Health Law Daily Wrap Up, FRAUD AND ABUSE—5th Cir.: Man accused of healthcare fraud can face a second trial, (Apr 14, 2025)

By Donielle Tigay Stutland, J.D.

The appellant had consented to mistrial, either expressly or impliedly, and a mistrial was a “manifest necessity.”

The Fifth Circuit affirmed a district court’s decision to dismiss an indictment and found that an appellant accused of healthcare fraud had consented to a mistrial and forfeited his double jeopardy claim. The Fifth Circuit also concluded that the district court did not abuse its discretion in declaring a mistrial due to “manifest necessity.” The Fifth Circuit found that the Double Jeopardy Clause does not preclude the Government from retrying the appellant (U.S. v. Breimeister, No. 23-20326 (5th Cir. Apr. 7, 2025)).

Background. The appellant and four co-defendants were previously tried for allegedly defrauding public and private healthcare programs out of more than $140,000,000. Their indictment alleges that the five codefendants submitted and caused to be submitted “false and fraudulent claims for compounded drugs, ‘kits,’ ‘patches,’ and other prescription drugs.” During the trial, a mistrial was declared based on the Government’s failure to disclose evidence to the defense. Five weeks into trial—after numerous testimony from witnesses—the Government made a series of late disclosures of evidence favorable to the defense which impacted nearly a third of the testimony to date.

The appellant subsequently moved to dismiss his indictment and to bar retrial under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution due to the Government’s misconduct. The district court initially denied the motion summarily, but the appellant successfully moved the district court to reconsider. The district court then held a hearing and upon reconsideration again denied the appellant’s request because a mistrial was a “manifest necessity” and because the Government’s misconduct was unintentional. The defendant appealed to the Fifth Circuit.

Double Jeopardy Clause. The Fifth Circuit began its analysis by highlighting that it has recognized two instances in which a defendant may be retried following a mistrial consistent with the Double Jeopardy Clause. First, “[a]bsent prosecutorial or judicial overreaching, a defendant’s motion or consent to mistrial ordinarily is assumed to remove any barrier to reprosecution.” Cherry v. Dir., State Bd. of Corr., 635 F.2d 414, 417 (5th Cir. 1981) (en banc). And second, where “a defendant does not consent to a mistrial, the Clause permits reprosecution only if there was manifest necessity for the mistrial.” The appellant argued that neither scenario exists because the district court declared a mistrial “(A) without his consent and (B) without a ‘manifest necessity’ to do so, such that the Double Jeopardy Clause prohibits the Government from retrying him.”

The court first looked at the appellant’s argument that he did not consent to a mistrial. The court noted that, a defendant’s consent “may be express or implied through a failure to object.” The Government argued that the appellant consented to a mistrial in one of two ways. First, the Government argued that he expressly consented to the mistrial because the district court satisfied one of the specific conditions under which he said he would consent to a mistrial as laid out in his motion for relief—such that the court found“that it was forced to order a mistrial sua sponte solely because of the Government’s misconduct and not at his request.” Second, the Government maintains that even if the appellant did not expressly consent to the mistrial, he impliedly did so by failing to object contemporaneously to the mistrial declaration.

The court agreed with the government’s arguments. The court indicated that the appellant’s motion stated that he would consent to a mistrial if “the [c]ourt ma[de] a finding that it was forced to order a mistrial sua sponte solely because of the Government’s misconduct and not at Breimeister’s request.” The Fifth Circuit reiterated that there was no dispute that the district court declared a mistrial sua sponte—“not on the motion of any particular defendant.” And the district court at least arguably satisfied the remainder of the appellant’s condition: As it declared a mistrial, the court chastised the Government for its failure to disclose favorable evidence, considered sanctions of varying degrees, and promised a more fulsome investigation to determine whether “there was nefarious intent behind the failure to disclose.” Whether the Government’s discovery failures “were simple omissions or intentional,” either of which can be “misconduct” in the double-jeopardy context, those lapses were the only catalyst cited by the district court in declaring a mistrial.

The court concluded that the appellant failed to demonstrate that his anticipatory motion for relief “gave the court sufficient notice and opportunity to resolve the defendant’s concern” with the court’s ultimate mistrial declaration. The court determined that the appellant’s failure to object contemporaneously constitutes implied consent to the mistrial. As such, the court found that the Double Jeopardy Clause does not preclude the Government from retrying him.

The court next stressed that, even if it had determined that the appellant “clearly objected to the mistrial ordered by the district court,” the Government may still retry him consistent with the Double Jeopardy Clause. This is because the district court did not abuse its discretion in declaring a mistrial due to “manifest necessity.” “When a defendant does not consent to a mistrial, the [Double Jeopardy] Clause permits reprosecution only if there was manifest necessity for the mistrial.” Fisher, 624 F.3d at 718. But, the court also noted that “[m]anifest necessity does not mean absolute necessity that a judge declare a mistrial.”

Wrote the court, “the district court declared a mistrial because of the Government’s inadvertent failure to disclose favorable evidence to the defense until the fifth week of trial. The court determined that the untimely disclosures, coupled with the low likelihood that any curative measures or instructions to the jury would ensure a fair verdict, created a “manifest necessity” for the mistrial. While this court has not yet had occasion to place unintentional discovery-related lapses by the Government on our standard-of-review spectrum, we are convinced that this case merits more scrutiny than the “broad deference” afforded trial courts in juror-bias or jury-deadlock cases.” The court also pointed out that here, the district court’s manifest-necessity finding is entitled to more deferential treatment than the “strictest scrutiny” because, as the district court found, the mistrial was not “br[ought] about . . . in bad faith for tactical reasons.” Nor was a mistrial declared because “a prosecutor proceed[ed] to trial aware that key witnesses [we]re not available to give testimony,” thereby giving the prosecutor a “trial run of his case.”

The court acknowledged that the appellant argued that the district court erred because he and the Government “agreed that reasonable alternatives existed for the trial to proceed and proposed specific alternatives,” and that the district court did not “confer with the jury to determine whether those alternatives were viable before declaring a mistrial.” However, the court noted that “the mere existence of alternatives does not mean that the granting of a mistrial precludes retrial of the defendant where ‘reasonable judges could differ about the proper disposition,’ and where the record, considered as a whole, indicates that the trial judge in deciding to declare a mistrial, carefully considered the alternatives . . . .” The Fifth Circuit found that the district court “‘carefully considered the alternatives and did not act in an abrupt, erratic or precipitate manner’” in finding that the circumstances of this case necessitated a mistrial.

But the district court found that no alternative was likely to result in a fair verdict and declared a mistrial due to manifest necessity. That decision was not an abuse of discretion, and as a result, the district court did not err in denying the appellant’s motion to dismiss the indictment against him on double jeopardy grounds.

The case is No. 23-20326.

Judge: Wilson, C.

Attorneys: Samantha Bateman, U.S. Department of Justice, for U.S. Josh Barrett Schaffer (Josh Schaffer, P.L.L.C.) for Scott Breimeister.

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