IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60536

UNITED STATES OF AMERICA,

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

USDC Nos. 2:11-CR-38-1; 2:11-CR-38-2

Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

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 

v. Shoemaker (“Shoemaker I”), 746 F.3d 614, 633 (5th Cir. 2014). We hold that 

 * 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.

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2015

Lyle W. Cayce

Clerk

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the district court’s subsequent decision1 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 went to trial on twelve counts of the superseding 

indictment. The jury found them guilty on all counts. 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

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 

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

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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, 

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 

 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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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).

Defendants 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 

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 

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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 

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 

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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, 

and Five.3 During the initial appeal, Shoemaker argued that the Brady 

 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 

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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

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

 

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”).

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 

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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. 

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 

 

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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judgments of conviction on all counts, and conduct a full resentencing that 

includes all counts of conviction.

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