B-74969, APRIL 30, 1948, 27 COMP. GEN. 660

B-74969: Apr 30, 1948

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TO BE PAID UNITED STATES COMMISSIONERS FOR SERVICES RENDERED IN CRIMINAL CASES IN WHICH THE ACCUSED IS PRESENTED BEFORE A COMMISSIONER FOR THE PURPOSES OF BAIL. IS NOT PAYABLE FOR SERVICES RENDERED IN THE ADMISSION TO BAIL OR COMMITMENT OF A MATERIAL WITNESS TO INSURE HIS PRESENCE AT PROCEEDINGS IN WHICH HIS TESTIMONY IS REQUIRED. 1948: REFERENCE IS MADE TO LETTER OF MARCH 26. THERE HAVE BEEN ENCOUNTERED CLAIMS FOR A FEE OF $2.50 FOR SERVICES RENDERED IN ADMITTING A MATERIAL WITNESS TO BAIL. UPON THE BASIS THAT SUCH FEE IS PAYABLE UNDER THE TERMS OF SECTION 21 (C) OF PUBLIC LAW 582. WHICH PROVIDES AS FOLLOWS: (C) IN EACH CASE IN WHICH THE ACCUSED IS PRESENTED BEFORE THE COMMISSIONER NOT FOR BINDING OVER BUT ONLY FOR PURPOSES OF BAIL.

B-74969, APRIL 30, 1948, 27 COMP. GEN. 660

FEES - UNITED STATES COMMISSIONERS - BAIL OR COMMITMENT OF MATERIAL WITNESSES THE FEE PRESCRIBED BY SECTION 21 (C) OF THE ACT OF AUGUST 1, 1946, TO BE PAID UNITED STATES COMMISSIONERS FOR SERVICES RENDERED IN CRIMINAL CASES IN WHICH THE ACCUSED IS PRESENTED BEFORE A COMMISSIONER FOR THE PURPOSES OF BAIL, IS NOT PAYABLE FOR SERVICES RENDERED IN THE ADMISSION TO BAIL OR COMMITMENT OF A MATERIAL WITNESS TO INSURE HIS PRESENCE AT PROCEEDINGS IN WHICH HIS TESTIMONY IS REQUIRED.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, APRIL 30, 1948:

REFERENCE IS MADE TO LETTER OF MARCH 26, 1948, FROM THE ASSISTANT DIRECTOR, ADVISING THAT, IN THE AUDIT BY YOUR OFFICE OF THE PAY VOUCHERS SUBMITTED ON A QUARTERLY BASIS BY UNITED STATES COMMISSIONERS CLAIMING THE NEW SCHEDULE OF FEES PRESCRIBED BY PUBLIC LAW 582, 79TH CONGRESS, APPROVED AUGUST 1, 1946, THERE HAVE BEEN ENCOUNTERED CLAIMS FOR A FEE OF $2.50 FOR SERVICES RENDERED IN ADMITTING A MATERIAL WITNESS TO BAIL, UPON THE BASIS THAT SUCH FEE IS PAYABLE UNDER THE TERMS OF SECTION 21 (C) OF PUBLIC LAW 582, 60 STAT. 752, WHICH PROVIDES AS FOLLOWS:

(C) IN EACH CASE IN WHICH THE ACCUSED IS PRESENTED BEFORE THE COMMISSIONER NOT FOR BINDING OVER BUT ONLY FOR PURPOSES OF BAIL, WHETHER OR NOT BAIL IS TAKEN OR A COMMITMENT IS ORDERED, A FEE OF $2.50.

IT IS STATED IN SAID LETTER THAT THIS FEE HAS BEEN APPLIED MAINLY TO SERVICES RENDERED BY A COMMISSIONER IN ADMITTING TO BAIL DEFENDANTS IN CASES IN WHICH THE COMMISSIONER HAS NO JURISDICTION IN DETERMINING WHETHER PROBABLE CAUSE EXISTS, BUT MERELY BINDS THE DEFENDANT TO ANSWER TO A UNITED STATES DISTRICT COURT. IT IS STATED FURTHER THAT, IN CORRESPONDENCE WITH SEVERAL COMMISSIONERS REGARDING THIS MATTER, THEY HAVE POINTED OUT THAT THEY ARE REQUIRED TO BOND OR COMMIT A MATERIAL WITNESS IF IT APPEARS THAT IT MAY BECOME IMPRACTICABLE TO SECURE HIS PRESENCE BY SUBPOENA. IN SUCH CONNECTION RULE 46 (B) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, 18 U.S.C. FOLLOWING SECTION 687, PROVIDES:

IF IT APPEARS BY AFFIDAVIT THAT THE TESTIMONY OF A PERSON IS MATERIAL IN ANY CRIMINAL PROCEEDING AND IF IT IS SHOWN THAT IT MAY BECOME IMPRACTICABLE TO SECURE HIS PRESENCE BY SUBPOENA, THE COURT OR COMMISSIONER MAY REQUIRE HIM TO GIVE BAIL FOR HIS APPEARANCE AS A WITNESS, IN AN AMOUNT FIXED BY THE COURT OR COMMISSIONER. IF THE PERSON FAILS TO GIVE BAIL THE COURT OR COMMISSIONER MAY COMMIT HIM TO THE CUSTODY OF THE MARSHAL PENDING FINAL DISPOSITION OF THE PROCEEDING IN WHICH THE TESTIMONY IS NEEDED, MAY ORDER HIS RELEASE IF HE HAS BEEN DETAINED FOR AN UNREASONABLE LENGTH OF TIME AND MAY MODIFY AT ANYTIME THE REQUIREMENT AS TO BAIL. ALSO, THE AFORESAID LETTER SUGGESTS THAT, WHILE A MATERIAL WITNESS CANNOT BE STRICTLY CLASSIFIED AS AN ,ACCUSED" TO THE DEGREE THAT HE IS A DEFENDANT IN A LEGAL PROCEEDING, YET, WHEN HE IS PRESENTED BEFORE THE COMMISSIONER NOT FOR BINDING OVER, BUT FOR PURPOSES OF BAIL, A SERVICE IS RENDERED BY THE COMMISSIONER SIMILAR TO THAT FOR WHICH SECTION 21 (C), SUPRA, PRESCRIBES A FEE OF $2.50 WHEN AN ACCUSED IS PRESENTED.

A DECISION IS REQUESTED AS TO WHETHER YOUR OFFICE PROPERLY MAY ALLOW A UNITED STATES COMMISSIONER THE FEE PROVIDED BY SAID SECTION 21 (C) FOR DRAWING A BOND OR COMMISSIONER SIMILAR TO THAT FOR WHICH SECTION 21 (C), SUPRA, PRESCRIBES A FEE OF $2.50 WHEN AN ACCUSED IS PRESENTED.

A DECISION IS REQUESTED AS TO WHETHER YOUR OFFICE PROPERLY MAY ALLOW A UNITED STATES COMMISSIONER THE FEE PROVIDED BY SAID SECTION 21 (C) FOR DRAWING A BOND OR COMMITMENT FOR A MATERIAL WITNESS.

THAT THE TERM "ACCUSED" APPEARING IN SECTION 21 (C) AND ELSEWHERE IN THE ACT OF AUGUST 1, 1946, REFERS TO A DEFENDANT CHARGED WITH THE COMMISSION OF A CRIME IS HARDLY OPEN TO QUESTION. IT IS EQUALLY CLEAR THAT A MATERIAL WITNESS IS NOT IN THE SAME CATEGORY AS A DEFENDANT IN A CRIMINAL CASE. A MATERIAL WITNESS IS NOT REQUIRED TO POST BAIL OR COMMITTED IN ORDER TO ANSWER A CRIMINAL CHARGE AGAINST HIM, AS IN THE CASE OF A DEFENDANT, BUT SOLELY FOR THE PURPOSE OF INSURING HIS PRESENCE IN THE PROCEEDINGS IN WHICH HIS TESTIMONY IS REQUIRED. IN OTHER WORDS, HE IS NOT DETAINED BECAUSE OF HIS COMMISSION OF AN OFFENSE AGAINST THE UNITED STATES BUT ONLY BY REASON OF HIS STATUS AS A WITNESS. UNDER THE PLAIN AND UNAMBIGUOUS TERMS OF SECTION 21 (C) THE FEE PROVIDED THEREIN IS RESTRICTED TO THE SERVICES RENDERED BY A COMMISSIONER IN THE CASE OF AN "ACCUSED," AND THERE IS NOTHING IN THE MEASURE OR ITS CONGRESSIONAL HISTORY WHICH PROVIDES ANY BASIS FOR EXTENDING THE SCOPE THEREOF TO THE JUSTIFICATION OF SURETIES OR COMMITMENT OF A MATERIAL WITNESS.

MOREOVER, TO ESTABLISH, BY INTERPRETATION, A CONSTRUCTIVE FEE IN SUCH CASES IS BELIEVED TO BE INCONSISTENT WITH THE GENERAL OBJECTIVES AND PURPOSES OF PUBLIC LAW 582. THE PRIMARY PURPOSE OF SAID LAW WAS TO ELIMINATE THE MULTIPLICITY OF ITEMS FOR EACH OF WHICH VARYING FEES WERE PAYABLE UNDER THE OLD SCHEDULE OF FEES PROVIDED BY THE ACT OF MAY 28, 1896, 29 STAT. 184. UNDER THAT SCHEDULE THERE WERE PROVIDED OVER 20 ITEMS VARYING IN AMOUNT FROM TEN CENTS TO FIVE DOLLARS, EACH ITEM REPRESENTING A SPECIFIC SERVICE UNDER WHICH A FEE COULD BE CLAIMED ONLY IF THE SERVICE WAS ACTUALLY RENDERED IN THE PARTICULAR CASE. IT WAS IN THE INTEREST OF SIMPLICITY THAT THE NUMBER OF SAID ITEMS WAS REDUCED AND "CONSOLIDATED" BY PUBLIC LAW 582 INTO LARGER UNITS OF SERVICE FOR THE PURPOSE OF COMPUTING FEES. FOR THAT REASON, AND IN RECOGNITION OF THE CHANGE IN ECONOMIC CONDITIONS SINCE THE ENACTMENT OF THE 1896 LAW, THE AMOUNT OF THE FEES GENERALLY WAS INCREASED. THIS PURPOSE OF THE STATUTE WAS SET FORTH IN THE FOLLOWING STATEMENT APPEARING IN SENATE REPORT NO. 790, DATED NOVEMBER 23, 1945, ON THE MEASURE:

THE PRESENT BILL WOULD ELIMINATE TO A GREAT EXTENT THE EXISTING LONG LIST OF FEES, SINCE IT WOULD SUBSTITUTE ONE FEE IN EACH CASE FOR ALL SERVICES RENDERED PRIOR TO THE PRESENTATION OF THE ACCUSED BEFORE THE COMMISSIONER, AND ANOTHER FOR ALL SERVICES IN EACH CASE RENDERED AFTER THE PRESENTATION OF THE ACCUSED AND LEAVE ONLY A FEW ITEMS FOR WHICH INDIVIDUAL FEES WOULD REMAIN. THE PROPOSED SCHEDULE OF FEES WOULD SOMEWHAT INCREASE THE AGGREGATE FEES OF THE COMMISSIONERS; HOWEVER, PROVISION IS MADE THAT NO COMMISSIONER SHALL RECEIVE COMPENSATION FOR HIS SERVICES IN THAT CAPACITY, EXCEEDING $7,500 PER ANNUM.

FURTHERMORE, IT WILL BE OBSERVED THAT SECTION 21 (A) PROVIDES FOR THE PAYMENT OF A FEE OF $2.50 ,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," AND SECTION 21 (B) PROVIDES VARYING FEES, DEPENDING UPON THE NUMBER OF CASES DISPOSED OF BY THE COMMISSIONER DURING EACH QUARTERLY ACCOUNTING PERIOD,"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.' (ITALICS SUPPLIED.) I THINK THE FOREGOING CLEARLY DEMONSTRATES THAT THE CONGRESS, BY MAKING PROVISION FOR PAYMENT OF CERTAIN FEES "FOR ALL SERVICES" RENDERED PRIOR TO, AND AFTER, THE PRESENTATION OF THE ACCUSED BEFORE THE COMMISSIONER, FIXED THE AMOUNT OF SAID FEES IN CONSIDERATION OF THE VARIOUS SERVICES WHICH ARE REQUIRED BY LAW TO BE PERFORMED BY UNITED STATES COMMISSIONERS--- INCLUDING THE ADMISSION TO BAIL OR COMMITMENT OF A MATERIAL WITNESS--- AND INTENDED THAT, UNLESS PAYMENT OF A FEE FOR SUCH SERVICES OTHERWISE IS SPECIFICALLY PROVIDED FOR IN THE ACT, NO ADDITIONAL FEE BE PAID.