United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
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.
Motion for New Counsel
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.
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.
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
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.
Didier Invokes Coverage Under the Policy
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
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.
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.
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.
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.
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.
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.
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.
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.
Chubb Questions Didier's Representations
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,
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.
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.
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.
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.
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.
Other Relevant Evidence
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.
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.