As I promised yesterday, I have added substantially below for the paragraphs after paragraph 1. I made these additions on 7/14/22 3:30 pm.
The Eleventh Circuit issued the opinion in Hesser v. United States, 40 F.4th 1221 (4th Cir. 7/13/22), CA11 here and GS here. I have not fully digested the opinion and am not prepared to offer meaningful, nuanced comments that will be useful to readers of the Federal Tax Crimes Blog. I will stew on the opinion a bit before commenting. My detailed comments will come later as addenda to this blog.
Let me try to summarize at a high level what happened. A jury long ago convicted Hesser of “tax fraud under 18 U.S.C. § 287 and 18 U.S.C. § 2 and one count of attempted tax evasion under 26 U.S.C. § 7201.” (A quibble, I would not describe § 287, labeled in the Code “False, fictitious or fraudulent claims,” as tax fraud since that term is often applied to other tax crimes, such as even § 7201.) On Rule 29 motion after the jury verdict, the district court sustained the convictions. On direct appeal, the 11th Cir. affirmed the convictions but remanded for further consideration of restitution. United States v. Hesser, 800 F.3d 1310 (11th Cir. 2015), GS here. Hessell then sought post-conviction relief under 28 USC § 2255 from the counts of conviction for "tax fraud" and tax evasion, alleging ineffective assistance of counsel. (Ineffective assistance of counsel is a common claim in § 2255 cases, although usually without merit.) The district court granted the relief for the tax fraud counts but denied the relief for the tax evasion count. Hesser appealed after obtaining a Certificate of Appealability from the 11th Circuit. On the § 2255 appeal, the 11th Circuit held that, on its view of the record, Hesser had been denied effective assistance of counsel because counsel failed to argue for Rule 29 judgment of acquittal at the close of the prosecution's case-in-chief on the basis that the prosecution had not adequately presented an element of the tax evasion crime – affirmative act of evasion. The 11th Circuit reasoned that, had counsel timely requested Rule 29 relief, the district court would have erred as a matter of law in not granting that relief on the affirmative act of evasion element. So counsel’s failure to request that relief establishes that counsel’s representation was not effective, thus requiring vacation of the conviction. Whew (just trying to pack the gravamen of the case into those words wears me out; there is a lot of nuance underlying that summary).
