Demjanjuk Memo | 19Jul2011 | Tigar/Terez/Werneke
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT
UNITED STATES OF AMERICA,
: Case No. 1:99CV1193
Dan Aaron Polster
MEMORANDUM OF JOHN DEMJANJUK IN
OF MOTION PURSUANT TO
FED. R. CIV. P. 60
MICHAEL E. TIGAR
552 FEARRINGTON POST
PITTSBORO, NORTH CAROLINA 27312
DENNIS G. TEREZ (0030065)
VICKI WERNEKE (OK 13441)
OFFICE OF THE FEDERAL PUBLIC DEFENDER
NORTHERN DISTRICT OF OHIO
1660 W. 2ND STREET, SUITE 750
CLEVELAND, OHIO 44113
(216) 522-4321 (f)
COUNSEL FOR JOHN DEMJANJUK
July 19, 2011
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Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Standards for Review and Relief Pursuant to Fed. R. Civ. P. 60.. . . .
. . . . . . . . . . . . . . . . . . . . . . . . 6
The Government’s Unambiguous Discovery Obligations. . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . 10
Continuation of the Withholding of Relevant and Exculpatory Materials.
. . . . . . . . . . . . . . . . . . . . . . 19
Redress for Fraud on the Court. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
A: Timeline (see notice of manual filing)
B: U.S. v.
Demjanjuk, Case No. 99CV1193, Transcripts, Volumes
1-7 (see notice of
C: Newspaper Article: “AP Exclusive: FBI thought Demjanjuk
April 12, 2011
D: Withdrawal Notice of January 21, 2010 from NARA, with FBI
dated March 4, 1985 attached
E: FBI Transmittal Communication of March 4, 1985; From SAC
Director FBI (blue version)
F: FBI Memorandum dated March 4, 1985
G: FBI Transmittal Communication of March 4, 1985
H: AP Newspaper Article: “Demjanjuk’s lawyer asks to delay
trial over authenticity
of old Nazi ID card,”, Cleveland.com,
April 13, 2011
I: Memorandum Communications: Demjanjuk FOIA requests; from
to Martin Sachs; from Martin Sachs to Neal Sher; dated June 1986
J: Declaration of Michael E. Tigar of July 13, 2011
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K: Declaration of John Broadley Pursuant to 28 U.S.C. 1746 of
July 14, 2011
Exhibit L: Newspaper Article: “Public defender in Cleveland
help John Demjanjuk,
says case may have been tainted,” Cleveland.com,
April 29, 2011
M: Certificate of Translation of September 16, 2002; re:
Card for Ivan
N: Certificate of Translation of April 29, 1996; re:
Interrogation Protocol of Vasiliu
O: Translation from the German Language; dated April 12,
Service Memo to
Prof Dr. K. Konikol
P: Withdrawal Notice of January 21, 2010 from NARA with FBI
Communication dated March 16, 1981; From SAC Cleveland, To Director FBI
Q: Withdrawal Notice of January 21, 2010 from NARA with FBI
Communication dated March 27, 1981; From Director FBI to SAC Cleveland
Joseph Griffin, Jr.
R: Withdrawal Notices of September 7, 2004, from NARA; Re:
S: Withdrawal Notices of September 7, 10, and 15, 2004, from
NARA; Re: Judicial
Assistance: War Crimes Investigations
T: Withdrawal Notices of September 7, 15, 18, 20, and 21,
from NARA; Re:
Justice Dept. Is a dupe of Communist propaganda
U: FOIA Request submitted to NARA on May 20, 2011, by Vicki
Werneke, with 7
V: FOIA Request submitted to NARA on May 20, 2011, by Vicki
Werneke, with 25
withdrawal notices attached
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IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT
UNITED STATES OF AMERICA,
: Case No.
Judge Dan Aaron Polster
MEMORANDUM OF JOHN
IN SUPPORT OF MOTION
TO FED. R. CIV. P. 60
John Demjanjuk, by his undersigned counsel, files this memorandum in
support of his
motion pursuant to Fed. R. Civ. P. 60(b)(6) and 60(d)(1) and (3) for
relief from the final judgment
and order, and to set aside that final judgment that led to his
denaturalization and deportation to the
Federal Republic of Germany where he now resides. The Supreme Court has
given us clear
guidance for this review.
Before sustaining any
decision to impose the grave
consequences of denaturalization, the Court has regarded it as
its duty “to scrutinize the record with the utmost care”
construing “the facts and the law . . . as far as is reasonably
possible in favor of the citizen.”
Fedorenko v. United
States, 449 U.S. 490, 522-23 (1981) (Burger, C.J.,
Blackmun, J. concurring in
judgment). The law must protect United States citizens from political
pressures, both foreign and
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Were the law otherwise,
valuable rights would rest upon a
slender reed, and the security of the status of our naturalized
citizens might depend in considerable degree upon the political
temper of majority thought and the stresses of the times. Those
are consequences foreign to the best traditions of this nation,
and the characteristics of our institutions.
Schneiderman v. United
States, 320 U.S. 118, 158-59 (1943). The
government’s actions towards
Mr. Demjanjuk prevented that close scrutiny as required by law.
The lengthy procedural history of this case can be found in United
States v. Demjanjuk, 367
F.3d 623, 627 (6th Cir. 2005), cert
denied, 543 U.S. 970 (2005);
Demjanjuk v. Petrovsky,
338 (6th Cir. 1993), cert.
denied sub nom. Rison v. Demjanjuk, 513 U.S.
914 (1994). The following
summary provides salient facts up to the present. A more thorough
summary can be found through
the attached timeline. Exh. A.
In 1981, this Court revoked Mr. Demjanjuk’s certificate of
naturalization, and vacated the
order admitting him to United States citizenship. United States v.
Demjanjuk, 518 F. Supp. 1362
(N.D. Ohio 1981), aff'd
per curiam, 680 F.2d 32 (1982), cert. denied,
459 U.S. 1036 (1982). The
proceedings were conducted by the Department of Justice’s Office of
Special Investigations. In
1985, the Court of Appeals upheld an order extraditing Mr. Demjanjuk to
Israel. Demjanjuk v.
776 F.2d 571 (6th Cir. 1985), cert.
denied, 475 U.S. 1016
(1986). Mr. Demjanjuk was
 Exh. A
is an interactive timeline reflecting the majority of key events
1 in these legal
proceedings spanning over three decades. To minimize the volume of
paper in this filing and to maximize
the value of this timeline as a reference tool, defense counsel submit
this particular exhibit in an electronic
format only. Some of the events reflected in the timeline have
documents associated with them that we could not obtain in time for
this filing. Some of the documents obtained from
the Court Clerk’s office are not complete. To the extent we are able to
expand the timeline to make it
more comprehensive, we will seek leave to file amended versions of it.
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indicted and convicted before an Israeli court in 1988 for being
trained in Trawniki, for being an SS
guard at Sobibor, and for being “Ivan the Terrible” of Treblinka, for
which he was sentenced to
death by hanging. He appealed his conviction and sentence.
While Mr. Demjanjuk’s appeal to the Supreme Court of Israel was
articles appeared saying that the evidence against him was deeply
flawed, and that this Court (the
late former Chief Judge Frank J. Battisti) and the Court of Appeals had
relied on that flawed
evidence. The allegations were essentially that the government withheld
information from the
defense and from the Courts indicating Mr. Demjanjuk was not “Ivan the
Terrible” of Treblinka.
On June 5, 1992, the Court of Appeals issued an order setting a
briefing schedule with an
eye to reopening the extradition case. That order read in pertinent
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 writ of habeas
corpus. Our previous study of the record and numerous recent
press reports and articles in the United 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. . . . 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 . . . .
Demjanjuk v. Petrovsky,
supra, Appendix 1, 10 F.3d at 356-57.
On August 11, 1992, the Court of Appeals heard oral argument, and six
days later ordered
hearings to be conducted by a Special Master on possible fraud on the
court. A year later, the
Supreme Court of Israel reversed the conviction of Mr. Demjanjuk. The
Court of Appeals then
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issued an order requiring his return to the United States while it
reviewed the Special Master’s
findings. See Bench Ruling of Aug. 3, 1993, 1993 WL 394773 (6th Cir.
1993). Later that year, the
Court of Appeals found the government had committed fraud on the court.
The fraud was
specifically the failure to turn over to the defense three protocols or
interviews of individuals whose
statements constituted exculpatory evidence, a list of known guards at
Treblinka that did not contain
Mr. Demjanjuk’s name, and an interview memorandum made following the
interview of former SS
guard Otto Horn who served at Treblinka. “[W]e conclude that OSI did so
engage in prosecutorial
misconduct that seriously misled the court.” Demjanjuk v. Petrovsky,
F.3d at 339. The Court
of Appeals found OSI attorneys had failed in their obligations to the
Court, to the defense, and to
The attitude of the OSI
attorneys toward disclosing information to
Demjanjuk’s counsel was not consistent with the government’s
obligation to work for justice rather than for a result that favors its
attorneys’ preconceived ideas of what the outcome of legal
proceedings should be.
* * * * *
The OSI attorneys acted with reckless disregard for their duty to the
court and their discovery obligations in failing to disclose at least
three sets of documents in their possession before the proceedings
against Demjanjuk ever reached trial.
With the extradition judgment and mandate recalled and set aside, this
Court (former Judge
Paul R. Matia) then reconsidered the first denaturalization judgment.
The Court reviewed the
relevant evidence, and found the fraud had infected the first
denaturalization against Mr. Demjanjuk
in this Court (the late former Chief Judge Frank J. Battisti). United
States v. Demjanjuk, C77-923,
1998 U.S. Dist. LEXIS 4047 (N.D. Ohio Feb. 20, 1998). In fact, the
Court found the government
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had perpetrated additional
fraud on the court by failing to share with
defense counsel the identity
of Jacob Reimer who served as a clerical official at the Trawniki
training camp. OSI had
interviewed Mr. Reimer, and determined he “had no useful information.”
Id. at *
12. OSI decided
not to reveal the existence of Mr. Reimer to defense counsel. Id. at
The Court believes that
simply vacating the judgment is not
a sufficient sanction in light of the magnitude of the offense. Doubt
cast upon the fairness of one judicial proceeding infects the whole
justice system. Such
behavior whether or not intentional must not
tolerated. The sanction for it must be appropriately
in fashioning a response, a court must be vigilant that it not allow
unspeakable horrors to go unpunished in the name of preserving the
abstract principle of justice. Just as the government should not be
able to profit from its misbehavior, neither should a defendant be
insulated from the consequences of his alleged moral turpitude
because he becomes the inadvertent beneficiary of sanctions against
Accordingly, it is the judgment of the Court that this case be
dismissed without prejudice. Upon review of its evidence, if the
government still believes it has a credible case against the defendant,
it may refile an appropriate complaint seeking to revoke and set aside
the order admitting the defendant to citizenship and canceling his
certificate of naturalization, and attempt to
prove its allegations on
level playing field. Our system of justice requires no
less of the
government and demands no more of the defendant.
*18-20 (emphasis added, footnote omitted).
About a year and a half later, the government filed a new
denaturalization complaint -- the
same case in which Mr. Demjanjuk now files the instant motion. The case
was tried to this Court
(former Chief Judge Paul R. Matia) which entered judgment against Mr.
Demjanjuk, and the Court
of Appeals affirmed the judgment. Mr. Demjanjuk was then deported to
Germany where he stood
trial in Munich’s Landgericht for being an accessory to murder as a
guard during World War II at
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the Sobibor camp in what was then occupied Poland. A panel
of three judges trained
in the law and two lay judges convicted Mr. Demjanjuk on May 12, 2011,
and sentenced him to five
years imprisonment with credit for time served (approximately two
years). Both sides have
appealed to the Bundesgerichtshof in Karlsruhe. Mr. Demjanjuk was
released pending further
proceedings, and is presently living in a nursing home in Bavaria due
to his frail health.
for Review and Relief Pursuant to Fed. R. Civ. P. 60
The exceptional and extraordinary circumstances described in this
motion meet the standards
in Demjanjuk v.
Petrovsky and in this Court’s 1998 order for the remedy
we seek. Fed. R. Civ. P.
60(b)(6) provides: “On motion and just terms, the court may relieve a
party or its legal
representative from a final judgment, order, or proceeding for . . .
any other reason that justifies
relief.” This rule gives the Court broad authority to set aside a final
judgment on a case-by-case
basis “when the movant shows ‘any . . . reason justifying relief from
the operation of the judgment’
other than the more specific circumstances set out in Rules
v. Crosby, 545
 In the German
legal system, the Landgericht is the trial level for a
wide variety of criminal
charges. In this instance pursuant to German law and procedure, a
specially constituted criminal court known as the Schwurgericht heard
Mr. Demjanjuk’s case.
 Having both legally trained judges and lay judges sit together is a
standard practice in
Germany’s justice system.
 The prosecution initially appealed the decision by the Landgericht
not to detain Mr. Demjanjuk
and the sentence of five years in custody. The prosecution had
requested a sentence of six years with
immediate remand into detention. The defense has appealed the
conviction. The Bundesgerichtshof in
Karlsruhe (the Supreme Court of Germany, but distinct from the
Bundesverfassungsgericht also in Karlsruhe which is the Constitutional
Supreme Court of Germany) will ultimately
decide the appeals. Under German law, the Landgericht will issue in
several months’ time a written
opinion (equivalent to a judgment and commitment order in narrative
form) regarding Mr. Demjanjuk’s
conviction. Not until the appeal has been decided does German law give
legally binding effect to the conviction
against Mr. Demjanjuk. The
prosecution just recently withdrew its complaint against the release of
Mr. Demjanjuk which was pending
since May 12, 2011 before the Oberlandesgericht in Munich (one level
above the Landgericht which released Mr. Demjanjuk ).
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U.S. 524, 529 (2005) (quoting Liljeberg
v. Health Services Acquisition
Corp., 486 U.S. 847, 863,
n.11 (1988); Klapprott v. United States, 335 U.S. 601, 613 (1949)
(opinion by Black, J.)); Olle
Henry & Wright
Corp., 910 F.2d 357, 365 (6th Cir. 1990)
(internal citations omitted).
A movant satisfies the burden under Rule 60(b)(6) upon a timely showing
or extraordinary circumstances.” Olle
v. Henry & Wright Corp.,
supra; Blue Diamond Coal Co. v.
Trustees of the UMWA
Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.
2001); see also
Gonzalez v. Crosby,
545 U.S. 524, 535-36 (2005); Ackermann
States, 340 U.S. 193, 199
(1950); Gerber v.
Riordan, 2010 WL 906434, *1 (N.D. Ohio Mar. 12, 2010)
(“[r]elief under Rule
60(b)(6) requires a showing of extraordinary circumstances”) (internal
citations omitted). Cf.
Leverton v. Pope,
100 F. App’x 263 (5th Cir. 2004) (upholding lower
court’s denial of Rule 60(b)(6)
motion citing to lack of “extraordinary circumstances”).
A finding of exceptional or extraordinary circumstances requires a
balancing of numerous
factors, “including the competing policies of the finality of judgments
and the ‘incessant command
of the court’s conscience that justice be done in light of all the
facts.’ ” Blue Diamond
Coal Co. v.
Trustees of the UMWA
Combined Benefit Fund, supra, 249 F.3d at 529
(quoting Griffin v.
722 F.2d 667, 680 (11th Cir. 1984)). When such
extraordinary circumstances are
present, courts have significant equitable powers under Rule 60(b)(6).
See Thompson v. Bell,
F.3d 423, 444 (6th Cir. 2009).
To be timely, the movant must file a Rule 60(b)(6) motion within a
reasonable amount of
time. See Conner v.
Attorney General, 96 F. App’x 990, 992 (6th Cir.
2004). It is at the discretion
of the Court to determine a “reasonable amount of time,” see Waiferson,
Ltd. v. Classic Music
976 F.2d 290, 292 (6th Cir. 1992), considering such factors as
“the facts of the given case
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including the length and circumstances of the delay, the prejudice to
the opposing party by reason
of the delay, and the circumstance compelling equitable relief.” Olle
v. Henry & Wright Corp.,
F.2d at 365.
In D’Ambrosio v. Bagley,
688 F. Supp. 2d 709 (N.D. Ohio Mar. 3, 2010),
Case No. 10-3247 (6th Cir.), this Court (former Judge Kathleen M.
O’Malley) last year made a
finding of “extraordinary circumstances” where it was discovered that,
although the State had been
previously ordered to reveal exculpatory evidence to Mr. D’Ambrosio’s
lawyers, “[t]he State
engaged in substantial inequitable conduct, wrongfully retaining and
delaying the production of yet
more potentially exculpatory evidence.” 688 F. Supp. 2d at 728. The
inequity of the State’s actions
stemmed from the fact that the evidence “would have substantially
increased a reasonable juror’s
doubt of . . . guilt.” Id.
As such, the Court vacated the prior
judgment pursuant to Rule 60(b)(6),
and ordered the State was barred from reprosecuting Mr. D’Ambrosio as a
sanction for its continued
misconduct. 688 F. Supp. 2d at 735.
Fed. R. Civ. P. 60(d)(1) provides in relevant part: “[Rule 60] does not
limit a court’s power
to entertain an independent action to relieve a party from a judgment,
order, or proceeding.” An
independent cause of action under Rule 60(d)(1) is to be applied in
“those cases of ‘injustice which,
in certain instances, are deemed sufficiently gross to demand a
departure’ from rigid adherence to
the doctrine of res judicata.” United
States v. Beggerly, 524 U.S. 38,
46 (1998) (quoting Hazel-Atlas
Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 244 (1944)). Thus, a
movant must show “unusual
or exceptional circumstances” to gain relief through an independent
cause of action under Rule
60(d)(1). Rader v.
Cliburn, 476 F.2d 182, 184 (6th Cir. 1973).
In Barrett v. Sec’y of
Health & Human Servs., 840 F.2d 1259
(6th Cir. 1987), the Court of
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Appeals elaborated, outlining the elements necessary for a Rule
60(d)(1) independent cause of
action: “(1) a judgment which ought not, in equity and good conscience,
to be enforced; (2) a good
defense to the alleged cause of action on which the judgment is
founded; (3) fraud, accident, or
mistake which prevented the defendant in the judgment from obtaining
the benefit of his defense;
(4) the absence of fault or negligence on the part of the defendant;
and (5) the absence of any
adequate remedy at law.” 840 F.2d at 1263. The Court of Appeals most
recently reaffirmed these
standards in Mitchell
v. Rees, No. 09-5570, 2011 WL 2566940 (6th Cir.
June 30, 2011).
Fed. R. Civ. P. 60(d)(3) “ does not limit a court’s power to set aside
a judgment for fraud on
the court.” To establish fraud upon the court under this rule, a movant
must show that the alleged
conduct was all of the following: (1) committed on the part of an
officer of the court; (2) directed
to the judicial machinery itself; (3) intentionally false, willfully
blind to the truth, or is in reckless
disregard for the truth; (4) a positive averment or a concealment when
one is under a duty to
disclose; and (5) deceptive of the court. Workman v. Bell,
331, 336 (6th Cir. 2000).
As the Court of Appeals held in the first finding of fraud on the court
in Mr. Demjanjuk’s
“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.”
Demjanjuk v. Petrovsky, supra, 10 F.3d at 353 (quoting 7 MOORE’S FED.
PRAC. AND PROCEDURE ¶ 60.33).
Like the other claims asserted by this motion, a claim under Rule
60(d)(3) for fraud on the
court is not subject to any statute of limitations. See Computer
Leasco, Inc. v. NTP, Inc., 194 F.
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App’x 328, 334 (6th Cir. 2006) (“[Rule 60(d)] provides a savings clause
. . . that allows judgments
to be attacked without regard to the passage of time”). Rule 60(d)(3)
also authorizes extraordinary
relief upon the proper finding. It expressly provides: “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.” Fed. R. Civ. P.
60(d)(3). Again as illustrated in this
very case, a “federal court has the inherent power to vacate its own
judgment upon proof that a fraud
has been perpetrated upon the court.” Demjanjuk, supra,
10 F.3d at 358
(internal citations omitted).
Given the potency of this power, however, it must be exercised with
restraint and discretion.
A court has inherent authority to grant relief for “after-discovered
fraud” regardless when
the judgment has been entered. Demjanjuk,
supra, 10 F.3d at 356. See
also Hazel-Atlas Glass Co.
v. Hartford Empire Co.,
322 U.S. 238, 244 (1944). This equity rule is
appropriate where the court
deems circumstances “sufficiently gross to demand a departure from
rigid adherence to the term
rule.” 322 U.S. at 244. Courts have used this power without hesitation
where enforcement of its
earlier judgment is “manifestly unconscionable.” Id.
Government’s Unambiguous Discovery Obligations
To say that the parties have fought tooth and nail over discovery
issues is an understatement.
Yet it is on this very issue of discovery that this Court and the Court
of Appeals found the
government to have committed fraud on the court multiple times -- fraud
that arose because the
government failed to produce exculpatory materials it possessed to
demonstrate Mr. Demjanjuk was
not “Ivan the Terrible” of Treblinka even though it had claimed
otherwise for years and years. The
government knew better. Its discovery obligations were broad and
They begin with the federal rules themselves. A denaturalization
proceeding is a civil
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proceeding, thus subject to the Federal Rules of Civil Procedure.
United States v. Mandycz,
F.3d 951, 962 (6th Cir. 2006); Addington
v. Texas, 441 U.S. 418, 424
(1979). Two rules in
particular, Fed. R. Civ. P. 26 and 34, obligated the government to
disclose materials in its
possession, custody, or control relevant to the government’s claim and
Mr. Demjanjuk’s defense.
“Parties may obtain discovery regarding any matter . . . which is
relevant to the subject
matter involved in the pending action, whether it relates to the claim
or defense of the party seeking
discovery . . . including the existence, description, nature, custody,
condition, and location of any
books, documents, or other tangible things.” Fed. R. Civ. P. 26(b)(1).
These materials are subject
to discovery “upon a showing that the party seeking discovery has
substantial need of the materials
in preparation of the party’s case and that the party is unable without
undue hardship to obtain the
substantial equivalent of the materials by other means.” Fed. R. Civ.
P. 26(b)(3). The government’s
discovery obligations covered more and more materials as the Iron
Curtain fell giving the
government new access to foreign archives from which it obtained
information and materials. “A
party is under a duty to supplement at appropriate intervals its
disclosures under subdivision (a) if
the party learns that in some material respect the information
disclosed is incomplete or incorrect
and if the additional or corrective information has not otherwise been
made known to the other
parties during the discovery process or in writing.” Fed. R. Civ. P.
The government had innumerable opportunities to comply with these
obligations while Mr.
Demjanjuk was in this country, whether it be in the first
denaturalization proceeding, the second
denaturalization proceeding, the extradition or deportation
proceedings, or appeals. By no means
rule quotations are from the 1999 version of the Federal Rules of
Civil 5 Procedure as they
were in effect when the government initiated this case.
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an exhaustive list, the instances detailed below provide a snapshot of
the many times the
government’s discovery obligations were made clear -- and why little
patience should be shown
now for its disregard of those obligations.
United States v.
Demjanjuk, Case No. C77-923
(first denaturalization proceeding) ]
Demjanjuk’s first discovery motion: requesting
government produce documents and
for defense inspection and copying.
Government’s motion for extension of time to
documents and other material for defense
Government’s answers to Demjanjuk’s
Government’s motion to overrule Demjanjuk’s
request for production
of documents and
other materials (11/18/1977).
Government’s answers to Demjanjuk’s second set of
Demjanjuk’s motion to compel discovery.
6/13/1979 Copy of letter from John Martin (defense) to John
Government’s interrogatories for Demjanjuk filed.
Government 9/21/1979 Copy
of letter from Horrigan to Martin regarding
Copy of letter from Martin to Horrigan regarding
Government’s response to Demjanjuk’s request for
production and copying of
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Government’s supplemental answers to Demjanjuk’s
Government’s motion for extension to conduct
Government’s second supplemental answers to
Government’s motion for protective order to shield
public disclosure the names
contained in affidavit.
extending discovery until
Government’s motion for a protective order is
Government’s third supplemental answers to
Government’s fourth supplemental answers to
Memorandum and order:
denying Demjanjuk’s motion to
prohibit use of
Government pay expenses of
defense counsel to
depositions in Germany;
denying Demjanjuk’s motion
Order extending deadline for all discovery up to and
Germany deposition to
take place on 2/22/1980.
Demjanjuk’s motion to compel.
Government’s response to Demjanjuk’s motion to
Government’s sixth supplemental answers to
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Order: Demjanjuk’s motion to compel answers to
of interrogatories is
Demjanjuk’s oral motion that deposition of
Schaefer be delayed or
Government’s motion for protective order regarding
Demjanjuk’s third set of interrogatories.
Government’s answers to Demjanjuk’s third set of
Government’s motion for protective order regarding
supplemental answers to Demjanjuk’s
Demjanjuk’s motion to compel answers to
Government’s supplemental brief in support of
facts and authenticity of documentary
admitted and established.
Government’s motion for extension of discovery.
Government’s amended motion for extension of
Government’s answer to Demjanjuk’s motion to
answers to interrogatories
Memorandum and order extending discovery until
with the exception that
not depose Demjanjuk’s wife.
Memorandum and order providing certain
documentary evidence requested
for admission be
taken to establish facts and
Memorandum and order regarding government’s
Government’s eighth supplemental answers to
Government’s answers to Demjanjuk’s fourth set of
Doc #: 222 Filed: 07/19/11 17 of 45. PageID #:
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Demjanjuk’s motion to extend discovery.
Demjanjuk’s motion to compel.
Government’s motion for time extension until
to respond to
Demjanjuk’s motion to
Order granting government leave to respond to
interrogatories on or before
Demjanjuk’s motion to extend discovery
of filing fifth set of
Order denying Demjanjuk’s motion to compel
to interrogatories 5, 6,
and 8; further
granting motion as to interrogatory 10;
motion as to
Government’s answers to Demjanjuk’s fifth set of
Government’s answers to Demjanjuk’s fourth set of
Demjanjuk’s motion to compel.
Demjanjuk’s motion to compel government to
interrogatories 10 and 15
of the fourth set of
Memorandum and order denying Demjanjuk’s
Government’s supplemental answers to Demjanjuk’s
set of interrogatories.
Government’s second supplemental answers to
Demjanjuk’s fourth set of
Government’s supplemental answers to Demjanjuk’s
Government produces documents to Demjanjuk.
Government’s supplemental answers to Demjanjuk’s
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States v. Demjanjuk, Case No. 99-CV-1193 (second
denaturalization proceeding) ]
Case management conference ordering completion of
(1) Order extending discovery deadline to 8/31/2000.
Motion deadline set,
witnesses to be identified and reports
Demjanjuk files conditional motion to compel
Government files motion to strike Demjanjuk’s
conditional motion to compel
Marginal entry order denying Demjanjuk’s
conditional motion to compel
Emergency motion for continuance based on
government’s discovery abuses.
Supplemental filing in support of motion for
Government’s response to Demjanjuk’s emergency
Demjanjuk’s motion to take discovery concerning
investigation in March & April,
2001 and not
to Demjanjuk until
Letter to court from Michael Tigar regarding
and log of Tigar’s
progress on the case.
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Memorandum opinion and order:
denying Demjanjuk’s emergency
Demjanjuk’s motion for
is granted as to
requests 2, 3, & 4 and
to request 1.
5/23/2001 Demjanjuk’s memorandum reporting on status of
The case law adds further clarity to the government’s discovery
obligations. Supreme Court
jurisprudence establishes that the government has an affirmative and
ongoing obligation to disclose
exculpatory evidence to the defense, and failure to do so is a
constitutional violation. These due
process principles were firmly established well before Mr. Demjanjuk’s
hearing, thereby placing upon the government the affirmative duty to
disclose exculpatory evidence.
The fact the proceedings against him were not directly criminal in
nature does not relieve the
government of these clear mandates and obligations under Brady v.
Maryland, 373 U.S. 83 (1963),
as the Sixth Circuit stated in Demjanjuk
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.
10 F.3d at 353.
the Supreme Court ruled that “suppression by the [government]
favorable to an accused upon request violates due process where the
evidence is material either to
Doc #: 222 Filed: 07/19/11 20 of 45. PageID #:
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guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. at
87. The deliberate deception by the government in the presentation of
known false evidence is
incompatible with the “rudimentary demands of justice.” Giglio v.
United States, 405 U.S. 150, 153
(1972) (internal citations omitted). “[T]he same result obtains when
the [the government], although
not soliciting false evidence, allows it to go uncorrected when it
appears,” Napue v.
U.S. 264, 269 (1959), for a new trial is required if “the false
testimony could . . . in all reasonable
likelihood have affected the judgment of the [fact finder].” 360 U.S.
at 271. The government’s
failure to disclose requested impeachment evidence that the defense
could have used to conduct an
effective cross-examination of important prosecution witnesses
constitutes “ ‘constitutional error
of the first magnitude and no amount of showing of want of prejudice
[can] cure it.’ ” Davis
U.S. 308, 318 (1974) (quoting Brookhart
v. Janis, 384 U.S.
1, 3 (1966)).
constitutional duty is triggered by the potential impact
of favorable but undisclosed evidence, a showing of materiality does
not require demonstration by a preponderance that disclosure of
suppressed evidence would have resulted ultimately in the
defendant’s acquittal whether based on the presence of reasonable
doubt or acceptance of an explanation for the crime that does not
inculpate the defendant.
Kyles v. Whitley,
514 U.S. 419, 434 (1985). The second aspect requires
that “[a] defendant need not
demonstrate that after discounting the inculpatory evidence in light of
the undisclosed evidence,
there would not have been enough left to convict.” 514 U.S. at 434-35.
The third aspect identified
is “once a reviewing court . . . has found constitutional error there
is no need for further harmlesserror
review.” 514 U.S. at 435. “The fourth and final aspect of . . .
materiality to be stressed here
is its definition in terms of suppressed evidence considered
collectively, not item-by-item.” 514
U.S. at 436. Defendants are also not required to “scavenge for hints of
Doc #: 222 Filed: 07/19/11 21 of 45. PageID #:
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when the prosecution represents that all such material [had] been
disclosed.” Banks v.
U.S. 668, 695 (2004).
“The United States Attorney is the representative not of an ordinary
party to a controversy,
but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case,
but that justice shall be done.” Berger
v. United States, 295 U.S. 78,
88 (1935). In Mr. Demjanjuk’s
case, the government attorneys appear to have forgotten this bedrock
of the Withholding of Relevant and Exculpatory Materials
Three decades of litigation have produced large quantities of documents
government. The defense has also obtained large quantities of documents
through its own
investigation. No part of that history, however, absolves the
government of its most recent
discovery lapses that severely prejudiced Mr. Demjanjuk’s interests,
impugned the fairness of these
proceedings, and undermined the integrity of the result in this case.
The most publicized of these lapses occurred this spring. On April 12,
Press reporters David Rising and Randy Herschaft published an article
revealing that they had found
recently declassified FBI documents dated March 4, 1985 in the National
Archives and Records
Administration facility in College Park, Maryland. The FBI documents
assert that the key evidence
against Mr. Demjanjuk was “quite likely fabricated” by the KGB. Exh. C.
The most widely
reported document is Exh. D.
There is also an accompanying transmittal
document that, while not
the subject of news reporting, possibly presents the more serious
discovery violation. Exh. E.
May 27, 2011, the government produced to the undersigned counsel
slightly different copies of these
same documents. Exhs.
F and G.
The FBI wrote both documents when Mr.
Demjanjuk was in
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custody on a warrant that ultimately resulted in his extradition to
Israel in 1986.
German prosecutor Dr. Hans-Joachim Lutz initially said he was unaware
of the FBI report.
C, p.4. He later told the German court that following the AP
story, the United States
Department of Justice contacted him and told him that he had indeed
seen the FBI report because
it had been shown to him at the U.S. consulate in Munich. He told the
judges, though, that he did
not recall ever having seen the FBI report. Exh. H,
p.2. While there is
no reason to doubt the DOJ
showed Dr. Lutz the March 1985 Cleveland FBI documents, the DOJ
apparently never gave him an
electronic or paper copy. German law requires Dr. Lutz to give the
defense any electronic or written
material relevant to the case. Assuming Dr. Lutz complied with his
discovery obligations under
German law, Mr. Demjanjuk’s defense team never received a copy of the
March 1985 Cleveland
FBI documents until after
the AP article had appeared -- near the close
of the proceedings in
Germany after all relevant witness testimony had been concluded. Exh.
C, p.4. In other words, this
discovery was revealed too late to have any meaningful impact on the
proceedings in Germany.
The March 1985 Cleveland FBI documents were initially classified
“secret.” During the
1980s when Cleveland FBI was evidently reaching its conclusions about
the evidence against Mr.
Demjanjuk, OSI was actively seeking to prevent Mr. Demjanjuk’s defense
team from having access
to government materials that might relate to the ongoing prosecution in
Israel. In mid-1986, OSI
attorney Bruce J. Einhorn wrote to fellow OSI attorney Martin H. Sachs,
arguing that OSI should
resist a FOIA application by the Demjanjuk family and others. Among the
purposes of such
resistance was “[c]oncern over the integrity of the Israeli prosecution
and the fairness to the
defendant -- release of our material now would, in all probability,
reveal (and could easily
undermine and prejudice) the Israeli prosecution strategy.” Exh. I,
p.1. This same sentiment and
Doc #: 222 Filed: 07/19/11 23 of 45. PageID #:
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suggestions as to how to keep the materials from being disclosed to the
public were passed along
to OSI director at the time, Neal M. Sher. Exh. I,
p.2. This sentiment
seemed to have been widely
shared in the ranks of OSI. Exh. I,
This sentiment is remarkable in and of itself, since the decision was
made to withhold the
materials. It is made all the more remarkable when one understands that
the Demjanjuk family was
one of those public petitioners seeking the information through a
Freedom of Information Act
request. Ultimately, two federal courts in Washington, D.C. decided in
favor of the family with
regard to the key materials sought. A government motion for
reconsideration and a motion for a stay
were then denied. See
Nishnic v. U.S. Dept. of Justice, 671 F. Supp.
771 (D.D.C.), aff’d,
844 (D.C. Cir. 1987), recon.
denied, 1987 WL 19434 (D.D.C. Oct. 20,
1987), stay denied,
28478 (D.D.C. Dec. 16, 1987).
The March 1985 Cleveland FBI documents unquestionably fall within the
of Fed. R. Civ. P. 34(a): “any designated documents . . . which
constitute or contain matters within
the scope of Rule 26(b) and which are in the possession, custody or
control of the party upon whom
the request is served.” Yet the government never produced these
documents to the lawyers who
earlier represented Mr. Demjanjuk in this case. See Declaration of
Michael E. Tigar, ¶¶ 9-10 (Exh.
J); Declaration of John Broadley, ¶¶ 10-11 (Exh. K).
Beyond simply Fed. R. Civ. P. 34, the March 1985 Cleveland FBI
documents are relevant
and responsive to any number of discovery requests and disclosure
requirements in (a) the
 Exh. I
illustrates another discovery problem the defense experienced
earlier in this case. The
documents brought together in this particular exhibit were not obtained
via government responses to
discovery requests, but rather by doing a trash pull.
 As before with Fed. R. Civ. P. 26, the language quoted from Fed. R.
Civ. P. 34 is from the
1999 version of the rule when the government began this case.
Doc #: 222 Filed: 07/19/11 24 of 45. PageID #:
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denaturalization case (before the late former Chief Judge Battisti),
(b) the extradition case before
the same judge, (c) the fraud on the court proceedings in the Court of
Appeals, (d) the fraud on the
court proceedings before the Special Master, (e) the litigation on
whether to set aside the first
denaturalization judgment in which litigation the Court (former Judge
Matia) focused on the extent
and nature of government failure to disclose, (f) the affidavit of good
cause attached to the renewed
denaturalization complaint in 1999, (g) the second denaturalization
trial in this Court (former Chief
Judge Matia), (h) the subsequent proceedings in the Court of Appeals
where the reliability of the
Trawniki card and other material that came with Note 100 was in issue,
(i) the Freedom of
Information Act suits the defense initiated in this case, (j) all the
deportation, removal and
extradition proceedings that first removed Mr. Demjanjuk to Israel and
then to Germany, (k) the
trials in both of those countries, and (l) the appeal to the Supreme
Court of Israel that reversed Mr.
Demjanjuk’s first convictions.
The government’s decision not to disclose this discovery during these
proceedings prevented Mr. Demjanjuk from asserting a complete defense
rendering a just decision. The March 1985 Cleveland FBI documents
consist of key exculpatory
memoranda authored by the government’s main investigatory agency in a
branch office situated in
the very town where the proceedings against Mr. Demjanjuk unfolded. One
of the documents states:
Cleveland opines that the
caption matter, like other similar
matters, could easily have been initiated and controlled by the Soviet
Intelligence Service KGB as a means of intimidating Soviet emigres
by effectively silencing Soviet emigre dissidents who speak out
against the Soviet regime, and to demonstrate to those emigres, what
many of them are told upon exiting the USSR that the KGB is in
close cooperation with the intelligence services of all countries,
including the FBI in the U.S. and that any sign of dissident activity
will result in harsh measures being brought to bear against them, even
though they are in the U.S.
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E, p.1. The memorandum goes on to list steps the government
take “in an attempt to
prevent the USDJ from becoming a tool of the KGB.” Id., p.2.
Significant portions of the much publicized report, as well as the name
of the author, are still
redacted because they are classified as “secret.” One of the still
classified paragraphs is the last one
which presumably includes some type of conclusion. Exh. D,
Consequently, defense counsel
can only guess as to the complete contents of this particular document.
But what is revealed would
have been of tremendous value to the defense of Mr. Demjanjuk in this
Unless we conclude the government failed to involve the FBI or its
Cleveland field office
in these proceedings (a supposition belied by other materials and
common sense) or that it simply
overlooked this field office when addressing its obligations to produce
full and complete discovery
(a supposition the runs up against common sense), we are left with the
one plausible conclusion that
the government intentionally withheld these materials. And regrettably,
that is the one supposition
in fact supported by the history of and other discovery produced (or
not produced) in this case.
What other materials are still undisclosed due to a “secret” or “top
secret” stamp or a “withdrawal
notice” placed in a publicly available file where a document would
We now know that, notwithstanding earlier findings by both this Court
and the Court of
Appeals that the government had committed fraud on the court, and
notwithstanding the grave
consequences that resulted from those findings, the government
continued to withhold materials
relevant to the defense. OSI in charge of the denaturalization
proceedings knew its case had been
judged not “credible” by FBI agents as far back as March 1985. Yet the
mentioned these exculpatory materials until after Mr. Demjanjuk had
already been stripped of his
citizenship in this Court and deported to Germany. Why certain
documents identified by their
Doc #: 222 Filed: 07/19/11 26 of 45. PageID #:
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National Archive number have been in part recently declassified and
then ultimately “withdrawn”
from access is still unclear. This silence was throughout the second
denaturalization proceeding that
led to Mr. Demjanjuk’s deportation to Germany. Even when trial counsel
government’s experts in ways that made the conclusions in these
documents plainly relevant, the
government failed to disclose. The playing field this Court and the
Court of Appeals attempted to
make fair is still not level.
The affidavit of good cause attached to the renewed denaturalization
complaint filed in this
case in 1999 contained this introductory paragraph from Dr. Elizabeth
I am the Chief Historian
in the Office of Special Investigations,
Criminal Division, United States Department of Justice. As such, I
have access to records and information of the United States
Immigration and Naturalization Service (“INS”) as well as other
agencies and organizations, regarding the wartime activities,
immigration, and naturalization of John Demjanjuk (“Defendant”).
These records and this information form the basis for this affidavit.
United States v.
Demjanjuk, Case No. 99-CV-1193, Doc. 1, Exh. A,
Despite this expansive reference to a universe of relevant records, the
affidavit does not
contain any information about the March 1985 Cleveland FBI documents.
The defense team had
to wait about a quarter of a century to see these documents, and even
then only with key paragraphs
and authorship redacted. Put another way, the government failed to
provide these documents in the
extradition and deportation proceedings in this Court, in the appeal of
those proceedings to the
Board of Immigration Appeals and the Court of Appeals, in the
proceedings at the trial court level
in Israel and in the proceedings before the Supreme Court of Israel, in
the later fraud on the court
proceedings before this Court and the Court of Appeals, in the Special
Master proceedings leading
up to the fraud on the court finding, or in any of the later litigation
that led to denaturalization and
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the eventual second prosecution of Mr. Demjanjuk in Germany. All this
despite clear orders to the
contrary to produce such materials.
The past history of fraud on the court, the withholding of evidence,
and the possible forgery
of key evidence have plagued this case from the outset -- which makes
the substance of the March
1985 Cleveland FBI documents all the more troubling. After the motion
for appointment of counsel
was filed on April 29, 2011, a Cleveland reporter interviewed Jonathan
Drimmer, one of the
government lawyers in this case. Mr. Drimmer said that he had never
seen or heard of the FBI
report. Yet he is quoted as saying that the Trawniki card is authentic.
Mr. Drimmer’s remarks reflect two considerable concerns that undermine
the integrity and
fairness of the judgment resulting from the proceedings in this case.
First, if a senior DOJ lawyer
has been kept ignorant of this report by the DOJ’s own FBI, we have yet
another troubling example
of the compartmentalization that Circuit Judge Lively condemned.
Because the OSI attorneys
consistently followed an unjustifiedly
narrow view of the scope of their duty to disclose, and
compartmentalized their information in a way that resulted in no
investigation of apparently contradictory evidence, Demjanjuk and
the court were deprived of information and materials that were
critical to building the defense.
Demjanjuk v. Petrovsky,
10 F.3d at 342.
The government appears to be taking the position that because it was
not aware of the report,
it had no duty to disclose it. The government and more specifically OSI
were, however, aware of
the report. The transmittal memorandum begins:
Pursuant to instructions
of FBIHQ in referenced airtel,
Cleveland is enclosing five (5) copies of an LHM captioned as above,
to be discussed with USDJ, Office of Special Investigations, in
coordination with INTD/CI-1A, and Executive Agencies Unit (EAU).
Doc #: 222 Filed: 07/19/11 28 of 45. PageID #:
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E. The Special Agent in Charge of the Cleveland FBI Office
authored the memorandum, and
it was addressed to the Director of the FBI.
The government will presumably argue that the information is not
material, and would not
have made a difference. Even if that were so, that would not, of
course, relieve the government of
its discovery obligations under the law. More importantly, the
questioned material is far from being
merely cumulative of other evidence.
One of the government’s own experts in this case, Dr. Charles Sydnor,
who testified at times
as if his opinions were apodictic, was cross-examined at length about
the content and reliability of
the key archival evidence, otherwise known as Note 100 material, which
includes the World War
II-era photo identification military service pass the government used
to denaturalize, extradite,
remove, and now most recently to convict Mr. Demjanjuk in Germany. He
admitted that if the
person identified on the pass as No. 1393 is not Mr. Demjanjuk, then
none of the other documents
refer to Mr. Demjanjuk. Denat. 2 Tr. 673-74. The government’s
is a chain of which the
key link is the Trawniki card. Yet this is the very link the Cleveland
FBI opined in March 1985 was
“likely fabricated.” Any and all
government documents casting doubt on
that link are relevant, and
 The government
is behaving like social scientists might predict when
cherished opinions are
thrown into doubt by new evidence. Two social scientists, Brendan Nyhan
and Jason Reifler, have
demonstrated that when people who hold a mistaken belief are given
truthful information challenging their
wrong views, they have difficultly accepting the truth, and hold even
more strongly to their errors. The latter
phenomenon is known in social science research as the “backfire
effect.” As anticipated then, government
lawyers show no interest whatever in exploring the significance of the
March 1985 Cleveland FBI documents, and indeed dismiss their
importance. Mark Twain’s wisdom sheds light
here: “It ain’t what you don’t know that gets you into trouble. It’s
what you know for sure that just ain’t
 These transcript references are to the second denaturalization
proceeding, May 29 through June 7, 2001, against Mr. Demjanjuk, i.e.,
the instant case. For the Court’s
convenience, these transcripts are made a part of this motion as Exh.
B, and are filed with this motion in an
electronic format for the ease of use.
Doc #: 222 Filed: 07/19/11 29 of 45. PageID #:
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should have been produced to defense counsel.
Although Dr. Sydnor signed his expert report in this case as sole
author, in fact it was the
product of five or six OSI employees and himself. He did not identify
those employees in the report.
Denat. 2 Tr. 350. But the agents who assisted with the report clearly
did not do their job. There is
no credible excuse for six OSI historians funneling documents to Dr.
Sydnor and not bothering to
provide him or this Court with a set of documents that contain an FBI
conclusion about forgery.
Even if the government were to argue that the FBI’s conclusion had been
later debunked, that
conclusion is still relevant in assessing weight to the strength of the
evidence that led to Mr.
Demjanjuk’s loss of citizenship and the need to stand trial a second
time in a foreign country based
on the same evidence that led to his earlier acquittal by the Supreme
Court of Israel.
Dr. Sydnor admits that the records kept by the KGB were sloppily kept,
written on, and
generally treated in what he said was a “vandalous” way. They had been
used in prosecutions, and
treated sloppily. Denat. 2 Tr. 437, 572. Thus, even he was aware of
circumstances that increase the
risk of error and forgery. Dr. Sydnor also admitted there is no
historical evidence indicating when
the alleged John Demjanjuk left Sobibor. Denat. 2 Tr. 543. The most
important key document came
from KGB archives, and the control of it by that service created the
risks the FBI conclusion
This is also not a situation where one can comfortably sit back and
simply trust the
government. Neither its own track record in this case nor that of its
witnesses is particularly stellar
in light of the previous findings of fraud on the court. According to
his testimony, Dr. Sydnor was
an OSI witness 17 times as of the Demjanjuk trial, yet in the first
denaturalization proceeding, he
was certain that Mr. Demjanjuk was “Ivan the Terrible” of Treblinka, a
“monster” and should be
Case: 1:99-cv-01193-DAP Doc #: 222 Filed: 07/19/11 30 of 45. PageID #:
- 27 -
hanged. Denat. 2 Tr. 320-24. That view, of course, was rejected by this
Court, the Court of
Appeals, and the Supreme Court of Israel. In addition, Dr. Sydnor’s
testimony was rejected in
Germany due to bias. Larry Stewart, a Treasury Department expert on
ink, testified in this case and
in Germany for the government. Yet reliance on Mr. Stewart’s testing
problematic when one recalls that the same government that called him
as a witness in this case
charged him with perjury in connection with testimony given in United
States v. Martha Stewart.
He was acquitted, but the United States officially stated that he had
lied and breached their trust.
There is another troubling non-disclosure issue in this case. Dr.
Sydnor testified that there
is a Soviet-era investigation file card for an Ivan Andreeyich
Demjanjuk for service at Trawniki,
and this is not the John Demjanjuk in this case. This Ivan was born one
year later in the same
village as Mr. Demjanjuk, and people remember him. Denat. 2 Tr. 707-10.
This evidence makes
the forgery revelation more relevant, and provides yet more proof that
the wrong man has been
accused here. The defense learned of Ivan Andreeyich’s existence from
an investigation card
released by OSI. This card reflects the conclusions and actions of
Soviet prosecutors. OSI has
purportedly never obtained from the USSR or Russia any additional
evidence on this “other Ivan.”
There is apparently a Soviet investigative file, known as 1627, of at
least 1400 pages, that deals with
the Soviet investigation relating to this matter, including material on
the Trawniki card. That file
was originally in the Ukraine (Mr. Demjanjuk’s birthplace region), but
the KGB apparently moved
it to Moscow. It remains unclear whether all the material in this file
has been disclosed either
 “Several months
after the jury returned its verdict, the Government
announced that an
investigation had revealed that Lawrence [Stewart] had made false
material statements in the testimony he
gave in Stewart’s and Bacanvoic’s trial. He was indicted on June 9,
2004 on two counts of perjury in
violation of 18 U.S.C. § 1623 relating to his testimony that he had
personally participated in the forensic tests about which he testified
and that he was familiar with a book proposal
drafted by his colleagues, and he knew that it included a chapter on
States v. Stewart,
433 F.3d 273, 296 (2nd Cir. 2006).
Doc #: 222 Filed: 07/19/11 31 of 45. PageID #:
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previously by Soviet or subsequently by Russia authorities.
The defense is mindful that discovery can become difficult when
materials cross countries’
borders. But one could safely assume the government would have more
than a few sheets of paper
on the other “Ivan Demjanjuk” if it were carefully preparing its case,
as we can presume it did. How
is it, then, that the government for all of its careful preparations
produces only a handful of pages
on the other “Ivan Demjanjuk”? Exh. M.
Or that the other “Ivan
Demjanjuk” identified by one
witness as a guard had a false silver tooth and the defendant does not?
N, p.2. Exhibit
“white metal teeth”; Exhibit
O says “silver teeth.” Either way, there
was testimony that the
defendant in this case had neither.
A further disturbing aspect of the March 1985 Cleveland FBI documents
surfaces when they
are put into context with other previously classified documents
obtained at the National Archives.
In March 1981, the Special Agent in Charge of the Cleveland FBI office
wrote the Director of the
FBI another memorandum referring to “possible KGB utilization of
misinformation in U.S. judicial
process -- trial of John Demjanjuk, Cleveland, Ohio, 1981.” Exh. P
portions of this
memorandum similarly remain classified and therefore have never been
seen by any defense lawyer
in any proceeding involving Mr. Demjanjuk, disclosed portions suggest a
Cleveland FBI office that
was truly concerned that the evidence against Mr. Demjanjuk was forged
-- so concerned that the
office planned to take action.
The Cleveland Ukrainian
community has made numerous
allegations of Soviet, even KGB interference in its affairs. These and
similar allegations, have become more strident during the course of
the Demjanjuk trial.
Cleveland feels now would be a propitious time to put forth
a significant effort to initiate as many contacts as possible among the
Cleveland area Ukrainians. The most beneficial results of such
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efforts would be to
determine if there is any genuine substance to the
aforementioned Ukrainian allegations. [REMAINING PORTION OF
Cleveland plans to take the following steps: A thorough
review of press coverage of the Demjanjuk trial in order to obtain,
first an over-all and then a detailed picture of precisely what the
Ukrainians are claiming not only in relation to Demjanjuk and his
denaturalization trial, but also the alleged nature and extent of Soviet
(KGB) penetration of local and national Ukrainian affairs. Names of
spokesmen for the Ukrainian community who have been quoted in
newspaper articles will be further considered for specific interviews,
P, pp. 2-3.
Less than two weeks later, the Director of the FBI responded with a
portions of which remain classified and thus redacted. Exh. Q.
salient conclusion of the
Because of an absence of
probable cause to believe that the
documentary evidence furnished by the Soviet government in the
Demjanjuk matter has been falsified, Cleveland is directed to close
Q, p.3. The memorandum goes on to state that “INS has
in the Demjanjuk matter.”
The Director’s memorandum concludes:
Because a verdict in the
Demjanjuk trial has not been
rendered and for other reasons set-forth above this directs Cleveland
to cease its investigation.
The Cleveland FBI office did not follow that directive. It did not back
down regardless of
which agency has jurisdiction. We now know from the recently
declassified documents uncovered
by the AP reporters that four years later the Cleveland FBI office was
still investigating this matter.
From the March 4, 1985 memorandum we learn:
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Investigation at Cleveland,
including interviews of various
Soviet emigres, coupled
with past history of Soviet
(KGB) techniques, has strongly
indicated that the following scenario, involving Soviet
utilization of the USDJ Office of Special Investigation (OSI)
to effect Soviet purposes:
1. Through its spotter
service within the Soviet
emigre community in the United States, the
KGB learns of prominent emigre dissidents
speaking out publicly and/or leading emigre
groups in opposition to the Soviet leadership
in the USSR.
2. The KGB, in continuation of internal security
measures extended into the United States,
initiates an anonymous letter to USDJ/OSI,
accusing the emigre dissident of being a
former war criminal guilty of atrocities during
World War II.
3. USDJ/OSI initiates an investigation into
background of the accused emigre. Lacking
evidence of the allegation’s veracity,
USDJ/OSI, thereupon sends results of their
investigation to KGB/Moscow, requesting
review of records seized from Nazi Prison
Camps in the aftermath of World War II for
evidence which might substantiate the
4. The KGB then produces a record purporting
to tie the accused with the commission of
Nazi atrocities, which record may be falsified
for the express purpose of discrediting the
5. The KGB then makes the questioned records
“available” to USDJ for action against the
accused in immigration court. A KGB officer
is dispatched from a Soviet embassy or
 This bolded
language is redacted on the copy at NARA and the one the
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consulate in the United
States, to “present” the
questioned records in court, but not to permit
its examination by document experts.
6. In court, the KGB officer thereupon “shows”
the documents to the judge, but does not
permit the documents to be presented in
evidence or to be otherwise copied; thus
barring United states authorities or the court
from examining the the [sic] authenticity of
7. The end result is that justice is ill-served in
the prosecution of an American citizen on
evidence which is not only normally
inadmissable [sic], in a court of law, but based
on evidence and allegations quite likely
fabricated by the KGB.
[REMAINING PORTION OF PAGE REDACTED]
Had the defense been able to see this memorandum at the beginning of
this case, we would
have been able to seek further discovery on the “various Soviet
emigres” interviewed, on the past
history of the KGB techniques the Cleveland FBI office studied, or on
the four years of work the
Cleveland FBI office undertook on this case despite
instructions to the contrary. It
is safe to say that Mr. Demjanjuk could well have called multiple FBI
agents and FBI interviewees
and FBI informants as witnesses in support of his defense. It is safe
to say his defense would have
been very different in this case. The result could have been different,
too. See Exh.
J, ¶ 12; Exh.
 KGB techniques
for forgeries or “disinformation” -- to use the
English translation of a word
coined by the KGB itself -- were often employed for political purposes.
Senate Report 99-522, Oct. 3, 1986, available at
Soviet forgery efforts. For example, in 1986, Soviet agents sought to
implicate the Chairman of the Senate
Select Committee on Intelligence with a forged letter. See id. at pp.
31-32 and Appendix F. In the context of
this history from the mid-1980s, the Cleveland FBI office memorandum
dated March 4, 1985 discussing KGB
techniques takes on additional significance.
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There is another troubling, ongoing discovery problem in this case. As
in the few short quotations above, some of the material in key
documents remains classified. When
a memorandum dealing exclusively with Mr. Demjanjuk and the proceedings
against him have entire
portions and seemingly key paragraphs redacted because those portions
are still classified, see,
Q, p.4; Exh. D,
it seems impossible that the government meets the
full scope of its discovery
obligations by turning over such redacted materials. Litigants
routinely handle classified materials
through the appropriate protections of the Classified Information
Procedures Act, 18 U.S.C. App.
III, §§1-16, in criminal cases or through security clearances and
protective orders in civil cases so
that the government can meet its discovery obligations. Yet nothing
similar appears to have been
done in this case. See
J, ¶ 13; Exh. K,
The defense seeks extraordinary relief due to the extraordinary
circumstances presented here.
Less than two months ago, government counsel provided copies of
documents from the Cleveland
FBI office. It was represented at that time that those documents had
never before been reviewed by
OSI counsel. That is an extraordinary admission given the fact that the
Cleveland FBI office was
situated in the very city -- indeed just a few blocks away from --
the government took its
first steps against Mr. Demjanjuk. OSI knew the FBI and the Cleveland
FBI office were involved
in the investigation of this case because they were told that according
to the few documents we have
seen. After so many years of investigation into this matter by the
Cleveland FBI office, there must
be many more relevant and responsive documents the defense has never
Were we to accept an explanation that OSI never knew the FBI was
investigating this matter,
whether from the Washington headquarters, the Cleveland field office,
or both, that would bend
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credulity far beyond the breaking point. More significantly for present
purposes, that explanation
also bends the law far beyond its breaking point. For the extraordinary
relief requested here, there
was a very ordinary solution possible years ago. The present situation
would never have arisen had
the government simply stuck to earlier representations it had made to
the Court regarding the
fulfillment of its discovery obligations. Asking all agencies possibly
involved with the investigation
of Mr. Demjanjuk for their file materials in order to fulfill the
government’s discovery obligations
would have in the end been far easier than defending against motions
that challenge all that preceded
This motion was prompted by good investigative work by two journalists.
respond to this motion by challenging the defense to go out and do its
own file search at NARA’s
facilities in College Park, Maryland. We did that, and made little
progress not because of our own
deficiencies but because of the way the government maintains materials
at NARA. There are several
problems that seem to have gone unaddressed in this litigation. First,
searching NARA files with
the subject line “John Demjanjuk” or something similar often produces
only “withdrawal notices”
like those attached. Exh. R.
Too little information is given on the
notice to determine whether the
withdrawn materials are even relevant and worth pursuing. Some
“withdrawal notices” have broad
subject lines that, experience tells us, encompass materials that are
relevant to this case. Exh. S.
But when hundreds of such “withdrawal notices” are substituted for the
actual documents, it is then
impossible for defense counsel to determine which materials are worth
pursuing via a FOIA request.
Some subject lines are too vague or incomplete even to guess whether
the materials that have been
withdrawn are worth pursuing. Exh. T.
Nevertheless, experience again
tells us that some of these
files also contain relevant materials. In the end, no defense lawyer
should have to go on a fishing
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expedition to find materials already in the government’s possession,
custody or control and subject
to discovery. One of the undersigned attorneys (Werneke) submitted FOIA
requests with NARA
on May 20, 2011, concerning several of these “withdrawal notices.”
Neither NARA nor any other
agency has responded to date. Exhs.
On November 22, 1994, the government made a number of representations
to the Court
regarding how OSI was going to redouble its efforts to ensure it met
its discovery obligations.
Among those representations was the following:
In response to the Sixth
Circuit’s 1992 reopening of the extradition
proceeding, the Office of Special Investigations has taken steps to
ensure that its attorneys exceed even the expansive discovery
obligations codified in the December 1993 amendments to the
Federal Rules of Civil Procedure.
United States’ Opposition to Defendant’s Motions to Reopen, to Set
Aside Judgment, and to Dismiss
with Prejudice, filed Nov. 22, 1994 in Case No. C77-923, at fn.5. The
government broke that
promise by revealing plainly relevant, exculpatory materials over
two-and-a-half decades late. And
it knew it had those materials all along.
for Fraud on the Court
As this Court has held in D’Ambrosio
v. Bagley, supra, 688 F. Supp. 2d
709, failure to
produce potentially exculpatory evidence creates the requisite
“extraordinary circumstances” to set
aside a final judgment -- even so far as to restore a person to freedom
who was previously on
Ohio’s death row. A similar, indeed a more extensive failure to produce
discovery in a denaturalization proceeding should be addressed in the
same manner as the failure
to produce exculpatory evidence in a criminal case.
When granting the extraordinary relief provided under Rule 60(b) “a
court only has the
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power to vacate a prior judgment: a court may not avail itself of Rule
60(b) to grant ‘affirmative
relief in addition to the relief contained in the prior order or
judgment.’ ” 688 F. Supp. 2d at 731
(internal citations omitted). This is not to say that Rule 60(b) allows
a court to vacate a judgment
and nothing more. Id.
Because the practical effect of Rule 60(b) relief
is to return the case to its
procedural posture prior to the judgment, the Court may enter a new,
corrected judgment in the same
order vacating the prior judgment.
The facts of D’Ambrosio
v. Bagley are instructive here. A three-judge
panel of an Ohio trial
court had convicted the defendant of aggravated capital murder and
sentenced him to death. In his
post-conviction petition in this Court, the defendant claimed that the
State had improperly withheld
potentially exculpatory evidence. Pursuant to this claim, the defendant
was granted further
discovery, which the defense and the Court believed had been
successfully completed. The Court
subsequently issued an order instructing the State either to set aside
the conviction and sentence or
to conduct a new trial. If electing a new trial, the State had 180 days
to do so.
Several months later, the State produced new, previously undisclosed
A new trial was not permitted to move forward until the defendant was
able to examine the new
evidence. In response, the State asked the Court to extend the deadline
to reprosecute. The defense
opposed this motion, and asked the Court to bar reprosecution. The
Court denied the State’s motion,
and set aside the conviction and sentence on the grounds that the State
had not engaged in a good
faith effort in discovery and had withheld material evidence until the
eve of trial. The Court,
however, refused to bar reprosecution, stating that Mr. D’Ambrosio had
not been materially
prejudiced by the delay resulting from the State’s discovery
violations. The defendant then filed a
Rule 60(b) motion asking the Court to vacate its decision to not bar
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In considering the defendant’s Rule 60(b) motion, the Court found that
the State had in fact
withheld evidence from the defense that “would have substantially
increased a reasonable juror’s
doubt . . . of guilt.” 688 F. Supp. 2d at 728. Such untenable conduct
by the State “led to material
prejudice against D’Ambrosio’s ability to defend himself at a new
trial.” 688 F. Supp. 2d at 731.
“Had this court known of that prejudice . . . it would not have
permitted reprosecution to proceed.”
Court emphasized that it was not barring reprosecution through
the operation of Rule 60(b)
itself; rather, the Court was vacating the prior judgment declining to
bar retrial, and entering “a new
judgment [reaching] the opposite conclusion.” 688 F. Supp. 2d at 732.
Although the instant case is a denaturalization proceeding and not a
criminal case, the legal
issues and context are strikingly similar to those in D’Ambrosio v.
Bagley to warrant a similar
outcome. Like Mr. D’Ambrosio, Mr. Demjanjuk’s defense has been hindered
by the government’s
failure to meet its obligations in discovery. The importance to the
defense team of the March 1985
Cleveland FBI documents in all of Mr. Demjanjuk’s legal proceedings
since FBI agents drafted
those documents is incalculable. These documents contain conclusions of
enforcement personnel employed by an agency with expertise about the
KGB’s tactics. The
document itself would have been admissible under Fed. R. Evid. 803(8)
if offered by Mr.
Demjanjuk. If the documents had been previously produced, counsel could
have deposed the
documents’ authors who to this date remain unidentified. This would
have been particularly
important in light of what appears to be a significant and developing
rift between the views of OSI
and special agents in Washington, D.C. and the Cleveland FBI office.
The documents would have
been key in cross-examining various expert witnesses the government
offered at the second
denaturalization trial. Moreover, had the government shared them with
the defense and then brought
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them to the attention of the Israeli prosecutors, the entire drama of
Mr. Demjanjuk’s trial, conviction,
imposition of the death sentence, reversal by the Israel Supreme Court,
and the ultimate return of
Mr. Demjanjuk to the United States might have been avoided. So, too,
would the monumental
stigma that Mr. Demjanjuk and his family have suffered through three
decades of legal proceedings.
One thing is for certain: Mr. Demjanjuk’s defense would have been more
powerful, and more pointed than the one he was able to put on. But
because the government chose
to withhold those documents and others, Mr. Demjanjuk was deprived of
his lawful right to put on
the defense he sought, and was prevented from obtaining the benefit of
that defense. See
467 U.S. 479, 485 (1984); Crane
v. Kentucky, 476 U.S.
683, 689 (1986) (constitutional
guarantee under the due process clause that the defense be able to
present a complete defense as a
notion of fundamental fairness).
There is also another striking similarity between this case and
D’Ambrosio v. Bagley.
government’s withholding of discovery the first time around resulted in
the Court’s decision to
vacate Mr. Demjanjuk’s first denaturalization order without prejudice.
See United States v.
C77-923, 1998 U.S. Dist. LEXIS 4047, * 11 (N.D. Ohio Feb. 20,
1998) (“Such behavior
whether or not intentional must not be tolerated.”); see also Demjanjuk
v. Petrovsky, supra, 10 F.3d
at 350 (“[t]he OSI attorneys acted with reckless disregard for their
duty to the court and their
discovery obligations in failing to disclose at least three sets of
documents in their possession before
the proceedings against Demjanjuk ever reached trial”). Similar to the
discovery violations that
were first presented to the Court in Mr. D’Ambrosio’s case, OSI’s
violations in the late 1970s,
the1980s and early 1990s did not warrant in the Court’s view a
prohibition against future
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denaturalization proceedings. As in D’Ambrosio v. Bagley,
discovery violations now
warrant a prohibition.
The Supreme Court has recognized a court’s inherent authority to grant
relief from an earlier
judgment for after-discovered fraud “regardless of the term of [its]
v. Hartford Empire Co.,
322 U.S. 238, 244 (1944). This authority has
been codified in Fed. R. Civ.
P. 60(d)(3) which states, “[Rule 60] does not limit a court’s power to
set aside a judgment for fraud
on the court.”
The Court of Appeals, echoing the Supreme Court, has made clear that
depriving a litigant
of a day in court can be a valid sanction for egregious discovery and
disclosure failures. See
Harmon v. CBX Transp.
Inc., 110 F.3d 364 (6th Cir. 1997). In this
instance for the government as
litigant, there were both ample warnings and ample notices of
consequences. In Nat’l
League v. Metro. Hockey
Club, 427 U.S. 639 (1976), the Supreme Court
upheld a dismissal sanction
without even waiting for full briefing and argument. The Court
apparently recognized that celerity
and severity go together to deter misconduct. 427 U.S. at 643 (stating
that severe sanctions must
be available for misconduct in order to penalize the wrongdoer and
In Demjanjuk v.
Petrovsky, supra, the Court of Appeals vacated the
order as to Mr.
Demjanjuk’s extradition, finding that “the judgments were wrongly
procured as a result of
prosecutorial misconduct that constituted fraud on the court.” 10 F.3d
at 356. The prosecutors had
“[failed] to disclose at least three sets of documents in their
possession before the proceedings
against Demjanjuk ever reached trial.” 10 F.3d at 350. Withholding this
evidence “almost certainly
misled [Demjanjuk’s] counsel and endangered his ability to mount a
Government had “acted with reckless disregard for the truth and for the
government's obligation to
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take no steps that prevent an adversary from presenting his case fully
and fairly,” and thus had
committed fraud on the court.
Id. As a result, the extradition order
was vacated, the District Court
in turn vacated the denaturalization order, and Mr. Demjanjuk’s
citizenship was restored.
The denaturalization order currently in place against Mr. Demjanjuk
should be vacated, too.
The current claims concern the same kind of misconduct having the same
kind of detrimental impact
on Mr. Demjanjuk’s ability to present a defense.
The list of opportunities to make full disclosure and to tell the
entire truth is longer now than
in the earlier litigation. The government, warned by the Court of
Appeals and by this Court, has
persisted in its misconduct. It is impossible to view the chart
beginning on page 12 of this
memorandum or the timeline submitted as Exh. A
and not conclude that
the government had ample
opportunity to produce full discovery in this case as it was obligated
to do. Yet the government still
failed to turn over to the defense the March 1985 Cleveland FBI
documents that concern
undisputably the most crucial bit of evidence in this case; even when
the documents were disclosed,
it still redacted key parts from those documents; still withholds
classified materials; still is tardy in
producing files from the Cleveland FBI office it claimed it had never
reviewed before this spring;
still withholds voluminous materials as being “withdrawn” from the
searchable records at NARA’s
facilities in College Park, Maryland; still withholds materials on
another “Ivan Demjanjuk” who was
born in the same town where the defendant was born one year earlier and
who apparently committed
suicide in either 1970 or 1971 when he was told that the KGB was coming
to investigate him; and
still was late in the production of interview transcripts (protocols)
involving other camp guards who
were tortured and interrogated in the former Soviet Union as early as
1960 yet whose translated
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interviews were made available to the defense only after Mr. Demjanjuk
had been stripped of his
citizenship for a second time.
The government’s conduct has left an indelible mark upon the lives of
Mr. Demjanjuk and
his family. It has eroded the public trust in these proceedings. It has
undermined our confidence in
one of the most powerful sanctions a federal court can impose on an
American citizen -- to strip
that individual of his citizenship and to leave him stateless. It bears
repeating lest there be any
doubt: the defense does not bring this motion hastily or without
lengthy consideration of its
consequences. Serious questions remain, however, about the integrity of
the judicial process that
most recently resulted in Mr. Demjanjuk’s being stripped for a second
time of his United States
citizenship and being shipped to Germany to stand trial there.
Sloppiness or inadvertence arises to some degree in every litigation in
every court in this
country and elsewhere. Judicial systems are after all institutions
created and run by fallible human
beings. But context is everything in this proceeding -- a rare
proceeding indeed that found a man
accused and convicted of being someone he was not, sentenced to die for
it, and then acquitted and
set free by the Supreme Court of a country that had the most to lose by
letting a man accused of Nazi
war atrocities go free. And all of that was triggered by the fact that
the government had the wrong
person -- but insisted all along and under oath that it was right even
though its representatives knew
better. The lesson should have been learned and the playing field
leveled. If nothing else, the files
in the FBI’s Cleveland office should have been gone over with a
fine-tooth comb. Perhaps they
were -- and that’s just part of the problem presented in this motion.
For the reasons summarized in his motion and in this supporting
Demjanjuk requests that:
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1. The Court order the
government to respond to this motion within a
frame, and allow for the filing of a reply by the defense;
2. The Court schedule this matter for oral argument upon completion of
3. The Court authorize such further discovery and order factual
hearings as are
necessary to complete the record on the claims presented in the instant
4. Upon the conclusion of such proceedings, the Court set aside the
judgment of Mr.
Demjanjuk’s denaturalization with prejudice.
Michael E. Tigar
Dennis G. Terez
552 Fearrington Post
Pittsboro, NC 27312
Office of the Federal Public Defender
Second Street, Suite 750
Cleveland, Ohio 44113
(216) 522-4856 (o); (216)
Attorneys for John Demjanjuk
July 19, 2011
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