Opinion
Walter L. Rice, Sp. Asst. to Atty. Gen., for the United States.
Edward J. McGratty, Jr. (of Sullivan & Cromwell), of New York City, for defendants.
MACK, Circuit Judge.
Defendants object to the taxation of the mileage paid to witnesses living in other districts and more than 100 miles from Manhattan, to the extent that such mileage exceeds that allowable for 100 miles each way. The amount involved is in excess of $3,500.
The specific point of objection is that no notice was given to defendants when applications were made for orders permitting subpoenas to issue to such witnesses and that defendants were without knowledge thereof until very recently. As against this, the government states that it has never been the practice in this district to serve notice of such applications but that they are invariably made ex parte. Nevertheless, the government expresses a willingness to have me now determine whether the witnesses so served were unnecessary.
No decision of a similar contest has been cited or found. While it is quite true that, if notice had been given, defendants might well have convinced the judge to whom the application was made that an unnecessary expense would be incurred, inasmuch as it might have shown that the evidence would be cumulative or that defendants would offer to stipulate that the witness would testify to whatever the government might be ready to state, nevertheless, inasmuch as neither by statute nor by rule of this court is notice of such an application required and ex parte applications seem to have been the practice, defendants' objections on this ground must be overruled.
Furthermore, I must decline the government's offer to determine»now whether any of the witnesses were unnecessary, as that would involve, in a measure, sitting in review of the action of the judge to whom the application was made and who must be presumed to have given it consideration before entering the order.
Application for retaxation of costs is therefore denied.