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In re Extradition of John Edward Burt to Federal Republic of Germany

July 2, 1984


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81-C-1320 -- John W. Reynolds, Judge.

Bauer, Wood, and Eschbach, Circuit Judges.

Author: Wood

WOOD, Circuit Judge.

Petitioner-appellant John Burt appeals from a judgment of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3), thus permitting petitioner's scheduled extradition to the Federal Republic of Germany (West Germany) where he is to stand trial for murder. For the reasons stated below, we affirm.


On March 21, 1965, a West German cab driver, Kurt Pfeuffer, was murdered on the outskirts of Schweinfurt, West Germany. Shortly thereafter, petitioner and another serviceman, Moyer Plaster, who were then stationed with the United States Army near Schweinfurt, left West Germany without Army authorization and traveled to Madison, Wisconsin. There, both men were picked up for a local armed robbery and murder in July of 1965. While in custody at the Dane County jail in Wisconsin, petitioner and Plaster were questioned by Army investigators about the Pfeuffer killing. Petitioner signed a statement under oath confessing to shooting Pfeuffer, and Plaster admitted his involvement as an accessory after the fact. The Army took no further action pending the results of the state criminal proceedings for the Wisconsin murder. On October 25, 1965, Plaster pled guilty to third degree murder for the Wisconsin killing and was sentenced to ten years imprisonment. A week later, petitioner pled guilty to the state's charges of first degree murder and armed robbery, and was given a sentence of life imprisonment for the murder count and up to thirty years on the armed robbery count. After sentencing, the Army filed a detainer*fn1 against petitioner that was acknowledged by the warden on November 10, 1965.

In December, the Army gave formal notification to West Germany as to the facts regarding the alleged involvement of petitioner and Plaster in the Pfeuffer murder. At that time, the legal relations between the United States and West Germany with regard to crimes committed by American servicemen against West German citizens were governed by portions of the NATO Status of Forces Agreement, see Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4 U.S.T. 1792, T.I.A.S. No. 2846 (effective August 23, 1953) ("NATO-SOFA Treaty"), which was extended to West Germany with minor variations by virtue of a subsequent multilateral agreement, see Status of Forces Agreement with Respect to Forces Stationed in the Federal Republic of Germany, Aug. 3, 1959, 14 U.S.T. 531, T.I.A.S. No. 5351 (effective July 1, 1963) ("Supplementary Agreement").*fn2 Under the NATO-SOFA Treaty provisions, West Germany had the primary right to exercise jurisdiction over petitioner because Pfeuffer had been a West German citizen and the murder occurred off-base and had nothing to do with petitioner's military duties.*fn3 However, at all times while petitioner was in the Army, the Supplementary Agreement between the United States and West Germany automatically implemented the waiver of primary jurisdiction provisions in paragraph 3(c) of Article VII of the NATO-SOFA Treaty.*fn4 Supplementary Agreement, art. 19, par. 1. West Germany could, however, recall such waiver in a case in which the exercise of jurisdiction was considered imperative by the West German government by so stating to the American authorities within 21 days after receipt of notification by American officials that an offense by a member or members of the United States armed forces may have occurred. Id. at art. 19, par. 3.

In December, 1965, when the Army notified West Germany about the alleged involvement of petitioner and Plaster in the Pfeuffer killing pursuant to the Supplementary Agreement, the Army automatically became vested with the primary right to exercise jurisdiction over them. After being assured by American military authorities that the Army was going to try petitioner and Plaster, the West German government, in a letter dated January 11, 1966, informed the Army that it was not going to invoke its right to recall its waiver of its primary right to exercise jurisdiction within the applicable time period. West German officials, however, did ask the Army to keep them informed of the progress of the American military trials.

On January 9, 1966, the Army charged petitioner with the murder of Pfeuffer pursuant to article 118 of the Uniform Military Code of Justice, 10 U.S.C. § 918, and began procedures to obtain his temporary release from the Wisconsin penitentiary for the court martial. After the release request was obtained in May of 1966, plans for prosecution proceeded. These plans, however, were halted shortly thereafter when the Supreme Court handed down its decision in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), on June 13, 1966. Since the confessions of petitioner and Plaster as to their involvement in the Pfeuffer murder had been obtained in a manner not entirely consistent with the requirements announced in Miranda, Army prosecutors concluded that neither petitioner nor Plaster could be successfully court martialed. When the decision not to prosecute was conveyed to West German officials, they expressed great dissatisfaction and sought to recall West Germany's waiver of jurisdiction. The United States Departments of State and Defense, however, jointly made a decision not to return petitioner or Plaster to West Germany because they did not want to set a precedent of allowing West Germany to recall its waiver at such a late date and after the Army had exercised its prosecutorial discretion. Pfeuffer's family was compensated by the United States government. The Army later gave dishonorable discharges to petitioner and Plaster based on their civil convictions in Wisconsin, and no further action was taken by the Army.*fn5

After being discharged from the Army, petitioner and Plaster could no longer be returned to West Germany pursuant to the NATO-SOFA Treaty because they were no longer subject to American military authority.*fn6 In addition, they could not be extradited as American civilians under the extradition treaty then in existence between West Germany and the United States.*fn7 Petitioner served twelve years in prison in Wisconsin for the Wisconsin murder, and was paroled in 1977. The next year, a new extradition treaty, The Treaty between the United States and the Federal Republic of Germany Concerning Extradition, July 20, 1978, United States -- West Germany, 32 U.S.T.-, T.I.A.S. No. 9785 ("1978 Treaty"), was entered into between the United States and West Germany and became effective on August 29, 1980. Under the 1978 Treaty, each country is obligated to extradite persons found within one country who have committed crimes in the other, including crimes committed before as well as after the date the treaty became effective.

On September 1, 1980, pursuant to the 1978 Treaty, West Germany issued a warrant for the arrest of petitioner and Plaster, and formally requested their extradition on February 12, 1981. As for petitioner, the United States State Department formally accepted the West German government's extradition request on March 23, 1981, and on May 11, 1981, the United States Attorney for the Eastern District of Wisconsin filed a complaint before a magistrate for that district seeking petitioner's arrest and certification of extraditability pursuant to 18 U.S.C. § 3184.*fn8 The magistrate made findings of fact and determined that the offense alleged fell within the extradition provisions of the treaty, that petitioner was the man sought by West Germany, and that the evidence submitted demonstrated probable cause to believe that petitioner committed the murder. Based on these findings, the magistrate certified petitioner to the Secretary of State for extradition and ordered his arrest.

On October 13, 1981, petitioner filed a petition for a writ of habeas corpus in federal district court.*fn9 In that petition, petitioner claimed that the United States violated his due process rights by attempting to extridite him in accordance with West Germany's request under the 1978 Treaty fifteen years after the United States initially decided not to prosecute him or allow West Germany to obtain his return under the Supplementary Agreement for prosecution in West Germany. In addition, petitioner argued that the government's actions deprived him of a speedy trial as guaranteed by the sixth amendment of the Constitution and Article VII of the NATO-SOFA Treaty, and, finally, that the United States should be estopped from extraditing him for equitable reasons.

The district court first considered the scope of its habeas corpus review and rejected the government's argument that under the Supreme Court's decision in Fernandez v. Phillips, 268 U.S. 311, 69 L. Ed. 970, 45 S. Ct. 541 (1925), it could only review the limited issues the magistrate was restricted to addressing under 18 U.S.C. § 3184. The district court observed that Fernandez was decided when habeas corpus writs were granted only if the committing court lacked jurisdiction to commit the petitioner. Under the expanded scope of habeas corpus review that has developed subsequently, the court concluded there was no reason why it could not entertain a habeas corpus petition challenging the constitutionality of the government's conduct in seeking the certification of extradition.

The district court then considered petitioner's due process claim regarding prosecutorial delay, but held that this claim was ineffective against the United States because the United States was not acting in the role of prosecutor, but rather in a role analogous to that of a process server for West Germany. In addition, the court found that even if the delay between the time of the offense and the extradition and charges brought by West Germany could be attributed to the United States and some right analogous to the fifth amendment due process right to be free from unjustified prosecutorial delay ...

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