Demarest v. Manspeaker

884 F.2d 1343, 1989 WL 100961

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 5, 1989
• Docket: Nos. 88-1899, 88-1972, 88-1973, 88-2782 and 88-2327
• Status: Published

Opinions

LOGAN, Circuit Judge.

The issue presented in these consolidated appeals is whether appellants, who are incarcerated for criminal offenses, either in federal or state institutions, are entitled to witness fees pursuant to 28 U.S.C. § 1821 for testifying in separate criminal proceedings before a federal court or grand jury. We hold that they are not, and therefore affirm the judgments from which these appeals were taken.¹

In pertinent part, 28 U.S.C. § 1821 provides as follows:

“(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.

(b) A witness shall be paid an attendance fee of $30 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.

(d)(1) A subsistence allowance shall be paid to a witness (other than a witness who is incarcerated) when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day.

(4) When a witness is detained pursuant to section 3149 of title 18 for want of security for his appearance, he shall be entitled for each day of detention when not in attendance at court, in addition to his subsistence, to the daily attendance' fee provided by subsection (b) of this section.”

Appellants contend that the plain language of subsections (a)(1) and (b) mandate the payment of attendance fees to a witness, regardless of whether or not that person is incarcerated. They also point to the qualifying language regarding incarcerated individuals contained in subsection (d)(1) and argue that Congress would have included similar language in subsection (a)(1) or (b) had it intended to preclude prisoners from receiving the fee. On its face, this is an appealing argument.

We note, however, that there is another plausible reading of the statutory language and reason for the reference to incarceration in subsection (d)(1). When Congress referred to incarcerated witnesses in subsection (d)(1) it could have intended to clarify what was impliedly set forth in (d)(4)— that an individual incarcerated under the material witness statute, 18 U.S.C. § 3144 (formerly 18 U.S.C. § 3149), is not to receive a subsistence allowance “in addition to his subsistence.” 28 U.S.C. § 1821(d)(4).

Despite the unqualified wording of subsections (a)(1) and (b), strong evidence exists to support the view that Congress never intended § 1821 to apply to individuals incarcerated for criminal acts. Since at least the year 1900, the Treasury Department has taken the position that imprisoned individuals, other than those detained as a material witness, are not entitled to witness fees. In re Witness Fees for Prisoner, 533 F.Supp. 401, 403 & n. 5 (E.D.Pa.) (citing 6 Dec.Comp.Treas. 588, 588 (1900)), aff'd per curiam sub nom. In re Grand Jury Matter (Witness RW), 697 F.2d 103, 104 (3d Cir.1982); Marchese v. United States, 197 Ct.Cl. 102, 453 F.2d 1268, 1271 (1972).² In 1970 and 1972, despite the existence of similar qualifying language regarding incarcerated individuals contained in the then-existing counterpart to current subsection (d)(1),³ two different federal appellate courts ruled that § 1821 did not entitle criminal inmates to witness attendance fees. Meadows v. United States Marshal, 434 F.2d 1007 (5th Cir.1970) (per curiam); Marchese, 453 F.2d at 1271.

Six years after the Márchese decision, in 1978, Congress substantially reorganized § 1821 into its current form. Nowhere in the express language of the revisions or in the legislative history did Congress indicate criminal inmates, other than material witnesses detained for want of security for his appearance, were entitled to a witness fee. Had Congress meant to change the existing judicial and administrative interpretations of § 1821, it surely could have done so in more express terms. Cf. FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 437, 106 S.Ct. 1931, 1937, 90 L.Ed.2d 428 (1986) (“When the statute giving rise to the longstanding interpretation has been reenacted without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’ ” (quoting NLRB v. Bell Aerospace, 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974)). Moreover, since the 1978 amendment, other courts have rejected the appellants’ interpretation of § 1821, United States v. Garmany, 762 F.2d 929, 933 n. 2 (11th Cir.1985); In re Grand Jury Matter, 697 F.2d at 104, as has the Department of Justice Regulations. See 28 C.F.R. § 21.4(d) (published May 1, 1986) (“A witness in custody for purposes other than 18 U.S.C. 3149 [now § 3144] is ineligible to receive the attendance and subsistence fees provided by this section.”).

Other compelling reasons support the view that incarcerated prisoner witnesses should not receive fees for their appearances. First, Congress expressly stated that the 1978 revision of § 1821 was necessary because existing witness fees and allowances “no longer compensate^] the average witness for the actual costs which witness service entails.” H.R.Rep. No. 95-1651, 95th Cong., 2d Sess. 2, reprinted in 1978 U.S.Code Cong. & Ad.News 4631, 4631. Beyond their loss of the very modest compensation they might receive from participating in prison job programs, prisoners generally do not incur financial costs serving as a witness. They are transported at the expense of the government, accompanied by government-paid security personnel. Second, if inmates were to receive a $30 fee for every day they attend court to serve as a witness, which is much more than they make working in prison industries, it is not difficult to imagine the potential abuses that might result. There would be greater temptation to file suits and subpoena friends among inmates as witnesses, not only for the trip they would receive outside the prison, but for the profit from the witness fee.

AFFIRMED.

1 . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

2 . In addition to their statutory language arguments, plaintiffs rely on Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973) (incarcerated material witnesses entitled to attendance fee for number of days detained during trial), to support their position. We agree with the In re Witness Fees court, for the reasons stated therein, that Hurtado is inap-posite to the present case. See 533 F.Supp. at 402-03.

3 . The incarceration provision of old § 1821 provided that "[w]itnesses ... who are not in custody” were entitled to a subsistence allowance. The other pertinent provisions of old § 1821, including the attendance fee provision,-are substantially similar to current § 1821, although significantly restructured.