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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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Remarkable Case Turns on Historical Documents

John Client, born in a small Polish village near the border of present day Ukraine, grew up speaking only the Ukrainian language. Shortly after his graduation from high school, World War II broke out and Germany overran Poland in a matter of days. Client left home, and found a job in a German meat processing factory. He worked there a couple years until Nazi racial policy became oppressive, so he left Germany to return to a Ukrainian speaking area with which he was familiar. John settled in the city of L'viv.

After living in public housing for a few weeks and running low on money, John responded to a newspaper ad recruiting people to be employed as police officers in the newly-formed Ukrainian Auxiliary Police. Like everything about L'viv's government, the police were controlled by the Nazis, and specifically by its SS Core.

"I was happy to be hired for something. I had to survive." Client took the position without a uniform, was issued a rifle and for several months guarded a coal pile nearby the city. Thereafter he simply walked a beat and was never promoted past the rank of Private.

During World War II, Client left the UAP, and went into the transportation business. After the war, his wife and he went to Germany in an effort to immigrate to the United States.

Sixty-five years later, the federal government took Client to court to denaturalize him. The Office of Special Investigations ("OSI"), a portion of the U.S. Department of Justice, contends Client's participation in the Auxiliary Police constituted support of a political organization sympathetic to the Nazis. Client denies this was so and denies he was ever assigned any work involving oppression of any civilian population.

A single document, admittedly written during World War II, but not in Client's handwriting and misspelling his name, purports to attribute the discharge of ammunition to Client, but there is no corroborating evidence. An active black market for ammunition made pistol and rifle cartridges worth more than their weight in gold as black market goods. Client does not know if records were falsified to cover embezzlements of ammunition.

The fascinating case included testimony from one of the world's leading historians on World War II, Dr. Deiter Pohl of the University of Munich. During extensive cross- examination by David Domina, Dr. Pohl carefully contextualized individual stories, episodes and documents related to World War II and the city of L'viv. He conceded the Auxiliary Police were not a political party, or a political or ideological movement, and neither owed, nor accepted, any special allegiance with the German Reich. Instead, its personnel performed simple patrol duty.

"This fascinating case, with the fascinating history of carnage by the Soviets, followed by the carnage by the Nazis over the Ukrainian people, brings home the stark reality of war," Dave Domina said. The defense of the accused party "never took the slightest hint of racial tone," Domina said. "Our client freely and fully admitted the terrible tragedies occurring during WWII. He denies his own involvement in those, and does so convincingly."

Additional charges against Client claimed membership in an organization with interests contrary to the United States (The Auxiliary Police), and violation of regulations concerning information required to be furnished when seeking a U.S. visa.

The client's case was tried in U.S. District Court, Eastern District of Michigan at Detroit, during September 2006. The seven-day bench trial will be followed by submission of written arguments and an eventual written judgment or order.

"Our client freely admitted in court he did not fully disclose elements about his whereabouts during WW II when he applied for a visa. His father-in-law, a Greek Catholic priest, was executed by the Soviets - simply for being a priest. Our client's brother, who appears to have also been in the Ukrainian Police for a time, was executed by the Nazis because he was a member of the resistance in Poland. The client's withheld information was intended to protect him from Soviet aggression after the war.

"This fascinating, tragic case is far less about the Holocaust than the ravages of war," Domina said. "During Soviet occupation, six million Ukrainians were killed between 1933 and 1941. Under Russian domination, another estimated 5-6 million Ukrainians were killed by the Nazis. A million and a half of these persons were Jewish. All were innocent victims."

Domina was commended by OSI attorneys and the court for "a highly professional presentation" during trial.

"The subject matter here is so sensitive. Only the highest degree of professionalism can permit presentation of the defense against atrocious and horrible charges. Any other approach shuts the audience down, and makes it impossible for them to hear, with objectivity, the tragedy of the Ukrainian people - a tragedy that is necessary as context for a case of this kind," Domina commented. He continued, "There is little evidence the Ukrainians had any political or ideological agenda. The Auxiliary Police numbered between 400 and 600 total people, and by all accounts virtually all their focus was on ordinary constabulary duties."

Domina commended the government's lawyers for their "respectful and appropriate examination of our client, who is 85 years of age and suffers some infirmity, during his appearance on the stand".

Post trial briefs will be submitted in October, and a decision is expected after the first of the year.

October 03, 2006
David A. Domina

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

Categories: Complex Litigation

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