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,

(1st C i r . ) , cert. denied,

(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,

(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.

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

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