B-163717 April 16, 1968

The Honorable John W. Adler Acting Assistant Attorney General for Admistration Department of Justice

Dear Mr. Adler:

Your letter of February 28, 1968, and enclosure, presents for our consideration four questions which have arisen incident to a request of the United States Attorney in Norfolk, virginia, for authorization to pay certain expenses totaling $177.82. The request arose out of the case of United States v Herman Frederich Wolfgang Becker, Norfolk Criminal No. 13,245, the pertinent facts and circumstances giving rise to the matter being as follows:

The cited case, charging the defendant with violation of 18 U.S.C. 1503, influencing or injuring a witness, is pending in the Eastern District of Virginia. The case was transferred to the Alexanderia division for trial and was originally set for August 3, 1967. Prior to the trial date, a hearing was held in Richmond on April 4th and 5th, 1967. This transcript was to be delivered to the Court for an in camera inspection prior to deciding the defendant's motion.

Counsel for the Government failed to have the transcript of the grand jury testimony in his possession at the time of trial on August 3rd. In an effort to remedy this, he called the Norfolk office of the United States Attorney and made arrangements to have the transcript forwarded to Alexandria via commerical airlines. Through error, which the Court attributed to the United States Attorney's office, there was considerable delay in the delivery of the transcript. The Court excused the jury and directed that the United States Attorney's office be responsible for the payment of "transportation and expenses" incurred by the defendant, his attorney, and two witnesses in appearing on August 3rd, or that such expenses be personally paid by the United States Attorney and/or his Assistant.

While no written order was entered by the Court, the transcript of the procedings discloses that the Court was very definite that counseld for the defendant, the defendant, and his two witnesses were to be reinbursed for their expenses. A statement has been received from Mr. Frederick T. Stant, Jr., counsel for defendant, itemizing his expenses as well as those of the defendant and his two witnesses. The itemized expenses totaling $177.82 consist of round trip plane fares, meals, car parking, taxi fares, and hotel accommodations.

You advise that the trial was moved from Norfolk to Alexandria at the request of the defendant. After the proceedings on August 3, 1967, the case was set for trial a second time, but on the day before the trial, the defendant apprarently suffered a heart attack, so the case is still pending.

In light of the foregoing you present the following questions:

"1. Are the amounts payable from any of our appropriations?

"2. If so, from which appropriation should payment be made?

"3. If not, are they payable by your Office as claims?

"4. If neither of the above, are they payable in whole or in part by the United States Attorney and/or his Assistant?"

As we understand it, the defendant involved here was not indigennt. We have been informally advised by a representative of your Department that a non-indigent defendant who requests a change of venue pays the type of expenses involved here.

It is well established that in the absence of a statute so providing, "costs" cannot be assessed by a court against the United States. In other words, the United States may be liable for "costs" in connection with court proceedings only when expressly authorized by the Congress. See for example 28 U.S.C. 2412. In some instances the courts have held that certain items of expense (the Government was ordered to pay) are not "costs" within the purview of the principle set forth above and, hence, were payable by the United States. See United States v. One 1949 G.M.C. Truck, 104 F. Supp. 34, and North Atlantic & Gulf S. S. Co., v. United States, 209 F. 2d 487. However, in light of the facts and circumstances in the instant care giving rise to the Court's oral order that the United States or the United States Attorney or his Assistant pay the expenses in question, it is our view that these expenses are in effect, "costs," and, hence not payable by the United States absent a statute so providing. See in this connection United States v. Pacific Fruit & Produce Co., 138 F. 24 367, wherein the Court stated:

"In the first place, the appellant contends that the court below lacked authority to condition the right of the United States to dismiss its action without prejudice upon the payment of $250 as reinbursement to the appelles for the expenses incurred in the preparation of the letter's defense. Based upon the familiar doctrine that the United States is immune from costs in the absence of a statute to the contrary, this objection is well taken. Although it is true that the Court did not tax the United States for 'costs' so nomine, it is equally clear that the judge below intended the award of $250 to stand in lieu of costs, for, as we have seen, he remarked, 'I wouldn't consider granting the motion without some substantial payment of costs.' Elsewhere the learned judge used the following language: 'Now the rule is the Government is not responsible for costs, and there is no way the Government can be compelled to pay costs in the ordinary sense of the word.'

"So in an effort to avoid the use of the troublesome expression 'costs in the ordinary sense of the word,' the court below variously termed the allowance of $250 a 'just compensation' or a 'reinbursing' of the appelles 'for funds expended in the preparation of its defense.'

"Reading the entire record on this subject, we are convinced that the learned judge, aware that a palpable injustice would be done to the appelles if there were no award of costs in connection witht he dismissal without prejudice, attempted to do indirectly what he well realized that he could not do directly. It is elementary doctrine that, however well- intentioned, such an expedient is not permissible."

The instant care appears analogous to the last-cited court case, insofar as the Court's purpose in, or reason for, assessing the expenses in question against the United States in concerned.

Inasmuch as the expenses involved here are "costs," and since there is no statute authorizing payment of such costs by the United State in criminal cases, neither your Department's appropriations nor the appropriations of any other Federal agency may be used for the payment thereof.

Questions 1, 2, and 3 are answered accordingly.

Concerning question 4, we are without authority to decide whether the United States Attorney or his Assistant is personably liable to pay the claims in question.

Sincerely yours,

Frank H. Weitzel Assistant Comptroller General of the United States