Petition of Geisser, 79-3869

• Decision Date: 10 October 1980
• Docket Number: No. 79-3869,79-3869
• Citation: 627 F.2d 745
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 745

627 F.2d 745

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.

Rehearing and Rehearing En Banc Denied Nov. 6, 1980.

Brooksley E. Landaul, Peter R. Maier, Washington, D. C., for Consul General of Switzerland.

Sidney Monte Glazer, Atty., Dept. of Justice, Washington, D.C., for United States.

William C. Marchiondo, Albuquerque, N. M., for petitioner-appellee.

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

Before HENDERSON, POLITZ and WILLIAMS, Circuit 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 September 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 companion 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 extradition 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 conspiracy. 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. ¹

In accordance with the plea bargain, lesser indictments 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. ²

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.

Bauer was apprehended in Albuquerque, New Mexico, on June 25, 1972, where she was living apparently 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 corpus, 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. Geisser 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 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 Secretary 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 maintained 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, 1976, the Swiss government still insisted on extradition. ³

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 its obligation contained in the plea bargain. The United States government and the Consul General of Switzerland who had been permitted to intervene again appealed. This Court again vacated and remanded. Geisser 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 reasonable 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 communicated again with his government in an attempt to 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...