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Newsgroups: alt.revisionism
Subject: Demjanjuk Case - U.S. Court of Appeals (11 of 17)
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Organization: The Nizkor Project http://www.nizkor.org
Keywords: Sobibor,Treblinka,Demjanjuk

   APPENDIX 2

   No. 85-3435

   UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

   JOHN DEMJANJUK, Petitioner-Appellant, v. JOSEPH
PETROVSKY, et al., Respondents-Appellees.

   Before: MERRITT, Chief Judge; KEITH, Circuit Judge; and
LIVELY, Senior Circuit Judge.

   ORDER

   Pursuant to orders of this court entered on June 5, 1992,
and June 18, 1992, counsel for the parties appeared for oral
argument after having previously filed briefs and
appendixes. At the commencement of oral argument the panel,
speaking through Chief Judge Merritt, stated that the
essential issue joined by the parties in their briefs is
whether this court mistakenly affirmed the district court's
denial of John Demjanjuk's  [**64]   habeas corpus petition.
See Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985),
cert. denied, 475 U.S. 1016, 89 L. Ed. 2d 312, 106 S. Ct.
1198 (1986). The Chief Judge then stated that the court's
inquiry concerns whether lawyers from the Department of
Justice engaged in prosecutorial misconduct by concealing or
withholding from the district court and this court evidence
in their possession that John Demjanjuk was not the
notorious Ukrainian guard known as "Ivan the Terrible" who
operated
the gas chambers at the Treblinka, Poland Nazi death camp.
The "bedrock question" for the court, Judge Merritt
continued, is whether the failure of the attorneys to
disclose such exculpatory information constituted fraud upon
the court that misled this court into allowing Demjanjuk to
be extradited.

   The case was ably and extensively argued by counsel and,
at the conclusion of oral argument, was taken under
submission by the court. Upon consideration the court
concludes that further proceedings are required as set forth
here.

   I.

   Before outlining the additional proceedings, we dispose
of the Department of Justice's  [**65]   contention that
this court lacks jurisdiction to conduct the present
inquiry. The Department argues that we have no power to
review our 1985 judgment, particularly in view of the fact
that Demjanjuk is now in Israel, having been convicted by an
Israeli court for violation of Israeli law. We disagree.
This court is proceeding under its inherent power to grant
relief, for "after-discovered fraud," from an earlier
judgment "regardless of the term of [its] entry." Hazel-
Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244,
88 L. Ed. 1250, 64 S. Ct. 997 (1944). Furthermore, nothing
requires this court to follow the "cumbersome and dilatory
procedure" of sending this issue back to the district court
for decision. Id. at 249.

   The fact that a federal court has the inherent power "to
vacate its own judgment upon proof that a fraud has been
perpetrated upon the court" was reaffirmed by the Supreme
Court at its 1990 term. See Chambers v. NASCO, Inc., 501
U.S. 32, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991).
[**66]   The Court warned that, "because of their very
potency, inherent powers must be exercised with restraint
and discretion." Id. Mindful of this admonition, we have
determined to make every effort to be certain that we have
as complete a record as possible before acting upon the
serious charges made by the petitioner in this case.

   II.

   Counsel for the Department of Justice conceded that
"mistakes were made." This admission was based upon the
undisputed fact that the Department had in its possession
prior to the extradition proceedings statements and
documents indicating that John Demjanjuk was not "Ivan the
Terrible," but that another Ukrainian guard at Treblinka,
Ivan Marchenko, was the operator of the gas chambers whom
the prisoners referred to by this sobriquet.

   It is alleged by the petitioner that this information was
known to attorneys within the Department of Justice who were
involved in the Demjanjuk denaturalization, deportation and
extradition proceedings, but that none of the information
was produced to Demjanjuk's counsel in response to numerous
interrogatories and requests, or revealed to the court. The
attorneys so
identified at this time are Allan Ryan, Norman Moscovitz,
[**67]   George Parker and John Horrigan. The first three
worked within the Department in its Office of Special
Investigations (or its predecessor), while Horrigan served
as an assistant United States Attorney for the Northern
District of Ohio. All four attorneys were involved in the
proceedings against John Demjanjuk.

   III.

   In order to procure information that we deem essential
for reaching a decision on the issue before us, the court
hereby appoints the Honorable Thomas A. Wiseman, Jr., Judge
of the United States District Court for the Middle District
of Tennessee, as Special Master of this Court pursuant to
FED. R. CIV. P.53(c). This reference requires the Master to
take the testimony of attorneys Ryan, Moscovitz, Parker, and
Horrigan, if available, and to receive such other
evidence as he may determine to be relevant and material to
the issue under submission. The Master shall have all of the
powers granted to such officers under FED. R. CIV. P.53(c).
After completing his duties pursuant to this order of
reference, the Master will prepare a report on the matters
covered by this order. He will file the report with the
clerk of this court and serve on each
party notice of the filing and a  [**68]   copy of the
report together with a transcript of all proceedings and of
the evidence and any original exhibits as provided in FED.
R. CIV. P.53(e)(1).

   Entered by order of the court.

   By:

         Clerk

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