Geisser v. U.S.
| Decision Date | 27 May 1975 |
| Docket Number | No. 73-3678,73-3678 |
| Citation | 513 F.2d 862 |
| Parties | Petition of Josette GEISSER, divorced Bauer, a/k/a Paulette Louise Fallai, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. Josette Claire BAUER nee Geisser, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., Shirley Baccus-Lobel, Dept. of Justice, Crim. Div., Appellate Sec., Washington, D. C., for respondent-appellant.
William C. Marchiondo, Albuquerque, N. M., for petitioner-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
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 indispensable evidence leading to conviction of principals in a grand scale international heroin importing conspiracy. 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 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 charge 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 statutory advocate, 28 U.S.C.A. § 509 offers only the weak justification that notwithstanding breaches of constitutional 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 representations 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 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 lbs of heroin into the country aboard a ship. 1 The two "mules" 2 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 Government 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 Government. They agreed not merely to volunteer all their knowledge of the domestic and international drug conspiracy but affirmatively to testify against their superiors 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 accepted as well-founded. As a consequence, the Government attorneys responsible for the prosecutions promised them that the Government would "use its best efforts to get them to a country other than Switzerland . . . " 3 They were, as a practical matter, protected against deportation to Switzerland. 4
The full impact of both the value of their testimony and the extent of the Government's promises is conveyed in the exhibit letter of William Earle, 5 Special Attorney to the Department of Justice Organized Crime Section. The letter demonstrates that the assurances of the government were emphatic and without them the two would never have testified.
The ability of the Government to fulfill this last promise to Bauer is complicated by ancillary extradition proceedings brought against her by the Swiss Government before Judge Atkins in the Southern District of Florida under 18 U.S.C.A. § 3184. An order certifying 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. 6 Whatever might have been the duty of the United States Attorneys to intercede in the extradition 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 Mehrtens, 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
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 information. 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. 7 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. 8 She was captured on June 25, 1972 and on May 1, 1973 she was sentenced to serve 18 months for the escape to run consecutive to her remaining sentences. When she returned to prison, the Department of Justice expressly 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 him 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 detainer by the Secretary of State because it violated the plea bargain and because the Swiss offense did not fall within the...
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