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Received: by oneb.almanac.bc.ca (/\=-/\ Smail22.214.171.124 #18.33) id ; Fri, 11 Nov 94 12:09 PST Received: from ubmail.ubalt.edu by port.island.net with smtp (Smail126.96.36.199 #4) id m0r62Gf-000IVYC; Fri, 11 Nov 94 12:08 PST Received: from UBmail.ubalt.edu by UBmail.ubalt.edu (PMDF V4.3-10 #7370) id <01HJCVIZVKZK000AXS@UBmail.ubalt.edu>; Fri, 11 Nov 1994 15:05:59 -0500 (EST) Date: Fri, 11 Nov 1994 15:05:58 -0500 (EST) From: HMORRELL@UBmail.ubalt.edu Subject: demjanjuk appendix To: email@example.com Message-id: <01HJCVIZWNKI000AXS@UBmail.ubalt.edu> X-VMS-To: mx%"firstname.lastname@example.org" MIME-version: 1.0 Content-type: TEXT/PLAIN; CHARSET=US-ASCII Content-transfer-encoding: 7BIT Status: RO Harvey APPENDIX 1 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 The petitioner-appellant, John Demjanjuk, was extradited to the State of Israel for trial of a capital offense, the commission of war crimes during World War II. In a previous decision of this court in this case, 776 F.2d 571 (6th Cir. 1985), we declined to stop the extradition by issuing a write of habeas corpus. Our previous study of the record and numerous recent press reports and articles in the United [**61] States indicate that the extradition warrant by the Executive Branch may have been improvidently issued because it was based on erroneous information. Consideration should be given to its validity and to whether this court's refusal to grant the petition for writ of habeas corpus was erroneous. In our previous decision we said that the extradition should be limited: The district court clearly certified that Demjanjuk was subject to extradition solely on the charge of murder. Though some of the acts which Demjanjuk is charged with may also constitute other offenses listed in the treaty, he may be tried in Israel only on that charge. 776 F.2d at 583. Pursuant to the authority stated in rule 40, Fed. R. App. Proc., pertaining to the rehearing of causes previously heard and Rule 60(b)(6), Fed. R. Civ. P., pertaining to relief from judgments previously entered, the Court, upon its own motion, makes the following orders with respect to the prior proceedings concerning the extradition warrant heretofore issued in this case under Chapter 209, Title 18 (@@ 3181-3195), United States Code: 1. The United States, on or before July 15, 1992, shall file [**62] with the Court a brief describing any items of evidence of any kind, of which it has knowledge, tending to show that the petitioner-appellant, Demjanjuk, is not the "Ivan the Terrible" who committed war crimes at the Treblinka death camp, in particular murder, as described in 776 F.2d 571 (6th Cir. 1985), together with a statement of approximately when agents of the United States first learned of each such item of evidence. 2. On or before July 25, 1992, the petitioner-appellant shall file a brief describing affidavits, depositions or other statements of witnesses in his possession (which are not described in the government's brief referred to in paragraph 1 above), which tend to show that a man known as Ivan Marchenko was the "Ivan the Terrible" referred to in paragraph 1. 3. On or before August 1, 1992, the parties should file simultaneous briefs stating their respective position on the question whether the Court should reconsider its earlier decision concerning the issuance of a writ of habeas corpus in this case, including the question whether the court should remand the case to the district court for a further evidentiary hearing respecting the case. [**63] 4. The Federal Public Defender for the Northern District of Ohio is hereby appointed to represent the defendant, provided the petitioner-appellant or the members of his immediate family in the United States do not object to such appointment, and provided further that he is qualified for such representation under 18 U.S.C. @ 3006A. 5. An oral hearing on this matter is set for Tuesday afternoon, August 11, 1992, at 2:30 P.M. ENTERED BY ORDER OF THE COURT Leonard Green, Clerk 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 APPENDIX 3 EXCERPT From the Record of Interrogation of the Defendant February 20, 1945. I, Lieutenant EPPEL', Investigator of the Fourth Department of the "SMERSH" Directorate of Counterintelligence of the Second Belorussian front interrogated as defendant - LELEKO, Pavel Vladimirovich, born in 1922, native of the village of Chaplinka, Chaplinka district, Nikolayev Region, Ukrainian, citizen of the USSR. The interrogation began at 10.10 a.m. Question: What was the purpose of the Treblinka camp? Answer: A camp is not a quite precise definition of what was there in reality. This was not a camp, because not counting the servicing crews, nobody was housed there, but it was an especially equipped factory for the mass extermination of people. Question: How long were you in service in the Treblinka camp? Answer: I was in service in the Treblinka camp for one year, from September 1942 to September 1943. Question: What position did you hold there? Answer: In the [**69] Treblinka camp I held the position of a guard. Question: Where was the Treblinka camp located? Answer: The Treblinka camp was located some 500 meters from the Malkinia-Kosow highway, about two-three km from the Treblinka railroad station, at the edge of a forest. To the West of the camp, some two km away, there is the village of Kutaska. Question: Describe the exterior appearance of the camp? Answer: The Treblinka camp is divided into two parts: Camp no.1, or as the prisoners called it, the "death camp", and the worker's camp, called Camp no.2. The camps were situated at a distance of some 2-3 km from each other. Question: What did the "death camp" look like? Answer: The "death camp" was located on an area of about 7-8 hectares, which was fenced in by two rows of barbed wire reaching 3 (three) meters in height. Beyond the barbed wire stretched a continuous line of metallic anti-tank obstacles enmeshed in barbed wire. The entire area of the camp, in the shape of an irregular quadrangle, was divided into three sections by rows of barbed wire. The barbed wire was intertwined with bushes and branches in order to prevent the possibility of seeing from one section [**70] into the other. Question: What did the first section of the "death camp" look like? Answer: The first section of the "death camp" contained all the service buildings of the servicing personnel. There were there four barracks housing the Russian and Ukrainian guards, three barracks housing the Germans who directed the mass extermination of the people. The commander of the camp and his secretary lived in a separate barrack. Right by the barbed wire separating the first section from the second and the third stood the barrack surrounded by barbed wire in which were housed some 1000 prisoners condemned to death. They were called the "worker crew" and were used to service the camp. In addition to the above mentioned barracks there were also two barracks one of which served as storage area and bakery in which the prisoners worked, and the other as a dining room for the Russians. A branch road led from the Malkinia-Kosow highway to the first section of the camp. Question: What did the second section of the "death camp" look like? Answer: The second section of the "death camp" was the receiving point of the doomed prisoners. A railroad branch extended here from Treblinka village. [**71] Near the railroad stood two wooden barracks in which the belongings and clothing of the people to be exterminated were stored. One of the barracks had been given the appearance of a railroad station. A wooden facsimile of a clock had been nailed above it. Prior to each arrival of a fresh batch of doomed people, one of the prisoners climbed on the roof of the barrack and moved the arms of the clock to make it show the time corresponding approximately to the actual time. A wooden sign representing a hammer and saw was nailed above the clock. Below the clock was a small panel on which the sechedule [sic] of departure of trains for L'vov, Rovno, Dnepropetrovsk, Tarnopol" [sic] and other Ukrainian cities was written in several languages. Still further down were two small windows above one of which was a sign that read "cashsinr," and above the other, another sign that read "station master". All this decoration was made in order to delude the people brought here to die. To complete the illusion, there were also large posters reading "Palestine waits for you", "the Ukraine will give you work and bread" and other slogans and appeals. * * * Two more barracks stood about 70-100 meters from [**72] the above mentioned two barracks situated by the railroad branch and serving as storage space for belongings and clothing of the doomed prisoners. One of these two barracks served as an undressing place for the women. The men were undressed near the other barrack, right there on the street, winter and summer. The food, belonging [sic] and clothing taken from the doomed prisoners were stored inside this second barrack. Inside the women's undressing room there was also a so -called "cashier's office" where the women were ordered to hand over their money, jewelry, and valuable [sic] for "safekeeping". Beyond the "cashier's office" booth was a fenced in area where the hair of the women was cut. Men handed over their valuables and money also in a special "cashier's office" situated not far from the second barrack. Both barracks were fenced in by barbed wire. A road led from the undressing rooms [sic] the third section of the "death camp" and terminated at the building where the extermination of people took place. Question: What did the third section of the "death camp" look like? Answer: The road from the undressing rooms, fenced on both sides by barbed wire intertwined with branches [**73] led to the gas chamber building where people were exterminated with gas obtained from running diesel engines. As the people directed to the gas chambers were told that they were being taken to a bath-house, the outward appearance of the gas chamber building was also made to resemble a bath house. It was a single storied brick building, its exterior covered with plaster and whitewashed. It was about 25 meters long and 15 meters wide. The entrance to the building was ornate and there were stucco moldings. Flowers grew right by in long boxes. There was no door at the entrance. Instead of it there was a heavy hanging made from a rug. Beyond it started a narrow passage which ended at the opposite wall. To the right and to the left of the passage there were five doors that closed hermetically and led into the special chambers where the poisoning took place. The chambers were about six meters long and as wide, about two to five-three meters high. In the center of the ceiling there was an electric light bulb in which there was no wiring and there were two "shower" heads through which poisonous gas was fed into the chamber. The walls, floor and ceiling of the chamber were of cement. On the [**74] opposite side to the entrance door there was another, likewise hermetically closing door, through which the bodies of the poisoned people were removed. As many as 500 men, women and children were pushed into the chambers indiscriminately. Eight chambers out of the ten existing in the gas chamber building were used to poison people. In the two remaining ones, there were two powerful German engines, about 1.5 meters high - two engines in all. Each engine fed gas to four death chambers. Some 20 meters from the above mentioned gas chamber building stood the building of the old gas chambers, which contained only three gas chambers. This building functioned until 1943. But as it was unable to handle the enormous number of people brought by the Germans to the "death camp", the new, large gas chamber building that I have described above was built. After it came into use, the old one was no longer utilized. An incinerator for the burning of bodies was situated about 10 meters beyond the large gas chamber building. It had the shape of a cement pit about one meter deep and 20 meters long. A series of furnaces covered on the top with four rows of rails extended along the entire length of one [**75] of the walls of the pit. The bodies were laid on the rails, caught fire from the flames burning in the furnaces and burned. About 1000 bodies were burned simultaneously. The burning process lasted up to five hours. Not far from the gas chamber building, also in the third section, there was a barrack housing the working-crew composed of doomed prisoners and which comprised up to 500 persons. * * * Question: What was the system of mass extermination of people in the German death camp of Treblinka? Answer: Two to three trainloads of doomed prisoners arrived daily at the Treblinka railroad station. Each train consisted of 60 cars. The train was brought in three installments into the second section of the "death camp". Twenty cars were brought in every half hour. As soon as the cars crossed the barbed wire, the guard was changed. The policemen escorting the train remained outside the camp and left on the locomotive to fetch the next batch of prisoners. The railroads [sic] cars brought into the camp were immediately unloaded by the guards. We started to unload the cars with the help of the so-called "blue crew" consisting of doomed prisoners wearing a blue armband on the sleeve. [**76] Those arriving were told that they must first go to the bath house and will then be sent further to the Ukraine. But the sight of the camp, the enormous flaming pyre burning at one end of the camp, the suffocating stench from decomposing bodies that spread form some 10 km around and was particularly strong within the camp itself, made it clear what the place really was. The people chased out of the cars with whips guessed immediately where they had been brought; some attempted to climb over the barbed wire of the fencing, got caught in it, and we opened fire on those who were trying to escape and killed them. We tried to quiet down the fear-crazed people with heavy clubs. After all those who were able to walk had been unloaded, only the ailing, the killed and the wounded remained in the railroad cars. These were carried by the prisoners belonging to the "blue crew" into the so-called "infirmary", the name given to the place where the ailing and the wounded were shot and the dead were burned. This place became particularly crowded when the prisoners marked for death who were brought in the railroad cars attempted to commit suicide. Thus in March 1943 there arrived a train in which half [**77] of the prisoners cut their throats and hands with razors. While unloading was going on, the prisoners cut themselves with knives and razors before the eyes of us, the policemen, saying: "anyhow you will kill us". The majority of those who did not die of self-inflicted wounds were shot. After the unloading, all those who could stand on their feet were chased toward the undressing place. There the women were separated from the men and pushed into a special barrack, while the men were told to undress right there outside another barrack. During the first years of the existence of the camp, women and men undressed together in the same barrack. But it happened once that the prisoners attacked the "chief of the working crew" in the undressing barrack. Somehow the man managed to escape from there. Several policemen and Germans immediately rushed in. One of the Germans started firing into the crowd from his sub-machine gun. After they had stopped shooting, the Germans and the policemen started to beat with clubs and whips those who survived. After this incident, men were assigned to a special place in the open air in which to undress, by the barrack, across from the women's undressing place. [**78] Pushed by the clubs of the Germans and the policemen, the men threw off their clothing, having first handed their valuables and money to a special "cashier's office". The women were obliged to remove their shoes before entering the undressing place. They were forced to remove all their clothing under the supervision of German policemen and prisoners of the so-called "red crew" [sic] Those who resisted were whipped. Very often the Germans and the policemen tore off and cut off the clothing of those who did not want to undress or undressed too slowly. Many women begged to be allowed to keep at least some clothing on their persons, but the German, [sic] smiling cynically, ordered them to undress "to the end". The policemen or the workers threw to the ground and undressed those who refused to do so. The undressed women were told to hand over all their valuables and money to the "cashier's office". After this the women were driven in groups to another part of the barrack, where 50 prisoners - "hairdressers" were working. The women sat on a long bench and the "hairdressers" cut off their hair. The cut hair were [sic] packed in large bags and sent by trainloads to Germany. One of the Germans [**79] told me that in Germany they are used to fill mattresses, also for soft upholstery. He said that this hair make [sic] very good mattresses and the Germans buy them willingly. After their hair was cut the women were sent in batches to the third section of the camp, to the "bath house", but in reality to the gas chamber to be exterminated there. Before entering the gas chamber building they passed along a long path bordered on both sides with a high fence made of barbed wire and branches. Along the edge of the path stood policemen and Germans. Each one held a whip or a club. I stood repeatedly on the edge of this path with other policemen and drove along with a whip the women and the men into the gas chamber building. Many women were not quite sure that they would not be exterminated and in order to have some means of subsistence in the future, they hid some valuables on their persons. To prevent this, the Germans placed special controllers in the center of the path. When they noticed that a woman walked along the path holding her legs close together, she was stopped at once and cynically examined, and if anything was found on her, she was beaten almost to death. The men walked more [**80] quietly down this path. Several times I heard how one, speaking to another, said: "Why are you weeping? Do you believe you can arouse compassion in those Germans?" Frequently we could hear cries of "Hail Stalin!", "Hail the Red Army!" To us Russian guards, they said: "Today you exterminate us, and tomorrow the Germans will be killing you". When the procession of doomed people approached the gas chamber building, MARCHENKO and Nikolay, the motorists of the gas chambers shouted: "Walk faster, or the water will become cold!" Each group of women or men was pushed from behind by some German and very frequently by Franz, the camp commander himself, escorted by dogs. As they approached the gas chambers, the people stared to recoil in horror, sometimes they tried to retrace their steps. Then whips and clubs were used. Franz immediate [sic] ordered his dog to attack the naked people. Being trained for this, it grabbed them by their genitals. Aside from the motor operators who had dogs with them, there were five or six Germans near the gas chambers. With whips and clubs they chased people into the passage of the gas chamber building and then into the gas chambers. The Germans and the motor [**81] operators then competed as to atrocities with regard to the people to be killed. MARCHENKO for instance, had a sword with which he mutilated people. He cut off the breasts of women. When the chamber was filled to capacity, the Germans or the motorists came to the door and stated beating up the naked people with a rubber whip and at the same time set their dogs against them. The prisoners shrank away into the depth of the chamber yielding place to more prisoners. Such a pressing-in occurred several times so that some 700 to 800 people could be crowded into the not-so-large chambers. When the chambers were filled to the very limit, the Germans started to throw in the children left by the women either in the undressing place or more frequently outside the gas chamber building. As the ceiling of the gas chambers was very low, the children thrown into the chamber hit the ceiling and then, disfigured, sometimes with broken heads, fell on the heads of the prisoners. When loading of the chambers was completed, they were sealed off by hermetically closing doors. Motorists MARCHENKO and Nikolay started the motors. The gas produced went though the pipes into the chambers. The process of suffocation [**82] began. Some time after the motor had been started, the motorists looked into the chambers through special observation portholes situated near each door, in order to determine how the process of extermination was going on. When asked what they saw, the motorists answered that the people were writhing, crushing each other. I also tried to look through the porthole, but for some reason could see nothing. Gradually the noise in the chambers died down. Some fifteen minutes later the motors were stopped and there was an unusual silence. While extermination of this batch of prisoners went on, a new bath of condemned people arrived into the camp. The entire process started all over again. APPENDIX 4 RECORD Of Interrogation of Witness 18 March 1978 City of Zaporozh'ye On instructions from the Procuratorate of the USSR concerning the request made by organs of Justice of the USA, and in accordance with the requirements of Article 85, 167 and 170 of the Code of Criminal Procedure of the Ukrainian SSR, Senior Investigator of the Procuratorate of the Zaporozh'ye Region and Senior Councillor of Justice Litvinenko interrogated as witness: MALAGON, Nikolay Petrovich, born in 1919, native and [**83] resident of the village of Novo-Petrovka, Berdyansk district, Zaporozh'ye Region, citizen of the USSR, Ukrainian, manual worker, married. The interrogation stated at 3.30 a.m. * * * After having completed my training in the Trawniki camp, I was given the rank of "wachman". I remained in the Trawniki camp from October-November 1941 to March 1942 and then, together with ten other wachmans, we were sent to the small town of Zamoscie, where we guarded the property of a colonel. After a month we returned to the Trawniki camp, but of the four companies of guards, nobody was left except the servicing personnel. As I learned later, part of the guards had been sent to the Treblinka concentration camp and the rest to the Belsec and Lublin camps. After some time I was also sent to the Lublin camp where a team of guards (wachman) was being collected. After about five days some 50 men were assembled and we went to Warsaw where we took on guard duty for an entire train, the cars of which contained Jews: men, women and children. . . . Our team was headed by a certain Komarkin, the first name and patronymic of whom I do not know, but he spoke Polish well. We brought the train with the Jews to [**84] the Treblinka camp, which was situated near the station of Treblinka on Polish territory. A one-track railroad extended from the railroad station to the camp. Some of the train's cars were driven into the territory of the camp and part remained at the station. When we arrived to the camp, other guards were already in the cordon and these began to receive the Jews we have brought. From this day I started my service in the Treblinka camp. This camp was created by the Germans with the express purpose of destroying citizens of Jewish nationality. I saw that trains carrying citizens of Jewish nationality: men, women, children, old men and women arrived regularly at the camp. These citizens were driven into a special barrack, where they removed all their clothing and threw their valuables into specially placed suitcases. Then they were chased naked to the gas chambers through special passages made of barbed wire covered with pine branches. Pipes carrying exhaust gas from running diesel motors were installed in the gas chambers and the people inside perished. The dead were then thrown into special pits and later burnt on pyres. This work was performed by special teams composed of individuals [**85] of Jewish nationality. In this camp there was also a so-called "infirmary" which was situated near the barrack where the people arriving undressed and not far from the unloading area. The infirmary was in appearance an area fenced in by barbed wire which was camouflaged with pine branches. In this area there was a pit; there were no other constructions on the territory of the infirmary. Those among the newly arrived were placed in the infirmary who could not reach by themselves the barracks in which they undressed and gave away their valuables. The principal worker in the infirmary was a man by the last name of Rebeka, I do not know his first name and patronymic; he resembled a Jew. This was the man who exterminated in the infirmary the citizens who were ailing and could not walk without help. Rebeka sometimes boasted that he worked so hard that the barrel of his sub-machine gun had become red. I did not participate personally in the shooting of the Jews brought in, but was only in the cordon, took part in the unloading of the Jews from the train cars, and mostly, together with the team, prepared pine and fir branches that camouflaged the barbed wires, a single line of which extended [**86] around the entire camp, and the wire of which were made the passages leading from the barracks to the gas chambers. The barbed wire around the so-called infirmary was similarly camouflaged with branches. I remained in the Treblinka camp at least three or four months and saw that at least one trainload of citizens of Jewish nationality arrived there every day and were then exterminated in the gas chambers and in the infirmary. During this time many Jews died there, but I cannot state the exact number. There were cases when the Jews brought to the camp for extermination made armed resistance: shot from pistols or threw grenades. There was no rioting among the prisoners during my time of service in the Treblinka camp. I heard that some sort of revolt had taken place, but at that time I was no longer employed in the camp. * * * I met guard Fedorenko, I do not recall his first name and his patronymic, in the Trawniki as well as in the Treblinka camps. I met him only seldom, because he served in another platoon. I remember well his person and therefore can identify him on a photograph. In the Trawniki camp Fedorenko was also trained to be a guard (wachman) and wore a special "SS" uniform. [**87] After he had completed his training in the Trawniki camp, Fedorenko was given the title of wachman (guard). Each wachman was given 10 marks per month for tobacco. I cannot easily say how Fedorenko came to be in the Trawniki camp undergoing training for the duties of a wachman, because I did not speak with him about this. I did not meet Fedorenko in the Chelm camp and therefore I cannot say from which camp precisely he was sent to be trained in the Trawniki camp. I also met Fedorenko in the Treblinka camp, but I cannot at present remember if he was employed in this camp or brought there [sic] Jewish citizens for extermination. I remember Fedorenko only with the rank of wachman, and I do not know whether he was promoted to higher ranks and what was the attitude of the German authorities toward him. I find it difficult to say whether Fedorenko participated in the extermination of citizens of Jewish nationality in the Treblinka camp because I was not present at this. After the Treblinka camp in 1943 I did not meet Fedorenko again and his subsequent fate is unknown to me. When the prisoners were brought to the Treblinka camp, the trains were unloaded by Germans and guards with the rank [**88] of oberwachman, zugwachman who chased the prisoners from the cars with whips and pistols, beat them and shot at them. I hesitate to say whether Fedorenko participated or not in such actions, because I did not see this. I also did not see Fedorenko shoot down prisoners in the barracks or near the gas chambers. When the trains carrying the Jews arrived, the guards were usually in cordon formation, and the Jews were escorted to the barracks by Germans, while the Jews were exterminated by the working teams under the supervision of Germans. Near the diesel engines by the gas chambers there worked a guard (wachman) by the name of Marchenko, Nikolay, and wachman Rebeka worked in the so-called "infirmary". I remember that Marchenko wore a leather jacket and carried a pistol. These two guards did exterminate prisoners, who else among the guards took part in the extermination of prisoners I find difficult to say. When one of the prisoners on the unloading area threw a grenade, one of the guards was killed. The other guards standing in cordon formation immediately retaliated against the prisoners who had thrown the grenade, that is they shot them then and there. Who of the guards participated [**89] in this action and was Fedorenko among them I do not know. The guards with the rank of oberwachman, zugwachman, and rotenwachman were closer to the Germans, they participated in the unloading of the Jews from the traincars, and in doing so they threw people out of the train cars and shot some of them right there. Together with the Germans they also escorted the prisoners to the barrack where these removed their clothes and handed over their valuables. I cannot personally say how many prisoners were exterminated daily in the camp, but the camp had no facilities to accomodate [sic] the prisoners. All the prisoners who arrived were exterminated on the day of arrival in the gas chambers. The bodies were thrown into pits and later burned. At least a trainload of people arrived everyday, but how many doomed persons it contained I find it difficult to say. * * * Interrogation was conducted by Senior Investigator of the Procuratorate of the Zaporozh'ye Region, Senior Councillor of Justice Ya. V. Litvinenko. APPENDIX 4A RECORD OF QUESTIONING OF WITNESS City of Vinnitsa October 2, 1979 Senior Assistant Procurator of Vinnitsa Oblast' Podrutskiy, on instructions from the Procuracy [**90] of the USSR in connection with the request from the organs of justice of the USA for legal aid in the case of Ivan Dem'yanyuk and in accordance with the requirements of Articles 85, 167 and 170 of the Code of Criminal Procedure of the Ukrainian SSR, questioned as a witness: Malagon, Nikolai Petrovich, born 1919, native and resident of the village of Novo-Petrovka, Berdyansk Rayon, Zaporozhe Oblast', Ukrainian, citizen of the USSR, laborer. Questioning began: 9:45 A.M. * * * In response to the questioned asked, witness N. P. Malagon stated: During the Great Patriotic War, I participated with my military unit in the defense of the city of Kiev. In August of 1941 I was wounded in the head and taken prisoner by the Germans together with other soldiers from my unit. While a prisoner, I was first held in a POW camp in the city of Zhitomir. We were later transferred to a camp in the city of Rovno, and a day later we were transferred in railroad cars to a POW camp in the city of Chemnitz (Poland). We were held in this camp for approximately two months. In roughly October or November of 1941 we, the POWs, were assembled near the barracks and some man unknown to me wearing civilian [**91] clothing began to select prisoners for work. He selected a total of roughly 60-70 POWs, including myself. This man did not tell us what kind of work we would be doing or where we would do it. The selected POWs and myself were hauled in three trucks to the village of Travniki (Poland) and we were told that in this training case we could be trained as SS guards. . . . We were [eventually] awarded the title of SS guards and issued identification. . . . A short time later, as part of a group of guards consisting of 20-25 men whose names I do not remember, I was sent to the Lublin camp. We worked cleaning up the area at this camp and stayed there 5-6 days. From the Lublin camp we were sent to the city of Warsaw, where we stayed approximately three days. During these three days I once guarded the Jewish ghetto. From Warsaw we, the guards, escorted a train filled with Jewish civilians to the Treblinka death camp. We were all armed with rifles and live ammunition. When we arrived at the Treblinka camp together with the prisoners, we handed them over to the camp guard. When we arrived at the camp, there were other guards there from the Travniki school. While at the Treblinka death camp, I met [**92] the guard Nikolai Marchenko, who drove a gas chamber van. I do not know where he is at present. In the same camp I met the guard Ivan Demedyuk or Ivan Dem'yanyuk (I do not remember his name precisely). This guard was of average height and heavy build, spoke Ukrainian and had light brown hair. His speech was pure; he pronounced everything well. I do not know where he was from, since I did not talk to him about this. While I was at the Treblinka death camp, he worked there as a cook, preparing food for the guards. I could identify the guard whom I have named as Demedyuk or Dem'yanyuk from photographs. In February of 1943 approximately 15 of us, the guards, were transferred to the Belsen camp (Poland). Ivan Demedyuk or Ivan Dem'yanyuk remained at Treblinka. We were at Belsen for approximately five days and, since some of the guards escaped, we were once again returned to Travniki, where we were given special insignia, and then we were sent to the Auschwitz death camp. I served in this camp from March to April of 1943. Then, we were transferred to the Buchenwald death camp, where I served as a guard from April of 1943 through February of 1945. Here, from what other guards (whose names [**93] I do not remember) said, I learned that Ivan Demedyuk of Ivan Dem'yanyuk, who had worked as a cook at Treblinka, had been transferred to work as a gas chamber van driver. His later fate is unknown to me. I escaped from the Buchenwald death camp in March of 1945. I have read the record of the questioning. My statements were recorded faithfully. I have no additions or corrections to make. The questioning was completed at 1:00 P.M. (Signature) Malagon Questioned by: Senior Assistant Procurator, Vinnitsa Oblast' (Signature) V. L. Podrutskiy Copy authentic: Procurator, Vinnitsa Oblast' (Signature) G. S. Tarnavskiy (OFFICIAL SEAL) RECORD OF PRESENTATION OF PHOTOGRAPHS FOR IDENTIFICATION OF AN INDIVIDUAL City of Vinnitsa October 2, 1979 Senior Assistant Procurator of Vinnitsa Oblast' Podrutskiy, on instructions from the Procuracy of the USSR in connection with the request from the organs of justice of the USA for legal aid in the case of Ivan Dem'yanyuk, in accordance with the requirements of Articles 85, 174 and 176 of the Code of Criminal Procedure of the Ukrainian SSR and in the presence of the witnesses: Shembereva, Valentina Porfir'yevna, residing at No. 5 [**94] Kosmonavtov Street, Apartment No. 37, city of Vinnitsa, and Voynitskaya, Maria Yakoylevna, residing at No. 113 Pirogov Street, Apartment No. 15, city of Vinnitsa, presented to witness Malagon, Nikolai Petrovich, born 1919, native and resident of the village of Novo-Petrtovka, Berdyansk Rayon, Zaporozhe Oblast', nine photographs of men for identification. The photographs were attached to sheets No. 1, No. 2 and No. 3, designated by numbers and attached to impressions of the official seal of the Procuracy of Vinnitsa Oblast'. Sheet of photographs No. 1 contains photographs of three men in military uniform and headgear. Sheets of photographs No. 2 and No. 3 contain photographs of men in civilian clothing, without hats. The persons shown in the photographs were not named to the witness. * * * After examining the photographs presented to him on sheets No. 1, No 2 and No. 3, witness N. P. Malagon stated that he could not identify anyone in the photographs. The guard to whom he had referred during the questioning and whom he had called by the name of Ivan Demedyuk or Ivan Dem'yanyuk was not among them. * * * The record of the presentation for identification has been read to [**95] us. It was recorded faithfully. We have no observations to make on the conduct of the identification or the content of the record. Witness: (Signature) Malagon Witnesses: (Signature) Shembereva (Signature) Voynitskaya Identification conducted and record compiled by: Senior Assistant Procurator, Vinnitsa Oblast' (Signature) V. L. Podrutskiy Copy authentic: Procurator, Vinnitsa Oblast' (Signature) G. S. Tarnavskiy (OFFICIAL SEAL) * * * CERTIFICATE Photograph No. 3 on sheet of photographs No. 1, photograph No. 1 on sheet of photographs No. 2 and photograph No. 2 on sheet of photographs No. 3 show: Dem'yanyuk, Ivan Nikolayevich, born 1920, native of the village of Duboviye Makharintsy, Kazatin (formerly Samgorodok) Rayon, Vinnitsa Oblast'. The persons shown in the other photographs are not involved in the case. Senior Assistant Procurator, Vinnitsa Oblast' (Signature) V. L. Podrutskiy October 2, 1979 Copy authentic: Procurator, Vinnitsa Oblast' (Signature) G. S. Tarnavskiy (OFFICIAL SEAL) APPENDIX 5 DEPARTMENT OF JUSTICE TO: Arthur Sinai, Deputy Director, OSI FROM: Bernard J. Dougherty Jr., Criminal Investigator SUBJ: HORN, Otto - Report of Interview [**96] REF: OSI #42 - DEMJANJUK, Iwan On November 14, 1979, Otto Horn, German national and citizen of West Berlin, was interviewed at his residence, Yorck-Strasse 66, Berlin, Germany, by Norman Moscowitz, Staff Attorney-OSI, and by the reporting officer. Due to the fact that HORN neither spoke nor understood English, the entire interview was conducted in his native German language, with George Garand-OSI and the reporting officer translating. Theinterview [sic] began at 9:04 a.m. . . . . During the course of the questioning concerning the operation of the gas chamber, HORN voluntarily mentioned one "Iwan" (last name unknown), who was one of two Ukrainians who were responsible for the actual operation of the engines which provided the gas for the chambers. HORN was unable to recall the name of the other Ukrainian, describing him as tall and thin, with blond hair, and being approximately 22-23 years of age. HORN further recalled that the two Ukrainians were immediately subordinate to a German, known only as "Schmidt." HORN described "Iwan" as being of stocky build, black hair cut short, full rounded face, tall, with no distinguishing marks on his face. HORN remarked that "Iwan" had some technical [**97] ability, since he repaired and maintained the gas engine and was known by HORN as being able to drive an automobile (apparently somewhat of a rare [sic] among the Ukrainians at that time). HORN indicated that he arrived at Treblinka during September, 1942 and stated that "Iwan" was already working there. HORN added that "Iwan", Schmidt, and the other unidentified Ukrainian were the only three individuals who actually worked at the gas chamber, that is, in the operation of the engine. HORN stated that for the period September 1942-September 1943, when he was at Treblinka, "Iwan" worked at the gas chamber every day. . . . . The reporting officer advised HORN that there were a series of 8 photographs of caucasian males, which he was requested to review carefully and individually. Each of the photographs depicted an individual in dark clothing. Prior to the interview, care was taken to minimize the amount of uniforms which would be readily discernable in each photograph. Nevertheless on a few photos, a portion of a uniform could be seen. Each picture showed the bust of the subject. The individuals possessed hair of different length, varying physical buildings, and a variety of ages, ranging [**98] from the early twenties to the forties. One of the photographs was that of Iwan DEMJANJUK, taken during the early 1940s. HORN studied each of the photographs at length but was unable to positively identify any of the pictures, although he believed that he recognized one of them (not DEMJANJUK) but was not able to indicate where he had met this person or provide his name. The first series of photographs was then gathered and placed in a stack, off to the side of the table - with that of DEMJANJUK lying face up on the top of the pile, facing HORN. The reporting officer then presented another series of 8 photographs, each depicting the bust of a male caucasian. These photographs showed the individuals in clothing more similar to that normally worn by civilians. Among the 8 pictures was one of Iwan DEMJANJUK, which had been taken during the early 1950's. This photograph was much better in quality than that presented to HORN in the first series, and depicted DEMJANJUK as having a much fuller and more rounded face. HORN studied this photograph at length, and upon glancing at the earlier picture of DEMJANJUK, identified them as being the same person. As he continued to study the picture [**99] from the second set, HORN indicated that it certainly resembled the man that he had known as "Iwan", although he stated that "Iwan" had had somewhat more hair. He further mentioned that the second picture, depicting the fuller face, was much more like that of "Iwan" than the person shown in the first series. After a few more moments of careful study, HORN positively identified the photographs of Iwan DEMJANJUK as being the "Iwan" that he knew at the gas chamber in Treblinka. . . . . APPENDIX 6 DEPARTMENT OF JUSTICE TO: Arthur Sinai, Deputy Director, OSI FROM: George W. Garand, Historian SUBJ: HORN, Otto - Report of Interview REF: OSI #42 - DEMJANJUK, Iwan On the morning of 14 November 1979 Norman Moscowitz, Staff Attorney, OSI, Bernard J. Dougherty, Jr., Criminal Investigator, and George W. Garand, Historian, OSI interviewed the German national Otto HORN at his residence located at 66 Yorkstrasse, West Berlin. The interview began shortly after 0900 and ended shortly before 1000. Mr. Dougherty and the undersigned translated during the interview which was conducted in German since HORN is conversant only in that language. HORN is 76 years old and lives in a small one-bedroom [**100] apartment by himself. His place of residence was meticulously clean and despite his advanced years he conveys the impression of being stable with an excellent recall of events during the time he was stationed at Treblinka. Shown a sketch of the death camp at the beginning of the interview he identified various buildings within the camp without hesitation. He was assigned to the camp for approximately one year, from September 1942 to September 1943, and specifically to the upper part of the camp which housed the gas chambers. . . . . [A] German named SCHMIDT or SCHMITT would supervise the actual gassing. Two Ukrainians worked directly under Schmidt. One of these operated the machinery that funneled the lethal gas into the chamber while the other supervised the inmate work detail that removed the bodies from the chamber and dumped them into two very large pits that had been dug nearby. While the Ukrainians at the train unloading platform rotated between there and the guard towers the two Ukrainians assigned to the gas chamber itself were invariably present at each gassing. He no longer recalled the name of the Ukrainian responsible for overseeing the removal of the bodies, but had [**101] a good recall of the one responsible for operating the death machinery. That man's first name was Iwan, a tall heavy set individual approximately in his mid-twenties at the time with shortly cropped hair and full facial features. He never knew Iwan's family name since such names were in any case very difficult to pronounce and the Ukrainians were invariably addressed only by their first names. . . . . Initially shown a series of eight photographs of Caucasian males, HORN carefully viewed each photograph that depicted an individual wearing dark clothing. Each one of the photographs showed a frontal view of the individual down to a few inches below the neck. Hair styles of these individuals varies, as did length of hair, physical stature and age that varied from the low twenties into the forties. One of the photographs depicted IWAN DEMJANJUK as he appeared in the early 1940s. After studying each of the photographs at length HORN initially could not make positive identification of any of the individuals though on one or two occasions he felt that one or two of the individuals shown looked vaguely familiar to him, though he could not recall where and under what circumstances he had [**102] met them. At this point the first group of photographs was gathered up and placed on one end of the table with the one depicting DEMJANJUK left facing upward on top of the pile. Mr. Dougherty thereupon presented a second series of eight photographs to the interviewee, each showing a second group of male Caucasians clothed in what would normally be considered closer to civilian attire than the clothing worn by most members of the first group. One of the photographs in the second group was that of IWAN DEMJANJUK, taken in the early 1950s and depicted DEMJANJUK with a fuller and more rounded face and a more receding hairline. HORN studied this photograph intensively and then, looking at the earlier photograph of DEMJANJUK, identified that individual on both. Nevertheless, he noted some minor differences, such as Iwan having had somewhat more hair at the time he knew him. . . . . 15 November 1979 /s/ George W. Garand Historian, OSI 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 politicl [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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