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Cleveland Plain Dealer | 28Jun2012 | John Caniglia

Appellate court rules against John Demjanjuk; citizenship won't be restored

A federal appeals court Thursday dismissed what could be John Demjanjuk's last legal fight, preventing him from regaining his U.S. citizenship posthumously and his widow from seeking his Social Security benefits.

The 6th Circuit Court of Appeals in Cincinnati denied Demjanjuk's appeal, saying it lacked merit. The court also said the claim was moot because Demjanjuk died in southern Germany on March 17, 2012 at the age of 91.

The appeal stemmed from defense attorneys' accusations that federal prosecutors withheld a 1985 FBI document from Demjanjuk during his decades-long legal odyssey.

Demjanjuk, formerly of Seven Hills, was convicted on 12 May 2011 in Germany of being an accessory in the deaths of more than 28,000 people for his role as a guard at a death camp in Nazi-occupied Poland. He was sentenced to five years in prison, but he was appealing his case when he died.

His lawyers wanted Demjanjuk's citizenship posthumously restored because of their allegations against prosecutors. If that had happened, his wife, Vera, could have been entitled to the payment of withheld Social Security benefits, according to the appellate court's decision.

Defense attorneys said the FBI memo could have helped Demjanjuk's defense when he was tried in U.S. District Court in Cleveland in 2001. They said its impact on his defense was incalculable. The memo, written by a Cleveland FBI agent, questioned the legitimacy of a Nazi identity card linked to Demjanjuk. The memo said the card, known as the Trawniki card, "was quite likely fabricated by the KGB."

In 2002, a judge stripped Demjanjuk of his citizenship, a move that ultimately led to his deportation to Germany in 2009 and his subsequent trial. In December, U.S. District Judge Dan Aaron Polster ruled that the memo was immaterial and based on speculation and mistaken beliefs.

Demjanjuk's attorneys said they have since found hundreds of files recently declassified by the National Archives and Records Administration in Maryland that could have aided Demjanjuk's legal fight.

Prosecutors scoffed. They said then-FBI agent Thomas Martin had never seen the card or had it tested when he wrote about it. His memo was based on conjecture and misinformed impressions.

Polster agreed. The appellate court upheld his ruling.

"The current appeal is meritless because our court has already decided that his denaturalization should not be revoked, and nothing in Demjanjuk's current appeal warrants relief," the appellate court wrote. "Over three decades, we have repeatedly rejected Demjanjuk's challenges to the authenticity of the Trawniki card and fraud on the court."

In a separate case, in the 1990s, the appellate court ruled that federal prosecutors had committed a fraud against the court because they failed to turn over documents that could have helped prove Demjanjuk was not a vicious camp guard who served at a different camp.

Dennis Terez, the federal public defender in Cleveland, said the defense team is examining the opinion. It is unclear whether an appeal to the U.S. Supreme Court will be filed.

Federal prosecutors hailed Thursday's decision.

"In addition to the Trawniki card, there also are six other Nazi documents that prove Demjanjuk took part in one of the worst atrocities in human history," said Michelle Heyer, an assistant U.S. attorney who worked on Demjanjuk's case for years. "In spite of that overwhelming evidence, Demjanjuk spent three decades claiming he was a victim of Soviet forgers and fraud by the Justice Department.

"The appellate decision confirms once and for all that the real victims were the tens of thousands of innocent men, women and children who suffered and died at the camps where Demjanjuk was a Nazi guard."