Why Vogt failed and why SCOTUS will deny cert

Douglas Vogt sent a “notice of commission” to a Federal Judge in the state of Washington insisting that the judge affirms that Vogt had discharged his notice obligations under the Federal Misprision Statutes and that the Judge summons a Grand Jury to hear Vogt’s speculations about crimes that may have taken place with respect to President Obama’s Certificate of Live Birth.

The misprision statutes however require one to willfully conceal the knowledge and fail to be relevant to Vogt.

The elements of the crime of misprision of felony are: (1) the principal committed and completed the felony alleged (here, the possession and concealment of counterfeit money); (2) the defendant had full knowledge of that fact; (3) the defendant failed to notify the authorities; and (4) the defendant took an affirmative step to conceal the crime. United States v. Hodges, 566 F.2d 674, 675 (9th Cir.1977). Ciambrone argues on appeal that his conviction cannot stand because the undisputed facts show that he did not take an affirmative step to conceal a crime. His argument raises the question whether his truthful but partial disclosure of his knowledge of the commission of a felony constitutes such an affirmative step.[2]

1418*1418 The starting point of our analysis is the proposition that “[m]ere silence, without some affirmative act, is insufficient evidence” of the crime of misprision of felony. Lancey v. United States, 356 F.2d 407, 410 (9th Cir.), cert. denied, 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (1966).

Source: United States v. Ciambrone, 750 F. 2d 1416 – Court of Appeals, 9th Circuit 1985

Misprision of a felony “require[s] both knowledge of a crime and some affirmative act of concealment or participation.” Id. at 696 n. 36, 92 S.Ct. 2646. See, for example, United States v. Gravitt, 590 F.2d 123, 125-26 (5th Cir.1979) (requiring “affirmative action to conceal the crime” for conviction of misprision of a felony). Thus, mere failure to report a known felony would not violate 18 U.S.C. § 4. United States v. Johnson, 546 F.2d 1225, 1227 (5th Cir.1977).

Source: Itani v. Ashcroft, 298 F. 3d 1213 – Court of Appeals, 11th Circuit 2002

Similarly, filing a notice under the misprision statutes does not provide Vogt either a right of action or with standing in court. In addition, misprision of felony has become restrained by legal precedent.

As Mr. Chief Justice Marshall stated: “It may be the duty of a citizen to accuse every offender, and to proclaim every offense which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man.” Marbury v. Brooks, 7 Wheat. 556, 575-576 (1822).

The court, in its generosity, interpreted the filing as an Article III complaint and issued an order to show cause as to why the case should not be dismissed due to lack of jurisdiction. In the alternative case, the Judge would just have ignored the submission and have it filed as MISC. But instead, he gave Vogt an opportunity to make his legal case.

The court provided Vogt with the relevant precedents that show that the misprision statutes do not provide civil litigants with a private right of action, that he lacks standing, and that there is no right to have a judge forwards one’s complaints to a grand jury or summon such a grand jury. 18 USC 3332 also does not help since it uses the term “may” not “shall” and thus does not provide Vogt with a right as the decision is discretionary. Furthermore, the statute in question applies to Special Grand Juries.

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.

Sections 4 and 2382 of Title 18 define criminal offenses and do not provide civil litigants with a private right of action. Numerous courts have so held. See, e.g., Chen ex rel. V.D. v. Lester, 364 Fed. App’x 531, 536 (11th Cir. 2010) (affirming dismissal of civil suit under 18 U.S.C. § 2382 because statute does not provide private right of action); Apollo v. Peake , 306 Fed. App’x 584 (Fed. Cir. 2009) (“We are aware of no authority for the proposition that an alleged violation of the federal misprision of felony statute gives rise to a private right of action.”); Gage v. Kumpf, No. 12-2620 (FLW), 2012 WL 5630568, at *3 (D.N.J. Nov. 15, 2012) (“It is beyond cavil that there is no private cause of action to bring a claim pursuant to 18 U.S.C. § 4.”); Hysell v. Schwarzenegger, No. 1:10-cv-01233-AWI-GBC, 2012 WL 1130609, at *3 (E.D. Cal. Mar. 30, 2012) (“[N]either the statute itself nor any legal authority provides for a private cause of action under 18 U.S.C. §4.”); Carvel v. Ross, No. 09 Civ. 0722(LAK)(JCF), 2011 WL 856283, at *12 (S.D.N.Y. Feb. 16, 2011) (“The plaintiff also asserts a number of causes of action for which there are no private rights of action, including violations of 18 U.S.C. § 4 (misprision of felony) [and] 18 U.S.C. § 2382 (misprision of treason) . . . .”); Cobble v. Simpson, III , No. 3:09CV-682-R, 2009 WL 3423444 at *3 (W.D. Ky. Oct. 14, 2009) (“An alleged violation of the federal misprision of felony statute does not give rise to a private right of action.”); Pankey v. Webster , 816 F. Supp. 553, 559 (W.D. Mo. 1993) (“[Section] 4 defines a criminal offense and does not provide civil complainants with a private right of action.”); United States ex rel. Farmer v Kaufman, 750 F. Supp. 106, 108 (S.D.N.Y. 1990) (“There is no explicit authority for private citizens to bring suit under [18 U.S.C. § 4], nor will the court imply such authority.”).

Furthermore, even if Vogt were able to overcome this obstacle, he would still lack Article III standing.

When Vogt failed to respond sufficiently to the Judge’s request to explain under what authority the court should proceed, the Judge dismissed the case. Vogt objected that he never filed an Article III complaint, in which case the judge could have just taken notice of Vogt’s “notice of commission” and ignore anything else as there is clearly no right of action associated with such a communication with the court.

Vogt insists that jurisdiction was invoked under the misprision acts, and Federal Rules of Criminal Procedures Rule 6(a) but he was unable to show that there is any support for his claims as the statutes clearly do not provide Vogt with a right of action.

Vogt had tried to get the US Attorney to submit evidence to the Grand Jury

After failing to get a response from the U.S. Attorney pursuant to a request to submit evidence to the Grand Jury as required by 18 U.S.C. §3332,on October, 18, 2013, Vogt presented to the DistrictCourt Clerk for filing as a Miscellaneous matter a document captioned “In Re: Douglas Vogt” and titled: “Notice of Commission of (i) a Felony Cognizable by a Court of the United States as required by 18 U.S.C. §4 – Misprision of Felony and(ii) Treason against the United States as required by18 U.S.C. §2382 – Misprision of Treason and Motion to Seal Document” (“Notice of Commission”).

Note that Vogt never asked the Court to require the AG to submit Vogt’s materials to a Grand Jury but rather files a legally meaningless notice of commission of a felony under the Federal Misprision statutes, which, as Vogt soon was to find out, does not provide a civil litigant with any rights of action. Rather than pursuing a writ of mandamus against the AG, he requested that the court forwards his information to a Grand Jury. But the rules do not provide that the Court is under any obligation to do so.

Similarly, Rule 6 captures the summoning of a Grand Jury

(1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement.

However, it does not state that a Judge has to forward any particular complaint to said Grand Jury. Although Vogt tries to claim that:

Thus, the discretion of the Court to bring to the attention of the Grand Jury evidence of criminal behavior is removed when the “public interest” demands Grand Jury action.
He fails to distinguish between the meaning of summoning versus forwarding information evidence of what someone believes to be criminal behavior. Summoning refers to the act of convening a Grand Jury. It is likely that the Western District of Washington already has an empaneled Grand Jury. Furthermore 18 USC 3332 deals with a Special Grand Jury and 18 USC 3331 outlines how a Special Grand Jury is summoned.
Vogt has confused Rule 6 which deals with the regular Grand Jury with the Organized Crime Control Act of 1970, Title I, 18 U.S.C. §§3331 –3334.
Undeterred by the Judge’s findings, Vogt had proceeded to file a writ of mandamus with the 9th Circuit Court of Appeals to order the judge to ‘correct the docket’, to forward the complaint to the Grand Jury and to acknowledge Vogt’s discharge of the notice requirement under the misprision statutes.
It should have been clear that the extraordinary writ of mandamus was unwarranted given the circumstances and the Court quickly dismissed the case. Vogt argues that the Court should have given a ratio decidendi as per its duty, while failing to identify such duty.
In his appeal to the Supreme Court, Vogt accuses the Court of criminally falsifying a court record, but fails to provide any foundation for such a claim, beyond lamenting that instead of just accepting Vogt’s communication, the Judge gave Vogt an opportunity to present a legal argument in support of his claims.
Vogt fails to draw a similarity with the Certificate of nationality, but fails to appreciate that the relevant statutes state that one may apply for such a certificate.
There is no statute or rule which requires a court to take the actions insisted upon by Vogt filing a ‘notice of commission’. In fact, the Judge, by accepting the document as a legal filing, had already provided Vogt with a confirmation of discharge of his duty, even though there is no reason to believe that Vogt was even at risk under the Misprision statutes. If Vogt claims that there is a concomitant duty for the court to acknowledge Vogt’s submission then he faces an uphill battle, as such a duty clearly does not exist in law, and the court had nevertheless provided Vogt with an official record.
In the end, the Supreme Court will refuse to hear the case, as it refused to hear a similar case filed by Sibley. They were not impressed by Sibley’s arguments then and are unlikely to be otherwise inclined now.
Sibley’s third claim pertinent to this Petition sought, pursuant to 18 U.S.C. §3332, a writ of mandamus to require Machen to inform the grand jury of Sibley’s identity and Sibley’s allegations of Obama’s alleged wire fraud. In response, the District Court denied the mandamus request holding that: “18 U.S.C. §3332 cannot be enforced by private individuals.” (Appendix-9).