                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                            No. 07-10877                     March 5, 2008
                        Non-Argument Calendar             THOMAS K. KAHN
                      ________________________                CLERK


                D. C. Docket No. 04-00262-CR-T-30-TGW

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,


                                 versus


WENDELL CORNELIUS YOUNG,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                            (March 5, 2008)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      This is Wendell Cornelius Young’s second appeal from his conviction for

possession of cocaine with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and (b)(1)(B). In his first appeal, Young argued that the

district court abused its discretion by denying his pretrial motion to compel the

government to reveal the identity of a confidential informant. We remanded the

case for an in camera hearing so the district judge could question the informant to

determine whether his or her testimony might be of assistance to Young’s mistaken

identity defense. See United States v. Young, 161 Fed. App’x 922 (11th Cir. 2006)

(unpublished). On remand, the district court first vacated Young’s conviction and

sentence because the informant could not be found. After the government located

the informant and the district court held two in camera hearings, in which it

determined that the informant’s testimony would not substantially assist Young,

the district court vacated its original order vacating Young’s conviction and

reimposed the conviction and sentence.

       In this appeal, Young argues that the district court’s original order vacating

his conviction became final when the government failed to appeal the order within

the proscribed time limit, and thus, that order was the law of the case and could not

be set aside. He further argues that the reimposition of his conviction constitutes

double jeopardy, a due process violation, and a Sixth Amendment violation of his



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right to a jury trial. After thorough review of the record, we affirm the district

court’s order reimposing Young’s original conviction and sentence.

      We first resolve whether the district court had subject matter jurisdiction to

issue an order vacating the conviction. “[S]ubject-matter jurisdiction . . . can never

be forfeited or waived and [c]onsequently, defects in subject-matter jurisdiction

require correction regardless of whether the error was raised in district court.”

United States v. Machado, 465 F.3d 1301, 1306 (11th Cir. 2006) (quotations

omitted). Although a district court is divested of jurisdiction when a party files a

notice of appeal, the district court re-acquires jurisdiction over the case once a

mandate remanding the case to the district court issues. United States v. Sears, 411

F.3d 1240, 1241-42 (11th Cir. 2005).       However, a district court’s assertion of

jurisdiction over matters outside the scope of a mandate constitutes an abuse of

discretion. United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996).

Whether the district court violated our mandate is a question of law reviewed de

novo. Ad-Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 943

F.2d 1511, 1517 (11th Cir. 1991).

      “If the appeals court issues a specific mandate, the district court must obey:

the mandate is not subject to interpretation.” United States v. Mesa, 247 F.3d

1165, 1170 (11th Cir. 2001). Under this limited role, the district court



                                          3
      may not alter, amend, or examine the mandate, or give any further
      relief or review, but must enter an order in strict compliance with the
      mandate. The trial court must implement both the letter and the spirit
      of the mandate, taking into account the appellate court’s opinion, and
      the circumstances it embraces. Although the trial court is free to
      address, as a matter of first impression, those issues not disposed of on
      appeal, it is bound to follow the appellate court’s holdings, both
      expressed and implied.

Pelletier v. Zweifel, 987 F.2d 716, 718 (11th Cir. 1993) (quotations omitted). In

Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506 (11th Cir. 1987) (en banc), “we

recognize[d] that there are cases wherein a seemingly specific mandate such as an

order for a new trial may wind up with a different result on remand.” Id. at 1512.

      Here, this Court issued a specific mandate on remand for the district court to

conduct an in camera hearing to assess the informant’s testimony. Young, 161 F.

App’x at 923. We directed that “[i]f the district court decides that the informant’s

testimony would materially support Young’s proposed misidentification defense,

then his conviction should be vacated and he should be granted a new trial.” Id.

However, on remand, the district court was presented with a factual scenario not

contemplated by this Court, namely, the government’s inability to produce the

informant for the hearing.    We find that by assuming the informant’s identity

should have been revealed and then vacating the conviction when the government

could not produce the informant, the district court embraced the spirit of our

mandate and provided the necessary protection of Young’s right to prepare his

                                         4
defense even though it could not comply with the letter of the mandate.                      See

Litman, 825 F.2d at 1512 (recognizing that an order appearing to go beyond a

limited remand may be upheld if “when viewed in its totality, [it] supports the

alternative disposition”). Accordingly, the district court did not exceed the scope

of the mandate, and, thus, had jurisdiction to vacate Young’s conviction.

       We now turn to Young’s argument that the district court’s original order

vacating his conviction was law of the case, and that the district court did not have

the jurisdiction or authority to later reimpose Young’s conviction rather than

proceed with a new trial. “The subject matter jurisdiction of the district court is a

question of law and, therefore, subject to de novo review.” United States v. Perez,

956 F.2d 1098, 1101 (11th Cir. 1992).1 Furthermore, we review the application of

the law of the case doctrine de novo. Transamerica Leasing, Inc. v. Institute of

London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005). The district court’s

decision to reconsider its earlier ruling on a motion is reviewed for an abuse of

discretion. See United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975).2


       1
          Because “defects in subject-matter jurisdiction require correction regardless of whether
the error was raised in district court[,]” Machado, 465 F.3d at 1306, and accordingly, we have
applied de novo review, we need not, and do not, reach Young’s alternative argument, which he
terms a “caveat,” concerning preservation and effective assistance of counsel.
       2
          See Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as
binding precedent in the Eleventh Circuit, all decisions of the former Fifth Circuit announced
prior to October 1, 1981).


                                                5
      Under the law of the case doctrine, an issue decided at one stage of a case is

binding at later stages of the same case. United States v. Escobar-Urrego, 110 F.3d

1556, 1560 (11th Cir. 1997). As long as the district court retains jurisdiction over

a case, previous rulings may be reconsidered. Vintilla v. United States, 931 F.2d

1444, 1447 (11th Cir. 1991). If a district court decision is interlocutory and subject

to reconsideration, any constraints of the law of the case doctrine are inapplicable.

Gregg v. U.S. Indus., Inc., 715 F.2d 1522, 1530 (11th Cir. 1983).

      Thus, in Scott, we held that where “[t]he district court had continuing

jurisdiction over the [criminal] case[, it] was free to reconsider its own earlier

decision” and the government’s statutory right to appeal such order was not an

exclusive remedy. 524 F.2d at 467 (holding that the district court was authorized

to reconsider its decision granting a motion to suppress after carefully reading the

suppression hearing transcript that was not available at the time of its first ruling).

And in United States v. Spiegel, 604 F.2d 961 (5th Cir. 1979), the Court held that

the district court had jurisdiction to reconsider its motion granting a new trial,

relying, in part, on the fact that the district court issued the order prior to entering a

judgment of conviction and that the government’s motion for reconsideration was

timely. Id. at 971-72.




                                            6
         Here, when the district court entered the order vacating Young’s conviction,

it still had jurisdiction over the criminal proceeding. Indeed, the order vacating the

conviction amounted to the grant of a “new trial,” even though the district court did

not use those specific words. Our ruling in the first appeal directed the district

court on remand to either vacate the conviction and grant a new trial, or refuse to

grant a new trial. Young, 161 F. App’x at 923. On remand, the district court

vacated the conviction and held that the defendant was to “remain in custody

pending further proceedings in this matter.” Thus, the district court essentially

granted a new trial, and as such, the order vacating the conviction was not a final

order.    See United States v. Martinez, 763 F.2d 1297, 1311 (11th Cir. 1985)

(holding that a new trial order is not a final order, whereas a judgment of acquittal

is; a judgment of acquittal “terminates the litigation between the parties on the

merits of the case, and leaves nothing to be done but to enforce by execution what

has been determined”) (citations omitted).        Because the order vacating the

conviction was not final, the law-of-the-case doctrine was inapplicable to the

district court’s later order reimposing his conviction. See Gregg, 715 F.2d at 1530.

         Next, we address Young’s argument that the reimposition of his conviction

constitutes double jeopardy, a due process violation, and a Sixth Amendment

violation of his right to a jury trial.   We review any possible violation of the



                                           7
Double Jeopardy Clause de novo. United States v. Thurston, 362 F.3d 1319, 1322

(11th Cir. 2004). The Fifth Amendment provides that no person shall “be subject

for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. In the case of a jury trial, jeopardy attaches when a jury is empaneled

and sworn. Serfass v. United States, 420 U.S. 377, 388 (1975). In United States v.

Spinella, 506 F.2d 426 (5th Cir. 1975), the former Fifth Circuit held that the

district court could not reimpose a judgment of conviction, but there, the second

trial had commenced and jeopardy had attached by the time the district court

reimposed the judgment of conviction. Id. at 430.

      As the district court had jurisdiction to reinstate Young’s conviction, his due

process and right to a jury trial claims are meritless because Young received due

process and a jury trial before the district court originally imposed a judgment of

conviction.   Likewise, following the district court’s vacatur and before its

reinstatement of Young’s conviction, jeopardy had not attached because a second

jury had not been empaneled and sworn. See Spiegel, 604 F.2d at 971; Spinella,

506 F.2d at 430.    Accordingly, we affirm the district court’s order reimposing

Young’s conviction and sentence.

      AFFIRMED.




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