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(01S) 04.17.2023 re Article III standing to file April 17, 2023, L.R. 27-1 (2d Cir.) motion to recall
mandates.
 Memorandum of law

I The Courts of Appeals are authorized to recall their own mandate to ensure the
integrity of their own proceedings, and are authorized to reopen a case at any time to do
justice.

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

The legal standard is well-settled, and “is unquestioned”--a court of appeals is authorized,

has the inherent Article III authority [jurisdiction], to reopen a case at “any time”1 and recall its

mandate,2 and to not do so when “good cause” or “special circumstances” has been presented

will be reviewed as an abuse of judicial3 discretion.4 (emphasis added). The 07-5222cr, 09-0851cr,

1
“From the beginning, there has existed along side the term rule a rule of equity to the effect that, under
certain circumstances, one of which is after-discovered fraud, relief will be granted against judgments
regardless of the term of their entry.” (emphasis added) Hazel Atlas Glass, Id. at 244. Put another way
there is no statute of limitation or prohibition to reopen the [07-5222cr (2d Cir.), 09-0851 (2d Cir.), or 11-
4181 (2d Cir.)] judgments regarding fraud on the court committed by officers of the court, or the judges.
2
See binding circuit precedent Sargent v. Columbia Forest Products, Inc., 75 F.3d 86, 89 (2d Cir. 1996)
(“Our power to recall a mandate is unquestioned … it exist as part of the [Court of Appeals] power to
protect the integrity of its own proceedings” … and thus “we have the power [jurisdiction] to reopen a
case [07-5222cr, 09-0851cr, and 11-4181cv] at any time.” (emphasis added). Cf., Hazel Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 228, 244 (1944) (same); also cf., Greater Boston Television Corp. v. F.C.C.,
463 F.2d 268, 277-78, 280 (D.C. Cir. 1971) (Inherent authority [jurisdiction] of a court of appeals to recall
a mandate to (i) prevent injustice, (ii) newly discovered evidence, (iii) a fraud on the court, and (iv) to correct
a fundamental miscarriage of justice—that is, actual and factual innocence).
3
A mere court clerk employee (Ralph LNU) has no Article III judicial discretion to not file, and docket
pleadings submitted to the Court, or to adjudicate the merits of pleadings submitted to the Court of
Appeals by a litigant having Article III standing in the particular judicial proceeding.
4
An “abuse of discretion” occurs when a court selects the incorrect legal standard or incorrectly applies
the correct legal standard. Ralph LNU, a mere court clerk has no Article III judicial authority to adjudicate
or conduct judicial review regarding Applicant’s April 17, 2023, emergency applications to recall mandates.

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and 11-4181cv courts of appeals are therefore authorized to recall their mandates for “good

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

i. Fraud on the court;5

ii. newly discovered evidence;6

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

iv. misconduct during the U.S. v. Ware, 07-5222cr (2d Cir.)7 or U.S. v. Ware, 05cr1115

(SDNY) proceedings that affect the integrity of the judicial process; and

Ostensibly, clerk Ralph LNU usurped the Article III judicial authority of the court of appeals which is a
crime, an overt act, to obstruct justice, willfully violated Applicant’s First Amendment right of access, and
frivolously denied Applicant access to the Court of Appeals—a criminal fraud on the court by an officer of
the court, cf., 18 USC 401(2) criminal contempt (negligence in the performance of official duties).

5
An “unconscionable plan and scheme” by officers of the court, or judges, to tamper with and affect the
judicial process such that a litigant is prevented or inhibited from presenting his claims to the court. See
Hazel Atlas Glass, Id. at 245.
6
Greater Boston T.V., 463 F.2d at 280.

7
Hazel Atlas Glass, Id. at 245, “Here, even if we consider nothing but Hartford's sworn admissions, we
find a deliberately planned and carefully executed scheme [by the USAO (SDNY), the SEC, and the
Respondents] to defraud not only the Patent Office, but the Circuit Court of Appeals.” (emphasis added).

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 v. to correct and prevent a fundamental miscarriage of justice,8 collectively, (the “Special

Circumstances”).9

The legal standard—The Government’s Brady “duty to search” the “over 15 boxes
of materials”10 and produce the contents—that is, newly discovered Brady
evidence regarding the government’s “principal witness” Jeremy Jones.11

The Court in In re Sealed Case, 185 F.3d 887 (D.C. Cir. 1999) (Garland, J.)12 interpreted the

government’s disclosure and production duties under Brady and Kyles to encompass the “duty

8
Id. at 246, “Furthermore, tampering with the administration of justice in the manner indisputably shown
here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to
protect and safeguard the public, institutions in which fraud cannot complacently be tolerated
consistently with the good order of society. Surely it cannot be that preservation of the integrity of the
judicial process must always wait upon the diligence of litigants. The public welfare demands that the
agencies of public justice be not so impotent that they must always be mute and helpless victims of
deception and fraud.” (emphasis added).
9
Greater Boston, T.V., at 278-80.

10
The DOJ’s EOUSA on March 20, 2023, confessed and admitted in its FOIA (22-000907)response that the
USAO (SDNY) currently is in possession of “over 15 boxes of materials” which have not been searched for
materials that “could be” Brady exculpatory, impeachment, Giglio, Jencks Act, or Rule 16 materials—an
ipso facto admission and concession the USAO knowingly, willfully, and in bad faith have resisted and
violated the two Brady Court Orders, civil and 18 USC 401(3) criminal contempt, entered in the Criminal
Proceedings; and the USAO’s prosecutors and their supervisors lied, committed perjury, and committed
a fraud on the court regarding its Brady disclosures and productions.
11
Jeremy Jones’ alleged September 2006 Rule 11 plea and cooperations contracts, Rule 11 plea transcripts,
sentencing proceedings transcripts, government sentencing memorandum, and all other judicial public
records and Brady evidence associated with Jeremy Jones that were never produced or disclosed as
required by the U.S. v. Ware, 05cr1115 (SDNY) May 19, 2006, Dkt. 17, Tr. 5-10 Brady court order (Pauley,
J.) (deceased).
12
The Court of Appeals followed the procedure outlined in U.S. v. Brooks, 966 F.2d 1500, 1502-03 (D. C.
Cir. 1992) which followed the Third, Fifth, and Seventh Circuits’ precedents requiring the government to
search for Brady evidence and disclose what it found. In every court of appeals decision found by
Applicant, newly-discovered Brady evidence found after trial required the district court to conduct

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to search” for and to produce all Brady evidence to the defendant; and where a search had not

been made, the Court ordered the government to undertake a post-trial search for Brady

evidence, produce what was found on the defense, and ordered the district court to conduct

evidentiary hearing to assess the materiality of the newly-discovered Brady evidence.13

Conclusion.

Applicant, the party-appellant in each of the appeals, (i) 07-5222cr, (ii) 09-0851cr, and (iii)

11-4181cv indisputably has Article III standing to file a L.R. 27-1 motion to recall mandates, a

substantive motion, which must be resolved by a motion panel (circuit judges) of the Court of

Appeals in a written order.

Applicant has presented and has met the requirements of the prevailing legal standards

necessary for the Court of Appeals to recall its mandates and grant the requested emergency

relief—that is, remand to the respective district courts for evidentiary hearings to undertake the

evidentiary hearings to assess the materiality of the new evidence, and its effect on the outcome of the
criminal proceedings.

13
Cf., Dennis v. Sec’y Penn. Dept. of Corr., 834 F.3d 263, 275-78 (3d Cir. 2010) (followed In re Sealed Case
and aff’d the district court’s grant of writ of habeas corpus for gov’t Brady violation—undisclosed material
exculpatory and impeachment evidence was concealed by the state) (“The District Court granted Dennis
habeas relief based on Dennis’s Brady claims as to the Commonwealth’s failure to disclose the Cason
receipt, the Frazier documents, and the police activity sheet containing Howard’s inconsistent
statement. Dennis V, 966 F.Supp.2d at 518.”).

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Kyles “cumulative materiality assessment” process regarding the “newly discovered,”14

dispositive, actual innocent Brady exculpatory evidence.

The Office of the Circuit Clerk (i.e., Ralph LNU) has no lawful Article III judicial authority

to decide the merits of the April 17, 2023, substantive emergency recall of mandates motions.

Ralph LNU exceeded his lawful authority.

Respectfully submitted by:

Appellant Ulysses T. Ware

/s/ Ulysses T. Ware

April 17, 2023

End of document

14
See Applicant’s Local Rule 27-1 (2d Cir.) April 17, 2023, Emergency Motion to Recall Mandates, Section
F(IV) Exhibits A thru K, and Appendices A thru U for the newly discovered actual innocent Brady
exculpatory and impeachment evidence.

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(01S) 04.17.2023 re Article III standing to file April 17, 2023, L.R. 27-1 (2d Cir.) motion to recall
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