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Attempted Tax Evasion: Case-in-Chief Must Include Evidence of Illegal Affirmative Act

In Hesser v. United States, the United States Court of Appeals for the Eleventh Circuit reversed a district court decision denying a petition for relief under 28 U.S.C. § 2255 on the grounds of ineffective counsel. The Eleventh Circuit addressed whether the Government failed to meet the evidentiary burden necessary to sustain a conviction for attempted tax evasion and, in turn, whether Hesser’s counsel was ineffective for failing to move for a judgment of acquittal.

In 2013, Peter Hesser was convicted on three counts of tax fraud and one count of attempted tax evasion. He was sentenced and ordered to pay restitution. Hesser appealed on the grounds that the evidence presented in the Government’s case-in-chief was not sufficient to support a conviction on all four counts. He also claimed that his counsel failed to object to the Government’s evidence under Fed. R. Crim. P. 29.

On appeal, the Eleventh Circuit held that, while the evidence would not have been sufficient under a de novo standard, there was ultimately no “miscarriage of justice” relating to the three tax fraud convictions, and the court upheld the conviction. With regards to count four—the count of tax evasion—the court held that there was “ample evidence” and therefore no “miscarriage of justice” occurred, so the court upheld that conviction as well.

Delaney C. Holmes, Hesser v. United States, 4 Cumb. L. Rev. Online 100 (2023).


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