Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, September 09, 2015

Hesser: Affirming tax evasion conviction

In U.S. v. Hesser, No. 13-11712 (Sept. 8, 2015), the Court affirmed convictions for submitting false claims to the IRS, and for tax evasion, but reversed the restitution order because it included amounts that Hesser still owed for tax deficiencies, but which the IRS had not actually lost. Reviewing the challenges to the sufficiency of the evidence only for a "manifest miscarriage of justice" because Hesser at trial failed to move for a judgment of acquittal, the Court found sufficient evidence, particularly from Hesser's own trial testimony, to support the convictions. Reviewing the claimed trial errors only for "plain error" because Hesser at trial failed to object, the Court found no grounds to reverse. The Court did not "condone" the prosecutor's misleading statement that Hesser relied on a disbarred attorney for advice, but found that this isolated remark did not affect Hesser's substantial rights. Turning to sentencing, the Court rejected Hesser's challenge to the imposition of an obstruction of justice enhancement. The Court affirmed the trial court's finding that Hesser improperly attempted to influence his wife's testimony before she testified for the government at his trial.