Petit v . United States CV-02-184-M 04/17/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Catherine D. Petit, Petitioner NH Civil N o . 02-184-M v. ME Civil N o . 01-298-PH United States of America, Opinion N o . 2003DNH071 Respondent
O R D E R
By order dated July 1 8 , 2002, the court solicited a targeted
response from the government to petitioner’s claim that one of
her defense counsel, Attorney Beneman, had a conflict of interest
arising from the fact that prosecutors threatened him, or accused
him of complicity in petitioner’s crimes.1 That, she says,
caused Beneman to focus on his personal interests in avoiding
confrontations with the United States Attorney and facilitating
1 The government mischaracterizes the July 1 8 , 2002, Order. Petitioner’s claim was not “termed facially without merit” by the court, as the government says in its response. In fact, the Order is quite plain: “[Petitioner’s] assertion seems to be facially without merit – nothing in this file indicates any such charge by the government. . . . But, on the other hand, nothing in this file conclusively establishes that petitioner’s conflict allegations are meritless. The government has not responded to the discrete issue. . . .” Order, at 9-10 (emphasis added). If the court had termed the claim facially without merit, further briefing would not have been required. his future practice in Maine, all at her expense. In other
words, she says that Beneman was less than vigorous in
representing her at sentencing, because he sought to ingratiate
himself with, o r , at least avoid offending, the prosecutors. The
prosecutors’ alleged accusation of complicity occurred after
petitioner’s conviction, and, therefore, could only have affected
sentencing.
The government filed a response and, shortly thereafter,
petitioner filed a “limited response” (document n o . 7 ) , to which
the government replied (document n o . 8 ) . And, on March 3 , 2003,
petitioner filed a number of pleadings, and hundreds of pages of
supporting documents – some tangentially relevant to the issue
the court specified for further briefing, but most are entirely
irrelevant (documents 9 and 1 0 ) . The government moves to strike
those motions for various reasons.
The court has considered the petitioner’s filings, to the
extent they plausibly relate to the specified issue. But,
otherwise, the several motions described in documents 9 and 10
2 are denied. The government’s motion to strike (document n o . 11)
is denied as well.
The government, again, does not directly address
petitioner’s claim that prosecutors threatened Attorney Beneman –
other than to say petitioner waived her conflict claim (through
allegedly conflicted counsel) and that she has “offered no
concrete proof that at any time Beneman was actually under
investigation for anything.” Government’s Supplemental Response,
(document n o . 6, at 14) (emphasis added).
But, even assuming the prosecutors did accuse Beneman, at
some point after the verdict, of complicity in petitioner’s
crimes (nothing in the petition or numerous documents filed,
beyond petitioner’s declaration, supports that assumption), the
petition, pleadings, and exhibits in the file still demonstrate
that petitioner is entitled to no relief on the conflict issue.
It is not apparent that petitioner plainly and clearly
raised before the trial court the conflict issue that she now
asserts in this proceeding. She did raise general claims of
3 prosecutorial misconduct of one sort or another, and the trial
court addressed those issues primarily as an improper effort by
petitioner to represent herself while being represented by
counsel (she raised those issues in pro se pleadings, without
counsels’ participation). She also expressed “concerns” of a
general nature, but never pointed to or described an actual
threat or accusation by prosecutors against Beneman.
Petitioner apparently had a letter sent in her name to the
trial judge that suggested Attorney Beneman might have been
“compromised.” She questioned whether “Mr. Beneman in any way
has been compromised based on these issues that have surfaced” –
by which she meant the prosecutors’ apparent objections to her
son’s soliciting letters of support from her fraud victims for
use at sentencing (Attorney Beneman also purportedly sent a
letter to one of the victims seeking sentencing support for
petitioner, and petitioner implies that prosecutors were unhappy
about that as well).
As the trial judge pointed out at a May 1 8 , 1999, hearing,
Attorney Beneman had a professional obligation to disclose any
4 matters that might compromise his representation. The trial
judge expressed confidence that Beneman would do so if the need
arose, and he encouraged petitioner to bring any such concerns to
Beneman’s attention first, before filing pleadings on her own
behalf. Petitioner did not raise the issue, even vaguely, again.
Attorney Beneman did not disclose any possible “compromise.”
And, petitioner pointed to nothing then, and points to nothing
now, that would support a claim that prosecutors threatened or
accused Beneman of complicity in her crimes. She certainly has
not plausibly suggested that Beneman was under investigation
regarding any criminal conduct, or that he was aware of such an
investigation.
One day after the hearing before the trial court, on May 1 9 ,
Attorney Beneman filed a motion to withdraw. But the withdrawal
motion was not based upon anything the prosecutors said or did;
instead, Beneman expressed dissatisfaction with petitioner’s own
behavior, referencing her earlier letter to the judge complaining
about overbearing prosecutors. He suggested that he could no
longer vigorously represent petitioner because petitioner wished
him to pursue a course of conduct in her defense that Beneman was
5 professionally unwilling to pursue. Later, at a May 2 6 , 1999,
pre-sentence conference, Attorney Beneman effectively withdrew
his motion. Petitioner had not directly responded to the motion
to withdraw, but her co-counsel, Attorney Lawson, represented to
the court that he had spoken with petitioner several times, that
a misunderstanding precipitated the motion, everything had been
cleared up between petitioner and her counsel (both Lawson and
Beneman), and petitioner did not want Beneman to withdraw.
Beneman agreed, requesting that no action be taken on his motion.
If the record reveals nothing else, it reveals that petitioner
was a difficult client in terms of actively seeking to
participate in conducting her defense, as if representing
herself, and in seeking to direct counsels’ conduct of the
defense.
The petition does not provide a basis for overturning either
her conviction or sentence on Sixth Amendment grounds. First,
the conviction was not affected at all, since the alleged
conflict did not arise until after the verdict was returned.
With regard to sentencing, petitioner’s conflict allegation is
entitled to serious consideration, because, as the court of
6 appeals for this circuit has noted, “a defense lawyer within the
sights of a targeted criminal prosecution may find his personal
interests at odds with his duty to a client.” Reyes-Vejerano v .
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Petit v . United States CV-02-184-M 04/17/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Catherine D. Petit, Petitioner NH Civil N o . 02-184-M v. ME Civil N o . 01-298-PH United States of America, Opinion N o . 2003DNH071 Respondent
O R D E R
By order dated July 1 8 , 2002, the court solicited a targeted
response from the government to petitioner’s claim that one of
her defense counsel, Attorney Beneman, had a conflict of interest
arising from the fact that prosecutors threatened him, or accused
him of complicity in petitioner’s crimes.1 That, she says,
caused Beneman to focus on his personal interests in avoiding
confrontations with the United States Attorney and facilitating
1 The government mischaracterizes the July 1 8 , 2002, Order. Petitioner’s claim was not “termed facially without merit” by the court, as the government says in its response. In fact, the Order is quite plain: “[Petitioner’s] assertion seems to be facially without merit – nothing in this file indicates any such charge by the government. . . . But, on the other hand, nothing in this file conclusively establishes that petitioner’s conflict allegations are meritless. The government has not responded to the discrete issue. . . .” Order, at 9-10 (emphasis added). If the court had termed the claim facially without merit, further briefing would not have been required. his future practice in Maine, all at her expense. In other
words, she says that Beneman was less than vigorous in
representing her at sentencing, because he sought to ingratiate
himself with, o r , at least avoid offending, the prosecutors. The
prosecutors’ alleged accusation of complicity occurred after
petitioner’s conviction, and, therefore, could only have affected
sentencing.
The government filed a response and, shortly thereafter,
petitioner filed a “limited response” (document n o . 7 ) , to which
the government replied (document n o . 8 ) . And, on March 3 , 2003,
petitioner filed a number of pleadings, and hundreds of pages of
supporting documents – some tangentially relevant to the issue
the court specified for further briefing, but most are entirely
irrelevant (documents 9 and 1 0 ) . The government moves to strike
those motions for various reasons.
The court has considered the petitioner’s filings, to the
extent they plausibly relate to the specified issue. But,
otherwise, the several motions described in documents 9 and 10
2 are denied. The government’s motion to strike (document n o . 11)
is denied as well.
The government, again, does not directly address
petitioner’s claim that prosecutors threatened Attorney Beneman –
other than to say petitioner waived her conflict claim (through
allegedly conflicted counsel) and that she has “offered no
concrete proof that at any time Beneman was actually under
investigation for anything.” Government’s Supplemental Response,
(document n o . 6, at 14) (emphasis added).
But, even assuming the prosecutors did accuse Beneman, at
some point after the verdict, of complicity in petitioner’s
crimes (nothing in the petition or numerous documents filed,
beyond petitioner’s declaration, supports that assumption), the
petition, pleadings, and exhibits in the file still demonstrate
that petitioner is entitled to no relief on the conflict issue.
It is not apparent that petitioner plainly and clearly
raised before the trial court the conflict issue that she now
asserts in this proceeding. She did raise general claims of
3 prosecutorial misconduct of one sort or another, and the trial
court addressed those issues primarily as an improper effort by
petitioner to represent herself while being represented by
counsel (she raised those issues in pro se pleadings, without
counsels’ participation). She also expressed “concerns” of a
general nature, but never pointed to or described an actual
threat or accusation by prosecutors against Beneman.
Petitioner apparently had a letter sent in her name to the
trial judge that suggested Attorney Beneman might have been
“compromised.” She questioned whether “Mr. Beneman in any way
has been compromised based on these issues that have surfaced” –
by which she meant the prosecutors’ apparent objections to her
son’s soliciting letters of support from her fraud victims for
use at sentencing (Attorney Beneman also purportedly sent a
letter to one of the victims seeking sentencing support for
petitioner, and petitioner implies that prosecutors were unhappy
about that as well).
As the trial judge pointed out at a May 1 8 , 1999, hearing,
Attorney Beneman had a professional obligation to disclose any
4 matters that might compromise his representation. The trial
judge expressed confidence that Beneman would do so if the need
arose, and he encouraged petitioner to bring any such concerns to
Beneman’s attention first, before filing pleadings on her own
behalf. Petitioner did not raise the issue, even vaguely, again.
Attorney Beneman did not disclose any possible “compromise.”
And, petitioner pointed to nothing then, and points to nothing
now, that would support a claim that prosecutors threatened or
accused Beneman of complicity in her crimes. She certainly has
not plausibly suggested that Beneman was under investigation
regarding any criminal conduct, or that he was aware of such an
investigation.
One day after the hearing before the trial court, on May 1 9 ,
Attorney Beneman filed a motion to withdraw. But the withdrawal
motion was not based upon anything the prosecutors said or did;
instead, Beneman expressed dissatisfaction with petitioner’s own
behavior, referencing her earlier letter to the judge complaining
about overbearing prosecutors. He suggested that he could no
longer vigorously represent petitioner because petitioner wished
him to pursue a course of conduct in her defense that Beneman was
5 professionally unwilling to pursue. Later, at a May 2 6 , 1999,
pre-sentence conference, Attorney Beneman effectively withdrew
his motion. Petitioner had not directly responded to the motion
to withdraw, but her co-counsel, Attorney Lawson, represented to
the court that he had spoken with petitioner several times, that
a misunderstanding precipitated the motion, everything had been
cleared up between petitioner and her counsel (both Lawson and
Beneman), and petitioner did not want Beneman to withdraw.
Beneman agreed, requesting that no action be taken on his motion.
If the record reveals nothing else, it reveals that petitioner
was a difficult client in terms of actively seeking to
participate in conducting her defense, as if representing
herself, and in seeking to direct counsels’ conduct of the
defense.
The petition does not provide a basis for overturning either
her conviction or sentence on Sixth Amendment grounds. First,
the conviction was not affected at all, since the alleged
conflict did not arise until after the verdict was returned.
With regard to sentencing, petitioner’s conflict allegation is
entitled to serious consideration, because, as the court of
6 appeals for this circuit has noted, “a defense lawyer within the
sights of a targeted criminal prosecution may find his personal
interests at odds with his duty to a client.” Reyes-Vejerano v .
United States, 276 F.3d 94 (1st C i r . ) , cert. denied, 123 S.Ct.
458 (2002). The court of appeals has adopted a rule for such
cases: “[A] defendant has not shown a fatal conflict by showing
only that his lawyer was under investigation and that [his]
lawyer had some awareness of an investigation.” Id., at 9 9 .
The defendant must still meet the Cuyler [v. Sullivan, 446 U.S. 335 (1980)] standard of actual conflict and adverse effect: the defendant must show some causal relationship between the lawyer’s awareness of the investigation and the alleged deficiency in representation.
Id. Here, other than petitioner’s unsupported claim, nothing in
the petition or supplemental filings suggests that Attorney
Beneman was under investigation in connection with petitioner’s
extensive fraud scheme, or any other offense.
Nevertheless, even assuming a prosecutor expressed, to
Beneman, the view that Beneman’s effort to obtain support letters
from petitioner’s victims somehow made him “complicit” in the
crimes of conviction, or different crimes (a pretty far-fetched
7 view), there is nothing to suggest that Attorney Beneman, or his
co-counsel, Attorney Lawson, “pulled any punches” at sentencing.
To the contrary, Beneman’s efforts resulted in a sentence at the
low end of the applicable Guideline range. S o , petitioner
completely fails to meet the second part of the Cuyler test –
there is no arguable deficiency in Attorney Beneman’s
representation on sentencing, and petitioner points to none with
any degree of specificity.
Petitioner makes no plausible showing that her sentence
would have been more favorable had Beneman pursued some different
theory or strategy on sentencing, much less a theory or strategy
inconsistent with his supposedly conflicting personal interests.
Contrary to petitioner’s claim, Beneman did seek to minimize the
loss amounts attributable to petitioner’s fraud under the
Sentencing Guidelines – so he was obviously not adversely
affected in that regard. And, as the government points out,
petitioner would have to point to a plausible alternative loss
calculation theory (that Beneman failed to pursue because of his
alleged conflict) sufficient to reduce the loss amount found by
the trial judge by more than $2 Million before she could obtain
8 any relief under the Sentencing Guidelines (i.e., resentencing at
the next lower offense level).
Petitioner simply does not come close to asserting facts or
circumstances that would support a finding of prejudice – an
adverse affect upon her sentence due to an alleged conflict of
interest on Beneman’s part. The sentence was consistent with the
applicable Guidelines, was correctly calculated, and was less
severe than it might have been due to the efforts of Attorneys
Beneman and Lawson.2 And, importantly, it would not likely have
been more favorable had a different tactic or strategy been
followed (at least petitioner does not suggest one, and does not
suggest one that Beneman might have been reluctant to pursue).
Conclusion
The petition, other pleadings and exhibits, and the file, do
not combine to describe a plausible Sixth Amendment claim. The
petitioner does not describe an actual conflict – but merely
2 The trial judge determined a loss amount that was itself more than $2 Million less than that recommended in the Pre- Sentence Investigation Report prepared by the United States Probation Office.
9 asserts that a prosecutor threatened her counsel with a charge of
complicity in her crimes which, she says, necessarily gave rise
to an actual conflict on Attorney Beneman’s part. The petition
does not describe or disclose any causal relationship between
Beneman’s asserted awareness of the (alleged) prosecutorial
threat and any representational deficiencies at sentencing; it
does not describe any error in sentencing, much less one related
to Attorney Beneman’s alleged representational failures; and, it
does not suggest any realistic or plausible alternative arguments
that could have been made on sentencing that would have even
remotely affected her sentence in a favorable way, much less an
argument that Attorney Beneman would have been inclined not to
make because of adverse personal interests.
While petitioner is a prolific writer, and has filed
hundreds of pages of documents, in the end she says little of
substance regarding Attorney Beneman’s alleged conflict and its
supposed adverse effect on his representation and her sentence.
Accordingly, the petition is dismissed for the reasons given here
and in the previous Order (document n o . 6 ) . See Rule 8 , Rules
Governing Section 2255 Proceedings for the United States Courts.
10 Petitioner’s combined multiple motions (documents 9 and 10) are
denied (although the court has considered the material in
assessing the viability of petitioner’s habeas claims). The
government’s motion to strike (document n o . 11) is denied. The
Clerk of Court shall close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
April 1 7 , 2003
cc: Catherine D. Petit Margaret D. McGaughey, Esq. Clerk, U.S. District Court, Maine