The United States Court of Appeals
Sixth Circuit
Appendix VII

APPENDIX 7

UNITED STATES GOVERNMENT

Memorandum

To: Walter J. Rockler and Allan A. Ryan, Jr.

Director Deputy Director, Litigation

DATE: February 28, 1980

146-2-47-43 SI

FROM: George Parker

Trial Attorney

SUBJECT: Demjanjuk Memo

I am usually [**103] reluctant to reduce to writing that which I have written in the attached memo. I was convinced, however, that it was imperative to focus your attention on the issues that have arisen in handling this case which now necessitate a resolution. The memo obviously needs to be discussed. I am perfectly willing to wait until Norman and John return from Europe and are able to join the discussion. I nonetheless urge you to read this before they return and be prepared to make a decision shortly after they return. I anticipate the judge will set this case for a final pre- trial as early as March 15, 1980.

Memorandum

TO: Walter J. Rockler and Allan A. Ryan, Jr.

Director Deputy Director, Litigation

DATE: February 28, 1980

146-2-47-43 SI

FROM: George Parker

Trial Attorney

SUBJECT: Demjanjuk--A Reappraisal

Background

In 1977, the U.S. Attorney's office in Cleveland, Ohio filed a denaturalization suit alleging in essence that the defendant should be stripped of his citizenship because he had lacked the requisite good moral character for citizenship on account of his status and actions as a guard at the Treblinka extermination camp. No mention was made in the pleadings of Sobibor [**104] or the Trawniki Training Camp.

The complaint was filed on the basis of witness statements received from the Israeli police. The statements were credible inasmuch as these same individuals had identified the photograph of Fedorenko as a guard at Treblinka and Fedorenko subsequently admitted he had been a guard. Moreover, any serious doubt as to the witnesses sincerity was assuaged by the circumstance that the INS officials had advised the Israelis that Demjanjuk was thought to have been as [sic] Sobibor. When the first two Treblinka survivors who identified Demjanjuk's photo as a guard at Treblinka were informed by the Israeli investigator that it was believed that the man was at Sobibor, the witnesses insisted that this man had been at Treblinka between 1942-1943.

So at the time of filing, the only indication the government possessed that Demjanjuk was at Sobibor was a brief reference in a book written by Michael Hanusiak called Lest We Forget. It recited that a man named Danilchenko met Demjanjuk as a guard at Sobibor in the spring of 1943, and that subsequently he, along with Demjanjuk was transferred to Flossenburg where they guarded political prisoners. Despite a specific request [**105] to the Soviets for information pertaining to Demjanjuk, none was forthcoming.

Demjanjuk at Sobibor -- Evidence Developed

The initial allegation against Demjanjuk by Hanusiak included reference to a document--a card issued at the Trawniki Training Camp bearing a photograph similar to that of Demjanjuk and biographical information identical to that of the defendant's. John Horrigan set out to secure a copy of it. He succeeded in securing a photocopy from private sources. Still we needed a copy from official sources.

In August 1979, Norman Moscowitz prepared a request for the card, a statement from Danilchenko and any other witnesses. In January 1980 we received a certified copy of the card from the Soviets plus statments [sic] from Danilchenko and two other guards at Sobibor. The card is identical to that which Horrigan had previously received and which had been published in Hanusiak's book. The card states that Demjanjuk was assigned to Sobibor in the spring of 1943. (Attachment A)

The statement of Danilchenko is consistent with and elaborates upon the information attributed to him by Hanusiak. (Attachment B) He identifies him by name and photo. Most significant, perhaps, is [**106] Danilchenko's assertion that at Flossenberg [sic] all the Ukrainian guards were tattooed on their left arm above the elbow with their blood type. Also noteworthy is Danilchenko's claim that Demjanjuk stood taller than six feet.

Demjanjuk has continuously denied being at either extermination camp. Nevertheless, information he has supplied renders this denial dubious when read in the context of this case. First, in his Application for Assistance from the IRO in 1948, he stated that he had been a farmer at Sobibor from 1937 to 1943. (We received this form within the last 8 months.) Second, at his deposition taken on February 20, 1980, he admitted that he had been tattooed by the Germans on his left arm, above his elbow, with his blood type.

The Soviet Union and Poland have each investigated the crimes committed at Treblinka. Each has compiled lists of Ukrainian guards known to have worked at Treblinka. The two Ukrainians who incessantly worked at the gas chambers were well known (Fedorenko refers to them by first names in his statement to INS officials in February 1976). Given these circumstances it is disturbing, as Norman Moscowitz has pointed out repeatedly, that Demjanjuk's name [**107] does not appear on either list.

Admissible Accusatory Evidence

If this case were to be tried in April 1980, we can reasonably expect to present the following evidence to prove that Demjanjuk was trained as a guard by the Germans: (1) He was a Russian soldier attached to the artillery, who received a back injury and was captured by the Germans at a battle at Kerch on the Crimea in either November 1941 or May 1942. (2) He was placed in two successive POW camps, Povno and Chelm where living conditions were horrible and from which the Germans selected POW's with mechanical skills and inoffensive political backgrounds to train as camp guards. (3) He was at Trawniki as indicated by the card received by the Soviets.

At Trawniki the Germans trained Ukrainian POW's to be ghetto and extermination camp guards. The POWs did not knowingly volunter [sic] for either the training camp nor their ultimate camp assignments. The signatures of the German officials, Teufel and Streibel, whose names appear on the cards will be authenticted [sic] by Schaefer, a volkdeutsche, who worked at the camp.

Unfortunately, Schaefer cannot say he has ever seen this type of card. Consequently, the judge may [**108] not even admit the card into evidence, but he probably will. But since we cannot trace its history for the last 38 years, we cannot expect the court to extend too much weight to the card.

We can reasonable [sic] expect to present the following direct evidence that Demjanjuk was at Sobibor: The Trawniki card which is fraught with problems described above. Danilchenko's statement is obviously hearsay and is in all probability not even a literal statement. Demjanjuk's testimony that his blood type was marked on his arm is of little significance without the admission of Danilchenko's testimony.

Finally, we can reasonably expect to present the following evidence that Demjanjuk was at Treblinka: (1) the testimony of two or three Israeli's and one German, each of whom was initially interviewed by the Israeli Police. Each will identify the defendant as Ivan the Ukrainian who worked at the gas chambers and brutally beat Jews solely on the basis of the defendant's visa photograph taken in 1952. They will state that the photograph bears a striking resemblance to Ivan -- that like the photo he had protruding ears, short receding hairline, full face, broad shoulders and stood about 175 cm. (5'8"). [**109]

The three Israeli witnesses are unwilling to say with absolute certainty that the photo is of Ivan. These three individuals also identified Fedorenko and two of them testified at his trial. (2) The testimony of Otto Horn, a German officer who worked near the gas chambers, who like the Israelis can identify Demjanjuk only by his photographs. (3) The testimony of one American survivor whose identification is also based on photos, and whose statement is considerable [sic] weaker than those of the others. (4) Possibly, the testimony of a survivor living outside the U.S. and Israel who was initially interviewed by American consulate officials. (Now being done)

Flaws with Treblinka Evidence

The reliability of the Treblinka evidence is flawed by the following: (1) Its premised exclusively on the basis of photographs which may at best closely resemble the facial features of man witnesses knew. Survivors are more likely to recognize the photograph taken in 1952 than that taken in 1942 at Trawniki as man they knew at Treblinka. (2) Several Treblinka survivors, including SS officer Suchomil, insist that Ivan rarely if ever left the camp.

Indeed, Suchomil insists that Ivan was at the [**110] camp continuously from July 1942 until November 1943, at which time he departed along with Kurt Franz, Suchomil and others for Trieste, for the purpose of establishing other camps. (3) The witnesses fairly consistently, with the exception of Franz, say that Ivan was one of the taller Ukrainians, about 175 cm. whereas Demjanjuk is now and was at the time he applied to enter the U.S. closer to 6'1". (4) The conflicting Sobibor, Flossenburg, and Regensburg statement from Danilchenko which cannot be reconciled with information supplied by Suchomil and others.

Strategic Options; Ethical Responsibilities

We have little admissible evidence that defendant was at Sobibor yet serious doubts as to whether he was at Treblinka. Even if we may be comforted that we may have the right man for the wrong act, the ethical cannons [sic] probably require us to alter our present position. I will now discuss several options theoretically available to us and my recommendation with respect to each.

A. Maintain Status Quo. Proceed with the Treblinka case as presently plead. Positive factors: (a) the trial is likely to be scheduled within the next 100 days so it's to [sic] late to ask to change our [**111] pleadings. (b) Any attempt to change our pledings [sic] would appear to be a sign of weakenss [sic] or indecisiveness. (c) We believe our witnesses to be sincere in their identification and will be credible witnesses, and (d) even if he was at Sobibor there is some possibility he was also at Treblinka or that he was committing offensive acts at Sobibor. Negative Factors: (a) We have good reason to believe he was at Sobibor and as such could not have been at Treblinka. (b) Canon 7-103, and Ethical Consideration EC 7-13,14 of the ABA Code of Professional Responsibility cautions against a public prosecutor going forward in a criminal cause with a case with which he has serious doubts.

Although this is not a a [sic] criminal case per se, I think the deprivation the defendant will suffer if he loses requires us to follow this stricture of the code. If this canon does, in fact, apply, then I must, based upon my knowledge of this case, strongly recommend against this first option.

B. Amend to Strike Treblinka and Supplement Trawniki and Sobibor We submit an extensive alteration to our pleadings. Although this amendment may most closely parallel what we now believe to be the truth, [**112] I consider it tactically suicidal. The positive factors are: (a) we believe he was at Sobibor and assisted directly in the persecution of civilians as is reflected in Danilchenko's statement recently received along with two other Soviets who were guards and recall Demjanjuk by name. Their statements dovetail with the Trawniki card and are circumstantially supported by Demjanjuk's assertion to the IRO that he was at Sobibor from 1937 to 1943 and that he was tattooed by the Germans.

The negative factors are: (a) the case is reduced to the weight the court will give the Trawniki card. Since the card is primarily a supply card issued to a trainee at Trawniki and only incidentally refers to Sobibor, we cannot reasonably expect the Court to find him culpable of any more that [sic] being a trainee of the Germans by no volitional act of his, and his subsequent failure to report this training to screening officials. I consider this option to be a strategic blunder. Legally and ethically, our viable choices (assuming my analysis of my ethical responsibilities is correct) are reduced to the following two.

C. Dismiss the Case--at Least Temporarily. If we don't believe he was at Treblinka and [**113] lack the evidence at the present time to prove that he was at Sobibor as a guard, then dismiss it--at least until the Soviets make Danilchenko available. The negative factors are largely political [sic] and obviously considerable, and it should be remembered that the judge may not permit us to dismiss in such a fashion that allows us the possibility to refile against him at a later time alleging his involvement in Sobibor. Finally, we do believe that he was a guard at Sobibor and may therefore lose opportunity to proceed against him entirely.

D. Amend Pleadings--Add Sobibor and Trawniki to Treblinka Allegations. Move to amend pleadings to give defendant notice that we now allege that he was at Sobibor as of the spring of 1943 and previously received training as a camp guard. At trial our focus will be substantially altered from that of showing he was the operator of the gas chambers who commited [sic] heinous acts. We will instead focus on the fact that he was a Russian POW who was trained by the Germans as a guard and that he was a guard at an extermination camp. We will not employ survivors of Treblinka to describe in excruciating detail what bestial acts he commited [sic] as [**114] Ivan the Terrible.

Instead we will simply employ one or two witnesses (preferably non-Israelis) to testify that they saw him at Treblinka as a guard, the Trawniki card to prove that he was at Trawniki and Sobibor. Since we will have no way to account for what he did at Sobibor, we will focus on the fact that he was a guard and if he had disclosed it to either a displaced persons official or a vise [sic] consul he would have been rejected without resort to further investigation. The positive factors are: (a)

This approach focuses on what we believe to be true (that he was an extermination camp guard), and deletes that which we have reason to think untrue (that he was Ivan the Terrible who worked the gas chambers at Treblinka), and speaks to that which is legally sufficient (he lacked the good moral character to be an American citizen because he illegally entered the country, because he gave false testimony to the vice consul as to his activities and if he had disclosed them, he would have been rejected. (b) It keeps us in the case against an individual we reasonably believe would not have been allowed to enter the country if he had disclosed the truth.

The negative factors are: (a) [**115] so long as we cannot prove with clear and convincing evidence that he was at Sobibor, and do not believe the [sic] he was at Treblinka, option D is simply a ruse to avoid the ethical problems which beset option A, even if we do not identify him as Ivan the Terrible at Treblinka. (b) He disclosed to all officials that he was at Sobibor, and he was not required nor specifically asked what his activities were at Sobibor at the visa issuing stage. The pleadings at present state only that he failed to disclose to the vice consul his activities as a guard.

Opinion

To date, I have opposed arguments that we amend the pleadings to include references to Sobibor or Trawniki. Further, I had believed until recently that the Department would not seriously consider dismissal of the case in its present posture despite our gnawing doubts as to its veracity. I am now in favor of performing radical surgery on the approach we take in handling this case. I believe that we must decide no later than one week after Norman and John return from Europe what course we should take and then take every step necessary and appropriate to implement that decision.

My belief that a change is necessary is predicated [**116] on my assessment that Demjanjuk could not have been Ivan the Terrible at Treblinka as well as the Demjanjuk known to Danilchenko at Sobibor. A reading of the Canons of Ethics persuades me that I cannot pursue this case simply as a Treblinka matter on the premise that it is tactically shrewd and morally acceptable because we think he was a guard elsewhere.

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