B-49810, JUNE 5, 1945, 24 COMP. GEN. 874

B-49810, JUNE 5, 1945, 24 COMP. GEN. 874

FEES - UNITED STATES COMMISSIONERS - SEPARATE ALIAS WARRANTS FOR JOINT OFFENDERS WHERE THE ORIGINAL WARRANT FOR THE ARREST OF JOINT OFFENDERS HAS BEEN RETURNED NON EST INVENTUS, THE UNITED STATES COMMISSIONER MAY ISSUE AN INDIVIDUAL ALIAS WARRANT FOR EACH OFFENDER AND THE AUTHORIZED FEES THEREFOR WILL BE ALLOWED, IF THE LOCAL STATE PRACTICE--- NOT INCONSISTENT WITH A RULE ESTABLISHED BY FEDERAL LAW AS TO ANY PARTICULAR PROCEEDING--- SO REQUIRES, OR UPON A SHOWING THAT THE CIRCUMSTANCES OF A CASE MAKE THE ISSUANCE OF SUCH INDIVIDUAL WARRANTS NECESSARY.

COMPTROLLER GENERAL WARREN TO GEORGE R. BAIRD, ESQ., UNITED STATES COMMISSIONER, JUNE 5, 1945:

REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1945, AS FOLLOWS:

IN CONNECTION WITH A RECENT CASE WHEREIN THREE DEFENDANTS WERE JOINTLY CHARGED WITH THE COMMISSION OF ONE OFFENSE, A PROBLEM AROSE CONCERNING WHICH I WOULD APPRECIATE YOUR ADVICES AND RULING, SO THAT I MAY BE GUIDED FOR THE FUTURE.

IN THAT PARTICULAR CASE I ISSUED ONE WARRANT NAMING ALL THREE DEFENDANTS. THIS WARRANT WAS RETURNED BY THE MARSHAL NON EST INVENTUS, AND I THEREAFTER ISSUED AN ALIAS WARRANT UNDER THE AUTHORITY OF DEPARTMENT OF JUSTICE CIRCULAR NUMBER 3051. LATER ONE OF THE DEFENDANTS WAS APPREHENDED AND THE ALIAS WARRANT WAS RETURNED AS EXECUTED FOR THIS ONE DEFENDANT AND AGAIN NON EST INVENTUS AS TO THE REMAINING TWO DEFENDANTS WHO WERE STILL AT LARGE. I WAS THEN REQUESTED TO ISSUE STILL FURTHER ALIAS WARRANTS FOR THE TWO REMAINING DEFENDANTS SO THAT PROCESS MIGHT REMAIN OUTSTANDING. IT WAS STRONGLY SUGGESTED TO ME BY THE MARSHAL AND BY THE RESIDENT ASSISTANT UNITED STATES ATTORNEY THAT I SHOULD HAVE ISSUED THREE SEPARATE ALIAS WARRANTS IN THE FIRST PLACE RATHER THAN ONLY ONE NAMING ALL THREE DEFENDANTS.

I HAVE NO OBJECTION TO DOING AS REQUESTED PROVIDED I CAN BE COMPENSATED PROPERLY UNDER THE FEE BILL. THE ONLY RULINGS WHICH WOULD SEEM TO HAVE ANY BEARING ARE THOSE CONTAINED IN PARAGRAPHS 1540 AND 1544 OF " INSTRUCTIONS TO UNITED STATES COMMISSIONERS," AND THESE PARAGRAPHS DO NOT SEEM TO CLEARLY FORBID MY DOING AS REQUESTED. THE QUESTION, THEN, IS WHETHER I AM ENTITLED TO ISSUE AND CHARGE FOR TWO OR MORE ALIAS WARRANTS, OR ONE FOR EACH OF THE DEFENDANTS NAMED IN THE COMPLAINT WHERE MORE THAN ONE DEFENDANT IS SO NAMED.

YOUR PREVIOUS RULINGS HAVE ESTABLISHED THE FACT THAT I MAY CHARGE FOR ADDITIONAL CERTIFIED COPY OF COMPLAINT WHERE THE SAME IS NECESSARY, AND THEREFORE THE ONLY POINT AT ISSUE NOW WOULD BE MY RIGHT TO CHARGE FOR ISSUING SEPARATE ALIAS WARRANTS FOR DEFENDANTS CHARGED IN ONE COMPLAINT.

AS I DO NOT BELIEVE I WOULD BE JUSTIFIED IN ISSUING TWO OR MORE SEPARATE ORIGINAL WARRANTS, OR ONE FOR EACH DEFENDANT NAMED IN A SINGLE COMPLAINT, I HAVE LIMITED MY QUESTION TO THE MATTER OF ALIAS WARRANTS. HOWEVER, IF I WOULD BE JUSTIFIED AND SHOULD ISSUE A SEPARATE WARRANT FOR EACH INDIVIDUAL IN THE ORIGINAL INSTANCE, YOUR ADVICES THAT SUCH PROCEDURE WOULD BE CORRECT WOULD ALSO SETTLE THE MATTER OF ALIAS WARRANTS, AS THE RIGHT TO ISSUE ALIAS WARRANTS WOULD FOLLOW EACH ORIGINAL WARRANT ISSUED.

THE MATTER OF THE ALLOWANCE OF FEES TO UNITED STATES COMMISSIONERS FOR THE ISSUANCE OF PLURAL WARRANTS OF ARREST IN THE CASE OF JOINT OFFENDERS HAS BEEN CONSIDERED IN SEVERAL DECISIONS OF THE ACCOUNTING OFFICERS WHICH HAVE ESTABLISHED THE RULE THAT, SINCE ONE WARRANT ORDINARILY IS SUFFICIENT IN SUCH CIRCUMSTANCES, THERE MAY BE ALLOWED THE AUTHORIZED FEE FOR THE ISSUANCE OF ONE WARRANT, ONLY. HOWEVER, IT HAS BEEN HELD THAT AS SECTION 1014, REVISED STATUTES, REQUIRES UNITED STATES COMMISSIONERS TO CONFORM TO THE STATE PRACTICE IN CRIMINAL CASES, EXCEPT WHERE A RULE AS TO ANY PARTICULAR PROCEEDING HAS BEEN ESTABLISHED BY UNITED STATES LAW, A UNITED STATES COMMISSIONER IS ENTITLED TO FEES FOR ISSUING INDIVIDUAL WARRANTS OF ARREST FOR SEVERAL JOINT DEFENDANTS IN ONE CASE WHERE IT IS SHOWN TO BE IN ACCORDANCE WITH THE LOCAL STATE PRACTICE IN SUCH CASES (3 COMP. GEN. 859; A-31262, AUGUST 1, 1930); AND THAT SUCH FEES LIKEWISE MAY BE ALLOWED WHERE THE CIRCUMSTANCES MAKE IT NECESSARY TO ISSUE SEPARATE WARRANTS OF ARREST, IN WHICH CASE THE NECESSITY THEREFORE SHOULD BE SHOWN IN THE ACCOUNT. COMP. DEC. 320; 10 ID. 340; PARAGRAPHS 1660, 1662, INSTRUCTIONS TO UNITED STATES COMMISSIONERS, 1929.

DEPARTMENT OF JUSTICE CIRCULAR NO. 3051, DATED DECEMBER 6, 1937, TO UNITED STATES ATTORNEYS AND MARSHALS, CITED IN YOUR LETTER, 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.

IN VIEW OF THE REQUIREMENTS OF THE ABOVE-QUOTED CIRCULAR, THIS OFFICE HAS ALLOWED THE STATUTORY FEES PROVIDED FOR THE SERVICES RENDERED BY UNITED STATES COMMISSIONERS IN ISSUING 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. SEE 24 COMP. GEN. 248.

INASMUCH AS ALIAS WARRANTS SERVE A FUNCTION AND PURPOSE NO DIFFERENT FROM THAT OF AN ORIGINAL WARRANT OF ARREST, IT MAY BE HELD THAT A UNITED STATES COMMISSIONER IS ENTITLED TO CHARGE A FEE FOR THE ISSUANCE THEREOF UPON THE SAME BASIS AS STATED IN THE PRECEDING PARAGRAPH; THAT IS TO SAY, WHERE THE LOCAL STATE PRACTICE SO REQUIRES, OR THE CIRCUMSTANCES OF A CASE MAKE IT NECESSARY, THERE MAY BE ISSUED SEPARATE INDIVIDUAL ALIAS WARRANTS IN THE CASE OF JOINT DEFENDANTS AND THE AUTHORIZED FEES THEREFOR WILL BE ALLOWED BY THIS OFFICE.