     Case: 14-60536      Document: 00513196041         Page: 1    Date Filed: 09/16/2015




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


                                      No. 14-60536                                 FILED
                                                                          September 16, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff - Appellant
v.

RAYMOND LAMONT SHOEMAKER, also known as Ray Shoemaker;
EARNEST LEVI GARNER, JR., also known as Lee Garner,

                                                 Defendants - Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                    U.S.D.C. Nos. 2:11-CR-38-1; 2:11-CR-38-2


Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*

       Garner’s petition for panel rehearing is denied. The panel’s prior opinion
is withdrawn and the following substituted in its place.

       The Government appeals the district court’s order granting Defendants
Raymond Lamont Shoemaker and Earnest Levi Garner, Jr. a new trial based
on three claimed violations of Brady v. Maryland, 373 U.S. 83 (1963). We
previously reversed the district court’s post-trial grant of a new trial and
remanded for reinstatement of the jury verdict and sentencing. United States

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 14-60536

v. Shoemaker (“Shoemaker I”), 746 F.3d 614, 633 (5th Cir. 2014). We hold that
the district court’s subsequent decision 1 exceeded the boundaries of our
mandate in Shoemaker I and improperly granted a new trial on a basis not
previously raised by Defendants.             Accordingly, we REVERSE the district
court’s order granting a new trial and REMAND with directions.

                                               I.
          As set out in Shoemaker I, Garner and Shoemaker were charged with
crimes related to an alleged bribery and kickback scheme involving their work
at a medical center. We will not repeat the factual background of the case,
which is set forth in our earlier opinion, and which is known to the parties. See
Shoemaker I, 746 F.3d at 616–18.
      Garner and Shoemaker were tried jointly; Garner on four counts and
Shoemaker on ten counts (two of which overlapped, for a total of twelve counts)
of the fourteen-count superseding indictment. The jury found them guilty as
charged. Both Garner and Shoemaker moved for a judgment of acquittal and,
in the alternative, a new trial. The district court granted Garner’s motion for
a judgment of acquittal on Counts One, Two, Four, and Five.                           In the
alternative, the district court granted Garner’s motion for a new trial on those
counts. The district court granted Shoemaker’s motion for a judgment of
acquittal as to Counts One and Four; denied acquittal but granted a new trial
as to Count Three; and denied Shoemaker’s motion as to Counts Six through
Twelve. See generally id. at 618–19.
      The district court based its judgment of acquittal on the Government’s
failure to prove agency, as required under 18 U.S.C. § 666. The district court
also noted Garner’s argument that the Government had withheld Brady



      1   United States v. Garner (“Garner II”), 31 F. Supp. 3d 856, 861 (N.D. Miss. 2014).

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material. Since the district court dismissed the verdicts with respect to Counts
One, Two, Four, and Five “for other reasons of law,” it declined to rule on the
allegations of a Brady violation. United States v. Garner (“Garner I”), No. 2:11-
CR-00038, 2012 WL 3643834, at *10 (N.D. Miss. Aug. 23, 2012).
       The Government and Shoemaker appealed. The Government appealed
the district court’s judgment of acquittal and order for a new trial. Shoemaker
appealed his conviction and sentence. 2         After combining the appeals, we
reversed the district court’s judgment of acquittal and grant of a new trial.
Shoemaker I, 746 F.3d at 633. We also affirmed Shoemaker’s convictions on
Counts Six through Twelve. With respect to the Brady issues, we “conclude[d]
that sufficient evidence supported Shoemaker’s remaining convictions, and
otherwise [found] no errors warranting reversal or a new trial.”              Id.   We
remanded the case for reinstatement of the jury verdict and sentencing. Id.
      Instead of resentencing, the district court sua sponte granted Garner and
Shoemaker a new trial on Counts One through Five. The district court based
its decision on three Brady issues: (1) the Government failed to provide
Defendants with the sealed, 26-count indictment of David Chandler, the
Government’s star witness; (2) the Government failed to provide Defendants
with copies of interview forms made by FBI agents when Chandler was
questioned; and (3) the Government failed to inform Defendants of a false
statement made by Chandler during his plea colloquy. See Garner II, 31 F.
Supp. 3d at 858–62.       The Government appealed the district court’s order
granting a new trial.
                                          II.
      “We review de novo a district court’s application of the remand order,


      2 The district court sentenced Shoemaker to 55 months of imprisonment, three years
of supervised release, and a $10,000 fine.

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including whether the law-of-the-case doctrine or mandate rule forecloses the
district court’s actions on remand.” United States v. Carales-Villalta, 617 F.3d
342, 344 (5th Cir. 2010) (citing United States v. Pineiro, 470 F.3d 200, 204 (5th
Cir. 2006)). We review the grant or denial of a new trial for an abuse of
discretion. United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004).
      Shoemaker raised the first two Brady claims—the late disclosure of
Chandler’s 26-count indictment and the FBI interview forms—during the first
appeal. We hold that our mandate in Shoemaker I barred the grant of a new
trial based on these two issues. The transcript of Chandler’s plea colloquy,
which disclosed the third Brady issue, was not available until July 2014; thus,
the mandate rule does not bar consideration of this issue which was first raised
in the district court’s opinion after remand. However, the district court lacked
discretion to grant a new trial on a basis, such as this one, not raised by either
Defendant.
      We begin with the first two Brady issues. The law of the case doctrine
limits a district court from reexamining issues of law or fact previously decided
on appeal. United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (citing United
States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). “The proscription covers
issues [the court has] decided expressly and by necessary implication . . .” Id.
However, the law of the case doctrine is “an exercise of judicial discretion” and
not a jurisdictional “limit on judicial power.” Id. (citing Messinger v. Anderson,
225 U.S. 436, 444 (1912)).
      The mandate rule is a specific application of the law of the case doctrine.
Lee, 358 F.3d at 321. Thus, the same principles apply. Id. “[T]he mandate
rule compels compliance on remand with the dictates of a superior court and
forecloses relitigation of issues expressly or impliedly decided by the appellate
court.” Id. The district court “must implement both the letter and the spirit


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of the appellate court’s mandate.” Matthews, 312 F.3d at 657 (citation and
quotation marks omitted). Accordingly, a district court may not decide issues
of fact or law “previously decided on appeal and not resubmitted to the trial
court on remand.” United States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012)
(quoting Pineiro, 470 F.3d at 205). As with the law of the case doctrine, this
includes issues “expressly or impliedly decided by the appellate court.” Lee,
358 F.3d at 321. The rule also “bars litigation of issues decided by the district
court but foregone on appeal or otherwise waived.” Id. Where a prior appellate
ruling “addressed all avenues of potential relief . . . and rejected each in turn,”
the mandate rule bars the district court from resurrecting a prior claim. Perez
v. Stephens, 784 F.3d 276, 281 (5th Cir. 2015).
      To determine whether the district court went beyond our mandate, we
must first determine the scope of the mandate issued in Shoemaker I.
Matthews, 312 F.3d at 658. In determining the scope of the mandate, we
“should consult [this court’s prior] opinion ‘to ascertain what was intended by
[the] mandate.’” Tollett v. City of Kemah, 285 F.3d 357, 364 (5th Cir. 2002)
(quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 256 (1895)).
      The district court’s initial decision acquitting Garner and Shoemaker on
Counts One, Two, Four, and Five was based on the Government’s failure to
prove agency. In that decision, the district court noted Garner had raised a
Brady argument in his motion for a judgment of acquittal. However, the
district court concluded that “it will not be necessary to rule on those
allegations at this time” as “the verdicts of the counts are ordered dismissed
for other reasons of law.” Garner I, 2012 WL 3643834, at *10.
       Shoemaker appealed his conviction for Counts Three and Six through
Twelve and his sentence.       The Government appealed the district court’s
judgment with respect to the first five counts. We reversed the district court’s


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order with respect to Counts One through Five. Shoemaker I, 746 F.3d at 616.
After finding that the district court erred in granting Defendants’ motions for
judgment of acquittal, we considered the district court’s alternative grant of a
new trial. Id. at 631 (observing that the motions for a new trial “were granted
in the alternative, such that even if the judgments of acquittal were vacated
on appeal, Garner and Shoemaker would receive new trials.”). We vacated the
district court’s grant of a new trial, finding that the district court had decided
the motion on a basis not raised by Defendants with respect to Counts One
through Three and on an incorrect basis with respect to Counts Four and Five.
Id. at 632. We then addressed Shoemaker’s arguments on appeal with respect
to Counts Six through Twelve:
       Lastly, Shoemaker submits that the Government prejudiced his
       defense by failing to comply with Brady v. Maryland, 373 U.S. 83
       (1963) . . . .
            We have considered the parties’ submissions and reviewed
       the record.   Because we conclude that sufficient evidence
       supported Shoemaker’s remaining convictions, and otherwise find
       no errors warranting reversal or a new trial, we affirm
       Shoemaker’s convictions on Counts Three and Counts Six through
       Twelve.
Id. at 633. The court then concluded:
       For the foregoing reasons, we VACATE the district court’s grants
       of Garner’s and Shoemaker’s motions for judgment of acquittal and
       new trial, AFFIRM Shoemaker’s other convictions, and REMAND
       for reinstatement of the jury verdict and for sentencing.
Id.
       The district court went beyond our mandate in granting a new trial on
the basis of the first two Brady issues, even though Shoemaker I did not
explicitly address the Brady arguments as related to Counts One, Two, Four,




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and Five. 3     During the initial appeal, Shoemaker argued that the Brady
violations required a new trial.            He did not tie his Brady arguments or
reasoning to any particular counts of the indictment, nor did he indicate that
his arguments would have been different as applied to various counts of the
indictment.       Moreover, the district court’s opinion explicitly mentioned
Defendants’ alternative arguments, which it declined to address.
       “As a general rule, a federal appellate court is obligated to uphold a lower
court’s determination, even though the lower court gave an incorrect reason for
its action, if there is some other basis in the record for justifying that action.”
Knotts, 893 F.2d at 761. Shoemaker’s brief and the district court’s opinion
made us aware of the claimed Brady violations, and we still determined that a
new trial was unwarranted. Our rejection of Shoemaker’s appeal and ruling
in favor of the Government was “necessarily an adverse ruling on all
arguments presented in support” of a new trial, even if Shoemaker I did not
explicitly address all of those arguments.               Id.    Moreover, this court has
“remand[ed] to the district court to hear [the defendant’s] remaining
arguments for new trial” where that is our intent. See United States v. O’Keefe,
128 F.3d 885, 899 (5th Cir. 1997). We could have granted that relief if we
deemed it warranted; we chose not to do so. We hold that the mandate rule



       3 Garner argues that Shoemaker I’s rejection of Shoemaker’s Brady arguments does
not preclude Garner from litigating the issue because the mandate rule does not apply to a
codefendant who was not a party to the earlier appeal. Garner was a party to the earlier
appeal, however. The Government appealed the judgment of acquittal as to both Shoemaker
and Garner. Though Garner did not join Shoemaker’s appeal, which explicitly discussed the
Brady violations, the Brady arguments were still part of the record on appeal and constituted
an alternate basis for upholding the district court’s opinion. Knotts v. United States, 893 F.2d
758, 761 (5th Cir. 1990). Thus, Shoemaker I’s implicit rejection of the Brady arguments as a
basis for a new trial applies to Garner even though he did not separately appeal. See Perez,
784 F.3d at 282 (noting that appellee’s failure to raise an issue in the first appeal was
“particularly unjustifiable given that the [appellant’s] motion to dismiss explicitly placed this
issue before the court”).

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bars the grant of a new trial based on the first two Brady issues. 4
       Though the mandate rule does not bar consideration of the third Brady
violation, 5 the district court lacked discretion to grant a new trial on that basis.
Neither Defendant raised the issue in a motion or during the first appeal;
rather, the first mention of it was in the district court’s second opinion granting
a new trial. See Garner II, 31 F. Supp. 3d at 861. “[A] district court does not
have the authority to grant a motion for a new trial under [Federal Rule of
Criminal Procedure] 33 on a basis not raised by the defendant.” United States
v. Nguyen, 507 F.3d 836, 839 (5th Cir. 2007); see also Shoemaker I, 746 F.3d at
631 (“A district court is ‘powerless to order a new trial except on the motion of
the defendant.’” (quoting United States v. Brown, 587 F.2d 187, 189 (5th Cir.


       4 Garner also argues that our holding in Conway v. Chemical Leaman Tank Lines,
Inc., 644 F.2d 1059 (5th Cir. Unit A 1981), supports his argument that the district court could
consider alternative bases for a new trial on remand. In Conway, the plaintiffs raised two
issues in a motion for a new trial. Id. at 1060. The district court granted the motion based
on the first ground without reaching or discussing the second ground. Id. at 1060–61. The
Fifth Circuit reversed on the first ground and remanded to reinstate the jury verdict in favor
of the defendant. Id. at 1061. None of the parties addressed the second ground in their briefs.
Id. Upon receipt of the mandate, the district court entered judgment for the defendant. Id.
The plaintiffs then reurged the second ground from their earlier motion, and the district court
granted a new trial on that basis. Id. The Fifth Circuit held that the law of the case doctrine
did not bar the district court from considering this issue because the issue had not previously
been passed upon by the district court or on appeal. Id. at 1062.
        Conway is distinguishable from this case. First, in Conway, neither the district court
nor the parties on appeal mentioned the second ground for a new trial. 644 F.2d at 1061.
The district court in this case explicitly mentioned the Brady arguments in its earlier order,
and Shoemaker discussed them in his brief on appeal. Thus, the court in Shoemaker I was
aware of these alternate arguments in the record at the time it made its decision. Second,
the district court in Conway followed the Fifth Circuit’s mandate: it entered judgment for the
defendants and only ordered a new trial after the plaintiffs reurged their earlier motion.
Here, the district court did not reinstate the jury verdict or sentence Garner and Shoemaker;
it sua sponte ordered a new trial in contravention of the mandate. Cf. United States v.
McCrimmon, 443 F.3d 454, 459 (5th Cir. 2006) (holding that district court “may not disregard
the explicit directives of” the appellate court).
       5 As mentioned above, the transcript that disclosed Chandler’s false statement in his
plea colloquy was not available until months after the opinion issued in Shoemaker I.
Because this violation involves new evidence and arguments, the mandate rule does not bar
its assertion. Matthews, 312 F.3d at 657.

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1979)). Thus, we hold that the district court exceeded its authority by granting
a new trial based on the third Brady issue.
      The district court’s order granting a new trial is REVERSED and the
case is REMANDED with instructions to reinstate the jury verdict, enter
judgments of conviction on all counts, and conduct a full resentencing that
includes all counts of conviction.




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