Manifest Necessity and Retrial After Inadvertent Government Discovery Failures

Introduction

This case—United States v. Breimeister, No. 23-20326 (5th Cir. Apr. 7, 2025)—addresses the question whether the Double Jeopardy Clause bars retrial when a district court sua sponte declares a mistrial mid-trial because of the government’s late disclosures of evidence. The appellant, Scott Breimeister, and four co-defendants were on trial in the Southern District of Texas for a massive healthcare-fraud scheme that allegedly defrauded public and private programs of over $140 million. Five weeks into trial, and after twenty-one government witnesses had testified, the prosecution made a series of belated disclosures of materials favorable to the defense. These revelations tainted nearly a third of the trial record. The district court, finding that no curative instructions could assure a fair verdict, declared a mistrial sua sponte. Breimeister then moved to dismiss the indictment on double jeopardy grounds, arguing (1) that he did not consent to mistrial and (2) that the “manifest necessity” standard was unmet. The district court rejected his motion, he appealed, and the Fifth Circuit affirmed.

Summary of the Judgment

The Fifth Circuit held:

Breimeister impliedly consented to the mistrial by failing to object contemporaneously when the court declared it.
Even if he had objected, the district court did not abuse its discretion in finding “manifest necessity” for a mistrial, given the extent of the government’s mid-trial discovery failures and the unlikelihood that curative measures could ensure a fair verdict.
The Double Jeopardy Clause therefore does not bar retrial.

Analysis

Precedents Cited

United States v. Sarabia, 661 F.3d 225 (5th Cir. 2011): established that interlocutory appeals of denial of double jeopardy motions are permitted when the claim is “colorable.”
Abney v. United States, 431 U.S. 651 (1977): affirmed the same interlocutory-appeal principle.
United States v. Gonzalez, 76 F.3d 1339 (5th Cir. 1996): outlined de novo review of double jeopardy denials and clear-error review of underlying facts.
Grandberry v. Bonner, 653 F.2d 1010 (5th Cir. 1981): described the “manifest necessity” standard and required that trial courts “carefully consider” alternatives before declaring mistrial.
Arizona v. Washington, 434 U.S. 497 (1978): Supreme Court decision on mistrial for unavailability of evidence or governmental misconduct, defining a spectrum of scrutiny.
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011): plenary review of double jeopardy claims post-mistrial and clarified implied consent by failure to object.
United States v. Palmer, 122 F.3d 215 (5th Cir. 1997): held that failure to object contemporaneously implies consent to a mistrial.
Cherry v. Director, State Board of Corrections, 635 F.2d 414 (5th Cir. en banc 1981): distinguished between defendant-requested mistrials and those declared sua sponte; set high deference when mistrial is due to jury deadlock or bias.
Oregon v. Kennedy, 456 U.S. 667 (1982): held that consented mistrials can nevertheless bar retrial if the prosecution intended to goad the defendant into moving for mistrial.
Other supporting authorities: Fisher, Martinez, Singleterry, Wharton, Bauman, Featherston, Perez.

Legal Reasoning

The court’s analysis proceeded in two steps:

Consent to Mistrial:
- If a defendant consents—expressly or by failing to object—to a mistrial, double jeopardy ordinarily does not bar retrial. (Palmer, El-Mezain.)
- Breimeister filed a pre-mistrial motion stating he would consent only if the court found it declared mistrial “solely because of the Government’s misconduct,” but made no contemporaneous objection when the court declared mistrial. The Fifth Circuit held that this anticipatory condition was at best ambiguous as applied to the court’s actions. His silence in court therefore implied consent.
- Even consented mistrials can bar retrial if the prosecution intended to goad the defendant into moving for mistrial (Oregon v. Kennedy), but the court found no such intent here; the government’s discovery failures were unintentional.
Manifest Necessity:
- Where a defendant does not consent, retrial is allowed only if there is manifest necessity for mistrial. (Cherry, Washington.)
- The appropriate standard of review depends on the cause: strictest for withheld evidence or prosecutorial harassment; broadest for juror deadlock. In this case, government discovery lapses occupy a middle ground—no bad-faith harassment, but evidence was unavailable when promised.
- The trial judge spent several days hearing from both sides, considered alternatives (striking testimony, curative instructions, recalling witnesses), and concluded that curative measures would impose an unmanageable burden on the jury. Declaring mistrial sua sponte, the court did not act abruptly or erratically and did not abuse its discretion.

Impact

This decision clarifies two key points in Fifth Circuit jurisprudence:

Implied Consent: A defendant’s failure to contemporaneously object when a court declares mistrial—even if an earlier written motion expressed conditions—will be deemed implied consent unless the written objection unmistakably covers the ultimate form of mistrial ordered.
Manifest Necessity for Discovery Failures: Where mid-trial, inadvertent government Brady or Giglio disclosures taint a significant portion of testimony, a district court may sua sponte declare mistrial and retry the defendant if it (a) conducts thorough fact-finding, (b) explores alternatives, and (c) reasonably finds curative instructions inadequate.

Future litigants will need to object promptly in open court to preserve double jeopardy claims, and courts will feel empowered to declare mistrial in complex fraud cases when layered discovery lapses threaten verdict integrity.

Complex Concepts Simplified

Double Jeopardy Clause: Prohibits retrial for the same offense once jeopardy attaches (jury sworn). Two exceptions permit retrial: (1) defendant consents to mistrial; (2) mistrial is declared for “manifest necessity.”
Implied Consent: Even if a defendant files a motion opposing mistrial, failure to object when the court actually orders it counts as consent.
Manifest Necessity: Not absolute necessity, but a “high degree” of necessity. Courts must carefully consider alternatives before declaring mistrial.
Brady/Giglio Disclosures: Prosecutors must turn over exculpatory (Brady) and impeachment (Giglio) evidence — including witness interview notes (Form 302s) — in advance of or during trial. Late disclosures can taint testimony and force mistrial.
Curative Instructions: Jury directions to disregard certain evidence or portions of testimony. Used to remedy discovery breaches, but may overburden jury comprehension if too pervasive.

Conclusion

United States v. Breimeister reaffirms that the Double Jeopardy Clause does not bar retrial when a defendant—expressly or by silence—consents to mistrial and when a district court, after careful inquiry, finds manifest necessity due to the government’s inadvertent discovery failures. The decision underscores the importance of prompt objections in open court, the necessity of complete and timely Brady/Giglio compliance, and the trial judge’s broad, yet circumscribed, discretion to declare mistrial to protect the integrity of the verdict. This ruling will guide defense counsel and prosecutors in handling mid-trial disclosure issues and shape future double jeopardy challenges in fraud and other complex prosecutions.