Case 5:17-cr-00228-FJS Document 106-4 Filed 11/15/19 Page 1 of 11

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.
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~~
CHARLES J. TAN

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~

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