518 F.Supp. 1362 (N.D.Ohio 1981), C77-923, United States v. Demjanjuk

Docket Nº:C77-923.
Citation:518 F.Supp. 1362
Party Name:UNITED STATES of America, Plaintiff, v. John DEMJANJUK, Defendant.
Case Date:June 23, 1981
Court:United States District Courts, 6th Circuit, Northern District of Ohio
 
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Page 1362

518 F.Supp. 1362 (N.D.Ohio 1981)

UNITED STATES of America, Plaintiff,

v.

John DEMJANJUK, Defendant.

No. C77-923.

United States District Court, N.D. Ohio, Eastern Division.

June 23, 1981

John J. Horrigan, Asst. U. S. Atty., Cleveland, Ohio, Norman A. Moscowitz, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

John W. Martin, Spiros Gonakis, Cleveland, Ohio, for defendant.

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MEMORANDUM DECISION AND ORDER

BATTISTI, Chief Judge.

This is an action under the Immigration and Nationality Act of 1952, 8 U.S.C. s 1451(a), to revoke the Certificate of Naturalization of the defendant, John Demjanjuk, also known as Iwan Demjanjuk, and to vacate the order admitting him to United States citizenship. The defendant was admitted to the United States for lawful permanent residence on February 9, 1952, pursuant to the Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009, as amended by the Act of 1950, 64 Stat. 219 (henceforth referred to as the DPA). On November 14, 1958, the defendant became a United States citizen by order of the United States District Court, Cleveland, Ohio.

The Government's amended complaint alleges that the defendant served with German SS (Schutzstaffel) personnel during World War II at three locations during 1942-1943:

(1) at the SS training camp at Trawniki, Poland;

(2) at the extermination camp at Treblinka, Poland; and

(3) at the extermination camp at Sobibor, Poland.

The Government's complaint further alleges that defendant served in a German military unit composed of Ukrainians at times during 1944-1945.

Section 1451(a) of the Immigration and Nationality Act, provides that citizenship can be revoked if it was either illegally procured, or procured by concealment of a material fact or by willful misrepresentation. The Government's six-count complaint alleges that defendant should be denaturalized under both criteria. In Counts I-II, the Government alleges that defendant illegally procured his citizenship because (1) his activities during the war precluded him from obtaining a valid visa as an "eligible displaced person" under the DPA, and (2) the visa actually obtained by the defendant was invalid since he willfully misrepresented his whereabouts during the war. Counts III-IV allege that defendant procured his naturalization by concealing and misrepresenting his service with German SS and military personnel during the years in question. The Government also alleges that defendant illegally procured his naturalization since he was not a person of good moral character. Count V alleges that defendant lacked the good moral character required for naturalization because of the commission of atrocities against Jewish prisoners at the extermination camp of Treblinka. Count VI alleges that defendant's failure to disclose his service in the German SS and the German military in his Application to File Petition for Naturalization (INS Form N-400) also indicates a lack of the good moral character that is a prerequisite to naturalization.

(1)(2) The right of citizenship once conferred should not be taken away without the clearest proof. As the Supreme Court recently reiterated, the Government has the burden of proving by "clear, unequivocal and convincing" evidence that defendant obtained his citizenship illegally or fraudulently. Fedorenko v. U.S. 449 U.S. 490, 101 S.Ct. 737, 747, 66 L.Ed.2d 686 (1981) (citing Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796 (1943)). This requirement is mandated by the magnitude of the right that is at stake in a denaturalization proceeding:

"Citizenship obtained through naturalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country 'save that of eligibility to the Presidency.' "

Knauer v. United States, 328 U.S. 654, 658, 66 S.Ct. 1304, 1307, 90 L.Ed. 1500 (1946) (quoting Luria v. United States, 231 U.S. 9, 22, 34 S.Ct. 10, 13, 58 L.Ed. 101 (1913)).

FINDINGS OF FACT

The defendant, John Demjanjuk, was born on April 3, 1920, in the village of Dub Macharenzi, Ukraine, a republic of the U.S.S.R. His father's name in Ukrainian is Mikola, the Russian form of which is Nikolai.

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(Tr. 28A) Defendant had little formal education, completing four grades of school while in the Ukraine. In 1939, defendant lived in Dub Macharenzi and worked as a collective farmer, sometimes as a tractor driver. Defendant was conscripted into the Russian army in 1940. On June 22, 1941, Germany invaded the U.S.S.R.

Three months after the war began, defendant, then a member of an artillery unit, was wounded in his back by shrapnel. The wound required hospitalization and upon release from the hospital, defendant returned to the front in the Crimea. Defendant admits that he was captured at the Battle of Kerch in the Crimea in 1942. (Tr. 1091) The Government called Dr. Earl F. Ziemke, a military historian specializing in the Eastern Front during World War II, who testified that from May 8-19, 1942, a major battle between the Germans and Russians did occur in the Kerch which resulted in 125,000 Russian soldiers being captured. (Tr. 51A-54A) It is likely, therefore, that defendant was captured by the German army no later than May 19, 1942.

Dr. Ziemke further testified that the Russian prisoners of war were then moved west from the Crimea to German POW camps, including Rovno, in the Western Ukraine, and Chelm, Poland. (Tr. 55-A) Defendant testified that after being captured he was in fact transferred first to Rovno for a few weeks and then to Chelm. (Tr. 1069) Defendant did not recall the exact dates of this translocation, but testified he was in Rovno during 1942-1943 and in Chelm until 1943 or 1944. The Government produced additional evidence on the estimated chronology of when defendant was transferred from the Crimea to Rovno and then to Chelm. Government's exhibits 2 and 3 are certified copies of excerpts from German war diaries containing a daily chronicle of prisoners captured in the battle of Kerch in the Crimea in May 1942, and the subsequent relocation of such prisoners in German POW Camps. Government Exhibit 2 records that on May 16 and May 17, 1942, approximately 5,000 prisoners from the battle of Kerch were transported to Rovno. (Tr. 62A) Government Exhibit 3 indicates that 1,400 prisoners, mostly from the battle of Kerch, arrived in Chelm on June 2, 1942, and that other prisoners arrived in Chelm later on June 4-5, 1942. (Tr. 63A).

The Court concludes that it is likely that the defendant was transferred from the Crimea to the POW camps of Rovno and Chelm sometime in May-June 1942. Defendant offered no evidence on a more exact chronology and the accepted chronology was deemed plausible by expert testimony. (Dr. Ziemke, Tr. 58A-68A) Defendant's statement that he might have been in Chelm sometime in 1944 was contradicted by Dr. Ziemke's testimony that the Germans probably would not have maintained a POW camp at Chelm, Poland, any later than January 1944, since the Russian front was quickly moving westward at this time. (Dr. Ziemke, Tr. 1129-32)

Up to this point, the Government's evidence essentially corroborates and amplifies the defendant's own admissions concerning his service in the Russian army and subsequent capture by the Germans. The major factual issues in this trial concern the defendant's whereabouts following his incarceration at the POW camp at Chelm. The Government believes that defendant was next transferred to Trawniki, Poland, a training camp run by the German SS, and was sent from there to Treblinka, Poland, where he assisted in the persecution and extermination of the Jews. Defendant denies ever being at either location. An examination of the historical relationship between Trawniki and Treblinka is prerequisite to an understanding of the evidence in this case.

In 1942 the Nazis initiated "Action Reinhard" in Poland, a codeword for the systematic extermination of the Jews from all the countries of Europe occupied by German forces. 1 Three extermination camps were

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constructed to implement the mass annihilation conceived by Action Reinhard. Two camps, Belzec and Sobibor, were located in the Lublin district of Poland, southeast of Warsaw. The third camp, Treblinka, was located in the district of Warsaw. (Tr. 98A) The German SS directly authorized Action Reinhard, although personnel from the "euthanasia program" 2 were also often used in actually implementing the plan. (Tr. 103A-104A)

The German SS lacked sufficient manpower in the Lublin district to carry out all the "tasks" of Action Reinhard. (Tr. 109A) Consequently, Russian POWs were employed in rounding up and transporting the Jews from the ghettoes to which they had been confined and also as staff in the concentration camps themselves. (Tr. 106A) These Russian POWs were obtained from prisoner of war camps in Eastern Poland, among them, Rovno and Chelm. (Tr. 107A) Prisoners from Rovno and Chelm were taken to Trawniki, a camp operated by the German SS, located southeast of Lublin. 3 (Tr. 7-8)

Once at Trawniki, the Russian POWs were given uniforms (at first black and later earth brown), organized into companies, platoons, and groups and given training in weapons. (Tr. 116A-118A) Upon entering these new units, the former POWs took an oath of service to the German SS and in fact were subject to the rules and regulations governing the German SS. 4 There was testimony that Ukrainian soldiers at Trawniki were paid a salary in Polish currency. (Tr. 194) Units of these Trawniki guards were transferred to the concentration camps of Belzec, Sobibor, and Treblinka where they performed most of the duties that were...

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