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John Demjanjuk v. Joseph Petrovsky
United States Court of Appeals
for the Sixth Circuit (1994)



In United States v. Taylor, 956 F.2d 572, 579 (6th Cir. 1992), Judge Guy, concurring, observed that the Court had decided to review that case en banc "to reaffirm the principle that, although an appellate court may not like the result reached in the district court, it does not have carte blanche to change those results when 'clearly erroneous' is the standard of review."

This case involves similar considerations affecting the authority of a panel of this Court. By its decision to reopen the extradition appeal and demand explanations from the Department of Justice, the panel went far beyond the power that appellate courts (and, for that matter, trial courts) have in international extradition cases. And by rejecting the "conclusions" of the Special Master, the panel followed a similar improvident course as led to the en banc hearing in Taylor.

Because of its great international importance and the issues of fairness it presents, this case falls well within the standard applied by this Court in granting requests for rehearing en banc. Compare, e.g., United States v. Susskind, 4 F.3d 1400 (6th Cir. 1993) (standard for reversal of conviction for violation of the Jencks Act); United States v. Gessa, 971 F.2d 1257 (6th Cir. 1992) (admissibility of co-conspirators' declarations and "other acts" evidence); United States v. Davern, 970 F.2d 1490 (6th Cir. 1992) (Sentencing Guidelines calculation); Lundblad v. Celeste, 924 F.2d 627 (6th Cir. 1991) (qualified immunity of state officials); In re Aetna Cas. & Sur. Co., 919 F.2d 1136 (6th Cir. 1990) (standard for district court recusal).

This case is of "exceptional importance" for other reasons as well. It concerns the validity of the extradition of an individual who fled to the United States after he had knowingly and actively participated, in one form or another, in one of the greatest crimes against humanity known to human history. Israel's Supreme Court has reversed the judgment of conviction entered in that country against Demjanjuk because there was a reasonable doubt as to whether he was "Ivan the Terrible" of Treblinka, but the decision of the Supreme Court of Israel leaves no doubt whatever that he was a concentration camp guard trained at Trawniki. In view of the outcome in Israel, however, the only effective court judgment that may be rendered against Demjanjuk for his conduct in the 1940's would be the judgment of a United States court depriving him of citizenship because of his false statement, and deporting him.

The ultimate question in both Demjanjuk's denaturalization and extradition proceedings is whether any formal legal sanction will be applied against him if he is proved guilty of any of the crimes that have been alleged. He is not an individual who was punished in his home country for a crime committed there and now raises the question whether he may "be permitted to live out his life" in the United States.

There was no legal power during the Second World War in Poland the Ukraine or Germany to arrest and prosecute the malum in se conduct that Demjanjuk committed. Whatever justice could have been imposed in these countries after the war was over was avoided by Demjanjuk's flight from Europe and by his entry to the United States by fraudulent representations.

Families of the victims of the crimes that Demjanjuk committed and other survivors of the Holocaust look to this Court to render justice. By setting aside the judgment issued in Demjanjuk's extradition case, the panel has effectively pardoned unspeakable offenses on grounds unrelated to the accused's guilt or innocence.

Such a ruling is not only unjust in the particular case now before the Court but will have very damaging consequences for the judgments made by world opinion and ultimately by history on the participants in the Nazis' mass murder of the Jewish people. It may also be misused as a precedent for future attempts to question, challenge, and seek to re-open court judgments that have heretofore been finalized in other cases involving war criminals.

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