Plaster v. United States, Civ. A. No. 81-0164.

• Decision Date: 11 April 1985
• Docket Number: Civ. A. No. 81-0164.
• Citation: 605 F. Supp. 1532
• Parties: Moyer Reed PLASTER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Virginia

605 F. Supp. 1532

Moyer Reed PLASTER, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 81-0164.

United States District Court, W.D. Virginia, Roanoke Division.

April 11, 1985.

Carr L. Kinder, Jr., Bird, Kinder & Huffman, Roanoke, Va., for petitioner.

Jean B. Weld, Asst. U.S. Atty., Roanoke, Va., for respondent.

MEMORANDUM OPINION

TURK, Chief Judge.

This habeas corpus proceeding is before the Court pursuant to the remand of the United States Court of Appeals for the Fourth Circuit. It involves the attempt to extradite petitioner to West Germany to stand trial for a murder committed in 1965. In the initial proceedings following the murder, petitioner was granted immunity from military prosecution and was promised that he would not be extradited to West Germany for prosecution there. Pursuant to a subsequent treaty entered into force in 1980, however, the United States Attorney for the Western District of Virginia sought extradition. This court held that extradition was barred in Plaster's case and the government appealed. The Fourth Circuit remanded the case for a determination of whether the military officers, Colonel Hart and General Shellman, had authority to promise Moyer Plaster that he would not be returned to German authorities for trial, stating that:

Were it to be true that the State Department through its liason told Hart that a final decision had been made that Plaster would not be extradited and that Hart should continue using his best judgment to get some sort of a conviction out of the case, we would have no trouble agreeing with the district court that Hart had been delegated the authority to promise Plaster as part of the agreement in exchange for his testimony against Burt, that the United States government would not extradite him to Germany for the 1965 murder.

Plaster v. United States, 720 F.2d 340, 355 (4th Cir.1983).

The court has reviewed the evidence and arguments presented by the parties on remand and concludes that Colonel Hart did have the authority to grant Plaster immunity from extradition. The question of fact which was of concern to the Fourth Circuit was Hart's assertion that Colonel York, pursuant to a telephone conversation, had informed him that Plaster would not be extradited and York's subsequent denial that he made such a call. The affidavit of Colonel Hart, presented by the government, resolves this question. In his affidavit, Hart admitted that he had mistakenly named York as the person with whom he had discussed the Plaster matter. In reality, Hart stated, he spoke with Colonel Al Rakas, Chief of International Affairs Division, USAREUR, who told him that the State and Defense Departments had decided that to then allow West Germany to recall its jurisdiction after it had failed to do so during the twenty-one day time limit set forth in the Supplementary Agreement to the SOFA treaty would set a bad precedent. Hart was also told that it was the United States Government's policy to assert and maintain jurisdiction whenever possible in situations where both the United States and the receiving country had concurrent jurisdiction. Hart went on to state that his actions with regard to offering a grant of immunity and to promising Plaster that he would not be extradited were his response to the decision of the State and Defense Departments.

In light of the affidavit of Colonel Hart, the court finds that the State Department, through its liason, Colonel Rakas, told Hart that a final decision had been made that Plaster would not be extradited. Accordingly, the court finds that Hart had the requisite authority to promise Plaster freedom from extradition.

The government has advanced another argument which, if correct, would necessitate a denial of relief to Plaster. According to the United States Attorney, the case of Mabry v. Johnson, ___ U.S. ___, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), decided subsequent to the Fourth Circuit's decision in this case, controls and mandates a finding that, even assuming Hart had authority to promise immunity from extradition, Plaster's constitutional rights were not violated. This court does not agree. Mabry involved two separate plea negotiations, and the defendant's guilty plea based on a full knowledge of the surrounding facts. In Mabry, a deputy prosecutor proposed that, in exchange for a plea of guilty, he would recommend a twenty-one year sentence to be served concurrently with the burglary and assault charges the defendant was then serving. The offer was communicated through counsel to Johnson, who agreed to accept it. However, when Johnson's counsel communicated his client's acceptance of the offer to the prosecutor, he was informed that a mistake had been made and that the offer had been withdrawn. Instead, the prosecutor proposed that, in exchange for Johnson's guilty plea, he would recommend a twenty-one year sentence to be served consecutively...