United States v. Hassebrock, 2011 U.S. App. LEXIS 23315

Background

Hassebrock was convicted by a jury of tax evasion under 26 U.S.C. § 7201 and failure to file a 2004 tax return under § 7203.
He earned 2004 income including a $2.5 million settlement but did not file a 2004 federal return or timely request a filing extension by April 15, 2005.
Two-count indictment charged willful evasion/defeat of taxes and willful failure to file; he pleaded not guilty in 2009.
A jury special verdict found willful failure to file by April 15, 2005 but not by October 15, 2005; district court later sentenced him to prison terms and ordered restitution and fines.
On appeal, issues included speedy-trial rights, indictment form, instructional errors, sufficiency of the evidence, and restitution authority; the court affirmed in part, vacated in part, and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Speedy-trial waiver under the ACT	Hassebrock argues the ACT waiver was valid and the delay violated the statute and possibly the Sixth Amendment.	Government contends Hassebrock waived statutory rights by not moving to dismiss pre-trial and that no constitutional violation occurred.	Speedy-trial waiver valid; no due-process violation; no plain-error review required for constitutional claim.
Indictment duplicity/multiplicity	Indictment purportedly duplicitous or multiplicitous in charging separate offenses in one count or multiple counts.	Hassebrock asserts improper charging structure would implicate duplicity/multiplicity.	Waived; no plain error; even if reached, no plain-error finding.
Lesser included offense instruction	Failure to provide a lesser-included-offense instruction could misdirect the jury.	Sansone-style argument that § 7203 could be a lesser included offense of § 7201 should be revisited.	Waived and unsupported; § 7203 not a lesser included offense of § 7201; no error.
Sufficiency of the evidence	Evidence supports willfulness and affirmative acts establishing tax evasion and failure to file.	Evidence, including potential extension, questions willfulness and timing.	Denial of acquittal affirmed; substantial evidence supports both counts.
Authority to impose restitution	Restitution could be imposed as a condition of supervised release for Title 26 offenses.	Unclear basis for restitution; whether imposed as supervised release condition or otherwise.	Remand to clarify statutory basis for restitution; order vacated pending clarification; restitution can be imposed as a condition of supervised release.

Key Cases Cited

U.S. v. Gearhart, 576 F.3d 459 (7th Cir. 2009) (waiver governs Speedy Trial Act issues; plain-error review not applicable)
U.S. v. O'Connor, 656 F.3d 630 (7th Cir. 2011) (waiver and appellate treatment of speedy-trial issues under ACT)
Zedner v. United States, 547 U.S. 489 (Sup. Ct. 2006) (prospective vs retrospective waivers under Speedy Trial Act)
Bloate v. United States, 130 S. Ct. 1345 (S. Ct. 2010) (narrow questions on ACT delay exclusions)
United States v. Tinklenberg, 131 S. Ct. 2007 (S. Ct. 2011) (limits of delays excluded from ACT 70-day clock)
Sansone v. United States, 380 U.S. 343 (U.S. 1965) (principle that 7203 can be a lesser included offense consideration in certain contexts)
U.S. v. Foster, 789 F.2d 457 (7th Cir. 1986) (§ 7201 and § 7203 treated as separate offenses)
U.S. v. Becker, 965 F.2d 383 (7th Cir. 1992) (reaffirmed separation of § 7201 and § 7203 with respect to lesser-included status)
U.S. v. Ming, 466 F.2d 1000 (7th Cir. 1972) (late filing immaterial to willfulness in § 7203 prosecutions)
U.S. v. Sawyer, 607 F.2d 1190 (7th Cir. 1979) (late filing and late tax payment immaterial to willfulness in § 7203 cases)
U.S. v. Dean, 64 F.3d 660 (4th Cir. 1995) (remand when restitution issue lacks clear statutory basis)
U.S. v. Webber, 536 F.3d 584 (7th Cir. 2008) (restitution authority framework for Title 26 offenses)