Free Affidavit in Support of Motion - District Court of Arizona - Arizona

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MICHAEL L. FREEMAN 320 E. Virginia, Suite 200 Phoenix, Arizona 85004-1225 (602) 843-9653 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-SMM REPLY SUPPORTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY PERSON IN FEDERAL CUSTODY

Pursuant to USC 28-2255, Carolyn prays that the Court vacate her sentence, release her from custody and reset this matter for trial before a jury. Respectfully Submitted this 5th day of March, 2007.

/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) 843-9653 Office (602) 285-1224 Facsimile State Bar No. 010237 SUMMARY First, the Government in their response chose to not address the four cases that support the relief requested by Carolyn. The Government did cite one of the cases but only for the legal standard that the Petitioner must show a "manifest injustice" after the sentence but needed only show

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"a fair and just reason" (Government Response page 15 citing United States v. Martinez-Molina, 64 F. 3d 719( 1st Cir. 1995) The Government did not address the five factors used in the case but instead relied entirely on the brief colloquy during the plea where Carolyn denied anyone forced her in any way. The word" force" is not used in the Motion to Vacate since Carolyn claims she was pressured and coerced. The Judge did not inquire sufficiently since the plea agreement did not contain the explicit package offer. The Government did not challenge the other three cases: 1. United States v. Caro, 997 F. 2d 657( 9th Cir. 1993) The plea was involuntary since

8 the District Court did not adequately inquire into the nature of the package plea and the co9 defendants pressuring the defendant to change plea to guilty. 10 2. 11 interest occurs when trial counsel is asked to prove her own ineffectiveness and lack of preparation. 12 3. 13 at five factors in deciding whether to grant motion to withdraw from the plea :1) totality of 14 circumstances if plea were knowing, voluntary and intelligent within Rule 11; 2) the plausibility of 15 the reasons prompting the requested change of plea; 3) the timing of the Defendant's motion; 4) the 16 existence of an assertion of innocence; and 5) any demonstrable prejudice accruing to the 17 Government if plea is withdrawn. 18 4. 19 appointed to address the specific malpractice allegations in the pro se motion without any waiver 20 of the Sixth Amendment right to counsel. Counsel's personal or professional interests might preclude 21 effective assistance in addressing the defendant's allegations against the counsel. In addition, the 22 pro se motion is a critical stage of the proceeding where it involves the decision to proceed to trial, 23 plead guilty or fend for himself. 24 Second, the Government's Response never admits that the plea agreement was 25 conditional The Government instead states"the Court was aware of the fact that if defendant 26 HARRIS 27 28 -2Document 596 Filed 03/05/2007 Page 2 of 12 REED pled guilty, two co-defendants would LIKELY enter plea United States v. Barreto, 93 F. 3d 17 (1st Cir. 1996) Counsel should have been United States v. Martinez-Molina, 64 F.3d 719 (1st Cir.1995) The Court should look United States v. Del Muro, 87 F. 3d 1078( 9th Cir. 1996) An inherent conflict of

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agreements."(Government response , page 4, lines 1-3) 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) Barbara Spencer has chosen to not respond or cooperate to telephone calls or letters from undersigned counsel. Third, The Government voices seven objections and none of them are sufficient to be sustained. A. The Waiver of Her Rights Is not Enforceable If the Waiver was Involuntary or if The Defendant's Counsel was Ineffective in Negotiating the Agreement. 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 plea agreement which waives the right to file a direct appeal or a

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section 2255 motion is not enforceable if the waiver was involuntary or if the defendant's counsel was ineffective in negotiating the agreement. See, e.g., Jeronimo, 398 F.3d at 1156 (concluding the court did not have jurisdiction to consider the appeal of a defendant who had waived this right in a plea agreement because the agreement was knowing and voluntary on its face, stating: "A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made"); United States v. White, 307 F.3d 336, 343 (5th Cir.2002); United States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir.2001) (concluding that a collateral attack alleging ineffective assistance of counsel in negotiating a plea agreement may be brought notwithstanding a waiver of this right in the agreement, stating: "Such agreements waiving the right to appeal are subject to certain exceptions, including where the agreement was involuntary or unknowing, where the court relied on an impermissible factor such as race, or where the agreement is otherwise unlawful."); Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir.2000). .... 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 -3Document 596 Filed 03/05/2007 Page 3 of 12

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advising defendant to accept the plea. See Jeronimo, 398 F.3d at 1156 n. 4; FN2 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)." B The Defendant Can Overcome the Remaining Government Objections On the Merits of the Evidence Government objections 1. 2. and 6. Ms. Spencer was ineffective. Carolyn Has Always

Asserted her Innocence except for the Brief Statements at her guilty plea which were Subsequently Recanted in meetings with Probation, her Attorneys and Following Court Hearings. 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 defendant's assertions Barbara Spencer also had a conflict of interest when Carolyn asserted Barbara Spencer was neither prepared nor effective with trial less than one week away. The Government does not claim that Ms. Spencer obtained a plea agreement through her

22 23 24 25 26 27 28 -4Document 596 Filed 03/05/2007 Page 4 of 12 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.

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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.

4 5 6 7 8 9 10 11 12 13 14 15 16 Both Carolyn's affidavit and Timothy Anderson discuss a certified letter received by 17 18 19 20 21 22 23 24 25 26 27 28 -5Document 596 Filed 03/05/2007 Page 5 of 12 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 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 tape the meeting without Ms. Spencer's 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) 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 and her close friend, Timothy Anderson has prepared a supplemental affidavit, where

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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

4 5 6 7 8 9 10 11 12 13 14 15 16 p.31, lines 1-18) Ms. Spencer advises Carolyn that her defense is a "a crap shot, it is a roll of 17 18 19 20 21 22 23 24 25 26 27 28 -6Document 596 Filed 03/05/2007 Page 6 of 12 contradicts the assertions made that she was ineffective and unprepared. 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 admit that 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 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, 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) 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

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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.

4 5 6 7 8 9 10 11 12 13 14 15 16 trial. 17 18 19 20 21 22 23 24 25 26 27 28 -7Document 596 Filed 03/05/2007 Page 7 of 12 concerns that she was pleading guilty not because she was guilty but for 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 3.The Express Plea Agreement Did Not Contain the Provision that Her Brother and Sister-in-law Would Not be Offered Any Agreement Unless Carolyn Agreed to plead Guilty 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 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 and is telling Carolyn that a defense will be formulated during the 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

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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

4 5 6 7 8 9 10 11 12 13 14 15 16 Ms Harris confirms that attorney Michael Smith came into the hallway, after meeting 17 18 19 20 21 22 23 24 25 26 27 28 -8Document 596 Filed 03/05/2007 Page 8 of 12 by the punishment of her brother and sister-in-law. 4. And 5. The Guilty Plea Was Involuntary and The Exhibits Demonstrate that Coercion was Placed on Carolyn By Her Codefendants, her family and her Codefendant's Attorneys. 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) This express oral agreement was not disclosed to the Honorable Court. Therefore, there was no specific inquiry was made into the voluntariness of her plea as it involved being coerced required to proceed to prison and faced a tremendous amount of prison time." (Exhibit Fifteen Letter of Attorney Michael Smith) 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. complete inquiry. The Government intentionally omitted the provision that Carolyn had to plead first or her brother would not be able to enter an agreement. Attorney Michael Smith has prepared a letter where he states that Carolyn was advised, by him, Barbara Spencer and co-defendant attorney Scott Halvorsen, that if Carolyn "did not enter the plea that her brother {John Harris} would be

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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

4 5 6 7 8 9 10 11 12 13 14 15 16 Spencer as her attorney and 3) Codefendants John Harris and Sonia wanted to take the plea but it 17 18 19 20 21 22 23 24 25 26 27 28 -9Document 596 Filed 03/05/2007 Page 9 of 12 The only way John and Sonya can get a plea offer was for Carol to plead guilty. We kept on Carolyn's back every time that we spoke to her to take that plea agreement in order to save her brother and Sonya from maybe life in the penitentiary. would only be offered if Carolynn accepted the plea. Exhibit Seventeen) This statement supplements this previous statement signed by both Freddie Harris Sr. And Minnie Harris: Carolyn was repeatedly told that if she went to trial that John and Sonya would not get a plea offer. They would both be convicted and they will get from 20 years to life. continues describing how she and Carolyn's family and friends were made to wait in the hallway while all the attorneys met with Carolyn in order to convince her that she should accept the plea agreement. Ms Harris confirms 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 guilty in order for him to avoid to receive forty years in prison. ( Exhibit Sixteen) Minnie Harris prepared a supplemental letter describing how she watched the coercion of Carolyn on the day set for trial. Ms Harris watched Carolyn come out of a meeting room, in tears, stating that everyone is hammering her.( Exhibit 17, Letter of Minnie Harris). Ms Harris

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We told Carolyn that if she wouldn't take the plea to save John then who was going to keep her kids for all the years when she is found guilty at trial. . We are both too elderly to expect we could keep her kids for 20 years. We would need help from other family members who

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 /// - 10 Document 596 Filed 03/05/2007 Page 10 of 12 ( 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) 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. The Defendant provided her attorney with names, dates and information to support Carolyn's claim that she had no unexplained or illegal income. 7. The Attorney Was Ineffective For Not Moving to Withdraw from the Plea. If this Honorable Court believes that the lesser standard to "show a fair and just reason " has been met then the Movant has demonstrated the result would have been different if the Movant had moved to withdraw prior to her sentence. Second, the Government relies on a letter from Ms. Spencer that acknowledges Carolyn told her repeatedly that she wanted to withdraw from the plea. Ms. Spencer offers no legal authority to support her opinion only that she would face ten-to -twenty years in prison if the Defendant lost at trial. would resent Carolyn's decision that would send John to prison for life. We would be almost 90 years old after 20 years, We could not care for our grandchildren by ourselves and we insisted that Carolyn had to take the plea for the entire family and we kept on her until she agreed to accept the agreement. ( Exhibit Seven Affidavit of Freddie Harris Sr. And Minnie Harris)

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1 SUMMARY AND RELIEF REQUESTED 2 3 from custody and reset this matter for trial before a jury. 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 - 11 Document 596 Filed 03/05/2007 Page 11 of 12 Respectfully Submitted this 5th day of March, 2007. /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) 843-9653 Office (602) 285-1224 Facsimile State Bar No. 010237 Pursuant to USC 28-2255, Carolyn prays that the Court vacate her sentence, release her

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Carolyn Harris reed has reviewed and approved this petition. Her signature has not been attached since logistical problems have caused her letters and emails to not be received in a timely 2 manner. 3 CERTIFICATE OF SERVICE I, Michael L. Freeman, certify that on the 5th day of March, 2007, I electronically 5 transmitted the foregoing document to the Clerk of the United States District Court, District of 6 Arizona, using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 7 Keith Vercauteren 8 Email: [email protected] 9 Assistant United States Attorney Two Renaissance Square 10 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 11 Attorney for the Government 12 Copy of the foregoing mailed this 13 5th day of March, 2007, to: 14 Carolyn Harris Reed Defendant 15 /s/ Michael L. Freeman By 17 Michael L. Freeman, Esq. 16 18 19 20 21 22 23 24 25 26 27 28 - 12 Document 596 Filed 03/05/2007 Page 12 of 12 4

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