Appeal order 1, Demjanjuk John

et al., Respondents-Appellees. Upon Reconsideration of an

No. 85-3435


10 F.3d 338;

September 3, 1993, Argued
November 17, 1993, Decided
November 17, 1993, Filed

SUBSEQUENT HISTORY: Rehearing En Banc Denied February 24,

PRIOR HISTORY: Appeal from the United States District Court
for the Northern District of Ohio. District No. 85-01226.
Frank J. Battisti, District Judge. Thomas A. Wiseman, Jr.,
District Judge.

COUNSEL: For JOHN DEMJANJUK, Petitioner – Appellant: Edward
Marek, Fed. Public Defender, BRIEFED, Federal Public
Defender’s Office, Cleveland, OH. Michael E. Tigar, ARGUED,
BRIEFED, University of Texas Law School, Austin, TX.

For JOSEPH PETROVSKY, Respondent – Appellee: Patty Merkamp
Stemler, ARGUED, BRIEFED, Department of Justice Criminal
Division, Appellate Section, Washington, DC.

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


OPINION: LIVELY, Senior Circuit Judge. The question before
the court is whether attorneys in the Office of Special
Investigations (OSI), a unit within the Criminal Division of
the Department of Justice, engaged in prosecutorial
midconduct by failing to disclose to the courts and to the
petitioner exculpatory information in their possession
during litigation culminating in extradition proceedings,
which led to the petitioner’s forced departure from the
United States and trial on capital charges in the State of
Israel. For the reasons stated herein we conclude the OSI
did so engage in prosecutorial misconduct that seriously
misled the court.



This matter is before the court on its own motion,
pursuant to an order entered on June 5, 1992. In the June 5
order we stated that information had come to the attention
of the court which required us to determine whether this
court’s affirmance of the district court’s denial of John
Demjanjuk’s petition for habeas corpus relief from an
extradition warrant was improvident. 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 order directed the respondents to address certain
questions related to the identification of Demjanjuk as the
notorious Ukrainian guard at the Nazi extermination camp
near Treblinka, Poland called by Jewish inmates “Ivan the
Terrible” (Ivan Grozny). The order also set the matter for
oral argument on August 11, 1992. The Department of Justice
appeared for the respondents.

Following briefing and oral argument, the court entered
an order on August 17, 1992, appointing a Special Master
pursuant to Fed. R. Civ. P. 53(c). The Special Master was
directed to take testimony and prepare a report on the issue
of whether failure of government attorneys to disclose
exculpatory information in their possession constituted
prosecutorial misconduct or fraud upon the court that misled
the court into allowing Demjanjuk to be extradited. Pursuant
to the government’s motion, a clarifying order was entered
on August 31, 1992. Copies of the June 5 and August 17
orders are annexed to this opinion as Appendix 1 and
Appendix 2, respectively.


The Special Master, United States District Judge Thomas
A. Wiseman, Jr. of the Middle District of Tennessee,
conducted extensive hearings over a period of approximately
six months and received other evidence by deposition. After
closing proceedings following oral arguments on April 30,
1993, Judge Wiseman prepared a comprehensive report (S.M.
Report), which he filed with this court on June 30, 1993.

Because the district court’s extradition order had been
based primarily on the record of earlier denaturalization
proceedings against Demjanjuk, the master included within
the scope of his inquiry actions of government attorneys in
the 1981 denaturalization case and later deportation
proceedings as well as in the extradition case. Chief Judge
Frank Battisti conducted both the denaturalization and the
extradition proceedings. The district court’s opinion in the
denaturalization proceedings is reported at 518 F. Supp.
1362 (N.D. Ohio 1981) aff’d per curiam, 680 F.2d 32 (6th
Cir. 1982), cert. denied, 459 U.S. 1036 (1982). The district
court’s opinions in the extradition proceeding are reported
at 612 F. Supp. 544 and 612 F. Supp. 571 (N.D. Ohio 1985).

Demjanjuk’s claims of misconduct consisted of the
government’s failure to disclose information that pointed to
another Ukrainian guard at Treblinka, Ivan Marchenko, as
“Ivan the Terrible.” Demjanjuk’s denaturalization and
deportation orders were based on his alleged
misrepresentations concerning his wartime whereabouts and
activities at the time he applied for entry into the United
States as a displaced person and in his application for
citizenship. These
orders were based primarily, although not exclusively, on
Demjanjuk’s failure to disclose his alleged wartime
activities as “Ivan the Terrible” at Treblinka.

The extradition order was based solely upon the district
court’s finding that Demjanjuk was Ivan the Terrible. n1
This was the charge on which Israel sought his extradition,
and on which he was ultimately tried and convicted by an
Israeli trial court. As the Supreme Court of Israel stated,
“the fact the appellant [Demjanjuk] was a guardsman at the
Trawniki unit” and similar background evidence “was not the
main matter which was set before the authorities in the
United States and before the court in Israel, but it was
part of the collection of factual information.” (Translation
of the final section of the decision of the Supreme Court of
Israel in Demjanjuk’s appeal at 21). The “main matter”
before the courts in both countries in all the proceedings,
as the Supreme Court of Israel observes, and the records of
proceedings in the United States establish, was the “Ivan
the Terrible” charge.

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – –

n1 In the extradition proceedings the district court
considered evidence that Demjanjuk was trained as a
concentration camp guard at a facility in Trawniki, Poland.
The government based its claim that Demjanjuk had served at
Trawniki, and later at the Sobibor extermination camp, on a
passage from a book about the Holocaust, and an
identification badge supposedly issued to guards who were
trained at Trawniki. The district court concluded that a
decision as to the validity of “the Trawniki card”
identifying Demjanjuk was not required in order to support
extradition. 612 F. Supp. at 553.

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – –

Newsgroups: alt.revisionism
Subject: Demjanjuk Case – U.S. Court of Appeals (1 of 17)
Followup-To: alt.revisionism
Organization: The Nizkor Project
Keywords: Sobibor,Treblinka,Demjanjuk

Last-modified: 1996/03/07