USCA1 Opinion
May 3, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2010
UNITED STATES,
Appellee,
v.
BRIAN J. RAINERI, SR.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Brian J. Raineri, Sr. on brief pro se.
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Paul M. Gagnon, United States Attorney, and Peter E. Papps, First
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Although appellant raises a number of
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issues in his brief, we have jurisdiction solely over his
appeal from a district court order denying his request to be
certified as a witness for payment of fees pursuant to the
provisions of 28 U.S.C. 1821. We affirm for the reasons
stated by the district court in its order dated August 29,
1994, adding the following comments.
Pursuant to 28 U.S.C. 1821, as amended by the
Incarcerated Witness Fees Act, a witness who is incarcerated
at the time he testifies may not receive witness fees. 28
U.S.C. 1821(f) (1992). The legislative history behind this
amendment, which became effective October 14, 1992, indicates
that its purpose is to avoid payment of witness fees to those
who, by virtue of their incarceration, already have their
expenses paid by the taxpayer. See H.R. Rep. No. 194, 102d
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Cong., 2d Sess. 2 (1991), reprinted in 1992 U.S.C.C.A.N.
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1465, 1466. Since its purpose is not punitive, the amendment
does not violate the Ex Post Facto Clause of the
Constitution. Cf. Peeler v. Heckler, 781 F.2d 649, 651-52
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(8th Cir. 1986) (suspending social security benefits of
incarcerated felons furthers a nonpunitive goal and,
therefore, does not violate the Ex Post Facto Clause).
Appellant's equal protection challenge to the amendment is
waived because it was not raised in his opening brief. See,
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e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir.
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1990). We add, however, that this challenge fails because
"[i]t is hardly irrational to deny fees and allowances to
prisoner witnesses." Moran v. United States, 18 F.3d 412,
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413 (7th Cir. 1994).
We also note that contrary to appellant's suggestion, he
would not have received witness fees for testimony he gave in
1992 prior to the effective date of the amendment, even if he
had applied for them immediately. Within months after the
Supreme Court, in Demarest v. Manspeaker, 498 U.S. 184
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(1991), held that 1821 did not except prisoners from
entitlement to witness fees, Congress passed appropriations
legislation which provided in pertinent part that
"[n]otwithstanding 18 U.S.C. 1821, no funds appropriated to
the Department of Justice in fiscal year 1991 or any prior
fiscal year shall be obligated or expended to pay a fact
witness fee to a person who is incarcerated testifying as a
fact witness in a court of the United States." Dire
Emergency Supplemental Appropriations for Consequences of
Operation Desert/Storm, Food Stamps, Unemployment
Compensation Administration, Veterans Compensation and
Pensions, and Other Urgent Needs Act of 1991, Pub. L. No.
102-27, Tit. II 102, 105 Stat. 130, 136. Similar
provisions were contained in appropriations legislation for
fiscal year 1992, see Departments of Commerce, Justice, and
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State, the Judiciary, and Related Appropriations Act of 1992,
-3-
Pub. L. No. 102-140, Tit. I, 110, 105 Stat. 782, 795
(1991), and fiscal year 1993, see Departments of Commerce,
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Justice, and State, the Judiciary, and Related Appropriations
Act of 1993, Pub. L. No. 102-395, Tit. I, 108, 106 Stat.
1828, 1841 (1992).
Affirmed.
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