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Defendant's Attorney: United States Attorney’s Office

Description: Fort Myers, Florida criminal defense lawyer represented Plaintiff, who sued Defendant seeking to vacate the sentence imposed on him by the Court.


In 2013, Hesser went to trial for three counts 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.[1] A jury convicted on all four counts, and he was sentenced to a period of incarceration, supervised release, and restitution. He appealed, arguing, among other things, that his convictions should be overturned because the evidence in the Government's case-in-chief was insufficient to sustain a conviction as to all four counts. Hesser, 800 F.3d at 1314. Because Hesser's counsel had not properly objected to the sufficiency of the
Government's evidence below under Fed. R. Crim. P. 29, we reviewed his claims on the insufficiency of the evidence only under a manifest miscarriage of justice standard. Id. at 1320. As to the first three counts of tax fraud, we held that, although the Government's evidence would have been insufficient under a de novo standard, no manifest miscarriage of justice had resulted as a result of the jury's verdict, so we did not disturb those convictions. Id. at 132023. As to Count Four, the attempted tax evasion conviction, we held that under the manifest miscarriage of justice standard there was "ample evidence" from which the jury could have reasonably found that Hesser committed tax evasion. Id. at 1324. So, we declined to disturb that conviction as well.

After we issued our ruling on direct appeal, Hesser filed a habeas petition under 28 U.S.C. § 2255 in the District Court to set aside his conviction on all four counts. He argued that his trial counsel was ineffective under the Sixth Amendment in three respects. First, he argued that his trial counsel was deficient in failing to properly move for a judgment of acquittal based on the insufficiency of the evidence after the Government finished presenting its case-in-chief. Second, Hesser argued that his trial counsel was ineffective for calling him as a witness at trial. And third, he argued that his attorney failed to properly warn him of the dangers of testifying in his own defense, such that his acceptance of the advice to testify was not knowing, voluntary, and intelligent. The District Court held that Hesser's claim on the sufficiency of the evidence was meritorious as to the three counts of tax fraud but declined to disturb the jury's verdict as to Count Four for tax evasion. The District Court then held that Hesser's decision to testify was knowing and intelligent and that there was no evidence that Hesser's attorney had improperly advised him about testifying in his own defense. As a result, the District Court vacated the convictions for the first three counts of tax fraud but left in place the fourth for tax evasion. Hesser timely appealed, renewing his arguments that his counsel was ineffective 1) in failing to properly move for judgment of acquittal as to Count Four, 2) in calling him to the witness stand, and 3) in failing to advise him of the dangers of testifying in his own defense.
Hesser v. United States (11th Cir. 2022)

Outcome: Petition Granted.

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