Jerrald Axelrod; Trisha Axelrod, Petitioners-appellants, v. Commissioner Internal Revenue Service, Respondent-appellee, 968 F.2d 1220 (9th Cir. 1992)

MEMORANDUM^** 

We have carefully reviewed the record. Judge Pajak did not abuse his discretion in refusing to disqualify himself under 28 U.S.C. § 455. His justified dissatisfaction with attorney Robert Gilleran's conduct in the proceedings was expressed orally from the bench and by way of sanctions. There is nothing in these expressions that would justify a finding that Judge Pajak was improperly biased or appeared to be so. See Matter of Yagman, 796 F.2d 1165, 1179 n. 16 (9th Cir. 1986); Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir. 1984).

The Axelrods rely on Preston v. United States, 923 F.2d 731 (9th Cir. 1991). Preston is distinguishable. In that case, disqualification was specifically required under § 455(b) (2) because a lawyer with whom the judge previously practiced law served during their association as a lawyer in the matter. Id. at 734.

AFFIRMED.