A-37658, AUGUST 4, 1931, 11 COMP. GEN. 46

A-37658: Aug 4, 1931

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CREDIT OR REIMBURSEMENT FOR THE ADVANCE IS NOT AUTHORIZED UNLESS SPECIALLY TAXED AS AN EXTRAORDINARY EXPENSE UNDER SECTION 846. WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF B. REPRESENTING AN ADVANCE OF MONEY ALLEGED TO HAVE BEEN PAID TO WALTER HERBERT. WAS NEEDED AS A WITNESS BEFORE THE GRAND JURY ON JANUARY 8. WAS UNABLE TO ATTEND FOR WANT OF SUFFICIENT FUNDS TO DEFRAY THE EXPENSES OF TRAVEL AND SUBSISTENCE. WAS MAILED TO THE POSTMASTER AT GRANT. THAT THE POSTMASTER WAS REQUESTED TO DELIVER THE CHECK TO THE WITNESS. HAVE HIM SIGN THE VOUCHER. JUST AS THE MAIL BAG WAS BEING BROUGHT IN. WHICH WAS ALREADY AT STATION. DID NOT HAVE TIME TO READ YOUR LETTER TO ME. NOR DID HE HAVE TIME TO SIGN THE VOUCHERS.

A-37658, AUGUST 4, 1931, 11 COMP. GEN. 46

PUBLIC FUNDS - ADVANCE BY UNITED STATES MARSHAL TO WITNESS WHERE A UNITED STATES MARSHAL ADVANCES MONEY TO A WITNESS TO ENABLE HIM TO RESPOND TO A SUBPOENA AND THE WITNESS, AFTER RECEIVING THE MONEY, FAILS TO COMPLY WITH THE SUBPOENA, CREDIT OR REIMBURSEMENT FOR THE ADVANCE IS NOT AUTHORIZED UNLESS SPECIALLY TAXED AS AN EXTRAORDINARY EXPENSE UNDER SECTION 846, REVISED STATUTES.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 4, 1931:

REQUEST HAS BEEN MADE FOR REVIEW OF SETTLEMENT NO. F-22358-J, DATED JANUARY 7, 1931, WHEREIN CREDIT WAS DISALLOWED IN THE ACCOUNTS OF B. E. DYSON, DECEASED, FORMER UNITED STATES MARSHAL FOR THE SOUTHERN DISTRICT OF FLORIDA, IN THE SUM OF $20, ON VOUCHER 1638 1/2, JANUARY, 1930, REPRESENTING AN ADVANCE OF MONEY ALLEGED TO HAVE BEEN PAID TO WALTER HERBERT, UNITED STATES WITNESS, WHO FAILED TO APPEAR AS SUCH BEFORE THE GRAND JURY AT JACKSONVILLE, FLA.

THE FACTS APPEAR TO BE AS FOLLOWS:

ON JANUARY 6, 1930, THE UNITED STATES ATTORNEY AT JACKSONVILLE, PURSUANT TO THE PROVISIONS OF PARAGRAPH 813, INSTRUCTIONS TO UNITED STATES MARSHALS, ADVISED MARSHAL DYSON THAT WALTER HERBERT (NEGRO), OF GRANT, FLA., WAS NEEDED AS A WITNESS BEFORE THE GRAND JURY ON JANUARY 8, 1930, BUT WAS UNABLE TO ATTEND FOR WANT OF SUFFICIENT FUNDS TO DEFRAY THE EXPENSES OF TRAVEL AND SUBSISTENCE, AND, THEREFORE, RECOMMENDED THAT THE MARSHAL ADVANCE TO HERBERT SUFFICIENT FUNDS FOR THE PURPOSE OF HIS ATTENDANCE.

IT APPEARS THAT A CHECK IN THE AMOUNT OF $20, MADE PAYABLE TO WALTER HERBERT, WAS MAILED TO THE POSTMASTER AT GRANT, FLA., TOGETHER WITH A VOUCHER COVERING THE DISBURSEMENT. IT APPEARS, ALSO, THAT THE POSTMASTER WAS REQUESTED TO DELIVER THE CHECK TO THE WITNESS, HAVE HIM SIGN THE VOUCHER, AND INSTRUCT HIM TO PROCEED TO JACKSONVILLE ON THE FIRST TRAIN. IN A LETTER TO THE MARSHAL, DATED JANUARY 15, 1930, THE POSTMASTER AT GRANT EXPLAINED THE TRANSACTION AS FOLLOWS:

YOURS OF THE 6TH INST., WITH CHECK FOR WALTER HERBERT ENCLOSED, RECEIVED. THIS LETTER ARRIVED ON JAN. 7TH ON TRAIN NO. 33 AT 1:01 P.M. JUST AS THE MAIL BAG WAS BEING BROUGHT IN, MR. R. E. RICKETTS, OF THIS PLACE, RUSHED IN WITH WALTER HERBERT AND EXPLAINED THAT HE HAD HAD A PHONE CALL FROM YOUR OFFICE IN REGARD TO A CHECK WHICH SHOULD BE IN THAT MAIL FOR HERBERT AND ASKED ME TO EXAMINE MAIL QUICKLY FOR THIS LETTER SO HERBERT COULD LEAVE FOR JAX. ON TRAIN NUMBER THIRTY, DUE HERE AT 1:06 P.M. AND WHICH WAS ALREADY AT STATION. I READ HIS LETTER, BUT DID NOT HAVE TIME TO READ YOUR LETTER TO ME, NOR DID HE HAVE TIME TO SIGN THE VOUCHERS, BUT HE DID ENDORSE THE CHECK, THEN HAD TO RUN TO CATCH THE TRAIN AND DID BOARD IT.

I HAVE HELD VOUCHERS WAITING FOR HIS RETURN FOR HIS SIGNATURE, BUT UP TO THIS DATE HE HAS FAILED TO SHOW UP.

UNDER DATE OF MARCH 22, 1930, DR. R. E. RICKETTS MADE A SWORN STATEMENT AS FOLLOWS:

ON THE MORNING OF JAN. 7TH, 1930, WALTER HERBERT, NEGRO, CAME TO ME AND TOLD ME THAT HE HAD NO MONEY TO PAY HIS FARE TO JACKSONVILLE, AS HE WAS SUBPOENAED BY THE U.S. MARSHAL TO APPEAR IN JACKSONVILLE ON THE MORNING OF JAN. 8TH, 1930. I CALLED THE U.S. MARSHAL'S OFFICE BY PHONE AND WAS TOLD THAT A VOUCHER HAD BEEN SENT TO HIM ON THE PREVIOUS EVENING, JAN. 6TH. CONVEYED THIS MESSAGE TO HIM. HE CAME TO ME BEFORE THE TRAIN ARRIVED. THE SOUTHBOUND TRAIN CARRYING THIS VOUCHER ARRIVED AT GRANT ABOUT THREE MINUTES BEFORE THE NORTHBOUND TRAIN. I HURRIED TO THE POST OFFICE WITH WALTER HERBERT, NEGRO, AND ASKED THE POSTMASTER TO HURRY AND OPEN THE MAIL SACK. THE LETTER WITH THE VOUCHER WAS GIVEN TO WALTER HERBERT, NEGRO. SIGNED IT AND CASHED IT WITH THE POSTMASTER. WE LEFT THE POST OFFICE AND THE NORTHBOUND TRAIN WAS WAITING, AND WALTER HERBERT, NEGRO, GOT ABOARD THE TRAIN AND LEFT FOR JACKSONVILLE.

I HAVE SINCE TALKED WITH THIS CONDUCTOR AND HE TOLD ME THAT WALTER HERBERT, NEGRO, PAID HIS FARE TO JACKSONVILLE, FLA., AND THAT HE GOT OFF THE TRAIN AT COCOA, FLA., WITH A TALL NEGRO AND THAT HE (THE CONDUCTOR) ASKED HIM IF HE WAS NOT GOING ON TO JACKSONVILLE. WALTER HERBERT SEEMED TO BE VERY NERVOUS BEFORE HE LEFT GRANT. I TOLD HIM NOT TO BE AFRAID TO GO, AND HE TOLD ME THAT HE WAS GOING TO JACKSONVILLE. IN MY OPINION WALTER HERBERT WAS WATCHED, AND THIS TALL NEGRO PROBABLY WAS ON THE TRAIN WHEN IT ARRIVED AT GRANT, KNOWING THAT HE WAS SUBPOENAED, AND THAT HE WAS TAKEN OFF THE TRAIN UNDER DURESS WITH A CONCEALED WEAPON AND PROBABLY HAS BEEN DONE AWAY WITH. * * *

INSTRUCTIONS TO UNITED STATES MARSHALS, 1929, PROVIDE:

821. ADVANCES TO WITNESSES ARE OPTIONAL. THEY CAN NOT BE CHARGED UNDER ANY APPROPRIATION, BUT MUST BE CARRIED AS CASH ON HAND.

822. A MEMORANDUM ENTRY ONLY SHOULD BE MADE IN THE UNITED STATES FUNDS BOOKS OF THE CHECK DRAWN COVERING THE ADVANCE TO A WITNESS. * * *

823. ADVANCES TO WITNESS WILL NOT APPEAR IN ANY MANNER IN THE BODY OF THE MARSHAL'S ACCOUNT CURRENT AS A DISBURSEMENT OR OTHERWISE. SUCH ADVANCES WILL APPEAR IN THE ANALYSIS OF BALANCE ON THE FACE OF THE ACCOUNT CURRENT ONLY IF THE ADVANCE IS STILL OUTSTANDING AT THE CLOSE OF THE QUARTER, IN WHICH EVENT IT WILL BE NECESSARY TO INCLUDE AN ITEM IN SAID ANALYSIS OF BALANCE COVERING THE AMOUNT OF THE ADVANCE TREATED THEREIN AS A THEORETICAL CASH BALANCE IN THE HANDS OF THE MARSHAL.

824. DISTRICT ATTORNEYS WILL BE HELD STRICTLY RESPONSIBLE FOR LIMITING THEIR RECOMMENDATIONS THAT SUCH ADVANCES BE MADE TO THOSE CASES ONLY IN WHICH THE WITNESS IS ABSOLUTELY ESSENTIAL.

IN VIEW OF THESE INSTRUCTIONS, AND AS THE UNITED STATES RECEIVED NOTHING IN RETURN FOR THE EXPENDITURE, AND AS THE ITEM HAS NOT BEEN SPECIALLY TAXED AS AN EXTRAORDINARY EXPENSE UNDER SECTION 846, REVISED STATUTES, THIS OFFICE HAS NO CHOICE BUT TO SUSTAIN THE DISALLOWANCE.