Plaster v. U.S.

Decision Date20 October 1983
Docket NumberNo. 82-6575,82-6575
Citation720 F.2d 340
Parties14 Fed. R. Evid. Serv. 565 Moyer Reed PLASTER, Appellee, v. UNITED STATES of America, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Gloria C. Phares, Dept. of Justice, Washington, D.C. (John P. Alderman, U.S. Atty., Jean B. Weld, Asst. U.S. Atty., Roanoke, Va., on brief), for appellant.

Carr L. Kinder, Jr., Roanoke, Va. (Bird, Kinder & Huffman, Roanoke, Va., on brief), for appellee.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and WYZANSKI, * Senior District Judge.


The United States of America appeals from a judgment of the district court granting a writ of habeas corpus to Moyer Reed Plaster, thus barring Plaster's scheduled extradition to the Federal Republic of Germany to stand trial for murder. We vacate the issuance of the writ and remand the case for further proceedings as set forth herein.

I--The SOFA Treaty

We begin our narrative with a description of the pertinent treaties between the United States of America and the Federal Republic of Germany (West Germany). On June 19, 1951, the United States of America and West Germany, among others, signed the "Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of their Forces" ["SOFA Treaty"]. The treaty was subsequently ratified by the Senate and the President, and entered into force on August 23, 1953. T.I.A.S. No. 2846. Article VII of the SOFA Treaty provided rules for determining which country would exercise jurisdiction over servicemen who, while stationed overseas, committed crimes punishable both under the civilian laws of the host country and the military laws of the sending country. Section 3(a) of that article provided in such cases that primary jurisdiction would vest in the military authorities of the sending state when the offense was directed solely against the property or security of the sending country (i.e., took place on the sending country's military base) or arose out of an act done in the performance of official duty. Section 3(b) of article VII provided that primary jurisdiction for all other offenses would lie in the host country. Finally, section 3(c) provided that the country having primary jurisdiction could, at its option, waive jurisdiction in favor of the other country, and indicated that sympathetic consideration should be given to requests by the other country for waivers of jurisdiction in cases deemed important by the other country.

On August 3, 1959, the United States and the Federal Republic of Germany signed a Supplementary Agreement to the SOFA Treaty; this Supplementary Agreement entered into force on July 1, 1963. T.I.A.S. No. 5351. In relevant part, this agreement implemented the waiver of primary jurisdiction provisions in section 3(c) of article VII of the SOFA Treaty. Article 19, paragraph 1, of the Supplementary Agreement provided that Germany would, upon a request of the United States, automatically waive its primary right to jurisdiction in favor of American military authorities. Paragraph 3, however, provided that Germany could, in a case where the exercise of German jurisdiction was deemed by Germany to be particularly important, recall its waiver of jurisdiction by so notifying the American authorities no more than twenty-one days after receipt of the American request for a waiver. Absent such a recall, however, jurisdiction would vest in the American military authorities.

II--The Facts

As of March, 1965, Plaster and John Burt were soldiers in the Third Infantry Division of the United States Army, stationed near Schweinfurt, West Germany. The commanding general, or "convening authority," 1 of the Third Infantry Division was General Robert Shellman, and its Staff Judge Advocate, legal adviser to General Shellman and chief military prosecutor, 2 was Colonel Robert Hart. Shellman and Hart also were the American military officials designated pursuant to the Supplementary Agreement as liaison to the German prosecutors for that sector of Germany.

On March 21, 1965, a West German taxicab driver, Kurt Pfeuffer, was murdered near Schweinfurt. Approximately three months later, apparently suspected of Pfeuffer's murder, Plaster and Burt deserted their posts and without authorization traveled to Madison, Wisconsin. In Wisconsin, Plaster and Burt, along with two other men, were arrested and charged with the July 1, 1965 murder of a gas station attendant, Leroy Erdahl. While in prison in Wisconsin on the local murder charges, Plaster and Burt were questioned by Army investigators about the German murder. Although both allegedly confessed to involvement in the German murder (Plaster allegedly as an accessory after the fact), these interrogations took place without the giving of Miranda warnings, presumably because Miranda had not yet been decided. On October 28, 1965, Plaster pled guilty to a charge of third degree murder for the Wisconsin killing and received a sentence of ten years imprisonment. Burt subsequently was sentenced to life imprisonment after being found guilty of first degree murder in the Wisconsin killing.

In December, 1965, the United States Army gave formal notification to Germany pursuant to Article 19, paragraph 1 of the Supplementary Agreement as to both Plaster and Burt, thus automatically obtaining a waiver of jurisdiction for the German murder. In January, 1966, the designated West German prosecutor, Dr. Hopf, sent a letter to the American military authorities informing them that Germany had decided not to recall its waiver of jurisdiction, but asking to be kept informed of the Army's efforts to obtain custody of Plaster and Burt from Wisconsin so that they could stand trial in an American military court for the German murder. After receiving this letter, Colonel Hart filed formal court-martial charges against Plaster and Burt for the German murder.

This planned prosecution, however, abruptly ground to a halt when, on June 13, 1966, the Supreme Court decided in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that confessions obtained without a knowing and voluntary waiver of certain constitutional rights could not be used in American courts. General Shellman and Colonel Hart, in conjunction with Army attorneys, concluded that the confessions obtained from Plaster and Burt would not be admissible in a military court for want of a knowing and intelligent waiver of the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. Moreover, they concluded that without these confessions, there was insufficient evidence upon which to prosecute either Plaster or Burt for the German murder.

Colonel Hart then, on instructions from General Shellman, relayed this decision not to prosecute Plaster or Burt to the West German prosecutor, Dr. Hopf. The German prosecutor was extremely upset, apparently not appreciating the values underlying the Miranda decision, which were, to some extent, foreign to the West German concept of justice. At this point, however, conflicting testimony was given, but the inconsistency was not resolved by the district court. Colonel Hart testified that it was his understanding that Dr. Hopf then notified his German superiors of the American decision, and that the German government protested General Shellman and Colonel Hart's decision to the Departments of State and Defense and sought to recall its waiver of jurisdiction. Shortly thereafter, Colonel Hart testified, he received a lengthy telephone call from Colonel Dennis York, who at the time, Hart indicated, was Chief of International Affairs for the United States Army, Europe. Hart testified that York told him that the Departments of State and Defense had jointly made a decision not to return Plaster or Burt to Germany and not to permit Germany, at this late date, to recall its waiver of jurisdiction under the Supplementary Agreement. Hart stated that Colonel York told him that the basis for this decision by State and Defense was that a contrary decision would set a bad precedent by permitting Germany, which had waived its jurisdiction in favor of the American military justice system, to demand the right to recall the waiver simply because Germany became dissatisfied with the exercise by the Army of its prosecutorial discretion (or for whatever reason). Although Hart personally was opposed to this decision--because he had to deal with the Germans on a daily basis--he testified that he was ordered to relay this decision to Dr. Hopf, and that he subsequently did so. Colonel York, however, testified that he did not recall any request by the Germans to recall their waiver of jurisdiction and that he never told Hart that the State and Defense Departments had made a joint decision not to return Plaster to Germany.

Colonel Hart and General Shellman then reached the conclusion that the only way to salvage any prosecution, in light of Miranda and the scarcity of other evidence, was to offer Plaster immunity from prosecution in exchange for testimony against Burt. This course apparently was chosen because the Army believed that Burt had committed the actual murder, while Plaster had merely been an accessory after the fact. The offer was prepared in the form of an immunity agreement, which was signed by General Shellman. Hart then called Dr. Hopf to inform him of the tactical decision, and Hopf consented to the decision to offer Plaster immunity in exchange for testimony against Burt.

Hart then had his deputy, Colonel Rarick, take the immunity agreement to the Wisconsin prison where Plaster was serving his sentence for the Wisconsin murder. Hart testified that the immunity agreement offered "transactional immunity," which he indicated would be total immunity against any prosecution arising out of the acts in question. Both Plaster and his attorney at the time, Richard Lent, testified that the immunity agreement made...

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