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Shofar FTP Archive File: people/d/demjanjuk.john/circuit-court/appeal-order.09


Newsgroups: alt.revisionism
Subject: Demjanjuk Case - U.S. Court of Appeals (9 of 17)
Followup-To: alt.revisionism
Organization: The Nizkor Project http://www.nizkor.org
Keywords: Sobibor,Treblinka,Demjanjuk

Archive/File: pub/people/d/demjanjuk.john/circuit-court/appeal-order.09
Last-modified: 1996/03/07

IX.

   We have considered the possibility of treating
Demjanjuk's claims as moot in view of the fact that he has
now been acquitted and ordered released by the Supreme Court
of Israel. Upon reflection, however, we are convinced that
the collateral consequences of being found by the district
court to be Ivan the Terrible require corrective action.

   The petitioner was extradited in 1986 on the basis of
evidence in the denaturalization case that led to a finding
that he was the notorious Ivan. After a lengthy trial
followed by conviction and a death sentence, he spent more
than seven years in an Israeli prison. Although he was
treated humanely there, he was under a sentence of death
until the Israeli Supreme Court in 1993 ordered his
acquittal and eventual release.

   The United States Supreme Court dealt with the collateral
consequences of a judgment in a criminal case with
similarities to the present case in Fiswick v. United
States, 329 U.S. 211, 222, 91 L. Ed. 196, 67 S. Ct. 224
(1946).  [**57]   In Fiswick, the Court held that an appeal
was not moot even though the defendant had completed his
prison sentence before the appeal reached the High Court.
The case involved an alien convicted of conspiracy to
defraud the United States for concealing his membership in
the Nazi party when registering with the Immigration and
Naturalization Service.

Although Fiswick was released before his case could be
heard, the Supreme Court held that the harmful effects
flowing from the conviction precluded mootness. The Court
reasoned that a conviction for lying about Nazi involvement
"stands as ominous proof that [Fiswick] did what
was charged and puts beyond his reach any showing of
ameliorating circumstances or explanatory matter that might
remove part or all of the curse." 329 U.S. at 222.

If a conviction for merely "lying about Nazi involvement"
causes such collateral consequences, surely being found by a
court and convicted for being one of the most notorious
perpetrators of Holocaust atrocities deserves the same
consideration. The Supreme Court has found collateral
consequences sufficient to overcome suggestions of mootness
in many other cases. E.g., Ginsberg v. New York, 390 U.S.
629, 633 n.2, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968);
Pollard v. United States, 352 U.S. 354, 1 L. Ed. 2d 393, 77
S. Ct. 481 (1957). See also York v. Tate, 858 F.2d 322 (6th
Cir. 1988) (habeas corpus petition not mooted by prisoner's
release).

CONCLUSION

   We attempt to mitigate the collateral consequences of the
extradition order only. As did the Special Master, however,
we have considered the actions of the OSI attorneys in the
denaturalization case. The extradition order was based
largely on the district court's finding in the
denaturalization case that Demjanjuk was Ivan the Terrible.

   This court has not considered charges against Demjanjuk
other than those related to the claim that he was Ivan the
Terrible of Treblinka. Neither have we considered
Demjanjuk's contention that the other grounds for
denaturalization and deportation should be reconsidered
because the "Ivan" charges overshadowed all the proof in the
two earlier proceedings.

   Acting pursuant to Fed. R. Civ. P. 60(b)(6) and the All
Writs Act, 28 U.S.C. @ 1651, we reopened the habeas corpus
case in which we denied relief from the extradition order to
determine whether that proceeding had been tainted by fraud
on the court or prosecutorial misconduct that required our
intervention. See Harris v. Nelson, 394 U.S. 286, 299-300,
22 L. Ed. 2d 281, 89 S. Ct. 1082 (1969). We also acted
pursuant to our inherent power to protect the
integrity of the judicial process within this Circuit.

The Supreme Court has recognized a court's 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). See
also Chambers v. NASCO, Inc., 501 U.S. 32, 115 L. Ed. 2d 27,
111 S. Ct. 2123, 2132 (1991). Rule 60(b) recognizes this
authority as well in noting that "this rule does not limit
the power of a court to entertain an independent action to
relieve a party from a judgment, order, or proceeding,
. . . or to set aside a judgment for fraud upon the court."

   Our sole concern in these proceedings, which began with
entry of our order of June 5, 1992, has been to determine
whether any acts or omissions of Department of Justice
attorneys resulted in the district court and this court
improvidently approving extradition of Demjanjuk to Israel
in this habeas  corpus action. We express no view with
respect to charges that have been made, but not adjudicated,
to the effect that Demjanjuk engaged in other activities
during the Nazi period that are proscribed by the criminal
laws of any nation.

   For the reasons set out herein we vacate the judgment of
the district court and the judgment of this court in the
extradition proceedings on the ground that the judgments
were wrongly procured as a result of prosecutorial
misconduct that constituted fraud on the court.



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