place if, subsequently to the commission of the crime or offense or the institution of the penal prosecution or the conviction thereon, exemption from prosecution or punishment has been acquired by lapse of time, according to the laws of . . ." either party. Under the laws of the United States, the relevant statute of limitations (18 U.S.C. § 3282) prescribes a five-year period after the commission of the offense. In this case, the acts in question allegedly occurred on September 25 and 27. 1961. The criminal charges against Mr. Jhirad were first filed in India in October 1968, long after this period had run. The only argument for the proposition that this lapse of time does not constitute a bar to extradition pursuant to article 5 is that the running of the United States statute of limitations should be considered to have been tolled by Mr. Jhirad's departure from India in July 1966, two months prior to the expiration of the five-year period or his failure to return within that period. The applicable Federal law of the United States (section 3290 of title 18 of the United States Code) requires that the running of the statute of limitations be stopped at such time as a person flees from justice. The question for decision, therefore, was whether Mr. Jhirad may properly be considered to have become a fugitive from justice prior to September 27, 1966.

The Magistrate who heard the case found that Mr. Jhirad's primary purpose in leaving India was to attend a World Jewish Conference in Brussels, rather than to flee from justice. However, the Magistrate also concluded that Mr. Jhirad decided at some point during his European vacation following the Conference not to return to India, at which point he became a person fleeing from justice. Considering evidence presented concerning the duration of Mr. Jhirad's previous vacations in Western Europe, the Magistrate concluded that this decision was probably taken about the middle of September 1966. The Magistrate noted that this was not proved beyond a reasonable doubt, but concluded that it met the applicable standard of the preponderance of the evidence. However, with the greatest of respect for the Magistrate, the Acting Secretary of State, in exercise of statutory responsibilities to review the record in the case, was unable to accept the conclusion that intent to flee from justice was formed by mid-September 1966, within the meaning of article 5 of the treaty. Evidence of past vacation patterns was simply too fragile a basis for such a conclusion, particularly considering that those earlier vacations were prior to Mr. Jhirad's retirement.

The Acting Secretary noted that there are in this case several reasons to review the evidence with unusual care. First, the issue of the interpretation of article 5 of the treaty as it relates to the tolling of the statute of limitations is a novel one, and the Department has a special responsibility to ensure that the proper interpretation is applied appropriately in light of the facts of the case as reflected in the record. Second, were extradition to be granted in this case, the issue of the statute of limitations could not be litigated in proceedings in India. The lapse of time is a bar to extradition under the treaty, but not to trial in India under Indian law, which does not provide a statute of limitations. Third, it is obvious that the lapse of more than fifteen years would create unusual difficulties for the preparation and conduct of the defense. These difficulties are the

sort that the statute of limitations and article 5 of the treaty are designed to prevent.

In view of these considerations, the Acting Secretary concluded that Mr. Jhirad's extradition was barred by lapse of time in accordance with article 5 of the 1931 Treaty of Extradition between the United States of America and India.

The Acting Secretary noted that Mr. Jhirad has argued vigorously that he would be subject to political persecution in India. After reviewing the evidence presented in this case, the Acting Secretary was satisfied that the courts were correct in their finding that Mr. Jhirad failed to prove any such motive on the part of India.

Dept. of State File No. P77 0003-0761.

Subject Matter Jurisdiction

In Vardy v. United States, 529 F.2d 404 (1976), the U.S. Court of Appeals for the Fifth Circuit on March 26, 1976, affirmed the District Court's denial of habeas corpus relief to an alien, a permanent resident of the United States, who had been arrested in Panama and was being transferred to Canada, where charges against him were pending. On the first leg of that journey he landed in Miami. His attorney in Miami interrupted the journey by having the U.S. Marshal take custody of Vardy in the Miami airport pursuant to a writ of habeas corpus. Proceedings for extradition from the United States to Canada were instituted only after Vardy's attorney had persuaded the U.S. courts to interrupt his transfer from Panama to Canada.

In the Court of Appeals the government argued that the District Court lacked jurisdiction to entertain Vardy's petition for habeas corpus. While agreeing that deferring habeas review until there is a determination of extraditability is a preferable procedure, the Court of Appeals held that the exercise of habeas jurisdiction was permissible and appropriate, notwithstanding that a final decision had not been reached in the proceeding to extradite petitioner. Moreover, it said, the same factor which motivated the court in Jhirad v. Ferrandina, 355 F. Supp. 1155 (1973), rev'd on other grounds, 486 F. 2d 442 (1953), ante, p. 113, to exercise habeas jurisdiction, an excessive and confusing delay in the extradition proceedings, was also present in this case.

On the merits of the argument, the Court of Appeals ruled that Vardy was "found" in the United States for purposes of the extradition treaty between the United States and Canada (TS 119; 8 Stat. 572; 12 Bevans 82). The opinion stated:

Mindful of the rule that extradition treaties should be construed liberally, we have no difficulty in concluding that Vardy is "found"

in the United States for the purposes of our extradition treaty with Canada. Vardy makes his home in Florida and enjoys the benefits which accrue to an alien who possesses a card designating him as a permanent resident of the United States. The immediate cause for his physical presence in the United States at the time the extradition proceeding began was his own initiative in employing the Federal courts to interrupt the continuity of his transfer from Panama to Canada. No official of the Federal Government, other than the U.S. Marshal acting on behalf of Vardy's attorney, had anything to do with arranging his trip from Panama to Canada or with prolonging his stay in Miami. Regardless of the legality or morality of the actions of the Canadian or Panamanian Governments, Vardy was "found" in the United States.

Completion of Prison Sentence

On October 30, 1976, Assistant Secretary of State Arthur A. Hartman wrote a letter to Deputy Attorney General Harold L. Tyler, Jr., recommending that efforts be made to obtain commutation of the U.S. prison sentence of a French national whose extradition was requested by the French Government. Mr. Hartman's letter stated:

In 1972 the Government of France formally requested the extradition of one Christian David, a French national, for the murder of a police official in 1966. After lengthy proceedings, Mr. David was found extraditable by the District Court for the Eastern District of Illinois; a habeas corpus application was dismissed by Judge Foreman on July 21, 1976. During this period, however, Mr. David was tried on United States charges, convicted and sentenced to twenty years' imprisonment. He cannot be extradited until his sentence is completed.

I understand that there is a possibility that Mr. David's sentence could be reduced to make him available for extradition. I recommend that a strong effort be made to do this. The French Government, of course, is particularily interested in bringing to justice the murderer of a French police officer. More than that, in a recent meeting with French officials, they expressed the feeling that our failure to extradite Mr. David was symptomatic of a more general unwillingness of this Government to cooperate with France in extradition. This feeling. . . can be prejudicial to mutual cooperation in extradition and other criminal justice relationships.

I understand that there are no policy or law enforcement impediments to reduction of Mr. David's sentence for purposes of extradition, and I wish to advise you that there are substantial foreign relations benefits to be gained if this is done. I, therefore, request that the Department of Justice make every effort to secure the necessary commutation.

Dept. of State File No. P77 0012-383.

Extradition of Nationals

In response to an inquiry concerning U.S. policy with respect to extradition of its own nationals, Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, wrote to Senator Lawton Chiles on May 18, 1976, as follows:

The United States has favored the extradition of nationals and enters into agreements for extradition regardless of the nationality of the fugitive. These treaties frequently contain a clause which reads "neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this convention, but the executive authority of each shall have the power to deliver them up, if, in its discretion it be deemed proper to do so." Under this provision the United States has the authority, frequently exercised in the interests of justice, to extradite United States nationals. Those countries which under their law cannot extradite their nationals to the United States or any other country, however, can try their nationals for offenses committed in the United States. Therefore, the following clause is also frequently included in our extradition treaties: "If extradition is not granted pursuant to this Article, the requested State shall submit the case to its competent authorities for the purpose of prosecution."

Unlike other countries, the United States regards criminal jurisdiction as essentially territorial. Prosecution of a United States national in the United States for a crime committed outside the criminal jurisdiction of the United States is not possible under United States law and thus, in the interest of justice, extradition is the alternative.

Dept. of State File No. P76 0074-1321.

Plea Bargaining

The U.S. District Court for the Southern District of Florida, in Petition of Geisser, 414 F. Supp. 49 (1976), held on May 21, 1976, that the constitutional obligations owed a Federal prisoner in respect of promises made to her by the Department of Justice to prevent her extradition to Switzerland, in exchange for information concerning an international narcotic conspiracy, took precedence over any treaty obligations to a foreign nation. The Court accordingly vacated the order for petitioner's extradition even though Switzerland had declined to withdraw its request for extradition and the Department of State declined to withhold extradition under any claim of discretionary authority to do so.

The case of Josette Bauer, a Swiss national, had been remanded to the District Court by the U.S. Court of Appeals for the Fifth Circuit to permit consideration by the Parole Board and the Department of State of the prisoner's 1967 plea agreement with Government

attorneys, under which she had been promised a limited prison term and protection against extradition to Switzerland. See Geisser v. United States, 513 F.2d 862 (1975), the 1975 Digest, pp. 178-180. The District Court opinion on remand was critical of the "dilatory efforts of the Government" to fulfill its promises and the lack of evidence of efforts to carry out fully the mandate of the Appeals Court. The opinion stated, in part:

It is not without regret for the impact which this decision may have upon our Government's diplomatic relations with a foreign government that I find against the Government in this matter. But simply because departments of the executive branch decline to bear an onus which may attach to their obligations of defending rights granted by our Federal Constitution, such acquiescence to diplomacy or legalistic formality cannot justify the judiciary's following a similar course. The sanctity of the Constitution, and the protections it guarantees, are the foremost considerations here. The "constitutional obligations owing Bauer" recognized by the Fifth Circuit must take precedence over any treaty obligations to a foreign nation. If, as the Opinion of the Fifth Circuit intimates, this result causes Switzerland to feel aggrieved, "its avenues of redress would more likely be through diplomatic means or in international tribunals."

Following the U.S. Court of Appeals decision in 1975, which remanded the case to the District Court, and prior to the District Court's opinion, supra, an exchange of correspondence took place between officials of the Department of Justice and the Department of State. On October 9, 1975, Deputy Attorney General Harold R. Tyler, Jr., wrote to Secretary of State Kissinger as follows:

A recent decision of the United States Court of Appeals for the Fifth Circuit requires that we resolve a matter of mutual interest to our Departments.

The Court of Appeals believed the case was properly characterized as one involving "the great United States going back on its word in a plea bargain made by the Department of Justice which assured the Government of vital indispensable evidence leading to conviction of principals in a grand scale international heroin importing conspiracy." The Court refers to an agreement negotiated between this Department and one Josette Geisser Bauer, a Swiss citizen. In 1964, Josette Bauer escaped from a correctional institution in Bern, Switzerland, where she was confined for patricide. In August 1967, she and a confederate were apprehended in Miami on charges of smuggling heroin into the United States. Because the heroin seizure was decidedly large-scale and because Bauer and her accomplice were mere couriers, this Department entertained a greater intelligence than prosecutorial interest in these individuals. Once we had ascertained that she possessed valuable