US v. Hoffman

• Decision Date: 01 February 1996
• Docket Number: No. 93-20103.,93-20103.
• Parties: UNITED STATES of America, v. Bernard Lazar HOFFMAN, a.k.a. Tony Alamo, Defendant.
• Court: U.S. District Court — Western District of Tennessee

926 F. Supp. 659

UNITED STATES of America, v. Bernard Lazar HOFFMAN, a.k.a. Tony Alamo, Defendant.

No. 93-20103.

United States District Court, W.D. Tennessee, Western Division.

February 1, 1996.

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Susan G. James, Law Office of Susan G. James, Montgomery, AL, for Plaintiff.

Devon L. Gosnell, McKnight, Hudson, Lewis & Henderson, Memphis, TN, J. Christopher Belcher, U.S. Department of Justice, Tax Division, Southern Criminal Enforcement Section, Jeffrey F. Kupfer, Andrew Plepler, Washington, DC, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND/OR NEW TRIAL

McCALLA, District Judge.

I. Introduction

On April 19, 1993, defendant was indicted for one count of filing a false income tax return in violation of 26 U.S.C. § 7206(1) and three counts of failing to file an income tax return in violation of 26 U.S.C. § 7203.¹ After a three week trial, on June 8, 1994, the jury returned a guilty verdict as to all counts. On September 16, 1994, defendant was given a sentence of seventy-two months in prison and a $210,000.00 fine.

On July 11, 1994, defendant filed a motion for a new trial and/or judgment of acquittal based on ineffective assistance of counsel and the running of the statute of limitations for 26 U.S.C. § 7206(1). Defendant has supplemented his motion, and defendant and the United States have briefed the legal issues extensively. On July 14, 1995, the Court held a hearing on the ineffective assistance of counsel ground. After considering all of defendant's arguments, and for the reasons set out herein, defendant's motion is hereby DENIED.

II. Facts

Defendant, the central figure behind Music Square Church, Inc., and related businesses, has been a defendant in state and federal court proceedings on several occasions.² In this case, defendant was charged with filing a false income tax return on August 15, 1986, in violation of 26 U.S.C. § 7206(1) and failing to file income tax returns for calendar years 1986, 1987, and 1988, in violation of 26 U.S.C. § 7203. Starting with the April 30, 1993, hearing on defendant's motion for bail review, this case was litigated aggressively by both the United States and the defendant. At that hearing — which was prior to defendant's May 13, 1993, initial appearance and entry of a not guilty plea as to all counts — the Court directed that motions regarding the appearance of Jeffrey Dickstein as counsel for the defendant be made within fourteen days. On May 14, 1993, the United States moved to disqualify Dickstein based on Dickstein's prior "displays of contempt for this country's well-established tax laws" and the potential conflict of Dickstein's previous representation of a prospective witness against defendant. Government's Motion to Disqualify Defense Counsel, May 14, 1993, at 1. On June 4, 1993, defendant moved for the admission of Dickstein pro hac vice and filed an opposition to the United States' motion to disqualify. On June 28, 1993, the Court held a hearing on the motion to disqualify. On August 31, 1993, the Court denied the motion to disqualify and granted the motion for Dickstein to be admitted pro hac vice.³

On June 14, 1993, defendant moved to dismiss the counts for filing a false return in 1986 (count one) and failing to file a return for the 1986 calendar year (count two) based on the alleged running of the six year statutes of limitation. On September 20, 1993, the Court referred the motion to Magistrate Judge Brown for report and recommendation. After an October 25, 1993, hearing, Magistrate Judge Brown issued his report and recommendation on October 28, 1993. Magistrate Judge Brown recommended that the motion be granted as to count one but not as to count two.⁴ The United States filed an objection to the report and recommendation, and defendant filed a response to the objection. On December 1, 1993, the Court partially adopted and partially modified the report and recommendation, denying the defendant's motion as to both counts. The Court determined that 18 U.S.C. § 3290⁵ tolled the running of the statute of limitation while defendant was fleeing from child abuse charges in California from October 7, 1989, until July 5, 1991.

On January 12, 1994, the United States filed a motion for a hearing to record defendant's waiver of the right to conflict-free representation. In this motion, the United States set out and discussed four potential conflicts of interest in Dickstein's representation of defendant: 1) the "potential conflict between Mr. Dickstein's duty towards Mr. Alamo and his duty towards likely trial witness Sanford White," 2) the "potential conflict due to Mr. Dickstein's possible prosecution for failure to file timely tax returns for 1991 and 1992 and for failure to file a currency transaction report that he was obligated to file in 1991," 3) the "potential conflict due to the possibility that Mr. Alamo and Mr. Dickstein may both be subject to prosecution for conspiracy to commit bankruptcy fraud," and 4) the "potential conflict between Mr. Dickstein's self-interest in retaining his law license and his obligation to represent Mr. Alamo zealously." Government's Motion for Hearing to Record Defendant's Waiver of Right to Conflict-Free Representation, January 12, 1994, at 1-5. The motion argued that a hearing to record the knowing and intelligent waiver of the right to conflict-free representation was necessary. On January 24, 1994, defendant filed an opposition to the motion in which he discussed and argued against each of the asserted conflicts, concluding that a waiver hearing was unnecessary since the suggested conflicts did not exist.⁶ Defendant and Dickstein's Opposition to Government's Motion to Record Defendant's Waiver of Right to Conflict-Free Representation, January 24, 1994. On January 28, 1994, the United States filed a reply to defendant's opposition, stressing the distinction between potential and actual conflicts and the need to obtain a waiver on the record even if a conflict has not yet actualized. Government's Response to Defendant's Opposition to Motion for Hearing to Record Defendant's Waiver of Right to Conflict-Free Representation, January 28, 1994, at 2.

On February 23, 1994, the Court held a telephone hearing on the waiver issue.⁷ At this hearing, the Court, Dickstein, and United States Attorney Belcher discussed the four potential conflicts set out in the United States' motion, the right of a criminal defendant to be represented by conflict-free counsel, and the requirements for and implications of a waiver of that right. Defendant indicated that he had "heard things" about Dickstein's potential conflicts of interest. Tr., Hr'g, February 23, 1994, at 3-4. In response to the Court's question of whether defendant wanted the Court "to throw Mr. Dickstein out as counsel in this case," defendant answered, "No, I don't." Tr., Hr'g, February 23, 1994, at 5-6. Although defendant had indicated that "I don't want to waive any of my rights," Tr., Hr'g, February 23, 1994, at 5, after the implications of a waiver of the right to conflict-free counsel were explained at length, defendant engaged in the following exchange with Dickstein:

Mr. Dickstein: Tony, did you receive the copies of the motions from me that the government sent regarding conflict of interest?

Mr. Alamo: You want me to answer that?

Mr. Dickstein: Yes.

Mr. Alamo: Yes, I did.

Mr. Dickstein: Did you read them?

Mr. Alamo: Yes.

Mr. Dickstein: Did we discuss those?

Mr. Alamo: Yes.

Mr. Dickstein: You still want me as your attorney?

Mr. Alamo: Yes.

Tr., Hr'g, February 23, 1994, at 18. After this exchange, the Court stated that "I think that does satisfy the situation here." Tr., Hr'g, February 23, 1994, at 19.

The trial began on May 16, 1994, producing over three thousand pages of transcript; the United States put on thirty-three witnesses and introduced 227 exhibits, and defendant put on twelve witnesses and introduced ninety-nine exhibits. The jury began deliberations on June 6, 1994, and returned a guilty verdict as to all counts on June 8, 1994. On July 8, 1994, defendant moved for the withdrawal of Dickstein as his counsel, and, on July 11, 1994, moved to substitute his current counsel, Susan James. On August 9, 1994, the Court granted both motions. On July 11, 1994, defendant filed a motion for a new trial and/or judgment of acquittal on the basis of ineffective assistance of counsel and the operation of the statute of limitations as to count one. Defendant's Motion and Memorandum of Law in Support of Motion for Judgment of Acquittal and/or New Trial, July 11, 1994 hereinafter, Motion for New Trial. Defendant also moved for leave to supplement his motion.⁸ On July 25, 1994, the United States filed a response to defendant's motion. Government's Response to Defendant's Motion for Judgment of Acquittal and/or New Trial, July 25, 1994. On August 11, 1994, defendant filed a reply to the United States' response to his motion. Defendant's Response to Government's Response to Defendant's Motion for Judgment of Acquittal and/or New Trial, August 11, 1994 hereinafter, Defendant's Reply to Government's Response to Motion for New Trial. On October 21, 1995, the Court granted defendant's October 14, 1994, motion for the Court to abstain from ruling on defendant's motion until defendant could supplement his motion after the completion of the trial transcript. On December 16, 1994, the Court permitted defendant until February 1, 1995, to supplement his motion. On February 3, 1995, defendant filed a supplemented motion. Supplemental Motion and Memorandum of Law in Support of Defendant's Motion for Judgment of Acquittal and/or New Trial, February 3, 1995 hereinafter, Supplemental Motion for New Trial. On March 20, 1995, the United States filed a response to the supplemented motion. Government's Response to Defendant's Supplemental Motion and Memorandum of Law in Support of De...