Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply

7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply

1/12

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOSEPH FARAH, et. al

Appellants,v.

ESQUIRE MAGAZINE, et. al.,

Appellees.

No. 12-7055

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,

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

USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 1 of 12


2/12

2

"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

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

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

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

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

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

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

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

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

("FRAP") provides clearly and unequivocally:

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

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.

1 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 derisivelyreferred to as "Birthers" in a condescending fashion.



3/12

3

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

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

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

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

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

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

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

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

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

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

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

v. Root Refining Co., 328 U.S. 575, 580 (1946) citingHazel-Atlas Co. v. Hartford-

Empire 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.



4/12

4

Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995). InPumphrey, 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

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

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

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

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

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

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.

This case is even more egregious thanPumphrey and cries out for strong

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

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



5/12

5

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

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

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

DATED: March 27, 2013

Respectfully Submitted,

/s/Larry KlaymanLarry Klayman, Esq.

D.C. Bar No. 334581

2020 Pennsylvania Ave. NW #345Washington, DC 20006

Tel: (310) 595-0800Email: [email protected]



6/12

6

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 StrikeAnd Opposition To Appellees' Cross Motion For Sanctions (No. 12- 7055) was

filed electronically via CM/ECF to the United States Court of Appeal for theDistrict 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,

/s/Larry KlaymanLarry Klayman, Esq.D.C. Bar No. 334581

KLAYMAN LAW FIRM

2020 Pennsylvania Ave. NW, Suite 345Washington, DC 20006

Tel: (310) 595-0800Email: [email protected]



7/12

Exhibit A



8/12



9/12



10/12

Exhibit 1



11/12

3/27/13 Print - BREAKING: Jerome Corsi's Birther Book Pulled from Shelves! - Esquire

www.esquire.com/print-this/jerome-corsi-birther-book-5765410

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

BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!In a stunning development one day after the release ofWhere's the BirthCertificate? The Case that Barack Obama is not Eligible to be President, by Dr. JeromeCorsi, World Net Daily Editor and Chief Executive Officer Joseph Farah has announcedplans to recall and pulp the entire 200,000 first printing run of the book, as well asannouncing an offer to refund the purchase price to anyone who has already boughteither a hard copy or electronic download of the book.

In an exclusive interview, a reflective Farah, who wrote the book's foreword and alsopublished Corsi's earlier best-selling work, Unfit for Command: Swift Boat VeteransSpeak out Against John Kerryand Capricorn One: NASA, JFK, and the Great "Moon

Landing" Cover-Up, said that after much serious reflection, he could not go forwardwith the project. "I believe with all my heart that Barack Obama is destroying thiscountry, and I will continue to stand against his administration at every turn, but inlight of recent events, this book has become problematic, and contains what I nowbelieve to be factual inaccuracies," he said this morning. "I cannot in good consciencepublish it and expect anyone to believe it."

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

By Mark Warren

In a stunning development one day after the release ofWhere'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 we ll 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.

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

Kerryand Capricorn One: NASA, JFK, and the Great "Moon Landing" Cover-Up, said that after much

serious reflection, he could not go forward w ith the project. "I believe with all my heart that

Barack Obama is destroying this country, and I will continue to stand against his administration atevery 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 w ith Corsi.

A source at WND, who requested that his name be w ithheld, said that Farah was "rip-shit" when,

on April 27, President Obama took the extraordinary step ofpersonally releasing his "long-

form" birth certificate, thus resolving the matter of Obama's legitimacy for "anybody with a

http://www.esquire.com/the-side/feature/what-is/long-form-birth-certificate-5649302http://www.esquire.com/the-side/feature/what-is/long-form-birth-certificate-5649302http://www.esquire.com/the-side/feature/what-is/long-form-birth-certificate-5649302http://www.esquire.com/the-side/feature/what-is/long-form-birth-certificate-5649302http://www.esquire.com/http://window.print%28%29/http://window.close%28%29/http://www.esquire.com/the-side/feature/what-is/long-form-birth-certificate-5649302http://window.close%28%29/http://window.print%28%29/http://www.esquire.com/


12/12

3/27/13 Print - BREAKING: Jerome Corsi's Birther Book Pulled from Shelves! - Esquire

brain."

"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 professiona l journalist, could not be reached for

comment.

DEVELOPING...

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 Pres ident 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 rea lity,

but to hold their terribly gullible audience captive to the ir 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.

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

https://donate.barackobama.com/page/contribute/o2012-made-in-the-usa-shirt-zhttp://www.esquire.com/the-side/richardson-report/obama-birthers-movement-part-one-080409http://www.esquire.com/the-side/richardson-report/obama-birth-certificate-update-081109http://www.esquire.com/blogs/politics/birthers-movement-tennessee-arrest-050710http://www.esquire.com/blogs/politics/birthers-movement-tennessee-arrest-050710http://www.esquire.com/the-side/richardson-report/obama-birth-certificate-update-081109http://www.esquire.com/the-side/richardson-report/obama-birthers-movement-part-one-080409https://donate.barackobama.com/page/contribute/o2012-made-in-the-usa-shirt-zhttp://window.close%28%29/http://window.print%28%29/

Documents

Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply