# Appendix — Bauer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1274%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 450 U.S. 1031 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1274%3A2. Public record. Not legal advice.