U.S. v. Demjanjuk, 02-3529.

• Citation: 367 F.3d 623
• Decision Date: 30 April 2004
• Docket Number: No. 02-3529.,02-3529.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John DEMJANJUK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

367 F.3d 623

UNITED STATES of America, Plaintiff-Appellee, v. John DEMJANJUK, Defendant-Appellant.

No. 02-3529.

United States Court of Appeals, Sixth Circuit.

Argued: December 10, 2003.

Decided and Filed: April 30, 2004.

Rehearing Denied June 28, 2004.

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John H. Broadley (argued and briefed), John H. Broadley & Associates, Washington, DC, for Appellant.

Jonathan C. Drimmer (argued and briefed), Michelle Heyer (argued), United States Department of Justice, Office of Special Investigations, Washington, DC, Michael Anne Johnson (argued), Assistant United States Attorney, Cleveland, OH, for Appellee.

Before: COLE and CLAY, Circuit Judges; COLLIER, District Judge.^*

CLAY, Circuit Judge.

Defendant, John Demjanjuk, appeals from the district court's order revoking Defendant's citizenship, due to Defendant's illegal procurement of such citizenship, and allowing his naturalization to be set aside pursuant to 8 U.S.C. § 1451(a). Because we find that Plaintiff, the United States of America ("Government"), sustained its burden of proving through clear, unequivocal and convincing evidence that Defendant, in fact, served as a guard at several Nazi training and concentration camps during World War II ("WW II"), we concur with the district court that he was not legally eligible to obtain citizenship under the Displaced Persons Act of 1948 ("DPA"). DPA, 62 Stat. 1013. We therefore AFFIRM the district court's order.

I. Procedural History

There are six prior decisions (three by this Court) on matters related to Defendant's citizenship:

1.) United States v. Demjanjuk, 518 F.Supp. 1362 (N.D.Ohio 1981) (revoking Defendant's citizenship and naturalization; this result was later set aside by Demjanjuk 6)¹;

2.) United States v. Demjanjuk, 680 F.2d 32 (6th Cir.1982) (per curiam) (affirming Demjanjuk 1);

3.) Demjanjuk v. Petrovsky, 612 F.Supp. 571 (N.D.Ohio 1985) (denying habeas, thus allowing the executive branch to extradite Defendant to Israel, id. at 574; but this ruling was later vacated by Demjanjuk 5);

4.) Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir.1985) (affirming Demjanjuk 3);

5.) Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir.1993) (reopening the case sua sponte, id. at 339, after Defendant was extradited to Israel and there acquitted of all crimes. This Court held that the Government perpetrated fraud in its discovery, and accordingly vacated Demjanjuk 3); and

6.) United States v. Demjanjuk, No. C77-923, 1998 U.S. Dist. LEXIS 4047 (N.D.Ohio 1998) (setting aside Demjanjuk 1, on the basis of the findings of prosecutorial misconduct in Demjanjuk 5).

Subsequently, on May 19, 1999, the Government filed a second complaint in the district court, seeking to denaturalize Defendant on the ground that he illegally procured his United States citizenship. The first claim alleged Defendant's unlawful admission into the United States, in violation of 8 U.S.C. § 1427(a)(1), and was based on his alleged persecution of civilians during WWII, in violation of the DPA, 62 Stat. 219, 227. The second claim alleged Defendant's unlawful admission into the United States, again in violation of 8 U.S.C. § 1427(a)(1), and was based on Defendant's alleged membership or participation in a movement hostile to the United States, in violation of the DPA, 64 Stat. 227. The third claim charged Defendant with illegally procuring a certificate of naturalization by making willful misrepresentation to immigration officials, in violation of 8 U.S.C. § 1451(a).

Defendant filed an Omnibus Motion to Dismiss the Complaint, which was denied by the district court in a Memorandum Opinion and Order on February 17, 2000. Defendant thereafter applied for a writ of mandamus directing the district court to dismiss the denaturalization proceeding; on April 28, 2000, this Court denied that request. Defendant then filed a counterclaim, alleging that Plaintiff tortured and harassed him and his family; this was dismissed by the district court on July 10, 2000, in a Memorandum Opinion and Order.

The case was tried without a jury on the Government's claims of Defendant's illegal procurement of United States citizenship, on May 29, 2001. On February 21, 2002, the district court released Findings of Fact and Conclusions of Law, United States v. Demjanjuk, 2002 WL 544622 (N.D.Ohio Feb.21, 2002) ("Demjanjuk 7.a"), and a Supplemental Opinion, United States v. Demjanjuk, 2002 WL 544623 (N.D.Ohio Feb.21, 2002) ("Demjanjuk 7. b"). The district court entered judgment revoking Defendant's citizenship and naturalization, and ordering Defendant to surrender and deliver his Certificate of Naturalization and any passport or other documentary evidence of citizenship to the U.S. Attorney General, within ten days.

Defendant filed motions for judgment to amend findings, to alter or amend judgment, for a new trial, and for relief from judgment under Fed.R.Civ.P. 60(b); these motions were all denied by the district court in an order on March 27, 2002.

On May 10, 2002, Defendant filed a notice of appeal of the district court's orders and judgments from July 10, 2000, February 21, 2002, and March 27, 2002. On February 24, 2003, Plaintiff filed a Motion to Strike or for Leave to File Surreply, seeking to strike Defendant's Reply Brief. On February 26, 2003, this Court denied the motion for leave to file a surreply. In addition to the instant appeal, this Court will rule on the Motion to Strike Defendant's Reply Brief in the instant opinion.

Facts

In Demjanjuk 4, 776 F.2d 571, 575, this Court set forth the factual background for the various cases involving Defendant. We therefore recite only those facts most relevant to the appeal before us. John Demjanjuk is a native of the Ukraine, a republic of the former Soviet Union. Demjanjuk was conscripted into the Soviet Army in 1940 and then captured by the Germans, during WWII, in 1942. Later that year, 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 in Poland. 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. Defendant denied that he was a Ukrainian guard at Treblinka who was known as "Ivan or Iwan Grozny," that is, "Ivan the Terrible." He has resided in the Cleveland, Ohio area since his arrival in this country.

In the current proceeding, the Government alleges that Mr. Demjanjuk persecuted civilians at Trawniki, L.G. Oksow, Majdanek, Sobibor and Flossenburg Concentration Camps, but not Treblinka, as alleged in earlier denaturalization proceedings. Defendant was identified, in previous proceedings, as well as in the current one, by the Trawniki Camp's Identification Card which contained Defendant's picture. The Trawniki Card, the Government's exhibit # 3, is a German Dienstausweis or Service Identity Card, identifying the holder as guard number 1393.

One of the main issues before this Court is whether Demjanjuk was Guard 1393. There are seven German-created wartime documents in evidence that Plaintiff alleges identify Defendant. Three forensic experts testified that forensic testing revealed no evidence to doubt the authenticity of the seven wartime documents — found in archives in Russia, Ukraine, Lithuania and the former West Germany — containing Demjanjuk's name and other identifying information. (J.A. at 1407, 1416, 1423, 1441, 1461, 1861, 1877.)

II. Standard of Review

This Court reviews for clear error when the district court's evidentiary rulings pertain to the determination of Demjanjuk's identity. Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 990 F.2d 865, 870 (6th Cir.1993) (stating the deference to be afforded a district court's findings of fact upon the conclusion of a bench trial is clear error, whether the facts were based on oral or documentary evidence, because "factual conclusions rendered by a district court sitting without a jury are binding on appeal unless this Court is left with a definite and firm conviction that a mistake has been made," and that "[i]t is the appellant who must shoulder the burden of proving such a mistake ....") (citation omitted). Under the clearly erroneous standard, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous," and it "is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (citations omitted).

Additionally, because Defendant failed to object to the Trawniki service pass at trial on the ground now asserted on appeal — namely, that the card is inadmissible hearsay — this Court reviews for plain error Defendant's contention that the service pass was erroneously admitted into evidence. United States v. Evans, 883 F.2d 496, 499 (6th Cir.1989) ("The `plain error' rule also applies [where] a party objects to [an evidentiary determination] on specific grounds in the trial court, but on appeal the party asserts new grounds challenging [that determination]."). At trial, Defendant objected to the admissibility of the service pass on grounds that it lacked authenticity, as required by Fed.R.Evid. 902; reliability as an ancient document, as required by Fed.R.Evid. 901(b)(8); and personal knowledge by declarant, as required by Fed.R.Evid. 602. On appeal, however, Defendant now asserts a different objection: inadmissibility of the service pass under the double hearsay prohibition of Fed.R.Evid. 805. Under the plain error standard:

before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights.... [I]f all three conditions are met, an appellate court may then...