Free Other Notice - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MICHAEL L. FREEMAN 320 E. Virginia, Suite 200 Phoenix, Arizona 85004-1225 (602) 255-0333 Office (602) 285-1224 Facsimile e-mail: [email protected] State Bar No. 010237 Attorney for Defendant HARRIS REED

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, Plaintiff, v. CAROLYN A. HARRIS REED, Defendant. ) ) ) ) ) ) ) ) ) Case No. CR03-00421-PHX-SMM, CV06-2030-PHX-SMM (HCE) Notice of Objection to Report and Recommendation (Before the Honorable Hector C. Estrada)

Pursuant to USC 28-2255, Carolyn submits her objections to the Report and Recommendation filed on May 23, 2008 and requests that the Court set an evidentiary hearing in order to vacate her sentence, release her from custody and reset this matter for trial before a jury. Respectfully Submitted this 30 th day of May, 2008.

/s/ Michael L. Freeman MICHAEL L. FREEMAN Attorney for Defendant HARRIS REED e-mail: [email protected] 320 E. Virginia, Suite 200 Phoenix, Arizona 85004-1225 (602) 255-0333 Office (602) 285-1224 Facsimile State Bar No. 010237 SUMMARY The Magistrate has chosen to completely ignore the affidavits and evidence submitted with the Petition. Instead, the Magistrate rests on a record at the change of plea where the

Case 2:03-cr-00421-SMM

Document 650

Filed 05/30/2008

Page 1 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Petitioner asserted there was no coercion. This Honorable Court should evaluate the testimony, first-hand, to determine which statements are more credible. Second, the Magistrate makes a leap in asserting that the Court was completely aware of the stress placed on the Petitioner since the Court remarked that the Defendant's plea would occur first and then the co-defendants. The record is devoid of the actual punishment facing her brother unless the Petitioner pled guilty to spare her brother a longer prison sentence. The Magistrate ignores the affidavits or contrary affidavits but states that the other attorneys have not submitted affidavits; therefore, the issue should not be considered. Attorney Michael Smith submitted a letter that acknowledged that point which was an exhibit. The Government specifically denies there was a hidden package based on the Court's comment that " you{r} wish to resolve your case with the government which would in all likelihood resolve the other two defendant's cases." (Government response page 8, lines 21-24) . Their response is directly contradicted by the letter from attorney Michael Smith. Mr. Smith states that Carolyn Harris was required to plead first in order to allow her brother to enter his agreement. If Carolyn did not plead guilty then the Government would not allow John Harris or Sonia Brown to enter their agreement. ( Exhibit 15, Letter Of Michael Smith) The attorney in question, Barbara Spencer , has refused to cooperate in any action. Finally, the Magistrate sees no problem with evidence that defense counsel apparently did no trial preparation, noticed no defenses and advised the Petitioner that she would prepare a defense during the trial. The Magistrate finds that the Petitioner could have elected to go to trial with inadequate counsel and ignored the repercussions for herself, her brother and the family of her brother that also admitted to pressuring the Petitioner on the co-Defendant's behalf. The Magistrate chose to insert his opinion that the Honorable Court was aware of the backroom pressures despite nothing in the record to support that finding. The Magistrate cited nothing in the record to indicate Barbara Spencer had made any plea negotiations or trial preparations. -2Document 650 Filed 05/30/2008 Page 2 of 10

Case 2:03-cr-00421-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Ninth Circuit in United States v. Zazueta recognizes the waiver language in the plea agreement can be overcome in limited situations such as the one in Carolyn's case. See United States v. Zazueta 2006 WL 1440891( USDC Arizona 2006):A defendant who enters a guilty plea on the advice of counsel may attack the voluntary and intelligent character of the plea by showing that counsel acted incompetently by advising defendant to accept the plea. See Jeronimo, 398 F.3d at 1156 n. 4;
FN 2

Shah v. United States, 878 F.2d 1156, 1156

(9th Cir.1989). To establish counsel was ineffective during plea proceedings, the two-part test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is applied. See Hill, 474 U.S. at 59, 106 S.Ct. at 370. The defendant must show counsel's advice as to the consequences of the plea was not within the range of competence demanded of criminal attorneys and that, but for counsel's advice, he would not have pleaded guilty. Id., 474 U.S. at 58-59, 106 S.Ct. at 369-70; Doganiere v. United States, 914 F.2d 165, 168 (9th Cir.1990)." The Government states that Ms. Spencer obtained a plea agreement and should be considered effective. The vast majority of cases end in a plea bargain which does not, by itself, satisfy effective assistance. The Government does not contest defendant's assertions that Barbara Spencer did not advise the Court of the package nature of the plea. The Government does not contest Petitioner's assertions on Barbara Spencer's conduct but argues that the Government being satisfied with an outcome is sufficient to show defense counsel was competent for the purpose of the Government. The Government provided no evidence that Barbara Spencer was either prepared or -3Document 650 Filed 05/30/2008 Page 3 of 10

Case 2:03-cr-00421-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

effective with trial less than one week away. The Government does not claim that Ms. Spencer obtained a plea agreement through her own work or diligence. No witnesses were interviewed. No defense witnesses were noticed. No pleadings were filed. No defense exhibits were disclosed. No letters were submitted to the Government which detailed the weaknesses in the Government's case. The Government does not assert that Ms. Spencer obtained a better plea offer in her fourteen months of representation. The Government fails to offer any specific action taken by Ms. Spencer that benefitted the Defendant. The Government also fails to provide this Court with any information that asserts Ms. Spencer was prepared for trial. The Government does not challenge the assertions that Ms. Spencer did not review the evidence with Carolyn; that Ms. Spencer did not follow up on the information provided by Carolyn showing she was innocent or that Ms. Spencer advised Carolyn that her defense could be crafted during the trial when the Government puts on their evidence. Carolyn has prepared an affidavit. Her close friend, Timothy Anderson has prepared a supplemental affidavit, where they detail their efforts to prepare for trial and Ms. Spencer's ineffectiveness.(Exhibit Thirteen Carolyn Harris Statement and Exhibit Fourteen Timothy Anderson Supplement) Family members reported that co-defendants attorneys told them and Carolyn that they felt Barbara Spencer was not prepared for trial and would not win at trial. (Exhibit Seventeen, letter of Minnie Harris) -4Document 650 Filed 05/30/2008 Page 4 of 10

Case 2:03-cr-00421-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Both the Government and the Magistrate completely IGNORE the Petitioner having to send a CERTIFIED letter to her own counsel and then TAPE RECORDING a meeting. These two actions demonstrate a significant problem in communications and preparation. Both Carolyn's affidavit and Timothy Anderson discuss a certified letter received by Barbara Spencer and a taped meeting with Barbara Spencer. The certified letter was sent September 18, 2004 and signed by Barbara Spencer on September 21, 2004. (Exhibit 18). The letter outlines the efforts of Barbara Spencer which show an incredible lack of preparation for a multi-month trial beginning in three months. On December 14, 2004, Timothy Anderson and Carolyn attend a meeting with Barbara Spencer and taped the meeting without Ms. Spencer's knowledge.( Exhibit Thirteen, Fourteen and Nineteen, transcript of taped 12-14-04 meeting). This transcript has Ms. Spencer admitting to the lack of preparation for a trial beginning in lass than three weeks where she has had over fourteen months to prepare. Ms. Spencer is learning for the first time about source of funds, insurance settlements, payments, income, mortgage payments for the past ten years.(Exhibit Nineteen, pp.1-24). Ms. Spencer is now telling Carolyn that she needs to gather all these financial records since Ms. Spencer claims that she can not get them.(Exhibit Nineteen, page 20-21,p.35-37) Ms. Spencer admits that she has not read all the affidavits and asks Carolyn to give her witnesses who will be helpful so Ms. Spencer can talk to them. (Exhibit Nineteen, p.26) The Petitioner provided her attorney with names, dates and information to support Carolyn's claim that she had no unexplained or illegal income. -5Document 650 Filed 05/30/2008 Page 5 of 10

Case 2:03-cr-00421-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

( Exhibit Eighteen) Her attorney did not notice the witnesses, make any attempt to contact the witnesses or to obtain and review the documents. ( Exhibit Eighteen, Thirteen and Fourteen) Ms. Spencer advises Carolyn that she has listened to some and not most of the calls.(Exhibit Nineteen, p.36) Carolyn provides several names and numbers of people but Ms. Spencer never follows up . (Exhibit Thirteen, Exhibit Fourteen and Exhibit Nineteen, p.27-29). Ms. Spencer then discusses the plea offer that she characterizes as being given to everyone except John of five years. ( Exhibit Nineteen, p.29-30). Carolyn denies any wrongdoing( Exhibit Nineteen p.30, lines 1-6) Ms. Spencer tells Carolyn that she is facing a mandatory life sentence. ( Exhibit Nineteen, p.31, lines 1-18) Ms. Spencer advises Carolyn that her defense is a "a crap shot, it is a roll of dice".( Exhibit Nineteen, p.34, lines 14-16) Ms. Spencer does advise Carolyn that "the good thing about this trial is that the government case can take weeks to do... " so they can work on the defense during the trial. ( Exhibit Nineteen, p. 37, Exhibit Thirteen and Exhibit Fourteen) Ms. Spencer has refused to provide any work product, time sheets or information that contradicts the assertions made that she was ineffective and unprepared. Ms. Spencer refused to be interviewed or to provide a statement for this Petition. Her testimony will need to be compelled at an evidentiary hearing. Finally, the Government had Carolyn enter a plea agreement where she admitted letting her brother use a phone that was in her name for several years. The Defendant had to -6Document 650 Filed 05/30/2008 Page 6 of 10

Case 2:03-cr-00421-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

admit that she was aware that he would use the phone for drug deals. She admitted that fact during the change of plea after having denied it for over one year. She immediately recanted her admission and repeatedly professed her innocence to all who would listen. The Government has been unable to produce any direct evidence, among the thousands of calls and tapes, that would indicate that Carolyn was guilty. Barbara Spencer would not allow the Defendant to review the actual calls until two weeks before trial. ( Exhibit Thirteen, Exhibit Fourteen and Exhibit Nineteen). The Defendant has produced a statement from the co-defendant asserting her innocence in these charges and that he coerced her to accept the plea to save him nearly thirty years in prison. The Government in their response has not rebutted the Defendant's assertion that her attorney's performance was both prejudicial and deficient. Most importantly, the incredible pressure and coercion can not be ignored when an attorney says you and your brother are facing life in prison AND the attorney has done practically no work in fourteen months. The Magistrate ignored the transcript of Ms. Spencer telling Carolyn that a defense will be formulated during the trial and it is only a crap shoot since Ms. Spencer has not yet reviewed the voluminous evidence. Carolyn faced coercion from the codefendants, their attorneys and her own family. The Court asked a single question during the guilty plea litany." Has anyone forced you in any way to enter this plea of not guilty?"( 1-7-05 transcript p. 31) This question did not address the real concerns that she was pleading guilty not because she was guilty but for -7Document 650 Filed 05/30/2008 Page 7 of 10

Case 2:03-cr-00421-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

other reasons such as concern for her brother who faced over three times the penalty unless Carolyn pled guilty. This minimum inquiry does not meet the minimal inquiry in Martinez-Molina that saw the Appellate Court order an evidentiary hearing on this issue. Carolyn does not assert physical force was used against her so her answer was correct. It does not address the package deal concerns or the decisions by counsel to not place that agreement on the record to allow this Court to conduct a complete inquiry. Mr. Smith further wrote that the plea agreement had a condition that Carolyn had to plead prior to John Harris and Sonia Brown being allowed to enter a plea agreement. Mr. Smith also wrote that he had previously negotiated a plea for John Harris but that it could not be entered until after Carolyn had entered a guilty plea. (Exhibit Fifteen Letter of Attorney Michael Smith) Ms. Harris confirms that attorney Michael Smith came into the hallway, after meeting with Carolyn and addressed the family. Mr. Smith said that Carolynn should accept the plea because his client John Harris and codefendant Sonia Brown wanted to take the plea but it would only be offered if Carolyn accepted the plea. (Exhibit Seventeen) Co-Defendant John Harris has provided a statement where he admits to both coercing and taunting Carolyn to get her to enter a plea agreement.( Exhibit Sixteen, Supplement of John Harris) John Harris specifically states that his sister was innocent but that he needed her to plead guilty in order for him to avoid to receive forty years in prison. ( Exhibit Sixteen) -8Document 650 Filed 05/30/2008 Page 8 of 10

Case 2:03-cr-00421-SMM

1 2 3 4 5 6 7 8 9 10 11 12 13

Minnie Harris prepared a supplemental letter describing that attorney Michael Smith came into the hallway and addressed the family. Mr. Smith said that Carolynn should accept the plea for three reasons. 1) Barbara Spencer was not prepared for trial. 2) Carolynn would not win at trial with Barbara Spencer as her attorney and 3) Codefendants John Harris and Sonia wanted to take the plea but it would only be offered if Carolynn accepted the plea. (Exhibit Seventeen) The Government does not contend that they would suffer any harm from allowing the Defendant to withdraw from the plea. This case allegedly involves thousands of recorded calls so there has been no loss of evidence. The Defendant's role was considered minor and she appears on no recordings in an inculpatory manner.

14 SUMMARY AND RELIEF REQUESTED 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9Document 650 Filed 05/30/2008 Page 9 of 10 her from custody and reset this matter for trial before a jury. Respectfully Submitted this 30 th day of May, 2008. /s/ Michael L. Freeman MICHAEL L. FREEMAN Attorney for Defendant HARRIS REED e-mail: [email protected] 320 E. Virginia, Suite 200 Phoenix, Arizona 85004-1225 (602) 255-0333 Office (602) 285-1224 Facsimile State Bar No. 010237 Pursuant to USC 28-2255, Carolyn prays that the Court vacate her sentence, release

Case 2:03-cr-00421-SMM

1

CERTIFICATE OF SERVICE I, Michael L. Freeman, certify that on the 30 th day of May, 2008, I electronically 2 transmitted the foregoing document to the Clerk of the United States District Court, 3 District of Arizona, using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 5 Keith Vercauteren Email: [email protected] 6 Assistant United States Attorney 7 Two Renaissance Square 40 North Central Avenue, Suite 1200 8 Phoenix, Arizona 85004-4408 9 Attorney for the Government 10 Copy of the foregoing mailed this th 11 30 day of May, 2008, to: 12 Carolyn Harris Reed Petitioner 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 Document 650 Filed 05/30/2008 Page 10 of 10 /s/ Michael L. Freeman By Michael L. Freeman, Esq.

Case 2:03-cr-00421-SMM