Black's Law Dictionary,
Sixth Edition, page 247:
To demand as one's
own or as one's right; to assert; to urge; to insist. A cause
of action. Means by or through which claimant obtains possession
or enjoyment of privilege or thing. Demand for money or property
as of right, e.g. insurance claim. U.S. v. Tieger, D.C.N.J., 138
F.Supp. 709, 710.
With respect to claims
to a negotiable instrument of which a holder in due course takes free,
the term "claim" means any interest or remedy recognized in law or equity
that creates in the claimant a right to the interest or its proceeds.
Right to payment, whether
or not such right is reduced to judgment, liquidated, or unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured; or right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured,
or unsecured. Bankrupcy Code §101.
In conflicts of law,
a receiver may be appointed in any state which has jurisdiction over
the defendant who owes a claim. Restatement, Second, Conflicts,
§369.
In patent law, a claim
is an assertion of what the invention purports to accomplish, and claims
of a patent define the invention and the extent of the grant; any feature
of an invention not stated in the claim is beyond the scope of patent
protection. Smith v. ACME General Corp., C.A.Ohio, 614 F.2d 1086,
1088.
Great IRS Hoax, section
10.8 and 10.8.2, Version 1.89:
Every legal case must proceed on the
basis of a statutory or
common-law claim. That is to say that a claim against
the IRS or the government must be based on laws which prohibit some
type of harmful activity against the citizen for being compelled to
pay a voluntary tax. A claim typically might involve issues of
fraud, extortion, civil rights violations, theft, malfeasance, discrimination,
racketeering, or tort liability, for example. A claim might also
involve the correct application and observance of any one of the Internal
Revenue Code sections by the IRS.
Without such a claim, the tax
case will be dismissed by the court with prejudice because it lacks
merit. One of the most common mistakes (in over half
of the pro per litigant tax cases heard by the Tax Court and the Federal
District Court) that layman tax protesters do is fail to state a claim
upon which relief can be granted by the court. The claim can be
based on either criminal or civil statutes that require or prohibit
some specific act. Criminal claims call directly for damages against
the offender and these damages are usually part of the criminal code
in Title 4. The better of the two to base a tax case on are criminal
statutes, because then the person wronged can file charges and the government
will assist with and pay for the prosecution of the offense.
Criminal cases must be prosecuted by a public defender (U.S. Attorneys
from the Department of Justice, for instance) at no cost to the taxpayer.
Another very important
aspect of pursuing a claim is that every claim has certain elements
required to prove it. For instance, the charge of criminal
fraud requires the
following three elements to be proven in front of the jury:
1. There was concealment or misrepresentation.
2. That the party making the false representation knew that it was false
at the time they made it.
3. That the concealment would prevent or prevented the aggrieved party
from fully presenting his or her case.
4. That the concealment damaged the interests of the aggrieved party.
You may need some help from an attorney coming
up with a good set of elements to use in proving the claims for which
you are seeking relief from the court for. As time goes on, we
will do our best to compile the elements of each of the claims presented
in the previous section and add them to this book.
Table 10-1: Claims
required to Prosecute for unlawful collecting of tax
|
Crime |
Penalty |
Law |
Code sectionSupreme Court Case(s)
Constitutional references |
|
Jurisdiction of the Federal District Courts |
NA |
Describes the extent of jurisdiction of the federal district
courts relative to civil actions against the United States related
to taxes. |
26 U.S.C. 7402 |
|
Penalty for officers or employees taking more money than is
required by law |
Shall be dismissed from office or discharged from employment
and, upon conviction thereof, shall be fined not more than $10,000,
or imprisoned not more than 5 years, or both. The court may
in its discretion award out of the fine so imposed an amount,
not in excess of one-half thereof, for the use of the informer,
if any, who shall be ascertained by the judgment of the court.
The court also shall render judgment against the said officer
or employee for the amount of damages sustained in favor of
the party injured, to be collected by execution. |
a) Unlawful acts of revenue officers or agents Any officer or
employee of the United States acting in connection with any
revenue law of the United States - (1) who is guilty of any
extortion or willful oppression under color of law; or (2) who
knowingly demands other or greater sums than are authorized
by law, or receives any fee, compensation, or reward, except
as by law prescribed, for the performance of any duty; or (3)
who with intent to defeat the application of any provision of
this title fails to perform any of the duties of his office
or employment; or (4) who conspires or colludes with any other
person to defraud the United States; or (5) who knowingly makes
opportunity for any person to defraud the United States; or
(6) who does or omits to do any act with intent to enable any
other person to defraud the United States; or (7) who makes
or signs any fraudulent entry in any book, or makes or signs
any fraudulent certificate, return, or statement; or (8) who,
having knowledge or information of the violation of any revenue
law by any person, or of fraud committed by any person against
the United States under any revenue law, fails to report, in
writing, such knowledge or information to the Secretary; or
(9) who demands, or accepts, or attempts to collect, directly
or indirectly as payment or gift, or otherwise, any sum of money
or other thing of value for the compromise, adjustment, or settlement
of any charge or complaint for any violation or alleged violation
of law, except as expressly authorized by law so to do. |
26 U.S.C. §7214 |
|
Engaging in monetary transactions in property derived from specified
unlawful activity |
(b)(1) Except as provided in paragraph (2), the punishment for
an offense under this section is a fine under title 18, United
States Code, or imprisonment for not more than ten years or
both. (2) The court may impose an alternate fine to that imposable
under paragraph (1) of not more than twice the amount of the
criminally derived property involved in the transaction.
|
(a) Whoever, in any of the circumstances set forth in subsection
(d), knowingly engages or attempts to engage in a monetary transaction
in criminally derived property of a value greater than $10,000
and is derived from specified unlawful activity, shall be punished
as provided in subsection (b). (c) In a prosecution for an offense
under this section, the Government is not required to prove
the defendant knew that the offense from which the criminally
derived property was derived was specified unlawful activity.
(d) The circumstances referred to in subsection (a) are - (1)
that the offense under this section takes place in the United
States or in the special maritime and territorial jurisdiction
of the United States; or |
18 U.S.C. 1957 |
|
Conspiracy against rights
|
They shall be fined under this title or imprisoned not more
than ten years, or both |
If two or more persons conspire to injure, oppress, threaten,
or intimidate any person in any State, Territory, Commonwealth,
Possession, or District in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or
laws of the United States, or because of his having so exercised
the same |
18 U.S.C. 241 |
|
Federally protected rights being violated |
Shall be fined under this title, or imprisoned not more than
one year, or both. |
(b) Whoever, whether or not acting under color of law, by force
or threat of force willfully injures, intimidates or interferes
with, or attempts to injure, intimidate or interfere with -
(1) any person because
he is or has been, or in order to intimidate such person or
any other person or any class of persons from -
(B)
participating in or enjoying any benefit, service, privilege,
program, facility, or activity provided or administered by the
United States;
(C)
applying for or enjoying employment, or any perquisite thereof,
by any agency of the United States;
(D)
serving, or attending upon any court in connection with possible
service, as a grand or petit juror in any court of the United
States.
|
18 U.S.C. 245 |
|
Extortion |
Shall be fined under this title or imprisoned not more than
three years, or both; but if the amount so extorted or demanded
does not exceed $1,000, he shall be fined under this title or
imprisoned not more than one year, or both. |
Whoever, being an officer, or employee of the United States
or any department or agency thereof, or representing himself
to be or assuming to act as such, under color or pretense of
office or employment commits or attempts an act of extortion. |
18 U.S.C. 872 |
|
Receiving the proceeds of Extortion |
Shall be imprisoned not more than 3 years, fined under this
title, or both. |
A person who receives, possesses, conceals, or disposes of any
money or other property which was obtained from the commission
of any offense under this chapter that is punishable by imprisonment
for more than 1 year, knowing the same to have been unlawfully
obtained |
18 U.S.C. 880 |
|
Mailing Threatening Communications |
Shall be fined under this title or imprisoned not more than
two years, or both. |
Whoever, with intent to extort from any person any money or
other thing of value, knowingly so deposits or causes to be
delivered, as aforesaid, any communication, with or without
a name or designating mark subscribed thereto, addressed to
any other person and containing any threat to injure the property
or reputation of the addressee or of another, or the reputation
of a deceased person, or any threat to accuse the addressee
or any other person of a crime |
18 U.S.C. 876 |
|
Blackmail |
Shall be fined under this title or imprisoned not more than
one year, or both. |
Whoever, under a threat of informing, or as a consideration
for not informing, against any violation of any law of the United
States, demands or receives any money or other valuable thing.
|
18 U.S.C. 873 |
|
Retaliating against a witness, victim, or an informant |
Shall be fined under this title or imprisoned not more than
ten years, or both. (c) If the retaliation occurred because
of attendance at or testimony in a criminal case, the maximum
term of imprisonment which may be imposed for the offense under
this section shall be the higher of that otherwise provided
by law or the maximum term that could have been imposed for
any offense charged in such case. (d) There is extraterritorial
Federal jurisdiction over an offense under this section.
|
(b) Whoever knowingly engages in any conduct and thereby causes
bodily injury to another person or damages the tangible property
of another person, or threatens to do so, with intent to retaliate
against any person for - (1) the attendance of a witness or
party at an official proceeding, or any testimony given or any
record, document, or other object produced by a witness in an
official proceeding; or (2) any information relating to the
commission or possible commission of a Federal offense or a
violation of conditions of probation, parole, or release pending
judicial proceedings given by a person to a law enforcement
officer; or attempts to do so. |
18 U.S.C. 1513 |
|
False writings |
Shall be fined under this title or imprisoned not more than
one year, or both. |
Whoever, being a public officer or other person authorized by
any law of the United States to make or give a certificate or
other writing, knowingly makes and delivers as true such a certificate
or writing, containing any statement which he knows to be false,
in a case where the punishment thereof is not elsewhere expressly
provided by law. |
18 U.S.C. 1018 |
|
Officers of U.S. concerned with collection or disbursement using
public funds for a private trade or business |
Shall be imprisoned for one year or fined and shall be permanently
removed from public and unable to hold another job |
Whoever, being an officer of the United States concerned in
the collection or the disbursement of the revenues thereof,
carries on any trade or business in the funds or debts of the
United States, or of any State, or in any public property of
either, shall be fined under this title or imprisoned not more
than one year, or both. |
18 U.S.C. 1901 |
|
Searches without a warrant |
Shall be fined for a first offense not more than $1,000; and,
for a subsequent offense, shall be fined under this title or
imprisoned not more than one year, or both. |
Whoever, being an officer, agent, or employee of the United
States or any department or agency thereof, engaged in the enforcement
of any law of the United States, searches any private dwelling
used and occupied as such dwelling without a warrant directing
such search, or maliciously and without reasonable cause searches
any other building or property without a search warrant. |
18 U.S.C. 2236 |
|
Taking of property that is not based on law |
None listed |
(1) Rule I. An exaction by the U.S. Government, which is not
based upon law, statutory or otherwise, is a taking of property
without due process of law, in violation of the Fifth Amendment
to the U.S. Constitution. Accordingly, an Appeals representative
in his or her conclusions of fact or application of the law,
shall hew to the law and the recognized standards of legal construction.
It shall be his or her duty to determine the correct amount
of the tax, with strict impartiality as between the taxpayer
and the Government, and without favoritism or discrimination
as between taxpayers. |
26 CFR § 601.106(f)(1) |
|
Retaliating against or harassing a taxpayer |
Charged with misconduct and employment terminated. |
The section provides that IRS employees must be charged with
misconduct and terminated if there has been a judicial or final
administrative determination that the employee committed any
of the following acts or omissions:
- willful failure to obtain the required approval signatures
on documents authorizing the seizure of a taxpayer’s home,
personal belongings, or business assets;
- providing a false statement under oath with respect
to a material matter involving a taxpayer or taxpayer representative;
- with respect to a taxpayer, taxpayer representative,
or other employee of the Internal Revenue Service, the violation
of --
- any right under the Constitution of the United States;
or
- any civil right established under --
- title VI or VII of the Civil Rights Act of 1964;
- title IX of the Education Amendments of 1972;
- the Age Discrimination in Employment Act of
1967;
- the Age Discrimination Act of 1975;
- section 501 or 504 of the Rehabilitation Act
of 1973; or
- title I of the Americans with Disabilities Act
of 1990;
- falsifying or destroying documents to conceal mistakes
made by any employee with respect to a matter involving
a taxpayer or taxpayer representative;
- assault or battery on a taxpayer, taxpayer representative,
or other employee of the Internal Revenue Service, but only
if there is a criminal conviction, or a final judgment by
a court in a civil case, with respect to the assault or
battery;
- violations of the Internal Revenue Code of 1986, Department
of Treasury regulations, or policies of the Internal Revenue
Service (including the Internal Revenue Manual) for the
purpose of retaliating against, or harassing, a taxpayer,
taxpayer representative, or other employee of the Internal
Revenue Service;
- willful misuse of the provisions of section 6103 of
the Internal Revenue Code of 1986 for the purpose of concealing
information from a congressional inquiry,
- willful failure to file any return of tax required under
the Internal Revenue Code of 1986 on or before the date
prescribed therefor (including any extensions), unless such
failure is due to reasonable cause and not to willful neglect,
- willful understatement of Federal tax liability, unless
such understatement is due to reasonable cause and not to
willful neglect, and
- threatening to audit a taxpayer for the purpose of extracting
personal gain or benefit.
The Commissioner has the sole discretion, which he cannot delegate,
to determine whether to take a personnel action other than termination
for the described acts or omissions. Such determination may
not be appealed in any administrative or judicial proceeding.
(See
http://www.irs.gov/prod/tax_regs/rra-1203.html) |
Section 1203, IRS Restructuring and Reform Act of 1998 |
|
Civil damages for certain unauthorized collection actions
|
(b) Damages In any action brought under subsection (a) or petition
filed under subsection (e), upon a finding of liability on the
part of the defendant, the defendant shall be liable to the
plaintiff in an amount equal to the lesser of $1,000,000 ($100,000,
in the case of negligence) or the sum of - (1) actual, direct
economic damages sustained by the plaintiff as a proximate result
of the reckless or intentional or negligent actions of the officer
or employee, and (2) the costs of the action. (c) Payment authority
Claims pursuant to this section shall be payable out of funds
appropriated under section 1304 of title 31, United States Code.
(d) Limitations (1) Requirement that administrative remedies
be exhausted A judgment for damages shall not be awarded under
subsection (b) unless the court determines that the plaintiff
has exhausted the administrative remedies available to such
plaintiff within the Internal Revenue Service. (2) Mitigation
of damages The amount of damages awarded under subsection (b)(1)
shall be reduced by the amount of such damages which could have
reasonably been mitigated by the plaintiff. (3) Period for bringing
action Notwithstanding any other provision of law, an action
to enforce liability created under this section may be brought
without regard to the amount in controversy and may be brought
only within 2 years after the date the right of action accrues.
(e) Actions for violations of certain bankruptcy procedures
(1) In general If, in connection with any collection of Federal
tax with respect to a taxpayer, any officer or employee of the
Internal Revenue Service willfully violates any provision of
section 362 (relating to automatic stay) or 524 (relating to
effect of discharge) of title 11, United States Code (or any
successor provision), or any regulation promulgated under such
provision, such taxpayer may petition the bankruptcy court to
recover damages against the United States. (2) Remedy to be
exclusive (A) In general Except as provided in subparagraph
(B), notwithstanding section 105 of such title 11, such petition
shall be the exclusive remedy for recovering damages resulting
from such actions. (B) Certain other actions permitted Subparagraph
(A) shall not apply to an action under section 362(h) of such
title 11 for a violation of a stay provided by section 362 of
such title; except that - (i) administrative and litigation
costs in connection with such an action may only be awarded
under section 7430; and (ii) administrative costs may be awarded
only if incurred on or after the date that the bankruptcy petition
is filed. |
If, in connection with any collection of Federal tax with respect
to a taxpayer, any officer or employee of the Internal Revenue
Service recklessly or intentionally, or by reason of negligence,
disregards any provision of this title, or any regulation promulgated
under this title, such taxpayer may bring a civil action for
damages against the United States in a district court of the
United States. Except as provided in section 7432, such civil
action shall be the exclusive remedy for recovering damages
resulting from such actions. |
26 USC § 7433 |
|
Fraud |
Fine and imprisonment not more than one year or both.. |
Sec. 1018. Official certificates or writings Whoever,
being a public officer or other person authorized by any law
of the United States to make or give a certificate or other
writing, knowingly makes and delivers as true such a certificate
or writing, containing any statement which he knows to be false,
in a case where the punishment thereof is not elsewhere expressly
provided by law, shall be fined under this title or imprisoned
not more than one year, or both. |
18 U.S.C. Sec. 1018 |
|
Sale or receipt of stolen goods |
Shall be fined under this title or imprisoned not more than
ten years, or both. |
Sec. 2315. Sale or receipt of stolen goods, securities, moneys,
or fraudulent State tax stamps Whoever receives, possesses,
conceals, stores, barters, sells, or disposes of any goods,
wares, or merchandise, securities, or money of the value of
$5,000 or more, or pledges or accepts as security for a loan
any goods, wares, or merchandise, or securities, of the value
of $500 or more, which have crossed a State or United States
boundary after being stolen, unlawfully converted, or taken,
knowing the same to have been stolen, unlawfully converted,
or taken; or
Whoever receives, possesses, conceals, stores, barters, sells,
or disposes of any falsely made, forged, altered, or counterfeited
securities or tax stamps, or pledges or accepts as security
for a loan any falsely made, forged, altered, or counterfeited
securities or tax stamps, moving as, or which are a part of,
or which constitute interstate or foreign commerce, knowing
the same to have been so falsely made, forged, altered, or counterfeited;
or
Whoever receives in interstate or foreign commerce, or conceals,
stores, barters, sells, or disposes of, any tool, implement,
or thing used or intended to be used in falsely making, forging,
altering, or counterfeiting any security or tax stamp, or any
part thereof, moving as, or which is a part of, or which constitutes
interstate or foreign commerce, knowing that the same is fitted
to be used, or has been used, in falsely making, forging, altering,
or counterfeiting any security or tax stamp, or any part thereof
-
Shall be fined under this title or imprisoned not more than
ten years, or both.
This section shall not apply to any falsely made, forged, altered,
counterfeited, or spurious representation of an obligation or
other security of the United States or of an obligation, bond,
certificate, security, treasury note, bill, promise to pay,
or bank note, issued by any foreign government. This section
also shall not apply to any falsely made, forged, altered, counterfeited,
or spurious representation of any bank note or bill issued by
a bank or corporation of any foreign country which is intended
by the laws or usage of such country to circulate as money.
For purposes of this section, the term ''State'' includes a
State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
|
18 U.S.C. Sec. 2315 |
|
Frauds and swindles |
shall be fined not more than $1,000,000 or imprisoned not more
than 30 years, or both. |
Sec. 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or
promises, or to sell, dispose of, loan, exchange, alter, give
away, distribute, supply, or furnish or procure for unlawful
use any counterfeit or spurious coin, obligation, security,
or other article, or anything represented to be or intimated
or held out to be such counterfeit or spurious article, for
the purpose of executing such scheme or artifice or attempting
so to do, places in any post office or authorized depository
for mail matter, any matter or thing whatever to be sent or
delivered by the Postal Service, or deposits or causes to be
deposited any matter or thing whatever to be sent or delivered
by any private or commercial interstate carrier, or takes or
receives therefrom, any such matter or thing, or knowingly causes
to be delivered by mail or such carrier according to the direction
thereon, or at the place at which it is directed to be delivered
by the person to whom it is addressed, any such matter or thing,
shall be fined under this title or imprisoned not more than
five years, or both. If the violation affects a financial institution,
such person shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both. |
18 U.S.C. 1341 |
|
Property used in violation of internal revenue laws |
Loss of all property |
Sec. 7302. Property used in violation of internal revenue
laws
It shall be unlawful to have or possess any property intended
for use in violating the provisions of the internal revenue
laws, or regulations prescribed under such laws, or which has
been so used, and no property rights shall exist in any such
property. A search warrant may issue as provided in chapter
205 of title 18 of the United States Code and the Federal
Rules of Criminal Procedure for the seizure of such property.
Nothing in this section shall in any manner limit or affect
any criminal or forfeiture provision of the internal revenue
laws, or of any other law. The seizure and forfeiture of any
property under the provisions of this section and the disposition
of such property subsequent to seizure and forfeiture, or the
disposition of the proceeds from the sale of such property,
shall be in accordance with existing laws or those hereafter
in existence relating to seizures, forfeitures, and disposition
of property or proceeds, for violation of the internal revenue
laws. |
26 U.S.C. 7302 |
|
Civil damages for failure to release lien |
(b) DamagesIn any action brought under subsection (a), upon
a finding of liability on the part of the defendant, the defendant
shall be liable to the plaintiff in an amount equal to the sum
of -
(1) actual, direct economic damages sustained by the plaintiff
which, but for the actions of the defendant, would not have
been sustained, plus
(2) the costs of the action. |
(a) In general
If any officer or
employee of the Internal Revenue Service knowingly, or by reason
of negligence, fails to release a lien under section 6325 on
property of the taxpayer, such taxpayer may bring a civil action
for damages against the United States in a district court of
the United States.
(c) Payment
authority
Claims pursuant to
this section shall be payable out of funds appropriated under
section 1304 of title 31, United States Code.
(d) Limitations
(1) Requirement that
administrative remedies be exhausted
A judgment for damages
shall not be awarded under subsection
(b) unless the court
determines that the plaintiff has exhausted the administrative
remedies available to such plaintiff within the Internal Revenue
Service.
(2) Mitigation of
damages
The amount of damages
awarded under subsection (b)(1) shall be reduced by the amount
of such damages which could have reasonably been mitigated by
the plaintiff.
(3) Period for bringing
action
Notwithstanding any
other provision of law, an action to enforce liability created
under this section may be brought without regard to the amount
in controversy and may be brought only within 2 years after
the date the right of action accrues.
(e) Notice of failure
to release lien
The Secretary shall
by regulation prescribe reasonable procedures for a taxpayer
to notify the Secretary of the failure to release a lien under
section 6325 on property of the taxpayer.
|
26 U.S.C. 7432 |
|
Continuing financial crimes enterprise |
Shall be fined not more than $10,000,000 if an individual, or
$20,000,000 if an organization, and imprisoned for a term of
not less than 10 years and which may be life. |
(a) Whoever -
(1) organizes, manages, or supervises a continuing financial crimes enterprise;
and\
(2) receives $5,000,000 or more in gross receipts from such
enterprise during any 24-month period, shall be fined not more
than $10,000,000 if an individual, or $20,000,000 if an organization,
and imprisoned for a term of not less than 10 years and
which may be life.
(b) For purposes of subsection (a), the term ''continuing
financial crimes enterprise'' means a series of violations
under section 215, 656, 657, 1005, 1006, 1007, 1014, 1032,
or 1344 of this title, or section 1341 or 1343 affecting
a financial institution, committed by at least 4 persons
acting in concert. |
18 U.S.C. 225 |
|
Slavery (of a financial nature) |
Shall be fined under this title or imprisoned not more than
10 years, or both. |
Sec. 1581. Peonage; obstructing enforcement
(a) Whoever holds or returns any person to a condition of
peonage, or arrests any person with the intent of placing him
in or returning him to a condition of peonage, shall be fined
under this title or imprisoned not more than 10 years, or both.
(b) Whoever obstructs, or attempts to obstruct, or in any way interferes
with or prevents the enforcement of this section, shall be liable
to the penalties prescribed in subsection (a). |
18 U.S.C. 1581;
Thirteenth Amendment;
197 U.S. 207, 215 (slavery for indebtedness);
240 U.S. 328 (compelled government labor) |
|
Conflict of interest
|
Any justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned. |
(a) Any justice,
judge, or magistrate of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably
be questioned.
(b) He shall also
disqualify himself in the following circumstances:
(1)
Where he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning
the proceeding;
(2) Where
in private practice he served as lawyer in the matter in controversy,
or a lawyer with whom he previously practiced law served during
such association as a lawyer concerning the matter, or the judge
or such lawyer has been a material witness concerning it;
(3) Where
he has served in governmental employment and in such capacity
participated as counsel, adviser or material witness concerning
the proceeding or expressed an opinion concerning the merits
of the particular case in controversy;
(4) He knows
that he, individually or as a fiduciary, or his spouse or minor
child residing in his household, has a financial interest in
the subject matter in controversy or in a party to the proceeding,
or any other interest that could be substantially affected by
the outcome of the proceeding;
(5) He or
his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could
be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material
witness in the proceeding.
(c) A judge should
inform himself about his personal and fiduciary financial interests,
and make a reasonable effort to inform himself about the personal
financial interests of his spouse and minor children residing
in his household.
(d) For the purposes
of this section the following words or phrases shall have the
meaning indicated:
(1) ''proceeding''
includes pretrial, trial, appellate review, or other stages
of litigation;
(2) the degree
of relationship is calculated according to the civil law system;
(3) ''fiduciary''
includes such relationships as executor,
administrator, trustee, and guardian;
(4) ''financial
interest'' means ownership of a legal or equitable interest,
however small, or a relationship as director, adviser, or other
active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds
securities is not a ''financial interest'' in such securities
unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal,
or civic organization is not a ''financial interest'' in securities
held by the organization;
(iii) The proprietary interest of a policyholder in a mutual
insurance company, of a depositor in a mutual savings association,
or a similar proprietary interest, is a ''financial interest''
in the organization only if the outcome of the proceeding could
substantially affect the value of the interest;
(iv) Ownership of government securities is a ''financial
interest'' in the issuer only if the outcome of the proceeding
could substantially affect the value of the securities.
(e) No justice, judge,
or magistrate shall accept from the parties to the proceeding
a waiver of any ground for disqualification enumerated in subsection
(b). Where the ground for disqualification arises only under
subsection
(a), waiver may be accepted provided it is preceded by a full
disclosure on the record of the basis for disqualification.
(f) Notwithstanding
the preceding provisions of this section, if any justice, judge,
magistrate, or bankruptcy judge to whom a matter has been
assigned would be disqualified, after substantial judicial time
has been devoted to the matter, because of the appearance or
discovery, after the matter was assigned to him or her,
that he or she individually or as a fiduciary, or his or her
spouse or minor child residing in his or her household, has
a financial interest in a party (other than an interest that
could be substantially affected by the outcome), disqualification
is not required if the justice, judge, magistrate, bankruptcy
judge, spouse or minor child, as the case may be, divests himself
or herself of the interest that provides the grounds for
the disqualification.
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28 U.S.C. 455 |
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