04.17.23 Article III Standing and Memo of Law

07-5222cr/09-0851cr/11-4181cv (01S)
In the U.S. Court of Appeals

For the Second Circuit
PRIORITY ACTION REQUESTED
Filed on Monday, April 17, 2023
____________
The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
[email protected]
Monday, April 17, 2023, 5:22:22 PM
Via email to Chief Circuit Judge

Office of the Chief Circuit Judge
The Hon. Debra Ann Livingston
U.S. Court of Appeals for the Second Circuit
Thurgood Marshal Courthouse
40 Foley Sq.
New York, NY 10007
Re: Application for leave to file petition to recall mandates based on (i) newly discovered
actual innocent Brady exculpatory evidence, new circuit precedent, Adar Bays v.
GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022), and (iii) actual innocent fraud on the court,
pursuant to circuit precedent, Sargent v. Columbia Forest Products, Inc., 75 F.3d 86, 89
(2d Cir. 1996), and Supreme Court precedent in Hazel Atlas Glass Co. v. Hartford-Empire
Co., 322 U.S. 238 (1994). Ulysses T. Ware has Article III standing to file and have the Court
of Appeals adjudicate the merits of the claims in the April 17, 2023, applications.
Page 1 of 15
Monday, April 17, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
Table of Contents
The Office of Ulysses T. Ware ................................................................................................................... 1
Introduction. ................................................................................................................................................. 3
Legal basis for the requested relief. ............................................................................................................. 5
Requested reliefs. ......................................................................................................................................... 6
Memorandum of law.................................................................................................................................... 8
I The Courts of Appeals are authorized to recall their own mandate to ensure the integrity of
their own proceedings, and are authorized to reopen a case at any time to do justice. ...................... 8
The legal standard—Recall of mandate by the courts of appeals. ..................................................... 8
The legal standard—The Government’s Brady “duty to search” the “over 15 boxes of materials”
and produce the contents. ................................................................................................................. 10
Exhibit A—April 17, 2023, Emergency Application to Recall Mandates. .............................................. 11
Exhibit B—April 06, 2023, Petition for Emergency Relief. ..................................................................... 13
End of document. ....................................................................................................................................... 15
Page 2 of 15
Request for Article III standing order regarding
07-5222cr/09-0851cr/ 11-4181cr
Introduction.
Ulysses T. Ware, Applicant, is moving the Court of Appeals regarding what is highly
irregular, certainly illegal, and without doubt frivolous misconduct--which can be considered
criminal illegal conduct being intentionally, recklessly, and/or negligently committed by the Office
of the Circuit Clerk’s employees in refusing to file and docket emergency recall of mandate
applications (see Ex. A, infra) submitted to the Court by Applicant for adjudication on the merits.
Accordingly, Applicant moves the Court of Appeals to not later than Wednesday, April 17,
2023, at 11:00 AM, time of the essence, enter a written, signed, judicial order that confirms or
denies that Applicant, the real party in interest in the appeals, has Article III standing to file and
have the Court of Appeals adjudicate the April 17, 2023, recall of mandate applications.
The factual predicates.
On April 6, 2023, Applicant, a litigant with Article III standing in the appeal proceedings,
submitted to the Court for adjudication a petition titled: “Verified Leave to File and Application
for Emergency Relief.” The Court refused to file and docket the April 6, 2023, petition and returned
the same to Applicant on April 7, 2023, with a cover that stated, “Notice of Non-Jurisdiction.” The
April 6, 2023, Court notice claimed, “Because this case [07-5222cr] was mandated on
04/22/2011, this Court no longer has jurisdiction to entertain your request.“ (emphasis added).
See Ex. B, infra.
Page 3 of 15
On April 17, 2023, Applicant submitted to the Court for emergency processing exhibit A,
infra—the application for leave to recall the mandates1—that is, for the Court to reopen 07-
5222cr/09-0851cr, and 11-4181cv appeals, and also for emergency reliefs regarding the 07-
5222cr, 09-0851cr, and 11-4181cv (2d Cir.) proceedings based on (i) newly discovered evidence,
(ii) actual innocent fraud on the court, and (iii) new circuit precedent.2
At 3:44 PM on April 17, 2023, Applicant received a phone call from ((212) 857-2100) from
what sounded like a male person who identified themselves as “Ralph” and refused to give their
last name, hereinafter “Ralph LNU.” Ralph LNU informed Applicant as follows, “Your papers you
filed today will be returned to you … the Court does not have jurisdiction over the cases, and
we will not look at the papers … you need to contact the district court and ask them what you
need to do … the cases are closed ....” (emphasis added) (paraphrased).
Applicant attempted to explain to Ralph LNU that he had Article III standing in the Court
of Appeals, and that the applications filed on April 17, 2023, were to recall the mandates
regarding the appeals in the Court of Appeals—that is, applications to recall the mandates and
reopen the appeal, i.e., filed to provide and reactivate appellate jurisdiction to the court of
appeals to adjudicate the merits of the applications presented to the Court on April 17, 2023.
Ralph LNU who appeared not to have any legal training or other necessary training,
expertise, or competency regarding Article III standing and other appellate processes, continued
to frivolously assert to Applicant without providing any legal reference or other valid justification
that the mandates “could not” and “would not” be recalled under any circumstances, which is in
clear error and in direct contradiction to binding circuit precedents and Supreme Court authority.
1
As a litigant, an interested party, in the Court of Appeals proceedings Applicant has the due process
right to petition the Court to recall its mandates for “good cause” or “special circumstances” and to have
the Court adjudicate the merits of the claims presented to the Court.
2
As the appellant in the appeals, Applicant has Article III standing to seek judicial relief in the Court of
Appeals, rather than exclusively in the “district court” according to Ralph LNU.
Page 4 of 15
Legal basis for the requested relief.
In particular, the Court’s March 15, 2022, decision in Adar Bays v. GeneSYS ID, Inc., 28
F.4d 379 (2d Cir. 2022) is directly relevant to the appeal proceedings in U.S. v. Ware, 09-0851cr
(2d Cir.) and (2) Ware v. Alpha Capital, AG, et al., 11-4181cv (2d Cir.). According to the Court’s
decision in Adar Bays, the government’s trial exhibits entered in U.S. v. Ware, 04cr1224 (SDNY),
GX 1-4, criminal usury convertible promissory notes, (the “Criminal Usury Subject Matter”),
were held to be null and void ab initio, unenforceable, and violated NYS Penal Law, section
190.40, the criminal usury law, a class E felony. Which constituted actual innocent newly
discovered evidence, or new circuit precedent, and authorized the Court to recall the mandates
for “special circumstances” to reopen the appeals to correct a “fundamental miscarriage of
justice” given Applicant is actually and factually innocent of all charges in U.S. v. Ware, 04cr1224
(SDNY) according to the (1) newly discovered actual innocent Brady exculpatory and
impeachment evidence, and (2) the Adar Bays decision.3
It is an egregious and criminal violation of due process of law, 18 USC 241 and 242, and a
deliberate and intentional First Amendment violation of denial of access to the court for court
employees to summarily refuse to file and docket emergency applications submitted to the Court
of Appeals for adjudication on the merits—that is, a mere clerk has no lawful Article III authority
to deny and violate Applicant’s First Amendment right to access to the Court, and impede, delay,
obstruct, and effectively prevent a party to the proceeding, Applicant, from having his claims
adjudicated on the merits by the Court.
3
The Adar Bays decision rendered the government’s 04cr1224 (SDNY) trial evidence, GX 1-4 (criminal
usury convertible promissory notes), GX 5 (criminal usury illegal underwriting contract), GX 7, GX 11, GX
24, and GX 34 null and void ab initio, moot, unenforceable, acquitted Applicant of all charges in U.S. v.
Ware, 04cr1224 (SDNY), and annulled and vitiated the 02cv2219 (SDNY) lawsuit—ipso facto actual
innocent “special circumstances” and “good cause.”
Page 5 of 15
Judge Livingston, Applicant has included the below memorandum of law to assist you and
the Court of Appeals employees to understand the relevant law and precedent regarding the
recall of mandate issue. The law is well-settled, and without any challenge, Applicant has the First
Amendment right of access to the Court, and the due process right to submit and file applications
to recall the mandates, and have the Court adjudicate the merits apropos appeals in which he
was a litigant. Ergo, Applicant has indisputable standing to file and have the Court adjudicate
the April 17, 2023, emergency recall of mandate applications. That rule of law is indisputable.
Judge Livingston, It appears that the Court’s employees are fundamentally confused and
have not received the proper training regarding whether or not Applicant has a First Amendment
right of access to the Court, standing, to file pleadings to redress his grievances regarding
proceedings in which he was a party, and whether or not the Court has the authority to review
and deny those requests. There is no rational debate that Applicant has the procedural and
substantive First Amendment right of access to the Court—Article III standing, to submit for filing
and adjudication the April 17, 2023, leave to file applications, Ex. A, infra, to recall the mandates
predicated on undisputed facts based on the legal standard set forth by the Supreme Court and
binding circuit authorities. That is not debatable.
Requested reliefs.
Accordingly, Applicant respectfully requests that the Chief Judge forthwith exercise her
Article III supervisory oversight power over the Office of the Circuit Clerk, and direct the Clerk to
immediately file and docket the April 17, 2023, emergency applications, and forward the same to
a motions panel for emergency Article III review and adjudication of the merits as required by
law.
Judge Livingston, if the Court of Appeals is inclined and predisposed to deny Applicant the
requested reliefs without having the Respondents respond and oppose the contentions in the
Applications, please have the Court enter a written, final, sufficiently reviewable judicial order
Page 6 of 15
signed by a panel of the Court of Appeals not later than Wednesday, April 19, 2023, at 11:00
AM, time of the essence, given that Applicant is actually innocent, and currently suffering
irreparable harm.
Please forward a copy of the signed court order to Applicant via email at
[email protected].
Respectfully submitted by:
Ulysses T. Ware
/s/ Ulysses T. Ware
April 17, 2023
Page 7 of 15
Memorandum of law
I The Courts of Appeals are authorized to recall their own mandate to ensure the
integrity of their own proceedings, and are authorized to reopen a case at any time to do
justice.
The legal standard—Recall of mandate by the courts of appeals.
The legal standard is well-settled, and “is unquestioned”--a court of appeals is authorized,
has the inherent Article III authority [jurisdiction], to reopen a case at “any time”4 and recall its
mandate,5 and to not do so when “good cause” or “special circumstances” has been presented
will be reviewed as an abuse of judicial6 discretion.7 (emphasis added). The 07-5222cr, 09-0851cr,
4
“From the beginning, there has existed along side the term rule a rule of equity to the effect that, under
certain circumstances, one of which is after-discovered fraud, relief will be granted against judgments
regardless of the term of their entry.” (emphasis added) Hazel Atlas Glass, Id. at 244. Put another way
there is no statute of limitation or prohibition to reopen the [07-5222cr (2d Cir.), 09-0851 (2d Cir.), or 11-
4181 (2d Cir.)] judgments regarding fraud on the court committed by officers of the court, or the judges.
5
See binding circuit precedent Sargent v. Columbia Forest Products, Inc., 75 F.3d 86, 89 (2d Cir. 1996)
(“Our power to recall a mandate is unquestioned … it exist as part of the [Court of Appeals] power to
protect the integrity of its own proceedings” … and thus “we have the power [jurisdiction] to reopen a
case [07-5222cr, 09-0851cr, and 11-4181cv] at any time.” (emphasis added). Cf., Hazel Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 228, 244 (1944) (same); also cf., Greater Boston Television Corp. v. F.C.C.,
463 F.2d 268, 277-78, 280 (D.C. Cir. 1971) (Inherent authority [jurisdiction] of a court of appeals to recall
a mandate to (i) prevent injustice, (ii) newly discovered evidence, (iii) a fraud on the court, and (iv) to correct
a fundamental miscarriage of justice—that is, actual and factual innocence).
6
A mere court clerk employee (Ralph LNU) has no Article III judicial discretion to not file, and docket
pleadings submitted to the Court, or to adjudicate the merits of pleadings submitted to the Court of
Appeals by a litigant having Article III standing in the particular judicial proceeding.
7
An “abuse of discretion” occurs when a court selects the incorrect legal standard or incorrectly applies
the correct legal standard. Ralph LNU, a mere court clerk has no Article III judicial authority to adjudicate
or conduct judicial review regarding Applicant’s April 17, 2023, emergency applications to recall mandates.
Ostensibly, Ralph LNU usurped the Article III judicial authority of the court of appeals which is a crime, an
Page 8 of 15
and 11-4181cv courts of appeals are therefore authorized to recall their mandates for “good
cause” or for “special circumstances,” that being:
i. Fraud on the court;8
ii. newly discovered evidence;9
iii. to correct an injustice caused by continued enforcement of the judgment;
iv. misconduct during the U.S. v. Ware, 07-5222cr (2d Cir.)10 or U.S. v. Ware, 05cr1115
(SDNY) proceedings that affect the integrity of the judicial process; and
v. to correct and prevent a fundamental miscarriage of justice,11 collectively, (the “Special
Circumstances”).12
overt act, to obstruct justice, willfully violate Applicant’s First Amendment right of access, and frivolously
deny Applicant access to the Court of Appeals—a criminal fraud on the court by an officer of the court, cf.,
18 USC 401(2) (negligence in the performance of official duties).
8
An “unconscionable plan and scheme” by officers of the court, or judges, to tamper with and affect the
judicial process such that a litigant is prevented or inhibited from presenting his claims to the court. See
Hazel Atlas Glass, Id. at 245.
9
Greater Boston T.V., 463 F.2d at 280.
10
Hazel Atlas Glass, Id. at 245, “Here, even if we consider nothing but Hartford's sworn admissions, we
find a deliberately planned and carefully executed scheme [by the USAO (SDNY), the SEC, and the
Respondents] to defraud not only the Patent Office, but the Circuit Court of Appeals.” (emphasis added).
11
Id. at 246, “Furthermore, tampering with the administration of justice in the manner indisputably shown
here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to
protect and safeguard the public, institutions in which fraud cannot complacently be tolerated
consistently with the good order of society. Surely it cannot be that preservation of the integrity of the
judicial process must always wait upon the diligence of litigants. The public welfare demands that the
agencies of public justice be not so impotent that they must always be mute and helpless victims of
deception and fraud.” (emphasis added).
12
Greater Boston, T.V., at 278-80.
Page 9 of 15
The legal standard—The Government’s Brady “duty to search” the “over 15 boxes of materials”13
and produce the contents.
The Court in In re Sealed Case, 185 F.3d 887 (D.C. Cir. 1999) (Garland, J.)14 interpreted the
government’s disclosure and production duties under Brady and Kyles to encompass the “duty
to search” for and to produce all Brady evidence to the defendant; and where a search had not
been made, the Court ordered the government to undertake a post-trial search for Brady
evidence, produce what was found on the defense, and ordered the district court to conduct
evidentiary hearing to assess the materiality of the newly-discovered Brady evidence.15
13
The DOJ’s EOUSA on March 20, 2023, confessed and admitted in its FOIA (22-000907)response that the
USAO (SDNY) currently is in possession of “over 15 boxes of materials” which have not been searched for
materials that “could be” Brady exculpatory, impeachment, Giglio, Jencks Act, or Rule 16 materials—an
ipso facto admission and concession the USAO knowingly, willfully, and in bad faith have resisted and
violated the two Brady Court Orders, civil and 18 USC 401(3) criminal contempt, entered in the Criminal
Proceedings; and the USAO’s prosecutors and their supervisors lied, committed perjury, and committed
a fraud on the court regarding its Brady disclosures and productions.
14
The Court of Appeals followed the procedure outlined in U.S. v. Brooks, 966 F.2d 1500, 1502-03 (D. C.
Cir. 1992) which followed the Third, Fifth, and Seventh Circuits’ precedents requiring the government to
search for Brady evidence and disclose what it found. In every court of appeals decision found by
Applicant, newly-discovered Brady evidence found after trial required the district court to conduct
evidentiary hearings to assess the materiality of the new evidence, and its effect on the outcome of the
criminal proceedings.
15
Cf., Dennis v. Sec’y Penn. Dept. of Corr., 834 F.3d 263, 275-78 (3d Cir. 2010) (followed In re Sealed Case
and aff’d the district court’s grant of writ of habeas corpus for gov’t Brady violation—undisclosed material
exculpatory and impeachment evidence was concealed by the state) (“The District Court granted Dennis
habeas relief based on Dennis’s Brady claims as to the Commonwealth’s failure to disclose the Cason
receipt, the Frazier documents, and the police activity sheet containing Howard’s inconsistent
statement. Dennis V, 966 F.Supp.2d at 518.”).
Page 10 of 15
Exhibit A—April 17, 2023,
Emergency Application to Recall
Mandates.
Page 11 of 15
Dockets 07-5222cr (Ware-I)/09-0851cr/11-4181 (01RF)
In the United States Court of Appeals
For the Second Circuit
Filed on 4/16/2023 8:52:22 PM via email.
__________________
Respondents United States of America, Appellee, cross-appellant, Andre Damian

Williams, Jr., and Edgardo Ramos, Edward T.M. Garland, Manibur S. Arora,
Donald F. Samuel, Gary G. Becker, Michael F. Bachner, Marlon G. Kirton, and
Jeremy Jones; Alpha Capital, AG, Stonestreet, L.P., Markham Holdings, Ltd, Amro
International, S.A., LH Financial Services, and Ari Rabinowitz16,
v.
Applicant Ulysses T. Ware, Appellant, cross-appellee.
________________
OMNIBUS ACTUAL INNOCENT, FUNDAMENTAL MISCARRIAGE OF
JUSTICE, VERIFIED, LEAVE TO FILE APPLICATION TO RECALL MANDATE,
and APPLICATION FOR EMERGENCY RELIEF PETITION.
Submitted by Applicant-Appellant:
The Office of Ulysses T. Ware
123 Linden Blvd., Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
[email protected]
/s/ Ulysses T. Ware
16
Rabinowitz, a hostile, adverse, material fact witness along with LH Financial Services, and Trailblazer
Merger Corp. I, Wendy L. Hagenau, J. Henry Walker, IV, Kenneth A. Zitter, Dennis S. Meir, John W. Mills, III,
Colleen McMahon, Frank V. Sica, Tailwind Capital Management, LLP, Kilpatrick, Townsend, & Stockton, LLP,
the State Bar of Georgia, the Supreme Court of Georgia, Ruby Krajick, M. Regina Thomas, Margaret H.
Murphy, convicted felon Edward M. Grushko, and others will be subpoenaed, and compelled to produce
documents, and give sworn testimony at the Kyles materiality evidentiary hearing.
Page 12 of 15
Exhibit B—April 06, 2023,
Petition for Emergency Relief.
Page 13 of 15
Page 14 of 15
End of document.
Page 15 of 15

04.17.23 Article III Standing and Memo of Law

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07-5222cr/09-0851cr/11-4181cv (01S)

In the U.S. Court of Appeals

Monday, April 17, 2023, 5:22:22 PM

Via email to Chief Circuit Judge

The factual predicates.

Respectfully submitted by:

/s/ Ulysses T. Ware

April 17, 2023

The legal standard—Recall of mandate by the courts of appeals.

cause” or for “special circumstances,” that being:

i. Fraud on the court;8

ii. newly discovered evidence;9

iii. to correct an injustice caused by continued enforcement of the judgment;

v. to correct and prevent a fundamental miscarriage of justice,11 collectively, (the “Special

evidentiary hearing to assess the materiality of the newly-discovered Brady evidence.15

Respondents United States of America, Appellee, cross-appellant, Andre Damian

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