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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

)
MOHAN A. HARIHAR, )
)
Appellant )
) Case No. 17-1381
v. )
)
US BANK, et al )
)
Defendants/Appellees )
)

APPELLANT’S REQUEST FOR EN BANC RE-HEARING, CONGRESSIONAL

INTERVENTION AND SUMMARY REVERSAL PURSUANT TO

1ST CIR. LOC. R. 27.0(c)

The Appellant respectfully prefaces this EMERGENCY MOTION with the following

Disclosure: The gravity of serious legal issues addressed in this Appeal, its lower court docket

no. 15-cv-11880, and in the RELATED Appeal,1 include (but are not limited to) evidenced

allegations of TREASON under ARTICLE III, Section 3 of the Constitution, Economic

Espionage pursuant to 18 U.S.C. § 1832 and are believed to impact matters of National

Security. Therefore, copies of this filed MOTION are sent via email, social media and/or

certified mail to: The Executive Office of the President (EOP), the US Inspector General -

Michael Horowitz, US Attorney General - Jeff Sessions, members of the US Senate and

House of Representatives, the House Judiciary Committee, House Oversight Committee

1
The related Appeal references HARIHAR v. THE UNITED STATES, Appeal No. 17-cv-
2074 (Also, lower court Docket No. 17-cv-11109).
and to the Federal Bureau of Investigation (FBI). A copy will also be made available to the

Public. THEREFORE, ALL AMERICANS serve here as WITNESS. Parties are additionally

informed for documentation purposes, and out of the Appellant’s continued concerns for

personal safety/security.

AFTER REVIEWING the Summary Judgment issued January 17, 2018 by Circuit Judges -

Torruella, Kayatta and Barron, the Appellant – Mohan A. Harihar disagrees, revealing a list

of obvious errors warranting summary reversal under 1ST CIR. LOC. R. 27.0(c) and the timely

request for re-hearing under FRAP Rule 40. Since the record reveals evidenced claims

previously DISQUALIFYING Circuit Judges - Torruella, Kayatta and Barron, additional

request is made for an EN BANC re-hearing pursuant to FRAP RULE 35.2 The concern here

however, is that evidenced judicial misconduct claims have been brought against FIVE (5)

out of ELEVEN (11) circuit judges (45%), including Chief Justice Howard. The Appellant

has made clear through multiple evidenced arguments of record, indicating that the

INTEGRITY of this First Circuit Appeals Court is compromised, and that a just decision

here is unlikely.

The list of evidenced errors associated with this judgment is lengthy, certainly egregious, and

includes (but is not limited to) EVIDENCED claims of TREASON under ARTICLE III,

Section 3 of The U.S. Constitution for RULING WITHOUT JURISDICTION. Therefore,

2
The proceeding involves one or more questions of exceptional importance, each of which must
be concisely stated; for example, a petition may assert that a proceeding presents a question of
exceptional importance if it involves an issue on which the panel decision conflicts with the
authoritative decisions of other United States Courts of Appeals that have addressed the issue.
The Petition length is considered compliant with Rules 35 and 40 (excluding footnotes,
attachments, headers and signature lines.
1
with the filing of this motion, the DEMAND for Congressional intervention is (again)

necessarily made.3 A further, detailed explanation of judicial error(s) is detailed in the following:

I. FAILURE(S) TO EXERCISE JUDICIAL DISCRETION, PURSUANT TO 28

U.S.C. §1915 - ASSISTANCE WITH APPOINTMENT OF COUNSEL

The Appellant first addresses judicial errors made by both the lower court AND this

appeals court as it pertains to – Assistance with the Appointment of Counsel under 28

U.S.C. §1915. The Appellant has clearly articulated through multiple motions and in his

appellate brief – TEXTBOOK scenarios warranting such relief, only to be IGNORED or

DENIED without valid cause. The record also reveals that despite repeated demands for

clarification, referenced judges have refused to do so.

Local Rule 27(c) Summary Disposition. At any time, on such notice as the court may

order, on motion of appellee or sua sponte, the court may dismiss the appeal or other

request for relief or affirm and enforce the judgment or order below if the court lacks

jurisdiction, or if it shall clearly appear that no substantial question is presented. In case

of obvious error the court may, similarly, reverse. Motions for such relief should be

promptly filed when the occasion appears.

Such is the case here. The repeated failure(s) to exercise judicial discretion supporting

28 U.S.C. §1915 – throughout this litigation shows (at minimum): 1.) the INTENT to

keep an IMBALANCE of HARDSHIPS weighing heavily in favor of the Appellant and

3
Copies of this emergency motion will be delivered to US Senator – Elizabeth Warren (D-
MA) and US Congresswoman -Niki Tsongas (D-MA) requesting their assistance to bring these
evidenced claims of judicial misconduct including TREASON before Congress. Please note -
ANY FAILURE to bring this matter to the attention of Congress will (at minimum) be considered
MISPRISION OF TREASON, pursuant to 18 U.S. Code § 2382.
2
2.) the INTENT to PREVENT PRECEDENT from being set – impacting at least 4.2M

other parties nationwide (see additional explanation below). These obvious errors

alone warrant reversal under Local Rule 27(c).

The continued refusal to assist with the appointment of counsel also shows cause to

expand upon existing DUE PROCESS, CONSPIRACY (and other) claims against the

United States in the related complaint, HARIHAR v. THE UNITED STATES (Appeal

No. 17-2074, Lower Court Docket No. 17-cv-11109).

The Appellant additionally references the recently filed – EMERGENCY MOTION TO

VACATE DISMISSAL W/DAMAGES,4 filed 12/24/17 which not only provides an

accurate portrayal of egregious judicial misconduct, it provides arguments supporting

MOTIVE. A just resolution in favor of the Plaintiff/Appellant would (at minimum)

set precedent impacting 4.2M illegal foreclosures as identified by the Department of

Justice and Federal Bank Regulators. For example - If you have 4.2M potential

lawsuits which now can rely on precedent, each suit averaging $1M, total legal risk

becomes $4.2T. Now imagine if precedent is additionally set with the appointment of

counsel pursuant to 28 U.S.C. §1915. This Court is well-aware that a DUPLICATE

motion to vacate dismissal w/ damages was filed on 12/23/17 in the related Appeal –

HARIHAR v. THE UNITED STATES, and stands on record as UNOPPOSED. Upon

reading the judgment order, it appears (at least on its surface) that Circuit Judges -

Torruella, Kayatta and Barron, have wrongfully DENIED this EMERGENCY motion,

classifying it either as repetitive or moot. CLARIFICATION is certainly warranted here

4
See Attachment A – provided as reference for the President, members of Congress, DOJ,
and the American Public.
3
to determine exactly HOW these referenced judges could possibly have arrived at

their conclusion considering the valid arguments provided by this Appellant, AND the

unopposed motion of The United States. The DEMAND is once again respectfully

made for a separate hearing with the presence of an independent court reporter to

provide clarification for the record.

IF an OBJECTIVE OBSERVER were to read through the historical record, the

FAILURE to EXERCISE JUDICIAL DISCRETION as it pertains to 28 U.S.C. §1915

is clear and irrefutable. In 1994, the U.S. Supreme Court held that "Disqualification is

required if an objective observer would entertain reasonable questions about the judge's

impartiality. If a judge's attitude or state of mind leads a detached observer to conclude

that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis

added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994). Without going any further, these

evidenced facts alone reinforce the Appellant’s consistent claims that Circuit Judges -

Torruella, Kayatta and Barron are DISQUALIFIED by law to rule in this, or ANY

related litigation. Their conscious decision to then issue judgment here WITHOUT

JURISDICTION represents an ACT OF TREASON under ARTICLE III, Section 3 of

the Constitution, and the judgment itself is considered VOID.

II. IGNORING JURISDICTION ISSUES RAISED BY THE APPELLANT

Since initially bringing evidenced judicial misconduct claims dating back to August

2016, the Appellant has raised jurisdiction issues documented in NO LESS THAN

FIFTY (50) SEPARATELY FILED COURT DOCUMENTS including the

4
Appellant’s Brief.5 NOT EVEN ONCE, has this Federal Judiciary addressed the

Appellant’s issues pertaining to jurisdiction. EVEN NOW, upon reading through this

summary judgment, Circuit Judges - Torruella, Kayatta and Barron make only a

singular reference to a jurisdictional issue raised by the APPELLEES:

“We bypass the jurisdictional issue raised by the appellees regarding the scope of the

appeal. See United States v. Kar, 851 F.3d 59, 64 n.5 (1st Cir.) (noting that "[t]he defects

in the notice of appeal do not bear upon Article III subject matter jurisdiction")”

By IGNORING EVERY jurisdiction issue raised by the Appellant, Circuit Judges -

Torruella, Kayatta and Barron are DISQUALIFIED by law to rule in this, or ANY

related litigation. These judicial failures only add to evidenced arguments supporting

CONTINUED PATTERNS OF CORRUPT CONDUCT and the EGREGIOUS

abuse of judicial authority.

This Court is respectfully reminded that ALL evidenced judicial misconduct claims

previously filed by the Appellant against ALL TEN (10) referenced court officers

INCLUDING Circuit Judges - Torruella, Kayatta and Barron stand as

UNOPPOSED.

These obvious errors pertaining to JURISDICTION alone warrant reversal under Local

Rule 27(c).

5
Reference is collectively made to filings within: 1.) this Appeal No. 17-1381, 2.) the lower
court Docket No. 15-cv-11880; 3.) the related Appeal No. 17-2074 (Harihar v. The United
States); 4.) the lower Court Docket No. 17-cv-11109; 5.) the Judicial Misconduct complaints
filed with Chief Justice Jeffrey R. Howard; and 6.) the Judicial Misconduct Petitions filed with
the First Circuit Executive and the Judicial Council.
5
III. THE ATTEMPT TO ISSUE JUDGMENT WITHOUT JURISDICTION

CONSTITUTES TREASON UNDER ARTICLE III SECTION 3

The Appellant first references the RECUSAL of District Court Judge Allison Dale

Burroughs from the related case – HARIHAR v. THE UNITED STATES. The

collective circumstances which ultimately led to the judge’s recusal are IDENTICAL (in

part and/or extremely similar) to the circumstances now involving Circuit Judges -

Torruella, Kayatta and Barron. The evidenced judicial misconduct of record signifies:

1.) disqualification to rule further, and 2.) their conscious decision to continue ruling

without jurisdiction shows cause to bring Treason claims.

The Appellant next references the September 19, 2017 motion filed with this Court that

brings an evidenced claim of treason against Circuit Judge William J. Kayatta for ruling

without jurisdiction. The motion also provides an overview of the evidenced judicial

misconduct claims brought against NINE (9) other Federal Judges – ALL WITHIN

THE FIRST CIRCUIT, and include Circuit judges Torruella and Barron. As

previously stated, ALL referenced judicial misconduct claims of record stand as

UNOPPOSED.6

NOW, the conscious decisions by Circuit Judges - Torruella, Kayatta and Barron to

issue a judgment order here WITHOUT JURISDICTION constitutes incremental

treason claims. For Judge Kayatta, this is a second count of treason. Since these treason

claims are evidenced within the record, the Appellees/Defendants, their attorneys

and the Appeals Court Clerk – Margaret Carter ALL serve as WITNESS to these

serious crimes. Any failure or refusal to serve as witness to treason against The United

States will bring claims of MISPRISION OF TREASON, PURSUANT TO 18 U.S.

6
Includes (but is not limited to) THREE (3) additional (and UNOPPOSED) TREASON claims
evidenced against: 1.) District Court Judge Allison Dale Burroughs, 2.) District Court Judge
Denise J. Casper and 3.) Chief Justice Jeffrey R. Howard.
6
Code § 2382. Already, the Appellees/Defendants, their attorneys and three (3) officers of

the court7 stand accused of Misprision of Treason (three counts each). Refusal by any

party to serve here as witness to treason will necessarily bring incremental claims of

misprision.

By Federal law, the Appellant necessarily informs The President of The United

States of these evidenced acts of Treason, by delivering a copy of this motion to his

direct attention prior to filing it with the court.8

These obvious errors pertaining to TREASON alone warrant reversal (at minimum)

under Local Rule 27(c).

IV. FAILURE TO ADDRESS UNOPPOSED FRAUD ON THE COURT CLAIMS

As explained throughout the record, ONE (1) of the main factors that removed

jurisdiction from District Court Judge Allison Dale Burroughs and ultimately contributed

to her RECUSAL, was her conscious decision to IGNORE Fed. R. Civ. P. 60(b)(3) –

FRAUD ON THE COURT claims. In addition, these claims of record stand against

ALL Defendants/Appellees as UNOPPOSED. The mandatory hearing to address fraud

on the court was never scheduled, and the District Court FAILED to issue a DEFAULT

JUDGMENT in favor of Plaintiff/Appellant – Mohan A. Harihar with prejudice:

“Harihar's pending Demand for Entry of Default Judgment is denied.”

7
Misprision of Treason claims pursuant to 18 U.S. Code § 2382 are filed against Circuit Clerk –
ROBERT M. FARRELL, Circuit Clerk MARGARET CLARK and Deputy Clerk –
MATTHEW A. PAINE
8
The filed court copy of this motion will include proof of delivery (and receipt) from the White
House (See Attachment C). The Department of Justice, members of Congress, House Judiciary
Committee, and the FBI will similarly receive copies of this motion.
7
On Appeal, Circuit Judges - Torruella, Kayatta, Barron and Chief Justice Howard

made IDENTICAL ERRORS by AGAIN IGNORING these unopposed - Fed. R. Civ.

P. 60(b)(3) claims.9 The record shows multiple efforts where the Appellant respectfully

requested clarification as to - WHY FILING AN APPELLANT BRIEF WAS EVEN

NECESSARY, CONSIDERING THE UNOPPOSED RULE 60 (b)(3) claim. Requests

for clarification were wrongfully denied without cause, and the Appellant had no

alternative but to file his brief with a shortened timeline and without the assistance of

counsel.

EVEN IF Circuit Judges - Torruella, Kayatta and Barron still had jurisdiction, their

conscious decision to now DENY the Appellant’s Rule 60(b) claims WITHOUT EVER

HOLDING AN EVIDENTIARY HEARING, shows a REFUSAL to uphold the

judicial machinery of the Court. This refusal to uphold Federal law in itself disqualifies

referenced judges from ruling further in this litigation, and was a primary factor in

bringing a judicial misconduct complaint against Judge Allison Dale Burroughs. In their

issued judgment, the Appellant identifies the following additional errors:

“The appellees have moved for summary disposition on the grounds that Harihar has

not presented a substantial question for review in his opening brief.”

It is unclear exactly how Circuit Judges - Torruella, Kayatta and Barron could possibly

have reached such a conclusion. In his brief, the Appellant addresses a number of

substantial questions BEGINNING WITH the UNOPPOSED Rule 60(b) claims, AND

9
There are two (2) errors here: 1.) The failure to identify errors made by the District Court, and
2.) Ignoring the incremental 60(b) claims brought against Defendant/Appellees on Appeal.
8
the Judge Burroughs’ failure to uphold the judicial machinery of the Court. As reference,

Mr. Harihar attaches a copy of his filed Appellant Brief for the President, other

referenced parties, and publicly for ALL AMERICANS to view.10

These obvious errors showing repeated failures/refusal to uphold federal law(s) in

itself warrant judgment reversal under Local Rule 27(c).

V. JUDICIAL FRAUD ON THE COURT

“Harihar has offered no argument in his opening brief to suggest reversible error in the

district court's two decisions granting the defendants' motions to dismiss. Harihar has

thus waived any challenge to the district court's disposition of the merits of his claims.

See Best Auto Repair Shop, Inc. v. Universal Ins. Grp., 875 F.3d 733, 737 (1st Cir. 2017)

(affirming merits decision on waiver grounds where appellants failed to address the

decision in opening brief).”

It is again unclear how Circuit Judges - Torruella, Kayatta and Barron could possibly

have reached such a conclusion. A review of the Appellant’s brief (See Statement of

Issues, p. 8) raises six (6) issues, each with irrefutable arguments suggesting reversible

error:

1. Whether the District Court failed to assist the Appellant with the appointment of

counsel and other requested injunctive relief?

2. Whether Appellees/Defendants failed to file opposition to Fraud on the Court

Claims?

10See Attachment B, Pages 33-71, provided as reference for the President, members of
Congress, DOJ, and the American Public.

9
3. Whether the District Court failed to (at minimum) correctly address the

evidenced Fraud on the Court claim(s) under Fed. R. Civ. P. 60(b)(3)?

4. Whether the District Court failed to address the Appellant’s claims regarding

the Misappropriation of Trade Secrets and Economic Espionage pursuant to 18

U.S. Code § 1832, and its resulting impact to National Security?

5. Whether the District Court improperly dismissed the Appellant’s complaint?

6. Whether the RECUSAL of Judge Burroughs in the related complaint impacts

this Appeal, Dismissal Order, and all related Orders/Judgements?

Additionally, in the DISCLOSURE STATEMENT of his Appellant Brief, the Appellant

states the following:

“The Appellant Brief addresses PRIMARILY, the evidenced Fraud on the Court

claims under Fed. R. Civ. P. 60(b)(3). While there is a SUBSTANTIAL amount of

incremental facts supporting the Appellant’s consistent claims on Appeal (as

documented within the record), they are also interpreted as MOOT, based on the

unopposed Rule 60(b)(3) claim, and what by law MUST result in a default

judgement. Should it become necessary to provide the Court with additional facts

supporting appeal, the Appellant will (at minimum) require an extended timeline to

do so, restating his request for assistance to appoint counsel, and the Court’s

approval to exceed the Certificate of Compliance limits as needed.”

The assertion that, “Harihar has thus waived any challenge to the district court's

disposition of the merits of his claims” - is certainly incorrect, and the associated case

reference is therefore improperly applied. What does become increasingly clear is that

10
Circuit Judges - Torruella, Kayatta and Barron continue their efforts to: 1.) cause

additional harm to the Appellant and 2.) purposefully deceive this Court.11

These obvious errors exemplifying judicial fraud on the court warrant judgment

reversal under Local Rule 27(c).

VI. “OTHER CLAIMS OF ERROR”

“We have reviewed the other claims of error identified in Harihar's opening brief and

conclude that they lack merit. Accordingly, we affirm the judgment of the district court in

all respects. See 1st Cir. Loc. R. 27.0(c).”

The Appellant calls for clarification here AND for the record, to identify specifically,

which “other claims of error” are referred to here, AND EXACTLY HOW– EVEN IF

there was jurisdiction, Circuit Judges - Torruella, Kayatta and Barron could possibly have

reached their conclusion(s). As outlined NOT ONLY in the Appellant’s brief, but also in the

recently filed MOTION TO VACATE W/DAMAGES,12 the Appellant has raised no less

than TWENTY-TWO (22) irrefutable arguments where judicial error is evidenced by

BOTH the District and Appeals Court. It SHOULD be noted that with the DUPLICATE

MOTION filed with THE RELATED APPEAL NO. 17-2074, THE UNITED STATES,

AS AN APPELLEE DID NOT OPPOSE A SINGLE CLAIM (See Attachments A and

B).

11
With the filing of this motion, the Appellant necessarily files a supplemental judicial
misconduct complaint with the Circuit Executive.
12
Duplicate motions were filed – here on December 24, 2017 and previously on December 23,
2017 in the related Appeal No. 17-2074, HARIHAR v. THE UNITED STATES.
11
Considering the severity (and totality) of these evidenced claims, this VAGUE

description by Circuit Judges - Torruella, Kayatta and Barron gives the appearance

that a deep-seated favoritism or antagonism does exist making fair judgment

impossible. It would appear (at least on its surface), that elements of corruption may

exist here; and that an effort is being made – by these officers of the Court, to brush

aside all evidenced arguments in order to reach a corrupt and predetermined outcome.

EACH ONE (1) of the TWENTY-TWO (22) obvious errors identified both in the

Appellant’s Brief AND his Emergency Motion to Vacate w/ Damages warrant reversal under

Local Rule 27(c).

VII. REMAINING PENDING MOTIONS

“We deny Harihar's remaining pending motions as repetitive of previous requests for

relief that the court has already denied, or as moot.”

The vagueness of this statement again by Circuit Judges - Torruella, Kayatta and Barron

warrants clarification for the record. The Plaintiff has clearly provided the Court(s) with

valid, irrefutable arguments for ALL requested relief where – EVEN THE UNITED

STATES, as an Appellee in the related Appeal does not oppose awarding Mr. Harihar

MAXIMUM damages. If there has been any repetition, it is ONLY due to UNNECESSARY

DELAY or INCREMENTAL acts of misconduct evidenced by this judiciary. Again, it would

appear (at least on its surface), that elements of corruption may exist here; and that an

effort is being made – by these officers of the Court, to brush aside all motions in order

12
to reach a corrupt and predetermined outcome. These obvious errors warrant reversal

under Local Rule 27(c).

VIII. DECEPTIVE JUDICIAL TECHNIQUES

As with the identified deceptive techniques by Judge Burroughs that contributed to her

RECUSAL, a THOROUGH review of the record shows the Appellant similarly

identifies IDENTICAL tactics by Circuit Judges - Torruella, Kayatta and Barron.

These evidenced techniques include (but are not limited to):

1. Failure to consider the possibility of erred judgments of the State Court(s);

2. Ignoring the Law;

3. Citing Invalid Law;

4. Ignoring the Facts;

5. Ignoring Issues;

6. Corruptly calling a complaint "frivolous" and denying motions with no valid

explanation whatsoever;

7. Block Filing of Motions and Evidence;

8. Denying Constitutional Rights;

9. Automatically Ruling against PRO SE LITIGANTS;

10. Violating the Judicial Oath of Office and the Code of Judicial Conduct;

11. Allowing Perjury;

12. Premature Dismissal PRIOR to DISCOVERY;

13. Denying a Hearing(s);

14. Denying a Jury Trial

EACH ONE of these DECEPTIVE TACTICS detailed within the record constitute

obvious errors warranting reversal under Local Rule 27(c).

13
IX. IGNORING EVIDENCED ECONOMIC ESPIONAGE CLAIMS AND

PERCEIVED THREATS TO NATIONAL SECURITY

It bears repeating that referenced judges in both the District and Appeals Court HAVE

NEVER ONCE EVEN ACKNOWLEDGED the EVIDENCED CLAIMS supporting

infractions to the Economic Espionage Act of 1996, pursuant to 18 U.S.C. §§ 1832. This

conscious decision to IGNORE federal law and evidenced threats to our Nation show not

only a failure to uphold the judicial machinery of the court, but (at minimum) brings

incremental CONSPIRACY claims against Circuit Judges - Torruella, Kayatta and

Barron. CLEARLY, these obvious errors warrant reversal under Local Rule 27(c).

X. EXECUTIVE AND LEGISATIVE BRANCH FAILURES

The record shows that despite bringing to the direct attention of the DOJ and FBI -

EVIDENCED criminal claims RELATED to this litigation, federal prosecutors HAVE

FAILED to bring charges against Defendants/Appellees or referenced officers of the court.

Similarly, since the infancy stages of this litigation nearly seven (7) years ago, US Senator

Elizabeth Warren and US Congresswoman Niki Tsongas have been regularly informed of

evidenced judicial misconduct and perceived threats to our Nation’s security warranting

Congressional intervention. Despite multiple follow-up efforts to BOTH offices, it would appear

(at least on its surface) that Senator Warren and Congresswoman Tsongas have IGNORED

these evidenced claims, and HAVE NOT brought these serious matters to the attention of

Congressional Judiciary Committees (House and Senate). The Appellant respectfully restates

that Senator Warren and Congresswoman Tsongas will again be updated and receive a copy of

this motion for the SPECIFIC PURPOSE of notifying Congress.

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CONCLUSION

When a litigant’s repeated (and collective) efforts to address JURISDICTION, TREASON

CLAIMS, ECONOMIC ESPIONAGE, DUE PROCESS VIOLATIONS, FRAUD ON THE

COURT and others go UNANSWERED AND IGNORED for a year and a half, there is just

cause to (at minimum): 1.) Attack the Court’s integrity; 2.) Vacate impacted Judgement(s),

and considering the severity of issues 3.) Bring these matters to the attention of the President,

Congress AND the American Public.

While the Appellant realized that undertaking this MONUMENTAL legal battle would

likely be a long road, NEVER did he anticipate the level of corruption so blatantly

evidenced by this judiciary. The Appellant makes clear that – based on the historical record, he

has understandably LOST ALL FAITH in Circuit Judges - Torruella, Kayatta and Barron to

uphold the law, and is certain that ANY OBJECTIVE OBSERVER would reach the same

conclusion - “JUSTICE MUST SATISFY THE APPEARANCE OF JUSTICE”

WHEREFORE, for the collective reasons exemplifying obvious errors, the Appellant calls for the

following:

1. First re-establish JURISDICTION. Considering nearly half of the Circuit judges

including Chief Justice Howard are considered DISQUALIFIED by law to rule further;

TRANSFER to a different circuit is warranted;

2. Once jurisdiction is re-established, a reversal of the summary judgment is warranted;

15
3. Provide extensive clarification of issued orders, as requested. Even if orders are

considered VOID, clarification is necessary to assist with necessary investigations moving

forward.

4. The obvious complexity of issues continues to warrant assisting the Appellant with the

appointment of counsel. While the list of evidenced misconduct is lengthy, it likely is

incomplete. Once the Appellant is rightfully appointed counsel, he reserves the right to

expand upon or bring new claims, as deemed necessary.

5. The Appellant clearly states that any attempt by Circuit Judges - Torruella, Kayatta

and Barron to rule further will be interpreted as incremental acts of Treason under

ARTICLE III.

For documentation purposes, after sending a copy of the motion to the attention of The President,

confirmation of its receipt is attached (See Attachment C) with the filed Court copy. If there is a

question regarding ANY portion of this Motion, the Appellant is happy to provide additional

supporting information upon request, in a separate, hearing and with the presence of an

independent court reporter.

Respectfully submitted this 24th Day of January, 2018

Mohan A. Harihar
Appellant
7124 Avalon Drive
Acton, MA 01720
Mo.harihar@gmail.com

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Attachment A

17
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

)
MOHAN A. HARIHAR, )
)
Appellant )
) Case No. 17-1381
v. )
)
US BANK, et al )
)
Defendants/Appellees )
)

APPELLANT’S EMERGENCY MOTION TO VACATE JUDGMENT PURSUANT TO

FED. R. CIV. P. 60(b)(3), (4) AND (6)

The Appellant respectfully prefaces this EMERGENCY MOTION with the following

Disclosure statement:

The gravity of serious legal issues addressed in this Appeal, its lower court docket no. 15-cv-

11880, and in the RELATED Appeal,13 include (but are not limited to) evidenced allegations of

TREASON under ARTICLE III, Section 3 of the Constitution, Economic Espionage pursuant

to 18 U.S.C. § 1832 and are believed to impact matters of National Security. Therefore, copies

of this filed MOTION are sent via email, social media and/or certified mail to: The Executive

Office of the President (EOP), the US Inspector General - Michael Horowitz, US Attorney

General - Jeff Sessions, members of the US Senate and House of Representatives, the House

13
The related Appeal references HARIHAR v. THE UNITED STATES, Appeal No. 17-cv-
2074 (Also, lower court Docket No. 17-cv-11109).
18
Judiciary Committee, House Oversight Committee and to the Federal Bureau of

Investigation (FBI). A copy will also be made available to the Public. THEREFORE, ALL

AMERICANS serve here as WITNESS. Parties are additionally informed for documentation

purposes, and out of the Appellant’s continued concerns for personal safety/security.

I. CONTINUED FAILURE TO ADDRESS JURISDICTION

The Appellant, Mohan A. Harihar, who collectively for over two (2) years is STILL

wrongfully forced to represent himself as a PRO SE litigant, respectfully files this DEMAND to

VACATE APPLICABLE JUDGEMENT(S)14 without further and UNNECESSARY

JUDICIAL DELAY. The historical record(s) reveals that the Appellant has repeatedly raised

jurisdiction issues dating back to at least AUGUST 2016, only to be IGNORED over and over

again. This is evidenced: 1.) Here, in this appeal; 2.) In the lower court docket no. 15-cv-

11880; 3.) In the related appeal no. 17-2074, HARIHAR v. THE UNITED STATES; and 4.)

In its related lower court docket no. 17-cv-11109. If there is a jurisdictional failing

appearing on the face of the record, the matter is void, subject to vacating with damages,

and can never be time barred.

"Jurisdiction, once challenged, cannot be assumed and must be decided."

Maine v. Thiboutot, 100 S. Ct. 250

U.S. v. Prudden, 424 F.2d. 1021; U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977): “Silence can

only be equated with fraud when there is a legal and moral duty to speak or when an inquiry

left unanswered would be intentionally misleading. We cannot condone this shocking

14
The Appellant calls reference to the Dismissal orders associated with Docket No.’s 17-cv-
11109, HARIHAR v. THE UNITED STATES, and also 15-cv-11880, HARIHAR v. US
BANK et al. which are considered issued WITHOUT JURISDICTION, as evidenced by the
historical record.
19
conduct... If that is the case we hope our message is clear. This sort of deception will not be

tolerated and if this is routine it should be corrected immediately.”

The lengthy (and still growing) list of evidenced claims identifying jurisdiction (and other) issues

has necessarily led to bringing Judicial Misconduct claims (all of which stand as

UNOPPOSED) against TEN (10) Federal (Circuit and District) Court Judges, and includes

members of the FIRST CIRCUIT JUDICIAL COUNCIL:

1. US District Court Judge Allison Dale Burroughs – stands accused of judicial

misconduct including (but not limited to) TREASON under ARTICLE III (6 counts,

ALL UNOPPOSED) for ruling WITHOUT JURISDICTION. Following these

evidenced claims, Judge Burroughs RECUSED herself from HARIHAR v. THE

UNITED STATES, Docket No. 17-cv-11109;

2. US District Court Judge Denise J. Casper - stands accused of judicial misconduct

including (but not limited to) TREASON under ARTICLE III (1 counts,

UNOPPOSED) for ruling WITHOUT JURISDICTION;

3. US Chief Justice Jeffrey R. Howard (First Circuit) - stands accused of judicial

misconduct including (but not limited to) TREASON under ARTICLE III (1 counts,

UNOPPOSED) for ruling WITHOUT JURISDICTION;

4. US Circuit Judge Juan R. Torruella;

5. US Circuit Judge William J. Kayatta, Jr. - stands accused of judicial misconduct

including (but not limited to) TREASON under ARTICLE III (1 counts,

UNOPPOSED) for ruling WITHOUT JURISDICTION;

6. US Circuit Judge David J. Barron;

7. US Circuit Judge O. Rogeriee Thompson;

20
8. US Chief Judge Joseph N. Laplante (US District Court (NH), serving as a member of

the Judicial Council for the First Circuit, Judicial Misconduct Complaint No. 90033);

9. US District Court Judge John J. McConnell, Jr. (US District Court (RI), serving as a

member of the Judicial Council for the First Circuit, Judicial Misconduct Complaint No.

90033);

10. US District Court Judge John David Levy (US District Court (ME), serving as a

member of the Judicial Council for the First Circuit, Judicial Misconduct Complaint No.

90033);

II. LIST OF ADDITIONAL UNRESOLVED ISSUES SUPPORTING MOTION TO

VACATE JUDGEMENTS

These UNRESOLVED issues, evidenced by the historical record(s) include (but are not limited

to) the following:

1. Failing to address evidenced claims of TREASON under ARTICLE III, Section 3 of

The US Constitution alleged against FOUR (4) Federal (Circuit and District) Judges,

including Chief Justice Howard, for RULING WITHOUT JURISDICTION;

2. Failing to address multiple evidenced claims of MISPRISION of TREASON,

PURSUANT to 18 U.S. Code § 2382, brought against three (3) additional officers of

the Court15 and twenty-one (21) parties in this litigation, HARIHAR v. US BANK et al;

3. Failing to address Evidenced ECONOMIC ESPIONAGE claims pursuant to 18 U.S.C.

§ 1832, and matters believed to impact National Security;

Misprision of Treason claims pursuant to 18 U.S. Code § 2382 are filed against Circuit Clerk –
15

ROBERT M. FARRELL, Circuit Clerk MARGARET CLARK and Deputy Clerk –


MATTHEW A. PAINE;
21
4. Failing to promptly exercise judicial discretion by wrongfully denying or unnecessarily

delaying WITHOUT CAUSE - repeated requests for the Court to Assist with the

Appointment of Counsel pursuant to 28 U.S.C. §1915;

5. Failing to address the EVIDENCED and UNOPPOSED FRAUD on the COURT

claims under Fed. R. Civ. P. 60(b)(3).16

6. Failing to address evidenced 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;

7. Failing to address identified DUE PROCESS VIOLATIONS;

8. Failing to address the clearly evidenced IMBALANCE OF HARDSHIPS;

9. Failing to address Title 18, U.S.C., Section 242 Deprivation of Rights Under Color of

Law;

10. Failing to address Title 18, U.S.C., Section 241 Conspiracy Against Rights;

11. Failing to address Title 18, U.S.C., Section 1001 Fraud and False Statements;

12. Failing to address Title 42 Sec. 1983, Civil action for Deprivation of Rights;

13. Failing to address the Plaintiff’s/Appellant’s REPEATED concerns for his personal

SAFETY AND SECURITY;

14. Failing to promptly reimburse accruing Legal (and other) Fees due to the Appellant, as

stated within the record;

15. Failing to address DEMAND(S) for TRANSFER to another circuit WITH

Jurisdiction;

16. Failing to address DEMAND(S) FOR CONGRESSIONAL INTERVENTION;

16
The Appellant draws reference from MULTIPLE instances in this litigation where the Court
(Both District and Appellate) repeatedly failed to acknowledge the CLEARLY EVIDENCED
and UNOPPOSED Fraud on the Court claims brought by the Plaintiff/Appellant, Mohan A.
Harihar. By Federal Law, a DEFAULT judgement in favor of the Plaintiff/Appellant – Mohan A.
Harihar SHOULD HAVE already been issued.
22
17. Failing to address repeated requests to TIMELY VALIDATE the referenced Dismissal

Order(s);

18. Failing to address and ACKNOWLEDGE the relationship of this Complaint to

HARIHAR v THE UNITED STATES (Appeal No. 17-2074), including PACER

recognition;

19. Failing to address DEMAND(S) for CLARIFICATION HEARINGS, with the presence

of an INDEPENDENT COURT REPORTER;

20. REFUSAL(S) to RECUSE by both Circuit and District Court judges. It is important to

note, that while US District Court Judge Allison Dale Burroughs refused to recuse

herself (twice) in HARIHAR v US BANK et al (Docket No. 15-cv-11880), her

IMMEDIATE RECUSAL for the EXACT SAME REASONS when assigned to the

related complaint HARIHAR v. THE UNITED STATES (Docket No. 17-cv-11109) is

certainly recognized;

21. Failing to address evidenced argument(s) supporting PREMATURE DISMISSAL;

22. Failing to address the well evidenced and continued PATTERN of CORRUPT

CONDUCT within this litigation;

III. Fed. R. Civ. P. 60(b)(4) and (6)

A judgment is void under Rule 60(b)(4) if the court that rendered the decision lacked

jurisdiction over the subject matter or parties.17A lack of subject-matter jurisdiction, however,

will not always render a final judgment void under Rule 60(b)(4).18 A party seeking to void the

judgment must demonstrate more than the court erred in asserting subject-matter jurisdiction over

the claim. Rather, the party must establish the court’s exercise of jurisdiction over the claim

17
Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1216 (11th Cir. 2009); Wendt, 431
F.3d at 412.
18
See Wendt v. Leonard, 431 F.3d at 413 (4th Cir. 2005).
23
amounted to a “plain usurpation of judicial power.”19 Only when the jurisdictional error is

“egregious” will a court treat the judgment as void.20 A judgment may also be void under

Rule 60(b)(4) if it is entered in a manner inconsistent with due process.

The record(s) show that the Appellant has CLEARLY set forth meritorious arguments IN

EACH of the issues listed in the prior section. ORDINARILY, Judicial economy would

suggest that VALIDATING JURISDICTION prior to moving forward with this appeal is

certainly appropriate. HOWEVER, what has been evidenced by the historical record(s) thus

far exemplifies what MAY be collectively considered the largest, and certainly most

egregious ABUSE OF AUTHORITY by a Federal Judiciary in US history. The argument can

certainly be made, and should be clear to ANY objective observer, that there appears to be a set

agenda by this Federal Judiciary to ensure that the Appellant – Mohan A. Harihar DOES

NOT receive a FAIR or JUST RESOLUTION in either of his complaints.

When considering other reasons besides jurisdiction that justify relief, Fed. R. Civ. P. 60(b)(6)

is also considered applicable - referencing: 1.) The list of issues from the prior section, and 2.)

The Appellants meritorious arguments of record which speak to his Intellectual Property/Trade

Secret protected under The Economic Espionage Act, and its perceived impact to National

Security.

IV. MOTIVE

While further investigation is certainly warranted to conclusively determine MOTIVE,

arguments are certainly made to show an intention to prevent precedent(s) from being set, as

19
In re Valley Food Services LLC, 377 B.R. 207, 212 (8th Cir. 2007) citing Hunter v.
Underwood, 362 F.3d 468, 475 (8th Cir. 2004).
20
Id.; United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000).
24
it pertains to illegal foreclosure accountability, and EVEN with assistance in appointing

counsel. A just resolution in favor of the Plaintiff/Appellant would (at minimum) set

precedent impacting 4.2M illegal foreclosures as identified by the Department of Justice

and Federal Bank Regulators. For example - If you have 4.2M potential lawsuits which now

can rely on precedent, each suit averaging $1M, total legal risk becomes $4.2T. Now

imagine if precedent is additionally set with the appointment of counsel pursuant to 28

U.S.C. §1915.

And that’s JUST the beginning… The historical record shows that EVERY PRESIDING

JUDGE (along with Defendants/Appellees) associated with this litigation has failed to even

mention or reference the words Economic Espionage, National Security, or the Appellant’s

Intellectual Property known as the HARIHAR FCS model © – designed to conservatively

deliver $5T in Economic growth to the United States. As a matter of record, the Court, and

ALL parties are well-aware of meritorious presentations the Appellant has made to

numerous government offices including (but not limited to): the Congressional offices of

both US Senator Elizabeth Warren (D-MA) , US Congresswoman Niki Tsongas (D-MA),

Deputy Chief Counsel (former) of the House Financial Services Committee – Gail Laster,

and the Executive Office of the President (EOP) (under the Obama Administration) – per

the specific request of Vice President Joe Biden.

While further investigation is certainly warranted, the argument for MOTIVE can again be

made, where Officers of the Court have conspired to damage the Appellant’s Intellectual

property rights, ultimately preventing the possibility of its implementation nationwide.

25
Nevertheless, whatever the motive, there is NO justification for their misconduct. To the

extent that referenced District and Circuit judges have so egregiously abused their authority,

the Court should certainly vacate the judgements in both affected cases21 and award maximum

civil damages to the Appellant – Mohan A. Harihar.

Reference is appropriately drawn to the following legal citations:

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480 (1983): Fraud and deceit may arise

from silence where there is a duty to speak the truth, as well as from speaking an untruth. In

regard to courts of record: “If the court is not in the exercise of its general jurisdiction, but of

some special statutory jurisdiction, it is as to such proceeding an inferior court, and not aided

by presumption in favor of jurisdiction.”

Smith's Leading Cases, 816: In regard to courts of inferior jurisdiction, “if the record does not

show upon its face the facts necessary to give jurisdiction, they will be presumed not to have

existed.”

Norman v. Zieber, 3 Or at 202-03: It is interesting to note the repeated references to fraud in

the above quotes. Therefore, the meaning of fraud should be noted: Fraud. An intentional

perversion of truth for the purpose of inducing another in reliance upon it to part with some

valuable thing belonging to him or to surrender a legal right. A false representation of a matter

of fact… which deceives and is intended to deceive another so that he shall act upon it to his

legal injury. … It consists of some deceitful practice or willful device, resorted to with intent to

deprive another of his right, or in some manner to do him injury… (Emphasis added) –Black’s

21
Reference is made to this case, HARIHAR v. THE UNITED STATES, and also to
HARIHAR v. US BANK et al, Appeal No. 17-1381 (Lower Court Docket No. 15-cv-11880).
26
Law Dictionary Fifth Edition, page 594. Then take into account the case of McNally v. U.S.,

483 U.S. 350, 371-372, Quoting U.S. v Holzer, 816 F.2d. 304, 307 Fraud in its elementary

common law sense of deceit… includes the deliberate concealment of material information in

a setting of fiduciary obligation. A public official is a fiduciary toward the public… and if he

deliberately conceals material information from them he is guilty of fraud.

V. CONCLUSION

When a litigant’s repeated (and collective) efforts to address JURISDICTION, TREASON

CLAIMS, ECONOMIC ESPIONAGE, DUE PROCESS VIOLATIONS, FRAUD ON THE

COURT and others go UNANSWERED AND IGNORED for a year and a half, there is just

cause to (at minimum): 1.) Attack the Court’s integrity; 2.) Vacate impacted Judgement(s),

and considering the severity of issues 3.) Bring these matters to the attention of the President,

Congress AND the American Public.

While the Appellant realized that undertaking this MONUMENTAL legal battle would

likely be a long road, NEVER did he anticipate the level of corruption so blatantly

evidenced by this judiciary. The Appellant makes clear that – based on the historical record, he

has understandably LOST ALL FAITH in this FEDERAL JUDICIARY to uphold the law, and

is certain that ANY OBJECTIVE OBSERVER would reach the same conclusion.

THEREFORE, for the reasons stated within and by the evidenced record(s), the Appellant –

Mohan A. Harihar respectfully calls for a Court - WITH JURISDICTION to: 1.) VACATE

27
referenced judgements which are considered VOID, and 2.) AWARD the Appellant the

maximum reimbursement of fees and civil damages as is allowed by law.

What MAY be subject to additional debate – to be determined by either Congress OR a Court

that is recognized as having jurisdiction, is identifying the proportion of liability by Appellee. In

HARIHAR v THE UNITED STATES (Appeal No. 17-2074) it is clear that there is only one

(1) party – the Appellee, that bears responsibility. However, in this case, HARIHAR v. US

BANK et al (Appeal No. 17-1381), the argument can be made that while the record reveals

UNOPPOSED FRAUD ON THE COURT claims against the Defendants/Appellees warrant a

DEFAULT JUDGEMENT, such egregious abuse evidenced by this Federal Judiciary MAY

either: 1.) Supersede the referenced DEFAULT, or 2.) Proportionately assess damages payable

by Appellees/Defendants AND the United States. There is also CLEAR EXPECTATION for

the Court to assess professional licensure penalties (including, but not limited to disbarment)

against referenced Defendants/Appellees where it is warranted and for the Department of Justice

(DOJ) to TIMELY provide an update with regard to the Appellants RELATED CRIMINAL

complaints of record.

Finally, the Appellant – Mohan A. Harihar respectfully states that once these referenced

judgements have been appropriately vacated and damages have been rightfully awarded as stated,

the intention remains to align with The United States for the purpose of implementing the

HARIHAR FCS model© nationwide. Successful implementation will undoubtedly assist in

paving the way to historical economic growth and prosperity for our great Nation.

Please be advised, a duplicate copy of this motion has already been filed under Appeal No. 17-

2074 on December 23, 2017, as it is directly related to this litigation. For documentation

28
purposes, after sending a copy of the motion to the attention of The President, confirmation of its

receipt is attached (See Attachment A) with the filed Court copy. If there is a question regarding

ANY portion of this Motion, the Appellant is happy to provide additional supporting information

upon request, in a separate, hearing and with the presence of an independent court reporter.

Respectfully submitted this 24rd Day of December, 2017

Mohan A. Harihar
Appellant
7124 Avalon Drive
Acton, MA 01720
Mo.harihar@gmail.com

29
Attachment A

30
31
32
Attachment B

33
No. 17-1381

United States Court of Appeals


For the First Circuit
MOHAN A. HARIHAR
Plaintiff - Appellant

v.

US BANK NA; 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.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MASSACHUSETTS

BRIEF OF APPELLANT
MOHAN A. HARIHAR

Mohan A. Harihar
Mo.harihar@gmail.com
7124 Avalon Drive
Acton, MA 01720
p. (617) 921.2526
Dated: August 14, 2017

34
APPELLANT DISCLOSURE STATEMENT

The Appellant, Mohan A. Harihar, acting pro se, respectfully makes the

following disclosures:

1. This appellate brief addresses the UNOPPOSED Fraud on the Court

Claim(s) of the Appellant, pursuant to Fed. R. Civ. P. 60(b)(3). It is

UNCLEAR why the filing of a brief is necessary, since Appellees and

Defendants HAVE NO DEFENSE in an Appeal, and the filing of

EITHER brief is considered MOOT. Despite multiple efforts by the

Appellant requesting clarification (on record), presiding Judges Torruella,

Kayatta, Barron; Judge Thompson, and Chief Justice Howard have refused

to clarify why it is necessary for the Appellant to even file his Brief.

2. The Appellant Brief addresses PRIMARILY, the evidenced Fraud on the

Court claims under Fed. R. Civ. P. 60(b)(3). While there is a

SUBSTANTIAL amount of incremental facts supporting the Appellant’s

consistent claims on Appeal (as documented within the record), they are

also interpreted as moot, based on the unopposed Rule 60(b)(3) claim,

and what by law MUST result in a default judgement. Should it become

necessary to provide the Court with additional facts supporting appeal, the

Appellant will (at minimum) require an extended timeline to do so, re-

stating his request for assistance to appoint counsel, and the Court’s

approval to exceed the Certificate of Compliance limits as needed.

35
3. The Appellant necessarily files this Appellate brief by the court ordered

deadline of August 14, 2017, and still as a pro se litigant, despite providing

the First Circuit US Court of Appeals with a “TEXTBOOK” example

warranting assistance with the appointment of counsel pursuant to Title 28

U.S.C. §1915. This refusal to assist the Appellant with the appointment of

counsel shows a failure to uphold Title 28 U.S.C. §1915 and the judicial

machinery of the court. It exemplifies an incremental act made in BAD

FAITH by officers of the Court representing The United States -

ensuring fundamental unfairness that impinges on the Appellant’s DUE

PROCESS rights. Presiding Judges Torruella, Kayatta, Barron; Judge

Thompson, and Chief Justice Howard have all denied to clarify their

decisions refusing to assist the Appellant with the appointment of

counsel.

4. Evidenced claims by the Appellant are believed to include (but are not

limited to) matters of National Security, and include infractions to the

Economic Espionage Act of 1996, pursuant to 18 U.S.C. §§ 1832, and

acts of TREASON under ARTICLE III, warranting the intervention of

BOTH Congress and the Department of Justice, to address associated

criminal components. Evidenced Treason claims also warrant notifying

The President of The United States.

5. This is a proceeding ancillary to a proceeding in the US District Court –

HARIHAR v. THE UNITED STATES, Docket No. 17-cv-11109,


36
pursuant to FED. R. APP. P. 26 (a)(1)(B)(viii). The documented judicial

actions exemplified in this appeal warrant an expansion of claims against

The United States in the related docket.

6. Since presiding Judges: Torruella, Kayatta, Barron have previously (at

minimum) ignored the Appellant’s Fraud on the Court claims, they are

considered to be without jurisdiction and disqualified by law to rule further

on this Appeal, or any related matter. Based on the Appellant’s

interpretation of the law, a judge who rules without jurisdiction is

considered to have committed an Act of Treason under ARTICLE III of

the Constitution. Therefore, the Appellant respectfully re-states his demand

for their immediate RECUSAL, and intends to bring Treason claims

against ANY party who attempts to act without jurisdiction.

7. The Appellant firmly believes, based on the record alone, that a deep-

seated favoritism or antagonism does exist here, making fair judgment

impossible within this First Circuit. It would appear (at least on its surface),

that elements of corruption may exist; and that efforts have been made thus

far – by NINE (9) Federal judges, to brush aside all motions in order to

reach a corrupt and pre-determined outcome. ANY objective observer

would certainly agree, and giving the Appellant no choice but to proceed

as a pro se litigant re-affirms that argument, and further strengthens

existing conspiracy claims in the related complaint, HARIHAR v. THE

UNITED STATES, Docket No. 17-cv-11109.


37
TABLE OF CONTENTS

APPELLANT DISCLOSURE STATEMENT …………………………………….3

TABLE OF AUTHORITIES …………………………………………...………….6

BRIEF OF APPELLANT ………………………………………………………….7

JURISDICTIONAL STATEMENT ……………………………………………….7

STATEMENT OF THE ISSUES ………………………………………………….8

STATEMENT OF THE CASE ……………………………………………………9

STATEMENT OF FACTS ……………………………………………………….10

SUMMARY OF ARGUMENT ...............................................................................12

STANDARD OF REVIEW .................................................................................... 17

ARGUMENT ......................................................................................................... 17

I. THE DISTRICT COURT FAILED TO CORRECTLY


ASSIST MOHAN A. HARIHAR WITH THE
APPOINTMENT OF COUNSEL, AND OTHER
REQUESTED INJUNCTIVE RELIEF……………………….…17

II. APPELLEES/DEFENDANTS FAILED TO FILE ANY


OPPOSITION TO FRAUD ON THE COURT
CLAIMS…………………………………………………………23

III. THE DISTRICT COURT FAILED TO CORRECTLY


ADDRESS EVIDENCED FRAUD ON THE COURT
CLAIMS…………………………………………………...…….26

IV. THE DISTRICT COURT FAILED TO ADDRESS THE


APPELLANT’S CLAIMS REGARDING THE
MISAPPROPRIATION OF TRADE SECRETS, ECONOMIC
ESPIONAGE, AND IMPACT TO NATIONAL
SECURITY………………………………………………………26

38
V. THE DISTRICT COURT IMPROPERLY DISMISSED THE
APPELLANT’S COMPLAINT…………………………………27

VI. THE IMPACT OF RECUSAL FROM THE RELATED CASE,


HARIHAR V. THE UNITED STATES, DOCKET NO. 17-CV-
11109………………………………………………………….…28

CONCLUSION ..................................................................................................... 28

CERTIFICATE OF COMPLIANCE UNDER FED. R. APP. P. 32(a)(7)

CERTIFICATE OF SERVICE

39
TABLE OF AUTHORITIES

CASES:

CDR Creances S.A.S. v Cohen


2014 NY Slip Op 03294…………………………………………………….16

Cox v. Burke,
706 So. 2d 43, 47 (Fla. 5th DCA 1998) …………………………...……….10

Aoude v. Mobil Oil Corp.,


892 F.2d 1115, 1118 (1st Cir. 1989) ……………………………………….11

Bulloch v. United States,


763 F.2d 1115, 1121 (10th Cir. 1985) ………………………….………….12

Gordon v. Leeke,
574 F.2d 1147 (4th Cir. 1978) …………………………………………….19

STATUTES:

28 U.S.C. § 1915 ...................................................................................2,14,19,20


18 U.S.C. § 1832 .............................................................................................9,15,26
28 U.S.C. § 1291…………………………………………………………………….7
28 U.S.C. §455(a)………………………………………………………………10,27
28 U.S.C. § 144 ………………………………………………………….….…10,27
26 U.S.C. § 860G(d)(1)……………………………………………………………24
18 U.S. Code § 2382………………………………………………………………18
18 U.S. Code § 4…………………………………………………………….….…18

RULES:

Fed. R. Civ. P. 60(b)(3) .......................................................................1,7-10,14,23,28


Fed. R. Civ. P. 26 (a)(1)(B)(viii) ………………………………………….….…….3

UNITED STATES CONSTITUTION:


Article III, Section 3……………………………………………………….2,3,18,26

40
BRIEF OF APPELLANT

Appellant Mohan A. Harihar, who has UNFAIRLY been given NO

ALTERNATIVE but to represent himself pro se, respectfully calls for this Court

to recognize the UNOPPOSED Fraud on the Court claims evidenced against ALL

Appellees/Defendants, and grant a DEFAULT order and final judgment of

permanent injunction – IN FAVOR of the Appellant, pursuant to Fed. R. Civ. P.

60(b)(3).

JURISDICTIONAL STATEMENT
The record of this Appeal reveals that the presiding Judges - Torruella,

Kayatta, and Barron have previously failed to (at minimum) address Fraud on the

Court Claims, referenced in the lower court docket, and with the expanded claims

documented earlier in this Appeal. Since the beginning of the Appeal process, five

(5) additional Federal Judges (nine in total), including Chief Justice Howard have

also either ignored these Rule 60(b) claims or suggested, without cause that they are

frivolous. When asked to clarify their decisions, these referenced judges have refused

to do so. Motions for recusal have been either DENIED or IGNORED, including

the respectful DEMAND for TRANSFER of the Appeal to another Circuit. This

clear failure to uphold the judicial machinery of the Court is irrefutable, on record,

and certainly impacts jurisdiction here (at minimum) under 28 U.S.C. § 1291. With

the filing of the Appellant Brief, eight (8) incremental judicial misconduct

complaints will necessarily be filed with the Clerk of the Court. The extent of

41
evidenced judicial misconduct claims against nine (9) Federal Judges (ALL within

the First Circuit)22, suggests that elements of both CORRUPTION and

CONSPIRACY exist; warranting (at minimum) the immediate notification of

Congress, the House Judiciary Committee, and the President. Formal

communication (on record) has now been delivered to US Senator Elizabeth

Warren (D-MA) and Congresswoman Niki Tsongas (D-MA) requesting their

immediate assistance with bringing this matter to the attention of Congress.

STATEMENT OF ISSUES

1. Whether the District Court failed to assist the Appellant with the

appointment of counsel and other requested injunctive relief?

2. Whether Appellees/Defendants failed to file opposition to Fraud on the

Court Claims?

3. Whether the District Court failed to (at minimum) correctly address the

evidenced Fraud on the Court claim(s) under Fed. R. Civ. P. 60(b)(3)?

4. Whether the District Court failed to address the Appellant’s claims

regarding the Misappropriation of Trade Secrets and Economic

22
The referenced NINE (9) officers of the Court include: US District Court
Judge’s - Allison Dale Burroughs, Chief Judge Joseph N. Laplante (NH), Judge
John J. McConnell, Jr. (RI), and Judge John David Levy (ME), First Circuit Judges
- Juan R. Torruella, William J. Kayatta, Jr., David J. Barron, O. Rogeriee
Thompson and Chief Justice Jeffrey R. Howard.

42
Espionage pursuant to 18 U.S. Code § 1832, and its resulting impact to

National Security?

5. Whether the District Court improperly dismissed the Appellant’s

complaint?

6. Whether the RECUSAL of Judge Burroughs in the related complaint

impacts this Appeal, Dismissal Order, and all related

Orders/Judgements?

STATEMENT OF THE CASE


The Appellant, Mohan A. Harihar, addresses the District Court’s abuse of

discretion and wrongful dismissal of his complaint seeking: (1) Damages resulting

from his identified illegal foreclosure, including the recovery of his property, (2)

Damages resulting from the Misappropriation to his Intellectual Property – also

considered a Trade Secret(s) protected under the Economic Espionage Act, (3)

Professional accountability including (but not limited to) licensure revocation and

disbarment, where applicable, and (4) Criminal accountability for related criminal

offenses, including (but not limited to fraud).

On July 3, 2016, the Appellant filed with District Court a motion which

included Fraud on the Court claims pursuant to Fed. R. Civ. P. 60(b)(3) against ALL

Appellees/Defendants. NO opposition by ANY party was ever filed, and the judge’s

order of denial failed to even address the Fed. R. Civ. P. 60(b)(3) claim. Since that

43
time, requests for Judge Burroughs’ recusal per 28 U.S.C. §455(a), AND 28 U.S.C.

§ 144 were denied (twice), and repeated efforts to address Fraud on the Court Claims

continued to be ignored. If there was ANY question regarding the validity of the

Rule 60(b) claim, Appellees and Defendants had nearly one year to ADDRESS,

DEFEND, or DENY such claims. They DID NOT, as is clearly reflected within the

record.

STATEMENT OF FACTS

Per Fed. R. Civ. Proc. Rule 60(b)(3) - fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an opposing party. “That cheaters

should not be allowed to prosper has long been central to the moral fabric of

our society and one of the underpinnings of our legal system.”23

The basic standards governing fraud on the court are reasonably straightforward. As

set forth in Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998):

The requisite fraud on the court occurs where “it can be demonstrated, clearly and

convincingly, that a party has sentiently set in motion some unconscionable scheme

calculated to interfere with the judicial system’s ability impartially to adjudicate a

matter by improperly influencing the trier of fact or unfairly hampering the

23
Florida Bar Journal, February, 2004 Volume LXXVIII, No. 2, p.16
44
presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp.,

892 F.2d 1115, 1118 (1st Cir. 1989) . . .

Fraud on the court as described in Cox typically refers to substantive, not procedural,

misconduct. The same is true here as it pertains to clear title. ALL fourteen (14)

Appellees/Defendants were aware that clear title did not exist with Mr. Harihar’s

property and collectively participated in a scheme to defraud the him of HIS

HOMESTEAD. The Court is well aware that this is not an isolated incident. The

Appellant is able to conservatively provide 4.2 million other examples of this

scheme, as described by the United States Department of Justice (DOJ) and Federal

Bank Regulators.

A summary overview of the scheme begins with the RMBS Trust which, as detailed

in the Appellant’s filed opposition, has no legal standing to Mr. Harihar’s property.

Every action following is impacted and therefore is moot/void: ranging from

collecting monthly mortgage payments, to foreclosure, resale, etc... As previously

detailed, ALL Appellees/Defendants have benefited from the alleged scheme against

the Mr. Harihar, either personally or financially; Litigation privilege should not

apply when there is no legal standing, nor should sovereign immunity. The

Defendant Trust, Bank Defendants, attorney and law firm Defendants, Defendant

Real Estate Brokers and Defendant Homebuyers have benefitted financially from the

alleged scheme – when they had no legal standing to do so; resulting in severe

detriment to Mr. Harihar. The Appellant believes the Commonwealth, the

45
Department of Justice, and the Federal Judiciary have refused to prosecute and

correct erred judgments (at minimum) out of fear of setting a precedent for the

Nation. Regardless, their failure to hold parties accountable is unacceptable.

Allowing this evidenced misconduct to continue without consequence threatens

the well-being of this Nation.

As a general proposition, substantive misconduct provides grounds for default with

prejudice because it more clearly and directly subverts the judicial process (Bulloch

v. United States). The Appellant/Plaintiff had respectfully called for the District

Court to schedule the required evidentiary hearing to determine whether the conduct

forming the basis for Defendant default was willful or done in bad faith or was

deliberate and in contumacious disregard of the court’s authority. Not a single piece

of opposition is on record by any Appellee/Defendant, and the District Court has

continuously ignored the claim(s) as if never mentioned.

SUMMARY OF ARGUMENT

While the PRIMARY argument of the Appellant’s brief focuses on the Fraud on the

Court Claim(s), the collective pieces of the EVIDENCED argument portray a far

greater scheme (alleged). The Court is respectfully reminded, that the Appellant’s

Foreclosure, is one (1) of 4.2M illegal foreclosures associated with this Nation’s

Foreclosure Crisis, and as identified by the Department of Justice, Commonwealth

of Massachusetts, and Federal Bank Regulators. The US Foreclosure Crisis is


46
considered by many to be the LARGEST CASE OF FRAUD IN THE HISTORY

OF THE UNITED STATES. The financial risk associated with the crisis has been

estimated as high as $60T (Trillion). Although there have been National Settlements

– ex. The $25B National Mortgage Settlement (in conjunction with 49 State

Attorneys’ General), the $8B settlement involving Federal Bank Regulators, and

others, those who have been damaged most – THE ILLEGALLY FORECLOSED

HOMEOWNER, has received the least in financial compensation. In most cases,

LESS THAN $2000, after losing their home, and much more. While these foreclosed

homeowners are allowed by law to pursue additional damages, the majority

(including this Appellant) do not have the financial resources to retain counsel –

never mind for an indefinite period of time. The majority also do not have the legal

knowledge, resources or time to consider pursuing legal action as a pro se litigant.

For those who attempt to do so, it is widely considered an IMPOSSIBLE (or highly

improbable) task. The Banking industry knows it, the Government knows it, Real

Estate Professionals know it, and most Americans know it. IF EVER, there were to

be a case that helps to better close the gap in damages to the illegally foreclosed

homeowner, that precedent would have substantial impact to this Nation. For

example, if you have a pool of 4.2M illegally foreclosed homeowners, and each of

those homeowners decided to bring a lawsuit supported by precedent, there would

likely be an increased trend of new legal actions filed in both state and federal courts.

If the average lawsuit seeks $1M in damages, the total risk becomes $4.2T(Trillion).

47
Now comes the Appellant, Mohan A. Harihar, who after spending over 4 years

addressing this matter at the state level, brings a new complaint (with merit) to the

US District Court, and an argument that warrants the Court’s the assistance with the

appointment of counsel. If the Court rightfully assists with the appointment of

counsel, pursuant to 28 U.S.C. § 1915, the risk of setting precedent is increased

substantially. Therefore, judges have apparently taken it upon themselves to ensure

that does not happen, to the extent of breaking their judicial oath to do so, including

acts of treason, as evidenced. Along with denying counsel, other injunctive relief is

also denied without cause, ensuring greater imbalance of hardship, weighing

heavily in favor of the Appellant.

Next, after reviewing the content of Appellees/Defendants Motions to Dismiss, the

Appellant brings evidenced Fraud on the Court claims, where not only is there no

opposition filed, but the Court ignores the claim(s) as if never mentioned, suggesting

the possibility (at minimum) of collusion between the Court and

Appellees/Defendants. Despite continuous efforts to address Fed. R. Civ. P.

60(b)(3), ALL parties – the District Court, and this Appeals Court have completely

ignored the claim(s). Now, Appellees/Defendants are prohibited by law to

address an unopposed claim on appeal.

Adding now to the substantive nature of the Appellant’s claim is the damage to his

Intellectual Property (IP) – an economic framework designed to assist The United

48
States and Illegally Foreclosed Homeowners with repairing damages suffered from

the US Foreclosure Crisis. The IP, referred to as the HARIHAR FCS Model, has

merit, having been successfully presented to multiple parties (including, but not

limited to) the Congressional offices of both US Senator Elizabeth Warren (D-
24
MA) , US Congresswoman Niki Tsongas (D-MA)25, Deputy Chief Counsel

(former) of the House Financial Services Committee – Gail Laster (D-MA), 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 substantial assistance to those who have

suffered greatly from illegal foreclosure. The IP is therefore considered a TRADE

SECRET, where the Misappropriation of a Trade Secret is protected under the

Economic Espionage Act, 18 U.S. Code § 1832. Both Appellees/Defendants as

well as the Court have COMPLETELY IGNORED these claims entirely.

THEREFORE, as with the Fraud on the Court claims, Appellees/Defendants

HAVE NO DEFENSE to address claims of Economic Espionage in an

Appellee/Defendant Brief.

24
The FCS Model was successfully presented to Senior Economic Advisor – Bruno
Freitas.
25
The FCS Model was successfully presented to Director (former) – Brian Martin.
49
For the reasons exemplified here in this summary, in the rest of this Appellant Brief

and throughout the record, there are numerous examples that show specifically how

the District Court improperly dismissed the Appellant’s complaint. Now, in the

related filed complaint – HARIHAR v. THE UNITED STATES, Docket No. 17-cv-

11109, the same presiding Judge – Allison Dale Burroughs, has recently RECUSED

herself for the SAME EXACT REASONS that warranted recusal here. Her recusal

now certainly impacts ALL related orders/judgments, rendering them VOID, and

thus certainly impacting this Appeal. There is now heightened concern regarding

unnecessary judicial delay within the District Court to initiate corrective action

following recusal.

Taking shape now is what appears to be a grand scheme of historic proportion to

prevent illegally foreclosed homeowners from recovering damages, and that

prevents the implementation of an economic framework that would certainly bring

historic growth to this Nation (CDR Creances S.A.S. v Cohen). Evidenced concern

extends beyond the Federal Judiciary. – Legislators who have been outspoken about

the corruption within Wall Street, have been silent here, and the DOJ is on record

as saying they will not prosecute evidenced crimes committed against this

American Citizen. The Appellant’s official requests for the Appointment of a

Special Prosecutor, Assembly of a Grand Jury, and a FULL – criminal

investigation has also been seemingly ignored. As an AMERICAN CITIZEN,

that’s UNACCEPTABLE.

50
STANDARD OF REVIEW

The evidentiary standard applied by the federal courts is sufficient to protect

the integrity of our judicial system, and discourage the type of egregious and

purposeful conduct designed to undermine the truth-seeking function of the courts,

and impede a party's efforts to pursue a claim or defense. In order to demonstrate

fraud on the court, the non-offending party must establish by clear and convincing

evidence that the offending “party has acted knowingly in an attempt to hinder the

fact finder's fair adjudication of the case and his adversary's defense of the action”

(McMunn, 191 F Supp 2d at 445, citing Skywark v. Isaacson, 1999 WL 1489038,

*14 [SD N.Y. Oct. 14, 1999, No. 96 CIV. 2815(JFK) ] affd 2000 WL 145465, *1

[SD N.Y. Feb. 9, 2000). A court must be persuaded that the fraudulent conduct,

which may include proof of fabrication of evidence, perjury, and falsification of

documents concerns “issues that are central to the truth-finding process” (McMunn,

191 F Supp 2d at 445). Essentially, fraud upon the court requires a showing that a

party has sentiently set in motion some unconscionable scheme calculated to

interfere with the judicial system's ability impartially to adjudicate a matter by

improperly influencing the trier or unfairly hampering the presentation of the

opposing party's claim or defense

(McMunn, 191 F Supp 2d at 445, quoting Aoude, 892 F.2d at 1118] ). A

finding of fraud on the court may warrant termination of the proceedings in the non-

51
offending party's favor (see e.g. McMunn, 191 F Supp 2d at 462 [“[defendant]

deserves harsh sanction of dismissal”]; Shangold, 2006 WL 71672, at *5 [plaintiff's

fabrication of evidence warrants dismissal]; Hargrove v. Riley, 2007 WL 389003,

*11 [same]; DAG Jewish Directories, 2010 WL 3219292, at *5 [same] ). For “when

a party lies to the court and [its] adversary intentionally, repeatedly, and about issues

central to the truth-finding process, it can fairly be said that [the party] has forfeited

[the] right to have [the] claim decided on the merits” (McMunn, 191 F Supp 2d at

445). Therefore, once a court concludes that clear and convincing evidence

establishes fraud on the court, it may strike a pleading and enter a default judgment .

ARGUMENT

I. THE DISTRICT COURT FAILED TO ASSIST THE APPELLANT


WITH THE APPOINTMENT OF COUNSEL AND OTHER
INJUNCTIVE RELIEF

In the lower Court, the Appellant consistently made clear that he is not an attorney

and has no legal background. The factually supported issues involved are CLEARLY

too complex for the Appellant to present entirely without the assistance of

experienced legal counsel. Experienced legal expertise is required in a number of

areas including (at minimum):

a. Treason allegations, and potential impact to National Security;

b. Misprision (of Treason, and of a Felony), 18 U.S. Code § 2382, 18 U.S. Code

§4
52
c. Fraud on the Court (Judicial and Defendant);

d. Misappropriation of Intellectual Property Rights and Economic Espionage;

e. Historical litigation pertaining to the US Foreclosure Crisis;

f. Securities Fraud - specifically referencing (but not limited to) Residential

Mortgage-Backed Securities (RMBS) associated with the US Foreclosure

Crisis;

g. Real Estate/Foreclosure Law

h. Litigation involving State and Federal Government

i. US District Court Trial Court Litigation

j. Appellate Court Litigation

k. Judicial Misconduct

l. Violations to Due Process

m. Color of Law Violations

n. Civil Conspiracy Claims

o. Federal Tort Claims

It is completely UNREALISTIC to expect ANY pro se litigant to successfully

litigate this matter in its entirety, considering the number of complex subjects

requiring legal expertise. Also, when the Commonwealth (AND the United States)

are in reality – two (2) of the opposing parties (as is the case here) and when the

interests of the indigent litigant, although not involving his personal liberty, are

fundamental and compelling, due process and fundamental fairness require a

presumption in favor of appointed counsel.


53
The United States Court of Appeals for the Seventh Circuit acknowledged that under

28 U.S.C. § 1915(d) the district court has broad discretion to appoint counsel and

that the denial of counsel "will not be overturned unless it would result in

fundamental unfairness impinging on due process rights.” The court said that the

district court's decision must "rest upon the court's careful consideration of all the

circumstances of the case, with particular emphasis upon certain factors that have

been recognized as highly relevant to a request for counsel.”

The following factors have additionally contributed, leaning heavily towards the

necessary appointment of counsel:

1. Merits of the Appellant’s Claim;

2. Position to investigate crucial facts;

3. Whether the search for truth will be better served if both sides are represented

by persons trained in the presentation of evidence and in cross-examination;

4. Capability of the Appellant to present his case. The court of appeals quoted

Gordon v. Leeke, "If it is apparent to the district court that a pro se litigant has a

colorable claim but lacks the capacity to present it, the district court should appoint

counsel to assist him.”;

5. The district court should consider the complexity of the legal issues the

claim(s) raises. When the law is so clearly settled that counsel will serve no purpose,

the court should deny a request for counsel. When, however, the law is not clear,

justice will be better served if both sides are represented by persons trained in legal

analysis.
54
While the Appellant understands that assistance with the appointment of counsel is

rare, it SHOULD be recognized that the Court’s assistance per Title 28 U.S.C. §1915

is clearly warranted at the District Court level, and even more so at the Appellate

level. By refusing to assist the Appellant with the appointment of counsel, the

presiding judge exemplified (at minimum) Prejudice and an Act of Bad Faith against

this Appellant (28 U.S. Code § 144), choosing NOT to support or uphold the Judicial

Machinery of the Court. ANY objective observer would entertain reasonable

questions about the judge's impartiality, and conclude that a fair and impartial

hearing is unlikely. The Appellant respectfully disagreed with the lower court’s

decision, questioning where exactly the bar has been set to assist with the

appointment of counsel, AND exactly how Judge Burroughs could possibly have

arrived at her conclusions. The Appellant’s requests for clarification was repeatedly

IGNORED/DENIED.

6. It is HIGHLY UNLIKELY, that if the Complainant had experienced legal

counsel representing him from the beginning – whether with, or without the

assistance of the Court, this litigation would be in the position it finds itself in now.

It is FAR MORE LIKELY that by now, the process would STILL be in the lower

court, well past the Discovery phase, potentially with additional claims, and on a

TIMELY path to a jury trial. It is also entirely plausible, that by now a settlement

agreement between ALL parties, INCLUDING the UNITED STATES, would have

been reached.

55
7. By refusing to assist with the appointment of counsel, the lower court has not

only caused increased hardship to the Appellant, but has also WASTED over two

(2) years of the litigants (Appellant and Appellees/Defendants) and the Court’s time.

The Appellant’s time should be considered no less important than that of opposing

counsel. These clearly evidenced FACTS demonstrate ACT(S) of BAD FAITH,

made by the United States against Mr. Harihar. The Appellant has submitted to both

the District Court and the Appeals Court, a DEMAND for the reimbursement for

COSTS and FEES, and has yet to receive a timely payment from the United States

Treasury Department. The United States has respectfully been informed, that (at

minimum) the referenced legal fees will continue to accrue until either:

a. The Court RIGHTFULLY assists with the appointment of counsel; or

b. The Appellant is able to secure legal counsel on his own.

8. Appellant’s Inability to thus far retain legal counsel on his own – For nearly

six (6) years, the Appellant has reached out to a countless number of law firms, in

an effort to secure and retain legal counsel. These efforts have been unsuccessful,

not because the claims lack merit, but primarily for the following reasons:

a. Conflict of interest (Usually with one of the Bank defendants, or the

government);

b. Unwilling to consider a contingency agreement;

c. Not equipped to handle a case of this magnitude;

d. Fear of negative repercussion – The Appellant’s complaint is tied to what

many (worldwide) consider the largest case of FRAUD in US history, and exposes
56
corruption at a very high level. The Appellant has found that many law firms are

fearful that if they choose to represent him, they are likely to face some form of

negative repercussion.

10. The continued refusal to assist with the appointment of counsel shows cause

to expand upon existing claims against the United States in the related complaint,

HARIHAR v. THE UNITED STATES. The Court is aware that ALL three (3)

branches of government have previously received notice of the Appellant’s legal

intentions, including the required SF-95 form. The Appellant has offered the United

states an opportunity to seek agreement, and has made multiple efforts

(unsuccessfully) through both the lower court and this Appeals Court to get a

response. The lower court has ignored the Appellant’s allegations against the United

States and his efforts to seek agreement as if they were never mentioned. Counsel is

needed to assist with addressing these issues involving the United States, whether it

is in reaching a mutual agreement, or continued legal action(s).

II. APPELLEES/DEFENDANTS FAILED TO FILE ANY OPPOSITION


TO FRAUD ON THE COURT CLAIMS

Appellees are now faced with the reality that IF THE LAW IS UPHELD, their

DEFAULT is IMMINENT, since both the evidenced Fraud on the Court AND

Economic Espionage claims stand as UNOPPOSED. This SHOULD be fairly

straightforward - Appellees realize they have NO RECOURSE in this appeal,

therefore CANNOT address in an Appellee brief and re-direction back to the lower

57
Court would provide NO DIFFERENT CIRCUMSTANCE. Therefore, based on

these FACTS ALONE, this Court MUST find ALL Appellees in DEFAULT with

prejudice, pursuant to (at minimum) Fed. R. Civ. Proc. Rule 60(b)(3).

EVEN IF Appellees/Defendants had attempted to file opposition, the Appellant’s

argument is supported by the sworn testimony of Nationally recognized FRAUD

EXPERT - Lynn Szymoniak has stated under oath in her lawsuit 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 of 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 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.

58
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 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 – a.) The securitized trust CMLTI 2006 AR-1 can make NO

LEGAL CLAIM to the APPELLANT’S referenced property located at 168

Parkview Avenue, Lowell, MA 01852; b.) Since the Trust cannot make a legal
59
claim to the property, it had no right to collect any monies from the Appellant or to

foreclose on the Appellant; c.) If the Trust had no right to foreclose, it also had no

right to re-sell the 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 this US Appeals Court, it has been IGNORED, and

only adds to support (at minimum), the Appellant’s conspiracy and Tort claims.

III. THE DISTRICT COURT FAILED TO CORRECTLY ADDRESS


FRAUD ON THE COURT CLAIMS

Similarly, this too, is fairly straightforward. The record clearly shows that Judge

Burroughs NEVER addressed the Appellant’s Rule 60(b) claims, intentionally

REFUSING to uphold the judicial machinery of the Court. This refusal to uphold

Federal law in itself disqualified Judge Burroughs from ruling further in this

litigation, and was a primary factor in bringing a judicial misconduct complaint

against Judge Allison Dale Burroughs.

IV. THE DISTRICT COURT FAILED TO ADDDRESS THE


APPELLANT’S CLAIMS REGARDING THE MISAPPROPRIATION
OF TRADE SECRETS, ECONOMIC ESPIONAGE AND IMPACT TO
NATIONAL SECURITY

By failing to address claims alleging the Misappropriation of Trade Secrets

and Economic Espionage under (at minimum) 18 U.S.C. § 1832, the presiding

judge failed to uphold the judicial machinery of the Court, exemplifying yet another

reason why she has been disqualified by law to rule further here. There is obviously
60
increased concern when the Appellant raises issues that MAY impact matters of

National Security, and both the Appellees/Defendants as well as the presiding judge

offer NO RESPONSE – as indicated by the record.

V. THE DISTRICT COURT IMPROPERLY DISMISSED THE


APPELLANT’S COMPLAINT

The Appellant addresses in this brief only a portion of the reasons supporting

the improper dismissal of his complaint. The collective reasons that clearly

evidence judicial misconduct within the record include (but are not limited

to):

A. Judicial Prejudice/Bias;

B. Judicial Fraud on the Court;

C. Treason to the Constitution (6 allegations);

D. Refusal to Recuse (2 allegations);

E. Refusal to Assist with the Appointment of Counsel;

F. Failure to maintain a Balance of Hardships and CAUSING

INCREASED HARDSHIP to the Plaintiff;

G. Unnecessary Judicial Delay;

H. Color of Law violations;

I. Conspiracy Claims

61
Since raising allegations of Judicial Misconduct – including six (6) counts of

Treason, there has been NO attempt to ADDRESS, DENY, or DEFEND a single

claim, over the course of one (1) year by Judge Burroughs.

VI. THE IMPACT OF RECUSAL FROM THE RELATED CASE,


HARIHAR V. US BANK, DOCKET NO. 17-CV-11109

On June 19, 2017, three (3) days after being assigned the related case – HARIHAR

v. THE UNITED STATES, Docket no. 17-cv-11109, Judge Allison Dale Burroughs

has RECUSED herself, sua sponte, pursuant to 28 U.S.C. §455(a), AND 28 U.S.C.

§ 144, for the EXACT reasons that warranted her recusal from Harihar v. US Bank,

et al, Docket No. 15-cv-11880. Judge Burroughs’ recusal in the related case shows

cause to VOID ALL RELATED orders/judgements, which includes the dismissal,

and all other orders associated with this appeal. Four (4) weeks after recusal, the

District Court had yet to initiate corrective action in addressing related orders, and

the Appellant necessarily filed a Motion to Vacate orders on July 19, 2017. Now,

nearly 8 weeks following recusal, the District Court still has not initiated corrective

action, exemplifying clear and unnecessary judicial delay.

CONCLUSION

For the reasons stated above, this Court should OVERTURN the District Court’s

dismissal of Mohan A. Harihar’s complaint, ruling in favor of the Appellant, and

bringing a DEFAULT order pursuant to Fed. R. Civ. Proc. Rule 60(b)(3), and final

62
judgment of permanent injunction – IN FAVOR of the Appellant. The Court should

concur that the default was willful or executed in bad faith or was deliberate and in

contumacious disregard of the court’s authority, and shows intent to ultimately harm

The United States. Therefore, the Court should award the Appellant treble monetary

damages, full reimbursement for all related costs and associated legal fees

throughout this litigation, and any other relief the Court deems appropriate. The

Court should also assess appropriate professional penalties against ALL

Appellees/Defendants, including (but not limited to) licensure revocation and

disbarment, where applicable. It remains the Appellants full intention to continue

full pursuit of related criminal claims evidenced against ALL parties.

The Appellant is grateful for the Court’s consideration.

Respectfully submitted,

/s/ MOHAN A. HARIHAR


Mohan A. Harihar
Mo.harihar@gmail.com
7124 Avalon Drive
Acton, MA 01720
Dated: August 14, 2017 p. (617) 921.2526

63
CERTIFICATE OF COMPLIANCE UNDER FED. R. APP. P. 32(a)(7)

I hereby certify that this brief complies with the type-volume limitation of

Fed. R. App. P. 32(a)(7)(B) because: (1) this brief contains 6264 words excluding

the parts of the brief exempted by Fed. R. App. 32(a)(7)(B)(iii); and (2) this brief

complies with the typeface requirements of Fed. R. App. 32(a)(5) and the type

style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared

in 14 point proportionally spaced using Times New Roman font.

/s/ MOHAN A. HARIHAR


Mohan A. Harihar

64
CERTIFICATE OF SERVICE

I hereby certify that on August 14, 2017 I electronically filed the

foregoing Brief of the Appellant with the United States Court of Appeals for the

First Circuit by using the CM/ECF System. I certify that the following parties or

their counsel of record are registered as ECF filers and that they will be served by

the CM/ECF system:

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

Mohan A. Harihar
Appellant
7124 Avalon Drive
Acton, MA 01720
Mo.harihar@gmail.com
No. 17-1381

65
ADDENDUM

66
ADDENDUM TABLE OF CONTENTS

28 U.S.C. § 1915............................................................................................... Add. 1


18 U.S.C. § 1832............................................................................................... Add. 2
28 U.S.C. §455(a)………………………………………………… …………. Add. 3
18 U.S. Code § 2382......................................................................................... Add. 4
18 U.S. Code § 4…………………………………………………….…….…. Add. 5
Article III, Section 3…………………...………………………………………Add. 6
..

ADDENDUM 1
28 U.S.C. § 1915
(d) Appointment of Counsel.
(1) Pursuant to subsection (b) of the Act, counsel furnishing representation under this plan shall
be selected from the panels of attorneys designated or approved by the district courts of the
Eleventh Circuit, which are hereby approved by this court, or from a bar association, legal aid
agency, or federal public defender organization or community defender organization approved
by a district court plan and authorized to furnish representation under the Act. In addition, when
the interests of justice require, any judge of this court may appoint competent counsel not
otherwise
Rev.: 12/09 Addendum Four
included in the preceding categories. In accordance, however, with subsection (a)(3) of the Act
and with the directives of the Judicial Conference of the United States, at least 25% of all such
appointments shall be assigned to members of the private bar. The clerk of this court shall
ensure that the proration guideline is satisfied. All qualified attorneys shall be encouraged to
participate in the furnishing of representation under the Act without regard to race, color,
religion, sex, age, national origin, or disabling condition.
(2) If a party was represented in the district court by counsel appointed under the Act, such
counsel shall be mindful of the obligation and responsibility to continue representation on appeal
until either successor counsel is appointed under the Act or counsel is relieved by order of this
court. See § (e)(1) below. Retained counsel for a criminal defendant has an obligation to
continue to represent that defendant until successor counsel either enters an appearance or is

67
appointed under the Act, and may not abandon or cease representation of a defendant except
upon order of this court. Unless approved in advance by this court, the district court is not
authorized to appoint counsel on appeal to represent a defendant who was represented in the
district court by retained counsel without first conducting an in camera review of the financial
circumstances of the defendant and of the fee arrangements between the defendant and retained
trial counsel. Appointment of counsel on appeal may be requested in this court by filing an
appropriate motion supported by an affidavit which substantially complies with Form 4 in the
Appendix to the FRAP Rules. Also see § (e)(1) of this plan.
(3) In all classes of cases to which the Act applies (except classes enumerated in subsection
(a)(2)(B) of the Act or arising under 18 U.S.C. § 4245) where an appellant was not represented
by counsel in the court below, the clerk shall notify the appellant of the right to be represented on
appeal by counsel and that an attorney will be appointed as a representative if appellant is
financially unable to obtain representation.

(4) Any person subject to revocation of parole, in custody as a material witness, or seeking relief
under 28 U.S.C. § 2241, § 2254 or § 2255, or 18 U.S.C. § 4245 may apply to this court to be
furnished representation. The court may approve such representation on a determination that the
interests of justice so require and that the person is financially unable to obtain representation.

(5) In all cases under the Act in which the party has been found by the district court to be
financially unable to obtain representation, the court of appeals may accept this finding and
appoint an attorney without further proof. Counsel appointed under the Act are under a
continuing duty to disclose to this court any change in defendant’s circumstances which may
render them ineligible for continued representation under the Act.
(6) In all cases appealed by counsel appointed by the district court under the Act, if such counsel
has not previously been relieved by this court, the clerk shall continue trial counsel’s
appointment for purposes of further representation on appeal.

Rev.: 12/09 2 Addendum Four


(7) The court or any judge thereof who resides in the state in which is located the district court
from which the appeal is taken may enter an appropriate order appointing any new counsel
required by order of the court to be provided on appeal for a party financially unable to obtain
counsel.
(8) In cases where appointment of counsel under the Act is to be made for the first time on
appeal, before submitting the order of appointment to the appropriate judge of this court, the
clerk shall request the party to execute an affidavit specifying the party’s financial inability to
employ counsel. Upon the party’s return of the duly executed affidavit, the clerk will serve a
copy upon opposing counsel, with advice that within 14 days (unless this time is extended by the
court or the clerk for the court), counsel may furnish proof that the affidavit is false. Further
action may thereafter be taken or directed by the appropriate judge upon receiving the clerk’s
submission of the available papers and evidence.

(9) If at any stage of the proceedings on appeal the court finds a party is financially unable to
pay counsel already retained by the party, the court may appoint counsel as provided in
subsection (b) of the Act and authorize payment as provided in subsection (d) of the Act,
pursuant to subsection (c) of the Act.

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(10) In appeals under the Act involving more than one party, if the court finds the need, because
of conflicting interests of parties or because circumstances otherwise warrant, separate counsel
may be appointed for any one or more of the parties as required for their adequate representation.
(11) The court may at its discretion and in the interest of justice substitute one appointed counsel
for another at any stage of the proceedings on appeal.

(12) The court may at its discretion and where circumstances warrant make appointments of
counsel retroactive so as to include representation furnished prior to appointment, and it may
authorize compensation therefor pursuant to subsections (c) and (d) of the Act.

ADDENDUM 2

Stealing a trade secret is a federal crime when the information relates to a product in interstate or
foreign commerce, 18 U.S.C. 1832 (theft of trade secrets), or when the intended beneficiary is a
foreign power, 18 U.S.C. 1831 (economic espionage). Section 1832 requires that the thief be
aware that the misappropriation will injure the secret’s owner to the benefit of someone else.
Section 1831 requires only that the thief intend to benefit a foreign government or one of its
instrumentalities.
Section 1832 (theft) violations are punishable by imprisonment for not more than 10 years, or a
fine of not more than $250,000 (not more than $5 million for organizations), or both. Section
1831 (espionage) violations by individuals are punishable by imprisonment for not more than 15
years, or a fine of the greater of not more than $5 million, or both. Section 1831 violations by
organizations are punishable by a fine of not more than the greater of $10 million or three times
the value of the stolen trade secret. Maximum fines for both individuals and organizations may
be higher when the amount of the gain or loss associated with the offense is substantial. Any
attempt or conspiracy to commit either offense carries the same penalties as the underlying
crime. Offenders must also be ordered to pay restitution. Moreover, property derived from the
offense or used to facilitate its commission is subject to confiscation. The sections reach
violations occurring overseas, if the offender is a United States national or if an act in
furtherance of the crime is committed within the United States.
Depending on the circumstances, misconduct captured in the two sections may be prosecuted
under other federal statutes as well. A defendant charged with stealing trade secrets is often
indictable under the Computer Fraud and Abuse Act, the National Stolen Property Act, and/or
the federal wire fraud statute. One indicted on economic espionage charges may often be charged
with acting as an unregistered foreign agent and on occasion with disclosing classified
information or under the general espionage statutes. P.L. 112-269 set the maximum fines
described above. It also instructed the United States Sentencing Commission to examine the
sufficiency of federal sentencing guidelines and policies in the area of stealing trade secrets and
economic espionage. P.L. 112-236 amended the trade secrets prohibition of 18 U.S.C. 1832 to
overcome the implications of the Court of Appeals’ Aleynikov decision. That decision held that
the section did not outlaw the theft of computer code designed to facilitate a company’s

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commercial transactions, because the code did not relate to a product to be placed in the stream
of commerce. This report is available in an abridged version, without footnotes or attribution, as
CRS Report R42682, Stealing Trade Secrets and Economic Espionage: An Abridged Overview
of 18 U.S.C. 1831 and 1832.

ADDENDUM 3

28 U.S.C. § 455 - Disqualification of justice, judge, or magistrate judge (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. (b) He shall also disqualify himself in the following
circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice
he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced
law served during such association as a lawyer concerning the matter, or the judge or such
lawyer has been a material witness concerning it; (3) Where he has served in governmental
employment and in such capacity participated as counsel, adviser or material witness concerning
the proceeding or expressed an opinion concerning the merits of the particular case in
controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in controversy or in a party
to the proceeding, or any other interest that could be substantially affected by the outcome of the
proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of
them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or
trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have
an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the
judge’s knowledge likely to be a material witness in the proceeding. (c) A judge should inform
himself about his personal and fiduciary financial interests, and make a reasonable effort to
inform himself about the personal financial interests of his spouse and minor children residing in
his household. (d) For the purposes of this section the following words or phrases have the
meaning indicated: * * * (4) “financial interest” means ownership of a legal or equitable interest,
however small, or a relationship as director, adviser, or other active participant in the affairs of a
party, except that: (i) Ownership in a mutual or common investment fund that holds securities is
not a “financial interest” in such securities unless the judge participates in the management of the
fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a
“financial interest” in securities held by the organization; (iii) The proprietary interest of a
policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a
similar proprietary interest, is a “financial interest” in the organization only if the outcome of the
proceeding could substantially affect the value of the interest; (iv) Ownership of government
securities is a “financial interest” in the issuer only if the outcome of the proceeding could
substantially affect the value of the securities. (e) No justice, judge, or magistrate judge shall
accept from the parties to the proceeding a waiver of any ground for disqualification enumerated
in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver
may be accepted provided it is preceded by a full disclosure on the record of the basis for
disqualification.

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ADDENDUM 4

18 U.S. Code § 2382 - Misprision of Treason


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.

ADDENDUM 5

18 U.S.C.
United States Code, 2011 Edition
Title 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 1 - GENERAL PROVISIONS
Sec. 4 - Misprision of felony
From the U.S. Government Printing Office, www.gpo.gov

§4. Misprision of felony


Whoever, having knowledge of the actual commission of a felony cognizable by a court of the
United States, conceals and does not as soon as possible make known the same to some judge or
other person in civil or military authority under the United States, shall be fined under this title or
imprisoned not more than three years, or both.

ADDENDUM 6

U.S. Constitution - Article 3 Section 3

Article 3 - The Judicial Branch


Section 3 - Treason
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.

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Attachment C

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CERTIFICATE OF SERVICE

I hereby certify that on January 24, 2018 I electronically filed the foregoing with the Clerk of
Court using the CM/ECF System, which will send notice of such filing to the following
registered CM/ECF users:

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

Mohan A. Harihar
Appellant
7124 Avalon Drive
Acton, MA 01720
Mo.harihar@gmail.com

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