United States v. Peter Hesser
800 F.3d 1310
| 11th Cir. | 2015Background
- Peter Hesser, president/shareholder of PPCH, failed to file personal and corporate returns for 2001; IRS audit found unreported constructive dividends and assessed deficiencies for 2001–2003.
- After IRS issued statutory notices and collection efforts (liens, levies, CIS summons), Hesser purchased large amounts of gold/silver, transferred the family home to a trust, and resisted IRS collection.
- In 2008–2009, Hesser (through preparer Teresa Marty) filed returns for 2005–2007 claiming large refunds based on Forms 1099-OID that purportedly showed federal tax withheld; IRS paid and later recouped most of a 2007 refund.
- Indictment charged three counts under 18 U.S.C. § 287 (false claims for 2005–2007) and one count under 26 U.S.C. § 7201 (attempt to evade tax for 2001–2003 based on several alleged evasive acts).
- At trial Hesser testified; Cheryl Hesser pleaded guilty to one false-return count and testified for the government. Jury convicted Peter on all counts; district court imposed 36 months’ imprisonment, 36 months’ supervised release, and ordered $296,246 restitution to the IRS.
- On appeal the Eleventh Circuit affirmed convictions and sentence (including a §3C1.1 obstruction enhancement) but vacated and remanded the restitution award for recalculation of actual loss.
Issues
| Issue | Plaintiff's Argument (Hesser) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence for § 287 false-claims convictions (2005–2007) | Government failed to prove returns and 1099‑OID attachments were false; no proof institutions didn’t withhold/remit | Jury could infer falsity from documentary evidence and Hesser’s own testimony that figures represented debts, not withheld tax | Affirmed — evidence (including Hesser’s admissions) not so tenuous as to require reversal |
| Sufficiency for § 7201 tax‑evasion count (2001–2003) | No proof of a tax deficiency or willful affirmative evasion acts | Forms 4340 established deficiencies; post‑notice acts (fraudulent 2007 return, asset conversions, bullion purchase, transfers) supported willfulness and affirmative evasion | Affirmed — deficiencies proven and at least one willful affirmative act proved |
| Trial errors / evidentiary & prosecutorial objections (constructive amendment, Rule 404(b), marital privilege, co‑defendant plea, closing argument) | Multiple errors individually and cumulatively deprived him of a fair trial | Most evidence was admissible for non‑character purposes; any isolated misstatements were harmless; jury was properly instructed | Affirmed — no plain error affecting substantial rights; cumulative‑error claim rejected |
| Sentencing: obstruction enhancement and restitution amount | §3C1.1 enhancement improper; restitution overstated (included tax liabilities not caused by Title 18 conduct) | Obstruction supported by witness‑intimidation/perjury evidence; restitution should reflect actual loss from false‑claim offenses | Obstruction enhancement affirmed; restitution vacated and remanded for recalculation of actual Title 18 loss |
Key Cases Cited
- United States v. Greer, 440 F.3d 1267 (11th Cir.) (manifest‑miscarriage‑of‑justice standard for sufficiency by appellate review)
- United States v. White, 611 F.2d 531 (11th Cir. 1980) (consideration of all trial evidence in sufficiency review)
- United States v. Cook, 586 F.2d 572 (5th Cir.) (specific intent not required for § 287 convictions)
- Cheek v. United States, 498 U.S. 192 (1991) (definition of willfulness in tax context)
- United States v. Taylor, 88 F.3d 938 (11th Cir. 1996) (requirement that district court state basis for obstruction enhancement)
- United States v. Morris, 20 F.3d 1111 (11th Cir.) (willfulness defined as voluntary, intentional violation of a known legal duty)