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United States v. Didier

United States District Court, D. Montana, Missoula Division

August 1, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
CHRISTIN DIANNE DIDIER, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

         This case comes before the Court on Defendant/Movant Christin Dianne Didier's motion to vacate, set aside, or correct her sentence, pursuant to 28 U.S.C. § 2255. Didier is a federal prisoner proceeding pro se.

         I. Motion for New Counsel

         Didier asks the Court to appoint new counsel to represent her. Counsel may be appointed at any stage of the proceedings if "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). Under § 3006A, the court must consider the likelihood of success on the merits, the complexity of the legal issues involved, and the movant's ability to articulate her claims pro se. Weygandt v. Look, 718 F.2d 952, 954 ¶ 2 (9th Cir. 1983) (per curiam). Counsel must be appointed "when the case is so complex that due process violations will occur absent the presence of counsel," Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993) (discussing Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (per curiam)), or when an evidentiary hearing is required, Rule 8(c), Rules Governing § 2254 Cases.

         Didier presented a coherent motion articulating claims for relief. As explained below, her claims lack merit, but that is not due to any lack of ability on her part or to the complexity of the task. There is no reason to suppose her right to due process is in jeopardy. The circumstances of her case do not warrant the appointment of counsel.

         II. Preliminary Review

         Before the United States is required to respond to Didier's § 2255 motion, the Court must determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) ("Nicolas") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). But the Court should "eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         III. Factual Background

         On September 12, 2012, a grand jury indicted Didier on seven counts of mail fraud, violations of 18 U.S.C. § 1341 (Counts 1-7), and one count of conspiring with co-defendant Surayya Nasir to commit mail fraud, a violation of 18 U.S.C. § 371 (Count 9). The United States alleged that Didier knowingly made false representations to obtain money under her insurance policy with Chubb Insurance.

         A. Didier Invokes Coverage Under the Policy

         The policy was issued to Didier on a historic building in Somers, Montana, with 14 bedrooms, multiple fireplaces, three bathrooms, a ballroom, and remarkable views over Flathead Lake.

         In the summer of 2007, high winds damaged parts of the mansion. In January 2008, before repairs had been completed, a fire occurred. Chubb agreed these events warranted coverage under the policy. Because the fire damage further complicated the already difficult task of heating the mansion, Chubb and Didier agreed Didier needed to move out while repairs continued. See 2 Trial Tr. (Doc. 135) at 403:5-22. To find an appropriate replacement property, Chubb retained ALE Solutions, Inc. ALE was responsible for paying Didier. Chubb reimbursed ALE. See Id. at 405:4-407:12.

         While a property search was underway, Chubb advanced Didier $50, 000 to "keep heat in the house" and to cover "whatever extra living expenses she might have." See 2 Trial Tr. at 410:15-411:12. Chubb and ALE discussed a few potentially suitable properties. A bed-and-breakfast in Whitefish, Montana, was willing to cancel all its reservations for six months. Chubb declined because the landlord would not agree to an option to renew after six months. ALE found a fully furnished home with eight bedrooms, but Chubb, believing the property was in much better shape than the Somers mansion, balked at the monthly rent of $40, 000. See 2 Trial Tr. at 407:13-408:3, 453:1-16. Chubb told ALE to look for a property in the range of $10, 000 to $15, 000 per month. ALE went back to the Whitefish property and persuaded the landlord to agree to rent of just over $10, 000 per month on a six-month lease, this time with an option to renew. Chubb agreed to offer that property to Didier. See 2 Trial Tr. at 502:20-507:7.

         On January 22, 2008, ALE asked Didier to look at the Whitefish property. On January 25, 2008-before Didier visited the property in Whitefish-she told ALE about a different property in Rollins, Montana, just down the way from Somers on Flathead Lake. Didier completed a property description form stating that the Rollins property had five bedrooms, two bathrooms, and floor space of 6900 square fee. See, e.g., 5 Trial Tr. (Doc. 138) at 16:24-25; see also Mot. to Dismiss Ex. B (Doc. 27-2) at 1-2, 9-10.

         ALE relayed the property description to Chubb. Didier also put ALE in touch with Nasir, who represented herself to be a broker employed by the owner of the property, the CD. Didier Family Trust. Didier confirmed to ALE that the Rollins property was held in trust by her extended family, rather than by Didier personally, and that Nasir was acting for the Trust. The ALE representative testified that she would not have been able to present the property to Chubb if Didier and the Trust were the same person: "You can negotiate with your adjuster and rent your own property, but that would be something [Didier] would have to negotiate with the adjuster herself, and ALE would back out at that point." 2 Trial Tr. at 522:17-523:17, 524:21-525:7; see also Mot. to Dismiss Ex. B (Doc. 27-2) at 11.

         On January 27, 2008, before Chubb approved the Rollins property, Didier left the Somers mansion and relocated to Rollins. The next day, Didier vetoed the Whitefish property because it was too far from Somers. See 1 Trial Tr. 268:19-269:10; 2 Trial Tr. at 557:11-558:6.

         As Didier had been a trying client, Chubb's adjuster approved the Rollins property to "shut this lady up." Chubb agreed to pay the Trust monthly rent of $15, 250 along with a $7, 000 security deposit, a $5, 000 pet deposit, and a $1, 500 cleaning fee, plus a 10% broker fee, or $10, 875, to Nasir. See 2 Trial Tr. (Doc. 135) at 516:18-517:3, 562:16-563:11; see also Mot. to Dismiss Ex. B (Doc. 27-2) at 10.

         Didier gave ALE a copy of a form she had completed detailing the condition of the Rollins property when she moved in, including two bathrooms and five bedrooms, one on the first floor and the others designated by color-red, blue green, pink, and eggplant. Didier's and Nasir's names were on the form. See, e.g., 5 Trial Tr. (Doc. 138) at 20:23-21:6; see also Mot. to Dismiss Ex. B. (Doc. 27-2) at 12.

         On February 8, 2008, Didier provided ALE a copy of the lease she had signed on the Rollins property. In addition to number of bedrooms and bathrooms, an appended document also said the property had a pool and a dog kennel with remote-controlled doors. Didier was named as the tenant. See, e.g., 3 Trial Tr. at 702:15-703:10, 807:2-1 \\ see also 5 Trial Tr. at 18:11-16.

         B. Chubb Questions Didier's Representations

         On February 12, 2008, four days after sending the lease to ALE, Didier filed a similar lease in the United States Bankruptcy Court for the District of Montana. On this lease, Didier represented that she was the trustee and sole beneficiary of the CD. Didier Family Trust, owned a property in Rollins, and was receiving $15, 250 per month in rent payments for it. Didier also filed the document creating the Trust. See 1 Trial Tr. (Doc. 134) at 241:16-244:12, 248:17-249:19.

         In June 2008, an investigator for Chubb visited the Rollins property. He found no pool and no remote-controlled kennels. Outbuildings consisted of an outhouse and a Porta Potty. Instead of a 6900-square-foot house with five bedrooms and two bathrooms, he found an 860-square foot cabin with two bedrooms, no bathroom, and no indoor plumbing. See 2 Trial Tr. (Doc. 135) at 633:12-638:20. Another investigator compared the lease for the Rollins property that Didier filed in the Bankruptcy Court with the lease Didier gave ALE. See 3 Trial Tr. at 698:11-711:15.

         Pursuant to the insurance contract, Chubb conducted two examinations under oath. In one, Didier said her description of the Rollins property was correct because she took "bedrooms" to mean "beds," "bathroom" to include an outhouse, and "square feet" to mean the entire property rather than the floor space of the residence. Didier said her sister and/or other siblings were the Trust's trustees and knew Didier was being paid $15, 000 per month to live on the Rollins property. Didier agreed she was the only person generating income to the Trust and the only person receiving income from the Trust. She admitted her name was on the deed to the Rollins property, and she admitted signing one version of the lease as the tenant and another as the landlord. See 3 Trial Tr. at 753:14-757:16, 810:13-25.

         A similar examination under oath was conducted with Nasir. She maintained that she was a broker for the CD. Didier Family Trust and had negotiated the rental payment with ALE based on comparable properties. She also said ALE knew Didier's trust owned the Rollins property. She offered to send Chubb's investigator her file, but she never did. See generally 3 Trial Tr. at 723:6-732:19.

         In January 2009, Chubb denied Didier's claims due to her failure to disclose her ownership of the Rollins property, her inaccurate description of that property, and her failure to cooperate in Chubb's investigation of her claims for repair costs at the Somers mansion. See 2 Trial Tr. at 416:15-25.

         Chubb also complained to the State Auditor. In an interview with state officials in May 2009, Didier asserted that ALE had told her she was entitled to an amount of money that would be the equivalent of hotel fees, regardless of where she was actually living. See 3 Trial Tr. at 862:3-23. According to Didier, ALE explained, "[I]t's sort of like if you have to rip linoleum out of your kitchen floor and you decide to put in dollar-store linoleum." Id. at 868:5-7. Didier said she misunderstood the form and thought she was supposed to describe the Whitefish property, but the address on the form was the Rollins property. See 3 Trial Tr. at 911:22-913:3; 4 Trial Tr. (Doc. 137) at 991:13-992:6. Didier claimed her sister deposited ALE's checks and that her brother and sister were the beneficiaries of the Trust while she owned the Rollins property. Id. at 913:16-22, 916:2-8. Didier also said she told ALE she owned the Rollins property and ALE "didn't care." See 3 Trial Tr. at 867:24-868:14; 4 Trial Tr. (Doc. 137) at 993:21-995:2. Didier's sister testified that she did not deposit any checks. See 2 Trial Tr. At 603:24-604:22.

         C. Other Relevant Evidence

         In addition to the evidence described above, there was evidence suggesting that Didier dummied up invoices to obtain additional insurance funds, see 1 Trial Tr. at 308:11 -311:17; that she approached a realtor who declined to represent her because the realtor could not understand why an insurance company would pay Didier to rent her own property, see 2 Trial Tr. at 360:9-364:18; and that, after Chubb notified Didier someone would come to examine the boiler at the Somers mansion to determine why it was not working, the boiler was removed from the home and disassembled on the front lawn, see 2 Trial Tr. at 414:6-14, 444:6-21, 459:23-462:18.

         Didier was examined by two medical experts in 2010 and 2012. They found she had suffered organic brain damage as a result of carbon monoxide poisoning. See generally 3 Trial Tr. (Doc. 136) at 871:5-910:16; 4 Trial Tr. (Doc. 137) at 1061:12-1111:11. Didier claimed that heating units at the Somers mansion leaked carbon monoxide into the home, but other evidence contradicted her assessment and suggested a later onset of her symptoms. See, e.g., 1 Trial Tr. (Doc. 134) at 294:18-295:23, 312:1-17; 2 Trial Tr. (Doc. 135) at 471:23-472:17; 3 Trial Tr. (Doc. 136) at 761:15-762:13.

         IV. ...


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