Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 63-CR-317 RICHARD B. AUSTIN, Judge.
Castle, Senior Circuit Judge, and Pell and Sprecher, Circuit Judges.
Appellants, James Hoffa and Calvin Kovens, appeal from the district court's taxation of costs of prosecution to them. The appellants were convicted in 1964 of conspiracy and mail and wire fraud. They were sentenced to various terms of imprisonment and fined certain sums together with the costs of prosecution. Subsequent to sentencing, various appeals were taken. In 1972, within one year of the entry of the final order in the case, the Government filed a bill of costs.
Conceding that the taxation of costs is a matter of the district court's discretion, the appellants raise three issues on appeal: (1) whether the doctrine of laches prohibits the Government from presenting its bill of costs; (2) whether costs were properly assessed for Government witnesses who were subpoenaed but did not testify; (3) whether costs were properly assessed for Government witnesses at a post-appeal hearing.
The appellants first contend that since the Government presented its bill of costs more than eight years after the entry of judgment, the Government has been guilty of laches and should be estopped from collecting these costs at this time. The appellants note that the rules for imposition of costs in criminal cases are the same as in civil cases. Bozel v. United States, 139 F.2d 153, 157 (6th Cir. 1943), cert. denied, 321 U.S. 800, 88 L. Ed. 1087, 64 S. Ct. 937 (1944); 2 Wright, Federal Practice and Procedure: Criminal § 528, at 432 (1969). All of the Federal Rules of Civil Procedure, including Rule 54(d) relating to costs, must be interpreted in light of Rule 1, which provides that the rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis added.) To permit the Government to recover its costs now, appellants argue, would violate the directive of Rule 1. In so arguing, the appellants rely on United States v. Pinto, 44 F.R.D. 357 (W.D. Mich. 1968), in which a delay of almost four years in presenting a bill of costs was held to violate the provisions of Rule 1. As further evidence that the delay in the present case is unreasonable, the defendants point out that where local court rules have been adopted on the subject, the time limit for filing a bill of costs is typically 10 days. If 10 days is a reasonable period, appellants contend, eight years must surely be unreasonable.
Two factors cause us to find the defendants' contention of laches unpersuasive. First, during the eight years between the entry of judgment and the filing of the bill of costs, appellants pursued a series of appeals. United States v. Pinto is clearly distinguishable since in that case there was a simple consent judgment with no appeals following. Moreover, the Government did, in the present case, file its bill within one year of the entry of the final order. Second, there was no local rule relating to the time for filing a bill of costs in existence when the judgment was entered.*fn1 The cases cited by appellant dealing with delay where there is such a local rule are, therefore, inapplicable to the situation before us. We are unwilling to declare that the mere fact of an excess of time over that specified in local rules in other jurisdictions is ipso facto unreasonable. In the absence of such a local rule, the circumstances of the particular case must be considered in determining whether the delay was reasonable. While eight years is obviously a long time, nevertheless -- in view of the complicated nature of the case, the series of appeals encompassing seven years, the fact that the bill was filed within one year after the final culmination of the case, the obvious situation that the costs were not going to be paid until every appellate avenue had been exhausted, and the absence of a local rule -- we are unable to say the delay violates Rule 1. Therefore, the district court did not abuse its discretion in taxing costs to appellants.
The bill of costs assessed against the appellants includes fees for approximately 28 witnesses who were subpoenaed but who never testified. The Government acknowledges that the longstanding rule of this circuit is that a presumption exists that the testimony of such witnesses was not material and, therefore, the fees attributable to these witnesses are not chargeable.
"When witnesses are subpoenaed, but do not testify, the presumption is that their testimony was not material and that they were unnecessarily brought to court, and . . . the fees of such witnesses are not chargeable against the losing party." United States v. Lee, 107 F.2d 522, 527 (7th Cir. 1939), cert. denied, 309 U.S. 659, 84 L. Ed. 1008, 60 S. Ct. 513 (1940).
This presumption may be rebutted by proving to the trial court that these nontestifying witnesses were, in fact, material and necessary to an issue in the case. Thus, in United States v. Lee, supra, this court affirmed the granting of such costs where the district court had acted on the basis of duly verified affidavits. Similarly, in Federal Savings & Loan Ins. Corp. v. Szarabajka, 330 F. Supp. 1202 (N.D. Ill. 1971), the judge granted such costs after reviewing the depositions of the nontestifying witnesses.
Unlike Lee and Szarabajka, Government counsel here did not produce statements of the nontestifying witnesses or explain how the proposed testimony of each such witness was necessary to its case. Rather, Government counsel merely asserted, without presenting any foundation, that the testimony of all subpoenaed witnesses was necessary. Such a bald assertion is not sufficient to rebut the presumption of immateriality. The Government contends that the district judge had "intimate firsthand knowledge" of the case and, therefore, no further explanation of the necessity of the nontestifying witnesses was required. This contention is without merit for even if the busy trial judge's memory could successfully span nearly a decade as to what witnesses' testimony was relevant and material to an issue in the case and reasonably necessary to its disposition, Federal Savings & Loan Ins. Corp. v. Szarabajka, 330 F. Supp. 1202 (N.D. Ill. 1971), we cannot conceive that he could have applied the test to witnesses who did not reach the stand.
As the matter stands on this appeal, the presumption of immateriality by the nontestifying witnesses has not been rebutted. It certainly was not rebutted, in our opinion, by the suggestion in a district court brief filed by the Government, that perhaps these witnesses were to identify the voluminous documents gathered by the prosecution and that their testimony was ultimately deemed unnecessary. Therefore, it is necessary that we reverse the district court's order insofar as it pertains to the costs of the 28 witnesses. This is not so much a matter of ...