No. 17-1381 Gnited States Court of Appeals For the first Circuit MOHAN A. HARIHAR Plaintiff - Appellant v. US BANK NA; RMBS CMLTI 2006 AR-1; COMMONWEALTH OF MASSACHUSETTS; HARMON LAW OFFICES, P.C.; NELSON MULLINS RILEY & SCARBOROUGH, LLP; PETER HALEY; MARY DAHER; KEN DAHER; DAHER COMPANIES; JEFFREY PERKINS; ISABELLE PERKINS; WELLS FARGO BANK, N.A.; KURT MCHUGH; MARTHA COAKLEY; K&L GATES LLP, Defendants, Appellees, DAVID E. FIALKOW, Esq.; JEFFREY PATTERSON, Esq., Defendants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, BRIEF OF APPELLANT MOHAN A. HARIHAR Mohan A. Harihar Mo.harihar@ ‘om 7124 Avalon Drive Acton, MA 01720 p. (617) 921.2526 Dated: August 14, 2017APPELLANT DISCLOSURE STATEMENT. ‘The Appellant, Mohan A. Harihar, acting pro se, respectfully makes the following disclosures: 1. This appellate brief addresses the UNOPPOSED Fraud on the Court Claim(s) of the Appellant, pursuant to Fed. R. Civ. P. 60(b)(3). It is UNCLEAR why the filing of a brief is necessary, since Appellees and Defendants HAVE NO DEFENSE in an Appeal, and the filing of EITHER brief is considered MOOT. Despite multiple efforts by the Appellant requesting clarification (on record), presiding Judges Torruella, Kayatta, Barron; Judge Thompson, and Chief Justice Howard have refused to clarify why it is necessary for the Appellant to even file his Brief. Rv . The Appellant Brief addresses PRIMARILY, the evidenced Fraud on the Court claims under Fed. R. Civ. P. 60(b)(3). While there is a SUBSTANTIAL amount of incremental facts supporting the Appellant’s consistent claims on Appeal (as documented within the record), they are also interpreted as moot, based on the unopposed Rule 60(b)(3) claim, and what by law MUST result in a default judgement. Should it become necessary to provide the Court with additional facts supporting appeal, the Appellant will (at minimum) require an extended timeline to do so, re- stating his request for assistance to appoint counsel, and the Court's approval to exceed the Certificate of Compliance limits as needed.3. The Appellant necessarily files this Appellate brief by the court ordered deadline of August 14, 2017, and still as a pro se litigant, despite providing the First Circuit US Court of Appeals with a “TEXTBOOK” example warranting assistance with the appointment of counsel pursuant to Title 28 U.S.C. §1915. This refusal to assist the Appellant with the appointment of counsel shows a failure to uphold Title 28 U.S.C. §1915 and the judicial machinery of the court. It exemplifies an incremental act made in BAD FAITH by officers of the Court representing The United States - ensuring fundamental unfairness that impinges on the Appellant's DUE PROCESS rights. Presiding Judges Torruella, Kayatta, Barron; Judge Thompson, and Chief Justice Howard have all denied to clarify their decisions refusing to assist the Appellant with the appointment of counsel, 4. Evidenced claims by the Appellant are believed to include (but are not limited to) matters of National Security, and include infractions to the Economic Espionage Act of 1996, pursuant to 18 U.S.C. §§ 1832, and acts of TREASON under ARTICLE II, warranting the intervention of BOTH Congress and the Department of Justice, to address associated criminal components. Evidenced Treason claims also warrant notifying The President of The United States. 5. This is a proceeding ancillary to a proceeding in the US District Court — HARIHAR v. THE UNITED STATES, Docket No. 17-cv-11109, 22 pursuant to FED. R. APP. P, 26 (a)(1)(B)(viii). The documented judicial actions exemplified in this appeal warrant an expansion of claims against The United States in the related docket. .. Since presiding Judges: Torruella, Kayatta, Barron have previously (at minimum) ignored the Appellant’s Fraud on the Court claims, they are considered to be without jurisdiction and disqualified by law to rule further on this Appeal, or any related matter. Based on the Appellant's interpretation of the law, a judge who rules without jurisdiction is considered to have committed an Act of Treason under ARTICLE III of the Constitution. Therefore, the Appellant respectfully re-states his demand for their immediate RECUSAL, and intends to bring Treason claims against ANY party who attempts to act without jurisdiction. . The Appellant firmly believes, based on the record alone, that a deep- seated favoritism or antagonism does exist here, making fair judgment impossible within this First Circuit. It would appear (at least on its surface), that elements of corruption may exist; and that efforts have been made thus far — by NINE (9) Federal judges, to brush aside all motions in order to reach a corrupt and pre-determined outcome. ANY objective observer would certainly agree, and giving the Appellant no choice but to proceed as a pro se litigant re-affirms that argument, and further strengthens existing conspiracy claims in the related complaint, HARIHAR v. THE UNITED STATES, Docket No. 17-cv-11109. 3TABLE OF CONTENTS APPELLANT DISCLOSURE STATEMENT TABLE OF AUTHORITIES BRIEF OF APPELLANT ... JURISDICTIONAL STATEMENT .. STATEMENT OF THE ISSUES ... STATEMENT OF THE CASE ... STATEMENT OF FACTS, SUMMARY OF ARGUMENT ..... STANDARD OF REVIEW .. ARGUMENT ... L THE DISTRICT COURT FAILED TO CORRECTLY ASSIST MOHAN A. HARIHAR WITH THE APPOINTMENT OF COUNSEL, AND OTHER REQUESTED INJUNCTIVE RELIEF..... ll. | APPELLEES/DEFENDANTS FAILED TO FILE ANY OPPOSITION TO FRAUD ON THE COURT CLAIMS..... Il. THE DISTRICT COURT FAILED TO CORRECTLY ADDRESS EVIDENCED FRAUD ON THE COURT CLAIMS. +26 IV. THE DISTRICT COURT FAILED TO ADDRESS THE. APPELLANT’S CLAIMS REGARDING THE MISAPPROPRIATION OF TRADE SECRETS, ECONOMIC ESPIONAGE, AND IMPACT TO NATIONAL, SECURITY.. weeV. THE DISTRICT COURT IMPROPERLY DISMISSED THE APPELLANT’S COMPLAINT. 127 VI. THE IMPACT OF RECUSAL FROM THE RELATED CASE, HARIHAR V. THE UNITED STATES, DOCKET NO. 17-CV- 11109... 28 CONCLUSION ... CERTIFICATE OF COMPLIANCE UNDER FED. R. APP. P. 32(a)(7) CERTIFICATE OF SERVICETABLE OF AUTHORITIES CASES: CDR Creances $.A.S. v Cohen 2014 NY Slip Op 03294...........cseeee Cox v. Burke, 706 So. 2d 43, 47 (Fla. Sth DCA 1998) .... Aoude v. Mobil Oil Corp.. 892 F.2d 1115, 1118 (Ist Cir. 1989) ..... Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) ... Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978) .... STATUTES: .2,14,19,20 15,26 28 USC. § 1915 .. 18 U.S.C. § 1832 28US.C. § 129. 28 US.C. §455(a) 28US.C. § 144... 26 U.S.C. § 860G(d)(1 18 U.S. Code § 2382... 18 US. Code § 4. 7 10,27 -10,27 RULES: 1,7-10,14,23,28 3 Fed. R. Civ. P. 60(b)(3) Fed. R. Civ. P. 26 (a 1)(B)( viii UNITED STATES CONSTITUTIO! Article III, Section 3. +++2,3,18,26BRIEF OF APPELLANT Appellant Mohan A. Harihar, who has UNFAIRLY been given NO ALTERNATIVE but to represent himself pro se, respectfully calls for this Court to recognize the UNOPPOSED Fraud on the Court claims evidenced against ALL Appellees/Defendants, and grant a DEFAULT order and final judgment of permanent injunction — IN FAVOR of the Appellant, pursuant to Fed. R. Civ. P. 60(b)(3). JURISDICTIONAL STATEMENT The record of this Appeal reveals that the presiding Judges - Torruella, Kayatta, and Barron have previously failed to (at minimum) address Fraud on the Court Claims, referenced in the lower court docket, and with the expanded claims documented earlier in this Appeal. Since the beginning of the Appeal process, five (5) additional Federal Judges (nine in total), including Chief Justice Howard have also either ignored these Rule 60(b) claims or suggested, without cause that they are frivolous. When asked to clarify their decisions, these referenced judges have refused to do so. Motions for recusal have been either DENIED or IGNORED, including the respectful DEMAND for TRANSFER of the Appeal to another Circuit. This clear failure to uphold the judicial machinery of the Court is irrefutable, on record, and certainly impacts jurisdiction here (at minimum) under 28 U.S.C. § 1291. With the filing of the Appellant Brief, eight (8) incremental judicial misconduct complaints will necessarily be filed with the Clerk of the Court. The extent ofevidenced judicial misconduct claims against nine (9) Federal Judges (ALL within the First Circuit)', suggests that elements of both CORRUPTION and CONSPIRACY exist; warranting (at minimum) the immediate notification of Congress, the House Judiciary Committee, and the President. Formal communication (on record) has now been delivered to US Senator Elizabeth Warren (D-MA) and Congresswoman Niki Tsongas (D-MA) requesting their immediate assistance with bringing this matter to the attention of Congress. STATEMENT OF ISSUES 1. ‘Whether the District Court failed to assist the Appellant with the appointment of counsel and other requested injunctive relief? XN Whether Appellees/Defendants failed to file opposition to Fraud on the Court Claims? 3. Whether the District Court failed to (at minimum) correctly address the evidenced Fraud on the Court claim(s) under Fed. R. Civ. P. 60(b)(3)? 4, Whether the District Court failed to address the Appellant’s claims regarding the Misappropriation of Trade Secrets and Economic ' The referenced NINE (9) officers of the Court include: US District Court Judge’s - Allison Dale Burroughs, Chief Judge Joseph N. Laplante (NH), Judge John J. McConnell, Jr. (RI), and Judge John David Levy (ME), First Circuit Judges - Juan R, Torruella, William J. Kayatta, Jr., David J. Barron, O. Rogerice Thompson and Chief Justice Jeffrey R. Howard. 8Espionage pursuant to 18 U.S. Code § 1832, and its resulting impact to National Security? 5. Whether the District Court improperly dismissed the Appellant's complaint? 6. Whether the RECUSAL of Judge Burroughs in the related complaint impacts this Appeal, Dismissal Order, and all related Orders/Judgements? STATEMENT OF THE CASE The Appellant, Mohan A. Harihar, addresses the District Court’s abuse of discretion and wrongful dismissal of his complaint seeking: (1) Damages resulting from his identified illegal foreclosure, including the recovery of his property, (2) Damages resulting from the Misappropriation to his Intellectual Property — also considered a Trade Secret(s) protected under the Economic Espionage Act, (3) Professional accountability including (but not limited to) licensure revocation and disbarment, where applicable, and (4) Criminal accountability for related criminal offenses, including (but not limited to fraud). On July 3, 2016, the Appellant filed with District Court a motion which included Fraud on the Court claims pursuant to Fed. R. Civ, P. 60(b)(3) against ALL Appellees/Defendants. NO opposition by ANY party was ever filed, and the judge’s order of denial failed to even address the Fed. R. Civ. P. 60(b)(3) claim. Since thattime, requests for Judge Burroughs’ recusal per 28 U.S.C. §455(a), AND 28 U.S.C. § 144 were denied (twice), and repeated efforts to address Fraud on the Court Claims continued to be ignored. If there was ANY question regarding the validity of the Rule 60(b) claim, Appellees and Defendants had nearly one year to ADDRESS, DEFEND, or DENY such claims. They DID NOT, as is clearly reflected within the record, STATEMENT OF FACTS Per Fed. R. Civ. Proc. Rule 60(b)(3) - fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party. “That cheaters should not be allowed to prosper has long been central to the moral fabric of our society and one of the underpinnings of our legal system.” The basic standards governing fraud on the court are reasonably straightforward. As set forth in Cox v. Burke, 706 So. 2d 43, 47 (Fla. Sth DCA 1998): The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the ? Florida Bar Journal, February, 2004 Volume LXXVIII, No. 2, p.16 10presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (Ist Cir. 1989)... Fraud on the court as described in Cox typically refers to substantive, not procedural, misconduct. The same is true here as it pertains to clear title. ALL fourteen (14) Appellees/Defendants were aware that clear title did not exist with Mr. Harihar’s Property and collectively participated in a scheme to defraud the him of HIS HOMESTEAD. The Court is well aware that this is not an isolated incident. The Appellant is able to conservatively provide 4.2 million other examples of this scheme, as described by the United States Department of Justice (DOJ) and Federal Bank Regulators. A summary overview of the scheme begins with the RMBS Trust which, as detailed in the Appellant’s filed opposition, has no legal standing to Mr. Harihar’s property. Every action following is impacted and therefore is moot/void: ranging from collecting monthly mortgage payments, to foreclosure, resale, etc... As previously detailed, ALL Appellees/Defendants have benefited from the alleged scheme against the Mr. Harihar, either personally or financially; Litigation privilege should not apply when there is no legal standing, nor should sovereign immunity. The Defendant Trust, Bank Defendants, attorney and law firm Defendants, Defendant Real Estate Brokers and Defendant Homebuyers have benefitted financially from the alleged scheme ~ when they had no legal standing to do so; resulting in severe detriment to Mr. Harihar. The Appellant believes the Commonwealth, the uyDepartment of Justice, and the Federal Judiciary have refused to prosecute and correct erred judgments (at minimum) out of fear of setting a precedent for the Nation. Regardless, their failure to hold parties accountable is unacceptable. Allowing this evidenced misconduct to continue without consequence threatens the well-being of this Nation. As a general proposition, substantive misconduct provides grounds for default with prejudice because it more clearly and directly subverts the judicial process (Bulloch v. United States). The Appellant/Plaintiff had respectfully called for the District Court to schedule the required evidentiary hearing to determine whether the conduct forming the basis for Defendant default was willful or done in bad faith or was deliberate and in contumacious disregard of the court’s authority. Not a single piece of opposition is on record by any Appellee/Defendant, and the District Court has continuously ignored the claim(s) as if never mentioned. SUMMARY OF ARGUMENT While the PRIMARY argument of the Appellant’s brief focuses on the Fraud on the Court Claim(s), the collective pieces of the EVIDENCED argument portray a far greater scheme (alleged). The Court is respectfully reminded, that the Appellant's Foreclosure, is one (1) of 4.2M illegal foreclosures associated with this Nation’s Foreclosure Crisis, and as identified by the Department of Justice, Commonwealth of Massachusetts, and Federal Bank Regulators. The US Foreclosure Crisis is 2considered by many to be the LARGEST CASE OF FRAUD IN THE HISTORY OF THE UNITED STATES. The financial risk associated with the crisis has been estimated as high as $60T (Trillion). Although there have been National Settlements — ex. The $25B National Mortgage Settlement (in conjunction with 49 State Attorneys’ General), the $8B settlement involving Federal Bank Regulators, and others, those who have been damaged most - THE ILLEGALLY FORECLOSED HOMEOWNER, has received the least in financial compensation. In most cases, LESS THAN $2000, after losing their home, and much more. While these foreclosed homeowners are allowed by law to pursue additional damages, the majority (including this Appellant) do not have the financial resources to retain counsel — never mind for an indefinite period of time. The majority also do not have the legal knowledge, resources or time to consider pursuing legal action as a pro se litigant. For those who attempt to do so, it is widely considered an IMPOSSIBLE (or highly improbable) task. The Banking industry knows it, the Government knows it, Real Estate Professionals know it, and most Americans know it. IF EVER, there were to be a case that helps to better close the gap in damages to the illegally foreclosed homeowner, that precedent would have substantial impact to this Nation. For example, if you have a pool of 4.2M illegally foreclosed homeowners, and each of those homeowners decided to bring a lawsuit supported by precedent, there would likely be an increased trend of new legal actions filed in both state and federal courts. If the average lawsuit seeks $1M in damages, the total risk becomes $4.2T(Trillion).Now comes the Appellant, Mohan A. Harihar, who after spending over 4 years addressing this matter at the state level, brings a new complaint (with merit) to the US District Court, and an argument that warrants the Court’s the assistance with the appointment of counsel. If the Court rightfully assists with the appointment of counsel, pursuant to 28 U.S.C. § 1915, the risk of setting precedent is increased substantially. Therefore, judges have apparently taken it upon themselves to ensure that does not happen, to the extent of breaking their judicial oath to do so, including acts of treason, as evidenced. Along with denying counsel, other injunctive relief is also denied without cause, ensuring greater imbalance of hardship, weighing heavily in favor of the Appellant. Next, after reviewing the content of Appellees/Defendants Motions to Dismiss, the Appellant brings evidenced Fraud on the Court claims, where not only is there no opposition filed, but the Court ignores the claim(s) as if never mentioned, suggesting the possibility (at minimum) of collusion between the Court and Appellees/Defendants. Despite continuous efforts to address Fed. R. Civ. P. 60(b)(3), ALL parties ~ the District Court, and this Appeals Court have completely ignored the claim(s). Now, Appellees/Defendants are prohibited by law to address an unopposed claim on appeal. Adding now to the substantive nature of the Appellant’s claim is the damage to his Intellectual Property (IP) — an economic framework designed to assist The United 14States and Illegally Foreclosed Homeowners with repairing damages suffered from the US Foreclosure Crisis. The IP, referred to as the HARIHAR FCS Model, has merit, having been successfully presented to multiple parties (including, but not limited to) the Congressional offices of both US Senator Elizabeth Warren (D- MA) *, US Congresswoman Niki Tsongas (D-MA)‘, Deputy Chief Counsel (former) of the House Financial Services Committee — Gail Laster (D-MA), and the Executive Office of the President (EOP) (under the Obama Administration) — per the specific request of Vice President Joe Biden. Successfully implemented, the FCS model is designed to conservatively deliver over SST of economic growth to the US, without the need of ANY new legislation, or a single US tax dollar to implement. It will additionally help to bring substantial assistance to those who have suffered greatly from illegal foreclosure. The IP is therefore considered a TRADE SECRET, where the Misappropriation of a Trade Secret is protected under the Economic Espionage Act, 18 U.S. Code § 1832. Both Appellees/Defendants as well as the Court have COMPLETELY IGNORED these claims entirely. THEREFORE, as with the Fraud on the Court claims, Appellees/Defendants HAVE NO DEFENSE to address claims of Economic Espionage in an Appellee/Defendant Brief. * The FCS Model was successfully presented to Senior Economic Advisor — Bruno Freitas. ‘The FCS Model was successfully presented to Director (former) — Brian Martin. 15For the reasons exemplified here in this summary, in the rest of this Appellant Brief and throughout the record, there are numerous examples that show specifically how the District Court improperly dismissed the Appellant's complaint. Now, in the related filed complaint - HARIHAR v. THE UNITED STATES, Docket No. 17-cv- 11109, the same presiding Judge — Allison Dale Burroughs, has recently RECUSED herself for the SAME EXACT REASONS that warranted recusal here. Her recusal now certainly impacts ALL related orders/judgments, rendering them VOID, and thus certainly impacting this Appeal. There is now heightened concern regarding unnecessary judicial delay within the District Court to initiate corrective action following recusal. Taking shape now is what appears to be a grand scheme of historic proportion to prevent illegally foreclosed homeowners from recovering damages, and that prevents the implementation of an economic framework that would certainly bring historic growth to this Nation (CDR Creances $.A.S. v Cohen). Evidenced concern extends beyond the Federal Judiciary. ~ Legislators who have been outspoken about the corruption within Wall Street, have been silent here, and the DOJ is on record as saying they will not prosecute evidenced crimes committed against this American Citizen. The Appellant’s official requests for the Appointment of a Special Prosecutor, Assembly of a Grand Jury, and a FULL ~ criminal investigation has also been seemingly ignored. As an AMERICAN CITIZEN, that’s UNACCEPTABLE. 16STANDARD OF REVIEW The evidentiary standard applied by the federal courts is sufficient to protect the integrity of our judicial system, and discourage the type of egregious and purposeful conduct designed to undermine the truth-seeking function of the courts, and impede a party's efforts to pursue a claim or defense. In order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending “party has acted knowingly in an attempt to hinder the fact finder’s fair adjudication of the case and his adversary's defense of the action” (McMunn, 191 F Supp 2d at 445, citing Skywark v. Isaacson, 1999 WL 1489038, *14 [SD N.Y. Oct. 14, 1999, No. 96 CIV. 2815(JFK) ] affd 2000 WL 145465, *1 [SD N.Y. Feb. 9, 2000). A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns “issues that are central to the truth-finding process” (McMunn, 191 F Supp 2d at 445). Essentially, fraud upon the court requires a showing that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense (McMunn, 191 F Supp 2d at 445, quoting Aoude, 892 F.2d at 1118] ). A finding of fraud on the court may warrant termination of the proceedings in the non- 7offending party's favor (see e.g. McMunn, 191 F Supp 2d at 462 [*[defendant] deserves harsh sanction of dismissal”]; Shangold, 2006 WL 71672, at *5 [plaintiff's fabrication of evidence warrants dismissal]; Hargrove v. Riley, 2007 WL 389003, *11 [same]; DAG Jewish Directories, 2010 WL 3219292, at *5 [same] ). For “when a party lies to the court and [its] adversary intentionally, repeatedly, and about issues central to the truth-finding process, it can fairly be said that [the party] has forfeited [the] right to have [the] claim decided on the merits” (McMunn, 191 F Supp 2d at 445). Therefore, once a court concludes that clear and convincing evidence establishes fraud on the court, it may strike a pleading and enter a default judgment. ARGUMENT I. THE DISTRICT COURT FAILED TO ASSIST THE APPELLANT. WITH THE APPOINTMENT OF COUNSEL AND OTHER INJUNCTIVE RELIEF In the lower Court, the Appellant consistently made clear that he is not an attorney and has no legal background. The factually supported issues involved are CLEARLY too complex for the Appellant to present entirely without the assistance of experienced legal counsel. Experienced legal expertise is required in a number of areas including (at minimum): a, Treason allegations, and potential impact to National Security; b. Misprision (of Treason, and of a Felony), 18 U.S. Code § 2382, 18 U.S. Code §4n. o. Fraud on the Court (Judicial and Defendant); Misappropriation of Intellectual Property Rights and Economic Espionage; Historical litigation pertaining to the US Foreclosure Crisis; Securities Fraud - specifically referencing (but not limited to) Residential Mortgage-Backed Securities (RMBS) associated with the US Foreclosure Crisis; Real Estate/Foreclosure Law Litigation involving State and Federal Government US District Court Trial Court Litigation Appellate Court Litigation Judicial Misconduct Violations to Due Process Color of Law Violations Civil Conspiracy Claims Federal Tort Claims It is completely UNREALISTIC to expect ANY pro se litigant to successfully litigate this matter in its entirety, considering the number of complex subjects requiring legal expertise. Also, when the Commonwealth (AND the United States) are in reality — two (2) of the opposing parties (as is the case here) and when the interests of the indigent litigant, although not involving his personal liberty, are fundamental and compelling, due process and fundamental fairness require a presumption in favor of appointed counsel. 19