Moyer Reed Plaster v. United States

surprise, there can be no such On retrial timely should district court complaint permit to amend the

motion claim to tried. of the contract the merits the district also contends Clark refusing permit Clark to erred in court her recollection hours refresh to non- she worked reference overtime contemporaneous notes made in a conver- attorney. Although her Clark

sation with noncontemporaneous correctly states that may be used to revive a memory, notes “has considerable discretion at trial court points reject testimony ei- various by holding writing ... ther ... memory, not refresh ... does [the] danger suggestion ‘the of undue ... [that] ” probable outweigh[s] the value.’ Wein- (1985) (iquoting Evidence stein’s 11612[01] (E. McCormick on Evidence at § 1972)) Cleary ed. Clark does show that its discretion in the district court abused refusing permit her to refresh her mem- notes, particular and we

ory with these retrial district court think that on exercise should continue to its discretion as proper. it deems AND REMANDED. REVERSED PLASTER, Moyer Appellee, Reed America, STATES of UNITED . Appellant No. 85-6503. Appeals, United States Court of Fourth Circuit. Argued Dec. 1985. April 1986. Decided granted,

court had to free him from extra- dition to the Republic Germany Federal to stand trial for murder. We ruled that extradition would be in violation of Plas- ter’s constitutional if in fact Colonel Hart, promised who Plaster prosecution and exchange extradition in for testimony against Burt, suspect, another promise. make the Be- cause there was a conflict in the evidence as to whether Colonel Hart had been told by Department the State that a final deci- sion had been made not to extradite Plaster so as to authorize him to immunity, we remanded the case for resolution of this factual issue. Plaster v. United (4 Cir.1983). F.Supp. On remand the district court 605 1532 found that Colonel Hart had been so advised, and it directed that the writ issue. appeals, contending that that Hart was so advised is event, erroneous and in Mabry decision (1984), decided appeal, requires after the first us Plaster, now to conclude that having never given Burt, testimony against had no con- stitutional that would be violated his extradition Germany. and trial in West

We affirm.

I. previous facts to the date of our decision are set opinion forth our and DePue, Justice, John F. Dept, of Wash- remand, repeated need not be here. On (Jean ington, Weld, D.C. B. Asst. U.S. supplemented existing

Atty., Alderman, Atty., John P. U.S. Roa- record with an affidavit of Colonel Hart. noke, Va., brief), appellant. on for affidavit, In his Hart stated that he erred Kinder, (Bird, Carr L. Jr. Kinder & Huff- previous testimony spoke in his that he man, Roanoke, Va., brief), appellee. on York, with Colonel Dennis Chief of Interna- Army, tional Affairs for the United States WINTER, Judge, Before Chief WILKIN- Europe, about whether Burt SON, BUTZNER, Judge, Circuit Senior could be transferred back to West Germa- Judge. Circuit ny for either court martial the United WINTER, Judge: HARRISON L. Chief Army or whether the West Germans previous appeal, recall their waiver of we remanded the application proceed Moyer to a West trial. He now Reed Plaster for a German writ of corpus, says habeas district his conversation was with Colonel Rakas, Af- A1 then Chief International States Government would not extradite Division, USAREUR, and: fairs either Burt or Plaster to Germany. West Plaster, did told Colonel Rakas that I was immunity agreement, Defense had de- that he State and would not Germany cided that then allow West be extradited to for the 1965 to recall its after it had failed murder of Kurt Pfeuffer. during the time limit set in the

to do so Based the evidence of Colonel Ra- Supplementary Convention would set a kas, the district court made a factual find- precedent under the NATO SOFA. I bad ing Department, through that “the State the was told that it was United States liaison, Rakas, its Colonel told Hart that a policy Government’s to assert and main- final decision had been made that Plaster possible tain whenever in sit- would not be extradited [and therefore] uations where both United States requisite authority promise Hart had the to receiving country jur- had concurrent Plaster freedom from extradition.” The isdiction. government also contended before dis- addition, any Hart denied awareness trict court that the decision in Mabry v. granting immunity discussed to that Rakas Johnson, supra, required it to reconsider the International Plaster with Affairs Divi- writ, its initial decision to issue the but JAGO, asserting of under sion district court ruled that that decision did Justice, Military Uniform Code of the Com- not have that effect. manding discretionary General had authori- ty grant immunity military prose- to of

cution. Hart further denied awareness II. anyone discussing any treaty extradition us, Before attacks the the United States and the Federal between finding factual that Hart had of then in force or later Republic extradition, promise Plaster freedom from concluded, to be other than NATO Status asserting that it is erroneous. It (SOFA). Agreement of Forces He added: argues that the evidence shows that Hart request authority not from the did was informed State and De- Division, International Affairs Departments fense would not accede to a Army, Europe, Depart- the State reassertion of the West German ment, Department or the Defense to of- ment’s to exercise under grant immunity fer a to Plaster or to SOFA, the NATO that this is far differ- but immunity grant include such an Depart- ent from advice that “the State promise not to extradite him to West any seek would not enforcement Germany. Depart- The decision request extradition the West German Defense, relayed ments of State and as government might make at some time in Rakas, byme made no Col. mention connection, the future.” In that it stresses my pursue immunity decision to that the evidence did not show that extradi- grant, my response which was to that immunity tion or from extradition v/ere decision. At the time the of immu- specifically mentioned or discussed in the approved by was drafted and Gener- repre- communications Hart and between Schellman, I al did not consider whether sentatives of the of State or would include Defense. Therefore, from extradition. I did not argument we think that there are To approval

discuss with or ask the of Gen- previous appeal, answers. In the several anyone eral Schellman or finding there was a factual my nity from extradition. To the best of attorney his then were both told knowledge, delegated any I was not au- Rarick, under deputy, Colonel thority by Department of State to Hart’s Burt, agreement “Plaster would part Plaster or as by American nor Ger- immunity agreement, prosecuted the United neither authorities”, man 720 F.2d at and this treaty “extradition” at that time so that accepted not errone- the advice to Hart that neither the ous. Since international extradition is a ments of State nor Defense would matter committed President and his return Plaster was a sufficient indication designees, what prior concerned us that he immunity from extra- appeal deputy was whether Hart and his dition in an develop effort to evidence to express, implied apparent authority convict someone of the murder of the taxi to commit the not to extradite driver. That a formal treaty extradition Plaster as of the immunity came being later into is of no moment that, given We concluded the close ties then the of Plaster had between extradition and the Executive’s been created and the could power affairs, foreign to conduct deprive him of them. from extradition must be We significance attach no to the by made one to authority whom the failure to precise use the term “extradi

issue immunity actually such has been del- tion” in the communications between Hart egated. 720 F.2d at 354-55. and the executive govern branches of the The evidence adduced on remand ment. It would have extremely been un showed that usual for spoken them to have in terms of State and Defense decided not to return treaty yet negotiated a to be and ratified. Plaster to jurisdiction upon German a recall Extradition is the return of an accused to Germany’s of West jurisdiction, waiver of place at which he allegedly committed a and this discussion was communicated to crime to stand charges trial on the made by Hart Rakas. We think that this is against Certainly him. this is the sub enough to render the district court’s find stance of what was discussed between ing that Hart had Hart representatives and the Depart of the Plaster freedom from extradition immune ment of Defense and State. It is a mere from attack. matter of semantics as to whether the word “extradition” was used or whether Although the treaty between the parties spoke returning Plaster to West United States and the West German Germany for trial. government under which extradition is now sought sum, In was not in existence at the time we conclude that the that Plaster entered into the district court not to agreement, there was in extradite was effect between the authorized is not erro- governments two a status neous. agree of forces

ment under which the United States could III.

have ceded criminal to West Germany (by permitting Germany Mabry recall supra, held that a jurisdiction), its waiver of had the United criminal acceptance prose- defendant’s of a disposed, been so though even proposed plea bargain cutor’s does not cre- government West German initially ate a constitutional to have the bar- primary right waived its gain exercise its specifically prose- enforced where the jurisdiction. true, concurrent It is prior cutor withdraws the offer to the ac- government argues, that, under ceptance interna guilty plea. of the Stated other- law, tional wise, there are technical plea bargain differences a is executory “a mere between treaty which, an extradition agreement and a status until embodied in the of forces court, But the judgment fact remains deprive a does not that there was a mechanism to return of liberty Plas accused other constitution- ter to ally protected West German interest”, criminal 467 U.S. at when immunity agreement was entered at S.Ct. 81 L.Ed.2d at so that government. into Plaster There may deciding it be withdrawn. Mabry, broad, was thus generic in the Supreme sense an Court overruled our decision (4 however, Cooper ty, v. United parties two are in- Cir.1979), prior appeal cited in the volved. which we The alone makes a decision ruling immunity agreement prosecute that not to in exchange testimony will, hopefully, gave rights to lead to Plaster as soon as it was greater number of indictments or convic- made. 720 F.2d at 351-54. tions. The granted most that one government argues The that an immuni- nity can agree do is to to testify and then ty agreement is to be likened to a await the government. call of the agreement may and therefore it be with- fact that has never impunity drawn with until the time that the upon testify called Plaster to does not person immunized has acted thereunder to now entitle the to breach its prejudice by incriminating his himself or bargain. giving testimony against another as reasons, For these we promised. government argues dispositive. Further, is not our re Plaster did not act under the Cooper, displaced liance on now Mabry, agreement so it has remained exec- was not the sole holding that, basis for our utory may be avoided at the authorized, if option.1 ment’s binding government. case was on the rejected The district court the Even if we leave aside government’s argument, ruling immunity agreements generally when the and an differ mark person granted immunity is not called edly holding in Mabry inappo so that himself, special incriminate the circum agree. site. We As the district court cor of government’s stances this case—the de rectly analyzed: cision proceed by to executory agree ment, the fact immunity agree that the of is different from a [A] ment was made in military the context and plea bargain in that it can never be for- the fact years that more than fifteen has plea guilty. malized a of On the elapsed making between the agree of the contrary, very agree- the nature of the government’s ment and the attempt to part is the on the of the withdraw from it—all lead to the conclu government addition, nothing. to do a may sion that it not be avoided now. Since plea of differs from a there is a not erroneous way in that init no involves authorized, the we conclude approval. court In the case corpus ofwrit habeas to enforce it agreement, the court in essence executes properly issued. agreement by accepting the the guilty. In the case of a of immuni- AFFIRMED. is, however, him,

1. There evidence in the record that but Plaster’s offer was refused because he government’s may factually contention immunity. asserted his own corpus proceeding inaccurate. In the habeas in inescap- evidence to controvert the court, the district testified after he able inference that Plaster himself incriminated immunity agreement entered into the on the gave requested when he statement is an counsel, of his then advice he was interviewed Chief, Branch, Foreign affidavit of the Claims gave accounting and a detailed all activities Service, Army personnel U.S. Claims that his Germany concerning charges pending in statement, sought would not have that, such a against him and that he did so because he un- sought, if one were would have not dis- prosecuted derstood that he any never be prosecution, cussed from criminal statement, gave information that he in the pros- and that settlement of claims and criminal but that he would receive a dishonorable dis- Chief, ecutions were unrelated activities. The charge. interrogators repre- He said that his however, knowledge of claims no actual what they sented that wanted to settle the matter and interrogators to Plaster’s said Plaster. The dis- payments family to make the German involved. issue, trict court did not resolve this factual dispute While he does not that he never was legal because of our of the effect of the view co-defendants, upon testify against called his case, immunity agreement in this we find it argument we were told in oral that Burt has unnecessary to remand the case for resolution been tried and convicted in and that of the conflict. willingness testify against Plaster stated his 294 WILKINSON, Judge, concurring upon incriminating Circuit lied it in himself others, should be held to

separately: by its abide terms.” United v. States Car join majority’s I in the decision to affirm ter, 426, (4th Cir.1972) (en 454 F.2d 427 judgment, but cannot with banc) added); (emphasis see also Johnson rely on “the majority’s decision 630, (9th Lumpkin, v. 769 F.2d Cir. agreements 1985); 524, Griffin, Rowe v. 527- generally person granted immu- when the (11th Cir.1982). Subject exceptions him- upon is not called to incriminate here, presented like one the converse of position This Ante at 293. self.” equally formulation is Carter accurate: unnecessary and unsound. Unneces- both if the defendant has not relied recognizes sary, the court because himself, incriminating extraordinary aspects of Plaster’s case should not be held to abide independently require issuance of the writ. Calimano, its terms. United unsound, pledges of immuni- And (5th Cir.1978); F.2d see also Roe v. ty prosecutorial other contracts —are —like (2d Attorney, United States recipi- not enforceable unless the denied, Cir.), cert. performed obligation ent has his and suf- (1980). prejudice by fered actual some self-incrimi- principles These have been most nating Only extraordinary delay act. closely articulated in the related context of between the offer and withdrawal of prosecutorial agreements involving guilty case, nity justifies contrary result pleas. Supreme Court has refused to my and I to that nar- restrict concurrence arrangements enforce such after ground. rower repudiated has but before the prejudiced: defendant has been If inculpatory a defendant has not made plea bargain standing A alone is without on the statements basis an offer of significance; constitutional in itself it is immunity, withdrawal of the offer ordinari- which, executory agreement a mere until ly will not interfere with the defendant’s court, judgment embodied in the majority implies a fair trial. The deprive liberty does not an accused of appellate may ignore courts this ab- any constitutionally protected other in- prejudice sence of and arrest the criminal ensuing guilty plea terest. It is the process simply attor- implicates the Constitution. neys repudiated have their offer. The Su- Johnson, 507-08, Mabry v. 467 U.S. at 104 preme against Court has cautioned this im- 2546, S.Ct. at overruling Cooper v. United trial, pulse place prosecution on Ma- States, (4th Cir.1979). The 504, 511,104 bry v. S.Ct. analysis applies same to a to for- 2543, 2548, (1984)(“The Due prosecution in bear order to secure testimo- Process Clause is not a code of ethics for ny. A immunity standing alone is prosecutors; its concern is with the manner executory agreement” also “a mere that is persons in deprived are of their liber- significance;” “without constitutional it is ty.”). long So as the accused has not been ensuing privileged impli- statement that prejudiced, government’s etiquette cates the Constitution. not dispositive. Irregularities that do not majority Mabry The tries to avoid v. n affect substantial are to be dis- by suggesting purported several Johnson regarded. Mechanik, See United States v. plea bargain and a differences between a — U.S.-,-, 938, 942, 89 As at 293. immunity. Ante (1986) (and therein). L.Ed.2d 50 cases cited descriptive propositions, con- purely these approach may in correct be found tantalizing impreci- trasts suffer from a leading general this court’s statement Immunity may be “formalized” sion. agree- about the enforcement of incriminating just plea statement capitulat- ments: “if the made de- is “formalized” might ing arrangements alleged fendant as statement. Both re- defendant nothing” agreements to “do in commit the are enforceable defendant”). prosecution, from presents some sense: to refrain And this case example, special or to from recommen- for abstain circumstances independently sentencing. participation And the justify dation at issuance of the writ. The depend court will in each situation promised immunity approxi- on the nature of the mately years ago. During fifteen time he has pur- established a home and important, majority More advances sued a career—he has relied on the immu- proposed no reason that these distinctions nity making in a new life. Fundamental offer between an and a requires recognize fairness that we in should create difference long duration of that reliance. For that enforcement where defendant has not reason, I concur the affirmance of the prejudiced majority Nor could the himself. judgment. district court’s bridge analytic gap, principle this for the applies equally v. behind Johnson immunity,

the two cases. A like a plea bargain, pro- sacrifices constitutional in exchange

tection from self-incrimination prosecutorial protection judicial process. exchange is in either instance only by disadvantageous

sealed acts of FOREST HILLS EARLY LEARNING CENTER, INC., Academy Day Care, defendant. Inc., Centers, Holloman Child Care surprisingly, usually im- Not courts see Inc., Appellees, agreements bargains munity as a cases, legal many single category. v. integrated covenants are in one deal. two LUKHARD, William Director

See, Cooper; v. e.g., United States United ment of Welfare and Institutions of the Carter; States v. United States v. I.H. Virginia, Appellant. Commonwealth of Hammerman, II, (4th F.2d 326 Cir. (Two Cases). 1975). cases, rely explicitly In other courts CHURCH, In re GRACE BAPTIST Tab- single interchangeable princi- on a set of Church, Baptist ernacle Berean See, ples issues. to resolve enforcement Church, Church, Appellants, The Rock e.g., Brimberry, 744 F.2d United States v. (7th Cir.1984); United States v. Carrillo, (9th Cir.1983); 709 F.2d FOREST EARLY HILLS LEARNING Indeed, Griffin, Rowe v. 676 F.2d at 528. CENTER, INC., Care, Academy Day adopted analogy this court same Inc., Centers, Hollomon Child Care appeal very earlier case. Plaster v. Inc., Plaintiffs, (4th 351-54 Cir.1983). LUKHARD, William Director reasoning earlier Court’s remains ment of Welfare Institutions today. correct If must address “the we Virginia, Commonwealth Defend- immunity agreements ants. person granted where the him- is not called to incriminate 85-1290, Nos. 85-1293 and 85-1560. self,” acknowledge ante at we should Appeals, States Court relevant, plea bargain Fourth Circuit. v. Johnson will control most Argued Nov. 1985. cases, prejudicial without re- liance, usually the defendant will not be 5,May Decided 1986. hold to its offer. able to Rehearing Rehearing In Banc Denied speak broadly; But we need not so we need 5,1986. June only decide this case. Plaster v. Unit- See (“we ed 720 F.2d at 353 of course

do not decide executory whether

Case Details

Case Name: Moyer Reed Plaster v. United States

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 29, 1986

Citation: 789 F.2d 289

Docket Number: 85-6503

Court Abbreviation: 4th Cir.