USCA Case #12-7055

Document #1427576

Filed: 03/27/2013

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JOSEPH FARAH, et. al v. Appellants,

No. 12-7055

ESQUIRE MAGAZINE, et. al., Appellees.

APPELLANTS' REPLY IN SUPPORT OF MOTION TO STRIKE AND OPPOSITION TO APPELLEES' CROSS MOTION FOR SANCTIONS

Appellees' retained a law firm that is very large, powerful, and in its own estimation influential. But, however large and prestigious, the law firm should know better than to not do a due diligence with its client and put forth misleading and false information either to a lower court or this Court. Regrettably and egregiously, that is just what has occurred in this case. But rather than owning up to the falsity of the facts concerning the publication of the Blog Post at issue,

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predictably Appellees and their law firm spend most of its time attacking Appellants' lawyer -- using the age old defense that a "good offense is the best defense." As set forth in the attached affidavit, sworn to under oath, by Joseph Farah, Chief Executive Officer of Appellants Worldnetdaily.com and WND Books, the offending Blog Post published by Appellees did not contain the alleged

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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"tags" at issue or any other warning to the reader that it was satire or for that matter humor of any sort. In fact, the Blog Post, to this very day, is still available in

That Appellants did not dwell on this falsity at the lower court level was

improperly upon herself to weigh facts in deciding Appellees' 12(b)(6) of Federal

court to accept the facts pleaded in the complaint as true. But instead of doing

her prejudgment of the case -- as fully explained in Appellants' briefs -- the district judge made a dispositive ruling before discovery could even proceed to prove or disprove either side's recitation of the operable material facts!1 In this regard, Rule 10(e)(2) of the Federal Rules of Appellate Procedure

(2) If anything material to either party is omitted from or misstated in

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the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded: (C) by the court of appeals.

The district court judge even ruled upon an issue which was not before her; whether President Barack Obama was born in the United States. (JA 351). This unmasked her prejudgment mindset towards Appellants who she derisively referred to as "Birthers" in a condescending fashion.
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("FRAP") provides clearly and unequivocally:

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what she was required to do, out of apparent bias and prejudice which resulted in

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Rules of Civil Procedure ("FRCP") motion to dismiss, which requires the lower

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simply because they were confident that the district judge would not take it

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printable form without the "tags." See Exhibit A -- Affidavit of Joseph Farah.

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See also Colbert v. Potter, 471 F.3d 158 (D.C. Cir. 2006)(Allowing material evidence to be submitted on appeal that was not submitted at the district court

Cir. 2008)"Federal Rule of Appellate Procedure 10(e)(2) allows a court of appeals

or accident"). As allowed by FRAP Rule 10(e)(2), Appellants are simply drawing

Even assuming that the facts put forth by Appellees and their counsel are

only refuted them but were entitled to discovery to determine the truth. Appellees and their counsel's disingenuous argument that because the falsity of their representations were not raised at the district court level, they are now absolved from scrutiny of these falsities at the appellate level, is simply another

judgment was obtained by fraud, is beyond question." Universal Oil Products Co.

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v. Root Refining Co., 328 U.S. 575, 580 (1946) citing Hazel-Atlas Co. v. HartfordEmpire Co., 322 U.S. 238 (1944). This Court has the inherent power to investigate

all possible instances of fraud constituted upon the lower court and this court. Fraud upon the court "involve[s] an unconscionable plan or scheme which is

designed to improperly influence the court in its decision." Pumphrey v. K.W.

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arrogant ruse. "The inherent power of a federal court to investigate whether a

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worthy of consideration concerning the Blog Post's publication, Appellants not

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attention to the errors in the record for the Court to consider and correct.

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to consider evidence if it has been "omitted from or misstated in the record by error

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under FRAP 10(e)(2)); Shangold v. Walt Disney Co., 275 Fed. Appx. 72, 73 (2d

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Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995). In Pumphrey, a wrongful death action against a gun manufacturer, the defendant presented to the court a videotape that showed one of their handguns being dropped and not

accidentally firing. It was later revealed that the defendant and its counsel had

accidentally fire when being dropped. An appellate court, the U.S. Court of

scheme to defraud the jury, the court, and [the victim], through the use of

presentation of fraudulent evidence, and the failure to correct the false impression created by [the expert witness'] testimony. The end result of the scheme was to undermine the judicial process, which amount[ed] to fraud upon the court." Id. at 1132.

sanctions by this Court and referral to Bar Counsel -- regardless of whether

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Appellees are represented by a big law firm that wields great influence in Washington, D.C. Based on Appellant's counsel's 35 years of experience, some of these powerful and influential mega-law firms believe they can get away with putting forth falsities to the Court which influence decision making ,and in many instances have actually succeeded in doing so. However, this Court should not

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This case is even more egregious than Pumphrey and cries out for strong

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misleading, inaccurate, and incomplete responses to discovery requests, the

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Appeals for the Ninth Circuit ruled that the defendant and its counsel "engaged in a

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failed to produce and hid from the court a videotape in which the gun did

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tolerate this kind of behavior, as no one is above the law. But more importantly the dispute over whether Appellees' Blog Post warns a reader that it was satire

egregiously when she dismissed the case prior to discovery and trial by a jury.

DATED: March 27, 2013

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/s/ Larry Klayman Larry Klayman, Esq. D.C. Bar No. 334581 2020 Pennsylvania Ave. NW #345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

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Respectfully Submitted,

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raises a justiciable issue of fact, at a minimum, and thus the district judge erred

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 27th day of March, 2013 a true and correct copy of the foregoing Appellants' Reply In Support Of Motion To Strike And Opposition To Appellees' Cross Motion For Sanctions (No. 12- 7055) was filed electronically via CM/ECF to the United States Court of Appeal for the District of Columbia Circuit All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system

Respectfully submitted,

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/s/ Larry Klayman Larry Klayman, Esq. D.C. Bar No. 334581 KLAYMAN LAW FIRM 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

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Exhibit A

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Exhibit 1

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3/27/13

Print - BREAKING: Jerome Corsi's Birther Book Pulled from Shelves! - Esquire

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http://www.esquire.com/blogs/politics/jerome-corsi-birther-book-5765410

By Mark Warren

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In an exclusive interview, a reflective Farah, who wrote the book's foreword and also published Corsi's earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great "Moon Landing" Cover-Up, said that after much serious reflection, he could not go forward with the project. "I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies," he said this morning. "I cannot in good conscience publish it and expect anyone to believe it." When asked if he had any plans to publish a corrected version of the book, he said cryptically, "There is no book." Farah declined to comment on his discussions of the matter with Corsi. A source at WND, who requested that his name be withheld, said that Farah was "rip-shit" when, on April 27, President Obama took the extraordinary step of personally releasing his "longform" birth certificate, thus resolving the matter of Obama's legitimacy for "anybody with a
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www.esquire.com/print-this/jerome-corsi-birther-book-5765410

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In a stunning development one day after the release of Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President , by Dr. Jerome Corsi, World Net Daily Editor and Chief Executive Officer Joseph Farah has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an offer to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.

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When asked if he had any plans to publish a corrected version of the book, he said cryptically, "There is no book." Farah declined to comment on his discussions of the matter with Corsi.

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In an exclusive interview, a reflective Farah, who wrote the book's foreword and also published Corsi's earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great "Moon Landing" Cover-Up, said that after much serious reflection, he could not go forward with the project. "I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies," he said this morning. "I cannot in good conscience publish it and expect anyone to believe it."

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In a stunning development one day after the release of Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President , by Dr. Jerome Corsi, World Net Daily Editor and Chief Executive Officer Joseph Farah has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an offer to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.

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BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!

3/27/13

Print - BREAKING: Jerome Corsi's Birther Book Pulled from Shelves! - Esquire

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"He called up Corsi and really tore him a new one," says the source. "I mean, we'll do anything to hurt Obama, and erase his memory, but we don't want to look like fucking idiots, you know? Look, at the end of the day, bullshit is bullshit." Corsi, who graduated from Harvard and is a professional journalist, could not be reached for comment. DEVELOPING...

http://www.esquire.com/blogs/politics/jerome-corsi-birther-book-5765410

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UPDATE, 12:25 p.m ., for those who didn't figure it out yet, and the many on Twitter for whom it took a while: We committed satire this morning to point out the problems with selling and marketing a book that has had its core premise and reason to exist gutted by the news cycle, several weeks in advance of publication. Are its author and publisher chastened? Well, no. They double down, and accuse the President of the United States of perpetrating a fraud on the world by having released a forged birth certificate. Not because this claim is in any way based on reality, but to hold their terribly gullible audience captive to their lies, and to sell books. This is despicable, and deserves only ridicule. That's why we committed satire in the matter of the Corsi book. Hell, even the president has a sense of humor about it all. Some more serious reporting from us on this whole "birther" phenomenon here, here, and here.

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