MacArthur Controlled Formosa Under CINCPAC

8/4/2019 MacArthur Controlled Formosa Under CINCPAC

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA

TCRLOV. Civ. No. 10-00362 JW

KMTBMC

Nonparty Memorandum conforming to Civil Local Rule 7-4 in

opposition to dismissal of the Amended Complaint for failure to state

a Claim and MOTION TO JUDGE WARE TO SUPPLEMENT HEARING

RECORD NOTING THE KMT CONTROLLED THE SECRET POLICE AND

MILITARY POLICE FORCES ON FORMOSA AND SUPERIOR COMMAND

RESPONSIBILITY OF CINCPAC OVER THE FORCES ON FORMOSA

Equitable tolling is proper because the KMT triad criminal

racketeering organization extensively engages in activities in the

District, such as murder for hire to the United States Army Military

Police on Formosa (allied UN military government Chinese member

occupation forces Military Intelligence Bureau, Liu v. Republic of

China,642 F.Supp. 297 (N.D.Cal.1986).), and the KMT Secretary General

(ex officio Chair of the KMTBMC) ordered a treason trial against Dr.

Roger CS Lin and unindicted co-conspirator Dr. Jonathon Levy

(www.economist.com/node/14710808 ). The same triad is currently

trying to evict a 90 year old early dementia widow whose husband

was trained by the CIA in the 1950s and settled on Formosa on

property provided by the authorities who built with his own funds

a home thereon, said eviction being premised on a legislative

takings provision enacted belatedly by forty years claiming it

improper for the life estate holders to lease any portion of their ownhomes to others.

Usually the US Army handles occupation public security on its own,

but on Formosa, the US relies on sutlers or free Chinese refugee

mercenaries or other members of the KMT triad organization.

The Courts order, docket item 40, claims Plaintiffs putative cause

of action for quasi-contract appears to be barred by the statute of

limitations for that claim. The order tellingly does not purport toexplain any factual basis in the record for a date certain on which
http://www.economist.com/node/14710808http://www.economist.com/node/14710808http://www.economist.com/node/14710808http://www.economist.com/node/14710808http://www.economist.com/node/14710808


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the Court believes the bell began tolling for assertion of the claims.

In Doe v Siddigi (09/12/2011 Civil Action No. 2010-1256

DOE v. SIDDIG et alDoc No.39(memorandum opinion)

by Judge Colleen Kollar-Kotelly

09/12/2011 Civil Action No. 2010-1256

DOE v. SIDDIG et al

Doc No.39(memorandum opinion)

by Judge Colleen Kollar-Kotelly

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-

39 adduced enough factual content to render her equitable tolling

argument sufficiently plausible to allow her to proceed to discovery.

See Jones v Rogers Mem'l Hospital, 442 F.2d 773, 775 (DC Cir 1971)

(per curiam) noting the statute of limitations is an affirmative

defense that should not be decided on a motion to dismisss unless it

is clear that plaintiff is not entitled to relief; Supermail Cargo Inc v

US, 68 F3d 1204, 1206 (9th Cir 1995) noting that because the

applicability of the doctrine of equitable tolling often depends on

matters outside the pleadings, it is not generally amenable to

resolution of a motion to dismisss.

Indeed, as Doe correctly observes, several courts have found the

sort of factual allegations raised by Due sufficient to invoke the

doctrine of equitable tolling. See, eg, Hernandez v Attisha, 2010 WL

8161660 at 1, 4-5 (SD Cal March 5, 2010); Deressa v Gobena 2006

WL 335629 at 1, 3-5 (ED Va Feb 13, 2006); Wallace v Kato, 549 US

384, 389 (2007).), the US District Court in the congressionally

controlled District of Columbia, excluded from equal participation

through representation with a member in Congress, because the

residents are mostly of African American heritage and democrats,

held that equitable tolling was permitted, and that for some claims,

the tolling of the statute of limitations would date from a date

certain established on the basis of facts averred in the pleadings

before the Court on the motion pending. The threat of official acts ofrepression or retribution were deemed sufficient to have warranted

equitable tolling and to have constituted factual legal bases for false

imprisonment claims. Many of the TCRLO class remain involuntarily

held on Formosa, and have false imprisonment claims (see Shen v.

Daly, 222 F.3d 472 (8th Cir. 2000).) as they cannot leave the island as

citizens of the island of Taiwan (like Guamanians or Puerto Ricans

could), but must carry the allied UN military government travel

document laissez passer self-styled ROC Taiwan passport to exit
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1256-39


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from the island [SWNCC SFE 107 reposes travel control authority in

the US military governor for Formosa, SCAP terminated the Japanese

ability to issue passports for her Formosan nationals (SCAPINs) and

from 1949 October the allied UN Chinese member began issuingpassports for Formosan islander/inhabitants(email communication to

Intervenor from Ministry of Foreign Affairs unit responsible for

protection of Japanese on Formosa and conduct of relations as such

exist with Japan by the allied UN Chinese member authorities on

Formosa ad interim)].

The Court also held: See Eitel v. McCool, 782 F.2d 1470, 1471-72

(9th Cir. 1986) (explaining that in considering whether to grant

default judgment, the Court must consider the sufficiency of

plaintiffs complaint); see also Cripps v. Life Ins. Co. of N. Am., 980

F.2d 1261, 1267 (9th Cir. 1992) (citation omitted) (explaining that

necessary facts not contained in the pleadings, and claims which

are

legally insufficient, are not established by default).

A court may act on its own initiative to note the inadequacy of a

complaint and dismiss it for failure to state a claim. Wong v. Bell,

642 F.2d 359, 361 (9th Cir. 1981).

But the Court should note that Wong v Bell related to admission to

the US, and standing and venue issues relating to Fed.R.Civ.P. 12(b)

(6). Those legal principles, facts, and issues do not have any relation

to the immediate causes of action in equity for conversion and

breach of trust or quasi-contract.

Moreover in Wong the Court admitted its standing decision could be

wrong, citing, United States ex rel. Garcia v. McAninch, 435 F.Supp.

240, 243 (E.D.N.Y.1977) (wife has standing to complain of non-

admission of husband).

Plaintiffs have accordingly failed to state a claim upon which relief

can be granted. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682

(9th Cir. 1980). Their suit is therefore subject to dismissal underFed.R.Civ.P. 12(b)(6).


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A trial court may act on its own initiative to note the inadequacy of a

complaint and dismiss it for failure to state a claim, 5 C. Wright & A.

Miller, Federal Practice and Procedure, 1357 at 593 (1969), but thecourt must give notice of its sua sponte intention to invoke Rule

12(b)(6) and afford plaintiffs "an opportunity to at least submit a

written memorandum in opposition to such motion," Crawford v.

Bell, 599 F.2d 890, 893 (9th Cir. 1979), quoting Potter v. McCall, 433

F.2d 1087, 1088 (9th Cir. 1970).

The Eitel court held the: Factors which may be considered by courts

in exercising discretion as to the entry of a default judgment

include: (1) the possibility of prejudice to the plaintiff, (2) the merits

of plaintiff's substantive claim, (3) the sufficiency of the complaint,

(4) the sum of money at stake in the action; (5) the possibility of a

dispute concerning material facts; (6) whether the default was due

to excusable neglect, and (7) the strong policy underlying the

Federal Rules of Civil Procedure favoring decisions on the merits. 6

Moore's Federal Practice p 55-05, at 55-24 to 55-26.

Yet here the District has explained only one of the seven factors

affecting her discretion, to the utter neglect of the others. Moreover

the Court can proceed to a bench trial for determine the merits of

the case, rather than decline to provide a default judgment.

Additionally, Eitel is legal malpractice case, and combined with the

Courts admonishment of counsel that they lack standing to appear,

appears to imply that the Court believes the clients in interest asplaintiffs, TCRLO, may have claims for malpractice against their

counsel for failure to have first read the local civil rules, etc.

That the Court sua sponte reviewed whether counsel were members

of the bar of the Northern District reveals an odd zeal among the

Court in this matter.

Cripps is a quasi-probate action for prior spouses of an estate

property right or claim, thus providing another useful family lawanalogy for the status of Formosa, Formosans and the various


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international claimants in their historic and cultural affinities and

relations to the island and her peoples through the conceptual

metaphors of nationality (individual (national) to country (nation),

femes covert feudal law doctrine of covertage unity of spousalidentity (husband and wife merge into a single legal personality)

recently condemned by the Ninth Circuit in the Singh decision).

In reviewing a default judgment, this court must take the well-

pleaded factual allegations of Cynthia's cross-complaint as true.

Benny v. Pipes, 799 F.2d 489, 495 (9th Cir.1986) cert. denied, 484

U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). However, necessary

facts not contained in the pleadings, and claims which are legally

insufficient, are not established by default. Danning v. Lavine, 572

F.2d 1386, 1388 (9th Cir.1978); accord 6 J. Moore, Moore's Federal

Practice p 55.03, at 55-20 to 21 (1992). Thus, Susan may prevail on

the merits if she can demonstrate that, taking the facts alleged in

the pleadings as true, Cynthia was not entitled to relief. See Alan

Neuman Productions v. Albright, 862 F.2d 1388, 1392-93 (9th

Cir.1988) (reversing default judgment for plaintiff on RICO claims

because the complaint failed properly to allege such claims), cert.

denied, 493 U.S. 858, 110 S.Ct. 168, 107 L.Ed.2d 124 (1989).

Here the Court has not alleged any facts from the pleadings to

support her discretionary basis for a conclusion that the statute of

limitations has ever even begun to toll, let alone the date certain.

Lavine is a bankruptcy Trustee proceeding using her maiden name

for breach of trust, and thus also provides a useful analogy no doubtfor the status of Formosa issues involved.

Lavine also involved a fraudulent conveyance or a voidable

preference, concepts analogous to the claims presented herein.

Your putative prospective intervenor thus prays the Court

acknowledge:

1. Equitable tolling is due because the KMT triad organizationcontinues to control the Military Police on Formosa, through the


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KMT branches assigned specifically to the military law

enforcement branches on Formosa, noting that counsel Dr. Levy

was implicitly charged with treason by the defendants Secretary

General, and other improper harassment by the defendantsduring the proceedings. Defendants continue to control archives

of documents in secret which amply reveal their massive

breaches of trust, conversion and quasi-contract causes of action

in this district. The KMT party apparatus on Formosa seized more

than 300,000 private Japanese estates and homes contrary to

the Third amendment, and confiscated ALL Japanese property on

the island, then laundered the proceeds through gold yuan

related transactions in Hong Kong etcetera, reinvesting the

hundreds of millions of dollars and indeed billions in proceeds in

the Northern District of California in real estate, businesses, the

Far Eastern National Bank, etc. Claimants have simply not been

free to pursue their claims in the District until President Obama

by US military government directive from the White House

intervened to direct the Taiwan High Court prosecutors on

Formosa to issue nolle prosecui letters to Dr. Roger CS Lin of the

Taiwan Civil Government organization terminating the

prosecution for treason (Duarte v Dade), and similar directives

from the White House to the Taipei District Court prosecutors in

the matter of prosection of claims for recoupment of city

councilor wages and benefits for many years service by Dr.

Ching-An Lee, a naturalized US citizen born to Chinese refugees

resettled on Formosa, under the de facto official doctrines of

Nguyen v US from the Ninth Circuit. Dr. Levy cannot even freely

visit Formosa, as he has not received a nolle prosecui, and his

client Shuibian Chen, though apparently in receipt of a nolleprosecui, nevertheless remains in custody, and the prosecutors

and KMT certainly could reassert their treason charges against

Dr. Levy even though Dr. Lin and former President Chen have

seen the charges against them alleviated administratively.

2. The US has publicly only stated that Formosa is territory

detached from Japan incident our conquest in the Pacific theater

in the second world war, the future disposition of which remains

for international settlement. But to the Republic of China(Taiwan) authorities, the PRC through the then USSR, and all


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allied victors on the Far East Commission, the US by Aide

Memoire, in travaux preparatoires for the Treaty of Peace at San

Francisco with Japan, October 25, 1950 provided that the US was

Administering Authority for the entrusted territories detachedfrom Japan in the islands of Formosa and the Pescadores

consonant the duties of the US under UN Charter Article 73, and

other precatory national responsibilities. Thus, plaintiffs have

been at all times, including the present, denied the public

admission and notice from the US of the special relations existing

for superior command responsibility to the allied victors

occupation of the formerly Japanese relinquished territory

detached from Japan incident the Principal Victors directives

therefor (SCAPIN 677, JCS 1651, SCAP Gen. Order One, JCS

1381/15).

3. We appreciate the Court finding that the causes of action are

sufficient if equitable tolling applies, and holding that there are

no bars to justiciability other than statute of limitations issues.

This holding amply shows that intervenor and Plaintiffs

complaints to the Court have been deemed wholly meritorious in

all respects other than whether the applicable statute of

limitations doctrine for quasi-contract claims shall bar

adjudication in the Courts nearly unfettered discretion. The Court

however in its order at docket item 40 identifies no date certain

on which the Court alleges the statute of limitations began to toll,

nor how long the statute of limitations is alleged to have run, nor

on what basis, so it is impossible, quite literally, to respond to the

unfounded assertion in the order that an unidentified period for a

statute of limitations has begun to toll from an unknown time and

date, and has run its course since an unknown date, for the Courthas provided no rationale for its apparently arbitrary

determination. The authorities on Formosa maintain that the gold

yuan bond obligations remain valid and current, and thus by

judicial notice, this Court can deem no statute of limitations to

have run, while also holding the obligations in fact defaulted

upon and justly, now due.

4. The US remains in command and control on Formosa, never

having relinquished our Principal Victor unsatisfied interest orclaims to the ultimate disposition thereon, and having fully


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operationally integrated the local forces in defense thereon with

PACOM.

http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254

v14p1.p0248&q1=department%20of

%20defense&q2=liaison&q3=formosa

For background, Major Briggs commenced by showing me a copy of

a top secret telegram from CINCFE (as I recall, dated March 8) 1 in

which General MacArthur expressed for the information of Defense

his frank views on the subject of Formosa advisory personnel. To my

knowledge this telegram was never distributed to the Department

(Major Briggs remarked that this information was being furnished

me informally for background purposes only; under the

circumstances

I could, of course, take no notes regarding this telegram or

subsequent

remarks). General MacArthur concedes in this telegram that the

State Department and Minister Rankin have a legitimate interest in

MDA operations on Formosa, but adds that under the present cir-

cumstances (i.e., with Formosa under his military command and the

invasion threat increasing) he believes that there should be a direct

ch-ain of command through CINCFE to JCS with respect to Formosa,

military matters.2 General MacArthur then outlines his views re-

garding the complement for training land advisory personnel :for

the

island, to the best of my recollection, as follows:

http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?

type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p

2.p0362&q1=taiwan&q2=defense&q3=intelligence

United States Department of State / Foreign relations of the United

States, 1951. Korea and China (in two parts)

(1951)
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254v14p1.p0248&q1=department%20of%20defense&q2=liaison&q3=formosahttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254v14p1.p0248&q1=department%20of%20defense&q2=liaison&q3=formosahttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254v14p1.p0248&q1=department%20of%20defense&q2=liaison&q3=formosahttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254v14p1.p0248&q1=department%20of%20defense&q2=liaison&q3=formosahttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p2.p0362&q1=taiwan&q2=defense&q3=intelligencehttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p2.p0362&q1=taiwan&q2=defense&q3=intelligencehttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p2.p0362&q1=taiwan&q2=defense&q3=intelligencehttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254v14p1.p0248&q1=department%20of%20defense&q2=liaison&q3=formosahttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254v14p1.p0248&q1=department%20of%20defense&q2=liaison&q3=formosahttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254v14p1.p0248&q1=department%20of%20defense&q2=liaison&q3=formosahttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p2.p0362&q1=taiwan&q2=defense&q3=intelligencehttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p2.p0362&q1=taiwan&q2=defense&q3=intelligencehttp://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p2.p0362&q1=taiwan&q2=defense&q3=intelligence


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The China area, pp. 1474-2055 PDF (222.6 MB)

--------------------------------------------------------------------------------

Page 1820

of politics and privilege without running extreme risks of misuse,

waste, and corruption.

The political commissar system, at present, is the creature of

Gen-

eral Chiang Ching-kuo, the Generalissimo's son and Director of the

Political Department of the Ministry of National Defense. Formosa

does not have a unitary secret police system; it comprises the

political

commissars in the army, Chiang Ching-kuo agents other than the

commissars, the Peace Preservation Corps of General Peng Meng-

chi,"

the agents of the Ministry of Interior, the Generalissimo's own

body-

guards, etc., etc.....5 Chiang Ching-kuo, as Chairman of the

Kuomin-

tang Reform, Committee, has reduced the size of the Central Com-

mittee of .the PIarty from 238 to 20 and through this sensitive

point

exercises considerable indirect and semi-police influence. General

Chase has not set for himself the goal of reforming Formosa. How-

ever, the secret police, counter intelligence, informer, andcommissar

activities in the army constitute-according to both General Sun

Li-jen and General Chase-an almost insuperable barrier to the

achievement of good military discipline, high morale, and effective

combat potential.

To streamline a military establishment requires, of course, some

knowledge of its size and organization. One is impressed on

Formosaby the lack of good statistical information on its actual size. I heard


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estimates ranging from 350,000 to 800,000. General Chase has set

for

himself the target of training and equipping 600,000-and no more.

It should be mentioned, parenthetically, that Colonel Rector, Chiefof

the Air Section of MAAG, has been very well impressed by the suc-

cess of the Chinese Air Force in preserving its organization, main-

taining its records, and carrying out training operations. Its records

are exact and complete. Its commissions are well earned. There

are only

13 generals in the Air Force as a whole. He believes that the Air

Force

could -achieve peak combat efficiency in six to seven weeks after

the

arrival of fighter aircraft and within eight weeks after the arrival of

light bombers. The story of the army is very different. The MAAG

has persuaded the Ministry of National Defense to reduce from 12 to

10 the number of Chinese armies and from 38 to 21 the number of

Chinese divisions. This contraction of organization strength will re-

sult in the elimination of "paper" units and bring to full strength

units actually to be carried on the books. This organizational reform

is already taking place. The organizational reform, however, is, in

General Chase's opinion, merely a prerequisite of a reform in

military

thinking. The Chinese Communist army fighting in Korea is an

Lieutenant General Peng Meng-chi, Deputy Commander, Taiwan

Peace Preser-

vation Headquarters.

5Ellipsis in the source text.FOREIGN RELATIONS, 19 51, VOLUME VII

1820


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We also ask the Court permit intervention, jus tertii, since the pro

hac vice status of counsel for the class plaintiffs has not been

resolved: Further, the Court notes that neither of the attorneys for Plaintiffs appear

to be a member of the bar of the Northern District of California, while only one of the

attorneys is a member of the

State Bar of California. The Civil Local Rules of the Northern District of California

provide that only members of the bar of this Court may practice in this Court, and

only active members in good standing of the State Bar of California are eligible to be

members of the bar of this Court. See Civil L. R. 11-1. An attorney who is not a

member of the bar of this Court may, however, apply to appear

pro hac vice, which requires, inter alia, that such an attorney designate a member of

the bar of this Court as co-counsel. See id. 11-3. On or before September 23, 2011,

Plaintiffs counsel shall either rectify this issue or shall file a certification explaining

that one of Plaintiffs attorneys is, in fact, a member of the bar of this Court.

In light of this Order, the Court CONTINUES the hearing on Plaintiffs Motion for

Default Judgment from September 19, 2011 to October 3, 2011 at 9 a.m.

We hope this material will show that the Courts order regarding: In

particular, the Court finds that Plaintiffs putative cause of action for quasi-contract

appears to be barred by the statute of limitations for that claim. is indeed subject to

equitable tolling of the statute of limitations because the de jure status of the superior

command relations have only been recently more publicly reconfirmed by the US.

We hope the Court liberally permit us to intervene in relation to her order to: On or

before September 23, 2011, Plaintiffs shall file a written memorandum conforming to

Civil Local Rule 7-4 in opposition to dismissal of the Amended Complaint for failure

to state a claim., docketing this memorandum in response thereto.

Respectfully,

Dr. Paul Maas Risenhoover

Robin Hood

Tainan, allied American Formosa

[email protected]

Certificate of service by email to:

[email protected], [email protected],[email protected], "Jeff Geer" ,
mailto:[email protected]:[email protected]


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"Dr. Jonathan Levy" ,

[email protected], "Cheng Kuang Chen"

, [email protected], "RWH

(Taipei)" , "roger Lin", [email protected],

"pacom.foia.fct" ,

[email protected], [email protected], " ( DPP )"

, [email protected], "stantonwa"

, [email protected], "Zobel, James"

,

MacArthur Controlled Formosa Under CINCPAC

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