Demjanjuk Memo | 19Jul2011 | Tigar/Terez/Werneke
[Original pdf]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,              : Case No. 1:99CV1193
                                                                     :
Plaintiff,                                                         : Judge Dan Aaron Polster
                                                                     :
-vs-                                                               :
                                                                     :
JOHN DEMJANJUK,                                  :
                                                                     :
Defendant.
______________________________________________________________________________
MEMORANDUM OF JOHN DEMJANJUK IN SUPPORT
OF MOTION PURSUANT TO FED. R. CIV. P. 60
______________________________________________________________________________
MICHAEL E. TIGAR
552 FEARRINGTON POST
PITTSBORO, NORTH CAROLINA 27312
(202) 549-4229
metigar@gmail.com

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) 522-4856
(216) 522-4321 (f)
dennis_terez@fd.org
vicki_werneke@fd.org

COUNSEL FOR JOHN DEMJANJUK

July 19, 2011

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TABLE OF CONTENTS

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  36
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

INDEX OF EXHIBITS

Exhibit A: Timeline (see notice of manual filing)

Exhibit B: U.S. v. Demjanjuk, Case No. 99CV1193, Transcripts, Volumes 1-7 (see notice of
manual filing)

Exhibit C: Newspaper Article: “AP Exclusive: FBI thought Demjanjuk evidence faked,”
Associated Press, April 12, 2011

Exhibit D: Withdrawal Notice of January 21, 2010 from NARA, with FBI Memorandum
dated March 4, 1985 attached

Exhibit E: FBI Transmittal Communication of March 4, 1985; From SAC Cleveland To
Director FBI (blue version)

Exhibit F: FBI Memorandum dated March 4, 1985

Exhibit G: FBI Transmittal Communication of March 4, 1985

Exhibit H: AP Newspaper Article: “Demjanjuk’s lawyer asks to delay trial over authenticity
of old Nazi ID card,”, Cleveland.com, April 13, 2011

Exhibit I: Memorandum Communications: Demjanjuk FOIA requests; from Bruce Einhorn
to Martin Sachs; from Martin Sachs to Neal Sher; dated June 1986

Exhibit J: Declaration of Michael E. Tigar of July 13, 2011

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Exhibit K: Declaration of John Broadley Pursuant to 28 U.S.C. 1746 of July 14, 2011

Exhibit L
: Newspaper Article: “Public defender in Cleveland seeks to help John Demjanjuk,
says case may have been tainted,” Cleveland.com, April 29, 2011

Exhibit M: Certificate of Translation of September 16, 2002; re: Soviet Card for Ivan
(Andreevich) Dem’Yanyuk

Exhibit N: Certificate of Translation of April 29, 1996; re: Interrogation Protocol of Vasiliu
Nikiforovich Litvinenko

Exhibit O: Translation from the German Language; dated April 12, 1987; Service Memo to
Prof Dr. K. Konikol

Exhibit P: Withdrawal Notice of January 21, 2010 from NARA with FBI Transmittal
Communication dated March 16, 1981; From SAC Cleveland, To Director FBI

Exhibit Q: Withdrawal Notice of January 21, 2010 from NARA with FBI Transmittal
Communication dated March 27, 1981; From Director FBI to SAC Cleveland
Joseph Griffin, Jr.

Exhibit R: Withdrawal Notices of September 7, 2004, from NARA; Re: John Demjanjuk

Exhibit S: Withdrawal Notices of September 7, 10, and 15, 2004, from NARA; Re: Judicial
Assistance: War Crimes Investigations

Exhibit T: Withdrawal Notices of September 7, 15, 18, 20, and 21, 2004, from NARA; Re:
Justice Dept. Is a dupe of Communist propaganda

Exhibit U: FOIA Request submitted to NARA on May 20, 2011, by Vicki Werneke, with 7
withdrawal notices

Exhibit 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 COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,                     : Case No. 1:99CV1193
                                                                            :
Plaintiff,                                                                : Judge Dan Aaron Polster
                                                                            :
-vs-                                                                      : MEMORANDUM OF JOHN
                                                                            : DEMJANJUK IN SUPPORT OF MOTION
JOHN DEMJANJUK,                                         : PURSUANT TO FED. R. CIV. P. 60
                                                                            :
Defendant.                                                            :

Introduction

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
domestic.

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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.

Procedural History

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, 10 F.3d
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.[1]

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.
Petrovsky, 776 F.2d 571 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986). Mr. Demjanjuk was


[1]  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 pending, newspaper
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 part:

The petitioner-appellant, John Demjanjuk, was
extradited to the State of Israel for trial of a capital offense, the
commission of war crimes during World War II. In a previous
decision of this court in this case, 776 F.2d 571 (6th Cir.1985),
we declined to stop the extradition by issuing a 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, 10 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 public.

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.

Id. at 349-50.

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 *11-12.

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
be tolerated. The sanction for it must be appropriately severe. Yet,
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
the government.

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
a level playing field. Our system of justice requires no less of the
government and demands no more of the defendant.

Id. at *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.[2] A panel consisting 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).[3] Both sides have
appealed to the Bundesgerichtshof in Karlsruhe.[4] Mr. Demjanjuk was released pending further
proceedings, and is presently living in a nursing home in Bavaria due to his frail health.

Standards 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 60(b)(1)-(5).” Gonzalez v. Crosby, 545


[2] 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.

[3] Having both legally trained judges and lay judges sit together is a standard practice in
Germany’s justice system.

[4] 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 v.
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 of “exceptional
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 v. United 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. Swim-
Tech Corp., 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, 580
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
Vending, 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.,
supra, 910 F.2d at 365.

In D’Ambrosio v. Bagley, 688 F. Supp. 2d 709 (N.D. Ohio Mar. 3, 2010), appeal pending,
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, 227 F.3d 331, 336 (6th Cir. 2000).

As the Court of Appeals held in the first finding of fraud on the court in Mr. Demjanjuk’s
proceedings:

“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. Id.

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.

The 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 unambiguous.

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, 447
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. 26(e)(1).[5]

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


[5]  These 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) ]

Party             Date             Document

Demjanjuk 11/18/1977 Demjanjuk’s first discovery motion: requesting
                                    government produce documents and other material
                                    for defense inspection and copying.

Government 12/19/1977 Government’s motion for extension of time to
                                        produce documents and other material for defense
                                        inspection and copying (11/18/1977).

Government 1/24/1978 Government’s answers to Demjanjuk’s
                                     interrogatories.

Government 1/25/1978 Government’s motion to overrule Demjanjuk’s
                                    discovery request for production of documents and
                                    other materials (11/18/1977).

Government 5/8/1978 Government’s answers to Demjanjuk’s second set of
                                    interrogatories.

Demjanjuk 6/4/1979 Demjanjuk’s motion to compel discovery.

Demjanjuk 6/13/1979 Copy of letter from John Martin (defense) to John
                                    Horrigan (prosecution) regarding discovery.

Government 6/18/1979 Government’s interrogatories for Demjanjuk filed.

Government 9/21/1979 Copy of letter from Horrigan to Martin regarding
                                    answers to interrogatories.

Demjanjuk 10/1/1979 Copy of letter from Martin to Horrigan regarding
                                    interrogatories.

Government 11/8/1979 Government’s response to Demjanjuk’s request for
                                    production and copying of documents.


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Government 11/26/1979 Government’s supplemental answers to Demjanjuk’s
                                        interrogatories.

Government 12/3/1979 Government’s motion for extension to conduct
                                    discovery.

Government 12/4/1979 Government’s second supplemental answers to
                                     Demjanjuk’s interrogatories.

Government 12/4/1979 Government’s motion for protective order to shield
                                    from public disclosure the names of certain
                                    individuals contained in affidavit.

Court         12/19/1979 Order:
                                    (1) extending discovery until 2/1/1980;
                                    (2) Government’s motion for a protective order is
                                        granted (12/4/1979).

Government 12/21/1979 Government’s third supplemental answers to
                                        Demjanjuk’s interrogatories.

Government 12/27/1979 Government’s fourth supplemental answers to
                                        Demjanjuk’s interrogatories.

Court         1/14/1980 Memorandum and order:
                                    (1) denying Demjanjuk’s motion to prohibit use of
                                        deposition;
                                    (2) Government pay expenses of defense counsel to
                                        attend depositions in Germany;
                                    (3) denying Demjanjuk’s motion for reasonable
                                        attorney’s fees.

Court         1/16/1980 Order extending deadline for all discovery up to and
                                    including 2/29/1980. Berlin, Germany deposition to
                                    take place on 2/22/1980.

Demjanjuk 2/11/1980 Demjanjuk’s motion to compel.

Government 2/19/1980 Government’s response to Demjanjuk’s motion to
                                        compel (2/11/1980).

Government 2/21/1980 Government’s sixth supplemental answers to
                                        Demjanjuk’s interrogatories.


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Court         2/22/1980 Order: Demjanjuk’s motion to compel answers to
                                    first set of interrogatories is granted;
                                    Order: Demjanjuk’s oral motion that deposition of
                                    Heinrich Schaefer be delayed or not had.

Government 2/27/1980 Government’s motion for protective order regarding
                                        answers to Demjanjuk’s third set of interrogatories.

Government 2/29/1980 Government’s answers to Demjanjuk’s third set of
                                        interrogatories.

Government 3/14/1980 Government’s motion for protective order regarding
                                        seventh supplemental answers to Demjanjuk’s
                                        interrogatories.

Demjanjuk 3/21/1980 Demjanjuk’s motion to compel answers to
                                    interrogatories.

Government 3/21/1980 Government’s supplemental brief in support of
                                        motion that facts and authenticity of documentary
                                        evidence be admitted and established.

Government 3/21/1980 Government’s motion for extension of discovery.

Government 3/26/1980 Government’s amended motion for extension of
                                        discovery.

Government 4/1/1980 Government’s answer to Demjanjuk’s motion to
                                    compel answers to interrogatories (3/21/1980).

Court         4/3/1980 Memorandum and order extending discovery until
                                    5/15/1980 with the exception that Government shall
                                    not depose Demjanjuk’s wife.

Court         4/4/1980 Memorandum and order providing certain
                                    documentary evidence requested for admission be
                                    taken to establish facts and authenticity (3/21/1980).

Court         4/8/1980 Memorandum and order regarding government’s
                                    answers to Demjanjuk’s interrogatories.

Government 4/21/1980 Government’s eighth supplemental answers to
                                        Demjanjuk’s interrogatories.

Government 5/13/1980 Government’s answers to Demjanjuk’s fourth set of
                                        interrogatories.


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Demjanjuk 5/15/1980 Demjanjuk’s motion to extend discovery.

Demjanjuk 5/21/1980 Demjanjuk’s motion to compel.

Demjanjuk 5/30/1980 Government’s motion for time extension until
                                    6/4/1980 to respond to Demjanjuk’s motion to
                                    compel.

Court         6/3/1980 Order granting government leave to respond to
                                    interrogatories on or before 6/15/1980; granting
                                    Demjanjuk’s motion to extend discovery for limited
                                    purpose of filing fifth set of interrogatories

Court         6/6/1980 Order denying Demjanjuk’s motion to compel
                                    answers to interrogatories 5, 6, and 8; further
                                    granting motion as to interrogatory 10; and further
                                    denying motion as to interrogatory 13.

Government 6/16/1980 Government’s answers to Demjanjuk’s fifth set of
                                        interrogatories.

Government 6/24/1980 Government’s answers to Demjanjuk’s fourth set of
                                        interrogatories.

Demjanjuk 6/26/1980 Demjanjuk’s motion to compel.

Demjanjuk 7/2/1980 Demjanjuk’s motion to compel government to
                                    answer interrogatories 10 and 15 of the fourth set of
                                    interrogatories.

Court         7/18/1980 Memorandum and order denying Demjanjuk’s
                                    motion to compel (6/26/1980).

Government 9/3/1980 Government’s supplemental answers to Demjanjuk’s
                                    fourth set of interrogatories.

Government 9/8/1980 Government’s second supplemental answers to

                                    Demjanjuk’s fourth set of interrogatories.

Government 10/24/1980 Government’s supplemental answers to Demjanjuk’s
                                        interrogatories.

Government 11/20/1980 Government produces documents to Demjanjuk.

Government 12/30/1980 Government’s supplemental answers to Demjanjuk’s
                                        interrogatories.


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[ United States v. Demjanjuk, Case No. 99-CV-1193 (second denaturalization proceeding) ]

Party             Date             Document

Court         7/16/1999 Case management conference ordering completion of
                                    discovery by 7/31/2000.

Court         1/26/2000 (1) Order extending discovery deadline to 8/31/2000.
                                    (2) Motion deadline set, 10/2/2000.
                                    (3) Expert witnesses to be identified and reports
                                        given by 8/14/2000.

Demjanjuk 2/7/2001 Demjanjuk files conditional motion to compel
                                    against government.

Government 4/5/2001 Government files motion to strike Demjanjuk’s
                                    conditional motion to compel (2/7/2001).

Court         4/27/2001 Marginal entry order denying Demjanjuk’s
                                    conditional motion to compel (2/7/2001).

Demjanjuk 5/14/2001 Emergency motion for continuance based on
                                    government’s discovery abuses.

Demjanjuk 5/16/2001 Supplemental filing in support of motion for
                                    continuance (5/14/2001).

Government 5/16/2001 Government’s response to Demjanjuk’s emergency
                                        motion for continuance (5/14/2001).

Demjanjuk 5/21/2001 Demjanjuk’s motion to take discovery concerning
                                    Ukranian documents obtained during government’s
                                    investigation in March & April, 2001 and not
                                    produced to Demjanjuk until 5/12/2001.

Demjanjuk 5/21/2001 Letter to court from Michael Tigar regarding
                                    discovery and log of Tigar’s progress on the case.


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Court         5/22/2001 Memorandum opinion and order:
                                    (1) denying Demjanjuk’s emergency motion for
                                        continuance (5/14/2001);
                                    (2) Demjanjuk’s motion for discovery from
                                        5/21/2001 is granted as to requests 2, 3, & 4 and
                                        denied as to request 1.

Demjanjuk 5/23/2001 Demjanjuk’s memorandum reporting on status of
                                    authorized discovery.


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 first denaturalization
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 v. Petrovsky:

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.

In Brady, the Supreme Court ruled that “suppression by the [government] of evidence
favorable to an accused upon request violates due process where the evidence is material either to

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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. Illinois, 360
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 v.
Alaska, 415 U.S. 308, 318 (1974) (quoting Brookhart v. Janis, 384 U.S. 1, 3 (1966)).

Although the 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 undisclosed Brady material

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when the prosecution represents that all such material [had] been disclosed.” Banks v. Dretke, 540
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 command.

Continuation of the Withholding of Relevant and Exculpatory Materials

Three decades of litigation have produced large quantities of documents from the
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, 2011, Associated
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. On
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.
Exh. 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

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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, pp. 3-4.[6]

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, 828 F.2d
844 (D.C. Cir. 1987), recon. denied, 1987 WL 19434 (D.D.C. Oct. 20, 1987), stay denied, 1987 WL
28478 (D.D.C. Dec. 16, 1987).

The March 1985 Cleveland FBI documents unquestionably fall within the broad parameters
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.”[7] 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


[6] 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.

[7] 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.

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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 decades-long
proceedings prevented Mr. Demjanjuk from asserting a complete defense and the courts from
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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Exh. E, p.1. The memorandum goes on to list steps the government should 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, p.3. 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 case.

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 otherwise be?

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 government never
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

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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 cross-examined the
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 B. White:

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, 1.

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. Exh. L, p.2.

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).

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Exh. 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.[8] 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.[9] The government’s evidence 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


[8] 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 so.’’

[9] 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.

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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
recognized.

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

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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 procedures becomes
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.[10]
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


[10] “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 densitometry.” United States v. Stewart, 433 F.3d 273, 296 (2nd Cir. 2006).

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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? Exh. N, p.2. Exhibit N says
“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 While 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
PARAGRAPH REDACTED]

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,
UACB.

Exh. P, pp. 2-3.

Less than two weeks later, the Director of the FBI responded with a five-page memorandum
portions of which remain classified and thus redacted. Exh. Q. One salient conclusion of the
memorandum:

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
captioned investigation.

Exh. Q, p.3. The memorandum goes on to state that “INS has jurisdiction in the Demjanjuk matter.”
Id., p.5. 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.

Id.

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
Intelligence Service (KGB) techniques,[11] 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
accusation.

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
accused.

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


[11] This bolded language is redacted on the copy at NARA and the one the AP obtained.

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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
the records.

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]

Exh. F, pp.2-3.

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 the Director’s instructions to the contrary.[12] 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.


[12] 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 intelligence.senate.gov/pdfs99th/99522.pdf, documents 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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K, 13.

There is another troubling, ongoing discovery problem in this case. As demonstrated even
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, e.g.,
Exh. 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 Exh. J, 13; Exh. K, 14.

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 -- where 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 seen.

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 filing.

This motion was prompted by good investigative work by two journalists. One might
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. U, V.

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.

Redress 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 documents during
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. Id.

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 exculpatory evidence.
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 reprosecution.

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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.”
Id. The 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 experienced law
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 persuasive, 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 California
v. Trombetta, 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. The
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.
Demjanjuk, 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, ongoing 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] entry.” Hazel-Atlas Glass Co.
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 Hockey
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 deter others).

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 defense.” Id. Moreover, the
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 memorandum, Mr.
Demjanjuk requests that:

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1. The Court order the government to respond to this motion within a specific time
frame, and allow for the filing of a reply by the defense;

2. The Court schedule this matter for oral argument upon completion of all briefing;

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 motion; and

4. Upon the conclusion of such proceedings, the Court set aside the judgment of Mr.
Demjanjuk’s denaturalization with prejudice.


Respectfully submitted,

/s/ Michael E. Tigar                                  /s/ Dennis G. Terez
552 Fearrington Post                                 Dennis G. Terez (0030065)
Pittsboro, NC 27312                                 Vicki Werneke (OK13441)
(202) 549-4229                                        Office of the Federal Public Defender
(metigar@gmail.com)                                1660 West Second Street, Suite 750
                                                                 Cleveland, Ohio 44113
                                                                 (216) 522-4856 (o); (216) 522-4321 (f)
                                                                 (dennis_terez@fd.org)
                                                                 (vicki_werneke@fd.org)

Attorneys for John Demjanjuk

July 19, 2011

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