U.S. District Judge Dan Aaron Polster ruled that a 1985 FBI memo that questioned the legitimacy of an identity card linked to Demjanjuk was immaterial, and it was based on speculation and mistaken beliefs.
An attorney for Demjanjuk, Dennis Terez, said "we're evaluating all of our options." Demjanjuk can appeal.
The 91-year-old former Seven Hills man was convicted in May [12May2011] 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 Sobibor, Poland. The guard pass has been a key document that judges say places Demjanjuk in Nazi service.
Polster ruled after a volley of filings earlier this year. Demjanjuk's attorneys wanted him returned from Germany to the United States because they say prosecutors withheld documents that could have helped his defense when he was tried in U.S. District Court in Cleveland in 2001. A year later, a judge stripped Demjanjuk of his citizenship, a move that ultimately led to his deportation to Germany in 2009 and subsequent trial. Demjanjuk remains in Germany where he's free on appeal.
Demjanjuk's attorneys cited the FBI memo that said the Nazi card could be a type of document that "was quite likely fabricated by the KGB." They stressed the report was not turned over to the defense, and its impact in Demjanjuk's case is incalculable.
But federal prosecutors said in court documents in October that they had no idea that FBI agents in Cleveland had ever looked into Demjanjuk. They said the report by agent Thomas Martin was based on conjecture and misinformed impressions, not evidence. Martin, according to prosecutors' filings, never saw the card or had it tested for a forgery.
Polster agreed. He said that because the internal FBI documents are merely speculative, they did not need to be turned over to the defense. He also appeared to lash out at Demjanjuk, whom federal judges have said spent time as a guard at several Nazi concentration camps. Demjanjuk has denied those claims.
"Despite numerous opportunities, Demjanjuk has never provided a single, consistent accounting of his whereabouts during the war years 1942 to 1945," Polster said.
In 1993, an appeals court ruled prosecutors failed to turn over key documents to Demjanjuk's lawyers. Polster said the case from 2001 "did not suffer from the same problems."