USA v. Darius Fisher

Filing

PUBLISHED OPINION FILED. [10-30424 Reversed] Judge: JES , Judge: JLW , Judge: JWE. Mandate pull date is 11/16/2010 [10-30424]

USA v. Darius Fisher ase: 10-30424 C

Document: 00511274205 Page: 1 Date Filed: 10/26/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 26, 2010 N o . 10-30424 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA,

P la in t if f -A p p e lle e , v. D A R I U S NATHANIEL FISHER, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court for the Western District of Louisiana

B e fo r e SMITH, WIENER, and ELROD, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge: T h is appeal arises out of a mistrial that the district court declared sua s p o n te after two essential prosecution witnesses became unavailable to testify a s scheduled. The record demonstrates that there was no manifest necessity for t h e mistrial. Accordingly, we REVERSE the district court's denial of Fisher's m o t io n to dismiss the indictment on double-jeopardy grounds and we render a ju d g m e n t of dismissal. I.

Fisher, along with other individuals, was indicted on narcotics charges, with their trial scheduled to begin on Monday, September 28, 2009. The trial was expected to last two weeks, with the government's case lasting one week.

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On September 28, the district court empaneled the jury. After dismissing the jury for the day, the court addressed Fisher's concern that the government had not produced all relevant discovery. Although the court found that the complaint
w a s baseless, it nonetheless granted a continuance until Thursday, October 1, 2 0 0 9 so that Fisher's attorney could review the discovery, which the government h a d produced, but mislabeled. The government did not object.

On Wednesday, September 30, 2009, the government sent the district court an e-mail, explaining that the two-day continuance had created scheduling difficulties for two of its witnesses. These witnesses were to testify about
t h e ir analyses of the seized drugs. Both the district court and magistrate judge r e fe r r e d to them as "essential witnesses." One of the witnesses was scheduled to a t t e n d a training meeting from October 4 to October 9. The other witness was s c h e d u le d to testify in another trial on October 6. The government acknowledged t h a t this witness had been subpoenaed in Fisher's case first. Thus, the g o v e r n m e n t told the district court, "It is believed that . . . he will have to appear p u r s u a n t [to the subpoena in Fisher's case] before honoring any other subpoena s u b s e q u e n t ly served for the same time period." The government explained that, in light of these conflicts, it had scheduled both witnesses to testify on October 2 ; "[h]owever, there are witnesses who must testify [to establish chain of c u s t o d y ] before these chemists and we are not confident that the chemists will a c t u a lly testify on Friday[, October 2]."1 W h e n the district court reconvened on October 1, it explained that, on S e p t e m b e r 30, co-defendant Melvin Alexander had begun displaying bizarre

The district court attached this e-mail as Exhibit D to its denial of Fisher's motion to dismiss the indictment.

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No. 10-30424 b e h a v io r . Given this development, the court initially severed Alexander from the c a s e so that the trial could proceed as to Fisher on October 2, while Alexander r e c e iv e d a competency evaluation. The court observed that all were ready to p r o c e e d to trial the next day and the jury was already empaneled. The court a lt e r e d this ruling, however, when the government objected. The government c la im e d that, because of the one-day delay caused by Alexander's condition along w it h Fisher's refusal to stipulate to the chain of custody of the seized narcotics a n d the reports of its two chemist witnesses, it "is not able to logistically get two fo r e n s ic chemists to testify timely enough in this matter." The government a d d e d , "One, the DEA chemist is going to a trial in Virginia which is, as I m e n tio n e d before, a rocket docket case that they can't get a continuance on. The o t h e r is to attend a seminar conference that has impact on the laboratory's c o n t in u e d certification." A lt h o u g h Fisher's counsel initially joined this objection to the severance, h e withdrew his objection after conferring with Fisher, who wanted to "have his d a y in court." The court did not inquire about the scheduling conflicts of the

witnesses or explore ways to reconcile those conflicts with the trial schedule. Instead, the court then told Fisher that it could not go forward with his trial, "unless [he is] willing to stipulate to the reports of the chemists and the aspect of chain of custody that they would testify to." Fisher declined to stipulate to the chain of custody and the reports. The court then stated that it would grant a continuance and defer its decision on severing Alexander until it had received his competency evaluation. Fisher's counsel objected, stressing that he was ready for trial and that his client wanted to proceed immediately. The court overruled the objection and granted a continuance of over seven months. Given

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the length of the continuance, the court declared a mistrial sua sponte. The court explained that "the mistrial was not necessitated in any way by the government's action in any fashion nor by any defendant's intentional act. It was necessitated by the situation with Mr. Alexander's mental health." Fisher then moved to dismiss the indictment on double-jeopardy grounds. In opposition, the government argued that the need to evaluate Alexander's mental health justified the mistrial and that Fisher had impliedly consented to the mistrial by failing to sufficiently object. The magistrate judge issued a Report and Recommendation denying the motion, finding that Alexander's condition justified the mistrial. The magistrate judge also found that the district court had allowed Fisher "a full right to be heard" on the propriety of the mistrial, "and, in fact, counsel requested that the trial proceed." The district court adopted the Report and Recommendation in its entirety, but added that Fisher's unfounded allegations of discovery abuse against the government also contributed to the need to declare a mistrial. In a separate ruling, the district court specifically found that Fisher's counsel had objected to the mistrial. Fisher timely appealed. He also requested a writ of mandamus to stay his reprosecution pending the outcome of this appeal of the denial of his motion to dismiss the indictment. This court granted the writ because, [a]fter reviewing the transcript of the exchange between the court and counsel between September 28, 2009 and October 1, 2009, and considering the briefs of counsel, the court concludes that: 1) Defendant Darius Fisher has a colorable claim that the mistrial the court declared on October 1, 2009, was not manifestly necessary; and 2) Fisher has a colorable claim that the he did not impliedly consent to the grant of the mistrial.

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No. 10-30424 II.

We first address whether Fisher impliedly consented to the mistrial by failing to sufficiently object. "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. Palmer, 122 F.3d 215, 218 (5th Cir. 1997) (citation omitted). This is not a bright-line rule; it is a case-by-case determination. Our guiding standard for these determinations is whether the objection gave the court the opportunity to consider and resolve the concern. See Puckett v. United States, 129 S. Ct. 1423, 1428 (2009) (explaining that the purpose of timely objections is to "give[] the district court the opportunity to consider and resolve them"); United States v. Williams, 985 F.2d 749, 755 (5th Cir. 1993) ("In determining the sufficiency of objections we apply the general principle that an objection which is ample and timely to bring the alleged . . . error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to . . . preserve the claim for review." (internal quotation marks and citations omitted) (ellipses in original)). Here, the very judge who presided over the hearing found that Fisher had sufficiently objected: "Prior to declaring a mistrial, the Court provided all counsel with the opportunity to make any suggestions or objections and place any argument on the record they wished--only counsel for Darius Fisher did." We see no basis to disregard the judge's written finding, based on her firsthand observations that Fisher had given her a sufficient opportunity to consider his opposition to the mistrial. Accordingly, we hold that there was no implied consent to the mistrial. Thus,

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No. 10-30424 w e must determine whether the Double Jeopardy Clause of the Fifth Amendm e n t permits the reprosecution of Fisher. The Double Jeopardy Clause states, in relevant part, "[N]or shall any p e r s o n be subject for the same offence to be twice put in jeopardy of life or limb . . . ." U.S. Const. amend. V. When a defendant does not consent to a mistrial, the C la u s e permits reprosecution only if there was manifest necessity for the m is t r ia l. See Arizona v. Washington, 434 U.S. 497, 505 (1978). "Manifest n e c e s s it y does not mean absolute necessity that a judge declare a mistrial; we a s s u m e that there are degrees of necessity and we require a high degree before c o n c lu d in g that a mistrial is appropriate." Cherry v. Dir., State Bd. of Corr., 635 F .2 d 414, 418 (5th Cir. 1981) (en banc) (citing Washington, 434 U.S. at 506) (in t e r n a l quotation marks omitted). Our determination of manifest necessity is n o t cabined by the explanations that the trial court has explicitly set forth. See W a s h in g to n , 434 U.S. at 516-17. Rather, the court is free to scrutinize the entire r e c o r d . See United States v. Bauman, 887 F.2d 546, 550 (5th Cir. 1989). The p r o s e c u t o r shoulders the heavy burden of demonstrating manifest necessity. W a s h in g to n , 434 U.S. at 505. Over three decades ago, the Supreme Court explained that the standard o f review in such cases is not static, but rather, it varies depending on the cause o f the mistrial. See id. at 507-08. At one end of the spectrum, broad deference is a p p r o p r ia te for jury-bias cases because the trial judge is best positioned to assess t h e relevant considerations. Id. at 513-14. For the same reason, appellate courts m u s t confer broad discretion in cases involving potentially deadlocked juries. Id. a t 509; see also Renico v. Lett, 130 S. Ct. 1855, 1863 (2010). Another reason for t h is highly deferential standard is the concern that, "[i]n the absence of such

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No. 10-30424 d e fe r e n c e , trial judges might otherwise `employ coercive means to break the a p p a r e n t deadlock,' thereby creating a `significant risk that a verdict may result fr o m pressures inherent in the situation rather than the considered judgment o f all the jurors.'" Id. (citing Washington, 434 U.S. at 509-10). At the other end o f the spectrum, "strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence." Washington, 434 U.S. at 5 0 8 (footnote omitted); cf. Cherry, 635 F.2d at 418-19 n.6 (citations omitted) (r e c o g n iz in g that the standard of review can vary from the "highest degree of r e s p e c t " to the "strictest scrutiny" depending on the reason for the mistrial (in t e r n a l quotation marks and citations omitted)). Thus, our first task is to d e t e r m in e the correct standard of review by identifying the cause of the mistrial. S e e United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc) (e x p la in in g that the court, not the parties, determines the correct standard of r e v ie w ). H e r e , the basis for the mistrial was the unavailability of the two g o v e r n m e n t witnesses. This was a two-week trial that began on September 28 a t 9:30 a.m. The court empaneled and then dismissed the jury at 4 p.m on that d a y . Next, the court granted, without objection from the government, a two-day c o n t in u a n c e so that Fisher's counsel could review discovery that the government h a d produced, but mislabeled. Alexander's condition, which came to light on S e p t e m b e r 30, would have delayed the trial only one additional day, because the c o u r t had initially severed Alexander's trial and scheduled Fisher's trial to c o m m e n c e on October 2 at 9:30 a.m. Indeed, the court emphasized its readiness t o proceed: "[S]o the record will be clear, that we already have a jury empaneled a n d we are scheduled to go forward. The jury would be coming back tomorrow.

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No. 10-30424 S o the record needs to be clear that all stood ready to go to trial. We have picked t h e jury. We have the jury empaneled. They are capable of coming back t o m o r r o w ." In short, the discovery issue and Alexander's condition delayed the t r ia l only three days: the former pushed opening statements from September 29 t o October 1, and the latter would have added just one more day, because the d is t r ic t court had initially severed Alexander's trial and scheduled opening s t a t e m e n t s for October 2. The court's willingness to proceed with the trial on O c t o b e r 2 demonstrates that it did not view Alexander's condition as warranting a mistrial.2 T h e October 1 hearing transcript, the Report and Recommendation, and t h e district court's denial of Fisher's motion to dismiss all demonstrate that the a c t u a l basis for the mistrial was the government's complaint that the three-day d e la y , coupled with Fisher's refusal to stipulate to the reports of the two w it n e s s e s and to the chain of custody of the seized narcotics, caused its witnesses t o be unavailable. The transcript shows that, before the government complained a b o u t its witnesses' scheduling conflicts, the court had already severed A le x a n d e r 's trial and wished to proceed with Fisher's trial on October 2. The R e p o r t and Recommendation, which the district court adopted in its entirety, sta tes that Alexander's sudden behavioral developments delayed the trial so that " [b ]y the time the court considered whether or not to sever the Fisher's trial from t h a t of his co-defendants, essential government witnesses were no longer a v a ila b le to testify if the trial w[ere] to commence." The district court's denial of F is h e r 's motion to dismiss notes that the delays caused by Alexander's condition

This record evidence also belies the government's claim that Alexander's condition and the discovery issue contributed to the need to declare a mistrial.

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No. 10-30424 a n d the discovery issue "divested the government of its ability to have witnesses a v a ila b le at the now, yet again, delayed trial." In sum, the record shows that, but fo r the government's concern about its witnesses' scheduling conflicts, the court w o u ld not have declared a mistrial. In addition, the district court refers to the w it n e s s e s as "essential," which no one disputes. Thus, because the basis for the m is t r ia l was "the unavailability of critical prosecution evidence," the district c o u r t's decision is subject to "the strictest scrutiny." Washington, 434 U.S. at 508. T h e government contends that strictest scrutiny does not apply and urges u s to apply the highly deferential standard of review that we set forth in United S ta te s v. Bauman, 887 F.2d 546, 549 (5th Cir. 1989). Bauman, however, is in a p p o s it e , because the basis for that mistrial was potential jury bias. See id. at 5 4 8 -4 9 . Thus, in accordance with Washington, this court properly applied the h ig h ly deferential standard of review. See id. at 549-50. We further note that, w h e n asked at oral argument, the government could not identify precedent from a n y circuit applying the highly deferential standard of review in an unavailableg o v e r n m e n t -w it n e s s case. Neither can we. In fact, our research reveals that the S e c o n d , Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits h a v e recognized that strictest scrutiny applies in such cases, and we have not fo u n d any contrary authority. See Baum v. Rushton, 572 F.3d 198, 210 (4th Cir. 2 0 0 9 ); Walck v. Edmondson, 472 F.3d 1227, 1239-40 (10th Cir. 2007); United S ta te s v. Rivera, 384 F.3d 49, 56 (3d Cir. 2004); United States v. Berroa, 374 F.3d 1 0 5 3 , 1057 (11th Cir. 2004); United States v. Stevens, 177 F.3d 579, 584 (6th Cir. 1 9 9 9 ); United States v. Millan, 17 F.3d 14, 20 n.5 (2d Cir. 1994); Shaw v. Norris, 3 3 F.3d 958, 961 (8th Cir. 1994); Camden v. Circuit Court of Second Judicial

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No. 10-30424 C ir c u it, Crawford Cnty., 892 F.2d 610, 614 n.5 (7th Cir. 1989). A t oral argument, we also asked the government whether, under W a s h in g to n , "strict[est] scrutiny" applies in cases involving the unavailability o f a government witness. The government filed a letter, pursuant to Federal R u le of Appellate Procedure 28(j), directing us to a case that purportedly a d d r e s s e s this question: C h e r r y v. Director, State Bd. Corrections, 635 F.2d 414, 419 n.6 (5th C ir . 1981) (citing Arizona v. Washington, 434 U.S. 497, 508 (1978) fo r the proposition that "[t]he trial judge's disposition, however, s h o u ld be given the `strictest scrutiny' when the prosecutor brings a b o u t the mistrial in bad faith or for tactical reasons"). W h a t the government fails to mention, however, is that Washington, on the very p a g e that the government identifies, also states, "Thus, the strictest scrutiny is a p p r o p r ia te when the basis for the mistrial is the unavailability of critical p r o s e c u t io n evidence . . . ." 434 U.S. at 508 (footnote omitted). This omission is o d d , to say the least, given that we explicitly directed our question at g o v e r n m e n t -w it n e s s unavailability, which was the reason for this mistrial. H a v in g established that the appropriate standard of review is strictest s c r u t in y , we now turn to what this standard requires. Although it does not a p p e a r that this court has had the opportunity to apply this standard since W a s h in g to n , we did confront a similar issue five years earlier, in McNeal v. H o llo w e ll, 481 F.2d 1145 (5th Cir. 1973). There, the trial court declared a m is t r ia l because a co-indictee had invoked his privilege against self-incriminat io n , thereby depriving the prosecution of key testimony. Id. at 1151. This court h e ld that there was no manifest necessity for two reasons. First, the court found t h a t the trial judge "made no investigation into the reasons behind the p r o s e c u t o r 's request [for a mistrial]." Id. at 1152 (citing United States v. Jorn, 10

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No. 10-30424 4 0 0 U.S. 470, 487 (1971) (footnote omitted)). According to the court, this violated t h e requirement that, "prior to granting or denying a motion for a mistrial," the t r ia l court "should make a painstaking examination of all the facts and c ir c u m s t a n c e s that underlie the request." Id. at 1152. "Only after such a careful in v e s t ig a t io n can a trial judge properly exercise his discretion [to declare a m is t r ia l]." Id. (citations omitted). Second, the court found that the prosecution h a d contributed to the need for declaring a mistrial by proceeding with jury e m p a n e lm e n t knowing that there was a risk that the co-indictee would not t e s t ify . Id. at 1151-52. These considerations are consistent with the Supreme Court's decisions in Jorn and Downum v. United States, 372 U.S. 734 (1963), which Washington

cited when setting forth the strictest-scrutiny standard. See Arizona v. Washington, 434 U.S. 497, 508 nn.24-25 (1978). In Jorn, the Court barred reprosecution because the trial judge had not properly determined whether there was manifest necessity. See 400 U.S. at 487. In Downum, the Court barred reprosecution because "[t]he prosecution allowed the jury to be selected
a n d sworn even though one of its key witnesses was absent and had not been fo u n d ." 372 U.S. at 735.

In addition, the Third and Tenth Circuits have looked to similar considerations when applying the strictest-scrutiny standard. In United States
v . Rivera, the Third Circuit held that the Double Jeopardy Clause barred r e p r o s e c u tio n because the district court did not carefully consider reasonable a lt e r n a t i v e s to a mistrial. See 384 F.3d 49, 56, 58 (3d Cir. 2004) ("Critically, a m is t r ia l must not be declared without prudent consideration of reasonable a lt e r n a t iv e s ." (citations omitted)). There, the key prosecution witness was

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No. 10-30424 u n a v a ila b le due to health issues. See id. at 52. The government suggested to the c o u r t that, before declaring a mistrial, the court should wait for the prognosis in o r d e r to determine when the witness will be available. See id. at 52-53. The trial c o u r t rejected this option and declared a mistrial because the delay might have c a u s e d a conflict with another trial on its docket. See id. at 56. The Third Circuit fo u n d no manifest necessity, explaining that "[s]cheduling considerations . . . do n o t outweigh the Court's duty to protect the defendants' constitutional right to b e required to stand trial only once and are, by themselves, insufficient to s u p p o r t the declaration of a mistrial." See id. at 56 (citing Jorn, 400 U.S. at 4 7 9 -8 0 ). Furthermore, the Third Circuit found that the trial court had failed to p r o p e r ly consider a reasonable alternative--determining the witness's

u n a v a ila b ilit y before declaring a mistrial. See id. at 57. The court also emphas iz e d , "The Government bears the burden of demonstrating that, `under the c ir c u m s t a n c e s confronting the trial judge, he had no alternative to the d e c la r a tio n of a mistrial.'" Id. at 56. I n Walck v. Edmondson, the trial court declared a mistrial over the d e fe n d a n t 's objection when a key government witness went into labor. See 472 F .3 d 1227, 1238-40 (10th Cir. 2007). The Tenth Circuit explained, T h is case, then, is analogous to Downum, where the prosecutor k n e w that the government's key witness had not been located but n o n e t h e le s s allowed a jury to be selected and sworn. See 372 U.S. at 7 3 5 , 83 S. Ct. 1033. The prosecutor here, like the prosecutor in D o w n u m , proceeded in the face of a great risk of unavailability. D e s p ite this great risk, the prosecution pushed on, and thus there w a s no manifest necessity. I d . at 1239. According to the court, the trial judge should have "considered r e a d i n g Ms. Moore's preliminary hearing testimony to the jury or, in the

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No. 10-30424 a lt e r n a t iv e , granting a continuance until Ms. Moore was available as a witness." I d . at 1240. The court held, "Because the trial judge did not consider the fo r e g o in g viable alternatives, manifest necessity did not require a mistrial." Id. I n light of this precedent, we conclude that strictest scrutiny requires the g o v e r n m e n t to show that the district court carefully considered whether r e a s o n a b le alternatives existed and that the court found none. This follows our b in d in g precedent in McNeal v. Hollowell, which requires that, "prior to granting o r denying a motion for a mistrial," a trial judge "should make a painstaking e x a m in a t io n of all the facts and circumstances that underlie the request." 481 F .2 d 1145, 1152 (5th Cir. 1973). A painstaking examination of all relevant facts a n d circumstances naturally encompasses at least a careful consideration of any r e a s o n a b le alternative to a mistrial. This requirement is also consistent with the a p p r o a c h e s of the Third Circuit (requiring "no alternative to the declaration of a mistrial") and the Tenth Circuit (holding that trial judges must "sufficiently c o n s id e r the viable and reasonable alternatives to a mistrial"). T h e government has not shown--nor does the record show--that the d is t r ic t court carefully considered reasonable alternatives before declaring a m is t r ia l. As explained, the basis for this mistrial boils down to the scheduling c o n flic ts of the government's witnesses, not Alexander's condition or the d is c o v e r y issue. Specifically, the government explained that one witness was a t t e n d in g a quality-assurance meeting, from October 4 to October 9, that "has im p a c t " on her laboratory's certification. The other was scheduled to testify at a n o t h e r trial on October 6. The government argued that there would not be e n o u g h time for these witnesses to testify on October 2 because Fisher would not s t ip u la t e to the chain of custody of the seized narcotics and to the admissibility

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No. 10-30424 o f their reports. The district court accepted these representations without question, and it d id not explore readily apparent ways to resolve the scheduling conflicts. The c o u r t should have asked questions: For example, how does attendance at a q u a lit y -a s s u r an ce meeting that "has impact" on the certification of that witness's la b o r a t o r y trump the court's subpoena and Fisher's double-jeopardy right? Is t h e r e anyone else who can testify or attend the meeting in her place? Can she a t t e n d the meeting at another time? How long would the chain-of-custody t e stim on y take? Would Fisher be willing to allow the government to present such t e s t im o n y out of order? Moreover, the witness's schedule suggested a reasonable a lt e r n a t iv e to a mistrial: she could testify on Monday, October 12, right before F is h e r would have begun his case.3 By that point, the government could have a lr e a d y presented the necessary authentication testimony, and the only delay t o the trial schedule would have been the time needed for this witness's e x a m in a t io n . The district court did not even inquire about this possibility, and t h e r e is nothing in the record showing that it would have been unworkable. F r o m the record, it also does not appear that the district court should have d e c la r e d a mistrial because of the other witness's scheduling conflict. That is b e c a u s e the government had told the court, in its September 30 e-mail, that the w it n e s s must testify in this case before honoring the subpoena in the other case. W e do not see how an admittedly subordinate subpoena outweighed Fisher's c o n s t it u t io n a l right to be free from being "subject for the same offense to be twice p u t in jeopardy . . . ." U.S. Const. amend. V. The district court did not ask the
At oral argument, the government explained that, had the trial continued on October 2, its case-in-chief would have lasted from October 5 to October 9, and the remainder of the case would have taken the following week.
3

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No. 10-30424 g o v e r n m e n t about this. Furthermore, the court did not inquire whether anyone c o u ld testify in his stead in either case. Finally, as with the other witness, this w it n e s s 's scheduling conflict also presented a reasonable alternative to a m is t r ia l: because he was scheduled to testify on October 6 in the other case, he c o u ld have testified at Fisher's trial on any of the other four days during the w e e k of October 5. Again, the district court did not explore this alternative, and t h e government has failed to point to anything in the record showing that it w o u ld have been unworkable. W h a t is particularly striking here is that, instead of assessing the g o v e r n m e n t 's claim of witness unavailability and exploring ways to resolve the s c h e d u lin g conflicts, the district court immediately turned to Fisher's attorney a n d said, S o unless, Mr. McCorvey, you were willing to stipulate to the r e p o r t s of those chemists and the aspect of the chain of custody that t h e y would testify to, then notwithstanding your having withdrawn y o u r objection to [Alexander] being severed, then I cannot go fo r w a r d with your client's trial because the government cannot get t h e ir witnesses here because of, first, this first set of delays that I a llo w e d on Friday in order to allow you to get caught up on the m a t e r ia ls that there was the confusion as to their existence, and n o w because of the delay because of Mr. Alexander's mental c o n d itio n . F is h e r 's attorney declined to stipulate, as was his right. Surprisingly, the district c o u r t claims that this was one of the causes of the mistrial: "the mistrial was s e r io u s ly influenced [in part] by . . . [the attorney's] refusal to stipulate to the t e s t im o n y of the two chemists . . . . Had counsel for Darius Fisher wished to a v o id this result, his counsel could have agreed to stipulate to the chemists' r e p o r t s ." Similarly, the Report and Recommendation also states, "This

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Case: 10-30424 Document: 00511274205 Page: 16 Date Filed: 10/26/2010

No. 10-30424 im p e d im e n t [(witness unavailability)] to Fisher proceeding to trial immediately c o u ld have been removed by simple stipulation. That stipulation was refused." T h is is wrong. Fisher's decision to exercise his right to cross-examine chain-ofc u s t o d y witnesses and experts should not influence--seriously or otherwise--a c o u r t's decision to declare a mistrial. I n short, the district court declared a mistrial because of the scheduling c o n flic ts of the government's witnesses, and we agree with the Third Circuit that " [s ]c h e d u lin g considerations . . . do not outweigh the Court's duty to protect the d e fe n d a n t s ' constitutional right to be required to stand trial only once and are, b y themselves, insufficient to support the declaration of a mistrial." United S ta te s v. Rivera, 384 F.3d 49, 56 (3d Cir. 2004) (citing United States v. Jorn, 400 U .S . 470, 479-80 (1971)). The district court's duty to protect Fisher's doubleje o p a r d y right required it to carefully consider reasonable ways to resolve the s c h e d u lin g conflicts, something our trial courts routinely do. Nothing in the r e c o r d , however, shows that the district court did so here. Thus, we hold that t h e r e was no manifest necessity.4 III. B e c a u s e Fisher did not impliedly consent to the mistrial and because the district c o u r t did not carefully consider reasonable alternatives to a mistrial, we R E V E R S E the denial of Fisher's motion to dismiss the indictment and we render a judgment of dismissal.

In light of this holding, we do not address any other considerations for strictestscrutiny review under the Double Jeopardy Clause. See Lyng v. Nw. Indian Cemetery Protective Ass'n., 485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them" (citations omitted)).

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