CF (01) Re Appendices E Thru T

22cv3409 (SDNY)/22cv10566 (SDNY)(CF01)
_____________
In the United States District Court
For the Southern District of New York
Filed on Saturday, May 20, 2023
Ware v. United States, Garland, Ramos, & Taylor-Swain.
_______________
28 USC 2241(a) actual innocent habeas corpus petition.
___________
Appendices E thru T
Notice of Appeal and Verified Omnibus Application for a moot 28 USC
2253(c)(1)(B) Certificate of Appealability.1
Ulysses T. Ware is actually and factually innocent of all charges in United States v. Ware,
04cr1224 (SDNY) and United States v. Ware, 05cr1115 (SDNY).
Submitted by:
/s/ Ulysses T. Ware
The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com
1
The AEDPA statute 28 USC 2253(c)(1) is applicable only to a federal or state “prisoner” in the custody or
detention of the government (2255) of a particular state (2254) then under an extant federal or state
sentence which is the context the Supreme Court’s precedents all explain the AEDPA’s 2255 motion and
2253 certificate of appealability is applicable only to “prisoners” then serving extant sentences. See the
legislative history of AEDPA (1996), Medberry v. Crosby, 351 F.3d 1049, 1054-58 (11th Cir. 2003) (discussing
legislative history of the writ and AEDPA).
Page 1 of 35
Saturday, May 20, 2023
(CF01) re Appendices E thru T in support of 2253 Certificate of Appealability
Table of Contents
Supplemental Appendices—Clear and convincing evidence of fraud on the court, newly discovered
suppressed and concealed actual innocent Brady exculpatory evidence, and supplemental authority
for emergency relief. .................................................................................................................................... 4
Appendix E—Supplemental authority in support of Emergency Reliefs, In re Sealed Case, 185 F.3d 887
(D. C. Cir. 1999) (Garland, J.) (held the gov’t has a duty to search for, and produce Brady evidence to
the defense, an evidentiary hearing was required to assess the materiality of newly discovered Brady
evidence). ..................................................................................................................................................... 5
Introduction. ............................................................................................................................................. 8
Certificate of service............................................................................................................................... 11
Ex. A, EOUSA’s March 20, 2023, confession the USAO (SDNY) had not fulfilled its “duty to search” for
all Brady materials, and attempting to charge Ulysses T. Ware, “$520.00” to conduct the
constitutionally required Brady search. ................................................................................................ 12
In Re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887 (D.C. Cir. 1999). ............................. 12
Appendix F—Supplemental authority in support of the Emergency Reliefs, U.S. v. Brooks, 966 F.2d
1500, 02-03 (D.C. Cir. 1992). Government has a duty and is required to search for Brady evidence and
produce all that is found to the defense, and the district court is required to conduct materiality
assessments of newly discovered Brady evidence. ................................................................................... 25
Appendix F (con’t). ..................................................................................................................................... 26
Appendix G—Government witness Ari Rabinowitz testimony in U.S. v. Ware, 04cr1224 (SDNY) where
Rabinowitz blew up the government’s indictment’s charges, trial theory, and case in chief—Rabinowitz
admitted and confessed to unregistered broker-dealer and 15 USC 77b(a)(11) statutory underwriter
status; and therefore, admitted the government’s indictment failed to charge an 18 USC 401(3)
criminal contempt offense. Which annulled and mooted the 04cr1224 proceedings/ ........................... 27
Appx. G (con’t): The SEC found Arie Rabinowitz and LH Financial Services to be “unregistered
investment advisors”—relevant Brady favorable evidence required to have been searched for and
disclosed to Applicant. ............................................................................................................................... 28
Appendix H: FINRA’s May 17, 2021, actual innocent, dispositive Brady exculpatory certified finding that
each plaintiff in the 02cv2219 (SDNY) litigation (the “Plaintiffs”)—the alleged factual basis for the
government’s U.S. v. Ware, 04cr1224 (SDNY) indictment’s charges—that is, each had never registered
as required by federal law, 15 USC 77b(a)(11), and therefore, each was an unregistered broker-dealer,
each lacked Article III and 28 USC 1332(a) standing, and implicitly found that SEC Release 33-7190 n. 17
(1995) strictly prohibited an exemption to 15 USC 77e strict-liability registration requirement for each
of the Plaintiffs. .......................................................................................................................................... 29
.................................................................................................................................................................... 29
Page 2 of 35
Appendix I—Brady evidence suppressed by the Respondents—Norris v. SEC, 675 F.3d 1349 (D. C. Cir.
2012) (Norris admitted that he abused his SEC email account, admitted he was under the care of a
psychiatrist, and also admitted that he was required to take drugs which affected his mental state)... 31
Appendix J—Disgraced former SEC lawyer Jeffrey B. Norris and former AUSA Alexander H. Southwell’s
concealed and suppressed official SEC-DOJ email of collusion and conspiracy between the SEC and
USAO (SDNY) regarding the 2003-06 03-0831 (D. NV) unconstitutional, and illegal Las Vegas Bootleg
Grand Jury Proceedings.............................................................................................................................. 31
Appendix K---USPO’s confirmation of the September 1, 2004, RICO 18 USC 1961(6)(B) unlawful debt
collection Atlanta, GA kidnapping of Ulysses T. Ware, Esq. to collect the 02cv2219 (SDNY) plaintiffs’
criminal usury convertible promissory notes, gov’t trial exhibits in 04cr1224 (SDNY), GX 1-4, and GX 5,
(the “Criminal Usury Subject Matter”). ..................................................................................................... 31
Appendix L—Former AUSA Maria E. Douvas’ 2009 perjured declaration filed in 09-0851cr (2d Cir.)
concerning Brady production in U.S. v. Ware, 04cr1224 (SDNY) and U.S. v. Ware, 05cr1115 (SDNY). .... 31
Appendix M—IRNewswires’s article on former AUSA Alexander H. Southwell’s crimes, frauds on the
court, and prosecutorial misconduct in 04cr1224 (SDNY) and 05cr1115 (SDNY). ................................... 32
Appendix N—Affidavit of Ulysses T. Ware’s 12.10.2019 filed with USPO (SDNY) regarding judicial and
prosecutorial misconduct........................................................................................................................... 32
Appendix O—U.S. Attorney’s Manual’s Brady disclosure requirements. ................................................. 32
Appendix P—Declaration of Fraud on the court undisputed material facts by Ulysses T. Ware. ............ 32
Appendix Q—Letter to Andre Damian Williams, 04.13.23 re clear and convincing evidence of criminal
prosecutorial misconduct, fraud on the court, and a fundamental miscarriage of justice committed by
U.S. Attorney (SDNY) Andre Damian Williams, Jr. as a DOJ racially-motivated Jim Crow hate crime
conspiracy. .................................................................................................................................................. 32
Appendix R—the SEC’s public disclosures regarding Alpha Capital, AG (Anstalt) settlement. ................ 32
Appendix S—Clear and convincing evidence: Declaration of Fraud on the court by Ulysses T. Ware—the
Government’s fake, fraudulent, and bogus alleged U.S. v. Ware, 05cr1115 (SDNY) probable cause was a
legal and factual impossibility.................................................................................................................... 33
Appendix T—Clear and convincing evidence: Declaration of 2003-06 SEC-DOJ Las Vegas Bootleg Grand
Jury collusion, conspiracy, and obstruction of justice by Ulysses T. Ware—the alleged “scheme to
defraud” was a legal and factual impossibility. ......................................................................................... 33
Page 3 of 35
Supplemental Appendices—Clear and convincing evidence of fraud on
the court, newly discovered suppressed and concealed actual innocent
Brady exculpatory evidence, and supplemental authority for emergency
relief.
Page 4 of 35
Appendix E—Supplemental authority in support of Emergency Reliefs, In
re Sealed Case, 185 F.3d 887 (D. C. Cir. 1999) (Garland, J.) (held the gov’t
has a duty to search for, and produce Brady evidence to the defense, an
evidentiary hearing was required to assess the materiality of newly
discovered Brady evidence).
Page 5 of 35
Docket 07-5222cr/07-5670cr (XAP) (03)
In the United States Court of Appeals
For the Second Circuit
Filed on 4/7/2023 8:13:19 AM via email.
__________________
Respondents United States of America, Appellee, cross-appellant, and Edgardo

Ramos, Edward T.M. Garland, Manibur S. Arora, Donald F. Samuel, Gary G.
Becker, Michael F. Bachner, Marlon G. Kirton, and Jeremy Jones,
v.
Applicant Ulysses T. Ware, Appellant, cross-appellee.
________________
VERIFIED LEAVE TO FILE and APPLICATION FOR EMERGENCY RELIEF

PETITION—Supplemental Authority in Support of Emergency Relief.
Applicant-Appellant Ulysses T. Ware’s, emergency application and leave to file petition to the
Court of Appeals regarding recently discovered intentionally, willfully, and in bad faith
undisclosed, suppressed, and concealed actual innocent Brady exculpatory and impeachment
evidence that was deliberately and intentionally concealed, suppressed, and hidden by the Office
of the U.S. Attorney (SDNY), (the “USAO”), Andre Damian Williams, Jr., the Appellee, (the
“Government”), and the District Court ( Ramos, J.) (i) to commit a bad faith fraud on the court,
(ii) to maliciously violate Appellant’s constitutional rights, and (iii) to willfully violate the District
Court’s (Pauley, J.) May 19, 2007, Dkt. 17, Tr. 5-10, Brady court order, (the “Brady Court Order”),
in violation of the Code of Conduct for Federal Judges, the DOJ’s and the District Court’s Rules on
Ethics and Professional Conduct Rules 3.3, 3.4, 8.4, and duty of complete candor to the tribunal.
Submitted by Applicant-Appellant:
The Office of Ulysses T. Ware
123 Linden Blvd., Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com
Page 6 of 35
Table of Contents
Introduction. ................................................................................................................................................. 8
Certificate of service. ................................................................................................................................... 11
Ex. A, EOUSA’s March 20, 2023, confession the USAO (SDNY) had not fulfilled its “duty to search” for all
Brady materials, and attempting to charge Ulysses T. Ware, “$520.00” to conduct the constitutionally
required Brady search. ............................................................................................................................... 12
Appendix E In Re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887 (D.C. Cir. 1999). .............. 12
Page 7 of 35
Introduction.
Applicant Ulysses T. Ware has uncovered the 1999 D.C. Circuit of Appeals opinion
authored by the current USAG Merrick Garland, then a circuit judge on the D.C. Circuit Court of
Appeals, In re Sealed Case, 185 F.3d 887 (D.C. Cir. 1999). See Appx. E, infra. In that case, then
Circuit Judge Garland’s opinion for the Court reasoned and held:
“Accordingly, such information [cooperation agreements between law enforcement

and trial witness, ironically named Jones] comes within the scope of the government's
Brady obligations. Because the government concedes that it has not searched to
determine whether the requested information exists,2 we grant the defendant's request
that the case be remanded to the district court. The government must first search to
determine whether the information sought by defendant exists and, if it does 3, the district
court must then determine whether that information is "material" within the meaning
of Brady and its progeny.” (emphasis added).
2
See EOUSA’s March 20, 2023, response to Applicant’s FOIA request, Ex. A, infra—the DOJ’s EOUSA
conceded and confessed the USAO (SDNY) had not conducted the required Brady search of the “over 15
boxes” of materials. According to the reasoning by Circuit Judge Garland violated the Government’s “duty
to search” Brady obligation, and required a remand to the district court (SDNY) to conduct an evidentiary
hearing to make the required Brady materiality assessment of each item and assess the cumulative
effect of the Brady materials produced by the government’s search of the “over 15 boxes” of unsearched
materials.
3
It is not debatable whether or not the government’s “principal witness” Jeremy Jones cooperated with
the Government in 05cr1115 (SDNY). Jones’ CJA lawyer, Marlon G. Kirton, Esq.’s April 30, 2008, letter to
the trial judge District Judge William H. Pauley, III (deceased) confirmed that Jones “cooperated” and
received a “5k” letter from the Government for his known perjured testimony in U.S. v. Ware, 05cr1115
(SDNY). Thus, disclosure of Jones’ USSG 5K cooperation agreements, any and all benefits offered and/or
received, and all leniency granted to Jones for his known and suborned perjured trial testimony is
required to have been disclosed pursuant to the District Court’s May 19, 2006, Dkt. 17, Tr. 5-9, Brady Court
Order (Pauley, J.). Therefore, the District Court (Ramos, J.) and the Government’s prosecutors [USAG
Merrick Garland, Damian Williams, Audrey Strauss, John M. McEnany, Melissa Childs, Alexander H.
Southwell, Steven D. Feldman, Steve R. Peikin, Nicholas S. Goldin, Maria E. Douvas, Andrew F. Fish,
Katherine Polk-Failla, Michael J. Garcia, Preet Bharara, Joon Kim, and others] both are aware of Jones’
concealed and suppressed Rule 11 plea, transcript, cooperation agreement, benefits received, USSG 5K
letter, and agreement to testify for the Government in 05cr1115.
Page 8 of 35
Obviously, in the required evidentiary hearing Judge Garland ordered (“If the government
finds that such agreements exist,4 the district court [a new district judge5 is required to be
assigned] must then determine whether there is "a reasonable probability that, had the
evidence6 been disclosed to the defense [and presented to the jury during Jones’ cross-
examination], the result of the proceeding would have been different." Strickler, 119 S. Ct. at
1948 (quoting Bagley, 473 U.S. at 682).” (emphasis added)).
The Government’s prosecutors, the Respondents, and Judge Ramos all will be required
to file sworn affidavits or declarations regarding their individual roles in the Government’s
decision to have willfully, intentionally, and in bad faith7 not complied with the written
commands of the Brady Court Order, Dkt. 17, Tr. 5-6 (May 19, 2006) (Pauley, J.).
4
Marlon G. Kirton, Esq., Jeremy Jones’ CJA lawyer’s April 30, 2008, letter to the District Court (Pauley, J.)
confirmed the existence of Jones’ “cooperation” with the Government and Jones’ receipt of a “5k” letter.
5
In July 2021, District Judge William H. Pauley, III was announced deceased. District Judge Edgardo Ramos
was purportedly randomly assigned to 05cr1115 (SDNY) and 04cr1224 (SDNY). However, according to
court filings, Mr. Ware will call Judge Ramos as a hostile, adverse, material fact witness at the required
evidentiary hearing. According to Mr. Ware Judge Ramos is in possession of suppressed and concealed
judicial public records regarding Jeremy Jones, and other matter, and also in possession of material
exculpatory and impeachment evidence learned in SEC v. Honig, 18cv08175 (SDNY) (Ramos, J.) regarding
unregistered broker-dealer Alpha Capital, AG (Anstalt), and evidence of the SEC and DOJ’s conspiracy to
obstruct justice and violate Mr. Ware’s right to compel as trial witnesses the SEC employees involved in
the SEC’s 03-0831 (D. NV) proceedings with knowledge of Jones’ known perjured testimony.
6
See n.1, supra.
7
All factual issues that only can be resolved in an evidentiary hearing. According to court filings Mr. Ware
intends to call as material fact witnesses all Government prosecutors, SEC employees, and judges involved
in the 05cr1115 (SDNY), 02cv2219 (SDNY), 03-0831 (D. NV), 03-93031-mhm (BD NDGA), Office of the
General Counsel, The State Bar of Georgia, 04-cr1224 (SDNY), and other related proceedings; including
Edward T.M. Garland, Manibur S. Arora, Donald F. Samuel, Michael F. Bachner, Gary G. Becker, and the
Government’s trial witnesses, Carlton Epps, Myron Williams, Rick Sadler, Charles H. Jackson, and FBI
analyst Maria Font.
Page 9 of 35
Obviously, the evidentiary hearing is required to be conducted in the district court where
Mr. Ware can cross-exam witnesses under oath, the Government’s prosecutors, Judge Ramos,
and the Respondents, as hostile, adverse, material fact witnesses according to the reasoning by
now U.S. Attorney General Merrick B. Garland’s reasoning.
Conclusion.
According to the current Attorney General of the United States, Merrick B. Garland, the
USAO (SDNY) had a constitutional “duty to search [without costs to Applicant]” for all materials
that could be considered Brady materials—which has not been done according to the DOJ’s
EOUSA’s March 20, 2023, response to Applicant’s FOIA request.8
This matter is required to be remanded to the district court (SDNY), U.S. v. Ware,
04cr1224 (SDNY) and U.S. v. Ware, 05cr1115 (SDNY) with a directive to order the Government
to immediately (i) conduct the required Brady search of the “over 15 boxes” and any other source
which has not been previously searched, (ii) file a certified inventory of the result of the searches
with the district court and Applicant, see Appx. E, pages 16-17, infra, and (iii) conduct the required
evidentiary hearing on the matter.
Respectfully submitted by:

Applicant Ulysses T. Ware
/s/ Ulysses T. Ware
April 7, 2023
8
See Ex. A, attached hereto, infra.
Page 10 of 35
Certificate of service.
The individuals listed below were served via email with a copy of this pleading on April 7, , 2023.
cc: Office of the U.S. Attorney General (Merrick B. Garland)

Office of the Director of the FBI
Executive Director, Administrative Office of the U.S. Courts
The Supreme Court of the United States, Office of the Judicial Congress of the United
States
Office of the United States Attorney (SDNY)
Office of the Chief District Judge (SDNY), Laura Taylor-Swain, personally.
District Judge Edgardo Ramos (SDNY), personally
Office of the U.S. Attorney General
Office of the Chief Bankruptcy Judge (NDGA), Wendy L. Hagenau, personally
The State Bar of Georgia, Office of the General Counsel
Office of the United States Attorney (EDNY)
U.S. Bureau of Prisons (Warden, MDC, Brooklyn, NY)
The Wall Street Journal
The New York Times
J. Henry Walker, IV (representative of the 02cv2219 plaintiffs)
John W. Mills, III
Edward T. M. Garland for Garland, Samuel, & Loeb, P.C., and Michael F. Bachner, Esq.
The Securities and Exchange Commission
Sims W. Gordon, Jr.
Thomas J. Leghorn
Marlon G. Kirton
The Conviction Integrity Committee of the Office of the United States Attorney (SDNY).
Daniel Gitner, and Margaret M. Garnett, personally
Andre Damian Williams, Jr, personally
Colleen McMahon, personally via the Office of the Chief District Judge (SDNY)
Debra Ann Livingston, personally via the Office of the Chief District Judge (SDNY)
Office of the Solicitor General of the United States
Baker & McKenzie, LLP
Lawrence B. Mandala, Esq.
London Fisher, LLP
Judicial Council of the Court of Appeals for the Second Circuit
US DOJ Office of Professional Responsibility (OPR)
Gary G. Becker and Michael F. Bachner
/s/ Ulysses T. Ware
Page 11 of 35
Ex. A, EOUSA’s March 20, 2023, confession the USAO (SDNY) had not fulfilled its “duty to
search” for all Brady materials, and attempting to charge Ulysses T. Ware, “$520.00” to
conduct the constitutionally required Brady search.
In Re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887 (D.C. Cir. 1999).
Page 12 of 35
US Court of Appeals for the District of Columbia Circuit - 185 F.3d 887 (D.C. Cir. 1999). Argued September
1, 1998. Decided July 21, 1999.
Appeal from the United States District Court for the District of Columbia.
Evelina J. Norwinski, Assistant Federal Public Defender, argued the cause for appellant. With her on the
briefs was A.J. Kramer, Federal Public Defender. Reita P. Pendry, Chief Assistant Federal Public Defender,
entered an appearance.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were
Wilma A. Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S. Attorney.
Before: Edwards, Chief Judge, Henderson and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:
The defendant in this criminal case contends that the government improperly denied his repeated
requests for information to which he was entitled under Brady v. Maryland, 373 U.S. 83 (1963). The
government responds that because the information, if it exists, would relate to the impeachment of a
defense witness, it falls outside the obligations imposed by Brady. Defendant replies that impeachment
information always comes within the ambit of Brady, regardless whether the witness testifies for the
defense or the prosecution.
We need not accept either of these broad claims to resolve this case. The information defendant seeks
would not merely be impeaching in the sense that it would weaken the credibility of his own witness.
Rather, it would be exculpatory in the sense that it would be affirmatively favorable to his assertion of
innocence.
Accordingly, such information comes within the scope of the government's Brady obligations. Because
the government concedes that it has not searched to determine whether the requested information
exists, we grant the defendant's request that the case be remanded to the district court. The government
must first search to determine whether the information sought by defendant exists and, if it does, the
district court must then determine whether that information is "material" within the meaning of Brady
and its progeny.
* In September 1996, an officer of the District of Columbia's Metropolitan Police Department (MPD)
applied for a warrant to search the home of John Doe1 for a handgun and ammunition. The officer
submitted an affidavit stating that an unidentified informant had observed the gun and ammunition there
within the last 48 hours. The affidavit continued: "The source that provided this information has ... given
information which has led to the arrests of several subjects for narcotics violations, the recovery of one
assault weapon, the arrests of subjects wanted on warrants and the issuance of two search warrants."
Def. App. 11. A judge of the Superior Court of the District of Columbia granted the application.
Page 13 of 35
The police executed the warrant the following morning. The officers found one semi-automatic handgun
under the mattress in Doe's basement bedroom, and a second gun, along with ammunition, in a shoe box
under the basement stairwell. Doe was arrested and questioned. He denied the guns were his, and denied
knowing that they were in the house. He said he had seen one of the guns in the possession of a friend,
Thomas Jones, a couple of days earlier. Def. App., Tab A at 51. Doe's girlfriend later testified that Doe and
Jones had picked her up at the hospital the day before the search, and that after returning to Doe's house,
Jones had spent some time in the basement alone. Id., Tab D at 29-30.
Doe was charged with unlawful possession of a firearm and ammunition by a convicted felon, in violation
of 18 U.S.C. § 922(g). In a pretrial motion filed in October 1996, Doe sought disclosure of the identity of
the government's informant. Pursuant to Brady, he also sought production of information concerning,
inter alia: (1) "the amount of money ... paid to the source," and whether it was "paid in exchange for
information or otherwise"; (2) "other consideration provided to the source, including ... assistance in
avoiding or minimizing harm from pending or threatened charges"; (3) "all benefits, promises of benefits,
or statements that the source would not benefit absent cooperation ... in connection with this case"; (4)
"the nature of assistance that the source has provided in the past"; and (5) "the source's prior record,
pending cases, and parole and probation status." Def. App. 21. The court denied the request, ruling that
defendant had not met the burden for piercing the government's informant privilege set forth in Roviaro
v. United States, 353 U.S. 53 (1957), because "it is basically a position of speculation as to how the
informer in this case might be helpful to the defendant ... as [the case] stands before the Court now...."Def.
App., Tab A at 83.
Shortly before Doe's trial was scheduled to begin, Thomas Jones called Doe's attorney, told her that he
had helpful information, and asked to meet with her. In January 1997, the attorney, her investigator, and
Jones met in a restaurant parking lot. According to the investigator's file memorandum, Jones told them
that he was the government informant in Doe's case and that "he wanted to clear his conscience." Def.
App. 29. He said that "he had a big gun and drug case in [District of Columbia] Superior Court and he had
to work it off," and identified three detectives with whom he was cooperating. Jones said the guns found
in Doe's apartment were his (Jones'). He said that the day before the execution of the search warrant, he
and Doe had gone to pick up Doe's girlfriend at the hospital. When they returned to the house, Jones
continued, he "hid the guns, one under the mattress and one in a box under the stairs." He did not tell
Doe he was hiding the guns, and Doe did not know what he had done. Jones assured Doe's attorney that
he would testify at Doe's trial. At the same time, he asked for assistance with his own legal problems:
there was an outstanding bench warrant for his arrest, and Jones feared that the police would incarcerate
him at the District of Columbia's correctional facility at Lorton, Virginia. "I can't go back to Lorton," he said,
"because I snitched on so many people." Id.
Doe's trial began a week later. In her opening statement, Doe's attorney told the jury the evidence would
show that Doe was innocent, and that Jones had planted the guns and ammunition in the house without
Doe's knowledge. Def. App., Tab C at 12. Thereafter, Doe's attorney learned from the attorney in Jones'
Superior Court case that Jones intended to invoke his Fifth Amendment privilege against self incrimination
and would refuse to testify at Doe's trial. The next morning, Doe's attorney advised the court that, in order
to get Jones' prior statements before the jury, she planned to introduce them through the testimony of
Page 14 of 35
her investigator as statements against Jones' penal interest, see Fed. R. Evid. 804(b) (3). Def. App., Tab D
at 3-4.
At this point, the prosecutor questioned whether Jones really did have a Fifth Amendment privilege. After
the court appointed a lawyer to advise Jones, Jones formally asserted his right not to testify. The
prosecutor then asked "to speak with [Jones' lawyer] over the luncheon recess to see if we can reach
some sort of accommodation ... which would permit him [Jones] to testify." Id. at 68. Doe's counsel then
made a Brady request for Jones' "agreements with the government" in what she understood to be his
"sealed" cases in Superior Court. Id. The prosecutor protested that "I don't have access to that information
readily. I would have to go back to my office and try to pull out the old files and everything else." Id. The
district court denied Doe's request as "premature," indicating that it did not want to decide the issue until
it was determined that Jones would testify. Id. at 6869.
After the luncheon recess, Jones agreed to testify and the government advised the court that it had agreed
to make arrangements for his safety. Suspecting that Jones had become an adverse witness during the
break, defense counsel again requested production of Jones' "prior agreements with the government"
and "sealed" case records. The court again put off decision, this time indicating it would not consider the
issue until after Jones testified. Def. App., Tab E at 11.
Jones was then called to the witness stand by Doe's counsel. Although he denied that he had told her the
names of police officers with whom he was cooperating or that he was "working off" a conviction in
Superior Court, id. at 22, 27, Jones admitted that he had told her he was the confidential informant in
Doe's case, id. at 19. He also admitted to confessing that, while he was alone in the basement, he had
planted the guns under the mattress and stairwell without Doe's knowledge. Id. at 19-21.
On cross-examination by the prosecutor, Jones' story changed dramatically. He testified that his pre-trial
statements to Doe's counsel were lies. The guns, Jones said, were Doe's. The day before the search, Doe
had taken them out from underneath the mattress and stairwell to show to him. Id. at 33-38. Jones had
lied about planting the weapons, he said, because "some dudes" had "threatened, if I didn't call his lawyer,
and tell the guns was mine some bodily harm would be done to me." Id. at 27-28. After hearing Jones'
testimony, defense counsel asked the court to declare him a hostile witness and to permit her to cross-
examine him. See Fed. R. Evid. 611(c). The court agreed. Def. App., Tab E at 39.
At the same time, however, the court rejected defendant's renewed request for "information regarding
[Jones'] sealed cases" and "agreements he's made with the government regarding those cases." Id. The
court denied the request regarding the sealed cases saying, "I'm not going to at this late juncture make
any effort to get those sealed records from the Superior Court." Besides, the court said, any agreements
reflected in the records of those cases "don't have anything to do with this case anyway." Id. at 42.
Persistently, but tactfully, defense counsel asked that the court at least direct the government to turn
over its own agreements with Jones, noting " [t]hat doesn't require anything from Superior Court." Id.
The prosecutor replied that there was no agreement in the instant case, but made no representation
about agreements in other cases.2 She did state, however, that "I think there may be some records that
the police might have [although] I certainly don't have anything right now." More important, she
continued, "I don't think the government has an obligation to produce them to the defense in connection
with a defense witness." Id. The court agreed, ruling that the government was not required to produce
Page 15 of 35
records "in regard to a defense witness." Id. at 43.The court advised defense counsel that she was free,
however, to question Jones about any agreements he might have. Id.
Doe's counsel proceeded to do so, but Jones denied being a "snitch," id. at 50, said "I haven't told on
anybody," id. at 53, and denied having "an agreement with the government," id. at 57-58. Doe's counsel
did not impeach Jones or otherwise offer affirmative evidence of prior agreements or government
cooperation. The jury convicted Doe of the offenses charged in the indictment, and the court sentenced
him to 92 months in prison.
II
In Brady v. Maryland, the Supreme Court held that the Due Process Clause imposes upon the prosecution
an obligation to disclose "evidence favorable to the accused ... where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87; see
Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987). In Giglio v. United States and United States v. Bagley, the
Court held that "impeachment evidence ... as well as exculpatory evidence, falls within the Brady rule."
United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting Giglio v. United States, 405 U.S. 150, 154
(1972)). And in Kyles v. Whitley, the Court held that the rule includes evidence "known only to police
investigators and not to the prosecutor." 514 U.S. 419, 438 (1995). Hence, to comply with Brady, "the
individual prosecutor has a duty to learn of any favorable evidence known to others acting on the
government's behalf in the case, including the police." Id. at 437.
As the Supreme Court recently noted in Strickler v. Greene, courts have used the term "Brady violation"
to cover a multitude of prosecutorial sins involving breach of "the broad obligation to disclose exculpatory
evidence," often called "Brady material." 119 S. Ct. 1936, 1948 (1999). These include both the failure to
search for Brady material and the failure to produce it. " [S]trictly speaking," however, "there is never a
real 'Brady violation' unless the non-disclosure was so serious that there is a reasonable probability that
the suppressed evidence would have produced a different verdict."Id. As the Court explained, a "true
Brady violation" has three components: "The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have ensued." Id. To satisfy the prejudice
component, the withheld evidence must be "material"; that is, there must be "a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have been
different." Id. (quoting Bagley, 473 U.S. at 676);see also Kyles, 514 U.S. at 433-34. If the undisclosed
evidence is material, a new trial is required. Kyles, 514 U.S. at 421-22.9
9
According to the Court of Appeals opinion in U.S. v. Ware, 07-5222cr (2d Cir. 2009) government trial
witness alleged co-conspirator Jeremy Jones was labelled as the government’s “principal witness” at trial.
Thus, Jones’s testimony was “material” to the verdict; and thus, Jones’ credibility was subject to attack and
challenge by any agreement he had with the Government or any other entity to provide testimony in
05cr1115 (SDNY). Jones’ motive to commit known perjury was permissible impeachment evidence for the
jury to hear to determine whether or not Jones was biased and had any motive to testify falsely. Jones’
known perjury was the key component, the lynch pin, in the government’s risible conspiracy trial theory
which prejudiced Atlanta, GA lawyer Ulysses T. Ware, Esq. by the jury irrationally finding Mr. Ware guilty
on the indictment’s charges.
Page 16 of 35
It appears from the parties' briefs that, contrary to Doe's original understanding, the records of Jones'
Superior Court cases3 were not sealed. Gov't Br. at 36 n.21; Oral Arg. Tr. 14-15. Hence, Doe's request for
access to those records is effectively moot. His request for the disclosure of agreements between Jones
and the government, however, remains very much alive. The government's appellate brief advises us
that Jones did "provid[e] information to the police as a paid special employee," Gov't Br. at 34 n.17, and
its appendix discloses that Jones was required, as a condition of probation in one of his Superior Court
cases, to cooperate with the police, see Gov't App., Tab C, at 3-4. At oral argument, the government also
advised that "in candor with the court, it might involve the FBI, it might involve the DEA and other law
enforcement agencies" as well. Oral Arg. Tr. at 29.
We therefore proceed to examine the arguments asserted by the government in support of its
contention that, even if cooperation agreements exist, it has no Brady obligation to produce them. We
conduct this examination de novo, since whether the government has breached its obligations under
Brady is a question of law. United States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996); United States v. Lloyd,
71 F.3d 408, 411 (D.C. Cir. 1995).
* At trial, the prosecutor argued and the court agreed that Brady did not apply because Jones was a
defense witness. In response, the defendant points out that the Supreme Court's description of the
government's Brady obligations encompasses evidence that can be used to impeach the credibility of a
witness, and does not on its face distinguish between impeachment of a prosecution witness and
impeachment of a witness for the defense.4 The government replies that the Court's references to
impeachment in Bagley and Giglio involved prosecution witnesses (the same was true in Strickler), and
that Brady and its progeny therefore do not require disclosure of impeachment evidence concerning a
defense witness. "The Due Process Clause," the government notes, "does not provide 'a general
constitutional right to discovery in a criminal case, and Brady did not create one.' " Gov't Br. at 17 (quoting
Weatherford v. Bursey, 429 U.S. 545, 559 (1977)). To require disclosure of potential impeachment
regarding defense witnesses, the government argues, would effectively "displace the adversary system as
the primary means by which the truth is uncovered"--a result not intended by Brady. See Bagley, 473 U.S.
at 675; see also United States v. Agurs, 427 U.S. 97, 109, 112 n.20 (1976).
In the usual case there is a conceptual difference between the impeachment of a government witness
and the impeachment of a defense witness. Evidence that impeaches the former is almost invariably
"favorable" to the accused, because by making the government's case less credible it enhances the
defendant's chances of acquittal. Evidence that impeaches a defense witness, by contrast, is not generally
favorable to the accused; by reducing the credibility of the defendant's own witness, such impeachment
reduces the probability that he will obtain a not guilty verdict. It is ordinarily the prosecutor rather than
defense counsel who wants to use the latter kind of evidence--although she may prefer to delay its use
(and disclosure) until after the witness testifies, both to prevent tailoring of the testimony in expectation
of the cross-examination and to employ the element of surprise to expose the witness' mendacity.
But Doe's is not the usual case involving impeachment of a defense witness. First, although it is true that
defense counsel's original plan was to put Jones on the stand as her own witness (either directly or
through the testimony of the investigator), had things gone as planned she would have had no reason to
impeach Jones' credibility. It was only after Jones "flipped" and started testifying against Doe that
defense counsel wanted to impeach him, hoping that evidence of a cooperation agreement would help
Page 17 of 35
her do so by showing that Jones lied when he said he had never "snitched" on anyone. Hence, even if
we were to accept the proposition that only the impeachment of a government witness falls within Brady,
by the time Jones flipped he had effectively become a government witness--as the court recognized by
declaring him hostile. See Kyles, 514 U.S. at 445-46 (ordering new trial where defense could have called
informant as adverse witness and effectively used undisclosed evidence as impeachment).
Second, and more important, the underlying reason Doe sought information about Jones' relationship
with the government was not to impeach Jones' statement, but to use it as affirmative evidence of Doe's
own innocence. Indeed, if all had gone as planned, Doe would not have used evidence of a cooperation
agreement to impeach Jones' statement that he planted the guns, but rather to corroborate it by
exposing his motive for doing so. With the testimony of Doe's girlfriend that Jones had been alone in the
basement, Doe had corroboration of Jones' opportunity to plant the weapons. What he needed was
evidence of motive, and any of several kinds of cooperation agreements might have provided it. See
Bagley, 473 U.S. at 683 (stating that where "the possibility of a reward had been held out" to witnesses
for providing useful information, " [t]his possibility ... gave [the witnesses] a direct, personal stake in
respondent's conviction").5 For example, if there were an agreement that the prosecution would seek
the reduction of Jones' Superior Court sentences if he provided "substantial assistance in investigating or
prosecuting another person," see Fed. R. Crim. P. 35(b), that agreement might have given him a motive
to plant the guns. Similarly, if cooperation with the police were a condition of Jones' continued probation
on his Superior Court convictions, that might have provided an incentive. And Jones might also have had
a motive if the police had agreed to pay him in return for information leading to successful arrests.6 As
noted above, there is evidence in the record that at least the latter two kinds of agreements may exist.
See Gov't App., Tab C at 3-4 (Superior Court hearing transcript indicating cooperation with police was
condition of Jones' probation);Gov't Br. at 34 n.17 (noting that Jones "provided information to the police
as a paid special employee"); Oral Arg. Tr. at 29 (noting that Jones may also have had arrangements with
the FBI and DEA). By providing evidence of motive, such agreements would have been relevant to Doe's
defense independent of any impeachment value they might also have had once Jones turned on him.
Finally, as the government conceded at oral argument, in the circumstances of this case an agreement
that gave Jones a motive to plant the guns would be Brady material even if Jones never appeared as a
witness for either side. Oral Arg. Tr. at 21, 27; see Kyles, 514 U.S. at 446; United States v. Lloyd, 992 F.2d
348, 351 (D.C. Cir. 1993). Indeed, in that respect this case is similar to Kyles, where the Supreme Court
found that the prosecution violated Brady by failing to disclose evidence that an informant who never
testified might have planted the murder weapon in defendant's apartment, 514 U.S. at 453, including
evidence of the informant's motive. See id. at 429 (noting defense theory that informant planted gun for
purposes of "removing an impediment to romance with [Kyles' common-law wife] ... and obtaining reward
money" from police). That kind of evidence is exculpatory in the purest sense, and its relevance does
not depend on who sponsors its admission. Indeed, once Doe's girlfriend testified that Jones had been
alone in the basement, evidence of an agreement giving Jones a motive to plant the guns would have
been admissible (assuming authentication) even if Jones had never entered the courtroom. Accordingly,
the fact that Jones was originally proffered as a defense witness has no consequence for the scope of the
government's Brady obligations here.
Page 18 of 35
The potpourri of other objections to disclosure argued by the trial prosecutor and sustained by the trial
court are also unpersuasive. The court's original rejection of the defendant's pretrial Brady motion
correctly rested on the ground that, as matters then stood, the informant's identity was confidential and
"how the informer in this case might be helpful to the defendant" was speculative. Def. App., Tab A at 83.
See United States v. Mangum, 100 F.3d 164, 172 (D.C. Cir. 1996) (upholding non-disclosure of confidential
informant's identity where defendant's assertion that informant planted gun in knapsack was "purely
speculative" and there was no evidence informant had access to knapsack); United States v. Warren, 42
F.3d 647, 654 (D.C. Cir. 1994) ("Speculation as to the information the informant may provide is
insufficient."). By the time the case went to trial, however, those factors no longer applied. Jones had
voluntarily revealed himself to defense counsel, and had told her he planted the evidence in Doe's
basement. He had also told her that he was cooperating with the police in order to work off the gun and
drug case he had in Superior Court. This, together with the statement in the affidavit for the search
warrant that the informant had previously "given information which has led to the arrests of several
subjects," Def. App. 11, moved the possibility that a materially relevant cooperation agreement existed
far beyond the realm of speculation. See generally Roviaro, 353 U.S. at 60-65.
Nor is there any basis for the rulings that production of the requested information was "premature," first
until it was clear Jones would testify, and then until after Jones actually did testify. Contrary to the
prosecution's contention, the information did not become relevant only after Jones changed his story,
giving the defense reason to impeach him. As noted above, evidence of Jones' motive was relevant
independent of when or whether he testified. Similarly, we reject the government's suggestion that
ordering a Brady search before Jones testified would somehow have been inconsistent with our
admonitions in United States v. Marshall (made with reference to Fed. R. Crim. P. 16), that " [t]o give rise
to a disclosure obligation, the evidence's materiality must, of course, be evident to a reasonable
prosecutor," and that the "prosecutor need not guess that evidence may become material as a
consequence of a defendant's not-yet-revealed strategic decisions." 132 F.3d. 63, 69 n.2 (D.C. Cir. 1998).
At least from the moment defense counsel made the claim in her opening statement that Jones planted
the guns, it was clear that any motive Jones might have had to do so was relevant to the case. No
clairvoyance on the part of the prosecutor was required.
We also reject the government's Catch-22 rationale that once Jones did testify, it was by then too late to
compel production of the information, since doing so would have required a continuance to gather the
materials. The government protests that "in the midst of the trial" it should not have been required to
"scamper" about searching for the requested evidence. Gov't Br. at 32. But that problem could have been
avoided had the government gathered the material earlier. In light of the defendant's opening statement,
it was no excuse the next morning that the prosecutor did not "have access to that information readily"
and "would have to go back to my office and try to pull out old files and everything else." Def. App., Tab
D at 68. The same was true that afternoon, when she said, "I think there may be some records that the
police might have [but] I certainly don't have anything right now." Id., Tab E at 42. And we do not
understand the basis for the government's argument that "appellant cannot credibly complain because
he failed to assert a timely demand for this impeachment material." Gov't Br. at 40. To the contrary,
defendant made his demands known early, often, insistently, and with specificity--only to be met with
the government's claims that they were first premature, and then too late. If by the time Jones testified
Page 19 of 35
the government still needed to "scamper" to collect the requested Brady material, it had no one to blame
but itself.7
We find equally unfounded the argument that any agreements Jones may have had in his Superior Court
cases "don't have anything to do with this case." Def. App., Tab E at 42. Defendant's whole point was that
Jones may have planted the gun in this case in order to "work off" obligations that arose in those Superior
Court cases. Hence, agreements in the other cases have everything to do with this case. Nor does it
matter that agreements in other cases may have involved other prosecutors. The United States Attorney's
Office for the District of Columbia prosecutes cases in both the federal District Court and the local Superior
Court, and the prosecutor is responsible (at a minimum) for all Brady information in the possession of that
office. See Giglio, 405 U.S. at 154 (holding that ignorance by one prosecutor of promise made by another
is irrelevant since " [t]he prosecutor's office is an entity and ... [a] promise made by one attorney must be
attributed, for these purposes, to the Government").
For a similar reason, we reject as irrelevant the contention that the requested records may have been in
the possession of the Metropolitan Police Department, or the FBI or DEA, rather than the U.S. Attorney's
Office. As the Supreme Court held in Kyles, " [t]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's behalf in the case, including the
police." 514 U.S. at 437. Anticipating Kyles, we specifically held in United States v. Brooks that prosecutors
in this District are responsible for disclosing Brady information contained in MPD files, " [g]iven the close
working relationship between the Washington metropolitan police and the U.S. Attorney for the District
of Columbia (who prosecutes both federal and District crimes, in both the federal and Superior
courts)."966 F.2d 1500, 1503 (D.C. Cir. 1992). The same is true for files of the FBI and DEA which, like the
U.S. Attorney's Office, are components of the U.S. Department of Justice. See id. (noting that Brady
requires prosecutors to search FBI records).
C.
Next, we consider the government's appellate argument that it did not breach a disclosure obligation with
respect to Jones' cooperation agreements because that information was otherwise available through
"reasonable pre-trial preparation by the defense." Xydas v. United States, 445 F.2d 660, 668 (D.C. Cir.
1971). We note at the start that we find this argument somewhat surprising. The government concedes
that it has not yet conducted a full Brady search of its own, and hence does not know the details of any
agreements Jones may have had. See Oral Arg. Tr. at 22-24, 29-30, 38-39. In particular, the government
advises that it knows nothing of his arrangements with the MPD other than that Jones was a "paid special
employee," Gov't Br. at 34 n.17; Oral Arg. Tr. at 29, and nothing at all of any arrangements he may have
with the FBI or DEA, Oral Arg. Tr. at 38-39. We do not understand how the government can confidently
assert that defense counsel could have learned the contents of Jones' agreements when the
government concedes that it has no idea what those contents are.
According to the U.S. Attorney, the first place the defendant should have turned for information about
Jones' agreements was Jones himself. Jones, the government points out, voluntarily contacted defense
counsel and "was, for a time, cooperative with the defense." Gov't Br. at 32. "Since defense counsel had
an opportunity to probe [Jones'] relationship with the government ... during their January ... conversation
[in the restaurant parking lot], appellant cannot now use Brady as a vehicle to get answers to questions
Page 20 of 35
left unasked at that time." Id. at 33. Again, we find this argument surprising. The government's position
at trial was that virtually everything Jones said to defense counsel at the January meeting was a lie, a
position the government maintains on appeal. Oral Arg. Tr. at 26-27. Surely information obtained from a
government-certified liar cannot substitute for information obtained from the government itself--
particularly not when the defense was seeking information from a more trustworthy source in order to
corroborate (or, as became necessary, impeach) that individual.
Second, the government contends that if Doe wanted to learn of Jones' agreements with the MPD, he
should have subpoenaed the involved officers themselves. Gov't Br. at 33. This argument, too, is
unpersuasive. As we have noted above, "the prosecutor is responsible for 'any favorable evidence
known to the others acting on the government's behalf in the case, including the police,' " Strickler, 119
S. Ct. at 1945 n.12 (quoting Kyles, 514 U.S. at 437), and particularly including the MPD, see Brooks, 966
F.2d at 1503. Accordingly, defense counsel was no more required to subpoena the officers to learn of their
agreements, than she was to subpoena the prosecutor to learn of hers. The appropriate way for defense
counsel to obtain such information was to make a Brady request of the prosecutor, just as she did. See
United States v. Iverson, 648 F.2d 737, 739 (D.C. Cir. 1981) (holding that "the primary obligation for the
disclosure of matters which are essentially in the prosecutorial domain lies with the government").
Indeed, at oral argument the government agreed that had Jones been a government witness, it would
readily have produced his cooperation agreements without insisting on a subpoena, Oral Arg. Tr. at 32-
33, just as Giglio and Bagley contemplate. Since Jones' status as a defense witness is irrelevant here,
there is no reason to require any other procedure.
Finally, the government argues that Doe was not prejudiced by any non-disclosure that may have occurred
because Doe's attorney failed to impeach Jones with the information she did have in her possession. When
Jones denied under oath that he had ever informed on anyone else, Def. App., Tab E at 53 ("I haven't told
on anybody"), counsel could have contradicted him with the sworn affidavit attached to the search
warrant application, Def. App. 12 ("The source has given information which has led to the arrests of
several subjects"). She might also have tried to use a representation made by Jones' attorney at the bench
almost immediately after Jones made his denial. Id., Tab E at 61 (advising the court that there "was a
stipulation of [Jones'] probation to assist the police on the street"). Defense counsel did not attempt to
use either one.
There is no doubt that this argument is relevant to the ultimate question of the materiality of the
undisclosed evidence, that is, whether there was "a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different." Strickler, 119 S. Ct. at
1948 (quoting Bagley, 473 U.S. at 682). But an evaluation of the significance of the evidence that was
available to the defense cannot begin until the government determines whether there was any
evidence that was unavailable. If the information the government finds about Jones' agreements is the
equivalent of that which the defense already had, then it may well not be material for Brady purposes.
See Iverson, 648 F.2d at 738 (" [N]o violation of due process results from prosecutorial non-disclosure if
defense counsel both knows of the information and is able to make use of it but still chooses, for tactical
reasons, not to do so.").
Page 21 of 35
On the other hand, the evidence that was available to Doe only indicated that Jones had cooperated with
the government, and perhaps that he had an agreement to do so. It did not disclose, at least not explicitly,
the terms of any such agreement and whether they gave Jones a motive to plant the guns in Doe's house.
The latter would not have been the equivalent of what the defense already knew and, depending on the
other facts in the case, may or may not have been material for Brady purposes. See United States v. Smith,
77 F.3d 511, 512-13 (D.C. Cir. 1996) (holding that although aspects of witness' plea agreement were
known to defense, undisclosed elements were material to defendant's ability to impeach); Cuffie, 80
F.3d at 517-18 (" [T]he fact that other impeachment evidence was available to defense counsel does not
[necessarily] render additional impeachment evidence immaterial.") (internal quotations and citations
omitted). Needless to say, until we know whether such information exists, we are unable to determine
whether it would have been material. See Pennsylvania v. Ritchie, 480 U.S. at 57 ("At this stage, of course,
it is impossible to say whether any information in the ... records may be relevant to [defendant's] claim of
innocence, because neither the prosecution nor defense counsel has seen the information....").
III
The government concedes that it never conducted a full-fledged Brady search with respect to any
agreements its various components may have had with Jones. See Oral Arg. Tr. at 23-24, 29-30, 38-39.
For the reasons stated above, that failure constituted a breach of the government's "duty to search"
for Brady information. Brooks, 996 F.2d at 1502-03.
In their arguments before this court, both the government and the defendant agreed that were we to find
such a breach of the obligation to search, the proper disposition would be to remand this case to the
district court, "to conduct a further evidentiary hearing to resolve whether there exists any Brady
information and whether such information was material." Gov't Br. at 18 n.11; see Def. Br. at 20.
This is the course we have followed in other cases, see Brooks, 966 F.2d at 1504-05; United States v. Lloyd,
992 F.2d at 352, and the course we follow here as well. "On remand, the district court should require the
U.S. Attorney's [O]ffice to do what it should have done earlier," 966 F.2d at 1504, namely, to review
information held by that office, as well as the MPD and other relevant law enforcement agencies, to
determine whether the government has or had any agreements with its informant of the kind discussed
in this opinion. If the government finds that such agreements exist, the district court must then
determine whether there is "a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." Strickler, 119 S. Ct. at 1948 (quoting
Bagley, 473 U.S. at 682).
Because this case remains under seal, the names of the defendant and the informant have been changed.
In its brief before this court, the government states that it has "no reason to believe that any agreement
existed between the United States Attorney's Office and Mr. [Jones] with respect to his case in Superior
Court." Gov't Br. at 34 n.17 (citing, inter alia, Gov't App., Tabs A-F). We are confused by the government's
statement since its citations, recently prepared transcripts of some of Jones' Superior Court appearances,
appear to refer to such an agreement. See Gov't App., Tab C at 3 (statement by defense counsel that "
Page 22 of 35
[Jones] has been cooperating with providing information"; reply by Assistant U.S. Attorney that "we will
need to ensure that the agreement is followed through"); id., Tab E at 3 (statement by court that at
sentencing " [i]t was included in the representation by prosecution that the defendant was cooperating").
But see id., Tab F at 7 (statement by prosecutor that "I have no information whether or not the defendant
is cooperating"). It may be that the government regards the cooperation agreement referred to in these
transcripts as one involving the police rather than the U.S. Attorney's Office. If that is the distinction the
government is drawing, it is of no moment to its obligations under Brady. See Kyles v. Whitley, 514 U.S.
419, 437 (1995); United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992).
Jones has convictions for carrying a pistol without a license, attempted possession with intent to distribute
cocaine, and attempted distribution of cocaine. Gov't Br. at 6 n.7.
See Kyles, 514 U.S. at 433 (noting that in Bagley "the Court disavowed any difference between exculpatory
and impeachment evidence for Brady purposes").
Cf. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (vacating judgment where court barred cross-
examination about prosecutor's agreement to drop charge in exchange for witness' promise to speak with
prosecutor, because "a jury might reasonably have found [it] furnished the witness a motive for favoring
the prosecution").
There is, of course, nothing inappropriate about such agreements. See United States v. Ramsey, 165 F.3d
980, 988-90 (D.C. Cir. 1999) (noting legitimacy and law enforcement value of "prosecutorial promise(s) of
leniency in exchange for truthful testimony"). And we certainly do not suggest that any such agreement
would, or could, have authorized Jones to plant the guns. Rather, the point is simply that such an
agreement may give a person a motive that the jury must be permitted to evaluate. See Van Arsdall,
475 U.S. at 679; Bagley, 473 U.S. at 683; Giglio, 405 U.S. at 154-55; United States v. Smith, 77 F.3d 511,
513 (D.C. Cir. 1996).
Indeed, the government knew from the opening bell that it would at least have to prepare to conduct its
own cross-examination of Jones. See Def. App., Tab B at 15 (listing defendant's potential witnesses).
Hence, it should not have needed the compulsion of Brady to learn all it could about him. See Brooks,
966 F.2d at 1502-03 (noting that "prosecutor's own interest in avoiding surprise at trial gives him a very
considerable incentive to search accessible files").
Page 23 of 35
Page 24 of 35
Appendix F—Supplemental authority in support of the Emergency Reliefs,
U.S. v. Brooks, 966 F.2d 1500, 02-03 (D.C. Cir. 1992). Government has a
duty and is required to search for Brady evidence and produce all that is
found to the defense, and the district court is required to conduct
materiality assessments of newly discovered Brady evidence.
Page 25 of 35
Appendix F (con’t).
Page 26 of 35
Appendix G—Government witness Ari Rabinowitz testimony in U.S. v.
Ware, 04cr1224 (SDNY) where Rabinowitz blew up the government’s
indictment’s charges, trial theory, and case in chief—Rabinowitz admitted
and confessed to unregistered broker-dealer and 15 USC 77b(a)(11)
statutory underwriter status; and therefore, admitted the government’s
indictment failed to charge an 18 USC 401(3) criminal contempt offense.
Which annulled and mooted the 04cr1224 proceedings/
Page 27 of 35
Appx. G (con’t): The SEC found Arie Rabinowitz and LH Financial Services
to be “unregistered investment advisors”—relevant Brady favorable
evidence required to have been searched for and disclosed to Applicant.
Page 28 of 35
Appendix H: FINRA’s May 17, 2021, actual innocent, dispositive Brady
exculpatory certified finding that each plaintiff in the 02cv2219 (SDNY)
litigation (the “Plaintiffs”)—the alleged factual basis for the government’s
U.S. v. Ware, 04cr1224 (SDNY) indictment’s charges—that is, each had
never registered as required by federal law, 15 USC 77b(a)(11), and
therefore, each was an unregistered broker-dealer, each lacked Article III
and 28 USC 1332(a) standing, and implicitly found that SEC Release 33-
7190 n. 17 (1995) strictly prohibited an exemption to 15 USC 77e strict-
liability registration requirement for each of the Plaintiffs.
Page 29 of 35
Page 30 of 35
Appendix I—Brady evidence suppressed by the Respondents—Norris v.
SEC, 675 F.3d 1349 (D. C. Cir. 2012) (Norris admitted that he abused his
SEC email account, admitted he was under the care of a psychiatrist, and
also admitted that he was required to take drugs which affected his
mental state).
Appendix J—Disgraced former SEC lawyer Jeffrey B. Norris and former

AUSA Alexander H. Southwell’s concealed and suppressed official SEC-DOJ
email of collusion and conspiracy between the SEC and USAO (SDNY)
regarding the 2003-06 03-0831 (D. NV) unconstitutional, and illegal Las
Vegas Bootleg Grand Jury Proceedings.
Appendix K---USPO’s confirmation of the September 1, 2004, RICO 18 USC

1961(6)(B) unlawful debt collection Atlanta, GA kidnapping of Ulysses T.
Ware, Esq. to collect the 02cv2219 (SDNY) plaintiffs’ criminal usury
convertible promissory notes, gov’t trial exhibits in 04cr1224 (SDNY), GX
1-4, and GX 5, (the “Criminal Usury Subject Matter”).
Appendix L—Former AUSA Maria E. Douvas’ 2009 perjured declaration

filed in 09-0851cr (2d Cir.) concerning Brady production in U.S. v. Ware,
04cr1224 (SDNY) and U.S. v. Ware, 05cr1115 (SDNY).
Page 31 of 35
Appendix M—IRNewswires’s article on former AUSA Alexander H.
Southwell’s crimes, frauds on the court, and prosecutorial misconduct in
04cr1224 (SDNY) and 05cr1115 (SDNY).
Appendix N—Affidavit of Ulysses T. Ware’s 12.10.2019 filed with USPO

(SDNY) regarding judicial and prosecutorial misconduct.
Appendix O—U.S. Attorney’s Manual’s Brady disclosure requirements.
Appendix P—Declaration of Fraud on the court undisputed material facts

by Ulysses T. Ware.
Appendix Q—Letter to Andre Damian Williams, 04.13.23 re clear and

convincing evidence of criminal prosecutorial misconduct, fraud on the
court, and a fundamental miscarriage of justice committed by U.S.
Attorney (SDNY) Andre Damian Williams, Jr. as a DOJ racially-motivated
Jim Crow hate crime conspiracy.
Appendix R—the SEC’s public disclosures regarding Alpha Capital, AG

(Anstalt) settlement.
Page 32 of 35
Appendix S—Clear and convincing evidence: Declaration of Fraud on the
court by Ulysses T. Ware—the Government’s fake, fraudulent, and bogus
alleged U.S. v. Ware, 05cr1115 (SDNY) probable cause was a legal and
factual impossibility.
Appendix T—Clear and convincing evidence: Declaration of 2003-06 SEC-

DOJ Las Vegas Bootleg Grand Jury collusion, conspiracy, and obstruction
of justice by Ulysses T. Ware—the alleged “scheme to defraud” was a legal
and factual impossibility.
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CF (01) Re Appendices E Thru T

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22cv3409 (SDNY)/22cv10566 (SDNY)(CF01)

Respondents United States of America, Appellee, cross-appellant, and Edgardo

VERIFIED LEAVE TO FILE and APPLICATION FOR EMERGENCY RELIEF

“Accordingly, such information [cooperation agreements between law enforcement

1948 (quoting Bagley, 473 U.S. at 682).” (emphasis added)).

now U.S. Attorney General Merrick B. Garland’s reasoning.

EOUSA’s March 20, 2023, response to Applicant’s FOIA request.8

evidentiary hearing on the matter.

Respectfully submitted by:

cc: Office of the U.S. Attorney General (Merrick B. Garland)

/s/ Ulysses T. Ware

Before: Edwards, Chief Judge, Henderson and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

Appendix J—Disgraced former SEC lawyer Jeffrey B. Norris and former

Appendix K---USPO’s confirmation of the September 1, 2004, RICO 18 USC

Appendix L—Former AUSA Maria E. Douvas’ 2009 perjured declaration

Appendix N—Affidavit of Ulysses T. Ware’s 12.10.2019 filed with USPO

Appendix O—U.S. Attorney’s Manual’s Brady disclosure requirements.

Appendix P—Declaration of Fraud on the court undisputed material facts

Appendix Q—Letter to Andre Damian Williams, 04.13.23 re clear and

Appendix R—the SEC’s public disclosures regarding Alpha Capital, AG

Appendix T—Clear and convincing evidence: Declaration of 2003-06 SEC-

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