USA v. Fisher

• Decision Date: 26 October 2010
• Docket Number: No. 10-30424.,10-30424.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darius Nathaniel FISHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

624 F.3d 713

UNITED STATES of America, Plaintiff-Appellee,

v.Darius Nathaniel FISHER, Defendant-Appellant.

No. 10-30424.

United States Court of Appeals,Fifth Circuit.

Oct. 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Camille Ann Domingue (argued), Brett L. Grayson, Asst. U.S. Attys., J. Collins Sims, Lafayette, LA, for Plaintiff-Appellee.

Derriel Carlton McCorvey (argued), Law Office of Derriel C. McCorvey, L.L.C., Lafayette, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before SMITH, WIENER, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This appeal arises out of a mistrial that the district court declared sua sponte after two essential prosecution witnesses became unavailable to testify as scheduled. The record demonstrates that there was no manifest necessity for the mistrial. Accordingly, we REVERSE the district court's denial of Fisher's motion to dismiss the indictment on double-jeopardy grounds and we render a judgment 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. 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 was baseless, it nonetheless granted a continuance until Thursday, October 1, 2009 so that Fisher's attorney could review the discovery, which the government had 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 their analyses of the seized drugs. Both the district court and magistrate judge referred to them as “essential witnesses.” One of the witnesses was scheduled to attend a training meeting from October 4 to October 9. The other witness was scheduled to testify in another trial on October 6. The government acknowledged that this witness had been subpoenaed in Fisher's case first. Thus, the government told the district court, “It is believed that ... he will have to appear pursuant [to the subpoena in Fisher's case] before honoring any other subpoena subsequently 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 custody] before these chemists and we are not confident that the chemists will actually testify on Friday[, October 2].” ¹

When the district court reconvened on October 1, it explained that, on September 30, co-defendant Melvin Alexander had begun displaying bizarre behavior. Given this development, the court initially severed Alexander from the case so that the trial could proceed as to Fisher on October 2, while Alexander received a competency evaluation. The court observed that all were ready to proceed to trial the next day and the jury was already empaneled. The court altered this ruling, however, when the government objected. The government claimed that, because of the one-day delay caused by Alexander's condition along with Fisher's refusal to stipulate to the chain of custody of the seized narcotics and the reports of its two chemist witnesses, it “is not able to logistically get two forensic chemists to testify timely enough in this matter.” The government added, “One, the DEA chemist is going to a trial in Virginia which is, as I mentioned before, a rocket docket case that they can't get a continuance on. The other is to attend a seminar conference that has impact on the laboratory's continued certification.”

Although Fisher's counsel initially joined this objection to the severance, he withdrew his objection after conferring with Fisher, who wanted to “have his day 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 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.

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, --- U.S. ----, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (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, we must determine whether the Double Jeopardy Clause of the Fifth Amendment permits the reprosecution of Fisher.

The Double Jeopardy Clause states, in relevant part, “[N]or shall any person 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 Clause permits reprosecution only if there was manifest necessity for the mistrial. See Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). “Manifest necessity does not mean absolute necessity that a judge declare a mistrial; we assume that there are degrees of necessity and we require a high degree before concluding that a mistrial is appropriate.” Cherry v. Dir., State Bd. of Corrs., 635 F.2d 414, 418 (5th Cir.1981) (en banc) (citing Washington, 434 U.S. at 506, 98 S.Ct. 824) (internal quotation marks omitted). Our determination of manifest necessity is not cabined by the explanations that the trial court has explicitly set forth. See Washington, 434 U.S. at 516-17, 98 S.Ct. 824. Rather, the court is free to scrutinize the entire record. See United States v. Bauman, 887 F.2d 546, 550 (5th Cir.1989). The prosecutor shoulders the heavy burden of demonstrating manifest necessity. Washington, 434 U.S. at 505, 98 S.Ct. 824.

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