What constitutes implied consent to a mistrial when determining if a defendant has forfeited a Double Jeopardy claim, and does strict scrutiny apply to review a court's sua sponte decision to declare a mistrial based on government misconduct over a defendant's objection?

In the fifth week of a healthcare fraud trial, the defendants discovered prosecutorial misconduct that caused the court to order the government to produce all agent reports and witness interview notes. A massive mid-trial production of previously undisclosed documents revealed information favorable to the defendants. The court declared a mistrial sua sponte over petitioner’s written opposition. It eventually denied his motion to bar a retrial based on Double Jeopardy. The Fifth Circuit held that petitioner forfeited the Double Jeopardy claim because he consented to the mistrial. Federal circuit courts are deeply divided over what constitutes a defendant’s implied consent to a mistrial. The Fifth Circuit also held that, even if petitioner objected, manifest necessity existed to declare the mistrial. The court refused to apply strict scrutiny review, although the government caused the mistrial, because the misconduct was not in “bad faith.” This Court requires a reviewing court to apply the “strictest scrutiny” when the government causes a mistrial. Arizona v. Washington , 434 U.S. 497, 505, 508 (1978). The questions presented are: I. What constitutes implied consent to a mistrial when determining if a defendant has forfeited a Double Jeopardy claim? II. Does strict scrutiny apply to review a court’s sua sponte decision to declare a mistrial based on government misconduct over a defendant’s objection? ii RELATED CASES • United States v. Swiencinski, et al. , No. 4:18-CR-00368, United States District Court, Southern District of Texas, Houston Division. Order entered June 27, 2023. • United States v. Breimeister , No. 23-20326, United States Court of Appeals for the Fifth Circuit. Opinion entered April 7, 2025. • United States v. Breimeister , No. 23-20326, United States Court of Appeals for the Fifth Circuit. Order denying rehearing entered May 5, 2025.