This action is before the Court upon plaintiff, the United States of America's motion to reopen the denaturalization judgment, filed on December 30, 1993.  The Court has reviewed the memorandum in support and exhibits; memorandum in opposition, filed on February 24, 1994; reply memorandum, filed on March 8, 1994; surreply memorandum, filed with leave of Court on March 18, 1994; and supplemental memorandum in support, filed with leave of Court on March 29, 1994.

     This action is also before the Court upon defendant, John Demjanjuk's motion to reopen, motion to set aside the judgment, and motion to dismiss with prejudice, filed on October 31, 1994; memorandum in opposition, filed on November 22, 1994; and reply memorandum.

     The Court has also considered the oral arguments of counsel offered during the hearings held on May 14, 1996, and November 25, 1997; plaintiff's supplemental brief, filed on May 13, 1996; defendant's memorandum, filed on May 28, 1996; plaintiff's response concerning the "Reimer" and "Litvinenko" materials, filed on June 11, 1996;¹ brief of defendant and appendices, filed on September 9, 1996; plaintiff's response, filed on October 10, 1996; declaration of Neal M. Sher, filed on January 3, 1997; and the supplemental brief addressing the issues that were raised at oral argument, filed on December 22, 1997.

It is important to understand what issues are not before the Court in this proceeding.  This Court is not considering the substance of this case: whether the defendant was a guard at Trawniki or whether he did anything else that would have disqualified him as a candidate for United States citizenship.  The issue before this Court involves the procedure in this case: whether certain actions (or inactions) by the government denied Demjanjuk information or material which he was entitled to receive pursuant to court discovery orders, whether such conduct by the government constitutes fraud upon the court and, if so, what the appropriate sanction should be.

     The present posture of this case before this Court is somewhat confusing, to say the least.  There were originally two proceedings against Demjanjuk, one for denaturalization and one for extradition.  The denaturalization case itself had two parts: a claim that Demjanjuk was Ivan the Terrible of Treblinka and a much later added claim that Demjanjuk was a guard at Trawniki.²  On November 17, 1993, the United States Court of Appeals for the Sixth Circuit vacated the judgment of the district court and its own prior affirmance in the extradition proceeding only.  Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir.  1993), cert. denied, 513 U.S. 914 (1994).  In doing so, however, the Court of Appeals noted that "we have considered the actions of the OSI [Office of Special Investigations] attorneys in the denaturalization case" because "[t]he extradition order was based largely on the district court's finding in the denaturalization case that Demjanjuk was Ivan the Terrible." Id. At 356.  The Sixth Circuit further explained that "[t]his court has not considered charges against Demjanjuk other than those related to the claim that he was Ivan the Terrible of Treblinka.  Neither have we considered Demjanjuk's contention that the other grounds for denaturalization and deportation should be reconsidered because the 'Ivan' charges overshadowed all the proof in the two earlier proceedings." Id.  It is precisely those other matters not considered by the Sixth Circuit Court of Appeals that this Court is now called upon to decide, in response to the within motions that were filed while the case was on the docket of the late United States District Judge Frank J. Battisti.³

     The Court does not and cannot approach the within motions with a completely clean slate because the Court of Appeals for the Sixth Circuit has previously weighed in with its opinion in the extradition case.  In Demjanjuk, after lengthy review first by a special master and then by a panel of the Court itself,⁴ the Court of Appeals held as follows:

10 F.3d at 354.

     The finding by the Sixth Circuit of fraud on the Court in the extradition case raises the question of what impact that finding has on this case - the denaturalization case.  As the Court noted earlier, the Sixth Circuit did not consider charges against Demjanjuk other than those related to the claim that he was Ivan the Terrible of Treblinka, nor did it consider Demjanjuk's contention that the other grounds for denaturalization should be reconsidered because the "Ivan" charges overshadowed all the proof in the denaturalization proceeding.

     However, the special master appointed by the Sixth Circuit (United States District Judge Thomas A. Wiseman, Jr.) included within the scope of his inquiry actions of government attorneys in the denaturalization case, because the district court's extradition order had been based primarily on the record of the earlier denaturalization proceedings.  The Sixth Circuit, moreover, specifically noted that "we have considered the actions of the OSI attorneys in the denaturalization case."  Id. at 356.

     Thus, this Court is now reviewing a two-part denaturalization case (Trawniki and Treblinka) of which one part (and arguably the principal part) has been essentially (although technically not procedurally) reversed by the Court of Appeals on the ground of fraud perpetrated on the Court by the government.

     Demjanjuk argues that the fraud on the Court⁵ committed by the government in the Treblinka portion of the case was so substantial and pervasive that any examination of whether it tainted the Trawniki portion is unnecessary.  The government responds that Demjanjuk's service as a guard at Trawniki and his misrepresentations concerning such service form an independent ground for denaturalization unaffected by the fraud in the Treblinka portion.

     It is exceedingly difficult to review a judgment that was rendered almost seventeen years ago by a different judge who is now deceased.  This Court has read and reread many times the original opinion of Chief Judge Battisti, as well as the Sixth Circuit's opinion in Demjanjuk. Supra.  After thorough consideration, it is the opinion of this Court that the fraud committed with respect to Treblinka cannot be isolated so as not to infect the Trawniki findings.

     To begin, it is clear that the Trawniki charge was merely an "add on" to the Treblinka charge when it became obvious to OSI that the Treblinka allegations were on shaky ground.⁶  The thrust of the government's case was Treblinka, and Demjanjuk's lawyers were forced to direct their attention principally to the potentially more serious Treblinka charge.

     This view appears to be supported by both the Supreme Court of Israel and the Sixth Circuit.  In its decision overturning Demjanjuk's conviction of being Ivan the Terrible, the Supreme Court of Israel noted that "the fact the appellant [Demjanjuk] was a guardsman at the Trawniki unit" and similar background evidence "was not the main matter which was set before the authorities in the United States and before the court in Israel, but it was part of the collection of factual information."  (Translation of the final section of the decision of the Supreme Court of Israel in Demjanjuk's appeal at 21), as quoted in Demjanjuk, 10 F.3d at 340.  As the Sixth Circuit went on to explain, the "main matter" before the courts in both countries in all the proceedings was the Ivan the Terrible charge.  "Demjanjuk's denaturalization and deportation orders were based ... primarily, although not exclusively, on Demjanjuk's failure to disclose his alleged wartime activities as 'Ivan the Terrible' at Treblinka."  Id.

     Still, the government strongly urges upon this Court the argument that the Trawniki findings are capable of standing on their own, that they remain uncontaminated by the Treblinka fraud.  The government's Trawniki case relied heavily on the authenticity of an identification card allegedly issued to Demjanjuk.  For reasons that will be discussed later, Demjanjuk's only defense was his own testimony that he was elsewhere during the war.  A careful review of Chief Judge Battisti's decision shows that he discredited Demjanjuk's testimony as to his whereabouts during the war on the basis of both the Trawniki card and the testimony of the Treblinka survivors:

518 F.Supp at 1377.

     The quoted language indicates to this Court that Chief Judge Battisti's discrediting of Demjanjuk's testimony that he had never been at Trawniki was based not only upon the Trawniki card and the authentication evidence, but also in part upon the testimony of Treblinka survivors, who identified the Trawniki card photograph as a picture of Ivan of Treblinka.  And that identification evidence has been found by the Sixth Circuit to have been tainted by the fraudulent acts of the government.  Demjanjuk, supra.

     For these reasons, then, it is the finding of this Court that the fraud on the Court perpetrated by the government with respect to the Treblinka charges cannot be isolated from Chief Judge Battisti's findings with respect to Trawniki.  This finding is supported and strengthened by an additional instance of the government's failure to disclose potentially important evidence directly related to the Trawniki charge.

     Jacob Reimer is an ethnic German who served as a clerical official at the Trawniki labor camp during the period defendant is alleged to have served there as a guard.  Reimer had subsequently been admitted to the United States and was still living here during the defendant's denaturalization proceedings.  He was interviewed by the lead OSI Demjanjuk denaturalization lawyers in February of 1980.  There is apparently no record of what was said during the interview, the only contemporaneous documentation of that meeting being a memo dated April 11, 1980, from OSI attorney Norman A. Moscowitz to Allan A. Ryan, Jr., Deputy Director of OSI, stating "[Reimer] had no useful information."  Neither the occurrence of this interview nor the existence of the memo concerning it were revealed to defendant before his 1981 trial.

     What is the significance of the notation that Reimer "had no useful information"?  Was he shown the Trawniki card and could not identify it?  Had he never seen one like it?  Was it different in appearance or content from cards he was familiar with?

     Even if Reimer had never been shown the card, he was still described by the government itself as someone who "may turn out to be an important witness," was "a potential source of information about Trawniki generally," and "was a clerical official" who may have been "able to assist in the authentication of Trawniki documents."  Memorandum, dated December 14, 1979, from Moscowitz to Walter Rockler, Director of OSI.  Can anyone seriously doubt that Reimer was a potential witness whose existence should have been disclosed to Demjanjuk?  If indeed Reimer, for one reason or another "had no useful information," shouldn't Demjanjuk's attorneys have had the right to make that determination themselves?

     Clearly, the existence of Reimer should have been revealed to Demjanjuk, in spite of the government's assessment that Reimer had no useful information.  Useful to whom?  If Reimer had no information useful to the government, should not Demjanjuk's attorneys have been given the chance to assess whether he had any information useful to their client?  And under the circumstances of the Trawniki evidence, might not Reimer's failure to have any useful evidence by itself raise doubt about the Trawniki card and Demjanjuk's presence at Trawniki?

     Once again, as the Sixth Circuit found with respect to the Treblinka matter, "[t]he 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." Demjanjuk, 10 F.3d at 349-50.

     There is still another matter that needs to be considered that also relates directly to the Trawniki charge.  It was discussed by the Sixth Circuit in Demjanjuk, supra, without resolution because it did not affect the Treblinka charge.  The Court of Appeals stated:

     Although the Dorofeev evidence was considered by Chief Judge Battisti and found by him not to be "of such a nature as to alter the outcome of the case," 518 F.Supp. at 1385, this Court believes that the evidence may very well take on added significance in the light of what has transpired since Chief Judge Battisti's ruling.  Certainly, the evidence has both inculpatory and exculpatory elements, but this Court does not understand how a responsible government attorney would not instantly recognize that Demjanjuk's attorney's should have been immediately apprised of evidence demonstrating that four of these five Trawniki witnesses were unable to identify Demjanjuk and that the fifth was very tentative.⁸

     For the foregoing reasons, the Court makes the following findings:

Accordingly, defendant, John Demjanjuk's motion to set aside the judgment of this Court dated June 23, 1981, will be GRANTED.

     Having decided that at a minimum the prior judgment of this Court in the denaturalization proceeding must be vacated due to the government's fraud upon the Court, the Court must now consider whether any further sanction should be applied.  Defendant suggests two possibilities: dismissal of the case with prejudice or dismissal without prejudice.  Obviously, defendant prefers the first alternative.  If the Court imposes no further sanction, then the denaturalization case remains pending for further proceedings if the government so chooses.

     The Court believes that simply vacating the judgment is not 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 horrors⁹ 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.

     A copy of the foregoing Memorandum of Opinion and Order has been sent by fax this 20^th day of February, 1998 to Patty Merkamp Stemler and J. Douglas Wilson, Attorneys, Criminal Division, U.S. Department of Justice; and Michael G. Dane, Federal Public Defender, and Debra M. Hughes, First Assistant, Federal Public Defender, and by regular mail this 20^th day of February, 1998 to Patty Merkamp Stemler and J. Douglas Wilson, Attorneys, Criminal Division, U.S. Department of Justice, P.O. Box 899, Ben Franklin Station, Washington, D.C. 20044; and Michael G. Dane, Federal Public Defender, and Debra M. Hughes, First Assistant, Federal Public Defender, Skylight Office Tower - Suite 750, 1660 West Second Street, Cleveland, Ohio 44113-1454

     A copy of the foregoing Order of Dismissal has been sent by fax this 20^th day of February, 1998 to Patty Merkamp Stemler and J. Douglas Wilson, Attorneys, Criminal Division, U.S. Department of Justice; and Michael G. Dane, Federal Public Defender, and Debra M. Hughes, First Assistant, Federal Public Defender, and by regular mail this 20^th day of February, 1998 to Patty Merkamp Stemler and J. Douglas Wilson, Attorneys, Criminal Division, U.S. Department of Justice, P.O. Box 899, Ben Franklin Station, Washington, D.C. 20044; and Michael G. Dane, Federal Public Defender, and Debra M. Hughes, First Assistant, Federal Public Defender, Skylight Office Tower - Suite 750, 1660 West Second Street, Cleveland, Ohio 44113-1454

Paul R. Matia [signature]