Hurtado v. United States

PETITIONER:Hurtado
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

ADVOCATES:
Albert Armendariz, Sr. – for petitioners
Erwin N. Griswold – for respondent

Facts of the case

Question

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.

Mr. Armendariz.

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.

Albert Armendariz, Sr.:

This is reasonable.

It excludes them from the $16.00 specifically because they are having their room and board paid for by in the local pool keep.

It excludes witnesses who reside near the court.

This is also reasonable because if you live near the Court, you go home and you eat at home.

You don’t need pay a hotel bill.

Now, the second section excludes those that Congress intended to exclude it, means that the first section doesn’t.

The first section says, “All witnesses.”

Now, we come then to of course the work or the term “attending court” and this is where the Fifth Circuit has stated that, a witness in jail is not attending Court.

They seem to – they seem to say, I mean they say, although they — they don’t quote a case to us that this is a stage of the proceeding, but we’re not dealing with semantics and words.

We’re dealing with fairness and equality and we are dealing with the interpretation of a statute of Congress in which we should not attribute to Congress such a – such a disposition to give to one witness who is free, who is in a hotel, enjoying himself $20.00 a day while he waits and the person who is placed in jail, give him $1.00 a day while he waits.

Warren E. Burger:

But what if a witness was subpoenaed from penitentiary, the Federal Penitentiary in Leavenworth Kansas, and subpoenaed down into Texas or Florida —

Albert Armendariz, Sr.:

Your Honor —

Warren E. Burger:

— and put in detention while he is waiting.

Does he get $21.00 a day?

That’s in your theory.

Albert Armendariz, Sr.:

You’re referring to a case which is already decided.

I believe we quoted in our brief and the Court distinguished, I forget which Court it was?

But this is been decided already.

Warren E. Burger:

Yes.

Albert Armendariz, Sr.:

And the Court distinguished that case as — and I think rationally so because this was a person who was arguing that his right to work within the penitentiary, but this is a prisoner who is being held for another reason.

He would be held anyway and I think — I think the — the Government concedes that in its original brief — in opposition to this granting of the writ where the Government concedes that there is very limited reason to differentiate between these people when they’re being held for no other reason than to testify and this I submit is the situation here.

In the other case, they are —

Byron R. White:

When — if your client were — actually testifying, he would get $20.00, wouldn’t he?

Albert Armendariz, Sr.:

Your Honor, the answer to that is not in the record.

The — we contend —

Byron R. White:

What’s your position?

Albert Armendariz, Sr.:

Our position is that they were not paid in any case that we have found, but this is not in the record because this case came up for some —

Byron R. White:

What — is it your position the statute does not provide for payment to clients such as yours even for the period, where they are actually testified?

Albert Armendariz, Sr.:

No sir.

Our position of course would be in line with the decision of the court below that they should get a payment of $20.00 for the day of the trial, at least for the day of the trial whether they testify or not, but it’s very interesting to note and we ask or we sent —

Byron R. White:

How then is your client treated differently from other witnesses?

Albert Armendariz, Sr.:

He is treated differently in a very, very substantial way and that is that in a witness that the example that was put it by one of the other justices.

You are — let’s say he is not in prison, alright.

You’re subpoenaed from here to El Paso, Texas.

You’re going to testify before the Western District of Texas.

You get $20.00 a day from the minute you leave here whether you testify or not.

Now, you go to El Paso, you take two days if you drive, you fly.

Now, let’s suppose the case is set for Monday morning which is the case in most of our courts and he gets there and he reports to the District Attorney.

And the District Attorney tells him, “Well, we’ve got six cases ahead of you.

We won’t need you till Thursday.

Go down where are you?”

“Well, I’m at motel so and so.”

“Well, you stay there and stick around and we’ll call you when we need you.”

He gets $20.00 a day while waiting in the hotel while the man who is waiting in the jail gets $1.00.

Warren E. Burger:

And he’s attending the trial then.

He’s in attendance for the purposes of the trial?

Albert Armendariz, Sr.:

Well, so he is the man in jail here, Your Honor.

I submit to you that he is very much so.

How much more —

Warren E. Burger:

Is the trial going on?

Was there a trial going on?

Albert Armendariz, Sr.:

I submit to Your Honor, yes sir.

That when the minute that a complaint is filed against the person and that man is put in under 46 (b), there is a trial stage or there is a trial going on and it’s the same stage because you are in that stage of the game and I submit to you, yes sir?

William H. Rehnquist:

(Voice Overlap) argue that if there weren’t a trial kind of play the Government would have great difficulty in justifying holding them at all?

Albert Armendariz, Sr.:

Your Honor, we have a — in our whole position, we have evaded the issue of procedural due process in the holding.

We have limited our position to the fact that given the right to hold and it is only in the matters presented by the defendant, I beg your pardon, by the Government that we have reached this particular point and of course we would go into it a little bit more in rebuttal, and intend to.

But specifically, what you have here of course is an interpretation of attending in Court.

Now, I agree with you Mr. Chief Justice that this is one of the issues here, but I fail to see how interpretation of statutes and logic or anything else can lead to the conclusion that a person that is in jail because a case has been initiated and it is in progress is not attending in Court simply because he is in jail waiting for His Honor to call the case.

Warren E. Burger:

Is it correct that if they were not being held in jail, they would be or would have been deported by now?

Albert Armendariz, Sr.:

Your Honor with this particular case, yes.

Warren E. Burger:

(Voice Overlap)

Albert Armendariz, Sr.:

In this particular case, I think the record will show that there would no reason to hold them other than as witnesses at this time.

It would have been gone.

William J. Brennan, Jr.:

Mr. Armendariz.

Albert Armendariz, Sr.:

Yes, Your Honor?

William J. Brennan, Jr.:

If you’re going — if we should agree with you that the $20.00 per day applies as well to the man in jail.

What do you do then with the last sentence?

To what does that apply?

Albert Armendariz, Sr.:

Your Honor, the Court of Appeals downstairs in its decision stated what we contended at the time that this is a recognition by Congress that a man in jail.

Now mind you, look at the whole statute —

William J. Brennan, Jr.:

Well, I know.

Now, my question is to whom, to what witness that this last sentence apply if would agree with you that your man was entitled to $20.00 —

Albert Armendariz, Sr.:

It applies to those persons who are in custody, who are in jail, in order to provide toiletries and things that they need while they are in jail because notice that the other witness who is free gets $16.00.

Ask yourselves there, why 16, why not 15?

William J. Brennan, Jr.:

I’m afraid I haven’t made myself clear.

Albert Armendariz, Sr.:

Yes, sir.

William J. Brennan, Jr.:

If we agree with you.

Albert Armendariz, Sr.:

Yes, sir.

William J. Brennan, Jr.:

That your man was entitled to $20.00 a day.

Albert Armendariz, Sr.:

Yes, sir.

William J. Brennan, Jr.:

And that anyone in the position of your client is entitled to $20.00 a day and read the statute that way.

Albert Armendariz, Sr.:

Yes, sir.

William J. Brennan, Jr.:

What do we do with the last sentence?

Albert Armendariz, Sr.:

It’s an addendum.

It’s an addition.

It calls something else.

William J. Brennan, Jr.:

Applicable to whom?

Albert Armendariz, Sr.:

Applicable to persons in jail.

Harry A. Blackmun:

So that you would want $21.00 for it.

Albert Armendariz, Sr.:

$21.00, yes sir.

Albert Armendariz, Sr.:

Because $20.00 is the per diem and $1.00 is for toiletries and other things that a man needs in jail and I suggest that the statutes suggest also that the payment be made on a daily basis so that they can have those — and it uses the word per day.

Harry A. Blackmun:

So, you relate the $1.00 to the $16.00 for the man outside?

Albert Armendariz, Sr.:

Yes, sir.

Yes, sir and it’s reasonable.

This is logical that it is relating to a man —

William J. Brennan, Jr.:

To the man outside unless he is in Government service, he really gets $36.00 a day?

Albert Armendariz, Sr.:

Yes, sir and then outside —

William J. Brennan, Jr.:

You say since your man is in prison, he at least gets $21.00?

Albert Armendariz, Sr.:

$21.00 yes, sir.

The $15.00 is —

William J. Brennan, Jr.:

That’s what this is all about?

Albert Armendariz, Sr.:

This is what this is all about, yes sir.

And I want to reserve whatever left or time I have for rebuttal in Court.

Thank you.

Warren E. Burger:

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

This is a troublesome case and it is good I think that the problem has been brought to light.

Whether there is anything that this Court can properly or should do about it is and not so clear.

In the first place, it seems to me important to put before the Court what I conceive to be the basis of the jurisdiction of the District Court in this case.

There is in the appendix, the original complaint beginning on page 4 of the appendix and there is also a first amended complaint beginning on page 28 of the appendix.

It isn’t wholly clear to me which one is actually the one upon which the District Court acted, but I would assume that the first amended complaint is the one which is before the Court.

The United States is the sole defendant named in this complaint.

There is no officer of the United States, no Marshal, and no United States Attorney, and no Cabinet Officer, and no one, but the United States is named as a defendant.

If you look at the complaint, paragraph two it says, “That this suit seeks to enjoin the enforcement of a federal statute to Title 28 U.S.C. 1821 and it requests a three-judge court.”

And then if you look at paragraph three, you will find that it is alleged that there is a case of actual controversy and there is a reference to the declaratory judgment statute.

Now, I think it is perfectly clear that Congress has never consented to a suit by citizen or an alien against the United States to enjoin the United States from anything.

It may have in some special Acts, but it has not in any statute which is applicable here.

And similarly, I think that sovereign immunity is a barrier to a suit for a declaratory judgment against the United States unless the case is in some other way brought within the jurisdiction of the District Court.

When we examined the statutes which relate to the jurisdiction of the District Court, the only one which can have any application here —

Byron R. White:

And you say this is a jurisdictional question?

Erwin N. Griswold:

I’m just trying to find out what is the question.

Yes, I say it is.

I say that it is quite clear it seems to me that this cannot be a suit to enjoin the United States because the United States is not consented to any such suit.

Byron R. White:

But do you think that’s equivalent to the lack of power in the District Court.

If you had inter post it that the, it would be an — I suppose it would be —

Erwin N. Griswold:

I don’t think that there any officer of the United States has authority to waive the sovereign immunity of the —

Byron R. White:

Congress, Congress may —

Erwin N. Griswold:

Congress has power to, and the only place that I know of that Congress has waived its sovereign immunity with respect to suits against United States.

This Section 1346 of Title 28 and the First Provision of that is internal revenue tax cases and the second is the Tucker Act.

Now, the Tucker Act provides that the District Court shall have jurisdiction in any claim not exceeding $10,000.00 and incidentally in order to come in with respect to federal question.

It would have to exceed $10,000.00 which is simply another technical reason why quite apart from federal — from sovereign immunity that would not be there.

Thurgood Marshall:

But they allege it under 46 (a) (2) which is the one you’re reading.

They allege that specifically that —

Erwin N. Griswold:

Yes, I understand and I’m trying to narrow it down and say that this case is solely and simple a case under the Tucker Act, Section 1346 (a) (2).

There is Section 1346 (b) which is the Federal Tort Claims Act, but this does not purport to be such a suit though conceivably someone might contend that there was a basis for that nor does it purport to be a suit with respect to Civil Rights Act.

So, I am suggesting that this case can be before the District Court and can be considered by this Court, not as a question of enjoining anything.

It is not a question whether if the people are now in custody they can be held — conceivably a writ of habeas corpus might be filed to release someone on the ground that detention under Section 46 (b) without proper compensation violates some provision of the Constitution.

These people are not now in custody.

They have been released sometime since and so this is and perhaps I shouldn’t have taken this much time to bring this out, but I think it is important.

This case is before the District Court, and therefore, here only as a suit under the Tucker Act which means that it must be not exceeding $10,000.00 in amount, founded either upon the Constitution or any Act of Congress, or any regulations of an Executive Department, or upon any express or implied contract with the United States in cases not sounding in Torts.

Well, now it obviously is not upon an express or implied contract nor does it rest on a regulation of an executive department.

So, it has to be in order to allow recovery have founded either upon the Constitution for any Act of Congress.

William J. Brennan, Jr.:

And of course they expressly allege that each claim is based on an Act of Congress?

Erwin N. Griswold:

Yes, Mr. Justice I understand that and so that gets us down to — there is also a lot of other things that will —

Byron R. White:

I mean in that respect.

Even on your right that that’s within the Tucker Act?

Erwin N. Griswold:

That is within the — that is within the Tucker Act but the Act of Congress is Section 1821.

William J. Brennan, Jr.:

Yes.

Erwin N. Griswold:

And so we are now confronted with the problem of construing Section 1821 and my opponent contends that the proper construction of that is that it provides for a per diem of $21.00 per day to the detained witness and this Court can of course make a statute mean anything it feels that it ought to mean, but I find it extraordinarily difficult to find that that is either the literal proper construction of the statute or that it is the construction of the statute which can be supported in terms of its history or the practice under it.

We — before I go further.

Erwin N. Griswold:

I think it is not unimportant to have the facts of this case somewhat more fully before the Court.

William J. Brennan, Jr.:

Before you proceed Mr. Solicitor General.

But his alternative is if you don’t construe it that way then it’s constitutional?

Erwin N. Griswold:

Yes, Mr. Justice —

William J. Brennan, Jr.:

That’s outside the party?

Erwin N. Griswold:

But if it is unconstitutional, I find no basis for sustaining a —

William J. Brennan, Jr.:

That’s what I want to ask you.

Does in the Tucker Act permit a claim founded out?

Erwin N. Griswold:

Yes, Mr. Justice.

The Tucker Act permits a claim if it is based upon the Constitution, but suppose you find the statute unconstitutional.

What basis is there for awarding a judgment against the United States?

Byron R. White:

It doesn’t help any of the — it doesn’t help any in this respect if he says, “Denying me compensation when the statute gives compensation to somebody else, denies me for protection of the law and in order to remedy my denial, or you must pay me.”

Erwin N. Griswold:

I have one little trouble that Fifth Amendment has no equal protection clause, that’s a problem with the Court has wrestled with and in —

Byron R. White:

If it did —

Erwin N. Griswold:

— various circumstances.

Moreover, even under the equal protection clause, you have the question of proper classification and that it seems to me is where the facts I would like to put before the Court.

Byron R. White:

But assuming that he won on his equal protection argument.

That denying him $20.00 a day when you pay to the witnesses is a denial of the equal protection and he says, “I must then have the $20.00.”

Is that a Tucker Act claim?

Erwin N. Griswold:

Yes, Mr. Justice.

I think that would be a Tucker Act case, but —

William J. Brennan, Jr.:

That was the purpose of my question at this point.

Erwin N. Griswold:

But I would not agree that was the solution or analysis.

Yes!

It is a Tucker Act case.

I’m not —

William J. Brennan, Jr.:

Yes.

William H. Rehnquist:

You don’t think then Mr. Solicitor General that the Tucker Act is, when it refers to Constitution, speaks only of the eminent domain or condonation?

Erwin N. Griswold:

No, I don’t see how it can be limited solely to that although that of course was — is I suppose a large part of the basis of upon which suits under the Constitution are brought either in District Courts for less than $10,000.00 or in the Court of Claims for greater sums.

Potter Stewart:

So the upshot is as I understand the theorizing of my brothers at the other end of the bench, that if he prevails on the statutory claim on the construction of statute, he gets $21.00 a day and if he prevails on the constitutional claim he gets $20.00.

Erwin N. Griswold:

He gets $20.00 a day.

Yes, that would seem to be that.

If the Court concludes that on the constitutional claim some kind of automatic —

Potter Stewart:

Yes.

Erwin N. Griswold:

— equality is required despite the basis for proper classification which I would like to put before the Court.

Byron R. White:

That is his question I think (Inaudible)

Erwin N. Griswold:

It seems to me not irrelevant that all of the named plaintiffs in this case and far as anything appears and I don’t understand class actions, particularly as applied to this sort of a situation, as far as it appeared with respect to the numerous people who are said to be of the same class involved, but of all the named plaintiffs in this case are people who illegally enter the United States, who were arrested together with the people who bought them into the United States, who were under the benign policy of the Immigration and Naturalization Service, treated very gently as illegal immigrants, but whose services were wanted for the purpose of proceeding against those who were apparently engaged in the business of bringing a Mexicans into the United States illegally.

All of the people involved in this case were subject to deportation.

All of them were proceeded against criminally and were convicted of the crime of illegal entry.

All of them were given a sentence of a year, but placed on immediate probation.

And I would like to call attention not only to Rule 46 (b) which after all is a rule of this Court and must at sometime have obtained approval by this Court and there are cited in our brief of various cases which support the holding of the witnesses who will not otherwise be available for criminal trial.

And the brief also shows that this goes back to the very earliest days of the Republic under the Constitution, statutes passed in 1789, recognize that people could be held as material witnesses and it has always been done.

The business of payment has had an experience of what I would call neglect.

Back in 1850 a 120 years ago, there was provided a separate fee of a $1.00 a day for witnesses held in custody and at that time, there was provided a fee of, I think, a dollar-and-a-half a day for other witnesses.

Over the years.

But only really within the past 20 years, the regular witness fee has escalated and has got now to $20.00 a day plus $16.00 a day for subsistence.

But no one has ever changed the dollar a day for people who are held in custody except that in 1948 even that was omitted when the judicial Code was revised in 1948.

And a year or two later, in a comprehensive amendment to the judicial Code for the purpose of correcting errors which were made when It was put together.

The dollar a day was put back in.

Byron R. White:

During that interval the statute was not interpreted to mean that people incarcerated got the $20.00 too, I think not —

Erwin N. Griswold:

Mr. Justice, I do not know but I don’t think so.

I — my guess is that they just went ahead and paid them a dollar a day on the ground that this was going to be straightened out any how.

Now, I think it is also relevant to point out as we have in our brief on page 31.

That Section 1821 is not the only statute and this I think has some bearing on the construction of Section 1821, is not the only statute which provides for detaining persons in this situation at a fee of one dollar a day.

This is printed in a footnote at the bottom half of page 31.

The Attorney General under such conditions, as our regulations prescribe may stay the deportation of any alien deportable under this Section and these aliens were, if in his judgment, the testimony of such alien is necessary on behalf of the United States in the prosecution of offenders against any provision of this chapter or other laws of the United States, all of these people were held for the purpose of being available to testify against the people who introduce them into the United States.

All of those persons who were prosecuted pleaded guilty and all of these persons were discharged immediately after the conclusion of that criminal case.

Warren E. Burger:

Mr. Solicitor General, you may resume whenever you’re ready.

Erwin N. Griswold:

Insofar as this case turns under the Tucker Act on the construction of a statute and we have referred primarily to Section 1821, but I have also mentioned the corresponding immigration statute, Title 8 Section 1227 (d).

I do not think that there can be a construction of the statute which would lead to the payment of $21.00 a day to these detained witnesses.

Erwin N. Griswold:

Not only is that not a feasible or reasonable construction on the face of the statute, but the contrary is provided by the regulations of the Department of justice which are printed on page 16 of our brief.

Incidentally, I would call particular attention to the second paragraph of the United States Marshal’s Manual of the Department of justice.

“Witnesses detained under Rule 46 (b) of the Federal Rules of Criminal Procedures should be paid the compensation of $1.00 per day except for the days they attend in Court.

When they are entitled to the regular witness fee of $20.00 and the same construction appears in this record.

And the answer of the United States Attorney which since the defendant, since the respondent or the petitioner here had filed a motion for summary judgment is admitted for the purposes of this case.

This is on page 23 of the appendix where the United States Attorney alleged that it was the practice to pay $1.00 in these cases, but whenever a witness who is detained in custody is in attendance in Court or before a United States commissioner or before a person authorized to take his deposition, he receives the witness fee of $20.00 for each days attendance.

William H. Rehnquist:

Mr. Solicitor General, my reading of the appendix on page 3 indicates that on April 8th the District Court granted the defendants motion for summary judgment which would be the Government I take it.

So, that it wouldn’t — I would think that your statement that the answer of the Government be taken as true, wouldn’t necessary be applicable?

Erwin N. Griswold:

Mr. Justice, I — here again, I m not wholly clear but there were joint motions for summary judgment and when the matter is before the Court on joint motion for summary judgment that is on the ground that there is no material issue of fact in either way.

And I would — I had in mind the fact that it was the Government’s motion which was granted, but there was also a motion for summary judgment by the petitioners here and I don’t greatly care whether this is regarded as admitted or not.

I believe that it is the practice and that that is plainly evidenced by the United States Attorney’s — United States Marshal’s Manual which is printed on page 16.

If there is a question with respect to the constitutionality of the statute as so construed, I find it difficult to see that the answer is that this Court should somehow or rather rewrite the statute and provide that an amount should be paid.

Suggestion has been made in equal protection terms.

If they are applicable to the Federal Government and I have tried to argue in our position that there is no constitutional right to any sort of a witness fee, and that there is a proper basis for classification or discrimination here with respect to people like these particular petitioners who were themselves violators of the law, who were subject to a one year sentence in jail, whose grant of probation was coincident with the holding as material witnesses, and who were then held until people who introduced them into the United States pleaded guilty and were then immediately discharged.

As I understand the situation, no one of these petitioners was paid $20.00 for any day because no one of these petitioners appeared in Court because the people who introduced them into the United States pleaded guilty.

Warren E. Burger:

Their convictions I take it followed the events we’re talking about, did they?

Erwin N. Griswold:

No.

Warren E. Burger:

They were not under conviction while they were being held?

Erwin N. Griswold:

No, Mr. Chief Justice the dates are stated on pages 8, 9, and 10, but the chronology is a little, certainly too difficult for me to keep in mind —

Warren E. Burger:

But if they were, under my point that I’m driving at is, if they were under the sentence it could’ve been held without any question of reason —

Erwin N. Griswold:

They were under the sentence and it could have been held except that the sentence granted immediate probation.

Warren E. Burger:

I see, but it could’ve done otherwise that —

Erwin N. Griswold:

It could have done otherwise and was I am sure done as a part of the process by which they were dealt with and then held until the people who introduced them into the United States came to trial which in one case was about six weeks later and in another case was about a month.

Warren E. Burger:

If the sentence had not been suspended until after these events, you wouldn’t be here on this case today?

Erwin N. Griswold:

There wouldn’t be any problem of — as to this, except conceivably under the Bail Reform Act.

They might have been entitled to bail before trial.

Whereas here they were in fact —

Warren E. Burger:

I’m speaking of the after trial period.

After they’d have been found guilty if instead of suspending the sentence, the judge had put them in the same building and said, “I’ll consider motion for modification of the sentence and suspension of the sentence after you testified?”

Erwin N. Griswold:

After the trial there would have been no problem about that at all.

William J. Brennan, Jr.:

Probably of that because it was on March 26th, when apparently they pleaded guilty to the misdemeanor which was although six months imprisonment and then suspended and supervised probation for one year, and that same day, they were committed as material witnesses.

So, it must happen almost simultaneously I gather Mr. Solicitor General.

I’m reading from what you say page 7, and 8.

Erwin N. Griswold:

Yes.

William J. Brennan, Jr.:

You say — you said page seven that was on the 26th of they pleaded, these petitioners pleaded guilty and got a six months execution which was suspended that they were put on probation for one year?

Erwin N. Griswold:

That’s right.

William J. Brennan, Jr.:

Then on next page it says on that day they were committed as material witness on the same day.

Erwin N. Griswold:

On the same day as executed.

My interpretation is that it’s all part of one process and designed to deal appropriately with these people who had broken the law and to provide the evidence which is necessary to appear against the other persons who have not —

William J. Brennan, Jr.:

But did you know this is quite right if it haven’t been that suspension the right of having a sentence —

Erwin N. Griswold:

If there hadn’t been a suspension there would be any problem.

Now, let me say as I indicated in our brief in our position that I have tried to do a little good in this matter.

I have called it to the attention of the Deputy Attorney General and of the Attorney General and it has proceeded this far.

That on January 10, 1973, the Attorney General sent a letter addressed to the Speaker, a corresponding letter to the Vice President, but the letter has not yet been sent to this Speaker or to the Vice President.

The form I have has a big rubber stamp on it to budget for clearance not sent to Congress and under the form, there has to be clearance from the office of management and budget the last paragraph of the letter says, “The office of management and budget has advised that enactment of this legislation is consistent with the objectives of this administration.”

Now, when clearance is obtained from the office of management and budget and my influence is that office is not always very great, but the Attorney General has recommended it to them.

If it is obtained then this proposal will be sent to Congress.

The proposal as is indicated raises the $1.00 per day in both places, that is both in Section 1821 and in the immigration provision to $20.00 per day.

It also takes advantage of the opportunity to make a change in the provision with respect to transportation cost for ordinary witnesses where the statute now provides that it should be first class and the suggestion is made that in modern times the economy class airfare is adequate and they are doing that.

However, I am told that this will be simply a means of putting it before Congress if it gets before Congress and that the department may well not support the full $20.00 a day and there is a really real problem here which needs to be considered.

$20.00 a day for 30 days in a month is $600.00 a month and in this particular area of Mexico, 70% of the people have an income of less than $80.00 a month.

And there is great concern that if we provide a build in way to make $600.00 a month by illegally entering the United States and being detained as a witness that the number of people who do this maybe very greatly increased.

Byron R. White:

If you maybe detained as a prisoner?

Erwin N. Griswold:

Maybe detained as a visitor?

Byron R. White:

As a prisoner?

Erwin N. Griswold:

As a prisoner, yes.

But, if that is works out to be eight times as much as you can make working in the fields in Mexico, it may look pretty good and the suggestion has been made that if this does come before Congress that representatives of the department will recommend that there be added a proviso to this effect.

This wording is not final, but it explains the idea provided that any alien who has entered the country illegally and who is held not more than 30 days as a material witness in a case involving the illegal entrance of himself or another or any violation of the immigration law shall receive only $5.00 per day for such period of incarceration when not attending in Court.

And this I mention, because it seems to me to emphasize the fact that this is a problem which ought not to be resolved in some kind of rigid constitutional terms that the equal protection clause requires that everybody be treated the same.

That it obviously has practical connotations.

Erwin N. Griswold:

This is not just a mechanical thing, but the protection of our borders against the introduction of illegal immigrants who compete for jobs against American citizens in areas where jobs are not readily available.

It is a legitimate matter of American policy.

It is a matter which can appropriately receive the attention and consideration of Congress and which seems to me in a proper allocation of function should be determined in detail by the Congress and not by this Court.

Now, it is very appropriate I think that the issue has been raised and that steps are being taken so that it will be put before Congress for active consideration there.

I would think that the ultimate resolution of the problem would be better in the hands of Congress then by any solution which it seems to me this Court can make.

This Court cannot spell out a detailed statute which will say, “Well in case of illegal immigrants and so on.”

The only analogy that has been suggested for proceeding by this Court is in terms of some equal protection idea which idea I think is not relevant here in the fact of this case.

Accordingly, we would submit that the judgment below should be affirmed.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Armendariz.

Albert Armendariz, Sr.:

If Court please if I may respond.

Gentlemen, we have listened — first let me tell you that up to the — in the lower court as in the Court of Civil Appeals, the Government did not argue that there was a rational basis for this invidious discrimination that exists in this statute.

The Government has —

Byron R. White:

Pleaded?

Albert Armendariz, Sr.:

What, sir?

Byron R. White:

Was it required?

Albert Armendariz, Sr.:

I would say yes.

Byron R. White:

You have the burden of course?

Albert Armendariz, Sr.:

Yes, sir.

I recognize that but I think —

Byron R. White:

Then, you have the burden of showing the speculation, but the invidious speculation.

Albert Armendariz, Sr.:

Invidious and I think that — the point to that I’m making is that they resorted to 201 which is something all of this argument that counsel has made is subject to a motion to strike because they have added to this record in a rule that doesn’t come into effect till July 1, 1973.

And they have — we had submitted a stipulation as to the appendix and now, he has added an appendix under this Rule which isn’t a rule yet.

But the real reason for it is because up to now they had advanced no reason, Your Honor, regarding the rationale under which this statute might stand constitutionally.

Now, they say —

William J. Brennan, Jr.:

What did you say the Government has added?

Albert Armendariz, Sr.:

They have added all of these business about the — that they were in — that they were charged, that they had six months given to them, that they were granted voluntary departure.

William O. Douglas:

But that you make some rules that you said —

Albert Armendariz, Sr.:

Yes sir, they have added, on page 31 of, excuse me let me find it in — on page — they make a statement in their brief and I’ll find it in a minute.

Although, we don’t — here!

Albert Armendariz, Sr.:

Here it is.

It is on page 5.

“Although, we did not suggest that additional facts are in anyway necessary to the resolution of the case at this stage, we believe the Court may find in pertinence so on and so forth under Rule 201 (b) (2) of the new federal rules of evidence.”

Then they add all of the argument of counsel regarding what actually happened in this case —

Byron R. White:

There aren’t in these federal rules yet, are they?

Albert Armendariz, Sr.:

No, sir.

Not until July 1 —

William J. Brennan, Jr.:

This is just a reference C, I don’t —

Albert Armendariz, Sr.:

No, the point that I’m making Your Honor is so that —

William J. Brennan, Jr.:

They recite that is expressing the prevailing practice as I read?

They don’t rely on that new rule?

Albert Armendariz, Sr.:

Well, they do because they have added a — the whole addendum —

William J. Brennan, Jr.:

Well, I will don’t waste your time.

Potter Stewart:

But the matter of law material is not the record, that’s the point?

Albert Armendariz, Sr.:

Precisely.

They have added — and to evade the fact that here we are talking about witnesses who are in jail.

They would like isolate this into a class.

Warren E. Burger:

But do you say that we cannot judicially notice the records of the United States’ District Court.

So, that these people were found, were were charged, indicted, found guilty for entered a guilty plea and that they were sentenced?

Albert Armendariz, Sr.:

Your Honor, in the — in this Dandridge case, this Court established clearly the right of this Court to establish judicial, through judicial notice.

Those things are in that case it was that women act more as — but this is a — these are specific facts about specific people that have to be placed.

I knew nothing about this until I received this.

But the point that I’m really making is that this is trying to sustain on a rationale basis on irrational generalizations which are present in every case of invidious discrimination.

It’s a wonder that they don’t argue that you should let us all say because they’re brown, because they have long hair, because — but the argument is —

Warren E. Burger:

But you’ve come now — there’s quite a difference between a classification that differs between the generality of the citizens and aliens who’ve been found guilty of illegally entering the country and had been sentenced to a term of imprisonment for that purpose, even though that sentence was suspended.

Your burden is to show that that’s an irrational classification, isn’t?

Albert Armendariz, Sr.:

Precisely.

It is, and this is when we say that it is irrational because they are — these are only generalizations.

They haven’t now — now, they say there is another statute.

Now, that other statute, notice the words it’s another per diem because they are being held in another agency to give authority to the other agency to give them that dollar a day that they need for their — now, they come in and admit their going to go to Congress, “Give us $20.00 or give us $5.00” in the case of this type of alien.

Albert Armendariz, Sr.:

Now, notice Your Honor that there is a limitation there.

I suggest Your Honor in the added material we find for instance that the Government has fined the principles.

There is a quid pro quo here.

One of them was fine $1,500.00, the other $1,500.00, another $300.00 which fully covers the cost of this.

That Congress had this in mind and that there are other solutions other than — that this is not rational, there is no rationale.

The classification statute applies to all witnesses detained, all witnesses alike.

Warren E. Burger:

What is the maximum money fine that could be imposed on an alien in these circumstances illegally and —

Albert Armendariz, Sr.:

If it’s a — Your Honor, the statute Title 8, 1325 and 1326 categorized these things as felonies and misdemeanors which is that the discretion of the —

Warren E. Burger:

Yes, but how much is the most —

Albert Armendariz, Sr.:

$500.00

Warren E. Burger:

$500.00

Albert Armendariz, Sr.:

And six months in jail.

Warren E. Burger:

So, what’s your suggesting —

Albert Armendariz, Sr.:

No.

No, wait a minute.

I’m not talking about the people who had them that transport them.

Warren E. Burger:

No, I’m speaking of these plaintiffs right here, that your petitioners there.

How much they have been fined for the offense?

Albert Armendariz, Sr.:

$500.00 and six months in jail is the maximum for each offense.

Warren E. Burger:

So, that if the judge had fined them $500.00 and six months then he could take — if you’re right on your argument you could — the Government could nevertheless take the $20.00 a day out of that $500.00, couldn’t they, as an offset?

Albert Armendariz, Sr.:

It would seem to me sir that that might be one of the solutions to the problem, yes?

Warren E. Burger:

Well, now you’re suggesting a premium on judges to impose the maximum sentence in every case?

Albert Armendariz, Sr.:

No, sir.

This doesn’t necessary follow because you also have to take into consideration the purpose of the statute and this is what we haven’t considered.

What is the purpose of 1821?

The purpose of 1821 is to make payment to witnesses to see that they don’t loose out of their own pocket.

The Government admits that in their brief.

They have a statement that it is not reasonable for — it is on page 21, it is unreasonable to expect and require witnesses to attend Court at a personal financial loss.

Now, either their witnesses or their defendants because if they have — if their defendants then they have to be provided counsel.

They may not want to testify and the whole case may fall.

Albert Armendariz, Sr.:

This is a convenience of the Government, Your Honor.

This is something that the Government —

Warren E. Burger:

But in the cases we’re dealing with, they did not fall because there were verdicts or there were judgments of guilty by some process?

Albert Armendariz, Sr.:

Yes, sir.

The word judgment of guilty and the whole legal process, administrative and criminal had terminated.

They have been granted voluntary departure.

They could leave for Mexico immediately.

They had been given a suspended sentence.

They could leave from Mexico.

They didn’t have to be witnesses.

They were held here at the convenience of the Government and the Government received $1,500.00 from one $1,500.00 from the other $300.00 and got convictions because of this.

The Government, I submit to Your Honor either has witnesses and I think that this is the reason they’ve gone to Congress.

They realize that this statute is unconstitutional.

They’re going to have to change it.

They’re going to have to do something because it is unconstitutional as it is and they’ve gone to Congress because it is unconstitutional and they have recognized that their might be some differences, but the statute itself at this time is invidious.

Thurgood Marshall:

What was the lapse of time between when they were convicted and that’s how long were they held as witnesses after they were detained?

Albert Armendariz, Sr.:

Well, two of them where held almost 90 days sir, but we have some that were held six months, some of them nine months, they put them in jail and threw away the keys.

Thurgood Marshall:

The named petitioners?

Albert Armendariz, Sr.:

Sir?

Thurgood Marshall:

Some of the named petitioners?

Albert Armendariz, Sr.:

Yes, sir.

Yes sir.

Two of the named petitioners were there almost 90 days, Justice Marshall.

And they threw away the key now.

They could have taken their deposition.

They could have done several things but if you have to pay him a dollar a day, therefore a reason to do that.

Just keep them it is cheaper.

It is cheaper!

It is cheaper to pay him a dollar a day than to take —

Thurgood Marshall:

Are you asking for $20.00 a day for the whole time or just the time after the conviction?

Albert Armendariz, Sr.:

No, for the time after the conviction.

Yes, sir.

Thurgood Marshall:

That’s all you’re asking?

Albert Armendariz, Sr.:

That’s all we’re asking for.

Yes, sir.

Only when they were detained —

Thurgood Marshall:

That’s not the way I read your complaint?

See —

Albert Armendariz, Sr.:

Well, that’s what we meant.

If Your Honor will see that’s what we meant.

Yes, sir and I think that we are off base if we look at this thing in the alien only because 46 (b) is for all witnesses and all witnesses who are detained and the — this is the whole matter as it stands.

I think Your Honors we have an unconstitutional statute.

I notice the white light, I wanted to take one minute to thank Your Honors for allowing me to sit my son who is my partner and who helped me to — who is not a member of this bar for permission that you gave me for the attention that you gave me, I sincerely appreciate it.

I would like to call just one case more in Graham v. Richardson, you dealt with this issue of differentiation in the cause of alienate, and I suggest that that case is in point here.

Thank you gentlemen.

Warren E. Burger:

Very well, thank you Mr. Armendariz.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice, if the Court pleases, I would lodge this submission to the Budget Bureau with the clerk so that the clerk will have the information available.

William O. Douglas:

That measure wouldn’t have passed, wouldn’t affect this case, would it?

Erwin N. Griswold:

No, Mr. Justice.

William O. Douglas:

It’s not that corrective?

Erwin N. Griswold:

No, I assume that it would get — well, it could be made if —

William O. Douglas:

Made as proposed?

Erwin N. Griswold:

It could be made retroactive but the proposal is simply prospective and whether anything will come of this, I have no idea.

Warren E. Burger:

Very well, thank you Mr. Solicitor General.

The case is submitted.