IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30424

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARIUS NATHANIEL FISHER,

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.

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2010

Lyle W. Cayce

Clerk

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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

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

The district court attached this e-mail as Exhibit D to its denial of Fisher’s motion to 1

dismiss the indictment.

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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

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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 thatthe 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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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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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 (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 Corr., 635

F.2d 414, 418 (5th Cir. 1981) (en banc) (citing Washington, 434 U.S. at 506)

(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. 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.

Over three decades ago, the Supreme Court explained that the standard

of review in such cases is not static, but rather, it varies depending on the cause

of the mistrial. See id. at 507-08. At one end of the spectrum, broad deference is

appropriate for jury-bias cases because the trial judge is best positioned to assess

the relevant considerations. Id. at 513-14. For the same reason, appellate courts

must confer broad discretion in cases involving potentially deadlocked juries. Id.

at 509; see also Renico v. Lett, 130 S. Ct. 1855, 1863 (2010). Another reason for

this highly deferential standard is the concern that, “[i]n the absence of such

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deference, trial judges might otherwise ‘employ coercive means to break the

apparent deadlock,’ thereby creating a ‘significant risk that a verdict may result

from pressures inherent in the situation rather than the considered judgment

of all the jurors.’” Id. (citing Washington, 434 U.S. at 509-10). At the other end

of the spectrum, “strictest scrutiny is appropriate when the basis for the mistrial

is the unavailability of critical prosecution evidence.” Washington, 434 U.S. at

508 (footnote omitted); cf. Cherry, 635 F.2d at 418-19 n.6 (citations omitted)

(recognizing that the standard of review can vary from the “highest degree of

respect” to the “strictest scrutiny” depending on the reason for the mistrial

(internal quotation marks and citations omitted)). Thus, our first task is to

determine the correct standard of review by identifying the cause of the mistrial.

See United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc)

(explaining that the court, not the parties, determines the correct standard of

review).

Here, the basis for the mistrial was the unavailability of the two

government witnesses. This was a two-week trial that began on September 28

at 9:30 a.m. The court empaneled and then dismissed the jury at 4 p.m on that

day. Next, the court granted, without objection from the government, a two-day

continuance so that Fisher’s counsel could review discovery that the government

had produced, but mislabeled. Alexander’s condition, which came to light on

September 30, would have delayed the trial only one additional day, because the

court had initially severed Alexander’s trial and scheduled Fisher’s trial to

commence on October 2 at 9:30 a.m. Indeed, the court emphasized its readiness

to proceed: “[S]o the record will be clear, that we already have a jury empaneled

and we are scheduled to go forward. The jury would be coming back tomorrow.

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So the record needs to be clear that all stood ready to go to trial. We have picked

the jury. We have the jury empaneled. They are capable of coming back

tomorrow.” In short, the discovery issue and Alexander’s condition delayed the

trial only three days: the former pushed opening statements from September 29

to October 1, and the latter would have added just one more day, because the

district court had initially severed Alexander’s trial and scheduled opening

statements for October 2. The court’s willingness to proceed with the trial on

October 2 demonstrates that it did not view Alexander’s condition as warranting

a mistrial.

2

The October 1 hearing transcript, the Report and Recommendation, and

the district court’s denial of Fisher’s motion to dismiss all demonstrate that the

actual basis for the mistrial was the government’s complaint that the three-day

delay, coupled with Fisher’s refusal to stipulate to the reports of the two

witnesses and to the chain of custody of the seized narcotics, caused its witnesses

to be unavailable. The transcript shows that, before the government complained

about its witnesses’ scheduling conflicts, the court had already severed

Alexander’s trial and wished to proceed with Fisher’s trial on October 2. The

Report and Recommendation, which the district court adopted in its entirety,

states 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

that of his co-defendants, essential government witnesses were no longer

available to testify if the trial w[ere] to commence.” The district court’s denial of

Fisher’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 conditionand

2

the discovery issue contributed to the need to declare a mistrial.

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and the discovery issue “divested the government of its ability to have witnesses

available at the now, yet again, delayed trial.” In sum, the record shows that, but

for the government’s concern about its witnesses’ scheduling conflicts, the court

would not have declared a mistrial. In addition, the district court refers to the

witnesses as “essential,” which no one disputes. Thus, because the basis for the

mistrial was “the unavailability of critical prosecution evidence,” the district

court’s decision is subject to “the strictest scrutiny.” Washington, 434 U.S. at

508.

The government contends that strictest scrutiny does not apply and urges

us to apply the highly deferential standard of review that we set forth in United

States v. Bauman, 887 F.2d 546, 549 (5th Cir. 1989). Bauman, however, is

inapposite, because the basis for that mistrial was potential jury bias. See id. at

548-49. Thus, in accordance with Washington, this court properly applied the

highly deferential standard of review. See id. at 549-50. We further note that,

when asked at oral argument, the government could not identify precedent from

any circuit applying the highly deferential standard of review in an unavailablegovernment-witness case. Neither can we. In fact, our research reveals that the

Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits

have recognized that strictest scrutiny applies in such cases, and we have not

found any contrary authority. See Baum v. Rushton, 572 F.3d 198, 210 (4th Cir.

2009); Walck v. Edmondson, 472 F.3d 1227, 1239-40 (10th Cir. 2007); United

States v. Rivera, 384 F.3d 49, 56 (3d Cir. 2004); United States v. Berroa, 374 F.3d

1053, 1057 (11th Cir. 2004); United States v. Stevens, 177 F.3d 579, 584 (6th Cir.

1999); United States v. Millan, 17 F.3d 14, 20 n.5 (2d Cir. 1994); Shaw v. Norris,

33 F.3d 958, 961 (8th Cir. 1994); Camden v. Circuit Court of Second Judicial

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Circuit, Crawford Cnty., 892 F.2d 610, 614 n.5 (7th Cir. 1989).

At oral argument, we also asked the government whether, under

Washington, “strict[est] scrutiny” applies in cases involving the unavailability

of a government witness. The government filed a letter, pursuant to Federal

Rule of Appellate Procedure 28(j), directing us to a case that purportedly

addresses this question:

Cherry v. Director, State Bd. Corrections, 635 F.2d 414, 419 n.6 (5th

Cir. 1981) (citing Arizona v. Washington, 434 U.S. 497, 508 (1978)

for the proposition that “[t]he trial judge’s disposition, however,

should be given the ‘strictest scrutiny’ when the prosecutor brings

about the mistrial in bad faith or for tactical reasons”).

What the government fails to mention, however, is that Washington, on the very

page that the government identifies, also states, “Thus, the strictest scrutiny is

appropriate when the basis for the mistrial is the unavailability of critical

prosecution evidence . . . .” 434 U.S. at 508 (footnote omitted). This omission is

odd, to say the least, given that we explicitly directed our question at

government-witness unavailability, which was the reason for this mistrial.

Having established that the appropriate standard of review is strictest

scrutiny, we now turn to what this standard requires. Although it does not

appear that this court has had the opportunity to apply this standard since

Washington, we did confront a similar issue five years earlier, in McNeal v.

Hollowell, 481 F.2d 1145 (5th Cir. 1973). There, the trial court declared a

mistrial because a co-indictee had invoked his privilege against self-incrimination, thereby depriving the prosecution of key testimony. Id. at 1151. This court

held that there was no manifest necessity for two reasons. First, the court found

that the trial judge “made no investigation into the reasons behind the

prosecutor’s request [for a mistrial].” Id. at 1152 (citing United States v. Jorn,

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400 U.S. 470, 487 (1971) (footnote omitted)). According to the court, this violated

the requirement that, “prior to granting or denying a motion for a mistrial,” the

trial court “should make a painstaking examination of all the facts and

circumstances that underlie the request.” Id. at 1152. “Only after such a careful

investigation can a trial judge properly exercise his discretion [to declare a

mistrial].” Id. (citations omitted). Second, the court found that the prosecution

had contributed to the need for declaring a mistrial by proceeding with jury

empanelment knowing that there was a risk that the co-indictee would not

testify. 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

and sworn even though one of its key witnesses was absent and had not been

found.” 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

reprosecution because the district court did not carefully consider reasonable

alternatives to a mistrial. See 384 F.3d 49, 56, 58 (3d Cir. 2004) (“Critically, a

mistrial must not be declared without prudent consideration of reasonable

alternatives.” (citations omitted)). There, the key prosecution witness was

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unavailable due to health issues. See id. at 52. The government suggested to the

court that, before declaring a mistrial, the court should wait for the prognosis in

order to determine when the witness will be available. See id. at 52-53. The trial

court rejected this option and declared a mistrial because the delay might have

caused a conflict with another trial on its docket. See id. at 56. The Third Circuit

found no manifest necessity, explaining that “[s]cheduling considerations . . . do

not outweigh the Court’s duty to protect the defendants’ constitutional right to

be required to stand trial only once and are, by themselves, insufficient to

support the declaration of a mistrial.” See id. at 56 (citing Jorn, 400 U.S. at

479-80). Furthermore, the Third Circuit found that the trial court had failed to

properly consider a reasonable alternative—determining the witness’s

unavailability before declaring a mistrial. See id. at 57. The court also emphasized, “The Government bears the burden of demonstrating that, ‘under the

circumstances confronting the trial judge, he had no alternative to the

declaration of a mistrial.’” Id. at 56.

In Walck v. Edmondson, the trial court declared a mistrial over the

defendant’s objection when a key government witness went into labor. See 472

F.3d 1227, 1238-40 (10th Cir. 2007). The Tenth Circuit explained,

This case, then, is analogous to Downum, where the prosecutor

knew that the government’s key witness had not been located but

nonetheless allowed a jury to be selected and sworn. See 372 U.S. at

735, 83 S. Ct. 1033. The prosecutor here, like the prosecutor in

Downum, proceeded in the face of a great risk of unavailability.

Despite this great risk, the prosecution pushed on, and thus there

was no manifest necessity.

Id. at 1239. According to the court, the trial judge should have “considered

reading Ms. Moore’s preliminary hearing testimony to the jury or, in the

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alternative, granting a continuance until Ms. Moore was available as a witness.”

Id. at 1240. The court held, “Because the trial judge did not consider the

foregoing viable alternatives, manifest necessity did not require a mistrial.” Id.

In light of this precedent, we conclude that strictest scrutiny requires the

government to show that the district court carefully considered whether

reasonable alternatives existed and that the court found none. This follows our

binding precedent in McNeal v. Hollowell, which requires that, “prior to granting

or denying a motion for a mistrial,” a trial judge “should make a painstaking

examination of all the facts and circumstances that underlie the request.” 481

F.2d 1145, 1152 (5th Cir. 1973). A painstaking examination of all relevant facts

and circumstances naturally encompasses at least a careful consideration of any

reasonable alternative to a mistrial. This requirement is also consistent with the

approaches of the Third Circuit (requiring “no alternative to the declaration of

a mistrial”) and the Tenth Circuit (holding that trial judges must “sufficiently

consider the viable and reasonable alternatives to a mistrial”).

The government has not shown—nor does the record show—that the

district court carefully considered reasonable alternatives before declaring a

mistrial. As explained, the basis for this mistrial boils down to the scheduling

conflicts of the government’s witnesses, not Alexander’s condition or the

discovery issue. Specifically, the government explained that one witness was

attending a quality-assurance meeting, from October 4 to October 9, that “has

impact” on her laboratory’s certification. The other was scheduled to testify at

another trial on October 6. The government argued that there would not be

enough time for these witnesses to testify on October 2 because Fisher would not

stipulate to the chain of custody of the seized narcotics and to the admissibility

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of their reports.

The district court accepted these representations without question, and it

did not explore readily apparent ways to resolve the scheduling conflicts. The

court should have asked questions: For example, how does attendance at a

quality-assurance meeting that “has impact” on the certification of that witness’s

laboratory trump the court’s subpoena and Fisher’s double-jeopardy right? Is

there anyone else who can testify or attend the meeting in her place? Can she

attend the meeting at another time? How long would the chain-of-custody

testimony take? Would Fisher be willing to allow the government to present such

testimony out of order? Moreover, the witness’s schedule suggested a reasonable

alternative to a mistrial: she could testify on Monday, October 12, right before

Fisher would have begun his case. By that point, the government could have

3

already presented the necessary authentication testimony, and the only delay

to the trial schedule would have been the time needed for this witness’s

examination. The district court did not even inquire about this possibility, and

there is nothing in the record showing that it would have been unworkable.

From the record, it also does not appear that the district court should have

declared a mistrial because of the other witness’s scheduling conflict. That is

because the government had told the court, in its September 30 e-mail, that the

witness must testify in this case before honoring the subpoena in the other case.

We do not see how an admittedly subordinate subpoena outweighed Fisher’s

constitutional right to be free from being “subject for the same offense to be twice

put 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

3

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.

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government about this. Furthermore, the court did not inquire whether anyone

could testify in his stead in either case. Finally, as with the other witness, this

witness’s scheduling conflict also presented a reasonable alternative to a

mistrial: because he was scheduled to testify on October 6 in the other case, he

could have testified at Fisher’s trial on any of the other four days during the

week of October 5. Again, the district court did not explore this alternative, and

the government has failed to point to anything in the record showing that it

would have been unworkable.

What is particularly striking here is that, instead of assessing the

government’s claim of witness unavailability and exploring ways to resolve the

scheduling conflicts, the district court immediately turned to Fisher’s attorney

and said,

So unless, Mr. McCorvey, you were willing to stipulate to the

reports of those chemists and the aspect of the chain of custody that

they would testify to, then notwithstanding your having withdrawn

your objection to [Alexander] being severed, then I cannot go

forward with your client’s trial because the government cannot get

their witnesses here because of, first, this first set of delays that I

allowed on Friday in order to allow you to get caught up on the

materials that there was the confusion as to their existence, and

now because of the delay because of Mr. Alexander’s mental

condition.

Fisher’s attorney declined to stipulate, as was his right. Surprisingly, the district

court claims that this was one of the causes of the mistrial: “the mistrial was

seriously influenced [in part] by . . . [the attorney’s] refusal to stipulate to the

testimony of the two chemists . . . . Had counsel for Darius Fisher wished to

avoid this result, his counsel could have agreed to stipulate to the chemists’

reports.” Similarly, the Report and Recommendation also states, “This

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impediment [(witness unavailability)] to Fisher proceeding to trial immediately

could have been removed by simple stipulation. That stipulation was refused.”

This is wrong. Fisher’s decision to exercise his right to cross-examine chain-ofcustody witnesses and experts should not influence—seriously or otherwise—a

court’s decision to declare a mistrial.

In short, the district court declared a mistrial because of the scheduling

conflicts of the government’s witnesses, and we agree with the Third Circuit that

“[s]cheduling considerations . . . do not outweigh the Court’s duty to protect the

defendants’ constitutional right to be required to stand trial only once and are,

by themselves, insufficient to support the declaration of a mistrial.” United

States 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 doublejeopardy right required it to carefully consider reasonable ways to resolve the

scheduling conflicts, something our trial courts routinely do. Nothing in the

record, however, shows that the district court did so here. Thus, we hold that

there was no manifest necessity.

4

III.

Because Fisher did not impliedly consent to the mistrial and because the district

court did not carefully consider reasonable alternatives to a mistrial, we

REVERSE 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 strictest- 4

scrutiny 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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