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
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
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.
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 2 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
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.
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 3 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
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
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 4 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
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]
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 5 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
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]
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 6 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
7/12
Exhibit A
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 7 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
8/12
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 8 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
9/12
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 9 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
10/12
Exhibit 1
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 10 of 12
7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
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
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 11 of 12
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/7/28/2019 Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply
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
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 12 of 12
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/