28 U.S.C. § 1825 — Payment of fees

Page 461 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1825 mile, subsistence allowance from $3 to $5 per day, and inserted provisos. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States Magistrate Judge’’ substituted for ‘‘United States Magistrate’’ in subsec. (a)(1) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of Title 8, Aliens and Nationality. EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–417, § 2(d), Oct. 14, 1992, 106 Stat. 2138, pro- vided that: ‘‘The amendments made by this section [amending this section] shall be effective on and after the date of the enactment of this act [Oct. 14, 1992] and shall apply to any witness who testified before such date and has not received any fee or allowance under section 1821 of title 28, United States Code, relating to such testimony.’’ EFFECTIVE DATE OF 1978 AMENDMENT Pub. L. 95–535, § 2, Oct. 27, 1978, 92 Stat. 2034, provided that: ‘‘The amendments made by this Act [amending this section] shall take effect on October 1, 1978, or on the date of enactment [Oct. 27, 1978], whichever occurs later.’’ EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90–274, set out as a note under section 1861 of this title. PAYMENT OF FACT WITNESS FEE TO INCARCERATED PERSON PROHIBITED Pub. L. 102–395, title I, § 108, Oct. 6, 1992, 106 Stat. 1841, provided that notwithstanding this section, no funds appropriated to the Department of Justice in fiscal year 1993 or any prior fiscal year would be obligated or expended to pay a fact witness fee to an incarcerated person in a court of the United States. Similar provisions were contained in the following prior appropriation acts: Pub. L. 102–140, title I, § 110, Oct. 28, 1991, 105 Stat. 795. Pub. L. 102–27, title II, § 102, Apr. 10, 1991, 105 Stat. 136. § 1822. Competency of interested persons; share of penalties payable Any person interested in a share of any fine, penalty or forfeiture incurred under any Act of Congress, may be examined as a witness in any proceeding for the recovery of such fine, penalty or forfeiture by any party thereto. Such exam- ination shall not deprive the witness of his share. (June 25, 1948, ch. 646, 62 Stat. 950.) HISTORICAL AND REVISION NOTES Based on section 644 of title 18, U.S.C., 1940 ed., Crimi- nal Code and Criminal Procedure, R.S. § 5295. Changes were made in phraseology. [§ 1823. Repealed. Pub. L. 91–563, § 5(a), Dec. 19, 1970, 84 Stat. 1478] Section, acts June 25, 1948, ch. 646, 62 Stat. 950; May 24, 1949, ch. 139, § 95, 63 Stat. 103; Oct. 5, 1949, ch. 601, 63 Stat. 704; July 7, 1952, ch. 581, 66 Stat. 439; July 28, 1955, ch. 424, § 3, 69 Stat. 394, related to payment of witnesses fees to officers and employees of the United States. See sections 5515, 5537, 5751, and 6322 of Title 5, Government Organization and Employees. § 1824. Mileage fees under summons as both wit- ness and juror No constructive or double mileage fees shall be allowed by reason of any person being sum- moned both as a witness and a juror. (June 25, 1948, ch. 646, 62 Stat. 951.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 602 (May 27, 1908, ch. 200, § 1, 35 Stat. 377). Words ‘‘or as a witness in two or more cases pending in the same court and triable at the same term there- of’’ were omitted as covered by section 1821 of this title. Changes were made in phraseology. § 1825. Payment of fees (a) In any case in which the United States or an officer or agency of the United States is a party, the Attorney General shall pay all fees of witnesses on the certificate of the United States attorney or assistant United States attorney, and in the proceedings before a United States magistrate judge, on the certificate of such magistrate judge, except that any fees of defense witnesses, other than experts, appearing pursu- ant to subpoenas issued upon approval of the court, shall be paid by the Attorney General— (1) on the certificate of a Federal public de- fender or assistant Federal public defender, in a criminal case in which the defendant is rep- resented by such Federal public defender or as- sistant Federal public defender, and (2) on the certificate of the clerk of the court upon the affidavit of such witnesses’ at- tendance given by other counsel appointed pursuant to section 3006A of title 18, in a criminal case in which a defendant is rep- resented by such other counsel. (b) In proceedings in forma pauperis for a writ of habeas corpus, and in proceedings in forma pauperis under section 2255 of this title, the At- torney General shall pay, on the certificate of the district judge, all fees of witnesses for the party authorized to proceed in forma pauperis, except that any fees of witnesses for such party, other than experts, appearing pursuant to sub- poenas issued upon approval of the court, shall be paid by the Attorney General— (1) on the certificate of a Federal public de- fender or assistant Federal public defender, in any such proceedings in which a party is rep- resented by such Federal public defender or as- sistant Federal public defender, and (2) on the certificate of the clerk of the court upon the affidavit of such witnesses’ at- tendance given by other counsel appointed pursuant to section 3006A of title 18, in any such proceedings in which a party is rep- resented by such other counsel. (c) Fees and mileage need not be tendered to a witness upon service of a subpoena issued on be- half of the United States or an officer or agency of the United States, upon service of a subpoena Page 462 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1826 issued on behalf of a defendant represented by a Federal public defender, assistant Federal public defender, or other attorney appointed pursuant to section 3006A of title 18, or upon service of a subpoena issued on behalf of a party authorized to proceed in forma pauperis, if the payment of such fees and mileage is to be made by the At- torney General under this section. (June 25, 1948, ch. 646, 62 Stat. 951; Pub. L. 89–162, Sept. 2, 1965, 79 Stat. 618; Pub. L. 99–651, title I, § 104, Nov. 14, 1986, 100 Stat. 3645; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 116–260, div. B, title II, § 220, Dec. 27, 2020, 134 Stat. 1266.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 600c, 608 (R.S. §§ 236, 823, 848, 855; June 10, 1921, ch. 18, § 305, 42 Stat. 24; Apr. 26, 1926, ch. 183, § 3, 44 Stat. 324; May 17, 1932, ch. 190, 47 Stat. 158; June 25, 1936, ch. 804, 49 Stat. 1921; Oct. 13, 1941, ch. 431, § 2, 55 Stat. 736; Dec. 24, 1942, ch. 825, § 1, 56 Stat. 1088). Section consolidates parts of sections 600c and 608 of title 28, U.S.C., 1940 ed., relating to payment of wit- nesses. Other provisions of such sections are incor- porated in sections 1821 and 1871 of this title. Provisions in sections 600c and 608 of title 28, U.S.C., 1940 ed., for payment or certification on order of court were omitted as unnecessary and inappropriate on rec- ommendation of the Judicial Conference Committee on Revision of the Judicial Code. Words in section 608 of title 28, U.S.C., 1940 ed., ‘‘to which they appear to be entitled on the certificate of attendance’’ following the words ‘‘all fees’’ and the con- cluding phrase ‘‘which sum shall be allowed the mar- shal in the General Accounting Office in his accounts were omitted as unnecessary.’’ The second paragraph is new. It conforms to Rule 45(e) of the Federal Rules of Civil Procedure but is in- consistent with Rule 17(d) of the Federal Rules of Criminal Procedure and supersedes that rule as to Fed- eral criminal cases. The Department of Justice sug- gests that Rule 17(d) is unworkable. To attempt compli- ance each deputy marshal serving process must carry, on the average, $500 in cash on trips to serve process. The marshal must advance the money from his per- sonal funds. The Comptroller General has not been able to set up any procedure to make it feasible to advance fees to Government witnesses. If a witness is served but fails or refuses to appear, the marshal is out of pocket the money advanced and has no recourse. In the exceptional cases of real neces- sity, the marshal supplies transportation to an indi- gent witness under established regulations which pro- tect the disbursement. Changes were made in phraseology. Editorial Notes AMENDMENTS 2020—Subsecs. (a), (b). Pub. L. 116–260, § 220(a), sub- stituted ‘‘Attorney General’’ for ‘‘United States mar- shal for the district’’ in two places in introductory pro- visions. Subsec. (c). Pub. L. 116–260, § 220(b), substituted ‘‘At- torney General’’ for ‘‘United States marshal’’. 1986—Pub. L. 99–651 amended section generally. Prior to amendment, section read as follows: ‘‘In any case wherein the United States or an officer or agency thereof, is a party, the United States mar- shal for the district shall pay all fees of witnesses on the certificate of the United States Attorney or Assist- ant United States Attorney, and in the proceedings be- fore a United States Commissioner, on the certificate of such commissioner. ‘‘In all proceedings, in forma pauperis, for a writ of habeas corpus or in proceedings under section 2255 of this title, the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauperis, on the certificate of the district judge. ‘‘Fees and mileage need not be tendered to the wit- ness upon service of a subpena issued in behalf of the United States or an officer or agency thereof, or upon service of a subpena issued on behalf of a party, author- ized to proceed in forma pauperis, where the payment thereof is to be made by the United States marshal as authorized in this section.’’ 1965—Pub. L. 89–162 inserted provisions that, in all proceedings in forma pauperis, for a writ of habeas cor- pus, or in proceedings under section 2255 of this title, the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauperis on the certificate of the district judge and that fees and mileage need not be tendered to the witness upon service of a subpena issued on behalf of a party authorized to proceed in forma pauperis where the payment thereof is to be made by the United States marshal as authorized in this section. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘United States magistrate judge’’ and ‘‘magistrate judge’’ substituted for ‘‘United States magistrate’’ and ‘‘magistrate’’, respectively, in subsec. (a) pursuant to section 321 of Pub. L. 101–650, set out as a note under this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–651 effective 120 days after Nov. 14, 1986, see section 105 of Pub. L. 99–651, set out as a note under section 3006A of Title 18, Crimes and Criminal Procedure. § 1826. Recalcitrant witnesses (a) Whenever a witness in any proceeding be- fore or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its atten- tion, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of— (1) the court proceeding, or (2) the term of the grand jury, including ex- tensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months. (b) No person confined pursuant to subsection (a) of this section shall be admitted to bail pend- ing the determination of an appeal taken by him from the order for his confinement if it appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this section shall be disposed of as soon as prac- ticable, but not later than thirty days from the filing of such appeal. (c) Whoever escapes or attempts to escape from the custody of any facility or from any place in which or to which he is confined pursu- ant to this section or section 4243 of title 18, or whoever rescues or attempts to rescue or insti- gates, aids, or assists the escape or attempt to escape of such a person, shall be subject to im-