
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          May 3, 1995           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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, First            ______________                               ______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Although  appellant  raises  a number  of                 ___________            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                                             ___            Cong.,  2d Sess.  2  (1991), reprinted  in 1992  U.S.C.C.A.N.                                         _____________            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                           ___  ______    _______            (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,                                                                     ___            e.g.,  Sandstrom v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir.            ____   _________    ______________            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,                                   _____     _____________            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                                 ________     __________            (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                               ___            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,                                            ___            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.                 ________                                         -4-
