B-45301, NOVEMBER 20, 1944, 24 COMP. GEN. 395

B-45301, NOVEMBER 20, 1944, 24 COMP. GEN. 395

FEES - UNITED STATES COMMISSIONERS IN THE ABSENCE OF COMPELLING REASONS SHOWING THAT OTHERWISE THERE WILL BE SUBSTANTIAL INTERFERENCE WITH FEDERAL CRIMINAL LAW ENFORCEMENT, FEES PRESCRIBED BY LAW FOR THE SERVICES OF UNITED STATES COMMISSIONERS INCIDENT TO THE ISSUANCE OF WARRANTS OF ARREST WILL NOT BE ALLOWED WHERE THE ISSUANCE OF THE WARRANT IS UNNECESSARY IN THAT THE ACCUSED ALREADY IS BEFORE THE COMMISSIONER OR IN THE CUSTODY OF AN OFFICER HAVING AUTHORITY TO PRODUCE HIM BEFORE THE COMMISSIONER AND A WARRANT IS NOT SPECIFICALLY REQUIRED UNDER SUCH CIRCUMSTANCES BY STATE STATUTE OR PRACTICE, OR BY RULES OF THE UNITED STATES DISTRICT COURT. FEES FOR SERVICES RENDERED BY UNITED STATES COMMISSIONERS INCIDENT TO THE ISSUANCE OF WARRANTS OF ARREST WILL BE ALLOWED BY THIS OFFICE WHERE THE ACCUSED WHO APPEARS VOLUNTARILY AT A LOCAL OFFICE OF THE FEDERAL BUREAU OF INVESTIGATION, IS NOT ACTUALLY BEING RESTRAINED BUT IS MERELY SUBMITTING HIMSELF TO INTERVIEW AND IT IS NECESSARY TO ISSUE A WARRANT OF ARREST IN ORDER TO ACCOMPLISH HIS RESTRAINT AND DETENTION. WHERE A PERSON IN THE CUSTODY OF A STATE OR LOCAL OFFICIAL IS TO BE DELIVERED INTO THE CUSTODY OF A FEDERAL OFFICER, THE ISSUANCE OF A WARRANT OF ARREST MAY BE REGARDED AS NECESSARY IN ORDER TO REMOVE ALL DOUBT CONCERNING THE LEGALITY OF THE ARREST AND THE VALIDITY OF THE CONTROL AND RESTRAINT TO BE EXERCISED BY THE FEDERAL OFFICER, AND, THEREFORE, THE STATUTORY FEES PRESCRIBED FOR THE SERVICES OF UNITED STATES COMMISSIONERS INCIDENT TO THE ISSUANCE OF WARRANTS OF ARREST WILL BE ALLOWED IN SUCH CASES, PROVIDED THE WARRANT IS ISSUED PRIOR TO THE APPEARANCE OF THE DEFENDANT BEFORE THE COMMISSIONER. DECISION IN 3 COMP. GEN. 898, INSOFAR AS INCONSISTENT HEREWITH, NO LONGER WILL BE FOLLOWED. IN THE EXAMINATION OF UNITED STATES COMMISSIONERS' ACCOUNTS BY THIS OFFICE, DUE CONSIDERATION WILL BE GIVEN TO THE MANUAL FOR UNITED STATES COMMISSIONERS RELATING TO THE PROCEDURE TO BE FOLLOWED BY COMMISSIONERS IN THE PERFORMANCE OF THEIR DUTIES; HOWEVER, SAID MANUAL MAY NOT BE REGARDED AS ABROGATING OR SUPERSEDING THE DECISIONS RENDERED BY THIS OFFICE PURSUANT TO ITS STATUTORY RESPONSIBILITY AND DUTY TO DETERMINE WHEN THE FEES PRESCRIBED BY LAW FOR COMMISSIONERS MAY BE PAID.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, NOVEMBER 20, 1944:

I HAVE YOUR LETTER OF OCTOBER 23, 1944, AS FOLLOWS:

IT HAS COME TO MY ATTENTION THROUGH OFFICIAL CHANNELS IN THE DEPARTMENT OF JUSTICE THAT A UNITED STATES COMMISSIONER HAS REFUSED TO ISSUE WARRANTS OF ARREST AFTER COMPLAINT, (A) FOR A PERSON WHO VOLUNTARILY APPEARS AT A LOCAL OFFICE OF THE FEDERAL BUREAU OF INVESTIGATION WHERE HE IS NOT ACTUALLY BEING RESTRAINED BUT MERELY SUBMITTING TO INTERVIEW, AND (B) FOR A PERSON WHO IS ARRESTED BY LOCAL POLICE FOR VIOLATION OF A STATE OR FEDERAL LAW, OR IS BEING HELD FOR INVESTIGATION. THE COMMISSIONER GIVES AS HIS REASON FOR REFUSAL THAT IT IS THE PRACTICE OF THE GENERAL ACCOUNTING OFFICE IN ITS SETTLEMENT OF HIS ACCOUNTS TO SUSPEND ALL THE FEES FOR WARRANTS OF ARREST UNLESS HE MAKES A SHOWING THAT THE ACCUSED PERSON WAS NOT IN CUSTODY AT THE TIME THE COMPLAINT WAS MADE. THE SITUATION IS SAID TO CONSTITUTE A HANDICAP TO THE FEDERAL BUREAU OF INVESTIGATION IN CONDUCTING ITS WORK.

PARAGRAPHS NOS. 1547-48 OF INSTRUCTIONS TO UNITED STATES COMMISSIONERS OF OCTOBER 1, 1929, DEALING WITH ARRESTS WITHOUT WARRANTS, ARE BASED UPON RULINGS OF THE COMPTROLLER GENERAL, (3 COMP. GEN. 13; 3 COMP. GEN. 835; 3 COMP. GEN. 898). AS THERE SEEMS TO BE CONSIDERABLE INDEFINITENESS WITH RESPECT TO THE INTERPRETATION THAT HAS BEEN PLACED UPON THEM AND UNCERTAINTY REGARDING THE BEARING THE NEW MANUAL OF PROCEDURE (1943) MAY HAVE UPON FEES OF COMMISSIONERS, I ASK THAT THE SUBJECT TO BE REOPENED FOR THE PURPOSE OF CLARIFICATION. SPECIFICALLY I SHOULD LIKE TO HAVE THE MATTER OF A COMMISSIONER'S RIGHT TO THE FEES PROVIDED IN THE STATUTE (28 U.S.C. 597), FOR ISSUING WARRANT OF ARREST (75 CENTS), WITH A COPY OF THE COMPLAINT (30 CENTS), AND ENTERING RETURN (15 CENTS), REVIEWED IN THE LIGHT OF THE NOW RECOMMENDED PROCEDURE IN FEDERAL CRIMINAL CASES.

A COMMITTEE OF UNITED STATES DISTRICT JUDGES APPOINTED BY THE CHIEF JUSTICE OF THE UNITED STATES UPON AUTHORIZATION OF THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES AT ITS MEETING IN SEPTEMBER 1942 MADE AN EXHAUSTIVE SURVEY OF THE UNITED STATES COMMISSIONER SYSTEM. THE RECOMMENDATIONS OF THE COMMITTEE DEALT IN PART WITH PROCEDURAL MATTERS AND ITS RECOMMENDATIONS WERE APPROVED BY THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES AT ITS MEETING IN SEPTEMBER 1943. ITS RECOMMENDATIONS WITH RESPECT TO PROCEDURAL MATTERS WERE INCORPORATED IN A MANUAL, A COPY OF WHICH IS ENCLOSED.

UNDER THE HEADING," WARRANT OF ARREST," ON PAGE 5 OF THE MANUAL, THE PERTINENT REFERENCE REGARDING THE ISSUANCE OF WARRANTS OF ARREST IS AS FOLLOWS: "WHERE THE COMMISSIONER IS SATISFIED THAT THERE IS GOOD REASON FOR ACCEPTING AND FILING A COMPLAINT, HE MAY ISSUE A WARRANT OF ARREST RECITING THE SUBSTANCE OF THE COMPLAINT AND REQUIRING THE OFFICER TO WHOM IT IS DIRECTED TO APPREHEND THE ACCUSED NAMED THEREIN.' IT SEEMS CLEAR FROM THIS THAT THE QUESTION OF THE NECESSITY OF A WARRANT OF ARREST IS THUS PLACED WITHIN THE DISCRETION OF THE UNITED STATES COMMISSIONER.

SINCE THE MANUAL WAS ISSUED THE ADMINISTRATIVE OFFICE IN ITS EXAMINATION OF COMMISSIONERS' ACCOUNTS HAS NOT CALLED UPON UNITED STATES COMMISSIONERS CLAIMING FEES FOR ISSUING WARRANTS OF ARREST WITH COPY OF COMPLAINT TO STATE WHETHER OR NOT THE ACCUSED WAS IN CUSTODY, AS WE HAVE BELIEVED THAT THE AUTHORITY OF THE MANUAL SUPERSEDES ANY INSTRUCTIONS PREVIOUSLY ISSUED DEALING WITH PROCEDURAL MATTERS BEFORE UNITED STATES COMMISSIONERS, IN THAT IT APPEARS TO UPHOLD THE JUDICIAL NATURE OF THE COMMISSIONERS' FUNCTIONS IN THE EXERCISE OF WHICH THE ISSUANCE OF A WARRANT OF ARREST IS DISCRETIONARY. THE EFFECT OF THIS, IT SEEMS TO ME, IS THAT FEES FOR SUCH SERVICES ARE NOT DEPENDENT UPON THE WHEREABOUTS OR CUSTODY OF THE ACCUSED.

I SHALL APPRECIATE IT IF YOU WILL GIVE CONSIDERATION TO THE MATTER. THE PRESENT SITUATION IS INTERFERING WITH THE RENDERING BY THE COMMISSIONERS OF THE SERVICES WHICH ARE ASKED OF THEM BY THE ENFORCEMENT OFFICERS OF THE GOVERNMENT.

UNDER THE PROVISIONS OF EXISTING LAW IT IS THE DUTY OF A UNITED STATES MARSHAL, HIS DEPUTY, OR OTHER OFFICER, WHO MAY ARREST A PERSON CHARGED WITH ANY CRIME OR OFFENSE, TO TAKE THE DEFENDANT BEFORE THE NEAREST UNITED STATES COMMISSIONER OR THE NEAREST JUDICIAL OFFICER HAVING JURISDICTION, FOR A HEARING, COMMITMENT, OR TAKING BAIL FOR TRIAL. 18 U.S.C. 595.

IN A CASE WHERE AN OFFENDER ALREADY IS IN CUSTODY AS A RESULT OF AN ARREST WITHOUT A WARRANT, IT IS THE DUTY OF THE ARRESTING OFFICER, UNDER THE FOREGOING STATUTE, TO TAKE THE OFFENDER PROMPTLY BEFORE A UNITED STATES COMMISSIONER "IN ORDER TO DETERMINE THE SUFFICIENCY OF THE JUSTIFICATION" FOR THE OFFENDER'S DETERMINATION. SEE MCNABB V. UNITED STATES, 318 U.S. 332, 344. UNDER SUCH CONDITIONS THERE HAS, OF COURSE, BEEN NO OPPORTUNITY TO ISSUE A WARRANT, NOR IS ONE REQUIRED, FOR A SUBSEQUENT ISSUANCE OF A WARRANT WOULD SERVE NO USEFUL PURPOSE. THE PROVISIONS OF THE CITED STATUTE OPERATE FULLY AS EFFECTIVELY WHERE A WARRANT HAS NOT BEEN ISSUED AND, AS THE PROCEDURE WITHIN ITS CONTEMPLATION IS IN NOWISE THWARTED OR RENDERED INVALID BY THE FAILURE TO ISSUE A WARRANT IN CASES WHERE ARRESTS PREVIOUSLY HAVE BEEN MADE WITHOUT WARRANT, SUCH CONFIRMATORY ISSUANCE OF A WARRANT OF ARREST FOR ONE ALREADY BEFORE THE COMMISSIONER, OR IN CUSTODY, COMPRISES MERELY A PRO FORMA PROCEEDING THAT HAS NEITHER FORCE NOR EFFECT.

ACCORDINGLY, THE DECISION OF THIS OFFICE UNIFORMLY HAVE HELD THAT UNITED STATES COMMISSIONERS ARE NOT ENTITLED TO FEES INCIDENT TO THE ISSUANCE OF A WARRANT OF ARREST WHERE THE ISSUANCE OF SUCH A WARRANT WAS UNNECESSARY, UNLESS SPECIFICALLY REQUIRED BY STATE STATUTE OR THE STATE PRACTICE, OR WHERE THE RULES OF THE UNITED STATES DISTRICT COURT REQUIRE THE COMMISSIONERS IN ALL CRIMINAL CASES TO ISSUE WARRANTS OF ARREST FOR OFFENDERS, EVEN IF THE OFFENDERS ARE ALREADY IN CUSTODY. 3 COMP. GEN. 13, 835, 898; 4 ID. 662; 9 ID. 351; AND 15 ID. 550.

THE GENERAL ACCOUNTING OFFICE DOES NOT UNDERTAKE TO PRESCRIBE THE RULES OF CRIMINAL PROCEDURE APPLICABLE BEFORE UNITED STATES COMMISSIONERS, BUT IN THE AUDIT OF COMMISSIONERS' ACCOUNTS IT MAY ALLOW ONLY THE PRESCRIBED FEES FOR SUCH SERVICES AS THEY ARE "REQUIRED OR AUTHORIZED BY SOME LAW TO RENDER.' DAVIES V. UNITED STATES, 23 C.1CLS. 468; 22 COMP. GEN. 373. THE EXAMINATION OF THE ACCOUNTS OF UNITED STATES COMMISSIONERS, DUE CONSIDERATION WILL BE GIVEN BY THIS OFFICE TO THE MANUAL FOR UNITED STATES COMMISSIONERS ( PREPARED BY A COMMITTEE OF THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES AND APPROVED BY THE CONFERENCE AT ITS MEETING SEPTEMBER 27-30, 1943), AS SETTING FORTH AN APPROVED PROCEDURE TO BE FOLLOWED BY COMMISSIONERS IN THE PERFORMANCE OF THEIR DUTIES, BUT I THINK YOU WILL AGREE THAT SAID MANUAL MAY NOT BE REGARDED AS ABROGATING OR SUPERSEDING THE DECISIONS RENDERED BY THIS OFFICE PURSUANT TO ITS STATUTORY RESPONSIBILITY AND DUTY TO DETERMINE WHEN THE FEES PRESCRIBED BY LAW MAY BE PAID. FURTHERMORE, I CANNOT ASCRIBE TO THE LANGUAGE ON PAGE 5 OF THE MANUAL, QUOTED IN YOUR LETTER, THE INTERPRETATION WHICH YOU APPARENTLY GIVE TO IT; RATHER, IT WOULD APPEAR TO BE BUT A RESTATEMENT OF THE ACCEPTED PRINCIPLE THAT A WARRANT MAY ISSUE WHERE THERE IS PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED AND THAT THE DEFENDANT HAS COMMITTED IT. THAT, OF COURSE, IS A MATTER TO BE DETERMINED BY THE COMMISSIONER, BUT IT WOULD NOT APPEAR TO CARRY WITH IT THE RIGHT TO EXERCISE A DISCRETION AS TO WHETHER A WARRANT SHOULD ISSUE WHEN THE DEFENDANT IS BEFORE HIM OR HE HAS KNOWLEDGE THAT THE DEFENDANT ALREADY IS IN CUSTODY. MOREOVER, IT WILL BE OBSERVED FROM THE TERMS OF THE MANUAL REFERRED TO THAT THE OBJECT OF THE WARRANT IS TO "APPREHEND" THE ACCUSED NAMED THEREIN, WHICH WOULD SEEM TO NEGATIVE THE CONTENTION THAT A WARRANT MAY ISSUE WHEN THE APPREHENSION OF THE ACCUSED IS A FAIT ACCOMPLI. AS A FURTHER INDICATION THAT THE DRAFTSMEN OF THE MANUAL DID NOT INTEND TO VEST IN COMMISSIONERS AN UNRESTRICTED DISCRETION TO DETERMINE THE NECESSITY FOR THE ISSUANCE OF A WARRANT OF ARREST, SEE PAGE 6 THEREOF, WHEREIN IT IS STATED THAT:

WARRANTS OF ARREST OR OTHER WRITS ISSUED BY A COMMISSIONER AND DELIVERED FOR SERVICE TO A PERSON NOT AUTHORIZED BY LAW TO SERVE THEM, ARE NOT LEGALLY ISSUED, AND A COMMISSIONER IS NOT ENTITLED TO FEES FOR ISSUING THEM.

THEREFORE, AND SINCE IT IS BELIEVED THAT THE RULE OF THE DECISIONS HERETOFORE REFERRED TO IS GROUNDED ON A SOUND BASIS, I AM CONSTRAINED TO THE VIEW THAT A DEPARTURE FROM SAID RULE WOULD NOT BE JUSTIFIED, IN THE ABSENCE OF COMPELLING REASONS SHOWING THAT ITS CONTINUED APPLICATION TO SIMILAR FACTS SUBSTANTIALLY WILL INTERFERE WITH FEDERAL CRIMINAL LAW ENFORCEMENT.

IN YOUR LETTER YOU REFER TO CERTAIN CIRCUMSTANCES UNDER WHICH A UNITED STATES COMMISSIONER HAS REFUSED TO ISSUE WARRANTS OF ARREST, PRESUMABLY ON THE GROUND THAT THIS OFFICE WOULD NOT ALLOW THE STATUTORY FEES THEREFOR. HOWEVER, WITH RESPECT TO THE FIRST FACTUAL SITUATION SET FORTH IN YOUR LETTER YOU STATE THAT THE PERSON APPEARING AT THE LOCAL OFFICE OF THE FEDERAL BUREAU OF INVESTIGATION IS NOT ACTUALLY BEING RESTRAINED BUT IS MERELY SUBMITTING HIMSELF TO INTERVIEW. SINCE IN SUCH A CASE THE PERSON IS NOT IN FACT UNDER ARREST IT WOULD APPEAR NECESSARY TO ISSUE A WARRANT OF ARREST IN ORDER TO ACCOMPLISH THE PERSON'S RESTRAINT AND DETENTION, AND UPON THE PRESENTATION OF SIMILAR FACTS IN FUTURE CASES, THIS OFFICE WILL ALLOW THE FEES PRESCRIBED FOR SUCH SERVICE.

IN THE SECOND FACTUAL SITUATION CITED BY YOU--- WHERE THE DEFENDANT IS IN THE CUSTODY OF THE LOCAL POLICE--- IT IS RECOGNIZED THAT SUCH OFFICERS MAY BE UNDER NO LEGAL DUTY TO DELIVER THE DEFENDANT INTO FEDERAL CUSTODY; AND, IN ORDER TO REMOVE ALL DOUBT CONCERNING THE LEGALITY OF THE ARREST AND THE VALIDITY OF THE CONTROL AND RESTRAINT EXERCISED BY A FEDERAL OFFICER OVER A PERSON DELIVERED INTO HIS CUSTODY BY STATE OF LOCAL OFFICIALS, IT WOULD SEEM APPROPRIATE TO ISSUE A WARRANT OF ARREST. ACCORDINGLY, THE STATUTORY FEES THEREFOR LIKEWISE WILL BE ALLOWED UNDER SUCH CIRCUMSTANCES. TO THE EXTENT THAT THE CONCLUSION REACHED IN THAT REGARD IS IN CONFLICT WITH THE DECISION IN 3 COMP. GEN. 898, SUPRA, THE LATTER WILL NOT BE FOLLOWED HEREAFTER. HOWEVER, IT IS TO BE EMPHASIZED THAT THE FEES INCIDENT TO THE ISSUANCE OF A WARRANT IS ISSUED PRIOR TO THE APPEARANCE OF THE DEFENDANT BEFORE THE COMMISSIONER. SINCE THE OFFICE OF A WARRANT OF ARREST IS TO BRING THE PERSON AGAINST WHOM IT IS ISSUED WITHIN THE JURISDICTION OF THE ISSUING TRIBUNAL, IT IS CLEAR THAT NO WARRANT IS NECESSARY SUBSEQUENT TO THE PRODUCTION OF THE DEFENDANT BEFORE THE COMMISSIONER. THE WARRANT OF ARREST IS IN NO SENSE THE BASIS OR FOUNDATION OF THE PROSECUTION; THAT, IN PROCEEDINGS BEFORE A UNITED STATES COMMISSIONER, BEING THE COMPLAINT UPON WHICH THE WARRANT ISSUES. 5 COMP. DEC. 320. (SEE, ALSO, PAGE 4 OF THE MANUAL FOR UNITED STATES COMMISSIONERS, SUPRA: "THE INITIAL STEP IN A CRIMINAL PROCEEDING BEFORE THE UNITED STATES COMMISSIONER IS THE FILING OF A COMPLAINT. THE COMPLAINT, AND NOT THE WARRANT, IS THE FOUNDATION OF THE PROCEEDING.) " MOREOVER, UNDER SUCH CIRCUMSTANCES, THE NONEXISTENCE OF A WARRANT OF ARREST DOES NOT CONSTITUTE A JURISDICTION DEFECT AS THE COMMISSIONER, HAVING BEEN VESTED WITH AUTHORITY IN THE CASE BY THE COMPLAINT, AND THE DEFENDANT HAVING BEEN PRODUCED BEFORE HIM, THEN HAS JURISDICTION OF THE DEFENDANT REGARDLESS OF THE ANTECEDENT FACT OR METHOD OF ARREST. IT IS WELL ESTABLISHED THAT IT IS NOT MATERIAL, SO FAR AS THE JURISDICTION OR PROCEEDINGS ARE CONCERNED IN CRIMINAL CASES, HOW, OR BY WHAT METHODS, AN OFFENDER IS APPREHENDED, JURISDICTION OF THE PERSON ATTACHING BY REASON OF THE COMPLAINT AS SOON AS THE OFFENDER IS PRODUCED BEFORE THE COMMISSIONER. SEE PETTIBONE V. NICHOLS, 203 U.S. 192; ADAMS V. NEW YORK, 192 U.S. 585; IN RE JOHNSON, 167 U.S. 120; KER V. ILLINOIS, 119 U.S. 436; IN RE MAHON, 34 F. 525; AND MAHON V. JUSTICE, 127 U.S. 700.