B-129887, JAN. 30, 1957

B-129887: Jan 30, 1957

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OUR DECISION IS REQUESTED ON THE QUESTION WHETHER DEPARTMENT OF JUSTICE FUNDS ARE CHARGEABLE WITH THESE WITNESS EXPENSES OR WHETHER SUCH EXPENSES ARE FOR PAYMENT BY THE MILITARY AUTHORITIES. THE LETTER STATES THAT THE INVESTIGATION BY THE GRAND JURY PERTAINED TO BRIBERY AND WAS BASED UPON INVESTIGATIONS OF POST EXCHANGES BY THE PROVOST MARSHAL'S OFFICE. THE POSITION OF YOUR DEPARTMENT IS THAT SINCE THE INVESTIGATION WAS MADE BY THE PROVOST MARSHAL'S OFFICE AND THE PROSECUTION ORDINARILY WOULD HAVE BEEN MADE UNDER MILITARY LAW. THIS IS AN EXPENSE CHARGEABLE TO THE MILITARY AUTHORITIES UNDER 28 U.S.C. 1823 (A) BECAUSE THE CASE INVOLVES THE ACTIVITY IN CONNECTION WITH WHICH THE WITNESSES ARE EMPLOYED.

B-129887, JAN. 30, 1957

TO THE ATTORNEY GENERAL:

ON NOVEMBER 21, 1956, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL (REFERENCE A3), TRANSMITTED FOR OUR CONSIDERATION EIGHT VOUCHERS SUBMITTED BY THE FINANCE AND ACCOUNTS OFFICE, UNITED STATES ARMY, TO COVER REIMBURSEMENT OF EXPENDITURES BY THE DEPARTMENT OF THE ARMY FOR TRAVEL EXPENSES INCIDENT TO THE APPEARANCE OF ARMY PERSONNEL BEFORE THE FEDERAL GRAND JURY IN SAN ANTONIO, TEXAS, IN THE HEARING DEALING WITH JAMES W. HARLOW ET AL. OUR DECISION IS REQUESTED ON THE QUESTION WHETHER DEPARTMENT OF JUSTICE FUNDS ARE CHARGEABLE WITH THESE WITNESS EXPENSES OR WHETHER SUCH EXPENSES ARE FOR PAYMENT BY THE MILITARY AUTHORITIES.

THE LETTER STATES THAT THE INVESTIGATION BY THE GRAND JURY PERTAINED TO BRIBERY AND WAS BASED UPON INVESTIGATIONS OF POST EXCHANGES BY THE PROVOST MARSHAL'S OFFICE. THE POSITION OF YOUR DEPARTMENT IS THAT SINCE THE INVESTIGATION WAS MADE BY THE PROVOST MARSHAL'S OFFICE AND THE PROSECUTION ORDINARILY WOULD HAVE BEEN MADE UNDER MILITARY LAW, THIS IS AN EXPENSE CHARGEABLE TO THE MILITARY AUTHORITIES UNDER 28 U.S.C. 1823 (A) BECAUSE THE CASE INVOLVES THE ACTIVITY IN CONNECTION WITH WHICH THE WITNESSES ARE EMPLOYED. THE ATTITUDE OF THE ARMY, ON THE OTHER HAND, IS STATED TO BE THAT ITS FUNDS ARE NOT AVAILABLE FOR WITNESSES IN CRIMINAL ACTIONS NOT BEING TRIED UNDER MILITARY LAW. IT APPEARS THAT THE DEFENDANTS ARE NO LONGER IN THE SERVICE AND, HENCE, ARE NOT SUBJECT TO MILITARY JURISDICTION.

IN VIEW OF THE CIRCUMSTANCES GIVING RISE TO YOUR DEPARTMENT'S SUBMISSION, WE HAVE OBTAINED A REPORT IN THE MATTER FROM THE DEPARTMENT OF THE ARMY. THAT REPORT STATES THAT AFTER WORLD WAR II CERTAIN CIVILIAN EMPLOYEES OF THE POST EXCHANGE SYSTEM IN EUROPE WERE SUSPECTED OF FRAUDULENT ACTIVITIES. AN INVESTIGATION BY POST EXCHANGE PERSONNEL DISCLOSED EVIDENCE SUFFICIENT TO SUPPORT SEVERAL PROSECUTIONS IN THE UNITED STATES COURTS OF THE ALLIED HIGH COMMISSION FOR GERMANY BUT OTHER FORMER CIVILIAN EMPLOYEES OF THE POST EXCHANGES ESCAPED PROSECUTION BECAUSE OF THEIR RETURN TO THE UNITED STATES. THE DEPARTMENT OF STATE, THEREFORE, REQUESTED YOUR DEPARTMENT TO PROSECUTE THOSE INDIVIDUALS IN THE CIVIL COURTS OF THE UNITED STATES. THE REPORT FURTHER STATES THAT IN FEBRUARY 1955, YOUR DEPARTMENT ASKED THE ARMY TO FURNISH COPIES OF INVESTIGATIVE REPORTS AND SUCH EVIDENTIARY MATERIAL AS WAS THEN AVAILABLE AND TO CONDUCT FURTHER INVESTIGATION IN EUROPE, AS THE FEDERAL BUREAU OF INVESTIGATION WAS NOT AVAILABLE FOR THIS INVESTIGATION OUTSIDE THE UNITED STATES. THE INVESTIGATIONS WERE PERFORMED BY THE MILITARY POLICE CORPS. ARMY INVESTIGATORS WERE SUBSEQUENTLY CALLED TO APPEAR AT THE GRAND JURY HEARING AND THE INVESTIGATORS WERE MADE AVAILABLE AFTER YOUR DEPARTMENT HAD BEEN ADVISED THAT IT WOULD BE REQUIRED TO REIMBURSE THE ARMY FOR EXPENSES INCIDENT TO THEIR APPEARANCE. THE VIEW IS EXPRESSED IN THE REPORT THAT THE WORD ,ACTIVITY" AS USED IN 28 U.S.C. 1823 (A) REFERS, IN THE INSTANT MATTER, TO THE CRIMINAL INVESTIGATION OF YOUR DEPARTMENT PRELIMINARY TO CRIMINAL COURT PROCEEDINGS.

DETERMINATION AS TO WHICH DEPARTMENT'S APPROPRIATIONS ARE CHARGEABLE WITH EXPENSES SUCH AS HERE CONCERNED INVOLVES THE SECOND SENTENCE OF SECTION 1823 (A) WHICH READS AS FOLLOWS:

"SUCH EXPENSES FOR APPEARING AS A WITNESS IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE UNDER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED.'

IN DETERMINING WHETHER A WITNESS IS APPEARING IN A CASE INVOLVING AN ACTIVITY IN CONNECTION WITH WHICH HE IS EMPLOYED WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISION, WE HAVE CONSISTENTLY APPLIED THE RULE THAT "AN APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE" SHALL BE CHARGED WHERE THE FACTS OR INFORMATION ASCERTAINED BY THE OFFICER OR EMPLOYEE AS PART OF HIS OFFICIAL DUTIES FORMS THE BASIS OF THE CASE. 35 COMP. GEN. 535; 23 ID. 7; ID. 879; B 48573, MAY 5, 1945. ALSO, THE QUOTED PROVISION IS APPLICABLE TO MILITARY PERSONNEL CALLED TO TESTIFY FOR THE UNITED STATES IN A CIVIL (AS DISTINGUISHED FROM A MILITARY) PROCEEDING. 23 COMP. GEN. 879; 22 ID. 1074.

IT HAS NOT BEEN SUGGESTED THAT THE ARMY INVESTIGATORS WERE NOT PERFORMING OFFICIAL DUTIES WHEN CONDUCTING THE INVESTIGATION AT THE REQUEST OF YOUR DEPARTMENT. ACCORDINGLY, AND SINCE THE INVESTIGATORS WERE CALLED TO TESTIFY ON THE FACTS AND INFORMATION SO ASCERTAINED WHICH FORMED THE BASIS OF THE PROCEEDING, WE CONCLUDE THAT APPROPRIATIONS OF THE MILITARY AUTHORITIES ARE AVAILABLE UNDER THE PROVISIONS OF SECTION 1823 (A) SUPRA, AND SHOULD BE CHARGED WITH THE TRAVEL EXPENSES HERE INVOLVED.