U.S. v. Palmer

• Decision Date: 03 September 1997
• Docket Number: Nos. 95-21027,96-20109,s. 95-21027
• Citation: 122 F.3d 215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stacy Anne PALMER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stacy Anne PALMER, Samuel Lloyd Deblasio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 215

122 F.3d 215

UNITED STATES of America, Plaintiff-Appellee, v. Stacy Anne PALMER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Stacy Anne PALMER, Samuel Lloyd Deblasio, Defendants-Appellants.

Nos. 95-21027, 96-20109.

United States Court of Appeals Fifth Circuit.

Sept. 3, 1997.

Mary Jane Harmon, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

Michael E. Tigar, Rachel A. Bellis, haddon, Morgan & Foreman, Denver, CO, for Defendant-Appellant Stacy Anne Palmer.

Samuel Lloyd DeBlasio, Oklahoma City, OK, for Defendant-Appellant Samuel Lloyd DeBlasio.

Appeals from the United States District Court for the Southern District of Texas.

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

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendants were convicted of mail 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 argues his counsel was ineffective and that his sentence was miscalculated. We are compelled to conclude that Palmer has waived both her double 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 special promotion. The mailing instructed its recipients to call a special telephone number to claim their 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 victims that 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 January 1993 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.

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 his trial 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 recess to assess Palmer's status. 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 the 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 than 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 hospital for another day or two, Palmer's counsel requested a continuance until 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 counsel requested another continuance. The judge then informed the parties:

The Court will sever 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 from the 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.

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, 493 U.S. 1077, 110 S.Ct. 1128, 107 L.Ed.2d 1034 (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, 510 U.S. 833, 114 S.Ct. 106, 126 L.Ed.2d 72 (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 witnesses to accommodate Palmer, the trial court declared a mistrial as to 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...