United States v. Messervey ( 2006 )

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this opinion should not be published and is not precedent except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.