The opinion of the court was delivered by: MARSH
On February 1, 1974, a motion was filed by Clifford L. Tuttle, Jr., attorney for Kenneth Drager, designated as prosecutor, for leave to file a criminal complaint against Ernest Panza, alleging violations of the United States Code, Title 18. The motion asserts that the United States Attorney for the Western District of Pennsylvania refused to consent to the filing of the complaint.
Oral argument was heard on February 12, 1974. A written brief was submitted by Mr. Tuttle on behalf of Mr. Drager. The United States Attorney submitted no brief.
After review of the applicable case law, it appears that private citizens have no right to institute criminal prosecutions in federal court, and the motion for leave to file a criminal complaint must be denied.
Initially it is observed there is a long line of cases holding that federal courts have no jurisdiction over cases prosecuted in the name of the United States unless they are prosecuted by the United States Attorney. The early case most frequently cited is Confiscation Cases, 74 U.S. 454, 7 Wall 454, 19 L. Ed. 196 (1869). In that case the Attorney General moved to dismiss libels for condemnation and forfeiture of vessels which had "been employed in aid of the rebellion, with the consent of the owners." The court observed that the law, 12 Stat. at Large 319, provided for confiscation of any property used in aiding, abetting, or promoting insurrection against the government of the United States. The informer objected to discontinuance of the prosecutions. In granting the motions to dismiss, the Supreme Court said, 74 U.S. at 457:
Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the district attorney, and even after they are entered in court, they are so far under his control that he may enter a nolle prosequi at any time before the jury is empanelled for the trial of the case, except in cases where it is otherwise provided in some act of Congress.
Settled rule is that those courts [district and circuit] will not recognize any suit, civil or criminal, as regularly before them, if prosecuted in the name and for the benefit of the United States, unless the same is represented by the district attorney, or some one designated by him to attend to such business in his absence, as may appertain to the duties of his office.
Another early case was United States v. Stone, 8 F. 232 (C.C.Tenn.1881), in which the defendant argued his confession had been improperly admitted into evidence because it had been extracted by a private detective. The court noted that confessions obtained by threats of harm or promises of favor by "persons in authority" were to be excluded from the hearing of judicial tribunals. However, the private detective was not such a "person in authority." The court stated, 8 F. at 260, 261:
We have in our courts no such quasi officer as a prosecutor, as known to the common law and our state practice. At common law some person, generally the party injured, though it might be another person, must be named as prosecutor, except in special cases. And without this there could be no prosecution . . . But under our federal practice from the earliest times, and by force of the statute, the district attorney is the only prosecutor known to our law; and as a matter of fact, in this court, at least, no private prosecutor has ever been recognized.
More recently, defendants have argued that their convictions were void because their trials were prosecuted by government attorneys who were not duly appointed Assistant United States Attorneys. Home News Publishing Company v. United States, 329 F.2d 191 (5th Cir. 1964); United States v. Denton, 307 F.2d 336 (6th Cir. 1962). In both cases the Courts of Appeals found the convictions were valid because the prosecutions had been initiated and supervised by the office of the United States Attorney. In Home News the Assistant United States Attorney had introduced, at the beginning of the trial, the two attorneys from the Department of Labor who were to try the case. The court stated, 329 F.2d at 192: