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  1. #1

    Default Can You Sue a Prosecutor for Not Charging a Defendant With Perjury

    My question involves criminal law for the state of: Texas, in a federal civil case

    I filed complaints against Defendant’s perjury (happened in depositions and declarations) at FBI and DOJ. What should I do if they refuse to charge against the persons committed the perjury? I have provided more than few 50 evidences from deposition and declarations to prove Defendant's witness committed perjury. In the civil courts, I presented, asked and filed motions, briefs to the judges. However, judges ignored my requests and issued Summary Judgment Order without trial and appeal court affirmed the decision from district court. All of the judges' orders did not address any of my complaints and evidences. As of today, defendant has never challenge or dispute my allegations or complaints about false statements, forge documents and perjury.

    In the letter Assistant United States Attorney (AUA)sent to me, he stated "It is my opinion that the allegations of perjury you have made cannot be proven beyond a reasonable doubt. I also believe that the prosecution of this case would not serve a substantial federal interest". However, in a similar situation, the same Assistant United States Attorney prosecuted a witness using a video to prove her testimony was false and committed perjury last year. In my case, I presented a photo evidence (can be forensic evidence certified) which can prove witness's declaration was false and committed perjury. I also presented the indisputable evidences which show that was forged by Defendant, to which the AUA considered as a mistakes. I am contacting DOJ office leader to review the decision. If DOJ decide to declining my requests for charging Perjury, tampering the evidence and contempt court order, can I file a lawsuit against DOJ?

  2. #2
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    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    Not a worthwhile suit, no. It is the prosecution's choice whether to prosecute any possible crime.

  3. #3
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    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    You don't have the right to have someone prosecuted.

  4. #4

    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    In that similar case, former US attorney Kenneth Magidson stated that “The integrity of the judicial system requires truthfulness from all witnesses in legal matters in order for justice to prevail.” “When perjury allegations are referred to us, we work closely with investigators to determine whether to seek federal criminal charges. We do not take allegations of perjury lightly in any proceeding - civil or criminal - and will pursue those that attempt to undermine the reliability of our legal processes.”

    Can I file a law suit to challenge the prosecution's choice (discretion) whether to prosecute any possible crime? Or charge them acted negligently in not prosecuting when having enough viable evidence to convict?

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    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    A person lying under oath rarely rises to the level of Perjury. Lying under oath and Perjury are not the same thing. You need to move on and spend your tine, energy and money on other things.

  6. #6

    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    If I got hurt and harmed by defendant's actions, do I have rights to get fully explanations from DOJ the reasons not prosecute those offenders? Purjury is one of the most serious offenses based on guidance from USAM 9-27.300, refered to 18 U.S.C. § 1621, 1622, 1623 and CRM 1741-1767. Tampering the evidence and contempt court order are also serious offenses and crimes. Who has the right to have someone prosecuted? Judge has this right? A citizen does not have this right?

    I know perjury need to meet four elements: under oath, false statement, intent and materiality.

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    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    Quote Quoting fgworld
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    If I got hurt and harmed by defendant's actions, do I have rights to get fully explanations from DOJ the reasons not prosecute those offenders? Purjury is one of the most serious offenses based on guidance from USAM 9-27.300, refered to 18 U.S.C. § 1621, 1622, 1623 and CRM 1741-1767. Tampering the evidence and contempt court order are also serious offenses and crimes. Who has the right to have someone prosecuted? Judge has this right? A citizen does not have this right?

    I know perjury need to meet four elements: under oath, false statement, intent and materiality.
    What did your attorney say?

    If you're still representing yourself, I don't know what else we can say. To answer your question, no, a citizen does not have an inherent right to decide whether or not charges will be filed. It really is that simple.

  8. #8
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    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    Quote Quoting fgworld
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    In that similar case, former US attorney Kenneth Magidson stated that “The integrity of the judicial system requires truthfulness from all witnesses in legal matters in order for justice to prevail.” “When perjury allegations are referred to us, we work closely with investigators to determine whether to seek federal criminal charges. We do not take allegations of perjury lightly in any proceeding - civil or criminal - and will pursue those that attempt to undermine the reliability of our legal processes.”

    Can I file a law suit to challenge the prosecution's choice (discretion) whether to prosecute any possible crime? Or charge them acted negligently in not prosecuting when having enough viable evidence to convict?

    No. It is not up to you

    as to having enough evidence; their determination, not yours

    Quote Quoting fgworld
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    If I got hurt and harmed by defendant's actions, do I have rights to get fully explanations from DOJ the reasons not prosecute those offenders? Purjury is one of the most serious offenses based on guidance from USAM 9-27.300, refered to 18 U.S.C. § 1621, 1622, 1623 and CRM 1741-1767. Tampering the evidence and contempt court order are also serious offenses and crimes. Who has the right to have someone prosecuted? Judge has this right? A citizen does not have this right?

    I know perjury need to meet four elements: under oath, false statement, intent and materiality.
    A judge actually doesn't have this right either. The prosecuting attorney has some discretion whether to seek prosecution or not.

    No you do not have the right to have an explanation of why the prosecutor will not seek to prosecute the case but in your case you got an explanation.


    It is my opinion that the allegations of perjury you have made cannot be proven beyond a reasonable doubt. I also believe that the prosecution of this case would not serve a substantial federal interest

    As of today, defendant has never challenge or dispute my allegations or complaints about false statements, forge documents and perjury.
    and why would they? The place to defend themselves would be in court. If they are not prosecuted the smartest thing to do is just remain silent on the issue.

  9. #9

    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    In that similar case, I was told the witness was indicted for perjury because the judge told FBI/DOJ to do so. After I challenged FBI agents about "Judge has the right vs. citizen does not has the right", FBI agreed that I filed my complaints. However, the DOJ declined the charges by that AUA who's actions were very suspicious.

    According to DOJ CRM 1748. Elements of Perjury—Materiality, In United States v. Gaudin, 115 S.Ct. 2310, 2320 (1995), a unanimous United States Supreme Court held that in a prosecution under 18 U.S.C. § 1001 the jury must determine "beyond a reasonable doubt [the defendant's] guilt of every element of the crime with which he is charged." Following Gaudin, the better practice is to allow the jury to decide the issue not just one AUA.

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    Default Re: Can I Sue Us Attorney's Office for Not Charging Perjury Against Defendant

    Quote Quoting fgworld
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    Can I file a law suit to challenge the prosecution's choice (discretion) whether to prosecute any possible crime? Or charge them acted negligently in not prosecuting when having enough viable evidence to convict?
    You would lose an effort to get a court to compel the DOJ to pursue the perjury case. Where a public official has the authority to exercise discretion in a matter then it is up to that official how he or she chooses to act. It is not the role of the courts to tell executive agency officials how to do their jobs. A lawsuit to compel a public official to carry out some act of his office is known as a writ of mandamus. The rule in the federal system is that a court may issue a writ of mandamus to compel a public official to carry out a purely ministerial act (i.e. one that requires no discretion on the part of the public official) but a court cannot compel a public official to do an act that falls under his/her discretion. The rule is an old one. As far back as the case of Marbury v. Madison (which is famous for another principle not relevant here) the Supreme Court made this very distinction:

    The secretary of state acts, as before observed, in two capacities. As the agent of the President, he is not liable to a mandamus; but as a recorder of the laws of the United States; as keeper of the great seal, as recorder of deeds of land, of letters patent, and of commissions, &c. he is a ministerial officer of the people of the United States. As such he has duties assigned him by law, in the execution of which he is independent of all control, but that of the laws. It is true he is a high officer, but he is not above law. It is not consistent with the policy of our political institutions, or the manners of the citizens of the United States, that any ministerial officer having public duties to perform, should be above the compulsion of law in the exercise of those duties. As a ministerial officer he is compellable to do his duty, and if he refuses, is liable to indictmen

    Marbury v. Madison, 5 U.S. 137, 149–50, 2 L. Ed. 60 (1803). And again, a few decades later, the Supreme Court stated the following:

    The Court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion, or judgment. Nor can it by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties.

    Decatur v. Paulding, 39 U.S. 497, 515, 10 L. Ed. 559 (1840). It is not the role of the courts to tell the executive branch how to carry out its discretionary functions. The courts are not to dictate how the executive branch functions. The Supreme Court in Decatur makes this very point:

    The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them. Upon the very subject before us, the interposition of the Courts might throw the pension fund, and the whole subject of pensions, into the greatest confusion and disorder.

    Id. And while it is an old rule, it is still very much the current law. In a case involving a similar situation in which a person who sought mandamus to compel the FBI to undertake certain investigations and take certain enforcement action, the a federal district court stated:

    Mandamus may be used to compel a specific duty or act, but may not be used where the order would interfere with the exercise of a discretionary act....Golub's claim is focused on what the FBI should be doing and how it should be done. The claim does not rest on any duty owed by the FBI to him. The kind of agency action that Golub challenges here, the failure to investigate or take enforcement action against certain alleged illegal activities, is a decision generally committed to an agency's absolute discretion. See Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (citations omitted). Because it is discretionary, an agency decision not to investigate or enforce is not suitable for judicial review. Id.

    Golub v. F.B.I., No. 1:09-CV-01064-TWP, 2010 WL 3523009, at *1–2 (S.D. Ind. Aug. 31, 2010).

    Nor may you sue the federal government for money damages for this. The federal government is immune from suit for money damages under the doctrine of sovereign immunity except to the extent Congress has waived sovereign immunity and consented to be sued. The Congress enacted the Federal Tort Claims Act as a waiver of immunity allowing citizens to sue for injuries from most negligent acts of federal officials. The problem is that this is not a negligence matter. The government does not owe you or any other specific individual a duty to prosecute a crime. Rather, the government prosecutes crimes for the benefit of society as a whole. Without a specific duty owed to you there is no good negligence action. There is also a waiver of sovereign immunity for instances where the government has violated your civil rights, but declining to prosecute a crime is no violation of any of your civil rights. You do not have a right to compel the government to prosecute any matter.


    Quote Quoting fgworld
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    According to DOJ CRM 1748. Elements of Perjury—Materiality, In United States v. Gaudin, 115 S.Ct. 2310, 2320 (1995), a unanimous United States Supreme Court held that in a prosecution under 18 U.S.C. § 1001 the jury must determine "beyond a reasonable doubt [the defendant's] guilt of every element of the crime with which he is charged." Following Gaudin, the better practice is to allow the jury to decide the issue not just one AUA.
    The DOJ has limited resources. It cannot prosecute all crimes in which the government might have at least met probable cause (which is a pretty low standard). And indeed, given the higher standard that applies at trial of guilt beyond reasonable doubt, many cases that meet probable cause would be lost because the government cannot meet the higher standard of beyond reasonable doubt. It is exactly for this reason that the DOJ has the discretion to decide which cases to bring: it needs to put its limited resources into those cases that are the strongest and that the DOJ could likely win at trial and that are the most important in meeting the policies of the government in reducing crime, etc. DOJ officials are charged with making those decisions about which cases they should bring and which to let go. It's fine to say the jury should decide, but the government should not bring a case in which it has doubts that it can prove beyond a reasonable doubt. Doing that wastes government resources and is not fair to a defendant who must endure the costs and stress of prosecution when the case never really should have been brought in the first place.

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