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United States v. Messner

United States Court of Appeals for the Tenth Circuit

February 19, 1997, Filed

No. 96-3146

Opinion

 [*1451]  PORFILIO, Circuit Judge.

Defendant Ronald Roe Messner appeals his five-count conviction on a superseding indictment charging violations of 18 U.S.C. § 152 dealing with bankruptcy related crimes. On appeal, he contends the district court erroneously: (1) failed to dismiss two of the charges against him; (2) denied his motion for a new trial on three other charges; (3) allowed expert legal testimony on a legal issue; (4) ordered restitution; and (5) enhanced his sentence. Because the only error we find relates to restitution, we affirm in part and reverse in part.

 [**2]  Mr. Messner filed two petitions for reorganization under Chapter 11 of the Bankruptcy Code in March 1990. The first was filed as a joint personal petition with Ruth Ann Messner, and the second was a corporate petition in the name of Commercial Builders of Kansas, a corporation in which Mr. Messner was an officer and stockholder. As debtor-in-possession in his personal reorganization, Mr. Messner submitted a reorganization plan one year later. The bankruptcy court confirmed this plan in April 1991. The case itself, however, remained open and under administration in the bankruptcy court until November 22, 1994. The corporate reorganization was converted to a liquidating bankruptcy under Chapter 7. That case was still pending upon the date of the filing of the indictment.

Mr. Messner was convicted on counts one, two, three, six, and seven of the superseding indictment. Counts one and two alleged, in 1990, after filing his petition, Mr. Messner twice failed to disclose a partnership interest he had in commercial property. Count three alleged, in 1990, Mr. Messner also failed to disclose a $ 246,845 promissory note he had assigned to his son for $ 10 before filing. Count six alleged,  [**3]  in 1992, Mr. Messner concealed his receipt of $ 10,000 in cash from a pre-bankruptcy contractual interest he had in a residential real estate contract. Count seven alleged, in 1992, Mr. Messner also concealed his receipt of $ 10,000 in cash from bonds issued to Commercial Builders in 1989. Although neither the real estate interest nor the bonds were disclosed in either of the bankruptcy cases, Mr. Messner concedes they should have been set forth in the statement of financial affairs of his personal petition. 1

Following the verdict, the court sentenced Mr. Messner to serve a twenty-seven month sentence and pay $ 72,500 in restitution. We now consider the issues he has raised in his appeal.

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107 F.3d 1448 *; 1997 U.S. App. LEXIS 2830 **; 46 Fed. R. Evid. Serv. (Callaghan) 702; Bankr. L. Rep. (CCH) P77,282; 14 Colo Bankr Ct Rep 42

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD ROE MESSNER, Defendant-Appellant.

Prior History:  [**1]  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 95-CR-10020-01). D.C. Judge WESLEY E. BROWN.

Disposition: District court's calculation of the amount of restitution REVERSED and REMANDED for resentencing on this aspect of the sentence. AFFIRMED in all other aspects.

CORE TERMS

counts, district court, sentence, confirmation, partnership, restitution, concealed, estimate, argues, disclosure, reorganization plan, amount of loss, calculation, contends, restitution order, bankruptcy fraud, disclose, bankrupt estate, legal testimony, promissory note, debtor-in-possession, enhancement, liquidation, proceeds, defeat

Bankruptcy Law, Judicial Review, Standards of Review, De Novo Standard of Review, Criminal Law & Procedure, De Novo Review, General Overview, Appeals, Governments, Legislation, Interpretation, Case Administration, Bankruptcy Crimes, Fraud, Bankruptcy Fraud, Elements, Bankruptcy, Estate Property, Noncustodial Turnovers, Postconviction Proceedings, Motions for New Trial, Abuse of Discretion, New Trial, Trials, Burdens of Proof, Defense, Evidence, Relevance, Preservation of Relevant Evidence, Exclusion & Preservation by Prosecutors, Evidence, Testimony, Expert Witnesses, Criminal Proceedings, Courts, Authority to Adjudicate, Abuse of Discretion, Procedural Matters, Sentencing, Restitution, Prosecution, Clearly Erroneous Review, Findings of Fact, Sentencing Guidelines, Sentences, De Novo Review, Penalties, Adjustments & Enhancements