RESPONDENT: United States
LOCATION: Frontiero's Residence
DOCKET NO.: 71-6742
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 410 US 578 (1973)
ARGUED: Jan 17, 1973
DECIDED: Mar 05, 1973
Albert Armendariz, Sr. - for petitioners
Erwin N. Griswold - for respondent
Facts of the case
Media for Hurtado v. United States
Audio Transcription for Oral Argument - January 17, 1973 in Hurtado v. United States
Warren E. Burger:
We’ll hear arguments next in Hurtado against the United States.
Albert Armendariz, Sr.:
Yes, Mr. Chief Justice, how are you, gentlemen.
The case that we are going to consider today gentlemen arises out of a right that the United States Government and for that matter, state Government have in securing the services of the witnesses in case in which the Federal Government and the states are, this involves Federal Government only, but in general, the states are interested in having.
In other words, witnesses for the state, witnesses for the United States Government and in the process of securing these witnesses the Congress has passed Rule 46 (b) of the Rules of Criminal Procedure which authorizes the incarceration of these witnesses during the pretrial procedure to guarantee that they will be there and should they not be able to make bond and that they will be there to testify during the proceedings involved.
Then, we have in conjunction with this, and by the way, I might say here that there are other ways that a witness maybe detained such as an example of the mafia or a mafia witness who is -- who the Federal Government that fears maybe killed maybe detained in.
So there are other ways of detention other than through 46 (b), but then we have an article which is found in the law regarding the payment of these witnesses and this is the statute which is in question here.
The main issue here as I see it is the interpretation of 1821 regarding the payment of witnesses.
This is the main issue and the main issue arises because of course in the -- if it is interpreted in a certain way then of course the constitutional issues can be reached, but the main issue arises because we have a statute which is in three pieces, it is a tripod, the statute is in three pieces or three sections.
The first section is that no person shall be held to, excuse me, I think I'm reading -- the first section involves the payment of a per diem, a per diem to all witnesses.
Now, the second section involves itself with the payment of that part of the money that a person or a witness would spend in hotel and eating or sustenance.
And then the statute in its evolvement has a last section which refers to incarcerated witnesses and states that such witnesses will receive $1.00 a day compensation.
The interpretation of the statute is really the important thing here.
I think that we have a very similar case in the way that the Court should proceed as the Dandridge case and that is -- that is that the interpretation of the statute is of first consideration because if the interpretation is -- that is $20.00 a day then we don’t reach the constitutional issues.
Now, it’s important then to look very carefully at the words of the statute and to look to the rules of interpretation of statutes and this is of course what we feel has -- has not been done by the Court’s below.
First, you must look at the fact that the very first section refers to a per diem, it calls it a per diem.
Now, this is of course a daily payment and if we look at the statute itself, and we look at the intention of Congress in all of these things.
We are faced as lawyers and as judges with this situation.
We must recognize that Congress in its scheme of things has provided for payment, for services, for all Court attachés.
It has provided for payment to each one of you as judges of the Supreme Court.
It has provided for payment for we lawyers who might be asked to participate in the defense of a person.
Congress has provided for payment for the bailiffs, for the janitor of the Court.
And Congress has provided likewise for the payment of witnesses, $20.00 per day.
Now, must Congress say that in that first section that a per diem shall be paid to witnesses, including those incarcerated.
This is what the Fifth Circuit seems to think, but that’s not the rule of interpretation of statutes.
Now, look at the second section that we have here gentlemen.
The second section excludes salaried employees of the Government from the $16.00 payment.
Now there's rational there.
The rational is that salaried employees of the Government receive money from the Government to pay their daily expenses, their hotel.
It excludes the witnesses in custody.