B-127978, SEP. 24, 1957

B-127978: Sep 24, 1957

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REQUESTED OUR DECISION CONCERNING CERTAIN QUESTIONS THAT HAVE ARISEN FROM THAT PROCEEDING. HE WAS CHARGED WITH A VIOLATION OF SECTION 1709. THE DEFENDANT HUMBLE ADVISED THE COURT THAT HE WAS WITHOUT FUNDS AND COULD NOT EMPLOY COUNSEL. THE MOTION OR REQUEST SHALL BE SUPPORTED BY AFFIDAVIT IN WHICH THE DEFENDANT SHALL STATE THE NAME AND ADDRESS OF EACH WITNESS AND THE TESTIMONY WHICH HE IS EXPECTED BY THE DEFENDANT TO GIVE IF SUBPOENAED. SHALL SHOW THAT THE EVIDENCE OF THE WITNESS IS MATERIAL TO THE DEFENSE. THAT THE DEFENDANT CANNOT SAFELY GO TO TRIAL WITHOUT THE WITNESS AND THAT THE DEFENDANT DOES NOT HAVE SUFFICIENT MEANS AND IS ACTUALLY UNABLE TO PAY THE FEES OF THE WITNESS. IF THE COURT OR JUDGE ORDERS THE SUBPOENA TOBE ISSUED THE COSTS INCURRED BY THE PROCESS AND THE FEES OF THE WITNESS SO SUBPOENAED SHALL BE PAID IN THE SAME MANNER IN WHICH SIMILAR COSTS AND FEES ARE PAID IN CASE OF A WITNESS SUBPOENAED IN BEHALF OF THE GOVERNMENT.'.

B-127978, SEP. 24, 1957

TO ATTORNEY GENERAL:

ON AUGUST 9, 1957, THE ASSISTANT ATTORNEY GENERAL (ADMINISTRATIVE) TRANSMITTED TO US A COPY OF A LETTER DATED JULY 31, 1957, FROM THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA, CONTAINING A MEMORANDUM PREPARED IN THAT OFFICE REGARDING WITNESS FEES OF A FULL TIME, PERMANENT EMPLOYEE OF THE POST OFFICE DEPARTMENT WHO APPEARED AS A CHARACTER WITNESS FOR THE DEFENSE IN A PROCEEDING IN FORMA PAUPERIS, AND REQUESTED OUR DECISION CONCERNING CERTAIN QUESTIONS THAT HAVE ARISEN FROM THAT PROCEEDING.

THE FACTS AS SET FORTH IN BOTH THE MEMORANDUM AND THE DEPARTMENT'S LETTER SHOW THAT ON FEBRUARY 27, 1956, A FEDERAL GRAND JURY IN THE DISTRICT OF COLUMBIA RETURNED AN INDICTMENT AGAINST RYLANDER L. HUMBLE. HE WAS CHARGED WITH A VIOLATION OF SECTION 1709, TITLE 18, OF THE U.S.C. AT THE TIME OF ARRAIGNMENT, THE DEFENDANT HUMBLE ADVISED THE COURT THAT HE WAS WITHOUT FUNDS AND COULD NOT EMPLOY COUNSEL. THE COURT THEN APPOINTED COUNSEL TO REPRESENT THE DEFENDANT. DEFENSE COUNSEL COMPLIED WITH THE PROVISIONS OF RULE 17/B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE REGARDING ,INDIGENT DEFENDANTS.' THAT RULE READS AS FOLLOWS:

"THE COURT OR A JUDGE THEREOF MAY ORDER AT ANY TIME THAT A SUBPOENA BE ISSUED UPON MOTION OR REQUEST OF AN INDIGENT DEFENDANT. THE MOTION OR REQUEST SHALL BE SUPPORTED BY AFFIDAVIT IN WHICH THE DEFENDANT SHALL STATE THE NAME AND ADDRESS OF EACH WITNESS AND THE TESTIMONY WHICH HE IS EXPECTED BY THE DEFENDANT TO GIVE IF SUBPOENAED, AND SHALL SHOW THAT THE EVIDENCE OF THE WITNESS IS MATERIAL TO THE DEFENSE, THAT THE DEFENDANT CANNOT SAFELY GO TO TRIAL WITHOUT THE WITNESS AND THAT THE DEFENDANT DOES NOT HAVE SUFFICIENT MEANS AND IS ACTUALLY UNABLE TO PAY THE FEES OF THE WITNESS. IF THE COURT OR JUDGE ORDERS THE SUBPOENA TOBE ISSUED THE COSTS INCURRED BY THE PROCESS AND THE FEES OF THE WITNESS SO SUBPOENAED SHALL BE PAID IN THE SAME MANNER IN WHICH SIMILAR COSTS AND FEES ARE PAID IN CASE OF A WITNESS SUBPOENAED IN BEHALF OF THE GOVERNMENT.'

IN CONSONANCE WITH THE RULE, A SUBPOENA WAS ISSUED BY THE COURT FOR THE APPEARANCE OF MR. DEATLEY A. RIDGLEY OF 8200 CENTRAL AVENUE, LANDOVER POST OFFICE, MARYLAND, TO APPEAR AS A CHARACTER WITNESS FOR THE DEFENSE ON APRIL 11, 1956. BECAUSE OF SEVERAL CONTINUANCES BY THE COURT, THE WITNESS APPEARED ON THE FOLLOWING DATES: APRIL 11TH, 12TH, 16TH, 23RD, 24TH, 25TH, AND 26--- A TOTAL OF SEVEN (7) DAYS. SUBSEQUENTLY, THE WITNESS RIDGLEY APPLIED TO THE POST OFFICE DEPARTMENT FOR "COURT LEAVE" AND WAS ADVISED THAT THE REGULATIONS OF THAT DEPARTMENT (SECTIONS 721.61, 721.62 AND 723.62 OF THE POSTAL MANUAL) DO NOT PERMIT THE ABSENCES TO BE CHARGED AS COURT LEAVE. AS A RESULT THE EMPLOYEE WAS CHARGED WITH 23 HOURS ANNUAL LEAVE AND 33 HOURS LEAVE WITHOUT PAY.

THE BASIC QUESTION IS WHETHER THE WITNESS IS ENTITLED TO COURT LEAVE IN THE LIGHT OF THE FOREGOING.

IN OUR DECISION OF SEPTEMBER 12, 1935, 15 COMP. GEN. 196, CONCERNING WITNESS FEES PAYABLE TO GOVERNMENT EMPLOYEES, WE RULED IN PERTINENT PART AS FOLLOWS:

"SECTION 850, REVISED STATUTES, LIMITS GOVERNMENT EMPLOYEES SUBPOENAED TO TESTIFY AS A WITNESS FOR THE GOVERNMENT TO REIMBURSEMENT OF NECESSARY EXPENSES AND PROHIBITS PAYMENT OF ANY MILEAGE OR OTHER COMPENSATION IN ADDITION TO THEIR SALARY. ON THE OTHER HAND, GOVERNMENT EMPLOYEES SUBPOENAED IN PRIVATE LITIGATION OR BY SOME PARTY OTHER THAN THE FEDERAL GOVERNMENT TO TESTIFY, NOT IN THEIR OFFICIAL CAPACITY BUT, AS INDIVIDUALS, ARE ENTITLED TO THE USUAL FEES AND EXPENSES BUT THE TIME ABSENT BY REASON THEREOF MUST BE TAKEN AS ANNUAL LEAVE OR LEAVE WITHOUT PAY. * * *" ALSO, SEE 27 COMP. GEN. 87.

WE HAVE BEEN INFORMED BY TELEPHONE THAT MR. DEATLEY A. RIDGLEY WAS NOT MR. HUMBLE'S SUPERVISOR, WHO POSSIBLY MIGHT APPEAR IN AN OFFICIAL CAPACITY, BUT MERELY A FRIEND OR ACQUAINTANCE WHO WAS EMPLOYED ELSEWHERE IN THE DEPARTMENT. WE MUST CONCLUDE THEREFORE THAT HE DID NOT APPEAR AS A WITNESS IN AN OFFICIAL CAPACITY AS AN EMPLOYEE OF THE GOVERNMENT AND CONSEQUENTLY WOULD APPEAR TO BE ENTITLED ONLY TO WITNESS FEES AND EXPENSES AND NOT TO COURT LEAVE.

WE HAVE EXAMINED THE CASE OF IN RE WALLER, 49 FED. 271, DECIDED IN 1892-- - REFERRED TO IN THE ASSISTANT ATTORNEY GENERAL'S LETTER--- AND DO NOT FIND THAT THE CASE HAS BEEN SUBSEQUENTLY CITED. WE DO NOT REGARD THE DECISION AS CONTROLLING IN DECIDING THE QUESTION HERE UNDER CONSIDERATION. WE CANNOT CONSTRUE THE LAST SENTENCE OF RULE 17/B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AS REQUIRING THAT A GOVERNMENT EMPLOYEE SUBPOENAED THEREUNDER IS ENTITLED TO BE PAID HIS REGULAR SALARY BY THE GOVERNMENT WHILE ATTENDING COURT AS A WITNESS. RATHER, WE ARE OF THE OPINION THAT THE LANGUAGE OF RULE 17/B) SIMPLY MEANS THAT THE EXPENSES AND WITNESS FEES REFERRED TO THEREIN SHALL BE PAID IN THE SAME MANNER AS THEY ARE REQUIRED BY 28 U.S.C. 1821 TO BE PAID TO WITNESSES ATTENDING IN ANY COURT OF THE UNITED STATES. THE LAW PARTICULARLY PROTECTING GOVERNMENT EMPLOYEES FROM LOSS OF SALARY OR LOSS OF ANNUAL LEAVE, WHEN APPEARING IN COURT AS WITNESSES, IN THEIR OFFICIAL CAPACITIES, IS FOUND IN 28 U.S.C. 1823/B). HENCE, WE FIND NOTHING IN THE FEDERAL STATUTES OR THE RULES OF PROCEDURE WHICH WOULD LEAD US TO CONCLUDE THAT MR. RIDGLEY OR ANYONE SIMILARLY SITUATED, WOULD BE ENTITLED TO COURT LEAVE DURING THE DAYS HE WAS ABSENT IN COURT. IT FOLLOWS THAT THE WITNESS IS ENTITLED TO THE FEES AND EXPENSES PROVIDED IN 28 U.S.C. 1821 AND SUCH AMOUNTS IN THIS INSTANCE, ARE PAYABLE FROM THE DEPARTMENT OF JUSTICE APPROPRIATION, FOR "FEES AND EXPENSES OF WITNESSES," ESTABLISHED PURSUANT TO THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1956, 69 STAT. 271, THERE BEING NO APPROPRIATION IN RECEIPT AVAILABLE TO THE JUDICIARY FROM WHICH THEY CAN BE PAID.

WE ARE IN RECEIPT OF A COPY OF A LETTER DATED SEPTEMBER 6, 1957, FROM THE UNITED STATES ATTORNEY, DISTRICT OF COLUMBIA, TO MR. RIDGLEY IN WHICH IT IS INDICATED THAT MR. RIDGLEY HAS DECIDED TO ACCEPT WITNESS FEES FOR HIS SEVEN DAYS OF COURT ATTENDANCE. WE HAVE NO DIRECT INFORMATION CONCERNING THAT ASPECT OF THE CLAIM, BUT WOULD NOT OBJECT FOR THE REASONS STATED ABOVE, TO A SETTLEMENT ON THAT BASIS.