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

• 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.

SUPPLEMENTAL OPINION

MATIA, District Judge.

The Court has entered Findings of Fact and Conclusions of Law in this case, and those documents constitute the judgment of the Court. I write separately to explain the Court's inability to put any substantial credence in the contentions made by defendant to cast doubt on the government's case.

This is a case of documentary evidence, not eyewitness testimony. It is not at all unusual sixty years after an event that eyewitnesses are not available. Indeed, if they were, their testimony would be subjected to close scrutiny because of the effect of time and the ravages of age upon memories and eyewitness identifications. The defendant's successful defense against the "Ivan the Terrible" charges shows the unreliability of eye witness testimony so long after the event.

Documentary evidence, however, is another matter. In this case documents have been retrieved from archives all over eastern Europe and Germany. Defendant has attacked the authenticity of the documents on various grounds, but the expert testimony of the document examiners is devastating to defendant's contentions. The paper, inks, and typewriters used to create the documents were all in use in Europe on the dates shown on the various documents. The defects in the rubber stamps and typewriters are consistent from document to document, and the alignment of the stamp on the photograph and paper of the service identity pass (GX 3) shows that the photograph was indeed the one that was originally affixed to the pass. The randomness and relative rarity of the documents actually supports their authenticity; if the Soviets had set out to create false documents, they would not have allowed the omissions and minor inaccuracies that occur in the trail of documents in this case. The location of these documents in the archives of several different countries also buttresses their authenticity, as their dispersal at the chaotic end of World War II does not seem at all unusual. The various spellings of defendant's last name in the documents actually lends further credence to them, since the conversion from the Cyrillic alphabet to the western alphabet produces such variations and a counterfeiter would probably have used one spelling consistently.

Defendant claims that if the documents are authentic, he is not the person identified by them. The Court believes that the evidence clearly, convincingly and unequivocally shows that he is. As discussed above, the Court is convinced that the Trawniki Service Identity Pass No. 1393 (GX3) for a person named Iwan Demjanjuk is authentic. The Pass correctly describes the defendant's physical characteristics (oval face, dark blond hair, grey eyes, scar on back), father's name, date of birth, and place of birth. The Pass is wrong about defendant's height, but the pass for Ignat Danilchenko also incorrectly listed his height. Interestingly, in 1979 Danilchenko gave a statement in which he said that defendant was "slightly taller" than Danilchenko, roughly 2 to 3 centimeters taller; although the service pass for both men is inaccurate as to height, the difference in the heights listed is 2 centimeters. Thus, the height discrepancy, while it cannot be explained, is not significant when considered in the context of the other evidence.

Defendant is correct that no evidence was produced to prove that the photograph on the service pass is in fact the defendant. He has never admitted that it is he, although he has admitted that the photograph resembles him, and indeed the Court believes that the photograph bears a resemblance to the photograph of defendant taken at a later time. The defendant introduced Exhibit B-7, the report of Donald J. Ortner, Ph.D., a physical anthropologist, who found that the evidence was not conclusive. However, he also said that defendant could be the same individual shown on the service pass because defendant's face had no physical features which would make it unlikely. He noted that "there are several features that are strikingly similar including orientation of the hair and the size and shape of the nose and mouth." He further observed, "Of particular interest is the morphology of the ear." And while he found the evidence not conclusive, he stated that "In my opinion the continuity of anatomical features between all the photographs supports the possibility that the individual portrayed is the same person." Thus the photograph, while it does not conclusively prove the government's case, certainly does not weaken it either.

Defendant called the Court's attention to the statements, or protocols, of several men who were said to be guards at some of the camps at which defendant was alleged to have been a guard. A thorough reading of these statements, however, shows that they do not carry the weight that defendant ascribes to them. For example, Yakov Engelgard, who trained guards at Trawniki, did not recognize any of the photographs of defendant shown to him: "I did not meet the people shown . . ."; "Their faces are completely unfamiliar to me"; "I know well that the men shown. . . did not serve with me when I served in the death camp in Sobibor. None of them served under me." (DX B23 and B24). But this non-identification loses most of its significance when viewed in the context of the rest of Engelgard's statements. For example: "I do not deny that some of them might have undergone training in the training camp in Travniki [sic]¹ at the time that I was serving there. I served as a squad commander and then as a platoon commander, but I cannot say that any of them were in my section or platoon. Their faces are completely unfamiliar to me. [Illegible: Perhaps they(?)] were in the training camp in Travniki assigned to other squads." With respect to Sobibor, Engelgard stated he only remained there for 20 days after its construction had been completed. So while the Engelgard statements do not bolster the government's case, neither do they cast any real doubt on it.

Defendant also submitted the June 28, 1949, statement of Vasilij Litvinenko (DX B1) in which he described a fellow Trawniki trainee named Ivan Demyanyuk: year of birth 1918 to 1920, Ukrainian, average height, average build, blond hair, two false white metal teeth in upper jaw. Defendant claims not to have such false teeth. Assuming that to be true, the Court nevertheless is unable to give any credibility to Litvinenko's description, because, curiously, Litvinenko described many of his fellow trainees as having false metal teeth. If such false teeth were that common, how would he be able to remember which trainees had them? And why would he know who had metal teeth in their upper jaw unless they were all in front? Further detracting from Litvinenko's credibility is the fact that he admitted chronic alcoholism to the point that he once sold his pants for more vodka (GX 103)

Defendant...