United States v. Hassan Osman ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1242
___________________________
United States of America
Plaintiff - Appellee
v.
Hassan Osman
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: June 13, 2022
Filed: August 19, 2022
[Unpublished]
____________
Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Hassan Tifow Osman was convicted of several tax fraud offenses and failure
to appear in violation of 18 U.S.C. §§ 2, 371, 3146(a)(1), and 26 U.S.C. § 7206(2).
In addition to imprisonment, the district court 1 ordered $394,120.14 in restitution.
1
The Honorable David S. Doty, United States District Judge for the District
of Minnesota.
See United States v. Osman, 929 F.3d 962, 964 (8th Cir. 2019). After the
government discovered substantial funds in Osman’s inmate trust account, the
Bureau of Prisons encumbered it. He sued to free the account. The government
moved for a turnover order. The district court granted the motion. Osman appeals.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
In the original judgment, the district court ordered that Osman make: “Lump
sum payments of $394,120.14 due immediately.” After assessing his ability to pay,
the district court also ordered a “Schedule of Payments,” of “equal quarterly
installments of $25 if working non-Unicor or a minimum of 50 percent of monthly
earnings if working Unicor,” beginning after the date of the judgment. Osman
complied with the Schedule.
Four years later, with the restitution balance at $394,095.14, the government
discovered substantial resources in Osman’s trust account, totaling $14,650.99. He
had not alerted the government as required by 18 U.S.C. § 3664(k) and the original
judgment. After the BOP encumbered the account, Osman sued under Federal Rule
of Civil Procedure 41(g). The government moved for a turnover order (preserving
$150 for essential purchases).
Osman objected, arguing the encumbered funds were protected because
friends and family deposited them so he could get legal counsel for deportation
proceedings. The court granted the turnover, finding he received substantial
resources from “any source” and must “apply the value of such resources to any
restitution or fine still owed.” See 18 U.S.C. § 3664(n). See also 18 U.S.C. §
3613(a); 18 U.S.C. § 3664(k). See generally United States v. Kidd, 23 F.4th 781,
787 (8th Cir. 2022) (agreeing with the Fifth Circuit’s approach to “substantial
resources” in United States v. Hughes, 914 F.3d 947 (5th Cir. 2019) and holding that
“windfalls or sudden financial injections” are the type of “substantial resources” that
fit within the ambit of § 3664(n)).
-2-
On appeal, Osman asserts for the first time that the funds deposited to his
account by family and friends were loans to obtain legal counsel. And he believes
the district court erred by not sua sponte holding an evidentiary hearing to determine
whether anyone retained a third-party interest in the funds. Osman acknowledges
he did not request an evidentiary hearing in the district court. This court reviews for
plain error. See United States. v. White Bull, 646 F.3d 1082, 1095 (8th Cir. 2011)
(finding if a defendant did not seek an evidentiary hearing at trial, review is confined
to plain error). Under plain error review, this court reverses only if there is (1) error,
(2) that is plain, (3) that affects substantial rights, and (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See Johnson v.
United States, 520 U.S. 461, 467 (1997). See also United States v. Pirani, 406 F.3d
543, 550 (8th Cir. 2005) (en banc).
Osman relies on United States v. Mitchell, 2017 U.S. Dist. LEXIS 173166 (D.
Minn. No. 14-cr-222 (PSJ) October 19, 2017) to argue that a third party had an
interest in the money, and he was entitled to an evidentiary hearing on the matter.
Mitchell relies on United States v. Yielding, 657 F.3d 722 (8th Cir. 2011), holding a
defendant “may not be ordered” to apply funds “to his restitution debt simply
because the funds are ‘available’ to him.” Yielding, 657 F.3d at 728-29. Rather, the
defendant “must be the owner; it must be his money.” Yet, Osman never raised this
argument in the district court. In fact, he explicitly contradicted it. In the district
court Osman claimed that “the funds belong to Osman for the simple fact that they
are deposited into his inmate trust fund account.” Osman did not submit any
affidavits or evidence that his family retained a property interest in the funds they
gave, nor did he ask for an evidentiary hearing. The district court accordingly ruled:
“[T]his case presents no questions about ownership of the funds.” On appeal, Osman
acknowledges: “In the district court, Osman did not claim that his family loaned him
the money they provided. . . . Osman did not claim that those who provided the
money had a property interest in it.”
Absent a factual dispute, a district court has discretion in deciding whether to
hold an evidentiary hearing. See United States v. Howard, 973 F.3d 892, 895 (8th
-3-
Cir. 2020) (“In the absence of a factual dispute, [defendant] cannot show the district
court erred in denying him an evidentiary hearing.”). Osman waived his right to
claim third-party interests in this court by stating the funds in the account belonged
to him. See United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997), citing
United States v. Olano, 507 U.S. 725, 733 (1993) (“The Supreme Court has
distinguished between a right that is inadvertently left unasserted and one that is
intentionally relinquished or abandoned, noting that the latter constitutes a waiver
that extinguishes a claim altogether.”).
The district court did not plainly err in not sua sponte holding an evidentiary
hearing and in ruling that there was no question as to ownership of the funds.
*******
The judgment is affirmed.
______________________________
-4-