Hurtado v. United States 8212 6742

• Citation: 410 U.S. 578,93 S.Ct. 1157,35 L.Ed.2d 508
• Decision Date: 05 March 1973
• Docket Number: No. 71,71
• Parties: Felipe Juarez HURTADO et al., Petitioners, v. UNITED STATES. —6742
• Court: United States Supreme Court

410 U.S. 578

93 S.Ct. 1157

35 L.Ed.2d 508

Felipe Juarez HURTADO et al., Petitioners,

v UNITED STATES.

No. 71—6742.

Argued Jan. 17, 1973.

Decided March 5, 1973.

Leave to File Petition for Rehearing

Denied May 7, 1973.

See 411 U.S. 978, 93 S.Ct. 2151.

Syllabus

1. A material witness who is incarcerated because unable to give bail is entitled under 28 U.S.C. § 1821 to the same $20 per diem compensation as is allowed a nonincarcerated witness during the trial or other proceeding at which he is in 'attendance,' i.e., has been summoned and is available to testify in a court in session, regardless of whether he is physically present in the courtroom. Pp. 582—587.

2. The $1 statutory per diem plus subsistence in kind for incarcerated witnesses before trial does not violate the Just Compensation Clause, as detention of a material witness is not a 'taking' under the Fifth Amendment; and the distinction between compensation for pretrial detention and for trial attendance is not so unreasonable as to violate the Due Process Clause of the Fifth Amendment, since Congress could determine that in view of the length of pretrial confinement and the costs necessarily borne by the Government, only minimal compensation for pretrial detention is justified, particularly since the witness has a public duty to testify. Pp. 588—591.

5 Cir., 452 F.2d 951, vacated and remanded to District Court.

Albert Armendariz, Sr., El Paso, Tex., for petitioners.

Sol. Gen., Erwin N. Griswold, for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

The petitioners, citizens of Mexico, entered the United States illegally. To assure their presence as material witnesses at the federal criminal trials of those accused of illegally bringing them into this country, they were required to post bond pursuant to former Rule 46(b) of the Federal Rules of Criminal Procedure. Unable to make bail, they were incarcerated.¹

The petitioners instituted the present class action in the United States District Court for the Western District of Texas on behalf of themselves and others similarly incarcerated as material witnesses. Their complaint alleged that they, and the other members of their class, had been paid only $1 for every day of their confinement; that the statute providing the compensation to be paid witnesses requires payment of a total of $21 per day to material witnesses in custody; and that, alternatively, if the statute be construed to require payment of only $1 per day to detained witnesses, it violates the Fifth Amendment guarantees of just compensation and due process. They did not attack the validity or length of their incarceration as such, but sought monetary damages under the Tucker Act, 28 U.S.C. § 1346(a)(2), for the lost compensation claimed, and equivalent declaratory and injunctive relief.

The statute in question, 28 U.S.C. § 1821, provides that a 'witness attending in any court of the United States . . . shall receive $20 for each day's attendance and for the time necessarily occupied in going to and returning from the same . . ..' A separate paragraph of the statute entitles 'a witness . . . detained in prison for want of security for his appearance, . . . in addition to his subsistence, to a compensation of $1 per day.'² The petitioners' complaint was grounded upon the theory that they were 'attending in. . . court' throughout the period of their incarceration, since they were prevented from engaging in their normal occupations in order to be ready to testify. They argued that the $20 fee is compensation for the inconvenience and private loss suffered when a witness comes to testify, and that all of these burdens are borne by the incarcerated witness throughout his confinement. Urging that the compensation provisions should be applied as broadly as the problem they were designed to ameliorate, the petitioners argued that they were entitled to the $20 compensation for every day of confinement, in addition to the $1 a day that they viewed as a token payment for small necessities while in jail.

While they pressed this broad definition of 'attendance,' the petitioners also pointed to a narrower and more acute problem in administering the statute. Their amended complaint alleged that nonincarcerated witnesses are paid $20 for each day after they have been summoned to testify—even for those days they are not needed in court and simply wait in the relative comfort of their hotel rooms to be called. By contrast, witnesses in jail are paid only $1 a day when they are waiting to testify—even when the trial for which they have been detained is in progress. In short, the amended complaint alleged that the Government has construed the statute to mean that incarcerated witnesses must be physically present in the courtroom before they are eligible for the $20 daily compensation, but that nonincarcerated witnesses need not be similarly present to receive that amount.³ In its answer, the Government conceded that each witness detained in custody is paid only $1 for every day of incarceration, and that the witness fee of $20 is paid only when such a witness is actually in attendance in court. The Government defended this practice as required by the literal words of the statute, and argued that the statute, as so construed, is constitutional.

In an unreported order, the District Court granted the Government's motion for summary judgment, and the Court of Appeals for the Fifth Circuit affirmed. 452 F.2d 951. The Court of Appeals concluded that the $20 witness fee is properly payable only to those witnesses who are 'in attendance' or travelling to and from court, and not to those who are incarcerated to assure their attendance. So interpreted, the Court upheld the statute as constitutional. We granted certiorari, 409 U.S. 841, 93 S.Ct. 158, 34 L.Ed.2d 80, to consider a question of seeming importance in the administration of justice in the federal courts.

I

Both the petitioners and the Government adhere to their own quite contrary interpretations of § 1821—the petitioners maintaining that they are entitled to a $20 witness fee for every day of incarceration and the Government seeking to limit such payment to those days on which a detained witness is physically 'in attendance' in court. We find both interpretations of the statute incorrect—the petitioners' too expansive, the Government's too restricted. ⁴ The statute provides to a 'witness attending in any court of the United States' $20 'for each day's attendance.' This perforce means that a witness can be eligible for the $20 fee only when two requirements are satisfied—when there is a court in session that he is to attend, and when he is in necessary attendance on that court.

The petitioners' interpretation of 'attendance' as beginning with the first day of incarceration slights the statutory requirement that attendance be in court. A witness might be detained many days before the case in which he is to testify is called for trial. During that time, there is literally no court in session in which he could conceivably be considered to be in attendance. Over a century and a half ago Attorney General William Wirt rejected a similar construction of an almost identically worded law. He found that the then-current statute, which provided compensation to a witness 'for each day he shall attend in court,'⁵ could not be construed to provide payment to incarcerated witnesses for every day of their detention:

'There is no court, except it be a court in session. There are judges; but they do not constitute a court, except when they assemble to administer the law. . . . Now I cannot conceive with what propriety a witness can be said to be attending in court when there is no court, and will be no court for several months.

'To consider a witness who has been committed to jail because he cannot give security to attend a future court, to be actually attending the court from the time of his commitment, and this for five months before there is any court in existence, would seem to me to be rather a forced and unnatural construction.' 1 Op.Atty.Gen. 424, 427.

The Government, on the other hand, would place a restrictive gloss on the statute's requirement of necessary attendance; it maintains that the $20 compensation need be paid only for the days a witness is in actual physical attendance in court, and it concludes that a witness confined during the trial need only be paid for those days on which he is actually brought into the courtroom. But § 1821 does not speak in terms of 'physical' or 'actual' attendance, and we decline to engraft such a restriction upon the statute. Rather, the statute reaches those witnesses who have been summoned and are in necessary attendance on the court, in readiness to testify. There is nothing magic about the four walls of a courtroom. Once a witness has been summoned to testify, whether he waits in a witness room, a prosecutor's office, a hotel room, or the jail, he is still available to testify, and it is that availability that the statute compensates. Nonincarcerated witnesses are compensated under the statute for days on which they have made themselves available to testify but on which their physical presence in the courtroom is not required—for example, where the trial is adjourned or where their testimony is only needed on a later day.⁶ We cannot accept the anomalous conclusion that the same statutory language imposes a requirement of physical presence in the courtroom on witnesses who have been confined. Attorney General Wirt concluded that language similar to that at issue here, did not require any such physical presence:

'But it was by no means my intention to authorize the inference .. . that, in order to entitle a witness to his per diem allowance under the act of Congress, it was necessary that he should be every day corporeally present within the walls of the court-room, and that the court must be every day in actual session. Such a puerility...