612 F.Supp. 544 (N.D.Ohio 1985), Misc. 83-349, In re Extradition of Demjanjuk

Docket Nº:Misc. 83-349
Citation:612 F.Supp. 544
Party Name:In re Extradition of Demjanjuk
Case Date:April 15, 1985
Court:United States District Courts, 6th Circuit, Northern District of Ohio
 
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612 F.Supp. 544 (N.D.Ohio 1985)

In the Matter of the EXTRADITION OF John DEMJANJUK aka John Ivan Demjanjuk, aka John Ivan Demyanyuk.

Misc. No. 83-349.

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

April 15, 1985

As Amended April 30, 1985.

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[Copyrighted Material Omitted]

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Gary D. Arbeznik, Asst. U.S. Atty., Cleveland, Ohio, Murray R. Stein, Alvin D. Lodish, Office of Intern'l Affairs, Michael Wolfe, Bruce Einhorn, Office of Special Investigations, U.S. Dept. of Justice, Washington, D.C., for petitioner.

Mark O'Connor, Buffalo, N.Y., John J. Gill, Cleveland, Ohio, for respondent.

Steven M. Schneebaum, Patton, Boggs & Blow, Washington, D.C., for amicus curiae.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

On October 31, 1983, the Government of the State of Israel requested the extradition of John Demjanjuk [hereinafter referred to as "respondent" or "the respondent"] from the United States of America pursuant to an Israeli arrest warrant issued on October 18, 1983. The warrant charges Demjanjuk with "the crimes of murdering Jews, [which are] offenses under sections 1 to 4 of the Nazis and Nazi Collaborators (Punishment) Law" of the State of Israel. State of Israel's Request for the Extradition of John Demjanjuk at 11-12.

The Government of the United States pursuant to its obligation under the Convention on Extradition between the Government of the United States of America and the Government of the State of Israel, T.I.A.S. 5476, 14 U.S.T. 1717 (signed December 10, 1962) (entered into force December 5, 1963) [hereinafter "the Treaty"], filed a complaint [hereinafter the "Government's Complaint"] on November 18, 1983, seeking the extradition of the respondent to Israel. In its Complaint, the Government states that respondent is charged with "the crimes of murder and malicious wounding; inflicting grievous bodily harm" which are among the enumerated offenses in Article II of the Treaty, which is still in full force and effect. Government's Complaint at 1-2.

This Court must determine whether respondent can be extradited to the State of Israel pursuant to 18 U.S.C. § 3184. 1

I.

PRIOR HISTORY

The respondent, a native of the Ukraine of the Union of Soviet Socialist Republics [hereinafter referred to as "U.S.S.R."], entered the United States on February 9, 1952; he was granted lawful permanent residence under the Displaced Persons Act of 1948, Pub.L. No. 80-774, ch. 647, 62 Stat. 1009, as amended. On November 14, 1958, he was naturalized as a United States citizen by the United States District Court in Cleveland, Ohio. At his naturalization, he changed his first name from Ivan to John. He subsequently took up residence in Seven Hills, Ohio.

On June 23, 1981, this Court found that respondent had made material misrepresentations in his visa application by failing to disclose his service to the German SS at the Trawniki and Treblinka prison camps in 1942-43. It was ordered that respondent's United States citizenship be revoked and his certificate of naturalization cancelled. United States v. Demjanjuk, 518 F.Supp. 1362 (N.D.Ohio, 1981), aff'd, 680 F.2d 32 (6th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 47 L.Ed.2d 602 (1982).

On December 6, 1982, the Immigration and Naturalization Service began deportation proceedings against respondent. On May 23, 1984, Immigration Judge Adolph F. Angellili found respondent deportable and designated the U.S.S.R. as the country of deportation. However, the immigration judge also granted the respondent the option of voluntary departure from the United States. On February 14, 1985, the Board of Immigration Appeals dismissed respondent's appeal of the deportation order;

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the Board affirmed the finding of respondent's deportability and reversed the grant of voluntary departure. In re John Demjanjuk, --- I & N Dec. ----, File A8-237-417 (Cleveland) (B.I.A. February 14, 1985) [hereinafter "B.I.A. Decision"].

On July 17, 1984, this Court ruled that, despite respondent's appeal of his deportation, the extradition and deportation proceedings are independent and, as a result, respondent's extradition hearing could proceed. The Court also stated that the United States Government was under no obligation to elect deportation or extradition as the exclusive means of proceeding against respondent.

II.

On March 12, 1985, an extradition hearing for respondent was held. Oral argument was heard and documentary evidence including photographs, affidavits, and prior recorded testimony was presented. No witnesses were called to testify that day in open court.

The issues or conditions necessary for a finding of extraditability have been previously identified. See Order of March 5, 1985 at 2. The Court has already determined that jurisdiction is present and that the United States-Israel extradition treaty remains in full force and effect. Order of December 6, 1984, 603 F.Supp. 1463; Order of March 8, 1985. 603 F.Supp. 1468. Three issues were considered at the March 12, 1985 extradition hearing. They are:

1. Whether the respondent is the party named in the complaint [issue of identification];

2. Whether the crimes for which respondent's extradition is sought are offenses "within the treaty" [issues of treaty interpretation]; and

3. Whether there is "competent and adequate evidence" or "probable cause" to believe respondent committed the acts with which he is charged [issue of probable cause].

Each of these issues will be examined and resolved below.

III.

IDENTIFICATION

The Court must determine whether respondent John Demjanjuk is the individual named in the complaint. Normally, this inquiry would be simplified by a facial comparison of the respondent's name and that appearing in the complaint. However, in the instant case, respondent alleges that he is not the man whom Israel seeks; in other words, he claims that the person sought and the respondent are two different people.

For the following reasons, the Court finds that there is probable cause to believe respondent is the individual who is charged with the crimes alleged by the State of Israel.

The Government submitted four exhibits. They are:

a set of documents, filed November 18, 1983, entitled "State of Israel/Ministry of Justice/Request for the Extradition of John Demjanjuk" [previously cited as "Israeli Extradition Request"] [Government Exhibit 1];

a set of documents, filed January 30, 1984, entitled "State of Israel/Supplement to the Request for the Extradition of John Demjanjuk" [Government Exhibit 2];

a set of documents, filed March 2, 1984, entitled "State of Israel/Additional Supplement to the Request for the Extradition of John Demjanjuk" [Government Exhibit 3];

a document filed November 18, 1983, entitled "Declaration of Jeffrey H. Smith [Assistant Legal Adviser, United States Department of State]" [Government Exhibit 4].

Government Exhibits 1-3 are all certified as "authenticated documentary evidence" by James F. Hughes III, Consul General of the United States of America at Tel Aviv, Israel. Consul General Hughes certified and placed the seal of his office on Government Exhibit 1 on November 3, 1983.

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Government Exhibits 2 and 3 were similarly certified by Hughes on January 12, 1984 and February 9, 1984 respectively. Government Exhibit 4 is certified with the seal of United States Department of State by Secretary of State George Schultz through Acting Authentication Officer Joan C. Hampton; it was sealed November 17, 1983.

Respondent has not questioned the certification and authenticity of the evidence against him submitted by the Government in this extradition matter. At the March 12, 1985 extradition hearing, the Court identified the proper standard for the admission of evidence in an extradition proceeding. Transcript of March 12, 1985 Hearing, at 111-112. [hereinafter "March Tr."] Documentary evidence which has been authenticated in the statutory manner and then certified by an appropriate United States diplomatic or consular official must be admitted in an extradition proceeding. 18 U.S.C. § 3190. Since the admission of properly certified evidence is obligatory on the extradition court under 18 U.S.C. § 3190, the Court instructed the respondent that evidentiary challenges "may only question whether the certification or authentication complies with the statute." March Tr. at 112. The Court repeatedly asked counsel for respondent to state for the record his specific objections to the evidence. March Tr. at 113, 118, 120, 121, 123, 124, 125, 127, 129, 134-35, 164. Counsel for respondent repeatedly "reserved his objections," see March Tr. at 114, 120, 134-35. However, when the Court specifically asked counsel to put on the record any remaining objections he had to the evidence, respondent's counsel stated he "ha[d] nothing more." March Tr. at 165. The Court viewed the documents and respondent's "objections," none of which directly contested the certification or authentication of the evidence submitted. Citing both 18 U.S.C. § 3190 and Article X of the U.S.-Israel extradition treaty, the Court found the documents properly certified and authenticated and admitted the four exhibits into evidence. March Tr. at 165-66.

The Government need only make out a prima facie case to establish identification. Argento v. Jacobs, 176 F.Supp. 877, 879 (N.D.Ohio, 1959) (Weick, J.). Numerous cases establish that identification in an extradition proceeding requires only a threshhold showing of probable cause. In Raftery ex rel. Fong v. Bligh, 55 F.2d 189 (1st Cir. 1932), the First Circuit reviewed a habeas corpus decision to determine whether the district court had correctly identified the individual...

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