Mirarchi v. United States Exec. Branch of Gov't

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ERCOLE A. MIRARCHI, Plaintiff, v. UNITED STATES EXECUTIVE BRANCH OF GOVERNMENT, et al., Defendants.

Civil Action No. 23-CV-1549

United States District Court, E.D. Pennsylvania

August 29, 2023

MEMORANDUM OPINION

Currently before me is the Amended Complaint (“Am. Compl.”) of pro se Plaintiff Ercole A. Mirarchi, wherein he alleges that an act of treason has occurred with respect to “Pennsylvania's 2020 Presidential and 2022 Governor and U.S. Senate Elections.”^[1]Mirarchi seeks leave to proceed in forma pauperis. For the following reasons, the Court will grant Mirarchi leave to proceed in forma pauperis, and the case will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

I. FACTUAL ALLEGATIONS

In the Amended Complaint, Mirarchi names the following Defendants (1) United States Executive Branch of Government; (2) United States Senator, PA, John Fetterman; (3) Department of Justice PA and WDC; (4) Federal Bureau of Investigation PA and WDC; (5) Securities and Exchange Commission WDC; (6) Central Intelligence Agency; (7) Commonwealth of Pennsylvania Executive Branch of Government; (8) Commonwealth of Pennsylvania Secretary of State; (9) Armstrong County PA Board of Elections; (10) Cable News Network, AKA “CNN”; (11) Edison Research; (12) Fairfax Financial Holdings; and (13) Marshall & Swift/Boeckh LLC. (Am. Compl. (ECF No. 8) at 1-2.)^[2]Mirarchi asserts that the following federal criminal statutes are at issue: (1) 18 U.S.C. § 2381 - Treason; (2) 18 U.S.C. § 2382 - Misprision of treason; (3) 18 U.S.C. § 2383 - Rebellion or insurrection; (4) 18 U.S.C. § 2384 - Seditious conspiracy; (5) 18 U.S.C. § 2385 - Advocating overthrow of Government; and (6) 18 U.S.C. § 2387 - Activities affecting armed forces generally. (Id. at 3.)

Mirarchi avers that he made a “report of treason” to this Court on April 20, 2023 that contains evidence demonstrating that the “Pennsylvania[] 2020 Presidential and 2022 Governor and U.S. Senate Elections were being manipulated in real-time, by an engineering process that mimicked features purported to be from the Central Intelligence Agency's Hammer and Scorecard vote-rigging system.” (Id. at 4.) Mirarchi avers that he sent a “report of treason” to the Pennsylvania Supreme Court pursuant to the misprision of treason statute, but the Pennsylvania Supreme Court declined review and advised him to file it with this Court. (Id. at 5.) Mirarchi alleges that “all Judges and Justices” have a

duty to review a report of treason when the President of the United States and the Governor of a State are not credible, or reliable, options to report it to; and when the local, state, and federal government corruption involved with the treason matter is far too great for an average citizen, whose livelihood was ruined by the corruption related to covering up the math logic used to engineer this heinous crime, to take on, on his own.

(Id. at 6.) Mirarchi contends that over the past ten years, he has suffered “many hardships and economic injuries” because of the “falsified records crime” that was allowed to go unpunished and unaddressed by the courts and other authorities, resulting in an attack against “the mechanics of our Elections System” and a “literal takeover of the highest offices in our State, and in our Nation, against the will of the People.” (Id. at 6-7.)

As relief, Mirarchi requests that the “Court perform its Constitutional duty” by reviewing all submissions in this matter “as a report of treason” and “investigate the crimes that took place by those who conspired to effect [sic] this treason and coup d'etat scheme” in order to bring it to the attention of “honest Law-enforcement and Justice Authorities who will act upon it.” (Id. at 7.) Mirarchi also contends that he “deserves a fair hearing” so “he can be made whole for the many hardships he endured over the past 10 years” and for his time and effort that “led him to uncover how this engineered attack on Pennsylvania's and our Nation's Election System” occurred that “others allowed to be buried at the expense of his livelihood and wellbeing, to protect and hide the crime of special interests.” (Id.)

In addition to the Amended Complaint, Mirarchi filed the following motions: (1) “Motion to make the EASTERN DISTRICT COURT aware the PENNSYLVANIA SUPREME COURT was also notified of this filing/report” (ECF No. 4); (2) Motion for Reconsideration and for This Filing to Remain a Report of Treason to the Court (ECF No. 7); (3) Motion to Support Plaintiff's Initial Filing, ECF Document 1 (ECF No. 11); (4) Motion for the Court to Review a New Finding (ECF No. 12); (5) Motion for the Court to Review Another New Finding (ECF No. 13); (6) Motion for the Court to Review Another New Finding (ECF No. 15); (7) Motion for the Court to Review Additional Analysis (ECF No. 16); (8) Motion for the Court to Review Additional Analysis (ECF No. 17); and (9) Motion for the Court to Review Additional Analysis (ECF No. 18). These motions reiterate Mirarchi's report of treason under 18 U.S.C. § 2382, request that this Court review his evidence, and then “take swift action to rectify the egregious events” that have been “covered up at the expense of his livelihood, and wellbeing for more than a decade.” (See, e.g., ECF No. 4 at 10 (bold omitted).)

II. STANDARD OF REVIEW

The Court will grant Mirarchi leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(i) requires the Court to dismiss the Complaint if, among other things, it is frivolous. A complaint is subject to dismissal under § 1915(e)(2)(B)(i) as frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is legally baseless if it is “based on an indisputably meritless legal theory,” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995), and factually baseless “when the facts alleged to rise to the level of the irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). As Mirarchi is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021).

III. DISCUSSION

Mirarchi's Amended Complaint, even when liberally construed, is frivolous and fails to state a legal basis for any claim within the Court's jurisdiction. Mirarchi asserts claims for treason pursuant to 18 U.S.C. §§ 2381-2385 and 2387, but these federal criminal statutes do not create a private right of action and cannot be relied upon by a civil plaintiff to state a claim for relief. See Barrett v. Biden, No. 22-2823, 2022 WL 16528195, at *2 (D.D.C. Oct. 25, 2022) (citing Prunte v. Universal Music Group, 484 F.Supp.2d 32, 42 (D.D.C. 2007) (no private right of action in a bare criminal statute); see also Quinn v. Robinson, 783 F.2d 776, 793-94 (9th Cir. 1986) (“These offenses, which include treason, sedition, and espionage ... do not violate the private rights of individuals[.]”), cert. denied, 479 U.S. 882 (1986); Noone v. Town of Palmer, 2 F.Supp.3d 1, 11 (D. Mass. 2014) (“18 U.S.C. § 2381 is a criminal statute which does not provide a private right of action.”); Cassaday v. Trump, No. 22-682, 2022 WL 3082464, at *4 (W.D. Mich. Aug. 3, 2022) (holding that “political offenses,” such as treason, are perpetrated directly against the state and do not intend to cause private injury) (quoting Ordinola v. Hackman, 478 F.3d 588, 596 (4th Cir. 2007)); Doe v. FBI, No. 18-0707, 2019 WL 280268, at *4 (D. Md. Jan. 22, 2019) (finding that, where plaintiff's allegations were “tantamount to an act of war against the government, and that [d]efendants [had] therefore committed treason in violation of Article III, Section III of the United States Constitution” . . . [b]ecause “[t]reason is best understood as a crime committed against the United States . . . no private right of action exists that would allow an individual plaintiff to pursue” a claim of treason against the government) (citing Hamdi v. Rumsfeld, 542 U.S. 507, 560 (2004)); Taylor v. Virginia, No. 15-429, 2015 WL 13050092, at *1 (E.D. Va. Oct. 27, 2015)); Corrado v. New York Off. of Temporary, No. 15-7316, 2016 WL 3181128, at *5 (E.D.N.Y. Jun. 2, 2016) (finding that there is no private right of action under 18 U.S.C. § 2381) (citing Nguyen v. Ridgewood Sav. Bank, No. 14-1058, 2015 WL 2354308, at *13 (E.D.N.Y. May 15, 2015)); Shaughnessy v. New York, 2014 WL 457947, at *7 (N.D.N.Y. Feb. 4, 2014) (finding that treason is “always prosecuted by the Federal Government, not by private complaints[,]” and that “there is no private right of action for the crime.”) (citing Hill v. DiDio, 191 Fed.Appx. 13, 14-15 (2d Cir. 2006); Carvel v. Ross, No. 09-722, 2011 WL 856283, at *12 (S.D.N.Y. Feb. 16, 2011)); Vinh Hung Lam v. Citigroup, Inc., No. 08-4317, 2008 WL 11343432, at *2 (C.D. Cal. Aug. 18, 2008) (finding that plaintiff failed to state a civil claim because “[t]he United States Code makes treason a crime[,]” and that 18 U.S.C. § 2381 “can be enforced only by the proper authorities of the United States government, such as United States attorneys.”) (citing 28 U.S.C. § 547)).

Similarly Mirarchi cannot compel a criminal investigation by filing a complaint with this Court because the United States District Courts have no authority to order any law enforcement agencies or prosecutors to initiate investigations or prosecutions. See Wagner v. United States Gov't, No. 23-1626, 2023 WL 3948820, at *1 (D.D.C. June 9, 2023) (citing Otero v. U.S. Attorney General, 832 F.2d 141, 141-42 (11th Cir. 1987); Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982)). “[A]n agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision...