Appeal order 7, Demjanjuk John


We consider whether the conduct outlined herein
constitutes fraud on the court or attorney misconduct
sufficiently serious to require corrective action on our


Fraud on the court is a somewhat nebulous concept usually
discussed in civil cases. No court system can function
without safeguards against actions that interfere with its
administration of justice. This concern must be balanced
against the necessity for finality of court judgments; thus,
only actions that actually subvert the judicial process can
be the basis for upsetting otherwise
settled decrees.

Professor Moore’s definition is frequently cited:

Fraud upon the court should . . . embrace only that
species of fraud which does or attempts to, subvert the
integrity of the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery cannot
perform in the usual manner its impartial task of adjudging
cases that are presented for adjudication, and relief should
be denied in the absence of such conduct.

7 Moore’s Federal Practice and Procedure P60.33. Cases
dealing with fraud on the court often turn on whether the
improper actions are those of parties alone, or if the
attorneys in the case are involved. As an officer of the
court, every attorney has a duty to be completely honest in
conducting litigation. Professor Moore emphasizes this
element of fraud in his treatise:

While an attorney should represent his client with
singular loyalty, that loyalty obviously does not demand
that he act dishonestly or fraudulently; on the contrary his
loyalty to the court, as an officer thereof, demands
integrity and honest dealing with the court. And when he
departs from that standard in the conduct of a case he
perpetrates fraud upon a court.

Id. The author cites two Supreme Court decisions that
illustrate the role of attorney actions in the fraud on the
court analysis. Moore distinguishes between Hazel-Atlas
Glass Co. v. Hartford Empire Co., 322 U.S. 238, 88 L. Ed.
1250, 64 S. Ct. 997 (1944), in which the Supreme Court did
find fraud, and U.S. v. Throckmorton, 98 U.S. 61, 25 L. Ed.
93 (1878), in which the Court did not find fraud. While the
actions taken in both cases were similar–false documents
were put before the court–the attorney was implicated in
Hazel-Atlas as one of the perpetrators, while the attorney
in Throckmorton was not. 7 Moore’s Federal Practice at 60-
358-59. See also Serzysko v. Chase Manhattan Bank, 461 F.2d
699 (2d Cir. 1972), where the court of appeals as part of
its finding of no fraud on the court, pointed out that none
of the offending party’s attorneys were involved in the
alleged fraud. 461 F.2d at 702 n.1.

When the party is the United States, acting through the
Department of Justice, the distinction between client and
attorney actions becomes meaningless. The Department acts
only through its attorneys. Although there are cases holding
that a “plan or scheme” must exist in order to find fraud
[*353] on the court, we agree with Judge Wiseman that a
scheme, based on a subjective intent to commit fraud, is
not required in a case such as this. Reckless disregard for
the truth is sufficient.


The respondents complain that Demjanjuk seeks to hold
them to the constitutional standard in criminal cases
enunciated in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d
215, 83 S. Ct. 1194 (1963), even though all proceedings
against Demjanjuk have been civil actions. The Supreme Court
held in Brady that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. at 87. The Special Master stated
that he believed the Brady rule should govern, but confined
his analysis to fraud on the court in a civil context,
because the Supreme Court had never stated that the Brady
rule applies in civil cases.


We believe Brady should be extended to cover
denaturalization and extradition cases where the government
seeks denaturalization or extradition based on proof of
alleged criminal activities of the party proceeded against.
If the government had sought to denaturalize Demjanjuk only
on the basis of his misrepresentations at the time he sought
admission to the United States and subsequently when he
applied for citizenship, it would have been only a civil
action. The government did not rest on those
misrepresentations, however. Instead, the respondents
presented their case as showing that Demjanjuk was guilty of
mass murder.

The OSI prosecutors knew that Brady requires disclosure
of exculpatory information in criminal cases. The Director
of OSI, Mr. Ryan, testified that it is “fundamentally
unfair” not to follow the Brady principle in OSI cases and
that he intended for the office to follow this principle of
full disclosure of exculpatory material. (Ryan Tr. at 37.)
It is not sufficient to say, as the Special Master
concludes, that no prosecutorial misconduct occurred under
the Brady principle because no particular individual at OSI
has been proved to have acted in “bad faith” with the
express intent of suppressing exculpatory evidence.

In Brady itself, the Court stated that the failure to
disclose material information is a due process violation
“irrespective of the good faith or bad faith of the
prosecution.” Brady v. Maryland, 373 U.S. 83, 86, 10 L. Ed.
2d 215, 83 S. Ct. 1194 (1963). Otherwise, the prosecutor can
proclaim that his heart is innocent and his failures
inadvertent, a claim hard to disprove, while at the same
time completely disregarding his duty to disclose.

The Court has also made plain that the prosecution cannot
escape its disclosure obligation by compartmentalizing
information or failing to inform others in the office of
relevant information. In Giglio v. United States, 405 U.S.
150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), the government
made the same “the-right-hand-did-not-know-what-the-left-
hand-was-doing” argument as it makes here. The Court was
quick to reject this excuse as a justification for
withholding exculpatory material. The Court pointed out that
“the prosecutor’s office is an entity and as such it is the
spokesman for the government.” The Court held that the
prosecutor’s office–here OSI– is responsible as a
corporate entity for disclosure. n2

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

n2 The full paragraph in which this rule is expressed is
as follows: In the circumstances shown by this record,
neither DiPaoloa’s authority nor his failure to inform his
superiors or his associates
is controlling. Moreover, whether the nondisclosure was a
result of negligence or design, it is the responsibility of
the prosecutor. The prosecutor’s office is an entity and as
such it is the spokesman for the Government. A promise made
by one attorney must be attributed, for these purposes, to
the Government. See Restatement (Second) of Agency @ 272.
See also American Bar Association, Project on Standards for
Criminal Justice, Discovery and Procedure Before Trial @
2.1(d). To the extent this places a burden on the large
prosecution offices, procedures and regulations can be
established to carry that burden and to insure communication
of all
relevant information on each case to every lawyer who deals
with it. 405 U.S. at 154.

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


The record is replete with evidence that Allan Ryan was
considering extradition of Nazi war criminals to Israel even
before Demjanjuk’s denaturalization become final. When that
event occurred, the government did not deport Demjanjuk;
instead, it sought his extradition for trial as Ivan the
Terrible pursuant to Israel’s request.

The consequences of denaturalization and extradition
equal or exceed those of most criminal convictions. In this
case, Demjanjuk was extradited for trial on a charge that
carried the death penalty. OSI is part of the Criminal
Division of the Department of Justice. The OSI attorneys
team with local United States Attorneys in seeking
denaturalization and extradition, and they approach these
cases as prosecutions. In fact, in correspondence and
memoranda several of the
respondents refer to their role in the Demjanjuk case as
prosecutors. We believe the OSI attorneys had a
constitutional duty to produce “all evidence favorable to an
accused [Demjanjuk],” which the Special Master found he had
requested and that was “material . . . to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 U.S. at 87.

Thus, we hold that the OSI attorneys acted with reckless
disregard for the truth and for the government’s obligation
to take no steps that prevent an adversary from presenting
his case fully and fairly. This was fraud on the court in
the circumstances of this case where, by recklessly assuming
Demjanjuk’s guilt, they failed to observe their obligation
to produce exculpatory materials requested by Demjanjuk.

Newsgroups: alt.revisionism
Subject: Demjanjuk Case – U.S. Court of Appeals (7 of 17)
Followup-To: alt.revisionism
Organization: The Nizkor Project
Keywords: Sobibor,Treblinka,Demjanjuk

Last-modified: 1996/03/07