U.S. v. Messervey

• Decision Date: 30 December 2002
• Docket Number: No. 01-50803.,01-50803.
• Citation: 317 F.3d 457
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Douglas MESSERVEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

317 F.3d 457

UNITED STATES of America, Plaintiff-Appellee, v. Charles Douglas MESSERVEY, Defendant-Appellant.

No. 01-50803.

United States Court of Appeals, Fifth Circuit.

December 30, 2002.

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Joseph H. Gay, Jr., Asst. U.S. Atty., LeRoy Morgan Jahn (argued), Diane D. Kirstein, San Antonio, TX, for Plaintiff-Appellee.

James Scott Sullivan (argued), San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before DAVIS, BENAVIDES and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Petitioner Charles Douglas Messervey appeals his conviction and sentence for five counts of mail fraud and two counts of money laundering in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 1957. Messervey challenges his conviction on grounds that his due process rights were violated when the trial judge failed to grant his attorneys a continuance at trial for additional preparation time. He also argues that his conviction is flawed because the trial judge did not sua sponte order a mental competency exam. Messervey finally contends that even if his conviction is valid, his sentence is not, arguing both that his sentencing score was improperly calculated, and that the district court abused its discretion in upwardly departing from the prescribed sentencing range.

We find Messervey's challenges to his conviction lack merit, and now affirm the appellant's conviction. But because the district court abused its discretion in upwardly departing from the prescribed United States Sentencing Guidelines (USSG) range in calculating Messervey's sentence, we vacate his sentence and remand this case to the district court for resentencing.

I. Factual and Procedural Background

Messervey's leadership and participation in four distinct fraudulent schemes formed the basis of his conviction for mail fraud and money laundering. The relevant details of each scheme are as follows:

A. 1993 Automobile Fraud

On December 12, 1993 Messervey reported his 1993 Ford Ranger truck missing from where he parked it at a local mall. He then filed a claim with his insurer, Farmer's Insurance Co. (Farmer's), and received $12,600 on the claim. Following an anonymous tip, Farmer's located the truck a month later in front of Messervey's apartment, bearing no signs of having been started without the ignition key, or of being stripped for parts, both of which would be typical of stolen vehicles. The apartment manager and security guard reported seeing Messervey drive the truck after it had been reported stolen. Messervey denied owning the truck, and it was ultimately seized by the insurance company.

B. 1994 Art Fraud

In October 1994 Messervey convinced his live-in girlfriend, Deanna Robertson, to enter into an art fraud scheme. Messervey "sold" nine paintings to Robertson for what receipts claimed was $230,000, even though Robertson earned just $35,000 per year. Robertson took out a $120,000 insurance policy with Farmer's to insure these paintings. Messervey and Robertson then staged a break-in at Robertson's home, in which they claimed the paintings had been stolen, and filed a $170,000 claim with Farmer's for the paintings, $50,000 over the policy value. In fact, at least three of the paintings remained in Robertson's basement a month after the burglary, and three were found in Messervey's home two years after the alleged theft. When Farmer's investigators demanded Robertson's financial records before paying out the claim, Robertson became nervous and withdrew her claim.

C. 1996 Art Fraud

From November 1995 to January 1996 Messervey had a photographer produce prints of twelve of his oil paintings for $19,000. He paid for these prints out of the $34,500 he obtained from David Mendietta, his hairstylist, who believed he was investing in the production of the prints. Messervey then took out $4 million worth of insurance for the paintings from the North Brook Insurance Company (North Brook).

In May 1996 Messervey informed Mendietta that he would not get any of his investment back unless Mendietta helped him stage a heist of the prints with the aim of filing a false insurance claim. To stage the theft, Messervey and his friend Brad Dublon destroyed the prints that had been produced. Then, while Messervey was out of town with his friend Larue Hedrick, Mendietta entered Messervey's apartment with keys given to him by Messervey. He placed empty boxes in the apartment to make it appear that prints had been stolen from the boxes, and left a note confessing to destroying the works because Messervey had not repaid him his money.

Upon returning home Messervey called the police and claimed $8 million in artwork had been stolen. At Messervey's behest his friend Carolyn Coe falsely told investigators that she had observed the alleged burglary by Mendietta. Messervey then claimed the maximum $4 million due under the policy from North Brook. When North Brook refused to pay, Messervey brought a civil action against the company seeking $4 million in losses, and $ 5 million punitive damages, all trebled, for a total suit demand of $27 million. At civil trial North Brook argued it was at most responsible for $18,000, the replacement costs of the prints.¹

D. 1997 Crime Victims Compensation Fund Fraud

On August 11, 1996 Messervey went to the emergency room with a head wound. The next day he called Bexar County, Texas police and reported that he had been assaulted by Mendietta. The policeman investigating the case found no evidence of an assault. Nine months later in May 1997, Messervey filed a claim with the Texas Crime Victims Compensation Fund requesting $25,000 for missed work due to emotional trauma and medical expenses. The fund paid out that claim.

Based on these four fraudulent schemes, Messervey was charged and convicted of five counts of mail fraud and two counts of money laundering in the District Court for the Western District of Texas. The Pre-Sentencing Report (PSR) indicated Messervey had five criminal history points, resulting in a Criminal History Category of III, and a USSG sentencing range of 70 to 87 months. Citing the failure of the USSG grouping rules to sufficiently reflect Messervey's participation and direction in four separate schemes, and Messervey's exploitation of vulnerable persons as accomplices and victims of his crimes, the district judge upwardly departed from the prescribed range, sentencing Messervey to 220 months incarceration. Messervey now timely appeals.

II. Challenges to the Conviction

A. Denial of Trial Continuance

Messervey first challenges his conviction on grounds that the trial judge violated his due process rights by denying him a trial continuance to allow his attorneys additional preparation time. While the trial judge did grant Messervey four continuances, delaying the start of trial from July 6, 1998 to August 2, 1999, appellant argues that the denial of a fifth trial continuance to allow his attorneys to fully review government discovery was in error.²

We review a district court's denial of a continuance for an abuse of discretion and will order a new trial only where the defendant demonstrates serious prejudice. United States v. Kelly, 973 F.2d 1145, 1147-48 (5th Cir.1992). We employ a totality of circumstances test to decide whether there was an abuse of discretion. Id. at 1148. Factors we consider when determining whether a continuance was warranted are: the amount of time available for preparation; defendant's role in shortening the time needed; the likelihood of prejudice from denial; and the availability of discovery from the prosecution. United States v. Uptain, 531 F.2d 1281, 1286-87 (5th Cir.1976).

We believe that district court did not abuse its discretion in denying Messervey a fifth continuance. Appellant obtained continuances totaling over a year from the original trial date, which we believe gave his attorneys more than adequate time to prepare a defense. Messervey argues that because he changed attorneys in April 1999, the four months his new attorneys had to prepare for the August 1999 trial was inadequate. We find this argument unpersuasive for two reasons.

First, as we noted in Uptain, we consider whether benefits from attorneys other than trial counsel accrued to defendant in determining whether a trial continuance for additional preparation is warranted. Id. at 1287. Here, Messervey benefitted from the nearly one year of preparation done by his fired public defender, as well as from the work of his civil attorney in his suit against North Brook. The time spent and work done by these attorneys when aggregated with the four months given to his new counsel to prepare for trial indicate the trial judge allocated more than enough time for Messervey to prepare an adequate defense.

Second, and more critically, Messervey has failed to show how he was prejudiced by the denial of the continuance. The only prejudice Messervey alleges is that his attorneys were unprepared to elicit useful information from an Assistant U.S. Attorney (AUSA) the defense subpoenaed. In fact, the AUSA was extensively questioned by the trial judge in camera to determine whether he had any relevant evidence, and Messervey's counsel and the judge agreed that the AUSA did not. Thus, any lack of preparation by Messervey's attorney for questioning the AUSA did not hurt Messervey. As Messervey demonstrates no prejudice, the trial judge did not abuse his discretion in denying the continuance.

B. Mental Competency Exam

Messervey next argues that the trial court erred by not ordering a sua sponte mental competency exam of Messervey as allowed by 18 U.S.C. § 4241(a).³ The decision whether to grant a mental competency exam rests in the sound discretion of the trial court, and we review only for an abuse of discretion. United States v. Davis, 61 F.3d 291, 304 (5th Cir.1995). To determine whether there is "reasonable cause" to doubt a defendant's competence, ...