B-4274, JULY 20, 1939, 19 COMP. GEN. 79

B-4274, JULY 20, 1939, 19 COMP. GEN. 79

UNITED STATES COMMISSIONERS - FEES - EXTRADITION CASES FEES MAY NOT BE PAID A UNITED STATES COMMISSIONER FOR "DRAWING" THE COMPLAINT, CERTIFYING A COPY, AND ISSUING THE WARRANT UPON A COMPLAINT FILED BY AN ASSISTANT UNITED STATES ATTORNEY CHARGING AN EXTRADITABLE OFFENSE UNLESS THERE BE A SHOWING THAT THERE WAS A REQUEST SPECIALLY MADE BY THE FOREIGN GOVERNMENT FOR SUCH AID.

COMPTROLLER GENERAL BROWN TO THE ATTORNEY GENERAL, JULY 20, 1939:

REFERENCE IS MADE TO LETTER OF YOUR ADMINISTRATIVE ASSISTANT DATED MAY 23, 1939, FILE 95-100-179, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO CERTIFICATE OF SETTLEMENT NO. 10522255 RELATIVE TO THE ACCOUNT OF DAVID B. HEAD, UNITED STATES COMMISSIONER AT LOS ANGELES, CALIFORNIA.

PARTICULAR ATTENTION IS DIRECTED TO ITEM 3 IN WHICH ALL FEES IN THE EXTRADITION CASE OF ONE PALACIOS WERE DISALLOWED FOR THE REASON THAT THE COMPLAINANT IN THIS CASE WAS NOT A REPRESENTATIVE OF THE GOVERNMENT OF MEXICO. IN THIS CONNECTION, YOU ARE ADVISED THAT ARTICLE XI OF THE TREATY WITH MEXICO DATED FEBRUARY 22, 1899, PROVIDES:

"IN EVERY CASE OF A DEMAND MADE BY EITHER OF THE TWO CONTRACTING PARTIES FOR THE ARREST, DETENTION, OR EXTRADITION OF FUGITIVE CRIMINALS, IN PURSUANCE OF THE PROVISIONS OF THIS CONVENTION, THE LEGAL OFFICERS OR FISCAL MINISTRY OF THE COUNTRY WHERE THE PROCEEDINGS OF EXTRADITION ARE HAD SHALL ASSIST THE OFFICERS OF THE GOVERNMENT DEMANDING THE EXTRADITION ARE HAD SHALL ASSIST THE OFFICERS OF THE GOVERNMENT DEMANDING THE EXTRADITION, BEFORE THE RESPECTIVE JUDGES AND MAGISTRATES, BY EVERY LEGAL MEANS WITHIN THEIR OR ITS POWER; AND NO CLAIM WHATEVER FOR COMPENSATION FOR ANY OF THE SERVICES SO RENDERED SHALL BE MADE AGAINST THE GOVERNMENT DEMANDING THE EXTRADITION; PROVIDED, HOWEVER, THAT ANY OFFICER OR OFFICERS OF THE SURRENDERING GOVERNMENT SO GIVING ASSISTANCE, WHO SHALL IN THE USUAL COURSE OF THEIR DUTIES BE COMPENSATED BY SPECIFIC FEES FOR SERVICES PERFORMED IN LIEU OF SALARY THEREFOR, SHALL BE ENTITLED TO RECEIVE FROM THE GOVERNMENT DEMANDING THE EXTRADITION THE CUSTOMARY FEES FOR THE ACTS OR SERVICES PERFORMED BY THEM, IN THE SAME MANNER AND TO THE SAME ACCOUNT AS THOUGH SUCH ACTS OR SERVICES HAD BEEN PERFORMED IN ORDINARY CRIMINAL PROCEEDINGS UNDER THE LAWS OF THE COUNTRY OF WHICH THEY ARE OFFICERS.'

IT IS THE VIEW OF THE DEPARTMENT THAT AN OFFICER OF THE GOVERNMENT OF THE UNITED STATES MAY MAKE A COMPLAINT IN AN EXTRADITION CASE INVOLVING THE GOVERNMENT OF MEXICO.

IT IS THEREFORE REQUESTED THAT YOU REVIEW THE ACTION OF THE CLAIMS DIVISION IN CONNECTION WITH THE DISALLOWANCES MADE IN THE ACCOUNT OF DAVID B. HEAD ON CERTIFICATE OF SETTLEMENT NO. 10522255.

FROM THE ACCOUNT IN QUESTION IT APPEARS THAT IN THE CASE OF FRANCISCO PALACIOS, A WARRANT OF ARREST WAS ISSUED BY THE COMMISSIONER BASED UPON A COMPLAINT FILED BY THE ASSISTANT UNITED STATES ATTORNEY CHARGING PALACIOS WITH THE CRIME OF EMBEZZLEMENT IN VIOLATION OF THE LAWS OF MEXICO. THE WARRANT SO ISSUED WAS NOT RETURNED. THE COMMISSIONER'S BILL OF FEES FOR "DRAWING" THE COMPLAINT, CERTIFYING A COPY, AND ISSUING THE WARRANT WAS DISALLOWED BY THIS OFFICE FOR THE REASON THAT THE COMPLAINT IN THE CASE IS NOT A REPRESENTATIVE OF THE GOVERNMENT OF MEXICO (PAR. 1681, INSTRUCTIONS TO UNITED STATES COMMISSIONERS, WHICH CITES 22 COMP. 147 (23 COMP. DEC. 147) ).

IT HAS BEEN HELD THAT PROCEEDINGS BEFORE COMMISSIONERS IN EXTRADITION ACT ( REV. STAT. SEC. 5270, 18 U.S.C. 651). PRES. EX REL. CAPUTO V. KELLY ( C.C.A. 2D., 1937), 92 F. (2D) 603. UNDER THE STATUTE IT APPEARS THAT A COMMISSIONER AUTHORIZED SO TO ACT MAY "UPON COMPLAINT MADE UNDER H," CHARGING AN EXTRADITABLE OFFENSE, ETC., ISSUE HIS WARRANT FOR THE APPREHENSION OF THE FUGITIVE, CONDUCT A HEARING AS TO THE SUFFICIENCY OF THE EVIDENCE PRESENTED, AND CERTIFY HIS DETERMINATION TO THE SECRETARY OF STATE, MEANWHILE COMMITTING THE PRISONER PENDING FURTHER PROCEEDINGS. THE FEES PAYABLE TO THE COMMISSIONERS FOR SUCH SERVICES ARE ENUMERATED IN THE FEE BILL, 28 U.S.C. 597.

WHILE THE "COMPLAINT MADE UNDER OATH" MAY BE FILED BY A UNITED STATES ATTORNEY OR HIS ASSISTANT, THERE MUST BE A SHOWING THAT THERE WAS A REQUEST SPECIALLY MADE BY THE FOREIGN GOVERNMENT FOR SUCH AID. FERNANDEZ V. PHILLIPS (1921), 268 U.S. 311 (ALSO A MEXICAN CASE); ORIN V. SHINE, 187 U.S. 181, 193; IN RE FERRELLE ( C.C. 1886), 28 F. 878; IN RE MINEAU ( C.C. 1891), 45 F. 188. THIS REQUIREMENT APPEARS TO HAVE BEEN RECOGNIZED IN PARAGRAPH 118 OF THE " INSTRUCTIONS TO UNITED STATES ATTORNEYS, MARSHALS, CLERKS, AND COMMISSIONERS" (1929), WHICH PROVIDES FOR A COMPLAINT TO BE FILED BY A UNITED STATES ATTORNEY WHENEVER HE "IS ADVISED BY THE ATTORNEY GENERAL THAT INFORMATION HAS BEEN RECEIVED, THROUGH DIPLOMATIC CHANNEL, OF THE COMMISSION OF AN OFFENSE AGAINST THE LAWS OF A FOREIGN COUNTRY WITH WHICH AN EXTRADITION TREATY EXISTS, AND IS INSTRUCTED TO TAKE THE STEPS NECESSARY TO EFFECT THE ARREST AND DETENTION OF THE FUGITIVE PENDING THE RECEIPT OF FORMAL PAPERS UPON WHICH DEMAND FOR EXTRADITION WILL BE BASED *

UNDER THE STATUTE REFERRED TO, THEREFORE, THE COMMISSIONER HAS JURISDICTION TO ACT ONLY WHEN (1) HE HAS BEEN AUTHORIZED BY THE COURT TO HEAR SUCH CASES, (2) THE CRIME CHARGED IS COVERED BY THE APPLICABLE EXTRADITION TREATY, AND (3) THERE IS A COMPLAINT FILED BY SOMEONE ACTING AT THE REQUEST OF THE DEMANDING GOVERNMENT. AS TO THE FIRST TWO ESSENTIALS THERE IS HERE NO QUESTION, BUT AS TO THE THIRD, THE ACCOUNT CONTAINS NO AVERMENT THAT THE COMPLAINT WAS FILED AT THE REQUEST OF THE GOVERNMENT OF MEXICO, NOR DOES THE LETTER QUOTED ABOVE FURNISH SUCH INFORMATION. OF COURSE, NO FEES ARE PAYABLE UNLESS THE NECESSARY GROUNDS OF JURISDICTION ARE AFFIRMATIVELY STATED.

ACCORDINGLY, UPON THE PRESENT RECORD, THE DISALLOWANCE WAS CORRECT AND MUST BE SUSTAINED.