B-44394, SEPTEMBER 21, 1944, 24 COMP. GEN. 248

B-44394: Sep 21, 1944

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- AGAINST THE SAME DEFENDANT AT THE SAME TIME IS UNNECESSARY. INCIDENT TO THE ISSUANCE OF ANY ADDITIONAL WARRANTS UNDER SUCH CIRCUMSTANCES IS UNAUTHORIZED. " THE FEES PROVIDED BY 28 U.S.C. 597 FOR THE SERVICES RENDERED BY THE COMMISSIONER IN ISSUING A SECOND WARRANT OF ARREST ARE ALLOWABLE. AS THE RETURN OF A WARRANT "NON EST" DOES NOT VITIATE THE COMPLAINT UPON WHICH IT WAS PREDICATED. THE DRAWING OF A SECOND COMPLAINT TO SUPPORT THE SECOND WARRANT IS UNNECESSARY AND FEES CLAIMED THEREFOR ARE NOT ALLOWABLE. 1944: REFERENCE IS MADE TO YOUR LETTER DATED MAY 23. AT THE OUTSET IT IS DEEMED APPROPRIATE TO OBSERVE THAT A COMMISSIONER IS ENTITLED ONLY TO SUCH FEES AS ARE PROVIDED FOR IN THE FEE BILL (ACT OF MAY 28.

B-44394, SEPTEMBER 21, 1944, 24 COMP. GEN. 248

FEES - UNITED STATES COMMISSIONERS THE ISSUANCE BY A UNITED STATES COMMISSIONER OF MORE THAN ONE WARRANT OF ARREST--- THE SOLE PURPOSE OF A WARRANT OF ARREST BEING TO OBTAIN CUSTODY OF THE ACCUSED--- AGAINST THE SAME DEFENDANT AT THE SAME TIME IS UNNECESSARY, EVEN THOUGH FOR DIFFERENT OFFENSES, AND THE PAYMENT OF FEES, UNDER 28 U.S.C. 597, INCIDENT TO THE ISSUANCE OF ANY ADDITIONAL WARRANTS UNDER SUCH CIRCUMSTANCES IS UNAUTHORIZED. WHERE A COMPLAINT HAS BEEN DRAWN BY A UNITED STATES COMMISSIONER AND THE WARRANT FOR THE ARREST OF THE ACCUSED HAS BEEN RETURNED "NON EST," THE FEES PROVIDED BY 28 U.S.C. 597 FOR THE SERVICES RENDERED BY THE COMMISSIONER IN ISSUING A SECOND WARRANT OF ARREST ARE ALLOWABLE; HOWEVER, AS THE RETURN OF A WARRANT "NON EST" DOES NOT VITIATE THE COMPLAINT UPON WHICH IT WAS PREDICATED, THE DRAWING OF A SECOND COMPLAINT TO SUPPORT THE SECOND WARRANT IS UNNECESSARY AND FEES CLAIMED THEREFOR ARE NOT ALLOWABLE.

COMPTROLLER GENERAL WARREN TO NORMAN J. GRIFFIN, ESQ., UNITED STATES COMMISSIONER, SEPTEMBER 21, 1944:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 23, 1944, RECEIVED HERE JULY 14, RELATIVE TO THE DISALLOWANCE BY THIS OFFICE OF CERTAIN ITEMS IN YOUR FEE ACCOUNTS FOR THE QUARTERS ENDING JUNE 30, SEPTEMBER 30, AND DECEMBER 31, 1943.

AT THE OUTSET IT IS DEEMED APPROPRIATE TO OBSERVE THAT A COMMISSIONER IS ENTITLED ONLY TO SUCH FEES AS ARE PROVIDED FOR IN THE FEE BILL (ACT OF MAY 28, 1896, 29 STAT. 184, 28 U.S.C. 597), FOR SUCH SERVICES AS HE IS REQUIRED OR AUTHORIZED BY LAW TO RENDER. DAVIES V. UNITED STATES, 23 C.1CLS. 468; UNITED STATES V. PATTERSON, 150 U.S. 65. FURTHER, THE DECISIONS OF THIS OFFICE UNIFORMLY HAVE HELD THAT COMMISSIONERS ARE NOT ENTITLED TO FEES FOR RENDERING SERVICES WHICH ARE UNNECESSARY. 3 COMP. GEN. 13, 835, AND 898; 9 ID. 351.

THERE WAS DISALLOWED BY THIS OFFICE THE FEES FOR COPIES OF COMPLAINTS, ISSUING WARRANTS OF ARREST, AND ENTERING RETURNS, WHERE IT WAS SHOWN THAT THE SAME FEES HAD BEEN CHARGED FOR THE SAME DEFENDANT ON ANOTHER PAGE OF THE ACCOUNT, IN THE FOLLOWING CASES:

CASE VS. QUARTER ENDED PAGE ELLIOTT--------------------------------- JUNE 30, 1943--------- 261 MARANO---------------------------------- SEPTEMBER 30, 1943---- 176 GAYNOR---------------------------------- SEPTEMBER 30, 1943---- 321 WILLIAMS-------------------------------- DECEMBER 31, 1943--- -- 335

AS AN EXAMPLE TYPICAL OF THE ABOVE LISTED CASES, YOUR ACCOUNT IN THE MATTER OF UNITED STATES V. WILLIAMS SHOWS THAT A COMPLAINT WAS MADE BEFORE YOU ON NOVEMBER 8, 1943, BY AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION, CHARGING WILLIAMS WITH VIOLATION OF THE SELECTIVE SERVICE LAWS; THAT ON THE SAME DATE--- NOVEMBER 8--- A COMPLAINT WAS MADE BY THE SAME AGENT CHARGING WILLIAMS WITH A VIOLATION OF SECTION 47 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1097; AND THAT, UPON THE BASIS OF SAID COMPLAINTS, TWO WARRANTS WERE ISSUED BY YOU AND DELIVERED TO THE UNITED STATES MARSHAL FOR SERVICE. YOU CLAIM THE STATUTORY FEES FOR COPIES OF COMPLAINTS, ISSUING WARRANTS OF ARREST, AND ENTERING RETURNS THEREOF IN BOTH CASES, AND IN SUPPORT OF SUCH CHARGES YOU ALLEGE THAT THE ACT OF MAY 28, 1896, SUPRA,"STATES THAT A U.S. COMMISSIONER MAY CHARGE FOR ISSUING ALL WARRANTS OF ARREST REGARDLESS OF THE NUMBER IN REFERENCE TO ONE PERSON.' HOWEVER, NO SUCH PROVISION APPEARS IN SAID ACT AND THERE IS NOTHING IN THE TERMS THEREOF WHICH WOULD PERMIT OF SUCH CONSTRUCTION.

ALSO, YOU REFER TO THE CASE OF UNITED STATES V. BARBER, 140 U.S. 177 (ERRONEOUSLY CITED AS UNITED STATES V. PARKER), WHEREIN THE COURT STATED:

THE OBJECT OF THE PROCEEDINGS BEFORE THE COMMITTING MAGISTRATE IS TO SECURE THE ATTENDANCE OF THE ACCUSED TO ANSWER ANY INDICTMENT THAT MAY BE FOUND BY THE GRAND JURY, AND ORDINARILY ONE COMPLAINT IS SUFFICIENT FOR THAT PURPOSE, HOWEVER NUMEROUS THE CHARGES MAY BE AGAINST HIM. THE GRAND JURY MAY FIND INDICTMENTS FOR AS MANY VIOLATIONS OF LAW AS IT MAY SEE FIT, BUT THIS POWER DOES NOT RENDER IT NECESSARY THAT HE SHOULD BE HELD TO BAIL IN MORE THAN ONE CASE. IT DOES NOT FOLLOW, HOWEVER, THAT MORE THAN ONE PROCEEDING MAY NOT BE INSTITUTED AGAINST HIM, AND OCCASIONALLY AN EXIGENCY MAY ARISE THAT WOULD RENDER IT EXPEDIENT TO DO SO. MUCH MUST BE LEFT TO THE DISCRETION OF THE DISTRICT ATTORNEY IN THAT REGARD; HE IS THE SWORN OFFICER OF THE GOVERNMENT, AND PRESUMED TO ACT IN ITS BEST INTERESTS. EXPLANATION OF THE DUPLICATION OF WARRANTS IN THIS CASE, THE PETITIONER STATES THAT "THE DIFFERENT CASES RELATED TO DIFFERENT AND DISTINCT ACTS, AT DIFFERENT TIMES AND PLACES, AND ABOUT DIFFERENT AND DISTINCT MATTERS AND THINGS, HAVING NO CONNECTION WITH EACH OTHER, AND WITH DIFFERENT PERSONS AS DEFENDANTS AND WITNESSES. THAT WHATEVER WOULD OR MIGHT HAVE BEEN ELSEWHERE, COURTS IN ALABAMA DO NOT DISMISS A LARGE NUMBER OF INDICTMENTS AGAINST ANY PERSON FOR NO OTHER REASON THAN THAT ANOTHER INDICTMENT MIGHT YET REMAIN UPON WHICH THE PERSON, IF AGREEABLE, COULD BE TRIED FOR SOME LIKE OR UNLIKE OFFENCE, THE PARDONING POWER BEING PLACED ONLY IN THE EXECUTIVE.' WHILE, FOR THE REASONS ABOVE STATED, WE ARE NOT ENTIRELY CONVINCED BY THIS STATEMENT, SO FAR AS IT IS AN ARGUMENT, THERE ARE CERTAIN FACTS CONTAINED IN IT WHICH SHOW THAT IT WAS WITHIN THE POWER OF THE COMMISSIONER TO ISSUE THESE WARRANTS, AND, UNDER THE CASE OF UNITED STATES V. JONES, 134 U.S. 483, THE APPROVAL BY THE COURT OF HIS ACCOUNTS IS CONCLUSIVE THAT HIS DISCRETION WAS PROPERLY EXERCISED. IF THE OFFICERS OF THE TREASURY WERE AT LIBERTY TO QUESTION THE PROPRIETY OF EVERY CHARGE IN ALL CASES, THE APPROVAL OF THE COURTS WOULD BE AN IDLE CEREMONY. CAN GIVE NO LESS WEIGHT TO SUCH APPROVAL THAN TO SAY THAT IT COVERS ALL MATTERS WITHIN THE DISCRETION OF THE OFFICER RENDERING THE ACCOUNT. * *

WHILE THE FOREGOING LANGUAGE OF THE COURT WOULD SEEM TO AUTHORIZE THE PAYMENT OF FEES FOR PLURAL WARRANTS ISSUED AGAINST THE SAME DEFENDANT, IT IS IMPORTANT TO NOTE THAT THE COURT BASED IT CONCLUSION WHOLLY UPON THE CASE OF UNITED STATES V. JONES, SUPRA, WHEREIN IT WAS HELD THAT THE APPROVAL OF THE DISTRICT COURT IS PRIMA FACIE EVIDENCE OF THE CORRECTNESS OF THE ACCOUNT, WHICH, IN THE ABSENCE OF PROOF OF MISTAKE ON THE PART OF THE COURT, SHOULD BE CONCLUSIVE. HOWEVER, INASMUCH AS COMMISSIONERS' ACCOUNTS NOW ARE NOT REQUIRED TO BE APPROVED BY THE SEVERAL DISTRICT COURTS (ACT OF MAY 29, 1928, 45 STAT. 998, 28 U.S.C. 598), THE FORCE AND EFFECT OF THE DECISION IN THE BARBER CASE HAS BEEN LARGELY DIMINISHED AND MAY NOT NOW BE REGARDED AS CONTROLLING PRECEDENT.

IN A DECISION BY A FORMER COMPTROLLER OF THE TREASURY (5 COMP. DEC. 320), RELATING TO THE QUESTION OF THE ALLOWANCE OF FEES IN A CASE INVOLVING A FACTUAL SITUATION SIMILAR TO THAT HERE PRESENTED, IT WAS STATED:

THE OFFICE OF THE WARRANT OF ARREST IS TO BRING THE PERSON AGAINST WHOM IT IS ISSUED WITHIN THE JURISDICTION OF THE TRIBUNAL FROM WHENCE IT ISSUES. IT IS IN NO SENSE THE BASE OR FOUNDATION OF THE PROSECUTION, THAT, IN COMMISSIONERS' COURTS, BEING THE COMPLAINT UPON WHICH THE WARRANT ISSUES * * * ALTHOUGH TWO OR MORE COMPLAINTS MAY BE MADE AGAINST THE SAME DEFENDANT, ONE WARRANT OF ARREST IS ALL THAT IS NECESSARY WHEN THE SEVERAL COMPLAINTS ARE MADE AT THE SAME TIME; FOR IT IS A SELF-EVIDENT PROPOSITION THAT WHEN THE COMMISSIONER ACQUIRES JURISDICTION OF THE PERSON UNDER ONE HE ACQUIRES JURISDICTION UNDER ALL, AND NOT ONLY SO, BUT IF IN THE COURSE OF EXAMINATION IT IS DEVELOPED THAT AN OFFENSE OTHER THAN THOSE CHARGED IN THE SEVERAL COMPLAINTS HAS BEEN COMMITTED, THE COMMISSIONER HAS FULL POWER TO HOLD THE DEFENDANT FOR THE ADDITIONAL OFFENSE WITHOUT THE ISSUANCE OF A WARRANT OF ARREST THEREUNDER.

SINCE, AS ABOVE INDICATED, THE SOLE PURPOSE OF A WARRANT OF ARREST IS TO OBTAIN CUSTODY OF THE ACCUSED AND BUT ONE WARRANT WILL SUFFICE TO ACCOMPLISH THAT PURPOSE, IT IS EVIDENT THAT THE ISSUANCE OF ADDITIONAL WARRANTS AGAINST THE SAME DEFENDANT AT THE SAME TIME IS UNNECESSARY, AND THE FEES INCIDENT THERETO ARE UNAUTHORIZED. SEE, ALSO, PARAGRAPH 1540 OF INSTRUCTIONS TO UNITED STATES COMMISSIONERS, 1929, WHICH STATES THAT A COMMISSIONER IS NOT ENTITLED TO FEES FOR ISSUING MORE THAN ONE WARRANT FOR THE SAME DEFENDANT AT THE SAME TIME, ALTHOUGH THE OFFENSES ARE DIFFERENT. ACCORDINGLY, THE DISALLOWANCE OF THE ITEMS IN QUESTION IS SUSTAINED.

ALSO, THERE WAS DISALLOWED BY THIS OFFICE THE FEE FOR DRAWING A COMPLAINT WHERE A PRIOR COMPLAINT HAD BEEN ISSUED FOR THE SAME DEFENDANT AND THE WARRANT HAD BEEN RETURNED "NON EST," AND A FEE WAS CHARGED FOR ENTERING THE RETURN, IN THE FOLLOWING CASES:

CASE VS. QUARTER ENDED PAGE CRANDELL--- ------------------------------- JUNE 30, 1943---- 77 PERKINS--------- -------------------------- JUNE 30, 1943---- 96 SHRIVER---------- ------------------------- JUNE 30, 1943---- 210 WILLIAMS---------- ------------------------ JUNE 30, 1943---- 238 ST. JOHN---------- ----------------------- JUNE 30, 1943---- 248 SHRIVER------ ------- ---------------------- JUNE 30, 1943---- 256 EDELMAN-------------- --------------------- JUNE 30, 1943---- 274 LAZAROWITZ------------ ------- ------------- JUNE 30, 1943---- 326 HAWKINS---------------- -------------- ----- JUNE 30, 1943--- 361 LEWIS----------------------- -------------- JUNE 30, 1943---- 422 MILLER----------------------- ------------- SEPTEMBER 30, 1943-- 190 GRAMILLO---------------------- ------------ SEPTEMBER 30, 1943-- 250 WILLIAMS----------------------- ----------- SEPTEMBER 30, 1943-- 263 KURESKO------------------------- ---------- SEPTEMBER 30, 1943-- 395 DAVIS---------------------------- --------- DECEMBER 31, 1943--- 122 MATTOX---------------------------- -------- DECEMBER 31, 1943--- 152 MOORE------------------------------ ------- DECEMBER 31, 1943--- 204 VEAL-------------------------------- ------ DECEMBER 31, 1943--- 291 VANDERGRIFT-------------------------- ----- DECEMBER 31, 1943--- 358

AS AN EXAMPLE TYPICAL OF THE ABOVE CASES, YOUR ACCOUNT IN THE MATTER OF UNITED STATES V. SHRIVER, SHOWS THAT A COMPLAINT WAS MADE BEFORE YOU ON MAY 19, 1943, BY AN AGENT OF THE FEDERAL BUREAU OF INVESTIGATION CHARGING SHRIVER WITH A VIOLATION OF THE SELECTIVE SERVICE LAWS COMMITTED AT PHILADELPHIA, PENNSYLVANIA, ON APRIL 4, 1943; AND THAT A WARRANT WAS ISSUED AND RETURNED "NON EST" ON MAY 20, 1943. SUBSEQUENTLY--- ON MAY 24, 1943--- A COMPLAINT WAS DRAWN AT THE REQUEST OF THE SAME AGENT CHARGING SHRIVER WITH THE IDENTICAL OFFENSE, UPON THE BASIS OF WHICH ANOTHER WARRANT OF ARREST WAS ISSUED AND THEREAFTER RETURNED "NON EST.'

DEPARTMENT OF JUSTICE CIRCULAR NO. 3051, DATED DECEMBER 6, 1937, TO UNITED STATES ATTORNEYS AND MARSHALS, STATES:

IT IS HEREBY REQUESTED THAT IN EVERY CRIMINAL CASE BASED ON AN INVESTIGATION CONDUCTED BY THE FEDERAL BUREAU OF INVESTIGATION OF THE DEPARTMENT OF JUSTICE, IF A WARRANT FOR THE ARREST OF ONE OR MORE DEFENDANTS HAS BEEN RETURNED BY THE MARSHAL NON EST INVENTUS, ANOTHER WARRANT SHOULD IMMEDIATELY BE ISSUED IN DUPLICATE. ONE COPY OF SUCH WARRANT SHOULD THEN BE LODGED WITH THE LOCAL OFFICE OF THE FEDERAL BUREAU OF INVESTIGATION AND ANOTHER COPY WITH THE MARSHAL.

HAVING REGARD FOR THE DOUBTFUL VALIDITY OF THE ARREST OF A PERSON SUBSEQUENT TO THE RETURN OF A WARRANT "NON EST" AND RECOGNIZING THE NECESSITY FOR THE ISSUANCE OF A SECOND WARRANT OF ARREST IN SUCH CIRCUMSTANCES, THIS OFFICE HAS ALLOWED THE STATUTORY FEES PROVIDED FOR THE SERVICES RENDERED BY UNITED STATES COMMISSIONERS IN ISSUING SUCH SECOND WARRANTS OF ARREST AS FOLLOWS:

ISSUING (IN DUPLICATE) SECOND WARRANT OF ARREST, 75 CENTS EACH; COPY OF COMPLAINT, WITH CERTIFICATE TO SAME, ATTACHED TO THE DUPLICATE SECOND WARRANTS OF ARREST, 30 CENTS EACH; AND ENTERING MARSHAL'S RETURN ON THE DUPLICATE SECOND WARRANTS OF ARREST, 15 CENTS EACH.

SINCE THERE CAN BE NO DOUBT THAT THE RETURN OF A WARRANT "NON EST" DOES NOT RENDER INVALID OR OTHERWISE VITIATE THE COMPLAINT UPON WHICH IT WAS PREDICTED, AND AS NO SOUND REASON IS PERCEIVED WHY A CERTIFIED COPY OF THE ORIGINAL COMPLAINT IS NOT LEGALLY ADEQUATE TO SUPPORT THE ISSUANCE OF A SECOND WARRANT OF ARREST COVERING THE SAME OFFENSE (SEE PARAGRAPH 1529, INSTRUCTIONS TO UNITED STATES COMMISSIONERS, 1929), THE DRAWING OF A SECOND COMPLAINT WOULD APPEAR TO BE UNNECESSARY AND, SUCH BEING THE CASE, THE DISALLOWANCE OF THE FEES CLAIMED THEREFOR IN YOUR ACCOUNTS LIKEWISE MUST BE SUSTAINED.