Petition of Geisser, 76-3324

• Decision Date: 22 June 1977
• Docket Number: No. 76-3324,76-3324
• Citation: 554 F.2d 698
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 698

554 F.2d 698

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.

Robert E. Herzstein, Brooksley E. Landau, Washington, D. C., for keller.

Robert W. Rust, U. S. Atty., Miami, Fla., Murray R. Stein, Atty., Jerome M. Feit, Katherine Winfree, John P. Rupp, Attys., U. S. Dept. of Justice, Washington, D. C., for United States.

William C. Marchiondo, Albuquerque, N. M., for Geisser-Bauer.

Appeals from the United States District Court for the Southern District of Florida.

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 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 conspiracy 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 accepted 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 Government 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 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 prevent extradition to France or Switzerland. The Department 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 consideration of the promise made and the failure to keep all or part 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.

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.)

On remand Judge Mehrtens again held a hearing on the question of Bauer's extradition. ¹ Although not required to do so by this Court, the district judge also permitted the Consul General of Switzerland to intervene in the action. The record in this case contains documentary evidence on the efforts of the Departments of Justice and State to prevent Bauer's extradition 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 R. Tyler, Jr., to Secretary of State Henry A. Kissinger. ² The letter described this Court's negative reaction to the Justice Department's failure On January 13, 1976, a meeting of representatives from the State Department and the Swiss Embassy was held in connection with the issue of Josette Bauer's extradition. The memorandum of the meeting suggests that much of it was devoted to a discussion of the legal issues in the case. The Swiss also reiterated the country's demand for Bauer's extradition. A note from the Department of State to the Swiss Charge d' Affaires followed the meeting; in it the Department reiterated its suggestion that "it would be in the best interest of both our Governments . . . to terminate the litigation in this case". The Department also voiced its agreement with the Embassy of Switzerland that the extradition of Bauer would be proper under the treaty. The note stated that the "very stringent view" of the Court of Appeals for the Fifth Circuit obligated the United States Government to attempt to prevent her extradition. The Ambassador from Switzerland responded on March 15, 1976: "(I)n order to preserve its important interests After considering this evidence the district court concluded:

to do anything to keep its bargain with Bauer. Deputy Attorney General Tyler conceded: "The Court of Appeals was correct in finding that we had made no effort to prevent Bauer's return to Switzerland." In addition, he concluded that "all interests would be advanced by a decision not to execute the outstanding extradition order". On March 19, 1976, Deputy Secretary of State Robert S. Ingersoll responded to the Tyler letter. ³ He stated that the extradition treaty between the United States and the Government of Switzerland provides no discretionary authority for the Secretary of State to withhold extradition. Deputy Secretary of State Ingersoll enumerated the actions taken by the Department as part of the "best efforts" obligation. On October 24, 1975, in a note to the Embassy of Switzerland, the State Department simply requested "the views of the Embassy" on two letters, including the one from Tyler, that had been transmitted to the Department on the Bauer case. In response, the Swiss Embassy wrote on December 11, 1975, that it had decided to continue to maintain its request for Bauer's extradition and enclosed a memorandum on applicable United States law in support of the request. In the memorandum legal counsel to the Embassy concluded that the October 9, 1975, letter of Deputy Attorney General Tyler constituted "best efforts" within the meaning of the agreement with Bauer and that because the bargain had thus been kept, the State Department was obligated by the treaty to assist in Bauer's extradition in the administration of justice and its rights under the treaty in question, (the Swiss Confederation) must respectfully maintain its request for Ms. Geisser's extradition."

(T)he 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.

This determination was based in part on the court's finding that in the 1975 communications with the Department of State the Justice Department failed to mention the petitioner's "well-founded fears for her life should extradition be effected as a matter of a primary concern to both the United States and Switzerland". The district court granted the petitioner's application for release and vacated the extradition order. The United States and the Consul-General of Switzerland, as an intervenor, appeal...