776 F.2d 571 (6th Cir. 1985), 85-3435, Demjanjuk v. Petrovsky

Docket Nº:85-3435.
Citation:776 F.2d 571
Party Name:John DEMJANJUK, Petitioner-Appellant, v. Joseph PETROVSKY, et al., Respondents-Appellees.
Case Date:October 31, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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776 F.2d 571 (6th Cir. 1985)

John DEMJANJUK, Petitioner-Appellant,


Joseph PETROVSKY, et al., Respondents-Appellees.

No. 85-3435.

United States Court of Appeals, Sixth Circuit

October 31, 1985

Argued July 8, 1985.

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Mark O'Connor (argued), Buffalo, N.Y., John J. Gill, David C. Eisler, Cleveland, Ohio, for petitioner-appellant.

Patrick F. McLaughlin, Asst. U.S. Atty., Gary D. Arbeznik, Cleveland, Ohio, Alvin D. Lodish (argued), Murray R. Stein (argued), Office of Intern. Affairs, Washington, D.C., for respondents-appellees.

Before: LIVELY, Chief Judge, KEITH and MERRITT, Circuit Judges.

LIVELY, Chief Judge.

This international extradition case is before the court on appeal from the denial of a petition for a writ of habeas corpus, 612 F.Supp 571.


The petitioner, John Demjanjuk, is a native of the Ukraine, one of the republics of the Soviet Union. Demjanjuk was admitted to the United States in 1952 under the Displaced Persons Act of 1948 and became a naturalized United States citizen in 1958. He has resided in the Cleveland, Ohio area since his arrival in this country.

In 1981 the United States District Court for the Northern District of Ohio revoked Demjanjuk's certificate of naturalization and vacated the order admitting him to United States citizenship. See United States v. Demjanjuk, 518 F.Supp. 1362 (N.D.Ohio 1981), aff'd per curiam, 680 F.2d 32 (1982), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982). Chief Judge Battisti of the district court entered extensive findings of fact from which he concluded that the certificate and order "were illegally procured and were procured by willful misrepresentation of material facts under 8 U.S.C. Sec. 1451(a)." 518 F.Supp. at 1386.

The district court found that Demjanjuk was conscripted into the Soviet Army in 1940 and was captured by the Germans in 1942. After short stays in several German POW camps and a probable tour at the Trawniki SS training camp in Poland, Demjanjuk became a guard at the Treblinka concentration camp, also in Poland, late in 1942. In his various applications for immigration to the United States the petitioner misstated his place of residence during the period 1937-1948 and did not reveal that he had worked for the SS at Treblinka or served in a German military unit later in the war. In the denaturalization proceedings Demjanjuk admitted that his statements concerning residence were false and that he had in fact served in a German military unit. He steadfastly denied that he had been at Trawniki or Treblinka, though documentary evidence placed him at Trawniki and five Treblinka survivors and one former German guard at the camp identified Demjanjuk as a Ukrainian guard who was known as "Ivan or Iwan Grozny," that is, "Ivan the Terrible."

Following the denaturalization order the government began deportation proceedings against Demjanjuk. While these proceedings were underway the State of Israel filed with the United States Department of State a request for the extradition of Demjanjuk. The United States Attorney for the Northern District of Ohio, acting on behalf of the State of Israel, filed a complaint in the district court seeking the arrest of Demjanjuk and a hearing on the extradition request. Following a hearing the district court entered an order certifying to the Secretary of State that Demjanjuk was subject to extradition at the request of the State of Israel pursuant to a treaty on extradition between the United States and Israel signed December 10, 1962, effective December 5, 1963. Bond previously granted Demjanjuk was revoked and he was

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committed to the custody of the Attorney General of the United States pending the issuance of a warrant of surrender by the Secretary of State.



There is no direct appeal from an order certifying extradition, and the only method of review is by collateral habeas corpus proceedings. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Caplan v. Vokes, 649 F.2d 1336, 1340 (9th Cir.1981). The scope of review in habeas corpus following an extradition order is quite narrow. After differentiating between the requirements of probable cause and proof beyond a reasonable doubt, Justice Holmes delineated the scope of review as follows in Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925):

The foregoing are general principles relating to extradition, but there are further limits to habeas corpus. That writ as has been said very often cannot take the place of a writ of error. It is not a means for rehearing what the magistrate already has decided. The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty. Benson v. McMahon, 127 U.S. 457, 8 S.Ct. 1240, 32 L.Ed. 234. Re Luis Oteiza y Cortes, 136 U.S. 330, 10 S.Ct. 1031, 34 L.Ed. 464. Bryant v. United States, 167 U.S. 104, 105, 17 S.Ct. 744, 745, 42 L.Ed. 94. Elias v. Ramirez, 215 U.S. 398, 406, 30 S.Ct. 131, 134, 54 L.Ed. 253.

Though Demjanjuk acknowledges these limitations on the scope of appeal, he presents a somewhat confusing melange of arguments. We will attempt to deal with them separately.


Before reaching the more technical arguments related to jurisdiction of the district court and the question of whether the crimes charged were within the treaty provisions, we deal with the sufficiency of the evidence. As noted, there was sworn testimony by affidavits from six witnesses who were at Treblinka in 1942 and 1943 who identified Demjanjuk. These witnesses stated that Demjanjuk was a guard who herded prisoners into the gas chambers and then actually operated the mechanism which filled the chambers with gas. In addition, several of the witnesses testified that they saw Demjanjuk beat and maim prisoners, some of whom died. Justice Holmes wrote in Fernandez that our task is to determine "whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Id. (emphasis added). Surely the evidence in this case satisfied this lenient standard.

This court does not sit to rehear the district court's findings. Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir.1980). The evidence which the district court relied upon was properly authenticated by an official of the U.S. Department of State as required by 18 U.S.C. Sec. 3190. If properly authenticated, evidence may be received in an extradition case which could not have been received at a preliminary examination under state law. Collins v. Loisel, 259 U.S. 309, 313, 42 S.Ct. 469, 471, 66 L.Ed. 956 (1922). Thus it is immaterial that Demjanjuk had no opportunity to cross examine the affiants. The only evidentiary function of the extradition court is to determine whether there is sufficient evidence to justify holding a person for trial in another place. We are satisfied that the district court relied upon admissible evidence in making its determination in this case.

As noted earlier, Demjanjuk was identified by documentary evidence as having been at the SS training camp, Trawniki Exhibits 5 and 6 were the front and back of a German document which identified "Iwan

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Demjanjuk" as a guard in an SS unit. The heading showed that it was issued at Trawniki. On appeal Demjanjuk argues strenuously that the Trawniki documents were forged and that the government perpetrated a fraud upon the court by introducing them. This same argument was made in the denaturalization proceedings. The district court discussed this issue at some length in its opinion in those proceedings, and rejected Demjanjuk's contentions. 518 F.Supp. at 1365-69. This issue was also addressed by the district court in denying post-judgment motions for relief.

In making these arguments as to the authenticity of the Trawniki documents, Demjanjuk overlooks one very important fact. The district court in the extradition proceedings made a specific finding that the other evidence identifying Demjanjuk as the guard "Ivan" at Treblinka was sufficient to support the extradition order without reference to the Trawniki document. Thus, even if this documentary evidence had been rejected, the eyewitness evidence alone was found sufficient. Since the district court did not rely on the "Trawniki card," its validity is not before the court. Of course, if we found any support in the record for the claim that the government deliberately offered a forged document as evidence, we would examine the entire proceedings for other evidence of fraud. However, the record before us lends no support to this very serious charge, and we reject it. Witnesses fully qualified to testify on the subject stated their opinions that the Trawniki documents were authentic.


One other issue raised by Demjanjuk requires consideration. On appeal Demjanjuk argues that Judge Battisti, having presided at the denaturalization proceedings, should have recused himself from the extradition hearing. In making this contention Demjanjuk relies on 28 U.S.C. Sec. 455(a) which requires a judge to disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." The argument is that Judge Battisti, having found that Demjanjuk committed acts which required his denaturalization, might reasonably be considered biased against the same party in a subsequent extradition action. The problem with this argument is that in order to be disqualifying, a judge's alleged bias must emanate from some "extrajudicial source" rather than from participation in...

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