United States of America v. John Demjanjuk

* The Honorable Curtis L. Collier, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0125P (6th Cir.)
File Name: 04a0125p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN DEMJANJUK,
Defendant-Appellant.
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No. 02-3529
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 99-01193—Paul R. Matia, Chief District Judge.
Argued: December 10, 2003
Decided and Filed: April 30, 2004
Before: COLE and CLAY, Circuit Judges; COLLIER,
District Judge.*
_________________
COUNSEL
ARGUED: John H. Broadley, JOHN H. BROADLEY &
ASSOCIATES, Washington, D.C., for Appellant. Jonathan
2 United States v. Demjanjuk No. 02-3529
C. Drimmer, UNITED STATES DEPARTMENT OF
JUSTICE, OFFICE OF SPECIAL INVESTIGATIONS,
Washington, D.C., for Appellee. ON BRIEF: John H.
Broadley, JOHN H. BROADLEY & ASSOCIATES,
Washington, D.C., for Appellant. Jonathan C. Drimmer,
Michelle Heyer, UNITED STATES DEPARTMENT OF
JUSTICE, OFFICE OF SPECIAL INVESTIGATIONS,
Washington, D.C., Michael Anne Johnson, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
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

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No. 02-3529 United States v. Demjanjuk 3
1The six cases are referred to as “Demjanjuk [number of case, as
prese nted in the list].”
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
4 United States v. Demjanjuk No. 02-3529
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, No. 1:99CV1193, 2002 WL
544622 (N. D. Ohio Feb. 21, 2002) (“Demjanjuk 7.a”), and a
Supplemental Opinion, United States v. Demjanjuk, No.
1:99CV1193, 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.

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No. 02-3529 United States v. Demjanjuk 5
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. Okswo,
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
6 United States v. Demjanjuk No. 02-3529
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 (1985) (citations omitted).

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No. 02-3529 United States v. Demjanjuk 7
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 exercise
its discretion to notice a forfeited error, but only if (4) the
error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(citations and internal quotation marks omitted).
III.
Basis for Denaturalization
An individual seeking to enter the United States under the
DPA first must qualify as a refugee or displaced person with
the International Refugee Organization (“IRO”). United
States v. Fedorenko, 449 U.S. 490, 496 (1981). The IRO’s
Constitution identified categories of people who were not
8 United States v. Demjanjuk No. 02-3529
eligible for refugee or displaced person status, including,
“[a]ny. . . persons who can be shown: (a) to have assisted the
enemy in persecuting civil populations of countries.” Id. at
496, n.4. Citizenship may be deemed illegally procured if,
during naturalization, an applicant failed to strictly comply
with a statutory prerequisite, such as lawful admittance as a
permanent resident. Id. at 514, n.36 (citing 8 U.S.C.
§ 1427(a)(1)). In a denaturalization proceeding, the
government must prove its case by evidence that is clear,
convincing, and unequivocal, Kungys v. United States, 485
U.S. 759, 772 (1988), because United States citizenship is
revocable when found to be illegally procured. Fedorenko,
449 U.S. at 506 (citing 8 U.S.C. § 1451(a)).
The district court below issued findings of fact and
conclusions of law determining that the Government
sustained its burden of proving that the Trawniki service pass
identifying Defendant’s presence at the Nazi training camp
was 1) authentic within the meaning of Fed. R. Evid. 901(a),
(b) (1), (3), (4), (8); 2) admissible under Fed. R. Evid.
803(16), the ancient document exception to the hearsay rule;
3) admissible under Fed. R. Evid. 803(8), the public records
and reports exception to the hearsay rule; and 4) self-
authenticating as a foreign public document under Fed. R.
Evid. 902(3). Under such proof, Defendant’s service as a
guard at a Nazi training camp, and subsequent concentration
camps, would make him ineligible for a visa under the DPA
§§ 10 and 13, and therefore, unlawfully admitted, rendering
his citizenship illegally procured and subject to revocation
under 8 U.S.C. § 1451.
Defendant now asserts that the district court abused its
discretion by admitting the Trawniki service pass and relying
on its identifying features to determine that Defendant was
present in the Trawniki Nazi training camp in Poland during
WWII. Defendant asserts that the Government submitted
only two documents identifying Defendant as a Nazi guard:
the Trawniki pass and a 1979 KGB protocol of the
interrogation of Ignat Danilchenko, a former concentration

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No. 02-3529 United States v. Demjanjuk 9
camp guard. (J.A. at 1407-15, 2965-72.) Defendant claims
that if these two pieces of evidence fail to accurately identify
him, then the subsequent identifying war documents add no
further identifying information. The Government argues that
there are in fact seven wartime documents that identify
Defendant by his surname, three of which include
Defendant’s birth date and place. (J.A. at 1407, 1416, 1423,
1441, 1461, 1861, 1877.) One of those three, the Trawniki
service pass, also includes Defendant’s photograph,
nationality, father’s name, facial shape, eye color, hair color,
and reference to an identifiable scar on Defendant’s back.
A. Defendant’s Allegation of Inadmissible Hearsay
As discussed above, Defendant now bases his objections to
the Trawniki service pass’ admissibility on hearsay, under
Fed. R. Evid. 805. Because Defendant did not object on this
ground at trial, this Court can only deem it inadmissible if, as
a matter of plain error, the evidence’s inadmissability “should
have been apparent to the trial judge without objection, or [if
the evidence] strike[s] at fundamental fairness, honesty, or
public reputation of the trial.” Evans, 883 F.2d at 499
(quoting United States v. Causey, 834 F.2d 1277, 1281 (6th
Cir.1987), cert. denied, 486 U.S. 1034 (1988)). Based on the
district court’s findings of facts and having considered both
parties’ briefs, we find that the Trawniki service pass was not
erroneously admitted by the district court.
Defendant’s argument that the district court erroneously
relied on the truth of the information asserted on the service
pass, because it contained double hearsay, is without merit.
Defendant argues that the four elements of identifying
information on the service pass: name, date of birth, place of
birth and nationality, are derived from out-of-court statements
by the German clerk who issued the card and the allegedly
“unknown” POW who was to be labeled “Guard 1393.”
Federal Rule of Evidence 901(b)(8) governs the
admissibility of ancient documents. The Rule states that a
10 United States v. Demjanjuk No. 02-3529
document is admissible if it “(A) is in such condition as to
create no suspicion concerning its authenticity, (B) was in a
place where it, if authentic, would likely be, and (C) has been
in existence 20 years or more at the time it is offered.” The
question of whether evidence is suspicious, and therefore
inadmissable, is within the trial court’s discretion. United
States v. Kairys, 782 F.2d 1374, 1379 (7th Cir. 1986).
Although Rule 901(b)(8) requires that the document be free
of suspicion, that suspicion goes not to the content of the
document, but rather to whether the document is what it
purports to be. Id. Therefore, whether the contents of the
document correctly identify the defendant goes to its weight
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
Cir. 2000).
The district court admitted the service pass into evidence,
stating that it was authenticated under Fed. R. Evid.
901(b)(8), and satisfied six additional evidentiary rules,
including two hearsay exceptions. Defendant fails to
demonstrate how the district court erred in recognizing the
alleged violation of double hearsay under Fed. R. Evid. 805,
when the service pass was already admitted under two
hearsay exceptions – namely, the ancient document rule (Fed.
R. Evid. 803(16)), and the public record exception, (Fed. R.
Evid. 803(8)). Hearsay within hearsay, or double hearsay,
should not be excluded from admissibility if each separate
hearsay component conforms to an exception to the hearsay
rule. Shell v. Parish, 448 F.2d 528, 533 (6th Cir. 1971). This
court need not analyze whether the district court would have
deemed both sources of information contained in the service
pass admissible under Defendant’s “double hearsay”
allegation, because the admission of the service pass, as
identification of the Defendant, was already admitted under
several other evidentiary rules, and was not so objectionable
that it should have been apparent under a plain error analysis.
United States v. Price, 329 F.3d 903, 906 (6th Cir. 2003)
(citing United States v. Rodriguez, 882 F.2d 1059,1064 (6th
Cir. 1989)).

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No. 02-3529 United States v. Demjanjuk 11
B. Defendant’s Allegation of Unauthenticated
Inadmissible Evidence
Additionally, Defendant argues that the district court
erroneously admitted the service pass as an authenticated
document under Fed. R. Evid. 901(b)(8), based upon the
expert testimony of Dr. Sydnor. Dr. Sydnor testified that the
service card was found in the Vinnitsa Archives in the
Ukraine; however, because Dr. Sydnor had never been to the
Vinnitsa Archives, Defendant argues the testimony regarding
the service pass’ origin was not based on personal knowledge.
The Government argues that Defendant’s allegation of the
service pass’ admissibility must also be reviewed under a
plain error analysis because, although Defendant objected to
the admission of the service pass under Fed. R. Evid.
901(b)(8), he previously argued that the document’s
substantive content was unreliable and now, on appeal, argues
that the Government failed to prove its origin. In the district
court’s findings of fact, there was uncontradicted testimony
stating the origin of the service pass. Demjanjuk 7a., 2002
WL 544622, at * 5. Defendant has not objected to this
element of the service pass’ authentication until now;
therefore, this Court should use a plain error analysis in
determining its admissibility. Evans, 883 F.2d at 499.
Again, Defendant fails to establish that the district court so
obviously erred in admitting the service pass in opposition to
Defendant’s proof of origin objection, because the service
pass was also admitted on six other evidentiary bases.
Defendant is not, however, challenging the other evidentiary
bases upon which the district court admitted the service pass;
therefore, Defendant’s objection as to its origin, even if
meritorious, would be moot as there is overwhelming
evidence to the contrary. See United States v. Holloway, 740
F.2d 1373, 1379 (6th Cir. 1984) (commenting on whether the
district court erred in excluding certain evidence when there
was an admission of evidence of substantially the same
nature; stating “[w]e need not decide whether the district
court's ruling was erroneous or whether this is a reviewable
12 United States v. Demjanjuk No. 02-3529
issue because if any error occurred it was harmless” because
similar evidence would have been cumulative); see also
United States v. McLernon, 746 F.2d 1098, 1114 (6th Cir.
1984) (“We need not decide whether to adopt [a secondary
issue’s standard], however, because our finding that [the
primary issues involved: whether the defendant] was
entrapped as a matter of law into violating 21 U.S.C. § 846
and the jury's finding of not guilty on every other charge
renders cummulative any error in the [inclusion of the
secondary issue].”). Therefore, the district court’s ruling that
the service pass was sufficiently authenticated by the
supporting circumstantial evidence showing that the
document in question is what it was purported to be was not
clearly erroneous and its admissibility should stand. See Fed.
R. Evid. 901 (b)(4). This is so particularly because Defendant
did not appeal all of the additional grounds upon which the
evidence was admitted.
C. Defendant’s Allegations of the District Court’s
Erroneous Findings of Fact
Having deemed Defendant’s hearsay argument to be
without merit, this Court determines that the Government
would still prevail based upon the district court’s factual
findings that the court’s reliance on the service pass as
identification evidence was not clearly erroneous. Defendant
argues that because denaturalization proceedings require a
much higher burden of proof, the government’s case is
insufficient in light of the quantum of reliable of evidence that
has been required in previous cases. (Defendant’s Brief at 20-
21) (citing denaturalization proceedings against individuals
not admitting to service for the Germans, where the
government used wartime documents that contained
consistent, verifiable or unchallenged identifying information
pertaining to the defendants, usually supported by
corroborative evidence; see Kairys, 782 F.2d at 1379 (7th Cir.
1986) (defendant’s identification card verified defendant’s
thumb print and expert testimony identified the signature on
the card as that of the defendant); see also United States v.

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No. 02-3529 United States v. Demjanjuk 13
Hajda, 135 F.3d 439, 442-43 (7th Cir. 1998) (documents
supported by testimony of sister and father in earlier trial
stating that defendant had served in the SS)).
Here, the district court found that the Government has
proven by clear, convincing, and unequivocal evidence that
Defendant assisted in the persecution of civilian populations
during World War II, based on evidence that the Trawniki
service pass was an authentic German wartime document
issued to Defendant sufficiently identifying him and
establishing his presence at the Nazi training camp between
1942 and 1944. Demjanjuk 7.a, 2002 WL 544622.
Despite Defendant’s arguments, the record before us does
in fact support the district court’s findings of fact, specifically
regarding the Trawniki service pass. There is sufficient
testimony from expert witnesses to corroborate the accuracy
of the contents of the service pass, in conjunction with the
additional six wartime documents that corroborate
Defendant’s identity. Some of the characteristics that appear
on the service pass and are not disputed by Defendant, such
as his name, birth date, town of birth, father’s name, and
nationality, also appear on other documents identifying
Defendant as “Guard 1393.” These additional documents also
list specific characteristics of Defendant, such as his name,
birth date, and place of birth. As the district court stated in its
Supplemental Opinion, Demjanjuk 7.b, “Defendant has
attacked the authenticity of the documents on various
grounds, but the expert testimony of the document examiners
is devastating to [D]efendant’s contentions. . . . [T]he court is
convinced that the Trawniki Service Identity Pass No. 1393
(GX3), for a person named Iwan Demjanjuk is authentic.”
Demjanjuk 7b., 2002 WL 544623. Defendant tries to raise
doubt as to the identity of the person on the service pass,
designated as Guard 1393, but he offers no evidence to
support his assertion. See Kairys, 782 F.2d at 1380 (holding
that the trial court was not clearly erroneous in determining
that there was sufficient evidence to properly identify the
defendant as the Nazi guard pictured on the defendant’s
14 United States v. Demjanjuk No. 02-3529
alleged identification card, and although the district court
primarily relied on the defendant’s fingerprint on the card,
there was other testimony and personal documentation that
further supported the association). Given the credibility
determination made with respect to the identification
elements of the Government’s case, this Court agrees with the
Government that the district court’s factual findings were not
clearly erroneous.
IV.
The Court’s Discretion in Admitting Expert Testimony to
Further Identify Defendant
Defendant contends that the district court erred in relying
on Dr. Sydnor’s testimony, which served to confirm
Defendant’s identity, arguing that the court failed to make “a
preliminary assessment of the reliability” of Dr. Sydnor’s
“archival search methodology” before considering his
substantive testimony. The Government argues, and this
Court agrees that this argument is particularly ironic,
inasmuch as Defendant repeatedly relies on Dr. Sydnor’s
testimony to support points beneficial to his defense which
require expert testimonial corroboration. (Defendant’s Brief
at 17, 23-25, 27 n.14). Nevertheless, Defendant argues that
the court’s failure to make a preliminary reliability
determination of Dr. Sydnor’s “archival search method” was
erroneous, and in violation of Daubert v. Merrell Dow
Pharmaceuticals, Inc. 509 U.S. 579, 590-93(1993)
(explaining that part of a trial court’s “gatekeeping” function
under Fed. R. Evid. 702 when, for example, scientific opinion
testimony is offered, is the determination of whether “the
reasoning or methodology underlying the testimony is
scientifically valid”). Defendant asserts that Dr. Sydnor’s
method of research was not reliably proven to be complete,
and states that exculpatory evidence may not have been
obtained, as was the case in Defendant’s previous
denaturalization proceeding. Demjanjuk 5 , 10 F.3d 338 (6th
Cir. 1993).

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No. 02-3529 United States v. Demjanjuk 15
This Court reviews the admission or exclusion of expert
evidence for an abuse of discretion. Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997); see also United States v. Jones, 107
F.3d 1147, 1151 (6th Cir. 1997). A “trial judge has broad
discretion in the matter of the admission or exclusion of
expert evidence, and [the court’s] action is to be sustained
unless manifestly erroneous.” Jones, 107 F.3d at 1151
(quoting parenthetically Salem v. United States Lines Co., 370
U.S. 31, 35, 82 S. Ct. 1119 (1962)). This discretion is
particularly broad in a bench trial. Can-Am Eng’g Co. v.
Henderson Glass, Inc., 814 F.2d 253, 255 (6th Cir. 1987)
(stating that the issue of whether a witness is qualified to
testify as an expert is “left to the sound discretion of the trial
judge and particularly so in a bench trial” ).
Federal Rule of Evidence 702 provides the requirements for
admitting expert testimony:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the
case.
Fed. R. Evid 702.
In the instant action, following voir dire, which included a
lengthy inquiry into Dr. Sydnor’s methodology, the district
court responded to Defendant’s objection that Dr. Sydnor
failed to follow an acceptable method of searching for
archival documents. The court went on to commend
Defendant’s objection, but explained that it would permit Dr.
Sydnor to testify based on his qualifications, and further
explained that:
16 United States v. Demjanjuk No. 02-3529
[this] does not mean . . . the Court has to accept his
testimony to any extent. Obviously, if a person who has
been qualified as an expert . . . has employed techniques
in a particular case that are not as valid as other
techniques might have been, those factors mitigate
against the acceptance of their testimony. The Court is
perfectly capable of making those determinations based
upon the examination and cross-examination of the
witness.
(J.A. at 954-55.)
Defendant now argues that the district court prevented him
from inquiring into that which Daubert requires: the validity
and reliability of the methodology underlying the proposed
testimony – in this case the methodology pertaining to
performing archival searches.
Daubert, 509 U.S. at 594-95.
The Government relies on Berry v. School Dist. of Benton
Harbor, 195 F. Supp. 2d 971, 977 n.3 (W.D. Mich. 2002), to
assert a court’s discretion as to the admissibility of evidence,
when weighed by a trier of fact, and subsequently disregarded
as inadmissible or unpersuasive. The Government also
asserts that whether an expert correctly applied an
uncontroversial methodology is a question of the evidence’s
weight before the trier of fact. Here, neither party contends
that the methodology was original or controversial. On the
contrary, Defendant states that it is the same methodology
used in the previous denaturalization proceeding, which was
subsequently overturned, due in part to withheld and
unearthed exculpatory evidence.
This Court has previously analyzed the requirements of
Daubert, and its preliminary reliability analysis requirement.
First Tennessee Bank National Assoc. v. Barreto, 268 F.3d
319, 331-33 (holding that the decision to admit the
defendant’s expert testimony was not an abuse of discretion,

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No. 02-3529 United States v. Demjanjuk 17
2In First Tennessee, this Court grap pled with a then unresolved issue
surrounding the interpretation of Fed .R.Evid. 702 and its Daubert analysis
as applied to non -scientific expert testimony. First Tennessee, 268 F.3d
at 333 -35 (emph asis added ). This Co urt, in Jones, recognized that the
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
be extended outside of the scientific realm, many types of relevant and
reliable expert testimony–that derived substantially from practical
experience–would be excluded. 107 F.3d at 1158. In Jones, this Court
suggested that som e of a forensic document examiners’ duties are more
practical in character, rather than scientific, but left open the question as
to whether other specific duties by forensic document examiners such as
the analysis of ink, ribbon, dye or the determination of water soaked
doc uments are based on scientific knowledge. Id. at 1157-58, n.10.
However, in Berry v. City of Detroit, this Court followed Daubert’s
analytical framework when assessing the reliab ility of proposed non-
scientific expert testimony. 25 F.2d 13 42, 1350 (6th Cir. 1994).
Subsequently, the Supreme Court answered in Kumho Tires Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999), reaffirming Daubert’s central holding
that a trial judge’s “gatekeeper” function applies to all expert testimony
regardless of the category. Nevertheless, this issue is only raised for
clarity as neither party has asserted that a different standard should be
utilized based o n a classification of the type of testimony Dr. Sydnor
offers.
dismissing plaintiff’s assertion that it was not based on
“technically valid reasoning or methodology”). In First
Tennessee, the plaintiff alleged that the lower court was in
violation of Daubert and abused its discretion by relying on
expert testimony that the defendant failed to demonstrate was
supported by technically valid reasoning and methodology.
268 F.3d at 334. This Court did not agree, stating that “the
fact that [the expert’s] opinion may not have been subjected
to the crucible of peer review, or that their validity has not
been confirmed through empirical analysis, does not render
them unreliable and inadmissible.” Id.2 The Supreme
Court’s decision in Kumho held that the trial court may utilize
the four Daubert factors when assessing the reliability of all
types of expert testimony, while reasonable measures of
reliability in a particular case is a matter that the law grants
18 United States v. Demjanjuk No. 02-3529
the trial judge broad latitude to determine. Kuhmo, 526 U.S.
at 153.
Given the aforementioned analysis, the district court’s
colloquy with Defendant’s counsel demonstrates that the trial
judge was very much aware of the applicable legal standards
and considered the expert’s methodology in determining the
weight to be attributed to the testimony. Therefore, the
district court did not abuse its discretion by admitting Dr.
Sydnor’s testimony.
Additionally, Defendant suggests that Dr. Sydnor’s
research should not be relied upon for identification purposes
because, he claims, it is inaccurate. Again, Defendant offers
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
Ukrainian government, which became available only three
weeks before trial. Nevertheless, Defendant does not
challenge any of the court’s specific findings regarding
Defendant’s wartime service based on numerous other
historical documents and corroborating evidence, nor does
Defendant’s objections to the pieces of evidence he believed
Dr. Sydnor should have found call into question the foreign
archival research performed by eight other government
historians in this case.
Furthermore, Defendant has not established the prejudicial
effect of Dr. Sydnor’s testimony, particularly because his
testimony was not necessary to corroborate all of the
identifying evidence. If the district court abused its discretion
in admitting the evidence, then reversal is required only if the
district court’s ruling relied on the evidence to reach a result
for which there was insufficient evidence, absent the
inadmissible evidence. United States v. Joseph, 781 F.2d
549, 552 (6th Cir. 1986) (stating that “in a non-jury trial the
introduction of incompetent evidence does not require a

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No. 02-3529 United States v. Demjanjuk 19
reversal in the absence of an affirmative showing of prejudice.
The presumption is that the improper testimonial evidence,
taken under objection, was given no weight by the trial judge
and the Court considered only properly admitted and relevant
evidence in rendering its decision.”) (citation omitted); id. at
553 (“‘[t]he admission of such evidence is deemed harmless
if there is relevant and competent evidence to establish
defendant's guilt in absence of the objectionable proof.’”)
(citation omitted). Therefore, the district court did not abuse
its discretion in admitting Dr. Sydnor’s testimony into
evidence, as he was properly deemed an expert witness and
his testimony was not proven to be prejudicial to Defendant.
V.
Willful Misrepresentation of Material Facts
Defendant argues that his service with armies in Graza,
Austria and Heuberg, Germany was involuntary, and
therefore, not a basis for denial of a visa, even absent his
willful misrepresentation on his visa application in violation
of Section 10 of the DPA. Defendant also argues that his
misrepresentations regarding his involuntary service were not
material because they would not have disqualified him from
being eligible to receive a visa.
This Court reviews questions of law de novo. United States
ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 647
(6th Cir. 2003). To the extent that the questions of law are
predicated on factual findings, this Court reviews the factual
findings for clear error. United States v. Harris, 246 F.3d
566, 570 (6th Cir. 2001). Where denaturalization would be
based on an alleged misrepresentation by the citizen, there is
an issue of materiality. Kungys, 485 U.S. at 759 (1988).
Such materiality issues are also reviewed de novo. United
States. v. LeMaster, 54 F.3d 1224, 1230 (6th Cir. 1995)
(“materiality is a conclusion of law . . . . As such, we review
a finding of materiality de novo.”) (citation omitted).
20 United States v. Demjanjuk No. 02-3529
As previously stated, the Immigration and Nationality Act
provides for the denaturalization of citizens whose citizenship
orders and certificates of naturalization were illegally
procured or were procured by concealment of a material fact
or by willful misrepresentation. 8 U.S.C. § 1451(a); see also
United States v. Fedorenko, 449 U.S. at 506 (citing 8 U.S.C.
§ 1451(a)). Citizenship is illegally procured if, during
naturalization, an applicant failed to strictly comply with a
statutory prerequisite, such as lawful admittance as a
permanent resident. Id. at 514, n.36 (citing 8 U.S.C.
§ 1427(a)(1)). Lawful admission for permanent residence
requires that the applicant enter the United States pursuant to
a valid immigrant visa. United States v. Dailide, 316 F.3d
611, 618 (6th Cir. 2003). Therefore, entry in the United
States under an invalid visa is a failure to comply with
congressionally imposed statutory prerequisites to citizenship
which renders any certificate of citizenship revocable as
illegally procured under § 1451 (a). Id.
Under a Section 10 violation of the DPA, the government
must establish that an applicant’s willful misrepresentation
was material, i.e., that it had a natural tendency to influence
the relevant decision-maker’s decision. Kungys, 485 U.S. at
771. Although the government must prove its case by
evidence that is clear, convincing and unequivocal, it is not
necessary for the government to prove that the defendant
would not have received a visa if he had not made the
misrepresentation. Id.
The district court correctly ruled that voluntariness is not an
element of an assistance-in-persecution charge under the
DPA. The Supreme Court has previously ruled that “an
individual’s service as a concentration camp armed guard –
whether voluntary or not – made him ineligible for a visa.”
Fedorenko, 449 U.S. at 512. Additionally, a defendant need
not engage in “personal acts” of persecution in order to be
held ineligible for a visa, because an individual’s service in a
unit dedicated to exploiting and exterminating civilians on the
basis of race or religion constitutes assistance in persecution

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No. 02-3529 United States v. Demjanjuk 21
within the meaning of the DPA. United States v. Dailide, 227
F.3d 385, 390-91 (6th Cir. 2000).
Furthermore, the district court did not clearly err in
concluding that Defendant misrepresented and concealed his
wartime residence and activities, which included his service
at Trawniki, Sobibor, Majdenek, with the Guard Forces of the
SS and Police Leader in Lublin District, and with the SS
Death’s Head Battalion at Flossenburg Concentration Camp.
This information was material because its disclosure would
have precluded Defendant from being placed in the “of
concern,” category under the DPA, thus affecting the
disposition of his visa application as a “displaced person.”
See Fedorenko, 449 U.S. at 514-15. If Defendant had
disclosed the information regarding his service in the Austrian
and German armies during his application process, the
immigration officials would have naturally been influenced in
their decision, because service in such armies leaves
applicants ineligible under the DPA. Therefore, upon signing
his Application for Immigration Visa, Defendant knowingly
misrepresented material facts, leaving his entry to the United
States unlawful and naturalization illegally procured.
VI.
The Government’s Motion to Strike Defendant’s Reply
Brief
The Government moves to strike portions of Defendant’s
Reply brief, specifically parts IA, IB and documents in
Addenda 2 and 3, because the claims asserted by Defendant
were raised for the first time in the reply brief and the
documents were not previously before the district court. The
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;
(2) requesting to admit the notes of Dr. Sydnor not previously
before the district court; and (3) asserting a claim of perjury
against one of the Government’s witnesses. Defendant
22 United States v. Demjanjuk No. 02-3529
3Defendant originally alleged that Ad dendum 2 to Defendant’s reply
brief on app eal should also be considered by this Court; however, in
Defendant’s reply to the Government’s Motion to Strike, he abandoned
that claim, and only requests that Addendum 3 be fully considered.
unsuccessfully argues that the claims were asserted in his
initial brief and the documents attached are necessary to
illustrate the Government’s inconsistencies and insufficient
evidentiary support. The Court grants the Government’s
motion to strike, and finds that we cannot consider the newly
raised claims or additional documents for purposes of this
appeal.
As a general rule, this Court does not entertain issues raised
for the first time in an appellant’s reply brief. United States
v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001) (citing Bendix
Autolite Corp. v. Midwesco Enters., Inc., 820 F.2d 186, 189
(6th Cir. 1987)). In fact “‘[c]ourt decisions have made it clear
that the appellant cannot raise new issues in a reply brief; he
can only respond to arguments raised for the first time in
appellee’s brief.’” Id. (quoting United States v. Jerkins, 871
F.2d 598, 602 n.3 (6th Cir. 1989)).
Defendant claims that Addendum 3 to his reply brief is
necessary for the Court to adequately assess Defendant’s
contention that the pieces of evidence pointing to his
identification are without merit, and are also in violation of
the Federal Rules of Appellate Procedure.3 See Fed. R. App.
P. 10(a) (record on appeal consists of “original papers and
exhibits filed in the district court . . .”; see also Fed. R. App.
P. 10(e) (dictating the procedure for correcting or modifying
the record on appeal). Defendant’s Addendum 3 contains the
notes of Dr. Sydnor upon his examination of the
Government’s exhibit # 6, which is the transfer roster of
guards from the Trawniki training camp to the Flossenburg
Concentration camp, bearing Defendant’s name, birth date,
and birth place. Defendant sets forth no evidentiary support
establishing that these notes were before the district court, nor

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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.

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