PART 6 -- PROSECUTORIAL DISCRETION

The Secretary contrives his regulation to present as if he is simply electing not to prosecute violations of the MHCSS Act (24 CFR 3282.14(a)(3)).

Choosing not to prosecute an offense against the people of the United States, where the prosecutor had no foreknowledge that such offense would be committed, is significantly different than authorizing in advance, a person to commit such an offense against the people of the United States. The first represents a legitimate exercise of prosecutorial power (although this is debated) and the latter clearly represents an abuse of power.

Consistent with the stated policy of the Secretary under 24 CFR 3282.14, the Secretary has reaffirmed (in writing) that he is merely exercising his prosecutorial discretion when he pre-authorizes his manufacturers to commit offenses against the people of the United States.

Even if the Secretary argued that the executive has the power under the guise of prosecutorial discretion [1] to capriciously repeal, suspend, or amend any part or portion of an Act of Congress, he still has a big problem. He has NO such prosecutorial power under the MHCSS Act (emphasis added). He informed the 93rd Congress sometime before July 23, 1973 that he did not want any part in enforcing construction and safety standards, and with his revelation, the 93rd Congress made changes that left no doubt that with the exception of inspection and/or investigation, that he had gotten his way in this regard. (Compare markup, S.1384, “Civil Penalties” section 109(b) (July 23, 1973), to P.L 93-383 – 42 USCA §5410(b) as enacted on August 22, 1974) (Also see Congressman Frey’s written testimony entered into the public record on July 24, 1973, Committee on Banking, Housing, and Urban Affairs, pg. 852, paragraph 1)

In the wake of Congress’s changes, the language in legislative markup subsection 109(b), which provided prosecutorial discretion to the Secretary to negotiate the civil penalties prescribed in subsection 109(a), was stricken from the legislation (emphasis added). In its place, Congress prescribed criminal penalties for any person who knowingly and willfully violated 42 USCA §5409 “in a manner which threatens the health or safety of any manufactured home purchaser,” and Section 109 was renamed “Civil and Criminal penalties.”

Common sense tells us that only the Attorney General or U.S. Attorney would have the authority to prosecute criminal offenses that have been committed against the people of the United States, hence, only he or she would have the authority to determine what offense(s) should be prosecuted as criminal offenses. Consistent with common sense, the MHCSS Act prescribes that the Secretary “shall furnish the Attorney General … any information obtained indicating noncompliance with such standards for appropriate action” (42 USCA §5413(a)). If the Attorney General or an official designee thereof, were to determine that an offense was civil, there is nothing that prevents the Attorney General from referring the matter back to the Secretary for disposition.

Upon enactment, this section was codified as 42 USCA §5410 of P.L. 93-383. The prosecution of such crimes as specified in 42 USCA §5409 is assigned to the Criminal Fraud Division of the U.S. Department of Justice, and investigative authority is assigned to the Federal Bureau of Investigation (FBI) (See DOJ – USAM, 9-4.159). As will be apparent, the Secretary cleverly contrived his regulations to exclude the USDOJ from any determinations related to any investigations, and from the prosecution of any offenses related to any violations of the MHCSS.

It should be noted that the USDOJ does not show jurisdiction over 42 USCA §5410(a). It is unknown if the USDOJ reached this conclusion on their own, or if this is what the Secretary informed them was the extent of their authority under the MHCSS Act. Given the fact that the Secretary did not implement, nor does the Attorney General show jurisdiction over:

It is a reasonable conclusion that the Secretary deliberately withheld this information from the USDOJ. However, this does not excuse the Attorney General’s negligence in verifying the truthfulness of any information submitted to him or her by any agency, but then, the vast majority of those being injured or killed by the Secretary’s corporate protection racket are low-income persons, so it is unlikely that the Attorney General has given it much, if any thought.

It would be a gross understatement to say that the U.S. Attorney General has simply been remiss in his or her duties under the MHCSS Act – downright negligent would be closer, but maybe still not far enough.

As for the Federal Courts, it could be argued that their failure to take enforcement actions against violators, is a product of the USDOJ’s failure to bring violators of 42 USCA §5409(a)(1) – (6) [2] before the Federal Courts.

For the most part, federal criminal offenses are investigated by agents of federal agencies such as the FBI, DEA, ATF, Secret Service and other Law enforcement agencies. Federal crimes are usually prosecuted by the United States Attorney’s Office for the area where the crime occurred. Congress expressly provided the Secretary with the authority under 42 USCA §5413(c)(4) to request assistance in carrying out his duties under the MHCSS Act, from agencies, or entities such as the USDOJ.

The Secretary, as stated in 42 USCA §5413, would conduct investigations and inspections for determining if there were any violations of 42 USCA §5409 of the MHCSS Act, but the responsibility for the conduct of such investigations (emphasis added), as the prosecuting authority under the MHCSS Act, lies with Attorney General.

The discretion to decide whether to prosecute or not is entirely within the purview of the Attorney General or the U.S. Attorney for the district “wherein any act or transaction constituting the violation occurred, or in the district wherein the defendant is found or is an inhabitant or transacts business” (42 USCA §5411(c)).

The discretion to restrain violations of the MHCSS Act or to impose the penalties within the permissible scope of 42 USCA §5410, for violation(s) of 42 USCA §5409(a) lies solely with “The United States district courts.”

It is not the Secretary who petitions “The United States district courts” “on behalf of the United States” to restrain violation(s) of the MHCSS Act, but the “United States Attorney or the Attorney General.”

Congress did NOT say that the Secretary “shall furnish the Attorney General … any information obtained indicating noncompliance with such standards for appropriate action”; if in the Secretary’s opinion such indicated a criminal violation of the MHCSS (42 USCA §5413(a)), and if in his opinion such is not, he may prosecute the violation(s). “Any information” excludes no information, and information is knowledge acquired in any manner. “Indicating noncompliance with such standards” does not mean that a violation has been substantiated; it only means that it appears that one or more has occurred. Hence, the Secretary at the beginning of any investigation, and not at the end, should inform the Attorney General. However, this is irrelevant since the Secretary never informs the Attorney General of any indications of anything whatsoever, but then as already alluded to, no manufacturer or any agent thereof can per say, violate the MHCSS under the Secretary’s contrived “exclusive system of enforcement.”

The Attorney General has no record of the Secretary furnishing his office with any information indicating any nonconformance [3] with such standards. “Shall” in both legislative terms and doctrinal terms is an absolute – no ifs, ands, or buts.

Even if it were argued that the Attorney General delegated to the Secretary of Housing, the authority to decide if a violation constitutes a criminal violation (unprecedented), and otherwise dispose of the case if not, the Attorney General would have to promulgate such delegation of statutory authority. Even then, the Attorney General would bear ultimate responsibility for the Secretary’s conduct in so much as the Secretary would be the Attorney General’s subordinate designee, for carrying out the Attorney General’s duties under the MHCSS Act. An extensive search of the Federal Register archives has turned up no notice/record where the Attorney General lawfully delegated any such authority to the Secretary of Housing.

There is substantial pattern of conduct that when coupled to the Secretary’s lack of prosecutorial discretion under the MHCSS Act, that reveals that the Secretary has with malice and forethought, obstructed criminal investigations of individuals for conduct that by its nature, jeopardized the health and safety of manufactured home purchasers’, or was criminal under the Laws of the United States. This makes the Secretary’s obstruction of such investigations and prosecutions, criminal.

However, the federal establishment protects its own, so it is highly unlikely that he will be held accountable for his complicity in criminal offenses against the people of the United States, hence; he is above the law that is otherwise applicable to the people. Consistent with delegating many of his duties under the MHCSS Act to his manufacturers, the Secretary has effectively bestowed this same Public Trust upon his manufacturers, which has had catastrophic results for far too many purchasers of manufactured homes.

There is simply nothing ambiguous about the mandate to furnish the Attorney General such information as described by Congress. This mandate appears in Congressional statement describing the extent of Secretary’s enforcement authority, not just under 42 USCA §5413, but under the whole of the MHCSS Act (emphasis added). It would take a vivid imagination to believe that he simply overlooked the extent of his authority under the MHCSS Act to enforce the MHCSS, when he was promulgating his regulations to include all power whatsoever.

He did and still does even under the MHI Act of 2000, have a legal duty to furnish any information, which MAY indicate ANY failure to conform with such standards, to the Attorney General and to the Secretary of Treasury for appropriate action (prosecution).

Not once has any “individual or a director, officer, or agent of a corporation … knowingly and willfully violate[d] section 5409 of this title in a manner which threatens the health or safety of any purchaser.” The likelihood of this being true is astronomical. The nonexistence of criminal prosecutions under the MHCSS Act is not an accident, and it has nothing to do with a lack of the criminal behavior described in 42 USCA §5410(b).

Moreover, even in the face of pervasive and widespread nonconformance with the MHCSS, the prosecution of civil cases by the Secretary have been far and few between. The reason for this will be apparent by the end of this discussion.

This does not mean that the U.S. Attorney General would not ultimately decide to do nothing, just as the Secretary has done, and will continue to do except in rare instances. However, as the Secretary’s regulations are written, the U.S. Attorney/General has been excluded all together from the enforcement process for the MHCSS, so until or unless this is remedied, we will never know if this it true.

1
It should be noted that most legal experts refer to ‘the doing nothing approach’ as the most abused prosecutorial power, but this reference was made in regards to post knowledge of the crime (civil or criminal). In fact, having prior knowledge that such crime would be committed, and failing to report it to the proper authorities before the fact, makes such person complicit in the commission of the crime. While specific mitigating circumstances, such as warranted fear of retaliation may warrant that no action be taken (a legitimate exercise of prosecutorial discretion) against a person for failing to report that a crime was going to be committed, such mitigating circumstances do not exist here. That is unless the Secretary wants to assert that he feared for his personal safety if he did not go along with the manufacturers’ lieutenants.

2
Subparagraph (7) of 42 USCA §5409(a), introduced by the industry promulgated MHI Act of 2000, was omitted herein because only the Secretary can violate this subparagraph, hence, no one can be held accountable for violating this cleverly contrived subparagraph.

3
It should be noted that according to the Secretary, when Congress said, “comply” or “conform” they meant two different things. Accordingly, under the Secretary’s regulations, “noncompliance” with the standards does not mean that a manufactured home contains “a defect which relates to manufactured home construction or safety or of the [failure of a manufactured home to comply] (noncompliance) with applicable manufactured home construction and safety standards” (42 USCA §5413(c)(5)). According to him, only “nonconforming” manufactured homes contain such defects. With this insane notion, he might argue that he only had to report any indication of “noncompliance” where a “nonconformance” was NOT present. His corruption is unadulterated! Apparently, there has never been one single case where there was any indication of the “existence of a defect which relates to manufactured home construction or safety or of the [failure of a manufactured home to comply] (noncompliance) with applicable manufactured home construction and safety standards” (42 USCA §5413(c)(5)).



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