IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-21027 

 

 UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

STACY ANNE PALMER

Defendant-Appellant.

 

No. 96-20109

 

UNITED STATES OF AMERICA

 Plaintiff-Appellee,

versus

STACY ANNE PALMER

SAMUEL LLOYD DEBLASIO

 Defendants-Appellants.

Appeals from the United States District Court

For the Southern District of Texas

 

September 3, 1997

Before POLITZ, Chief Judge, HIGGINBOTHAM, and SMITH, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Defendants were convicted ofmail and wire fraud for engaging in a nationwide telemarketing

scheme. Stacy Anne Palmer argues that her conviction was barred by double jeopardy, that her trial

should have been severed from that of DeBlasio, and that the district court erred in applying the

Sentencing Guidelines. Samuel Lloyd DeBlasio argued his counsel was ineffective and that his

sentence was miscalculated. We are compelled to conclude that Palmer has waived both her double
2

jeopardy and severance claims . We affirm the district court’s application of the Guidelines to

DeBlasio and dismiss Palmer’s sentencing challenge for lack of jurisdiction. Finally, we decline to

reach the merits of DeBlasio’s ineffective assistance of counsel claim.

I.

In 1992, DeBlasio founded S&N Advertising, a company organized to operate a fraudulent

telemarketing promotion. DeBlasio’s scheme was a classic example of “advance fee” fraud, simplistic

in design but effective in separating victims from their money. DeBlasio purchased the names of

1,430,455 individuals who had previously responded to telemarketing solicitations and sent to most

of them a complicated mailing, designed by himself, which led its recipients to believe that they had

won a new Ford Explorer in a specialpromotion. The mailing instructed its recipients to call a special

telephone number to claimtheir prize. Telemarketers employed by S&N answered these calls. Upon

receiving a call from a victim, the telemarketers would congratulate the caller and confirm that the

caller had indeed won the automobile. To claim the prize, however, the telemarketers instructed the

victimsthat they must first send S&N a large sum of money, typically described as covering the “tax,

title, and tags” for the Explorer. S&N collected millions of dollars in this fashion. But they gave

away no Ford Explorers.

Defendant Stacey Palmer was hired as a telemarketer for S&N in January1993 and continued

to work there until S&N shut down ten weeks later. Palmer was good at what she did. During her

period of employment, Palmer was one of S&N’s most productive telemarketers. She induced two

elderly victims to send in $6,295.41 each, among the largest amounts taken from any particular

victims by S&N. Nevertheless, she was a small player in a scheme that grossed approximately three

million dollars.

DeBlasio, Palmer, and twelve others were indicted on April 7, 1995. All fourteen defendants

were charged with conspiracy to commit mail and wire fraud and with aiding and abetting mail and

wire fraud. In addition, DeBlasio was charged with money laundering and the government sought

forfeiture against him.
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Trying all fourteen defendants in the same proceeding proved difficult. On May 12, 1995,

Palmer moved for severance, and on August 10, 1995, DeBlasio moved for a continuance because

histrial counsel had become ill. The court denied Palmer’s motion for severance, but it had concerns

about the health of DeBlasio’s counsel. After some discussion among the parties about how to

resolve the problem, the court granted the government’s unopposed motion to sever DeBlasio’s case.

Two of the defendants pled guilty and the remaining eleven defendants, including Palmer,

went on trial on August 14, 1995. Palmer was then five moths pregnant. In the midst of trial, on the

morning of Thursday, August 17, 1995, Palmer’s counsel informed the court that Palmer had just

been admitted to a hospital after experiencing complications with her pregnancy. The parties agreed

to recessto assess Palmer’sstatus. After the recess, Palmer’s counsel told the court that Palmer was

still being evaluated but that her initial prognosis was serious. The government then suggested that

Palmer waive her right to be present at the trial. After expressing initial reluctance about that option,

Palmer’s counsel conferred with Palmer by telephone and informed the court that Palmer would

waive her right to be present for those witnesses whose testimony did not bear on her case. The

government then presented several such witnesses in Palmer’s absence. That afternoon, Palmer’s

counsel instructed the court that Palmer’s doctor had determined that Palmer would not be available

for trial until the coming Monday. The prosecutor advised t he court that most of its remaining

witnesses would implicate Palmer. Palmer’s counsel offered to waive Palmer’s right to be present

so long as none of the prosecution’s other witnesses implicated Palmer, an option the government

rejected. The trial judge then noted that she was scheduled to attend a judicial conference in less that

two weeks, but she concluded that it was possible to complete the trial before that time, despite the

delays occasioned by Palmer’s illness. After completing the day’s testimony, the judge recessed the

trial until Monday, August 21.

That Monday morning, Palmer’s counsel instructed the court that Palmer had delivered her

child prematurely and that it had died after two hours. Because Palmer understood that she would

have to remain in the hospitalfor another day or two, Palmer’s counselrequested a continuance until
4

that Wednesday. The court, however, expressed concerns about Palmer’s physical ability to attend

trial that soon, and the prosecution questioned whether Palmer would be emotionally capable of

assisting in her defense, given the recent death of her infant. Palmer’s counsel responded that Palmer

would have to attend an upcoming funeral for her child, but that otherwise Palmer was eager for the

proceedings to conclude. The court then decided to defer any further scheduling decisions until

hearing back from Palmer’s doctor. The parties again agreed to proceed with witnesses who would

not implicate Palmer. Later, Palmer’s counsel learned that Palmer would actually require an

additional week of bed rest and counselrequested another continuance. The judge then informed the

parties:

The Court willsever the case against Ms. Palmer from the case against the remaining

Defendants. The court will grant a mistrial as to Ms. Palmer only because I don’t

know any other alternative but to grant a mistrial as to Ms. Palmer.

The court further stated that Palmer was to be retried with the previously-severed DeBlasio.

Palmer’s counsel made no objection at this point and asked only to be excused fromthe proceedings.

Palmer’s counsel left court and the trial for the remaining defendants proceeded to a verdict.

On September 29, 1995, the government obtained a superseding indictment, adding a

defendant, Kafil Khan. On November 30, 1995, four days before her second trial was scheduled to

commence, Palmer moved to dismiss her indictment on double jeopardy grounds. By written order

dated December 5, 1995, the trial court denied Palmer’s motion. DeBlasio, Palmer, and Khan then

went to trial, and the jury convicted them on all counts on December 13, 1995. The trial court

sentenced DeBlasio to 168 months and Palmer to 27 months of incarceration. DeBlasio and Palmer

then filed this appeal.

II.

Palmer first asserts that because the court declared a mistrial in the first trial without her

consent and without proper justification, she was twice tried for the same offense in violation of the

principle of double jeopardy.
5

A criminal defendant possesses a “valued right to have his trial completed by a particular

tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed. 974 (1949). Because

of this right, a trial court cannot retry a defendant after declaring a mistrial sua sponte, unless the

mistrial is justified by “manifest necessity.” See United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547,

27 L. Ed. 2d 543 (1971); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824).

A criminal defendant’s right to see his case through to completion by the initial jury is not

absolute, however. United States v. Bauman, 887 F.2d 546, 549 (5th Cir. 1989), cert. denied, 110

S. Ct. 1128 (1990). When a criminal defendant consents to a mistrial before the jury reaches a

verdict, double jeopardy will not bar a reprosecution. Id. at 549. This consent can either be express

or implied. 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. United States v. Nichols, 977 F.2d 972, 974 (5th Cir. 1992), cert.

denied, 114 S. Ct. 106 (1993).

Palmer asserts that the court’s declaration of a mistrial in this case was not justified by

manifest necessity. Whatever the merits of Palmer’s claim, we refuse to pass on it because we find

that Palmer impliedly consented to the mistrial. After it repeatedly delayed the proceedings and

shuffled witnessesto accommodate Palmer, the trial court declared a mistrial asto Palmer on August

21, 1995. At that time, Palmer’s counsel made no objections to the declaration of mistrial. Rather,

her counsel’s only statement before the court was a request to be excused from the proceedings.

After the trial court granted that request, Palmer’s counsel left the courtroom. Not until November

30, 1995, long after the first trial had concluded and just before her second trial, did Palmer object

to the mistrial that had been declared on August 21. This fails to qualify as the “timely objection”

required by our Circuit. See id.

Palmer defends her failure to object by arguing that her expression of a desire to complete the

trial vitiates any implied consent to mistrial. On the morning of Monday, August 21, after Palmer’s

counsel had informed the court that Palmer would be available for trial that Wednesday but before
6

the parties had discovered that Palmer would in fact require an additional week of bed rest, Palmer’s

counsel expressed Palmer’s feelings to the court:

Frankly, [Palmer is] eager to come back to court just to get this done with, to get it

over with. She feels like she’s under the gun, has been under the gun, and she wants

to get it over with. That was her opinion expressed to me.

Palmer argues that this statement demonstrates that she would never have consented to a mistrial.

To support this position, she cites the law of another circuit to establish that where a defendant

expresses a desire to proceed to a verdict prior to the court’s declaration of a mistrial, that mistrial

is presumablygranted over the defendant’s objection. See Escobar v. O’Leary, 943 F.2d 711, 715-17

(7th Cir. 1991). In addition, Palmer notes that some other circuits are reluctant to imply consent to

a mistrial from a defendant’s silence, especially if the defendant is somehow denied the chance to

object. See Love v. Morton, 112 F.3d 131, 138 (3d Cir. 1997); Glover v. McMackin, 950 F.2d 1236,

1240 (6th Cir. 1991).

Palmer had a meaningful opportunity to object, yet failed to do so. Her expressed desire “to

get it over with” was not an objection, nor was it stated contemporaneously with the declaration of

mistrial. Our precedents require that criminal defendants make timely, explicit objections to a sua

sponte declaration of a mistrial, lest they be held to have impliedly consented to it. See Nichols, 977

F.2d at 974. A prior expression of a desire to continue the trial will not save a defendant from the

implied consent doctrine. Indeed, the defendant in Nichols expressed some displeasure at the

possibility of retrying his case, noting his concerns about subpoenaing witnesses again and resolving

scheduling conflicts for the second trial. Id. at 974, 975. Nevertheless, we found implied consent

because Nicholsfailed to make an express objection. We recognize that Palmer conveyed her desire

to complete her trial with somewhat more force than did Nichols, but we refuse to make appellate

review hinge upon weighing and interpreting a defendant’s previously stated feelings. Rather, we

must insist upon express objections.

The facts of this case make clear the rationale behind our insistence upon such procedural

formalities. Palmer’s counsel voiced Palmer’s desire to “get it over with” when all the parties were
7

under the impression that Palmer would be available for trialwithin two days. After it was discovered

that Palmer would actually require another week to recuperate before she could stand trial, counsel

did not restate Palmer’s wishes to conclude the trial in the same proceeding. The trial court at that

point had no idea whether these new circumstances had caused Palmer to change her mind about

pressing forward with the trial, or whether her previously stated desire to “get it over with” was an

objection to any later declaration of a mistrial. Defendants must make timely, express objections to

mistrials declared sua sponte by a judge. Palmer made no such objection in this case, and we will not

listen to her present objection. Accordingly, we find Palmer has waived her double jeopardy

argument.

III.

Palmer next attacksthe denial of her motion to sever. Although strongly argued, once again,

we need not reach the merits of Palmer’s position, for we find that she has waived her severance

claim.

Under the FederalRules of Criminal Procedure, a motion to sever must be made before trial.

Fed. R. Crim. P. 12(b)(5). Failure to move for severance before trial results in waiver of any

severance claim, United States v. Castillo, 77 F.3d 1480, 1490 n.19 (5th Cir.), cert. denied, 117 S.

Ct. 180 (1996); United States v. Perez, 648 F.2d 219, 223 (5th Cir. Unit B June 1981), cert. denied,

102 S. Ct. 602 (1981), absent a showing of good cause, Fed. R. Crim. P. 12(f).

Before her first trial, Palmer filed a timelymotion for severance, which the trial court denied.

After the mistrial, however, Palmer did not raise the severance issue again until she made an oral

motion eight days after her retrial had commenced. The government contends that this severance

motion was untimely under Rule 12(b)(5). It argues that the mistrial invalidated all motions made

by Palmer at her first trial, requiring her to reassert themat the second in a timelymanner. Moreover,

it points to a colloquy before the retrial between Palmer’s counsel and the trial court that indicates

that Palmer was on notice that her earlier-filed motions would not be carried to the second trial:
 

1As neither party contendsthat a severance motion would have been untimely if it had been refiled

after the court’s warning but before trial, see Fed. R. Crim. P. 12(c), we do not reach that issue.

8

MS. CONN: Isit safe to assume, your honor, that motions previously filed in this case

with regard to the jurors questions and the special issues, jury charge, other motions

that were granted or denied in previous courts will get the same ruling in this court?

THE COURT: I don’t want to make an overly generalized ruling and then blank. If

you can be a little more specific.

MS. CONN: What I have not done, your honor, I have not re-submitted all my

pretrialmotions and thingslike that, that were previously addressed. I’m asking if the

court’s ordersthat were previouslyfiled, previouslyruled uponmotions carryinto this

trial.

THE COURT: I don’t think that’s a safe assumption . . . .

Despite this warning from the trial court, Palmer did not urge again her severance motion before the

retrial.1

Palmer arguesthat the law-of-the-case doctrine saves herfromproceduraldefault. According

to the Supreme Court, “[a]s most commonly defined, [the law-of-the-case] doctrine positsthat when

a court decides upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382,

1391, 75 L. Ed. 2d 318 (1983). The law-of-the-case doctrine applies to both civil and criminal

proceedings. Paul v. United States, 734 F.2d 1064, 1066 (5th Cir. 1984). 

Palmer pointsto a decision ofthe SixthCircuit, United States v. Todd, 920 F.2d 399 (6thCir.

1990), which holds that a court may recognize and enforce rulings made before a mistrial, so as to

avoid having to redecide the issues de novo at a retrial, id. at 404. Palmer contends that the trial

court’s rulings before the mistrial thus became the “law of the case,” negating any duty on Palmer’s

part to preserve the issues for appeal from the retrial.

We have previously focused much of our discussion about the law-of-the-case doctrine on

the relitigation ofissuesfollowing appeal. See, e.g., United States v. Grosz, 76 F.3d 1318, 1329 (5th

Cir.), cert. denied, 117 S. Ct. 167 (1996); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967).

The law-of-the-case doctrine does not, however, set a trial court’s prior rulings in stone, especially

if revisiting those rulings will prevent error. See Vincent v. InternationalBhd. of Elec. Workers, 622

F.2d 140, 149 (5th Cir. 1980). For example, we have held that in civil cases a district court is not
 

2We acknowledge that one Circuit has implied that motions filed midtrial that would normally be

required to be filed pretrial are not waived ifthey “renew” a claimproperly asserted before a previous

trial of the case that later ended in mistrial. See United States v. Worthington, 698 F.2d 820, 822-24

(6th Cir. 1983). The Worthington court assumed that such a renewal does not implicate Rule 12(f),

which provides:

Failure by a party to raise defenses or objections or to make requests which must be made

prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension

thereof made by the court, shall constitute waiver thereof, but the court for cause shown may

grant relief from the waiver.

Fed. R. Crim. P. 12(f). We find nothing in the language of Rule 12(f) to support this “renewal”

theory.

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precluded bythe law-of-the-case doctrine fromreconsidering previousrulings oninterlocutoryorders

such as summary judgment motions, as those rulings are not immutable and lack res judicata effect.

See Lavespere v. Niagra Mach. & ToolWorks, Inc., 910 F.2d 167, 185 (5th Cir. 1990), cert. denied,

114 S. Ct. 171 (1993); United States v. Horton, 622 F.2d 144, 148 (5th Cir. 1980). Moreover, we

have noted that district courts hearing criminal cases may revisit pretrial issues, such as suppression

motions, upon which they have previously ruled. See United States v. Montos, 421 F.2d 215, 220

(5th Cir. 1970). 

Even considering the law-of-the-case doctrine, we agree with the government and find waiver

under these circumstances. A retrial following a mistrial is both in purpose and effect a new trial.

Accordingly, objections made at the aborted trial have no bearing on the retrial, as the two are

entirely separate affairs. See United States v. Mann, 590 F.2d 361, 371 (1st Cir. 1978) (“Defendant’s

present argument that the district court’s rulings at the mistrial two days earlier made objection

unnecessary cannot be accepted; a rule that one objection preserves an issue during any retrials would

make the domain of a trial judge more of a mine field than ever.”); see also United States v.

Bettenhausen, 499 F.2d 1223, 1230 (10th Cir. 1974); Savage v. United States, 295 F. 686, 687 (4th

Cir. 1924).2 Although formal, written motions such as severance motions may have more of a lasting

effect than simple objections, our previous analysis of the law-of-the-case doctrine indicates that

district courts are not always bound by their prior rulings on pretrial motions. Here, the trial court

expressed in unambiguous terms that it would not automatically revive any of Palmer’s pretrial
10

motions. Given that the trial court had the authority to reconsider these motions, the court’s

statement placed Palmer under the duty to reurge them.

Our Circuit has not previously considered the application of the law-of-the-case doctrine to

rulings made by trial courts before mistrials in criminal cases. Palmer urges that we adopt the

reasoning of the Todd case from the Sixth Circuit, which held that a trial court may, following a

mistrial, apply its prior rulings to a retrial, but it is not required to do so. See Todd, 920 F.2d at 404.

If anything, however, Todd cuts against Palmer’s position, for it establishes that district courts have

the option either to recognize or reject their pretrial rulings in cases that end in a mistrial. In that

sense, Todd is in keeping with our previous law-of-the-case jurisprudence, which grants trial courts

the power to reconsider their own rulings. We have no quarrel with this principle. Here, the trial

judge told Palmer it was not safe to assume that the court would recognize all of its previousrulings.

Thus, Palmer was on notice that the trial court was not going to apply the law-of-the-case doctrine

to preserve her previous objections. Accordingly, Palmer had an obligation to reassert her severance

motion in a timely fashion if she wished to preserve error. Failing to do so, Palmer waived her

severance claim. Fed. R. Crim. P. 12(f).

IV.

The remaining issues in this case require briefer discussion. DeBlasio challenges the

effectiveness of his trial counsel, but the record indicates that he failed to raise this claim before the

trial court. We do not entertain ineffective assistance of counsel claims on direct appeal when they

have not been raised before the trial court, as the trial court isthe proper place to develop the record

necessary for their resolution. See United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987),

cert. denied, 108 S. Ct. 1051 (1988). Only in “rare cases where the record allow[s] us to evaluate

fairly the merits of the claim” will we resolve ineffective assistance issues on direct appeal. Id.

DeBlasio makes a variety of challenges to his trial counsel’s trialstrategy and technique, challenges

which require further evidentiary development. Because the record is insufficient for us to evaluate
11

fairly the merits of DeBlasio’s claim, we decline to resolve the issue. We do so without prejudice,

however, so DeBlasio retains the right to dispute his counsel’s effectiveness collaterally.

Both Palmer and DeBlasio challenge their sentences. Palmer argues that the district court

erred in failing to depart downward from the Sentencing Guidelines on account of her personal

circumstances relating to her history of pregnancy complications. We are without jurisdiction to

resolve this claim. We may only review a trial court’s refusal to grant a downward departure from

the Guidelines if the refusal was based on a violation of the law. See United States v. Mitchell, 964

F.2d 454, 462 (5th Cir. 1992). Thus, we have jurisdiction if a district court’s refusal to depart

downward is premised upon the court’s mistaken conclusion that the Guidelines do not permit such

depart ure, but we have no jurisdiction if the court’s refusal is based on its determination that

departure is not warranted on the facts of the case. See id. A defendant’s mere dissatisfaction with

the trial court’srefusal to depart downward forms no basisfor an appeal. United States v. Flanagan,

87 F.3d 121, 125 (5th Cir. 1996). Here, the trial court understood that it had the authority to depart

to account for circumstances not adequately taken into consideration by the Guidelines,see U.S.S.G.

§ 5K2.0, but it found Palmer’s pregnancy complications insufficient to warrant departure.

Accordingly, we lack jurisdiction to review the trial court’s sentencing decision.

DeBlasio challenges the district court’s application of the Guidelines to his case. Although

we review a district court’sinterpretation ofthe Guidelines de novo, United States v. Brown, 54 F.3d

234, 240-41 (5th Cir. 1995), we review a trial court’sfact findingsin support of its application of the

Guidelinesfor clear error, United States v. Tansley, 986 F.2d 880, 884 (5thCir. 1993). DeBlasio first

argues that the district court improperly calculated the total level of loss arising from the

telemarketing scheme. The District Court sentenced DeBlasio based on a total loss to victims of

$3,050,354.55, resulting in a six level increase in his base offense level. U.S.S.G. § 2S1.1(b)(2)(G).

DeBlasio asserts that this figure overstates the loss to victims, as it purports to represent the total

amount collected in the scheme but does not account for the value of products received by the

victims, refunds, bounced checks, and stop payment orders. The district court, however, found that
12

the government, which generated the total loss figure, had done its best to exclude such items from

its calculations. This district court’s findings on this issue were not clearly erroneous.

Finally, DeBlasio argues that the trial court erred by applying U.S.S.G. §3B1.1(a) to his

sentence, which increased his offense level by four levels because he was an organizer or leader of

criminal activity that involved five or more participants. We find no clear error in the court’s

application of §3B1.1(a) to an individual who founded a fraudulent telemarketing company that at

one point employed 120 telemarketers to carry out his scheme.

V.

For the foregoing reasons, the convictions and sentences of Palmer and DeBlasio are

AFFIRMED.