Charlie Tan: Your questions answered about Monday's sentencing hearing

Gary Craig | Democrat and Chronicle

Show Caption Hide Caption Gary Craig reports on new details about life in the Tan household. 911 calls made from the Tan home shed new light on the circumstances leading up to the murder of Jim Tan in February 2015.

Charlie Tan will be sentenced Nov. 19 on federal firearms charges related to the murder of his father Jim Tan in 2015

The range of the sentence available to the court is a maximum of 25 years

Tan's attorneys are saying that five years would be fair given allegations of abuse in the household

On Monday U.S. District Judge Frederick Scullin Jr. is scheduled to sentence Charles "Charlie" Tan for gun-related crimes. Tan was accused in February 2015 of the murder of his father, but was not convicted. Here, we'll try to answer some of the most-asked questions about Tan's pending sentencing. We'll also revisit the history of the homicide and its aftermath, (and if you need a refresher jump right now to the last section of the story), but because that history is well-known by many, let's start with the issues surrounding the Nov. 19 sentencing.

What sentence can Charlie Tan expect?

Oftentimes, a range of the likely years of incarceration can be predicted going into a federal sentencing. This one is different. The federal sentencing guidelines, which a judge uses as a basis for sentencing but does not have to follow, call for the maximum sentence of 25 years. Tan's attorneys are trying to make the case that five years would be fair, given Tan's character and the abuse within his home that they say triggered the crime. (More on all of that will follow.)

What specifically did Tan admit to doing in his guilty plea?

Charlie Tan pleads guilty to federal gun charges James Nobles, attorney for Charles Tan, said his client is taking responsibility for his crimes and details of what was going on in the Tan house are forthcoming.

He acknowledged that he collaborated in the illegal purchase of a shotgun — the one used to kill his father — by manipulating his friend and fellow Cornell University student, Whitney Knickerbocker, into buying the 12-gauge Remington for Tan. When Knickerbocker bought the gun, he claimed on a federal firearms purchase form that the shotgun was for his use. Instead, he gave it to Tan.

Tan also admitted that he knew the shotgun would be used in a crime; it was used to kill his father, Liang Tan, commonly known as "Jim."

(The store initially declined to sell the gun to Tan because he's a Canadian citizen. His paperwork was eventually approved, but after the gun had been purchased by Knickerbocker.)

Why is Tan's proposed sentence so severe?

Federal sentences can be a complex algorithm. (The manual that helps dictate the so-called sentencing "guidelines" is more than 600 pages long.) Essentially, the guidelines — which, remember, are recommendations and not mandates — are a mathematical equation. All kinds of factors — the accused's criminal history, the nature of the crime, the number of victims, and others — are dropped into the equation like ingredients into a stew; the final product is the recommended sentencing range.

The typical "straw purchase," which is when the real purchaser of a firearm illegally uses a middle man, does not have sentences as long as what Tan faces. But here is the difference: Tan admitted to the knowledge that the gun would be used to shoot his father. That admission allows federal prosecutors to also include the federal homicide statutes as part of the guideline equation. Unsurprisingly, the homicide penalties are far more severe.

The guidelines, according to court papers, actually recommend 324 to 405 months — or a minimum of 27 years. However, the maximum sentence allowed by law with the crimes is 25 years, so the judge cannot sentence beyond that.

Is this similar to the Dawn Nguyen case?

This comparison has been made many times, and, while some may see similarities, there are significant differences.

Nguyen bought the firearms that William Spengler used when he ambushed firefighters and police in West Webster on Christmas Eve, 2012. Spengler, who in 1980 beat his grandmother to death with a hammer, could not buy the guns because he was a convicted felon.

Nguyen pleaded guilty in federal court to the straw purchase, and the sentencing guidelines only recommended a sentence of 18 to 24 months. This was because of the distinction mentioned earlier; Tan can be sentenced as if involved in the killing.

There was no indication that Nguyen knew Spengler would use the guns for violence. In fact, Spengler's shooting spree occurred more than two years after Nguyen bought the firearms for him. Tan, on the other hand, knew how the shotgun he purchased, with Knickerbocker as his intermediary, would be used — and it was used in the homicide the very day the gun was bought.

A federal judge did sentence Nguyen to eight years, deciding that the guidelines were not stringent enough for the magnitude of the crimes. In that decision, U.S. District Judge David Larimer ruled that Nguyen had bought the guns for a man she knew to be a convicted felon, thus helping set the stage for his murderous crimes.

(Spengler, who killed himself, claimed in a letter found after his death that Nguyen's mother had her buy the guns for Spengler. Nguyen's mother has never said whether this was true.)

Why isn't Knickerbocker being prosecuted?

This, again, is often a point some make: If Nguyen went to prison, why not Knickerbocker?

Prosecutors won't discuss Knickerbocker's role publicly, but court papers help provide answers.

Clearly, Knickerbocker agreed to testify against Tan, should Tan have gone to trial. His testimony would have been crucial, and prosecutors likely offered him a deal in which he would not be prosecuted because of his cooperation. (Knickerbocker refused to testify in the state murder trial of Tan, and was expected to "plead the Fifth" — declining to testify because he might incriminate himself — so prosecutors opted not to call him to the stand in 2015.)

Also, Nguyen's admission included knowledge that she was buying guns for someone who had committed an earlier crime, though she has claimed she did not know the specifics of Spengler's offense. Tan apparently tricked Knickerbocker into buying the gun with a claim that Tan needed it quickly for a hunting trip with friends.

In court papers, prosecutors even portray Knickerbocker as a sympathetic figure.

"For doing an ill-advised favor for a trusted friend, Whitney Knickerbocker bears the life-long weight of having purchased a murder weapon," Assistant U.S. Attorney Lisa Fletcher, the prosecutor in the case, wrote in court papers. "At 18 years old, Knickerbocker was duped into being an accessory to murder. Video of his purchase of the murder weapon was used in a very public murder trial, and his name and image have been the subject of local and national press reports."

Will Tan's popularity with friends and others help him at sentencing?

He and his lawyers certainly hope so, and court papers include letters to Judge Scullin from friends attesting to Tan's character. He was student council president at Pittsford Mendon High School and a constant honor role student.

Among the points made and stories told in the letters to Scullin are:

• That Tan was such a respected volunteer at a local YMCA, and his ability to work with clients so respected, that he was "asked to sit on the board," which was a rarity for a person his age.

• That when the mother of a friend of his was diagnosed with breast cancer, Tan brought her flowers and spent time talking with her. "He knew there was no way to improve the situation but demonstrated his caring nature by sharing his time," the letter states.

• A friend of Tan's has a cousin on the autism spectrum who "struggles with structuring many of her daily tasks." Tan purchased her school supplies and showed her "how to pack and organize her backpack." When he learned the girl's favorite color was purple, he went to the store to buy other materials that matched.

• While now incarcerated in the Cayuga County Jail, Tan has befriended and assisted other inmates, organized workouts and even helped one inmate write a book, according to a letter from a Tan friend to the judge.

Will the prosecution try to counter the evidence about Tan's character?

RAW: Charlie Tan suppression hearing adjourned in federal court Attorney Brian DeCarolis, who represents Charlie Tan, updates the press after a pretrial hearing in Syracuse over the alleged admission Tan made after the slaying of his father in 2015. (March 28, 2018)

Court papers clearly point to this likelihood.

For one, prosecutors have stressed their certainty that Tan killed his father in a premeditated murder. They even included, under seal, photos of Jim Tan's body after the homicide, saying that he was shot twice in the chest then, as he raised an arm to try to defend himself, again in the face.

Also, in recent court papers, prosecutors said that evidence unearthed from Tan's cellphone showed that he had been dealing marijuana, psychedelic mushrooms, and hallucinogens while he was a student at Cornell.

Why can a prosecutor mention alleged drug-dealing, since Tan was not charged with such a crime?

Remember, this is sentencing, not a trial. Responding to the letters to Judge Scullin from Tan's friends and family, prosecutors want to ensure that the judge has what they claim is a complete picture of Tan's character. It will be up to Scullin to determine how much the information should be weighed at sentencing.

Also, there is little restriction in federal court on the use of so-called "uncharged conduct" — alleged crimes that an accused has not been found guilty of — to be raised at sentencing. In those cases, a judge simply needs to determine by a "preponderance" of proof — basically 51 percent — that the accused committed the crimes.

That said, the alleged drug sales are not being raised to ask for an enhanced sentence for Tan since the guidelines call for the maximum. Instead, they apparently were cited by the prosecution as a rebuttal to claims of Tan's sterling character.

Was there abuse in the Tan household and will this matter at sentencing?

Let's start with the second half of the question: Whether to accept the claims of abuse, and how much weight to give those claims, will again be up to Judge Scullin.

As for the allegations of abuse, there clearly seems to be supporting evidence. As has been widely reported, Tan's mother, Qing "Jean" Tan, called 911 in January 2015 days before the homicide, saying her husband had choked her. Deputies responded but apparently acquiesced to her desire not to have him arrested. Instead, she said she wanted him out of the house, and he then did leave the home.

In letters to Scullin, both Jean Tan and Charlie Tan talk of the abusive nature of Jim Tan. Tan writes that he spoke to his father on the telephone about the alleged January 2015 assault on his mother, and became convinced his father might kill Jean Tan.

In her letter, Jean Tan wrote that she came from a very poor Chinese village and the marriage was arranged. Shortly after the marriage, the abuse by her husband started and continued throughout their marriage.

She said Jim Tan, a businessman, was controlling, disconnecting the telephones and Internet when angry. He even sometimes disappeared for days, and would check into hotels and "spend sizable money on himself" while enjoying "drinking, gambling, and women," she wrote.

As well as the January 2015 incident, Tan's attorneys — Brian DeCarolis and James Nobles — have records showing that police once moved her and her then-young sons, Charlie and his older brother, Jeffrey, into a shelter because of Jim Tan's alleged abuse. This happened when the family lived in Canada, before moving to Pittsford.

Also, in letters to Scullin, neighbors attest to Jim Tan's controlling nature and say they saw Jean Tan with bruises on her arms. One also writes of the many police responses to the Pittsford home, but, as the Democrat and Chronicle reported last month, Jim Tan himself initiated most of these calls. Some were about problems with Jeffrey, while in others he complained that his wife had scratched him during an argument or stolen some of his personal papers.

More: Exclusive: We know details of 911 calls from Charlie Tan's home. They aren't what you think

What will prosecutors say about the alleged abuse?

In their papers, prosecutors contend that even if the allegations are true — and Fletcher writes that the allegations are "inconsistent" — the proper response is not a premeditated homicide. Jean Tan was considering a divorce, records show.

In court papers, Fletcher wrote of Charlie Tan and the gun crimes: "A bright Cornell student with overwhelming support from friends, other parents, and coaches, both in Pittsford and at Cornell, Tan had a million other resources available to him, and he was, and is, smart enough to know that. Instead, he purposefully set out on a plan to murder his father, and committed the instant offenses in order to take that plan to fruition."

But how can the prosecutors say Tan killed his father when he has not been convicted of the crime?

Again, they don't need a conviction to raise this point at sentencing. And in his letter to Scullin, Charlie Tan apologized for what he framed as an impetuous decision provoked by his father's treatment of Jean Tan. The letter seems to come very close to an admission to the killing — if so, this would be his first — but does not quite go that far.

Prosecutors insist that, at sentencing, Tan should confess to the murder. Why? Admissions of guilt and the sincere showing of remorse can be considered by a judge at sentencing. But, prosecutors say, Tan's unwillingness to, thus far, confess is a "charade" and he should not get the benefit of an acceptance of responsibility for the crimes without an admission to murder.

Tan's lawyers, meanwhile, have argued that Tan has admitted to the gun crimes, and that should be what the judge considers at sentencing.

Are there other suspects?

Charlie Tan detained on federal charges Two years after not being convicted for fatally shooting his father, Charlie Tan, is now in federal court facing several charges including a weapons charge. (Sept. 23, 2017)

Some have questioned whether Jean Tan may have been the killer, wondering if she and Charlie conspired to spare her. This has been a theory, unsupported by the evidence such as that used against her son. (For instance, he bought the murder weapon, and the ammunition; his fingerprint was found on a spent shotgun shell; his erratic statements to friends and classmates before the homicide raised questions about his state of mind.)

Tan's older brother, Jeffrey, was not in New York at the time of the homicide.

What happened to get us to this point?

Charlie Tan's attorney talks about the plea James Nobles, Tan’s attorney, said that his client knew the gun would be used a felony. Tan did not admit to killing his father.

Here is the afore-mentioned history:

In February 2015 Tan was arrested and accused of the murder of his father. Later that year, he was tried and the jury was unable to reach a verdict. Jurors told the Democrat and Chronicle that eight of the 12 supported conviction when County Court Judge James Piampiano, with the consent of attorneys, declared the jury deadlocked.

Piampiano then scheduled a court session when a retrial date was expected to be scheduled. The session was held shortly after the 2015 election, when Piampiano was elected to state Supreme Court.

At that session Piampiano ruled on a motion from defense lawyers that had yet to be decided. As happens at almost all criminal trials, the defense had earlier asked that the indictment be dismissed, claiming that there was not even enough evidence to support the criminal charges.

These motions are rarely granted, and there was little expectation that Piampiano would agree to the dismissal; after all, he had earlier ruled that the indictment against Tan included enough evidence for the case to proceed, and the proof at trial was similar.

Nonetheless, Piampiano did dismiss the indictment. The District Attorney's Office appealed, but appellate judges ruled that Piampiano's decision, while legally wrong, could not be reversed.

The presiding judge, James Piampiano, breached judicial ethics when he discussed with the media the mistrial in the murder trial of Charles Tan, the state’s judicial watchdog has ruled. Piampiano later dismissed the murder charge against Tan.

The state's Commission on Judicial Conduct also decided Piampiano violated ethics by discussing the case with the media and by threatening to "to handcuff and jail a prosecutor for attempting to address him when he granted (the) defense motion to dismiss a murder charge."

The commission, the state's judicial watchdog, hit Piampiano with a formal censure, its most severe punishment short of removal from the bench.

There has been some questions about why it took federal authorities so long to act on the gun purchase. They had long known that the shotgun purchase was illegal, but likely did not plan to act if Tan was convicted at trial. It's also likely that they then waited for the results of the District Attorney's appeal to the Piampiano ruling. That appeal was decided in March 2017.

Six months later federal authorities arrested Tan on the gun charges as he came into the United States from Canada, where he'd been living.

He has been incarcerated in the Cayuga County jail since then.

GCRAIG@Gannett.com

For live coverage of Monday's sentencing: democratandchronicle.com

More Coverage

► Feds: Charlie Tan sold marijuana, psychedelic drugs to fellow Cornell students

► Charlie Tan on his father's death: 'I felt like there was no other option'

► Charlie Tan should admit he killed his dad, feds say: 'Time for charade has passed'

► Will Charlie Tan get prison or probation? It's in the hands of a federal judge

► Feds: Charlie Tan sold marijuana, psychedelic drugs to fellow Cornell students