Matter of Demjanjuk

• Decision Date: 15 March 1984
• Docket Number: Misc. No. 83-349.
• Citation: 584 F. Supp. 1321
• Parties: In the Matter of the Extradition of John DEMJANJUK, a/k/a John Ivan Demjanuk, a Fugitive From the Justice of Israel.
• Court: U.S. District Court — Northern District of Ohio

584 F. Supp. 1321

In the Matter of the Extradition of John DEMJANJUK, a/k/a John Ivan Demjanuk, a Fugitive From the Justice of Israel.

Misc. No. 83-349.

United States District Court, N.D. Ohio, E.D.

March 15, 1984.

Gary Arbeznik, Asst. U.S. Atty., Cleveland, Ohio, Murray Stein, Alvin Lodish, U.S. Dept. of Justice, Washington, D.C., for petitioner.

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

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

Before the Court is Respondent's Motion for Recusal.¹ Respondent bases his Motion on the Fifth Amendment to the United States Constitution, 28 U.S.C. §§ 144² and 455³ and Canon 3⁴ of the ABA Code of Judicial Conduct. Respondent alleges that this Court harbors a personal bias against him and his counsel and favors the Government, and the State of Israel, the party whose interests the Government represents.⁵ Respondent maintains that, because this Court is not impartial, he would be denied his right to a fair trial were he required to try his case before this Court.

In support of his February 23, 1984 Motion, Respondent has submitted for the Court's consideration an affidavit executed by Respondent's counsel attesting to the fact that the Motion is made in good faith. Respondent's counsel also affirmed that they furnished Respondent with the information recited in a second affidavit executed by Respondent and submitted to the Court. In his own affidavit, Respondent attempts to articulate the factual basis for his belief that the Court is biased with regard to the instant matter and that the Court can neither impartially preside over these extradition proceedings in an unbiased manner, nor with an appearance of impartiality.⁶ On March 2, 1984, the Government submitted to the Court its brief in opposition to Respondent's Motion. Respondent submitted a reply to the Government's brief on March 7, 1984.

The Court took into consideration all of the memoranda submitted by both parties in arriving at its decision. In addition, because of the unique nature of the case and the seriousness of the particular charges of bias put forth by Respondent, the Court has seen fit to review, and take into consideration, portions of the record from the 1981 denaturalization proceeding over which this Court presided, Respondent's Motion to Vacate Judgment,⁷ filed on October 23, 1983 on behalf of John Demjanjuk, Respondent in the instant matter, and supplemented on October 28, 1983, all the documents filed by the parties and the orders issued by this Court in connection with the pending extradition matter, as well as the transcript from the February 9, 1984 prehearing conference at which counsel for both parties, the amicus curiae and the Court were in attendance.

I.

In 1977, the United States brought an action under the Immigration and Nationality Act to revoke the certificate of naturalization of John Demjanjuk. The Government alleged that Demjanjuk, who became a citizen of the United States on November 14, 1958, had illegally procured his citizenship by concealing and/or misrepresenting material facts regarding his service with German SS and military personnel during World War II.

In its June 23, 1981 Memorandum Decision and Order, this Court, having found that Demjanjuk had illegally procured his naturalization, revoked his citizenship. United States v. Demjanjuk, 518 F.Supp. 1362 (N.D.Ohio 1981). In arriving at its final determination, the Court made numerous findings of fact. Those findings were based on testimony and documentary evidence offered by both parties regarding Demjanjuk's wartime activities. United States v. Demjanjuk, 518 F.Supp. at 1363-80. On appeal, the Sixth Circuit affirmed this Court's decision. The Supreme Court subsequently declined to review the matter. United States v. Demjanjuk, 518 F.Supp. 1362 (N.D.Ohio 1981), aff'd. 680 F.2d 32 (6th Cir.1982), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982).

Two years after its final determination in the aforementioned denaturalization proceeding, the Court considered Demjanjuk's Motion to Vacate Judgment. In its decision to deny Demjanjuk's Motion, the Court reviewed, among other things, recently prepared affidavits of two men who had testified as Government witnesses at the 1981 denaturalization proceeding. Demjanjuk had submitted the affidavits with his Motion. The Court compared the affidavits with portions of the original trial transcript wherein the affiants' former testimony had been recorded. United States v. Demjanjuk, 101 F.R.D. 680 (N.D.Ohio 1983). Currently, the Court's November 28, 1983 Order is on appeal to the Sixth Circuit.

While the Court had Demjanjuk's Motion to Vacate Judgment under advisement, the State of Israel, through its representative, the United States government, instituted the above-captioned action for the extradition of Demjanjuk pursuant to an extradition treaty between the United States and Israel. See Request for Extradition, filed November 18, 1983. Under the assignment system employed in the Northern District of Ohio, the matter was assigned to this Court for supervision and resolution as a related matter. Rule 7.09 of the Rules of the United States District Court, the Northern District of Ohio, covers the system of assignment employed in the instant matter.⁸ Both the denaturalization and the extradition matters involve some of the same parties and arose out of the same events.

II.

It has long been recognized that freedom of a tribunal from bias or prejudice is an essential element of substantive due process accorded litigants under the Fifth Amendment. See United States v. Sciuto, 531 F.2d 842 (7th Cir.1976); Knapp v. Kinsey, 232 F.2d 458, 465 (6th Cir.1956), cert. denied, 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956). Under 28 U.S.C. §§ 144 and 455 and Canon 3 of the ABA Code of Judicial Conduct, a judge must preside over a proceeding in an unbiased manner and with the appearance of impartiality.⁹ Under the aforementioned statutory provisions, a party seeking the disqualification of a judge "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." United States v. Sinclair, 424 F.Supp. 715, 718 (D.Del.1976), aff'd, 566 F.2d 1171 (3d Cir.1977). A moving party must present in its affidavit(s) in support of its recusal motion more than conclusory statements regarding bias or apparent partiality on the part of the presiding judge. The presiding judge is presumed to be impartial. The burden is on the moving party to prove otherwise. United States v. Zagari, 419 F.Supp. 494, 501 (N.D.Cal.1976).

This Court has an affirmative duty to assess the legal sufficiency of the affidavits submitted in support of Respondent Demjanjuk's recusal motion. City of Cleveland v. Cleveland Electric Illuminating Company, 503 F.Supp. 368, 369 (N.D.Ohio 1980). "Disqualification results only from the filing of a timely and legally sufficient affidavit." (Citations omitted) United States v. Sinclair, 424 F.Supp. at 717. Moreover, a judge has an obligation to continue to preside over a particular matter when he has determined that the parties have failed to put forth valid grounds for recusal. City of Cleveland v. Cleveland Electric Illuminating Company, 503 F.Supp. at 370; United States v. Birrell, 276 F.Supp. 798, 809 (S.D.N.Y. 1967). The court in Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir.1966), summed up the reviewing court's obligation when it declared:

The mere filing of an affidavit of prejudice does not require a judge to recuse himself. On the contrary, we have held that a judge has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not disqualify himself unnecessarily, ....

A.

The Court must observe certain guidelines when assessing the sufficiency of Respondent's affidavit. For purposes of the Court's inquiry with regard to the legal sufficiency of Respondent's affidavits, "all facts stated with particularity are to be taken as true." City of Cleveland v. Cleveland Electric Illuminating Company, 503 F.Supp. at 371. See also Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1920); Rosen v. Sugarman, 357 F.2d 794. To the extent that a party's affidavit(s) contain assertions of bias that are subjective and conclusory in nature, those affidavits will not support a decision for recusal. A legally sufficient affidavit must include specific objective facts that, reviewed as a whole, would lead a reasonable man to believe that the Court is biased or that the Court's appearance of impartiality is in doubt. As one court put it:

In order to be legally sufficient the allegations, taken as true, must contain information that is definite as to time and place .... The reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.... (Citations omitted.) Martelli v. City of Sonoma, 359 F.Supp. 397, 399 (N.D.Cal.1973), aff'd, 556 F.2d 587 (9th Cir.1977).

See also Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir.1980); United States v. Sinclair, 424 F.Supp. at 718; United States v. Zagari, 419 F.Supp. at 501; Bumpus v. Uniroyal Tire Company, 385 F.Supp. 711, 715 (E.D.Pa.1974). The reviewing court must weigh the facts set out in the affidavit(s) submitted by the moving party for their legal sufficiency. The court is not restricted to the moving party's evaluation of the sufficiency of the facts:

While the facts set out in the affidavits must be accepted as true, the judge passing on the legal sufficiency of the affidavit is not required to accept the construction placed on them by the movant or the particular affiant. United States v. Zagari, 419 F.Supp. at 501.

In all or parts of paragraphs 2, 3, 4, 6, 7, 9, 10, 12a¹⁰, 13, 15 and 18 of respondent's affidavit in support of his Motion for Recusal, Res...