Appendix — Bauer v. United States
Supreme Court brief1981
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80-1316 a es US.
No. ree & 186
NO’ R STEVAS,
IN THE GLENN
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
JOSETTE CLAIR BAUER, Nee GEISSER,
Petitioner,
UNITED STATES OF AMERICA and
HECTOR GRABER, CONSUL GENERAL OF
THE GOVERNMENT OF SWITZERLAND,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
LYNN PICKARD
Post Office Box 2423
Santa Fe, New Mexico 87501
(505) 988-4469
WILLIAM C. MARCHIONDO
Post Office Box 568
Albuquerque, New Mexico 87103
(505) 247-0751
CHARLES LOUIS ROBERTS
505 Caples Building
El Paso, Texas 79901
(915) 532-1601
Attorneys for Petitioner.
February 4, 1981
eeinestieninteiianemeall
Washington, OC. + THIEL PRESS + (202) 638.4621
H.
(2)
TABLE OF CONTENTS
Opinion, Petition of Getsser, No. 79-3869
cote Car., Tee Cet. 10, TPG) ook ccs wee een la
District Court’s Oral Ruling, Jn the Matter
of the Petition of Josette Geisser, Nos. 73-
772 Civ-WM and 73-773 Civ.-WM (S.D.
ee A oe en 25a
Final Judgment Granting Writ of Habeas Corpus,
Etc., In the Matter of the Petition of Josette
Geisser, Nos. 73-772 Civ-WM and 73-773 Civ-
WM (S.D. Fla., Aug. 8, 1973) .............- 28a
Opinion, Geisser v. United States, No. 73-3678
(ote Ce., Ties Biay 27, 1O7G) 0s oc cscs es 32a
District Court’s Opinion, Petition of Geisser,
Nos. 73-772-Civ-EM, 73-773-Civ-WM (S.D.
Oe ge ee | a re 56a
Opinion, Petition of Geisser, No. 76-3324 (5th
Civ. Tile Frame BE, BOTT) cs ce eee en ee 63a
District Court’s Order, Jn the Matter of the Peti-
tion of Josette Geisser, Nos. 73-772-Civ-WM and
73-773-Civ-WM (S.D. Fla., Oct. 2, 1979)...... 87a
Judgment, Petition of Geisser, No. 79-3869 (5th
Cir., Oct. 10, 1980, issued as mandate, Nov. 14,
SE oe eb eh oka ead ee ees 89a
Order Denying Rehearing, Petition of Getsser,
No. 79-3869 (5th Cir., Nov. 6, 1980) ........ 9la
Constitutional Provisions...............00+ 93a
Fifth Amendment to the United States
CCE Te re ee ere 93a
Sixth Amendment to the United States
OI oe are ee ee 93a
(ii)
Treaty between the United States and Switz-
erland for the extradition of criminals........ 94a
a 103a
ce Oe ee ao 665 a ok awe we a 103a
Se ee es es sc ook ed eee eae ee 103a
PMR rs PUR 5k 8 ne he ee ke os 104a
Order Certifying Extraditability, Messmer v.
Geisser, No. 67-1010-CIVIL-CA (S.A. Fla.,
oe eo) ee era a ee 105a
Excerpts from evidence at 8/8/73 hearing... .107a
Letter from William Earle.............. 107a
Letter from Alan Yarborough........... 108a
Testimony of Josette Bawer....... 02222. 109a
Testimony of James Hogan............. lila
Testimony of William Earle............. 112a
Testimony of Michael Osman ........... 113a
la
APPENDIX A
In the Matter of the Petition of Josette
GEISSER, Divorced Bauer, a/k/a
Paulette Louise Fallai.
Josette Clair BAUER, Nee Geisser, a/k/a
Paulette Louise Fallai,
Petitioner-Appellee,
v.
UNITED STATES of America,
Respondent-Appellant,
Hector Graber, Consul General of the
Government of Switzerland,
Intervenor-Appellant.
No. 79-3869.
United States Court of Appeals,
Fifth Circuit.
Oct. 10, 1980.
Before HENDERSON, POLITZ and WILLIAMS, Cir-
cuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
This case comes to the Court for the third time.
Josette Bauer nee Geisser is a Swiss citizen. On Septem-
ber 13, 1964, she escaped from prison in Switzerland.
When she escaped, she had more than two and one-half
years remaining of a sentence for aiding and abetting in
the murder of her father for financial gain.
On August 31, 1967, she was arrested in Miami,
Florida, with an accomplice, Willy Lambert. They were
charged with attempting to smuggle twenty eight
pounds of heroin into the country. She and her com-
2a
panion were indicted by a grand jury for felonies which
would normally lead to sentences of thirty to forty
years in prison.
The Swiss government was immediately interested in
the apprehension of Josette Bauer and instituted ex-
tradition proceedings under the 1900 extradition treaty »
between the governments of Switzerland and the United
States. 31 Stat. 1928. An extradition hearing was held
in the United States District Court for the Southern
District of Florida. Bauer and her counsel participated.
Judge Atkins issued an order dated November 2, 1967,
certifying that Bauer was subject to extradition to
Switzerland.
Shortly thereafter, the United States Attorney’s
Office in Florida concluded a plea bargain with Bauer
and Lambert under which it was agreed that they
would reveal all they knew about the conspiracy to
smuggle heroin from France and Switzerland in which
they were involved and that they would testify in the
event there were trials of others involved in the con-
spiracy. In turn, the government promised that they
would be reindicted for lesser offenses which would
lead to sentences of no more than seven years, that
they would be paroled after three years, and that the
government would make its “best efforts’ to avoid
their “deportation” to France or Switzerland.!
'The record reveals that this last aspect of the plea bargain
was confused. At one point in this case the District Judge held
that the plea bargain was an absolute promise that Bauer and
Lambert would not be sent to France or Switzerland. But, as
shown later in this opinion, it is now settled that the plea
bargain obligated the government to make its “best efforts” to
avoid the return of Bauer and Lambert to France or Switzerland.
[footnote continued]
3a
In accordance with the plea bargain, lesser indict-
ments were obtained, and Bauer and Lambert were
sentenced to seven years.
It has been agreed throughout that Josette Bauer
upheld her end of the plea bargain to the greatest
possible extent in revealing information and serving as a
witness. She was characterized as a witness with an
outstanding memory for names, dates, places, and other
facts. The United States Attorney said her testimony
was a major factor in breaking up a large international
conspiracy to smuggle heroin into the United States.”
On October 10, 1969, Bauer escaped from federal
prison. She had served just over two years of her seven
year sentence, short of the three year period at which
she had been promised parole. There is remarkably little
reference in subsequent opinions in the District Court
concerning this escape. There is some indication that
the Federal District Judge, Judge Mehrtens, accepted
the explanation that she had escaped because of her
fear of being extradited after three years because she
had overwhelming fears for her life if she was returned
to Switzerland.
It also should be pointed out that the plea bargain was
inexact. It was stated in terms of “deportation” to France or
Switzerland, Geisser v. United States, 513 F.2d 862, 864 n.4,
868 n.9 (5th Cir. 1975). The issue is not deportation at all; it is
extradition. Extradition is subject to specific international obliga-
tions while deportation is essentially at the option of the
deporting country.
The details concerning the plea bargaining and the effective-
ness of Josette Bauer’s testimony are related in a letter to
Bauer’s counsel by William Earle, Special Attorney to the
Department of Justice. This letter is reproduced in full in
footnote 5 of Chief Judge Brown’s opinion rendered the first
time the case reached this court, 513 F.2d 862, 865 (1975).
4a
Bauer was apprchended in Albuquerque, New
Mexico, on June 25, 1972, where she was living ap-
parently as a law abiding and respected citizen under
the name of Jean Baker. She was operating a school in
horsemanship for children.
Because of her escape, the Department of Justice ©
disavowed the plea bargain. No attempt was made to
obtain her parole at the end of three years, and she was
sentenced to a consecutive eighteen months in prison
for her escape.
When it appeared that the Department of Justice was
no longer going to undertake to live up to the plea
bargain, Bauer brought this proceeding for habeas cor-
pus, for injunctive relief against extradition, and for
such other relief as would force the government to
carry out its promises in the plea bargain.
Judge Mehrtens, United States District Court for the
Southern District of Florida, granted the petition for
habeas corpus after a hearing on August 8, 1973. The
order directed that Bauer be discharged from any
detention and that the order of extradition be vacated.
Further the order “forever restrained” the United States
government from executing or attempting to execute
the terms of the extradition order.
On appeal, this Court vacated and remanded. Getsser
v. United States, 513 F.2d 862 (5th Cir. 1975). Chief
Judge Brown, writing for the court, found that the
federal government had an obligation to carry out the
plea bargain made, and that it had not done so. The
case was remanded for consideration by the involved
governmental officials at the highest level in order for
them to “state unequivocally the position of the United
States government.” 513 F.2d at 872. The Court went
on to require that in the event the position taken by
5a
the government did not result in the release of Bauer,
the District Court was directed to conduct further
hearings to determine just what the government had
done with respect to the promise “to use our best
efforts”. .
Following this remand, the United States government
undertook steps to exercise its “best efforts”. Deputy
Attorney General Harold Tyler wrote Secretary of State
Kissinger reporting the facts, including the plea bargain.
The letter made a brief formal request that the Sec-
retary of State assist in “resolving this vexing problem”’.
Approximately five months later Deputy Secretary of
State Robert S. Ingersoll responded to the Department
of Justice. He detailed exchanges of notes with the
Swiss government in which the Swiss government main-
tained its request for extradition and insisted that not
granting extradition would violate the obligation of the
extradition treaty. The Ingersoll letter further detailed a
meeting in the Department of State in which the Swiss
government remained adamant. Another note was then
sent to the Charge d’Affaires of the Swiss embassy
urging the government to withdraw the extradition
request. By a letter to the Secretary of State on March
15, — the Swiss government still insisted on extradi-
tion.
Upon rehearing in the District Court on May 21,
1976, Judge Mehrtens found that these actions by the
government were “too little and too late” to discharge
>The complete text of the exchange of letters between
Deputy Attorney General Harold R. Tyler and Deputy Secretary
of State Robert S. Ingersoll has been printed in footnotes 1 and
2 to the second appearance of the case in this Court. 554 F.2d
698, 700 (1977). The crucial letter from the Swiss government,
dated March 15, 1976, is printed in full at footnote 7, infra.
6a
its obligation contained in the plea bargain. The United
States government and the Consul General of Switzer-
land who had been permitted to intervene again ap-
pealed. This Court again vacated and remanded. Gersser
v. United States, 554 F.2d 698 (5th Cir. 1977). Judge
Wisdom wrote the opinion for the majority of the
panel. In evaluating the efforts detailed above, the
majority found a fatal weakness in the failure of the
Department of Justice to stress the particular emphasis
upon Bauer’s fears for her life if she were extradited to
Switzerland. The Court gave the government “a reason-
able time in which to use its ‘best efforts’ to prevent
the extradition of Bauer to Switzerland or France”’. 554
F.2d at 706.
Judge Coleman dissented. He asserted that the
solemn treaty obligation to extradite a Swiss citizen to
Switzerland under these circumstances meant that it is
impossible for any United States Attorney to make
binding the kind of plea bargain which had been
undertaken in this case. He would have entered an
order directing immediate compliance with the treaty.
After this decision, the government again undertook
to persuade the Swiss government to withdraw its
extradition request. A thorough and detailed letter was
written by Peter F. Flaherty, Deputy Attorney General,
to Secretary of State Vance. The Secretary of State in a
diplomatic communication to the Swiss ambassador
requested that the government of Switzerland withdraw
its extradition demand. This letter forwarded the
Flaherty letter and adopted its contents. When the
Swiss government again refused to withdraw its request
for extradition, two informal meetings were held in the
Department of State. The Swiss ambassador then com-
municated again with his government in an attempt to
7a
get the government to withdraw. These final efforts
failed. The texts of the communications involved in
these latest efforts of the United States government
appear later in this opinion where an evaluation is made
of the attempts by the United States government to get
the Swiss government to change its mind.
Following these written efforts, but before the last
meetings in the State Department, District Judge
Mehrtens, after hearing on October 2, 1979, again
vacated the extradition order. He directed that Bauer be
released from any form of detention and be authorized
to continue to reside permanently in the United States.
The Judge characterized the efforts briefly described
above as “nominal” and “wholly inadequate to fulfill”
the government’s obligation under the plea bargain.
The government of the United States and the Consul
General of Switzerland have now again appealed to this
Court.
I. Retained Jurisdiction
A preliminary matter must be resolved. The Consul
General of Switzerland in his appeal to this Court urged
that the retention of jurisdiction by the Court at the
conclusion of its 1977 majority opinion required that
this appeal be heard by the same panel which heard the
appeal at that time. The majority opinion in that case
said, ‘While retaining jurisdiction we remand the case
to the District. Court. .”, Getsser v. United States, 554
F.2d 698, 706 (5th Cir. 1977). Prior to orgal argument
in the current appeal, this panel concluded this conten-
tion was without merit.
In the 1977 opinion quoted immediately above there
was no specific reference to the panel which heard the
case. The word “we” was a reference to the Court and
8a
not a particular panel. There have been cases where a
panel of this Court has retained jurisdiction as a panel.
We conclude that such a retention of jurisdiction by a
particular panel must be specific. The normal and usual
retention of jurisdiction by a court is a retention of
jurisdiction by the court in its regular and normal judi-
cial processes and not a retention of jurisdiction by a
particular judge or judges of that court.
The contention that this appeal had to be heard by
the same panel which heard the 1977 appeal and
retained jurisdiction for the Court is unfounded.
II. The Facts and Law Controlling
the Case
Two prior decisions of this Court have established
the facts and the law controlling this case except
insofar as there have been additional efforts by the
United States government to carry out the obligation of
the plea bargain since the decision of 1977. It is now
established that:
1. There was a plea bargain under which the United
States government promised Bauer certain concessions
in return for her testimony and other information
relating to the conspiracy to smuggle heroin into the
United States from France or Switzerland.
2. Josette Bauer completely and effectively carried
out her oblications under the plea bargain.
3. Earlier issues concerning the time that Bauer
served in federal prison are now moot.
4. As part of the plea bargain the government prom-
ised to exert its “best efforts” to try to avoid the
extradition of Bauer to Switzerland or France. Earlier
assertions by Bauer that the plea bargain was an
absolute promise that there would be no extradition
9a
have been resolved by the 1977 decision which draws a
clear conclusion that the plea bargain was a “best
efforts” promise only.
5. The opinions of this Court both in 1975 and
1977 decisions make clear that if the United States
government has not expended its “best efforts” in
accordance with the plea bargain Josette Bauer’s con-
stitutional rights have been violated.
Both opinions rely upon the case of Santobello v.
New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d
427 (1971). The Supreme Court there held that a plea
of guilty induced by a promise of the government in a
plea bargain is a binding obligation contractual in
nature on the government. If a court’s decision is made
in response to such a plea of guilty, and then the
United States government does not carry out its prom-
ises in the plea bargain, the constitutional due process
rights guaranteeing a fair trial are violated.
In Santobello the Court held that the constitutional
rights of the accused would be infringed even if there
was no showing of an adverse impact from the failure
to carry out the promise. In Santobello the judge
disavowed following the sentencing recommendation
which was made in violation of the plea bargain. The
Court held, nevertheless, that inducing the guilty plea,
and then failing to carry out the promise obtained in
the plea bargain, did result in an infringement of the
constitutional rights of the accused who had plead
guilty. Bauer’s jeopardy from serious consequences is
obvious if the government does not carry out the
promise made in the plea bargain.
Much of the argument made on behalf of Bauer in
this case, and a number of the questions asked by the
District Court as this case followed its labyrinthine
10a
course failed to define clearly the nature of the consti-
tutional right which Josette Bauer claims. Upon analy-
sis, it is quite clear that Josette Bauer can claim a
constitutional infringement of her right to a fair trial
only if it is determined that the United States govern-
ment has violated the plea bargain.
If the United States government has not complied
with the plea bargain, her constitutional claim is a valid
one and a purported treaty obligation of the United
States government cannot override an individual consti-
tutional right. Judge Brown so indicated in his opinion
in the 1975 case. Getsser v. United States, 513 F.2d
862, 869 fn.11 (5th Cir. 1975) (citing Red v. Covert,
354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)).
But if the United States government has complied with
the plea bargain then Bauer has no constitutional claim.
Succinctly, this means that Bauer’s claim of con-
stitutional right has no independent strength beyond
the resolution of the single question of whether the
government has carried out its promise under the plea
bargain which was made.
Ill. Has the Government Now Exerted
its “Best Efforts’’?
Before the 1975 decision in this Court, the govern-
ment had exerted no efforts of any consequence to
carry out its plea bargain obligation concerning extradi-
tion. It took the position that Josette Bauer’s escape
from prison in 1969 and her almost three years as a
fugitive justified a disavowal of the government’s obliga-
tion. The 1975 decision confirmed a holding to the
contrary. Chief Judge Brown, recognizing the “best
efforts” promise, stated: “The best effort would, at a
minimum, be a strong presentation to the Department
lla
of State as to what had been promised and the likely
dangers to the bargainee-defendant-witness.” Geisser v.
United States, 513 F.2d at 869.
The 1977 decision of this Court found that the
government had not complied with the mandate of the
1975 decision, particularly with respect to “the likely
dangers” to Bauer. The 1977 decision found the efforts
which had been made by the government consisted
realistically only of a formal request that Josette Bauer
not be extradited. There was no significant mention of
the extremely important role which she had played in
breaking up this international heroin smuggling con-
spiracy. Even more to the point, where was no specific
mention of the great fears for her life and safety which
she harbored if she were extradited, and the conclusion
of Department of Justice personnel that her fears were
well-founded.
The Court in the 1977 opinion laid down four
specific matters which had to be strongly advanced by
the government to achieve “best efforts”. These re-
quired governmental assertions were:
(1) The reasons underlying the original bargain, (2)
Bauer’s admirable performance in keeping her part
of the agreement, (3) her “intense fear of re-
prisals”, and (4) the conclusion of Government
agents on the case that her fears were well-
founded.
Petition of Getsser, 554 F.2d 698, 703 (5th Cir. 1977)
(enumeration added).
The Court in its opinion then went on to say: “Her
intense fear for her life was the predicate for the
bargain, and the Government’s failure to explain fully
and strongly this part of the agreement reduced its
advocacy of her cause almost to an empty gesture.” Jd.
12a
at 704. The Court concluded, “The Government must
again try to prevent Bauer’s extradition to Switzerland
or France. We are not convinced that the vast powers
of persuasion at the command of the Departments of
Justice and State have been adequately applied to
Bauer’s cause.’’ /d. at 706.
The United States Government began to act im-
mediately after the 1977 decision was handed down on
June 22. In late June or early July, the Assistant Legal
Advisor for Management of the Department of State
and also the Swiss Desk Officer held an informal
conference on the case with the First Secretary to the
Swiss embassy. As a result of this conference, the Swiss
authorities replied in a diplomatic note of July 22,
1977, that they wished to “uphold their request for
extradition of the aforementioned Swiss citizen, first
issued in the embassy’s note of September 22, 1967,
based on the treaty of extradition of May 14,
1900,...” Next, on September 2, 1977 Deputy At-
torney General Peter F. Flaherty wrote a five page
letter to Secretary of State Vance detailing the Bauer
case. Printed in the note are the critical statements in
that letter which undertook to meet the requirements
laid down by the Court of Appeals in its 1977 decision.
They begin on page 3 and run to the end of the letter.*
In reliance upon our agreement with her, Bauer cooperated
fully with our Government. She gave crucial testimony which
resulted in the conviction in this country of a major narcotics
trafficker. The District Judge who presided at that trial described
her as one of the most impressive witnesses he had ever
encountered. In addition, she provided intelligence information
that our representatives regarded as invaluable. Her almost “total
recall”, to employ the description used by the Customs agent
who repeatedly dealt with her, led to at least ten arrests abroad
[footnote continued]
l3a
It will be observed that the four requirements stated
by this Court in its 1977 opinion were covered in detail
in that portion of the letter quoted in the footnote.
and otherwise contributed significantly to efforts to frustrate the
international narcotics trade. This country and others have
benefited from Ms. Bauer’s full cooperation. To a significant—
probably decisive—degree, that cooperation was secured by our
assurance that every effort would be made to prevent her
extradition. She is accordingly entitled to every consideration. In
view of her important contribution to worthy law enforcement
goals and our promise to her, she is certainly entitled to have us
pursue any proper avenue which might persuade the Confedera-
tion of Switzerland to withdraw its request for her extradition.
The Court of Appeals stated that Ms. Bauer’s “intense fear for
her life was the predicate for the bargain.” We have no reason to
quarrel with that conclusion. Indeed, it accurately reflects the
impression of our representatives who dealt with her at the time.
Ms. Bauer feared that if she were returned to Switzerland after
having provided information on international narcotics smuggling,
she would be killed. Her fear seemed fully warranted to our
officials at the time, as it would to anyone familiar with the
sordid business of narcotics trafficking.
Part of the bargain permitted her to enter a plea of guilty to
reduced charges. It later—and somewhat unexpectedly—became
necessary for her to testify against a major narcotics smuggler,
the “traffic manager’? who had supervised Bauer. Because her
cooperation would thus become public, she initially balked.
According to the agent who dealt with her throughout this
period, “Bauer would break down and actually tremble for fear
of what might happen” as a result of her testimony against her
former boss in the narcotics smuggling conspiracy. In order to
console her and to secure her continued cooperation, Bauer was
told that we would almost certainly be able to prevent her
extradition to Switzerland. According to the same agent, Bauer’s
fear existed “‘because of some very prominent people, including a
former attorney in Switzerland, who had facilitated (her) escape
(in Switzerland and) had in fact negotiated with some of his
associates to facilitate her escape from prison and ability to flee
the country.” Subsequently the same agent contacted Bauer
while she was incarcerated and advised her that Swiss authorities
wished to interview her. According to the agent, Bauer became
[footnote continued]
l4a
Secretary of State Vance then by diplomatic letter
dated October 26, 1977, again asked the Swiss govern-
“quite upset’ and indeed “almost panicked” because ‘‘some of
the people that she had provided information on, were people
of important positions, who allegedly were outstanding citizens,
who were in high places, not necessarily government places, but
well established in the business world.”’
While Bauer’s intense fear of reprisal is established by her own
testimony, that of her lawyer, and the representations of two
Department of Justice attorneys as well, it is the Customs agent
who was most frequently in contact with her and thus in the
best position to assess the matter. We are accordingly enclosing
with this letter a copy of the agent’s letter to her counsel,
adopted and affirmed at the original hearing on this matter, for
your consideration. We believe it will enable a full appreciation
of Ms. Bauer’s predicament.
In the context of the ugly business of narcotics smuggling, we
struck a bargain with Josette Bauer. Significant breaks in this
enormously lucrative area are few. It was believed that her
assistance would help control the international narcotics trade
and it, in fact, had precisely that effect. Nonextradition, with its
consequent avoidance of her remaining two and one-half year
term of incarceration in Switzerland, may have seemed a reason-
able price to pay for her cooperation at the time. As it turns
out, however, with opportunity for reflection and thorough
analysis, Switzerland’s right under the treaty to her extradition
was not ours to bargain with. We do, however, believe that the
equities redound to her favor in any event. It is for this reason
that we request that you make known to the Confederation of
Switzerland the importance and extent of Ms. Bauer’s assistance
and the fact that this assistance was attained only by allaying her
intense fear of reprisal by effectively assuring her that she would
not be returned to Switzerland. Perhaps a thorough and forceful
demonstration of these matters will persuade Switzerland to
withdraw its extradition request, particularly if that Government
understands the importance of Bauer’s cooperation to the world
community. It is our sincere hope that this course will avoid Ms.
Bauer’s extradition.
Please know that we greatly appreciate your Department’s
efforts, both past and anticipated, to resolve this painful problem
which is not of your own making. We shall attempt to continue
further court proceedings pending our receipt of your advice at
your earliest convenience.
15a
ment to withdraw its request for the extradition of
Josette Bauer. This diplomatic message is reproduced in
full below.® Two aspects of the contents of this letter
merit particular stress. First, the Jetter transmitted to
5 The Secretary of State presents his compliments to His
Excellency the Ambassador of Switzerland had has the honor to
refer to the note of the Embassy of Switzerland dated July 22,
1977, concerning Mrs. Josette Geisser-Bauer.
The United States Government has already gone to the United
States District Court twice and to the United States Court of
Appeals twice in support of the efforts of the Government of
Switzerland to extradite Mrs. Bauer. As the Ambassador knows
the case was again remanded to the same District Court which
has twice enjoined her extradition.
The Deputy Attorney General has written the enclosed letter,
dated September 2, 1977, which makes clear that the Justice
Department believes that the assurances given to Mrs. Bauer
against her being returned to Switzerland were necessary to
obtain her “invaluable” information to “frustrate the inter-
national narcotics trade.” The Department of Justice has vouched
for the fact that Mrs. Bauer feared for her life because of her
assistance to the United States, should she be returned to
Switzerland. The Deputy Attorney General concludes by ex-
pressing “sincere hope” that a further demonstration of the
importance of Mrs. Bauer’s cooperation to the world community
will persuade the Government of Switzerland to withdraw its
extradition request. The Secretary of State wishes to express that
same hope.
In the light of the facts set forth by the Deputy Attorney
General and of the course of the previous litigation, it appears
unlikely that the courts of the United States will permit Mrs.
Bauer’s extradition to Switzerland.
In the circumstances, the Secretary of State respectfully urges
the Government of Switzerland to reconsider the decision in its
note of July 22, 1977, and withdraw its request for the
extradition of Mrs. Bauer. In the view of this Department that
action would be far preferable, from the standpoint of bilateral
relationships and of legal precedent, to the expected action of
the District Court to again enjoin that extradition on grounds
which the United States Government would find difficult, if not
impossible to challenge.
l6a
the Swiss government the entire letter from the Deputy
Attorney General. Then the Secretary of State adopted
the statement of the Department of Justice in its letter
which emphasized the importance of persuading the
government of Switzerland to withdraw its request.
Second, and even more persuasive, the Secretary of
State clearly implied that because of the actions of the
courts, the United States government found itself in an
exceeding embarrassing position which might force it to
violate the extradition treaty. The Secretary then made
the plea that the Swiss government withdraw its request
to avoid placing the United States government in this
difficult position.
The Court accepts this communication by the Sec-
retary of State as a strong presentation by the United
States government. The Secretary placed the govern-
ment in the position of being in serious difficulties
because of this matter, and, therefore, asking the Swiss
government to help out.
In spite of this presentation by the Secretary of
State, the Swiss government again asserted its request
for extradition in a diplomatic letter dated November
21, 1977. In support of its continued request, the
embassy forwarded to the Department of State on
February 8, 1978 statements from the heads of the
Departments of Justice and Police of the two cantons
concerned, Berne and Geneva. These officials certified
that they would take all necessary steps to preserve the
saftey of Bauer. In both instances outstanding safety
records in the prisons were cited. It was stated that in
the prison where Bauer would likely complete her
prison term, “‘no case of aggression or homicide (has)
ever occurred”. In the covering letter the Swiss federal
4“
government transmitted these certifications as “ap-
17a
propriate assurances for the complete safety of Mrs.
Geisser’’,
Finally, shortly after the decision by Judge Mehrtens
which is now being reviewed on appeal, the Department
of State undertook further steps. On November 9,
1978, a diplomatic meeting was held at the Department
of State between James E. Goodby, the Deputy Assist-
ant Secretary for European Affairs, and others with
Swiss Ambassador and his two first secretaries. The text
of the memorandum covering this meeting is repro-
duced in full in the note.®
SSUBJECT: Bauer Extradition Case
PARTICIPANTS:
USG
James E. Goodby, Deputy Assistant Secretary
for European Affairs
James H. Michel, Deputy Legal Advisor
Knute E. Malmborg, Office of Legal Advisor
R. C. Porter, EUR/CE (Notetaker)
Switzerland a
Raymond Probst, Ambassador
Daniel Dayer, First Secretary
Hans-Ulrich Mazenauer, First Secretary
Mr. Goodby apprised Ambassador Probst of the US govern-
ment’s wish that Switzerland withdraw its request for the
extradition of Josette Geisser Bauer. He summarized the case,
noting:
—Mrs. Bauer’s testimony was the key to successful procecu-
tion of an international drug syndicate,
—She feared for her life were she to be returned to Switzer-
land,
—Assurances had been made to Mrs. Bauer by a Justice
Department representative that she would not be extradited
(without the knowledge and consent of the State Department)
and
J
—Mrs. Bauer’s extradition continues to be blocked by the US.
[footnote continued]
18a
In this discussion the acute embarrassment of the
United States government as well as the fears of Josette
Bauer for her life and safety were clearly reiterated. But
Ambassador Probst commented that Swiss authorities could
not accept the view that Mrs. Bauer’s life would be threatened in |
a Swiss prison because of her testimony against the drug ring.
Mr. Michel explained further that the Court had obliged the
government to make its “best efforts” to avoid Bauer’s extradi-
tion, a formulation based upon the assurances given her. These
assurances had significantly affected Bauer’s rights as an in-
dividual under the Constitution. Mr. Michel acknowledged that
even after protracted litigation the Court might not be satisfied.
He asked that the Swiss Government avoid an impasse by
withdrawing its extradition request.
Ambassador Probst responded he understood the US govern-
ment’s obligations to Mrs. Bauer, and noted that there were also
obligations to Switzerland under the treaty. He would convey the
request to his government, but he personally doubted the
extradition request would be withdrawn.
The Swiss Ambassador reviewed the US Swiss Extradition
Treaty. He noted the legal obligation of the US government to
extradite under the agreement. He commented that if extradition
cannot be made, then this is the fault of the US government.
One branch of the government had given assurances that should
not have been given because of the treaty. As a lawyer, it was
Probst’s personal view that there must be US recognition of the
Swiss right to extradite. “‘We must be careful,” said Probst, “‘not
to create a precedent to be used in another court, in another
case’,
Responding, Mr. Goodby assured that the US government
does not question the legal right of the Swiss government to
extradite Mrs. Bauer and that the Bauer case is not viewed as a
precedent. Mr. Miche! noted that the Bauer case was unique in
fact, in its complications. He could not imagine a legal precedent
being drawn from the case. Should the Swiss government agree
to withdraw its extradition request, the US would regard the step
as not impairing in any way the US obligation to respect the
treaty.
Probst and Dayer returned again to the question of a possible
precedent in Swiss withdrawal of the Bauer extradition request.
[footnote continued ]
19a
these assertions fell upon skeptical ears. The Swiss
Ambassador did again consult with his government,
however. In another meeting at the Department of
State on December 18, 1978 between Mr. Goodby and
the Swiss Ambassador, the Ambassador confirmed that
the Swiss government had again declined to withdraw
its request for extradition. He stressed that the Swiss
government relied upon the reasons set out in its letter
of March 15, 1976. The text of this letter, the most
complete and thoroug’: letter which the Swiss govern-
ment sent in this case, appears below.’
Probst worried that it might create a blueprint for fighting
extradition.
Michel countered, arguing that there is now a full awareness
of the error made in the Bauer case. The US Attorney’s manual
has been amended by the Department of Justice with instruc-
tions that assurances not be given which might impair the
fulfillment of US treaty commitments.
He suggested that the worst precedent would be a continua-
tion of the case, risking an adverse judicial decision.
Dayer interjected that the plea bargaining and the US At-
torney’s assurances in this case had come after the extradition
proceeding. Michel observed that it might be better to litigate the
issue of possible conflict between a treaty and a plea bargain in a
different case and to resolve the Bauer case through diplomatic
means by withdrawing the Swiss extradition request.
71 have the honor to refer to your letter of February 13,
1976, and to transmit the views of the Swiss Government
relating to the extradition of Josette-Clair Geisser, divorced
Bauer.
The Swiss Government has given long and careful considera-
tion to the matters discussed in your letter. It has concluded
that, in order to preserve its important interests in the ad-
ministration of justice and its rights under the treaty in question,
it must respectfully maintain its request for Ms. Geisser’s ex-
tradition.
[footnote continued]
20a
It is the conclusion of the Court that these efforts
undertaken by the United States government since the
The Swiss Government continues to feel that the extradition
of Ms. Geisser is called for by the United States’ treaty obliga-
tions to Switzerland and by international law and that therefore
the extradition should not be affected by internal United States
matters. Further, from a practical viewpoint, the Swiss Govern-
ment feels that a withdrawal of its request might itself cause
harm to the extradition relations between the United States and
Switzerland.
As you know, Ms. Geisser, a Swiss citizen, was tried and
convicted of aiding and abetting the murder of her father for
financial gain in Switzerland. She escaped from Swiss confine-
ment while still having to serve about two-and-a-half years of her
sentence. I am sure you can appreciate the strong feeling in
Switzerland that Switzerland’s system of justice, and our public’s
deep expectations concerning the fair administration of justice,
make it a matter of considerable importance that she be returned
to Switzerland to complete her sentence for this heinous crime.
Upon learning of Ms. Geisser’s arrest in Florida the Swiss
Government immediately took all necessary steps to obtain her
extradition, requesting the Department of State to arrange for
Ms. Geisser’s provisional arrest and detention on September 18,
1967, formally requesting her extradition by the Secretary of
State on September 22, 1967, filing an extradition complaint in
the United States District Court for the Southern District of
Florida on October 4, 1967, obtaining an arrest warrant from
that court on October 4, 1967, and obtaining an extradition
order from that court on November 21, 1967. Thus, as of
November 21, 1967, the Swiss Government had completed all
the steps necessary for Ms. Geisser’s extradition and merely
awaited the decision to extradite by the Department of State.
We have now learned that Ms. Geisser contends that—
subsequent to and in spite of the above efforts—she and certain
employees of the Department of Justice, without notice to the
Swiss Government or the District Court, entered into an agree-
ment, one purpose of which was to prevent her extradition to
Switzerland. If this alleged agreement were enforced in the
manner requested by Ms. Geisser, the inevitable consequence
would of course be to nullify the District Court’s order of
*
[ footnote continued]
2la
1977 decision comply with the promise of the govern-
ment to exercise its best efforts to avoid the extradition
of Josette Bauer to Switzerland or France.
These efforts precisely meet the requirements set up
by this Court in its decisions in 1975 and 1977. The
phrase “best efforts” cannot be interpreted as an abso-
lute. There can be no test demanding that the govern-
ment has been shown to have failed to exercise its best
efforts so long as the extradition takes place. It is clear
from the 1975 and 1977 decisions that compliance with
the plea bargain does not require a guarantee that Bauer
will not be extradited to Switzerland.
“Best efforts” must be interpreted realistically in the
world of international relations. Best efforts cannot be
interpreted as the “strongest possible efforts’. The
United States need not go to war with Switzerland to
enforce this plea bargain. Nor is it required to break
diplomatic relations or take other extreme international
measures. This Court could not accept the conclusion
that best efforts would require the Secretary of State to
travel to Switzerland and talk personally with the top
members of the Swiss government. This would require
the expending of all of our diplomatic strength and
prestige on this particular case. Best efforts can only
mean full pursuit of the cause through diplomatic
channels in dealing with a friendly nation.
The United States government went beyond a request
with reasons stated. Jt indicated a measure of humilia-
extradition and the extradition rights of the Swiss Government.
As I am sure you realize, the Swiss Government feels that such
activities should not affect its rights to extradition.
Please accept, Mr. Secretary, the assurances of my highest
consideration.
22a
tion in Secretary of State Vance’s letter and in the final
conference with the Swiss Ambassador. Yet even this
did not persuade. We have no right to evaluate the
Swiss point of view that one convicted of patricide who
escaped while serving her sentence must complete her
debt to Swiss society.
What else is there that the United States government
could do within the realm of reasonable diplomatic
efforts? It could continue to hold meetings and write
letters, but this in turn would ultimately become a
violation of our government’s treaty obligations. The
past history of this case shows that it is unrealistic to
assume that at some time the Swiss government would
yield and no longer ask that Josette Bauer, a Swiss
citizen, be returned to Switzerland to complete her
sentence. The Swiss government has shown itself ada-
mant.
It is well to recognize that while properly protecting
the constitutional rights of individuals, the courts must
tread carefully when they draw conclusions concerning
delicate problems of international relations in the world
of diplomacy. It is not remiss to note the matter of
common knowledge that it is the Swiss government
which is representing the government of the United
States in Iran today and in negotiations to free the
United States government’s diplomatic hostages being
held in Iran. This Court cannot conclude that the case
of Josette Bauer must take precedence over the other
important friendly and cooperative relationships be-
tween the two nations involved. A “‘best efforts” prom-
ise cannot be pushed so far.
The Swiss government has over and over again re-
buffed our requests and protestations. There is not the
slightest indication that further negotiation can change
23a
its views. The only alternative which now remains if
Bauer is not to be subject to extradition is a decision
by this Court which would force the United States
government to violate its treaty.
“Best efforts” cannot be taken to require a violation
of treaty by the United States. The promise would have
to contain stronger and more specific language to force
this. This record reveals that in diplomatic terms the
government has requested, has tried to persuade several
times, and has humbled itself to the Swiss government in
its attempt to get the Swiss government to withdraw its
request. All of these actions have not availed and there
is not the slightest indication in the record that they
could avail in the future. No matter how ill-advised this
plea bargain may have been in its inception, a best
efforts promise cannot force the government to violate
its treaty obligations.
In the 1977 decision of this Court it was concluded
that the District Court’s finding that the government
had failed to use its best efforts was not clearly
erroneous. Fed.R.Civ.P. 52(a). Sicula Oceanica, S. A. v.
Wilmar Marine Eng. & Sales Corp., 413 F.2d 1332 (5th
Cir. 1969). It is here concluded that with the under-
takings which the government has made since the 1977
decision, the finding of the District Court on remand of
the breach of a plea bargain by the government is
clearly erroneous. Having now expended its best efforts
through having complied with the steps required by this
Court in its two prior decisions, the United States
government has discharged its obligation under the plea
bargain and no constitutional right of Josette Bauer has
been infringed.
The decision of the District Court must be vacated,
and in this proceeding for habeas corpus and other
relief, judgment must be awarded the defendants.
24a
VACATED and JUDGMENT RENDERED for United
States of America, Defendant, and Ilector Graber, Con-
sul General of Switzerland, Defendant-Intervenor.
25a
APPENDIX B
District Court’s Oral Ruling—8/8/73:
THE COURT: Gentlemen, the Court finds from the
facts in this case that in order to induce Mrs. Bauer and
Mr. Lambert to furnish the Government with informa-
tion regarding narcotics activities, unquestionably the
Government entered into an agreement with those two
persons that should they plead quilty to the indictment
which was then in existence, they would not be sen-
tenced to over seven years in the penitentiary and that
the Government (the Justice Department) would recom-
mend to the Parole Board that they not serve over
three years.
Based upon Mr. Earle’s testimony, it would seem that
he was of the opinion that that, in effect, would have
been just a mere formality and there [sic] recommenda-
tion would be acted favorably upon by the Parole Board
and that he, in effect, was agreeing and promising these
two persons that they would not serve over three years.
There seems to be some uncertainty as to the
question of deportation. The Court is of the opinion
that that matter was undoubtedly discussed and that
these defendants were told prior to entering into the
plea and prior to cooperating with the Government,
that they would be deported to some country other
than Switzerland. In other words, the language was used
that the Government would use their best efforts to see
that this was done. But, if there be any conflict, it
would appear from all of the evidence in the case that
such an agreement was made between the Government
and the defendants Mrs. Bauer and Mr. Lambert prior
to their testifying before the Court in the case of
United States versus Mori.
In any event, it is the opinion of the Court that
these two persons were firmly of the opinion, based
26a
upon the conversations with the Government, and with
their attorneys, that there was a definite agreement
with the Government that they would not serve over
three years in the penitentiary and that they would be
deported to some country other than Switzerland or
France. I don’t think there is any question in my mind
but that this was precisely what the Government was
promising and what they were agreeing to do.
In the light of that, both Mrs. Bauer and Mr.
Lambert fully carried out their portion of the agree-
ment.
It is rather shocking to the Court that the Govern-
ment would renege on its agreement which it con-
cededly made with respect to the time to be served by
these people.
I realize there has been a change in personnel with
respect to the present people in the Government office
and the people who were active with the Government
in handling this particular matter at that time. But the
Court is firmly of the opinion and finds that there is a
legal obligation upon the part of the Government to
carry out what the Court considers to be the agree-
ment, and that is that, with respect to Mrs. Bauer—Mr.
Lambert having now been released and having gone to
the Netherlands—that she not serve over three years
which, as I remarked earlier, leaves the Government in
the position of owing her about a year, where she has
been kept in prison beyond the period of time which
the Government agents promised her that she would
not be.
Therefore, I am going to grant the writ of habias [sic]
corpus. I am going to order her immediate release from
any detention whatsoever with respect to this particular
charge.
27a
I fully realize that she is still subject to detention by
virtue of being detained by the Immigration & Naturali-
zation Service. However, I find that there is a legal and
moral obligation on the part of the Government to see
that if Mrs. Bauer is deported, that she be deported to
some country which will accept her and certainly not
be deported either to France or Switzerland.
I further hold that, in view of the Government’s
agreement and by their own actions, the order entered
in Case No. 67-1010-Civil, Eric Mesmer versus Josette
Geisser, divorced Bauer, is no longer enforceable and
that the Government has completely and wholly es-
topped themselves from participating in and recognizing
in any manner that decree, and the Court is vacating
that decree and is directing the United States Govern-
ment to proceed to carry out its agreement with this
person.
Counsel will please prepare and submit to me written
findings and an order.
But, that is my order and it is in effect right now.
28a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT
OF FLORIDA
Consolidated Cases
NO. 73-772 Civ-WM
NO. 73-773 Civ-WM
IN THE MATTER OF THE
PETITION OF JOSETTE GEISSER,
DIVORCED BAUER, a/k/a
PAULETTE LOUISE FALLAI
JOSETTE CLAIRE BAUER NEE
GEISSER a/k/a PAULETTE
LOUISE FALLAI,
Vs.
UNITED STATES OF AMERICA
FINAL JUDGMENT GRANTING
WRIT OF HABEAS CORPUS, ETC.
THIS CAUSE came on for trial before the Court this
date, upon Petition for Writ of Habeas Corpus, by
Josette Claire Bauer—Case No. 73-773 Civ-WM, together
with the heretofore consolidated Cause styled “In the
Matter of the Petition of Josette Geisser, divorced
Bauer, Etc. Case No. 73-772 Civ-WM, and after con-
sidering the evidence presented and argument of respec-
tive Counsel, the Court makes the following
29a
FINDINGS OF FACT
A. That a definite agreement was made between the
Department of Justice, U.S. Government, which pro- .
vided that Petitioner, together with one Willie Lambert,
would receive a maximum sentence of sevén years in
the penitentiary (with each individual to serve a maxi-
mum period of three years before parole), and neither
person would be deported to France or Switzerland
upon their respective releases from prison.
B. That both Lambert and Bauer, in exchange for
said agreement, were required to plead guilty to then
pending criminal charges and provide the U.S. Govern-
ment with the intelligence concerning international drug
traffic and testify in all cases made by the US.
Government as a result of said information.
C. In all respects the Petitioner complied with and
executed her part of said agreement, which resulted in
major and significant arrests, convictions and policing of
intercontinental drug movements and sales.
D. That said agreement was further confirmed be-
tween all parties immediately prior to the trial of U.S.
vs. Mori Case No. 67-493 Cr at which time Petitioner
testified against the Defendant Mori.
E. That it appears that the Petitioner has now served
in excess of three years incarceration, in violation of
said agreement, and Petitioner is entitled to credit-time-
served towards any Federal sentence now pending
against her, the exact credit-time-served found now to
be two months and nineteen days, plus any good time
earned since June 24, 1972, for that, Petitioner was
first incarcerated on August 31, 1967 until September
24, 1972—and then reincarcerated on June 24, 1972 to
date of these proceedings. Petitioner’s further incarcera-
30a
tion, from the date of this Judgment, shall entitle her
to such additional credit-time-served as shall be com-
puted from August 8, 1973 to date of release.
F. That the U.S. Government, by its agreement with
Petitioner and her subsequent complete cooperation,
has estopped itself forever from the enforcement of the
Extradition Order entered in Case No. 67-1010 Civil,
U.S. District Court, Southern District of Florida, where-
in Petitioner was ordered deported to Switzerland upon
her release from prison.
G. That the previous, constant refusal of Switzerland
to extradite Defendant Mori upon the U.S. Federal
charges pending against him in this District, upon which
Petitioner testified and Mori was convicted, in no way
lessens the import of said agreement, for that Petitioner
remained ready, willing and did testify, when called
upon (albeit, the extradition of Mori to the United
States being accomplished only after Mori had been
arrested in France and returned to the United States of
America for trial).
THEREFORE, it is, by the Court,
ORDERED AND ADJUDGED AS FOLLOWS:
1. That the Petition for Writ of Habeas Corpus of
Petitioner, Josette Bauer be and the same is hereby
granted.
2. That said Petitioner stands discharged instanter
from any detention imposed in Case No. 67-493Cr
United States District Court, Southern District of
Florida.
3. That the Order of Extradition entered against
Petitioner in Case No. 67-1010, styled “ERIC MESMER
V. JOSETTE GEISSER, DIVORCED BAUER, the
3la
above styled District Court, be and the same is hereby
vacated, stricken and held for naught, and the U.S.
Government is forever restrained from executing or
attempt to execute the terms of said Order.
4. That Petitioner, if deported, will be deported only
to an acceptable country, expressly excluding France,
Switzerland or any of either country’s possessions.
5. That the U.S. Government is directed to proceed
to carry out its aforesaid agreement with Petitioner.
6. That the U.S. Marshal shall forthwith return Peti-
tioner to Colorado Women’s Correctional Institution,
Canon City, Colorado, to await disposition of any now
pending matters before the United States District
Courts.
DONE AND ORDERED at Miami, Dade County,
Florida, this 8th day of August, 1973.
s/W. O. Mehrtens
U.S. DISTRICT JUDGE
Copies furnished Counsel
32a
APPENDIX D
Petition of Josette GEISSER, divorced
Bauer, a/k/a Paulette Louise Fallai,
Petitioner-Appellee,
Ve
UNITED STATES of America,
Respondent-Appellant.
Josette Claire BAUER nee Geisser,
Petitioner-Appellee,
Vv.
UNITED STATES of America,
Respondent-Appellant.
No. 73-3678.
United States Court of Appeals,
Fifth Circuit.
May 27, 1975.
Before BROWN, Chief Judge, and GODBOLD and
RONEY, Circuit Judges.
JOHN R. BROWN, Chief Judge:
This is an extraordinary case calling for extraordinary
action. It is a case of the great United States going back
on its word in a plea bargain made by the Department
of Justice which assured the Government vital in-
dispensable evidence leading to conviction of principals
in a grand scale international heroin importing con-
spiracy. The effect of part of the bargain was that the
defendant-turned-states-evidence would not be deported
to Switzerland or France. The other part was that
under the sentence imposed she would not be confined
33a
for more than three years. Instead of doing either of
these, there is an outstanding warrant and a certificate
to the Secretary of State for her deportation to
Switzerland on the diplomatic demand of the Swiss
chargé d’affairs and the Board of Paroles (Board) has
declined to grant parole in terms which would honor
the commitment.
To this the Government—speaking through its statu-
tory advocate, 28 U.S.C.A. §509 — offers only the
weak justification that notwithstanding breaches of con-
stitutional dimension, there is nothing that can be done
about it since (i) the Government by extradition treaty
with Switzerland is bound to deport her on demand
and (ii) granting release is an unwarranted intrusion into
the discretion of the Board as an independent agency
notwithstanding the fact that the Board is a subordinate
element of the Department of Justice. 18 U.S.C.A.
§ 4201.
The trouble with this is that in this highly legalistic
appeal there is nothing to indicate that the State
Department is aware of the bargain or that once
informed of it and its breach, the Secretary of State
would take the indispensable step which at one and the
same time would accomplish deportation and violate
the constitutional rights of the petitioner. Similarly,
there is no record indication why the superiors in the
Department of Justice did not make the proper rep-
resentations to the Board to carry out the bargain or
what the otherwise independent Board would have done
had it been fully informed.
Because we are of the view that the judiciary should
not be dragged into refereeing this intragovernmental
squabble until it is certain that these constitutional
problems cannot be avoided, we call on principles
34a
analogous to the doctrine of primary jurisdiction so
that in a responsible, factual way the judiciary knows
what the real score is. To this end we vacate the orders
and remand for further proceedings, with the petitioner
remaining free on terms pending final judicial resolution
which hopefully will never have to take place.
Josette Claire Bauer is a Swiss national who has an
uncompleted prison sentence outstanding against her in
Switzerland for the murder of her father. She was
arrested in Miami on August 31, 1967 when she and
her accomplice, Willy Lambert, attempted to smuggle
28 Ibs of heroin into the country aboard a ship.! The
two ‘“‘mules’* were suspected by Customs and _ the
BNDD of being part of a large Corsican-French drug
chain. This conspiracy was known to exist but up until
this time the United States officials had been unable to
find a link at which to break it.
In an effort to induce their cooperation, the Govern-
ment investigators disclosed the full extent of the
evidence against them to their attorney, James Jay
Hogan, who had, incidentally, replaced their initial
counsel both of whom had been indicted in the same
conspiracy. Confronted with multiple counts and heavy
mandatory sentences aggregating many years, Lambert
and Bauer quickly reached a bargain with the Govern-
ment. They agreed not merely to volunteer all their
knowicdge of the domestic and international drug con-
I The Special Attorney with the Department of Justice, Or-
ganized Crime Section, William G. Earle, testified that this was
the largest heroin seizure ever made in the United States up until
that time.
2Farle noted that the two were known as “mules” in drug
patois because of their courier status.
35a
spiracy but affirmatively to testify against their su-
periors in the ring, should they be caught and brought
to trial.
For its part, the Government agreed to reindict the
two and allow them to plead guilty to a 2 count
indictment that carried a combined maximum sentence
of 7 years. Their confinement, however, would last only
3 years, after which time they would be paroled.
Lastly, but central to this case, at some point in the
negotiations, when Mori—the so-called “traffic manager”’
of the ring—was finally caught and testifying against
him was no longer a hypothetical possibility, Lambert
and Bauer balked. They were obsessed by their intense
fear of reprisals—a fear all the agents concerned ac-
cepted as well-founded. As a consequence, the Govern-
ment attorneys responsible for the prosecutions prom-
ised them that the Government would “use its best
efforts to get them to a country other than Switzer-
land...”> They were, as a practical matter, protected
against deportation to Switzerland.*
The two had some confidence that if the United States
wold supply them transportation incognito to a “safe” country,
they could make it on their own.
4 Indeed it cannot be better stated for Bauer than as done in
the Government’s brief:
Thereafter, a bargain was consummated whereby Bauer and
Lambert agreed (1) to provide the government with all the
information they possessed concerning the international narcotics
trade, (2) to provide any evidence they possessed with respect to
their original attorneys Prebish and Pollack, and (3) to testify
should the need arise. In return, the government agreed to
dismiss the indictment against them, under which they faced the
possibility of thirty to forty years’ imprisonment. They were
permitted to plead to a superceding two-count indictment charg-
[footnote continued]
36a
The full impact of both the value of their testimony
and the extent of the Government’s promises is con-
veyed in the exhibit letter of William Earle,> Special
ing conspiracy (18 U.S.C. [§]371) and travel in foreign com-
merce to facilitate the unlawful importation of narcotics, in
violation of 18 U.S.C. [§ ] 1952. Each was sentenced, pursuant to
the parole eligibility provisions of 18 U.S.C. [§ ]4208(a)(2), to 2
years” imprisonment on the conspiracy count and five years’ on
the §1952 count, the sentences to run consecutively. It was
further agreed that they would be released, pursuant to the
Department of Justice’s recommendation to the Board of Parole,
after having served three years’ imprisonment.
While there is some confusion and conflict as to the other
aspect of the bargain, it is at least clear that Bauer and Lambert,
who greatly feared being returned to Switzerland due to antici-
pated reprisals for their cooperation with the United States
government, were assured by a federal representative that the
Department of Justice would use its best efforts to assure that
neither was deported to Switzerland.
Brief for the Appellant, United States Government, pp. 3 and
4.
5 February 15, 1973
Miami, Florida
William C. Marchiondo, Esquire
Marchiondo & Berry, P.A.
Post Office Box 568
Albuquerque, New Mexico 87103
Dear Mr. Marchiondo:
The following is in response to your request for information:
My name is William G. Earle, and I was a Special Attorney
with the Department of Justice, Organized Crime Section from
1966 through late September, 1969. I was assigned primarily to
Miami. In connection with my duties as a Department of Justice,
Organized Crime Attorney, I worked closely with the United
States Attorney’s Office and was involved in all of their cor-
ruption and organized crime investigations, including major nar-
cotics investigations. I worked with the United States Attorney’s
Office and was the Justice Department attorney responsible for
the heroin smuggling cases involving Josette Bauer and Willy
[footnote continued]
37a
Attorney to the Department of Justice Organized Crime
Section. The letter demonstrates that the assurances of
Charles Lambert. Josette Bauer and Willy Lambert were arrested
on August 31, 1967, after bringing 14 kilos of heroin into Port
Everglades, Ft. Lauderdale, Florida. At the time of their arrest,
this was the largest, or one of the two or three largest heroin
confiscations, or heroin seizures ever made in the United States. I
was immediately notified by U.S. Customs Agents Alan Yar-
borough and George Corcoran, and was involved in the investiga-
tion from the outset. My reasons for being involved and our
primary objectives in this investigation were twofold. Firstly,
Josette Bauer and Willy Charles Lambert were only “‘mules”’ in
the operation. They were just couriers, carrying the heroin into
the United States. We wanted to get to the real supplier that
were behind Bauer and Lambert. We wanted not only to secure
convictions of the people that were immediately above Bauer and
Lambert in the heroin organization, but to get as much informa-
tion as we could about the French, Corsican and European
heroin organizations. In 1967 there had not been the wave of
major heroin smuggling cases that have since occurred. The
knowledge of the French and Corsican organizations was very
sketchy, and there certainly was no hard evidence that would
lead to arrests, indictments or convictions of anybody outside
the borders of the United States. This case, then, provided a
potential breakthrough.
Immediately then, we pursued an objective of attempting to
get the cooperation of Bauer and Lambert in return for a lighter
sentence than they would otherwise receive. They could have
been sentenced to 40 years on substantive and conspiracy counts
of smuggling heroin. After being represented briefly by Paul
Pollack, Esq. and Harry Prebish, Esq., they retained attorney
James Jay Hogan to represent them, and Mr. Hogan and I began
a series of conversations. I outlined the ironclad case we had
against Bauer and Lambert and attempted to convince Mr. Hogan
to convince his clients that their best interests lay in cooperating
with the United States Government. The Grand Jury returned an
indictment on September 25, 1967, indicting Josette Bauer, Willy
Charles Lambert and Robert Mori and charging them with
substantive and conspiracy violations of 21 U.S.C. § 174. These
counts carried minimum mandatory sentences of 5 years on each
count. After lengthy negotiations with Mr. Hogan a deal was
struck. The deal was that Bauer and Lambert would tell the
[footnote continued]
38a
the government were emphatic and without them the
two would never have testified.
United States Government all they knew about narcotics smug-
gling and the narcotics organization in Europe, mentioning
names, places and dates: everything they knew. They would also
tell us the entire situation concerning the relationship between
them, the missing heroin, and their original attorneys, Paul
Pollack and Harry Prebish; we would reindict them so that the
maximum sentence would be 7 years, but, in any event, we
would see to it that if they cooperated they would not serve
more than 3 years. We also mentioned that if they cooperated,
we would do everything possible to see that they would be
deported to a country other than Switzerland. We did discuss
specific countries, no guarantees were given, but at a later time I
did discuss with Willy Lambert and Josette Bauer the possibility
of their being deported to South America. Before making the
deal with Hogan, we wanted some assurance that we were not
buying a “pig in a poke.” I asked Hogan to talk to Bauer and
Lambert and to give me some idea of the information they had.
He talked to them and told me the type of information they
could give. I relayed this to Bill Lynch and Henry Petersen of
the Justice Department in Washington and they agreed that this
type of information was significant and we should proceed to
make the proposed deal with them.
At the time we entered into this deal I, the Justice Depart-
ment, and the United States Attorney’s office, were each aware
of the fact that there had been extradition proceedings and that
Josette Bauer had been ordered extradited to Switzerland at the
conclusion of whatever sentence she would receive in the heroin
case. Those extradition proceedings took place in late November
of 1967. I was present at that extradition hearing, although I was
just an observer.
I did state to Mr. Hogan and to Bauer and Lambert on every
occasion that we discussed the deportation that we would do
everything possible to see that they were deported to a country
other than Switzerland. I met with Bauer and Lambert many
times between 1967 and 1969, and on almost every occasion
that we met the subject of their deportation to a country other
than Switzerland was discussed. I always told them that the
Department of State could throw a wrench into this, but I didn’t
think that they would in light of the fact that the Swiss
[footnote continued ]
39a
The ability of the Government to fulfill this last
promise to Bauer is complicated by ancillary extradition
Government had not given us any cooperation when we needed
it in this investigation. In fact, my information, which was given
to me by customs agents, was that the Swiss had not only not
cooperated, but had gone out of their way to prevent the
extradition of Robert Mori or, at the very least, failed to arrest
Mori while surveilling him with knowledge he was under indict-
ment in the United States. Customs agents were quite upset over
the failure of the Swiss authorities to cooperate in our investiga-
tion, and it was this failure to cooperate that gave all of us in
the Department of Justice the feeling that the Department of
State would surely go along with the deal that we were making
to deport them to some country other than Switzerland, if at all
possible.
With regard to the deportation, I am not certain whether this
was part of the original deal. I know at some stage before
Customs debriefed Bauer and Lambert we stated that if they
cooperated, we would do everything possible to get them de-
ported to a country other than Switzerland.
There is no doubt that Bauer and Lambert cooperated beyond
100%. They were completely debriefed by U.S. Customs and
other officials of the United States Government. Their coopera-
tion led to numerous arrests, indictments and convictions of
major narcotics figures in France and the United States. They
testified in two major cases and I have been repeatedly told by
U.S. Customs officers of the “fabulous” information given by
Lambert and Bauer. It was my understanding from customs
agents and narcotics agents who have better knowledge of this,
that the information supplied by Lambert and Bauer was the
beginning of the major breakthrough of the French, Corsican and
European narcotic organizations.
I feel every effort should be made to deport Josette Bauer to
a country other than Switzerland. I think it would be a breach
of our agreement were the Justice Department and the Depart-
ment of State not to do everything possible to arrange this.
Although my memory of the negotiations with James J.
Hogan and my conversations with Bauer and Lambert are not
complete and I have not had an opportunity to review my
Justice Department file on this or the memorandum that Michael
[footnote continued ]
40a
proceedings brought against her by the Swiss Govern-
ment before Judge Atkins in the Southern District of
Florida under 18 U.S.C.A. § 3184. An order certifying
Osman and I submitted to the Justice Department concerning
Mr. Lambert’s deportation, which memo was made in 1969 when
the events were fresh in my mind, I do have the abiding feeling
that Lambert and Bauer were entitled to believe that the United
States Government would make every possible effort to see that
they were deported to a country other than Switzerland.
In my numerous meetings with Josette Bauer and Willy
Lambert between 1967 and 1969, they repeatedly expressed
concern about whether or not the United States would extradite
them to Switzerland. They feared for their lives if forced to
return to Switzerland. They understood, however, that it was not
an ironclad promise that we would extradite them to a country
other than Switzerland. They did understand that our promise
was to use our very best efforts to extradite them to someplace
other than Switzerland. As time passed they became concerned
that, in fact, we were doing nothing; that in fact the Department
of Justice had never approached the Department of State; and
that we were giving them a lot of “hot air.” On many occasions
after speaking with them I would call Bill Lynch in Washington
and remind him of the fact that we had made a deal that they
were to get out in 3 years and that we were to do everything we
could to get them deported to someplace other than Switzerland.
Subsequent to my leaving the Department of Justice in
September, 1969, I received a handwritten letter from Willy
Lambert, a copy of which is attached hereto, and I wrote a letter
to Michael Osman, Assistant United States Attorney, a copy of
which is attached hereto. In that letter I referred to a memo
which Mr. Osman and I had prepared and submitted to the
Department of Justice sometime before September, 1969, in
which we expressed our concern that the United States Govern-
ment was not honoring its deal with Bauer and Lambert. I have
not seen a copy of that memo since leaving the Justice Depart-
ment and I am certain that memo will set forth many of the
facts which I am unable to recall at this time. I have had many
conversations with Mr. Osman in which we each expressed our
concern that the United States Government was not going to live
up to the bargain it made with Bauer and Lambert.
[footnote continued |
4la
to the Secretary of State the extraditability of Bauer
was granted November 2, 1967 without Judge Atkins
having any apparent awareness that Bauer was then or
would shortly be involved in plea negotiations with the
Government.® Whatever might have been the duty of
the United States Attorneys to intercede in the extradi-
tion hearing, it is a certainty that the Government
attorneys were entirely aware of the outstanding order
at the time they bound the Government to “use its best
efforts” to insure her deportation to a “safe” country.
Bauer and Lambert kept their bargain. They supplied
information that in the words of William Earle, Special
Attorney to the Department of Justice Organized Crime
Section, was “the first crack in breaking down the
entire international narcotics conspiracy.” Judge Mehr-
tens, who presided at the conspiracy trial and later
at the habeas hearing, recalled that Josette Bauer was
the more valuable of the two witnesses at the Mori trial
and that “...she was one of the most impressive
witnesses I have ever seen in a lawsuit. The witness had
In reviewing the documents attached hereto and cercain letters
shown to me by you from Willy Lambert to Michael Osman, and
from Mr. Lambert to James J. Hogan, and from Michael Osman
to William F. Lynch, dated respectively August 13, 1970, July 29,
1970 and May 5, 1970, I can state that the contents of those let-
ters accurately reflect the situation as I recall it.
Very truly yours,
(s) William G. Earle
William G. Earle
WGE:c
6 The United States Attorney was not of counsel on the case,
the interests of Switzerland being handled by a privately em-
ployed Miami attorney. James Jay Hogan took an active part on
behalf of Bauer.
42a
a remarkably retentive memory as to dates, places and
times... without Mrs. Bauer—I am quite sure Willy
[Lambert] would have been able to testify to only
about one-tenth of what Mrs. Bauer testified to.”
Mori was convicted and sentenced to 20 years in
prison. Bauer and Lambert began to serve their own
sentences on December 1, 1967, anticipating that the
Government would keep its promises. But, as the
two-year mark approached, they began to get overtures
from Swiss and French investigators seeking informa-
tion. Specifically, Josette Bauer was told by Customs
Agent Alan Yarborough who conferred with her in
prison that the Swiss Government wanted her badly
enough that they were willing to send 2 agents here to
talk to her. According to her testimony, Yarborough
told her that the Government was not going to be able
to keep its promise and prevent her deportation to
Switzerland.’ Highly agitated by these events, within
the month she escaped on October 10, 1969 from her
prison in Alderson, West Virginia. For two years she
lived in Albuquerque, New Mexico.® She was captured
on June 25, 1972 and on May 1, 1973 she was
snetenced to serve 18 months for the escape to run
consecutive to her remaining sentences. When she re:
turned to prison, the Department of Justice expressly
7 Agent Yarborough denied having made this statement in his
testimony. But other evidence of the government’s apparent lack
of concern for the bargain in 1969 is a memo written by Earle
to William S. Lynch, Chief of the Organized Crime Division on
August 8, 1969, reminding him of the government’s responsibil-
ity to Lambert and Bauer which was prompted, according to
Earle, by his fears that they would be forgotten. See note 24,
infra.
8There she ran her own riding school for a time.
43a
disavowed the agreement and on June 14, 1973 her
application for parole was denied by the Board which
directed that she serve out the remainder of her 7 year
Miami narcotics sentence.
Meanwhile, Lambert remained in prison. As_ the
three-year point approached, he and his counsel were
surprised to discover that nothing had been done on his
behalf by the Government to increase the likelihood of
his parole. His counsel contacted the Assistant United
States Attorneys and other government officials with
whom he had negotiated the plea bargain and at their
urgings the Department of Justice finally acted. In
response to its recommendation, the Board granted the
parole. Following his release, U.S. Marshals escorted
Lambert to the airport where he bought a ticket with
his own money to the Netherlands. Nevertheless, his
hopes of safe passage to a sanctuary were unrealistic
because his presence on the plane was somehow known
to the Swiss. He was met at the Netherlands airport and
immediately removed to Switzerland. At the time of
Bauer’s habeas hearing, Lambert’s attorney in response
to inquiries had heard no word from his for over a
year.
Now Josette Bauer returns to court, hoping that her
case will have a better outcome than that of her
co-defendant. She seeks to compel the Government to
live up to its plea bargain by specifically enforcing the
plea agreement and enjoining the extradition order. She
charged that the order amounted to an unlawful de-
tainer by the Secretary of State because it violated the
plea bargain and because the Swiss offense did not fall
within the terms of the extradition treaty.
After an extensive hearing Judge Mehrtens found that
there was a specific, definite agreement that she would
44a
not serve over 3 years and that she would be deported
to some country other than Switzerland or France.?
Bauer was discharged from any further detention im-
posed as a result of her Miami narcotics conviction!°
and the District Judge set aside and enjoined the
execution of the extradition order. He directed that if
it was determined that she should be deported, it would
be only to an “acceptable” country—not France,
Switzerland or the possessions of either.
On appeal, the Government does not challenge the
findings of fact of the District Court. It accepts these
but objects instead to the method and timeliness of the
District Court intervention in the case. The Government
argues that (i) Bauer’s habeas action is premature
because the extradition order has not issued due to her
9 In his formal findings the District Judge was positive on both
parts of the bargain:
that a definite agreement was made between the Depart-
ment of Justice, U.S. Government, which provided that
petitioner, together with one Willie Lambert, would receive
a maximum sentence of seven years in the penitentiary
(with each individual to serve a maximum period of three
years before parole), and neither person would be deported
to France or Switzerland upon their respective releases
from prison.
Wat our request, the Department of Justice has supplied us
with Bauer’s sentence computation record. It shows that she
began to serve the escape sentence after she was released by
Judge Mehrtens on May 14, 1973.
Narcotics Sentence Escape Sentence
began: 12-1-67 began: 5-14-73
escape: 10-12-69 to 6-25-72 ended: 7-28-74
(with good time credit)
Post-escape incarceration
6-25-72 to 5-14-73
45a
incarceration for 5 more years on the two consecutive
sentences, (ii) the judgment should be vacated for
petitioner’s failure to join the Confederation of Switzer-
land as an indispensable party under F.R.Civ.P. 19(a)
because of its direct interest in the person of Josette
Bauer; (iii) and the District Judge usurped the exclusive
power and responsibility of the Board by releasing
Bauer.
As we pointed out in the prologue, at the core of
each of these arguments is the essential fact that the
Government occupies a schizophrenic position. The
Department of Justice, having made a bargain that it
would do its best to influence the actions of the
independent sister branches of the Government—the
State Department and the departmental subordinate,
the Board—and having convinced Josette Bauer that it
would in all likelihood be successful, claims to find
itself with contradictory commitments—to Josette Bauer
and the Swiss Government.
Assuming, as insisted upon by the Department of
Justice, that the deportation-extradition commitment
was not the absolute one found by the Court (see note
9, supra) but the more limited one to use its “best
efforts,” this record and the very fact of this appeal
shows an outright failure to comply. The best effort
would, at a minimum, be a strong presentation to the
Department of State as to what had been promised and
the likely dangers to the bargainee-defendant-witness.
But the record is silent. All we have is the legalistic
position voiced by the Department of Justice as the
official spokesman that this has to occur under statutes
and treaties.
But we are not at all sure that a Secretary of State
who is instructed by the chief legal officer of the
46a
nation that failure to keep the bargain is a plain
violation of Bauer’s constitutional rights would persist
in the steps to effectuate extradition.!!
Similarly, the Department of Justice had the mini-
mum duty of advising the Board of the trade and the
importance to the public interest of its being honored.
Yet the Department did not do that. To the contrary,
it actively opposed the granting of parole which would
effectuate the promise of a three-year confinement. We
recognize that in a structure of independent quasi-
adjudicative agencies within an Executive department
there is and should be no hierarchical intrusion into the
exercise of administrative discretion. At the same time,
that agency needs to be advised in positive terms of the
agreements made, the consequences of which were (1)
rich in terms of the public interest and (ii) of constitu-
tional consequences to the bargainee if not honored.
But, as discussed, we are likewise in the dark. The
Department of Justice which has at least some super-
vision over this agency tries to force us into deciding
whether a Court can intrude before the Judiciary has
reliable information that the Board would not correct
its own errors once it is fairly advised.
What is needed in this international plot is an
authoritative declaration of the position of the United
\since we conclude that the bargain as determined by the
District Court fits well within the realm of enforceable constitu-
tional rights of the petitioner, Santobello v. New York, 1971,
404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, the power of the
Secretary of State may well be circumscribed by Reid v. Covert,
1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, holding
individual constitutional rights superior to the Government's
treaty obligations.
47a
States Government—not just that of one or more de-
partments or agencies.
It is at this point we invoke principles akin to
primary jurisdiction. This invaluable doctrine has
evolved from what was originally a means of preventing
courts from overriding agency jurisdiction!? to become
a means to flexibly harness the resources of agency or
departmental expertise to the judicial decision-making
process.'? We have repeatedly benefited by the use of
this mechanism. !*
It has special usefulness in a case such as this where
the District Court and this Court need to know just
exactly what the Secretary of State proposes to do in
the light of this confessed failure to keep the faith.
Without this unified sovereign pronouncement, we
strike out blindly to formulate a judicial remedy with
unknown and weighty variables, not the least of which
is treading upon delicate international relations.
Once the concept is properly understood, there is
ample precedent for this demand for a governmental
12Texas and Pacific Ry. v. Abilene Cotton Oil Co., 1907, 204
U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553.
131 Jaffe, Judicial Control of Administrative Action 121-48
(1965).
14 Mobile Oil Corp. v. Oil, Chemical and Atomic Workers
International Union, AFL-CIO, 5 Cir., 1975, 504 F.2d 272 (en
banc) (Brown, C. J., Dissenting); J. M. Huber Corp. v. Denman, 5
Cir., 1966, 367 F.2d 104; Weymouth v. Colorado Interstate Gas
Co., 5 Cir., 1966, 367 F.2d 84; Carter v. American Telephone &
Telegraph Co., 5 Cir., 1966, 365 F.2d 486; Louisville & N. R. R.
v. Knox Homes Corp., 5 Cir., 1965, 343 F.2d 887; Agricultural
Transportation Assn. of Texas v. King, 5 Cir., 1965, 349 F.2d
873; River Terminals Corp. v. Southwestern Sugar & Molasses
Co., 5 Cir., 1958, 253 F.2d 922, aff’d, 1959, 360 U.S. 411, 79
S.Ct. 1210, 3 L.Ed.2d 1334.
48a
resolution of its total position. For example, in shipping
cases,!° the Supreme Court directed that the courts
defer review until the Federal Maritime Board had the
opportunity to consider the legal issues. In both Cunard
and Far East the parties had generally complained that
the actions of a conference of carriers in operating a
dual system of shipping rates that benefited those
shippers that contracted exclusively with the conference
members violated the anti-trust laws. Subsequently in
Isbrandtsen, the Court outlined the vital role of the
administrative, executive determination:
It is, therefore, very clear that these cases, while
holding that the Board had primary jurisdiction to
hear the case in the first instance, did not signify
that the statute left the Board free to approve or
disapprove the agreements under attack. Rather,
those cases recognized that in certain kinds of
litigation practical considerations dictate a division
of functions between court and ageicy under
which the latter makes a preliminary, compre-
hensive investigation of all the facts, analyzes
them, and applies to them the statutory scheme as
it is construed. Compare Denver Union Stock Yard
Co. v. Producers Livestock Marketing Assn., ante
[356 U.S.] p. 282 [78 S.Ct. 738, 2 L.Ed.2d 771].
It is recognized that the courts, while retaining the
final authority to expound the statute, should avail
themselves of the aid implicit in the agency’s
I5rar Eastern Conference v. United States, 1952, 342 USS.
411, 79 S.Ct. 1210, 96 L.Ed.2d 576; United States Navigation
Co. v. Cunard, S. S. Co., 1931, 284 U.S. 474, 52 S.Ct. 247, 76
L.Ed. 408; Maritime Board v. Isbrandtsen Co., 1957, 356 U.S.
481, 78 S.Ct. 851, 2 L.Ed.2d 926.
49a
superiority in gathering the relevant facts and in
marshaling them into a meaningful pattern. Cases
are not decided, nor the law appropriately under-
stood, apart from an informed and particularized
insight into the factual circumstances of the con-
troversy under litigation.
Maritime Board v. Isbrandtsen Co., 1957, 356 U.S. 481,
498, 78 S.Ct. 851, 861, 2 L.Ed.2d 9°S.
What we are saying is that the United States Govern-
ment must in the light of the commitment made by its
prosecutorial arm look carefully at the constitutional
obligations owing Bauer. When it looks—whether
through the advocative eyes of the Attorney General or
through those of the Secretary of State, whose oath of
office calls for support of the same constitution—all will
see Santobello!® as a lion in the streets. There the
Court reversed the conviction of a defendant who
pleaded guilty after agreeing with one prosecutor that
no sentence recommendation would be made only to
have a new prosecutor recommend the maximum pun-
ishment at the time of sentence. Despite the fact that
the sentencing Judge emphasized that, in view of the
defendant’s prior record, the absence of a recommenda-
tion by the prosecutor would have made no difference
in the sentence, the Supreme Court found that the
impact of such a breach justified reversal. In the words
of the Chief Justice:
This phase of the process of criminal justice,
and the adjudicative element inherent in accepting
a plea of guilty, must be attended by safeguards to
insure the defendant what is reasonably due in the
circumstances. Those circumstances will vary, but a
l6santobello v. New York, 1971, 404 US. 257, 92 S.Ct. 495,
30 L.Ed.2d 427.
50a
constant factor is that when a plea rests in any
significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise
must be fulfilled.
Santobello v. N.Y., supra at 262, 92 S.Ct. at 499. Asa
remedy, the case was returned to the state court for a
determination of whether the appropriate remedy was
specific performance of the promise before another
Judge or an opportunity to withdraw the plea.!’
Thus, following Santobello, defaulted plea bargains
must be remedied. But the avenues of redress available
for Bauer are few. Eradicating the impact of her
testimony is impossible. And, of course, an opportunity
to replead seems superficial and unrealistic in view of
her long confinement. Specific performance may well
be the only way out to keep the bargain.
‘Although it poses none of the delicate problems of
international relations and the effectuation of treaties,
Santobello stands for much more in assaying the failure
of the Department of Justice to take honorable but
effective action before the Board to secure her release
at the end of the promised three years. The Govern-
ment does not even begin to whisper the faintest
suggestion of a possible reason why it did not—in
advance of the approaching three-year expiration—make
the appropriate representations to the Board.!® All it
7 See Santobello v. New York, supra at 267, 92 S.Ct. 495,
where in a note to his partial dissent Justice Marshall concludes
that a majority of the Court held the view that the choice of the
defendant should be binding on the Court.
Bon oral argument, but without record support, we were told
that William S. Lynch, head of the Organized Crime Division of
[footnote continued]
5la
can do is to faintly urge that the District Judge’s action
usurps the exclusive role and independence of the
Board, citing: Tarlton v. Clark, 5 Cir., 1971, 441 F.2d
384; Buchanon v. Clark, 5 Cir., 1971, 446 F.2d 1379;
Thompkins v. United States Board of Parole, 5 Cir.,
1970, 427 F.2d 222; Simon v. United States (E.D.La.,
1967), 269 F.Supp. 738, aff’d, 1968, 397 F.2d 813.
Sharing as we do the Government’s concern about
judicial intrusion into the parole process,!? we defer
until after remand whether we would put our stamp of
approval on the District Judge’s order which in effect
releases Bauer at the end of the reconstructed three-
year term.”? We do this because remand offers an ample
opportunity for the judiciary to be informed of exactly
(i) what would have taken place by the Board had the
Department of Justice kept its word, and (ii) what
would now take place if, on a full disclosure of the
positive commitment and the consequent violation of
Bauer’s constitutional rights, the matter would be re-
submitted to the Board. Both the Board and its hier-
archical superiors are to respond authoritatively on
this.*!
Several things are to be accomplished by and on the
remand. The Government shall, after consideration of
the Justice Department, considered that her escape voided the
3-year commitment. But that might well depend upon the factual
basis for her actions and particularly her apprehensions based
upon her impressions of what Agent Yarborough told her. (See
note 7, supra.)
\9scarpa v. U.S. Board of Parole, 5 Cir., 1972, 468 F.2d 31,
rev’d, en banc, 1973, 477 F.2d 278, vacated as moot, 414 U.S.
809, 94 S.Ct. 79, 38 L.Ed.2d 44.
See note 10, supra.
2lUnited States v. Nixon, 1974, 418 U.S. 683, 94 S.Ct. 3090,
41 L.Ed.2d 1039.
52a
the promise made and the failure to keep all or part of
it by the respective officials at the highest levels, state
unequivocally the position of the United States Govern-
ment. In the event that position does not result in the
effectual release of Bauer from the restraints or pros-
pects or threats thereof, the District Court shall con-
duct further hearings after allowing fullest discovery on
all issues and particularly on the question of just what
has been done with the promise “to use our best
efforts” and the reasons why, if any, steps have not
been taken or why they have been ineffectual.?*
The Government asserts that, in any event, the case
is not ripe since, if the prison term remains effective,
the deportation cannot take place for several more
years. We reject this for several reasons. To begin with
it assumes that the order releasing her from further
confinement will be reversed. But more basically, her
very personal interests are so vitally affected that the
situation of threatened return to pr) %n and later extra-
2cince this involves international relations we think our
decision on the extent of the Secretary of State’s discretion in
declining extradition should be postponed. Ashwander v. T.V.A.,
1936, 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-84, 80 L.Ed.
688, 710-12 (Mr. Justice Brandeis concurring): Texas v. Grund-
strom, 5 Cir., 1968, 404 F.2d 644. Commentators appear to
agree he has discretion to review the magistrate’s holding that
the Treaty requires extradition, although perhaps not absolutely.
4 Hackworth, Digest of International Law §338 (1942); 4
Moore, International Law Digest § 616 (1906); Note, Executive
Discretion in Extradition, 62 Colum.L.Rev. 1313 (1962). As
evidence of the Secretary’s presumed discretion to extradite a
person who is found to be extraditable the government cites
Wacker v. Bisson, 5 Cir., 1965, 348 F.2d 602. And the law seems
to recognize the power to grant asylum, See, United States v.
Rauscher, 1886, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425;
United States v. Mulligan, 2 Cir., 1934, 74 F.2d 220.
—
53a
dition constitutes sufficient custody.2> Undoubtedly,
Josette Bauer is harmed if there is any likelihood that
the Government will not stand by its promise irrespec-
tive of whether she is five minutes or four years from
deportation.
This brings us to the contention that the case must
be dismissed (or vacated and remanded) for failure to
join the Confederation of Switzerland under F.R.Civ.P.
19(a)(2). Again there are several reasons why we reject
this. At the outset this is raised for the first time on
appeal2*—itself a factor which may be evaluated in
B See generally, Jones v. Cunningham, 1963, 371 U.S. 236, 83
S.Ct. 373, 9 L.Ed.2d 285 (prisoner on parole in custody for
purposes of habeas corpus proceeding); Marden v. Purdy, 5 Cir.,
1969, 409 F.2d 784 (one free on bond may be in custody to
petition for habeas relief).
4For one asserting a mandatory compliance with Federal
Rules of Civil Procedure, the Department of Justice’s position is
pretty shaky. In its formal answer to the application for the writ
it filed a 12-line blunderbuss reply in which it stated:
The alleged agreement was entered into sometime be-
tween August 1967 and April 1973. The parties repre-
senting the Government, Michael Osman and William Earle,
are no longer associated with the Justice Department. The
Government is therefore in no position to admit or deny
an agreement with petitioner.
The only proper remedy for petitioner is to prove the
existence of the agreement and its nonperformance.
If this barely complied with the outlawed general denial, it
certainly did not with F.R.Civ.P. 11 in which the effect of the
filing of a pleading is a certificate by counsel that it is filed in
good faith in the belief that it is well-founded. At the moment
of the filing of that ‘‘answer’”’ on May 25, 1973, the Department
of Justice already had the memo prepared by Earle in August
1969, while he was still employed there, restating the bargain
and expressing his fear that it would not be honored and
Osman’s 1970 letter to William Lynch, Chief of the Organized
[footnote continued |
54a
considering joinder. Provident Bank & Trust v. Patter-
son, 1968, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed. 936.
Next, the Federal Rules have only limited application
to habeas proceedings. In 1969, the Supreme Court
considered the applicability of the Federal Rules to
habeas proceedings in the context of discovery. Harris
v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d
281 (construing F.R.Civ.P. 81(a)(2)). The Court re-
ferred to a “considerable debate” over the applicability
of the joinder rules, and expressly “intimate[d] no
view.” 394 U.S. at 294 n.5, 89 S.Ct. at 1088, 22
L.Ed.2d at 288.
The Court did, however, point out the remarkable
expansion of the habeas remedy’s scope since the
institution of the Federal Rules in 1938, the critical
date in using the “conformity” test. A great deal of
that expansion has come in defining “custody.” E.g.,
Peyton v. Rowe, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20
L.Ed.2d 426; Jones v. Cunningham, 1963, 371 U.S.
236, 83 S.Ct. 373, 9 L.Ed.2d 285. Even today, how-
ever, we have considerable doubt that concept has
enlarged to the point Switzerland alone could be named
as a habeas respondent in this situation. And the
Government has especially failed to indicate any pre-
1938 authority to the effect that one not physically a
custodian of petitioner’s body is a proper party-
respondent.” We conclude that Rule 19 is not in
Crime Division cn behalf of Lambert. Mr. Osman was then
serving as United States Magistrate in Miami as the United States
Attorney’s staff well knew. Both of these knowledgeable persons
were readily available in Miami to ascertain the facts which were
later testified to showing the broken promise.
We find support for our conclusion in the Proposed Rules
Governing Habeas Proceedings, Committee on Rules of Practice
[footnote continued]
55a
“conformity” with pre-1938 practice—and, therefore,
not applicable in this case.
More important, under the solution we mandate
there may not even be any judicial order required to
carry out the bargain. If Switzerland feels aggrieved at
such a possible executive-political resolution, its avenues
of redress would more likely be through diplomatic
means or in international tribunals.
Vacated and remanded.
and Procedure of the Judicial Conference of the United States
(January 1973), promulgated in response to authorization. Re-
ports of the Proceedings of the Judicial Conference of the United
States (October 1969). Proposed Rules 2(a) and (b) specify
exactly who shall be named as respondent and specifically in
terms of successive future custodians. Yet the Proposed Rules do
not und¢evtake to comprise a complete system of procedure,
Proposed Rule 12. From the draftsmen’s specifically designing a
new Rule governing joinder, there is a strong indication that
they, too, concluded Rule 19 is presently of little, if any,
application to habeas proceedings. .
56a
APPENDIX E
Petition of Josette GEISSER, Divorced
Bauer, a/k/a Paulette Louise Fallai
Josette Claire BAUER, nee Geisser, a/k/a
Paulette Louise Fallai,
Vv.
UNITED STATES of America
Alfred Keller, Consul General of the
Government of Switzerland,
Applicant for Intervention.
Nos. 73-772-Civ-EM, 73-773-Civ-WM.
United States District Court,
S. D. Florida,
Miami Division.
May 21, 1976.
OPINION
MEHRTENS, District Judge.
The United States Government has moved, after
remand of this matter by the Fifth Circuit Court of
Appeals,! to dismiss the petition for habeas corpus filed
by Josette Bauer in this Court. The Court of Appeals
vacated an earlier order which granted the petition, and
directed that further proceedings be had to receive
evidence of “just exactly what the Secretary of State
proposes to do” (513 F.2d 862, at 870) in light of the
Government’s “confessed failure to keep the faith” (id.)
in respect of promises made to the petitioner by the
| Geisser v. United States, 513 F.2d 862 (5th Circuit 1975).
57a
Department of Justice to prevent petitioner’s extradi-
tion to Switzerland.”
At the subsequent hearing, the Government intro-
duced evidence that on October 9, 1975 more than
four months after the appellate decision was rendered,°
the Department of Justice for the first time exerted any
efforts* to bring to the attention of the Department of
State its commitment to Mrs. Bauer. The Fifth Circuit
correctly observed that there previously had been an
outright failure by the Government to comply with
either the limited “best efforts,” contended for by the
Government, or with the absolute promise found by
this Court to prevent her return to Switzerland. It
suggested that, at a minimum, the Department of
2 The Opinion of the Court of Appeals recites, at 513 F.2d
864, that petitioner was ‘“‘as a practical matter, protected against
deportation to Switzerland” in exchange for invaluable informa-
tion concerning an international narcotic conspiracy; thus, ap-
parently, agreeing with the finding made by this Court in August,
1973 that she would not be deported following her release from
a plea-bargaining conviction.
30On the other hand, counsel for petitioner presented to the
Court in January 1976, a letter sent by him in July 1975 to the
Secretary of State, three months before the Government acted,
in which the Secretary was requested to advise the Court of its
intentions concerning the promises made by officials of the
Justice Department. A copy of said letter was sent to the
Department of Justice. Neither the State Department, the De-
partment of Justice, nor any other agency of the United States
Government has ever responded to the letter from plaintiff’s
counsel.
4The Government does not deny that as early as 1967 it had
commenced negotiations for Josette Bauer’s cooperation, promis-
ing to use, at least, its “best efforts” to prevent her return to
Switzerland. In fact, no effort whatsoever was made _ until
October 1975.
58a
Justice should have made “‘a strong presentation to the
Department of State as to what had been promised and
the likely dangers to the bargainee-defendant-witness.”’
(513 F.2d at 869). I cannot help but note that the
Department of Justice, in its belated 1975 communica-
tions with the Department of State, never once men-
tioned petitioner’s well-founded fears for her life should
extradition be effected as a matter of a primary con-
cern to both the United States and Switzerland. Perhaps
the State Department might have been more persuasive
in obtaining agreement from the Swiss Embassy if this
aspect of the bargain had been as forcefully presented
by Justice as was Justice’s concern for the “difficulties
for the Department of Justice in its relationship with
the judiciary.’
In any event, it now appears that Switzerland de-
clines to withdraw its request for petitioner’s extradi-
tion, and the Department of State declines to withhold
extradition under any claim of discretionary authority
to do so, or to pursue other avenues in her behalf
which were suggested by the Appellate Court.® In this
posture, and following the dictates of the appellate
decision rendered in this matter, it becomes necessary
for me to determine exactly what effect the dilatory
SLetter from Deputy Attorney General to the Secretary of
State, October 9, 1975, attached to Government’s Motion to
Dismiss Petition.
Sit appeared to the Fifth Circuit Court of Appeals that
Ashwander v. T.V.A., 297 U.S. 288, 345-48, 56 S.Ct. 466,
482-483, 80 L.Ed. 688, 709-711 (1936); Wacker v. Bisson, 348
F.2d 602 (5th Circuit, 1965); and Texas v. Grundstrom, 404
F.2d 644 (5th Circuit 1969), and several worthy commentators
recognize such discretion; but, moreover, that the safeguard of
asylum was another key to the solution that might be employed.
See Court’s footnote 22 at 513 F.2d 870.
59a
efforts of the Government to fulfill its promises (and
the unsuccessful conclusions, insofar as Bauer’s future is
concerned, of those efforts), shall have upon what this
Court considers the overriding issue in this entire
matter: What is to be done to protect Josette Bauer’s
Santobello’ rights, in view of the disparate positions®
taken by the co-equal Departments of Justice and State
regarding her extraditability? The Court of Appeals
most aptly, and with justifiable wryness, remarked upon
the conspicuous impossibility of petitioner’s redress for
the Government’s breach of faith if specific perfor-
mance of its promises were not to be ordered. This
Court fully agrees with that assessment of the dilemma.
The United States Government failed in both of its
promises: It did nothing, for eight years, to protect
petitioner from being turned over to Swiss authorities;
further, it presented no evidence, at any time during
any of the proceedings in this matter—and contrary to
the directions of the Court of Appeals? —concerning any
7Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30
L.Ed.2d 427 (1971).
8The Court of Appeals stated it thusly: “As we pointed out
in the prologue, at the core of each of these arguments [that the
petition was premature and procedurally defective as well], is the
essential fact that the Government occupies a schizophrenic
position. The Department of Justice, having made a bargain that
it would do its best to influence the actions of the independent
sister branches of the Government—the State Department and the
departmental subordinate, the Board—and having convinced
Josette Bauer that it would in all likelihood be sucessful, claims
to find itself with contractory commitment—to Jesette Bauer and
the Swiss Government.”
sie [R]emand offers an ample opportunity for the judiciary
to be informed of exactly (i) what would have taken place by
the Board had the Department of Justice kept its word, and (ii)
[footnote continued]
60a
efforts to obtain from the Board of Paroles a deter-
mination of what would be done to respect the Govern-
ment’s promise that petitioner would not serve more
‘than three years in prison. Petitioner has thus been
doubly dishonored: by Government inaction, and by a
woeful lack of integrity on the part of government
officers either to acknowledge its obligations or to obey
the mandate of the Court.
The language of Santobello quoted by the appellate
court in its opinion,!® i.e.,
“This phase of the process of criminal justice, and
the adjudicative element inherent in accepting a
plea of guilty, must be attended by safeguards to
insure the defendant what is reasonably due in the
circumstances. Those circumstances will vary, but a
constant factor is that when a plea rests in any
significant degree on a promise or agreement of
the prosecutor, so that it can be said to be a part
of the inducement or consideration, such promise
must be fulfilled,”
compels, I think the result originally reached in this
matter.
The Government takes the position that because it
has now exerted its “best efforts” to carry out its part
of the bargain—albeit long past any reasonable time for
recognizing that obligation to do so; and only because
required to do so by judicial mandate; and, without any
what would now take place if, on a full disclosure of the positive
commitment and the consequent violation of Bauer’s constitu-
tional rights, the matter would be resubmitted to the Board.
Both the Board and its hierarchical superiors are to respond
authoritatively on this.”
\[Geisser v. United States, 513 F.2d 862, 871 (5th Circuit
1975).
6la
effort to comply with the other half of the bargain
(parole by the Board)—it can ignore the constitutional
question involved and insist that the terms of an
international extradition treaty be the sole determining
factor.
Initially, as has been pointed out above, the Court
does not agree that the Government has, indeed, used
its best efforts to forestall petitioner’s extradition. Its
“best efforts,” to be charitable, have been too little,
and too late.
It is not without regret for the impact which this
decision may have upon our Government’s diplomatic
relations with a foreign government that I find against
the Government in this matter. But simply because
departments of the Executive Branch decline to bear an
onus which may attach to their obligations of defending
rights granted by our Federal Constitution, such acqui-
escence to diplomacy or legalistic formality cannot
justify the Judiciary’s following a similar course. The
sanctity of the Constitution, and the protections it
guarantees, are the foremost considerations here. The
“constitutional obligations owing Bauer’’ recognized by
the Fifth Circuit!! must take precedence over any
treaty obligations to a foreign nation. If, as the Opinion
of the Fifth Circuit intimates, this result causes Switzer-
land to feel aggrieved, “its avenues of redress would
more likely be through diplomatic means or in inter-
national tribunals.’’!*
The Government’s motion to dismiss the habeas
corpus petition is denied. Consequently, petitioner’s
Nig., at 870.
l214., at 873.
FP ET Sa a ES SR TO PY 8!
62a
application for release is granted. It is ordered that the
extradition order entered in Cause No. 67-10 be va-
cated, stricken and held for naught, and that petitioner
be released forthwith from any form of detention
arising from that proceeding, from her conviction for
escape, or from these consolidated proceedings.
ee
63a
APPENDIX F
Petition of Josette GEISSER, Divorced
Bauer, a/k/a Paulette Louise Fallai.
Josette Claire BAUER, nee Geisser, a/k/a
Paulette Louise Fallai,
Petitioner-Appellee,
V.
UNITED STATES of America,
Respondent-Appellant,
Alfred Keller, Consul General of the
Government of Switzerland,
Intervenor-Appellant.
No. 76-3324
United States Court of Appeals,
Fifth Circuit.
June 22, 1977.
Before TUTTLE, WISDOM and COLEMAN, Circuit
Judges.
WISDOM, Circuit Judge:
This is the second time this Court has been asked to
balance the rights of this petitioner to the plea bargain
she made with the United States Government against
the obligations of the Government under an extradition
treaty with Switzerland. The facts of the case are set
out in full in the opinion by Chief Judge Brown issued
in the first appeal. Geisser v. United States, 5 Cir. 1975,
513 F.2d 862. The petitioner, Josette Claire Bauer, nee
Geisser, escaped from a Swiss prison where she was
serving a sentence for patricide. On August 31, 1967,
she and an accomplice, Willy Lambert, were arrested in
64a
Miami for attempting to smuggle 28 pounds of heroin
into this country as part of an international drug
smuggling conspiracy. To gain information from them
and their assistance to the prosecutor, representatives of
the Justice Department and the local United States
Attorney’s office engaged in plea negotiations. Bauer
and Lambert consented to plead guilty to charges
carrying lesser sentences in return for divulging their
knowledge of the domestic and international drug con-
spiracy in which they were involved, and to testify
against their superiors in the ring. The United States
Government agreed to reindict them for lesser offenses,
to secure their parole after three years, and to use its
best efforts to prevent the extradition of the two to
Switzerland or France. The last part of the bargain
became necessary to gain the cooperation of Bauer and
Lambert because they were “obsessed by their intense
fear of reprisals—a fear all the agents concerned ac-
cepted as well-founded.” Geisser v. United States, 513
F.2d at 864. Bauer and Lambert kept their bargain.
Indeed Josette Bauer was a particularly valuable witness
because of her “remarkably retentive memory.” Before
the plea bargaining was concluded the Swiss Govern-
ment sought and obtained, on November 2, 1967, in
the Southern District of Florida an order certifying the
extraditability of Bauer.
In her habeas corpus petition Josette Bauer seeks to
compel the Government to keep its part of the bargain;
she asks for specific enforcement of the plea agreement
and an injunction against the extradition order. In the
initial response to the petition Judge Mehrtens, who
also presided over the guilty pleas of Bauer and
Lambert, held an extensive hearing. He concluded that
the United States Government failed to keep both the
65a
parole and extradition aspects of the bargain. Judge
Mehrtens found that there was a definite agreement
that Bauer would not serve more than three years in
prison and that she would not be deported to France or
Switzerland.
In the first appeal in this case the United States
Government did not challenge any of the findings of
fact of the district court except the part of its decision
that found an absolute agreement to prev:nt extradition
to France or Switzerland. The Departraent of Justice
has contended that its commitment to Bauer and
Lambert was no more than to use its “best efforts’’ to
prevent Bauer’s extradition.
This Court, through Judge Brown, decided that it
needed “‘an authoritative declaration of the position of
the United States Government—not just that of one or
more departments or agencies.” Geisser v. United
States, 513 F.2d at 869. It reasoned:
we are not at all sure that a Secretary of State
who is instructed by the chief legal officer of the
nation that failure to keep the bargain is a plain
violation of Bauer’s constitutional rights would
persist in the steps to effectuate extradition.
(Footnote omitted.)
Id. The Court rejected the Government’s claim that
Bauer’s habeas corpus action was not ripe and that the
district court judgment should be vacated because of
the failure to join the Confederation of Switzerland as
an indispensable party under Rule 19(a), F.R.Civ.P.
Instead the Court vacated the district court’s order and
remanded the case for further proceedings, if they
became necessary:
Several things are to be accomplished by and on
the remand. The Government shall, after considera-
66a
tion of the promise made and the failure to keep
all or part of it by the respective officials at the
highest levels, state unequivocally the position of
the United States Government. In the event that
position does not result in the effectual release of
Bauer from the restraints or prospects or threats
thereof, the District Court shall conduct further
hearings after allowing fullest discovery on all
issues and particularly on the question of just what
has been done with the promise “to use our best
efforts” and the reasons why, if any, steps have
not been taken or why they have been ineffectual.
(Footnote omitted.)
Geisser v, United States, 513 F.2d at 871-72. Thus, the
United States Government was given a second chance to
keep its bargain, preferably through diplomatic channels
without further judicial action, or to explain why it
could not prevent Bauer’s extradition if that was the
result of its efforts.
On remand Judge Mehrtens again held a hearing on
the question of Bauer’s extradition.! Although not
required to do so by this Court, the district judge also
permitted the Consul General of Switzerland to inter-
vene in the action. The record in this case contains
documentary evidence on the efforts of the Depart-
ments of Justice and State to prevent Bauer’s extradi-
tion to Switzerland or France. The first step was taken
by the Department of State in a letter written on
October 3, 1975, by Deputy Attorney General Harold
I The petitioner’s counsel conceded to Judge Mehrtens that
the Government’s failure to make a recommendation to the
Board of Parole for Bauer’s release after three years is moot
because she is no longer in prison.
67a
R. Tyler, Jr., to Secretary of State Henry A. Kissinger.”
The letter described this Court’s negative reaction to
210/3/75
Honorable Henry A. Kissinger
Secretary of State
Washington, D.C.
Dear Mr. Secretary:
A recent decision of the United States Court of Appeals for
the Fifth Circuit requires that we resolve a matter of mutual
interest to our Departments.
The Court of Appeals believed the case was properly char-
acterized as one involving “the great United States going back on
its word in a plea bargain made by the Department of Justice
which assured the Government of vital indispensible evidence
leading to conviction of principals in a grand scale international
heroin importing conspiracy”. The Court refers to an agreement
negotiated between this Department and one Josette Geisser
Bauer, a Swiss citizen.
In 1964, Josette Bauer escaped from a correctional institution
in Bern, Switzerland, where she was confined for patricide. In
August 1967, she and a confederate were apprehended in Miami
on charges of smuggling heroin into the United States. Because
the heroin seizure was decidedly large-scale and because Bauer
and her accomplice were mere couriers, this Department enter-
tained a greater intelligence than prosecutorial interest in these
individuals. Once we had ascertained that she possessed valuable
information, the Department began negotiating a mutually satis-
factory agreement with Bauer and her attorney. Subsequently, in
November of 1967, Switzerland, on the basis of the incompleted
sentence for patricide, obtained a court order certifying that
Bauer was subject to extradition. As part of the agreement
eventually concluded between Bauer and our representatives, we
agreed to use our best efforts to assure that she would not be
returned to Switzerland by our Government, despite the ex-
istence of this outstanding order of extradition. For her part,
Bauer gave cruical testimony in subsequent trials and provided us
with intelligence information that was characterized as invaluable
by our officials.
In August of 1973, Bauer brought a successful action in the
United States District Court for the Southern District of Florida
[footnote continued]
68a
the Justice Department’s failure to do anything to keep
its bargain with Bauer. Deputy Attorney General Tyler
conceded: ‘The Court of Appeals was correct in finding
for specific performance of this agreement. The District Court
entered an order forever estopping the Government from en-
forcing the order of extradition outstanding against her. The
Court in effect construed the commitment to Bauer as an
absolute guarantee that she would not be extradited. Its basis for
doing so was her stated recollection of the agreement and the
view of our representative that she could have received this
impression as the commitment was embellished by representa-
tions as to the probable success of our efforts on her behalf as
well as assurances that ‘Washington keeps its deals’’.
For the primary purpose of asserting Switzerland’s interest in
these proceedings, the Justice Department appealed the District
Court order. However, the Court of Appeals rejected our argu-
ment that the order was invalid because Switzerland was an
indispensible party to these proceedings affecting her interests
and should therefore have been joined. The Court also found it
unnecessary to decide whether the commitment to Bauer in-
volved an absolute guarantee that she would not be extradited,
apparently believing that her constitutional rights had been
violated by failure of the Government to make any effort to
assure that she was not returned to Switzerland. Thus, the Court
expressed the view that foreclosing extradition was in all prob-
ability the only remedy available to her at this time.
However, rather than affirming the District Court order of
estoppel—which would have been not only a bad precedent but
would have involved, as the Court noted, the judiciary “treading
upon delicate international relations,” the Court of Appeals has
remanded the case to the District Court for “an authoritative
declaration of the position of the United States Government”’ as
regards its intent with respect to enforcement of the extradition
order.
The Court of Appeals has made quite plain its hope that the
matter will not have to be resolved by the judiciary. Equally
plain is the Court’s inclination to uphold, if necessary, the
commitment to Bauer, presumably by affirming an order of
estoppel on the theory that individual constitutional rights are
superior to the Government's treaty obligations. Given the
Court’s conclusion that a promise was made but not fulfilled, we
[footnote continued ]
69a
that we had made no effort to prevent Bauer’s return
to Switzerland.” In addition, he concluded that “all
find this theory persuasive and, accordingly, request that the
outstanding order for Bauer’s extradition not be executed.
The Court of Appeals was correct in finding that we had
made no effort to prevent Bauer’s return to Switzerland. Any
impetus to do so was lost when, in October of 1969, she escaped
from prison where she was confined pursuant to a sentence
received on her guilty plea to reduced charges, which also
constituted part of our agreement with her. The Court, however,
was receptive to Bauer’s position that the escape was effected
only because she greatly feared being returned to Switzerland
and had been told that the Government, notwithstanding its
commitment in this regard, intended to extradite her to Switzer-
land.
We are not unmindful that Switzerland’s interests have been
compromised and have taken steps to ensure that a problem of
this nature does not recur. Instructions have been issued that any
future agreements regarding such matters must be approved in
advance by this Department.
However, we must of course deal with the matter in its
present posture. We would not wish to countenance a plain
violation of Josette Bauer’s constitutional rights, and in the
circumstances presented, it is our view that all interests would be.
advanced by a decision not to execute the outstanding extradi-
tion order.
We share the hope of the Court of Appeals that this matter
will not ultimately have to be resolved by the judiciary, though
we have little doubt as to what its resolution will be should it
come to that. Therefore, I would be most appreciative of your
assistance in resolving this vexing problem which creates dif-
ficulties for you in our relationship with Switzerland as well as
difficulties for the Department of Justice in its relationship with
the judiciary.
We are enclosing for your further consideration a copy of the
opinion of the Court of Appeals and will attempt to continue
further court proceedings pending our receipt of your advice at
your earliest convenience.
Sincerely,
Harold R. Tyler, Jr.
Deputy Attorney General
70a
interests would be advanced by a decision not to
execute the outstanding extradition order.” On March
19, 1976, Deputy Secretary of State Robert S. Ingersoll
responded to the Tyler letter.2 He stated that the
3 March 19, 1976
[The Honorable Harold R. Tyler, Jr.,
Deputy Attorney General]
Dear Mr. Tyler:
Your letter of October 9, 1975, relating to the pending
extradition of Josette Geisser Bauer has been carefully reviewed
by this Department. We have also carefully examined the Extra-
dition Treaty between the United States and Switzerland signed
at Washington May 14, 1900 (31 Stat. 1928) and its two
supplements (49 Stat. 3192) and (55 Stat. 1140).
While we understand the difficulty presented by the decisions
of the courts in this matter and are sympathetic to your concern,
which we share, that this matter affecting international relations
will be resolved by the judiciary, the treaty in question does not
provide discretionary authority to the Secretary of State to
withhold extradition properly requested by the Government of
Switzerland. Article I, for example, states that the “Government
of the United States of America and the Swiss Federal Council
bind themselves mutually to surrender such persons as, be-
ing...convicted of any of the crimes or offenses enumerated
hereinafter in Article II....’’ Article II states that extradition
“shall be granted for the following crimes and offenses...”
Neither District Judge Clyde Atkins in the 1967 extradition
proceeding, nor this Department, have found applicable any of
the defenses enumerated in Articles VII, VIII, or IX of the
treaty.
Nevertheless, mindful of the commitment made by repre-
sentatives of the Department of Justice, even though without the
authorization or approval of the Department of State, to exert
best efforts to assure that Ms. Bauer would not be returned to
Switzerland, the Department of State has held discussions with
representatives of the Embassy of Switzerland and had two
exchanges of notes on this subject. After an initial exchange of
notes of October 24 and December 11, 1975 (enclosed), in
which the Swiss Government maintained its request and ex-
[footnote continued]
7la
extradition treaty between the United States and the
Government of Switzerland provids no discretionary
authority for the Secretary of State to withhold extra-
dition. Deputy Secretary of State Ingersoll enumerated
the actions taken by the Department as part of the
“best efforts” obligation. On October 24, 1975, in a
pressed the opinion that not granting extradition would violate
the -obligations of the treaty, a meeting of legal representatives
was held on January 13, 1976 (memorandum of conversation
enclosed) with an expression of continued strong Swiss interest
in the extradition of Ms. Bauer. Finally, a first person note was
sent to the Charge d’Affaires of the Embassy of Switzerland
urging his government to withdraw its extradition request (en-
closed). The response of the new Ambassador, addressed to the
Secretary of State and dated March 15, 1976 has just been
received (enclosed). For the reasons stated in that note, the Swiss
Government continues to maintain its extradition request.
Our repeated attempts at different levels to have the Swiss
Government withdraw its extradition request having been un-
successful, and in the absence of discretion under the treaty, it is
my view that the United States Government has made its best
efforts to assure that Ms. Bauer will not be returned to Switzer-
land. I believe the unauthorized assurances of Justice Department
representatives can and should require no more.
In this connection, I am pleased to note that your Depart-
ment has taken steps to ensure that a problem of this nature
does not recur. While your letter describes the instructions as
being that any future agreements be approved in advance by
your Department, I expect that no such approval, directly
affecting treaty obligations and the conduct of foreign relations,
will be given without the concurrence of the Department of
State.
Finally, I note that the Swiss Government throughout has
expressed its willingness for its views to be communicated to the
court, both through the enclosed documents and through parti-
cipation in the hearing later this month.
Sincerely,
s/Robert S. Ingersoll
Robert S. Ingersoll
72a
note to the Embassy of Switzerland, the State Depart-
ment simply requested “the views of the Embassy” on
two letters, including the one from Tyler, that had been
transmitted to the Department on the Bauer case. In
response, the Swiss Embassy wrote on December 11,
1975, that it had decided to continue to maintain its
request for Bauer’s extradition and enclosed a memo-
randum on applicable United States law in support of
the request. In the memorandum legal counsel to the
Embassy concluded that the October 9, 1975, letter of
Deputy Attorney General Tyler constituted “best ef-
forts” within the meaning of the agreement with Bauer
and that because the bargain had thus been kept, the
State Department was obligated by the treaty to assist
in Bauer’s extradition.
On January 13, 1976, a meeting of representatives
from the State Department and the Swiss Embassy was
held in connection with the issue of Josette Bauer’s
extradition. The memorandum of the meeting suggests
that much of it was devoted to a discussion of the legal
issues in the case. The Swiss also reiterated the coun-
try’s demand for Bauer’s extradition. A note from the
Department of State to the Swiss Charge d’Affaires
followed the meeting; in it the Department reiterated
its suggestion that “it would be in the best interest of
both our Governments... to terminate the litigation in
this case”. The Department also voiced its agreement
with the Embassy of Switzerland that the extradition of
Bauer would be proper under the treaty. The note
stated that the “very stringent view” of the Court of
Appeals for the Fifth Circuit obligated the United
States Government to attempt to prevent her extradi-
tion. The Ambassador from Switzerland responded on
March 15, 1976: “[I]n order to preserve its important
73a
interests in the administration of justice and its rights
under the treaty in question, [the Swiss Confederation]
must respectfully maintain its request for Ms. Geisser’s
extradition.”
After considering this evidence the district court
concluded:
[T]he Court does not agree that the Govermment
has, indeed, used its best efforts to ferestall peti-
tioner’s extradition. Its “best efforts,’ to be chari-
table, have been too little, and too late.
This determination was based in part on the court’s
finding that in the 1975 communications with the
Department of State the Justice Department failed to
mention the petitioner’s “well-founded fears for her life
should extradition be effected as a matter of a primary
concern to both the United States and Switzerland”.
The district court granted the petitioner’s application for
release and vacated the extradition order. The United
States and the Consul-General of Switzerland, as an inter-
venor, appeal that order.
I.
THE BARGAIN AND ITS BREACH
The agreement made by the United States with Bauer
had several elements; the extradition issue remains to be
resolved. The nature of the bargain with regard to
extradition has been characterized in two ways. After
the first hearing on Bauer’s habeas corpus petition,
Judge Mehrtens found that the Justice Department
made a definite agreement with Bauer that she would
not be deported to Switzerland or France upon her
release from prison. On appeal the Government chal-
lenged that finding of fact, arguing that the obligation
74a
involved only the Government’s promise to use its “‘best
efforts” to prevent Bauer’s extradition.
In its first opinion this Court remanded the case to
the district court for further hearings on the question
of “just what has been done with the promise ‘to use
our best efforts’”’. Geitsser v. United States, 513 F.2d at
872. Thus the Court concluded that the agreement
made by the Government could most accurately be
characterized as a promise to use “best efforts’’ to
prevent Bauer’s extradition. In conformance with this
conclusion Judge Mehrtens evaluated the Government’s
actions from a “best efforts’? perspective and found
them inadequate. We agree.
In this Court’s first opinion Chief Judge Brown
suggested how the Government could comply with its
“best efforts’? promise to Bauer:
The best effort would, at a minimum, be a strong
presentation to the Department of State as to
what had been promised and the likely dangers to
the bargainee-defendant-witness.
Geisser v. United States, 513 F.2d at 869. The docu-
mentary evidence presented to the district court fails
to reveal a “best efforts” performance by the United
States Government through the Departments of State
and Justice. The letter written by Deputy Attor-
ney General Tyler only obliquely refers to the reason
for the nonextradition agreement.* In none of the
documents is there a “strong presentation” of the likely
dangers to Bauer suggested by this Court. Under the
“best efforts” bargain the Government obligated itself
to serve, in effect, as Bauer’s personal advocate on the
4 See note 2 supra, at para. 8.
75a
issue of her extradition. In contrast, the !etters are
written from the perspective of those concerned not so
much about commitments to a client but about a
damaging legal precedent. The reasons underlying the
original bargain, Bauer’s admirable performance in
keeping her part of the agreement, her “intense fear of
reprisals”, and the conclusion of Government agents on
the case that her fears were well-founded were never
presented to the State Department by the Department
of Justice nor by the former to the Swiss Confedera-
tion.
The Department of Justice conceded at oral argu-
ment that Deputy Attorney General Tyler’s letter to
Secretary of State Kissinger did not contain a represen-
tation that Bauer feared for her life on extradition to
Switzerland and that some Justice Department staff
members had concluded at the time of the bargain that
her fears were well-founded. The Department neverthe-
less contends that such an omission is irrelevant because
the Swiss Embassy was aware of such concerns and
concluded they were unrealistic. We do not agree. The
“best efforts” bargain requires that the Government
advocate Bauer’s case for nonextradition to Switzerland
and France in the most effective terms possible. Her
intense fear for her life was the predicate for the
bargain, and the Government’s failure to explain fully
and strongly this part of the agreement reduced its
advocacy of her cause almost to an empty gesture.
In Santobello v. New York, 1971, 404 U.S. 257, 92
S.Ct. 495, 30 L.Ed.2d 427, the Supreme Court held
that the petitioner’s constitutional rights had been
violated when the prosecutor failed to keep its bargain
to make no sentence recommendation. The Court
reached this result even though the judge stated at
76a
sentencing that he was “not at all influenced” by the
district attorney’s recommendation.
We need not reach the question whether the
sentencing judge would or would not have been
influenced had he known all the details of the
negotiations for the plea. He stated that the
prosecutor’s recommendation did not influence
him and we have no reason to doubt that. Never-
theless, we conclude that the interests of justice
and appropriate recognition of the duties of the
prosecution in relation to promises made in the
negotiation of pleas of guilty will be best served
by remanding the case to the state courts for
further consideration.
404 U.S. at 262-63, 92 S.Ct. at 499. The same reason-
ing applies here. The Government promised to use its
“best efforts” to prevent Bauer’s extradition, and this
Court determined that the commitment at a minimum
requires a “strong presentation” of what was promised
and of the likely dangers to the bargainee. The Govern-
ment failed to make such a presentation. That the Swiss
may to some extent be aware of her fears does not
relieve the Government of the obligation to make the
strongest case possible for the nonextradition of Bauer
to Switzerland and France. As the Supreme Court
stated in Santobello: “‘[W]hen a plea rests in any
significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be
fulfilled.” 404 U.S. at 262, 92 S.Ct. at 499.
The First Circuit has suggested the proper focus in
this situation:
We must lastly observe, because of the govern-
ment’s argument here, that a prosecutorial failure
to fulfill a promise or to make a proper promise is
77a
not rendered harmless because of judicial refusal to
follow the recommendation or judicial awareness
of the impropriety.... [I]t is the defendant’s
rights which are being violated when the agreement
is broken or meaningless. It is his waiver which.
must be voluntary and knowing.
Correale v. United States, 1 Cir. 1973, 479 F.2d 944,
949. Similarly, the reaction of the Swiss is irrelevant to
the Government’s obligation to keep its agreement. Our
focus here must be on the nature of the promise made
to Bauer. A plea bargain is contractual in nature; and
when the prosecution breaches the agreement, the en-
tire legal basis for the plea fails. See United States v.
Brndgemen, 1975, 173 U.S. App. D.C. 150, 523 F.2d
1099, 1109-10, cert. denied, 425 U.S. 961, 96 S.Ct.
1743, 48 L.Ed.2d 206; United States v. Gorham, 1975,
173 U.S. App.D.C. 139, 523 F.2d 1088, 1097. Because
a guilty plea involves a waiver of constitutional rights,
McCarthy v. United States, 1969, 394 U.S. 459, 89
S.Ct. 1166, 22 L.Ed.2d 418, it must be made volun-
tarily. The Supreme Court established the standard for
voluntariness in Brady v. United States, 1970, 397 U.S.
742, 90 S.Ct. 1463, 25 L.Ed.2d 747, by quoting a
passage from a dissenting opinion by Judge Elbert
Tuttle:°
[A] plea of guilty entered by one fully aware of
the direct consequences, including the actual value
of any commitments made to him by the court,
prosecutor, or his own counsel, must stand unless
SShelton v. United States, 1957, 242 F.2d 101, 115 (Tuttle,
J., dissentin 7), approved en banc, 5 Cir., 246 F.2d 571, 572 n. 2,
rev'd on confession of error on other grounds, 1958, 356 U.S.
26, 78 S.Ct. 563, 2 L.Ed.2d 579.
78a
induced by threats (or promises to discontinue
improper harassment), misrepresentation (including
unfulfilled or unfulfillable promises) or perhaps by
promises that are by their nature improper as
having no proper relationship to the prosecutor’s
business (e.g. bribes).
397 U.S. at 755, 90 S.Ct. at 1472. Here a promise
remains unfulfilled, and the plea is therefore in-
voluntary unless the breach is remedied. “It is axio-
matic [under Santobello] that no guilty plea that has
been induced by an unkept plea bargain can be per-
mitted to stand.” Dugan v. United States, 5 Cir. 1973,
521 F.2d 231; United States v. Pihakis, 5 Cir. 1977,
545 F.2d 973; Scrivens v. Henderson, 5 Cir. 1976, 525
F.2d 1263, cert. denied, 429 U.S. 919, 97 S.Ct. 311,
50 L.Ed.2d 285.
As the foregoing discussion suggests, the district
court’s finding that the Government failed to use its
“best efforts’ to forestall the petitioner’s extradition is
not clearly erroneous. Fed.R.Civ.P. 52(a). We reject the
Department of Justice’s contention that the clearly
erroneous standard is inapplicable to review a record
confined to documentary evidence. The rule in this
Circuit is clear and has been reiterated many times:
The appellant’s burden, under Fed.R.Civ.P. 52(a),
of showing that the trial judge’s findings of fact
are ‘clearly erroneous’ is not as heavy...as it
would be if the case had turned on the credibility
of witnesses appearing before the trial judge....
However, regardless of the documentary nature of
the evidence and the process of drawing inferences
from undisputed facts, the reviewing court must
apply the ‘clearly erroneous’ test. (Footnote omit-
ted.)
79a
Sicula Oceanica, S. A. v. Wilmar Marine Eng. & Sales
Corp., 5 Cir. 1969, 413 F.2d 1332, 1333-34. See
Volkswagen of America, Inc. v. Jahre, 5 Cir. 1973, 472
F.2d 557, 559; Burston v. Caldwell, 5 Cir. 1975, 506
F.2d 24, 26-27, cert. denied, 421 U.S. 990, 95 S.Ct.
1995, 44 L.Ed.2d 480. Under the clearly erroneous test
the district court’s finding of a breach of the plea
bargain by the Government must stand.®
Sin this appeal the appellant, Department of Justice, and the
intervenor appellant, Consul General of the Government of
Switzerland, raise several issues that have not been previously
contested in this case. The Swiss Confederation argues that the
nonextradition promise was not part of the original plea bargain
and therefore that Bauer waived no constitutional rights in
reliance on it. The Department of Justice makes a similar claim,
that the “best efforts” representation was not an integral part of
the plea bargain. In addition, the intervenor contends that Bauer
materially breached the plea bargain by escaping from prison and
thus has no right to enforcement of the agreement. After the
first hearing in this case, Judge Mehrtens found that the Govern-
ment’s nonextradition agreement was an integral part of the plea
bargain. In the initial appeal Chief Judge Brown specifically
noted in his opinion that “the Government does not challenge
the findings of fact of the District Court” Geisser v. United
States, 513 F.2d at 868. On remand the district court was
charged with determining how the Government would keep its
bargain. Jd. at 871-72. Thus, the Department of Justice and the
Swiss Consul General are challenging a factual finding made in
the first habeas corpus hearing and not subsequently contested.
The Government is bound by its decision not to challenge the
finding of the district court that the nonextradition agreement
was an integral part of the plea bargain. In addition, an
intervenor must accept the proceedings as he finds them. The
Swiss Consul General intervened after the district court’s factual
findings as to the nature of the agreement were made and
accepted by this Court on appeal, with one modification. The
intervening Swiss Confederation has no right to relitigate the
issues. Johnson v. Middleton, 7 Cir. 1949, 175 F.2d 535; Hartley
Pen Co. v. Lindy Pen Co., S.D.Cal.1954, 16 F.R.D. 141, 153.
[footnote continued]
80a
II.
REMEDY
When a plea bargain is breached, the courts must
fashion a remedy that insures the petitioner “‘what is
reasonably due in the circumstances”. Santobello v.
New York, 404 U.S. at 262, 92 S.Ct. at 499. See also
United States v. I. H. Hammerman, II, 4 Cir. 1975, 528
F.2d 326, 332. And what is reasonably due “will vary’’.
Correale v. United States, 1 Cir. 1973, 479 F.2d 944,
950. Generally, the bargain is “either specifically en-
forceable between the parties to the agreement or the
plea is void” (emphasis in original). Gallejos v. United
States, 5 Cir. 1972, 466 F.2d 740, 741. In Santobello
the Supreme Court discussed possible remedies:
The ultimate relief to which petitioner is entitled
we leave to the discretion of the state court, which
is in a better position to decide whether the
circumstances of this case require only that there
be specific performance of the agreement on the
plea, in which case petitioner should be resen-
tenced by a different judge, or whether, in the
view of the state court, the circumstances require
granting the relief sought by petitioner, ze., the
opportunity to withdraw his plea of guilty. (Foot-
note omitted.)
404 U.S. at 263, 92 S.Ct. at 499. The alternative
involving withdrawal of the guilty plea and resentencing
before a different judge was available in Santobello
See 3B Moore’s Federal Practice 424.16[1] and n. 8 (1977). We
therefore reject arguments that challenge the determination that
in pleading guilty Bauer waived her constitutional right to a fair
trial in reliance on the Government’s promise to use its “best
efforts” to prevent her extradition to France and Switzerland.
8la
because the petitioner had been released on bail pend-
ing appeal and had not yet begun to serve his sentence.
“The court therefore had no reason to consider other
possible means of providing specific enforcement.”’ Cor-
reale v. United States, 1 Cir. 1973, 479 F.2d 944, 950.
Chief Judge Brown discussed the remedies available
in this case in his opinion in the first appeal:
[T]he avenues of redress available for Bauer are
few. Eradicating the impact of her testimony is
impossible. And, of course, an opportunity to
replead seems superficial and unrealistic in view of
her long confinement. Specific performance may
well be the only way out to keep the bargain.
Geisser v. United States, 513 F.2d at 871. The district
court’s remedy gives decisive weight to Bauer’s fears for
her life on extradition to Switzerland or France; it
vacated the outstanding extradition order against Bauer.
We decline to go that far at this juncture. We conclude
that a narrowly drawn remedy specifically enforcing the
Government’s “best efforts” agreement is required. The
Government must again try to prevent Bauer’s extradi-
tion to Switzerland or France. We are not convinced
that the vast powers of persuasion at the command of
the Departments of Justice and State have been ade-
quately applied to Bauer’s cause. The bargain she made
with the United States Government in entering her
guilty plea and waiving her constitutional rights requires
no less.
While retaining jurisdiction, we remand the case to
the district court if, in the discretion of that court,
further proceedings are necessary or appropriate. The
Government has a reasonable time in which to use its
“best efforts’? to prevent the extradition of Bauer to
Switzerland or France. Enforcement of the extradition
82a
order outstanding against Bauer must of course be held
in abeyance until this case has been resolved.
III.
DISQUALIFICATION OF DISTRICT JUDGE
The intervenor-appellant, the Consul General of Swit-
zerland, contends that Judge Mehrtens, as a material
witness to disputed facts concerning the plea bargain in
this case, had an obligation to disqualify himself under
28 U.S.C. §455 (1970).’ According to the Swiss repre-
sentative, at the time Judge Mehrtens presided over
Bauer’s guilty plea he became aware of the elements of
the bargain put into dispute by her habeas corpus
petition and therefore is a material witness to those
facts. The appellee, Bauer, responds that Switzerland
intervened at the time of the second hearing when the
only issue before Judge Mehrtens was whether the
Government had used its “best efforts” to keep its
bargain with Bauer.® At that point in the case the
district court’s independent knowledge of the elements
of the bargain was not at issue. The Swiss Consul
General’s response in its reply brief is that Judge
Me.irtens has a continuing obligation to disqualify him-
self.
The Fourth Circuit in United States v. Smith, 4 Cir.
1964, 337 F.2d 49, cert. denied, 1965, 381 U.S. 916,
798 U.S.C. §455 (1970), 62 Stat. 908, before its amendment,
provided:
Any justice or judge of the United States shall disqualify
himself in any case in which he...is or has been a
material witness ....
8 See note 6 supra.
83a
85 S.Ct. 1542, 14 L.Ed.2d 436, rendered a thoughtful
opinion analyzing the relationship between section 455
and 28 U.S.C. § 2255 (1970), authorizing habeas corpus
petitions by federal prisoners. The court concluded:
It would be anomalous, indeed, having determined
that the purpose of section 2255 was to permit
the trial judge, because of his familiarity with the
proceedings and ability to supplement the record,
to pass upon motions thereunder, now to ascribe
to Congress the intention to disqualify any judge
possessing that familiarity with the proceedings
from passing upon the motion. We are of the
opinion that sections 2255 and 455 of Title 28
should be construed together. So construed, it is
apparent that the district judge here was not a
material witness within the meaning of the latter
section.
337 F.2d at 53. In line with the position taken by most
of the other circuits, McKinney v. United States, 9 Cir.
1973, 487 F.2d 948, 949-50; Hoffa v. United States, 6
Cir. 1973, 471 F.2d 391, 394, cert. denied, 414 U.S.
880, 94 S.Ct. 159, 38 L.Ed.2d 125; Mirra v. United
States, 2 Cw. 1967, 379 F.2d 782, 788, cert. denied,
389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 677, we
adopt the Smith court’s reasoning and reject the inter-
venor’s contention that Judge Mehrtens has an obliga-
tion to disqualify himself as a material witness.
VACATED AND REMANDED.
COLEMAN, Circuit Judge, concurring in part and
dissenting in part.
I agree that Judge Mehrtens was not disqualified.
I agree with what is said in the remainder of the
majority opinion, but I cannot concur in it, because it
84a
does not reach what I believe to be the fundamental
issues in the case.
I
Article VI of the Constitution commands that ‘“‘all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land’’.
For seventy seven years the United States has had an
extradition treaty with the Swiss Confederation, ratified
by the Senate. Nobody contends that this treaty in any
manner violates the Constitution itself.
I therefore take the position that the obligations of
the Treaty cannot be bargained away by any federal
prosecutor, however sincere the effort. Being a part of
the supreme law, binding on every officer of the United
States, the treaty terms could not be modified or
diminished by a plea bargain in a court which had no
authority to amend or abrogate the Treaty. Conse-
quently, that part of the plea bargain which attempted
to commit the United States to any course of action
inconsistent with the Treaty violated the Constitution. I
respectfully suggest that it is void and entitled to no
notice by the courts.
Moreover, before this putative plea bargain was made,
the Swiss government had filed in [sic] extradition com-
plaint against Mrs. Geisser in federal district court. A
hearing was held, in which she was present, along with
counsel. The court announced its order that she would
be extradited to Switzerland when the criminal case
against her was completed and any sentence imposed
was served. Consequently, she could not have been
misled or overreached in the matter of her actual status.
She was simply clutching at any possible straw to avoid
85a
returning to a Swiss prison. Thus far, she has been
successful.
II
In Santobello the plea bargaining was concerned with
the sentence which was to follow a guilty plea. The
prosecutor had agreed that he would make no recom-
mendation on that subject. A subsequent prosecutor,
unaware of the agreement, breached it. The Supreme
Court held that the agreement had to be kept. The
point is that the Court was considering only the
sentencing process. It was not concerned with an agree-
ment to take action on subjects outside the normal
function or jurisdiction of the court in which the
pledge was made.
In my opinion, that part of plea bargains freighted
with promises outside the sentencing process and be-
yond the jurisdiction of the Court should neither be
allowed nor enforced. Most assuredly this should be
true as to subjects over which the Department of
Justice has no jurisdiction, more especially where the
defendant has not been misled by representations of the
prosecutor.
As I understand this record, the purported agreement
was made not to obtain a guilty plea but to get the
fugitive to testify against some of her confederates. The
defendant was clutching at straws but, so far, the straws
have been more effective than a solemn treaty of the
United States, a result which I cannot countenance.
II
Lastly, I am of the view that if the promise is
enforceable, the Department has shown reasonable com-
86a
pliance with its agreement. Its efforts are set forth in
the majority opinion. I think they were enough. It was
never thought that the Department could do any more
than “ask”, and ask it did. The Swiss government
declined to relent, whereupon the duty of the Secretary
of State, under the Treaty, is beyond dispute. This
defendant’s record demonstrates that she is more than
able to take care of herself. Not only did she escape
from a Swiss prison but she also escaped from federal
custody and it was nearly three years after the federal
escape before she was caught. So far as I know there
has been no hearing nor any findings of fact as to any
danger she might be subject to in a Swiss prison, if
indeed one can be found which would hold her. On her
unsupported assertions of fear, the rights we have
guaranteed the Swiss are further delayed, if not al-
together thwarted.
Our concern for Constitutional guaranties should
never falter, but, with deference, I feel very strongly
that our concern for Mrs. Geisser is seriously misplaced.
I would enter an order directing immediate compliance
with the Treaty.
I respectfully dissent.
87a
APPENDIX G
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
No. 73-772-Civ-WM
No. 73-773-Civ-WM
IN THE MATTER OF THE PETITION OF
JOSETTE GEISSER, DIVORCED BAUER,
a/k/a PAULETTE LOUISE FALLAI,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent,
ALFRED KELLER, CONSUL GENERAL OF THE
GOVERNMENT OF SWITZERLAND,
Intervenor.
ORDER
This matter is before the Court upon the Motion To
Discharge Petitioner, the Intervenor’s Response To Peti-
tioner’s Motion To Discharge Petitioner, as well as the
pending Motions to Dismiss the Petition for Writ of
Habeas Corpus filed by the United States and the
Intervenor. The Court being fully informed and advised,
Finds as follows:
1. That the Fifth Circuit Court of Appeals remanded
this case on August 9, 1977, in order to permit the
United States Government a reasonable period of time
“to use its ‘best efforts’ to prevent the extradition of
Bauer’’,
2. That this Court on September 9, 1977, adopted
the Fifth Circuit opinion.
88a
3. That the subsequent nominal efforts by the
United States Government on behalf of the petitioner
to prevent her extradition are wholly inadequate to
fulfill their obligation “to serve, in effect, as Bauer’s
personal advocate on the issue of her extradition’’. see,
Petition of Geisser, 554 F2d 698, 703 (5th Cir., 1977).
4. That the United States Government has failed to
use its ‘best efforts’ to prevent the extradition of
petitioner as directed by the Court of Appeals.
5. That as outlined in the motion of petitioner and
accompanying affidavit, the only moving force since the
mandate of the Court of Appeals has been the peti-
tioner.
IT IS THEREFORE ORDERED, ADJUDGED and
DECREED that the extradition order entered in Cause
No. 67-10 be vacated, stricken and held for naught and
that petitioner be released forthwith from any form of
detention arising from any form of detention arising
from these consolidated proceedings.
IT IS FURTHER ORDERED and ADJUDGED that
petitioner be and she is hereby released and discharged
from any order relating to extradition and that she is
free to continue to reside in the United States of
America.
DONE AND ORDERED this 2nd day of October,
1979, Miami FI.
s/W. O. Mehrtens
SENIOR UNITED STATES DISTRICT JUDGE
89a
APPENDIX H
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
October Term, 19
No. 79-3869
D.C. Docket Nos. 73-772-Civ-WM &
73-773-Civ-WM
In the Matter of the Petition of
Josette GEISSER, Divorced Bauer,
a/k/a Paulette Louise Fallai.
Josette Clair Bauer, Nee Geisser,
a/k/a Paulette Louise Fallai,
Petitioner-Appellee,
Vv.
UNITED STATES of America,
Respondent-Appellant,
Hector Graber, Consul General of the
Government of Switzerland,
Intervenor-Appellant.
Appeals from the United States District Court for the
Southern District of Florida
Before HENDERSON, POLITZ and WILLIAMS,
Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of
the record from the United States District Court for the
Southern District of Florida, and was argued by
counsel;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the order of
90a
the District Court appealed from, in this cause be, and
the same is hereby, vacated; and judgment rendered for
the United States of America, defendant, and Hector
Graber, Consul General of Switzerland, defendant-
intervenor.
October 10, 1980
Issued As Mandate: Nov. 14, 1980.
9la
APPENDIX I
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 79-3869
IN THE MATTER OF THE PETITION OF
JOSETTE GEISSER,
DIVORCED BAUER, a/k/a
PAULETTE LOUISE FALLAI,
JOSETTE CLAIR BAUER, NEE GEISSER,
a/k/a PAULETTE LOUISE FALLAI,
Petitioner-Appellee,
versus
UNITED STATES OF AMERICA,
Respondent-Appellant,
HECTOR GRABER, CONSUL GENERAL OF
THE GOVERNMENT OF SWITZERLAND,
Intervenor-Appellant.
Appeals from the United States District Court
for the Southern District of Florida
ON PETITION FOR REHEARING AND PETITION
FOR REHEARING EN BANC
(Opinion 10/10/80, 5 Cir., 198__, ____ F.2d
(NOVEMBER 6, 1980)
Before HENDERSON, POLITZ and WILLIAMS, Circuit
Judges.
——)
PER CURIAM:
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(X) The Petition for Rehearing is DENIED and no
member of this panel nor Judge in regular active service
on the Court having requested that the Court be polled
on rehearing en banc, (Rule 35 Federal Rules of
Appellate Procedure; Local Fifth Circuit Rule 16) the
Petition for Rehearing En Banc is DENIED.
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APPENDIX J
Fifth Amendment to the United States Constitution:
No person... shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law;....
Sixth Amendment to the United States Constitution:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have com-
pulsory process for obtaining witnesses in his favor, and
to have the Assistance of Counsel for his defence.
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APPENDIX K
Treaty between the United States and Switzerland for
the extradition of criminals. Signed at Washington May
14, 1900; ratifictation with amendments advised by
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