: (a)

This approach focuses on what we believe to be true (that he
was an extermination camp guard), and deletes that which we
have reason to think untrue (that he was Ivan the Terrible
who worked the gas chambers at Treblinka), and speaks to
that which is legally sufficient (he lacked the good moral
character to be an American citizen because he illegally
entered the country, because he gave false testimony to the
vice consul as to his activities and if he had disclosed
them, he would have been rejected. (b) It keeps us in the
case against an individual we reasonably believe would not
have been allowed to enter the country if he had disclosed
the truth.

The negative factors are: (a)   [**115]   so long as we
cannot prove with clear and convincing evidence that he was
at Sobibor, and do not believe the [sic] he was at
Treblinka, option D is simply a ruse to avoid the ethical
problems which beset option A, even if we do not identify
him as Ivan the Terrible at Treblinka. (b) He disclosed to
all officials that he was at Sobibor, and he was not
required nor specifically asked what his activities were at
Sobibor at the visa issuing stage. The pleadings at present
state only that he failed to disclose to the vice consul his
activities as a guard.

Opinion

To date, I have opposed arguments that we amend the
pleadings to include references to Sobibor or Trawniki.
Further, I had believed until recently that the Department
would not seriously consider dismissal of the case in its
present posture despite our gnawing doubts as to its
veracity. I am now in favor of performing radical surgery on
the approach we take in handling this case. I believe that
we must decide no later than one week after Norman and John
return from Europe what course we should take and then take
every step necessary and appropriate to implement that
decision.

My belief that a change is necessary is predicated  [**116]
on my assessment that Demjanjuk could not have been Ivan the
Terrible at Treblinka as well as the Demjanjuk known to
Danilchenko at Sobibor. A reading of the Canons of Ethics
persuades me that I cannot pursue
this case simply as a Treblinka matter on the premise that
it is tactically shrewd and morally acceptable because we
think he was a guard elsewhere.

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