It is the case that will not rest.
While the criminal and business story of Tom Petters already has its own well-read chapter in Minnesota’s corporate history book, the former Wayzata businessman is not going away quietly.
Nearly four years after a conviction that put him in prison for 50 years, Petters will get an unexpected hearing later this fall in an attempt to reduce that sentence.
His corporate bankruptcy, meanwhile, continues to stumble on as it approaches its fifth anniversary, with attorneys fees now exceeding $76 million and a payoff for creditors and victims of the $3.65 billion Ponzi scheme nowhere immediately in sight.
Bankruptcy trustee Doug Kelley said there’s a potential $1 billion that he could collect on top of the $310 million in assets he’s already marshaled if he gets favorable rulings from the bankruptcy judge overseeing the matter on the subject of so-called “clawbacks.”
But it’s been nearly two years since Kelley filed the original clawback lawsuits seeking to recover “false profits” from investors who lent money to Petters and were repaid with interest for businesses deals that turned out to be bogus.
“Once those rulings are in places, these cases will start to move quickly,” Kelley said in an interview.
But Professor Ann Graham, director of the business law institute for Hamline University School of Law is not so sure.
“Clawbacks are extremely difficult to prove,” she said. “You have to look back and show conclusively that investors knew” that the deals were flawed.
Most immediate on the Petters docket, however, is the subject of his prison sentence.
Petters argues that he was denied the opportunity to consider a plea bargain with a maximum of 30 years in prison.
That argument may be his last swing in an attempt to mitigate the results of a 20-count conviction on fraud, conspiracy and money laundering charges that put him in the Leavenworth federal penitentiary.
“It’s a Hail Mary pass,” said former federal prosecutor Bill Michael, who currently chairs the white-collar crime group for the Chicago law firm Mayer Brown.
Appeals to set aside Petters’s 2009 conviction and/or reduce his sentence have already been denied by the Eighth Circuit Court of Appeals and the U.S. Supreme Court.
But that does not mean that drama is lacking.
Petters to testify
A two-day evidentiary hearing scheduled in October before U.S. District Judge Richard Kyle will feature Petters himself as a witness in a starring role.
Also expected to appear on the stand: his now-estranged defense team and a young lawyer whose research helped set the stage for the upcoming hearing.
“Mr. Petters created the drama. All I’m doing is my job,” said Steve Meshbesher, the defense attorney retained by the Petters family to push for the reduced sentence.
One of the lead prosecutors in the criminal case could also appear as a witness at the October hearing, which will center around a purported 30-year sentence cap that federal prosecutors were willing to offer Petters in exchange for a guilty plea.
Petters claims the plea offer was never presented to him. His defense team says he was very aware of the possibility.
And government attorneys contend that the plea bargain was never formal in the first place.
“Mr. Petters is guilty,” said Meshbesher, who represented Petters more than 20 years ago on theft charges from a Colorado case that eventually were dropped. “The issue is, had he received that offer, would he have accepted it? He says the answer is yes.”
Petters contends that he never knew of the plea offer until after he was found guilty in his criminal trial and that notes from his defense team indicate that defense attorney Jon Hopeman did not believe the government offer was “respectable.”
Lawyers dispute claim
But the Petters defense team — Hopeman, Paul Enge, Eric Riensche and private investigator William O’Keefe — have submitted sworn statements to Kyle that Petters knew about the potential 30-year deal but was not interested.
Chris Madel, attorney for the former Petters defense team, last week filed a motion asking to be allowed to participate in the Petters hearing on the allegedly spurned plea offer.
“I’d like to ask Tom Petters, if there was this plea offer he would have accepted, why did he testify at trial that he was not guilty to all of the charges facing him?” Madel said.
Michael, the former prosecutor, said the standard for a defendant to show “ineffective assistance of counsel” — as is alleged in this case — is high.
“Jon Hopeman is a very effective lawyer who is extremely professional,” Michael said.
“This is nothing more than an allegation by someone who has nothing better to do for the next 50 years.”
Petters is one of 13 defendants who were found guilty or pleaded guilty to charges stemming from a decade-long fraud that involved the sale and resale of consumer electronic goods that never existed.
In reality, funds from new investors to purchase the goods for sale to big-box retailers were used to repay older investors.
The scheme collapsed in September 2008, after Petters lieutenant Deanna Coleman went to federal authorities and provided a detailed outline of the criminal activity.