U.S. v. Demjanjuk, CASE NO. 1:99CV1193 (N.D. Ohio 2/21/2002)

• Decision Date: 21 February 2002
• Docket Number: CASE NO. 1:99CV1193.
• Parties: UNITED STATES OF AMERICA Plaintiff, v. JOHN DEMJANJUK Defendant.
• Court: U.S. District Court — Northern District of Ohio

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UNITED STATES OF AMERICA Plaintiff, v. JOHN DEMJANJUK Defendant.

CASE NO. 1:99CV1193.

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

February 21, 2002.

FINDINGS OF FACT

PAUL R. MATIA, Chief District Judge.

I. Defendant's Service as an Armed Guard of Prisoners for the Nazi Government of Germany

A. Trawniki Training Camp

i. Government Exhibit 3 Identifies Defendant

1. It is undisputed that Trawniki, Majdanek, FlossenbÜrg, and Okzow were places of Nazi persecution, and that anyone who served there aided Nazi persecution.

2. Government Exhibit 3 is a service identity pass from Trawniki Training Camp, issued in the name of Iwan Demjanjuk, identification number 1393.

3. Prior to his naturalization as an American citizen in 1958, Defendant used the name Iwan Demjanjuk. (GX 1-2)

4. Service Identity Pass No. 1393 (GX 3) states that Iwan Demjanjuk was born on April 3, 1920, in "Duboimachariwzi."

5. Defendant was born on April 3, 1920, in Dubovi Makharyntsi (Russian: Dubovye Makharintsy). (GX 85; GX 88; GX 92 at 1065, 1110; GX 93.1 at 25; GX 98 at 6831; Tr. at 444-45).

6. Service Identity Pass No. 1393 (GX 3) states that the name of Iwan Demjanjuk's father was Nikolai.

7. The name of Defendant's father was Mykola (Russian: Nikolai). (GX 85 at 12; GX 88; GX 92 at 1110; GX 98 at 6832; Tr. at 446).

8. Service Identity Pass No. 1393 (GX 3) states that Iwan Demjanjuk's nationality was Ukrainian.

9. Defendant is of Ukrainian national origin. (GX 1.2-1.6; GX 2.4; GX 85 at 19; GX 88; GX 92 at 1065).

10. Service Identity Pass No. 1393 (GX 3) states that Iwan Demjanjuk had gray eyes and dark blonde hair.

11. During World War II, Defendant had gray eyes and dark blonde hair. (GX 2.2 (gray eyes, brown hair); GX 77 (blonde hair); GX 92 at 1108-9 (gray eyes, blonde hair); GX 98 at 7634 (blonde hair); Tr. at 447, 463 (gray eyes, blonde hair)).

12. Service identity Pass No. 1393 (GX 3) states that Iwan Demjanjuk had a scar on his back.

13. During the relevant period, Defendant had a visible scar on his back. (GX 85 at 47-49; GX 88; GX 92 at 1110; Tr. at 447).

14. Service Identity Pass No. 1393 (GX 3) was issued to a Soviet soldier who had been captured by the Germans. (Tr. at 492 (Sydnor)).

15. Defendant was a Soviet soldier who had been captured by the Germans. (GX 85 at 23, 27, 37-38; GX 88; GX 92 at 1066-67; GX 98 at 6860-63).

16. Service Identity pass No. 1393 (GX 3) bears a photograph of a man with the number 1393 on his chest.

17. Defendant has admitted that the photograph on Service Identity Pass No. 1393 resembles him. (GX 89 at 73; GX 92 at 1107; GX 98 at 6971, 7323-25, 7689).

18. Comparison of the photograph on Service Identity Pass No. 1393 (GX 3) to known photographs of Defendant (GX 1.4; GX 2.2; GX 2.5; GX 87; GX 91A) shows a clear resemblance.

19. Service Identity Pass No. 1393 is signed "Demyanyuk" in the Cyrillic alphabet. (Tr. at 101).

20. Three letters of the "Demyanyuk" Cyrillic signature on Government Exhibit 3 lend themselves to forensic handwriting comparison with known usable samples of Defendant's signature, rendered in the Latin alphabet, and all three of these letters show a close similarity to the known samples, although no definitive conclusion could be reached due to the limited number of letters and letter combinations. (Defense Exhibit D17; Tr. at 135 (Epstein)).

21. Defendant has admitted that the "Demyanyuk" signature on Government Exhibit 3 is "like" he previously wrote his name. (GX 89 at 76).

22. Dr. Julius Grant's testimony in Israel regarding the "Demjanjuk" signature is not reliable or credible. (Tr. at 81-84 (Epstein).

23. Although Service Identity Pass No. 1393 (GX 3) indicates that "Duboimachariwzi" is administratively subordinated to "Saporosche" (Ukrainian: Zaporizhzhya; Russian: Zaporozh'e), when it is in fact subordinated to Vinnytsya (Russian: Vinnitsa) (Tr. at 648), this error is insignificant considering the other indicia of authenticity.

24. Although Service Identity Pass No. 1393 (GX 3) indicates that Iwan Demjanjuk's height was 175 cm and postwar documents attribute various heights to Defendant, the discrepancies are not significant and can be attributed either to errors in measurement, recording, or self-reporting. See United States v. Hajda, 963 F. Supp. 1452, 1458 (N.D.Ill. 1997), aff'd, 135 F.3d 439, 444 (7th Cir. 1998).

25. Government Exhibit 3 identifies Defendant and bears his photograph.

ii. Government Exhibit 3 Does Not Identify Defendant's Cousin, Ivan Andreevich Demjanjuk

26. Defendant's cousin Ivan was born on February 22, 1921 (February 9, 1921, Old Style). (GX 102).

27. The name of Defendant's cousin Ivan's father was Andrey. (GX 102).

28. Defendant's cousin Ivan had dark, "blackish" hair. (GX 100 at 161; Tr. at 459).

29. Defendant has presented no evidence that his cousin Ivan had a scar on his back.

30. The Ukrainian Government affirms that extensive searches have yielded no official record of Defendant's cousin Ivan entering into, serving with, or demobilizing from the Soviet army during World War II. (GX 101). However, Mariya Demjanjuk, a cousin, in a statement April 12, 2001, stated "as far as I know, I.A. Dem'yanyuk was called up for military service before the war, in about 1940." (DX B-21).

31. Until 1999, Defendant never asserted that his cousin Ivan might be the person identified on Government Exhibits 3-9. (GX 107 at 66-68).

32. Defendant has presented no evidence that the photograph on Government Exhibit 3 bears any resemblance to Defendant's cousin Ivan.

33. If the photograph on Service Pass No. 1393 (GX 3) bore any resemblance to Defendant's cousin Ivan, Defendant would have asserted before 1999 that Government Exhibits 3 through 9 might identify his cousin.

34. Although he has said that he knew his cousin personally, and during the prior litigation in the United States and Israel repeatedly saw the photograph on Government Exhibit 3, Defendant stated in July 2000 that he has never seen a photograph of his cousin Ivan. (GX 100 at 143-44, 170).

35. Government Exhibit 3 does not identify or picture Defendant's cousin Ivan.

iii. Government Exhibit 3 is an Authentic German Wartime Document, Issued to Defendant

36. The Government presented the original of Government Exhibit 3 for examination by the Court.

37. The Government presented three other original Trawniki service passes (GX 45.4 (Juchnowskij), 45.11 (Wolembachow), 45.17 (M. Bondarenko)) for examination by the Court.

38. Government Exhibit 3 is more than twenty years old. (Tr. at 162, 177, 180, 190, Tr. at 433-34, 893).

39. Government Exhibit 3 was found in an archive in Defendant's home oblast of Vinnytsya, Ukraine, which is a location where the document, if authentic, would likely be found. (Tr. at 407-08, 893).

40. Government Exhibit 3 is in a condition that raises no suspicion as to its authenticity. (Tr. at 162, 190, 235, 407-08, 893).

41. Government Exhibit 3 bears characteristics distinctive to Trawniki service identity passes which, taken in conjunction with the circumstances regarding its creation, use, and discovery, demonstrate that it is what it purports to be. (GX 45; Tr. at 893-94).

42. The paper comprising Government Exhibit 3 is consistent with paper that existed in the early 1940s. (Tr. at 180-81).

43. The printing ink on Government Exhibit 3 matches that on Government Exhibit 45.14. (Tr. 182).

44. The typewriter used to create Government Exhibit 3 was available in Europe in the early 1940s. (Tr. at 244-47).

45. The fountain pen inks used to create Government Exhibit 3 are consistent with those in use in the early 1940s. (Tr. 182-83).

46. The "Streibel" signature on Government Exhibit 3 matches the "Streibel" signatures on Government Exhibits 45.12 (Sidortschuk), 45.14 (Kabirow), 45.15 (Odartschenko), 45.17 (M. Bondarenko), 45.18 (Slowjagin), 45.22 (Swesdun), 45.23 (Poljuchno), 45.24 (Solontschukow), 45.31 (Popeliuk), 45.32 (Nahorniak), and 45.33 (Szurkhan). (Tr. at 41-42; GX 18).

47. The "Teufel" signature on Government Exhibit 3 matches the "Teufel" signatures on Government Exhibits 45.11 (Wolembachow), 45.12 (Sidortschuk), 45.14 (Kabirow), 45.15 (Odartschenko), 45.17 (M. Bondarenko), 45.22 (Swesdun), 45.23 (Poljuchno), 45.31 (Popeliuk), 45.32 (Nahorniak), and 45.33 (Szurkhan). (Tr. at 45; GX 18).

48. "The "Sobibor" outside assignment on Government Exhibit 3 was written by the same person who wrote the "Sobibor" entries on Government Exhibits 45.7 (Danilchenko) and 45.14 (Kabirow). (Tr. at 48).

49. The purple Cyrillic handwriting on Government Exhibit 3 was made by the same person whose handwriting appears on Government Exhibits 45.4 (Juchnowskij), 45.7 (Danilchenko), 45.11 (Wolembachow), 45.12 (Sidortschuk), 45.14 (Kabirow), 45.17 (M. Bondarenko) and 45.32 (Nahorniak). (Tr. at 53; GX 18).

50. The "Bazilevskaya" signature on Government Exhibit 3 matches the Bazilevskaya signature on Government Exhibits 45.4 (Juchnowskij), 45.7 (Danilchenko), 45.11 (Wolembachow), 45.12 (Sidortschuk), 45.14 (Kabirow), 45.15 (Odartschenko), 45.17 (M. Bondarenko), 45.32 (Nahorniak), and 45.33 (Szurkhan). (Tr. at 56; GX 18).

51. Defects in the "Wird der Inhaber dieses Ausweises" stamp used to make the impression on the back of Government Exhibit 3 show that the same stamp was used on Government Exhibits 45.4 (Juchnowskij), 45.11 (Wolembachow), 45.12 (Sidortschuk), 45.14 (Kabirow), 45.15 (Odartschenko), 45.17 (M. Bondarenko), and 45.18 (Slowjagin). (Tr. at 60; GX 18).

52. Defects in the "Dienstsitz Lublin" stamp used to make the impression on the front of Government Exhibit 3 show that the same stamp was used on Government Exhibits 45.4 (Juchnowskij), 45.12 (Sidortschuk), 45.15 (Odartschenko), 45.17 (M. Bondarenko), and 45.23 (Poljuchno). (Tr. at 65-66).

53. Defects in the "Zweigstelle Trawniki" stamp used over the photograph of Defendant on Government Exhibit 3 show that the same stamp was used on Government Exhibits 45.12 (...