prosecution to the crime for which extradition is specifically granted, by the discrepancy between the dates contained in the order of extradition and in the indictment. The court of appeals summarized the facts of the case as follows:

On October 16, 1972, appellant was charged in indictment 72-CR1162 issued in the United States District Court for the Eastern District of New York with conspiring to traffic in narcotics between January 1969 and September 1972. On February 13, 1973, the United States requested Spanish authorities to provisionally arrest appellant pending a formal request for his extradition. On February 15, 1973, a second indictment, 73-CR-164, was issued in the Eastern District charging appellant with conspiring to traffic in narcotics between 1965 and the date of the indictment. The government then requested appellant's extradition from Spain. Although this request was based on indictment 73-CR-164, the order of the Spanish court directing extradition listed the dates of the conspiracy as running from January 1969 to September 1972, the period covered by indictment 72-CR-1162.

Appellant was tried and convicted under indictment 73-CR-164, and this is an appeal from that conviction

545 F.2d 815.

The court of appeals relied upon the reasoning in United States v. Paroutian, 299 F.2d 486 (2d. Cir. 1962), in denying the appellant's assertion that the discrepancy in dates deprived the district court of jurisdiction under the "principle of specialty." In the Paroutian case, the district court's jurisdiction was upheld "on the ground that the Lebanese would not consider 'that [defendant] was tried for anything else but the offense for which he was extradited, namely, trafficking in narcotics'. United States v. Paroutian, supra, 299 F.2d at 491." United 545 F.2d 815.

U.S.-Finland

Bilateral Agreements

On April 18, 1977, President Carter transmitted to the Senate for advice and consent to ratification the Treaty on Extradition between the United States and Finland, signed at Helsinki on June 11, 1976. The President also sent to the Senate a Department of State report concerning the Treaty submitted to him by Deputy Secretary of State Warren Christopher on April 8, 1977. The report describes various portions of the Treaty, including those provisions dealing with aircraft hijacking, narcotics, and conspiracy to commit listed offenses. Portions of the report appear below:

The Treaty follows generally the form and content of extradition treaties recently concluded by this Government. However, Finnish extradition law requires inclusion in treaties of provisions common only among Scandinavian states.

The Treaty provides for the extradition of fugitives who have been charged with any of thirty-one offenses listed in the Schedule annexed to the Treaty. The most significant offenses are the offenses relating to narcotics, including psychotropic drugs and other dangerous drugs, and the offense of aircraft hijacking. Also significant is the inclusion of a provision in Article 2 which enables extradition to be granted in the case of a conspiracy to commit any of the offenses mentioned.

Article 3 defines the territorial application of the Treaty. In addition to the normal content of that concept, territorial jurisdiction includes registered aircraft in flight. Flight is defined in accordance with the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, done at Tokyo on September 14, 1963 (Tokyo Convention). The major purpose of this provision is to extend jurisdiction to acts of aircraft piracy whether or not they occur over United States territory.

The third paragraph of Article 3 provides for extradition for offenses committed outside the territory of either party if the offense so committed would be punishable under the laws of both parties. It is anticipated that this provision would be most useful in the area of narcotic and counterfeiting violations. . .

Article 4 is a provision similar to that contained in many of our recent extradition treaties dealing with the extradition of one's own nationals. It is a formulation which takes into account Finnish extradition law and practice whereby its nationals are not normally extradited but rather prosecuted in Finland, regardless of where the offense was committed. Since the United States does not have this capability, the provision grants the executive the discretionary power to extradite its own nationals. This achieves approximate reciprocity in capacity to bring criminal offenders to justice. If extradition is denied on the basis of nationality, the requested state undertakes to try the requested individual when the offense is punishable under its own laws and it has appropriate iurisdiction. This latter provision, while relatively new to United States extradition treaties, is included in the treaty with Argentina now in effect.

Article 6 is a new type of provision. On occasion a fugitive whose extradition is sought would prefer to waive formal proceedings and return at once. This provision recognizes that situation as an expedited form of extradition.

Article 10 contains a special discretionary provision for former Finnish nationals who are nationals of other Nordic states resident in Finland.

**

Article 21 provides that each party shall assist the other in the presentation of extradition cases before the respective judges and

magistrates. This requirement has been included in the more recent extradition treaties which the United States has negotiated. It is normally included now because the costs of presentation are a hindrance to the making of extradition requests. The article, similar to one in the Treaty on Extradition between the United States and Denmark, differs from 18 U.S.C. 3195 which requires that costs or expenses incurred in extradition proceedings be paid by the requesting authority.

S. Ex. I, 95th Cong., 1st Sess., V-VI.

Art. 10 of the 1976 U.S.-Finnish Extradition Treaty reads as follows:

In the case of a request for extradition emanating from the Government of the United States, the subject of which is an individual born in Finland of Finnish nationality who at the time of the request for extradition is a permanent resident of Finland and a national of Denmark, Iceland, Norway or Sweden, the Government of Finland shall have the right to recommend that the extradition request be withdrawn, specifying the reasons therefor. The Treaty will, upon entry into force, terminate the U.S.-Finnish Treaty for the Extradition of Fugitives from Justice signed on Aug. 1, 1924 (TS 710; 44 Stat. 2002; 7 Bevans 695; 34 LNTS 103; entered into force Mar. 23, 1925), and the Supplementary Extradition Treaty signed on May 17, 1934 (TS 871; 49 Stat. 2690; 7 Bevans 734; 152 LNTS 83; entered into force Aug. 10, 1934).

The Convention on Offenses and Certain Other Acts Committed on Board Aircraft, done at Tokyo on Sept. 14, 1963 (TIAS 6768; 20 UST 2941; 704 UNTS 219), entered into force for the United States on Dec. 4, 1969.

The Extradition Treaty between the United States and Denmark was signed on June 22, 1972 (TIAS 7864; 25 UST 1293; entered into force on July 31, 1974). For further information concerning the 1976 U.S.-Finnish Extradition Treaty, see the 1976 Digest, Ch. 3, § 5, p. 130.

Plea Bargaining

In Petition of Geisser, 554 F. 2d 698 (1977), the U.S. Court of Appeals for the Fifth Circuit held not clearly erroneous the finding of the U.S. District Court for the Southern District of Florida that the U.S. Government had not fulfilled its promise in a plea bargain made with the petitioner, Josette Geisser Bauer, to use its "best efforts" to prevent her extradition to Switzerland or France. However, the court of appeals found that the district court had erred by not giving the Government a reasonable time in which to use its best efforts to prevent her extradition. In an opinion by Circuit Judge John Minor Wisdom issued on June 22, 1977, the court of appeals vacated the district court's decision granting the petitioner's application for release and vacating the extradition order and remanded the case.

On November 2, 1967, the Swiss Government obtained an order in the Southern District of Florida certifying the extraditability of the petitioner. Soon thereafter, the petitioner and her accomplice agreed to plead guilty to certain charges in return for divulging their knowledge of a domestic and international drug conspiracy and for testify

ing in related prosecutions. As part of the plea bargain, the U.S. Government promised to use its "best efforts" to prevent the extradition of the two to Switzerland or France.

In this action the petitioner filed a habeas corpus petition for specific enforcement of the plea agreement, and she sought an injunction against the extradition order. The district court found that there was a definite agreement and that she would not be extradited to France or Switzerland. On appeal, the U.S. Government was given a second opportunity to keep its bargain or explain why the petitioner's extradition could not be prevented. Geisser v. United States, 513 F.2d 862 (1975). (See the 1975 Digest, Ch. 3, § 5, pp. 178–180.)

On remand Judge William O. Mehrtens of the U.S. District Court for the Southern District of Florida permitted the Swiss consul general to intervene and received into evidence among other items a letter written on October 3, 1975, by Deputy Attorney General Harold R. Tyler, Jr., to Secretary of State Henry A. Kissinger describing the court of appeal's negative reaction to the failure of the Department of Justice to do anything to keep its bargain with the petitioner, and a letter of March 19, 1976, from Deputy Secretary of State Robert S. Ingersoll to Deputy Attorney General Tyler enumerating the actions of the Department of State as part of the "best efforts” obligation. (For the text of the two letters, see the 1976 Digest, Ch. 3, § 5, pp. 119-122.)

The district court found, inter alia, that the Government had not used its "best efforts" to forestall the petitioner's extradition, granted the petitioner's application for release, and vacated the extradition order. Both the United States and the Swiss consul general, as intervenor, appealed that order.

On appeal for the second time, the Fifth Circuit Court of Appeals again found that the U.S. Government had failed to keep its part of the plea bargain but granted the Government a reasonable time to use its "best efforts" to prevent the petitioner's extradition to Switzerland. Portions of the second opinion of the court of appeals in this matter appear below:

The documentary evidence presented to the district court fails to reveal a "best efforts" performance by the United States Government through the Departments of State and Justice. The letter written by Deputy Attorney General Tyler only obliquely refers to the reason for the nonextradition agreement. In none of the documents is there a "strong presentation" of the likely dangers to Bauer suggested by this Court. Under the "best efforts" bargain the Government obligated itself to serve, in effect, as Bauer's personal advocate on the issue of her extradition. In contrast, the letters are

written from the perspective of those concerned not so much about commitments to a client but about a damaging legal precedent. The reasons underlying the original bargain, Bauer's admirable performance in keeping her part of the agreement, her "intense fear of reprisals," and the conclusion of Government agents on the case that her fears were well-founded were never presented to the State Department by the Department of Justice nor by the former to the Swiss Confederation.

The Department of Justice conceded at oral argument that Deputy Attorney General Tyler's letter to Secretary of State Kissinger did not contain a representation that Bauer feared for her life on extradition to Switzerland and that some Justice Department staff members had concluded at the time of the bargain that her fears were well-founded. The Department nevertheless contends that such an omission is irrelevant because the Swiss Embassy was aware of such concerns and concluded they were unrealistic. We do not agree. The "best efforts" bargain requires that the Government advocate Bauer's case for nonextradition to Switzerland and France in the most effective terms possible. Her intense fear for her life was the predicate for the bargain, and the Government's failure to explain fully and strongly this part of the agreement reduced its advocacy of her cause almost to an empty gesture.

554 F.2d 703-704 (footnote omitted).

We conclude that a narrowly drawn remedy specifically enforcing the Government's "best efforts" agreement is required. The Government must again try to prevent Bauer's extradition to Switzerland or France. We are not convinced that the vast powers of persuasion at the command of the Departments of Justice and State have been adequately applied to Bauer's cause. The bargain she made with the United States Government in entering her guilty plea and waiving her constitutional rights requires no less.

While retaining jurisdiction, we remand the case to the district court if, in the discretion of that court, further proceedings are necessary or appropriate. The Government has a reasonable time in which to use its "best efforts" to prevent the extradition of Bauer to Switzerland or France. Enforcement of the extradition order outstanding against Bauer must of course be held in abeyance until this case has been resolved.

554 F.2d 706.

86

Protection of Human Rights

General

During his address to representatives to the United Nations in the U.N. General Assembly Hall on March 17, 1977, President Carter