USAG Merrick Garland and U.S. Attorney (SDNY) Damian Williams have been implicated in a DOJ conspiracy to conceal Brady exculpatory evidence in criminal cases.
See the complete article at: https://bit.ly/3ApvbNR
See author’s profile on Linked-In: https://www.linkedin.com/in/ulysses-t-ware/
Ulysses T. Ware’s August 15, 2022, Proposed Memorandum Opinion and Final Order: Supervisory Authority Sanction for Government’s willful and bad faith violation of two Brady Disclosure Court Orders.
The government was served with this pleading on 08.15.22 via Damian Williams at damian.williams@usdoj.gov, Jun Xiang was served at jun.xiang@usdoj.gov, and USAG Merrick B. Garland was served via DUSAG Jeffrey R. Ragsdale, Jeffrey.ragsdale@usdoj.gov on 08.15.2022.
Certificate of Service
The individuals listed below were served via email with a copy of this pleading on August 15, 2022.
cc: Office of the United States Attorney (SDNY)
Office of the Chief District Judge (SDNY)
District Judge Edgardo Ramos (SDNY)
Office of the U.S. Attorney General
Office of the Chief Bankruptcy Judge (NDGA)
The State Bar of Georgia
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
John W. Mills, III
Edward T. M. Garland, et al.
The Securities and Exchange Commission
Sims W. Gordon, Jr.
Thomas J. Leghorn
Marlon G. Kirton
In the United States District Court
For the Southern District of New York
— — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — :
Ulysses T. Ware, :
Petitioner :
: MEMORANDUM OPINION AND FINAL ORDER
: Case №22cv3409
v. :
:
United States, Merrick B. Garland, Edgardo :
Ramos, and Laura Taylor-Swain, :
Defendants. :
— — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — :
Memorandum Opinion and Final Order
Table of Contents
C. The Government appeared in the proceedings but did not dispute the facts. 7
A. The Court’s Undisputed and Unopposed Factual Findings. 8
B. The Court finds as undisputed and unopposed material fact: 9
A. The Court is authorized to exercise its inherent Article III supervisory authority. 22
A. Distribution and service. 33
I.
A. Background.
The Court conducted an independent, thorough, complete, and comprehensive review and assessment of the records before it. The government appeared in the Court on May 2, 2022, Dkt. 31, via AUSA Jun Xiang, and was served with all filings per the ECF system. However, the government chose to not respond or oppose the relief requested in Dkt. 77; and moreover, the government chose to not oppose the actual innocent habeas corpus claims in the Petition. Therefore, the Court adopts Petitioner’s facts as its own,[1] and makes findings based on the collective undisputed facts, (the “Undisputed Facts”).[2]
B. Procedural posture.
Petitioner Ulysses T. Ware filed this 28 USC 2241(a) “actual innocent” habeas corpus petition, (the “Petition”), on March 21, 2022, Dkt. 1, 22cv1531 in the District Court (EDNY). On April 27, 2022, Dkt. 23, the Petition was transferred to the District Court, Southern District of New York (Ramos, J.), and assigned the docket 22cv3409.
In the underlying criminal proceedings, sub judice, (i) United States v. Ware, 04cr1224 (Sweet, J.) and (ii) United States v. Ware, 05cr1115 (SDNY) (Pauley, J.) the respective district courts entered Brady disclosure orders, Dkt. 32 (Sweet, J.)[3] and Dkt. 17, Tr. 5–10 (Pauley, J.),[4] jointly, (the “Brady Court Orders”), which ordered the Government “prior to trial” to disclose “all” Brady exculpatory and impeachment materials to Petitioner.[5]
The Court did not enter the required 28 USC 2243 show cause order nor did the Court order the Government to be served with the Petition.
On May 6, 2022, Dkt. 42 Petitioner filed a motion to dismiss the 05cr1115 case. On July 7, 2022, Dkt. 71, Petitioner filed a motion to dismiss the 04cr1224 case. On July 11, 2022, Dkt 72, 73, Petitioner filed a motion to compel the Government to disclose Brady evidence. On August 10, 2022, Dkt. 75, Petitioner filed a request for Brady Order Status Conference; and on August 11, 2022, Dkt. 76, Petitioner filed a declaration in support of request for entry of supervisory relief. On August 12, 2022, Dkt. 77, Petitioner filed a proposed order.
On May 2, 2022, Dkt. 32, Petitioner filed a motion for recusal and disqualification of Judge Edgardo Ramos.
The above applications are pending in the Court.
C. The Government appeared in the proceedings[6] but did not dispute the facts.[7]
The record shows that the government despite not being served with the Petition pursuant to 28 USC 2243, actually appeared in the Court, Dkt. 31, and could have voluntarily accepted service and filed their response to the “actual innocence” claims in the Petition as an officer of the court, owing “complete candor” to the Court. The government chose to not accept service and not voluntarily respond to the claims in the Petition, especially Petitioner’s claims of Brady Court Order resistance and disobedience, a very grave and perilous matter for the government given civil and criminal contempt, 18 USC 401(3), enforcement processes shall be initiated against the government and its lawyers if it is found the government did not fully comply with the Brady Court Orders’ commands.[8]
The undisputed evidence presently before the Court, Dkt. 1–2 and Dkt. 76, Petitioner’s declaration’s statements of fact, raise grave and perilous circumstances for the government and for the Court. On the one hand, Petitioner raised the claim the government did not fully comply with the Commands of the Brady Court Orders, and provides evidence in support of that claim[9]. On the other hand, the government has not voluntarily come forth and denied Petitioner’s facts or claims despite appearing in the proceedings on May 02, 2022, Dkt. 31 (AUSA Jun Xiang).
Thus, Petitioner’s facts and claims are presently undisputed and unopposed by the government, and the Court is required to accept Petitioner’s facts as true unless and until the government appears and disputes the facts which it has not voluntarily done[10] despite appearing in the Court on May 2, 2022, Dkt. 31; and despite the government having actual knowledge of the Brady Court Orders’ commands.
II.
A. The Court’s Undisputed and Unopposed Factual Findings.[11]
The Court independently, thoroughly, and comprehensively, conducted a careful review of all factual claims and their sources submitted to the Court by the parties, Dkt. 1–2 (Petitioner’s Declaration, and Dkt. 76). Only the Petitioner presented facts to the Court.[12] The government did not file any declarations or other documents for the Court’s review despite appearing in the matter, Dkt. 31.
Therefore, the Court accepts Petitioner’s facts as unopposed and undisputed by the government; and the Court having no other facts before it, adopted Petitioner’s well-supported facts as the factual findings of the Court, and incorporates herein by reference, in heac verba, Dkt. 1–2 (Petitioner’s Declaration) and Dkt. 76.[13]
B. The Court finds as undisputed and unopposed material fact:
1. The 04cr1224 district court, Sweet, J., on August 10, 2007, Dkt. 32, ordered the government to disclose “all” Brady exculpatory and impeachment evidence to Petitioner “prior to trial.” (emphasis added).
2. The 05cr1115 district court, Pauley, J., on May 19, 2006, Dkt. 17, Tr. 5–10, ordered the government to disclose all Brady exculpatory and impeachment evidence “before the start of trial.” (emphasis added).
3. The government had actual knowledge of the commands of the Brady Court Orders.[14]
4. The government knowingly, deliberately, intentionally, and in bad faith (i) resisted and (ii) disobeyed the commands of the Brady Court Orders and did not disclose “all” Brady exculpatory or impeachment evidence to Petitioner before trial.[15]
5. District Judge William H. Pauley, III (deceased), knowingly, willfully, in bad faith, and recklessly, aided, abetted, colluded, and conspired with the government’s lawyers in the 05cr1115 proceeding, and knowingly orchestrated, facilitated, and enabled the government to hide, conceal, and suppress government “principal witness” Jeremy Jones’ perjury contracts — that is, (i) the Rule 11 plea contract, (ii) the transcript of the Rule 11 plea allocution, (iii), the government’s 5k letter, and other material Brady exculpatory and impeachment evidence.[16]
6. District Judge Robert W. Sweet (deceased), knowingly, willfully, in bad faith, and recklessly, aided, abetted, colluded, and conspired with the government’s lawyers in the 04cr1224 proceeding, and knowingly orchestrated, facilitated, and enabled the government to hide, conceal, and suppress government witness SEC lawyer Jeffrey B. Norris’ ‘bad acts’; and enabled the government to hide, suppress, and conceal the fact the 02cv2219 (SDNY) plaintiffs were unregistered broker-dealers, and 15 USC 77b(a)(11) statutory underwriters of GPMT’s securities legally ineligible for Rule 144(k) exemption to Section 5 registration requirements.[17]
7. District Judge Edgardo Ramos aided, abetted, colluded, and conspired with the government’s lawyers to continue to hide, conceal, and suppress the Undisclosed Brady Exculpatory Evidence.[18]
8. The Court finds that the government’s willful, bad faith, and deliberate nondisclosure of the Undisclosed Brady Exculpatory Evidence was material, and materially affected the outcome of the criminal proceedings.[19]
9. The Court finds as undisputed material fact the government did not, and as of August 15, 2022, has not, disclosed “all” material Brady exculpatory or impeachment evidence in the possession of the SEC — that is,
a. (i) paragraph 33 in the SEC’s July 2003 03–0831 (D. NV) complaint, Dkt. 1–2, Ex. 22;[20]
b. (ii) the Court finds as undisputed fact that on or about July 14, 2003, Dkt. 1, (03–0831) (D. NV), the government, via the SEC, pleaded itself out of the federal courts in (a) 03–0831 (D. NV) and (b) 05cr1115 (SDNY), by pleading a binding judicial admission in paragraph 33, judicial and equitable estoppel against the United States and its privies, in the SEC’s Las Vegas 03–0831 (D. NV) complaint, Dkt. 1–2, Ex. 22. The government judicially admitted that the press releases of INZS and SVSY “did not affect the stock[s’] price.” (emphasis added);[21] and
c. (iii) SEC lawyer Jeffrey B. Norris’ official SEC email to government 05cr1115 “principal witness”[22] Jeremy Jones.
10. The Court finds as undisputed material fact that on May 19, 2006, former AUSA Alexander H. Southwell, AUSA Nicholas S. Goldin, and U.S. Attorney Michael J. Garcia during the 05cr1115 discovery status conference, see Dkt. 17, Tr. 5–10 (Brady Order), knowingly, deliberately, and in bad faith lied, committed perjury, and committed a fraud on the court by suppressing, concealing, and hiding SEC lawyer Jeffrey B. Norris’ email to Jeremy Jones, (“[t]he government’s principal witness”), Dkt. 1–2, Ex. 8, material dispositive Brady exculpatory evidence required to have been disclosed to Petitioner, (the “Norris Email”).
11. The Court finds as undisputed material fact the Norris Email is undisclosed material Brady exculpatory and impeachment material covered by the Brady Court Order, Dkt. 17.
12. The Court finds as undisputed material fact the USAO colluded and conspired with the SEC’s Lawyers and District Judge Kent J. Dawson during the commingled Las Vegas 03–0831 (D. NV) proceedings, (the “Commingled Proceedings”); used the Commingled Proceedings as an illegal bootleg grand jury to gather evidence which Judge Dawson, the USAO, and SEC knew would be used against Petitioner in an imminent criminal proceeding, 05cr1115, regarding the same subject matter in 03–0831 — that is, the immaterial press releases of INZS and SVSY.[23]
13. The Court finds as undisputed material fact the SEC, the USAO, Marlon G. Kirton, and District Judge Pauley all knew that Jones was not involved in a conspiracy with Petitioner, see the Norris Email; all knew the SEC did not include Jones or Petitioner’s employees (government trial witnesses in 05cr1115 who all received covert and undisclosed nonprosecution, cooperation agreements) in the Las Vegas 03–0831 (D. NV) complaint because according to the Norris Email (“the SEC believed the deposition testimony of Petitioner’s employees they were not involved in any conspiracy, and had they knew[24] would not have participated in any conspiracy”). (paraphrased).[25]
14. The Court finds as undisputed material fact the government, the SEC, Marlon G. Kirton, and District Judge Pauley, knowingly, willfully, deliberately, and in bad faith conspired, colluded, agreed, acted in concert, and devised an illegal device to hide, conceal, and suppress the Norris Email, material Brady exculpatory and impeachment evidence, in “resistance” and “disobedience to” the Brady Court Order, Dkt. 17.[26]
15. The Court finds as undisputed material fact that the SEC, Marlon G. Kirton, the USAO (AUSAs Southwell, Goldin, Feldman, Fish, and the Executive Leadership), and Judge Pauley colluded and conspired to commit 18 USC 401(2) and 401(3) criminal contempt of the Brady Court Order, Dkt. 17, by willfully suppressing the Norris Email.[27]
16. The Court finds as undisputed material fact the government on November 7, 2008, via the USAG, pursuant to Article II, 18 USC 3724(b), and Fed. R. App. P. 42(b), notified the Court of Appeals for the Second Circuit in U.S. v. Ware, 07–5670 (XAP) (2d Cir.), Gov-I,[28] the government has abandoned, waived, forfeited, and dismissed with prejudice the cross-appeal, Gov.-I, (the “Gov’t Appellate Political Decision”):[29]
17. The Court finds as undisputed material fact the government’s Nov. 7, 2008, decision to dismiss Gov.-I, its cross-appeal, ipso facto as a matter of law, affirmed the District Court’s (Pauley, J.), October 2007, actual innocent ruling, Dkt. 1–2, Ex. 39, 40, and 41, and terminated the Court of Appeals and the District Court’s subject matter jurisdiction over Id., Ex. 39, 40, and 41 with respect to the 07–5222 (2d Cir.) appeal by Petitioner; i.e.,
18. an acquittal for Petitioner on all charges in 05cr1115 for insufficient evidence; and
19. triggered the Double Jeopardy Clause’s absolute finality regarding all issues, facts, and claims actually and/or necessarily resolved by the Executive Branch’s voluntary dismissal with prejudice of Gov.-I.
20. The Court finds as undisputed material fact on August 18, 2009, Dkt. 1–2, Ex. 4, the Court of Appeals entered final judgment in favor of Petitioner, the prevailing party, in 07–5670 (XAP), Gov-I, a superseding final judgment against the government and its privies.[30]
21. The Court finds as undisputed material fact that District Judge Sweet, the government, the SEC, Kenneth A. Zitter, Ari Rabinowitz, Kelley Quinn, and Thomas J. McCarthy, colluded, conspired, acted in concert, and recklessly in disregard of the facts knowingly falsified, fabricated, misrepresented, and committed a fraud on the court by the suppression and concealment of dispositive Brady exculpatory evidence, to wit:
22. Dkt. 1–2, Ex. 7 (FINRA’s May 17, 2021, certification of unregistered broker-dealer status for each of the 02cv2219 (SDNY) plaintiffs, LH Financial Services, and Ari Rabinowitz);
23. Dkt. 1–2, Ex. 11, the 04cr1224 trial testimony of Ari Rabinowitz, Tr. 180–250;[31]
24. Dkt. 1–2, Ex. 30, paragraph 10.1(iv) of GX-5,[32] the 02cv2219 (SDNY) plaintiffs’ judicial admissions of 15 USC 77b(a)(11) statutory underwriter status;
25. Dkt. 1–2, Ex. 46, SEC Release 33–7190 n. 17 (1995);[33] and
26. The FRE 404(b) ‘bad acts’ evidence of former SEC lawyer Jeffrey B. Norris in the possession of the SEC, District Judge Sweet, and the USAO.[34]
27. The Court finds as undisputed material fact that on December 20, 2007, Dkt. 90, the 02cv2219 (SDNY) district court (Sand, J.) upon ex parte and un-noticed voluntary motion by the 02cv2219 (SDNY) plaintiffs, the district court, after the statute of limitation had run on all claims in the complaint, entered final judgment in favor of GPMT, Ulysses T. Ware, and Elorian and Becky Landers, and dismissed with prejudice the 02cv2219 (SDNY) lawsuit.[35]
28. The Court finds as undisputed and unopposed material fact that Petitioner is actually and factually innocent of all charges in U.S. v. Ware, 04cr1224 (SDNY).[36]
29. The Court finds as undisputed and unopposed material fact that Petitioner is actually and factually innocent of all charges in U.S. v. Ware, 05cr1115 (SDNY).[37]
30. The Court finds as undisputed and unopposed material fact that a fundamental miscarriage of justice occurred in the criminal proceedings, sub judice, 04cr1224 and 05cr1115.
31. The Court finds as undisputed material fact FBI special agent David Makol’s 2005 affidavit for an arrest warrant for Petitioner, Ulysses T. Ware, Dkt. 1–2, Ex. 23, was materially false, fabricated, and perjuriously suborned by the USAO’s AUSA Alexander H. Southwell, David N. Kelley, and Michael J. Garcia, as the fraudulent basis and instrument to pressure Petitioner to issue fraudulent Rule 144(k) legal opinions to the 02cv2219 (SDNY) plaintiffs — that is, a RICO 18 USC 1961(6)(B) unlawful debt collection activity.[38]
32. The Court finds as undisputed material fact that Chief District Judge Laura Taylor-Swain (SDNY), see Dkt. 60 (06.16.22) Order, (Taylor-Swain, C.J.), while a party-respondent in 22cv3409 (SDNY), i.e., while judicially disqualified in the proceedings, as a fraud on the court, and to continue the 18 USC 1961(6)(B) RICO unlawful debt collection activity of District Judge Edgardo Ramos, knowingly, deliberately, in bad faith, and recklessly in disregard of the law and the facts, entered the ultra vires Order, Dkt. 60.[39]
33. The Court finds as undisputed material fact, taking in totality the facts found herein, and the record as a whole, collectively, that the government executed, orchestrated, colluded, and conspired with the FBI, the SEC, federal judges, private lawyers, and court employees, as an illegal association-in-fact, a criminal enterprise, and fabricated the criminal prosecution of Petitioner in 04cr1224 and 05cr1115 as a governmental retaliatory racially-motivated hate crime.[40]
III.
A. The Court is authorized to exercise its inherent Article III supervisory authority.
“The Constitution defines only the minimal historic safeguards which defendants must receive rather than the outer bounds of those we may afford them.” McNabb v. United States, 318 U.S. 332, 340 (1943) (internal quotes omitted) (emphasis added). In other words, the Constitution prescribes a floor below which protections may not fall, rather than a ceiling beyond which they may not rise.
The Model Code of Professional Responsibility, (the “MPCR”), on the other hand, encompasses the attorney’s duty “to maintain the highest standards of ethical conduct.” Preamble, [MPCR] (1981). The Code is designed to safeguard the integrity of the profession and preserve public confidence in our system of justice. It not only delineates an attorney’s duties to the court, but defines his relationship with his client and adverse parties. (emphasis added).[41] Hence, the Code secures protections not contemplated by the Constitution.
The Supreme Court has recognized that civilized conduct of criminal trial demands federal courts be imbued with sufficient discretion to ensure fair proceedings. Nardone v. United States, 308 U.S. 338, 342 (1939) (internal quotes omitted). Justice Frankfurter observed in McNabb “[j]udicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.” Id., at 340. Such standards constitute an exercise of the [federal] courts’ supervisory authority. Id. at 341.
Accordingly, it is not debatable whether the Court is authorized to impose supervisory relief on the government, its lawyers, officials, and other lawyers that appeared before the Court in the sub judice criminal proceedings. This Court can and will impose supervisory authority relief and sanctions herein.
B. Relief granted.
WHEREFORE, IT IS ADJUDGED, DECREED, AND FOUND the Court based on careful, independent review, and thorough assessment of the facts, the law, and the records of the proceedings presented and the facts found herein, the Court is of the firm, sober, and reflective view and opinion, and finds as undisputed and unopposed fact that a fundamental miscarriage of justice occurred in the criminal proceedings, sub judice and in other related proceedings, caused primarily by the officers of the court egregious, unethical, bad faith, negligent, frivolous, vexatious, and criminal misconduct, to wit:
1. the government’s lawyers;
2. the Securities and Exchange Commission’s lawyers;[42]
3. the District Judges, Dawson, Thrash, Pauley, Sweet, Sand, and Ramos;
4. Petitioner’s retained counsels;[43]
5. The Atlanta, GA Bankruptcy Court’s judges, Murphy, Bihary, Hagenau, and Mullins;
6. The Atlanta, GA Bankruptcy Court’s employees, Patricia Sinback and Bankruptcy Clerk M. Regina Thomas;
7. The State Bar of Georgia and its employees and agents;[44]
8. FBI agents;[45]
9. Private lawyers[46]
Edward T.M. Garland, Manibur S. Arora, Donald F. Samuel, David B. Levitt, Michael F. Bachner, Gary G. Becker, and Marlon G. Kirton, collectively, (the “Ineffective Lawyers”), as a supervisory relief sanction, which the Court has “broad discretion to fashion the appropriate sanctions of lawyers practicing before the Court,” U.S. v. Hammad, 858 F.2d 834 (2d Cir. 1988), the Court will ORDER supervisory relief sanctions be entered against the Ineffective Lawyers.
IV. FINAL ORDER
A. THE COURT HEREBY ORDERS THIS 15th DAY OF AUGUST 2022, AND ENTERS THE FOLLOWING RELIEF.
IT IS ORDERED AND ENTERED THAT:
1. The conviction, sentence, fines, assessments, supervised release, restitution, and indictment entered in U.S. v. Ware, 04cr1224 (SDNY), are annulled, vacated, set aside, vitiated, abrogated, and dismissed with prejudice, nunc pro tunc, November 17, 2004;
2. The conviction, sentence, fines, assessments, supervised release, restitution, and initial (S) and superseding indictment (S1) entered in U.S. v. Ware, 05cr1115 (SDNY), are annulled, vacated, set aside, vitiated, abrogated, and dismissed with prejudice, nunc pro tunc, September 2005 (S), and September 2006 (S1).
IT IS FURTHER ORDERED THAT:
3. GSL[47] is sanctioned pursuant to the Court’s supervisory authority, and is ORDERED to not later than Friday, August 19, 2022, at 9:00 am, time of the essence, prepare and submit to the Court, via the ECF system, to Petitioner, the State Bar of Georgia, the District Court (NDGA), the Court of Appeals for the Eleventh Circuit, the Supreme Court of the United States, all courts which they are admitted to practice, and post on their official website’s home page, a letter of apology to the Court, to Petitioner, and to the public for the unprecedented, egregious, and corrupt ineffective assistance of counsel rendered in 04cr1224 and 05cr1115;
IT IS FURTHER ORDERED THAT:
4. Not later than Monday, August 29, 2022, at 9:00 am, time of the essence, the Ineffective Lawyers, and each of the government’s lawyers[48] involved in the sub judice criminal proceedings, each, shall file a declaration of all facts, reasons, and analysis in the Court explaining why each shall not be permanently disbarred and enjoined from the Bar of the District Court (SDNY), and permanently enjoined from practice in the District Court (SDNY).
IT IS FURTHER ORDERED THAT:
5. The government, by and through the U.S. Attorney’s Office (SDNY), (the “USAO”), and Andre Damian Williams, Jr., Daniel Gitner, and Margaret M. Garnett, (the “Executive Leadership”), and Petitioner shall appear before the Court on August 16, 2022, at ____________ am/pm, in courtroom _______, located at :_____________________________________________________, New York, NY, for a sanctioning status conference.
IT IS FURTHER ORDERED THAT:
6. The District Clerk not later than Friday, August 19, 2022, shall assemble and certify the 22cv3409 (SDNY) record, and forward the certified record to the Director of the FBI, with a certified copy of this Memorandum Opinion and Final Order;
7. The same shall be forwarded to the General Counsel of the Securities and Exchange Commission;
8. The same shall be forwarded to the State Bar of Georgia, Office of the General Counsel;
9. The same shall be forwarded to the Clerk for the District Court (NDGA), District Court (D. NV), District Court (SDNY); Bankruptcy Court (NDGA); the Court of Appeals for the Second, Ninth, and Eleventh Circuits.
IT IS FURTHER ORDERED THAT:
10. That the United States Department of Justice, its agents, privies, officials, employees, and others in privy shall not later than Friday, August 19, 2022, by 9:00 am, time of the essence, expunge, delete, remove, disconnect, and seal all instances of any aspect of any record, document, or other paper or electronic indication that references any connection or association to Ulysses T. Ware or Thomas Ware regarding 04cr1224 and 05cr1115; not later than Monday, August 22, 2022, at 9:00 am, time of the essence, the Department of Justice shall file a certification into the Court that confirms compliance with this ORDER.
IT IS FURTHER ORDERED THAT:
11. That the State Bar of Georgia and Petitioner shall appear before the Court not later than Monday, August 22, 2022, at ________am/pm and the State Bar of Georgia is ORDERED to:
(i) show cause in writing, under oath, why it and its employees shall not be held in civil and 18 USC 401(3) criminal contempt of the August 18, 2009, Gov.-I, final judgment entered in U.S. v. Ware, 07–5670 (XAP)(2d Cir.), Dkt. 1–2, Ex. 4; and the December 20, 2007, Dkt. 90 (02cv2219), Rule 41(a)(2) final judgment, Dkt. 1–2, Ex. 5; and
(ii) to show cause why it and its employees, agents, officials, and all those in active concert shall not be enjoined, restrained, prohibited, and proscribed, permanently, from any use, for any purpose, in any proceeding, of the abrogated, vacated, set aside, and annulled orders and judgments in 05cr1115 (SDNY) and 04cr1224 (SDNY).[49]
IT IS FURTHER ORDERED:
12. That the Bankruptcy Court (NDGA) and Petitioner shall appear before the Court not later than Monday, August 22, 2022, at _________ am/pm, and the Bankruptcy Court is ORDERED to show cause in writing, under oath, why it and its employees shall not be held in civil and 18 USC 401(3) criminal contempt of:
(i) the August 18, 2009, Gov.-I, final judgment entered in U.S. v. Ware, 07–5670 (XAP)(2d Cir.), Dkt. 1–2, Ex. 4; and
(ii) the December 20, 2007, Dkt. 90 (02cv2219), Rule 41(a)(2) final judgment, Dkt. 1–2, Ex. 5.
13. That Kilpatrick, Townsend, & Stockton, LLP, (“KTS”), and Petitioner shall appear before the Court not later than Monday, August 22, 2022, at ______ am/pm, and KTS is ORDERED to show cause in writing, under oath, why it, its partners, and its employees shall not be held in civil and 18 USC 401(3) criminal contempt of:
(i) the August 18, 2009, Gov.-I, final judgment entered in U.S. v. Ware, 07–5670 (XAP)(2d Cir.), Dkt. 1–2, Ex. 4; and
(ii) the December 20, 2007, Dkt. 90 (02cv2219), Rule 41(a)(2) final judgment, Dkt. 1–2, Ex. 5.
14. The Securities and Exchange Commission and Petitioner shall appear before the Court not later than Monday, August 22, 2022, at ________ am/pm, and the SEC shall show cause
(i) why it and its lawyers shall not be sanctioned for aiding, abetting, and enabling the USAO to willfully, and in bad faith “resist” and “disobey” the Brady Court Orders; and
(ii) show cause why Petitioner shall not be reinstated to practice before the SEC given the nullity and illegality of the 2003 03–0831 (D. NV) Las Vegas Commingled Proceedings.[50]
IT IS FURTHER ORDERED:
15. The District Court (NDGA), through legal counsel, and Petitioner shall appear before the Court not than Monday, August 22, 2022, at _______ am/pm, and the District Court (NDGA) shall show cause why it shall not be permanently enjoined, restrained, prohibited, and prevented from any use, in any proceedings, for any purpose, the annulled 04cr1224 and 05cr1115, and 02cv2219 (SDNY) orders, judgments, or proceedings.[51]
IT IS FURTHER ORDERED:
16. That the persons or entities named in Section V, infra, shall provide the Office of the District Clerk (SDNY) and Petitioner not later than Monday, August 16, 2022, at 5:00 pm, time of the essence, with an email address and mailing address.
17. The District Clerk shall file a copy of this Memorandum Opinion and Final order in U.S. v. Ware, 04cr1224 (SDNY), U.S. v. Ware, 05cr1115 (SDNY), Alpha Capital, AG, et al. v. IVG Corp., a/k/a Group Management Corp., et al., 02cv2219 (SDNY), in In re Group Management Corp., 03–93031-mhm (BC NDGA), and in SEC v. Small Cap Research, Inc., 03–0831 (D. NV).
18. The Court shall maintain jurisdiction over this matter to enforce the final order and/or judgment entered herein.
SO ORDERED THIS 15th DAY OF AUGUST 2022.
__________________________________
District Judge (SDNY)
V.
A. Distribution and service.
The District Clerk shall serve a copy of this Memorandum Opinion, and Final Order on:
1. The United States Department of Justice,
2. The Director, Securities and Exchange Commission,
3. the Administrative Office of the U.S. Courts,
4. the State Bar of Georgia,
5. the U.S. Bankruptcy Court (NDGA),
6. the District Court (NDGA),
7. the District Court (D. NV),
8. the Court of Appeals for the Second Circuit,
9. the Court of Appeals for the Ninth Circuit,
10. the Court of Appeals for the Eleventh Circuit,
11. the Financial Industry Regulatory Authority,
12. Edward T.M. Garland, Manibur Arora, Donald F. Samuel, and David B. Levitt,
13. Michael F. Bachner,
14. Marlon G. Kirton,
15. Kilpatrick, Townsend, & Stockton, LLP.,
16. The Supreme Court of Georgia,
17. The Office of the Clerk, Supreme Court of the United S
18. The Office of the Solicitor General,
19. The U.S. Probation Office (SDNY),
20. The Director, U.S. Bureau of Prisons,
21. Kenneth A. Zitter,
22. LH Financial Services, Inc.,
23. Thomas J. Leghorn, and
24. The Director of the Federal Bureau of Investigation.
End of document
[1] See Fed. R. Civ. P. Rule 56(e)(2), (e)(3).
[2] See Id, Rule 56(f)(3).
[3] “The Government [the USAO] shall produce [to Ulysses T. Ware, the defendant in 04cr1224] all Brady material [in its actual or constructive possession] prior to trial” in 04cr1224 (SDNY). (Sweet, J.). (emphasis added).
[4] “This court will direct the government [the USAO] to produce [to Ulysses T. Ware, the defendant in 05cr1115] no later than the Thursday before the start of trial that exculpatory material” in its actual or constructive possession. (emphasis added).
[5] The evidence in the record before that Court, which is undisputed by the government, overwhelmingly supports the factual conclusion the government deliberately, intentionally, and in bad faith knowingly suppressed, concealed, covered-up, and hid dispositive Brady exculpatory and impeachment evidence in its actual and/or constructive possession from the Petitioner. See Dkt. 73 (motion to compel the government to comply with Brady Court Orders).
[6] The government’s representative, U.S. Attorney (SDNY), Andre Damian Williams, Jr., via AUSA Jun Xiang, an officer of the court, appeared in the Court on May 02, 2022, Dkt. 31, on behalf of the government, and has been served via ECF with all pleadings filed in 22cv3409(SDNY).
[7] The government via the USAO was served with ECF Dkt. 77 on August 12, 2022. The government did not oppose the requested relief.
[8] The government ostensibly has operated, without the written consent of the Court, at its own peril, under the legal fallacy that it, somehow, is legally immune from full and complete compliance with the Brady Court Orders’ commands unless and until the Court entered the 28 USC 2243 order to show cause. However, the fallacy in the government’s presumption is that a second court order is not required for the government to fulfill its court-ordered obligations and duties imposed by the Brady Court Orders’ commands. Those obligations and duties are independent of the claims in the Petition and have already been adjudicated.
[9] See Dkt. 71–1 (Declaration of Lawrence B. Mandela); Dkt. 71–2 (Declaration of GPMT’s CEO Elorian Landers); Ex. 71–8 (SEC’s rejection of GPMT’s Form SB-2 registration statement); Dkt. 71–10 (Sand, J., 11/25/2002, Memorandum Opinion finding the plaintiffs were 15 USC 77b(a)(11) statutory underwriters of GPMT’s securities, and thus, legally ineligible for 17 C.F.R. 230–144(k), Rule 144(k), exemption from 15 USC 77e, Section 5 of the 1933 Act’s strict-liability registration requirement, see SEC Release 33–7190 n. 17 (1995)) (02cv2219)(SDNY); and Dkt 73 (motion to compel the USAO to comply with Brady Court Orders).
[10] See Fed. R. Civ. P. Rule 56(c)(4); 56(e)(2).
[11] Fed. R. Civ. P. Rule 56(c)(2); 56(e)(2).
[12] Dkt. 1–2 (Petitioner’s declaration), and Dkt. 76.
[13] See Id.
[14] See Dkt. 32 (04cr1224) and Dkt. 17 (05cr1115).
[15] See undisclosed, suppressed, and concealed Brady exculpatory evidence: Dkt. 1–2, Ex. 7, Ex. 8, Ex. 9, Ex. 10, Ex. 12, Ex. 13, Ex. 14–1, Ex. 22, Ex. 29, Ex. 30, Ex. 46; see also Dkt. 71, Ex. 1–10, collectively, (the “Undisclosed Brady Exculpatory Evidence” or “Exculpatory Evidence”).
[16] See Dkt. 1–2, Petitioner’s Declaration; also see Dkt. 1–2, Ex. 29 (documents of Jones’ CJA lawyer Marlon G. Kirton’s, Esq. covert communications with Judge Pauley which referenced the covert (yet undisclosed) “5k letter” received by Jones from the government for his testimony in 05cr1115 which has not been docketed by the government nor disclosed to Petitioner).
[17] Id.; also see SEC Release 33–7190 n.17 (1995) (All Section 2(a)(11) statutory underwriters [the 02cv2219 (SDNY) plaintiffs] are required to register all distribution of securities with the SEC). (emphasis added). The government was required to have disclosed to Petitioner “prior to trial” in 04cr1224 SEC Release 33–7190 (1995) as material dispositive Brady Exculpatory evidence. Had the government fulfilled its Brady disclosure obligations ordered by the Brady Court Order, Dkt. 32 (04cr1224), “prior to trial” and prior to seeking the indictment of Petitioner in November 2004, the Court finds as fact the government could not have lawfully obtained the 04cr1224 indictment.
[18] Dkt. Id.; see Dkt. 76 , the Court found that Judge Ramos was assigned to 04cr1224 and 05cr1115 in 2021 after the death of District Judges Pauley and Sweet. The undisputed record showed that Judge Ramos since 2021 has refused to adjudicate Petitioner’s requested 18 USC 3231 subject matter jurisdictional challenge to the criminal proceedings sub judice, and the record shows that Judge Ramos refused to enforce the Brady Court Orders requested by Petitioner. A fundamental miscarriage of justice, see 05cr1115 and 04cr1224 dockets post-July 2021 for Judge Ramos’ criminal judicial misconduct.
[19] Id.
[20] The Court took judicial notice the SEC’s complaint was filed on behalf of the United States, the real party in interest in 03–0831 (D. NV) (a civil proceeding) and 05cr1115 (SDNY) (a criminal proceeding), regarding the same subject matter, i.e., INZS and SVSY’s immaterial (and thus not actionable, civilly, or criminally, Brady dispositive exculpatory evidence) press releases.
[21] The government’s judicial admission pleaded in paragraph 33 terminated the federal courts’ Article III subject matter jurisdiction over the 03–0831 (D. NV) and 05cr1115 (SDNY) proceedings. Immaterial press releases are not actional Article III subject matter in the federal courts; and consequently, the government lacked an 18 USC 3231 offense and probable cause to have sought Petitioner’s arrest and indictment in the 05cr1115 moot proceedings.
[22] See the opinion of the Second Circuit Court of Appeals (Kearse, J.), U.S. v. Ware, 07–5222, 07–5670 (XAP), August 18, 2009 (2d Cir. 2009), reported at U.S. v. Ware, 577 F.3d 442, 445 (2d Cir. 2009) (“The government’s principal witness [in 05cr1115] was [Jeremy] Jones, ….”) (emphasis added). Cf., Judge Kearse’s opinion, Ware, 577 F.3d at 445–48, with the Norris Email, Dkt. 1–2, Ex. 8. The Norris Email contradicted and impeached Judge Kearse’s conclusions, contradicted the government’s witnesses’ trial testimony, impeached their veracity, impeached their credibility; and impeached and eviscerated (i.e., completely destroyed) the government’s trial theory of a conspiracy and securities fraud. The Court is of the firm and unshakable conclusion the Norris Email had it been timely disclosed to the Court and to Petitioner, the Court would have dismissed the government’s indictment pre-trial for insufficient evidence and lack of probable cause; and conducted sanctioning proceedings against the government’s lawyers.
The undisclosed Norris Email materially contradicted and impeached the government’s trial theory that Jones and Petitioner’s employees (government witnesses whom all received undisclosed cooperation agreements) were involved in a conspiracy with Petitioner; also compare Judge Kearse’s conclusions, Ware, 577 F.3d at 445, 447–48, with the SEC’s undisclosed judicial admissions in paragraph 33 of the SEC’s 2003 Las Vegas Commingled Proceedings’ complaint, Dkt. 1–2, Ex. 22: on or before July 2003 the government had conceded and pleaded in court documents, binding judicial admissions, equitable and judicial estoppel, INZS and SVSY’s press releases “did not increase the stock’s price,” did not “artificially inflate” the “stock price,” which pleaded the United States, and its privies, out of the federal court, ipso facto. (emphasis added).
[23] See Dkt. 17, Tr. 5–12, in-court statements of AUSA Alexander H. Southwell; also see Dkt. 44, January 5, 2007, transcript of the conference on Petitioner’s motion to suppress evidence, Dkt. 30, 31, and 33; also see contents of AUSA Southwell’s perjurious and materially false and bad faith brief, Dkt. 32, filed in opposition to Petitioner’s motion to suppress evidence. Palpably AUSA Southwell was aware of his own official DOJ emails sent and received from his government email account (Alexander.southwell@usdoj.gov) exchanged with SEC lawyer Norris, see Dkt. 1–2, Ex. 9, 13, and 13–1. Yet AUSA Southwell misrepresented to the court he had no email communications with the SEC, which was a blatant and bad faith fraud on the court and willful disobedience and resistance to the Brady Court Order’s commands, Dkt. 17.
[24] It is axiomatic that one cannot be guilty of participating in a conspiracy of which they were unaware — that is, a conspiracy requires knowing participation. Accordingly, the question is raised, Who did Petitioner conspire with if not the government’s witnesses given Petitioner cannot conspire with himself? See Dkt. 1–2, Ex. 8 (the SEC’s lawyers did not add the government’s 05cr1115 trial witnesses to the Las Vegas 03–0831 complaint according to SEC lawyer Jeffrey B. Norris because the “Commission believed your deposition testimony that you were not involved in a conspiracy with Mr. Ware [the Petitioner].” (emphasis added) (paraphrased). Suppressed and concealed Brady exculpatory evidence in the possession of the USAO and the SEC.
[25] Dkt. 1–2, Ex. 8.
[26] See Dkt. 1–2, Ex. 29 (Kirton’s communications with the USPO, the USAO, and Judge Pauley confirmed that Jeremy Jones did receive an undisclosed, and undocketed “5k letter” (“though Mr. Jones cooperated with the government, received a “5k letter” from the government ….”) (quoting Jones’ CJA lawyer Marlon G. Kirton, Esq. in his letter to Judge Pauley dated April 30, 2008, see Dkt. 1–2, Ex. 29–2) (emphasis added) from the government for his testimony in 05cr1115, and Jones was relieved of more than +$700k in debt for his testimony, i.e., material Brady impeachment evidence required to have been disclosed by the government prior to, or immediately after trial).
The Court finds and is of the opinion that District Judge Pauley willfully and in bad faith, recklessly entered unconstitutional filing sanctions, Dkt. 222, 11/27/13, in 05cr1115 as the unlawful means and methods to conceal, hide, cover-up, and suppress his personal involvement in the government’s conspiracy to obstruct justice; and to cover up, conceal, and continue to suppress material, dispositive Brady exculpatory and impeachment evidence (cf., Kirton’s letter to the court regarding Jones’ undisclosed “cooperat[ion] with the government” and receipt of the covert “5k letter” from the government). A fundamental miscarriage of justice.
[27] See Brady Court Order, Dkt. 17; and also see Dkt. 44 (January 5, 2007, transcript) (false and fraudulent misrepresentations of AUSA Alexander H. Southwell); cf., Dkt. 35, Order (Pauley, J.), Dkt. 1–2, Ex. 42, based on the perjury of AUSA Southwell at the January 5, 2007, the conference on Petitioner’s pro se (Petitioner’s retained lawyers, Edward T.M. Garland, Manibur S. Arora, and Michael F. Bachner conspired with the government and refused to file the motion to suppress) motion to suppress evidence obtained by the government from the SEC unlawfully gathered during the Las Vegas 03–0831 (D. NV) Commingled Proceeding.
[28] The government filed a Fed. R. App. P. Rule 28.1 cross-appeal, 07–5670 (XAP), Gov.-I, of the 05cr1115, Pauley, J., October 2007, actual innocent acquittal verdicts, see Dkt. 1–2, Ex. 39, 40, and 41: Judge Pauley found the government’s trial proof insufficient on essential elements of the government’s trial burden — that is, S. Tr. 31 L 18–25, “ … concerning among other things the efficiency of the market” for INZS and SVSY’s securities and scheduled, after trial and dismissal of the trial jury an unconstitutional “Fatico [evidentiary] hearing.” (quoting Pauley, J., October 12, 2007, Dkt. 99 (purported sentencing proceedings in 05cr1115) (emphasis added). See Dkt. 1–2, Ex. 39.
Only the trial jury, not the trial court, is lawfully authorized by the Due Process Clause to convict on any element [market efficiency] of the government’s trial burden of proof, see In re Winship, 397 U.S. 358 (1970).
[29] The Government’s Appellate Political Decision to dismiss with prejudice its cross-appeal, Gov.-I, see Dkt. 1–2, Ex. 6, ipso facto affirmed the District Court’s (Pauley, J.) October 2007 actual innocent acquittal verdicts, see Id., Ex. 39, 40, and 41 — that is, the government voluntarily dismissed with prejudice 05cr1115 on November 7, 2008, triggered the Double Jeopardy Clause, res judicata, and collateral estoppel in favor of Petitioner, the prevailing party in 05cr1115 An acquittal of all charges on the merits.
[30] The Court of Appeals August 18, 2009, superseding final judgment, Dkt. 1–2, Ex. 4, terminated the government and its privies’ status as an Article III real party in interest with respect to the 05cr1115 proceedings, triggered res judicata, collateral estoppel, and Executive Branch Article II appellate political estoppel against the USAO, its prosecutors, and Executive Leadership; and ipso facto prohibited the government via the USAO, its privy, from appearing in Ware v. USA, et al., 22cv3409 (SDNY) and contesting, objecting to, or opposing any issues, fact, claim, or relief actually or necessarily resolved by the Gov.-I final judgment entered in favor of Petitioner. The 05cr1115 proceedings went moot on November 7, 2008, upon the government’s voluntary dismissal with prejudice of U.S. v. Ware, 07–5670 (XAP), Gov.-I. See Dkt. 1–2, Ex. 6.
[31] Rabinowitz testified at trial in 04cr1224 for the government and confessed and admitted that he and Alpha Capital, AG were unregistered broker-dealers, see Dkt. 1–2, Ex. 11. Rabinowitz’s material and dispositive Brady exculpatory evidence was required to have been disclosed by the government “prior to trial” as ordered by the Brady Court Order, Dkt. 32 (Sweet, J.), August 10, 2007.
[32] The government apparently without realizing the criminality contained in its trial exhibits entered GX-5 (the Illegal Criminal usury subscription agreement) at trial in 04cr1224 via Ari Rabinowitz, Tr. 180–88. GX-5, ¶10.1 (iv) required IVG Corp., a/k/a Group Management Corp., (“GPMT”), to “register with the SEC on Form SB-2 … 200%” of the February 2001 loan amount of $1.1M, implicit criminal usury interest that violated N.Y. penal law, §190.40, the criminal usury law, a class E. felony.
See Adar Bays v, GeneSYS ID, Inc., 28 F.4d 379 (2d Cir. 2022) (held that contracts [GX 1–4, and GX-5] which actually or implicitly require the borrower [GPMT] to repay a loan [the February 2001 $1.1M loan, the subject matter of 02cv2219 (SDNY), 04cr1224 (SDNY), 05cr1115 (SDNY), and 03–93031 (BC NDGA)] that charged more than 25% annual rate, the New York lawful interest rate, as a matter of law charged a criminal usury rate of interest — that is, the loan contracts [GX 1–4 and GX-5] are null and void ab initio; [GX 1–4 and GX-5] are unenforceable; [GX 1–4 and GX-5] are criminal contracts; and 18 USC 1961(6)(B) applied to any collection activities associated with [GX 1–4 and GX-5], the collection of an unlawful debt. See U.S. v. Grote, 961 F.3d 105 (2d Cir. 2020) (aff’d RICO conviction, sentence, and +$3.0B RICO forfeiture judgment for unlawful loan [GX 1–4 and GX-5] collection activity).
[33] SEC Release 33–7190 n. 17 (1995) is dispositive and material Brady exculpatory evidence the government was required to have disclosed “prior to trial.” Release 33–7190 n. 17 is SEC national policy which interpreted 15 USC 77(d) and 17 C.F.R. 230.144; and concluded that all “Section 2(a)(11) statutory underwriters — [that is, the 02cv2219 (SDNY) plaintiffs, see binding judicial admission pleaded at ¶¶ 10–21 in the 02cv2219 complaint, and pleaded by the government in ¶¶ 8–11 in the 04cr1224 indictment, i.e., affirmative defenses pleaded on the face of the indictment] are required to registered with the SEC, pursuant to 15 USC 77e, Section 5, all distribution of securities.” (paraphrased) (emphasis added). The government’s affirmative defenses pleaded on the face of the 04cr1224, ipso facto acquitted Petitioner of all charges in 04cr1224.
[34] Norris testified for the government in 04cr1224 during November 2007 as a purported FRE 404(b) “bad acts” witness regarding the Las Vegas unlawful Commingled Proceedings. At that time of Norris’ testimony, which the Court finds to be knowing perjury suborned by the government, Norris then, when he testified in November 2007, had been sanctioned by the SEC and twice suspended for unprofessional misconduct concerning the use of his government email account. Indisputable Brady impeachment evidence Petitioner could have used to impeach Norris’ character, veracity, mental state, and propensity for professional misconduct had the government disclosed the evidence.
The SEC subsequently terminated Norris in 2009 for admitted mental illness (AD/HD): Norris later admitted that he was under the care of a “psychiatrist” and was prescribed “drugs” to control his mind, mood, memory, and temperament. See Dkt. 1–2, Ex. 14 (excerpt from perjured declaration of AUSA Maria E. Douvas, an officer of the court, submitted to the Court of Appeals) and Ex. 14–1 (the Court took judicial notice of Norris v. Sec. & Exch. Comm’n, 675 F.3d 1349 (Fed. Cir. 2012)).
[35] See Dkt. 1–2, Ex. 5. The district court, Sand, J., on December 20, 2007, Dkt. 90, conferred prevailing party status on GPMT, Ulysses T. Ware, and Elorian and Becky Landers; and pursuant to binding circuit authority, A.B. Dick Co. v. Marr, 197 F.2d 498, 501–02 (2d Cir. 1952), annulled, vitiated, set aside, vacated, and abrogated all prior orders, judgments, and proceedings in 02cv2219 “as if the lawsuit had never been filed; terminated the court’s subject matter jurisdiction, and rendered the proceedings moot”. (emphasis added) (paraphrased).
[36] See Dkt. 1–2.
[37] Id.
[38] See Dkt. 1–2, Ex. 15, FBI special agent Makol and AUSA Alexander H. Southwell were in constant communications with SEC lawyer Jeffrey B. Norris during the pendency of the Las Vegas Commingled 03–0831 (D. NV) litigation, see Dkt. 1–2, Ex. 9 and 13; cf., Id, Ex. 42 (Southwell lied and committed perjury regarding his communications and contacts with the SEC during the pendency of the 03–0831 Las Vegas Commingled Proceedings), also see, Id., Ex. 3 (on May 19, 2006, Southwell again lied and committed perjury regarding his own official DOJ email communications with Norris and other SEC lawyers). Cf., Dkt. 44 (05cr1115) for additional perjurious statements by AUSA Southwell in open court.
FBI special agent Makol and the USAO had access to the SEC’s Las Vegas Commingled litigation files before seeking the arrest warrants for Petitioner in September 2005 according to AUSA Southwell’s statements on May 19, 2006, Dkt. 17, transcript; and thus, the USAO knew paragraph 33 in the 03–0831 (D. NV) complaint, Dkt. 1–2, Ex. 22, pleaded the United States and its privies — that is, the FBI, the SEC, and the USAO out of court. Accordingly, probable cause to arrest Petitioner in September 2005 regarding immaterial press releases was a legal impossibility.
[39] District Judge Taylor-Swain received Petitioner’s Local Rule District Court (SDNY) Rule 1.5(b)(5) petition for disciplinary action filed against U.S. Attorney (SDNY) Andre Damian Williams, Jr. and USAG Merrick B. Garland, and in violation of 18 USC 2071 and 1519, removed, concealed and suppressed Petitioner’s complaint, official court records, as an act in furtherance of the DOJ’s conspiracy to obstruct justice, and continue the RICO unlawful debt collection activity associated with the February 2001 criminal usury debt, the subject matter of the 02cv2219 (SDNY), 03–93031 (BC NDGA), 04cr1224 (SDNY), and 05cr1115 (SDNY) proceedings.
[40] The Court is of the firm and unshakeable conviction Petitioner is factually and actually innocent of all charges in the 04cr1224 and 05cr1115 criminal proceedings based on an independent review and assessment of the total records in the sub judice criminal proceedings, and the records of the ancillary proceedings (02cv2219 (SDNY), 03–93031 (SDNY), and 03–0831 (D. NV)), cf., the September 1, 2004, unlawful arrest of Petitioner in Atlanta, GA by District Judge Thomas W. Thrash, Jr. and the U.S. Marshals while lacking a lawful arrest warrant, search warrant, or court order, as a RICO unlawful debt collection activity initiated by Kenneth A. Zitter and former District Judge Leonard B. Sand (deceased), see Dkt. 1–2, Ex. 13 (suppressed and concealed official SEC/DOJ email of Jeffrey B. Norris to AUSA Southwell where Southwell tells Norris Petitioner’s arrest in Atlanta, GA on Sept. 1, 2004, “was improper” but we [the USAO] will indict Petitioner nevertheless [in 04cr1224] to collect the unlawful RICO criminal usury debt — that is, the USAO agreed to function as the RICO unlawful debt collection agency for the 02cv2219 (SDNY) plaintiffs, unregistered broker-dealers, cf., Dkt. 1–2, Ex. 7 (FINRA’s May 17, 2021, certification of unregistered broker-dealer status for each of the 02cv2219 plaintiffs). A fundamental miscarriage of justice occurred in the proceedings.
[41] See Dkt. 1–2, Ex. 38 for unethical misconduct committed by Petitioner’s retained counsels.
[42] Jeffrey B. Norris, Spencer C. Barasch, Joan E. McKown, William Smith-Grieg, Steve Webster, Steve Koratash, John C. Martin, and Robert C. Hannan.
[43] Edward T.M. Garland, Manibur S. Arora, Donald F. Samuel, and David B. Levitt.
[44] William D. NeSmith, III, William P. Smith, IV, Jonathan Hewitt, William Alan Myers, Jenny Mittelman, Leigh Burgess, Adrienne Nash, Paula Fredricks, and others known and unknown.
[45] Special agent David Makol and FBI analyst Maria E. Font.
[46] Atlanta, GA law firm Kilpatrick, Townsend, & Stockton, LLP, Dennis S. Meir, John W. Mills, III, Kenneth A. Zitter, Gary G. Becker, Marlon G. Kirton,
[47] Atlanta, GA law firm Garland, Samuel, & Loeb, P.C., its partners Edward T.M. Garland, and Donald F. Samuel, its associate lawyer Manibur S. Arora, and its affiliate David B. Levitt.
[48] AUSAs Southwell, Goldin, Feldman, Douvas, Fish, Polk-Failla, Paul, Childs, Xiang, Pekin, Andre Damian Williams, Jr., Daniel Gitner, Margaret M. Garnett, Audrey Strauss, Preet Bharara, David N. Kelley, Michael J. Garcia, Preet Bharara, and Joon Kim, jointly, (the “Government’s Lawyers”),
[49] If not later than Friday, August 19, 2022, by 9:00 am, time of the essence, the State Bar of Georgia provides certified proof in writing to the Court and Petitioner that Ulysses T. Ware has been reinstated, nunc pro tunc, 2008, as a member in good standing to the State Bar of Georgia, the State Bar will be relieved from appearing in the Court on August 22, 2022, regarding the issues in #11(ii), supra. Else, the State Bar of Georgia shall appear as ORDERED regarding the injunctive relief matter.
[50] The 03–0831 District Court lacked subject matter jurisdiction over the proceeding given the SEC’s judicial admissions pleaded in paragraph 33, see Dkt. 1–2, Ex. 22. The proceedings are moot.
[51] The District Court (NDGA) shall be relieved from appearing before the Court and showing cause if the District Court certifies not later than Friday, August 19, 2022, at 9:00 am, time of the essence, and provides to the Court and Petitioner proof that Petitioner has been reinstated in good standing to the Bar of the District Court (NDGA); and any prior disbarment of Petitioner has been annulled, vacated, set aside, and voided, nunc pro tunc, 2008.
