     Case: 11-30236     Document: 00511882704         Page: 1     Date Filed: 06/11/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 11, 2012
                                       No. 11-30236
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MELVIN WAYNE ALEXANDER,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:08-CR-205-5


Before JOLLY, DEMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
        Melvin Wayne Alexander interlocutorily appeals from the district court’s
denial of his motion to dismiss the indictment on double jeopardy grounds. He
was charged with conspiracy to possess with intent to distribute cocaine and
various other narcotics offenses. In his motion to dismiss, as well as on appeal,
he argued that his retrial after the district court’s sua sponte declaration of a
mistrial would violate his right against double jeopardy. We have jurisdiction
to consider an interlocutory appeal from the denial of a motion to dismiss the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30236      Document: 00511882704    Page: 2    Date Filed: 06/11/2012

                                  No. 11-30236

indictment on double jeopardy grounds. United States v. Hoeffner, 626 F.3d 857,
863 (5th Cir. 2010) (citing Abney v. United States, 431 U.S. 651, 663 (1977)), cert.
denied, 131 S. Ct. 2465 (2011). We review the denial de novo but “accept as true
the district court’s underlying factual findings unless clearly erroneous.” Id.
      Due to a defendant’s right to be tried by a specific tribunal, a trial court
may not declare a mistrial sua sponte unless the mistrial is justified by manifest
necessity. United States v. Palmer, 122 F.3d 215, 218 (5th Cir. 1997). However,
if a defendant expressly or impliedly consents to a mistrial, double jeopardy does
not bar retrial of that defendant. Id. “If a defendant does not timely and
explicitly object to a trial court’s sua sponte declaration of mistrial, that
defendant will be held to have impliedly consented to the mistrial and may be
retried in a later proceeding.” Id. “The determination of whether a defendant
objected to a mistrial is made on a case-by-case basis, and the critical factor is
whether a defendant’s objection gave the court sufficient notice and opportunity
to resolve the defendant’s concern.” United States v. El-Mezain, 664 F.3d 467,
559 (5th Cir. 2011).
      The parties argue whether, and to what extent, this court’s holding in
United States v. Fisher, 624 F.3d 713 (5th Cir. 2010), controls this appeal
pursuant to the law of the case doctrine. In Fisher, 624 F.3d at 718, this court
cited to the district court’s determination that Fisher had objected to the mistrial
and held that Fisher had therefore not impliedly consented to the mistrial. In
the denial of Alexander’s motion to dismiss the indictment, the district court
stated that its determination that Fisher objected to the mistrial was erroneous
and held that none of the parties objected to the mistrial despite being given an
opportunity to do so. Even if we were to assume that the law of the case doctrine
is recognized in this circuit as applicable to co-defendants’ criminal appeals,
because the Fisher court did not decide whether Alexander objected to the
mistrial, it would not be applicable in this case.



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     Case: 11-30236   Document: 00511882704     Page: 3   Date Filed: 06/11/2012

                                   No. 11-30236

        Indeed, an examination of the record shows that, despite having an
opportunity to object to the mistrial, Alexander did not explicitly object to the
mistrial or provide the district court with notice and opportunity to address the
double jeopardy concerns he now raises on appeal.           Accordingly, because
Alexander did not explicitly object to the mistrial despite being given the
opportunity to do so, he impliedly consented to the mistrial and double jeopardy
does not bar his retrial. See El-Mezain, 664 F.3d at 559; Palmer, 122 F.3d at
218.
        The district court’s denial of Alexander’s motion to dismiss the indictment
is
                                                                     AFFIRMED.




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