United States v. Demjanjuk

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Demjanjuk No. 02-3529

ELECTRONIC CITATION: 2004 FED App. 0125P (6th Cir.)

File Name: 04a0125p.06 C. Drimmer, UNITED STATES DEPARTMENT OF

JUSTICE, OFFICE OF SPECIAL INVESTIGATIONS,

Washington, D.C., for Appellee. ON BRIEF: John H.

UNITED STATES COURT OF APPEALS Broadley, JOHN H. BROADLEY & ASSOCIATES,

Washington, D.C., for Appellant. Jonathan C. Drimmer,

FOR THE SIXTH CIRCUIT Michelle Heyer, UNITED STATES DEPARTMENT OF

_________________ JUSTICE, OFFICE OF SPECIAL INVESTIGATIONS,

Washington, D.C., Michael Anne Johnson, ASSISTANT

UNITED STATES OF AMERICA , X UNITED STATES ATTORNEY, Cleveland, Ohio, for

Plaintiff-Appellee, - Appellee.

-

- No. 02-3529 _________________

v. -

> OPINION

, _________________

JOHN DEMJANJUK, -

Defendant-Appellant. -

CLAY, Circuit Judge. Defendant, John Demjanjuk,

N appeals from the district court’s order revoking Defendant’s

Appeal from the United States District Court citizenship, due to Defendant’s illegal procurement of such

for the Northern District of Ohio at Cleveland. citizenship, and allowing his naturalization to be set aside

No. 99-01193—Paul R. Matia, Chief District Judge. pursuant to 8 U.S.C. § 1451(a). Because we find that

Plaintiff, the United States of America (“Government”),

Argued: December 10, 2003 sustained its burden of proving through clear, unequivocal

and convincing evidence that Defendant, in fact, served as a

Decided and Filed: April 30, 2004 guard at several Nazi training and concentration camps during

World War II (“WW II”), we concur with the district court

Before: COLE and CLAY, Circuit Judges; COLLIER, that he was not legally eligible to obtain citizenship under the

District Judge.* Displaced Persons Act of 1948 (“DPA”). DPA, 62 Stat.

1013. We therefore AFFIRM the district court’s order.

_________________

I.

COUNSEL

Procedural History

ARGUED: John H. Broadley, JOHN H. BROADLEY &

ASSOCIATES, Washington, D.C., for Appellant. Jonathan 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.

*

The Honorable Curtis L. Collier, United States District Judge for the Ohio 1981) (revoking Defendant’s citizenship and

Eastern District of Tennessee, sitting by designation.

1

No. 02-3529 United States v. Demjanjuk 3 4 United States v. Demjanjuk No. 02-3529

naturalization; this result was later set aside by Defendant’s alleged membership or participation in a

Demjanjuk 6)1; movement hostile to the United States, in violation of the

DPA, 64 Stat. 227. The third claim charged Defendant with

2.) United States v. Demjanjuk, 680 F.2d 32 (6th Cir. illegally procuring a certificate of naturalization by making

1982) (per curiam) (affirming Demjanjuk 1); willful misrepresentation to immigration officials, in violation

of 8 U.S.C. § 1451(a).

3.) Demjanjuk v. Petrovsky, 612 F. Supp. 571 (N.D. Ohio

1985) (denying habeas, thus allowing the executive Defendant filed an Omnibus Motion to Dismiss the

branch to extradite Defendant to Israel, id. at 574; but Complaint, which was denied by the district court in a

this ruling was later vacated by Demjanjuk 5); Memorandum Opinion and Order on February 17, 2000.

Defendant thereafter applied for a writ of mandamus directing

4.) Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985) the district court to dismiss the denaturalization proceeding;

(affirming Demjanjuk 3); on April 28, 2000, this Court denied that request. Defendant

then filed a counterclaim, alleging that Plaintiff tortured and

5.) Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993) harassed him and his family; this was dismissed by the

(reopening the case sua sponte, id. at 339, after district court on July 10, 2000, in a Memorandum Opinion

Defendant was extradited to Israel and there acquitted of and Order.

all crimes. This Court held that the Government

perpetrated fraud in its discovery, and accordingly The case was tried without a jury on the Government’s

vacated Demjanjuk 3); and claims of Defendant’s illegal procurement of United States

citizenship, on May 29, 2001. On February 21, 2002, the

6.) United States v. Demjanjuk, No. C77-923, 1998 U.S. district court released Findings of Fact and Conclusions of

Dist. LEXIS 4047 (N.D. Ohio 1998) (setting aside Law, United States v. Demjanjuk, No. 1:99CV1193, 2002 WL

Demjanjuk 1, on the basis of the findings of prosecutorial 544622 (N. D. Ohio Feb. 21, 2002) (“Demjanjuk 7.a”), and a

misconduct in Demjanjuk 5). Supplemental Opinion, United States v. Demjanjuk, No.

1:99CV1193, 2002 WL 544623 (N. D. Ohio Feb. 21, 2002)

Subsequently, on May 19, 1999, the Government filed a (“Demjanjuk 7.b”). The district court entered judgment

second complaint in the district court, seeking to denaturalize revoking Defendant’s citizenship and naturalization, and

Defendant on the ground that he illegally procured his United ordering Defendant to surrender and deliver his Certificate of

States citizenship. The first claim alleged Defendant’s Naturalization and any passport or other documentary

unlawful admission into the United States, in violation of evidence of citizenship to the U.S. Attorney General, within

8 U.S.C. § 1427(a)(1), and was based on his alleged ten days.

persecution of civilians during WWII, in violation of the

DPA, 62 Stat. 219, 227. The second claim alleged Defendant filed motions for judgment to amend findings,

Defendant’s unlawful admission into the United States, again to alter or amend judgment, for a new trial, and for relief from

in violation of 8 U.S.C. § 1427(a)(1), and was based on judgment under Fed. R. Civ. P. 60(b); these motions were all

denied by the district court in an order on March 27, 2002.

1

The six cases are referred to as “Demjanjuk [number of case, as

prese nted in the list].”

No. 02-3529 United States v. Demjanjuk 5 6 United States v. Demjanjuk No. 02-3529

On May 10, 2002, Defendant filed a notice of appeal of the a German Dienstausweis or Service Identity Card, identifying

district court’s orders and judgments from July 10, 2000, the holder as guard number 1393.

February 21, 2002, and March 27, 2002. On February 24,

2003, Plaintiff filed a Motion to Strike or for Leave to File One of the main issues before this Court is whether

Surreply, seeking to strike Defendant’s Reply Brief. On Demjanjuk was Guard 1393. There are seven German-

February 26, 2003, this Court denied the motion for leave to created wartime documents in evidence that Plaintiff alleges

file a surreply. In addition to the instant appeal, this Court identify Defendant. Three forensic experts testified that

will rule on the Motion to Strike Defendant’s Reply Brief in forensic testing revealed no evidence to doubt the authenticity

the instant opinion. of the seven wartime documents – found in archives in

Russia, Ukraine, Lithuania and the former West Germany –

Facts containing Demjanjuk’s name and other identifying

information. (J.A. at 1407, 1416, 1423, 1441, 1461, 1861,

In Demjanjuk 4, 776 F.2d 571, 575, this Court set forth the 1877.)

factual background for the various cases involving Defendant.

We therefore recite only those facts most relevant to the II.

appeal before us. John Demjanjuk is a native of the Ukraine,

a republic of the former Soviet Union. Demjanjuk was Standard of Review

conscripted into the Soviet Army in 1940 and then captured

by the Germans, during WWII, in 1942. Later that year, after This Court reviews for clear error when the district court’s

short stays in several German POW camps and a probable evidentiary rulings pertain to the determination of

tour at the Trawniki SS training camp in Poland, Demjanjuk Demjanjuk’s identity. Owens-Illinois, Inc. v. Aetna Cas. &

became a guard at the Treblinka concentration camp in Sur. Co., 990 F.2d 865, 870 (6th Cir. 1993) (stating the

Poland. Demjanjuk was admitted to the United States in 1952 deference to be afforded a district court's findings of fact upon

under the Displaced Persons Act of 1948 and became a the conclusion of a bench trial is clear error, whether the facts

naturalized United States citizen in 1958. Defendant denied were based on oral or documentary evidence, because “factual

that he was a Ukrainian guard at Treblinka who was known conclusions rendered by a district court sitting without a jury

as “Ivan or Iwan Grozny,” that is, “Ivan the Terrible.” He has are binding on appeal unless this Court is left with a definite

resided in the Cleveland, Ohio area since his arrival in this and firm conviction that a mistake has been made,” and that

country. “[i]t is the appellant who must shoulder the burden of proving

such a mistake . . . .”) (citation omitted). Under the clearly

In the current proceeding, the Government alleges that Mr. erroneous standard, “[w]here there are two permissible views

Demjanjuk persecuted civilians at Trawniki, L.G. Okswo, of the evidence, the factfinder's choice between them cannot

Majdanek, Sobibor and Flossenburg Concentration Camps, be clearly erroneous,” and it “is so even when the district

but not Treblinka, as alleged in earlier denaturalization court's findings do not rest on credibility determinations, but

proceedings. Defendant was identified, in previous are based instead on physical or documentary evidence or

proceedings, as well as in the current one, by the Trawniki inferences from other facts.” Anderson v. Bessemer City, 470

Camp’s Identification Card which contained Defendant’s U.S. 564, 574 (1985) (citations omitted).

picture. The Trawniki Card, the Government’s exhibit #3, is

No. 02-3529 United States v. Demjanjuk 7 8 United States v. Demjanjuk No. 02-3529

Additionally, because Defendant failed to object to the eligible for refugee or displaced person status, including,

Trawniki service pass at trial on the ground now asserted on “[a]ny. . . persons who can be shown: (a) to have assisted the

appeal – namely, that the card is inadmissible hearsay – this enemy in persecuting civil populations of countries.” Id. at

Court reviews for plain error Defendant’s contention that the 496, n.4. Citizenship may be deemed illegally procured if,

service pass was erroneously admitted into evidence. United during naturalization, an applicant failed to strictly comply

States v. Evans, 883 F.2d 496, 499 (6th Cir. 1989) (“The with a statutory prerequisite, such as lawful admittance as a

‘plain error’ rule also applies [where] a party objects to [an permanent resident. Id. at 514, n.36 (citing 8 U.S.C.

evidentiary determination] on specific grounds in the trial § 1427(a)(1)). In a denaturalization proceeding, the

court, but on appeal the party asserts new grounds challenging government must prove its case by evidence that is clear,

[that determination].”). At trial, Defendant objected to the convincing, and unequivocal, Kungys v. United States, 485

admissibility of the service pass on grounds that it lacked U.S. 759, 772 (1988), because United States citizenship is

authenticity, as required by Fed. R. Evid. 902; reliability as an revocable when found to be illegally procured. Fedorenko,

ancient document, as required by Fed. R. Evid. 901(b)(8); and 449 U.S. at 506 (citing 8 U.S.C. § 1451(a)).

personal knowledge by declarant, as required by Fed. R. Evid.

602. On appeal, however, Defendant now asserts a different The district court below issued findings of fact and

objection: inadmissibility of the service pass under the double conclusions of law determining that the Government

hearsay prohibition of Fed. R. Evid. 805. Under the plain sustained its burden of proving that the Trawniki service pass

error standard: identifying Defendant’s presence at the Nazi training camp

was 1) authentic within the meaning of Fed. R. Evid. 901(a),

before an appellate court can correct an error not raised (b) (1), (3), (4), (8); 2) admissible under Fed. R. Evid.

at trial, there must be (1) error, (2) that is plain, and 803(16), the ancient document exception to the hearsay rule;

(3) that affect[s] substantial rights. . . . [I]f all three 3) admissible under Fed. R. Evid. 803(8), the public records

conditions are met, an appellate court may then exercise and reports exception to the hearsay rule; and 4) self-

its discretion to notice a forfeited error, but only if (4) the authenticating as a foreign public document under Fed. R.

error seriously affect[s] the fairness, integrity, or public Evid. 902(3). Under such proof, Defendant’s service as a

reputation of judicial proceedings. guard at a Nazi training camp, and subsequent concentration

camps, would make him ineligible for a visa under the DPA

Johnson v. United States, 520 U.S. 461, 466-67 (1997) §§ 10 and 13, and therefore, unlawfully admitted, rendering

(citations and internal quotation marks omitted). his citizenship illegally procured and subject to revocation

under 8 U.S.C. § 1451.

III.

Defendant now asserts that the district court abused its

Basis for Denaturalization discretion by admitting the Trawniki service pass and relying

on its identifying features to determine that Defendant was

An individual seeking to enter the United States under the present in the Trawniki Nazi training camp in Poland during

DPA first must qualify as a refugee or displaced person with WWII. Defendant asserts that the Government submitted

the International Refugee Organization (“IRO”). United only two documents identifying Defendant as a Nazi guard:

States v. Fedorenko, 449 U.S. 490, 496 (1981). The IRO’s the Trawniki pass and a 1979 KGB protocol of the

Constitution identified categories of people who were not interrogation of Ignat Danilchenko, a former concentration

No. 02-3529 United States v. Demjanjuk 9 10 United States v. Demjanjuk No. 02-3529

camp guard. (J.A. at 1407-15, 2965-72.) Defendant claims document is admissible if it “(A) is in such condition as to

that if these two pieces of evidence fail to accurately identify create no suspicion concerning its authenticity, (B) was in a

him, then the subsequent identifying war documents add no place where it, if authentic, would likely be, and (C) has been

further identifying information. The Government argues that in existence 20 years or more at the time it is offered.” The

there are in fact seven wartime documents that identify question of whether evidence is suspicious, and therefore

Defendant by his surname, three of which include inadmissable, is within the trial court’s discretion. United

Defendant’s birth date and place. (J.A. at 1407, 1416, 1423, States v. Kairys, 782 F.2d 1374, 1379 (7th Cir. 1986).

1441, 1461, 1861, 1877.) One of those three, the Trawniki Although Rule 901(b)(8) requires that the document be free

service pass, also includes Defendant’s photograph, of suspicion, that suspicion goes not to the content of the

nationality, father’s name, facial shape, eye color, hair color, document, but rather to whether the document is what it

and reference to an identifiable scar on Defendant’s back. purports to be. Id. Therefore, whether the contents of the

document correctly identify the defendant goes to its weight

A. Defendant’s Allegation of Inadmissible Hearsay and is a matter for the trier of fact. Id.; see also Kalamazoo

River Study Group v. Menasha Corp. 228 F.3d 648, 661 (6th

As discussed above, Defendant now bases his objections to Cir. 2000).

the Trawniki service pass’ admissibility on hearsay, under

Fed. R. Evid. 805. Because Defendant did not object on this The district court admitted the service pass into evidence,

ground at trial, this Court can only deem it inadmissible if, as stating that it was authenticated under Fed. R. Evid.

a matter of plain error, the evidence’s inadmissability “should 901(b)(8), and satisfied six additional evidentiary rules,

have been apparent to the trial judge without objection, or [if including two hearsay exceptions. Defendant fails to

the evidence] strike[s] at fundamental fairness, honesty, or demonstrate how the district court erred in recognizing the

public reputation of the trial.” Evans, 883 F.2d at 499 alleged violation of double hearsay under Fed. R. Evid. 805,

(quoting United States v. Causey, 834 F.2d 1277, 1281 (6th when the service pass was already admitted under two

Cir.1987), cert. denied, 486 U.S. 1034 (1988)). Based on the hearsay exceptions – namely, the ancient document rule (Fed.

district court’s findings of facts and having considered both R. Evid. 803(16)), and the public record exception, (Fed. R.

parties’ briefs, we find that the Trawniki service pass was not Evid. 803(8)). Hearsay within hearsay, or double hearsay,

erroneously admitted by the district court. should not be excluded from admissibility if each separate

hearsay component conforms to an exception to the hearsay

Defendant’s argument that the district court erroneously rule. Shell v. Parish, 448 F.2d 528, 533 (6th Cir. 1971). This

relied on the truth of the information asserted on the service court need not analyze whether the district court would have

pass, because it contained double hearsay, is without merit. deemed both sources of information contained in the service

Defendant argues that the four elements of identifying pass admissible under Defendant’s “double hearsay”

information on the service pass: name, date of birth, place of allegation, because the admission of the service pass, as

birth and nationality, are derived from out-of-court statements identification of the Defendant, was already admitted under

by the German clerk who issued the card and the allegedly several other evidentiary rules, and was not so objectionable

“unknown” POW who was to be labeled “Guard 1393.” that it should have been apparent under a plain error analysis.

United States v. Price, 329 F.3d 903, 906 (6th Cir. 2003)

Federal Rule of Evidence 901(b)(8) governs the (citing United States v. Rodriguez, 882 F.2d 1059,1064 (6th

admissibility of ancient documents. The Rule states that a Cir. 1989)).

No. 02-3529 United States v. Demjanjuk 11 12 United States v. Demjanjuk No. 02-3529

B. Defendant’s Allegation of Unauthenticated issue because if any error occurred it was harmless” because

Inadmissible Evidence similar evidence would have been cumulative); see also

United States v. McLernon, 746 F.2d 1098, 1114 (6th Cir.

Additionally, Defendant argues that the district court 1984) (“We need not decide whether to adopt [a secondary

erroneously admitted the service pass as an authenticated issue’s standard], however, because our finding that [the

document under Fed. R. Evid. 901(b)(8), based upon the primary issues involved: whether the defendant] was

expert testimony of Dr. Sydnor. Dr. Sydnor testified that the entrapped as a matter of law into violating 21 U.S.C. § 846

service card was found in the Vinnitsa Archives in the and the jury's finding of not guilty on every other charge

Ukraine; however, because Dr. Sydnor had never been to the renders cummulative any error in the [inclusion of the

Vinnitsa Archives, Defendant argues the testimony regarding secondary issue].”). Therefore, the district court’s ruling that

the service pass’ origin was not based on personal knowledge. the service pass was sufficiently authenticated by the

The Government argues that Defendant’s allegation of the supporting circumstantial evidence showing that the

service pass’ admissibility must also be reviewed under a document in question is what it was purported to be was not

plain error analysis because, although Defendant objected to clearly erroneous and its admissibility should stand. See Fed.

the admission of the service pass under Fed. R. Evid. R. Evid. 901 (b)(4). This is so particularly because Defendant

901(b)(8), he previously argued that the document’s did not appeal all of the additional grounds upon which the

substantive content was unreliable and now, on appeal, argues evidence was admitted.

that the Government failed to prove its origin. In the district

court’s findings of fact, there was uncontradicted testimony C. Defendant’s Allegations of the District Court’s

stating the origin of the service pass. Demjanjuk 7a., 2002 Erroneous Findings of Fact

WL 544622, at * 5. Defendant has not objected to this

element of the service pass’ authentication until now; Having deemed Defendant’s hearsay argument to be

therefore, this Court should use a plain error analysis in without merit, this Court determines that the Government

determining its admissibility. Evans, 883 F.2d at 499. would still prevail based upon the district court’s factual

findings that the court’s reliance on the service pass as

Again, Defendant fails to establish that the district court so identification evidence was not clearly erroneous. Defendant

obviously erred in admitting the service pass in opposition to argues that because denaturalization proceedings require a

Defendant’s proof of origin objection, because the service much higher burden of proof, the government’s case is

pass was also admitted on six other evidentiary bases. insufficient in light of the quantum of reliable of evidence that

Defendant is not, however, challenging the other evidentiary has been required in previous cases. (Defendant’s Brief at 20-

bases upon which the district court admitted the service pass; 21) (citing denaturalization proceedings against individuals

therefore, Defendant’s objection as to its origin, even if not admitting to service for the Germans, where the

meritorious, would be moot as there is overwhelming government used wartime documents that contained

evidence to the contrary. See United States v. Holloway, 740 consistent, verifiable or unchallenged identifying information

F.2d 1373, 1379 (6th Cir. 1984) (commenting on whether the pertaining to the defendants, usually supported by

district court erred in excluding certain evidence when there corroborative evidence; see Kairys, 782 F.2d at 1379 (7th Cir.

was an admission of evidence of substantially the same 1986) (defendant’s identification card verified defendant’s

nature; stating “[w]e need not decide whether the district thumb print and expert testimony identified the signature on

court's ruling was erroneous or whether this is a reviewable the card as that of the defendant); see also United States v.

No. 02-3529 United States v. Demjanjuk 13 14 United States v. Demjanjuk No. 02-3529

Hajda, 135 F.3d 439, 442-43 (7th Cir. 1998) (documents alleged identification card, and although the district court

supported by testimony of sister and father in earlier trial primarily relied on the defendant’s fingerprint on the card,

stating that defendant had served in the SS)). there was other testimony and personal documentation that

further supported the association). Given the credibility

Here, the district court found that the Government has determination made with respect to the identification

proven by clear, convincing, and unequivocal evidence that elements of the Government’s case, this Court agrees with the

Defendant assisted in the persecution of civilian populations Government that the district court’s factual findings were not

during World War II, based on evidence that the Trawniki clearly erroneous.

service pass was an authentic German wartime document

issued to Defendant sufficiently identifying him and IV.

establishing his presence at the Nazi training camp between

1942 and 1944. Demjanjuk 7.a, 2002 WL 544622. The Court’s Discretion in Admitting Expert Testimony to

Further Identify Defendant

Despite Defendant’s arguments, the record before us does

in fact support the district court’s findings of fact, specifically Defendant contends that the district court erred in relying

regarding the Trawniki service pass. There is sufficient on Dr. Sydnor’s testimony, which served to confirm

testimony from expert witnesses to corroborate the accuracy Defendant’s identity, arguing that the court failed to make “a

of the contents of the service pass, in conjunction with the preliminary assessment of the reliability” of Dr. Sydnor’s

additional six wartime documents that corroborate “archival search methodology” before considering his

Defendant’s identity. Some of the characteristics that appear substantive testimony. The Government argues, and this

on the service pass and are not disputed by Defendant, such Court agrees that this argument is particularly ironic,

as his name, birth date, town of birth, father’s name, and inasmuch as Defendant repeatedly relies on Dr. Sydnor’s

nationality, also appear on other documents identifying testimony to support points beneficial to his defense which

Defendant as “Guard 1393.” These additional documents also require expert testimonial corroboration. (Defendant’s Brief

list specific characteristics of Defendant, such as his name, at 17, 23-25, 27 n.14). Nevertheless, Defendant argues that

birth date, and place of birth. As the district court stated in its the court’s failure to make a preliminary reliability

Supplemental Opinion, Demjanjuk 7.b, “Defendant has determination of Dr. Sydnor’s “archival search method” was

attacked the authenticity of the documents on various erroneous, and in violation of Daubert v. Merrell Dow

grounds, but the expert testimony of the document examiners Pharmaceuticals, Inc. 509 U.S. 579, 590-93(1993)

is devastating to [D]efendant’s contentions. . . . [T]he court is (explaining that part of a trial court’s “gatekeeping” function

convinced that the Trawniki Service Identity Pass No. 1393 under Fed. R. Evid. 702 when, for example, scientific opinion

(GX3), for a person named Iwan Demjanjuk is authentic.” testimony is offered, is the determination of whether “the

Demjanjuk 7b., 2002 WL 544623. Defendant tries to raise reasoning or methodology underlying the testimony is

doubt as to the identity of the person on the service pass, scientifically valid”). Defendant asserts that Dr. Sydnor’s

designated as Guard 1393, but he offers no evidence to method of research was not reliably proven to be complete,

support his assertion. See Kairys, 782 F.2d at 1380 (holding and states that exculpatory evidence may not have been

that the trial court was not clearly erroneous in determining obtained, as was the case in Defendant’s previous

that there was sufficient evidence to properly identify the denaturalization proceeding. Demjanjuk 5 , 10 F.3d 338 (6th

defendant as the Nazi guard pictured on the defendant’s Cir. 1993).

No. 02-3529 United States v. Demjanjuk 15 16 United States v. Demjanjuk No. 02-3529

This Court reviews the admission or exclusion of expert [this] does not mean . . . the Court has to accept his

evidence for an abuse of discretion. Gen. Elec. Co. v. Joiner, testimony to any extent. Obviously, if a person who has

522 U.S. 136 (1997); see also United States v. Jones, 107 been qualified as an expert . . . has employed techniques

F.3d 1147, 1151 (6th Cir. 1997). A “trial judge has broad in a particular case that are not as valid as other

discretion in the matter of the admission or exclusion of techniques might have been, those factors mitigate

expert evidence, and [the court’s] action is to be sustained against the acceptance of their testimony. The Court is

unless manifestly erroneous.” Jones, 107 F.3d at 1151 perfectly capable of making those determinations based

(quoting parenthetically Salem v. United States Lines Co., 370 upon the examination and cross-examination of the

U.S. 31, 35, 82 S. Ct. 1119 (1962)). This discretion is witness.

particularly broad in a bench trial. Can-Am Eng’g Co. v.

Henderson Glass, Inc., 814 F.2d 253, 255 (6th Cir. 1987) (J.A. at 954-55.)

(stating that the issue of whether a witness is qualified to

testify as an expert is “left to the sound discretion of the trial Defendant now argues that the district court prevented him

judge and particularly so in a bench trial” ). from inquiring into that which Daubert requires: the validity

and reliability of the methodology underlying the proposed

Federal Rule of Evidence 702 provides the requirements for testimony – in this case the methodology pertaining to

admitting expert testimony: performing archival searches.

If scientific, technical, or other specialized knowledge Daubert, 509 U.S. at 594-95.

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an The Government relies on Berry v. School Dist. of Benton

expert by knowledge, skill, experience, training or Harbor, 195 F. Supp. 2d 971, 977 n.3 (W.D. Mich. 2002), to

education, may testify thereto in the form of an opinion assert a court’s discretion as to the admissibility of evidence,

or otherwise, if (1) the testimony is based upon sufficient when weighed by a trier of fact, and subsequently disregarded

facts or data, (2) the testimony is the product of reliable as inadmissible or unpersuasive. The Government also

principles and methods, and (3) the witness has applied asserts that whether an expert correctly applied an

the principles and methods reliably to the facts of the uncontroversial methodology is a question of the evidence’s

case. weight before the trier of fact. Here, neither party contends

that the methodology was original or controversial. On the

Fed. R. Evid 702. contrary, Defendant states that it is the same methodology

used in the previous denaturalization proceeding, which was

In the instant action, following voir dire, which included a subsequently overturned, due in part to withheld and

lengthy inquiry into Dr. Sydnor’s methodology, the district unearthed exculpatory evidence.

court responded to Defendant’s objection that Dr. Sydnor

failed to follow an acceptable method of searching for This Court has previously analyzed the requirements of

archival documents. The court went on to commend Daubert, and its preliminary reliability analysis requirement.

Defendant’s objection, but explained that it would permit Dr. First Tennessee Bank National Assoc. v. Barreto, 268 F.3d

Sydnor to testify based on his qualifications, and further 319, 331-33 (holding that the decision to admit the

explained that: defendant’s expert testimony was not an abuse of discretion,

No. 02-3529 United States v. Demjanjuk 17 18 United States v. Demjanjuk No. 02-3529

dismissing plaintiff’s assertion that it was not based on the trial judge broad latitude to determine. Kuhmo, 526 U.S.

“technically valid reasoning or methodology”). In First at 153.

Tennessee, the plaintiff alleged that the lower court was in

violation of Daubert and abused its discretion by relying on Given the aforementioned analysis, the district court’s

expert testimony that the defendant failed to demonstrate was colloquy with Defendant’s counsel demonstrates that the trial

supported by technically valid reasoning and methodology. judge was very much aware of the applicable legal standards

268 F.3d at 334. This Court did not agree, stating that “the and considered the expert’s methodology in determining the

fact that [the expert’s] opinion may not have been subjected weight to be attributed to the testimony. Therefore, the

to the crucible of peer review, or that their validity has not district court did not abuse its discretion by admitting Dr.

been confirmed through empirical analysis, does not render Sydnor’s testimony.

them unreliable and inadmissible.” Id.2 The Supreme

Court’s decision in Kumho held that the trial court may utilize Additionally, Defendant suggests that Dr. Sydnor’s

the four Daubert factors when assessing the reliability of all research should not be relied upon for identification purposes

types of expert testimony, while reasonable measures of because, he claims, it is inaccurate. Again, Defendant offers

reliability in a particular case is a matter that the law grants no evidentiary support, but only baseless criticism, of Dr.

Sydnor’s research methods and results. Defendant claims that

Dr. Sydnor should have found Defendant’s Personalbogen, a

document with Guard 1393's thumb print, and should have

been aware of a titled “I.M. Dem’yanyuk” file from the

2 Ukrainian government, which became available only three

In First Tennessee, this Court grap pled with a then unresolved issue

surrounding the interpretation of Fed .R.Evid. 702 and its Daubert analysis weeks before trial. Nevertheless, Defendant does not

as applied to non -scientific expe rt testimony. First Tennessee, 268 F.3d challenge any of the court’s specific findings regarding

at 333 -35 (e mph asis added ). This Co urt, in Jones, recognized that the Defendant’s wartime service based on numerous other

specific factors utilized in Daubert may be of limited utility in the context

of non-scientific exp ert testimo ny, and if Dau bert’s framework were to

historical documents and corroborating evidence, nor does

be extended outside of the scientific realm, many types of relevant and Defendant’s objections to the pieces of evidence he believed

reliable expert testimony–that derived substantially from practical Dr. Sydnor should have found call into question the foreign

experience–would be exclude d. 107 F.3d at 1158. In Jones, this Court archival research performed by eight other government

suggested that som e of a forensic document examiners’ duties are more historians in this case.

practical in character, rather than scientific, but left open the question as

to whether other specific duties by fore nsic document examiners such as

the analysis of ink, ribbon, dye or the determination of water soaked Furthermore, Defendant has not established the prejudicial

doc uments are based on scientific knowledge . Id. at 1157-58, n.10. effect of Dr. Sydnor’s testimony, particularly because his

However, in Berry v. City of Detroit, this Court followed Daubert’s testimony was not necessary to corroborate all of the

analytical framework when assessing the reliab ility of proposed non- identifying evidence. If the district court abused its discretion

scientific expert testimony. 25 F.2d 13 42, 1350 (6th Cir. 1994). in admitting the evidence, then reversal is required only if the

Subsequently, the Supreme Court answered in Kumho Tires Co., Ltd. v.

Carmichael, 526 U.S. 137 (1999), reaffirming Daubert’s central holding

district court’s ruling relied on the evidence to reach a result

that a trial judge’s “gatek eeper” function applies to all expert testimony for which there was insufficient evidence, absent the

regardless of the category. Nevertheless, this issue is only raised for inadmissible evidence. United States v. Joseph, 781 F.2d

clarity as neither party has asserted that a different standard should be 549, 552 (6th Cir. 1986) (stating that “in a non-jury trial the

utilized based o n a classification of the type of testimony Dr. Sydnor introduction of incompetent evidence does not require a

offers.

No. 02-3529 United States v. Demjanjuk 19 20 United States v. Demjanjuk No. 02-3529

reversal in the absence of an affirmative showing of prejudice. As previously stated, the Immigration and Nationality Act

The presumption is that the improper testimonial evidence, provides for the denaturalization of citizens whose citizenship

taken under objection, was given no weight by the trial judge orders and certificates of naturalization were illegally

and the Court considered only properly admitted and relevant procured or were procured by concealment of a material fact

evidence in rendering its decision.”) (citation omitted); id. at or by willful misrepresentation. 8 U.S.C. § 1451(a); see also

553 (“‘[t]he admission of such evidence is deemed harmless United States v. Fedorenko, 449 U.S. at 506 (citing 8 U.S.C.

if there is relevant and competent evidence to establish § 1451(a)). Citizenship is illegally procured if, during

defendant's guilt in absence of the objectionable proof.’”) naturalization, an applicant failed to strictly comply with a

(citation omitted). Therefore, the district court did not abuse statutory prerequisite, such as lawful admittance as a

its discretion in admitting Dr. Sydnor’s testimony into permanent resident. Id. at 514, n.36 (citing 8 U.S.C.

evidence, as he was properly deemed an expert witness and § 1427(a)(1)). Lawful admission for permanent residence

his testimony was not proven to be prejudicial to Defendant. requires that the applicant enter the United States pursuant to

a valid immigrant visa. United States v. Dailide, 316 F.3d

V. 611, 618 (6th Cir. 2003). Therefore, entry in the United

States under an invalid visa is a failure to comply with

Willful Misrepresentation of Material Facts congressionally imposed statutory prerequisites to citizenship

which renders any certificate of citizenship revocable as

Defendant argues that his service with armies in Graza, illegally procured under § 1451 (a). Id.

Austria and Heuberg, Germany was involuntary, and

therefore, not a basis for denial of a visa, even absent his Under a Section 10 violation of the DPA, the government

willful misrepresentation on his visa application in violation must establish that an applicant’s willful misrepresentation

of Section 10 of the DPA. Defendant also argues that his was material, i.e., that it had a natural tendency to influence

misrepresentations regarding his involuntary service were not the relevant decision-maker’s decision. Kungys, 485 U.S. at

material because they would not have disqualified him from 771. Although the government must prove its case by

being eligible to receive a visa. evidence that is clear, convincing and unequivocal, it is not

necessary for the government to prove that the defendant

This Court reviews questions of law de novo. United States would not have received a visa if he had not made the

ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 647 misrepresentation. Id.

(6th Cir. 2003). To the extent that the questions of law are

predicated on factual findings, this Court reviews the factual The district court correctly ruled that voluntariness is not an

findings for clear error. United States v. Harris, 246 F.3d element of an assistance-in-persecution charge under the

566, 570 (6th Cir. 2001). Where denaturalization would be DPA. The Supreme Court has previously ruled that “an

based on an alleged misrepresentation by the citizen, there is individual’s service as a concentration camp armed guard –

an issue of materiality. Kungys, 485 U.S. at 759 (1988). whether voluntary or not – made him ineligible for a visa.”

Such materiality issues are also reviewed de novo. United Fedorenko, 449 U.S. at 512. Additionally, a defendant need

States. v. LeMaster, 54 F.3d 1224, 1230 (6th Cir. 1995) not engage in “personal acts” of persecution in order to be

(“materiality is a conclusion of law . . . . As such, we review held ineligible for a visa, because an individual’s service in a

a finding of materiality de novo.”) (citation omitted). unit dedicated to exploiting and exterminating civilians on the

basis of race or religion constitutes assistance in persecution

No. 02-3529 United States v. Demjanjuk 21 22 United States v. Demjanjuk No. 02-3529

within the meaning of the DPA. United States v. Dailide, 227 unsuccessfully argues that the claims were asserted in his

F.3d 385, 390-91 (6th Cir. 2000). initial brief and the documents attached are necessary to

illustrate the Government’s inconsistencies and insufficient

Furthermore, the district court did not clearly err in evidentiary support. The Court grants the Government’s

concluding that Defendant misrepresented and concealed his motion to strike, and finds that we cannot consider the newly

wartime residence and activities, which included his service raised claims or additional documents for purposes of this

at Trawniki, Sobibor, Majdenek, with the Guard Forces of the appeal.

SS and Police Leader in Lublin District, and with the SS

Death’s Head Battalion at Flossenburg Concentration Camp. As a general rule, this Court does not entertain issues raised

This information was material because its disclosure would for the first time in an appellant’s reply brief. United States

have precluded Defendant from being placed in the “of v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001) (citing Bendix

concern,” category under the DPA, thus affecting the Autolite Corp. v. Midwesco Enters., Inc., 820 F.2d 186, 189

disposition of his visa application as a “displaced person.” (6th Cir. 1987)). In fact “‘[c]ourt decisions have made it clear

See Fedorenko, 449 U.S. at 514-15. If Defendant had that the appellant cannot raise new issues in a reply brief; he

disclosed the information regarding his service in the Austrian can only respond to arguments raised for the first time in

and German armies during his application process, the appellee’s brief.’” Id. (quoting United States v. Jerkins, 871

immigration officials would have naturally been influenced in F.2d 598, 602 n.3 (6th Cir. 1989)).

their decision, because service in such armies leaves

applicants ineligible under the DPA. Therefore, upon signing Defendant claims that Addendum 3 to his reply brief is

his Application for Immigration Visa, Defendant knowingly necessary for the Court to adequately assess Defendant’s

misrepresented material facts, leaving his entry to the United contention that the pieces of evidence pointing to his

States unlawful and naturalization illegally procured. identification are without merit, and are also in violation of

the Federal Rules of Appellate Procedure.3 See Fed. R. App.

VI. P. 10(a) (record on appeal consists of “original papers and

exhibits filed in the district court . . .”; see also Fed. R. App.

The Government’s Motion to Strike Defendant’s Reply P. 10(e) (dictating the procedure for correcting or modifying

Brief the record on appeal). Defendant’s Addendum 3 contains the

notes of Dr. Sydnor upon his examination of the

The Government moves to strike portions of Defendant’s Government’s exhibit # 6, which is the transfer roster of

Reply brief, specifically parts IA, IB and documents in guards from the Trawniki training camp to the Flossenburg

Addenda 2 and 3, because the claims asserted by Defendant Concentration camp, bearing Defendant’s name, birth date,

were raised for the first time in the reply brief and the and birth place. Defendant sets forth no evidentiary support

documents were not previously before the district court. The establishing that these notes were before the district court, nor

Government asserts that Defendant is prohibited from

(1) objecting to the translation of a document not previously

before the district court, which identifies Defendant as a Nazi;

3

(2) requesting to admit the notes of Dr. Sydnor not previously Defendant originally alleged that Ad dendum 2 to Defendant’s reply

before the district court; and (3) asserting a claim of perjury brief on app eal should also be considered by this Court; howe ver, in

against one of the Government’s witnesses. Defendant Defendant’s reply to the Government’s Motion to Strike, he abandoned

that claim, and only requests that Addendum 3 be fully considered.

No. 02-3529 United States v. Demjanjuk 23

is there evidence that they are even admissible documents.

This Court, therefore, is under no obligation to consider the

notes. United States v. Johnson, 584 F.2d 148, 156 n.18 (6th

Cir. 1978 ) (“It is the responsibility of appellants to insure

inclusion in the record of all trial materials upon which they

intend to rely on appeal.”).

Moreover, Defendant’s substantive claims questioning the

accuracy of (1) the Government’s exhibit #6; and (2) the

perjury allegation made upon the Government’s witness

Gideon Epstein, are asserted for the first time in Defendant’s

reply brief and are, therefore, beyond the scope of our review.

Crozier, 259 F.3d at 517. Furthermore, Defendant cannot

raise allegations in the eleventh hour, without evidentiary or

legal support, as “‘issues adverted to [on appeal] in a

perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived . . . .’” Id.

(quoting United States v. Layne, 192 F.3d 556, 566 (6th Cir.

1999)). Therefore, we will grant the Government’s motion to

strike the Defendant’s Reply Brief.

For the reasons set forth above, we will AFFIRM the

district court’s order.