United States v. Messervey

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 16, 2006 IN THE UNITED STATES COURT OF APPEALS May 24, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-50869 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES DOUGLAS MESSERVEY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 5:98-CR-155-ALL --------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Charles Douglas Messervey, federal prisoner # A001307,

appeals the district court’s order granting the Government’s

motion for turnover of property seized from Messervey’s

residence. He argues that the property was illegally seized

because it was unrelated to the offenses with which he was

charged. Messervey also argues that the Government demanded a

criminal forfeiture in a superseding indictment to illegally

retain his property. He argues that the property should be

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 05-50869 -2-

returned to him because the Government waived its right to

forfeiture and also failed to provide a written agreement

concerning restitution that it agreed to submit to the district

court.

Messervey’s complaints about the validity of the criminal

forfeiture are without merit. The Government waived its right to

forfeiture in return for the Federal Bureau of Investigation

retaining possession of the seized properties until any appeal in

the case became final and the property could be sold to pay any

restitution due to victims. Messervey agreed to this arrangement

in open court. Because the Government waived the right to

criminal forfeiture of the property, and because the parties

agreed the property would be sold to satisfy the restitution

order, whether the seized property was related to or facilitated

the offenses was not relevant. Additionally, Messervey has

provided no legal reason to set aside that agreement due to the

Government’s failure to provide a written order concerning the

details of the payment of restitution.

Messervey argues that he is entitled to relief based on

equity or laches. Messervey has failed to make the required

showing that he suffered any prejudice due to any representations

made or delays caused by the Government. See Rogers v. City of

San Antonio, 392 F.3d 758, 773 (5th Cir. 2004) (equitable

estoppel); Clymore v. United States, 217 F.3d 370, 376 (5th Cir.

2000) (laches). As discussed, the agreement made concerning the No. 05-50869 -3-

property was made in open court and without any objection by

Messervey. The delays in the case were caused by Messervey’s

changing his counsel on several occasions and obtaining

continuances of the sentencing hearing. Messervey is not

entitled to relief based on the doctrines of equity or laches.

Id.

Messervey also argues that the Government could not seek to

retain possession of the property by obtaining a turnover order.

Title 28 U.S.C. § 3001 et seq. provides the exclusive civil

procedures to be used by the United States to recover a judgment

on a debt. § 3001(a)(1). The term “debt” includes an amount

that is owed to the United States including an amount due for

restitution or a fine. § 3002(3)(B). The Government is

authorized to collect criminal fines and restitution in favor of

victims. United States v. Phillips, 303 F.3d 548, 550-51 (5th

Cir. 2002). A fine or an order of restitution may be enforced in

accord with the practices and procedures of a civil judgment

under federal or state law. 18 U.S.C. § 3613(a),

§ 3613(f). The Texas turnover statute, Tex. Civ. Prac. & Rem.

Code Ann. § 31.002, enables a judgment creditor to obtain a

turnover order regarding nonexempt property in the debtor’s

possession or subject to the debtor’s control. The issuance of a

turnover order is reviewed for an abuse of discretion and “may be

reversed only if the court has acted in an unreasonable or No. 05-50869 -4-

arbitrary manner.” Santibanez v. Wier McMahon & Co., 105 F.3d

234, 239 (5th Cir. 1997).

The record reflects that Messervey was ordered to pay

restitution to his victims, a fine, and a special assessment.

Messervey did not appeal the imposition of the order of

restitution and a fine. See United States v. Messervey, 317 F.3d

457 (5th Cir. 2002). The United States possessed a valid lien on

any properties owned by Messervey, and it employed a valid state

procedural vehicle to collect the debt due. The district court

did not act in an unreasonable or arbitrary manner in granting

the turnover motion.

Messervey also contends that the seized property belonged to

a trust created by him in 1996 and, thus, it was not subject to

the restitution order. The issue whether the seized property was

transferred to a trust was never ruled upon by the district

court. Because Messervey is thus in effect raising this claim

for the first time on appeal, review is for plain error. United

States v. Jones, 444 F.3d 430, 443 (5th Cir. 2006). Whether the

transfer of the seized property to a trust was valid or

fraudulent would require the resolution of factual issues.

Generally, “[f]or a fact issue to be properly asserted, it must

be one arising outside of the district court’s power to resolve.”

United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Because

the district court could have resolved whether the property was No. 05-50869 -5-

part of a trust, this claim does not survive plain error review.

See id.

The order granting the turnover motion is AFFIRMED.

Messervey’s motion for declaratory relief and for imposition of

sanctions on the United States Attorney is DENIED.