# Appendix — Shen v. T. D. Waterhouse Investor Service, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1335%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1049 ## Text —————— ) Supreme Court, U FILED Oh 381 JUL 1 - 2004 No. OFFICE OF THE CLERK IN THE Supreme Court Of United States De Shen Petitioner VS. T.D. Waterhouse Investor Service___ Respondent On Petition For Writ Of Certiorari To United States Court Of Appeals For The First Circuit APPENDICES FOR WRIT OF CERTIORARI De Shen. 11 Summer Ave Malden, MA 02148 (781) 324-3285 June 20, 2004 2 INDEX TO APPENDICES (1) Brief of Appellant (By Plaintiff, May 4, 2003) --- Page 5 (2) Brief for Defendant — Appellee\Cross — Appellant (July 28, 2003) --- Page 34 (3) Reply Brief of Plaintiff (Appellant\Cross — Appellee, Aug. 25, 2003) --- Page 62 (4) Plaintiff (Appellant/Cross — Appellee)’s MOTION On Punishing the Frauds Of the Defendant and NASD (Sep 29, 2003) --- Page 104 (5) Plaintiff (Appellant/Cross — Appellee)’s MOTION On Request to arrange Ms. Kelly Davis to testimony on this court (Nov. 3, 2003) --- Page 109 (6) Memorandum of TD Waterhouse Investor Services, Inc. in Opposition to De Shen’s Motion to Take the Testimony of Kelly Davis of the NASD (Nov. 24, 2003) --- Page 117 (7) Affidavit of Derek C. Anderson (Nov. 24, 2003) --- Page 121 (8) Plaintiff (Appellant/Cross — Appellee)’s MOTION On Request Double Penalty To The Defendant For Its Continually Telling Lie (Nov. 24, 2003) --- Page 123 (9) Plaintiff (Appellant/Cross — Appellee)’s MOTION On Requesting Further Double Penalty To The Defendant For It Hire Lawyers to Lie in Affidavit (Dec. 1, 2003) --- Page 129 (10) Judgment of US Court of Appeals (Feb. 5, 2004) --- Page 151 (11) Plaintiff (Appellant/Cross — Appellee)’s MOTION On Mistakes of Judgment of Feb. 5 2004 (Feb. 22, 2004) --- Page 152 (12) Court Order of US Court of Appeals (April 6, 2004) - -- Page 155 (13) Plaintiff (Appellant/Cross — Appellee)’s MOTION On 2nd Request the judges to answer the Basic Questions in Plaintiff's Feb. 22’s Motion (April 12, 2004) --- Page 157 (14) Plaintiff (Appellant/Cross — Appellee)’s MOTION On 3rd Request the judges to answer the Basic Questions in Plaintiff's Feb. 22’s Motion (April 26, 2004) --- Page 160 (15) Plaintiff (Appellant/Cross — Appellee)’s MOTION On 4th Request the judges to answer the Basic Questions in Plaintiff's Feb. 22’s Motion (May 23, 2004) --- Page 165 (16) Court Order of US Court of Appeals (June 18, 2004) - -- Page 171 APPENDICES 1 UNITED STATES COURT OF APPEALS FIRST CIRCUIT No. 03-1415 Plaintiff and Appellant: ) De Shen ) ) ) Trade Fraud on March 7, 2000. VS. ) : ) Civil Action No. 00-11190-WGY ) Appeal Action No. 03-1415 ) Defendant and Respondent: ) TD Waterhouse Investor Service, Inc) May 4, 2003 BRIEF OF APPELLANT On appeal from U.S. District Court, District of Massachusetts ; ORAL ARGUMENT REQUESTED APPEARANCES: EE ————— IV. Defendant to hide the unfair trading Data. It is because they have the “Umbrella” of “Arbitration is second-class justice”. With this “Umbrella”, No matter how many criminal actions they did, no one will punish them! However, people have to ask Mr. William Young: If you do not work hard to investigate each case, if you do not have talent to distinguish who is good, who is bad, who did criminal actions, if you do not uphold justice, do not punish the criminal actions, why people need to you? People need you is because Arbitration Result is NOT always correct, especially there is conflict interests involved. Unfair Arbitration result should be corrected by the Court. If our Mr. William Young does not correct those Arbitration Mistakes, then, our Mr. William Young is neglecting his duties. According to our Mr. William Young’s logic, then, the civil court will be the “first justice”. Hence, our Mr. William Young will be always right since he is the chief Judge in this court. Hence, there will be no need to have Appeal Court and Supreme Court. Fortunately, US People do not trust our Mr. William Young’s logic. Mr. William Young might make mistakes. Mr. William Young’s mistakes should be corrected by the Appeal Court and/or Supreme Court. Anyone should obey the law. Ms. Suzanne Green's Arbitration Management fraud should be punished. TD Water House’s trade fraud should be punished. Mr. William Young should study new law and uphold the new law. 27 Congress and Senate worked very hard to pass the new law on “Tough New Enforcement Initiatives for Reform on Corporate Responsibility”. The president of USA signed this new law and uses different opportunities to explain the new law to the people. Should Mr. William Young study hard about this new law? Should the Supreme Court of the United States request Mr. William Young to uphold this new law? If our judge Young does not study the new law, ignore those criminal behaviors which violating the new law passed by Congress and Senate, does not punish those criminal behaviors, should he think about whether he neglected his duty? CONCLUSION OF THE BRIEF (1) It is a mistake that Mr. William Young ignored that there were conflict interests if this case handled by NASD arbitration, and denied the Plaintiff's Motions of request to handle this case in the District Court. Conflict interests should be avoided. This case should be handled by the Federal District Court. (II) It isa mistake that Mr. William Young ignored that due to the conflict interests, the NASD fraudulently managed this arbitration, and confirmed the arbitration award. Mr. William Young should study the new law passed by the Congress and the Senate, signed by the President. Mr. William Young should be bound to uphold this rew law. The Arbitration Management Fraud should be punished. The Arbitration Award should be vacated. 28 4 (ill) (IV) Pe ee eet ee (V) NASD’s Arbitration Management Fraud should be punished. The minimum punishment should be $1,000,000.00. The Defendant (TD Water House Investor Service, Inc)’s Trade fraud, followed by its cheating customer, insult customer, cheating SEC, lie under OATH, etc should be punished. The minimum punishment should be $1,000,000.00. If the total punishment exceeded $1.000,000.00, as Promised. the Plaintiff is planning to use at least 80% of the awarded money to establish a non-profit fund, which will be used for the following purpose: (a) Promote High Education Organizations to utilize the most advance computer technologies, e.g. Academy Enterprise System, etc. (b) Promote Reporters, Security Workers, Lawyers and Judges to support world peace and justice. (c) Promote culture interchanges in this world so that people from different countries with different culture background can understand each other. (d) Promote Boston’s new construction and expansion. So that Boston will be one of the largest and the most famous cities in the world. 29 Addendum Table of Content 01. Court Transcript of Status Conference Nov. 14, 2000 A04 02. Court Ruling on Feb. 3, 2001 Motion July 2, 2001 According to the Honorable Judge Young's statement on July 2, 2001, the plaintiff seriously went through the arbitration with the defendant from July 26, 2001 to July 20, 2002. As predict, due to the conflict interest, NASD was unable to fairly make item-by- item judgment on this case. Justice judgment should base on fair examination of facts. However, the defendant rejected to provide the case related critical information again and again. I wonder, without that critical information, how the arbitrators can make any right decision. The plaintiff strongly requests the honorable judge to compel the defendant to provide the critical case related document requested by the plaintiff in the Plaintiff's “First Request For Document and Information to Defendant”. Justice judgment should base on the principle of “All People are created equal ". However, the defendant openly requested the arbitration panel to dismiss this case by race prejudice. And the result is just as the defendant's willing, the three arbitrators dismissed the Plaintiff's claim in the entirety without any reasoning: Count (8) which is directly associated with NASD was untouched; The defendant's failure to execule customer 's order was not punished; 78 The defendant's cheating and insulting customer was not punished: The defendant's cheating SEC was not punished; The defendant and its lawyer's lying under the oath were not punished; The defendant failed to provide case related critical information was not punished: The defendant's hiring lawyer to invade the Plaintiff's privacy was not punished: In general, the defendant successfully escaped from the justice judgment in the arbitration hearing due to the conflict interest. During the selecting arbitrators procedure, the administrator of NASD Arbitration, Ms. Green lied and unfairly composed a Panel, which is in favor of the defendant. After hearing, after many times of the plaintiff requesting on the hearing tapes, the administrator of NASD Arbitration, Ms. Green finally deliver to the plaintiff two copies of the hearing tapes, in which, there are many contents are missed. Some panel member's speech, which obviously bias in favor of the defendant, are erased from the tapes. Ms. Green might think that, by this way, she could help the defendant win the game. However, her IQ is too low! Her actions just like an old story — “A person put a slogan ‘There is no 300 once Silver here’ above the place where he hided 300 once Silver”. Without the Judgment in the court, Ms. Green’s action has already proved that this arbitration was unfairly processed by the arbitration panel. Until now, Ms. Green is still unwitting to provide the “Exact” copy of the original hearing tape. A copy of tapes edited by the NASD will 79 be present to this court. The plaintiff strongly requests the honorable judge to compel the NASD to provide exact copies of the original hearing tape to the Plaintiff and the court. On July 2, 2001, our Honorable Judge Young replied to the Plaintiff's motion: “ To reopen, this case must first proceed through arbitration. © The plaintiff hereby, present a motion, “Motion --- Plaintiff strongly request to re-open this case” to this court. The plaintiff pray to the Honorable Judge in this Court, in order to punish the defendant's series of wrong doing, this case should be reopened and the investigation about the defendant's illegal actions in this case should be handled by this Honorable Court. I sincerely pray to the Honorable Judge to provide justice judgments in this court on this case according to the Bill Of Right. File attached with this letter No. 20020816 —1 Motion, Plaintiff strongly request to re-open this case : No. 20020816-—2 Amendment of Arbitration Statement of Claim No. 20020816 — 3 Opening Statement No. 20020816 — 4 Response to Defendant's Motion to Compel Its Referenced Matter No. 20020816-—5 Respondent's Amended Statement of Answer No. 20020816 — 6 First Request For Document and Information to Defendant 80 No. 20020816 — 7 Respondent's Response to the Claimant's First Request for Production of Documents and Information No. 20020816 — 8 Respondent's Motion to Compel the production of Documents No. 20020816 — 9 Respondent's First Request for Document and Information to Claimant No. 20020816-—10 Evidence of Defendant Preventing Customer to Present Data to Honorable Judge in the Court No. 20020816-—11 Arbitration Causal Challenge No. 20020816-—12 NASD Associate VP's Cover Up Letter No. 20020816 -— 13 NASD Ms. Green S Award Information Letter No. 20020816-14 NASD Award Document No. 20020816-—15 Emails Regarding to the Hearing Tape If anyone read the Plaintiff's motion and the above cover letter of Aug. 16, 2002, he/she should immediately get the conclusion that this motion is for vacating the unfair arbitration award and request to reopen this case on the District Court. The Defendant mistakenly explained ‘the Federal Arbitration Act’. The Defendant should be punished for its mistakenly explanation of ‘the Federal Arbitration Act’. The Defendant lie on submission ranking form issue; The Defendant involved the fraud on selecting arbitration panel 8] On page 3 of the Defendant’s Brief, the Defendant wrote: “TD Waterhouse submitted its ranking of potential arbitrators within the time allowed by NASD DR rules.” The Defendant lied again on this issue. The deadline of submitting the Panel candidate list is Dec. 24, 2001. The Plaintiff selected the Panel list and submitted on Dec. 15, 2001. After the Dec. 24, 2001 deadline, the Plaintiff called Ms. Kelly Davis, asked her whether the Defendant (Respondent) had submit their arbitrator list on time. Ms. Kelly Davis informed me that NASD had not received the Defendant (Respondent)’s list yet. And she told me NASD would process on the arbitration panel list anyway without waiting for the Defendant (Respondent)’s list. The Plaintiff strongly request Ms. Kelly Davis to testimony on the court. Until today (Aug 25, 2003), Ms. Kelly Davis has not lied on this issue yet. On this issue, the NASD Arbitration Administrator Ms. Suzanne Green lied. On this issue, Ms. Elizabeth R. Clancy, the associate Vice President of NASD, lied. On this issue, Mr. Derek Anderson, the lawyer for the Defendant lied. Those liars lied during the Arbitration period. Some of those liars lied on the District Court. Their evil actions constituted the fraud mentioned on page 10-1! of the Plaintiff's “Brief of Appellant”. If the Honorable Judges in this US Court of Appeals are talent enough, this fraud should not be very 82 Ill. difficult to be verified. The Plaintiff request the Defendant commit its evil action on telling lies on this submission ranking form issue before the verification by the judges in this US Court of Appeal. If the Defendant does not commit its evil action on telling lies until the judges figured out the truth, then the penalty should be much higher then Defendant commits its evil actions earlier. The Defendant is failed to deny the arbitration hearing tape fraud The Defendant wrote on page 4-5 of its Brief: “De Shen complained to the NASD that he did not received all of the tapes (De Shen received three (3) tapes and claims that four (4) existed).” The above statement is not true. The truth is: Ms. Suzanne Green informed the Plaintiff that there are four hearing-tapes (after July 18, 2002). After the Plaintiff complained that some content on the arbitration hearing are missed on the copied and edited hearing tapes; And the copied and edited tapes are only three tapes, which is different with what Ms. Suzanne Green said before that there are total four hearing tapes; Only after then, Ms. Suzanne Green started to change her words and Start to claim that there are only three hearing tapes. The details are as following: After many times requesting for the arbitration hearing tapes, the Plaintiff received Ms. Suzanne Green’s message from the telephone answer machine. Ms. Suzanne Green informed the Plaintiff: “There are 83 total four hearing tapes. $15.00 for each tape. If you need two copies of the hearing tapes, you need to pay $120.00 before the tapes can be shipped to you.” The Plaintiff sent a Fleet Bank Money Order of $120.00 to NASD on July 27, 2002, quickly after received and confirmed Ms. Suzanne Green’s telephone message (See Appendix 16). If there are only three hearing tapes for this arbitration case, then: (1) Why after more than 30 days of the arbitration hearing, Ms. Suzanne Green informed the Plaintiff that there are four hearing tapes? (2) Why Ms. Suzanne Green informed the Plaintiff that the payment is $120.00? (3) Why Ms. Suzanne Green did not correct her ‘mistake’ after she received the Plaintiff's $120.00 payment before the Plaintiff complaint this issue on Aug 10, 2002 (Within more than 50 days of the Arbitration hearing)? (4) Has the $30.00 refund check from NASD on Aug. 12, 2002 (See Appendix 17) proved that there is inconsistency information provided by Ms. Suzanne Green? (5) Did Ms. Suzanne Green lie on “four tapes” version? Or did Ms. Suzanne Green lie on “three tapes” version? On both the Feb. 6, 2003’s district court hearing, and the Plaintiff's Brief, the Plaintiff mentioned that on the Arbitration hearing of June 20, 2002, ‘The Arbitrator Chair Richard D. Jordan openly protects the Defendant. He said loudly, “It is trade secret!” The Defendant neither denied this fact on the Feb. 6, 2003’s district court hearing. Nor denied this fact in 84 IV, Se ee eee the Defendant’s Brief. However, this Statement is erased from the hearing tape. Ms. Suzanne Green directed and involved the two arbitration management frauds. Her evi] actions has breached people’s trust and abused NASD’s power. The Plaintiff strongly request Ms. Suzanne Green and three arbitrators testimony on this Court. The Plaintiff would like to verify that whether those three arbitrators are liars or not. Conflict interest should be avoided; The Court Should uphold the Constitution; Derek Anderson openly denies the Constitution Should be punished. In the Defendant’s second argument, (page 10-12 of the Defendant’s Brief), the Defendant is trying to prove that “De Shen was bound by his TD Waterhouse new account application, which required him to arbitrate his dispute”. Yes. In most cases, the dispute between Parties should be arbitrated if there is an agreement according to Mr. pages, and list many cases. However, it proved nothing. Actually, the Plaintiff agreed with Mr. William Young’s order to g0 to Arbitration first on the Nov. 14, 2000’s District Court Conference (See Appendix 04). The critica] issue is: NASD cannot arbitrate itself! Conflict interest should be avoided! 85 After Nov. 14, 2000’s District Court Conference, when the Plaintiff preparing for the Arbitration Claim, the Plaintiff found that there is one issue, which will conduct the conflict interest if this case handled by NASD Arbitration (See count 8 of Appendix 05, Appendix 06, and Appendix 07). Just a few weeks after the Plaintiff submitted the “Market Recap” data to the District Court, the Defendant suddenly requested its customers to sign three new agreements (See Appendix 03). In each of the agreement, there is at least one place request customer do not submit Market Data to any other person or entity (See page 2 count 5, page 4 count 2, and page 7 line 12-14 of Appendix 03). Of cause, the “any other person and entity” includes the judges and the Courts. The Defendant’s purpose of these three agreements is to prevent its customers submitting critical case related data to the court. In the cover letter of these three new agreements, the Defendant wrote: “..., and National Association Securities Dealers (NASD) require that you accept their respective subscriber agreements before we can grant you continued access to webBroker, ...” (See Line 3-7, Page 1 of Appendix 03). These three agreements are the Defendant’s elaborately planned tricks. If you signed these three agreements, then you cannot submit “Market Recap” data to the Court. If you against these three agreements, then the Defendant will take advantage of this conflict interest issue in the NASD arbitration hearing. 86 On Feb. 3, 2001, the Plaintiff filed a motion, inform the Court that there is a conflict interest issue if this case handled by NASD arbitration (See count 7, 8, 9, Page 3 of Appendix 06). “On the Nov 14’s conference, our Honorable J udge Young suggests that the Plaintiff should go through Arbitration first. If the problems cannot be solved or the problems were not solved properly, then our Honorable Judge will accept to handle this case with justice in this court. The Plaintiff agreed to follow our Honorable Judge’s suggestion. The Plaintiff rewrote a Complaint for Arbitration (See Attached). However, after rewriting the Complaint, the Plaintiff discovered that there is a conflict interest if this case goes through arbitration. Mr. Sullivan informed me that I might bring arbitration before either the NASD or NYSE. The count 8 in the new Complaint document might be closely related to NASD and NYSE. With my understanding, NASD or NYSE cannot arbitrate itself since there is a conflict interest. Hence, the Plaintiff would like to present this point to our Honorable Judge. After considering avoiding the conflict interest, the Plaintiff strongly requests this case to be re-opened and to be handled directly through this court. I, hereby, pray to the Honorable J udge in this Court, in order to avoid the conflict interest, this case should be reopened and the investigation about the Defendant’s illegal actions in this case should be handled by this Honorable Court. I sincerely pray to the Honorable Judge to provide justice judgments in this court on this case according to the Bill Of Right. However, the Court denied this motion (See Appendix 07). The Plaintiff believes this ruling was incorrect. It is violated the Constitution. In the count 8 of the Plaintiff's Complaint, the Plaintiff pointed out that one NASD’s contract tries to prevent Defendant’s customer presenting valid data evidence to the honorable Judge in the court. NASD cannot arbitrate itself. The conflict interest should be avoided. With the conflict interest, the arbitration will be not fair. Further, Freedom of Speech is included in the Bill of Rights (the first ten amendments of US Constitution). According to the Bill of Rights, people should have the right to choose whether they want to handle their case by arbitration or by Court. Due to the Conflict Interest issue, NASD cannot arbitrate itself. The Plaintiff does believe that the Plaintiff has the right to chose solve this issue by the Court with juries. The Bill of Right grants and guarantees the Plaintiff's right. The Bill of Right is the most important authority. The Constitution is the most important authority. The Defendant denied the authority of the Bill of Right when the Defendant claims “De Shen offers no authority” (See the last line in Page 11 of the Defendant’s Brief). The Defendant denied that the US Constitution is most fundamental and important law when the Defendant claims “De Shen’s assertion fails as a matter of law.” (See second line in Page 12 of the Defendant’s Brief) The Plaintiff believes that this Court should uphold the US Constitution. Anyone who tries to 88 deny the Constitution should be seriously punished. As a lawyer, Mr. Derek Anderson openly denies the Constitution. The Plaintiff wonders whether Mr. Derek Anderson is qualified as a lawyer? Arbitration Management Fraud should be punished. (a) Fraud in organizing the Arbitration Panel The deadline of submitting the Panel candidate list is Dec. 24, 2001. The Plaintiff selected the Panel list and submitted on Dec. 15, 2001. One day (after Dec. 24, 2001, and before Feb.1, 2002) (In the document I sent to NASD, I mentioned Dec. 26, 2002, however, I might miss remember the exact date) the Plaintiff called Ms. Kelly Davis, asked her whether the Defendant (Respondent) had submit their arbitrator list on time. Ms. Kelly Davis informed me that NASD had not received the Defendant (Respondent)’s list yet. And she told me NASD would process on the arbitration panel list anyway without waiting for the Defendant (Respondent)’s list. If Ms. Kelly Davis’ statement is true, then, all the arbitrators should come from the Plaintiff selected arbitrator list. However, when the Plaintiff received the finalized arbitrator list of the Panel from Ms. Suzanne Green, the Plaintiff found that only Mr. Richard D. Jordan (4) was selected as the arbitrator of the Panel. 89 The Plaintiff called Ms. Suzanne Green to clarify what happened. Ms. Suzanne Green told the Plaintiff that the Defendant submitted their arbitrator list on Dec. 24, 2001. Since the result of the arbitration is critically depended by who is (are) arbitrator(s), the Plaintiff had to file causal challenge to request Ms. Suzanne Green to clarify the timing issue. However, one month passed, Ms. Suzanne Green still unable to clarify this issue. On a letter that the Plaintiff sent to the President of NASD. the Plaintiff wrote: “After one month that I asked Ms. Suzanne Green regarding to the Timing Issue on the Defendant’s submission of its selected Arbitrator List for the Panel, Ms. Suzanne Green is still unable to answer my simple question. Hence, I formally propose the investigation request on this issue to NASD Dispute Resolution, Inc. If Ms. Suzanne Green was cheating or lying on the Arbitration Job, she should not be qualified as an Arbitration Administrator on this case.” On March 26, 2002, Ms. Elizabeth R. Clancy, the associate Vice President of NASD, replied me a letter (See Appendix 10). In her letter, Ms. Clancy provided a third version of this timing: “Respondent’s ranking form was sent to us by facsimile, and received in our office on December Il, 2001, with an original copy arriving on December 12, 2001.” People have to ask Ms. Clancy, December II, 2001 was far away from December 24, 2001 90 deadline, overnight delivery is quite enough, why the Defendant send another copy by facsimile besides the overnight delivery? Is this just like an Old Story, “when completed drawing a beautiful picture ofa snake, appending legs to that snake”? Until now, who was lying, who was cover up, is still a riddle. The Plaintiff strongly believes that Ms. Kelly Davis was telling the truth at that moment. Until now, Ms. Kelly Davis has not lie yet. The Plaintiff request Ms. Kelly Davis to testimony on the court. If Ms. Kelly Davis could tell the truth on the court. the Plaintiff request the Court protect Ms. Kelly Davis, avoid the revenges from NASD. If she does not tell the truth on the court, then this issue will be covered up. The Plaintiff wonders whether the Court is talent enough to expose the truth. (b) Fraud on ‘Cooking’ Hearing Tape (Forgery is a Criminal Behavior) The Plaintiff received the hearing tape of the arbitration (NASD No. 01-03697) on Aug. 10, 2002. When the Plaintiff listen to the tape, the Plaintiff discovered that many content of the arbitration hearing are not in the tape. -~ On the arbitration, the arbitrators openly bias in favor of the Defendant. For example, when the Plaintiff asked the Defendant to provide detailed case related trade information to the Arbitration Panel. (Without those basic facts, the arbitration will be baseless.) The Arbitrator Chair Richard D. Jordan openly protects 9] Bae? the Defendant. He said loudly, “It is trade secret!” However, this statement is erased from the hearing tape. This is one fact that it proved the arbitration resolution is extremely unfair. (1) In the speech on explaining the new law passed by Congress and Senate “Tough New Enforcement Initiatives for Reform on Corporate Responsibility”, President Bush said: “We've learned of some business leaders obstructing justice, and misleading clients, falsifying records, business executives breaching the trust and abusing power.” Erase content from hearing tape is one type of “falsifying records”. And this type of forgery hearing tape is a criminal behavior. NASD arbitration administrator Ms. Suzanne Green should be punished on her bad behavior. Her bad behavior has breached the people’s trust and abused NASD’s power. (2) On the same speech, President Bush said: “Self-regulation is important, but it's not enough. Government cannot remove risk from investment - - I know that -- or chance from the market. But government can do more to promote transparency and ensure that risks are honest. And government can ensure that those who breach the trust of the American people are punished.” The arbitrators helped the Defendant to refuse providing critical case related trade information and to hide the true trade transaction data by claiming “It is Trade Secret”. The arbitrators’ action and the Defendant’s action are strictly against the law, which passed by Congress and Senate. Congress, Senate and President Bush ask to promote transparency. While the arbitrators’ action and the Defendant’s action are strictly going to the opposite direction. Their actions breached the trust of the American people. The Plaintiff believes that the court should act now to promote the data transparency and ensure the unfair and un-honest trade fraud is punished. (3) On the same speech, President Bush said: “Defrauding investors is a serious offense, and the punishment must be as serious as the crime.” The Plaintiff believes that the Defendant’s denying its mistake again, again and again should be seriously punished. When this case re-opened in the court, the minimum punishment should be $1,000,000.00. However, if the punishment reached or exceeded $1,000,000.00, the Plaintiff is planning to use at least 80% of the awarded money to establish a non-profit fund, which will be used for the following purpose: (a) Promote High Education Organizations to utilize the most advance computer technologies, e.g. Academy Enterprise System, etc. (b) Promote Reporters, Lawyers and Security Workers to support world peace and justice. (c) Promote culture interchanges in this world so that people from different countries with different culture background can understand each other. (d) Promote Boston’s new construction and expansion. So that Boston will be one of the largest and the most famous cities in the world. (4) On the same speech, President Bush said: “If more scandals are hiding in corporate America, we must find and expose them now, so we can begin rebuilding the confidence of our people and the momentum of our markets.” The Plaintiff believes that it is the time, on this court, to expose the Defendant’s trade fraud and NASD’s frauds on “cooking the hearing tape” and “forging the arbitration panel”. The Plaintiff respectively requests the court: (1) Order the NASD to provide the true copy of the hearing tape of the arbitration (NASD No. 01- 03697) to the Plaintiff and to this court (1) Order the Arbitrators and Ms. Green testimony in this Court (III) Order the Defendant to provide true transaction data (include Order type, Order Date, Order Price, and “whether that order is placed by Market Maker or Broker” appended to the Market Recap) to the Plaintiff and to this court. (IV) Help arranging Ms. Kelly Davis to testimony on the court. The Plaintiff believes that this court, as one part of the US government, has the guts and power to make the above orders. 94 VI. The Arbitration Award should be vacated. This case should be handled in the court with Juries. (A) Section 10 of Federal Arbitration Act Sec. 10. - Same; vacation; grounds; rehearing (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration - (1) Where the award was procured by corruption, fraud, or undue means. (2) Where there was evident partiality or corruption in the arbitrators, or either of them. | (3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any 95 other misbehavior by. which the rights of any party have been prejudiced. (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. (5) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators. (B) This case matched three criteria for vacating the award a. The unfair arbitration award is conducted and procured by these two frauds. During the Arbitration from July 26, 2001 to July 20, 2002, as predict, due to the conflict interest, there are two arbitration management frauds occurred. The Defendant involved the first fraud. And the Defendant is unable to deny the second fraud. The unfair arbitration 96 ; award is conducted and procured by these two frauds. b. The arbitrators are obviously partial to the Defendant. One evident partiality in Arbitrator is as following: When the Plaintiff Analyze on Failure to Execute Stock Order issue, the Defendant repeatedly claimed: “This is speculation”. One arbitrator (who sit near the Plaintiff side) chime in with the Defendant, he said: “We all know that!” The Defendant cannot deny this is one evident partiality! The most evident partiality to the Defendant is the Arbitration Result. The Defendant made so many mistakes; The Market Recap precisely indicated that it is Defendant’s mistake; The Defendant failed to provide the critical data to prove its own argument “Market orders receive execution priority”; all those facts should conduct an award, which should seriously punish the Defendant. However, the Arbitration Panel unfairly dismissed the Plaintiff's claim in the entirety. c. Justice judgment should base on fair examination of facts. The Market Recap (See Appendix 01) has clearly proved that it is the Defendant’s 97 ee mistake on “Failure to execute” in this case. The Defendant claimed in its “Respondents Statement of Answer”: “Market order receive execution priority” (Page 5 in Appellee’s Appendix, Also see Respondent’s amended statement of answer, page 37 of the Appellee’s Appendix, line 7). It is the Defendant’s burden to prove its point. In order to prove its point, the Defendant should prove that all the sell orders of those 170 transactions are Market orders. Hence the Defendant should provide true transaction data (include Order type, Order Date, Order Price, and “whether that order is placed by Market Maker or Broker” appended to the Market Recap). However, the Defendant rejected to provide this case related critical information again and again. I wonder, without that critical information, how the arbitrators can make any right decision. Under the Umbrella of the evident partiality arbitrators, until now, the Defendant failed to prove that all the sell orders of those 170 transactions are Market orders. And as long as one sell order of those 170 transactions is NOT Market order, the Defendant’s argument is automatically defeated. According to statistics theory, it is almost impossible that all the sell orders of those 170 transactions are Market orders. If the arbitrators understand statistics theory, they can reach the conclusion immediately that the Defendant is lying and the Defendant is responsible for the failure to execute the Plaintiff's order. If the arbitrators don’t understand the statistics theory, then they 98 should ask the Defendant to provide detailed information about the order type of the sell orders of those 170 transactions to get the right conclusion. Under the Umbrella of the evident partiality arbitrators, the Defendant has not provided the case related critical information (evidence pertinent and material to the controversy) until today. The Plaintiff strongly requests the Court compel the Defendant to provide the critical case related document requested by the Plaintiff in the Plaintiff's “First Request For Document and Information to Defendant”. d. Justice judgment should base on the principle of “All People are created equal”. However, the Defendant openly requested the arbitration panel to dismiss this case by race prejudice. And the result is just as the Defendant’s willing. The three arbitrators dismissed the Plaintiff's claim in the entirety without any reasoning: Count (8) which is directly associated with NASD was untouched; The Defendant’s failure to execute customer’s order was not punished; The Defendant’s cheating and insulting customer was not punished; The Defendant’s cheating SEC was not punished; The Defendant’s lying under the oath were not punished; 99 The Defendant failed to provide case related critical information was not punished; The Defendant’s invading the Plaintiff's privacy was not punished; In general, the Defendant successfully escaped from the justice judgment in the arbitration hearing due to the conflict interest. e. Fairness should be the basic principle for stock trading “First come, first serve” should be one of the basic rules for stock trading. The Plaintiff asked many experts on stock trading (include some arbitrators and lawyers) the following question: “If there are 10 same limit orders to sell 5000 shares stock XYZ at price $2.00, Person A placed order on Feb. 23, 2000, while others placed the same order on March 7, 2000. When Market bid price exceeded $2.00, which order should be executed first?” All the answer are same: “Person A’s order should be executed first because that order placed first.” Mr. William Young challenging this basic stock-trading rule on the hearing of Feb 6, 2003 is incorrect. f. Arbitration Result is NOT always correct Mr. William Young claimed, “Arbitration is second-class justice” ( Feb 6, 2003, Motion Hearing Transcript, Page 10, Line 25). According to this assumption, Mr. William Young blindly confirmed the Arbitration award. Now, I start to understand why Ms. Suzanne Green dares to forge the Arbitration Panel. Now, I start to understand why Ms. Suzanne Green dares to “cook” the Hearing Tape. Now, I start to understand why the Arbitrators dare to help the Defendant to hide the unfair trading Data. It is because they have the “Umbrella” of “Arbitration is second-class justice”. With this “Umbrella”, No matter how many criminal actions they did, no one will punish them! However, people have to ask Mr. William Young: If you do not work hard to investigate each case, if you do not have talent to distinguish who is good, who is bad, who did criminal actions, if you do not uphold justice, do not punish the criminal actions, why people need you? People need you is because Arbitration Result is NOT always correct, especially there is conflict interests involved. Unfair Arbitration result should be corrected by the Court. If our Mr. William - Young does not correct those Arbitration Mistakes, then, our Mr. William Young is neglecting his duties. According to our Mr. William Young’s logic, then, the civil court will be the “first justice”. Hence, our Mr. William Young will be always right since he is the chief Judge in this court. Hence, there will be no need to have Appeal Court and Supreme Court. Fortunately, US People do not trust our Mr. William Young’s 101 logic. Mr. William Young might make mistakes. Mr. William Young’s mistakes should be corrected by the Appeal Court and/or Supreme Court. Anyone should obey the law. Ms. Suzanne Green’s Arbitration Management frauds should be punished. TD Water House’s trade fraud should be punished. CONCLUSION OF THE REPLY BRIEF (I) Due to conflict interest, two frauds happened. The Defendant involved one fraud. The Defendant is unable to deny another fraud. Those two frauds conducted the unfair arbitration award. According to Section 10 of the Federal Arbitration Act, this unfair arbitration award should be vacated. This case should be reopened on the Court with Juries. (II) | NASD’s Arbitration Management Frauds should be punished. The minimum punishment should be $1,000,000.00. (III) |The Defendant (TD Water House Investor Service, Inc)’s Trade fraud, followed by its cheating customer, insult customer, cheating SEC, lie under OATH, etc should be punished. The minimum punishment should be $1,000,000.00. 102 (IV) Ifthe total punishment exceeded $1,000,000.00, as Promised, the Plaintiff is planning to use at least 80% of the awarded money to establish a non-profit fund, which will be used for the following purpose: (a) Promote High Education Organizations to utilize the most advance computer technologies, e.g. Academy Enterprise System, etc. (b) Promote Reporters, Security Workers, Lawyers and Judges to support world peace and justice. (c) Promote culture interchanges in this world so that people from different countries with different culture background can understand each other. (d) Promote Boston’s new construction and expansion. So that Boston will be one of the largest and the most famous cities in the world. 103 APPENDICES 4 US COURT OF APPEALS THE FIRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: ) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ; ) Trade Fraud on March 7, 2000. VS. ) ) Civil Action No. 00-11190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) Sep 29, 2003 Plaintiff (Appellant/Cross — Appellee)’s MOTION On Punishing the Frauds Of the Defendant and NASD (I) NASD’s fraud on cooking hearing tapes is proved As predict, the Defendant was unable to file the Reply Brief of Appellee/Cross-Appellant. Yes. The Plaintiff's Reply Brief (of Appellant/Cross- Appellee) is VERY, VERY, VERY DIFFICULT for the Defendant to reply. If the Defendant submits its Reply 104 Brief of Appellee/Cross-Appellant, then, it either automatically commits the NASD Arbitration Administrator’s fraud on cooking the arbitration hearing tape, or it has to make more lies. In the Plaintiff's Reply Brief (of Appellant/Cross- Appellee), (VI) (B) (2), the Plaintiff wrote: (2) The arbitrators are obviously partial to the Defendant. One evident partiality in Arbitrator is as following: When the Plaintiff Analyze on Failure to Execute Stock Order issue, the Defendant repeatedly claimed: “This is speculation”. One arbitrator (who sit near the Plaintiff side) chime in with the Defendant, he said: “We all know that!” The Defendant cannot deny this is one evident partiality! The arbitrator (who sit near the Plaintiff side) only spoke a few times. And when he said, “We all know that!” after the Defendant repeatedly claimed: “This is speculation”, the arbitrator’s voice was very loud. So, no one should forget what he said. If the Defendant claims that what the arbitrator’s statement “We all know that!” is not partial to the Defendant, then the Defendant is automatically committing that the arbitrator (who sit near the Plaintiff 105 side) did indeed say, “We all know that!” on the arbitration hearing of June 20, 2002. However, this statement was erased from the arbitration hearing tapes, which were delivered to the Plaintiff. If the Defendant claims that the arbitrator (who sit near the Plaintiff side) did not say that statement on the arbitration hearing of June 20, 2002, then the Defendant is making more lies. According to the logic analysis, “NOT DENY” implies “COMMIT”. (1) The Defendant did not submit its Reply Brief of Appellee/Cross-Appellant. (2) Hence, the Defendant did not deny the fact of “the arbitrator (who sit near the Plaintiff side) did indeed say, “We all know that!” on the arbitration hearing of June 20, 2002’. (3) However, this statement was erased from the arbitration hearing tapes, which were delivered to the Plaintiff. (4) Hence, NASD arbitration administrator’s fraud on cooking hearing tapes is proved! (Il) The Frauds of the Defendant and NASD should be punished The fact of ‘the Defendant was unable to submit its Reply Brief of Appellee/Cross-Appellant’ also proved that the Defendant is unable to deny the facts written in the Plaintiff (Appellant/Cross-Appellee)’s Reply Brief: (1) The Defendant mistakenly explained the law; (2) The Defendant lie on submission ranking form issue; The Defendant involved the fraud on selecting arbitration panel; 106 (3) The Defendant is failed to deny the arbitration hearing tape fraud; : (4) Conflict interest should be avoided; The Court should uphold the Constitution; (5) Arbitration Management Fraud should be punished; Hence, the Plaintiff (Appellant/Cross-Appellee) respectively requests the US Court of Appears to make the following actions: (I) The unfair Arbitration Award should be vacated. (II) | NASD’s Arbitration Management Frauds should be punished. The minimum punishment should be $1,000,000.00. (III) |The Defendant (TD Water House Investor Service, Inc)’s Trade fraud, followed by its cheating customer, insult customer, cheating SEC lie under OATH, etc should be punished. The minimum punishment should be $1,000,000.00. (IV) Ifthe total punishment exceeded $1,000,000.00, as Promised, the Plaintiff is planning to use at least 80% of the awarded money to establish a non-profit fund, which will be used for the following purpose: ’ (a) Promote High Education Organizations to utilize the most advance computer technologies, e.g. Academy Enterprise System, etc. (b) Promote Reporters, Security Workers, Lawyers and Judges to support world peace and justice. (c) Promote-culture interchanges in this world so that people from different countries with different culture background can understand each other. (d) Promote Boston’s new construction and expansion. So that Boston will be one of the largest and the most famous cities in the world. 108 APPENDICES 5 US COURT OF APPEALS THE #IRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: _) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ) Trade Fraud on March 7, 2000. VS. ) ) Civil Action No. 00-11190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) Nov. 3, 2003 Plaintiff (Appellant/Cross — Appellee)’s MOTION On Request to arrange Ms. Kelly Davis to testimony on this court (I) The fraud on selecting arbitration panel is proved In the Plaintiff's Reply Brief (of Appellant/Cross- Appellee) (II), the Plaintiff wrote: 109 Il. The Defendant lie on submission ranking form issue; The Defendant involved the fraud on selecting arbitration panel On page 3 of the Defendant’s Brief, the Defendant wrote: “TD Waterhouse submitted its ranking of potential arbitrators within the time allowed by NASD DR rules.” The Defendant lied again on this issue. | The deadline of submitting the Panel candidate list is Dec. 24, 2001. The Plaintiff selected the Panel list and submitted on Dec. 15, 2001. After the Dec. 24, 2001 deadline, the Plaintiff called Ms. Kelly Davis, asked her whether the Defendant (Respondent) had submit their arbitrator list on time. Ms. Kelly Davis informed me that NASD had not received the Defendant (Respondent)’s list yet. And she told me NASD would process on the arbitration _ panel list anyway without waiting for the Defendant (Respondent)’s list. The Plaintiff strongly request Ms. Kelly Davis to testimony on the court. Until today (Aug 25, 2003), Ms. Kelly Davis has not lied on this issue yet. On this issue, the NASD Arbitration Administrator Ms. Suzanne Green lied. On this issue, Ms. Elizabeth R. Clancy, the associate Vice President of NASD, lied. On this issue, Mr. Derek Anderson, the lawyer for Mr. Derek Anderson lied. Those liars lied during the Arbitration period. Some of those liars lied on the District Court. Their evil actions constituted the fraud mentioned 110 on page 10-11 of the Plaintiffs “Brief of Appellant”, If the Honorable Judges in this US Court of Appeals are talent enough, this fraud should not be very difficult to be verified. The Plaintiff request the Defendant commit its evil action on telling lies on this submission ranking form issue before the verification by the judges in this US Court of Appeal. If the Defendant does not commit its evil action on telling lies until the judges figured out the truth, then the penalty should be much higher then Defendant commits its evil actions earlier. The Defendant did not submit the Reply Brief to deny that Ms. Suzanne Green, Ms. Elizabeth R. Clancy and the Defendant had all lied on this issue. The Defendant did not den 'y that the Defendant directly involved the fraud on selecting arbitration panel. Not deny implies commit. The Defendant and NASD’s . fraud on selecting arbitration panel is proved. The Plaintiff start to in vestigate the ranking form submitting issue on Feb. 1 8, 2002. On Feb 24, 2002, the Plaintiff submitted the Arbitration Causal Challenge by email. In the same email, the Plaintiff asked Ms. Green the following simple questions: 111] oreo ! was heard that the defendant did not delivered their list of arbitrators even by Dec 26, 2001. Hence, I would like to ask the following questions for fully understand how this panel list was decided: (i) By what type of the mail that the defendant delivered their list of arbitrators? ~ (a) Certified Mail; (b) Fed. Express. (ii) What is the Postmark date on the defendant's mail for delivering their list of Arbitrators? Can I get a copy of the Envelop of the defendant's mail with the Postmark date? (iii) By which date that your office received the defendant's mail regarding to the list of Arbitrators. (iv) How the panel list was finally decided in detail? On Feb. 28, 2002, the Plaintiff re-sent the above simple questions to Ms. Suzanne Green. On March 1, 2002, Ms. Suzanne Green was still un-able to answer the above simple questions, but she wrote in her reply email: “it is the policy of this office to allow the opposing party to responds to such motion.” Hence, on March 1, 2002 (Same cee after received Ms. Suzanne Green’s email), the Plaintiff forwarded those simple questions to the Defendant. However, the Defendant was also unable to reply those simple questions. Since both the Defendant and Ms. Suzanne Green can not answer the Plaintiff’s simple questions, the Plaintiff 112 had to send this issue to NASD President Linda D. Fienberg. ’ On April 2002, the Plaintiff received one letter, dated as March 26, 2002 (See Appendix 10 of Plaintiff’s Brief Appendix of Appellant, also see Appendix 4 of Appellee’s Appendix, the Appellee’s copy machine is better), from Ms. Elizabeth R. Clancy. In this letter, Ms. Elizabeth R. Clancy, the associate Vice President of NASD, openly lied. Ms. Elizabeth R. Clancy claimed that Respondent’s (the Defendant) ranking form was sent to NASD by facsimile and received by NASD on Dec. 11, 2001, with original copy arriving on Dec. 12, 2001. As analyzed by the Plaintiff (See page 20 of the Plaintiff’s Reply Brief of Appellant): People have to ask Ms. Clancy, December 11, 2001 was far away from December 24, 2001 deadline, overnight delivery is quite enough, why the Defendant send another copy by facsimile besides the overnight delivery? Is this just like an Old Story, “when completed drawing a beautiful picture of a snake, appending legs to that snake”? On April 2002, after received Ms. Elizabeth R. Clancy’s letter, the Plaintiff received the Defendant’s letter, which is dated as March 27, 2002. In this letter, the Defendant start to claim that it submitted the ranking form on Dec. 11, 2001. Both Ms. Elizabeth R. Clancy and the Defendant included one forged document of the Defendant’s ranking form, which is dated as Dec. 11, 2001. 113 —Currently, there are three versions of the Defendant’s submission of Arbitration ranking form. (1) Ms. Kelly Davis: The Defendant did not submit its Arbitration ranking form before the Dec. 24, 2001 deadline; (2) Ms. Suzanne Green: The Defendant submitted its Arbitration ranking form on the Dec. 24, 2001. (3) Ms. Elizabeth R. Clancy: Respondent’s (the Defendant) ranking form was sent to NASD by facsimile and received by NASD on Dec. 11, 2001, with original copy arriving on Dec. 12, 2001. As Plaintiff stated before: The Defendant did not submit the Reply Brief to deny that Ms. Suzanne Green, Ms. Elizabeth R. Clancy and the Defendant had all lied on this issue. The Defendant did not deny that the Defendant directly involved the fraud on selecting arbitration panel. Not deny implies commit. The Defendant and NASD '’s fraud on selecting arbitration panel is proved. In the case this Court is still unable to determine that whether this fraud is verified or not, the Plaintiff strongly request this Court to arrange Ms. Kelly Davis to testimony on this court. Ms. Kelly Davis was the person handling this issue at that time. According to several conversations with Ms. Kelly Davis before, the Plaintiff believe that Ms. Kelly Davis will speak out the truth under the Court’s protection. Until today (Nov. 3rd, 2003), Ms. Kelly Davis did not lie to the Plaintiff directly. (ll) The Frauds of the Defendant and NASD should be punished In the speech on explaining the new law passed by Congress and Senate “Tough New Enforcement Initiatives 114 for Reform on Corporate Responsibility” (See Page 2 of Appendix 33 of the Brief Appendix of Appellant), President Bush said: “We've learned of some business leaders obstructing justice, and misleading clients, falsifying records, business executives breaching the trust and abusing power.” On the same speech, (See Page 3 of Appendix 33 of the Brief Appendix of Appellant), President Bush said: “Defrauding investors is a serious offense, and the punishment must be as serious as the crime.” On the Plaintiff's Sep 29, 2003’s Motion, the Plaintiff proved the NASD’s fraud on cooking (editing) hearing tapes. Until today, (Nov. 3, 2003), the Defendant has not denied this fraud. Hence, it further confirmed that “the NASD’s fraud on cooking (editing) hearing tapes” is really happened. On this motion, the Plaintiff proved the Defendant and the NASD’s fraud on Arbitration Panel Selection Issue. The penalty to one organization should be very serious, if the organization knowing the law but violating the law. The Plaintiff (Appellant/Cross-Appellee) respectively requests the US Court of Appears to make the following actions: (1) The unfair Arbitration Award should be vacated. (II) | NASD’s Arbitration Management Frauds should be punished. The minimum punishment should be $1,000,000.00. (III) |The Defendant (TD Water House Investor Service, Inc)’s Trade fraud, followed by its cheating customer, insult customer, cheating SEC, 115 (IV) lie under OATH, etc should be punished. The minimum punishment should be $1,000,000.00. If the total punishment exceeded $1,000,000.00, as Promised, the Plaintiff is planning to use at least 80% of the awarded money to establish a non-profit fund, which will be used for the following purpose: (a) Promote High Education Organizations to utilize the most advance computer technologies, e.g. Academy Enterprise System, etc. (b) Promote Reporters, Security Workers, Lawyers and Judges to support world peace and justice. (c) Promote culture interchanges in this world so that people from different countries with different culture background can understand each other. (d) Promote Boston’s new construction and expansion. So that Boston will be one of the largest and the most famous cities in the world. 116 APPENDICES 6 UNITED STATES COURT OF APPEAES FOR THE FIRST CIRCUIT Nos. 03-1415; 03-1478 DE SHEN, Plaintiff, Appellant\Cross-Appellee, V. T.D. WATERHOUSE INVESTOR SERVICE, INC. Defendant, Appellee\Cross-Appellant. No. 03-1478 MEMORANDUM OF TD WATERHOUSE INVESTOR SERVICES, INC IN OPPOSITION TO DE SHEN’S MOTION TO TAKE THE TESTIMONY OF KELLY DAVIS OF THE NASD TD Waterhouse Investor Services, Inc (“Appellee”) submits this memorandum in opposition (“Memorandum”) to De Shen’s (“Appellant”) motion requesting that this Court take the testimony of Kelly Davis of the NASD. In addition to this Memorandum, Appellee submits herewith the affidavit of Derek C. Anderson, Esq. I. Background Appellant requests that the court take the testimony of Ms. Kelly Davis, an employee of the National Association of Securities Dealers, Inc (“NASD”). On 117 appeal, Appellant argues that the Order of the District Court denying Appellant’s Motion to vacate the arbitration award should be reversed. Appellant argues, among other things, that the underlying arbitration award should be vacated under Section 10 of the Federal Arbitration Act (“FAA”). As grounds for his argument, Appellant alleges that Appellee failed to submit its ranking of potential arbitrators within the time allowed by the arbitration rules of the NASD. Appellant contends that Appellee’s failure in this regard constitutes “fraud in organizing the arbitration panel”.' Appellant now requests that this Court take the testimony of Kelly Davis of the NASD to substantiate his allegations. Il. Argument This Court should deny Appellant’s Motion for the reasons that such testimony is not allowed by the federal rules of appellate procedure and that the record on appeal has already been established. Rule 10 of the federal rules of appellate procedure limit the record to “the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries delivered by the district clerk”. U.S.C.A. Fed. Rules App. Proc. R. 10. Attempts to supplement the record should be disregarded by the Court since the ' Appellee pointed out in its Brief that this alleged “fraud” does not materially relate to an issue in arbitration as is required, and therefore cannot be grounds to vacate an arbitration award under Section 10 of the FAA. See e.g. LaFarge Conseils Et Etudies, S.A. v Kaiser Cement& Gypsum Corp. 791 F.2d 1334, 1339 (9" Cir. 1986) (citing Dogherra v. SafewayStores, Inc., 679 F.2d 1293 (9" Cir. 1982) cert den. 459 U.S. 990. 74 L.Ed. 2d 386, 103 S. Ct. 346(1982)); see also Bonar v. Dean Witter Reynolds, Inc., 835 F. 2d 1378. 1383 (1 1" Cir. 1988) (citing Dogherra,supra) (Appellee’s Brief. P.15) 118 Appellant had every opportunity in the district court to present whatever evidence he thought was relevant to the issues at hand. See e.g. Rosen v. Lawson-Hemphill, Inc, 549 F. 2d 205, 206 (1st Cir. 1986). The burden is on the Appellant to provide the Court with all material evidence. See e.g. Hayes v. Consolidated Service Corp., 517 F.2d 564, 566 (1* Cir. 1975). The declaration of a witness which was never filed or submitted to the District Court cannot be part to the record on appeal. See e.g. Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9" Cir. 1988). Here, Appellant seeks to have the Court take the testimony of a NASD employee. It is indisputable that testimony was not before the District Court when it rendered its Order denying Appellant’s Motion to vacate the arbitration award. The testimony clearly is not part of the record. Appellant’s Motion should be denied.” * Aiter receiving Appellant’s Motion, counsel searched Appellee’s facsimile transmitting its rankings of potential arbitrators. See Affidavit of Derek C. Anderson, Esq. Appellee’s letter to the NASD transmitting its rankings of arbitrators was dated December 11, 2001. Id. The letter was delivered to the NASD via facsimile and overnight mail. /d. The facsimile confirmation sheet indicates that the NASD received the letter.on December 11, 2001, well before the December 24, 2001 deadline. /d. This information corroborates Ms. Clancy’s (of the NASD) March 26, 2002 correspondence regarding the selection arbitrators, and completely undermines Appellant’s theory of fraud in organizing the arbitration panel”. See Appellee’s Appendix. Tab 4. 119 III. Conclusion For all of the foregoing reasons, TD Waterhouse respectfully requests that the Court deny Appellant’s Motion. TD WATERHOUSE INVESTOR SERVICES, INC. By its attorneys, s/ Derek C. Anderson Derek C. Anderson Pete S. Michaels MURPHY & MICHAELS, LLP One Liberty Square Boston, Massachusetts 02109 (617) 350-7700 Dated: November 24, 2003 120 APPENDICES 7 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Nos. 03-1415; 03-1478 DE SHEN, Plaintiff, Appellant\Cross-Appellee, V. T.D. WATERHOUSE INVESTOR SERVICE, INC. Defendant, Appellee\Cross-Appellant. No. 03-1478 _ AFFIDAVIT OF DEREK C. ANDERSON I, Derek C. Anderson, do hereby depose and state the following: 1. I, along with Pete S. Michaels, am the attorney of record for Appellee TD Waterhouse Investor Service, Inc. (T.D. Waterhouse). 2. After receiving Appellant’s Motion, I searched TD Waterhouse’s file and retrieved the facsimile transmitting TD Waterhouse’s rankings of potential arbitrators. The cover letter to the NASD transmitting TD Waterhouse’s rankings of arbitrators was dated December 11, 2001. The letter was delivered to the NASD via facsimile and overnight mail. The facsimile confirmation sheet indicates that the NASD 121 received the letter on December 11, 2001, well before the December 24, 2001 NASD deadline. 3. This information corroborates Ms. Clancy’s March 26, 2002 correspondence regarding the selection of arbitrators. See Appellee’s Appendix, Tab 4. 4. This information is not part of the record before the Court. Upon the request of the Court, we would be glad to provide the Court with this correspondence. Sworn under the pains and penalties of perjury this 21 day of November 2003. s/_ Derek C. Anderson Derek C. Anderson 122 APPENDICES 8 ’ US COURT OF APPEALS THE FIRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: _) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ) Trade Fraud on March 7, 2000. VS. ) ) Civil Action No. 00-11190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) Nov. 24, 2003 Plaintiff (Appellant/Cross — Appellee)’s MOTION On Request Double Penalty To The Defendant For Its Continually Telling Lie (1) The Defendant Continually Tells Lies The Plaintiff received Mr. Derek C. Anderson’s reply letter of Nov. 21, 2003. This letter is a response of the Plaintiff s Nov. 3s Motion. This letter proved that the Defendant continually tells LIE until now. Mr. Derek C. Anderson wrote: 123 I enclose the correspondence to the NASD enclosing TD Waterhouse’s rankings of arbitrators. You will see that the cover letter is dated December 11, 2001 and notes that the rankings were delivered via facsimile and via overnight delivery (Optima). I have also enclosed the confirmation indicating that the facsimile was sent on December 11, 2001, well before the December 24, 2001 deadline. This information corroborates Ms. Clancy’s letter to you (See Appellee’s Appendix, Tab 4). From the Defendant’s attached files, you will see both the cover letter and FAX COVER SHEET are addressed to Ms. Kelly Davis, NASD Dispute Resolution, Inc. If those documents were not forged, then, Ms. Kelly Davis would have received the Defendant’s ARBITRATOR RANKING FORM well before the deadline of Dec. 24, 2001. However Ms. Kelly Davis informed the Plaintiff that the Defendant did not submit its arbitrator ranking form before the deadline of Dec. 24, 2001 at least two times. Hence, the Defendant forged those documents and continually lie is proved! The Plaintiff and Ms. Kelly Davis had at least two conversations which were focused on whether the Defendant submitted its arbitrator ranking form on time. After the deadline of Dec. 24, 2001, the Plaintiff called Ms. Kelly Davis and asked her whether the Defendant had submitted its arbitrator ranking form. Ms. Kelly Davis told the Plaintiff that the Respondent had not submitted its 124 arbitrator ranking form yet. She informed the Plaintiff that NASD would process the selection of arbitrator panel without waiting for the Respondent’s arbitrator ranking form. According to Arbitration Rule, if the Defendant (Respondent) did not submit its arbitrator ranking form . before the deadline, all the arbitrators in the panel should be selected from the arbitrator ranking form submitted by the Plaintiff (Claimant). However, when the Plaintiff received the arbitrator panel list decided by NASD, the Plaintiff discovered that only one arbitrator was selected from the arbitrator ranking form submitted by the Plaintiff. Hence, the Plaintiff called Ms. Kelly Davis again. The Plaintiff asked Ms. Kelly Davis, “You told me that the Defendant did not submit its arbitrator ranking form before the deadline. Hence all the arbitrators in the arbitration panel should be selected from the arbitrator ranking form submitted by the Plaintiff. Why only one arbitrator which ranked number 4 in the arbitrator ranking form submitted by the Plaintiff was selected in the Panel.” Ms. Kelly Davis replied to the Plaintiff that: “Yes. The Respondent did not submit its arbitrator ranking form before the deadline of Dec. 24, 2001. You are right that all the arbitrators should be selected from the arbitrator ranking form submitted by you. However, in the case if some arbitrators, which you selected, do not want to arbitrate this case, if there are not enough arbitrators available from your ranking form, then, NASD will select the rest arbitrator(s) for this panel”. She suggested me contact with Ms. Suzanne Green. The Plaintiff called Ms. Suzanne Green. Ms. Suzanne Green lied to the Plaintiff. She said: “The Respondent submitted its arbitrator ranking form on Dec. 24, 2001, the last day of the deadline”. Ms. Suzanne Green told the Plaintiff that she would ask Ms. Kelly Davis talk to me together. However, Ms. Kelly Davis did not join Ms. Suzanne Green to lie to the 125 Plaintiff. The Plaintiff also called one arbitrator who was selected in the Plaintiff’s arbitrator ranking form. He reply to the Plaintiff that no one from NASD Dispute Resolution, Inc contacted with him on this case. According to above conversation with Ms. Kelly Davis, the Defendant forged those documents and continually lie is proved. The Plaintiff strongly requests this Court to arrange Ms. Kelly Davis to testimony on this court. Ms. Kelly Davis was the person handling this issue at that time. According to the above conversations with Ms. Kelly Davis, the Plaintiff believes that Ms. Kelly Davis will speak out the truth under the Court's protection. Until today (Nov. 24, 2003), Ms. Kelly Davis did not lie to the Plaintiff directly. (Il) The Defendant continually lie should be DOUBLE PUNISHED In the speech on explaining the new law passed by Congress and Senate “Tough"New Enforcement Initiatives for Reform on Corporate Responsibility” (See Page 2 of Appendix 33 of the Brief Appendix of Appellant), President Bush said: “We've learned of some business leaders obstructing justice, and misleading clients, falsifying records, business executives breaching the trust and abusing power.” On the same speech, (See Page 3 of Appendix 33 of the Brief Appendix of Appellant), President Bush said: “Defrauding investors is a serious offense, and the punishment must be as serious as the crime.” 126 Considering the Defendant continually tells lies, the Plaintiff request double penalty to the Defendant. The Plaintiff (Appellant/Cross-Appellee) respectively requests the US Court of Appears to make the following actions: (1) The unfair Arbitration Award should be vacated. (II) | NASD’s Arbitration Management Frauds should be punished. The minimum punishment should be $2,000,000.00. (III) The Defendant (TD Water House Investor Service, Inc)’s Trade fraud, followed by its cheating customer, insult customer, cheating SEC, lie under OATH, etc should be punished. The minimum punishment should be $2,000,000.00. (IV) Ifthe total punishment exceeded $1,000,000.00, as Promised, the Plaintiff is planning to use at least 80% of the awarded money to establish a non-profit fund, which will be used for the following purpose: (a) Promote High Education Organizations to utilize the most advance computer technologies, e.g. Academy Enterprise System, etc. (b) | Promote Reporters, Security Workers, Lawyers and Judges to support world peace and justice. (c) Promote culture interchanges in this world so that people from different countries with different culture background can understand each other. 127 (d) Promote Boston’s new construction and expansion. So that Boston will be one of the largest and the most famous cities in the world. 128 APPENDICES 9 US COURT OF APPEALS THE FIRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: _) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ) Trade Fraud on March 7, 2000. VS. ) ) Civil Action No. 00-11190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) Dec. 1, 2003 Plaintiff (Appellant/Cross — Appellee)’s MOTION On Requesting Further Double Penalty To The Defendant For It Hire Lawyers to Lie in Affidavit (I) The Defendant Hire Lawyers to Lie in the Affidavit The Plaintiff received the Defendant’s attorney Mr. Derek C. Anderson’s Affidavit on Nov. 25, 2003. However, Mr. Derek C. Anderson’s Affidavit is an obvious perjury. Mr. Derek C. Anderson wrote in the Affidavit: 129 After receiving Appellant’s Motion. I searched TD Waterhouse’s file and retrieved the facsimile transmitting TD Waterhouse’s rankings of potential arbitrators. The cover letter to the NASD transmitting TD Waterhouse’s rankings of arbitrators was dated December 11. 2001. The letter was delivered to the NASD via facsimile and overnight mail. The facsimile confirmation sheet indicates that the NASD received the letter on December 11, 2001. well before the December 24. 2001 NASD deadline. Mr. Derek C. Anderson’s Affidavit is an obvious perjury. Lets use reductio ad absurdum approach to prove the above Statement: Both the Defendant’s cover letter and FAX COVER SHEET related to arbitrator ranking form submission are addressed to Ms. Kelly Davis, NASD Dispute Resolution, Inc. Lets make the following assumption, and call it “Assumption X”: Assumption X: Suppose those Defendant’s documents were not forged, suppose Mr. Derek C. Anderson’s Affidavit is not a perjury. Ms. Kelly Davis had received the Defendant's arbitrator ranking form well before the deadline of Dec. 24, 2001. However: (A) After the deadline of Dec. 24, 2001, the Plaintiff called Ms. Kelly Davis and asked her whether the Defendant had submitted its arbitrator ranking form. Ms. Kelly Davis told the Plaintiff that the Respondent had not submitted its arbitrator ranking form yet. She informed the Plaintiff that 130 NASD would process the selection of arbitrator panel without waiting for the Respondent’s arbitrator ranking form. People have to ask the Defendant, WHY Ms. Kelly Davis would like to inform the Plaintiff that the Defendant did not submit its arbitrator ranking form before the deadline of Dec. 24, 2001, if she received the Defendant’s ARBITRATOR RANKING FORM well before the deadline of Dec. 24, 2001? (B) According to Arbitration Rule, if the Defendant (Respondent) did not submit its arbitrator ranking form before the deadline, all the arbitrators in the panel should be selected from the arbitrator ranking form submitted by the Plaintiff (Claimant). However, when the Plaintiff received the arbitrator panel list decided by NASD, the Plaintiff discovered that only one arbitrator was selected from the arbitrator ranking form submitted by the Plaintiff. Hence, the Plaintiff called Ms. Kelly Davis again. The Plaintiff asked Ms. Kelly Davis, “You told me that the Defendant did not submit its arbitrator ranking form before the deadline. Hence all the arbitrators in the arbitration panel should be selected from the arbitrator ranking form submitted by the Plaintiff. Why only one arbitrator which ranked number 4 in the arbitrator ranking form submitted by the Plaintiff was selected in the Panel.” Ms. Kelly Davis replied to the Plaintiff that: “Yes. The Respondent did not submit its arbitrator ranking form before the deadline of Dec. 24, 2001. You are right that all the arbitrators should be selected from the arbitrator ranking form submitted by you. However, in the case if some arbitrators, which you selected, do not want to arbitrate this case, if there are not enough arbitrators available from your ranking form, then, NASD will select the rest arbitrator(s) for this panel”. 131 People have to ask the Defendant, WHY Ms. Kelly Davis would like to confirm to the Plaintiff that the Defendant did not submit its arbitrator ranking form before the deadline of Dec. 24, 2001? WHY Ms. Kelly Davis would like to confirm to the Plaintiff that all the arbitrators in the arbitration panel should be selected from the arbitrator ranking form submitted by the Plaintiff unless there are not enough arbitrators available from the arbitrator ranking form submitted by the Plaintiff? (C) When the Plaintiff called Ms. Suzanne Green. WHY Ms. Suzanne Green lied to the Plaintiff, “The Respondent submitted its arbitrator ranking form on Dec. 24, 2001, the last day of the deadline”? (D) The Plaintiff started to in vestigate the ranking form submitting issue on Feb. 18, 2002. On F. €b 24, 2002, the Plaintiff submitted the Arbitration Causal Challenge by email. In the same email, the Plaintiff asked Ms. Green the following simple questions: ! was heard that the defendant did not delivered their list of arbitrators even by Dec 26, 2001. Hence, I would like to ask the following questions for fully understand how this panel list was decided: (i) By what type of the mail that the defendant delivered their list of arbitrators? (a) Certified Mail; (b) Fed. Express. 132 (ii) What is the Postmark date on thé defendant's mail for delivering their list of Arbitrators? Can I get a copy of the Envelop of the defendant's mail with the Postmark date? (iii) | By which date that your office received the defendant's mail regarding to the list of Arbitrators. (iv) How the panel list was finally decided in detail? On Feb. 28, 2002, the Plaintiff re-sent the above simple questions to Ms. Suzanne Green. On March 1, 2002, Ms. Suzanne Green was still un-able to answer the above simple questions, but she wrote in her reply email: “it is the policy of this office to allow the opposing party to responds to such motion.” People have to ask the Defendant, if she received the Defendant’s ARBITRATOR RANKING FORM well before the deadline of Dec. 24, 2001, WHY Ms. Suzanne Green was un-able to answer the above simple questions by Feb. 24, 2002(?), by Feb. 28, 2002(2), even by March 1, 2002? (E) On March 1, 2002, the Plaintiff forwarded those simple questions to the Defendant. However, the Defendant was also unable to reply those simple questions. People have to ask the Defendant, if the Defendant’s arbitrator ranking form was delivered to the NASD via facsimile and overnight mail on Dec. 11, 2001, if Mr. Kelly Davis received the Defendant’s arbitrator ranking form well before the deadline of Dec. 24, 2001, WHY the Defendant was unable to answer those simple questions before Ms. 133 Elizabeth R. Clancy made the cover-up solution on March 26, 2002? (F) On March 26, 2002, Ms. Elizabeth R. Clancy, the associate Vice President of NASD, openly lied in her letter. Ms. Elizabeth R. Clancy claimed that Respondent’s (the Defendant) ranking form was sent to NASD by facsimile and received by NASD on Dec. 11, 2001, with Original copy arriving on Dec. 12, 2001. People have to ask Ms. Clancy, December 11, 2001 was far away from December 24, 2001 deadline, overnight delivery is quite enough, WHY the Defendant send another copy by facsimile besides the overnight delivery? Is this just like an Old Story, “when completed drawing a beautiful picture of a snake, appending legs to that snake”? From the above six issues, the consequences conducted by “Assumption X” are either self-contradiction or implausibility. With the “Assumption X”, all the above questions cannot be answered. Hence, the “Assumption X” is patertly untenable. Hence, the “Assumption X” is incorrect. Hence, those Defendant’s documents related to arbitrators ranking form submission were forged. Hence, “Mr. Derek C. Anderson’s Affidavit is an obvious perjury” is proved. By using reductio ad absurdum approach, without Ms. Kelly Davis’s testimony, the Plaintiff has already successfully proved the Defendant’s and NASD’s frauds on the arbitrators ranking form submission. On this issue, the NASD Arbitration Administrator Ms. Suzanne Green lied. 134 On this issue, Ms. Elizabeth R. Clancy, the associate Vice President of NASD, lied. On this issue, Mr. Derek Anderson, Mr. Pete S. Michaels, the lawyers for the Defendant, lied and continually lying, even lied in their Affidavit. Those Liars constructed the Fraud of Arbitrators Ranking Form Submission Issue. The Defendant should be punished on this Fraud. The Defendant hiring Lawyers to lie in the Affidavit should be seriously and double punished. The Plaintiff still strongly requests this Court to arrange Ms. Kelly Davis to testimony on this court. Ms. Kelly Davis was the person handling this issue at that time. According to the conversations with Ms. Kelly Davis, the Plaintiff believes that Ms. Kelly Davis will speak out the truth under the Court's protection. Until today (Dec. 1, 2003), Ms. Kelly Davis did not lie to the Plaintiff directly. (II) Why does the Defendant panic? This is another simple question: Assumption: Suppose those Defendant’s documents were not forged, suppose Mr. Derek C. Anderson’s Affidavit is not a perjury. Suppose Ms. Kelly Davis had received the Defendant’s arbitrator ranking form well before the deadline of Dec. 24, 2001. Then, WHY does the Defendant panic? WHY does the Defendant submit documents again and again to against Ms. Kelly Davis’ testimony? According to the above Assumption, the Defendant should request and support Ms. Kelly Davis’ testimony, right? The only possible conclusion is: 135 The above assumption is incorrect. The reason wh 'y the Defendant panic and strongly against Ms. Kelly Davis’ testimony in this Court is: Those Defendant’s documents related to Arbitrators Ranking Form submission were forged. Mr. Derek C. Anderson’s Affidavit is a perjury. Ms. Kelly did not receive the Defendant’s arbitrator ranking form well before the deadline of Dec. 24, 2001. (Ill) The Defendant is trying to escape from the Justice Judgment in this Appeals Court (A) The Defendant mistakenly explained the Law The Defendant wrote in its Memorandum of Nov. 24, 2003: This Court should deny Appellant’s Motion for the reasons that such testimony is not allowed by the federal rules of appellate procedure and that the record on appeal has already been established. Rule 10 of the federal rules of appellate procedure limit the record to “the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries delivered by the district clerk” The Defendant mistakenly explained the law in its Brief for Defendant. Now, it mistakenly explained the law again. Rule 10 of the federal rules of appellate procedure is defined for: (a) Composition of the Record on Appeal (b) The Transcript of Proceedings 136 (c) Statement of the Evidence When the Proceedings Were Not Recorded or Whena TranscriptIs _ Unavailable. (d) Agreed Statement as the Record on Appeal (e) Correction or Modification of the Record Rule 10 of the federal rules of appellate procedure (See Appendix in this Motion) does not define whether the Appellant should or should not ask case closely related witness to expose and confirm the Appellee’s fraud which is list in the record. Rule 10 of the federal rules of appellate does not define whether the Appellant should or should not ask case closely related witness to testimony in order to further confirm the Appellant’s statement which is written in the record. The Defendant mistakenly explains the law should be punished. (B) The Defendant’s Fraud on Ranking Form is not a new record The Defendant wrote in its Memorandum of Nov. 24, 2003: Attempts to supplement the record should be disregarded by the Court... The Defendant’s Fraud on Arbitrator Ranking Form Submission is not a new record. It is recorded in many documents, which submitted to the District Court. The Defendant can find those documents in the Brief Appendix of Appellant as following: (1) 09. Arbitration Causal Challenge; (2) 10. Ms. Elizabeth R. Clancy’s Letter; 137 (3) 17. Motion: Plaintiff strongly request to re-open this case (This is the first Motion to vacate the unfair arbitration result. This Motion is submitted to the District Court within one month after the Plaintiff received the unfair arbitration result. Count 8 of this Motion described this Fraud in detail.) (4) 18. Plaintiff Motion’s Cover Letter; Requesting Ms. Kelly Davis to testimony on the court is only for confirming that the Fraud listed in the record was indeed happened. The Defendant’s Fraud should not be disregarded. The law should punish the Defendant’s Fraud. The best practice for the Defendant is commits its Fraud and other Mistakes ASAP. Any continual lies and cheatings will conduct more serious penalties. Any Defendant’s attempts for escaping from the Justice Judgment will be failed. (C) Requesting Ms. Kelly Davis testimony is not a new record The Defendant wrote in its Memorandum of Nov. 24, 2003: The declaration of a witness which was never filed or submitted to the District Court cannot be part of the record on appeal. The Defendant’s above statement is worthless, because it ignored the following records in the Brief Appendix of Appellant: 138 (1) 29. Plaintiff's MOTION To Request Ms. Kelly Davis To Testimony on the Court (2) 32. Court Ruling on Plaintiff’s Feb. 17, 2003 Motion and April 17, 2003 Motion. The Plaintiff submitted a Motion to Request Ms. Kelly Davis To Testimony on the Court on Feb. 17, 2003. However, the District Court Clerk claimed that she did not receive that Motion. Hence, the Plaintiff re- submitted the same Motion again by certified mail immediately. Mr. William Young did not deny this Motion until this case was submitted to the Court of Appears. The Plaintiff's Motion to Request Ms. Kelly Davis To Testimony on the District Court on Feb. 17, 2003 is one pending Motion when the Appeal Notice was submitted. In the Court Ruling on this Motion (See Appendix 32 in the Brief Appendix of Appellant), Mr. William Young used the words “ In view of appeal, ...”, it might indicate that Mr. William Young might consider to ask Ms. Kelly Davis to testimony on the District Court. By now, we have proved that the Argument in Defendant’s Memorandum is worthless. There is no law support Defendant’s Memorandum. All the Defendant ’s statements are baseless. (IV) The Defendant Hire Lawyers to Lie in their Affidavit should be further DOUBLE PUNISHED In the speech on explaining the new law passed by Congress and Senate “Tough New Enforcement Initiatives for Reform on Corporate Responsibility” (See Page 2 of Appendix 33 of the Brief Appendix of Appellant), President Bush said: “We've learned of some business leaders obstructing justice, and misleading clients, falsifying records, business executives breaching the trust and abusing power.” On the same speech, (See Page 3 of Appendix 33 of the Brief Appendix of Appellant), President Bush said: “Defrauding investors is a serious offense, and the punishment must be as serious as the crime.” Considering the Defendant hired lawyers “bravely” telling lies in its Affidavit, the Plaintiff request further double penalty to the Defendant. The Plaintiff (Appellant/Cross-Appellee) respectively requests the US Court of Appears to make the following actions: (I) The unfair Arbitration Award should be vacated. (II) | NASD’s Arbitration Management Frauds should be punished. The minimum punishment should be $4,000,000.00. (III) The Defendant (TD Water House Investor Service, Inc)’s Trade fraud, followed by its cheating customer, insult customer, cheating SEC, lie under OATH, etc should be punished. The minimum punishment should be $4,000,000.00. (IV) As Promised, the Plaintiff is planning to use at least 80% of the awarded $8,000,000.00 to establish a non-profit fund, which will be used for the following purpose: | : (a) Promote High Education Organizations to utilize the most advance computer 140 technologies, e.g. Academy Enterprise System, etc. , Promote Reporters, Security Workers, Lawyers and Judges to support world peace and justice. Promote culture interchanges in this world so that people from different countries with different culture background can understand each other. Promote Boston’s new construction and expansion. So that Boston will be one of the largest and the most famous cities in the world. 141 .. Appendix Rule 10, 11, 12 in FEDERAL RULES OF APPELLATE PROCEDURE Rule 10. The Record on Appeal (a) Composition of the Record on Appeal. The following items constitute the record on appeal: (1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the dis- trict clerk. (b) The Transcript of Proceedings. (1) Appellant’s Duty to Order. Within 10 days after filing the notice of appeal or entry of an order disposing of the last time- ly remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the follow- ing: (A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant consid- ers necessary, subject to a local rule of the court of ap- peals and with the following qualifications: (i) the order must be in writing; Page 25 1] Rule 10 FEDERAL RULES OF APPELLATE PROCEDURE (ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act. the order must so state: and 142 (iii) the appellant must, within the same period, file a copy of the order with the district clerk; or (B) file a certificate stating that no transcript will be or- dered. (2) Unsupported Finding or Conclusion. If the appellant in- tends to urge on appeal that a finding or conclusion is unsup- ported by the evidence or is contrary to the evidence, the ap- pellant must include in the record a transcript of all evidence relevant to that finding or conclusion. (3) Partial Transcript. Unless the entire transcript is or- dered: (A) the appellant must—within the 10 days provided in Rule 10(b)(1)—file a statement of the issues that the appel- lant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement; (B) if the appellee considers it necessary to have a tran- script of other parts of the proceedings, the appellee must, within 10 days after the service of the order or certificate and the statement of the issues, file and serve on the ap- pellant a designation of additional parts to be ordered; and (C) unless within 10 days after service of that designa- tion the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the follow- ing 10 days either order the parts or move in the district court for an order requiring the appellant to do so. (4) Payment. At the time of ordering, a party must make sat- isfactory arrangements with the reporter for paying the cost of the transcript. (c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a 143 statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 10 days afier being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal. (d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were de- cided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are es- sential to the courts resolution of the issues. If the statement is truthful, it—together with any additions that the district court may consider necessary to a full presentation of the issues on ap- peal—must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The dis- 144 ; €: F trict clerk must then send it to the circuit clerk within the time L. Page 26 12 Rule 11 FEDERAL RULES OF APPELLATE PROCEDURE provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30. (e) Correction or Modification of the Record. (1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly. (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: (A) on stipulation of the parties; (B) by the district court before or after the record has been forwarded; or (C) by the court of appeals. (3) All other questions as to the form and content of the record must be presented to the court of appeals. (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. ‘. 1998.) Rule 11. Forwarding the Record (a) Appellant’s Duty. An appellant filing a notice of appeal must 145 comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and for*ard the record. If there are multiple appeals from a judgment or order. the clerk must for- ward a single record. (b) Duties of Reporter and District Clerk. (1) Reporter’s Duty to Prepare and File a Transcript. The re- porter must prepare and file a transcript as follows: (A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order the date of its receipt and the expected completion date and send a copy, so en- dorsed, to the circuit clerk. (B) If the transcript cannot be completed within 30 days oi the reporters receipt of the order, the reporter may re- quest the circuit clerk to grant additional time to com- plete it. The clerk must note on the docket the action taken and notify the parties. (C) When a transcript is complete, the reporter must file it with the district clerk and notify the circuit clerk of the filing. (D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district judge and do what- ever else the court of appeals directs. (2) District Clerk’s Duty to Forward. When the record is com- plete, the district clerk must number the documents con- stituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the district clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the 146 — record designated for omission by local rule of the court of ap- « Page 27 13 Rule 12 FEDERAL RULES OF APPELLATE PROCEDURE peals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transpor- tation and receipt. (c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal. The parties may stipulate, or the dis- trict court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the cir- cuit clerk that the record on appeal is complete. Upon receipt of the appellee’s brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record. (d) [Abrogated.| (e) Retaining the Record by Court Order. (1) The court of appeals may, by order or local rule, provide that a certified copy of the docket entries be forwarded in- stead of the entire record. But a party may at any time during the appeal request that designated parts of the record be for- warded. (2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject, however, to call by the court of appeals. (3) If part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties. (f) Retaining Parts of the Record in the District Court by Stipula- tion of the Parties. The parties may agree by written Stipulation filed in the district court that designated parts of the record be re- tained in the district court subject to call by the court of appeals or request by a party. The parts of the record so designated re- main a part of the record on appeal. (g) Record for a Preliminary Motion in the Court of Appeals. If, before the record is forwarded, a party makes any of the following motions in the court of appeals: _ for dismissal; _) for release; _| for a stay pending appeal; _ for additional security on the bond on appeal or on a super- sedeas bond; or _| for any other intermediate order— the district clerk must send the court of appeals any parts of the record designated by any party. (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.) 148 Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record (a) Docketing the Appeal. Upon receiving the copy of the notice of appeal and the docket entries from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title of the district-court action and must identify the appellant, add- ing the appellant’s name if necessary. ceiecnnnannateeh ees te. ene aceasta CAEN ABOU AE COATES “ Page 28 14 Rule 13 FEDERAL RULES OF APPELLATE PROCEDURE (b) Filing a Representation Statement. Unless the court of ap- peals designates another time, the attorney who filed the notice of appeal must, within 10 days after filing the notice, file a Sstate- ment with the circuit clerk naming the parties that the attorney represents on appeal. (c) Filing the Record, Partial Record, or Certificate. Upon receiv- ing the record, partial record, or district clerk’s certificate as pro- vided in Rule 11, the circuit clerk must file it and immediately no- tify all parties of the filing date. (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 149 1, 1986; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998.) TITLE Ill. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT Rule 13. Review of a Decision of the Tax Court Ee ee eee APPENDICES 10 United States Court of Appeals =~ For the First Circuit Nos. 03-1415 03-1478 DE SHEN, Plaintiff, Appellant/Cross-Appellee, Va T.D. WATERHOUSE INVESTOR SERVICE, INC., Defendant, Appellee/Cross-Appellant. JUDGMENT Entered: February 5, 2004 This cause came on to be submitted on the briefs and original record on appeal from the United States District Court for the District of Massachusetts. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed. See Loc. R. 27(c ). De Shen’s various motions requesting that this court hold a hearing with regarding to one of his claims of fraud and order sanctions against T.D. Waterhouse for “[c]ontinually [t]elling {l]ie[s]” are denied. By the Court: RICHARD CUSHING DONOVAN Richard Cushing Donovan, Clark 15] APPENDICES 11 US COURT OF APPEALS THE FIRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: _) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ) Trade Fraud on March 7. 2000. VS. ) ) Civil Action No. 00-11190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) Feb 22, 2004 Plaintiff (Appellant/Cross — Appellee)’s MOTION On Mistakes of Judgment of Feb. 5 2004 The JUDGMENT entered on February 5, 2004 is clearly a mistake. The JUDGMENT uses Loc. R. 27 (¢ ) as its authority. However, (1) Loc. R. 27 (c ) does not grants the judges to do not punish the Fraud; 152 PORANTY SO ™ (2) Loc. R. 27 (¢ ) does not grants the judges to do not investigate the Fraud; (3) Justice is the Truth In Action. Loc. R. 27 (c ) does not grants the judges to make the judgment without hearing the truth from Ms. Kelly Davis’s testimony. The three judges, Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya made the judgment. However, they do not even have the courage to sign their names on the Judgment. This proved that the Judges themselves do not believe that they did a right thing. Any misjudgment should be reviewed and re-judged by the people of USA, maybe further be reviewed and re-judged by the people in the world History will record all the judges who use their talents to make clear judgment for the people. Billions people will remember them. History will also record those unqualified judges who frequently make misjudgments. Billions people will laugh at them. In order to help the people to review and judge the JUDGMENT made by Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya, the following questions are proposed for them to answer. They may answer these questions separately or answer these questions as a group. Do not answer these questions or deny this motion is also an answer. In this case, people will smell the bureaucracy characteristics from them. Here are the questions that Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya needs to answer: (1) Should Frauds be punished? 153 (2) If T.D. Waterhouse made a F raud, should T.D. Waterhouse be punished? (3) If NASD made a Fraud or F rauds, should NASD be punished? (4) Since NASD is a second justice organization, if NASD violated the Law, made Frauds, should NASD be double punished? (5) If a judge does not punish Frauds, is that judge ignoring his/her duty? (6) Ifa judge in District Court made a mistake, but a judge or a panel of judges from Appeals Court do not correct his/her mistake, is that judge or that panel of judges from Appeals Court ignoring his/her/their duty? The answer by Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya will be judged by the People. And also by the Supreme Court of USA. (Note. The Plaintiff did not receive the JUDGMENT entered on Feb. 5, 2004 until the Plaintiff called the Court on Feb. 19, 2004. The Plaintiff wishes this type of issue will not happened again.) 154 FLIER RO REET ON £ Tee APPENDICES 12 United States Court of Appeals For the First Circuit No. 03-1415 DE SHEN, Plaintiff, Appellant/Cross-Appellee, V. T.D. WATERHOUSE INVESTOR SERVICE, INC., Defendant, Appellee/Cross-Appellant. No. 03-1478 DE SHEN, Plaintiff, Appellee, V. T.D. WATERHOUSE INVESTOR SERVICE, INC., Defendant, Appellant. Before Campbell, Senior Circuit Judge, Torruella and Selya, Circuit Judges. 155 ORDER OF COURT Entered: April 6, 2004 The petition for rehearing is denied. By the Court: Richard Cushing Donovan, Clark By: Mark R. SYSKA _ Chief Deputy Clerk [cc. De Shen, Pete S. Michaels. Esq. And Derek C. Anderson, Esq] 156 ee ———————e ee ti i eett—t— 1 : APPENDICES 13 US COURT OF APPEALS , THE FIRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: ) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ) Trade Fraud on March 7, 2000. VS. ) ) Civil Action No. 00-11 190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) April 12, 2004 Plaintiff (Appellant/Cross — Appellee)’s MOTION On 2" Request the judges to answer the Basic Questions in Plaintiff’s Feb. 22’s Motion On April 8, 2004, the Plaintiff received the response (to the Plaintiff's motion of Feb. 22, 2004) from the three judges, Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya. (Note: this document did not put a date on the document. The postmark is April 6, 2004.) The response includes only one sentence: “The petition for rehearing is denied.” ; ; 4 157 The Plaintiff has to ask Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya: Yow did not hold any hearing on this case yet, where is the word “rehearing” come from? The response from Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya DID NOT denied the Plaintiff's statements of the following: “The JUDGMENT entered on Febrwary 5, 2004 is Clearly a mistake. The JUDGMENT uses Loc. R. 27 ( \¢ ) as its authority. However. (1) Loc. R. 27 (¢ ) does not gramts the judges to do not punish the Fraud: (2) Loc. R.27(¢ ) does not grants the judges to do not investigate the Fraud: (3) Justice is the Truth In Actiom. Loc. R. 27 (¢ ) does not grants the judges to make the judgment without hearing the truth from Ms. Kelly Davis's testimony.” Hence, the Plaintiff requests this Court to take any necessary actions to correct the judgment mistake of February 5, 2004. In the response, Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya did not answer the Plaintiff's basic questions in Plaintiff's Motion of Feb. 22, 2004. However, all those questions are required to be answeredi. If Levin H. Campbell, Juan R. Torruella, and Bruce M. Sely.a are not talented enough (or do not have the courage) ti answer those questions, then they have to openly commit their mistakes. A former apology is required. Here are the questions that Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya needs tio answer: 158 (1) Should Frauds be punished? (2) If T.D. Waterhouse made a Fraud, should T.D.- Waterhouse be punished? (3) If NASD made a Fraud or Frauds, should NASD be punished? (4) Since NASD is a second justice organization, if NASD violated the Law, made Frauds, should NASD be double punished? (5) Ifa judge does not punish Frauds, is that judge ignoring his/her duty? (6) If a judge in District Court made a mistake, but a judge or a panel of judges from Appeals Court do not correct his/her mistake, is that judge or that panel of judges from Appeals Court ignoring his/her/their duty? The answer by Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya will be judged by the People. And also by the Supreme Court of USA. 159 APPENDICES 14 US COURT OF APPEALS THE FIRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: __) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ) Trade Fraud on March 7, 2000. VS. ) ) Civil Action No. 00-11190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) April 26, 2004 Plaintiff (Appellant/Cross — Appellee)’s MOTION On 3" Request the judges to answer the Basic Questions in Plaintiff's Feb. 22’s Motion The Plaintiff asked the judges the basic questions in Plaintiff's Motion of Feb. 22, 2004. However, more than two months passed, the judges are still unable to answer those basic questions. The Plaintiff has to ask the judges, are those basic questions really difficult for you to answer? Why you cannot answer those basic questions within the reasonable response time? 160 On April 13, 2004, Susan corrected the missing date issue on the Judge’s response of April 6, 2004. Any correction on the mistake is welcomed. The Plaintiff is waiting for the judge’s correction on their misjudgments of Feb. 5, 2004 and April 6, 2004. A judge is Honorable if he/she can make correct judgments. However, judge is human. Any human can make mistake. Hence, a judge is also Honorable if he/she can correct his/her misjudgment. If a judge made a mistake, but refuse to correct his/her mistake, then People have to doubt whether that judge is qualified as a judge. Regarding to the judges’ response of April 6, 2004, which includes only one sentence: “The petition for rehearing is denied.” The Plaintiff asked the judges: You did not hold any hearing on this case yet, where is the word “rehearing” come from? Until now, the judges have not answer this question yet. Actually, judge Young also did not hear the frauds of Defendant and NASD completely. On the Feb.6, 2003's hearing, within the short 20 minutes, Judge Young did not make a hearing on the Frauds of TD Water House and NASD arbitration administrator. On the Feb.6, 2003’s hearing, the main debate is focused on whether it is OK to reopen this case on the US District Court. And judge Young made correct judgment on this issue. Judge Young said: “Okay. I rule that his motion to reopen tolls the time ...” (See page 6 of Addendum 07 in the Brief of Appellant) However, Judge Young’s reasoning on the conclusion has defects. Judge Young said: “ ... because the only reason to reopen a case after arbitration is either to confirm or vacate the award.” If 161 Judge Young read Plaintiff's motions carefully, he should understand that there is second reason to reopen this case. That is “The Frauds made by TD Water House and NASD arbitration administrator during and after the arbitration should be punished.” This case started from a relatively minor issue (Trade Mistake). However, this case becomes a serious case due to the Frauds made by TD Water House and NASD arbitration administrator during and after the arbitration. In the process of appeals in the US Court of Appeals of First Circuit, the Plaintiff has the opportunity to prove all those Frauds made by TD Water House and NASD arbitration administrator. By asking critical questions in the Reply Brief of Plaintiff, and the Defendant failed to submit its Reply Brief, the Plaintiff successfully proved the NASD arbitration administrator’ s Fraud on “cooking the arbitration hearing tape” (See Plaintiff's motion of Sep. 29, 2003). By requesting Ms. Kelly Davis testimony on this Court and by using reductio ad absurdum approach, the Plaintiff successfully proved the “Fraud on selecting arbitration panel” made by TD Water House and NASD arbitration administrator; Also, by using reductio ad absurdum approach, the Plaintiff successfully proved that the Defendant Hire Lawyers to Lie in Affidavit. (See Plaintiff's motions of Nov. 3, 2003 and Dec. 1, 2003). Judge Young did not hear all those facts. Now, the essential issue of this case is: People against Frauds. Our judges should stand with the People side, and punish the Frauds made by TD Water House and NASD arbitration administrator. Due to both the US District Court and the US Court of Appears of First Circuit did not hold any hearing on the 162 ‘ , E ‘ Frauds made by TD Water House and NASD arbitration administrator, the Plaintiff respectively request the judges in this court to take one of the following actions: z (1) Hold a hearing with Juries on this Court to punish the Frauds made by TD Water House and NASD arbitration administrator, (2) Or Order the US District Court hold a hearing with Juries to punish the Frauds made by TD Water House and NASD arbitration administrator. The response from the judges on April 6, 2004 DID NOT denied the Plaintiff's statements of the following: “The JUDGMENT entered on February 5, 2004 is clearly a mistake. The JUDGMENT uses Loc. R. 27 (¢ ) as its authority. However, (1) Loc. R. 27 (¢ ) does not grants the judges to do not punish the Fraud; (2) Loc. R. 27 (¢ ) does not grants the judges to do not investigate the Fraud; (3) Justice is the Truth In Action. Loc. R. 27 (¢ ) does not grants the judges to make the judgment without hearing the truth from Ms. Kelly Davis’s testimony.” Hence, the Plaintiff requests this Court to take any necessary actions to correct the judgment mistake of February 5, 2004. In this motion, Piamtiff would like to request the judges the 3" time to answer the basic questions in Plaintiffs Motion of Feb. 22, 2004. All those questions are required to be answered, If the judges are not talented enough (or do not have the courage) to answer those questions, then they have to openly commit their mistakes. A former apology is required. 163 Here are the questions that judges in the US Court of Appeals needs to answer: (1) Should Frauds be punished? (2) If T.D. Waterhouse made a Fraud, should T.D. Waterhouse be punished? (3) If NASD made a Fraud or Frauds, should NASD be punished? (4) Since NASD is a second justice organization, if NASD violated the Law, made Frauds. should NASD be double punished? (5) Ifa judge does not punish Frauds. is that judge ignoring his/her duty? (6) If a judge in District Court made a mistake, but a judge or a panel of judges from Appeals Court do not correct his/her mistake, is that judge or that panel of judges from Appeals Court ignoring his/her/their duty? The answer by Levin H. Campbell, Juan R. Torruella, and Bruce M. Selya will be judged by the People. And also by the Supreme Court of USA. 164 APPENDICES 15 US COURT OF APPEALS : THE FIRST CIRCUIT PLAINTIFF - Appellant/Cross - Appellee: _) De Shen ) Appeals Nos. 03-1415, 03-1478 ) ) Trade Fraud on March 7, 2000. VS. ) ) Civil Action No. 00-11190-WGY ) DEFENDANT - Appellee/Cross - Appellant: ) TD Waterhouse Investor Service, Inc ) May 23, 2004 Plaintiff (Appellant/Cross — Appellee)’s MOTION On 4" Request the judges to answer the Basic Questions in Plaintiff's Feb. 22’s Motion The Plaintiff asked the judges the basic questions in Plaintiffs Motion of Feb. 22, 2004. However, more than THREE months passed, the judges are still unable to answer those basic questions. The Plaintiff has to ask the judges, are those basic questions really difficult for you to answer? Why you cannot answer those basic questions within the reasonable response time? The judges’ answers of those Basic Questions need to be included in the “Opinions 165 Below” section of the writ of certiorari for the supreme court of the United States. If Levin H. Campbell, Juan R. Torruella. and Bruce M. Selya are not talent enough (or do not have courage) to answer those BASIC questions, then. is there any judge(s) in the US COURT OF APPEALS FOR THE FIRST CIRCUIT who is talent enough or has courage to answer those BASIC questions? The Plaintiff is waiting for the judge’s correction on their misjudgments of Feb. 5, 2004 and April 6, 2004. A judge is Honorable if he/she can make correct judgments. However, judge is human. Any human can make mistake. Hence, a judge is also Honorable if he/she can correct his/her misjudgment. If a judge made a mistake, but refuse to correct his/her mistake, then People have to doubt whether that judge is qualified as a judge. Regarding to the judges’ response of April 6, 2004, which includes only one sentence: “The petition for rehearing is denied.” The Plaintiff asked the judges: You did not hold any hearing on this case yet, where is the word “rehearing” come from? Until now, the judges have not answer this question yet. The judges in the United States Court of Appeals for the First Circuit need to provide the following information to the People: On which date, by which judge(s) of the United States Court of Appeals for the First Circuit. held the FIRST hearing on this case? So that People can understand where is the word “rehearing” coming from. 166 t i Sal ean natn taetsl dif lek Pam nediak thot lati fisan ih anaes eatin . " PYSRONT Ne Dep Ch HI EL 3 E % ® w . be ; a s f: e BSP isk as al * Actually, judge Young also did not hear the frauds of Defendant and NASD completely. On the Feb.6, 2003's hearing, within the short 20 minutes, Judge Young did not make a hearing on the Frauds of TD Water House and NASD arbitration administrator. On the Feb.6, 2003’s hearing, the main debate is focused on whether it is OK to reopen this case on the US District Court. And judge Young made correct judgment on this issue. J udge Young said: “Okay. | rule that his motion to reopen tolls the time ...” (See page 6 of Addendum 07 in the Brief of Appellant) However, Judge Young’s reasoning on the conclusion has defects. Judge Young said: “ ... because the only reason to reopen a case after arbitration is either to confirm or vacate the award.” If Judge Young read Plaintiff's motions carefully, he should understand that there is second reason to reopen this case. That is “The Frauds made by TD Water House and NASD arbitration administrator during and after the arbitration should be punished.” This case started from a relatively minor issue (Trade Mistake). However, this case becomes a serious case due to the Frauds made by TD Water House and NASD arbitration administrator during and after the arbitration. In the process of appeals in the US Court of Appeals of First Circuit, the Plaintiff has the opportunity to prove all those Frauds made by TD Water House and NASD arbitration administrator. By asking critical questions in the Reply Brief of Plaintiff, and the Defendant failed to submit its Reply Brief, the Plaintiff successfully proved the NASD arbitration administrator’ s Fraud on “cooking the arbitration hearing tape” (See Plaintiffs motion of Sep. 29, 2003). By requesting Ms. Kelly Davis testimony on this Court and by using reductio ad absurdum approach, the Plaintiff successfully proved the “Fraud on selecting arbitration panel” made by TD Water House and NASD arbitration administrator, Also, by using 167 reductio ad absurdum approach, the Plaintiff successfully proved that the Defendant Hire Lawyers to Lie and Perjury in Affidavit. (See Plaintiffs motions of Nov. 3, 2003 and Dec. 1, 2003). Judge Young did not hear all those facts. Now, the essential issue of this case is: People against Frauds. Our judges should stand with the People side, and punish the Frauds made by TD Water House and NASD arbitration administrator. a Due to both the US District Court and the US Court of Appears of First Circuit did not hold any hearing on the administrator, the Plaintiff respectively request the judges in this court to take one of the following actions: (1) Hold a hearing with Juries on this Court to punish the Frauds made by TD Water House and NASD (2) Or Order the US District Court hold a hearing with Juries to punish the Frauds made by TD Water House and NASD arbitration administrator. The response from the judges on April 6, 2004 DID NOT denied the Plaintiffs Statements of the following: “The JUDGMENT entered on February 5, 2004 is Clearly a mistake. The JUDGMENT uses Loc. R. 27 (c ) as its authority. However, (1) Loc. R. 27 (c ) does not grants the judges to do not punish the F raud; (2) Loc. R. 27 (c ) does not grants the judges to do not investigate the F raud; 168 (3) Justice is the Truth In Action. Loc. R. 27 (c ) does not grants the judges to make the judgment without hearing the truth from Ms. Kelly Davis’s testimony.” Hence, the Plaintiff requests this Court to take any necessary actions to correct the judgment mistake of February 5, 2004. In this motion, Plaintiff would like to request the judges the 4" time to answer the basic questions in Plaintiffs Motion of Feb. 22, 2004. All those questions are required to be answered. If the judges are not talented enough (or do not have the courage) to answer those questions, then they have to openly commit their mistakes. A former apology is required. Here are the questions that judges in the US Court of Appeals needs to answer: (1) Should Frauds be punished? (2) If T.D. Waterhouse made a Fraud, should T.D. Waterhouse be punished? (3) If NASD made a Fraud or Frauds, should NASD be punished? (4) Since NASD is a second justice organization, if NASD violated the Law, made Frauds, should NASD be double punished? (5) If a judge does not punish Frauds, is that judge ignoring his/her duty? (6) If a judge in District Court made a mistake, but a judge or a panel of judges from Appeals Court do not correct his/her mistake, is that judge or that panel of judges from Appeals Court ignoring his/her/their duty? 169 The answer by the judges of the United States Court of Appeals for the First Circuit will be judged by the People. And also it will be judged by the Supreme Court of USA. United States Court of Appeals For the First Circuit : No. 03-1415 No. 03-1478 DE SHEN, Plaintiff, Appellant, Vv. T.D. WATERHOUSE INVESTOR SERVICE, INC., Defendant, Appellee. Before Torruella, Circuit Judge, Campbell, Senior Circuit Judge, Selya, Circuit Judge. 171 ORDER OF COURT Entered: June 18, 2004 Mandate was issued in this case on April 13, 2004, with the result that this case is no longer under judicial consideration. Construing petitioner’s “Motions on 2", 34, and 4"" Request the judges to answer the Basic Questions in Plaintiff's Feb. 22’s Motion” as motions to recall mandate, the same are denied. These appeals having been closed, the Clerk of Court is hereby directed not to accept any further filings in these cases (Docket Nos. 03-1415, 03-1478). By the Court: Richard Cushing Donovan, Clark By: Mark R. SYSKA Chief Deputy Clerk [cc: De Shen, Pete S. Michaels, Esq. And Derek C. Anderson, Esq.] 172 eee ee Tena E ST oe ~ a Sot --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1335%3A2. Public record. Not legal advice.