USCA1 Opinion

May 3, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-2010
UNITED STATES,
Appellee,
v.
BRIAN J. RAINERI, SR.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Chief Judge,
___________
Cyr and Stahl, Circuit Judges.
______________
____________________

Brian J. Raineri, Sr. on brief pro se.

_____________________
Paul M. Gagnon, United States Attorney, and Peter E. Papps, Fi
______________
______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
issues in
appeal

his brief,

appellant

raises

we have jurisdiction

a number

solely over

of
his

from a district court order denying his request to be

certified

as a witness for

provisions of 28
stated

Although

U.S.C.

payment of fees
1821.

by the district court

pursuant to the

We affirm for

in its order

the reasons

dated August 29,

1994, adding the following comments.

Pursuant

to

28

U.S.C.

Incarcerated Witness Fees Act,

at

the time he testifies

1821,

as

amended

by

the

a witness who is incarcerated

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

expenses paid
Cong.,

not

Cir.

Appellant's

Cf.
___

1986)

the

does

Ex

Post

Facto

Peeler v. Heckler,
______
_______
(suspending social

felons

U.S.C.C.A.N.

not

Clause

of

781 F.2d 649,

benefits

nonpunitive

goal

furthers

violate

the Ex

Post

Facto

to the

the

651-52

security

equal protection challenge

waived because
e.g.,
____

H.R. Rep. No. 194, 102d

(1991), reprinted in 1992

_____________

violate

incarcerated
therefore,

See
___

have their

Since its purpose is not punitive, the amendment

Constitution.
(8th

incarceration, already

by the taxpayer.

2d Sess.

1465, 1466.
does

of their

of
and,

Clause).

amendment is

it was not raised in his opening brief.

See,
___

Sandstrom v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir.

_________
______________

1990).

We

"[i]t is

add, however, that

hardly irrational

prisoner witnesses."

this challenge fails

to deny fees

Moran v.
_____

because

and allowances

United States, 18
_____________

to

F.3d 412,

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

Supreme

Court,

(1991),

held

entitlement

in

immediately.
Demarest
________

that

1821

which

the

did

year shall

498

U.S.

except prisoners

184
from

Congress passed appropriations

in

pertinent

U.S.C. 1821, no funds

Department of Justice in

fiscal

not

provided

"[n]otwithstanding 18

months after the

v. Manspeaker,
__________

to witness fees,

legislation

Within

that

appropriated to

fiscal year 1991

be obligated

part

or expended

or any prior
to pay

a fact

witness fee to a

person who is incarcerated testifying

as a

fact

Dire

witness in

Emergency

Supplemental

Operation

of

Tit.

fiscal year

II

United

Food

Administration,

Pensions, and Other

provisions

the

Appropriations

Desert/Storm,

Compensation

102-27,

court

102,

105

were contained in

for Consequences

Stamps,

Veterans

Urgent Needs

States."

Unemployment

Compensation

Act of 1991,
Stat.

130,

of

Pub. L.

136.

and
No.

Similar

appropriations legislation for

1992, see Departments of

___

Commerce, Justice, and

State, the Judiciary, and Related Appropriations Act of 1992,

-3-

Pub.

L. No.

(1991), and

102-140,

Tit. I,

fiscal year

110, 105

Stat. 782,

1993, see Departments

___

795

of Commerce,

Justice, and State, the Judiciary, and Related Appropriations

Act of

1993, Pub. L. No.

1828, 1841 (1992).

Affirmed.
________

102-395, Tit. I,

108, 106 Stat.

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