The United States Court of Appeals
Sixth Circuit

(Part 1 of 9)

et al., Respondents-Appellees. Upon Reconsideration of an
No. 85-3435

10 F.3d 338;
September 3, 1993, Argued
November 17, 1993, Decided
November 17, 1993, Filed

SUBSEQUENT HISTORY: Rehearing En Banc Denied February 24, 1994,

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

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

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

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


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



This matter is before the court on its own motion, pursuant to an order entered on June 5, 1992. In the June 5 order we stated that information had come to the attention of the court which required us to determine whether this court's affirmance of the district court's denial of John Demjanjuk's petition for habeas corpus relief from an extradition warrant was improvident. See Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985), cert. denied, 475 U.S. 1016, 89 L. Ed. 2d 312, 106 S. Ct. 1198 (1986).

The order directed the respondents to address certain questions related to the identification of Demjanjuk as the notorious Ukrainian guard at the Nazi extermination camp near Treblinka, Poland called by Jewish inmates "Ivan the Terrible" (Ivan Grozny). The order also set the matter for oral argument on August 11, 1992. The Department of Justice appeared for the respondents.

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


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

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

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

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


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

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