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Hee v. United States

United States District Court, D. Hawaii

September 25, 2018

ALBERT S.N. HEE, Petitioner,


          Susan Oki Mollway United States District Judge


         Petitioner Albert Hee was convicted of having corruptly interfered with the administration of Internal Revenue Service (“IRS”) laws in violation of 26 U.S.C. § 7212(a) and of six counts of having filed false tax returns in violation of 26 U.S.C. § 7206(1). The evidence at trial established that Hee had characterized millions of dollars in personal expenses as business expenses incurred by his company, Waimana Enterprises, Inc. (“Waimana”). He is currently serving a sentence of 46 months imprisonment.

         Hee, proceeding pro se, [1] now seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He argues that the IRS fabricated evidence to support a criminal investigation of him and that the U.S. Attorney's Office for the District of Hawaii (“Government”) suppressed exculpatory evidence. He also argues that his trial attorneys provided ineffective assistance of counsel by failing to review documents prior to trial and by failing to preserve certain evidentiary objections during trial.

         This court denies Hee's petition without an evidentiary hearing, concluding that Hee's claims were already addressed on appeal or that the record establishes that they lack merit.

         II. BACKGROUND.

         Three indictments were filed in this case. The first indictment, filed on September 17, 2014, charged Hee with one count of willfully filing a false tax return in violation of 26 U.S.C. § 7206. See ECF No. 1. The Superseding Indictment, filed on December 17, 2014, added five more counts for the filing of false tax returns, and one count alleging corrupt interference with the administration of IRS laws in violation of 26 U.S.C. § 7212(a). See ECF No. 14. The Superseding Indictment also introduced allegations that Hee had failed to properly report Waimana's payment of $1, 313, 261.34 for a Santa Clara house as personal income, and that he had falsely declared Waimana's payment of $718, 559.09 for his children's college tuition and expenses as a “loan to shareholder.” Id., PageID # 48.

         In the Second Superseding Indictment, filed on March 25, 2015, the Government omitted the allegation that the entire purchase price of the Santa Clara house should be deemed income to Hee. See ECF No. 56. Instead, the indictment alleged that Hee's use of Waimana to purchase the house was part of Hee's interference with the IRS's computation of his income and tax liability. See id., PageID # 393.

         Trial commenced on June 23, 2015. See ECF Nos. 178-82, 189-95. Trial evidence established that, between 2002 and 2012, Hee used Waimana to pay millions of dollars in personal expenses, including personal massages, college tuition for his children, living expenses for his children, and credit card charges such as those for family vacations to France, Switzerland, Tahiti, Disney World, and the Mauna Lani resort. Hee also had Waimana pay salaries and benefits to his wife and children, even while his children were full-time students doing no work for the company. And although Hee claimed that he purchased the Santa Clara house as an investment by Waimana, Hee's son and daughter lived in the house while attending college and rented out rooms to classmates without submitting the rent proceeds to Waimana. Waimana wrongfully deducted the expenses on corporate tax returns, and Hee failed to report the receipt of any rental income on his personal tax returns. After an eleven-day trial, the jury returned a verdict of guilty beyond a reasonable doubt on all counts. See ECF No. 196.

         This court sentenced Hee to (1) 36 months for six counts of filing false tax returns and a consecutive 10 months for one count of corrupt interference with the administration of IRS laws, for a total sentence of 46 months; (2) supervised release of one year as to the seven counts, with all terms to run concurrently; (3) a fine of $10, 000.00 to be paid within 14 days of sentencing; (4) restitution of $431, 793.00; and (5) a special assessment of $700.00 ($100.00 as to each of the seven counts). See ECF No. 242.

         Hee appealed. On March 14, 2017, the Ninth Circuit filed a memorandum opinion affirming the judgment. See United States v. Hee, 681 Fed.Appx. 650 (9th Cir. 2017), cert. denied, 138 S.Ct. 268 (2017). Hee timely filed the present § 2255 petition on March 16, 2018.


         Under 28 U.S.C. § 2255, a federal prisoner may file a petition challenging the imposition or length of his or her sentence on any of the following four grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). To obtain relief from a conviction under § 2255, a petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect on the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).

         A petitioner must file a § 2255 motion within one year from the latest of four dates: (1) when the judgment of conviction becomes final; (2) when the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) when the right asserted is initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; and (4) when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

         A § 2255 petition cannot be based on a claim that has already been disposed of by the underlying criminal judgment and ensuing appeal. See Olney v. United States, 433 F.2d 161, 162 (9th Cir. 1970) (“Having raised this point unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition under § 2255.”).

         Even when a § 2255 petitioner has not raised an alleged error at trial or on direct appeal, the petitioner is procedurally barred from raising an issue in a § 2255 petition if the issue could have been raised earlier, unless the petitioner can demonstrate both “cause” for the delay and “prejudice” resulting from the alleged error. United States v. Frady, 456 U.S. 152, 167-68 (1982) (“[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause' excusing his double procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.”). To show “actual prejudice, ” a § 2255 petitioner “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 170.

         A judge may dismiss a § 2255 petition if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Proceedings For The United States District Courts. A court need not hold an evidentiary hearing if the allegations are “palpably incredible” or “patently frivolous” or if the issues can be conclusively decided on the basis of the evidence in the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a “district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief”).

         IV. ...

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