It’s a “last gasp,” an expert said of the convicted Ponzi schemer’s contention about his sentence.
The case of the United States of America vs. Thomas Joseph Petters has never been boring.
From a spectacular raid on his business and his almost immediate detention in September 2008, to his conviction and 50-year prison sentence in December 2009, Tom Petters has been a headline-producing machine.
His latest revelation, filed late Friday, claims that his defense attorney, Jon Hopeman, failed to inform Petters of an offer from prosecutors to cut a deal for a 30-year prison sentence.
Through a new defense attorney, Steven Meshbesher, Petters has asked the federal judge who presided over his trial to hold a new hearing that would allow Petters to plead guilty and receive the government’s purported lesser sentence.
On Monday, U.S. District Judge Richard Kyle gave the U.S. attorney’s office until June 3 to file a motion opposing Petters request and gave Petters until June 24 to file a reply brief.
Meshbesher, who represented Petters on different fraud charges in the early 1990s, offered limited insight into the sentencing request by Petters, calling the matter “very sensitive.”
In the meantime, the attorney-client privilege confidentiality link between Hopeman and Petters was waived by Kyle, a decision that gives Hopeman the opportunity to file his own affidavit about his conversations with prosecutors.
Hopeman on Monday declined to comment on the Petters motion, as did the U.S. attorney’s office.
“We will make our remarks in our response pleadings,” said spokeswoman Jeanne Cooney of the U.S. attorney’s office.
But Petters has several hurdles to clear in order to be successful in getting a reduced sentence, said Ted Sampsell-Jones, a criminal-law professor at William Mitchell College of Law in St. Paul.
“First he’s got to prove a formal offer was made,” Sampsell-Jones said. “Second, he’s got to show that if he had known about the offer that he would have taken it, and that is hard to show. Third, there has to be a reasonable probability that the judge would have accepted the sentence.”
Sampsell-Jones said Petters’ assertion of “ineffective assistance” by Hopeman is a commonly used basis for getting a case reviewed after a conviction.
“It’s kind of a last gasp, and it is fairly hard to prove,” Sampsell-Jones added.
Petters is serving a 50-year prison sentence in Leavenworth, Kan., for masterminding a $3.65 billion Ponzi scheme to use money from new investors to pay off promissory notes to old investors, all of whom thought Petters was buying and selling consumer electronic goods. The fraud went on for more than a decade.
In his motion Friday, Petters produced several memos from his criminal file prepared by Hopeman that refer to conversations with prosecutors regarding a 30-year sentence.
In an October 2008 memo, shortly after Petters was arrested, Hopeman noted that Assistant U.S. Attorney John Marti said the government “was willing to agree to a 30-year cap.” In a January, 2009 memo Hopeman wrote that he told Petters “we had received no plea offer from the government” even though Marti “told me that he would be making an offer.”
The memos filed as exhibits on behalf of Petters contain some other interesting details as well.