In Re Robert C. Kochel, Sr.

829 F.2d 35, 1987 U.S. App. LEXIS 11443, 1987 WL 44732

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 28, 1987
• Docket: 87-8014
• Status: Unpublished

Opinion

829 F.2d 35
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
In re Robert C. KOCHEL, Sr., Petitioner.

No. 87-8014

United States Court of Appeals, Fourth Circuit.

Submitted May 29, 1987.
Decided August 28, 1987.

Robert C. Kochel, Sr., petitioner pro se.

Before K.K. HALL, JAMES PHILLIPS DICKSON and WILKINSON, Circuit Judges.

PER CURIAM:

Robert Kochel, Sr. seeks a writ of mandamus to compel a United States Magistrate to charge certain individuals with conspiracy under 18 U.S.C. Sec. 242. We decline to issue the writ.

The authority to decide against whom federal indictments shall be sought lies not with the courts, but almost exclusively with the United States Attorneys or the Justice Department, and their decisions in this regard are not generally subject to judicial review. See Massey v. Smith, 555 F.2d 1355 (8th Cir. 1977); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973). The discretionary power of an attorney for the United States in determining whether a prosecution should be commenced or maintained may depend upon matters of policy wholly apart from any question of probable cause, and the courts should not interfere with the free exercise of these discretionary powers. Smith v. United States, 375 F.2d 243, 248 (5th Cir.), cert. denied, 389 U.S. 841 (1967). This Court has recognized that 'a prosecuting attorney 'is the representative of the public in whom is lodged a discretion . .. which is not to be controlled by the courts or by an interested individual . . .." Ganger v. Peyton, 379 F.2d 709, 713 (4th Cir. 1967) (emphasis in original) (quoting United States v. Brokaw, 60 F. Supp. 100, 101 (S.D. Ill. 1945)).

Accordingly, we dispense with oral argument because the dispositive issues recently have been decided authoritatively. Leave to proceed in forma pauperis is granted. The petition for a writ of mandamus is denied, and the action is dismissed.

DISMISSED.