Carson Explanation

AFFIDAVIT
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BEFORE ME, the undersigned authori (Notary Public),
this day
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day 6, Lu<- 2013, personally appeared
o^l who being by me first duly sworn, and who
ldid/did
not] take an oath, states the following:
By way of references to the parties involved, I will provide a list of names to which you can refer
during review of this affidavit.
By way of introduction, you will see several corporate names which make up a conglomeration
of foundations, eight in total:
1. Cargill Elphinstone Foundation (Dr. John Hanis)
2. Cargill Hiller McCoy (Dr. John Harris)
3. Agritec S.R.L. (Dr. John Harris)
4. Cargill Capital Equities (Dr. John Hanis)
5. Gabonbras, S.L. (Jaun Ramon Vergas Pena)
6. The Pindari Foundation (senior partners in Europe andBrazil, with operations in Sao Paulo
with a senior representative there by the name of Maria Alzira Fins de Oliveira Santos)
7. Pindari Farms, S.A.
8. Merchant Securities & Trust (the financial arm of all of the above listed foundations. This
financial entity is operated in two main locations:
A) Zurich, Switzerland by Attorney Stephan M. Hirter (also listed in registry as managing
principal)
B) Sao Paulo, Brazll by Maria Alzira Fins de Oliveira Santos - holding signatory powers in full
to act on behalf of the foturdation in all matters related toBrazilian operations and South
America. In addition, she handles the banking and all legal matters for the Trust.
Before I begin, I want to refer you to (EXHIBIT 1), which is a complete compilation of the entire
5 year history of my communications as well as documentation (inclusive of financial
documentation) with all of the above mentioned syndicate partner foundations.
2007
By way of facts, in June 2007,I was introduced to Dr. John Harris through a mutual relationship.
John Harris is a member of most, if not all, of these syndicate partner foundations listed above.
In this instance, John was aware that I was in the process of structuring funding for my company
and its projects (which was a music production company). Please refer to (EXHIBIT 2) for the
Commercial Studio Project for Masterworks Media & Entertainment, LLC. I am and was highly
qualified to build and operate such facility as my background in formal music and recording arts
training at the Johns Hopkins University. In the process of our conversations, he informed me
that I could assume a syndicate partner role in their foundation which would result in the
complete capitalization of my company. The legal fees to assume such a role were given to me in
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Case 3:12-cr-00017-TAV-CCS Document 41-1 Filed 01/10/14 Page 1 of 16 PageID #: 190
the amount of $125,000 USD (wire receipts enclosed in the EXHIBIT I package of the 6 year
history). This wire was initiated by my capital partner, Steve Almas, within a few days of the
requested amount. Initially, this was to be a 30-60 day turnaround for a start of a draw down
schedule of a period of time for the capitalization of my company. The foundation under which
these funds were taken in was Cargill Hiller McCoy and wired to an account in Italy (controlled
by John Harris and his associates) held in the name ofAgritec S.R.L.
There began to be delays on the performance end of the funding draw down schedule, but they
were providing documentation each step along the way to explain those delays, so I subsequently
went out and began to borrow funds against the commitments that we had taken in from the
foundation to fulfill some commitments I had made.
2008
By June of 2008, they introduced me to another member of the foundation and disclosed that
they had a need to pay some ugent taxes with one of the foundations located in Madrid, Spain
(Gabonbras S.L.) and that due to some complications it would be quicker if they had them
covered from an outside person or entity. The amount needed was $75,000. Again within a few
days, I had the $75,000 wired to the indicated corporate account by my capital partner, Steve
Almas (wire receipt enclosed in EXHIBIT l). A note of mention, the funds used in both of these
cases in 2007 and 2008 were the sole funds of Steve Almas, and I nor he went out to anyone for
the funds. All documentation was disclosed to Steve and he had phone and email access, as did I,
to the foundation partners.
As you will see by the communication from this entity, they committed to fund my company in
exchange for our help and investment, which we had added a few projects by this time so the
increased capital funding warranted.
Multiple communications came and went throughout the year without them following through on
any of them.
2009
Due to multiple missed commitment dates, Gabonbras increased the settlements through the
return amount to my company on several occasions as you will see by the documentation.
20r0
In July of 2010, Gabonbras issued an irrevocable payment guarantee for a final settlement
amount of 6.2 million euros - this was to be the final investment settlement for funds owed and
losses incurred by the investors I had brought on board as a result of their delays. By this time, I
was relaying and even disclosing confidential financial documents with some of the investors as
I had lost a lot of credibility with them due to my missed deadlines and commitments to them as
a result of the foundation's missed commitments to me. This documentation came complete with
passports of the two share holders and banking signatories (see EXHIBIT 1).
On August 16,2010, the federal authorities raided my home and business with a search warrant
and retrieved my computers and all hard drives and electronic communications. As you will see
by a letter from Gabonbras dated October 26,2010 (see EXHIBIT 1), they are responding to my
disclosure of the federal raid and thus problems I had encountered by their delays and in that
letter you will see the connection of names between Gabonbras and both the Pindari Foundation
and their "associated Trust" (which was revealed to me at that time to be Merchant Securities &
Trust - their financial arm responsible for all settlements with my involvement with the
foundations).
Also included in that October 26,2010letter, Gabonbras committed $250,000 for my legal fees
as it related to the federal investigation that I was now involved in.
20II
In May of 201 I
,
I was introduced to multiple parties in the foundation and was made aware that
Pindari/Merchant Securities & Trust (in line with the financial protocol at Caixa Economia
Federal) as operated by their authorized representative for all financial matters at Caixa, that
Maria Alzira Fins de Oliveira Santos would issue final commitments and payments from an
operating account held at Caixa Economica Federal (which you can review in EXHIBIT 1). You
will note that this commitment has been increased to 10 million euros as "settlement fees" with
their project funding commitments of 75 million euros for projects they had committed to 2 to 3
years earlier. Along with the documents, Maria provided a copy of her passport (see EXHIBIT 1)
as well as her authorized powers with the foundation, showing both the relationship and
authority to undertake such settlements on behalf of the foundation of which she is a part.
All of the detail in this summary as well as the EXHIBIT I was prepared and compiled for my
defense counsel (Bobby Hutson of the Federal Public Defender's Office in Knoxville, TN). The
preparation of this package pre-dated any decision to take a plea and was prepared in the early
weeks following my release on bond from my indictment last year. This was prepared in the first
few weeks following my release on bond from my indictment last year. What prompted the
thought was during the second session of my detention hearing last March, as Mr. Hutson came
in and sat down to start the second part of the hearing, he leaned over to me at the table and said,
I now know where she (the prosecutor) is going with this. I spoke with her. We can get this
wrapped up very quickly by next month. At the time of this statement, he had not so much as
even asked me my side of the story or any evidence, documentation, or information that would
corroborate my account of events that lead to this indictment, but simply had spoken to the
prosecutor about aplea deal and had come to some sort of arrangement and disclosed that to me
without ever asking me "what happened." So I knew right away that he was in the process of
prejudicing me in that he had no desire to do any fact finding contrary to the government's
account in the indictment and it was clear that in his mind it was a foregone conclusion I was
guilty and his sole approach was to get me to plea out.
With that in mind, I compiled the facts that I have recounted here along with the compilation of
the chronological history of documentation in hopes to shed light on the truth of the situation as
it happened in order to establish a productive attorney/client discussion about the possibilities of
going to trial and possibly winning. Upon completion of EXHIBIT 1, I called Mr. Hutson to
inform him what I had compiled and that I wanted to email it to him to review and then discuss
the possibility of going to trial after reviewing the information. During that conversation, I also
asked if he would order a forensic audit of the financial documents contained in EXHIBIT 1 for a
certified document of my investment as my indictment states I had no such thing and simply
fabricated a story with the purposeful intent of defrauding innocent victims, which is simply not
true! Mr. Hutson's response to both the disclosure of this chronological accounting of events and
request for forensic audit of such material was, I cannot accept this file over the email as it is not
a secure email. To which I responded that I could snail mail a hard copy and he replied that if I
submitted this documentation, he would have to disclose it to the prosecution as new discovery
and that could
jeopardize
a very generous plea offering that they are extending you. After this
call, I spoke with my court appointed Third Party Custodian, Pastor Ronald Hon, (as I was on
home monitoring and could not travel to TN except for court appearances) and disclosed to him
the details of the aforementioned call with Mr. Hutson. He said he would be willing to drive it
down to TN. I called Mr. Hutson back and informed him of this offer by Pastor Hon. He said, if
the feds have enough to indict you, they have enough to convict you. By delaying your answer
back to the prosecutor on a plea acceptance, you are appearing adversarial and are running the
risk of losing the government's amicability towards you with the generous plea offer. No matter
what evidence you have or documentation, they have enough to convict you.
This was a clear prejudice of outcome as Mr. Hutson to this day has never accepted, nor
reviewed this material and never explored the possibility of taking my case to trial nor using it to
even fight for a more generous plea offer. He appeared to be in a rush to get a decision out of me.
As it relates to how Mr. Hutson prejudiced me and the outcome of my case, allow me to recount
a succession of events that unfolded between March - June 2012, during my detention hearing
and post release on bond during pre-trial period.
During the second session of my detention hearing in March of last year, (Judge Shirley had an
initial session that morning and took recess to take the information received under advisement
and so a second session was needed to conclude), I was brought in custody by the U.S. Marshals
and seated at the defense table. Shortly thereafteg Mr. Hutson entered and seated himself beside
me. He greeted me and then told me that he had spoken to the prosecutor during the recess of the
first hearing and said that he now knows where she is headed with this. He said we can wrap this
up very quickly by next month if you want to. She has a very generous plea she is going to
present.
I was stunned as I had only met Mr. Hutson
just
the week before and we had NO prior
discussions before the hearing and he had no information about my case, had yet to hear my
account of the events that lead to my indictment, nor an understanding of the complexity of
involvement in a white collar case. So I asked how we were having a discussion about aplea
offer when he did not know the facts of my case according to my account. He responded that we
would discuss those issues as we move forward and that he was just happy to have me released
on bond. From here, I returned to our home in Indiana with my wife and some family friends.
Because I lived in Indiana and my case was out of Tennessee, Mr. Hutson arranged for us to meet
in Ft. Wayne at the federal building where they (Federal Defenders of Eastern TN) had a
northern Indiana office. It was here that we conducted private line discussions about my case as
we moved forward.
During my first meeting there, Mr. Hutson (who was
joined
by their office investigator, Charles
Brown) began to review some statements in the indictment with me and proceeded to tell me that
the government had 3 primary witnesses (though he disclosed there were many witness
statements). As he mentioned in his own words, one of the biggest enemies and informants
against me was David Trantanella.
I was taken aback as I knew Mr. Trantanella knew every detail of my financial dealings overseas
and we met on a weekly basis and reviewed documentation and progress of my investments. This
occurred as we had a financial anangement regarding the house (my residence at the time of the
initial search and investigation) at717 Tate Trotter Rd., Powell, TN 37849. As
Mr. Hutson relayed several "facts" according to the government, I began to object to the accuracy
of such statements and also strongly objected that Mr. Trantanella could have made those
statements as I knew him extremely well and knew him to be a man of honesty and principle and
one to tell the truth even in the face of odds. So in the middle of this discourse, I intemrpted Mr.
Hutson and told him to please call Mr. Trantanella and connect him on the phone that moment
and let me hear him make those statements with my own ears as I did not believe he made such
statements, which included that I had left in the middle of the night and fled to Indiana, I stole all
of his property out of the house and that I had trashed his house. Mr. Hutson strongly objected to
this and cited the
judges
order that I not contact government witnesses as apart of my pre-trial
release conditions. I responded that I was not allowed, but certainly my counsel is allowed and
that I knew him to be a man of his word and there was no way he made those statements amongst
others that I cannot recall (because to date I have never received a copy of his witness
statements though I've requested them many times). After Mr. Hutson and I went back and forth,
Mr. Brown spoke up and said that he had spoken with Mr. Trantanella and verified these
statements with him and heard him make these statements with his own ears. Mr. Hutson
concurred! Mr. Hutson then stated that they had a SIGNED affrdavit by Mr. Trantanella on their
desk at that current time confirming all of the statements that had
just
been disclosed to me
verbally. At this point, I told both Mr. Hutson and Mr. Brown that I simply did not believe Mr.
Trantanella had made those statements and would like a copy of his signed witness statements
either faxed or emailed to me so I could review them. I was told again, by Mr. Hutson, that Mr.
Brown had verified these statements with Mr. Trantanella and that he (Mr. Trantanella) was NOT
on my side and that he was sorry to have to inform me of that.
Due to my pre-trial release conditions, I was not allowed to contact Mr. Trantanella, but upon
selsurrendering myself to FMC Lexington, I personally called Mr. Trantanella and asked him
about the statements and asked him if he had spoken with Mr. Brown and verified those
statements and had signed an affidavit attesting to those statements and my questions were met
with utter furry and anger by Mr. Trantanella - so much so, that he asked me atthat point to put
Mr. Hutson on the phone that moment and have him tell him that he or someone from his office
spoke with him or deposed him regarding the statements and that he wanted to demand
Mr. Hutson show him an affrdavit with his signature on it anywhere regarding any statements
made to the FBI, as he said he never signed, nor reviewed any statements upon the conclusion of
the two visits he received by the FBI. I told him that I was not going to pursue anything with Mr.
Hutson any further. He replied that if I ever appealed my case that he wanted to be deposed and
wanted to tell the facts of exactly what he told the FBI and preferred to do so on a witness stand
as he was angered that someone had stated that he had signed an affidavit with such statements.
Mr. Trantanella again stated that he had only spoken to Mr. Brown about arranging a pick up
time for my wife to pick up some personal property from his storage as I could have no contact.
He further stated that he even asked Mr. Brown if he needed to be deposed by my defense
counsel as he knew that was standard procedure in cases like this and was told by Mr. Brown that
he did not need a deposition statement from him. (See EXHIBIT 3)
As this conference call continued, we moved to the discussion of the government's most
damning evidence against me (as it was put to me) and that was the day of February 21,2007,
whereby I was informed verbally in a recounting of the supposed conversation I had with Kim
Almas (KA) where I supposedly approached KA with a scam investment deal where I told her
that if she wired $55,000 to me, I would invest it overseas as I was involved in overseas bank
trading. I will cover the details later in the affidavit as to the facts of these events surrounding
this day, but suffice it to say for now that I objected to the statements, the facts and the person of
contact and told both Mr. Hutson and Mr. Brown in no uncertain terms that everything about that
indictment statement was fabricated and that the only truth regarding the indictment statement
was the Tactthat KA wired $55,000 to my business account. I further stated to Mr. Hutson that I
could prove unequivocally that I never spoke with KA, never made those statements to her nor
her husband. I further stated to Mr. Hutson that I would like to have both Mark Almas (MA -
Kim's husband and confidential informant against me) and KA deposed and told them the
questions I wanted asked of them both in a deposition to garner the truth from them both under
oath in my defense. That request was met with, when the feds have enough to indict you, they
have enough to convict you and the best thing we can do is move on towards a generous plea
offer with the prosecution.
In reply I asked to have a copy of both their witness statements either faxed or emailed to me for
my review for further discussions and Mr. Hutson told me that that would not change the facts
and that the government had me red handed as I received a wire on Feb. 2I,2007 for $55,000
and the following day negotiated a check for the purchase of a vehicle for personal use for an
excess of $55,000. He further stated that no amount of depositions and evidence from me would
change banking statements and accounting records and so complying with me in regards to
supplying witness statements and depositions would not change that fact and that if I went to
trial, they would certainly win purely off of accounting records. I further insisted that the
accounting record was NOT accurate nor complete according to the indictment. His response
was the same. He told me, the best thing we can do is look atplea options because I was guilty.
On May 8,20I2,I attended (telephonically) my hearing for waiver of speedy trial. It was
revealed by Mr. Hutson during that hearing that there were over 2000 pages of discovery with
new discovery still "trickling in" as well as 3000-5000 text messages all involving me. He stated
to the court that day the following, "More importantly, in terms of the substance of our request,
WE need this time to properly review the discovery
"from
the Government in this mattex The
discovery is voluminous. As of now, there are approximately 2000 pages of discovery, and it is
trickling infrom time to time, does require additional review on my part. Additionally, there are
probably- is it 3000 to 5000 text messages that need to be reviewed on the case
from
various
parties, and all of them relate to Mr. Carson. Additionally, it is paramountr us to be able to
advise Mr Carson on possible motions in the case, and without having an opportunity to review
the documentation, it is myfear that I would be unable to do that effectively. "
(See EXHIBIT 4)
Here Mr. Hutson admits in court to not having completely reviewed the discovery much less
digested it in a manner to "effectively"
(his word choice in transcript) advise me of possible
motions, yet weeks prior to this, the above accounts occurred with constant pressure to agree to
and sign a plea deal.
I further bring the court's attention to Government's agreement in court transcripts from the same
hearing, whereby Judge Shirley sets the plea cutoff date for October 9,2012 with the prosecutor
reply in agreement as that portion of the transcripts state: THE COURT "We will need to take up
the issue of a plea cutoff date. We need a new plea cutoff date. Normally, we do that a couple of
weelrs before trial. Is that satisfactory with the Government in this case? MS. KOLMAN: That's
fine,
your honor THE COURT: IVe'll make it October 9th. All right." (See EXHIBIT 5)
In the following weeks after this hearing, I had made contact with a defense attorney in St. Louis,
MO by the name of Scott Rosenblum and was in discussion about trying to retain him for private
counsel in my case as I was trying to secure the funds to hire him within the guidelines and
restrictions of my work release conditions. Later that month, Mr. Rosenblum had asked me to
come to St. Louis for an initial visit to discuss possible retainer structures and for initial
consultation. I informed him that I was on supervised release with the monitoring system and
that any request to travel outside the Northern District of Indiana would require approval from
my Probation Officer and I directed him to contact my direct PO, Mr. James Hunt, PO for
Northern District of Indiana. At my request, Mr. Rosenblum did so, and was informed by Mr.
Hunt that he needed to secure permission from the
jurisdictional PO in TN as that is where the
jurisdiction
of my case lay. He apparently did so and contacted me back to inform me that TN
Probation had denied the travel request by Mr. Rosenblum and therefore, I would not be allowed
to travel to St. Louis. It was several hours after I received the phone call from Mr. Hunt
informing me of TN PO's decision, that Mr. Hutson called me, very upset! He asked me why I
was going behind his back to secure outside counsel. He further stated in haste to me that any
and every action that I make is known by him, the court, and the prosecution and that my actions
appear to be underhanded and that the prosecution was aware of my attempl to privately secure
outside counsel. I informed Mr. Hutson that I had a right to retain outside counsel if I so chose,
and he agreed and said that at any time I could retain outside counsel, but that his plate was full
and that if I had intentions of retaining outside counsel to let him know now as his time was best
served with those who would allow him to remain as counsel. He further stated that my actions
(referring to appearing underhanded) could cause the prosecution to cease to be amicable with
me with regards to plea negotiations and that any intentions I had needed to be kept up front and
on top of the table. The call ended there.
It was a week or so later that I received an email from Mr. Hutson on June 4,2012, stating, "I am
free
Wednesday or Friday afternoon. Can you pick one of those days and go to Ft. Wayner a
phone interview? You have DEADLINES associated with your case. lile need to speak this week.
Thanl<s." (See EXHIBIT 6)
During this phone conversation that resulted from the email above,
Mr. Hutson informed me that I had a deadline of June 20,2012 to accept the plea offer by the
Government or the prosecutor could and reserved the right to enhance my charges to include a
Hate Crime against Christians and Sophisticated Means, in addition to a level bump in my
sentencing guidelines by adding additional victims. In response, I asked Mr. Hutson about the
Plea Cutoff date set by the court, in the May 8, 2012 transcripts referred to earlier, and he replied
that the prosecutor does not have to extend a plea offer till that date ifthey feel I am not
cooperating. At this point, I began to see the writing on the wall and did not want to appear
adversarial with the Government and ceased my objections to Mr. Hutson's pressure to plea out. I
quietly continued my conversations and efforts with Mr. Rosenblum, to retain him as outside
counsel to get proper counsel as to what my options were with all that had transpired. I spoke
with my wife after this call and we decided together that if I could not retain Mr. Rosenblum by
the new imposed deadline, then out of necessity and concern for the well being and continuance
of my family as a unit, I would have to plead guilty to the charges even though I knew them to be
different. I knew I had no chance attrial with Mr. Hutson as counsel as he had literally told me as
much in our early conversations.
The cutoff date of June 20th arrived and I still did not feel right nor comfortable pleading guilty
to something I knew to be different in the facts and events. So I asked Mr. Hutson to request an
extension of the prosecutor as I needed more time to discuss with my wife the ramif,rcations of
such a decision and action. Mr. Hutson came back with a successful extension of 2 days, until
Iune22nd. (See EXHIBIT 7)
When the 22nd came, I felt I still needed more time to try to retain Mr. Rosenblum and get
proper counsel, so I stalled again and asked for a week's extension as to further discuss with my
children. It was in response to this refusal to sign that I received a threatening ultimatum from
the prosecutor forwarded to me by Mr. Hutson stating, "Dear Mr Hutson, Pleasefind attached
the non-cooperation plea agreement as we discussed. Please advise your client that a plea
agreement MUST BE SIGNED and on my desk not later than 5p.m. on June 29, 2012. Otherwise
there will be no
further
plea negotiations. As you know the offer was quite generous and was
ONLY offered if your client accepted it immediately. If you have any questions please contact me.
Jennifer Kolman, Assistant United States Attorney, U.S. Attorney's Office" (See EXHIBIT 8)
At this
juncture
on a final call with Mr. Hutson, he told me that if I did not sign the plea
agreement by the date and time in the prosecutor's email, that she would withdraw the plea and
force me to plea out directly to the court or go to trial and face a possibility of 7-10 years
imprisonment. Out of fear and for the sake of my lovely wife and 4 beautiful daughters,I chose
to accept and sign the plea agreement on June 29,2012 as I valued my relationship with my wife
and my active, daily role in the lives of my four daughters.
It should be abundantly clear to the Court, at the very onset of this case, that the gravity of the
charges and the complexity of possible defenses was OUTSIDE the range of counsel's expertise.
As evidenced above, Mr. Hutson had NO IDEA how to defend this case. His sole defense put
forth repeatedly was PLEAD GUILIY. He had no plan
"8", no exit strategy, no possible
defenses...simply plead guilty.
As it relates to my sentencing and the ineffectiveness of counsel, Mr. Hutson gravely prejudiced
me by his total lack of preparedness and unwillingness to put me forth in the best light possible
during the sentencing hearing. Let me explain. Mr. Hutson asked me to write out a bullet point
synopsis of my professional background in an informal manner for his notes and preparation for
my sentencing (See EXHIBIT 9), explaining he wanted to have some very positive things to say
about me and to put me forth in the best light possible (as he explained on the phone in one
conversation). Note in pages 2 and 3 of EXHIBIT 9, an email from me to Mr. Hutson outlining
my professional accomplishments of a lifelong music and production career, yet in the
sentencing transcripts, he makes no reference nor mention of a single accomplishment and the
only positive light he put me in was in his agreement with the prosecution that I was a well-
educated and capable man and therefore would require less rehabilitation time.
Another example - he sent me an email requesting letters of support from friends and family. In
an email dated December 5, 2012, he states, "Attached is a letter that describes my request. They
do not need to be long, nor do they need to justify your actions in any way. We just want some
positive things about you. Call me if you have any questions. Thanlts, Bobby." (See EXHIBIT 10
- pg. 1) Mr. Hutson received 5 letters of very strong support from my wife, Trina, my brother,
Carl, and three very close family friends: Laura Baker, John Smith, and Cynthia Hon. Mr.
Hutson acknowledges in an email his receipt ofALL the letters sent to him (See EXHIBIT 10 -
pg.2).I would have liked to have had more letters written in support of me for the leniency of
the Court, but Mr. Hutson informed me in a phone conversation not to secure letters from Steve
Almas, David Baker, or Chris Stansell as they we all considered adversarial to the prosecution
and would not be received in a positive light, so at the advice of counsel, I did not allow any of
those men to write letters of support though they asked if they may. Yet in my sentencing
transcripts, Judge Vamer states and acknowledges receiving and taking in consideration ONLY
ONE letter received from Laura Baker, giving the appearance of no outside support from family
including my wife! (See EXHIBIT 11) As Judge Varner states, "The Court also notes in the
record the submission of the letterfrom Mrs. Laura Baker on defendant's behalf which the Court
has reviewed and takes into consideration."
Last example of ineffectiveness of counsel in the sentencing portion of my case. (See EXHIBIT
12) This is an email where Mr. Hutson responds to a question I had asked him repeatedly over
the course of the week prior for permission for my kids to attend the hearing. You will note Mr.
Hutson's response in an email dated January 7
,2013,
where he states, "PS. I got your questions.
Your kids either need to stay in our outfor the entire proceeding. My advice would be to leave
them outside. " As a family, we had decided to bring our entire family down as we wanted our
kids to be present in the courtroom and Mr. Hutson had left the decision up to me. My wife and I
discussed this in great detail and decided that we wanted Judge Varner to see that while many
(but not all I'm sure) African American men come before him with a history of violence,
substance abuse, domestic abuse, broken homes with children from many different women out of
wedlock, we are one African American family where my lovely wife is my frst and only wife of
19 years and we have 4 beautiful daughters all inside of wedlock. We wanted our children in
there so the Judge could see that our girls have been raised properly and are well behaved, home-
schooled by their mother, which her support letter outlined these things but was never submitted
into Court and would have pointed out that our devotion to rearing godly, moral children who
can and will contribute to society in an honorable, law-abiding manner, all of which is
immediately evident upon seeing them. But all of this was denied our family before the judge
during sentencing because of the utter ineffectiveness of my counsel at the time, Mr. Hutson. As
a result, we felt Judge Varner, based upon the information and testimony given that day with little
to no positive information given on my behalf, handed down a fair sentence, but we firmly
believed that had
Mr. Hutson been effective in representing me in the most positive manner possible with the
material and information we submitted to him at his request, even my sentencing would have
turned out differently.
The facts of this day arc as follows: Upon my arrival at Mr. Hutson's office 30 mins prior to start
of sentencing hearing (as instructed), I informed
Mr. Hutson that we had brought our 4 children down and intended to allow them in the hearing
to support their dad and for the
judge
to have the opportunity to see my entire family so that his
opinion of them could be taken into consideration. My wife and I felt that at ages 17,15, 13 and
1l at the time, and with the preparation we had given them prior to the trip about the hearing,
they were well equipped to be present during sentencing.
Mr. Hutson immediately replied that he would need to speak to the prosecutor about that urgently
and instructed me to head on over to the courthouse (never giving me any final instructions as to
the procedure of the sentencing) and that he would join
me there. When he arrived, he spoke to
my wife and I and informed us that he had spoken to the prosecutor and that after discussions,
both he and the prosecutor felt it best for the girls to remain outside with the security guard
because the judge
could look on that unfavorably and we didn't want to appear to be attempting
to sway the judge's
mind by bringing our children in. He then walked over to our children and
told them as well that they would not be allowed in the courtroom during sentencing but that
they were to remain outside with the guard until we returned. My kids were in shock as was my
wife and L I immediately felt very strong undertones of racial bias as there was no other logical
explanation of why they could not come in. Why would we NOT want to sway the Judge's mind
Case 3:12-cr-00017-TAV-CCS Document 41-1 Filed 01/10/14 Page 10 of 16 PageID #:
199
for leniency in sentencing, after all, wasn't that the job
of defense counsel? Mr. Hutson further
spoke to me once we entered inside the courtroom immediately after the prosecutor walked in
and they had a quick conference chat. He came over to my table and confirmed again, asking if
our kids were coming in. I said no. He said, good because the prosecutor just
walked past them
out in the hallway and came up and asked if they were coming in. By this point, I flat out felt
there was an intentional effort to undermine my character as an African American man who had
tried to rear his family the right and proper way with well trained and behaved children, yet,
there was a concerted effort at the last minute by both Mr. Hutson and the prosecutor to keep my
children out of the courtroom. Yet, during the hearing he stated that I had my children in
attendance but "1" had decided that it was more appropriater them to remain outside! (See
EXHIBIT 13). As further testimony of this day, please See EXHIBITS 14 and 15 - affidavits
from my wife, Trina Carson and our oldest daughter, Breanna Carson (age 18).
By way of enlightenment for the Court, I would like to present evidence not only withheld by my
so-called defense counsel, but also by the government as well. This portion of the Affidavit deals
with the most egregious errors, shortcomings, and failures on the part of Mr. Hutson.
One thing is evident. Counsel was NOT prepared to defend this matter. He had no intention of
putting the case of the prosecution to the crucible of adversarial testing as protected by the Sixth
Amendment. Not only was he not prepared to defend, his only motive was to coerce me into a
plea agreement. The evidence put forth below will show that any reasonable man would not have
entered such a plea under the same circumstances had ALL the proof been put forth.
Amazingly, this summer I received a strange letter from Mr. Hutson. The letter reads:
"I received
a messagefrom the FBI agent who wants to return property to your wife. These items include,
but are not limited to: a churchflyer copies of Affidavitfrom Spain, photocopies of passports
for
Juan Ramon and Tommy Cristobal Colon, various Regions Bank documents, copies of emails,
subpoenafrom Knox County General Sessions Court, IRS Notice, Masterworls Media letter
letters
from
Ethel Fosteri First TN pin receiptform, ATM card paperwork, Regions Cashier's
Check receipt, letter
from
Baker Donelson, Copies of Masterworlcs Studio Annex
from
Lawrence
Swist Designs, documents
from
Regus and documents
from
UBS Financial Services.
I cannot accept personal property on your behalf. As such, I needfor you to write me and
provide current contact informationfor your wife. Please include phone number and address.
They will mail the items to her I hope you are doing well and spending your time in a positive
manner. Take care. /s/ Bobby Hutson" (See EXHIBIT 16)
What is so striking about his letter is the fact the FBI had in their possession, the very proof that
would have exonerated me. The FBI had full and complete knowledge that there were actual
people from Spain. They had full knowledge that my claims that I was going about doing
business as usual based upon commitments made to me were true. Counsel, Mr. Hutson knew as
well.
200
EXHIBIT 17 (the documents referenced as Affrdavits and passports in EXHIBIT 16) will show
that the FBI, thus the government, and counsel, were in possession of Aff,rdavits and passports of
the very people I had maintained had made financial commitments to me and my company.
Counsel failed miserably by refusing to put forth any type of defense, and continued to exclaim,
that my best bet was to plead.
Why would the FBI, agents for the government/prosecution, simply return the items to my
wife?? Why were not the documents presented to the Court? Why were the documents not
entered into the record of these proceedings as exhibits?
For the sake of clarity, and to show the egregious failures of both Counsel and the government, I
would humbly invite the Court's attention to an Affidavit from Mr. Steve Almas. (See EXHIBIT
18). I cannot help but wonder, in hindsight, why counsel did not call Mr. Steve Almas. He clearly
had exculpatory evidence that not only made him relevant, but, most importantly, the lynch-pin
to the defense. As stated earlier in this Affidavit, I urged and implored Mr. Hutson to please
depose Mr. Steve Almas, continuously telling him that by doing so, he could unequivocally
refute, with documented evidence and testimony, the government's assertion of an intent to
defraud. My repeated request fell upon deaf ears as counsel did nothing in the way of
impeaching the testimony of the FBI agents who were clearly aggressively and actively
concealing the WHOLE truth as noted in EXHIBIT 18.
Why did the FBI, the agents of the governmentrosecution, not want the testimony of Mr. Steve
Almas? Why was there a concerted effort by the FBI to dismiss and conceal the fact that Kim
Almas (I(A) wired $150,000.00 to her brother-in-law, Steve Almas, the exact same day and time
she made the $55,000.00 wire to Masterworks? How would that very pertinent fact, coupled with
Mr. Steve Almas' testimony and documented proof, have changed the outcome of my case? This
documented proof and testimony is, after all, new evidence in my case that was clearly omitted
and concealed by the government and woefully ignored by Mr. Hutson, as I did not possess this
documented proof on any computers or hard drives seized by the government.Why would the
largest investor in my company, by hundreds of thousands of dollars, have to initiate the ONLY
contact with the FBI and offer them documented, exculpatory evidence and have that evidence
and his testimony declined? Why would not Mr. Steve Almas, a man who was personally
responsible for bringing over $965,000.00 (Evidence Exhibit to be shown later) into my
company, not be contacted and interviewed by the FBI? You would think he would be the first
person they would have spoken to. I humbly suggest that the Court deserves grave answers to
these questions.
What is it that the FBI was afraid of "officially" discovering, i.e. having on the record? After all,
we know, by the preponderance of evidence put forth in this AfTidavit, that they (the government)
knew "off the record" that it existed. We know
from
Mark Alma{ own words that he told "the
truth" to the FBI and stated such in an unequivocal manner (See EXHIBIT 19). In it, he states to
his brother, Steve Almas, on April 20,2013:
"Steve, I want to make this very clear I have ONLY
stated the truth. To you. Tb the FBL If there is an enor in what the FBI shared with the Court,
201
you will need to show me the court docs bere I write a letter to the court. That only makes
sense. I never saw afinal reportfrom the FBI or signed any other report to my lmowledge. I am
willing to correct an injustice, but you threatening me (via phone) that if I do not write this
Affidavit to the court, Marshall's attorney will come after Kimr liable, is unbelievable. I will
call the FBI Monday morning and try to get in touch with my court liaison to see if they can help
get a hold of that inrmation " Then in a personal email from Mark Almas to his brother, Steve,
on Sept 8,2013, he makes this reference in writing: "On a side note: You've asked me to trust
you. Now you need to trust me, because I can't tell you specifics. After our last call, I saved you
from
being thrown in jail
for
tampering with a
federal
witness. What you asked me to do was
against the law and did not match any plea deal, or court papers. You were lied to. I VENFIED
ALL MY INFO
from
my
"friends
in the Federal Attorney System, California. They were ready to
send the US Marshals to pick you up. I stopped them. Marshall is not the man you think." (See
EXHIBIT 20) According to EXHIBIT 19, Mark Almas "only stated the truth" to the FBI and in
EXHIBIT 20, he "verified all his info," that was submitted on his behalf by the FBI, with the
Federal Attorney System in Californla. In other words, he confirms and concurs with the account
on record.
We have a problem. There appears to be a great gulf between "the truth" that Mark admits he told
the agents and what was presented by the government in the Court records as Exhibits in
proceedings. If Mark Almas is to be believed as having told "only the truth", then he told the
agents that in addition to the $55,000 sent to Masterworks, on Feb 21,2007, there was also an
overseas investment in which he participated in the amount of $150,000 that was wired to Steve
(on the same day as the $55,000) on both Steve and my behalf that was wired out the next day.
(See EXHIBIT 2l - Bank statements of Steve Almas for the month of Feb. 2007). And this
information that Mark told the agents is supported by documented proof of invoices, signed bank
wire receipts, and letters of commitment resulting from the investment, all of which was
disclosed to MarkAlmas. (See EXHIBIT 22 &23)
Mark Almas would have also told the agents that in addition to the $55,000 wire on Feb 21,
2007
,
he has also wired an addition al 5212,311 .63 either to my Masterworks account directly or
on my behalf and they had personal knowledge first hand from his brother, Steve, in advance that
the funds were for both business and personal. He would have confirmed to the agents that he
had wired a total of 5267,3II.63 to me personally or to my company. (See EXHIBIT 24). Note:
The "bailouts" were for personal as was the initial (confirmed at the end of this Affidavit by
Exhibits). He even paid a large cell phone bill, of mine, with AT&T at a local AT&T store there
in Colorado, where he lives. This was charged to his credit card. With all of this new evidence,
one wonders why the government only listed Mark and Kim Almas' losses at $55,000. This
amount ($55,000) was later confirmed by Mark and Kim Almas as they received and returned
"victim statements" from and to the United States Probation Offrce of Eastern Tennessee from
which the USPO compiled victim losses by Mark and KimAlmas at $55,000 in my PSL IT is
clear, according to the email from Mark to Steve, that he considered every penny paid or wired
out to me or on my behalf to be part of his "investment." (See first line EXHIBIT 24).Yet
202
according to my Pre-Sentencing Investigation Report, the losses confrmed to the USPO are only
$55,000. (See EXHIBIT 25)
This raises several questions:
1) Wouldn't the Almas' (Mark and Kim) want their total investment loss to reflect "the truth" he
said he told the FBI in the interview?
2) Did he somehow forget to inform the FBI of the additional 5212,311.637
3) Did he, in fact, disclose this to the agents under oath and perhaps they failed to include that in
the Affrdavit testimony, thereby, by default, falsifiing witness statements? After all, in his text
message of EXHIBIT 19 he states that he never saw nor signed aftnal report from the FBL
4) Did Mark and/or Kim Almas agree with the interviewing agents to omit and/or conceal certain
truths conspiratorially?
5) Or, did the agents simply take their statements and select one inbound wire to my account
(stating it as the sole and whole investment transaction) and then select a personal expense
outbound from the same account that closest resembled the inbound in time and amount?
I admit, I do not have a clue as to the answers to these questions. These are simply questions that
come to my mind from the vast discrepancies that should have been apart of the adversarial
testing stage of the government's assertions. But because my defense counsel was so inept and
woefully ineffective in his assistance of counsel on behalf of this defendant, I am forced to pose
the questions to the Court, to whom answers are deserved.
To Summarize this afTidavit of the facts of my case to the best of my knowledge, I will direct the
Court's attention to several closing statements and exhibits:
1) I spoke and ONLY dealt with Steve Almas in regards to the Feb. 2007 transactions (See
EXHTBIT 26)
2) In both phone and email conversations the week of Feb. 2l
,
2007
,I
disclosed to my capital
partner, Steve Almas, both business and personal needs. (See EXHIBIT 26)
3) There were two major expenses needed and due for the company at the time of my request
(both email and via phone to Steve Almas), but the equipment to be purchased was delayed
because of availability of many of the needed components. (See EXHIBIT 27) This studio
equipment was purchased with the funds requested from Steve Almas (the week of Feb. 21,
2007). We waited until the bulk of the equipment was available to place the order and continued
ordering the balance of the equipment as it became available as you see reflected by the multiple
purchase receipts.The second urgent expense was for a composer studio lab that was purchased
from The Mac Authority in Nashville, TN. As of this writing, I do not have those receipts in my
possession here at the prison, but have someone making contact with The Mac Authority to
retrieve a copy of the 2007 purchase receipts. Both the Mac Authority and the Sweetwater receipt
totaled well in excess of $50,000 each as you see reflected by the totals in the Sweetwater
receipts of EXHIBIT 27.
4) We (my company) retained one of the world's leading acoustical design firms to partner with
us to build a major commercial studio production facility in Knoxville, TN, which was to be the
203
.49.
4g3G 'ooo
core of our business. This firm was Harris, Grant Associates of Guilford, England.This retention
and start of the research and development phase of the project necessitated a trip to England to
meet with the CEO and firm Executives for a 5 day planning and brainstorming session. This hip
was also paid for with the same requested funds of Feb. 2I,2007 and EXHIBIT 2 is the result of
the week of work sessions in England. I do not have the receipts of this trip, but the trip was
taken in late Feb./early March 2007. Areview of my passport (still in custody of TN Probation
Office) will reveal a stamped entry into the country of England during this time. For additional
verification, I was accompanied (also at my company's expense) by our chief engineer andT-
time grammy award winning mix engineer, Paul Salveson. To verifl'this, Paul can be reached
at 6I5-:135-1 E33 or salvo(gsalvonrix.coin.
5) A series of 4 emails will clearly show (along with EXHIBIT 26) that Steve Almas was my sole
capital partner and point ofcontact and that disclosures ofboth business and personal use of
funds was given in advance of any physical wire transfers. (See EXHIBIT 28)
6) Steve Almas, as my sole capital partner, as it relates to these transactions, is responsible for a
of $965,350 being brought into Masterworks with both business and personal disclosures on
funds. of this total was brought in the week of Feb.2I,2007,yet only $55,000 is
recorded into the records of the Court as having been transferred to my company for investments
during this month. (See EXHIBIT 29) No transaction from Steve Almas appears in my loss
statement of restitution in my PSI nor is Steve considered a victim, and yet he is not charged,
named, nor even referred to in my original indictment. It is as if he doesn't exist in this case.
There appears to be an ongoing effort by the government to suppress evidence by Mr. Steve
Almas as he is the only contact, out of 30+ contacts in my BOP Trulincs contacts folder, who I
am not authorized nor permitted to communicate with and this block has been on his contact
information since my arrival into the system, March 12,2013. The phone number and email that
is not authorized were the same as the ones he used from 2007 through my investigation period
and still uses to this day.
As a result of negligence of both counsel and the government, a grave ineffective assistance of
counsel and prosecutorial misconduct has occurred.
Humbly and respectfully submitted,
Freddie Marshall Carson
204
NOTARIZED AFF'IDAVIT
Further Affiant sayeth not.
STATE OF f/u^
lu
"
k
Y
COL|NTY OF Fnv. 14 t
^,(.
0^^
Signature
*4,
,
t o .J
Printed Name
by
The forgoing was of f)Gr"o Lo^ 20t3,
, who
'f
ta
produced FoP
an ern
as identification, who did/did not take an oath and, under
the penalties of perjury, hereby swears and affirms that the forgoing is true and correct.
a.)-*
acknqwJedg:d before me this
7L
day
I
f ,( l/n<s
tzzogT
ffitary Public
My Commission Expires:
6 z7'Lott
**
OR
rrrr
UN.NOTARIZED AFF'IDAVIT
Further Affiant sayeth not. Under penalties of perjury, I declare that I have read the
foregoing motion and that the facts stated in it are true.
Signature
Printed Name
Date
LAST PAGE
205

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