Comptroller General Warren to F. A. Hickernell
| Decision Date | 20 October 1942 |
| Docket Number | B-28057 |
| Parties | COMPTROLLER GENERAL WARREN TO F. A. HICKERNELL, ESQ., UNITED STATES COMMISSIONER |
| Court | Comptroller General of the United States |
Fees - united states commissioners under 28 U.S.C. 597, prescribing the fees payable to united states commissioners, fees May be allowed only for proceedings in cases properly within the commissioners' jurisdiction, or otherwise clearly in compliance with the course of action which the acts of congress prescribe, as explained and implemented by decisions of the courts. Where an offender is arrested in one judicial district and removed to another for trial, it is to be presumed that, under the removal procedure prescribed by sections 1014 and 1029, revised statutes, he has been granted (OR has unqualifiedly waived) preliminary examination in the district of arrest and that no further proceedings, for which fees pertaining to hearings are payable under 28 U.S.C. 597 are required before the united states commissioner in the district to which the offender is removed, and, therefore such fees will not be allowed to a commissioner in the latter district, in the absence of a showing that the commissioner's court directed an examination after removal, or that the warrant of removal contained a direction for further examination. 7 comp. Dec. 587, amplified. Where an offender is arrested in one judicial district and removed to another for trial, it is to be presumed that, under the removal procedure prescribed by sections 1014 and 1029 revised statutes, preliminary examination (OR unqualified waiver thereof) and commitment take place in the district of arrest, and, therefore, a fee for final commitment May not be allowed under 28 U.S. Code 597 to the united states commissioner in the district to which the offender is removed, in the absence of a showing that, in a removal case on complaint where no hearing is to be held, the court regards commitment by the commissioner as essential, or unless, in a case where a hearing was held, the account is supported by the same evidence required in support of fees pertaining to hearings.
There was received June 30, 1942, your request for revision of the settlement by this office of your fee accounts for the quarters ending November 30, 1941, and February 28, 1942, in which certain items charged in connection with cases of accused persons, removed from the places of their arrest to the district of Arizona for trial, were disallowed in accordance with paragraph 1672 of " instructions to united states commissioners, " issued by the department of justice in 1929. That paragraph was based on a decision of March 25, 1901, of the former comptroller of the treasury and is as follows:
1672. Section 1014 and 1029, r.S.U.S. (18 U.S.C. 591, 604) provide a complete mode of procedure for the commitment and removal of an offender arrested in a district other than that where the offense is to be tried, and the commissioner of the district to which the offender is removed is not entitled to fees for proceedings had before him, such proceedings being without authority of Law. (see 7 comp. (dec.) 578.)
Your application, after listing the cases in question, read as follows:
Each of these items involve the same question, which is as follows: a complaint was filed before ME as U.S. Commissioner, warrant issued and the U.S. Marshal returned said warrant marked, unable to locate.' certified copies of complaint and warrant with non EST return were forwarded by the U.S. Attorney for the district of Arizona to another district where a fugitive complaint had been filed. The U.S. District court in another district issued removal order to the district of Arizona. No indictments were returned in the district of Arizona nor informations filed and no proceedings were pending in the U.S. District court for the district of Arizona. Consequently there was nothing before the U.S. District court in Arizona to answer. The order of removal directs removal to Arizona that the prisoner May be dealt with according to Law. The statute directs removal for trial. The only complaint not disposed of was that pending before the U.S. Commissioner.
The defendants in each of these cases were delivered to the united states marshal for the district of Arizona to be dealt with according to law and were presented to the U.S. Commissioner at phoenix as the only court where proceedings were pending. Action was had and claim for services rendered were disallowed. If this procedure had not been followed, the marshal has no means of holding defendants until such time as grand juries could bring indictments, because
(1) Sec. 44-323 of the 1939 Arizona code provides that a commitment to any jail in this jurisdiction, if the offense is bailable, shall show the amount.
(2) description of the offense must be embodied in the commitment and described in a term well known to the law by its generic name and any such term as "felony" is not sufficient. Fertig v. State, 1913-14 Ariz.540, 133 pac. 99.
(3) a commitment must state the time and place of the alleged criminal ACT. State v. Gardner (1920) 21 Ariz.602, 193 pac. 22.
Warrants of removal do not give this information and cannot be used as a commitment.
Rule no. 30 of the united states district court for the district of Arizona states that all bonds in criminal cases shall be taken by the U.S. Commissioner unless otherwise ordered by the court. Therefore, the defendant on being removed from another district should be brought before a U.S. Commissioner for either final commitment or final bond. Hearing and decision is also necessary by commissioner before executing either such commitment or bond.
On January 2, 1942, complaint was filed before U.S. Commissioner at phoenix, Arizona, against one James manganello, charging violation of Sec. 398, title 18, usca. Thereafter defendant was apprehended in the state of California and on the 20th day of January 1942, The Honorable Paul J. Mccormick, Judge, United States District Court for the Southern District of California, Made An Order to the Effect that the Said Defendant Be Delivered to the United States Marshal for the District of Arizona. This Was Done. Defendant Was Presented to the U.S. Commissioner at Phoenix, Arizona, and Hearing Was Denied Due to Previous Disallowance of Fees in Similar Cases. On February 4, 1942, Counsel for Manganello Filed A Petition for Writ of Habeas Corpus, Charging that Defendant Was Being Illegally Detained By the United States Marshal Without Any Warrant or Commitment Issued By Any Court of Competent Authority. the Court Authorized the Issuance of Writ of Habeas Corpus and On February 6, 1942, the Defendant Was Brought Into the Court. Upon Hearing, the Honorable Dave W. Ling Ordered the Defendant Released From Custody.
In the district of Arizona, the practice of U.S. Commissioner has been to advise defendant in removal cases that the issue rested with the court in another district and that the matter of identity was the prime factor to be established, as answer to charges must be made in the proper jurisdiction. Waiver of removal is almost invariably signed which admits identity only and has no bearing on the guilt or innocence of defendant.
When an indictment is pending or an information has been filed, a defendant removed to the district for trial, of course, is arraigned thereon, bond fixed and/or mittimus issued by court. On removal proceedings in such cases, a copy of the indictment and warrant of arrest are prima facie evidence sufficient to authorize removal on establishment of identity. Where the complaint upon which removal proceedings are instituted is that of a commissioner, evidence of probable guilt is required unless a waiver is filed. A waiver is evidence of identity only for removal purposes, and a consent to removal is not a confession of probable guilt nor a waiver of hearing on that issue.
The warrant of removal is to remove a defendant for trial. The only trial possible, when no indictment or information has been filed, is the trial on the merits of the complaint before the commissioner. Defendants cannot secure attendance of witnesses from outside of district where hearing is had. To deny defendant right of hearing in district to which removed is to deny him his right to produce evidence of exculpation and inflict unlawful imprisonment.
The order of removal adjudges nothing affecting the merits of the case. Where removal is had without a hearing, on a waiver, conditions of removal are limited by the waiver. If waiver only waives hearing on right of removal, issue of probable guilt remains to be disposed of by commissioner. Removal for trial under the statute, where the only pending proceeding is pending before a U.S. Commissioner, is removal for trial of complaint before commissioner. Removal on commissioner complaint is removal for trial before U.S. Commissioner. (295 us 396)
Wherefore, your petitioner prays that the aforesaid decision of the general accounting office be reversed and that said fees be allowed.
As an example typical of the cases, your account in the matter of united states v. Studebaker shows that a complaint was made before you on August 25, 1941, by an agent of the federal bureau of investigation, charging studebaker with the offense of draft evasion, 54 Stat. 894 (50 U.S.C. 311), at phoenix Arizona, on April 8, 1941. On the same day--- August 25 --- you issued a warrant of arrest, with certified copy of complaint, to the united states marshal, who returned it, presumably non EST inventus. Thereafter, on December 26, studebaker was arrested at oakland, California, and ordered removed to Arizona (whether with or without a hearing does not appear). At phoenix, your account states, ...
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