You are on page 1of 76

No.

In the Supreme Court of the United States

MOHAN A. HARIHAR - Petitioner

v.

US BANK NA, et al - Respondents

ON PETITION FOR A WRIT OF CERTIORARI


TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

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

Petitioner is Mohan A. Harihar, the appellant below and plaintiff


in the district court.
Respondent is US BANK NA, an appellee below and defendant in
the district court.
Respondent is WELLS FARGO NA, an appellee below and
defendant in the district court.
Respondent is Commonwealth of Massachusetts, an appellee
below and defendant in the district court.
Respondent is Martha Coakley, Esq., an appellee below and
defendant in the district court.
Respondent is Nelson Mullins LLP, an appellee below and
defendant in the district court.
Respondent is K&L Gates, LLP an appellee below and defendant
in the district court.
Respondent is Harmon Law Offices PC, an appellee below and
defendant in the district court.
Respondent is Peter Haley, Esq., an appellee below and
defendant in the district court.
Respondent is David E. Fialkow, Esq., an appellee below and
defendant in the district court.
Respondent is Jeffrey S. Patterson, Esq., an appellee below and
defendant in the district court.
Respondent is Ken Daher, an appellee
below and defendant in the district court.
Respondent is Mary Koontz-Daher, an appellee below and
defendant in the district court.
Respondent is Jeffrey Perkins, an appellee below and defendant
in the district court.
Respondent is Isabelle Perkins, an appellee below and defendant
in the district court.
Respondent is RBMS Trust CMLTI 2006 AR-1 (including parent
company Citigroup Global Markets Realty Corp.), an appellee below
and defendant in the district court.

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

Appendix A — Replacement Panel (First Circuit)


Appendix B — Statutory provisions

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

UNITED STATES CONSTITUTION:


Article III, Section 3……………………………………….2,8

6
In the Supreme Court of the United States
No.

MOHAN A. HARIHAR - Petitioner

v.

US BANK NA, et al - Respondents

ON PETITION FOR A WRIT OF CERTIORARI


TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

PETITION FOR A WRIT OF CERTIORARI


___________________

Mohan A. Harihar respectfully petitions for a writ of


certiorari to review the judgment of the United States
Court of Appeals for the First Circuit in this case.

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

The case itself presents important and recurring questions


involving the US Foreclosure Crisis, including (but not limited to): (1)
the improper securitization of RMBS Trusts and its impact (at
minimum) to 4.2M foreclosures identified as “illegal”5; (2) Deceptive
practices involving the Petitioner’s foreclosure; and (3) The Intellectual
Property (IP) Rights/Trade Secret belonging to the Petitioner.6 After
introducing the original complaint in the US District Court (and
immediately after respondents filed Motions to Dismiss), a “Fraud on
the Court” claim was brought by the Petitioner against all respondents
under Fed. R. Civ. P. 60(b)(3). The Rule 60b motion went unopposed,
indicating grounds for default with prejudice, in favor of the Petitioner.
However, the presiding judge – Hon. Allison Dale Burroughs, ignored
the claim entirely, as if never raised. No evidentiary hearing was
scheduled, and despite the Petitioner’s repeated efforts to address the
claim, Judge Burroughs refused to even acknowledge the Rule 60b
motion. The Petitioner respectfully informed judge Burroughs that if
left uncorrected, refusing to uphold a Federal Rule of Civil Procedure
was grounds for disqualification. No corrective action was initiated,
showing cause to bring a judicial misconduct complaint followed by
claims of Treason under ARTICLE III, for continuing to rule after
losing jurisdiction. Subsequently, Judge Burroughs issued a void order

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.

STATEMENT OF THE CASE

1. Following Justice Breyer’s first acknowledgment of


(referenced) extraordinary, unresolved issues on June 8, 2018, it
appeared that the First Circuit began to initiate corrective action by
withdrawing the issued Mandate and vacating the referenced
Judgment. However, the series of events that have followed since – as
described in Applications 18A554 and 18A585, reveal a continued
pattern of corrupt conduct by an inferior, Replacement Circuit Panel
that appears intent on reaching a pre-determined outcome.
2. More than three (3) weeks after Justice Breyer granted
a second timeline extension (December 4, 2018), no further corrective
action had been initiated by the Replacement Panel. On December 28,
2018 the Petitioner filed a motion calling for the First Circuit to: (1)
Recall the Mandate; (2) Vacate the Judgment and (3) Allow the
Petitioner to amend his original complaint, based on this Court’s second
acknowledgment of extraordinary, unresolved issues and also the
Discovery of new evidence.10
3. Later that same day, December 28, 2018, the Petitioner
received a letter via email communication from the First Circuit Clerk –
Maria R. Hamilton. In the clerk’s letter, Ms. Hamilton references an
issued order dated October 5, 2018, where the court stated that "no
further filings from Appellant will be accepted in this appeal."
However, as a matter of record, Ms. Hamilton is aware that this
referenced “order” is considered void, as the record shows it has been
issued by an inferior replacement Circuit Panel that lacks the

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.

REASONS FOR GRANTING THE PETITION


A. There is a Clear and Intractable Conflict Regarding the Jurisdiction of
the Replacement Circuit Panel
This is fairly straightforward. The record clearly shows that every
presiding judicial officer – beginning with: (1) Judge Burroughs in the
District Court; followed by (2) the initial Circuit Panel; and (3) the
replacement Circuit Panel failed to even address/acknowledge a number
of Federal Rules beginning with Fed. R. Civ. P. Rule 60(b)(3) Fraud on
the Court. By intentionally refusing to uphold Federal law(s) and the
judicial machinery of the Court, presiding judges were considered
disqualified from ruling further in this litigation and was a primary
factor in bringing judicial misconduct complaints. The Petitioner’s
repeated efforts to clarify jurisdiction have been either ignored or
denied by all presiding judges, including the Replacement Circuit
Panel. Even if jurisdiction was not an issue, the facts of record
supporting questions - two (2) through nineteen (19), each show cause

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.

Every securitization — requires the creation and funding of a


securitization trust that must take physical possession and control of
the trust property on or before the closing date of the trust. The
securitization trustee is the sole and exclusive legal title holder of the
thousands of promissory notes, original mortgages and assignments of
mortgage. This transfer of the trust property, the legal res, to the trust
at or around the loan origination is a necessary condition precedent to a
valid securitization. It is necessary for several reasons.

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.

C. This Case is the Perfect Vehicle for Acknowledging an Economic


Framework that Stands to Benefit All Parties, including The United States
As a matter of record, the Petitioner’s Intellectual Property (IP), also
known as – “The Harihar FCS Model” is recognized as an economic
framework that was created by the Petitioner, designed to: (1) assist The
Illegally Foreclosed Homeowners with repairing damages suffered from the
US Foreclosure Crisis; while (2) delivering substantial economic growth;
and even (3) generating a new revenue stream to the impacted (original)
lender. Historically, this IP/Trade Secret has merit, having been
successfully presented to multiple government offices (including, but not
limited to): (1) the MA and NH State Attorney General’s Office; the
Congressional offices of both US Senator Elizabeth Warren (D-MA) and
former US Congresswoman Niki Tsongas (D-MA); the House Financial
Services Committee – Former Deputy Chief Counsel - Gail Laster, and the
Executive Office of the President (EOP) (under the Obama Administration)
– per the specific request of Vice President Joe Biden. Successfully
implemented, the FCS model is designed to conservatively deliver over $5T
of economic growth to the US, without the need of any new legislation, or a
single US tax dollar to implement. It will additionally help to bring

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.

D. The Appearance of Justice


This Supreme Court has ruled and has reaffirmed the principle that
“justice must satisfy the appearance of justice”, Levine v. United States,
362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348
U.S. 11, 14, 75 S.Ct. 11,13 (1954).
“Recusal under Section 455 is self -executing; a party need not file
affidavits in support of recusal and the judge is obligated to recuse
herself sua sponte under the stated circumstances.” Taylor v. O’Grady,
888 F.2d 1189 (7th Cir. 1989).
Further, the judge has a legal duty to disqualify himself even if there is
no motion asking for his disqualification. The Seventh Circuit Court of
Appeals further stated that “We think that this language (455(a))
imposes a duty on the judge to act sua sponte, even if no motion or
affidavit is filed.” Balistrieri, at 1202.
Judges do not have the discretion not to disqualify themselves. By law,
they are bound to follow the law. Should the judge not disqualify
himself as required by law, then the judge has given another example of
this “appearance of partiality”, which, possibly, further disqualifies the
judge. Should another judge not accept the disqualification of the judge,
then the second judge has evidenced an “appearance of partiality” and
possibly disqualified himself/herself. None of the orders issued by any
judge who has been disqualified by law would appear to be valid. It
would appear that they are void as a matter of law, and have no legal
force or effect.
If you are a non-represented litigant, and should the court not follow
the law as to non-represented litigants, then the judge has expressed an
15
“appearance of partiality” and, under the law it would seem that he/she
has disqualified him/herself.
However, since not all judges keep up to date in the law, and since not
all judges follow the law, it is possible that a judge may not know the
ruling of the U.S. Supreme Court and the other courts on this subject.
Notice that it states “disqualification is required” and that a judge
“must be disqualified” under certain circumstances.
The Supreme Court has also held that if a judge wars against the
Constitution, or if he acts without jurisdiction, he has engaged in
treason to the Constitution. If a judge acts after he has been
automatically disqualified by law, then he is acting without jurisdiction,
and that suggests that he is then engaging in criminal acts of treason,
and may be engaged in extortion and the interference with interstate
commerce.
Courts have repeatedly ruled that judges have no immunity from their
criminal acts. Since both treason and the interference with interstate
commerce are criminal acts, no judge has immunity to engage in such
acts.

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.

After reviewing the Judicial Codes of Conduct, it is the Petitioner’s


interpretation that one concept is nearly universal: judges are required
to avoid both actual impropriety and the appearance of impropriety
(“the appearance standard”). 11 In fact, Justice Kennedy’s majority
opinion in Caperton noted this commonality and further explained the
importance of such standards, in remarking that codes of conduct “serve
to maintain the integrity of the judiciary and the rule of law.”
Respectfully, as evidenced by the record, any objective observer who has
followed this litigation from the beginning will conclude: (1) a failure to
adhere to such standards; and (2) that the integrity of the First Circuit
Judiciary has long been compromised.

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

The Petition for Writ of Certiorari should be granted. Please be advised,


based on the Petitioner’s interpretation of Federal Law, and considering
a portion of his evidenced claims pertain to: (1) Criminal misconduct
involving judicial officers; (2) Economic Espionage; (3) Criminal SEC
violations; and (4) matters believed to impact National/Homeland
Security, copies of this Certiorari Petition are necessarily delivered (via
US Mail, E-mail and/or social media) to:

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
___________________________________

I, Mohan A. Harihar, a pro se litigant, do swear or declare that on this date,


January 28, 2019 , as required by Supreme Court Rule 29 I have served the
enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and
PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding
or that party’s counsel, and on every other person required to be served, by
depositing an envelope containing the above documents in the United States mail
properly addressed to each of them and with first-class postage prepaid, or by
delivery to a third-party commercial carrier for delivery within 3 calendar days.:

David E. Fialkow, Esq. (K&L Gates, LLP)


State Street Financial Center
One Lincoln Street
Boston, MA 02111
Phone: (617) 261-3126
david.fialkow@klgates.com

Counsel for Wells Fargo NA, US Bank NA, David E. Fialkow, Esq. and
Jeffrey S. Patterson, Esq.

Jesse M. Boodoo, Esq. (MA Office of the Attorney General)


One Ashburton Place, 18th Floor
Boston, MA 02108
617.727.2200 x 2592
jesse.boodoo@state.ma.us

Counsel for Commonwealth of MA and Martha Coakley, Esq.


19
Kevin Patrick Polansky, Esq. (Nelson Mullins, LLP)
One Post Office Square, 30th Floor
Boston, MA 01960
617.217.4720
kevin.polansky@nelsonmullins.com

Counsel for Nelson Mullins LLP and Peter Haley, Esq.

Matthew T. Murphy, Esq. (Casner & Edwards, LLP)


303 Congress Street
Boston, MA 02210
617.426.5900
mmurphy@casneredwards.com

Counsel for Ken and Mary Daher (Daher Companies)

Jeffrey B. Loeb, Esq. (Rich May, PC)


176 Federal Street
Boston, MA 02110
617.556.3871
JLoeb@richmaylaw.com

Counsel for Jeffrey and Isabelle Perkins

Kurt R. McHugh, Esq. (Harmon Law Offices, PC)


150 California Street
Newton, MA 02458
617.558.8435
kmchugh@harmonlaw.com

Counsel for Harmon Law, PC and Kurt R. McHugh, Esq.

Solicitor General of the United States


Attn: Solicitor General - Noel Francisco
Department of Justice, Room 5614
950 Pennsylvania Ave., N.W.
Washington, D. C. 20530–0001
202.514.2203

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

Exhibit 1, 08/07/18 Judgment Order and 09/07/18 Denial of Re-hearing................... 2


Exhibit 2, VP Presentation - HARIHAR FCS MODEL ............................................... 6
Exhibit 3, 03/21/17 District Court Dismissal and 06/19/17 Recusal .......................... 27
Exhibit 4, SEC Approved Criminal Complaint………………….................................. 30

23
Exhibit 1

24
Case: 17-1381 Document: 00117323394 Page: 1 Date Filed: 08/07/2018 Entry ID:
6189010

United States Court of Appeals


For the First Circuit
_____________________
No. 17-1381
MOHAN A. HARIHAR,

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,

DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq.,

Defendants.
__________________

Before

Howard, Chief Judge,


Lipez and Thompson, Circuit Judges.
__________________

JUDGMENT

Entered: August 7, 2018

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.

Affirmed. See 1st Cir. Loc. R. 27.0(c).

By the Court:

/s/ Margaret Carter, Clerk

cc: Mohan A. Harihar


David E. Fialkow
Jesse Mohan Boodoo
Kurt R. McHugh
Kevin Patrick Polansky
Matthew T. Murphy
Jeffrey B. Loeb
David Glod

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

Petition for Certiorari


Constitutional and Statutory Provisions Involved
HARIHAR v US BANK, et al

10
APPENDIX B

TABLE OF CONTENTS

28 U.S.C. § 1915 ............................................................................................... 2


18 U.S.C. § 1831 ............................................................................................... 2
28 U.S.C. §455(a) .............................................................................................. 2
28 U.S.C. § 144 ................................................................................................ 3
26 U.S.C. § 860G(d)(1) ...................................................................................... 3
18 U.S.C. § 2382 ............................................................................................... 3
18 U.S.C. § 242 ................................................................................................. 4
18 U.S.C. Chapter 96 ...................................................................................... 4
18 U.S.C § 241 .................................................................................................. 5
18 U.S.C. § 1001 ............................................................................................... 6
42 U.S.C. § 1983 ............................................................................................... 7
28 U.S.C. § 1254(1) ........................................................................................... 7
18 U.S.C. § 371 ................................................................................................. 8
18 U.S.C. § 2382 ............................................................................................... 8
15 U.S.C. 78ff(a) ............................................................................................... 8
Fed. R. Civ. P. 60(b)(2),(3),(4) and (6) ........................................................... 10
Fed. R. Civ. P. 26 (a)(1)(B)(viii)...................................................................... 14
Article III, Section 3 ....................................................................................... 15

11
Addendum 1

28 U.S.C. § 1915 (e)(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—

(1) steals, or without authorization appropriates, takes, carries away,


or conceals, or by fraud, artifice, or deception obtains a trade secret;

(2) without authorization copies, duplicates, sketches, draws,


photographs, downloads, uploads, alters, destroys, photocopies,
replicates, transmits, delivers, sends, mails, communicates, or conveys a
trade secret;

(3) receives, buys, or possesses a trade secret, knowing the same to


have been stolen or appropriated, obtained, or converted without
authorization;

(4) attempts to commit any offense described in any of paragraphs (1)


through (3); or

(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,

shall, except as provided in subsection (b), be fined not more than


$5,000,000 or imprisoned not more than 15 years, or both.

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

Whenever a party to any proceeding in a district court makes and files a


timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.

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)

(d)Tax on contributions after startup date

(1) In general

Except as provided in paragraph (2), if any amount is contributed to a


REMIC after the startup day, there is hereby imposed a tax for the taxable
year of the REMIC in which the contribution is received equal to 100
percent of the amount of such contribution.

Addendum 6

18 U.S.C. § 2382

Whoever, owing allegiance to the United States and having knowledge of


the commission of any treason against them, conceals and does not, as soon
as may be, disclose and make known the same to the President or to some
judge of the United States, or to the governor or to some judge or justice of a
particular State, is guilty of misprision of treason and shall be fined under
this title or imprisoned not more than seven years, or both.

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

Whoever, under color of any law, statute, ordinance, regulation, or custom,


willfully subjects any person in any State, Territory, Commonwealth,
Possession, or District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the United
States, or to different punishments, pains, or penalties, on account of such
person being an alien, or by reason of his color, or race, than are prescribed
for the punishment of citizens, shall be fined under this title or imprisoned
not more than one year, or both; and if bodily injury results from the acts
committed in violation of this section or if such acts include the use,
attempted use, or threatened use of a dangerous weapon, explosives, or fire,
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, 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(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

18 U.S.C. Chapter 96, 18 U.S. Code § 1964

(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.

(b)The Attorney General may institute proceedings under this section.


Pending final determination thereof, the court may at any time enter such
restraining orders or prohibitions, or take such other actions, including the
acceptance of satisfactory performance bonds, as it shall deem proper.

(c)Any person injured in his business or property by reason of a violation of


section 1962 of this chapter may sue therefor in any appropriate United
States district court and shall recover threefold the damages he sustains
and the cost of the suit, including a reasonable attorney’s fee, except that no
person may rely upon any conduct that would have been actionable as fraud
in the purchase or sale of securities to establish a violation of section 1962.
The exception contained in the preceding sentence does not apply to an
action against any person that is criminally convicted in connection with
the fraud, in which case the statute of limitations shall start to run on the
date on which the conviction becomes final.

(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

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; or

If two or more persons go in disguise on the highway, or on the premises of


another, with intent to prevent or hinder his free exercise or enjoyment of
any right or privilege so secured—

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

(a)Except as otherwise provided in this section, whoever, in any matter


within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material


fact;

(2) makes any materially false, fictitious, or fraudulent statement or


representation; or

(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.

(b)Subsection (a) does not apply to a party to a judicial proceeding, or that


party’s counsel, for statements, representations, writings or documents
submitted by such party or counsel to a judge or magistrate in that
proceeding.

16
(c)With respect to any matter within the jurisdiction of the legislative
branch, subsection (a) shall apply only to—

(1) administrative matters, including a claim for payment, a matter related


to the procurement of property or services, personnel or employment
practices, or support services, or a document required by law, rule, or
regulation to be submitted to the Congress or any office or officer within the
legislative branch; or

(2)any investigation or review, conducted pursuant to the authority of any


committee, subcommittee, commission or office of the Congress, consistent
with applicable rules of the House or Senate.

(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

42 U.S. Code § 1983

Every person who, under color of any statute, ordinance, regulation,


custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of Columbia.

(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)

Cases in the courts of appeals may be reviewed by the Supreme Court by


the following methods:

(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

Whoever, owing allegiance to the United States and having knowledge of


the commission of any treason against them, conceals and does not, as soon
as may be, disclose and make known the same to the President or to some
judge of the United States, or to the governor or to some judge or justice of a
particular State, is guilty of misprision of treason and shall be fined under
this title or imprisoned not more than seven years, or both.

(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)

(a)Willful violations; false and misleading statements

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.

(b)Failure to file information, documents, or reports

Any issuer which fails to file information, documents, or reports required to


be filed under subsection (d) of section 78o of this title or any rule or
regulation thereunder shall forfeit to the United States the sum of $100 for
each and every day such failure to file shall continue. Such forfeiture, which
shall be in lieu of any criminal penalty for such failure to file which might
be deemed to arise under subsection (a) of this section, shall be payable into
the Treasury of the United States and shall be recoverable in a civil suit in
the name of the United States.

(c)Violations by issuers, officers, directors, stockholders, employees, or


agents of issuers

(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)

(A)Any officer, director, employee, or agent of an issuer, or stockholder


acting on behalf of such issuer, who willfully violates subsection (a) or (g) of
section 78dd–1 of this title shall be fined not more than $100,000, or
imprisoned not more than 5 years, or both.

(B)Any officer, director, employee, or agent of an issuer, or stockholder


acting on behalf of such issuer, who 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.

(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

Fed. R. Civ. P. 60(b)(2),(3),(4) and (6)

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On


motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:

(2) newly discovered evidence that, with reasonable diligence, could


not have been discovered in time to move for a new trial under Rule
59(b);

20
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(6) any other reason that justifies relief.

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.

Subdivision (b). When promulgated, the rules contained a number of


provisions, including those found in Rule 60(b), describing the practice by a
motion to obtain relief from judgments, and these rules, coupled with the
reservation in Rule 60(b) of the right to entertain a new action to relieve a
party from a judgment, were generally supposed to cover the field. Since the
rules have been in force, decisions have been rendered that the use of bills
of review, coram nobis, or audita querela, to obtain relief from final
judgments is still proper, and that various remedies of this kind still exist
although they are not mentioned in the rules and the practice is not
prescribed in the rules. It is obvious that the rules should be complete in
this respect and define the practice with respect to any existing rights or
remedies to obtain relief from final judgments. For extended discussion of
the old common law writs and equitable remedies, the interpretation of
Rule 60, and proposals for change, see Moore and Rogers, Federal Relief
from Civil Judgments (1946) 55 Yale L.J. 623. See also 3 Moore's Federal
Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other
Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942, 945;
Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944)
323 U.S. 712.

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.

To illustrate the operation of the amendment, it will be noted that under


Rule 59(b) as it now stands, without amendment, a motion for new trial on
the ground of newly discovered evidence is permitted within ten days after
the entry of the judgment, or after that time upon leave of the court. It is
proposed to amend Rule 59(b) by providing that under that rule a motion
for new trial shall be served not later than ten days after the entry of the
judgment, whatever the ground be for the motion, whether error by the
court or newly discovered evidence. On the other hand, one of the purposes
of the bill of review in equity was to afford relief on the ground of newly
discovered evidence long after the entry of the judgment. Therefore, to
permit relief by a motion similar to that heretofore obtained on bill of
review, Rule 60(b) as amended permits an application for relief to be made
by motion, on the ground of newly discovered evidence, within one year
after judgment. Such a motion under Rule 60(b) does not affect the finality
of the judgment, but a motion under Rule 59, made within 10 days, does
affect finality and the running of the time for appeal.

If these various amendments, including principally those to Rule 60(b),


accomplish the purpose for which they are intended, the federal rules will

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.

Fraud, whether intrinsic or extrinsic, misrepresentation, or other


misconduct of an adverse party are express grounds for relief by motion
under amended subdivision (b). There is no sound reason for their
exclusion. The incorporation of fraud and the like within the scope of the
rule also removes confusion as to the proper procedure. It has been held
that relief from a judgment obtained by extrinsic fraud could be secured by
motion within a “reasonable time,” which might be after the time stated in

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

Fed. R. Civ. P. 26 (a)(1)(B)(viii)

(viii) a proceeding ancillary to a proceeding in another court;

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.

The more common practice in the United States is to take depositions on


notice by the party desiring them, without any order from the court, and
this has been followed in these rules. See Calif.Code Civ.Proc. (Deering
1937) §2031; 2 Fla.Comp.Gen.Laws Ann. (1927) §§4405–7; 1 Idaho Code
Ann. (1932) §16–902; Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch.
110, §25919); Ill.Rev.Stat. (1937) ch. 51, §24; 2 Ind.Stat.Ann. (Burns, 1933)
§2–1502; Kan.Gen.Stat.Ann. (1935) §60–2827; Ky.Codes (Carroll, 1932)
Civ.Pract. §565; 2 Minn.Stat. (Mason, 1927) §9820; 1 Mo.Rev.Stat. (1929)
§1761; 4 Mont.Rev.Codes Ann. (1935) §10651; Nev.Comp.Laws (Hillyer,
1929) §9002; N.C.Code Ann. (1935) §1809; 2 N.D.Comp.Laws Ann. (1913)
§7895; Utah Rev.Stat.Ann. (1933) §104–51–8.

Addendum 18

Article III, Section 3

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