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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION ____________
UNITED STATES OF AMERICA, Plaintiff, No. 1:13-cr-00130 vs. Hon.
Janet T. Neff
U.S. District Court Judge FREEMAN CARL REED, a/k/a BUCK,
Defendant. _____________________________/
MOTION FOR A CONTINUANCE OF THE SENTENCING DATE Defendant
Freeman Carl Reed, through counsel, respectfully requests that
the
sentencing date be continued from the presently-set date of
August 13, 2014 for ninety
days, or such other date after that convenient to the Court.
Sentencing in this case has
been postponed twice, once as a scheduling matter for the Court
and once at the request
of the undersigned to provide time to respond to certain matters
in the Presentence
Report. Counsel realizes that a third continuance, particularly
at the last minute like this,
is likely to be looked upon with initial disfavor but it is
respectfully submitted that it
should be granted because of the unusual circumstances stated
below, which are quite
promising to those who have lost money.
Pursuant to the Local Rules, counsel informs this court that
AUSA Clay Stiffler
does not join in this motion and prefers that the sentencing go
forward as scheduled.
We advance two reasons for this request which we state summarily
and then
explain.
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First, there is a substantial probability that additional
restitution will become
available to make those persons who lost money whole if an
additional ninety days is
allowed.
Second, counsel was informed today by email that the government
wishes to
present 45 exhibits and testimony of an IRS agent concerning
those exhibits all by way of
disputing the tax return computations which resulted in the tax
return amounts on the tax
returns which have been finalized by Buck and Renee Reed and
which, in accordance
with the instructions of the government, have been completed,
signed, and sent to Special
Agent Birdsong. (See, Freeman Carl Reeds Memorandum in Support
of His Motion for
Variance or Downward Departure, and Submitted Generally for
Sentencing Purposes,
Docket No. 111, p. 3, herein referred to as Reeds Memorandum in
Support.) Counsel
simply cannot prepare in the short amount of time between now
and next Wednesday to
refute the testimony and the exhibits, and cannot secure the
attendance of the accountant
who prepared the tax returns at issue and have him present at a
hearing next Wednesday
ready to present our position on the tax returns and to justify
the figures which are hugely
lower than the government computations due and owing.
As to the first reason, time to make restitution, Buck Reed has
already paid
$150,000.00 toward restitution by cashier's check deposited with
the Clerk of this Court
on todays date (See, Exhibit A, a copy of the check and cover
letter sent to this Court.)
As Buck Reeds sentencing brief, filed two days ago on August 6,
2014 indicates, he had
been working on getting parties together to arrange funding for
a movie which is going to
be made in Europe. (Reeds Sentencing Memorandum, p. 2-3.) The
contract took longer
than anticipated but because of his efforts in working on the
contract, now consummated
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as a movie production contract for a childrens movie to be
produced in Europe, he has
earned a payment for his efforts. (Id.) Of that payment, he has
already been paid
$150,000.00, a sum that arrived in the trust account of the
undersigned yesterday, and
that money on his instruction was converted to a cashiers check
and sent to the Clerk of
the Court (attached here as Exhibit A.) As indicated, it has
been received by the Court.
(Id.) The undersigned expects to have an additional $80,00.00 to
deposit with the Court
by next Tuesday. For the particulars of the arrangement by which
this money was earned
by Buck Reed, see Exhibit B attached hereto which is a letter
which in part describes the
contract which resulted in this payment to Buck Reed.
Exhibit B, the letter, also explains why there is a substantial
probability that in an
additional 90 days, Buck Reed will earn substantially more money
that can be used to
make further restitution.
The restitution that has already been made, the undersigned
submits, should be
sufficient demonstration that Buck Reed is serious about making
repayment.
Opportunities to do so come when they do and while it would
certainly be better if this
could have been done sooner, everyone is better off if Buck Reed
gets the time to make
the effort to earn more restitution money, particularly since
the representation that he is
likely able to do so is supported by the fact that he has
already made one significant
payment and the indication is that more will be coming. It is
pointed out in this regard
that the government routinely delays sentencing of a defendant
who has pleaded guilty if
that defendants testimony is needed in the trial of a
co-defendant. Delaying sentence for
any legitimate purpose is not extraordinary, the delay sought is
not for an extended
period, and the reason for it is unarguably worthwhile.
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The second reason why a postponement is sought is that just
today the
undersigned received notice that the government plans to call an
IRS agent and through
that agent introduce forty-five (45) exhibits. These will be
offered, apparently, in an
attempt to refute the tax computations and the amounts stated to
be due and owing on all
of the tax returns that Buck and Renee Reed have prepared and
now have submitted to
the IRS. As is shown in Buck Reeds Sentencing Memorandum, he has
prepared returns
for all but two of the years for which returns were outstanding,
meaning that he has
prepared, signed, and submitted returns for the years 2003,
2004, 2006, 2007, 2008,
2010, 2012, and 2013 (the tax return for 2005 was previously
completed by another
accountant and has been filed), and they have filed the years
2010 and 2012.
(Defendants Sentencing Memorandum, p. 6.) The government claims
that Buck Reed
owes $565,509.00 in federal income taxes and interest and
penalties of $568,219.00
(Governments Sentencing Memorandum, Docket No. 109, p. 1),
coming to a total of
$1,133,728.00. (Id.) However, according to Buck Reeds
accountants calculations, the
total amount of federal income taxes owed is $21,836.00,
although this figure does not
include penalties or interest. (Sentencing Memorandum, Exhibit
B.) Regardless of the
amount of penalties and interest, the amount of taxes due and
owing alone differs by an
amount of $546,673.00.
Clearly, the large difference in tax computations should be
sorted out and, in
fairness to Buck Reed, time should be allowed for his accountant
to review the exhibits
which were announced this morning but not apparently deliverable
until Tuesday of next
week for that review to commence. And even if they could be
delivered sooner than next
Tuesday, as AUSA Stiffler indicated he would try to do, when we
pointed out this
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morning that receiving these exhibits next Tuesday was way too
late for a hearing the
next day, there is in either event not enough time to prepare a
counter-witness, meaning
Buck Reeds accountant. Moreover, Buck Reeds accountant, William
Timothy, has
other things on his schedule that would preclude him being ready
by next Wednesday.
Mr. Timothy is the primary caregiver for his wife who suffers
from dementia, along with
other health problems. He is located in Pleasant Grove, Utah and
simply cannot come to
Grand Rapids to testify on this short notice for a sentencing
hearing next Wednesday,
August 13, 2014.
Neither Buck Reed nor his counsel mean to suggest that the
government is
springing exhibits at the last minute unfairly. The governments
tax computations were
set forth in the final presentence report which was prepared
June 9 and revised July 30,
2014. (Governments Sentencing Memorandum, Docket No. 109, p. 1.)
Its tax figures
were arrived at, thus, and available to Buck Reed as of June,
2014. (Id.) However, Buck
and Renee Reed and their accountant did not complete work on the
tax returns they have
filed until last week, at the beginning of August 2014. (See,
Reeds Sentencing
Memorandum, Exhibit B.) Therefore, the government did not know
of the large
difference in the tax computations until then. Equally, the
defense did not know of the
large difference in tax computations until the finalized tax
returns last week could be
compared to the governments much higher figures. If the
government is going to contest
the figures presented on these tax returns on the now finalized
Reed tax returns, the
defense should have a reasonable time to prepare a rebuttal and
to have the Reeds
accountant who prepared these returns available in court to
defend them. This simply
cannot be done by next Wednesday.
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Obviously, it will not require the defense 90 days or anything
like that amount of
time to review the forty-five exhibits announced today by the
government and to prepare
a defense to the figures proposed by the government as allegedly
bolstered by the forty-
five exhibits, and certainly with even a two week extension that
preparation could be
completed and a date could be found for the accountant to be
present. However we
submit that because of the promise of more restitution we
respectfully ask for the full
ninety-day postponement.
If this court is not inclined to grant the large postponement of
ninety days but is
inclined to grant the shorter extension to prepare a refutation
of the governments
presentation once the exhibits are disclosed to the defense, we
respectfully inform the
Court that counsel commences a trial in the Middle District of
Georgia on September 2,
2014 which is scheduled to last five days, commences a trial in
state court in New York
on September 16, which is scheduled to last four days, and
commences a trial in tax court
in Boston on September 29, which is scheduled to last three
days, and counsel alerts this
court that those settings are unfortunately immutable. In
addition, Mr. Timothy, Buck
Reeds Utah-based accountant, is unavailable from August 22 29,
2014, as his wife will
be undergoing brain surgery.
In conclusion, the undersigned recognizes that Buck Reed has had
years to make
the restitution that he is now making. It could well be wondered
why this is happening
now. While this is a fair concern, we respectfully submit that
it should be overridden
given the stakes for the persons whose money was lost. The best
argument for this
continuance, in light of the demonstrated restitution already
made as that reinforces the
probability of future restitution, is the statements found in
the Amended Presentence
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Investigation Report of the persons who lost money. (Amended
Presentence Investigation
Report, Docket No. 113, pp. 15-20.) Surely it is worth waiting
one last time if the
potential result is an alleviation of their pain. Buck Reed has
met all of his reporting
obligations, is nonviolent, and it is submitted that there is no
good reason not to allow this
continuance.
It is also respectfully requested that if the Court is going to
delay sentencing for
either of reasons explained above, it consider doing so before
the hearing itself.
Whenever the sentencing takes place Buck Reeds family, some of
his business
associates and friends, and even some of those who gave money to
the venture, wish to
appear to support him. This request is not intended to be
presumptuous or in any way
disruptive of the Courts need to consider this matter fully,
however we point out the
obvious savings and avoidance of inconvenience if this matter
can be determined before
people have to get on planes. And again, counsel regrets the
last-minute motion here but
counsel was and remains of the view that a request based upon
promised restitution
would only be favorably considered by this Court, given the
facts of this case, if it was
made after a substantial restitution sum was in hand and had
been paid over to the Clerk
of the Court, which despite all efforts to get it done sooner,
only occurred this morning.
Dated: August 8, 2014 Respectfully submitted,
/s/ John J.E. Markham, II John J.E. Markham, II (Mass BBO No.
638579) Attorney for Freeman Carl Read MARKHAM & READ One
Commercial Wharf West Boston, MA 02110 Tel: (617) 523 - 6329
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Fax: (617) 742 8604 [email protected]
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