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United States v. Viola

United States District Court, W.D. Louisiana, Lafayette Division

July 27, 2017

UNITED STATES OF AMERICA
v.
PAUL JOSEPH VIOLA

          MEMORANDUM ORDER

          S. MAURICE HICKS, JR.UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Recuse (Record Document 86) filed by the defendant, Paul Joseph Viola (“Viola”). Viola seeks recusal of the undersigned pursuant to 28 U.S.C. § 455. For the reasons set forth below, the Motion to Recuse is DENIED.

         On July 26, 2017, one of the Government's witnesses, Officer Craig Crawford (“Officer Crawford”), notified counsel for the Government that “Judge Hicks was his uncle.” Record Document 86-1; Record Document 87. Counsel for the Government informed both the Court and opposing counsel and a telephone status conference was convened. See Record Document 87. The undersigned directed defense counsel to file a Motion to Recuse, which is now before the Court.

         Viola has moved for recusal under 28 U.S.C. § 455(a) & (b). Section 455(b)(5)(iv) provides:

         [A judge] shall also disqualify himself in the following circumstances:

         . . .

         (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:

         . . .

         (iv) Is to the judge's knowledge likely to be a material witness in the proceeding.

         28 U.S.C. § 455(b)(5)(iv) (emphasis added). Section 455(d)(2) directs that the degree of relationship is calculated according to the civil law system. In Njie v. Lubbock Cty., Tex., 999 F.Supp. 858, 862 (N.D. Tex. 1998), aff'd sub nom., Njie v. Lubbock Cty., Tex., 200 F.3d 816 (5th Cir. 1999), the court stated:

         According to the civil law system:

[P]arents and children of a deceased are related to him in the first degree. The second degree comprises the grandparents, grandchildren, brothers, and sisters of the deceased. Uncles, aunts, nephews, nieces, and great-grandparents of the deceased are related to him in the third degree. The fourth degree of relationship includes first cousins, great-uncles and great aunts, and great-great-grandparents. The children of a [first] cousin (first cousin once removed), the great-great-uncles and great-great-aunts, and the children of a great-uncle or great aunt are related in the fifth degree. . . .

See 23 Am. Jur. 2d Descent and Distribution § 55 (1983).

         Id. at 862. Likewise, the Louisiana ...


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