USA v. NH, State of et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
USA
v.
NH, State of, et al.
Case No. 1:20-mc-93-JL
REPORT AND RECOMMENDATION
Before the court is a criminal complaint filed by Amon Re, a private
citizen, 	seeking 	to 	institute 	a 	federal 	criminal 	prosecution 	for 	an
alleged violation of 18 U.S.C. § 242, 42 U.S.C. § 1983, 18 U.S.C. § 241,
18 U.S.C. § 245(c), 18 U.S.C. § 1347, and 18 U.S.C. § 1031. The matter
is before the 	court on preliminary 	review to determine 	whether it 	may
proceed. See LR 4.3(d).
“Generally, 	a 	private 	citizen 	has 	no 	authority 	to 	initiate 	a
federal 	criminal 	prosecution.” 	Cok 	v. 	Costentino, 	876 	F.2d 	1, 	2 	(1st
Cir. 1989) (per curiam); see also, Keenan v. McGrath, 328 F.2d 610, 611
(1st Cir. 1964) (per curiam). As was stated in Higgins v. Neal, 1995 WL
216920 (10th Cir. April 12, 1995) (footnotes omitted):
[The filing party] fails to cite any authority countering the
district court's judgment that he lacked standing to commence
a criminal prosecution against the prison officials sued in
the instant case. To support its judgment, the district court
relied on Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir.1964)
(per curiam) and Bass Angler Sportsman Soc'y v. United States
Steel 	Corp., 	324 	F. 	Supp. 	412, 	415 	(S.D. 	Ala.) 	(outlining
“the firmly established principle that criminal statutes can
only 	be 	enforced 	by 	the 	proper 	authorities 	of 	the 	United
States Government and a private party has no right to enforce
these sanctions”), aff'd, 447 F.2d 1304 (5th Cir.1971). Not
only 	do 	we 	find 	these 	authorities 	persuasive, 	we 	note 	that
courts 	universally 	endorse 	the 	principle 	that 	private
citizens cannot prosecute criminal actions. See, e.g., Cok v.
Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam) (“Only
the United States as prosecutor can bring a complaint under
18 U.S.C. 241-242 (the criminal analogue of 42 U.S.C.1983)”)
(citations omitted); Connecticut Action Now, Inc. v. Roberts
Plating Co., 457 F.2d 81, 86 (2d Cir. 1972) (“It is a truism,
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and 	has 	been 	for 	many 	decades, 	that 	in 	our 	federal 	system
crimes are always prosecuted by the Federal Government, not
as has sometimes been done in Anglo-American jurisdictions by
private 	complaints.”); 	Winslow 	v. 	Romer, 	759 	F. 	Supp. 	670,
673 	(D. 	Colo. 	1991) 	(“Private 	citizens 	generally 	have 	no
standing 	to 	institute 	federal 	criminal 	proceedings.”).
Because 	allowing 	private 	citizens 	to 	initiate 	prosecutions
would undermine prosecutorial discretion and the authority of
federal 	prosecutors, 	we 	conclude 	that 	[the 	filing 	party]
lacks standing to maintain this criminal action.
See also Fennick 	v. Kittredge, 2013 	U.S. Dist. LEXIS 	131911 (D. Mass.
Sept. 16, 2013) (“Moreover, section 547 of title 28 states that ‘[e]xcept
as 	otherwise 	provided 	by 	law, 	each 	United 	States 	attorney, 	within 	his
district, shall [ ] prosecute all offenses against the United States.’”).
For these reasons, Mr. Re lacks standing to bring a criminal complaint.
Accordingly, the court recommends dismissing the complaint.
Any 	objections 	to 	this 	report 	and 	recommendation 	must 	be 	filed
within 	fourteen 	days 	of 	receipt 	of 	this 	notice. 	See 	Fed. 	R. 	Civ. 	P.
72(b)(2). The failure to file objections within the specified time waives
the right to appeal the district court’s order. See United States v. De
Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011), cert. denied, 132 S. Ct.
1045 (2012); Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554,
564 	(1st 	Cir. 	2010) 	(only 	issues 	fairly 	raised 	by 	objections 	to
magistrate judge’s report are subject to review by district court; issues
not preserved by such objection are precluded on appeal).
SO ORDERED.
/s/ Andrea K. Johnstone
Andrea K. Johnstone
United States Magistrate Judge
Date: November 20, 2020
cc: Amon Re, pro se
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