B-154325, JULY 14, 1964, 44 COMP. GEN. 10

B-154325, JULY 14, 1964, 44 COMP. GEN. 10

COMMISSIONERS, UNITED STATES - FEES - ADDITIONAL - PRELIMINARY PROCEEDINGS REQUIRING MORE THAN ONE HEARING WHERE IT WAS NECESSARY FOR A DEFENDANT TO BE PRESENTED TWICE BEFORE A UNITED STATES COMMISSIONER INCIDENT TO BEING CHARGED BY ALCOHOL AND TOBACCO TAX AGENTS WITH NUMEROUS VIOLATIONS OF THE CRIMINAL CODE, THE COMMISSIONER IS NOT ENTITLED TO AN ADDITIONAL FEE FOR HOLDING THE SECOND HEARING, 28 U.S.C. 633 (3) PROVIDING THAT THE PRESCRIBED FEE FOR A PRELIMINARY HEARING COVERS ALL SERVICES RENDERED AFTER PRESENTATION OF THE ACCUSED, AND NOTHING IN THE LEGISLATIVE HISTORY INDICATING THE SECOND HEARING IS REGARDED AS A SEPARATE CASE REQUIRING PAYMENT OF AN ADDITIONAL FEE, AND WHILE A PARTICULAR CASE MIGHT BE MORE BURDENSOME THAN ANOTHER, OVER THE PERIOD OF A CALENDAR YEAR A COMMISSIONER WOULD ON THE AVERAGE BE ADEQUATELY COMPENSATED FOR HIS SERVICES.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURT, JULY 14, 1964:

THE ASSISTANT DIRECTOR'S LETTER OF MAY 28, 1964, REQUESTS OUR DECISION WHETHER UNDER THE FACTS AND CIRCUMSTANCES RELATED HEREINAFTER AND THE PERTINENT PROVISION OF THE JUDICIAL CODE, 28 U.S.C. 633 (3), A UNITED STATES COMMISSIONER IS ENTITLED TO AN ADDITIONAL FEE FOR PRELIMINARY PROCEEDINGS.

THE FACTUAL SITUATION AS PRESENTED IN THE ASSISTANT DIRECTOR'S LETTER IS AS FOLLOWS:

THE PARTICULAR CASE IN POINT INVOLVES A DEFENDANT PRESENTED BEFORE A UNITED STATES COMMISSIONER ON JULY 11, 1963, CHARGED BY ALCOHOL AND TOBACCO TAX AGENTS WITH 37 VIOLATIONS OF THE CRIMINAL CODE FOR WHICH PROBABLE CAUSE WAS DETERMINED BY THE COMMISSIONER ON 3 OF THE CHARGES ON THAT DATE. THE UNITED STATES ATTORNEY DIRECTED THAT THE 34 REMAINING CASES BE HEARD TO DETERMINE WHETHER OR NOT PROBABLE CAUSE WOULD BE FOUND AS HE WOULD NOT AGREE FOR THE 34 WARRANTS TO BE DISMISSED. AS A RESULT A CONTINUANCE WAS GRANTED ON THESE CHARGES UNTIL JULY 19, 1963 ON WHICH DATE THE DEFENDANT APPEARED AND WAIVED HIS RIGHT TO SUCH PRELIMINARY HEARINGS.

THE JUDICIAL CODE, 28 U.S.C. 633, IN PERTINENT PART READS AS FOLLOWS:

UNITED STATES COMMISSIONERS IN EACH JUDICIAL DISTRICT, EXCEPT NATIONAL PARK COMMISSIONERS, SHALL RECEIVE THE FOLLOWING FEES ONLY FOR ALL SERVICES RENDERED, NOT TO EXCEED $10,500 FOR ANY ONE CALENDAR YEAR:

(3) A FEE GRADUATED ACCORDING TO THE AGGREGATE NUMBER OF CASES IN EACH QUARTERLY ACCOUNTING PERIOD, IN THE SUM OF $14 FOR EACH OF THE FIRST TWENTY-FIVE CASES, $9 FOR EACH OF THE NEXT TWENTY-FIVE CASES, $8 FOR EACH OF THE NEXT FIFTY CASES, AND $2 FOR EACH ADDITIONAL CASE OF THE FOLLOWING KINDS:

PRELIMINARY PROCEEDINGS TO HOLD AN ACCUSED PERSON TO ANSWER IN DISTRICT COURT, PAYABLE TO THE COMMISSIONER WHO DISPOSES OF THE CASE BY DISCHARGE OR BINDING OVER, FOR ALL SERVICES RENDERED AFTER PRESENTATION OF OF THE ACCUSED;

EACH ACCUSED PERSON BROUGHT BEFORE THE COMMISSIONER FOR HOLDING TO ANSWER IN DISTRICT COURT SHALL BE CONSIDERED A CASE FOR THE PURPOSE OF COMPUTATION OF FEES.

(5) UPON THE FILING OF A SWORN, WRITTEN COMPLAINT, FOR ALL SERVICES RENDERED PRIOR TO PRESENTATION OF THE ACCUSED BEFORE THE COMMISSIONER, $4 FOR EACH PERSON ACCUSED.'

THE PRINCIPLE OF THE SIMPLIFIED AND CONSOLIDATED FEE SYSTEM CONTAINED IN 28 U.S.C. 633, STEMS FROM THE ACT OF AUGUST 1, 1946, PUBLIC LAW 582, CH. 721, 60 STAT. 752, WHICH AMENDED SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184.

SECTION 21 OF THE 1946 ACT PROVIDED, IN PART, AS FOLLOWS:

SEC. 21. THE FEES OF UNITED STATES COMMISSIONERS FOR THE FOLLOWING SERVICES IN CONNECTION WITH CRIMINAL CASES SHALL BE AS PROVIDED IN THE FOLLOWING SUBDIVISIONS OF THIS SECTION. * * *

(A) IN EACH CASE IN WHICH A COMPLAINT IN WRITING AND SWORN TO SHALL HAVE BEEN LODGED WITH THE COMMISSIONER, FOR ALL SERVICES RENDERED PRIOR TO THE PRESENTATION OF THE ACCUSED BEFORE THE COMMISSIONER, A FEE OF $2.50, SAID FEE TO ACCRUE WHEN THE COMPLAINT IS FILED.

(B) IN EACH CASE IN WHICH THE ACCUSED IS PRESENTED BEFORE THE COMMISSIONER FOR BINDING OVER, FOR ALL SERVICES RENDERED AFTER THE PRESENTATION OF THE ACCUSED A FEE DEPENDING UPON THE NUMBER OF SUCH CASES DISPOSED OF BY THE COMMISSIONER DURING THE QUARTERLY ACCOUNTING PERIOD EITHER BY DISCHARGE OR BY BINDING OVER, AS FOLLOWS:

TABLE

(1) $7 FOR EACH OF THE FIRST TWENTY-FIVE CASES SO DISPOSED OF;

(2) $6 FOR EACH OF THE NEXT TWENTY-FIVE CASES;

(3) $5 FOR EACH OF THE NEXT FIFTY CASES; AND

(4) $2 FOR EACH OF ALL CASES OVER ONE HUNDRED.

WE NOTE THAT THE 1946 STATUTE AS WELL AS THE PRESENT CODIFICATION CONTAINS LANGUAGE STATING THAT THE PRESCRIBED FEES ARE, RESPECTIVELY, FOR ALL SERVICES RENDERED PRIOR TO THE PRESENTATION OF THE ACCUSED BEFORE THE COMMISSIONER, OR FOR ALL SERVICES RENDERED AFTER THE PRESENTATION OF THE ACCUSED. IN THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, HELD MARCH 13, 1946, ON H.R. 2460 (S. 346), WHICH BECAME PUBLIC LAW 582, THE TESTIMONY OF JUDGE HINCKS THROWS SOME LIGHT ON THE LEGISLATIVE INTENT. ON PAGE 7 OF THE HEARINGS HE SAID, REFERRING TO SUBSECTION (A) OF THE ACT, THAT IS, TO SERVICES RENDERED PRIOR TO THE PRESENTATION:

WE FEEL THAT THE REQUIRED FEE IS VERY FAIR FOR THE AVERAGE SERVICE REQUIRED. IT MAY BE THAT SOME CASE WILL COME IN THAT DOES NOT EVEN INVOLVE $2.50, BUT THERE WILL BE OTHER CASES THAT WILL TAKE A COUPLE OF HOURS OF TIME, SO THAT THE FEE WE HAVE PROPOSED, WE THINK IS AN AVERAGE.

THE ENSUING DISCUSSION IN THE HEARINGS AND REFERENCE TO TABLE 2 AT THE END THEREOF SUGGESTS THAT THE GRADUATED FEES PROVIDED BY SUBSECTION (B) OF THE LAW, LIKEWISE, WERE ESTABLISHED ON AN AVERAGE CASE BASIS.

IN H.REPT.NO. 2309, 79TH CONG., ON S. 346, PAGE 2, THE BILL WAS EXPLAINED AS FOLLOWS:

* * * IT CONSOLIDATES VARIOUS SMALL ITEMS IN THE PRESENT STATUTE INTO LARGER UNITS OF SERVICE FOR THE PURPOSE OF COMPUTING FEES. THE MOST FREQUENTLY RECURRING CHARGES UNDER THE NEW BILL WOULD BE (1) FOR ALL SERVICES RENDERED PRIOR TO THE PRESENTATION OF THE ACCUSED BEFORE A COMMISSIONER, INCLUDING DRAWING A COMPLAINT, ISSUING A WARRANT OF ARREST, AND ENTERING THE RETURN OF SERVICE, FOR WHICH A BLANKET FEE OF $2.50 PER DEFENDANT WOULD BE PAID; AND (2) FOR ALL SERVICES RENDERED AFTER PRESENTATION OF THE DEFENDANT BEFORE A COMMISSIONER, INCLUDING THE HEARING, THE FIXING OF BAIL, THE JUSTIFICATION OF SURETIES, OR THE COMMITMENT, AND THE TRANSCRIPT OF THE PROCEEDINGS, OR WHICHEVER OF THESE PROCEDURES TAKES PLACE IN A GIVEN CASE, FOR WHICH A BLANKET FEE WOULD BE PAID, GRADUATED DOWNWARD FROM $7 TO $2 PER DEFENDANT AS THE NUMBER OF CASES HANDLED DURING A GIVEN QUARTER BY THE COMMISSIONER SUBMITTING THE ACCOUNT INCREASED. * * *

NOWHERE IN 28 U.S.C. 633 (3) OR IN THE HISTORY OF THE LEGISLATION THEREOF DO WE FIND A BASIS FOR THE PAYMENT OF ANY ADDITIONAL FEE FOR HOLDING A SECOND HEARING INVOLVING THE SAME ACCUSED UNDER CIRCUMSTANCES SUCH AS RELATED HERE. MOREOVER, WE DO NOT FIND ANY BASIS IN THE LEGISLATIVE HISTORY FOR REGARDING THE SECOND HEARING AS A SEPARATE CASE SO AS TO WARRANT THE PAYMENT OF AN ADDITIONAL CASE FEE.

WHILE A PARTICULAR CASE MIGHT BE MORE BURDENSOME THAN ANOTHER IT APPEARS TO HAVE BEEN THE LEGISLATIVE CONCEPT THAT OVER THE PERIOD OF THE CALENDAR YEAR A COMMISSIONER WOULD ON THE AVERAGE BE ADEQUATELY COMPENSATED FOR HIS SERVICES.

THEREFORE, THE QUESTION PRESENTED BY THE ASSISTANT DIRECTOR MUST BE ANSWERED IN THE NEGATIVE. THE WAIVER OF THE HEARING BY THE ACCUSED IS NOT MATERIAL TO THE ISSUE.