holding that "only actions that actually subvert the judicial process can be the basis for upsetting otherwise settled decrees" on the basis of fraud on the court.Summary of this case from Cone v. Tessler
Argued September 3, 1993.
Decided November 17, 1993. Rehearing and Suggestion for Rehearing En Banc Denied February 24, 1994.
Edward Marek, Fed. Public Defender (briefed), Federal Public Defender's Office, Cleveland, OH, Michael E. Tigar (argued and briefed), University of Texas Law School, Austin, TX, for petitioner-appellant.
Patty Merkamp Stemler (argued and briefed), Dept. of Justice, Crim. Div., Appellate Section, Washington, DC, for respondents-appellees.
Appeal from the United States District Court for the Northern District of Ohio.
Before: MERRITT, Chief Judge; KEITH, Circuit Judge; and 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 misconduct 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 that 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, 106 S.Ct. 1198, 89 L.Ed.2d 312 (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, 103 S.Ct. 447, 74 L.Ed.2d 602 (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. 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.
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.
We directed the parties to file briefs setting forth their views and arguments respecting the Special Master's report and set the matter for oral argument on September 3, 1993. Following full briefing and extended oral argument the matter was submitted for decision.
The master made findings of fact, largely based on credibility determinations, which absolved the government attorneys of deliberately and intentionally failing to disclose information that they considered exculpatory. Judge Wiseman also found that the various proceedings against Demjanjuk were not affected by political pressures from congressional sources and various Jewish groups in the United States. S.M. Report at 27-28. We are required to accept the master's findings of fact unless clearly erroneous. FED. R.CIV.P. 53(e)(2).
The master considered six specific claims by Demjanjuk that acts and omissions of OSI attorneys described therein constituted prosecutorial misconduct or fraud on the court. These claims related to statements of various witnesses and a report of a Polish investigation that had come into OSI's possession. In each case the master found that government attorneys had failed to disclose or produce documents or other materials that should have been subject to disclosure or production under outstanding discovery requests and FED.R.CIV.P. 26(e). In each instance, however, the master exonerated the government attorneys on one or more of the following findings: either that the attorneys did not believe the materials were within the scope of outstanding discovery requests; that they believed in good faith that the materials did not relate to Demjanjuk; or that a particular attorney then responsible for complying with requests was not aware of the existence of specified materials even though other attorneys who worked on the Demjanjuk cases did know of and had seen the materials.
In making these determinations, the master considered each of the six claims in light of the successive sets of interrogatories filed by Demjanjuk during the denaturalization proceedings. At the time he filed the first set of interrogatories Demjanjuk filed a request for production of documents and stated that both were to be treated as of a continuing nature. Question 2 of the first set of interrogatories asked whether a statement had been obtained from any person whose name and address had been sought in Question 1. The respondents argued that they had complied fully by providing names of persons who claimed to have any knowledge of Demjanjuk's alleged activities at Treblinka as requested in Question 1 of the first set. The master refused to accept the OSI attorney's arguments, stating:
Thus, the defendant specifically asked for the names of all witnesses to the defendant's alleged actions, and whether statements had been obtained from those people. When read in conjunction with Mr. Demjanjuk's first request for production, he clearly had requested all witness statements.
S.M. Report at 165. Similarly, the master found that the government never supplied the names of several witnesses whose identity was required to be disclosed by Question 1.
Another set of interrogatories asked specifically about foreign government reports concerning activities of Ivan the Terrible at Treblinka. The previously described materials from the Polish investigation of the Treblinka atrocities were in the government's possession in 1979, but were not produced until 1982, after the conclusion of the denaturalization proceedings. This failure was an "oversight," according to one government attorney. S.M. Report at 171. Finally, and most significantly, as early as 1978 or 1979 the government had information from official sources within the Soviet Union indicating that there were two Ukrainian operators of the gas chambers at Treblinka — Ivan and Nikolai — and that "Ivan Grozny" was a man named Ivan Marchenko, not Ivan Demjanjuk.
The master found some of the respondents' failures "excusable," some "inadvertent," and most to have resulted from the government attorneys' mistaken understanding of the scope of their duty of production under the discovery requests made by Demjanjuk. Judge Wiseman stated:
careful reading of Mr. Demjanjuk's discovery requests demonstrates that he asked for virtually every piece of evidence that is at issue in these proceedings. As demonstrated, the government did not provide the evidence because it believed that it was under no duty to do so. The heart of the discovery problems, therefore, was a tragic misunderstanding.
S.M. Report at 204. Noting that no fewer than eight government attorneys worked on the Demjanjuk denaturalization case, the master blamed the misunderstanding with respect to the duty to disclose and produce materials on "the unstable and fractious character" of the prosecution team. The difficulties resulting from rivalries between OSI and the United States Attorney's office in Cleveland, and the frequent changes of attorneys assigned to the case were compounded, the master found, by the attitude of the government trial attorneys that "at times bordered on gamesmanship." S.M. Report at 205.
The master found that, in interpreting Demjanjuk's requests and interrogatories so narrowly, the government attorneys were "playing hardball." S.M. Report at 172. Judge Wiseman pointed out that when questions arose as to whether the later of two requests for information from foreign governments was redundant or inconsistent with the first request, the government attorneys had several options. They could have complied with the requests; they could have sought a protective order if they felt the requests were redundant or oppressive; or they could have contacted defense counsel by telephone for a clarification. As the master stated:
Each of these options would have had the advantage of providing the defense either with the requested information, or with notice of the misunderstanding. Although I believe that the consequences were unintended, the course they took — silently imposing a limitation on the earlier interrogatory — almost certainly misled [defense counsel] and endangered Mr. Demjanjuk's ability to mount a defense.
S.M. Report at 175.
The Special Master was disturbed by the fact that the government attorneys continued to be less than forthcoming with materials from foreign sources after agreeing at a pretrial hearing in the denaturalization case that the government had superior access to such materials and should make every effort to obtain them and furnish them to the defense.
Undisclosed materials from the former Soviet Union and Poland form the principal basis for Demjanjuk's contention that OSI attorneys engaged in misconduct that amounted to fraud. The Supreme Court of Israel reversed Demjanjuk's conviction as Ivan the Terrible and acquitted him based largely on statements of Ukrainian guards at Treblinka who clearly identified Ivan Marchenko as Ivan the Terrible. The Israeli Supreme Court found that these statements raised a reasonable doubt as to Demjanjuk's guilt even though eighteen Jewish survivors of Treblinka and one German guard there had identified him as "Ivan the Terrible" from photographs made in 1942 and 1951.
The government did not have all of the statements relied upon by the Israeli Supreme Court in its possession during the various proceedings against Demjanjuk in this country. Some of the statements came from Russian and Ukrainian sources after the breakup of the Soviet Union. Demjanjuk maintains, however, that during its investigation prior to the denaturalization trial the government did obtain from official sources in the Soviet Union and Poland documents and statements that should have raised doubts about Demjanjuk's identity as Ivan the Terrible, and some of which named Marchenko as the wanted "Ivan." Because the OSI attorneys consistently followed an unjustifiedly narrow view of the scope of their duty to disclose, and compartmentalized their information in a way that resulted in no investigation of apparently contradictory evidence, Demjanjuk and the court were deprived of information and materials that were critical to building the defense.
We briefly describe the claims related to five of these undisclosed documents and groups of documents, indicating with parentheses the date each came into the possession of one or more attorneys at OSI:
1. The Fedorenko Protocols (1978)
This evidence consists of statements received from the former Soviet Union including the statements of two former Treblinka guards, Malagon and Leleko, who discussed the presence of a gas chamber motorist named Marchenko. Both the Leleko and Malagon statements are by Treblinka guards who demonstrate great familiarity with the operations and the operators of the gas chambers of Treblinka. They both name a man other than the accused as the notoriously cruel "Ivan the Terrible" who ran the motors of the gas chambers. Excerpts from the Leleko and Malagon statements are annexed to this opinion as Appendices 3, 4 and 4-A respectively. Also accompanying this evidence was a list of guards transferred out of the Trawniki, Poland training camp on which Demjanjuk's name did not appear. The survivors identified Ivan the Terrible as one of the Ukrainian operators of the Treblinka gas chambers ("motorist"), who was especially cruel and committed atrocities upon the Jewish victims as he herded them into the lethal chambers.
2. The Danilchenko Protocols (1979)
This evidence consists of statements received from the former Soviet Union including a second statement from the former Treblinka guard Malagon who state that an "Ivan Demedyuk or Ivan Dem'yanyuk" worked at Treblinka as a cook, that a guard named Marchenko operated the gas chambers, and who stated that the man he knew as "Ivan Demedyuk or Ivan Dem'yanyuk" was not pictured in the photospread shown to him. Jt.App. 178, 179. Danilchenko, a guard at the Sobibor, Poland death camp, stated that Demjanjuk was a fellow guard at Sobibor and that they were transferred from Sobibor to Flossenburg, Germany together. Respondent's Appendix 221-22. Although these statements are incubatory to the extent they place Demjanjuk at the Sobibor and Flossenburg concentration camps, Demjanjuk contended that he was entitled to have them produced because they were exculpatory with respect to the Treblinka "Ivan" claims and would permit him to refute the claim that he was at Sobibor and Flossenburg.
3. The Dorofeev Protocols (1980)
This evidence received from the former Soviet Union consists of statements of five Soviets who served at the Trawniki, Poland training camp for guards. Only one individual recalled the name Demjanjuk and although he identified two of Demjanjuk's photos in a three-photograph photospread, he qualified his identification by stating that his recollection of Demjanjuk was poor. Three of the others stated that transfers between camps were routed through Trawniki which served as a distribution center. Jt.App. 155. Again, this evidence has both incubatory and exculpatory elements, but Demjanjuk argued that he was entitled to the statements demonstrating that four of the five Trawniki witnesses were unable to identify him and that the fifth was very tentative.
4. "Polish Main Commission" List (1979)
This evidence consists of an article published by the Polish Main Commission, a government body, which partially lists names of known guards at Treblinka. The name Ivan Marchenko appears on the list. Demjanjuk's name does not appear on the list. The Commission conducted an official investigation of the activities carried on at Treblinka in connection with a more extensive investigation of Nazi war crimes in Poland. Jt. App. 502, 556. At the time OSI received this list of more than 70 names containing Marchenko's name, but not that of Demjanjuk, it already had Leleko's statement identifying "Nikolai" and Marchenko as two different people who operated the gas chambers. (Nikolai was identified in documents later received from former Soviet sources as Nikolai Shalayev, who gave a statement in 1950 that he and Marchenko were the two gas chamber operators. This evidence was admitted by the Israeli Supreme Court.) Demjanjuk contended that any attorney considering the Polish list in combination with the Leleko statement would have realized that information from foreign governments pointed to Marchenko, not Demjanjuk, as Ivan the Terrible and should have produced them in response to Questions 1 and 2.
An OSI attorney, George Parker, who was lead counsel in the denaturalization case prior to his resignation in 1980, prepared extensive notes describing and commenting on the evidence in that case sometime before the trial. Jt.App. 152, 167. In those notes he stated that Leleko had named "Nickolay" and Marchenko as motorists and that Marchenko had sword-cut women's breasts, one of the atrocities charged against Demjanjuk as Ivan the Terrible. Before the Special Master, Parker testified that he did not make the connection, because Malagon's statement indicated that Nikolai or Nickolay was Marchenko's first name. Thus, the other guard was Ivan, and, he believed, Demjanjuk. Transcript, Nov. 12, 1992, at 80.
5. OTTO HORN INTERVIEW MEMORANDA (1979)
This evidence consists of "Reports of Interview" from an OSI investigator, Bernard Dougherty, and a historian, George Garand, written in 1979 contemporaneously with an interview of Otto Horn, a former SS guard at Treblinka, at which Horn identified Demjanjuk as a Treblinka guard. Although Horn identified Demjanjuk in a photospread, the investigator and historian both wrote in separate memoranda that this identification occurred only after Horn noted that Demjanjuk's photo appeared in both of the two photospreads and while Demjanjuk's photo from the first photospread lay facing up during his examination of the second photospread. Horn later testified that the photo in the first spread was not visible to him when he made the identification from the second.
These memoranda were addressed to Arthur Sinai, Deputy Director of OSI. A routing slip from Sinai directed "Stacey" to make two copies of one of these reports and forward one to Norman Moscowitz. Jt.App. 586. At that time Moscowitz was working with Parker on the Demjanjuk denaturalization case. He became lead counsel following Parker's resignation, and actually tried the case.
The statements were not produced to Demjanjuk or disclosed to the district court in the denaturalization proceedings when that court received a videotaped deposition of Horn taken some time after the initial identification from the two photospreads. In the videotaped deposition Horn stated that he did not see the two photospreads at the same time — that the first one was put away out of his sight before he examined the second one. The district court stated that it found "no aberrations in the conduct of these identifications which may be said to detract from the identifications Horn made." 518 F. Supp. at 1372.
Moscowitz testified before the Special Master that he did not read the investigator and historian's reports prior to the denaturalization trial, although he did not deny receiving them. Transcript, Jan. 14, 1993, at 91-93. Demjanjuk claims that the OSI attorneys committed misconduct and fraud on the court in presenting Horn's videotaped identification testimony without producing the reports that detailed a highly suggestive identification procedure. Relevant portions of the Dougherty and Garand reports are annexed to this opinion as Appendices 5 and 6, respectively.
There is a further consideration with respect to the Fedorenko Protocols. Following the district court's judgment in the denaturalization case, Norman Moscowitz who was then chief trial counsel in that case, wrote a letter to Demjanjuk's counsel, John Martin, with a copy to the trial judge. Jt.App. 147. In this letter Moscowitz stated that documents had been received from the Soviet Union (the Dorofeev Protocols) just before trial and that OSI, for various reasons, had not disclosed or produced them to Demjanjuk's counsel. The letter characterized these materials as "further incriminatory information and support for the government's case." The letter also stated that Demjanjuk was being advised of the existence of these documents in order to make "the record of discovery complete."
Demjanjuk filed a motion for a mistrial, which the district court treated as a motion for a new trial. The district court held a hearing on the motion on May 4, 1981. Demjanjuk's attorneys argued that the Dorofeev information would have been valuable to the defense, that four of the five former Trawniki guards had failed to identify Demjanjuk while only one had identified him. Counsel asserted that it would have been important for the defense to contact these men, particularly to learn if they had been issued identification badges like the "Trawniki card" relied upon by the government. The expert witness at the trial who had testified that the card appeared to be authentic had stated that the one exhibited there was the only one he had ever seen, though he was a Holocaust historian.
The government argued that it had no agreement or duty to supplement answers to interrogatories and requests. Even if there was a duty to produce the documents, the government asserted, Demjanjuk was not prejudiced by this oversight. During the government's argument, attorney Moscowitz told the court that he was perfectly willing to give the defense the witness' statements "as everything else." At this time Demjanjuk's counsel only had the letter describing the contents of the statements, not the Dorofeev statements themselves.
Chief Judge Battisti ruled that the government had a duty to provide the names of the five witnesses before or during the trial. He then ordered government counsel to turn over copies of the statements to the defendant and to the court, and recessed the hearing until Demjanjuk's counsel and the court had an opportunity to review them. Following the recess, the district court heard further argument and then asked for briefs from the parties before adjourning the hearing. Jt.App. 767. The court ultimately ruled that the Dorofee materials were cumulative and in fact supported the government's arguments that Demjanjuk had been at Trawniki and that Trawniki was a training center for guards assigned to all of the extermination camps, including Sobibor as well as Treblinka. 518 F. Supp. at 1384-86.
Demjanjuk argues that, given the district court's ruling that the government had a duty to disclose and produce the Dorofeev Protocols, Moscowitz should have realized that the same duty applied to the Fedorenko Protocols, which also came from the Soviet Union. Though Moscowitz represented that his post-trial letter disclosing the existence of the Dorofeev Protocols was written in order to make the record of discovery complete, he still did not disclose or produce the Fedorenko documents, which had been in OSI's possession since 1978.
In his testimony before the Special Master, Moscowitz admitted reading the Fedorenko documents prior to the denaturalization proceedings. Neither he nor Parker, who also read them, felt that they supplied any help in the Demjanjuk cases. According to the master, these documents disappeared in the winter of 1981 after the denaturalization trial and only resurfaced in 1991 in response to a Freedom of Information Act case by Congressman James Traficant of Ohio. At oral argument before this court, government counsel stated the Fedorenko documents didn't actually disappear: "They were just put back in the Fedorenko files. They came with the Fedorenko case and when the Demjanjuk case was over, they went back to their Fedorenko file."
It is hard to credit this explanation. The Fedorenko file, particularly the Leleko and Malagon statements, contain significant evidence tending to show that a person other than Demjanjuk was in fact "Ivan the Terrible of Treblinka." The record contains copies of a letter dated October 23, 1978, from the General Counsel to Martin Mendelsohn, chief of litigation in the "Special Litigation Unit" (SLU) of the Department of Justice, predecessor to OSI. Jt.App. 215-17. The letter discusses the necessity of winning the Demjanjuk case, and has as attachments all of the SLU's memoranda on Demjanjuk. Among these memoranda is one from Parker and Moscowitz to the State Department requesting assistance in obtaining further information from the Soviet Union. The memorandum notes that the Soviets had sent materials in June 1978 relating to the investigation of Fedorenko (the Fedorenko Protocols), and continues: "Please thank the [Soviet] Ministry for sending these materials which have been very useful." Jt.App. 218. The October 23, 1978 letter shows that a copy was placed in the Demjanjuk file. It seems clear that even if the Fedorenko documents were "just put back in the Fedorenko files," anyone working with the Demjanjuk files had the substance of those documents, if not the documents themselves, available.
There were clear signals that the Fedorenko documents were significant in the Demjanjuk investigation. As we have noted, the Fedorenko Protocols contained, inter alia, the statements of Soviet citizens Malagon and Leleko, both guards at Treblinka, who identified Marchenko as an operator of the gas chamber. Leleko's statement clearly said that there were two Ukrainian operators of the gas chambers, "Marchenko and Nikolay" and identified Marchenko as the "motorist" who committed some of the very atrocities with which Demjanjuk was charged. Leleko said that Marchenko mutilated Jewish victims, cutting off breasts of women. Demjanjuk argues that this evidence provided the strongest possible support for their basic contention in all the proceedings that Demjanjuk was the victim of misidentification. Though the Treblinka survivors who identified Demjanjuk as Ivan the Terrible probably believed they recognized him from the two photographs exhibited to them, it had been 30 to 40 years since any of them had their last opportunity to observe the Ukrainian guard Ivan Grozny. On the other hand, Leleko's statement was made immediately after the war. The Israeli Supreme Court considered more eyewitness survivor identifications than the American courts; yet, it found that statements made to Soviet authorities identifying Marchenko as "Ivan" raised sufficient doubt about the identification of Demjanjuk to require reversal of Demjanjuk's conviction and his release. It seems clear that the American courts considering Demjanjuk's fate should have had those documents that were in OSI's possession in 1981 that pointed to Ivan Marchenko as Ivan the Terrible.
After working on the Demjanjuk case for several years, OSI attorney George Parker became convinced that OSI lacked sufficient evidence that Demjanjuk was Ivan the Terrible of Treblinka. On February 28, 1980, Parker wrote a memorandum entitled "Demjanjuk — A Reappraisal," addressed to Walter Rockler, Director, and Allan Ryan, Deputy Director of OSI, setting forth his doubts. He urged the addressees to read the memorandum and be prepared to make a decision about how to proceed with Demjanjuk (the denaturalization case had been pending for more than two years and was nearing trial) in the near future. This memorandum is annexed hereto as Appendix 7.
Parker's memorandum discussed the background of the Demjanjuk investigation, which began when attorneys in the SLU became aware of a brief reference to Demjanjuk at Sobibor in a book called Lest We Forget. The book also referred to a document later denominated the "Trawniki Card," containing a photograph identified as being that of Ivan Demjanjuk. It was only after Treblinka survivors who were interrogated by Israeli police identified the person pictured on the card as a guard at Treblinka rather than at Sobibor that the SLU shifted its focus and began preparing a case against Demjanjuk as Ivan the Terrible. All other evidence, including the statements of Danilchenko and two other Ukrainian guards questioned by Soviet authorities, identified Demjanjuk as a guard at Sobibor and Flossenburg, but not at Treblinka.
Furthermore, Parker's memo pointed out, both the Polish and Soviet governments had compiled lists of guards at Treblinka, and Demjanjuk's name appeared on neither one, though "[t]he two Ukrainians who incessantly worked at the gas chambers were well known." This portion of the memorandum concludes: "Given these circumstances it is disturbing, as Norman Moscowitz has pointed out repeatedly, that Demjanjuk's name does not appear on either list."
After reviewing the available admissible evidence and the "flaws" with the Treblinka evidence, the memorandum sets forth Parker's views of "Strategic Options; Ethical Responsibilities" of OSI as he sees them. This section of the memorandum begins with these words:
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.
The memorandum then sets forth four options and Parker's recommendation as to each.
Option 1 would be to maintain the status quo, that is, to "[p]roceed with the Treblinka case as presently plead." (The denaturalization complaint did not mention Sobibor or Trawniki, only Treblinka.) Assuming canons of ethics that caution against prosecutors going forward in a criminal case in which they have serious doubts apply to the denaturalization case, Parker "strongly recommended" against this option. Parker recognized that a denaturalization proceeding is technically a civil rather than a criminal action, but expressed the view that the consequence to a defendant who loses such a case — deprivation of citizenship — is so severe that this stricture of the canons should be followed.
Option 2 would be to strike claims that Demjanjuk was at Treblinka and substitute claims that he was at Trawniki and Sobibor. Parker described this course of action as "tactically suicidal" and "a strategic blunder," primarily because it placed too much reliance on the Trawniki Card.
Option 3 would be to dismiss the case — at least temporarily — and attempt to beef up the Sobibor evidence. The memorandum recommended against this option because of "largely political" negative factors, and the possibility that the court might not permit refiling.
Option 4 would be to amend the pleadings to add allegations that Demjanjuk served at Sobibor and Trawniki in addition to the allegation that he was Ivan the Terrible of Treblinka. This would shift the focus from testimony of Treblinka survivors describing the heinous crimes of Ivan the Terrible to a mere showing that Demjanjuk was a Russian POW trained by the Germans as a guard, who served as a guard at an extermination camp. Parker did not make a recommendation with respect to Option 4, but repeated his opinion that a change in course was absolutely required by ethical considerations.
Parker's superiors eventually decided to amend the pleadings to add allegations about Sobibor and Trawniki, but to proceed with the case on the basis of proving that Demjanjuk was Ivan the Terrible and to rely principally on photo identifications by Treblinka survivors. Parker resigned from the Department of Justice before the denaturalization trial and Norman Moscowitz took over as lead attorney for OSI.
The Special Master found that the Parker memorandum is "authentic." S.M. Report at 100-01. This was an issue, because no one in OSI could locate it; Parker produced a copy of the memorandum and cover letter on October 8, 1992, in proceedings before the master.
Rockler testified that he could not remember receiving the memorandum. Ryan testified that he could not have received it, or he would have done something about it. The master stated that Ryan's testimony should be taken "with a grain of salt," and we agree with this assessment. Moscowitz testified that he did not receive the memorandum, but was aware of Parker's doubts about the identifications of Demjanjuk by survivors of Treblinka. The master found that there was a meeting shortly after the memorandum was written at which the question of amending the pleadings in the Demjanjuk case was discussed. Although there was considerable inconsistency in the testimony of the attorneys who attended the meeting, the master found that all were telling the truth to the extent they remembered the meeting at all. The master further concluded that Rockler found no irreconcilable discrepancies in the Demjanjuk evidence and that the evidence in hand was sufficient to go forward. On that basis, Parker's views were rejected by Parker's colleagues within OSI. S.M. Report at 103-09.
The master absolved Moscowitz of blame for not sharing Parker's ethical concerns and proceeding to prosecute the denaturalization case with the Ivan the Terrible allegations as its centerpiece. Moscowitz testified that he had concluded that while Demjanjuk's primary duties were at Treblinka, the Trawniki training camp was also a transfer point for guards. Thus, it was not impossible for Demjanjuk to have been at Treblinka at times the survivors claimed they saw him operating the gas chambers and committing other atrocities there, and to have served at Sobibor at other times. S.M. Report at 113-18.
The "most striking aspect" of the Parker memorandum, according to the master, "is its complete silence regarding the references [in the Fedorenko documents] to a man named Marchenko at the gas chambers." S.M. Report at 112. Parker's doubts were based on the apparent impossibility of Demjanjuk's having been a guard at both Sobibor and Treblinka during the relatively brief time both were in operation, and his uneasiness about the survivor identifications so long after the events. Parker did not make the Marchenko connection. Moscowitz testified that when he became aware of the evidence identifying Marchenko as Ivan the Terrible, he assumed that Demjanjuk had adopted Marchenko (a common Ukrainian name, and Demjanjuk's mother's maiden name) as an alias. The problem with this explanation is that Moscowitz also relied on the Trawniki card containing Demjanjuk's name and photograph as significant evidence that he was Ivan the Terrible of Treblinka. It is hard to understand how he could have been sent from Trawniki to Treblinka as Demjanjuk and then assumed the name Marchenko while working there. Surely the meticulous Germans in charge at Treblinka would have noticed the discrepancy.
In his memorandum, Parker wrote that adopting Option 4, amending the pleadings to add Sobibor and Trawniki allegations, would be "simply a ruse to avoid the ethical problems" identified in Option 1. The master found that amending in this way was not a ruse because Moscowitz and others believed in good faith that transfers did take place through Trawniki between camps and that Demjanjuk had served at both Treblinka and Sobibor. S.M. Report at 123.
While recognizing the significance of the Parker memorandum as a document which raised important questions about the handling of the Demjanjuk case, the Special Master concluded that it was not a "smoking gun" insofar as his inquiry was concerned. The master held that because OSI attorneys acted on the basis of good faith belief in Demjanjuk's guilt as Ivan the Terrible their disagreements with Parker's conclusions were irrelevant with respect to the issue of fraud on the court. S.M. Report at 117. While we agree that the Parker memo alone would not be a sufficient basis for a finding of fraud on the court, it raised a clear warning that there were ethical perils in continuing to prosecute Demjanjuk as Ivan the Terrible. When his superiors and colleagues at OSI refused to heed his warning, Parker resigned.
The government argued in its brief to the Special Master that mere nondisclosure can never be fraud on the court. The master rejected the argument as a misinterpretation of this court's statement in H.K. Porter Co. v. Goodyear Tire Rubber Co., 536 F.2d 1115, 1118 (6th Cir. 1976), that "[a]llegations of nondisclosure during pretrial discovery are not sufficient to support an action for fraud on the court." The government quoted this statement out of context. When the context is examined, it is clear that the court in Porter was concerned with a claim of fraud based on an attorney's failure to disclose documents not requested by opposing parties that pertained to confidential disclosures from a client. The master stated, correctly we believe, that it would be error "to exclude from the definition of fraud on the court intentional, fraudulent nondisclosure during discovery." S.M. Report at 187-88.
The Special Master set forth the elements of fraud upon the court as consisting of conduct:
1. On the part of an officer of the court;
2. That is directed to the "judicial machinery" itself;
3. That is intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth;
4. That is a positive averment or is concealment when one is under a duty to disclose;
5. That deceives the court.
As shown by his description of the third element, and repeated in his opinion, the master held that the intent requirement "is satisfied by proof of actual intent to defraud, of wilful blindness to the truth, or of a reckless disregard for the truth." S.M. Report at 185-86, 190 (emphasis added).
We have trouble squaring this definition with the master's ultimate conclusion. The master stated that "a careful reading of Mr. Demjanjuk's discovery requests demonstrates that he asked for virtually every piece of evidence that is at issue in these proceedings," but the government did not provide the evidence because it believed it was under no duty to do so. S.M. Report at 204. The government attorneys had the same obligation as the master to give these requests a "careful reading." The master also faulted Demjanjuk's attorneys for failing to pursue every lead provided by the responses that the government did make. That may be a correct assessment as to some leads, but Demjanjuk's attorneys were depending on government attorneys to root out information in the possession of foreign nations and to provide it. This was so because only the government has the contacts and resources necessary to obtain information from foreign governments, and because a government attorney agreed to do just that at a pretrial hearing before a magistrate. S.M. Report at 157.
This case involves more than discovery obligations, however. Ryan testified that he had stated many times that OSI had a policy and practice of turning over exculpatory information even if it had not been requested in discovery. Transcript, Jan. 29, 1993, at 32-40. The other OSI attorneys testified that they knew of no such policy.
While the denaturalization case was before the Supreme Court on Demjanjuk's petition for certiorari, Demjanjuk received from private sources a copy of the August 1979 letter from a Polish official to Martin Mendelsohn concerning the report of the Polish Main Commission. Demjanjuk requested information about the Polish report. Moscowitz responded and sent a part of the Commission materials. John Martin, Demjanjuk's attorney, immediately wrote to Allan Ryan, then director of OSI, requesting copies of the document described in the letter. OSI attorney Bruce Einhorn drafted a response and sent it to Ryan for approval. This second response stated that "all relevant and discoverable documents in the Government's possession have been provided to you under the Federal Rules of Civil Procedure." The letter went on to decline the request for "further discovery." The master found that this letter was sent to Martin with a copy to Judge Battisti, apparently with Ryan's approval. S.M. Report at 135-36. These responses do not square with Ryan's professed policy. The OSI letter is couched in terms of the requirements of the discovery rules and limiting production to documents specifically requested, not one of disclosing all exculpatory information.
The Special Master based his ultimate conclusion that Demjanjuk failed to prove fraud on the court almost exclusively on his finding that the OSI attorneys acted in good faith. While he stated that they were not reckless, he did not discuss this finding at all. Instead, he emphasized his finding that "[t]hey did not intend to violate the Rules or their ethical obligations. . . . they did not misstate facts or the law as they understood them, and did not make statements in ignorance while aware of their ignorance. Although they were blinded to what we may now perceive to be the truth, they were not wilfully blind." S.M. Report at 206.
The quoted findings are based largely on credibility determinations. Although we might not agree with each finding, giving them the required deference, we cannot find them clearly erroneous. The conclusion that the OSI attorneys were not reckless, however, stands on a different footing. Given the Special Master's finding of no deliberate or wilful failure to disclose information arising from an evil motive, we believe the type of reckless disregard to be examined in this case is the second type described in the Restatement (Second) of Torts § 500, comment (a):
Recklessness may consist of either of two different types of conduct . . . In [the second type], the actor has . . . knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.
Such recklessness can and should be determined from an objective examination of the actions of the parties in a particular set of circumstances. We will undertake such an objective examination, accepting as true that no OSI attorney deliberately withheld from Demjanjuk or the court information that he believed he had a duty to disclose even though the withholding itself was deliberate.
The attitude of the OSI attorneys toward disclosing information to Demjanjuk's counsel was not consistent with the government's obligation to work for justice rather than for a result that favors its attorneys' preconceived ideas of what the outcome of legal proceedings should be. The master found that the OSI attorneys operated on the premise that Demjanjuk was Ivan the Terrible and that this belief caused them to be "inadequately skeptical" of their case when confronted with evidence pointing to Marchenko as Ivan Grozny. S.M. Report at 202-03. We do not believe their personal conviction that they had the right man provided an excuse for recklessly disregarding their obligation to provide information specifically requested by Demjanjuk (as found by the master) the withholding of which almost certainly misled his counsel and endangered his ability to mount a defense (as found by the master).
The OSI attorneys acted with reckless disregard for their duty to the court and their discovery obligations in failing to disclose at least three sets of documents in their possession before the proceedings against Demjanjuk ever reached trial.
1. The Fedorenko Protocols should have been disclosed. They consisted of information provided by a foreign government that supplied some support to Demjanjuk's basic claim from the beginning — that he was a victim of misidentification. The statements of the two former guards at Treblinka identified one of the Ukrainians who operated the gas chambers as "Marchenko." In his statement, taken in 1945 near the end of World War II, the guard Leleko named Nikolai and Marchenko as the "motorists" and stated that Marchenko had cut women's breasts with his sword. In addition, the protocols contained the transcription of a detailed taped interrogation of Fedorenko conducted in 1973 by Soviet officials. Fedorenko stated that he remembered two guards at the gas chambers, Nikolay and Ivan. Two Jewish survivors, Rosenberg and Epstein, had also described two operators of the gas chambers called Nikolai and Ivan. Marchenko's given name was Ivan.
The guard Malagon also identified Marchenko as a motorist in a 1978 statement. He referred to him, however, as "Marchenko, Nickolay," providing support for the OSI theory that Marchenko was the Nikolai described by some survivors and Demjanjuk was the notorious Ivan. This theory was weakened, however, by the fact that Marchenko's name appeared on the list of Treblinka personnel furnished by the Soviet government and Demjanjuk's name did not appear. This same witness, Malagon, identified Demjanjuk's photograph as that of a cook at Treblinka, not as Ivan the Terrible when he was interrogated on October 2, 1979.
The information in the Fedorenko Protocols would have bolstered Demjanjuk's contention that he was not Ivan Grozny of Treblinka, and would have provided information pointing toward Marchenko as the notorious Ukrainian. The information would have assisted the district court as well. The court heard no evidence in support of Demjanjuk's claim of misidentification beyond his own denial. This information would have shown the court that there was evidentiary support available, and in the government's possession, that supported that denial.
2. The list of Ukrainian guards at Treblinka furnished to OSI by the Polish government was certainly exculpatory. In 1982 Demjanjuk's attorney advised OSI Director Allan Ryan that he had learned of 1979 correspondence between the director of the Polish Main Commission Investigating Nazi Crimes in Poland and OSI attorney Martin Mendelsohn and requested copies "[p]ursuant to discovery motions and interrogatories . . . ." Jt.App. 149. Attorney Moscowitz responded on August 17, 1992. enclosing copies of the reports from Poland. Moscowitz advised that OSI was furnishing the material "as a matter of courtesy and not under any obligations of discovery, which ended long ago." Jt.App. 150.
Demjanjuk's attorney persisted, asking for copies of any other documents received from foreign governments (a duty to furnish such documents existed from the time of Demjanjuk's first set of interrogatories, the master found). Attorney Bruce Einhorn replied for OSI that "all relevant and discoverable documents in the Government's possession have been provided to you under the Federal Rules of Civil Procedure." The letter also advised that OSI had undertaken no inquiry to determine whether other documents being sought had already been provided "or indeed whether such documents even exist." Jt. App. 152.
The 1979 letter from the Polish Main Commission advised that the Commission had no data concerning Demjanjuk. Jt.App. 502. Among the documents forwarded with the director's letter was a list of known Ukrainian guards who had worked at Treblinka. Both Fedorenko and Marchenko's names appeared on the list. Demjanjuk's name did not appear.
Both Parker and Moscowitz, the two OSI attorneys most involved in preparing the Demjanjuk denaturalization case, saw the material from the Polish Main Commission. Parker testified that he thought the material had no value in the Demjanjuk case, and that he did not notice Marchenko's name. Moscowitz testified he thought it did not relate to the Demjanjuk case. This was a strange conclusion, given the fact that the director of the Commission sent the material in response to a request from OSI for information concerning Demjanjuk and two other individuals. Jt.App. 502.
The Polish Main Commission material would not have established conclusively that Demjanjuk was not a guard or motorist at Treblinka. There were approximately 100 Ukrainians there at one time or another. Nevertheless, the defense could have argued from the absence of Demjanjuk's name that surely the Polish investigation would have turned up the name of Treblinka's most notorious guard and included that person's name on the list. If Allan Ryan's proclaimed policy of furnishing everything had been followed, it is clear that the Polish documents would have been furnished in 1979, before the denaturalization trial, not three years later.
3. Otto Horn's identification of Demjanjuk as Ivan Grozny from photo spreads was extremely important government evidence at the denaturalization trial. Horn was a German guard who had been stationed at Treblinka. He was tried for war crimes in 1964 or 1965 and acquitted. His evidence was presented in the denaturalization proceedings in the form of a videotaped deposition taken in Berlin on February 26, 1980.
Demjanjuk's counsel objected to testimony on the videotape concerning the identification from photographs on the specific ground that OSI personnel had visited Horn three months earlier, in November 1979, and conducted a photo identification procedure in the absence of Demjanjuk's attorneys. Moscowitz responded that Demjanjuk's counsel had full opportunity to cross-examine Horn when the deposition was taken in 1980.
What neither Judge Battisti nor Demjanjuk's counsel knew was that the contemporaneous reports of the 1979 Horn interview by the OSI investigator and historian directly conflicted with Horn's testimony at the deposition that when he finally identified Demjanjuk's photograph in the second spread he could not see the first set of pictures. Yet, the reports both stated that Horn was unable to identify Demjanjuk's photo in the first spread and only did so while examining the second spread and noticing the resemblance between the Demjanjuk photo in that set and the Demjanjuk photo in the first spread, which was lying face-up where Horn could see it as he examined the second set.
As we have noted, Chief Judge Battisti overruled Demjanjuk's objections to the Horn video deposition and found that there were "no aberrations" in the process by which Horn identified a photograph of Demjanjuk's as Ivan. We believe that if Demjanjuk's attorneys had had the investigator and historian's reports of the first session, with their strong indication of a suggestive identification procedure, they could have conducted a cross-examination of Horn at the videotaped deposition that would have raised serious questions about the witness' identification.
Both the district court and Demjanjuk's counsel were entitled to have these reports produced. Moscowitz, who was the lead attorney at the denaturalization trial, testified before the Special Master that he never read the Dougherty and Garand reports before the trial. This, despite the fact that Sinai, to whom the reports were addressed, clearly directed that a copy be made and sent to Moscowitz. If Moscowitz did not read the reports, knowing he planned to introduce the video deposition at the trial, this failure constituted "reckless disregard for the truth."
OSI was not a large office. We can find no excuse for such casual treatment of information that could cast doubt on the validity of important testimony. Moscowitz was present at the first session with Horn, but testified that he looked away during the actual identification, leaving that to the investigator and historian. He did this, he said, in order to avoid the possibility of being called as a witness at the denaturalization trial when the deposition to be taken a few months later would be introduced. Not having witnessed the identification himself, we can find no reasonable explanation in this immense record for his failure to read and acknowledge the importance of the contemporaneous reports of the trained investigator and historian, nor can we understand how Sinai determined that two reports addressed to him should be routed to Moscowitz without even reading them.
We consider whether the conduct outlined herein constitutes fraud on the court or attorney misconduct sufficiently serious to require corrective action on our part.
Fraud on the court is a somewhat nebulous concept usually discussed in civil cases. No court system can function without safeguards against actions that interfere with its administration of justice. This concern must be balanced against the necessity for finality of court judgments; thus, only actions that actually subvert the judicial process can be the basis for upsetting otherwise settled decrees.
Professor Moore's definition is frequently cited:
Fraud upon the court should . . . embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct.
7 Moore's Federal Practice and Procedure ¶ 60.33. Cases dealing with fraud on the court often turn on whether the improper actions are those of parties alone, or if the attorneys in the case are involved. As an officer of the court, every attorney has a duty to be completely honest in conducting litigation. Professor Moore emphasizes this element of fraud in his treatise:
[W]hile an attorney should represent his client with singular loyalty, that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon a court.
Id. The author cites two Supreme Court decisions that illustrate the role of attorney actions in the fraud on the court analysis. Moore distinguishes between Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), in which the Supreme Court did find fraud, and U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), in which the Court did not find fraud. While the actions taken in both cases were similar — false documents were put before the court — the attorney was implicated in Hazel-Atlas as one of the perpetrators, while the attorney in Throckmorton was not. 7 Moore's Federal Practice at 60-358-59. See also Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir. 1972), where the court of appeals as part of its finding of no fraud on the court, pointed out that none of the offending party's attorneys were involved in the alleged fraud. 461 F.2d at 702 n. 1.
When the party is the United States, acting through the Department of Justice, the distinction between client and attorney actions becomes meaningless. The Department acts only through its attorneys. Although there are cases holding that a "plan or scheme" must exist in order to find fraud on the court, we agree with Judge Wiseman that a scheme, based on a subjective intent to commit fraud, is not required in a case such as this. Reckless disregard for the truth is sufficient.
The respondents complain that Demjanjuk seeks to hold them to the constitutional standard in criminal cases enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), even though all proceedings against Demjanjuk have been civil actions. The Supreme Court held in Brady that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. The Special Master stated that he believed the Brady rule should govern, but confined his analysis to fraud on the Court in a civil context, because the Supreme Court had never stated that the Brady rule applies in civil cases.
We believe Brady should be extended to cover denaturalization and extradition cases where the government seeks denaturalization or extradition based on proof of alleged criminal activities of the party proceeded against. If the government had sought to denaturalize Demjanjuk only on the basis of his misrepresentations at the time he sought admission to the United States and subsequently when he applied for citizenship, it would have been only a civil action. The government did not rest on those misrepresentations, however. Instead, the respondents presented their case as showing that Demjanjuk was guilty of mass murder.
The OSI prosecutors knew that Brady requires disclosure of exculpatory information in criminal cases. The Director of OSI, Mr. Ryan, testified that it is "fundamentally unfair" not to follow the Brady principle in OSI cases and that he intended for the office to follow this principle of full disclosure of exculpatory material. (Ryan Tr. at 37.) It is not sufficient to say, as the Special Master concludes, that no prosecutorial misconduct occurred under the Brady principle because no particular individual at OSI has been proved to have acted in "bad faith" with the express intent of suppressing exculpatory evidence.
In Brady itself, the Court stated that the failure to disclose material information is a due process violation "irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Otherwise, the prosecutor can proclaim that his heart is innocent and his failures inadvertent, a claim hard to disprove, while at the same time completely disregarding his duty to disclose.
The Court has also made plain that the prosecution cannot escape its disclosure obligation by compartmentalizing information or failing to inform others in the office of relevant information. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the government made the same "the-right-hand-did-not-know-what-the-left-hand-was-doing" argument as it makes here. The Court was quick to reject this excuse as a justification for withholding exculpatory material. The Court pointed out that "the prosecutor's office is an entity and as such it is the spokesman for the government." The Court held that the prosecutor's office — here OSI — is responsible as a corporate entity for disclosure.
The full paragraph in which this rule is expressed is as follows:
In the circumstances shown by this record, neither DiPaoloa's authority nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. See Restatement (Second) of Agency § 272. See also American Bar Association, Project on Standards for Criminal Justice, Discovery and Procedure Before Trial § 2.1(d). To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it. 405 U.S. at 154, 92 S.Ct. at 766.
The record is replete with evidence that Allan Ryan was considering extradition of Nazi war criminals to Israel even before Demjanjuk's denaturalization become final. When that event occurred, the government did not deport Demjanjuk; instead, it sought his extradition for trial as Ivan the Terrible pursuant to Israel's request.
The consequences of denaturalization and extradition equal or exceed those of most criminal convictions. In this case, Demjanjuk was extradited for trial on a charge that carried the death penalty. OSI is part of the Criminal Division of the Department of Justice. The OSI attorneys team with local United States Attorneys in seeking denaturalization and extradition, and they approach these cases as prosecutions. In fact, in correspondence and memoranda several of the respondents refer to their role in the Demjanjuk case as prosecutors. We believe the OSI attorneys had a constitutional duty to produce "all evidence favorable to an accused [Demjanjuk]," which the Special Master found he had requested and that was "material . . . to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196.
Thus, we hold that the OSI attorneys acted with reckless disregard for the truth and for the government's obligation to take no steps that prevent an adversary from presenting his case fully and fairly. This was fraud on the court in the circumstances of this case where, by recklessly assuming Demjanjuk's guilt, they failed to observe their obligation to produce exculpatory materials requested by Demjanjuk.
Several other factors revealed by this record require brief discussion.
Although the Special Master found that pressures from outside OSI did not influence the respondents' failure to disclose required information, the presence of such pressure cannot be gainsaid. In August of 1978 Congressman Eilberg, the Chairman of an important committee, wrote then Attorney General Bell a letter insisting that Demjanjuk be prosecuted hard because "we cannot afford the risk of losing" the case. The trial attorney then in charge of the case, Mr. Parker, wrote in his 1980 memorandum that the denaturalization case could not be dismissed because of factors "largely political and obviously considerable." Other lawyers in OSI wrote memos discussing this case as a political "hot potato" that if lost "will raise political problems for us all including the Attorney General." (Mendelsohn, then the Director of the office, to Crosland, September 26, 1978, Pet.Exh. 113.) Mr. Ryan, Director of the office, wrote the Assistant Attorney General of the Criminal Division in 1980 that OSI had "secured the support in Congress, Jewish community organizations, public at large for OSI — press coverage has been substantially favorable and support from Jewish organizations is now secure," but he went on to say that "this support can't be taken for granted and must be reinforced at every opportunity." (Ryan Tr. at 88.) Mr. Ryan also testified that "in 1986, which was the year before the [Israeli] trial [of Demjanjuk], I went to Israel for about 10 days on a lecture tour that was sponsored by the Antidefamation League. . . ." (Ryan Tr. at 90.) It is obvious from the record that the prevailing mindset at OSI was that the office must try to please and maintain very close relationships with various interest groups because their continued existence depended upon it.
The letter reads, in its entirety, as follows:
August 25, 1978 Honorable Griffin B. Bell Attorney General Department of Justice Washington, D.C.
Dear Mr. Attorney General:
Reports have reached me that deficiencies have become apparent in the preparation of the case of U.S. v. Demjanjuk, a denaturalization proceeding against an alleged Nazi war criminal now living in Cleveland, Ohio.
I wish to express my strong concern over the possible inadequate prosecution of this case. A repeat of the recent Fedorenko adverse decision to the government's case in Florida would nullify and gravely jeopardize the long and persistent efforts of this Subcommittee in ridding this country of these undesirable elements. Lack of preparation and a deep realization of the importance of these proceedings may have cost the government its decision in this case. We certainly would regret seeing this happen again.
The creation of a Special Litigation Unit within INS [predecessor of OSI] was established to bring expertise and organization to this project.
This Unit should be fully entrusted with these cases.
I would strongly urge you to place the direction of the proceedings of the DEMJANJUK case in the hands of the Special Litigation Unit. We cannot afford the risk of losing another decision.
With best wishes. Sincerely, JOSHUA EILBERG Chairman Pet.Supp.App. (1992), at 182.
The "win at any cost" attitude displayed by some of these record documents and statements contrasts sharply with the attitude and actions of the Israeli prosecutors, who were under domestic political pressures themselves. But for the actions of the Israeli prosecutors, the death sentence against Demjanjuk probably would have been carried out by now. He would have been executed on a charge for which he has now been acquitted.
The Israeli prosecutors did not learn of the exculpatory evidence from Russia until after the accused was found guilty and sentenced to death in the Israel trial court. They had prosecuted the case over many months and obtained the conviction and death sentence. The Israeli prosecutors then learned that there was Russian information suggesting that the charges against the accused may be false. Instead of withholding the information, the prosecutors travelled to Russia to investigate the matter thoroughly. They marshalled the exculpatory evidence, brought it back to Israel; and in the face of extremely strong popular feelings against the accused, publicly turned it over to the Supreme Court of Israel. Basically, the Israeli prosecutors confessed error in the face of intense political pressure to get a conviction. Relying on this newly discovered exculpatory evidence developed by the prosecutors, the Supreme Court of Israel reversed the conviction which those same prosecutors had obtained five years earlier.
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, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946). 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, 67 S.Ct. at 230. 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, 88 S.Ct. 1274, 1277, 20 L.Ed.2d 195 (1968); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). See also York v. Tate, 858 F.2d 322 (6th Cir. 1988) (habeas corpus petition not mooted by prisoner's release).
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, 89 S.Ct. 1082, 1090-1091, 22 L.Ed.2d 281 (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, 64 S.Ct. 997, 1000, 88 L.Ed. 1250 (1944). See also Chambers v. NASCO, Inc., ___ U.S. ___, ___, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991). Rule 60(b) recognizes this authority as well in noting that "[t]his 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.