Lack of Motion for Acquittal Leads 11th Circuit to Affirm Conviction and Sentence

Peter Hesser was indicted in 2011 and 2012 and later convicted of numerous income tax related charges. The charges stem from a number of different tax returns – both corporate and personal – going as far back as 2001. He was sentenced to three years in prison and three more years of supervised release.

In his appeal, Hesser challenges the sufficiency of the evidence against him in three of his charges, those consisting of submitting a false claim to the IRS. However, since he did not move for a judgment of acquittal in District Court, the 11th Circuit court “[would] not disturb the conviction … unless it is ‘necessary to prevent a manifest miscarriage of justice,’ meaning that ‘…a conviction must be shocking.’” This was based on United States v Greer. The 11^th found that while the government’s evidentiary presentation was deficient, it was not manifestly unjust. He also challenged the sufficiency of the evidence for his tax evasion charge, with the same outcome based on the same standard.

Hesser then points to a number of errors that deprived him of a fair trial. Again, because his counsel did not object to these errors during the trial in District Court, “they must rise to the level of plain error” as defined and applied by the 11^th Circuit in United States v Smith (2006), United States v Khan(2015), and United States v Moriarty(2005). In short, the Circuit Court found that the alleged individual errors were clearly not errors, were insignificant, or were “not so prejudicial that Hesser’s convictions must fall.” Further, the Court says “[e]ven weighed together, we cannot say that the errors he asserts affected his substantial rights.”

Finally, Hesser challenged an obstruction of justice enhancement to his sentence and the statutory basis for the District Court’s restitution order. Hesser tried on numerous occasions to influence his wife’s testimony, which led the Circuit to find that the District Court did not err in applying the enhancement. In the lone bit of good news for the appellant, the Circuit Court did find that the $296,246 he was ordered to pay in restitution was not the amount of the actual loss to the government, and remanded the issue so the proper amount could be determined. The full opinion can be accessed here.