Lessons from Hesser: Attempt conviction Overturned

Posted On Thursday, July 14, 2022

Takeaway: Attempt crimes can be proven only where a defendant’s objective is in fact illegal. If the government cannot prove that the defendant sought to do something which is, in fact, illegal, then it has not sustained its burden of proof, even if the defendant believed that his actions would violate the law and sought to do so.

On Wednesday, July 13th, the Eleventh Circuit reversed the denial of a Petition for relief under 28 USC 2255 (ineffective assistance of counsel), and ordered that the Defendant’s conviction be vacated in U.S. v. Hesser, USCA11 Case: 19-13297. The Court found that defense counsel should have moved for a judgment of acquittal at the conclusion of the government’s case at Defendant’s trial on several counts of attempted tax evasion. The Court held that the conviction failed because the Defendant’s hiding of assets did not violate the law. On the question of attempt liability, the court explained: “[S]omeone can be convicted for attempt when they mistake the facts but not when they simply mistake the law.”

To elaborate, the Court explained that “The Government confuses a mistake of law with a mistake of fact. Suppose one defendant is charged with attempted murder because he went into a bedroom and shot a gun at a mass under the covers, which he believed to be his arch enemy. It turns out the mass was a pillow and not a person. If the facts had been as the defendant thought they were—if he had been able to do everything he planned to do—he would have likely committed the crime of murder. He simply mistook the facts because it turns out his enemy was not under the covers, and he could be successfully prosecuted for attempted murder. Now suppose a second defendant mistakenly believes that it is a federal crime to shoot at trees on one’s own property. He intentionally shoots at a tree in his front yard, and he thinks that he has committed a crime. He is mistaken on the law. Under this hypothetical, shooting at a tree in one’s own yard is not a federal crime. So, the second defendant cannot be convicted of an attempt crime because he did everything he planned to do, and it still did not amount to a step toward criminal activity.”

In Hesser, the Government alleged that one of the affirmative acts of attempted tax evasion allegedly undertaken by the Defendant was to hide gold bullion. The Court held that the government did not prove that the Defendant hid gold bullion that was taxable to the Defendant. So, the Court explained that “Without proving that the gold was actually Hesser’s, the Government has left open the very real possibility that Hesser committed a mistake of law—that he thought he was doing something criminal that was in fact innocuous—or that he did not even think he was doing something criminal in hiding money for the family trust. And that is not proof beyond a reasonable doubt of an affirmative act, which the Constitution requires for Hesser’s conviction to stand.”

The Court accordingly deemed Hesser’s counsel’s performance deficient because he failed to properly move for judgment of acquittal when the Government had not carried its evidentiary burden in its case-in-chief under Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.