B-28057, OCTOBER 20, 1942, 22 COMP. GEN. 373

B-28057, OCTOBER 20, 1942, 22 COMP. GEN. 373

FEES - UNITED STATES COMMISSIONERS UNDER 28 U.S.C. 597, PRESCRIBING THE FEES PAYABLE TO UNITED STATES COMMISSIONERS, FEES MAY BE ALLOWED ONLY FOR PROCEEDINGS IN CASES PROPERLY WITHIN THE COMMISSIONERS' JURISDICTION, OR OTHERWISE CLEARLY IN COMPLIANCE WITH THE COURSE OF ACTION WHICH THE ACTS OF CONGRESS PRESCRIBE, AS EXPLAINED AND IMPLEMENTED BY DECISIONS OF THE COURTS. WHERE AN OFFENDER IS ARRESTED IN ONE JUDICIAL DISTRICT AND REMOVED TO ANOTHER FOR TRIAL, IT IS TO BE PRESUMED THAT, UNDER THE REMOVAL PROCEDURE PRESCRIBED BY SECTIONS 1014 AND 1029, REVISED STATUTES, HE HAS BEEN GRANTED (OR HAS UNQUALIFIEDLY WAIVED) PRELIMINARY EXAMINATION IN THE DISTRICT OF ARREST AND THAT NO FURTHER PROCEEDINGS, FOR WHICH FEES PERTAINING TO HEARINGS ARE PAYABLE UNDER 28 U.S.C. 597, ARE REQUIRED BEFORE THE UNITED STATES COMMISSIONER IN THE DISTRICT TO WHICH THE OFFENDER IS REMOVED, AND, THEREFORE, SUCH FEES WILL NOT BE ALLOWED TO A COMMISSIONER IN THE LATTER DISTRICT, IN THE ABSENCE OF A SHOWING THAT THE COMMISSIONER'S COURT DIRECTED AN EXAMINATION AFTER REMOVAL, OR THAT THE WARRANT OF REMOVAL CONTAINED A DIRECTION FOR FURTHER EXAMINATION. 7 COMP. DEC. 587, AMPLIFIED. WHERE AN OFFENDER IS ARRESTED IN ONE JUDICIAL DISTRICT AND REMOVED TO ANOTHER FOR TRIAL, IT IS TO BE PRESUMED THAT, UNDER THE REMOVAL PROCEDURE PRESCRIBED BY SECTIONS 1014 AND 1029, REVISED STATUTES, PRELIMINARY EXAMINATION (OR UNQUALIFIED WAIVER THEREOF) AND COMMITMENT TAKE PLACE IN THE DISTRICT OF ARREST, AND, THEREFORE, A FEE FOR FINAL COMMITMENT MAY NOT BE ALLOWED UNDER 28 U.S. CODE 597 TO THE UNITED STATES COMMISSIONER IN THE DISTRICT TO WHICH THE OFFENDER IS REMOVED, IN THE ABSENCE OF A SHOWING THAT, IN A REMOVAL CASE ON COMPLAINT WHERE NO HEARING IS TO BE HELD, THE COURT REGARDS COMMITMENT BY THE COMMISSIONER AS ESSENTIAL, OR UNLESS, IN A CASE WHERE A HEARING WAS HELD, THE ACCOUNT IS SUPPORTED BY THE SAME EVIDENCE REQUIRED IN SUPPORT OF FEES PERTAINING TO HEARINGS.

COMPTROLLER GENERAL WARREN TO F. A. HICKERNELL, ESQ., UNITED STATES COMMISSIONER, OCTOBER 20, 1942:

THERE WAS RECEIVED JUNE 30, 1942, YOUR REQUEST FOR REVISION OF THE SETTLEMENT BY THIS OFFICE OF YOUR FEE ACCOUNTS FOR THE QUARTERS ENDING NOVEMBER 30, 1941, AND FEBRUARY 28, 1942, IN WHICH CERTAIN ITEMS CHARGED IN CONNECTION WITH CASES OF ACCUSED PERSONS, REMOVED FROM THE PLACES OF THEIR ARREST TO THE DISTRICT OF ARIZONA FOR TRIAL, WERE DISALLOWED IN ACCORDANCE WITH PARAGRAPH 1672 OF " INSTRUCTIONS TO UNITED STATES COMMISSIONERS," ISSUED BY THE DEPARTMENT OF JUSTICE IN 1929. THAT PARAGRAPH WAS BASED ON A DECISION OF MARCH 25, 1901, OF THE FORMER COMPTROLLER OF THE TREASURY, AND IS AS FOLLOWS:

1672. SECTION 1014 AND 1029, R.S.U.S. (18 U.S.C. 591, 604), PROVIDE A COMPLETE MODE OF PROCEDURE FOR THE COMMITMENT AND REMOVAL OF AN OFFENDER ARRESTED IN A DISTRICT OTHER THAN THAT WHERE THE OFFENSE IS TO BE TRIED, AND THE COMMISSIONER OF THE DISTRICT TO WHICH THE OFFENDER IS REMOVED IS NOT ENTITLED TO FEES FOR PROCEEDINGS HAD BEFORE HIM, SUCH PROCEEDINGS BEING WITHOUT AUTHORITY OF LAW. (SEE 7 COMP. (DEC.) 578.)

YOUR APPLICATION, AFTER LISTING THE CASES IN QUESTION, READ AS FOLLOWS:

EACH OF THESE ITEMS INVOLVE THE SAME QUESTION, WHICH IS AS FOLLOWS: A COMPLAINT WAS FILED BEFORE ME AS U.S. COMMISSIONER, WARRANT ISSUED AND THE U.S. MARSHAL RETURNED SAID WARRANT MARKED ,UNABLE TO LOCATE.' CERTIFIED COPIES OF COMPLAINT AND WARRANT WITH NON EST RETURN WERE FORWARDED BY THE U.S. ATTORNEY FOR THE DISTRICT OF ARIZONA TO ANOTHER DISTRICT WHERE A FUGITIVE COMPLAINT HAD BEEN FILED. THE U.S. DISTRICT COURT IN ANOTHER DISTRICT ISSUED REMOVAL ORDER TO THE DISTRICT OF ARIZONA. NO INDICTMENTS WERE RETURNED IN THE DISTRICT OF ARIZONA NOR INFORMATIONS FILED AND NO PROCEEDINGS WERE PENDING IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF ARIZONA. CONSEQUENTLY THERE WAS NOTHING BEFORE THE U.S. DISTRICT COURT IN ARIZONA TO ANSWER. THE ORDER OF REMOVAL DIRECTS REMOVAL TO ARIZONA THAT THE PRISONER MAY BE DEALT WITH ACCORDING TO LAW. THE STATUTE DIRECTS REMOVAL FOR TRIAL. THE ONLY COMPLAINT NOT DISPOSED OF WAS THAT PENDING BEFORE THE U.S. COMMISSIONER.

THE DEFENDANTS IN EACH OF THESE CASES WERE DELIVERED TO THE UNITED STATES MARSHAL FOR THE DISTRICT OF ARIZONA TO BE DEALT WITH ACCORDING TO LAW AND WERE PRESENTED TO THE U.S. COMMISSIONER AT PHOENIX AS THE ONLY COURT WHERE PROCEEDINGS WERE PENDING. ACTION WAS HAD AND CLAIM FOR SERVICES RENDERED WERE DISALLOWED. IF THIS PROCEDURE HAD NOT BEEN FOLLOWED, THE MARSHAL HAS NO MEANS OF HOLDING DEFENDANTS UNTIL SUCH TIME AS GRAND JURIES COULD BRING INDICTMENTS, BECAUSE

(1) SEC. 44-323 OF THE 1939 ARIZONA CODE PROVIDES THAT A COMMITMENT TO ANY JAIL IN THIS JURISDICTION, IF THE OFFENSE IS BAILABLE, SHALL SHOW THE AMOUNT.

(2) DESCRIPTION OF THE OFFENSE MUST BE EMBODIED IN THE COMMITMENT AND DESCRIBED IN A TERM WELL KNOWN TO THE LAW BY ITS GENERIC NAME AND ANY SUCH TERM AS "FELONY" IS NOT SUFFICIENT. FERTIG V. STATE, 1913-14 ARIZ. 540, 133 PAC. 99.

(3) A COMMITMENT MUST STATE THE TIME AND PLACE OF THE ALLEGED CRIMINAL ACT. STATE V. GARDNER (1920) 21 ARIZ. 602, 193 PAC. 22.

WARRANTS OF REMOVAL DO NOT GIVE THIS INFORMATION AND CANNOT BE USED AS A COMMITMENT.

RULE NO. 30 OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STATES THAT ALL BONDS IN CRIMINAL CASES SHALL BE TAKEN BY THE U.S. COMMISSIONER UNLESS OTHERWISE ORDERED BY THE COURT. THEREFORE, THE DEFENDANT ON BEING REMOVED FROM ANOTHER DISTRICT SHOULD BE BROUGHT BEFORE A U.S. COMMISSIONER FOR EITHER FINAL COMMITMENT OR FINAL BOND. HEARING AND DECISION IS ALSO NECESSARY BY COMMISSIONER BEFORE EXECUTING EITHER SUCH COMMITMENT OR BOND.

ON JANUARY 2, 1942, COMPLAINT WAS FILED BEFORE U.S. COMMISSIONER AT PHOENIX, ARIZONA, AGAINST ONE JAMES MANGANELLO, CHARGING VIOLATION OF SEC. 398, TITLE 18, USCA. THEREAFTER DEFENDANT WAS APPREHENDED IN THE STATE OF CALIFORNIA AND ON THE 20TH DAY OF JANUARY 1942, THE HONORABLE PAUL J. MCCORMICK, JUDGE, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, MADE AN ORDER TO THE EFFECT THAT THE SAID DEFENDANT BE DELIVERED TO THE UNITED STATES MARSHAL FOR THE DISTRICT OF ARIZONA. THIS WAS DONE. DEFENDANT WAS PRESENTED TO THE U.S. COMMISSIONER AT PHOENIX, ARIZONA, AND HEARING WAS DENIED DUE TO PREVIOUS DISALLOWANCE OF FEES IN SIMILAR CASES. ON FEBRUARY 4, 1942, COUNSEL FOR MANGANELLO FILED A PETITION FOR WRIT OF HABEAS CORPUS, CHARGING THAT DEFENDANT WAS BEING ILLEGALLY DETAINED BY THE UNITED STATES MARSHAL WITHOUT ANY WARRANT OR COMMITMENT ISSUED BY ANY COURT OF COMPETENT AUTHORITY. THE COURT AUTHORIZED THE ISSUANCE OF WRIT OF HABEAS CORPUS AND ON FEBRUARY 6, 1942, THE DEFENDANT WAS BROUGHT INTO THE COURT. UPON HEARING, THE HONORABLE DAVE W. LING ORDERED THE DEFENDANT RELEASED FROM CUSTODY.

IN THE DISTRICT OF ARIZONA, THE PRACTICE OF U.S. COMMISSIONER HAS BEEN TO ADVISE DEFENDANT IN REMOVAL CASES THAT THE ISSUE RESTED WITH THE COURT IN ANOTHER DISTRICT AND THAT THE MATTER OF IDENTITY WAS THE PRIME FACTOR TO BE ESTABLISHED, AS ANSWER TO CHARGES MUST BE MADE IN THE PROPER JURISDICTION. WAIVER OF REMOVAL IS ALMOST INVARIABLY SIGNED WHICH ADMITS IDENTITY ONLY AND HAS NO BEARING ON THE GUILT OR INNOCENCE OF DEFENDANT.

WHEN AN INDICTMENT IS PENDING OR AN INFORMATION HAS BEEN FILED, A DEFENDANT REMOVED TO THE DISTRICT FOR TRIAL, OF COURSE, IS ARRAIGNED THEREON, BOND FIXED AND/OR MITTIMUS ISSUED BY COURT. ON REMOVAL PROCEEDINGS IN SUCH CASES, A COPY OF THE INDICTMENT AND WARRANT OF ARREST ARE PRIMA FACIE EVIDENCE SUFFICIENT TO AUTHORIZE REMOVAL ON ESTABLISHMENT OF IDENTITY. WHERE THE COMPLAINT UPON WHICH REMOVAL PROCEEDINGS ARE INSTITUTED IS THAT OF A COMMISSIONER, EVIDENCE OF PROBABLE GUILT IS REQUIRED UNLESS A WAIVER IS FILED. A WAIVER IS EVIDENCE OF IDENTITY ONLY FOR REMOVAL PURPOSES, AND A CONSENT TO REMOVAL IS NOT A CONFESSION OF PROBABLE GUILT NOR A WAIVER OF HEARING ON THAT ISSUE.

THE WARRANT OF REMOVAL IS TO REMOVE A DEFENDANT FOR TRIAL. THE ONLY TRIAL POSSIBLE, WHEN NO INDICTMENT OR INFORMATION HAS BEEN FILED, IS THE TRIAL ON THE MERITS OF THE COMPLAINT BEFORE THE COMMISSIONER. DEFENDANTS CANNOT SECURE ATTENDANCE OF WITNESSES FROM OUTSIDE OF DISTRICT WHERE HEARING IS HAD. TO DENY DEFENDANT RIGHT OF HEARING IN DISTRICT TO WHICH REMOVED IS TO DENY HIM HIS RIGHT TO PRODUCE EVIDENCE OF EXCULPATION AND INFLICT UNLAWFUL IMPRISONMENT.

THE ORDER OF REMOVAL ADJUDGES NOTHING AFFECTING THE MERITS OF THE CASE. WHERE REMOVAL IS HAD WITHOUT A HEARING, ON A WAIVER, CONDITIONS OF REMOVAL ARE LIMITED BY THE WAIVER. IF WAIVER ONLY WAIVES HEARING ON RIGHT OF REMOVAL, ISSUE OF PROBABLE GUILT REMAINS TO BE DISPOSED OF BY COMMISSIONER. REMOVAL FOR TRIAL UNDER THE STATUTE, WHERE THE ONLY PENDING PROCEEDING IS PENDING BEFORE A U.S. COMMISSIONER, IS REMOVAL FOR TRIAL OF COMPLAINT BEFORE COMMISSIONER. REMOVAL ON COMMISSIONER COMPLAINT IS REMOVAL FOR TRIAL BEFORE U.S. COMMISSIONER. (295 US 396)

WHEREFORE, YOUR PETITIONER PRAYS THAT THE AFORESAID DECISION OF THE GENERAL ACCOUNTING OFFICE BE REVERSED AND THAT SAID FEES BE ALLOWED.

AS AN EXAMPLE TYPICAL OF THE CASES, YOUR ACCOUNT IN THE MATTER OF UNITED STATES V. STUDEBAKER SHOWS THAT A COMPLAINT WAS MADE BEFORE YOU ON AUGUST 25, 1941, BY AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION, CHARGING STUDEBAKER WITH THE OFFENSE OF DRAFT EVASION, 54 STAT. 894 (50 U.S.C. 311), AT PHOENIX, ARIZONA, ON APRIL 8, 1941. ON THE SAME DAY--- AUGUST 25 --- YOU ISSUED A WARRANT OF ARREST, WITH CERTIFIED COPY OF COMPLAINT, TO THE UNITED STATES MARSHAL, WHO RETURNED IT, PRESUMABLY NON EST INVENTUS. THEREAFTER, ON DECEMBER 26, STUDEBAKER WAS ARRESTED AT OAKLAND, CALIFORNIA, AND ORDERED REMOVED TO ARIZONA (WHETHER WITH OR WITHOUT A HEARING DOES NOT APPEAR). AT PHOENIX, YOUR ACCOUNT STATES,"ARRAIGNMENT HAD ON INSTRUCTIONS OF U.S. ATTORNEY AND HEARING CONTINUED TO JANUARY 6TH TO SECURE OUT OF COUNTY WITNESSES. DEFENDANT VOLUNTEERED FOR ARMY SERVICE AND CASE DISMISSED JANUARY 6TH AT REQUEST OF U.S. ATTORNEY.' IN THE SETTLEMENT, THERE WAS DISALLOWED YOUR CLAIM FOR A PER DIEM ON DECEMBER 29 FOR "HEARING AND DECIDING ON CRIMINAL CHARGES" 29 STAT. 184, 186 (28 U.S.C. 597) AND FOR FEES IN CONNECTION WITH THE SUBPOENA OF WITNESSES ( DECEMBER 30 AND JANUARY 6); AND, SUBSEQUENTLY, YOU WERE ADVISED OF THE DISALLOWANCE OF FEES CLAIMED FOR ISSUING AND ENTERING THE RETURN OF TEMPORARY COMMITMENT ON DECEMBER 29.

THE GENERAL ACCOUNTING OFFICE DOES NOT, OF COURSE, PURPORT TO PRESCRIBE THE RULES OF CRIMINAL PROCEDURE APPLICABLE BEFORE UNITED STATES COMMISSIONERS; NEVERTHELESS, AN EXACT AUDIT OF THEIR ACCOUNTS IS REQUIRED ( DENNISON V. UNITED STATES (1890), 25 C.1CLS. 304), IN WHICH AUDIT THE RULE IS AS STATED BY THE COURT OF CLAIMS IN DAVIES V. UNITED STATES (1888), 23 C.1CLS. 468, AS FOLLOWS:

A COMMISSIONER IS ENTITLED TO CHARGE ONLY SUCH FEES AS ARE PRESCRIBED IN THE STATUTE FOR SUCH SERVICES AS HE IS REQUIRED OR AUTHORIZED BY LAW TO RENDER.

* * * IF HE CHOOSES TO RENDER SERVICE WHICH THE LAW DOES NOT REQUIRE OF HIM HE CAN NOT RECOVER FEES THEREFOR, ALTHOUGH A FEE IS PRESCRIBED FOR LIKE SERVICES WHEN RENDERED BY A CLERK. UPON THAT BASIS, FEES CANNOT BE ALLOWED FOR PROCEEDINGS IN CASES OUTSIDE THE COMMISSIONER'S JURISDICTION, OR OTHERWISE CLEARLY NOT IN COMPLIANCE WITH THE COURSE OF ACTION WHICH THE ACTS OF CONGRESS PRESCRIBE, AS EXPLAINED AND IMPLEMENTED BY NUMEROUS DECISIONS OF THE UNITED STATES SUPREME COURT AND THE LESSER JUDICIAL AUTHORITIES. FAUCETT V. UNITED STATES (1891), 26 C.1CLS. 154; 27 COMP. DEC. 928, 930 (1921); 4 COMP. GEN. 1 (1924). THE DECISIONS CITED WERE RENDERED AT A TIME WHEN THE COMMISSIONERS' ACCOUNTS REQUIRED THE REVIEW AND APPROVAL OF THE SEVERAL DISTRICT COURTS BEFORE THEIR SUBMISSION TO THE ACCOUNTING OFFICERS FOR SETTLEMENT (ACT OF FEBRUARY 22, 1875, 18 STAT. 333), AND MUST BE CONSIDERED OF GREATER CONSEQUENCE AT THE PRESENT TIME SINCE THE ACCOUNTS ARE NO LONGER REQUIRED TO BE FIRST APPROVED BY THE DISTRICT COURTS (ACT OF MAY 29, 1928, 45 STAT. 998, 28 U.S.C. 598).

THE ITEMS DISALLOWED PERTAIN TO THE PROCEEDINGS REQUIRED AFTER THE ACCUSED HAD BEEN REMOVED FROM THE DISTRICT WHERE HE WAS FOUND; BUT THE DETERMINATION THEREOF DEPENDS, IN PART, UPON THE PRIOR PROCEEDINGS REQUIRED UNDER THE STATUTE AT THE PLACE OF THE ARREST. THE ORIGINAL STATUTE GOVERNING THE ARREST AND DETENTION OF THOSE SUSPECTED OF FEDERAL CRIMES, AND THEIR REMOVAL WHEN NECESSARY, WAS SECTION 33 OF THE JUDICIARY ACT OF SEPTEMBER 24, 1789, 1 STAT. 91, WHICH, WITH ONLY SLIGHT VARIATION, BECAME SECTION 1014 OF THE REVISED STATUTES AND IS NOW 18 U.S.C. 591. ASIDE--- FOR THE MOMENT--- FROM THE EFFECT OF ANY WAIVER BY THE ACCUSED OF A HEARING ON THE QUESTION OF PROBABLE CAUSE, IT APPEARS TO BE YOUR VIEW THAT THE STATUTE CONTEMPLATES THE HEARING TO BE HELD AFTER THE REMOVAL HAS BEEN COMPLETED, INSTEAD OF BEFORE, OR THAT, IN OTHER WORDS (AS YOU HAVE ADVISED PERSONS ARRESTED IN YOUR OWN DISTRICT AND BROUGHT BEFORE YOU FOR A REMOVAL ORDER),"THE ISSUE RESTS" WITH THE COURT TO WHICH REMOVED AND, THE DEFENDANT'S IDENTITY BEING ESTABLISHED,"ANSWER TO CHARGES MUST BE MADE IN THE PROPER JURISDICTION.' UPON THAT SUBJECT AND UPON REMOVALS GENERALLY, THE LEADING AUTHORITY IS THE DECISION OF THE SUPREME COURT IN TINSLEY V. TREAT (1907) 205 U.S. 20, WHEREIN THE DEFENDANT ADMITTED HIS IDENTITY, BUT RESISTED HIS REMOVAL BECAUSE HE HAD NOT BEEN ALLOWED, IN A HEARING PRIOR TO THE REMOVAL ORDER, TO ESTABLISH THAT THERE WAS NO PROBABLE CAUSE TO HOLD HIM FOR TRIAL. IN THE OPINION OF MR. CHIEF JUSTICE FULLER IN THAT CASE IT IS SAID, IN PART (PP. 28 TO 30):

SECTION 1014 OF THE REVISED STATUTES READS AS FOLLOWS:

"FOR ANY CRIME OR OFFENSE AGAINST THE UNITED STATES, THE OFFENDER MAY, BY ANY JUSTICE OR JUDGE OF THE UNITED STATES, OR BY ANY COMMISSIONER OF A CIRCUIT COURT TO TAKE BAIL, OR BY ANY CHANCELLOR, JUDGE OF A SUPREME OR SUPERIOR COURT, CHIEF OR FIRST JUDGE OF COMMON PLEAS, MAYOR OF A CITY, JUSTICE OF THE PEACE, OR OTHER MAGISTRATE, OF ANY STATE WHERE HE MAY BE FOUND, AND AGREEABLY TO THE USUAL MODE OF PROCESS AGAINST OFFENDERS IN SUCH STATE, AND AT THE EXPENSE OF THE UNITED STATES, BE ARRESTED AND IMPRISONED, OR BAILED, AS THE CASE MAY BE, FOR TRIAL BEFORE SUCH COURT OF THE UNITED STATES AS BY LAW HAS COGNIZANCE OF THE OFFENSE. COPIES OF THE PROCESS SHALL BE RETURNED AS SPEEDILY AS MAY BE INTO THE CLERK'S OFFICE OF SUCH COURT, TOGETHER WITH THE RECOGNIZANCES OF THE WITNESSES FOR THEIR APPEARANCE TO TESTIFY IN THE CASE. AND WHERE ANY OFFENDER OR WITNESS IS COMMITTED IN ANY DISTRICT OTHER THAN THAT WHERE THE OFFENSE IS TO BE TRIED, IT SHALL BE THE DUTY OF THE JUDGE OF THE DISTRICT WHERE SUCH OFFENDER OR WITNESS IS IMPRISONED, SEASONABLY TO ISSUE, AND OF THE MARSHAL TO EXECUTE, A WARRANT FOR HIS REMOVAL TO THE DISTRICT WHERE THE TRIAL IS TO BE HAD.' OBVIOUSLY THE FIRST PART OF THIS SECTION PROVIDES FOR THE ARREST OF ANY OFFENDER AGAINST THE UNITED STATES WHEREVER FOUND AND WITHOUT REFERENCE TO WHETHER HE HAS BEEN INDICTED, BUT WHEN HE HAS BEEN INDICTED IN A DISTRICT IN ANOTHER STATE THAN THE DISTRICT OF ARREST, THEN, AFTER THE OFFENDER HAS BEEN COMMITTED, IT BECOMES THE DUTY OF THE DISTRICT JUDGE, ON INQUIRY, TO ISSUE A WARRANT OF REMOVAL. AND IT HAS BEEN REPEATEDLY HELD THAT IN SUCH CASES THE JUDGE EXERCISES SOMETHING MORE THAN A MERE MINISTERIAL FUNCTION, INVOLVING NO JUDICIAL DISCRETION. HE MUST LOOK INTO THE INDICTMENT TO ASCERTAIN WHETHER AN OFFENSE AGAINST THE UNITED STATES IS CHARGED, FIND WHETHER THERE WAS PROBABLE CAUSE, AND DETERMINE WHETHER THE COURT TO WHICH THE ACCUSED IS SOUGHT TO BE REMOVED HAS JURISDICTION OF THE SAME. "THE LIBERTY OF THE CITIZEN, AND HIS GENERAL RIGHT TO BE TRIED IN A TRIBUNAL OR FORUM OF HIS DOMICILE, IMPOSES UPON THE JUDGE THE DUTY OF CONSIDERING AND PASSING UPON THOSE QUESTIONS.' MR. JUSTICE JACKSON, THEN CIRCUIT JUDGE, GREENE'S CASE, 52 FED. REP. 104. IN THE LANGUAGE OF MR. JUSTICE BREWER, DELIVERING THE OPINION IN BEAVERS V. HENKEL, 194 U.S. 73, 83:

"IT MAY BE CONCEDED THAT NO SUCH REMOVAL SHOULD BE SUMMARILY AND ARBITRARILY MADE. THERE ARE RISKS AND BURDENS ATTENDING IT WHICH OUGHT NOT TO BE NEEDLESSLY CAST UPON ANY INDIVIDUAL. THESE MAY NOT BE SERIOUS IN A REMOVAL FROM NEW YORK TO BROOKLYN, BUT MIGHT BE IF THE REMOVAL WAS FROM SAN FRANCISCO TO NEW YORK. AND STATUTORY PROVISIONS MUST BE INTERPRETED IN THE LIGHT OF ALL THAT MAY BE DONE UNDER THEM. WE MUST NEVER FORGET THAT IN ALL CONTROVERSIES, CIVIL OR CRIMINAL, BETWEEN THE GOVERNMENT AND AN INDIVIDUAL THE LATTER IS ENTITLED TO REASONABLE PROTECTION. SUCH SEEMS TO HAVE BEEN THE PURPOSE OF CONGRESS IN ENACTING SECTION 1014, REV. STAT., WHICH REQUIRES THAT THE ORDER OF REMOVAL BE ISSUED BY THE JUDGE OF THE DISTRICT IN WHICH THE DEFENDANT IS ARRESTED. IN OTHER WORDS, THE REMOVAL IS MADE A JUDICIAL, RATHER THAN A MERE MINISTERIAL, ACT.'

ACCORDING TO JUDGE LEARNED HAND, IN UNITED STATES V. PULVER ( C.C.A. 2, 1931) 54 F./2D) 261, THE EFFECT OF TINSLEY V. TREAT IS TO HOLD THAT THE DEFENDANT IN THE REMOVAL PROCEEDING IS ENTITLED TO HIS DAY IN COURT, WITHIN THE DISTRICT WHERE HE WAS FOUND, AND TO A DECISION AS TO PROBABLE CAUSE BASED ON THE EVIDENCE HE MIGHT PRESENT. A LATER SUPREME COURT DECISION ( UNITED STATES EX REL. KASSIN V. MULLIGAN (1935) 295 U.S. 396) REAFFIRMS THE RULE. TO THE SAME EFFECT ARE MANY OF THE OLDER CASES, WHICH APPROVE AND ADOPT THE VIEWS EXPRESSED BY MR. JUSTICE MILLER OF THE SUPREME COURT, APPEARING SUB NOM., IN RE BAILEY (1869) FED. CASE NO. 730. THERE, REMOVAL OF AN ACCUSED WAS SOUGHT TO ANSWER TO A COMMISSIONER'S COMPLAINT, AND IT WAS SAID:

* * * NOR WOULD ANY WELL-INFORMED LAWYER HESITATE TO HOLD THAT THE ACT OF CONGRESS IN QUESTION WAS NOT INTENDED TO AUTHORIZE IMPRISONMENT WITHOUT SUCH PRELIMINARY EXAMINATION BY THE COMMITTING MAGISTRATE AS SHOULD SATISFY HIM THAT THERE WAS ENOUGH EVIDENCE OF THE PRISONER'S GUILT TO JUSTIFY A REFERENCE OF THE CASE TO THE GRAND JURY OF THE PROPER DISTRICT.

WHERE, THEN IS THE PRELIMINARY EXAMINATION TO BE HAD?

THE MOST CARELESS READING OF THE PROVISIONS OF THE ACT CAN LEAVE NO DOUBT ON THAT SUBJECT.

FOR ANY CRIME AGAINST THE UNITED STATES, THE OFFENDER MAY BE IMPRISONED, OR HELD TO BAIL, AFTER, AS I HAVE SHOWN, AN EXAMINATION BY THE PROPER OFFICER OF THE STATE OR DISTRICT WHERE HE MAY BE FOUND.

IF THIS LANGUAGE LEFT ANY DOUBT ON THE SUBJECT, IT WOULD BE REMOVED BY A SUBSEQUENT PROVISION IN THE SAME SECTION, THAT, IF THE COMMITMENT TAKES PLACE IN A DISTRICT OTHER THAN THAT IN WHICH THE OFFENSE IS TO BE TRIED, THE JUDGE OF THE DISTRICT WHERE THE DELINQUENT IS IMPRISONED SHALL MAKE THE NECESSARY ORDER FOR HIS REMOVAL TO THE PROPER DISTRICT FOR TRIAL. THIS SO CLEARLY CONTEMPLATES AN EXAMINATION AND IMPRISONMENT IN THE DISTRICT WHERE THE OFFENDER IS FOUND, WITHOUT REGARD TO THAT IN WHICH THE OFFENSE WAS COMMITTED, THAT COMMENT COULD NOT MAKE IT PLAINER.

MORE RECENTLY, THE THIRD CIRCUIT COURT OF APPEALS SUMMARIZED THE RULE, STATING, IN UNITED STATES V. MATHUES (1927), 19 F./2D) 22:

ONE ACCUSED OF CRIME BY INDICTMENT IN A DISTANT DISTRICT, THOUGH LIABLE TO TRIAL WHEREVER INDICTED, CANNOT BE ARBITRARILY AND SUMMARILY REMOVED FROM THE DISTRICT OF HIS RESIDENCE, BUT IS ENTITLED TO A PRELIMINARY HEARING. SUCH PRELIMINARY HEARING IS NOT A PRELIMINARY TRIAL. IT IS HAD BEFORE A COMMITTING MAGISTRATE, WHO MAY BE A JUDGE, COMMISSIONER, MAYOR OF A CITY, OR JUSTICE OF THE PEACE, AND IT IS ONLY SUCH AS WILL BRING OUT THE PROBABLE CAUSE OF THE CHARGE AND MAKE CERTAIN THE IDENTITY OF THE DEFENDANT. THESE ARE THE TWO THINGS THAT MUST BE ESTABLISHED BEFORE THE ACCUSED CAN BE LAWFULLY REMOVED. IN SUCH A HEARING THE FUNCTION OF THE MAGISTRATE IS NOT MINISTERIAL BUT IS JUDICIAL IN THE LIMITED SENSE INDICATED. HE MUST PASS ON THE QUESTION OF IDENTITY--- AN ISSUE PURELY OF FACT--- AND ALSO ON THAT OF PROBABLE CAUSE. THE INDICTMENT IS ITSELF EVIDENCE THAT THERE WAS PROBABLE CAUSE FOR FINDING IT. OF THIS, HOWEVER, THE INDICTMENT IS NOT CONCLUSIVE. TINSLEY V. TREAT, 205 U.S. 20, 32, 27 S.1CT. 430, 51 L.1ED. 689; ITS EVIDENTIAL EFFECT IS ONLY PRIMA FACIE. HENCE THE ACCUSED MAY ATTACK IT AS NOT CHARGING A CRIME AND THEREFORE AS NOT SHOWING PROBABLE CAUSE.

IN THE NINTH CIRCUIT--- INCLUDING ARIZONA--- THE SAME RULES HAVE BEEN ANNOUNCED. SEE UNVERZAGT V. BENN ( C.C.A. 9, 1925) 5 F. (2) 492, CERTIORARI DENIED; SMITH V. UNITED STATES ( C.C.A. 9, 1937) 92 F./2D) 460. IN THE FORMER CASE, FORMER JUDGE ROSS, DISSENTING, WENT SO FAR AS TO SUGGEST THAT A HEARING IS "ESSENTIAL AND JURISDICTIONAL" BEFORE REMOVAL IS PROPER--- WHICH, IF TRUE, WOULD SEEM TO RENDER INEFFECTIVE A WAIVER OF HEARING OR REMOVAL. COMPARE, ALSO, MR. JUSTICE BRANDEIS' DISSENTING OPINION IN UNITED STATES EX REL. HUGHES V. GAULT (1926) 271 U.S. 142, 152, EXPRESSING THE VIEW THAT WHEN A COMMISSIONER REFUSES TO HEAR THE DEFENDANT'S EVIDENCE BEARING UPON THE QUESTION OF PROBABLE CAUSE, THE DEFENDANT IS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT, BECAUSE IT IS A DENIAL OF A FAIR HEARING. THE RULE WAS SUMMARIZED IN A LETTER DATED MARCH 29, 1938, FROM THE ATTORNEY GENERAL TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES ( HOUSE REPORT NO. 1543, 75TH CONGRESS), WHICH RECOMMENDED A CHANGE IN THE CODE AS TO APPEALS FROM WRITS OF HABEAS CORPUS IN REMOVAL CASES. THE ATTORNEY GENERAL SAID:

UNDER EXISTING LAW (SEC. 1014 R.S.; U.S.C., TITLE 18, SEC. 591) A PERSON CHARGED WITH AN OFFENSE IN ONE JUDICIAL DISTRICT AND ARRESTED IN ANOTHER DISTRICT MAY NOT AS A MATTER OF COURSE BE REMOVED TO THE DISTRICT IN WHICH THE CHARGE ORIGINATED. A REMOVAL PROCEEDING MUST BE INSTITUTED FOR THAT PURPOSE BEFORE A UNITED STATES COMMISSION (ER) OR OTHER COMMITTING MAGISTRATE. A HEARING IS THEN GRANTED TO THE ACCUSED ON THE QUESTION AS TO WHETHER HE SHOULD BE TAKEN TO THE DISTRICT IN WHICH THE COMPLAINT WAS FILED OR INDICTMENT FOUND, AS THE CASE MAY BE. * * * UPON THE REPRESENTATIONS SO MADE, AND AFTER EXAMINING INTO THE REMOVAL PROCESS, THE CONGRESS PASSED THE PARTICULAR BILL RECOMMENDED. ACT OF JUNE 29, 1938, 52 STAT. 1232 (28 U.S.C. 463).

THE CASES REFERRED TO SEEM TO REMOVE ANY ROOM FOR DOUBT THAT, BEFORE DIRECTING A REMOVAL FOR THE PURPOSE OF ANSWERING TO AN INDICTMENT, PRESENTMENT, OR INFORMATION, AND PARTICULARLY IN THE CASE OF A MERE COMPLAINT, THE COMMISSIONER AND THE JUDGE IN THE DISTRICT OF THE ARREST MUST FIRST BE SATISFIED THAT (1) AN OFFENSE AGAINST THE UNITED STATES IS CHARGED, (2) THE DEFENDANT IS THE PERSON ACCUSED, (3) THE COURT TO WHICH REMOVAL IS SOUGHT HAS JURISDICTION TO TRY THE CASE, AND (4) THERE IS PROBABLE CAUSE TO BELIEVE THE DEFENDANT COMMITTED THE OFFENSE WITH WHICH HE IS CHARGED. SEE FOR FURTHER AUTHORITIES, EX PARTE UNITED STATES (1932), 287 U.S. 241, 250; FETTERS V. UNITED STATES (1931), 283 U.S. 638; MORSE V. UNITED STATES (1925), 267 U.S. 80, 83; HARLAN V. MCGOURIN (1910), 218 U.S. 442, 446; BENSON V. HENKEL (1905), 198 U.S. 1; WEINBERG V. UNITED STATES ( C.C.A. 2, 1942), 126 F./2D) 1004, 1007; UNITED STATES V. HAMMOND ( C.C.A. 5, 1938), 98 F./2D) 187; TRAWCZYNSKI V. UNITED STATES ( C.C.A. 7, 1937), 89 F./2D) 922; UNITED STATES V. LAUBENHEIMER ( C.C.A. 7, 1934), 71 F./2D) 814; UNITED STATES EX REL. BRODY V. HECHT ( C.C.A. 2, 1926), 11 F./2D) 128, 132; UNITED STATES V. MOORE ( D.C., KY., 1941), 40 F.1SUPP. 543; UNITED STATES V. ANDRADE ( D.C., TEX., 1926), 10 F./2D) 572; UNITED STATES V. MORSE ( D.C., CONN., 1923), 287 F. 906, 915; UNITED STATES V. YARBOROUGH ( D.C., VA., 1903), 122 F. 293; UNITED STATES V. GREENE ( D.C., N.Y., 1900), 100 F. 941; IN RE WOOD ( D.C., ORE., 1899), 95 F. 288; UNITED STATES V. KARLIN ( D.C., ORE., 1898), 85 F. 963; UNITED STATES V. DANA ( D.C., N.Y., 1895), 68 F. 886; IN RE BURKHARDT ( D.C., S., 1887), 33 F. 25; UNITED STATES V. SHEPARD ( D.C., MICH., 1870), FED. CASE NO. 16,273; PASSETT V. CHASE ( FLA., 1926), 107 SO. 689, 691.

YOUR ACCOUNTS IN THE PRESENT MATTER LIST NUMEROUS REMOVAL CASES COMING BEFORE YOU, WHERE THE DEFENDANTS ARE ORDERED SENT TO OTHER JURISDICTIONS FOR TRIAL, AND THE USUAL PER DIEM FOR "HEARING AND DECIDING ON CRIMINAL CHARGES" HAS BEEN CLAIMED AND PAID IN EACH SUCH CASE. YOUR APPLICATION FOR REVIEW, QUOTED ABOVE, APPEARS TO INDICATE THAT, IN SUCH CASES, INSTEAD OF ADVISING DEFENDANTS, PURSUANT TO SECTION 44-302, ARIZONA CODE OF 1939, OF THEIR DEFINITE RIGHT THEN AND THERE TO THE HEARING WHICH THE LAW INSISTS UPON, AS SHOWN ABOVE, AND WITHOUT FIRST SATISFYING YOURSELF THAT PROBABLE CAUSE EXISTS TO BRING THEM TO TRIAL, YOU HAVE INFORMED THEM THAT "ANSWER TO CHARGES MUST BE MADE IN THE PROPER JURISDICTION" AND, APPARENTLY, YOU HAVE HAD CERTAIN WAIVER FORMS SIGNED. ESPECIALLY WHERE THE DEFENDANTS ARE UNABLE TO EMPLOY COUNSEL, THAT PROCEEDING WOULD SEEM TO AMOUNT, IN PRACTICAL EFFECT, TO A DENIAL OF THE RIGHT TO A HEARING BEFORE REMOVAL; AND UNLESS THE COMMISSIONER DOES GRANT A HEARING OR UNLESS THE ACCUSED, UPON FULL AND CORRECT ADVICE, ANNOUNCES THAT HE WAIVES HIS RIGHT THERETO, IT SEEMS MANIFEST THAT THE COMMISSIONER'S PER DIEM FEE ALLOWED BY LAW FOR "HEARING AND DECIDING" CANNOT CONTINUE TO BE PAID.

IT IS EVIDENT THE RIGHT OF ANY COMMISSIONER TO A PER DIEM FEE IN THE DISTRICT TO WHICH THE ACCUSED IS REMOVED MAY DEPEND SOMEWHAT UPON THE PRE- EXISTING CIRCUMSTANCES. WHERE A HEARING UPON THE ESSENTIAL QUESTIONS, INCLUDING PROBABLE CAUSE, ACTUALLY WAS HELD BEFORE THE COMMISSIONER OR JUDGE AT THE POINT OF REMOVAL, THE LAW (18 U.S.C. 591, SUPRA) DIRECTS THAT THE REMOVAL SHALL BE ,FOR TRIAL; " AND AFTER THAT FORMAL AND JUDICIAL DETERMINATION HAS BEEN MADE BY BOTH THE COMMISSIONER AND THE DISTRICT JUDGE OF A UNITED STATES COURT, NO QUESTION REMAINS IN EITHER DISTRICT FOR ANY COMMISSIONER TO HEAR AND DECIDE, EXCEPT PERHAPS THE FIXING OF BAIL, FOR WHICH NO PER DIEM CAN BE PAID (28 U.S.C. 597). SEE 22 C.J.S. 507, STATING:

IN THE ABSENCE OF A STATUTE, THE FUNCTIONS OF THE EXAMINING MAGISTRATE AND HIS JURISDICTION OVER ACCUSED TERMINATE WHEN HE COMMITS OR REMANDS HIM, OR WHEN HE TAKES HIS RECOGNIZANCE OR ADMITS HIM TO BAIL, AND HE HAS NO AUTHORITY TO GRANT A REHEARING OR NEW EXAMINATION. IF INJUSTICE HAS BEEN DONE, COMPLETE RELIEF CAN BE OBTAINED BY A WRIT OF HABEAS CORPUS FROM THE PROPER COURT. AN ORDER OF COMMITTAL FOR TRIAL AT ONCE CONFERS JURISDICTION OF ACCUSED ON THE TRIAL COURT, AND HE CAN BE DISCHARGED OR RELEASED ON BAIL ONLY BY A COURT HAVING POWER TO ENTERTAIN A WRIT OF HABEAS CORPUS. TO THE SAME EFFECT IS THE DECISION APPEARING IN 3 COMP. DEC. 209 (1896), WHERE THERE ARE CITED STATE V. RUSSELL, 24 TEX. 505; STEEL V. WILLIAMS, 13 IND. 73; STATE V. YOUNG, 56 ME. 219; AND STATE V. RANDOLPH, 26 MO. 213. COMPARE, ALSO, UNITED STATES V. SENFT ( D.C., N.Y., 1921), 272 F. 134; BEAVERS V. HENKEL (1904), 194 U.S. 73, 84.

THE VIEW IS UNTENABLE THAT,"REMOVAL ON COMMISSIONER COMPLAINT IS REMOVAL FOR TRIAL BEFORE U.S. COMMISSIONER.' THE DECISION IN THE CASE OF KASSIN (295 U.S. 396, SUPRA) DOES NOT SO HOLD, BUT RATHER SUGGESTS THE OPPOSITE, SINCE IT SPECIFIES THAT IN CASE OF REMOVAL TO ANSWER A COMPLAINT, NO INDICTMENT HAVING BEEN FOUND, EVIDENCE MUST BE TAKEN, BEFORE REMOVAL, IN SUPPORT OF THE COMPLAINT. ASIDE FROM CERTAIN STATUTORY EXCEPTIONS TO THE GENERAL RULE (SUCH AS CASES OF PETTY OFFENSES IN FEDERAL RESERVATIONS--- ACT OF OCTOBER 9, 1940, 54 STAT. 1058, 18 U.S.C. 576), THERE IS NO "TRIAL" OF ANY KIND BEFORE A UNITED STATES COMMISSIONER, HIS FUNCTION BEING TO DETERMINE WHETHER CAUSE EXISTS TO HOLD AN ACCUSED FOR TRIAL BEFORE A COURT OF THE UNITED STATES, WHICH IS THE FORUM HAVING JURISDICTION TO TRY CASES INVOLVING FEDERAL CRIMES. SEE SECTION 340 OF THE CRIMINAL CODE, 35 STAT. 1153, 18 U.S.C. 546; UNITED STATES V. BERRY ( D.C., COLO., 1880), 4 F. 779, APPROVED IN COLLINS V. MILLER (1920), 252 U.S. 364, 369; AND CF. UNITED STATES V. SCHUMANN ( C. CT., 1866), FED. CASE. NO. 16235; UNITED STATES V. ALLRED (1895), 155 U.S. 591, 594; UNITED STATES V. BARBER (1891), 140 U.S. 177, 179; UNITED STATES V. LEVY (1925), 268 U.S. 390; UNITED STATES V. ADELMAN ( C.C.A. 2, 1939), 107 F./2D) 497. AS A MATTER OF FACT, THERE ARE AT LEAST TWO CASES WHERE REMOVAL WAS DENIED WHEN IT APPEARED THAT THE TRIAL WAS TO BE BEFORE A POLICE COURT OF THE DISTRICT OF COLUMBIA, WHICH HAD NO JURISDICTION TO "TRY" FEDERAL OFFENSES. IN RE DANA ( D.C., N.Y., 1873), FED. CASE NO. 3554; IN RE CROSS ( D.C., MD., 1884), 20 F. 824 (WHERE THE CASE WAS DISPOSED OF BY REVISING THE REMOVAL ORDER TO REQUIRE CROSS' APPEARANCE BEFORE THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, NOTWITHSTANDING THERE WAS THEN NO CHARGE IN THAT COURT FOR THE ACCUSED TO ANSWER). LIKEWISE UNTENABLE IS THE SUGGESTION THAT THE REMOVAL IN COMPLAINT CASES MUST BE TO THE COMMISSIONER BECAUSE NO CASE IS YET PENDING IN THE DISTRICT COURT. NO PRIOR RECORD OF ANY KIND IS ESSENTIAL TO AUTHORIZE A COURT TO RECEIVE CUSTODY OF AN ACCUSED UPON REMOVAL. THE CELEBRATED CASE OF AARON BURR, IN 1807, CHIEF JUSTICE MARSHALL, AT THE CIRCUIT, ORDERED BURR'S REMOVAL TO THE DISTRICT OF OHIO, PURSUANT TO SECTION 33 OF THE JUDICIARY ACT, SUPRA, FOR TRIAL ON A CHARGE OF TREASON, WHEN THERE HAD BEEN NO INDICTMENT THEREFOR AND NO COURT OR COMMISSIONER PROCEEDINGS OF ANY KIND HAD TAKEN PLACE IN OHIO. 25 FED. CASES 201, 207. SEE, ALSO, PRICE V. MCCARTY ( C.C.A. 2, 1898), 89 F. 84. IF THE RECORD OF THE COMMISSIONER WHO DREW THE FIRST COMPLAINT IN THE DISTRICT OF THE CRIME BE NEEDED BY THE TRIAL COURT, THE JUDGE HAS AMPLE AUTHORITY TO REQUIRE ITS PRODUCTION, SINCE, WHATEVER MAY BE THE RULE FOR OTHER PURPOSES, IN CONNECTION WITH THE MANAGEMENT OF HIS CRIMINAL DOCKET AND CASES, THE COMMISSIONER FUNCTIONS AS AN "ADJUNCT" OF THE COURT WHICH APPOINTED HIM, AND THE JUDGE MAY SUMMARILY TAKE CONTROL OF THE RECORD AND PROCEEDINGS AT ANY TIME. GRIN V. SHINE (1902), 187 U.S. 181, 187; GO KART IMPORTING CO. V. UNITED STATES (1931), 282 U.S. 344, 354; UNITED STATES V. BERRY ( D.C., COLO. 1880), 4 F. 779; UNITED STATES V. MARESCA ( D.C., N.Y., 1920), 266 F. 713, 717, 723; UNITED STATES V. CASINO ( D.C., N.Y., 1923), 286 F. 976. AT ANY RATE THE LAW--- IF COMPLIED WITH -- AMPLY PROVIDES FOR THE SITUATION BY REQUIRING REFERENCE OF THE REMOVAL ORDERS TO THE COURT WHICH IS TO TRY THE CASE, NAMELY, THE DISTRICT COURT. SEE THE SECOND SENTENCE OF SECTION 1014 OF THE REVISED STATUTES, SUPRA. AND SECTION 1029, INFRA, WHICH HAVE BEEN SUPPLEMENTED, FOR YOUR DISTRICT, BY PARAGRAPH 29 OF THE RULES OF PRACTICE, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA (1938), READING:

* * * IN EVERY CASE WHERE THE DEFENDANT HAS HAD A HEARING BEFORE A UNITED STATES COMMISSIONER OR OTHER COMMITTING MAGISTRATE THE UNITED STATES ATTORNEY SHALL CAUSE THE TRANSCRIPT OF THE RECORD OF THE PROCEEDINGS HAD IN SUCH CASE TO BE RETURNED AND FILED WITH THE ORIGINAL INDICTMENT OR INFORMATION. NO AUTHORITY IS SUGGESTED FOR FAILING TO FOLLOW THIS MANDATE IN REMOVAL CASES; AND IT IS NOTED THE RECOMMENDED FORM FOR WARRANT OF REMOVAL INCORPORATES BY REFERENCE A COPY OF THE COMMISSIONER'S COMMITMENT AND RECITES, FURTHER, THAT "AN EXAMINATION OF THE MATTER" HAS BEEN MADE BY THE JUDGE. SEE PRICE V. MCCARTY, SUPRA, 89 F. AT P. 87; HOLTZOFF AND COZIER," FEDERAL PROCEDURAL FORMS" (1940), P. 507; HUGHES ON FEDERAL PROCEDURE (1913), P. 34. COMPARE IN THIS CONNECTION UNITED STATES V. VAN DUZEE (1891) 140 U.S. 169, 170; UNITED STATES V. BARBER (1891), 140 U.S. 177, 179; UNITED STATES V. KING (1893), 147 U.S. 676, 682. (YOUR SUPPOSITION THAT A CASE REMAINS PENDING IN YOUR OFFICE, AFTER THE RETURN OF THE ORIGINAL WARRANT NON EST, DOES NOT, IT IS NOTED, COINCIDE WITH THE VIEW TAKEN BY YOUR FORMER ASSOCIATE, COMMISSIONER MORENO OF PRESCOTT, WHO, IN AN IDENTICAL SITUATION WHERE A "FUGITIVE COMPLAINT" WAS EXPECTED TO BE FILED IN CALIFORNIA, ALLEGED THAT THE CASE WAS "CLOSED SO FAR AS MY OFFICE IS CONCERNED.''

THE OTHER STATUTE DIRECTLY CONTROLLING REMOVAL PROCEEDINGS IS SECTION 1029 OF THE REVISED STATUTES, NOW 18 U.S.C. 604, WHICH READS:

604. SAME; FOR REMOVAL OF PRISONER. ONLY ONE WRIT OR WARRANT IS NECESSARY TO REMOVE A PRISONER FROM ONE DISTRICT TO ANOTHER. ONE COPY THEREOF MAY BE DELIVERED TO THE SHERIFF OR JAILER FROM WHOSE CUSTODY THE PRISONER IS TAKEN, AND ANOTHER TO THE SHERIFF OR JAILER TO WHOSE CUSTODY HE IS COMMITTED, AND THE ORIGINAL WRIT, WITH THE MARSHAL'S RETURN THEREON, SHALL BE RETURNED TO THE CLERK OF THE DISTRICT TO WHICH HE IS REMOVED. ITALICS SUPPLIED.)

AS EXPLAINED IN PULESTON V. UNITED STATES (C.1CT., FLA., 1898), 85 F. 570, 573, AFFIRMED ( C.C.A. 5, 1901), 106 F. 294:

THESE SECTIONS OF THE REVISED STATUTES (1014 AND 1029, SUPRA) EXPRESSLY CONFER, ON THE MARSHAL OF THE DISTRICT WHERE THE ARREST WAS EFFECTED, AUTHORITY, AND MAKE IT HIS DUTY TO EXECUTE A WARRANT OF REMOVAL WHEN SIGNED BY THE JUDGE. HE MUST EITHER TURN OVER THE PRISONER TO THE MARSHAL OF THE OTHER DISTRICT, OR COMMIT THE PRISONER TO JAIL THERE. EITHER WOULD BE A COMMITMENT INTO CUSTODY. * * * THAT STATUTE DIRECTS THE ORDER OF REMOVAL TO BE "RETURNED TO THE CLERK" WHERE THE PRISONER IS TAKEN--- NOT TO THE COMMISSIONER; THE BASIC LAW (SECTION 1014) DIRECTS THE JUDGE OF THE DISTRICT OF THE ARREST TO COMMIT THE ACCUSED "FOR TRIAL"--- NOT "FOR PRELIMINARY EXAMINATION; " THE DECISIONS OF THE COURTS ESTABLISH THAT THE PRELIMINARY EXAMINATION IS A RIGHT OF THE ACCUSED, TO BE ACCORDED BEFORE THE REMOVAL TAKES PLACE, AND THAT AFTER SUCH EXAMINATION (OR UNQUALIFIED WAIVER THEREOF), AND AFTER COMMITMENT AND REMOVAL FOR TRIAL, THERE IS NEITHER PURPOSE, NECESSITY, NOR AUTHORITY FOR A COMMISSIONER TO RE-EXAMINE THE PROCEEDINGS. ACCORDINGLY, TO THAT EXTENT, THE DECISION IN 7 COMP. DEC. 578 IS CORRECT AND IS SUSTAINED, AND NO FEES CAN BE ALLOWED FOR EXAMINATIONS (OR, CONCOMITANTLY, FEES IN CONNECTION WITH THE SUBPOENA OF WITNESSES FOR THE EXAMINATION) IN SUCH CIRCUMSTANCES.

WHERE THE DEFENDANT CAN GIVE BAIL, HIS BOND, OF COURSE, MAY BE TAKEN WITHIN THE DISTRICT OF THE ARREST, FOR HIS APPEARANCE AT THE COURT WHERE HE IS TO BE TRIED, AND NO REMOVAL ORDER IS NECESSARY. STALLINGS V. PLAIN (1920), 253 U.S. 339. LIKEWISE, WHERE THE PROPER DISPOSITION IS TO DISCHARGE THE DEFENDANT, UPON GROUNDS SUCH AS THAT IN THE CASE OF STUDEBAKER, WHO AGREED TO ENLIST, NO BASIS SUGGESTS ITSELF WHY SUCH DISCHARGE COULD NOT HAVE TAKEN PLACE IMMEDIATELY AFTER HIS PRELIMINARY EXAMINATION AT THE POINT WHERE HE WAS ARRESTED. AS WAS SAID BY MR. JUSTICE HOLMES IN UNITED STATES EX REL. HUGHES V. GAULT (1926), 271 U.S. 142, 150:

* * * THE HARDSHIP OF REMOVAL, HOWEVER, HAS GROWN WITH THE GROWTH OF THE UNITED STATES, AND THERE IS A NATURAL DESIRE TO PREVENT IT WHEN POSSIBLE, IF A PRELIMINARY SIFTING WILL SHOW THAT THERE IS NO PROBABLE CAUSE FOR THE CHARGE. * * * THERE ARE NUMEROUS PRECEDENTS FOR THE DISCHARGE OF THE ACCUSED AT THAT STAGE, EITHER FOR DEFECT IN THE PROCEEDINGS OR FOR LACK OF PROBABLE CAUSE SHOWN. UNITED STATES V. MOORE ( D.C., KY., 1941), 40 F.1SUPP. 543; UNITED STATES V. CUNNINGHAM ( D.C., GA., 1941), 40 F.1SUPP. 399; UNITED STATES V. NEWCOMER ( D.C., OHIO, 1864), FED. CASE NO. 15869; UNITED STATES V. HUGHES ( D.C., S.C., 1895), 70 F. 972; UNITED STATES V. DIXON ( D.C., LIF., 1890), 44 F. 401; UNITED STATES V. KARLIN, SUPRA; AND OTHER CASES ABOVE-CITED.

AS STATED ABOVE, WHAT HAS BEEN SAID HEREIN IS LIMITED TO CASES WHERE A HEARING ON THE QUESTION OF PROBABLE CAUSE EITHER WAS HELD IN THE DISTRICT OF ARREST OR WAS UNQUALIFIEDLY WAIVED BY THE ACCUSED. YOUR APPLICATION FOR REVIEW SUGGESTS AN INTERMEDIATE COURSE AS EXPEDIENT AND PROPER--- EVIDENTLY CONTEMPLATING (1) A HEARING IN THE DISTRICT OF THE ARREST UPON THE QUESTION OF IDENTITY (AND, PRESUMABLY, UPON ANY JURISDICTIONAL QUESTIONS APPEARING), (2) WAIVER OF THE RIGHT TO A FURTHER HEARING UNTIL AFTER THE REMOVAL AND (3) HEARING ON THE QUESTION OF PROBABLE CAUSE BEFORE THE COMMISSIONER IN THE DISTRICT TO WHICH REMOVED AND FINAL COMMITMENT FOR TRIAL, RELEASE ON BAIL, OR DISCHARGE AT THAT POINT. NO SPECIFIC AUTHORITY HAS BEEN FOUND EITHER FOR OR AGAINST THAT EXACT PROCEDURE. ON THE ONE HAND, IT HAS BEEN SAID THAT AN ACCUSED MAY WAIVE ANY PART OF THE PRELIMINARY EXAMINATION (22 C.J.S. 488); AND HE MAY WAIVE HIS RIGHT TO IMMEDIATE EXAMINATION BY CONSENTING TO CONFINEMENT FOR THE TIME BEING ( EX PARTE GREGORY ( CAL. APP., 1927), 260 P. 320). THE PROPOSAL MIGHT, ALSO, BE LIKENED TO CASES OF CONTINUANCE FOR FURTHER EXAMINATION, WHICH, WITHIN CERTAIN LIMITS, IS ALLOWED ( IN RE BATES ( D.C., S.C., 1858), FED. CASE NO. 1099A; EX PARTE MOAN ( CAL., 1884), 3 P. 644; 3 COMP. GEN. 765; 9 ID. 296). ON THE OTHER HAND, THE STATUTES, AS SHOWN, PRIMARILY CONTEMPLATE AN EXAMINATION BEFORE REMOVAL; THE NINTH CIRCUIT COURT OF APPEALS HAS STATED BROADLY," * * * OF COURSE, THERE COULD BE NO REMOVAL WITHOUT A HEARING AS A MATTER OF LAW * * * " ( UNVERZAGT V. BENN, SUPRA, 5 F./2D) 492); AND THERE CANNOT BE OVERLOOKED THE COURT'S REPLY, IN A VERY SIMILAR MATTER ( UNITED STATES V. YARBOROUGH, SUPRA, 122 F. 293), WHERE THE MARSHAL, HAVING A BENCH WARRANT ISSUED IN ANOTHER DISTRICT, REQUESTED OF HIS OWN COURT A COMBINED WARRANT AND REMOVAL ORDER, TO SAVE THE TROUBLE AND EXPENSE OF EXAMINATION AND COMMITMENT AT THE PLACE OF ARREST. THE COURT SAID (P. 295):

THE COURSE SUGGESTED BY THE MARSHAL IS EXPEDITIOUS AND ECONOMICAL, BUT I HAVE NO HESITATION IN DECLINING TO ISSUE A WARRANT FOR REMOVAL IN ADVANCE OF THE COMMITMENT OF THE ACCUSED. ASIDE FROM THE FACT THAT THE GREAT WEIGHT OF AUTHORITY IS AGAINST SUCH A COURSE, THERE ARE MANY REASONS FOR HOLDING IT AN UNWARRANTED PRACTICE. NONE OF THESE NEED BE NOW MENTIONED, OTHER THAN THE FACT THAT SECTION 1014, REV. ST., DOES NOT AUTHORIZE A WARRANT FOR REMOVAL EXCEPT WHERE AN OFFENDER (OR WITNESS) HAS BEEN COMMITTED IN A DISTRICT OTHER THAN THAT WHERE THE OFFENSE IS TOBE TRIED. JUDGE AVIS, IN PARKER V. MCDERMITT ( D.C., N.Y., 1938), 23 F. SUPP. 207, HAS SAID THAT THE YARBOROUGH CASE CORRECTLY STATES THE PRACTICE.

SO FAR AS THE EXPENSE IS CONCERNED (" * * * EXPENSE IS OF SECONDARY IMPORTANCE WHERE THE LIBERTY OF THE CITIZEN IS INVOLVED," IN RE BESHEARS ( D.C., IOWA, 1897), 79 F. 70, 74), THE PROPOSAL MIGHT SAVE CERTAIN COSTS OF WITNESSES, BUT IT WOULD INCREASE THE PER DIEMS PAID TO COMMISSIONERS AND, IN CASES WHERE THE ACCUSED WOULD OTHERWISE GIVE BAIL IN THE FIRST COURT TO APPEAR BEFORE THE SECOND, WOULD ADD THE COST OF TRANSPORTING THE ACCUSED. IN ANY EVENT, THE MATTER SHOULD BE PRESENTED TO THE APPROPRIATE COURT, AND NOT TO THIS OFFICE, FOR CONSIDERATION AND APPROVAL. IF, IN ANY CASE, THE COURT DIRECTS AN EXAMINATION BY THE COMMISSIONER AFTER THE REMOVAL, THE USUAL FEES IN CONNECTION WITH A HEARING MAY, OF COURSE, BE ALLOWED AND PAID. ALSO, IF THE WARRANT OF REMOVAL CONTAINS A DIRECTION FOR FURTHER EXAMINATION, AND THE ACCOUNT SO STATES, THE CLAIM FOR FEES THEREFOR MAY BE ALLOWED AND PAID. AS TO THE ITEMS PERTAINING TO HEARINGS HERETOFORE DISALLOWED IN YOUR ACCOUNTS, SAID ACCOUNTS DO NOT SHOW THAT THE REMOVALS SPECIFICALLY WERE FOR EXAMINATION INSTEAD OF FOR TRIAL, OR THAT NO EXAMINATION ON THE QUESTION OF PROBABLE CAUSE HAD BEEN PERMITTED PRIOR TO THE REMOVALS. ACCORDINGLY, THE DISALLOWANCE THEREOF MUST BE, AND IS SUSTAINED--- WITHOUT PREJUDICE, HOWEVER, TO REVISION AND ALLOWANCE UPON THE SUBMISSION BY YOU OF ANY APPROPRIATE CERTIFICATION OR PROOF ALONG THE LINES JUST MENTIONED.

THE REMAINING ITEMS PERTAIN TO FEES IN CONNECTION WITH TRANSCRIPTS OF PROCEEDINGS FOR THE USE OF THE COURT AND FOR EITHER TEMPORARY OR FINAL COMMITMENTS ISSUED BY YOU TO HOLD THE DEFENDANTS IN JAIL PENDING FURTHER EXAMINATION OR TO AWAIT INDICTMENT. THE TRANSCRIPT FEES CLAIMED (IN THE CASES OF THERRIEN AND MOORE) ARE ALLOWABLE, IN YOUR DISTRICT, IF THE DEFENDANTS WERE HELD TO COURT BY YOU ( RULE 29 OF THE DISTRICT COURT FOR ARIZONA; A-87798, AUGUST 16, 1937), BUT NOT IF THEY WERE HELD TO COURT BY VIRTUE OF THE REMOVAL ORDER. THOSE ITEMS, THEREFORE, MUST DEPEND UPON THE SAME PROOF AS REQUIRED ABOVE FOR THE PER DIEM IN THOSE CASES. ALSO, THE FEES FOR TEMPORARY COMMITMENT, AND ENTERING ITS RETURN, IN THE CASE OF STUDEBAKER, MUST DEPEND UPON THE SAME PROOF; I.E., WHETHER THE WARRANT OF REMOVAL WAS FOR FURTHER EXAMINATION, OR WHETHER A FULL EXAMINATION WAS HELD PREVIOUSLY AND THE REMOVAL WAS FOR TRIAL.

THE SAME SHOWING IN THE CASES OF THERRIEN AND MOORE WOULD AUTHORIZE THE FEES FOR ISSUING AND ENTERING RETURN OF FINAL COMMITMENTS. BUT IF EACH REMOVAL WAS AFTER A PROPER HEARING AND WAS, AS THE STATUTE PROVIDES, A COMMITMENT FOR TRIAL, THE PURPOSE OR NEED FOR ANY FURTHER COMMITMENT IS NOT UNDERSTOOD. THE LAW OF ARIZONA (SECTION 47-203, CODE OF 1939) COMMANDS THE SHERIFF TO "RECEIVE AND KEEP IN THE COUNTY JAIL ANY PRISONER COMMITTED THERETO BY PROCESS OR ORDER ISSUED UNDER THE AUTHORITY OF THE UNITED STATES, * * *.' THE LAW OF THE UNITED STATES (SECTION 1029, REVISED STATUTES, SUPRA) DIRECTS ONE COPY OF THE WARRANT OF REMOVAL TO BE DELIVERED "TO THE SHERIFF OR JAILER TO WHOSE CUSTODY HE IS COMMITTED * * *.' IN THE PULESTON CASE, SUPRA, 85 F. 570, THE MARSHAL OF FLORIDA DISTRICT TOOK THE ACCUSED UNDER ORDER OF REMOVAL TO MONTGOMERY, ALABAMA, AND THERE COMMITTED HIM TO THE LOCAL JAIL, WHICH THE APPROVED, WITH THE SUBSEQUENT AFFIRMANCE OF THE FIFTH CIRCUIT. IN OTHER CASES, HOWEVER, LOCAL COMMITMENT HAS BEEN APPROVED AFTER THE WARRANT OF REMOVAL HAS BROUGHT THE ACCUSED TO THE DISTRICT OF THE TRIAL. STATE V. HILL ( C.C.A. 6, 1894), 60 F. 1005, 24 L.R.A. 170 (WHERE THE COMMISSIONER COMMITTED A DEFENDANT UNDER INDICTMENT); BENSON V. PALMER (1908), 31 APP. D.C. 561, 17 L.R.A. (NS) 1247 (STATING, AS DICTUM THAT A WARRANT SHOULD ISSUE AFTER REMOVAL). THE LOCAL LAW GOVERNS TH MATTER ( UNITED STATES V. EWING (1891), 140 U.S. 142) UNLESS THE FEDERAL STATUTES PRESCRIBE THE SPECIFIC RULE ON THE SUBJECT ( UNITED STATES V. SAUER ( D.C., TEX., 1896), 73 F. 671, 676). THE SPECIFIC DIRECTION CONTAINED IN THE ABOVE SECTION OF THE REVISED STATUTES WOULD SEEM TO COVER THE MATTER COMPLETELY. BUT EVEN IF THE ARIZONA RULES CITED BY YOU APPLY, THE REMOVAL ORDER INCORPORATES THE PREVIOUS COMMITMENT, WHICH, OF COURSE, SHOULD DESCRIBE THE OFFENSE AND GIVE THE TIME AND PLACE, AND DOUBTLESS COULD SHOW, AS WELL, THE AMOUNT OF THE BAIL REQUIRED, IF THE UNITED STATES ATTORNEY PETITIONING FOR THE ORDER SO REQUESTS. ACCORDINGLY, SINCE THE PRACTICE WITH RESPECT TO FINAL COMMITMENTS DOES NOT APPEAR TO BE ENTIRELY UNIFORM AND THE APPLICATION OF THE LOCAL LAW, AT BEST, IS DOUBTFUL, THE DISALLOWANCE OF THE FEES CLAIMED IN THE PRESENT MATTER MUST STAND UNLESS AND UNTIL PROPER EVIDENCE IS SUBMITTED THAT THE COURT OF YOUR DISTRICT REGARDS COMMITMENT BY THE COMMISSIONER AS ESSENTIAL IN REMOVAL CASES ON COMPLAINT WHERE NO HEARING IS TO BE HELD, OR UNTIL IT BE SHOWN, ALONG THE LINES ABOVE SUGGESTED, THAT THE HEARING IN EACH CASE PROPERLY WAS HELD.

FROM THE REPORT GIVEN IN YOUR APPLICATION FOR REVIEW OF THE RELEASE UPON HABEAS CORPUS OF JAMES MANGANELLO, THERE IS NO INDICATION OF ANY COURT RULING ON THE ABOVE SUBJECTS, SINCE THE FACTS ARE NOT STATED IN DETAIL AND NO OPINION OF THE COURT APPEARS TO HAVE BEEN PUBLISHED. WHILE IT IS STATED THAT A COMMISSIONER'S "HEARING WAS DENIED DUE TO PREVIOUS DISALLOWANCE OF FEES IN SIMILAR CASES," IT IS ADDED THAT THE PETITION FOR THE WRIT ALLEGED HIS DETENTION WAS "WITHOUT ANY WARRANT OR COMMITMENT ISSUED BY ANY COURT OF COMPETENT AUTHORITY.' IF THE RELEASE WAS GRANTED FOR LACK OF A HEARING, IT IS NOT SHOWN WHETHER THE COURT WAS APPRISED OF THE EXTENT OF THE HEARING WHICH, AS MR. JUSTICE HOLMES SAID, IS "SUPPOSED," ACCORDING TO SECTION 1014, TO HAVE TAKEN PLACE AT THE TIME OF THE ARREST ( HUGHES CASE, SUPRA, 271 U.S. 142, 150). BUT IF THE RELEASE WAS REQUIRED, AS ALLEGED, FOR LACK OF A COURT COMMITMENT, IT IS NOT CLEAR HOW ANY ACTION YOU COULD HAVE TAKEN WOULD HAVE CORRECTED THE MATTER SINCE, AS THE SUPREME COURT NOTED IN TODD V. UNITED STATES (1895), 158 U.S. 278, 283, A COMMISSIONER'S EXAMINATION IS NOT A PROCEEDING "IN ANY COURT OF THE UNITED ATES.'

AN EQUALLY SERIOUS ASPECT OF THE MANGANELLO CASE IS THE INDICATION THAT YOUR MANNER OF PROCEEDING UPON CERTAIN CASES BEFORE YOU MAY BE GUIDED BY YOUR PECUNIARY RETURN THEREFROM IN FEES--- A SITUATION OFTEN HERETOFORE DISCOUNTENANCED. SEE 9 COMP. GEN. 296, CITING TUMEY V. OHIO, 273 U.S. 510.