The United States Court of Appeals
Sixth Circuit
Appendix I

APPENDIX 1

No. 85-3435

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JOHN DEMJANJUK, Petitioner-Appellant, v. JOSEPH PETROVSKY, et al., Respondents-Appellees.

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

ORDER

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 write of habeas corpus. Our previous study of the record and numerous recent press reports and articles in the United [**61] 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.

In our previous decision we said that the extradition should be limited:

The district court clearly certified that Demjanjuk was subject to extradition solely on the charge of murder. Though some of the acts which Demjanjuk is charged with may also constitute other offenses listed in the treaty, he may be tried in Israel only on that charge.

776 F.2d at 583.

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 with respect to the prior proceedings concerning the extradition warrant heretofore issued in this case under Chapter 209, Title 18 (@@ 3181-3195), United States Code:

1. The United States, on or before July 15, 1992, shall file [**62] with the Court a brief describing any items of evidence of any kind, of which it has knowledge, tending to show that the petitioner-appellant, Demjanjuk, is not the "Ivan the Terrible" who committed war crimes at the Treblinka death camp, in particular murder, as described in 776 F.2d 571 (6th Cir. 1985), together with a statement of approximately when agents of the United States first learned of each such item of evidence.

2. On or before July 25, 1992, the petitioner-appellant shall file a brief describing affidavits, depositions or other statements of witnesses in his possession (which are not described in the government's brief referred to in paragraph 1 above), which tend to show that a man known as Ivan Marchenko was the "Ivan the Terrible" referred to in paragraph 1.

3. On or before August 1, 1992, the parties should file simultaneous briefs stating their respective position on the question whether the Court should reconsider its earlier decision concerning the issuance of a writ of habeas corpus in this case, including the question whether the court should remand the case to the district court for a further evidentiary hearing respecting the case. [**63]

4. The Federal Public Defender for the Northern District of Ohio is hereby appointed to represent the defendant, provided the petitioner-appellant or the members of his immediate family in the United States do not object to such appointment, and provided further that he is qualified for such representation under 18 U.S.C. @ 3006A.

5. An oral hearing on this matter is set for Tuesday afternoon, August 11, 1992, at 2:30 P.M.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

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