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

In the U.S. Court of Appeals

For the Second Circuit
EMERGENCY ACTION REQUESTED
Filed on 4/18/2023 7:54:32 AM
____________
The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com

Tuesday, April 18, 2023, 7:22:22 AM

Via email to Chief Circuit Judge

Office of the Chief Circuit Judge
The Hon. Debra Ann Livingston
U.S. Court of Appeals for the Second Circuit
Thurgood Marshal Courthouse
40 Foley Sq.
New York, NY 10007

Re: Local Rule 27-1 Emergency Motion for leave to file petition to recall mandates based on
(i) newly discovered actual innocent Brady exculpatory evidence, new circuit precedent,
Adar Bays v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022), and (iii) actual innocent fraud
on the court, pursuant to circuit precedent, Sargent v. Columbia Forest Products, Inc., 75
F.3d 86, 89 (2d Cir. 1996), and Supreme Court precedent in Hazel Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238 (1994). Ulysses T. Ware has Article III standing to file
and have the Court of Appeals adjudicate the merits of the claims in the April 17, 2023,
applications.

Page 1 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 Table of Contents
Introduction. ................................................................................................................................................. 3
Legal basis for the requested relief. ............................................................................................................. 5
Requested reliefs. ......................................................................................................................................... 6
Exhibit A—April 17, 2023, Local Rule 27-1 (2d Cir.) Emergency Application to Recall Mandates. ........ 8
Exhibit B—the Court’s response to the April 06, 2023, Petition for Emergency Relief. ....................... 10
Exhibit C---Local Rule 27-1 (2d Cir.). A clerk (“Ralph LNU”) is not lawfully authorized to adjudicate
opposed, or a substantive motion (recall of mandate) on the merits. Only a motions panel consisting
of a quorum of circuit judges is lawfully authorized to adjudicate Ulysses T. Ware’s Local Rule 27-1
(2d Cir.) April 17, 2023, substantive emergency motion to recall mandates. Clerk Ralph LNU is not
lawfully authorized to adjudicate Mr. Ware’s April 17, 2023, recall of mandate motions. ................. 12
End of document. ....................................................................................................................................... 14

Page 2 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 Request for Article III standing order regarding
the April 17, 2023, Local Rule 27-1 opposed substantive motions submitted to the Court of
Appeals regarding 07-5222cr/09-0851cr/ 11-4181cr recall of mandates.

Introduction.

Ulysses T. Ware, Applicant, the party-appellant, is moving the Court of Appeals pursuant
to Local Rule (2d Cir.) 27-1 regarding what is highly irregular, certainly illegal, and without doubt
frivolous misconduct--which can be considered criminal illegal conduct being intentionally,
recklessly, and/or negligently committed by the Office of the Circuit Clerk’s employees a person
purported to be named “Ralph LNU” in refusing to file and docket Local Rule 27-1 (2d Cir.)1
emergency recall of mandate applications (motions) (see Ex. A, infra) submitted to the Court by
Applicant for adjudication on the merits on April 17, 2023.

Accordingly, Applicant moves the Court of Appeals to not later than Wednesday, April 17,
2023, at 11:00 AM, time of the essence, enter a written, signed, judicial order by a motions panel
of circuit judges of the Court of Appeal that confirms or denies that Applicant, the real party in
interest in the appeals, the party-appellant, has Article III standing to file and have the Court of
Appeals circuit judges adjudicate merits of the April 17, 2023, emergency recall of mandate
applications.

The factual predicates.

On April 6, 2023, Applicant, a litigant with Article III standing in the appeal proceedings,
submitted to the Court for adjudication a petition titled: “Verified Leave to File and Application
for Emergency Relief.” The Court refused to file and docket the April 6, 2023, petition and returned
the same to Applicant on April 7, 2023, with a cover that stated, “Notice of Non-Jurisdiction.” The

1
See Ex. A, infra, regarding Local Rule (2d Cir.) 27-1 requirements—only a motions panel of circuit judges
is lawfully authorized to adjudicate the merits of an opposed, or substantive recall of mandate emergency
motion.

Page 3 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
April 6, 2023, Court notice claimed, “Because this case [07-5222cr] was mandated on
04/22/2011, this Court no longer has jurisdiction to entertain your request.“ (emphasis added).
See Ex. B, infra.

On April 17, 2023, Applicant submitted to the Court for emergency processing exhibit A,
infra—the Local Rule (2d Cir.) 27-1 emergency application for leave to recall the mandates2—
that is, for the Court to reopen 07-5222cr/09-0851cr, and 11-4181cv appeals, and also for
emergency reliefs regarding the 07-5222cr, 09-0851cr, and 11-4181cv (2d Cir.) proceedings based
on (i) newly discovered evidence, (ii) actual innocent fraud on the court, and (iii) new circuit
precedent.3

At 3:44 PM on April 17, 2023, Applicant received a phone call from ((212) 857-2100) from
what sounded like a male person who identified themselves as “Ralph” and refused to give their
last name, hereinafter “Ralph LNU.” Ralph LNU informed Applicant as follows, “Your papers you
filed today will be returned to you … the Court does not have jurisdiction over the cases, and
we will not look at the papers … you need to contact the district court and ask them what you
need to do … the cases are closed ....” (emphasis added) (paraphrased).

Applicant attempted to explain to Ralph LNU that he had Article III standing in the Court
of Appeals, and that the applications filed on April 17, 2023, were to recall the mandates
regarding the appeals in the Court of Appeals—that is, applications to recall the mandates and
reopen the appeal, i.e., filed to provide and reactivate appellate jurisdiction to the court of
appeals to adjudicate the merits of the applications presented to the Court on April 17, 2023.

2
As a litigant, an interested party, in the Court of Appeals proceedings Applicant has Article III standing
and the due process right to petition the Court pursuant to Local Rule (2d Cir.) 27-1 to recall its mandates
for “good cause” or “special circumstances” and to have the Court’s circuit judges adjudicate the merits
of the claims presented to the Court in the substantive Rule 27-1 motion.

3
As the appellant in the appeals, Applicant has Article III standing to seek judicial relief in the Court of
Appeals, rather than exclusively in the “district court” according to Ralph LNU.

Page 4 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 Ralph LNU who appeared not to have any legal training or other necessary training,
expertise, or competency regarding Article III standing and other appellate processes, continued
to frivolously assert to Applicant without providing any legal reference or other valid justification
that the mandates “could not” and “would not” be recalled under any circumstances, which is in
clear error and in direct contradiction to binding circuit precedents and Supreme Court authority.

Legal basis for the requested relief.

In particular, the Court’s March 15, 2022, decision in Adar Bays v. GeneSYS ID, Inc., 28
F.4d 379 (2d Cir. 2022) is directly relevant to the appeal proceedings in U.S. v. Ware, 09-0851cr
(2d Cir.) and (2) Ware v. Alpha Capital, AG, et al., 11-4181cv (2d Cir.). According to the Court’s
decision in Adar Bays, the government’s trial exhibits entered in U.S. v. Ware, 04cr1224 (SDNY),
GX 1-4, criminal usury convertible promissory notes, (the “Criminal Usury Subject Matter”),
were held to be null and void ab initio, unenforceable, and violated NYS Penal Law, section
190.40, the criminal usury law, a class E felony. Which constituted actual innocent newly
discovered evidence, or new circuit precedent, and authorized the Court to recall the mandates
for “special circumstances” to reopen the appeals to correct a “fundamental miscarriage of
justice” given Applicant is actually and factually innocent of all charges in U.S. v. Ware, 04cr1224
(SDNY) according to the (1) newly discovered actual innocent Brady exculpatory and
impeachment evidence, and (2) the Adar Bays decision.4

It is an egregious and criminal violation of due process of law, 18 USC 241 and 242, and a
deliberate and intentional First Amendment violation of denial of access to the court for court
employees to summarily refuse to file and docket emergency applications submitted to the Court

4
The Adar Bays decision rendered the government’s 04cr1224 (SDNY) trial evidence, GX 1-4 (criminal
usury convertible promissory notes), GX 5 (criminal usury illegal underwriting contract), GX 7, GX 11, GX
24, and GX 34 null and void ab initio, moot, unenforceable, acquitted Applicant of all charges in U.S. v.
Ware, 04cr1224 (SDNY), and annulled and vitiated the 02cv2219 (SDNY) lawsuit—ipso facto actual
innocent “special circumstances” and “good cause.”

Page 5 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
of Appeals for adjudication on the merits—that is, a mere clerk has no lawful Article III authority
to deny and violate Applicant’s First Amendment right to access to the Court, and impede, delay,
obstruct, and effectively prevent a party to the proceeding, Applicant, from having his claims
adjudicated on the merits by the Court.

Judge Livingston, Applicant has included the below memorandum of law to assist you and
the Court of Appeals employees to understand the relevant law and precedent regarding the
recall of mandate issue. The law is well-settled, and without any challenge, Applicant has the First
Amendment right of access to the Court, and the due process right to submit and file applications
to recall the mandates, and have the Court adjudicate the merits apropos appeals in which he
was a litigant. Ergo, Applicant has indisputable standing to file and have the Court adjudicate
the April 17, 2023, emergency recall of mandate applications. That rule of law is indisputable.

Judge Livingston, It appears that the Court’s employees are fundamentally confused and
have not received the proper training regarding whether or not Applicant has a First Amendment
right of access to the Court, standing, to file pleadings to redress his grievances regarding
proceedings in which he was a party, and whether or not the Court has the authority to review
and deny those requests. There is no rational debate that Applicant has the procedural and
substantive First Amendment right of access to the Court—Article III standing, to submit for filing
and adjudication the April 17, 2023, leave to file applications, Ex. A, infra, to recall the mandates
predicated on undisputed facts based on the legal standard set forth by the Supreme Court and
binding circuit authorities. That is not debatable.

Requested reliefs.

1. Enter the requested order that Applicant party-appellant has Article III standing to
file the April 17, 2023, Local Rule 27-1 Emergency Recall of Mandate Motions;
2. Applicant respectfully requests that the Chief Judge forthwith exercise her Article
III supervisory oversight power over the Office of the Circuit Clerk, and direct the

Page 6 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 Clerk to immediately file and docket the April 17, 2023, emergency applications,
and forward the same to a Local Rule 27-1 motions panel for emergency Article III
review and adjudication of the merits as required by law.
3. Open an investigation into the judicial misconduct, 18 USC 401(2), criminal
contempt, of the person known as “Ralph LNU” for negligence in the performance
of official duties.
4. Refer Ralph LNU to the Executive Director of the Administrative Office of the U.S>
Court with a judicial request to initiate disciplinary proceedings against Ralph LNU
for 18 USC 401(2) criminal contempt.

If the Court of Appeals is inclined and predisposed to deny Applicant the requested reliefs
without having the Respondents respond and oppose the contentions in the April 17, 2023,
Emergency Recall of Mandate Applications, please have the Court enter a written, final,
sufficiently reviewable judicial order signed by a panel of the Court of Appeals not later than
Wednesday, April 19, 2023, at 11:00 AM, time of the essence, given that Applicant is actually
innocent, and currently suffering irreparable harm.

Please forward a copy of the signed court order to Applicant via email at
utware007@gmail.com.

Respectfully submitted by:

Ulysses T. Ware

/s/ Ulysses T. Ware

April 17, 2023

Page 7 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 Exhibit A—April 17, 2023, Local
Rule 27-1 (2d Cir.) Emergency
Application to Recall Mandates.

Page 8 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 Dockets 07-5222cr (Ware-I)/09-0851cr/11-4181 (01RF)
In the United States Court of Appeals
For the Second Circuit
Filed on 4/16/2023 8:52:22 PM via email.
__________________

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

Williams, Jr., and Edgardo Ramos, Edward T.M. Garland, Manibur S. Arora,
Donald F. Samuel, Gary G. Becker, Michael F. Bachner, Marlon G. Kirton, and
Jeremy Jones; Alpha Capital, AG, Stonestreet, L.P., Markham Holdings, Ltd, Amro
International, S.A., LH Financial Services, and Ari Rabinowitz5,
v.
Applicant Ulysses T. Ware, Appellant, cross-appellee.
________________
OMNIBUS ACTUAL INNOCENT, FUNDAMENTAL MISCARRIAGE OF
JUSTICE, VERIFIED, LEAVE TO FILE APPLICATION TO RECALL MANDATE,
and APPLICATION FOR EMERGENCY RELIEF PETITION.

Submitted by Applicant-Appellant:
The Office of Ulysses T. Ware
123 Linden Blvd., Ste 9-L
Brooklyn, NY 11226
(718) 844-1260
Utware007@gmail.com
/s/ Ulysses T. Ware

5
Rabinowitz, a hostile, adverse, material fact witness along with LH Financial Services, and Trailblazer
Merger Corp. I, Wendy L. Hagenau, J. Henry Walker, IV, Kenneth A. Zitter, Dennis S. Meir, John W. Mills, III,
Colleen McMahon, Frank V. Sica, Tailwind Capital Management, LLP, Kilpatrick, Townsend, & Stockton, LLP,
the State Bar of Georgia, the Supreme Court of Georgia, Ruby Krajick, M. Regina Thomas, Margaret H.
Murphy, convicted felon Edward M. Grushko, and others will be subpoenaed, and compelled to produce
documents, and give sworn testimony at the Kyles materiality evidentiary hearing.

Page 9 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 Exhibit B—the Court’s response
to the April 06, 2023, Petition
for Emergency Relief.

Page 10 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
Page 11 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
Exhibit C---Local Rule 27-1 (2d Cir.). A clerk (“Ralph LNU”) is not lawfully
authorized to adjudicate opposed, or a substantive motion (recall of
mandate) on the merits. Only a motions panel consisting of a quorum of
circuit judges is lawfully authorized to adjudicate Ulysses T. Ware’s Local
Rule 27-1 (2d Cir.) April 17, 2023, substantive emergency motion to recall
mandates. Clerk Ralph LNU is not lawfully authorized to adjudicate Mr.
Ware’s April 17, 2023, recall of mandate motions.

Page 12 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
Page 13 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).
 End of document.

Page 14 of 14
Tuesday, April 18, 2023
(01S) Letter to the Chief Circuit Judge Debra Ann Livingston regarding fraud and obstruction of
justice by the employees of the Office of the Circuit Clerk (2d Cir.).