UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------x
UNITED STATES OF AMERICA,
Respondent, AFFIDAVIT
v. Case No. 5:17-CR-228 (FJS)
CHARLES TAN,
Defendant-Movant.
----------------------------------------------------------x
STATE OF NEW YORK ) : ss.: COUNTY OF ESSEX )
CHARLES J. TAN, being duly sworn, hereby deposes and says:
1. I am the defendant in this action. I make this affidavit at the request
ofmy new attorney, Joel B. Rudin, in support ofmy motion, pursuant to 28 U.S.C.
§ 2255, to vacate my sentence and for resentencing due to ineffective assistance of
counsel at sentencing.
2. Attorneys James Nobles and Brian Decarolis were my counsel at
sentencing in the underlying matter as well as in the state trial that preceded it.
3. Relevant at my sentencing, but not fully presented, was the history
of domestic violence and abuse in my family. For as long as I can remember, my
father would abuse my mother by shoving her, slapping her, choking her, and
pulling her hair.
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4. Sometimes I would see them fighting, and other times I would hear
them behind closed doors and would see my mother's bruises afterwards.
5. While there were calmer periods, where months passed without my
learning about further abuse, the abuse always resumed and often occurred
regularly.
6. My first memories, from when I lived in Coming, New York, are of
my parents screaming and of my brother, Jeff, giving me a handheld phone and
telling me to be ready to call 911 ifhe asked. Many fights began shortly after my
father came home from work, when I was practicing the piano. He would yell at
my mother and smash things, throwing pots and pans or breaking chairs.
7. I remember spending my sixth or seventh birthday in a women's
shelter and feeling relieved to be there because anything was better than being at
home with all the fighting and abuse.
8. Our family moved to Pittsford when I was seven years old. Shortly
after we arrived, family friends became so concerned about my father's violence
that they gave me and my brother orange paper and told us to put it in the window
if anything happened so that they could call "911." I think we tried to execute this
plan at least once, but it didn't work.
9. Several times the abuse was so bad that my mother or Jeff would call
the police. The police would usually tell my father to leave for a few days, which
he would do. Sometimes when he left, he would shut off utilities as well as cable,
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phone and internet service to our home. When he came back, he would usually
bring fast food for me and Jeff.
10. Starting around sixth grade, my father abused my mother more
severely in my presence, laying his hands on my mother, choking her, slapping her
and pulling her hair.
11. The abuse got worse in high school, after Jeff went off to college.
With Jeff away at school, I was the only one left to protect my mother.
12. On one occasion, in 2012 or 2013, I saw my parents fighting in the
garage and my mother slam a golf club on the hood ofmy father's car. When I
tried to intervene, my parents told me to go inside the house, and I did. When I
saw my mother again, she had a big bruise on her cheek. I asked my father what
happened and he said she did it to herself, but my mother confirmed he had beaten
her. I called the police, who came to our home. They questioned both my parents
and told my father to leave and to stay in a motel for a few days, which he did.
13. During the first half of the summer of 2014, between my freshman
and sophomore years at Cornell, I lived at home and worked for my father's
company. My parents constantly argued about money for Jeff, screaming and
cursing at each other almost every day. In July, I moved back to Ithaca, where I
finished the summer working a minimum wage job as a lab assistant.
14. During Thanksgiving Break of 2014, I saw my father choke my
mother on the kitchen floor and threaten to kill her. I pulled my father off of my
mother, who ran out of the kitchen. My father's face was red and he said, "She's
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crazy, this bitch." I told him he couldn't do this. After Thanksgiving, I returned
to school and tried to forget about this incident and act as if things were normal,
even though I knew they were not.
15. After this incident, I told my mother I would not be coming home
for the Christmas Holiday and that she should go stay with Jeff in Colorado. My
mother, brother and I did spend part of the Christmas Holiday together in
Colorado, away from my father.
16. I do not specifically recall my mother telling me during that
Christmas Break that she thought she would soon die or be killed or that, if
something happened to her, my father was to blame. However, she had conveyed
such fears to me multiple times.
17. My father had also told me numerous times that he "wanted to kill"
my mother. I have reviewed with my present attorneys a December 24, 2014,
email in which he wrote to me, "sometimes I really want to kill her." He had said
such things to me many times before. While such comments were very
distressing, I figured it was better for my father to vent through words than
through violence and, for the most part, didn't think he would actually kill my
mother because, even though he often lost his temper, he was generally practical
and business-minded.
18. On the night of January 28, 2015, my mother called me and told me
that my father had choked her, that she had lost consciousness, and that there were
red marks all over her neck. She told me she had thought she was going to die and
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believed the "next time" my father would kill her. I immediately called my
father.1
19. As I told the probation officer, when I asked my father what
happened he said my mother was crazy and denied choking her. "Don't worry
about her, she's fucking crazy ... she scratched me." I said, "She says you
choked her pretty good. You can't keep doing this." My father told me it was
none of my business and, "If she keeps pissing me off," he would kill her. See
Presentence Investigation Report i156.
20. After this conversation, I believed my father might very well kill my
mother, either on purpose or by accidentally choking her too hard. I decided I
needed to protect my mother by any means necessary and got it into my mind that
that meant killing my father.
21. The next day, Jefftexted me about our father's abuse and told me I
was "going to have to make a choice soon that will be one of the most important
decisions of [my] life." I interpreted Jeff to be saying that I needed to intervene to
protect my mother and that, ifl didn't, no one else would. I did not think Jeff was
suggesting I kill our father.
1 In my interview with the probation officer, I stated, incorrectly, that I spoke to my father a "few days" after I learned he had severely choked my mother. See Presentence Investigation Report156. After refreshing my recollection with phone records provided by my present counsel, I recall that I spoke to my father immediately after my mother told me he had choked her and did not speak to him again.
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22. During the next few days, I felt conflicted and tried to talk myself
out of killing my father. This is reflected in my texts and emails, which my
present attorneys have shown to me. I tried to go about my normal life at Cornell,
seeing friends, attending classes and sprint football practices, and planning for the
future. However, I kept thinking about my mother, her safety, and her fear that
my father could kill her any day.
23. I checked in with her, texting about everyday matters and speaking
to her for approximately five minutes on February 1, 2015 and seven minutes on
the night of February 4, 2015, according to my cell phone records disclosed by the
government and recently reviewed with my present counsel. She told me again
that she believed the "next time" my father would kill her and sounded resigned to
that fate. I told her to lay low, to stay in her room with the door locked, and to not
do anything that might "piss off' my father.
24. I knew that in killing my father I would be throwing away my future,
but I wasn't thinking of that after the February 4 call. I did not think past getting a
gun, shooting my father, taking my mother to Canada and fleeing to China. I
knew that killing my father was wrong but in my own mind felt I had to do so to
protect my mother.
25. The day following the phone call with my mother, I left Cornell and
obtained a firearm through my friend. I was so focused on getting a gun that I
didn't appreciate how wrong it was to drag my friend into my plan; I deeply regret
that. Before leaving Cornell, I told my sprint football coach, Terry Cullin, that I
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needed to go home because my father had been abusing my mother. I broke down
and started crying in front of Coach Cullin, even though I almost never cried, and
certainly not in front of anyone. Coach Cullin told me if there was any way he
could help, to just let him know. I remember visiting my friend Jacob Grossman,
telling him I needed to leave the country and crying. I felt terrified by the
enormity of what I was about to do but felt there was no turning back.
26. I entered my parents' home through the back door, walked upstairs,
turned into my father's office and shot my father three times as he was sitting at
his desk. I knew I had killed him.
27. I then told my mother to pack up her things and prepared to drive
with her to Canada. As I was outside by my car, I saw a police car park by our
driveway, and an officer get out. I walked to the front of the driveway to meet
him. The officer said he was checking up on me because my friend Jake had
reported that he was concerned about me. I told the officer that I was okay and
didn't plan to harm myself or anyone else. My heart was racing but I tried to stay
calm.
28. I then drove with my mother to Toronto, thinking I would flee from
there to China. My mother and I purchased one-way tickets to Shanghai and, on
Saturday, February 7, two days after the murder, applied for Chinese travel visas.
We picked up our visas on Monday, February 9, but by then I had already decided
to return to the U.S. I made this decision because, ifl went to China, my mother
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and brother might be blamed for the murder, my mother would be destitute, and
my brother would be left alone in the U.S.
29. On February 9, 2015, my mother called the police and reported that I
had shot and killed my father in order to protect her. I was charged with Murder
in the Second Degree and incarcerated until March 5, 2015, when I was released
on $50,000 bail pending trial.
30. Shortly after my arrest, and while I was in jail, I was interviewed by
a forensic psychologist, Dr. Jerid Fisher, who was hired by my attorneys James
Nobles and Brian Decarolis. I recall just one interview with Dr. Fisher, which
lasted a couple of hours.
31. My attorneys did not tell me the purpose of my meeting with Dr.
Fisher, and I did not understand whether, and to what extent, my statements to him
would be confidential. As a result, I felt uneasy about speaking with Dr. Fisher,
although he tried to put me at ease when we met.
32. I do not recall many specifics of what we discussed, but I do recall
telling him about my family background. He was one of the first people I ever
told about my father's abuse, and it felt good to be open about that. Dr. Fisher did
not ask me about the murder or my involvement in it. I never learned the purpose
of my meeting with Dr. Fisher.
33. On June 22, 2018, I pleaded guilty to (1) receiving a firearm with
intent to commit a felony offense-the murder of my father-in violation of 18
U.S.C. § 924(b); (2) causing my friend Whitney Knickerbocker to make a false
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statement during the purchase of the firearm, in violation of 18 U.S.C.
§§ 922(a)(6), 924(a)(2); and (3) causing Whitney Knickerbocker to knowingly
make a false statement during the purchase of the firearm, in violation of 18
U.S.C. § 924(a)(l)(A).
34. I decided to plead guilty almost immediately after my attorneys, just
before trial, received from the government the contents of the emails and texts
stored in my cell phone. I was unable to review such records with them previously
because I did not have access to my cell phone, since the government had it. I did
not review all my phone contents with my attorneys, but just limited materials that
they wanted to discuss with me because they believed such materials were relevant
to whether I had a viable defense at trial.
35. Following my guilty plea, my attorneys never reviewed with me the
contents of my cell phone so that I could reconstruct the specific events that led up
to the shooting, as well as my thoughts and actions, in relation to sentence. For
example, they did not show me the December 24, 2014, email from my father in
which he wrote about wanting to kill her or the texts and emails showing that,
immediately after my February 4 phone call with my mother, my ambivalent
attitude changed and I became single-mindedly focused on killing my father to
protect my mother.
36. While I did tell my attorneys, primarily during preparation for the
state and federal trials, about many of the abusive incidents that had occurred
involving my father and our family, unlike my present counsel, they did not
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interview me in any comprehensive way about the entire history. Nor did they
present me with available records to help me reconstruct and explain what had
occurred.
37. At no time before sentencing did my attorneys discuss with me the
possibility of my being interviewed or evaluated by a psychologist or mitigation
specialist in order to present circumstances that would help the Court understand
what led me to do such an awful thing as shoot my father.
38. They advised me not to admit that I shot my father. They were the
legal experts, and so I accepted that strategy, even though I knew what I had done
was wrong.
39. When it came time to write a letter to the Court, my attorneys' only
advice was that I should not discuss the murder. Otherwise, they just told me they
trusted me to write a good letter. I followed their advice to not mention the
murder and focused my letter on the lessons I had learned and how I planned to
apply them going forward. I did not write about my feelings about the death of
my father in part because they told me not to discuss the murder and also because I
had tried for three years to bury my feelings about the awfulness and the finality of
his death.
Case 5:17-cr-00228-FJS Document 106-4 Filed 11/15/19 Page 10 of 11
Sworn to before me this~ day ofN
BRITTNEY M. ALEXANDER Notary Public, State of New Yortc Franklin County No 01AL63121:.!,A_ Commission Expires Sept. 22, 2~
11
Charlie Tan admitted to killing his father in an affidavit filed in federal court on Monday. The now-23-year-old man is serving a 20 year sentence in prison for federal weapons charges. Tan admitted he received a firearm with intent to commit an offense, gave a false statement during the purchase of a firearm, as well as aiding and abetting, and willfully causing a federal offense. The gun was used to kill Jim Tan at the family's home in Pittsford in February 2015. Tan's attorney, Joel Rudin, wants the judge to vacate Tan's 20-year sentence. According to court papers, Jim Tan was abusive leaving Charlie psychologically scarred. Tan's lawyers, James Nobles and Brian DeCarolis, did not provide reports about abuse during Charlie's gun charge sentencing.