The United States Court of Appeals
Sixth Circuit
Appendix II

APPENDIX 2

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

Pursuant to orders of this court entered on June 5, 1992, and June 18, 1992, counsel for the parties appeared for oral argument after having previously filed briefs and appendixes. At the commencement of oral argument the panel, speaking through Chief Judge Merritt, stated that the essential issue joined by the parties in their briefs is whether this court mistakenly affirmed the district court's denial of John Demjanjuk's [**64] habeas corpus petition. 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 Chief Judge then stated that the court's inquiry concerns whether lawyers from the Department of Justice engaged in prosecutorial misconduct by concealing or withholding from the district court and this court evidence in their possession that John Demjanjuk was not the notorious Ukrainian guard known as "Ivan the Terrible" who operated the gas chambers at the Treblinka, Poland Nazi death camp. The "bedrock question" for the court, Judge Merritt continued, is whether the failure of the attorneys to disclose such exculpatory information constituted fraud upon the court that misled this court into allowing Demjanjuk to be extradited.

The case was ably and extensively argued by counsel and, at the conclusion of oral argument, was taken under submission by the court. Upon consideration the court concludes that further proceedings are required as set forth here.

I.

Before outlining the additional proceedings, we dispose of the Department of Justice's [**65] contention that this court lacks jurisdiction to conduct the present inquiry. The Department argues that we have no power to review our 1985 judgment, particularly in view of the fact that Demjanjuk is now in Israel, having been convicted by an Israeli court for violation of Israeli law. We disagree. This court is proceeding under its 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). Furthermore, nothing requires this court to follow the "cumbersome and dilatory procedure" of sending this issue back to the district court for decision. Id. at 249.

The fact that a federal court has the inherent power "to vacate its own judgment upon proof that a fraud has been perpetrated upon the court" was reaffirmed by the Supreme Court at its 1990 term. See Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991). [**66] The Court warned that, "because of their very potency, inherent powers must be exercised with restraint and discretion." Id. Mindful of this admonition, we have determined to make every effort to be certain that we have as complete a record as possible before acting upon the serious charges made by the petitioner in this case.

II.

Counsel for the Department of Justice conceded that "mistakes were made." This admission was based upon the undisputed fact that the Department had in its possession prior to the extradition proceedings statements and documents indicating that John Demjanjuk was not "Ivan the Terrible," but that another Ukrainian guard at Treblinka, Ivan Marchenko, was the operator of the gas chambers whom the prisoners referred to by this sobriquet.

It is alleged by the petitioner that this information was known to attorneys within the Department of Justice who were involved in the Demjanjuk denaturalization, deportation and extradition proceedings, but that none of the information was produced to Demjanjuk's counsel in response to numerous interrogatories and requests, or revealed to the court. The attorneys so identified at this time are Allan Ryan, Norman Moscovitz, [**67] George Parker and John Horrigan. The first three worked within the Department in its Office of Special Investigations (or its predecessor), while Horrigan served as an assistant United States Attorney for the Northern District of Ohio. All four attorneys were involved in the proceedings against John Demjanjuk.

III.

In order to procure information that we deem essential for reaching a decision on the issue before us, the court hereby appoints the Honorable Thomas A. Wiseman, Jr., Judge of the United States District Court for the Middle District of Tennessee, as Special Master of this Court pursuant to FED. R. CIV. P.53(c). This reference requires the Master to take the testimony of attorneys Ryan, Moscovitz, Parker, and Horrigan, if available, and to receive such other evidence as he may determine to be relevant and material to the issue under submission. The Master shall have all of the powers granted to such officers under FED. R. CIV. P.53(c). After completing his duties pursuant to this order of reference, the Master will prepare a report on the matters covered by this order. He will file the report with the clerk of this court and serve on each party notice of the filing and a [**68] copy of the report together with a transcript of all proceedings and of the evidence and any original exhibits as provided in FED. R. CIV. P.53(e)(1).

Entered by order of the court.

By:

Clerk

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