good morning may it please the court my name is harlan protests and i represent moving appellant frank look at mr the cashier who is eighty five years old and in failing health after twenty seven years behind bars six entry of an order recalling this court's mandate affirming his conviction this court has the power to issue such an order and the facts and circumstances as set forth are moving papers support issue is to have such an order let me explain why the case in our view presents two very simple questions was judge glasser required to recuse himself from hearing mr look asio case and what is the appropriate remedy for judge glass or his failure to do so if he was required to do so as detailed in our moving papers we respectfully submit that the answer to the first question is affirmative yes why because as required by well established second circuit law the lie gone case the affiliated m case and others in the second circuit any objective informed observer who is not a judge not someone associated with the judicial system an average man on the street for milieu with the facts would reasonably question cannot relieve the petitioner of the obligation to meet the criteria under section twenty two fifty five when a previous section twenty two thirty five motion has been filed and mandy presents the same arguments as presented in a prior twenty two fifty five you have to meet the requirements of the eighty d p but that's not the circumstances here and i set forth that very very clearly in our reply papers it's very clear in that case that and i'm happy to to to quote it for you but the it's very clear in that case that the appellant movement there presented to the same arguments the same facts that he had presented in the twenty to fifty five and that's why he did not qualify for a motion recall many of the issue of judge classers failure to disclose in this case has never been presented to any court and the reason it's never been presented to any court come to this court and ask for us to call the mandate in the original conviction why would we do that i don't believe that this will open i understand what your honor say i don't believe this will open the floodgates to that type of motion and the reason that the reason that we  what happens is the standards for a motion to recall amanda and this case presents the type of grave unforeseen circumstances for which a motion to recall a mandate which is inherently different from a twenty to fifty five and has its own standards and has its own case law this presents those circumstances and that's why we brought this as a motion to recall a mandate not as an application for a second or successive twenty to fifty five  would do nothing with respect to establish it doesn't i don't know since it wouldn't understand since i don't believe that it's either it's evidence in a traditional sense of evidence either so it doesn't fit within there but in any event as i was pointing out we believe that this is a standalone motion and stands on force as i was saying your arms we believe those two questions are an affirmative yes judge class or when he sat down to read the indictment for the first time and saw that one of the counts involved gambling in the state of connecticut that should have been flashing in neon lights in his face a very big category gambling community well it's  states attorney and he was an assistant united states attorney in the office that brought charges against a guy named anthony mcnally who also was charged with running gambling operations on behalf of the gambino crime family in the state of connecticut combination of all of those factors should have led judge glasser to do one of two things and he could have very easily resolved if he had simply disclosed the fact that he had a son who worked as an assistant u s attorney in the state of connecticut but he didn't do that in fact i believe although it's implicit in the heat of the case that judge me casey made that disclosure just like judge classer could have and that question was adjudicated in the heat of the case my client never had the opportunity to adjudicate that question because judge glasser never disclosed the fact that his son was in a usa in connecticut and i believe that if he had he would have the parties would have been presented with the opportunity to either challenge it or we have any  issues with regard to but now that we're twenty seven years on it is just recently come to the our attention that judge glasses should have made that we're here before this court asking this court to recall the mandated judge cares was on the original appeal  i know and ask him to recall the mandate based upon the fact that judge glasser did not make that disclosure and did not recuse himself and that rift converts all of a conviction is the very well established remedy for a failure of  judicial officer to recuse himself or make a disclosure like this in fact as i was sitting here and preparing for argument i was thinking judge cares about what it what the appellate panel would have done if this information had come to their attention right at the beginning if this  been part of the direct appeal and i was thinking that it's likely that the conviction would have been reversed and there's no reason that it should be any different today even though we're twenty seven years on because this information was affectively unknowable to any of the parties just glasser didn't disclose it and it was effectively unknowable to anybody and it is that combination of circumstances that creates the appearance of partiality upon which our motion is based upon which judge glasser should  have recused himself where the very least disclosed because as judge gleason said in a in a quote in an article there was nothing more important than the judge in the gotti case and if there was nothing more important to the government about then the judge then it was certainly nothing more important than the judge for the defense  sorry judge without a hearing in the district court as the defendant the defendant made that application the defendant's motion that we're considering today is based on newly raised assumptions and insinuations not new it's none of which comes close to suggesting the grave unforeseen or exceptional exceptional contingencies which would leave this court to consider recalling its mandate to permit defendant to avoid the gate keeping requirements of section twenty two fifty five on these facts would open the floodgates to similarly situated defendants to make nonmember torrijos mandi recall motions after the legally permissible post conviction avenues were foreclosed and this is precisely the kind of last ditch application that the aide was designed to protect against the defendant does not avail himself of the true safety valve or escape has long since closed where the outcome of a case the hat in this case a high ranking member of is convicted of crimes requiring a life sentence has long been settled and the series of post conviction this case would have required his class or to recuse himself because any average man on the street would would think so if if made aware of the circumstance that his son was in it as an assistant u s attorney in the district connecticut but that is precisely not the test it would the test would be under section four fifty five whether a reasonable person knowing all the facts and circumstances would make that would would determine that the judge's partiality would be called into question and here in order to do so requires a series of of assumptions that judge glass or son mr glasser would have had knowledge about a case that he was not assigned to and then would provided that information to the judge that is just simply not the case here one last point before i before i sit down mr protests indicates in his in his motion papers and again this morning that that there is no reason to for the defendant to to be considered under the section twenty two fifty five eight requirements but that's  because the same issues because these are not the same issues that were raised in the defendant's post conviction that occasions but that's that's precisely that's precisely wrong the only the only a political provisions that would per the defendant an opportunity to litigate this application would be the safe would be the the gatekeeping provisions of section twenty two fifty five which the defendant has indicated that he cannot meet in the us the court has any additional questions for me i will see the rest of my distinguishable these facts have never been presented to this court and mr look asio has never had an opportunity to have a court adjudicate this and i don't think there could be any more grave grave or circumstances than when a man is on trial for his life he received a life sentence of which he's done twenty seven years and he will die in prison there is nothing more grave than a life sentence thank you thank you very much we reserve decision