v.
Mohan A. Harihar
Petitioner - Pro Se
7124 Avalon Drive
Acton, MA 01720
p. (617) 921.2526
Mo.harihar@gmail.com
QUESTIONS PRESENTED
This request for Certiorari is respectfully sought after the Petitioner’s
efforts to resolve a list of issues, considered as “extraordinary”, were
denied by the First Circuit replacement panel.1 This list of
extraordinary, unresolved issues – beginning with jurisdiction and as
described in Applications 18A545, 18A554 and 17A1359 has now twice
been acknowledged by Associate Justice Stephen Breyer, who last
granted a timeline extension on December 4, 2018. Despite the legal
complexity of issues, the Petitioner has been forced to represent himself
as a pro se litigant, as requests for assistance with the appointment of
counsel under 28 U.S.C. §1915 have also been repeatedly denied by the
Replacement Circuit Panel without valid cause. The Petitioner is all but
certain that if he was represented by legal counsel, there would be
additional claims to those described in this Petition.
As a matter of record (here and in the related federal litigation2), the
Petitioner has evidenced judicial failures and a continued “Pattern of
Corrupt Conduct” resulting in an unprecedented eight (8) federal
recusals3 - ultimately impacting jurisdiction, issued orders, and in itself
shows cause for this Court to grant Certiorari. The remaining questions
following the jurisdiction issue(s) may then be considered moot.
However, considering the gravity of these issues and based on the
Petitioner’s interpretation of the law – the (second) acknowledgment by
Justice Breyer shows cause to include them as questions here. The
questions presented are:
1. Whether the replacement Circuit Panel repeatedly refused to
address/clarify Jurisdiction issues, ultimately dismissing the referenced
1 See Appendix A, Exhibit 1, to view the Replacement Circuit Panel’s 08/07/18 Judgement order re-
affirming the dismissal of the complaint; followed by the 09/07/18 Oder denying the Petitioner’s
request for re-hearing.
2 Related Federal litigation references: (1) HARIHAR v THE UNITED STATES, Appeal No. 17-2074
(Lower Docket No. 17-cv-11109); and (2) HARIHAR v HOWARD, Docket No. 18-cv-11134.
3 Collectively, the evidenced judicial misconduct allegations brought forth by the Petitioner have
forced the following recusals: (1) US District Court Judge Allison Dale Burroughs; (2) US First
Circuit Judge Sandra L. Lynch; and recusals (3) – (8) Circuit Judges Juan R. Torruella, William J.
Kayatta and David J. Barron – TWO (2) sua sponte recusals from HARIHAR v US BANK et al
(Appeal No. 17-1381) and HARIHAR v THE UNITED STATES, Appeal No. 17-2074.
1
appeal when they clearly lacked the legal authority to issue such an
order;
2. Considering the complexity (and totality) of legal issues, whether
the replacement Circuit Panel erred by denying (without valid cause)
repeated requests to assist the Petitioner with the Appointment of
Counsel pursuant to 28 U.S.C. §1915;
3. Whether the replacement Circuit Panel erred by refusing to
address and re-establish the clearly evidenced imbalance of hardships;
4. Whether the replacement Circuit Panel erred by refusing to
address the evidenced (and unopposed) Fraud on the Court (and other
Fraud) claims under Fed. R. Civ. P. 60(b)(3), and additionally under
60(b) (2), (4) and (6);
5. Whether the replacement Circuit Panel erred by refusing to
address evidenced (and unopposed) claims of Judicial Fraud on the
Court, pursuant to Fed. R. Civ. P. 60(b)(3) and clear violations to the
Judicial Code of Conduct and Judicial Oath;
6. Whether the replacement Circuit Panel erred by refusing to
address (or even acknowledge): (1) the Appellant’s Intellectual Property
(IP) Rights; (2) Evidenced Economic Espionage claims pursuant to 18
U.S.C. § 1831; and (3) matters believed to impact National Security;
7. Whether the replacement Circuit Panel erred by refusing to
recuse under 28 U.S.C. §455(a), and 28 U.S.C. § 144, after the
Petitioner evidenced identical issues which led to the recusal of the
initial Circuit Panel4;
8. Whether the replacement Circuit Panel erred by continuing to
issue orders after losing jurisdiction; each constituting acts of Treason
under ARTICLE III, Section 3 of the Constitution;
9. Whether the replacement Circuit Panel erred by refusing to
address Title 18, U.S.C., Section 242 - Deprivation of Rights Under
Color of Law;
10. Whether the replacement Circuit Panel erred by refusing to
address Title 18, U.S.C., Section 241 Conspiracy Against Rights;
11. Whether the replacement Circuit Panel erred by refusing to
address Title 18, U.S.C., Section 1001 Fraud and False Statements;
4“Identical Issues” references the list same list of “extraordinary, unresolved issues” now twice
acknowledged by Justice Breyer.
2
12. Whether the replacement Circuit Panel erred by refusing to
address Title 42 Sec. 1983, Civil action for Deprivation of Rights;
13. Whether the replacement Circuit Panel erred by refusing to
clarify referenced Judgments;
14. Whether the replacement Circuit Panel erred by refusing to
clarify the referenced Mandate;
15. Whether the replacement Circuit Panel erred by refusing a trial
by jury, including requests for a grand jury;
16. Whether the replacement Circuit Panel erred by refusing to
address Petitioner’s requests for clarification hearings, with the
presence of an independent court reporter;
17. Whether the replacement Circuit Panel erred by failing to
address evidenced argument(s) as fact, refusing discovery and
prematurely moving for dismissal;
18. Whether the replacement Circuit Panel erred by failing to
address the Petitioner’s request(s) for clarification from the DOJ –
including their intention(s) to enjoin the civil complaint with criminal
indictments;
19. Whether the “Appearance of Justice” has been negatively
impacted
3
PARTIES TO THE PROCEEDING BELOW
4
TABLE OF CONTENTS
Page
Opinions below................................................................7
Jurisdiction......................................................................7
Statutory provisions involved........................................ 8
Introduction ................................................................... 8
Statement.......................................................................10
Reasons for granting the petition.................................12
A. There is a Clear and Intractable
Conflict Regarding the Jurisdiction
of the Replacement Circuit Panel………........12
B. This Case is the Perfect Vehicle for
Deciding Related Foreclosure Issues
Involving an RMBS Trust……………........... 13
C. This Case is the Perfect Vehicle
for Acknowledging an Economic
Framework that Stands to Benefit
all Parties, including The United
States…………………....................................15
D. The Appearance of Justice……………..……16
E. New Evidence……………………….………...17
Conclusion ................................................................... 18
Proof of Service…………………………………………... 20
TABLE OF AUTHORITIES
Cases:
Harihar v The United States
(1st Circuit 2017) ………………………………….12
Harihar v Howard
(1st Circuit, 2018) …………………………………12
The United States, et al. v Ace Securities Corp………13
Levine v. United States,
362 U.S. 610, 80 S.Ct. 1038 (1960) …………….15
Offutt v. United States,
348 U.S. 11, 14, 75 S.Ct. 11,13 (1954) ….……..16
Taylor v. O’Grady,
888 F.2d 1189 (7th Cir. 1989) …………….….…15
5
Statutes:
28 U.S.C. § 1915 ......................................................1,2,9
18 U.S.C. § 1831 ....................................................2,9,11
28 U.S.C. §455(a)………………………………………2,16
28 U.S.C. § 144 ………………………………………....…2
26 U.S.C. § 860G(d)(1)………………………………..…14
18 U.S.C. § 2382………………………………………..…11
18 U.S.C. § 242…………………………………….…….…2
18 U.S.C. Chapter 96 ………………………………..10,11
18 U.S.C § 241………………………………………………2
18 U.S.C. § 1001……………………………………..….2,18
Title 42 Sec. 1983…………………………………..……....3
28 U.S.C. § 1254(1)…………………………………...…….7
18 U.S.C. § 371……………………………………………..11
18 U.S.C. § 2382……………………………………….…..11
15 U.S.C. 78ff(a)………………………..………………….18
Rules:
Fed. R. Civ. P. 60(b)(2) ...................................................18
Fed. R. Civ. P. 60(b)(3) ........................................2,8,12,13
Fed. R. Civ. P. 60(b)(4)…………………………...…..….2,12
Fed. R. Civ. P. 60(b)(6)………………………………………2
Fed. R. Civ. P. 26 (a)(1)(B)(viii) ………………….…….….3
6
In the Supreme Court of the United States
No.
v.
OPINIONS BELOW
No opinion has been issued by the court of appeals
and similarly, by the district court for the lower court
Docket No. 15-cv-11880.
JURISDICTION
As a matter of record, presiding judges in both the Appeals
court and District court lost jurisdiction for
their evidenced failure(s) to uphold Federal Rules.
The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
7
STATUTORY PROVISIONS INVOLVED
The relevant provisions of Fed. R. Civ. P. 60(b) The RICO Act and the
Economic Espionage Act (and all others referenced) are reproduced in
Appendix (B) to this petition.
INTRODUCTION
5 The US Department of Justice (DOJ) and the MA Attorney General’s Office both identified the
Petitioner’s Foreclosure as illegal in conjunction with the $25B Mortgage settlement that included
Respondents – Wells Fargo and US BANK. Similarly, in a separate settlement involving the same
Respondents, Federal Bank Regulators also identified the Petitioner’s Foreclosure as illegal.
6 References the Petitioner’s IP HARIHAR FCS Model – see Appendix A, Exhibit 2, VP Presentation.
8
of dismissal (without valid cause), followed shortly thereafter by her sua
sponte recusal.7
Since then, the record shows an identical pattern of
corrupt conduct has been evidenced: (1) throughout this Appeal; (2) in
the related litigation, HARIHAR v THE UNITED STATES, Appeal No.
17-2074; (3) in the related litigation, HARIHAR v HOWARD, Docket
No. 18-cv-11134; and (4) most recently in MA State Courts.8 To date,
judicial misconduct complaints have been filed against fifteen (15)
federal (District and Circuit) judges. There has been an unprecedented
eight (8) recusals and formal treason claims that have now been
brought against nine (9) federal judges for continuing to rule after
losing jurisdiction. Evidenced failures by the First Circuit Chief Judge –
Jeffrey R. Howard, the Judicial Council and the First Circuit Executive
– Susan Goldberg have indicated a broken process for addressing
judicial misconduct; showing cause to inform the Administrative Office
of US Courts, specifically – Director James C. Duff. Similarly, Federal
Prosecutors have failed to bring indictments for the evidenced criminal
complaints of record that include (but are not limited to): (1) Treason;
(2) The misappropriation of the Petitioner’s Trade Secret/Intellectual
Property (IP) rights, under the Economic Espionage Act of 1994, 18
U.S.C. § 1831; and (3) criminal/civil RICO claims. Collectively, the
gravity of these issues is perceived to impact matters of National
Security, showing cause to inform and regularly update: (1) POTUS; (2)
US Secret Service/Dept. Homeland Security; (3) the SEC9; (4) Inspector
General Michael Horowitz (OIG); (5) acting US Attorney General
Matthew Whitaker; the House/Senate Judiciary Committees; (6)
Governor Charlie Baker (R-MA) and other legislative leaders in the
Commonwealth of Massachusetts.
The continued pattern of corrupt conduct evidenced by the
Replacement (inferior) Circuit Panel shows cause to bring this
Certiorari Petition. Upon review, the Petitioner respectfully requests
that this Court also take into consideration: (1) The complexity of legal
issues involved with this case; and (2) the lower court’s repeated refusal
7 See Appendix A, Exhibit 3, 03/21/17 District Court Dismissal Order, followed by the 06/19/17 Order
of Recusal of Judge Allison Dale Burroughs.
8 As a matter of record, the Petitioner has evidenced the same pattern of corrupt in the MA Land
Court, Docket No. 18MISC000144, bringing Judicial misconduct claims against the presiding Judge
– Hon. Michael Vhay.
9 SEC – Securities and Exchange Commission
9
to assist Petitioner with the appointment of Counsel pursuant to 28
U.S.C. §1915.
This case is tailor-made for ending the overwhelming flood
of litigation involving mortgage securitization/foreclosure issues.
Secondly, the referenced IP/Trade Secret stands to provide an economic
framework designed to resolve homeowner issues while delivering
substantial economic growth of the Nation. Because this case presents
an optimal vehicle for resolving these issues of federal law, the petition
should be granted.
10
See Appendix A, Exhibit 4, to view the SEC Approved Criminal Complaint.
10
jurisdiction to issue such an order. Furthermore, as a matter of record
these inferior Circuit Judges – including the Chief Judge - Jeffrey R.
Howard, stand formally accused of evidenced criminal violations
including (but not limited to): (1) Treason under Article III, Section 3;
(2) 18 U.S. Code § 371 - Conspiracy to commit offense or to defraud
United States; (3) Economic Espionage (Economic Espionage Act) 18
U.S. Code § 1831; and (4) 18 U.S. Code Chapter 96 – RICO violations.
As witness to these evidenced allegations, Ms. Hamilton has
failed/refused to report these crimes, as required by Federal law. Her
failure(s) to report Treason and other witnessed acts of Judicial
Misconduct additionally contribute to existing conspiracy (and other)
claims as stated in the referenced litigation. These actions (or lack
thereof) are believed to have contributed to the Misappropriation of a
Trade Secret (IP) designed to assist the United States with economic
growth/repair associated with the US Foreclosure Crisis. The Petitioner
believes that upon further investigation, additional claims against Ms.
Hamilton are likely and he reserves the right to expand upon/file new
claims if deemed necessary.
4. The Petitioner states that these facts involving the First
Circuit Clerk establish probable cause indicating that (at minimum) the
following crimes have occurred: (1) Misprision of Treason 18 U.S. Code
§ 2382; (2) 18 U.S. Code § 371 - Conspiracy to commit offense or to
defraud The United States; (3) Economic Espionage (Economic
Espionage Act) 18 U.S. Code § 1831 and (4) Color of Law/Due Process
violations. Supporting Documents are part of the Court record(s)
associated with the referenced litigation and include judicial
misconduct complaints/petitions filed with: (1) the Office of the First
Circuit Executive; and (2) the Administrative Office of US Courts. The
Petitioner has now formally filed a criminal complaint against Clerk
Maria R. Hamilton with the FBI, with copies of the complaint
necessarily delivered to the attention of: (1) POTUS; (2) Director James
C. Duff (Administrative Offices of US Courts); (3) The DOJ; (4)
members of Congress and other appropriate
offices/agencies/committees. Based on these evidenced actions by the
First Circuit Court, the Petitioner shows cause to: (1) amend his
(separate) original complaint against The United States (Appeal No. 17-
2074, Lower Court Docket No. 17-cv-11109), expanding (at minimum)
upon evidenced Color of Law, Due Process and RICO violations; and (2)
add Ms. Hamilton as a Defendant to the separate civil complaint –
HARIHAR v HOWARD, Docket No. 18-cv-11134. Your Honor is
respectfully reminded that the dismissal orders associated with each of
11
these civil complaints are considered void, as the Petitioner has
evidenced for the record that they too have been issued by inferior
judicial officers who lack jurisdiction.
5. Respectfully, while there was no given explanation to
support Justice Breyer’s denial of Application No. 18A554 (initial
request for a Stay of Judgment), the Petitioner believes that your Honor
may have intended to allow the First Circuit a final opportunity to
initiate corrective action. It should now be clear however, as indicated
by the record (and despite this Court’s second acknowledgment of
extraordinary, unresolved issues) that the Replacement Circuit Panel
never had any intention of resolving these issues or correcting its erred
judgement(s). This evidenced judicial misconduct is considered
egregious and is identical to that evidenced by the initial (recused)
Circuit Panel; including all prior judicial officers dating back to the
District Court and the recusal of Judge Allison Dale Burroughs.
6. In summary, two (2) things should be abundantly clear
to this Court: (a) The case presents an evidenced and unopposed Fed. R.
Civ. P. 60(b)(3) claim against all respondents; and (b) egregious judicial
misconduct under Fed. R. Civ. P. 60(b)(4) exemplified as a matter of
record by the Replacement Circuit Panel and all other referenced
judicial officers (whether recusal was a factor or not). Both scenarios
should result in granting this Certiorari Petition. What remains unclear
is which of the evidenced claims has priority.
12
for granting the petition. These facts of record are clear, undeniable -
and should be resolved by this Court.
B. This Case is the Perfect Vehicle for Deciding Related Foreclosure
Issues Involving an RMBS Trust
Aside from an irrefutable (and unopposed) Rule 60(b) Fraud on the
Court claim, the Appellant’s argument over the legality of securitized
Trust is supported by the sworn testimony of Nationally recognized
fraud expert - Lynn Szymoniak, who represented The United States in
a separate (but related) lawsuit (The United States, et al. v. Ace
Securities Corp. C.A. No. 0:13-CV-464-JFA), Ms. Syzmoniak has stated
under oath that, “Defendants used fraudulent mortgage assignments to
conceal that over 1400 MBS trusts, each with mortgages valued at over
$1 billion, are missing critical documents,” meaning that at least $1.4
trillion in mortgage-backed securities are, in fact, non-mortgage-backed
securities. Because of the strict laws governing these kinds of
securitizations, there’s no way to make the assignments after the fact.
Activists have a name for this: “Securitization Fail.” The Department of
Justice is well aware of this fact, as is the respondent, Commonwealth
of Massachusetts.
First, someone must be the “legal” owner of the mortgage loan. Only
the legal owner of the loan has the legal right to sell mortgage-backed
securities (“MBS”) to investors. Second, actual physical transfer of
ownership is necessary because the cash flows that go from the
homeowner through the securitization trust to the MBS purchasers are
tax exempt. If the trust does not perfect legal title by taking physical
possession of the notes and mortgages, the Internal Revenue Code,
specifically 26 U.S.C. § 860G(d)(1), provides for a 100 percent tax
penalty on those non-complying cash flows. Third, the legal ownership
of the loans must be “bankruptcy remote” that is, because bankruptcy
trustees have the right to reach back and seize assets from bankrupt
entities, the transfer to the trustee must be clean and no prior
13
transferee in the securitization chain of title can have any cognizable
interest in the loans. For this reason, all securitization trusts are
“special purpose vehicles” (“SPVs”) created for the sole purpose of
taking legal title to securitized loans and all securitization trustees
represent and certify to the MBS purchasers that the purchase is a
“true sale” in accordance with Financial Accounting Standards Board
(FASB) 140. But it never happened. No securitization trustee of any
securitized mortgage loan originated from 2001 to 2008 ever obtained
legal title or FASB 140 “control” of any securitized loan. Therefore: (1)
The securitized trust CMLTI 2006 AR-1 can make no legal claim to the
Petitioner’s referenced property located at 168 Parkview Avenue,
Lowell, MA 01852; (2) Since the Trust cannot make a legal claim to the
property, it had no right to collect any monies from the Petitioner or to
foreclose on the Petitioner’s Property; (3) If the Trust had no right to
foreclose, it also had no right to re-sell the Petitioner’s Property,
thereby making the foreclosure sale void. Despite bringing these critical
facts to the attention of every related MA State Court, US District
Court and US Appeals Court, it has been completely ignored as if never
mentioned - and only adds to support (at minimum), the Petitioner’s
Conspiracy and Tort claims. Similarly, Respondents have filed no
opposing argument that refutes this evidenced securitization claim.
14
substantial assistance to those who have suffered greatly from illegal
foreclosure.
The Petitioner’s actions have always been made in Good Faith and it
has been his intention from the beginning to reach a mutual agreement
with all parties, including the Federal Government, that would
ultimately allow The United States to implement this IP Nationwide –
if it so chooses to do so. The Petitioner firmly believes that if the
Respondents, as well as the parties in the related litigation, had
initially spent more time understanding these intentions, a mutual
agreement may have been reached long ago. Even if Certiorari is
granted, it will remain the Petitioner’s intention to reach an agreement
with the Federal Government, for the specific purpose of helping our
Nation’s Economy and to assist illegally foreclosed homeowners.
The Petitioner has now evidenced for the record a continued pattern of
corrupt conduct at every level of the Federal (and State) judiciary that
now includes: (1) Evidenced judicial misconduct claims brought against
fifteen (15) judicial officers; (2) An unprecedented eight (8) recusals; and
(3) Formal Treason Claims brought against nine (9) judicial officers.
11See, e.g., ABA MODEL CODE OF JUDICIAL CONDUCT Canon 1 (2011) (“A judge shall uphold
and promote the independence, integrity, and impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.”); Raymond J. McKoski, Judicial Discipline and the
Appearance of Impropriety: What the Public Sees is What the Judge Gets, 94 MINN. L. REV. 1914,
1985 (2010) [hereinafter McKoski, Judicial Discipline] (noting that North Carolina and Oregon are
the only two states to have abandoned the appearance standard).
16
E. New Evidence
Please be advised, the Petitioner has recently been made aware of an
approved Criminal Complaint filed with the SEC (Securities and
Exchange Commission), involving four (4) parties including the
Respondent – US BANK. The approved TA-2 Form was submitted for
reporting activities of Transfer Agents pursuant to Section 17A of the
Securities and Exchange Act of 1934. The SEC criminal complaint
addresses Intentional Misstatements or Omissions of Fact that
constitute Federal Criminal violations under (1) 18 U.S.C. 1001 and (2)
15 U.S.C. 78ff(a).12 If it becomes necessary, the Petitioner shows cause
to amend his original complaint(s) under Fed. R. Civ. P. 60(b)(2),
expanding upon his existing claims against Appellee – US BANK. This
new evidence may be considered moot if Certiorari is granted. However,
the Petitioner will still show cause to amend his criminal complaint(s)
filed with the FBI.
CONCLUSION
1. POTUS;
2. US Secret Service - Director Randolph D. Alles;
3. US Inspector General - Michael Horowitz;
4. SEC Chairman - Jay Clayton;
5. Acting US Attorney General Matthew Whitaker;
6. Admin. Office of US Courts – Director James C. Duff;
7. US Attorney Andrew Lelling (MA);
8. Chairman Chuck Grassley (R-IA) Senate Judiciary
Committee;
9. Chairman Bob Goodlatte (R-VA) House Judiciary Committee;
10. Governor Charlie Baker (R-MA);
11. US Senator Elizabeth Warren (D-MA);
12. US Senator Ed Markey (D-MA); and
A copy of the referenced SEC Criminal complaint against Respondent – US BANK is included in
12
Appendix A, Exhibit 4.
17
13. US Congresswoman Lori Trahan (D-MA)
A copy will also be made available to the Public and to media outlets
nationwide out of continued concerns for the Petitioner’s safety and
security. If this Court has questions regarding any portion of this
Petition, or requires additional information, the Petitioner is happy to
provide upon request.
Respectfully submitted.
Mohan A. Harihar
Petitioner - Pro Se
7124 Avalon Drive
Acton, MA 01720
p. (617) 921.2526
Mo.harihar@gmail.com
18
In the Supreme Court of the United States
____________
No.
____________
MOHAN A. HARIHAR,
Petitioner,
v.
US BANK, et al
Respondents.
___________________________________
CERTIFICATE OF SERVICE
___________________________________
Counsel for Wells Fargo NA, US Bank NA, David E. Fialkow, Esq. and
Jeffrey S. Patterson, Esq.
20
Mohan a. Harihar
Petitioner
7124 Avalon Drive
Acton, MA 01720
617.921.2526
Mo.harihar@gmail.com
21
APPENDIX A
Petition for Certiorari
HARIHAR v US BANK, et al
22
APPENDIX A
TABLE OF CONTENTS
23
Exhibit 1
24
Case: 17-1381 Document: 00117323394 Page: 1 Date Filed: 08/07/2018 Entry ID:
6189010
Plaintiff, Appellant,
v.
US BANK N.A.; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS;
HARMON LAW OFFICES, P.C.; NELSON MULLINS RILEY & SCARBOROUGH, LLP;
PETER HALEY; MARY DAHER; KEN DAHER; DAHER COMPANIES; JEFFREY
PERKINS; ISABELLE PERKINS; WELLS FARGO BANK, N.A.; KURT MCHUGH;
MARTHA COAKLEY; K&L GATES LLP,
Defendants, Appellees,
Defendants.
__________________
Before
JUDGMENT
Pursuant to this court's order dated July 17, 2018, mandate was recalled, the
original judgment was vacated, and the appeal was assigned to the present panel
for further review.
The appellant's motion to disqualify Chief Judge Howard and Judge Thompson
is denied. See United States v. Pryor, 960 F.2d 1, 3 (1st Cir. 1992) (suit against
judge separate from the case under consideration; "It cannot be that an automatic
recusal can be obtained by the simple act of suing the judge."); In re Mann, 229
3
25
F.3d 657, 658 (7th Cir. 2000) (similar); United States v. Studley, 783 F.2d 934,
940 (9th Cir. 1986) ("A judge is not disqualified by a litigant's suit or threatened
suit against him[.]").
Case: 17-1381 Document: 00117323394 Page: 2 Date Filed: 08/07/2018 Entry ID:
6189010
Having reviewed the record and arguments on appeal, we affirm the judgment
dismissing the complaint. All other pending motions are denied.
By the Court:
26
27
Exhibit 2
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Exhibit 3
1
2
Exhibit 4
3
4
5
6
7
8
9
APPENDIX B
10
APPENDIX B
TABLE OF CONTENTS
11
Addendum 1
The court may request an attorney to represent any person unable to afford
counsel.
Addendum 2
18 U.S.C. § 1831
(a)In General. —Whoever, intending or knowing that the offense will benefit
any foreign government, foreign instrumentality, or foreign agent,
knowingly—
(5) conspires with one or more other persons to commit any offense
described in any of paragraphs (1) through (3), and one or more of such
persons do any act to effect the object of the conspiracy,
Addendum 3
28 U.S.C. §455(a)
Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.
12
Addendum 4
28 U.S.C. § 144
The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be heard, or good cause
shall be shown for failure to file it within such time. A party may file only
one such affidavit in any case. It shall be accompanied by a certificate of
counsel of record stating that it is made in good faith.
(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat.
99.)
Addendum 5
26 U.S.C. § 860G(d)(1)
(1) In general
Addendum 6
18 U.S.C. § 2382
13
(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII,
§ 330016(1)(H), Sept. 13, 1994, 108 Stat. 2147.)
Addendum 7
18 U.S.C. § 242
(June 25, 1948, ch. 645, 62 Stat. 696; Pub. L. 90–284, title I, § 103(b), Apr.
11, 1968, 82 Stat. 75; Pub. L. 100–690, title VII, § 7019, Nov. 18, 1988, 102
Stat. 4396; Pub. L. 103–322, title VI, § 60006(b), title XXXII, §§ 320103(b),
320201(b), title XXXIII, § 330016(1)(H), Sept. 13, 1994, 108 Stat. 1970,
2109, 2113, 2147; Pub. L. 104–294, title VI, §§ 604(b)(14)(B), 607(a), Oct. 11,
1996, 110 Stat. 3507, 3511.)
Addendum 8
(a)The district courts of the United States shall have jurisdiction to prevent
and restrain violations of section 1962 of this chapter by issuing
appropriate orders, including, but not limited to: ordering any person to
divest himself of any interest, direct or indirect, in any enterprise; imposing
reasonable restrictions on the future activities or investments of any
person, including, but not limited to, prohibiting any person from engaging
14
in the same type of endeavor as the enterprise engaged in, the activities of
which affect interstate or foreign commerce; or ordering dissolution or
reorganization of any enterprise, making due provision for the rights of
innocent persons.
(d)A final judgment or decree rendered in favor of the United States in any
criminal proceeding brought by the United States under this chapter shall
estop the defendant from denying the essential allegations of the criminal
offense in any subsequent civil proceeding brought by the United States.
(Added Pub. L. 91–452, title IX, § 901(a), Oct. 15, 1970, 84 Stat. 943;
amended Pub. L. 98–620, title IV, § 402(24)(A), Nov. 8, 1984, 98 Stat. 3359;
Pub. L. 104–67, title I, § 107, Dec. 22, 1995, 109 Stat. 758.)
Addendum 9
18 U.S.C § 241
15
They shall be fined under this title or imprisoned not more than ten years,
or both; and if death results from the acts committed in violation of this
section or if such acts include kidnapping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit aggravated sexual abuse,
or an attempt to kill, they shall be fined under this title or imprisoned for
any term of years or for life, or both, or may be sentenced to death.
(June 25, 1948, ch. 645, 62 Stat. 696; Pub. L. 90–284, title I, § 103(a), Apr.
11, 1968, 82 Stat. 75; Pub. L. 100–690, title VII, § 7018(a), (b)(1), Nov. 18,
1988, 102 Stat. 4396; Pub. L. 103–322, title VI, § 60006(a), title XXXII,
§§ 320103(a), 320201(a), title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108
Stat. 1970, 2109, 2113, 2147; Pub. L. 104–294, title VI, §§ 604(b)(14)(A),
607(a), Oct. 11, 1996, 110 Stat. 3507, 3511.)
Addendum 10
18 U.S.C. § 1001
(3) makes or uses any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the
offense involves international or domestic terrorism (as defined in section
2331), imprisoned not more than 8 years, or both. If the matter relates to an
offense under chapter 109A, 109B, 110, or 117, or section 1591, then the
term of imprisonment imposed under this section shall be not more than 8
years.
16
(c)With respect to any matter within the jurisdiction of the legislative
branch, subsection (a) shall apply only to—
(June 25, 1948, ch. 645, 62 Stat. 749; Pub. L. 103–322, title XXXIII,
§ 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147; Pub. L. 104–292, § 2, Oct. 11,
1996, 110 Stat. 3459; Pub. L. 108–458, title VI, § 6703(a), Dec. 17, 2004, 118
Stat. 3766; Pub. L. 109–248, title I, § 141(c), July 27, 2006, 120 Stat. 603.)
Addendum 11
(R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub. L. 104–
317, title III, § 309(c), Oct. 19, 1996, 110 Stat. 3853.)
17
Addendum 12
28 U.S.C. § 1254(1)
(1) By writ of certiorari granted upon the petition of any party to any civil
or criminal case, before or after rendition of judgment or decree.
Addendum 13
18 U.S.C. § 371
If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof in any
manner or for any purpose, and one or more of such persons do any act to
effect the object of the conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the
conspiracy, is a misdemeanor only, the punishment for such conspiracy
shall not exceed the maximum punishment provided for such misdemeanor.
(June 25, 1948, ch. 645, 62 Stat. 701; Pub. L. 103–322, title XXXIII,
§ 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
Addendum 14
18 U.S.C. § 2382
(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII,
§ 330016(1)(H), Sept. 13, 1994, 108 Stat. 2147.)
18
Addendum 15
15 U.S.C. 78ff(a)
Any person who willfully violates any provision of this chapter (other than
section 78dd–1 of this title), or any rule or regulation thereunder the
violation of which is made unlawful or the observance of which is required
under the terms of this chapter, or any person who willfully and knowingly
makes, or causes to be made, any statement in any application, report, or
document required to be filed under this chapter or any rule or regulation
thereunder or any undertaking contained in a registration statement as
provided in subsection (d) of section 78o of this title, or by any self-
regulatory organization in connection with an application for membership
or participation therein or to become associated with a member thereof
which statement was false or misleading with respect to any material fact,
shall upon conviction be fined not more than $5,000,000, or imprisoned not
more than 20 years, or both, except that when such person is a person other
than a natural person, a fine not exceeding $25,000,000 may be imposed;
but no person shall be subject to imprisonment under this section for the
violation of any rule or regulation if he proves that he had no knowledge of
such rule or regulation.
(1)
(A)Any issuer that violates subsection (a) or (g) of section 78dd–1 of this
title shall be fined not more than $2,000,000.
19
(B)Any issuer that violates subsection (a) or (g) of section 78dd–1 of this
title shall be subject to a civil penalty of not more than $10,000 imposed in
an action brought by the Commission.
(2)
(3) Whenever a fine is imposed under paragraph (2) upon any officer,
director, employee, agent, or stockholder of an issuer, such fine may not be
paid, directly or indirectly, by such issuer.
(June 6, 1934, ch. 404, title I, § 32, 48 Stat. 904; May 27, 1936, ch. 462, § 9,
49 Stat. 1380; June 25, 1938, ch. 677, § 4, 52 Stat. 1076; Pub. L. 88–467,
§ 11, Aug. 20, 1964, 78 Stat. 580; Pub. L. 94–29, §§ 23, 27(b), June 4, 1975,
89 Stat. 162, 163; Pub. L. 95–213, title I, § 103(b), Dec. 19, 1977, 91 Stat.
1496; Pub. L. 98–376, § 3, Aug. 10, 1984, 98 Stat. 1265; Pub. L. 100–418,
title V, § 5003(b), Aug. 23, 1988, 102 Stat. 1419; Pub. L. 100–704, § 4, Nov.
19, 1988, 102 Stat. 4680; Pub. L. 105–366, § 2(d), Nov. 10, 1998, 112 Stat.
3303; Pub. L. 107–204, title XI, § 1106, July 30, 2002, 116 Stat. 810.)
Addendum 16
20
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
Note to Subdivision (b). Application to the court under this subdivision does
not extend the time for taking an appeal, as distinguished from the motion
for new trial. This section is based upon Calif.Code Civ.Proc. (Deering,
1937) §473. See also N.Y.C.P.A. (1937) §108; 2 Minn.Stat. (Mason, 1927)
§9283.
For the independent action to relieve against mistake, etc., see Dobie,
Federal Procedure, pages 760–765, compare 639; and Simkins, Federal
Practice, ch. CXXI (pp. 820–830) and ch. CXXII (pp. 831–834), compare
§214.
The reconstruction of Rule 60(b) has for one of its purposes a clarification of
this situation. Two types of procedure to obtain relief from judgments are
specified in the rules as it is proposed to amend them. One procedure is by
motion in the court and in the action in which the judgment was rendered.
The other procedure is by a new or independent action to obtain relief from
a judgment, which action may or may not be begun in the court which
21
rendered the judgment. Various rules, such as the one dealing with a
motion for new trial and for amendment of judgments, Rule 59, one for
amended findings, Rule 52, and one for judgment notwithstanding the
verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended,
prescribe the various types of cases in which the practice by motion is
permitted. In each case there is a limit upon the time within which resort to
a motion is permitted, and this time limit may not be enlarged under Rule
6(b). If the right to make a motion is lost by the expiration of the time limits
fixed in these rules, the only other procedural remedy is by a new or
independent action to set aside a judgment upon those principles which
have heretofore been applied in such an action. Where the independent
action is resorted to, the limitations of time are those of laches or statutes of
limitations. The Committee has endeavored to ascertain all the remedies
and types of relief heretofore available by coram nobis, coram vobis, audita
querela, bill of review, or bill in the nature of a bill of review. See Moore and
Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 659–
682. It endeavored then to amend the rules to permit, either by motion or
by independent action, the granting of various kinds of relief from
judgments which were permitted in the federal courts prior to the adoption
of these rules, and the amendment concludes with a provision abolishing
the use of bills of review and the other common law writs referred to, and
requiring the practice to be by motion or by independent action.
22
deal with the practice in every sort of case in which relief from final
judgments is asked, and prescribe the practice. With reference to the
question whether, as the rules now exist, relief by coram nobis, bills of
review, and so forth, is permissible, the generally accepted view is that the
remedies are still available, although the precise relief obtained in a
particular case by use of these ancillary remedies is shrouded in ancient
lore and mystery. See Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d)
240, cert. den. (1944) 323 U.S. 712; Fraser v. Doing (App.D.C. 1942) 130
F.(2d) 617; Jones v. Watts (C.C.A.5th, 1944) 142 F.(2d) 575; Preveden v.
Hahn (S.D.N.Y. 1941) 36 F.Supp. 952; Cavallo v. Agwilines, Inc. (S.D.N.Y.
1942) 6 Fed.Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn v. United
States (D.Mass. 1942) 6 Fed.Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City
of Shattuck, Oklahoma ex rel. Versluis v. Oliver (W.D.Okla. 1945) 8
Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief from Civil
Judgments (1946) 55 Yale L.J. 623, 631–653; 3 Moore's Federal Practice
(1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of
Relief From Judgment, op. cit. supra. Cf. Norris v. Camp (C.C.A.10th, 1944)
144 F.(2d) 1; Reed v. South Atlantic Steamship Co. of Delaware (D.Del.
1942) 6 Fed.Rules Serv. 60b.31, Case 1; Laughlin v. Berens (D.D.C. 1945) 8
Fed.Rules Serv. 60b.51, Case 1, 73 W.L.R. 209.
The transposition of the words “the court” and the addition of the word
“and” at the beginning of the first sentence are merely verbal changes. The
addition of the qualifying word “final” emphasizes the character of the
judgments, orders or proceedings from which Rule 60(b) affords relief; and
hence interlocutory judgments are not brought within the restrictions of the
rule, but rather they are left subject to the complete power of the court
rendering them to afford such relief from them as justice requires.
The qualifying pronoun “his” has been eliminated on the basis that it is too
restrictive, and that the subdivision should include the mistake or neglect of
others which may be just as material and call just as much for supervisory
jurisdiction as where the judgment is taken against the party through his
mistake, inadvertence, etc.
23
the rule had run. Fiske v. Buder (C.C.A.8th, 1942) 125 F.(2d) 841; see also
inferentially Bucy v. Nevada Construction Co. (C.C.A.9th, 1942) 125 F.(2d)
213. On the other hand, it has been suggested that in view of the fact that
fraud was omitted from original Rule 60(b) as a ground for relief, an
independent action was the only proper remedy. Commentary, Effect of
Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed.Rules
Serv. 942, 945. The amendment settles this problem by making fraud an
express ground for relief by motion; and under the saving clause, fraud may
be urged as a basis for relief by independent action insofar as established
doctrine permits. See Moore and Rogers, Federal Relief from Civil
Judgments (1946) 55 Yale L.J. 623, 653–659; 3 Moore's Federal Practice
(1938) 3267 et seq. And the rule expressly does not limit the power of the
court, when fraud has been perpetrated upon it, to give relief under the
saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co.
v. Hartford Empire Co. (1944) 322 U.S. 238.
The time limit for relief by motion in the court and in the action in which
the judgment was rendered has been enlarged from six months to one year.
It should be noted that Rule 60(b) does not assume to define the substantive
law as to the grounds for vacating judgments, but merely prescribes the
practice in proceedings to obtain relief.
It should also be noted that under §200(4) of the Soldiers’ and Sailors’ Civil
Relief Act of 1940 (50 U.S.C. [App.] §501 et seq. [§520(4)]), a judgment
rendered in any action or proceeding governed by the section may be
vacated under certain specified circumstances upon proper application to
the court.
Addendum 17
Note to Subdivision (a). This rule freely authorizes the taking of depositions
under the same circumstances and by the same methods whether for the
purpose of discovery or for the purpose of obtaining evidence. Many states
have adopted this practice on account of its simplicity and effectiveness,
safeguarding it by imposing such restrictions upon the subsequent use of
the deposition at the trial or hearing as are deemed advisable. See
Ark.Civ.Code (Crawford, 1934) §§606–607; Calif.Code Civ.Proc. (Deering,
24
1937) §2021; 1 Colo.Stat.Ann. (1935) Code Civ.Proc. §376; Idaho Code Ann.
(1932) §16–906; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110,
§259.19); Ill.Rev.Stat. (1937) ch. 51, §24; 2 Ind.Stat.Ann. (Burns, 1933) §§2–
1501, 2–1506; Ky.Codes (Carroll, 1932) Civ.Pract. §557; 1 Mo.Rev.Stat.
(1929) §1753; 4 Mont.Rev.Codes Ann. (1935) §10645; Neb.Comp.Stat. (1929)
ch. 20, §§1246–7; 4 Nev.Comp.Laws (Hillyer, 1929) §9001; 2 N.H.Pub.Laws
(1926) ch. 337, §1; N.C.Code Ann. (1935) §1809; 2 N.D.Comp.Laws Ann.
(1913) §§7889–7897; 2 Ohio Gen.Code Ann. (Page, 1926) §§11525–6; 1
Ore.Code Ann. (1930) Title 9, §1503; 1 S.D.Comp.Laws (1929) §§2713–16;
Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev.Stat.Ann. (1933)
§104–51–7; Wash. Rules of Practice adopted by the Supreme Ct., Rule 8, 2
Wash.Rev.Stat.Ann. (Remington, 1932) §308–8; W.Va.Code (1931) ch. 57,
art. 4, §1. Compare [former] Equity Rules 47 (Depositions—To be Taken in
Exceptional Instances); 54 (Depositions Under Revised Statutes, Sections
863, 865, 866, 867—Cross-Examination); 58 (Discovery—Interrogatories—
Inspection and Production of Documents—Admission of Execution or
Genuineness).
This and subsequent rules incorporate, modify, and broaden the provisions
for depositions under U.S.C., Title 28, [former] §§639 (Depositions de bene
esse; when and where taken; notice), 640 (Same; mode of taking), 641
(Same; transmission to court), 644 (Depositions under dedimus potestatem
and in perpetuam), 646 (Deposition under dedimus potestatem; how taken).
These statutes are superseded insofar as they differ from this and
subsequent rules. U.S.C., Title 28, [former] §643 (Depositions; taken in
mode prescribed by State laws) is superseded by the third sentence of
Subdivision (a).
While a number of states permit discovery only from parties or their agents,
others either make no distinction between parties or agents of parties and
ordinary witnesses, or authorize the taking of ordinary depositions, without
restriction, from any persons who have knowledge of relevant facts. See
Ark.Civ.Code (Crawford, 1934) §§606–607; 1 Idaho Code Ann. (1932) §16–
906; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, §259.19);
Ill.Rev.Stat. (1937) ch. 51, §24; 2 Ind.Stat.Ann. (Burns, 1933) §2–1501;
Ky.Codes (Carroll, 1932) Civ.Pract. §§554–558; 2 Md.Ann.Code (Bagby,
1924) Art. 35, §21; 2 Minn.Stat. (Mason, 1927) §9820; 1 Mo.Rev.Stat. (1929)
§§1753, 1759; Neb.Comp.Stat. (1929) ch. 20, §§1246–7; 2 N.H.Pub.Laws
(1926) ch. 337, §1; 2 N.D.Comp.Laws Ann. (1913) §7897; 2 Ohio Gen.Code
Ann. (Page, 1926) §§11525–6; 1 S.D.Comp.Laws (1929) §§2713–16;
Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev.Stat.Ann. (1933)
§104–51–7; Wash. Rules of Practice adopted by Supreme Ct., Rule 8, 2
25
Wash.Rev.Stat.Ann. (Remington, 1932) §308–8; W.Va.Code (1931) ch. 57,
art. 4, §1.
Addendum 18
Treason against the United States, shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort. No
person shall be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no
attainder of treason shall work corruption of blood, or forfeiture except
during the life of the person attainted.
26