B-156932, MARCH 3, 1969 48 COMP. GEN. 569

B-156932, MARCH 3, 1969 48 COMP. GEN. 569

COURTS--DISTRICT OF COLUMBIA--COURT OF GENERAL SESSIONS--TRANSCRIPTS ALTHOUGH INDIGENT DEFENDANTS PROSECUTED BY THE UNITED STATES, WHETHER IN THE UNITED STATES BRANCH OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS OR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, FOR PETTY OFFENSES AS DEFINED IN 18 U.S.C. 1 ARE NOT ENTITLED ON APPEAL TO THE DISTRICT OF COLUMBIA COURT OF APPEALS TO A TRANSCRIPT AT THE EXPENSE OF THE UNITED STATES UNDER THE CRIMINAL JUSTICE ACT OF 1964 (18 U.S.C. 3006A (A))---THE ACT EXPRESSLY EXCLUDING DEFENDANTS CHARGED WITH PETTY OFFENSES---IN VIEW OF THE HOLDING IN TATE V. UNITED STATES, 359 F. 2D 245 (1966), THAT 11 D.C. CODE 935 MAKES 28 U.S.C. 753 (F), AUTHORIZING PAYMENT OF TRANSCRIPT FEES IN FORMA PAUPERIS PROCEEDINGS APPLICABLE TO THE COURT OF GENERAL SESSIONS, DEFENDANTS CONVICTED OF PETTY OFFENSES IN THE UNITED STATES SIDE OF THE COURT OF GENERAL SESSIONS MAY BE FURNISHED TRANSCRIPTS WITHOUT CHARGE. B-153485, MARCH 17, 1964, MODIFIED. COURTS-- COSTS--TRANSCRIPTS THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS AUTHORIZED IN VIEW OF TATE V. UNITED STATES, 359 F. 2D 245 (1966), TO FURNISH TRANSCRIPTS FOR DEFENDANTS PROSECUTED AND CONVICTED IN THE UNITED STATES SIDE OF THE COURT OF GENERAL SESSIONS WHO ARE ALLOWED TO APPEAL TO THE DISTRICT OF COLUMBIA COURT OF APPEALS IN FORMA PAUPERIS, MAY CHARGE TRANSCRIPT FEES TO THE APPROPRIATIONS MADE FOR COSTS INCURRED UNDER 28 U.S.C. 753 (F), AND SUCH COSTS ARE NOT LIMITED TO THE $300 IMPOSED BY THE CRIMINAL JUSTICE ACT OF 1964 (18 U.S.C. 3006A (A)), BUT PAYMENT FOR TRANSCRIPTS MAY BE MADE IN THE MANNER USED TO PAY FOR TRANSCRIPTS FOR DEFENDANTS PROSECUTED IN THE UNITED STATES DISTRICT COURTS IN CASES WHERE THE COST OF THE TRANSCRIPT EXCEEDS $300.

TO THE ATTORNEY GENERAL, MARCH 3, 1969:

LETTER DATED OCTOBER 10, 1968, FROM THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION (ASSISTANT ATTORNEY GENERAL) PRESENTS FOR OUR DECISION TWO QUESTIONS RELATING TO PAYMENTS FOR TRANSCRIPTS FOR INDIGENT DEFENDANTS.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE QUESTIONS PRESENTED, AS DISCLOSED BY THE ASSISTANT ATTORNEY GENERAL'S LETTER, ARE SET FORTH BELOW.

IN TATE V. UNITED STATES, 123 U.S. APP. D.C. 261, 359 F. 2D 245 (1966), IT WAS HELD THAT AN INDIGENT DEFENDANT (ONE ALLOWED TO SUE, DEFEND OR APPEAL IN FORMA PAUPERIS) PROSECUTED BY THE UNITED STATES IN THE COURT OF GENERAL SESSIONS IS ENTITLED ON APPEAL TO THE DISTRICT OF COLUMBIA COURT OF APPEALS TO A TRANSCRIPT AT THE EXPENSE OF THE UNITED STATES. FOLLOWING THAT DECISION, THE COURT OF GENERAL SESSIONS BEGAN ORDERING TRANSCRIPTS AT GOVERNMENT EXPENSE AND, IN ACCORDANCE WITH OUR DECISION IN 46 COMP. GEN. 93, PAYMENT THEREFOR IS MADE FROM APPROPRIATIONS OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

ALTHOUGH THE CRIMINAL JUSTICE ACT IS APPLICABLE TO FELONY AND MISDEMEANOR CASES IN THE COURT OF GENERAL SESSIONS, A QUESTION HAS ARISEN AS TO THE INTERPRETATION OF SECTION 3006A (A), TITLE 18, U.S.C. WHICH STATES THAT EACH UNITED STATES DISTRICT COURT SHALL PLACE IN OPERATION A PLAN FOR FURNISHING REPRESENTATION FOR DEFENDANTS CHARGED WITH FELONIES OR MISDEMEANORS, OTHER THAN PETTY OFFENSES, AS DEFINED IN 18 U.S.C. 1, WHO ARE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE. THIS LATTER CODE SECTION STATES THAT A MISDEMEANOR, THE PENALTY FOR WHICH DOES NOT EXCEED IMPRISONMENT FOR A PERIOD OF 6 MONTHS OR A FINE OF NOT MORE THAN $500, OR BOTH, IS A PETTY OFFENSE.

A NUMBER OF OFFENSES PROSECUTED BY THE UNITED STATES IN THE COURT OF GENERAL SESSIONS FALL WITHIN THE CLASSIFICATION OF PETTY OFFENSES. IN ONE OF THESE CASES, THE INDIGENT APPELLANT HAS REQUESTED A TRANSCRIPT. THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS HAS INDICATED THAT ITS FUNDS ARE NOT AVAILABLE FOR SUCH PAYMENTS SINCE THE CRIMINAL JUSTICE ACT IS INAPPLICABLE TO PETTY OFFENSE CASES. IF THE COURT ORDERS A TRANSCRIPT, AT GOVERNMENT EXPENSE, THE REPORTER WILL NOT PREPARE THE TRANSCRIPT WITHOUT ASSURANCE IT WILL BE PAID FOR.

IN LIGHT OF THE FOREGOING, THE ASSISTANT ATTORNEY GENERAL REQUESTS- -

* * * INSTRUCTIONS AS TO HOW PAYMENT FOR TRANSCRIPTS UNDER THESE CIRCUMSTANCES MAY BE MADE. IF IT IS YOUR VIEW THAT PAYMENTS MAY BE MADE FROM GOVERNMENT FUNDS, ARE FUNDS AVAILABLE TO THE DEPARTMENT OF JUSTICE OR THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS TO BE USED FOR THIS PURPOSE?

A SECOND PROBLEM WHICH MAY OCCUR CONCERNS CASES WHERE THE COST OF THE TRANSCRIPT MAY EXCEED $300. SERVICES OTHER THAN COUNSEL FEES UNDER THE CRIMINAL JUSTICE ACT ARE LIMITED TO THIS AMOUNT. IN THE EVENT WE HAVE A CASE IN WHICH THE TRANSCRIPT COSTS EXCEED THE SUM OF $300, WE WOULD APPRECIATE YOUR INSTRUCTIONS AS TO HOW SUCH AMOUNTS ARE TO BE PAID.

THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006A, READS, IN PERTINENT PARTS, AS FOLLOWS:

(A) CHOICE OF PLAN.---EACH UNITED STATES DISTRICT COURT, WITH THE APPROVAL OF THE JUDICIAL COUNCIL OF THE CIRCUIT, SHALL PLACE IN OPERATION THROUGHOUT THE DISTRICT A PLAN FOR FURNISHING REPRESENTATION FOR DEFENDANTS CHARGED WITH FELONIES OR MISDEMEANORS, OTHER THAN PETTY OFFENSES AS DEFINED IN SECTION 1 OF THIS TITLE, WHO ARE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE. REPRESENTATION UNDER EACH PLAN SHALL INCLUDE COUNSEL AND INVESTIGATIVE, EXPERT, AND OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE. * * *

THERE IS SPECIFICALLY EXCLUDED FROM THE "REPRESENTATION" AUTHORIZED BY SECTION 3006A (A) FOR DEFENDANTS WHO ARE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE, DEFENDANTS CHARGED WITH PETTY OFFENSES AS DEFINED IN 18 U.S.C. 1. FURTHER, INASMUCH AS "REPRESENTATION" IS DEFINED IN SECTION 3006A (A) IS INCLUDING COUNSEL, INVESTIGATIVE, EXPERT "AND OTHER SERVICES NECESSARY TO AN ADEQUATE DEFENSE," IT IS OBVIOUS THAT "REPRESENTATION," AS USED THEREIN, INCLUDES "TRANSCRIPTS" AND THE COST THEREOF.

IT IS CLEAR FROM THE FOREGOING THAT "PETTY OFFENSES" AS DEFINED IN 18 U.S.C. 1 DO NOT COME WITHIN THE SCOPE OF THE CRIMINAL JUSTICE ACT OF 1964, AND THAT "TRANSCRIPTS" ARE INCLUDED IN THE TERM "REPRESENTATION" AS USED IN THAT ACT. HENCE, DEFENDANTS PROSECUTED BY THE UNITED STATES FOR PETTY OFFENSES---AS DEFINED IN 18 U.S.C. 1---IN THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS ARE NOT ENTITLED ON APPEAL TO THE DISTRICT OF COLUMBIA COURT OF APPEALS TO A TRANSCRIPT AT THE EXPENSE OF THE UNITED STATES UNDER THE CRIMINAL JUSTICE ACT OF 1964. ACCORDINGLY, APPROPRIATIONS MADE TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS TO ENABLE IT TO CARRY OUT THE PROVISIONS OF THE CRIMINAL JUSTICE ACT OF 1964 WOULD NOT BE AVAILABLE TO PAY FOR TRANSCRIPTS FOR INDIGENT DEFENDANTS CHARGED WITH PETTY OFFENSES, WHETHER SUCH DEFENDANTS ARE PROSECUTED IN THE UNITED STATES BRANCH OF THE DISTRICT OF COLUMBIA COURT OF GENERAL SESSIONS OR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, NOR ARE WE AWARE OF ANY APPROPRIATION OF THE DEPARTMENT OF JUSTICE WHICH APPEARS TO BE AVAILABLE FOR SUCH PURPOSE.

INSOFAR AS PAYMENT FOR TRANSCRIPTS UNDER AUTHORITY OTHER THAN THE CRIMINAL JUSTICE ACT OF 1964 IS CONCERNED, 28 U.S.C. 753 (F) READS IN PERTINENT PART AS FOLLOWS:

(F) * * * FEES FOR TRANSCRIPTS FURNISHED IN CRIMINAL OR HABEAS CORPUS PROCEEDINGS TO PERSONS ALLOWED TO SUE, DEFEND, OR APPEAL IN FORMA PAUPERIS SHALL BE PAID BY THE UNITED STATES OUT OF MONEY APPROPRIATED FOR THAT PURPOSE. * * *

IN THE TATE CASE MENTIONED ABOVE THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HELD, IN EFFECT, THAT 11 D.C. CODE 935 MAKES 28 U.S.C. 753 (F) APPLICABLE TO THE COURT OF GENERAL SESSIONS, AND THAT, HENCE, A DEFENDANT PROSECUTED IN THE UNITED STATES SIDE OF THE COURT OF GENERAL SESSIONS WHO IS ALLOWED TO APPEAL IN FORMA PAUPERIS TO THE DISTRICT OF COLUMBIA COURT OF APPEALS IS ENTITLED TO A TRANSCRIPT AT THE EXPENSE OF THE UNITED STATES. THERE IS NO DISTINCTION MADE IN EITHER 11 D.C. CODE 935 OR 28 U.S.C. 753 (F) BETWEEN DEFENDANTS CHARGED WITHIN FELONIES AND MISDEMEANORS OTHER THAN PETTY OFFENSES, AND THOSE CHARGED WITH PETTY OFFENSES. ACCORDINGLY, IN VIEW OF THE DECISION OF THE COURT OF APPEALS IN THE TATE CASE, WE WOULD NOT OBJECT TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS USING THE APPROPRIATIONS AVAILABLE TO IT TO PAY COSTS INCURRED PURSUANT TO THE AUTHORITY IN 28 U.S.C. 753 (F) TO PAY FOR TRANSCRIPTS FOR DEFENDANTS PROSECUTED IN THE UNITED STATES SIDE OF THE COURT OF GENERAL SESSIONS WHO ARE ALLOWED TO APPEAL IN FORMA PAUPERIS TO THE DISTRICT OF COLUMBIA COURT OF APPEALS.

AS TO CASES PROSECUTED IN THE COURT OF GENERAL SESSIONS WHERE THE COST OF THE TRANSCRIPT EXCEEDS $300, AS INDICATED IN THE ASSISTANT ATTORNEY GENERAL'S LETTER, SERVICES OTHER THAN COUNSEL FEES UNDER THE CRIMINAL JUSTICE ACT OF 1964 ARE LIMITED TO $300. HOWEVER, SINCE APPROPRIATIONS ARE MADE TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS FOR COSTS INCURRED UNDER 28 U.S.C. 753 (F), IN VIEW OF THE DECISION OF THE UNITED STATES COURT OF APPEALS IN THE TATE CASE, WE WOULD NOT OBJECT TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS PAYING FOR TRANSCRIPTS FOR DEFENDANTS ALLOWED TO APPEAL IN FORMA PAUPERIS---AS DISTINGUISHED FROM THOSE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE- --PROSECUTED IN THE UNITED STATES SIDE OF THE COURT OF GENERAL SESSIONS IN THE SAME MANNER IT PAYS FOR TRANSCRIPTS FOR SUCH DEFENDANTS PROSECUTED IN UNITED STATES DISTRICT COURTS IN CASES WHERE THE COST OF THE TRANSCRIPT EXCEEDS $300.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.

TO THE EXTENT OUR DECISION OF MARCH 17, 1964, B-153485, IS CONTRARY TO THE FOREGOING, IT NEED NO LONGER BE FOLLOWED.

WE ARE SENDING A COPY OF THIS DECISION TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.