The United States Court of Appeals
Sixth Circuit

(Part 9 of 9)

IX.

We have considered the possibility of treating Demjanjuk's claims as moot in view of the fact that he has now been acquitted and ordered released by the Supreme Court of Israel. Upon reflection, however, we are convinced that the collateral consequences of being found by the district court to be Ivan the Terrible require corrective action.

The petitioner was extradited in 1986 on the basis of evidence in the denaturalization case that led to a finding that he was the notorious Ivan. After a lengthy trial followed by conviction and a death sentence, he spent more than seven years in an Israeli prison. Although he was treated humanely there, he was under a sentence of death until the Israeli Supreme Court in 1993 ordered his acquittal and eventual release.

The United States Supreme Court dealt with the collateral consequences of a judgment in a criminal case with similarities to the present case in Fiswick v. United States, 329 U.S. 211, 222, 91 L. Ed. 196, 67 S. Ct. 224 (1946). [**57] In Fiswick, the Court held that an appeal was not moot even though the defendant had completed his prison sentence before the appeal reached the High Court. The case involved an alien convicted of conspiracy to defraud the United States for concealing his membership in the Nazi party when registering with the Immigration and Naturalization Service.

Although Fiswick was released before his case could be heard, the Supreme Court held that the harmful effects flowing from the conviction precluded mootness. The Court reasoned that a conviction for lying about Nazi involvement "stands as ominous proof that [Fiswick] did what was charged and puts beyond his reach any showing of ameliorating circumstances or explanatory matter that might remove part or all of the curse." 329 U.S. at 222.

If a conviction for merely "lying about Nazi involvement" causes such collateral consequences, surely being found by a court and convicted for being one of the most notorious perpetrators of Holocaust atrocities deserves the same consideration. The Supreme Court has found collateral consequences sufficient to overcome suggestions of mootness in many other cases. E.g., Ginsberg v. New York, 390 U.S. 629, 633 n.2, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968); Pollard v. United States, 352 U.S. 354, 1 L. Ed. 2d 393, 77 S. Ct. 481 (1957). See also York v. Tate, 858 F.2d 322 (6th Cir. 1988) (habeas corpus petition not mooted by prisoner's release).

CONCLUSION

We attempt to mitigate the collateral consequences of the extradition order only. As did the Special Master, however, we have considered the actions of the OSI attorneys in the denaturalization case. The extradition order was based largely on the district court's finding in the denaturalization case that Demjanjuk was Ivan the Terrible.

This 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.

Acting pursuant to Fed. R. Civ. P. 60(b)(6) and the All Writs Act, 28 U.S.C. @ 1651, we reopened the habeas corpus case in which we denied relief from the extradition order to determine whether that proceeding had been tainted by fraud on the court or prosecutorial misconduct that required our intervention. See Harris v. Nelson, 394 U.S. 286, 299-300, 22 L. Ed. 2d 281, 89 S. Ct. 1082 (1969). We also acted pursuant to our inherent power to protect the integrity of the judicial process within this Circuit.

The Supreme Court has recognized a court's inherent power to grant relief, for "after-discovered fraud," from an earlier judgment "regardless of the term of [its] entry." Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 244, 88 L. Ed. 1250, 64 S. Ct. 997 (1944). See also Chambers v. NASCO, Inc., 501 U.S. 32, 115 L. Ed. 2d 27, 111 S. Ct. 2123, 2132 (1991). Rule 60(b) recognizes this authority as well in noting that "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."

Our sole concern in these proceedings, which began with entry of our order of June 5, 1992, has been to determine whether any acts or omissions of Department of Justice attorneys resulted in the district court and this court improvidently approving extradition of Demjanjuk to Israel in this habeas corpus action. We express no view with respect to charges that have been made, but not adjudicated, to the effect that Demjanjuk engaged in other activities during the Nazi period that are proscribed by the criminal laws of any nation.

For the reasons set out herein we vacate the judgment of the district court and the judgment of this court in the extradition proceedings on the ground that the judgments were wrongly procured as a result of prosecutorial misconduct that constituted fraud on the court.

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