Exploring Vogt’s approach

He believes that he has the duty to report his beliefs that a felony may have been committed to a judge and that said judge has the obligation to bring this to the attention of a grand jury. Let’s explore some of this in more detail:

“Misprision of felony” is still an offense under United States federal law after being codified in 1909 under 18 U.S.C. § 4:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

This offense, however, requires active concealment of a known felony rather than merely failing to report it.

In other words, when Vogt asks the court to somehow relieve him of misprision, something the court cannot do, he has to be worried that he is actively concealing the felony. Since he has reported on his findings widely, there is no support that he would or could be held accountable. The real problem is that the misprision statute does not requires a judge or law enforcement officers to take the report seriously. Just because someone reports what he or she believes to be a felony, does not make it so.

Furthermore, there is no further obligation for the judge to do anything with such a report as we will see later.

In United States v. Johnson 546 F. 2d 1225 1977 the Fifth Circuit observed

The factual basis of defendant’s plea does not demonstrate the existence of “concealment,” an essential element of the offense of misprision. The record of defendant’s plea fails to reveal that he took ” affirmative steps to conceal the crime of the principals.” United States v. Daddano, 432 F.2d 1119, 1124 (7th Cir. 1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971); Neal v. United States, 102 F.2d 643, 649-650 (8th Cir. 1939). The mere failure to report a felony is not sufficient to constitute a violation of 18 U.S.C.A. § 4. Lancey v. United States,356 F.2d 407 (9th Cir.), cert. denied, 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (1966).

Vogt is trying to have his arguments be brought in front of a Grand Jury but as he has found out, such right does not exist.

Worse, there is not even evidence of a felony other than some broad speculations involving a conspiracy…

18 USC 3332

It shall be the duty of each such grand jury impaneled within any judicial district to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district. Such alleged offenses may be brought to the attention of the grand jury by the court or by any attorney appearing on behalf of the United States for the presentation of evidence. Any such attorney receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney’s action or recommendation.

These offenses were not committed within the district in question, the grand jury may be informed. So now the only question is, if any such attorney, meaning the district attorney in charge, has been informed of an alleged felony, if such activities have to be brought in front of the special grand jury. Note that while the Judge may bring such alleged offenses to the grand jury, only the attorneys have to present such information. The question is, can one force the attorneys to do so and the answer is a likely no.

The courts have looked at the history of 18 USC 3332

The legislative history of the Organized Crime Control Act of 1970 indicates that the Special Grand Jury was created as an instrument to investigate organized crime in areas where such criminal activity was evident.

Korman v. United States, 486 F. 2d 926 – Court of Appeals, 7th Circuit 1973

but

Special grand juries have broad investigative powers. Section 3332(a) directs these grand juries to “inquire into offenses against the criminal laws of the United States alleged to have been committed within that district.” 18 U.S.C. § 3332 (1970). The legislative history confirms the breadth of the general mandate bestowed by this section. These grand juries are not restricted to investigating only organized crime activities. “The purpose of these provisions is to make available a sufficient number of grand juries in each judicial district to accommodate the general needs of the district and the special needs of the typically lengthy organized crime case.”

United States v. Koliboski, 732 F. 2d 1328 – Court of Appeals, 7th Circuit 1984

In Simpson v. Reno, 902 F. Supp. 254 – Dist. Court, Dist. of Columbia 1995 the court explains that a mandamus is an extraordinary writ, and since the judge is not obliged by USC 3332 to forward the complaint to the Grand Jury, Vogt’s choices appear to be limited.

A writ of mandamus is “an extraordinary remedy, to be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988); In re Halkin, 598 F.2d 176, 198 (D.C.Cir.1979). Plaintiffs must demonstrate that they lack adequate alternative means to obtain the requested relief, that the defendants have a peremptory duty to act, and that their right to the issuance of the writ is clear and undisputable. Council of and for the Blind of Delaware Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C.Cir.1993). Even were these requirements satisfied, the issuance of the writ is within the sound discretion of the court. Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976).

The court continues, rejecting claims that a grand jury MUST be convened, or that they have a right to appear before said grand jury, and observes

Legislative history is clear that the United States Code provisions pertaining to special grand juries were designed to combat “such illegal endeavors as syndicated gambling, loan sharking, the theft and fencing of property, the importation of drugs, and other forms of social exploitation …” associated with organized crime. P.L. 91-452, reprinted in 1970 U.S.C.C.A.N. 1073. In enacting the Organized Crime Control Act, Congress intended to limit these special grand juries to “districts in which organized crime was most prevalent.” United States v. Fein, 504 F.2d 1170, 1180 (2d Cir.1974).[1] Plaintiffs do not 258*258 allege that the unilateral actions of state and federal judges in Missouri are in any way linked to organized crime.

Plaintiffs have failed to establish a clear violation of any criminal statute of the United States.

And the final nail in the coffin

Mohwish’s request that his evidence be presented to the grand jury is, unlike his other requests, at least plausible. Section 3332 says on its face that the U.S. Attorney “shall” present to the grand jury information provided by “any person,” and one district court has held that any person has standing to enforce this duty. See In re Grand Jury Application, 617 F.Supp. 199 (S.D.N.Y.1985) (granting mandamus to enforce § 3332); see also Simpson, 902 F.Supp. at 254 (dictum). In our view, however, Mohwish does not have standing to enforce the statute.

In order to have standing to sue in federal court, Article III of the Constitution of the United States requires that a complainant have suffered an injury in fact, which the Supreme Court has defined as the invasion of a concrete, imminent, and legally cognizable interest.

Sargeant v. Dixon, 130 F. 3d 1067 – Court of Appeals, Dist. of Columbia Circuit 1997

Vogt may claim that he is not bringing any suit but in that case, the court has no jurisdiction to become involved.

Plaintiff seeks an order compelling a grand jury investigation, but the United States Attorney General has absolute discretion in deciding whether to investigate claims for possible criminal or civil prosecution. As a general rule applicable to the circumstances of this case, such decisions are not subject to judicial review. Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480-81 (D.C.Cir. 1995). Moreover, plaintiff “seeks to have the evidence of criminal wrong doing presented to the grand jury under 18 U.S.C. § 3332,” Compl. ¶ 14, but no private right of action is available under the criminal statutes. See Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit, 248 F.Supp.2d 17, 22 (D.D.C.2003) (“[T]he 4*4 plaintiff is precluded from asserting any claims pursuant to 18 U.S.C. § 242 . . . because, as criminal statutes, they do not convey a private right of action.”); 28 U.S.C. § 547(1) (stating that the United States Attorney “shall prosecute for all offenses against the United States”). Defendants’ motion to dismiss the claim for a writ of mandamus therefore is granted.

Hantzis v. Grantland, 772 F. Supp. 2d 1 – Dist. Court, Dist. of Columbia 2009

So Vogt is faced with a dilemma here: Either he files a mandamus against the attorneys to force them to bring the matter to the attention of a Grand Jury, assuming that a special grand jury is in session, or he reports the information to the judge who needs to do nothing with it. The judge assumed the most reasonable explanation for the filing and ruled that the court lacked jurisdiction, which ends any hopes for a lawsuit and ruling. Alternatively, the judge could have taken notice of the filings and done nothing. If Vogt wants the judge to rule that he is not guilty of misprision, then again he needs to do this through a lawsuit but the court will rule that it is not in a position to do so as Vogt lacks standing, as the issue at hand is not a real controversy.

One thought on “Exploring Vogt’s approach

  1. Let’s not forget two other crucial points:

    1. The PDF is an “image”, not a “document”, and cannot be “forged”, legally speaking.

    2. If Vogt’s imaginary “forgery” were an actual crime, he didn’t report it “as soon as possible” to one of the specified federal authorities, so he _would_ be guilty of misprision.

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