United States v. Hassebrock

108 A.F.T.R.2d 2011-7259

2011-2 USTC P 50,732

663 F.3d 906

UNITED STATES of America, Plaintiff–Appellee,

v.Orvil Duane HASSEBROCK, Defendant–Appellant.

No. 10–3296.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 2011.Decided Nov. 22, 2011.

Michael Jude Quinley (argued), Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff–Appellee.

Dallas Craig Hughes (argued), Attorney, Law Offices of D. Craig Hughes, Houston, TX, for Defendant–Appellant.

Before FLAUM, MANION, and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

Orvil Duane Hassebrock was convicted by a jury of tax evasion, a felony offense under 26 U.S.C. § 7201, and failure to file a tax return for the 2004 tax year, a misdemeanor offense under 26 U.S.C. § 7203. He appeals the district court's denial of his motions for a judgment of acquittal and for a new trial. Hassebrock also raises several arguments for the first time on appeal, relating to his right to a speedy trial, the charges in his indictment, and the absence of a lesser included offense instruction. Finally, he challenges the sentence imposed by the district court.

Regarding the various arguments that Hassebrock presents for our review, we find nearly all of them waived or devoid of merit. With respect to the narrow issue of restitution, we conclude that, although the district court possessed the statutory authority to impose restitution as a condition of supervised release, we are unclear as to whether it acted pursuant to this authority in its order of restitution. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

I. Background

Hassebrock earned income in the 2004 tax year from the proceeds of his oil business, including a $2.5 million settlement, but he neither filed a 2004 federal tax return nor requested a filing extension on or before the April 15, 2005 deadline. Hassebrock was indicted on charges of willfully attempting to evade and defeat the payment of taxes in the approximate amount of $593,557 in violation of 26 U.S.C. § 7201 (Count I) and willfully failing to file an income tax return in violation of 26 U.S.C. § 7203 (Count II). He pleaded not guilty on July 7, 2009.

At trial, Hassebrock's accountant testified that Hassebrock had asked him on February 16, 2005 to calculate his 2004 federal tax liability. The accountant prepared two draft returns, estimating Hassebrock's tax liability inclusive and exclusive of the settlement proceeds, but Hassebrock did not request that his accountant take any further action by April 15, 2005. Although Hassebrock introduced evidence of an extension request dated August 12, 2005, the government disputed its validity and further argued that the crime was completed as soon as Hassebrock failed to file his return on April 15, 2005.

On April 29, 2010, a jury found Hassebrock guilty on both counts. In a special verdict form, completed at the request of Hassebrock's counsel, the jury determined that Hassebrock had willfully failed to file his 2004 return on or before April 15, 2005 but that he had not willfully failed to file it on or before October 15, 2005. Hassebrock then filed a motion for judgment of acquittal and a motion for a new trial. The district court denied both of these motions.

On September 30, 2010, the district court sentenced Hassebrock to 32 months' imprisonment for Count I and a consecutive 4 months' imprisonment for Count II. The court also ordered 36 months of supervised release for Count I and 12 months of supervised release for Count II, to run concurrently. Finally, the court imposed an assessment of $125.00, an incarceration fine of $74,000.00, and restitution in the amount of $997,582.19.

II. Discussion

On appeal and represented by new counsel, Hassebrock argues that his convictions should be vacated because his statutory and constitutional right to a speedy trial was violated. He also contends that he is entitled to a new trial because his indictment was duplicitous or, in the alternative, multiplicitous. Similarly, he maintains that he was deprived of due process because the indictment required a lesser included offense instruction, which he did not receive. Hassebrock further argues that the district court erred in denying his motions for acquittal and a new trial because insufficient evidence supported the convictions. Finally, Hassebrock challenges the procedure, substance, and statutory authority for his sentence. We address each argument in turn.

A. Hassebrock's Right to a Speedy Trial

Hassebrock argues that his right to a speedy trial, as guaranteed by the Speedy Trial Act and by the Sixth Amendment of the United States Constitution, has been violated by the 286–day period between his first appearance and the start of his trial. He concedes that he is raising these arguments for the first time in this appeal, yet he urges us to view his statutory argument as merely forfeited rather than waived. Hassebrock further contends that the Speedy Trial Act waivers that he executed are invalid. We do not agree, and we conclude that Hassebrock waived his statutory right to a speedy trial and that his constitutional right, though not waived, was not violated. Most of the delays stemmed from repeated requests for continuances by Hassebrock's own counsel and almost certainly strengthened the counsel's ability to mount a sound defense for Hassebrock.

1. Speedy Trial Act

Pursuant to the Speedy Trial Act, criminal trials must commence within 70 days of the indictment or the defendant's initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1). The Act enumerates delays that shall be excluded from the 70–day clock, recognizing that certain delays leading up to trial are justifiable. Id. § 3161(h); see also United States v. O'Connor, 656 F.3d 630, 635–36 (7th Cir.2011). Hassebrock alleges that 286 non-excludable days elapsed between his initial appearance on July 7, 2009 and the commencement of trial on April 23, 2010. We need not engage in the process of determining which days during this period are excludable, however, because we find that Hassebrock waived his statutory right by failing to move to dismiss the indictment prior to trial.

The remedy for a violation of the Act's 70–day limit is dismissal of the indictment, but the defendant must move for dismissal of the indictment prior to trial. 18 U.S.C. § 3162(a)(2); see also United States v. Broadnax, 536 F.3d 695, 699 (7th Cir.2008). In unambiguous terms, the Speedy Trial Act states that the “[f]ailure of the defendant to move for dismissal prior to trial ... shall constitute a waiver of the right to dismissal.” 18 U.S.C. § 3162(a)(2).

Hassebrock concedes that he did not raise this objection in a motion to dismiss prior to trial but asks us to view his claim as merely forfeited, which would entitle him to plain error review of his claim. The express terms of the Speedy Trial Act do not permit this interpretation. See id.; O'Connor, 656 F.3d at 636–37; United States v. Gearhart, 576 F.3d 459, 462 & n. 2 (7th Cir.2009) (observing that “every circuit to consider the issue has held that the failure to move for dismissal under the act constitutes a waiver, not merely a forfeiture”). The general rule that we review claims not asserted in the district court for plain error pursuant to Federal Rule of Criminal Procedure 52(b) does not apply to claims involving the Speedy Trial Act because the Act sets forth waiver as the sole consequence for failing to assert the claim below. See O'Connor, 656 F.3d at 637.

Hassebrock makes three flawed attempts to demonstrate that we may (and should) review his claim for plain error. First, he points out that we stated in United States v. Morgan that “we have reviewed a defendant's statutory speedy trial claim for plain error even though it was never presented to the district court.” 384 F.3d 439, 442 (7th Cir.2004). But this statement from Morgan served only to summarize the inconsistent approach that we had previously taken before articulating the clear holding that failure to assert a right under this Act constitutes waiver and not forfeiture. Id. at 442–43. In fact, we anticipated the very argument that Hassebrock now advances by announcing in Morgan that we do not view these earlier cases as “contrary precedent” because they erroneously overlooked § 3162(a)(2). Id. at 443.

Hassebrock next argues that we should reevaluate our waiver decisions in Morgan and Gearhart in light of the Supreme Court's decisions in Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), Bloate v. United States, ––– U.S. ––––, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010), and United States v. Tinklenberg, ––– U.S. ––––, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011). But Zedner focused primarily on the propriety of prospective waivers under the Speedy Trial Act, see 547 U.S. at 500–03, 126 S.Ct. 1976, and the requirement that an express finding accompany a district court's grant of an ends-of-justice continuance, see id. at 503–09, 126 S.Ct. 1976. Bloate and Tinklenberg addressed only narrow questions concerning which delays are excluded from the Act's 70–day limit. See Tinklenberg, 131 S.Ct. at 2010–16; Bloate, 130 S.Ct. at 1349, 1351–53. Had Hassebrock moved to dismiss his indictment, these cases might have become relevant to the determination of whether his rights under the Act were violated. But not one of these cases makes any assertion that calls into question the well-established conclusion that failure to move to dismiss constitutes waiver under the Act. In fact, our decision in O'Connor, decided after Zedner and Bloate, suggests just the opposite—we found Zedner's emphasis on the defendant's “role of spotting violations of the Act” to support an expansion of the application of waiver to a defendant who actually moved to dismiss on one ground but not on others. O'Connor, 656 F.3d at 637–38 (quoting Zedner, 547 U.S. at 502–03, 126 S.Ct. 1976).

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