carson explanation

AFFIDAVIT

'î as o,rt C t-: I ,!røç S

LlZzotr 7BEFORE ME, the undersigned authori (Notary Public),this day Zb day 6,ø Lu<- 2013, personally appeared

o^l who being by me first duly sworn, and who ldid/didnot] 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 referduring review of this affidavit.By way of introduction, you will see several corporate names which make up a conglomerationof 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. Thisfinancial entity is operated in two main locations:A) Zurich, Switzerland by Attorney Stephan M. Hirter (also listed in registry as managingprincipal)B) Sao Paulo, Brazll by Maria Alzira Fins de Oliveira Santos - holding signatory powers in fullto 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 financialdocumentation) 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 highlyqualified 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

fcyotldkc,+lu êhl

Case 3:12-cr-00017-TAV-CCS Document 41-1 Filed 01/10/14 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 therequested amount. Initially, this was to be a 30-60 day turnaround for a start of a draw downschedule of a period of time for the capitalization of my company. The foundation under whichthese funds were taken in was Cargill Hiller McCoy and wired to an account in Italy (controlledby 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 theywere providing documentation each step along the way to explain those delays, so I subsequentlywent out and began to borrow funds against the commitments that we had taken in from thefoundation to fulfill some commitments I had made.

2008

By June of 2008, they introduced me to another member of the foundation and disclosed thatthey 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 themcovered from an outside person or entity. The amount needed was $75,000. Again within a fewdays, 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 forthe 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 inexchange for our help and investment, which we had added a few projects by this time so theincreased capital funding warranted.

Multiple communications came and went throughout the year without them following through onany of them.

2009Due to multiple missed commitment dates, Gabonbras increased the settlements through thereturn amount to my company on several occasions as you will see by the documentation.

20r0In July of 2010, Gabonbras issued an irrevocable payment guarantee for a final settlementamount 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, Iwas 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 withpassports 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 warrantand 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 mydisclosure 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 Foundationand 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.

20IIIn 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 EconomiaFederal) as operated by their authorized representative for all financial matters at Caixa, thatMaria 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). Youwill note that this commitment has been increased to 10 million euros as "settlement fees" withtheir project funding commitments of 75 million euros for projects they had committed to 2 to 3years 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 mydefense 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 earlyweeks following my release on bond from my indictment last year. This was prepared in the firstfew 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 thiswrapped 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 wouldcorroborate my account of events that lead to this indictment, but simply had spoken to theprosecutor 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 ofprejudicing 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 ofthe 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 ofgoing to trial and possibly winning. Upon completion of EXHIBIT 1, I called Mr. Hutson toinform 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 acertified document of my investment as my indictment states I had no such thing and simplyfabricated a story with the purposeful intent of defrauding innocent victims, which is simply nottrue! 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 nota secure email. To which I responded that I could snail mail a hard copy and he replied that if Isubmitted this documentation, he would have to disclose it to the prosecution as new discoveryand 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 himthe details of the aforementioned call with Mr. Hutson. He said he would be willing to drive itdown to TN. I called Mr. Hutson back and informed him of this offer by Pastor Hon. He said, ifthe 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, norreviewed this material and never explored the possibility of taking my case to trial nor using it toeven 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 topresent.

I was stunned as I had only met Mr. Hutson just the week before and we had NO priordiscussions before the hearing and he had no information about my case, had yet to hear myaccount of the events that lead to my indictment, nor an understanding of the complexity ofinvolvement in a white collar case. So I asked how we were having a discussion about apleaoffer 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 meetin Ft. Wayne at the federal building where they (Federal Defenders of Eastern TN) had anorthern 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, CharlesBrown) began to review some statements in the indictment with me and proceeded to tell me thatthe government had 3 primary witnesses (though he disclosed there were many witnessstatements). As he mentioned in his own words, one of the biggest enemies and informantsagainst 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. Thisoccurred as we had a financial anangement regarding the house (my residence at the time of theinitial search and investigation) at717 Tate Trotter Rd., Powell, TN 37849. AsMr. Hutson relayed several "facts" according to the government, I began to object to the accuracyof 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 andone 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 momentand 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 allof his property out of the house and that I had trashed his house. Mr. Hutson strongly objected tothis and cited the judges order that I not contact government witnesses as apart of my pre-trialrelease 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 amongstothers that I cannot recall (because to date I have never received a copy of his witnessstatements 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. Hutsonconcurred! Mr. Hutson then stated that they had a SIGNED affrdavit by Mr. Trantanella on theirdesk at that current time confirming all of the statements that had just been disclosed to meverbally. 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 NOTon 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 uponselÊsurrendering myself to FMC Lexington, I personally called Mr. Trantanella and asked himabout the statements and asked him if he had spoken with Mr. Brown and verified thosestatements and had signed an affidavit attesting to those statements and my questions were metwith 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 officespoke 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 ofthe 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 thathe 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 mostdamning 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 KimAlmas (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 banktrading. I will cover the details later in the affidavit as to the facts of these events surroundingthis day, but suffice it to say for now that I objected to the statements, the facts and the person ofcontact and told both Mr. Hutson and Mr. Brown in no uncertain terms that everything about thatindictment 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 Icould prove unequivocally that I never spoke with KA, never made those statements to her norher 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, theyhave 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 formy 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 $55,000and 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 wouldchange banking statements and accounting records and so complying with me in regards tosupplying witness statements and depositions would not change that fact and that if I went totrial, 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 withnew 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 istrickling infrom time to time, does require additional review on my part. Additionally, there areprobably- is it 3000 to 5000 text messages that need to be reviewed on the case from variousparties, and all of them relate to Mr. Carson. Additionally, it is paramountþr us to be able toadvise 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 ofweelrs 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 privatecounsel 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 initialconsultation. 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 frommy Probation Officer and I directed him to contact my direct PO, Mr. James Hunt, PO forNorthern 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 thejurisdiction of my case lay. He apparently did so and contacted me back to inform me that TNProbation had denied the travel request by Mr. Rosenblum and therefore, I would not be allowedto travel to St. Louis. It was several hours after I received the phone call from Mr. Huntinforming me of TN PO's decision, that Mr. Hutson called me, very upset! He asked me why Iwas 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 actionsappear 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 fulland 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 withme 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. Wayneþr 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 aHate Crime against Christians and Sophisticated Means, in addition to a level bump in mysentencing 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 repliedthat the prosecutor does not have to extend a plea offer till that date ifthey feel I am notcooperating. 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. Iquietly 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 bythe 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 guiltyto 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 ofsuch a decision and action. Mr. Hutson came back with a successful extension of 2 days, untilIune22nd. (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 mychildren. It was in response to this refusal to sign that I received a threatening ultimatum fromthe prosecutor forwarded to me by Mr. Hutson stating, "Dear Mr Hutson, Pleasefind attachedthe non-cooperation plea agreement as we discussed. Please advise your client that a pleaagreement MUST BE SIGNED and on my desk not later than 5p.m. on June 29, 2012. Otherwisethere 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 wifeand 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 thecharges 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 putforth 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 prejudicedme 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 pointsynopsis of my professional background in an informal manner for his notes and preparation formy 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 outliningmy professional accomplishments of a lifelong music and production career, yet in thesentencing transcripts, he makes no reference nor mention of a single accomplishment and theonly 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. Inan 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 ofthe 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 ofthose men to write letters of support though they asked if they may. Yet in my sentencingtranscripts, Judge Vamer states and acknowledges receiving and taking in consideration ONLYONE letter received from Laura Baker, giving the appearance of no outside support from familyincluding my wife! (See EXHIBIT 11) As Judge Varner states, "The Court also notes in therecord the submission of the letterfrom Mrs. Laura Baker on defendant's behalf which the Courthas reviewed and takes into consideration."


Last example of ineffectiveness of counsel in the sentencing portion of my case. (See EXHIBIT12) This is an email where Mr. Hutson responds to a question I had asked him repeatedly overthe 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 leavethem outside. " As a family, we had decided to bring our entire family down as we wanted ourkids to be present in the courtroom and Mr. Hutson had left the decision up to me. My wife and Idiscussed 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 ofwedlock, we are one African American family where my lovely wife is my fîrst and only wife of19 years and we have 4 beautiful daughters all inside of wedlock. We wanted our children inthere 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 submittedinto Court and would have pointed out that our devotion to rearing godly, moral children whocan and will contribute to society in an honorable, law-abiding manner, all of which isimmediately evident upon seeing them. But all of this was denied our family before the judgeduring sentencing because of the utter ineffectiveness of my counsel at the time, Mr. Hutson. Asa result, we felt Judge Varner, based upon the information and testimony given that day with littleto no positive information given on my behalf, handed down a fair sentence, but we firmlybelieved that hadMr. Hutson been effective in representing me in the most positive manner possible with thematerial and information we submitted to him at his request, even my sentencing would haveturned out differently.

The facts of this day arc as follows: Upon my arrival at Mr. Hutson's office 30 mins prior to startof sentencing hearing (as instructed), I informedMr. Hutson that we had brought our 4 children down and intended to allow them in the hearingto support their dad and for the judge to have the opportunity to see my entire family so that hisopinion of them could be taken into consideration. My wife and I felt that at ages 17,15, 13 and1l 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 urgentlyand instructed me to head on over to the courthouse (never giving me any final instructions as tothe procedure of the sentencing) and that he would join me there. When he arrived, he spoke tomy 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 guardbecause the judge could look on that unfavorably and we didn't want to appear to be attemptingto sway the judge's mind by bringing our children in. He then walked over to our children andtold them as well that they would not be allowed in the courtroom during sentencing but thatthey were to remain outside with the guard until we returned. My kids were in shock as was mywife and L I immediately felt very strong undertones of racial bias as there was no other logicalexplanation of why they could not come in. Why would we NOT want to sway the Judge's mind


for leniency in sentencing, after all, wasn't that the job of defense counsel? Mr. Hutson furtherspoke to me once we entered inside the courtroom immediately after the prosecutor walked inand they had a quick conference chat. He came over to my table and confirmed again, asking ifour kids were coming in. I said no. He said, good because the prosecutor just walked past themout in the hallway and came up and asked if they were coming in. By this point, I flat out feltthere was an intentional effort to undermine my character as an African American man who hadtried 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 mychildren out of the courtroom. Yet, during the hearing he stated that I had my children inattendance but "1" had decided that it was more appropriateþr them to remain outside! (SeeEXHIBIT 13). As further testimony of this day, please See EXHIBITS 14 and 15 - affidavitsfrom 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 myso-called defense counsel, but also by the government as well. This portion of the Affidavit dealswith 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 ofputting the case of the prosecution to the crucible of adversarial testing as protected by the SixthAmendment. Not only was he not prepared to defend, his only motive was to coerce me into aplea agreement. The evidence put forth below will show that any reasonable man would not haveentered 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 receiveda 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 forJuan Ramon and Tommy Cristobal Colon, various Regions Bank documents, copies of emails,subpoenafrom Knox County General Sessions Court, IRS Notice, Masterworlçs Media letterletters from Ethel Fosteri First TN pin receiptform, ATM card paperwork, Regions Cashier'sCheck receipt, letter from Baker Donelson, Copies of Masterworlcs Studio Annex from LawrenceSwist 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 andprovide 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 positivemanner. 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 thatwould have exonerated me. The FBI had full and complete knowledge that there were actualpeople from Spain. They had full knowledge that my claims that I was going about doingbusiness as usual based upon commitments made to me were true. Counsel, Mr. Hutson knew as

well.


EXHIBIT 17 (the documents referenced as Affrdavits and passports in EXHIBIT 16) will showthat the FBI, thus the government, and counsel, were in possession of Aff,rdavits and passports ofthe 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 mywife?? Why were not the documents presented to the Court? Why were the documents notentered 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, Iwould humbly invite the Court's attention to an Affidavit from Mr. Steve Almas. (See EXHIBIT18). I cannot help but wonder, in hindsight, why counsel did not call Mr. Steve Almas. He clearlyhad exculpatory evidence that not only made him relevant, but, most importantly, the lynch-pinto the defense. As stated earlier in this Affidavit, I urged and implored Mr. Hutson to pleasedepose Mr. Steve Almas, continuously telling him that by doing so, he could unequivocallyrefute, with documented evidence and testimony, the government's assertion of an intent todefraud. My repeated request fell upon deaf ears as counsel did nothing in the way ofimpeaching the testimony of the FBI agents who were clearly aggressively and activelyconcealing the WHOLE truth as noted in EXHIBIT 18.

Why did the FBI, the agents of the governmentþrosecution, not want the testimony of Mr. SteveAlmas? Why was there a concerted effort by the FBI to dismiss and conceal the fact that KimAlmas (I(A) wired $150,000.00 to her brother-in-law, Steve Almas, the exact same day and timeshe made the $55,000.00 wire to Masterworks? How would that very pertinent fact, coupled withMr. Steve Almas' testimony and documented proof, have changed the outcome of my case? Thisdocumented proof and testimony is, after all, new evidence in my case that was clearly omittedand concealed by the government and woefully ignored by Mr. Hutson, as I did not possess thisdocumented proof on any computers or hard drives seized by the government.Why would thelargest investor in my company, by hundreds of thousands of dollars, have to initiate the ONLYcontact with the FBI and offer them documented, exculpatory evidence and have that evidenceand his testimony declined? Why would not Mr. Steve Almas, a man who was personallyresponsible for bringing over $965,000.00 (Evidence Exhibit to be shown later) into mycompany, not be contacted and interviewed by the FBI? You would think he would be the firstperson they would have spoken to. I humbly suggest that the Court deserves grave answers tothese 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 "thetruth" to the FBI and stated such in an unequivocal manner (See EXHIBIT 19). In it, he states tohis brother, Steve Almas, on April 20,2013: "Steve, I want to make this very clear I have ONLYstated the truth. To you. Tb the FBL If there is an enor in what the FBI shared with the Court,


you will need to show me the court docs beþre I write a letter to the court. That only makessense. I never saw afinal reportfrom the FBI or signed any other report to my lmowledge. I amwilling to correct an injustice, but you threatening me (via phone) that if I do not write thisAffidavit to the court, Marshall's attorney will come after Kimþr liable, is unbelievable. I willcall the FBI Monday morning and try to get in touch with my court liaison to see if they can helpget a hold of that inþrmation " 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 trustyou. 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 wasagainst the law and did not match any plea deal, or court papers. You were lied to. I VENFIEDALL MY INFO from my "friends in the Federal Attorney System, California. They were ready tosend the US Marshals to pick you up. I stopped them. Marshall is not the man you think." (SeeEXHIBIT 20) According to EXHIBIT 19, Mark Almas "only stated the truth" to the FBI and inEXHIBIT 20, he "verified all his info," that was submitted on his behalf by the FBI, with theFederal Attorney System in Californla. In other words, he confirms and concurs with the accounton record.

We have a problem. There appears to be a great gulf between "the truth" that Mark admits he toldthe agents and what was presented by the government in the Court records as Exhibits inproceedings. If Mark Almas is to be believed as having told "only the truth", then he told theagents that in addition to the $55,000 sent to Masterworks, on Feb 21,2007, there was also anoverseas 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 thisinformation that Mark told the agents is supported by documented proof of invoices, signed bankwire receipts, and letters of commitment resulting from the investment, all of which wasdisclosed 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 oron my behalf and they had personal knowledge first hand from his brother, Steve, in advance thatthe funds were for both business and personal. He would have confirmed to the agents that hehad 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 byExhibits). He even paid a large cell phone bill, of mine, with AT&T at a local AT&T store therein 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. Thisamount ($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 fromwhich the USPO compiled victim losses by Mark and KimAlmas at $55,000 in my PSL IT isclear, according to the email from Mark to Steve, that he considered every penny paid or wiredout to me or on my behalf to be part of his "investment." (See first line EXHIBIT 24).Yet


according to my Pre-Sentencing Investigation Report, the losses confîrmed 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 5212,311.6373) Did he, in fact, disclose this to the agents under oath and perhaps they failed to include that inthe Affrdavit testimony, thereby, by default, falsifiing witness statements? After all, in his textmessage of EXHIBIT 19 he states that he never saw nor signed aftnal report from the FBL4) Did Mark and/or Kim Almas agree with the interviewing agents to omit and/or conceal certaintruths 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 expenseoutbound 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 thatcome to my mind from the vast discrepancies that should have been apart of the adversarialtesting stage of the government's assertions. But because my defense counsel was so inept andwoefully ineffective in his assistance of counsel on behalf of this defendant, I am forced to posethe 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 theCourt's attention to several closing statements and exhibits:1) I spoke and ONLY dealt with Steve Almas in regards to the Feb. 2007 transactions (SeeEXHTBIT 26)2) In both phone and email conversations the week of Feb. 2l , 2007 ,I disclosed to my capitalpartner, 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 delayedbecause of availability of many of the needed components. (See EXHIBIT 27) This studioequipment 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 continuedordering the balance of the equipment as it became available as you see reflected by the multiplepurchase receipts.The second urgent expense was for a composer studio lab that was purchasedfrom The Mac Authority in Nashville, TN. As of this writing, I do not have those receipts in mypossession here at the prison, but have someone making contact with The Mac Authority toretrieve a copy of the 2007 purchase receipts. Both the Mac Authority and the Sweetwater receipttotaled well in excess of $50,000 each as you see reflected by the totals in the Sweetwaterreceipts of EXHIBIT 27.

4) We (my company) retained one of the world's leading acoustical design firms to partner withus to build a major commercial studio production facility in Knoxville, TN, which was to be the


.49.4g3G 'ooo

core of our business. This firm was Harris, Grant Associates of Guilford, England.This retentionand start of the research and development phase of the project necessitated a trip to England tomeet with the CEO and firm Executives for a 5 day planning and brainstorming session. This hipwas also paid for with the same requested funds of Feb. 2I,2007 and EXHIBIT 2 is the result ofthe week of work sessions in England. I do not have the receipts of this trip, but the trip wastaken in late Feb./early March 2007. Areview of my passport (still in custody of TN ProbationOffice) will reveal a stamped entry into the country of England during this time. For additionalverification, 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 reachedat 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 solecapital partner and point ofcontact and that disclosures ofboth business and personal use offunds 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 onfunds. 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 investmentsduring this month. (See EXHIBIT 29) No transaction from Steve Almas appears in my lossstatement 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. SteveAlmas as he is the only contact, out of 30+ contacts in my BOP Trulincs contacts folder, who Iam not authorized nor permitted to communicate with and this block has been on his contactinformation since my arrival into the system, March 12,2013. The phone number and email thatis not authorized were the same as the ones he used from 2007 through my investigation periodand still uses to this day.

As a result of negligence of both counsel and the government, a grave ineffective assistance ofcounsel and prosecutorial misconduct has occurred.

Humbly and respectfully submitted,

Freddie Marshall Carson


NOTARIZED AFF'IDAVIT

Further Affiant sayeth not.

STATE OF f/u^ lu " k Y

COL|NTY OF Fnv. 14 t

^,(. 0^^

Signature

*4,øã¡¡ , t o ¡.J

Printed Name

byThe forgoing was of f)Gr"o Lo^ 20t3,

, who'f øta¡produced FßoP an ernø as identification, who did/did not take an oath and, underthe penalties of perjury, hereby swears and affirms that the forgoing is true and correct.

a.)ø-*

acknqwJedgç:d before me this 7L dayI f À,( l/n<s¿¡

tzzogTffitary PublicMy 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 theforegoing motion and that the facts stated in it are true.

Signature

Printed Name

Date

LAST PAGECase 3:12-cr-00017-TAV-CCS Document 41-1 Filed 01/10/14 of 16 PageID #: 205

carson explanation

Documents