Partial 2255 Denial Reversed for Ineffective Assistance of Counsel

Partial Denial of 2255 is reversed by the Eleventh Circuit due to ineffective assistance of counsel for Hesser.

Case History

In 2013, Hesser went to trial on three counts of tax fraud, in violation of 18 U.S.C. 287.  He also had one count of tax evasion, in violation of 26 U.S.C. 7201. A jury convicted Hesser on all four counts. He was sentenced to imprisonment, supervised release, and restitution.

Direct Appeal

On direct appeal, Hesser argued his convictions should be overturned because the government’s evidence at trial was insufficient to sustain the verdict. But because Hesser’s attorney had not properly objected to the sufficiency of the evidence at trial under Fed. R. Crim. P. 29, the Eleventh Circuit reviewed the claim only under a manifest miscarriage of justice standard. As to the three counts of tax fraud, the court held the evidence would be insufficient under a de novo standard of review (had counsel properly objected) but did not amount to a manifest miscarriage of justice.

As to the tax evasion charge, the court simply held that there was “ample evidence” from which the jury could have reasonably found Hesser guilty. Hesser’s convictions were affirmed by the Eleventh Circuit.

2255 Motion for Ineffective Assistance of Counsel

Thereafter, Hesser filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255 in the district court. Hesser argued that his trial counsel was ineffective for failing to properly move for judgment of acquittal under Rule 29.

The district court concluded that Hesser’s claim on the sufficiency of the evidence was meritorious as to the three counts of tax fraud but not the charged tax evasion. The district court granted Hesser’s motion in part, vacated his tax fraud conviction, but left the tax evasion conviction in place.

Appeal of Partial 2255 Denial

Hesser appealed the decision to the Eleventh Circuit. Regarding the tax evasion count, the basic inquiry on the ineffective assistance of counsel claim is whether Hesser’s attorney was deficient for failing to move for judgment of acquittal after the government’s presentation of its case-in-chief. If so, whether that deficiency prejudiced the outcome of trial.

Had Hesser’s attorney made the Rule 29 motion, the district court would have reviewed the sufficiency of the evidence under the Rule’s standard. Accordingly, the Eleventh Circuit tasked itself in deciding whether there is a reasonable probability that the district court would have held the government’s evidence was insufficient to sustain a conviction for the tax evasion had it been reviewing under the Rule 29 standard.

Closer Look at Indictment

The indictment alleged that Hesser had removed his assets from examination of the IRS by converting them to gold and that he had quitclaimed his house to a trust. The question before the court was whether either of these acts were proven to be affirmative acts of attempted tax evasion. The court concluded that the only way the action of hiding gold from the IRS would be legally significant to constitute an affirmative act of attempted tax evasion is if the gold had been subject to a tax levied on Hesser.

The government asked the jury to convict Hesser for hiding gold in his house so that the IRS could not find it, but the government never established that the gold belonged to Hesser. On this basis, the Eleventh Circuit concluded that the government did not provide enough evidence for a reasonable jury to conclude that the gold was Hesser’s beyond a reasonable doubt.

Turning to the quitclaimed act, the Eleventh Circuit called the transfer “suspicious,” but held that the government never even entered a copy of the quitclaim deed as one of its own exhibits at trial.

Under the de novo standard required by Rule 29, the court held that neither the hiding of gold bullion nor the deeding of the house into a trust established the required affirmative act for tax evasion under 26 U.S.C. 7201. As such, had counsel made a Rule 29 motion at trial, the district court would have been required to grant the motion.

Eleventh Circuit Decision to Reverse 2255 Partial Denial

Accordingly, the Eleventh Circuit held that Hesser’s counsel was ineffective for failing to properly move for judgment of acquittal, which the district court would have been legally required to grant for the reasons the appellate court explained. The Eleventh Circuit reversed the district court’s partial denial of Hesser’s 2255 motion and vacated Hesser’s only remaining conviction.