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Scott Breimeister v. United States
Paid petition · United States Court of Appeals for the Fifth Circuit, No. 23-20326 · judgment April 7, 2025
Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.
Question presented
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?
Counsel of record
For petitioner
Josh Barrett Schaffer
Schaffer Law Offices
For respondent
D. John Sauer
Solicitor General
Proceedings
- Apr 20 2026Petition DENIED.
- Mar 25 2026DISTRIBUTED for Conference of 4/17/2026.
- Mar 24 2026Reply of petitioner Scott Breimeister filed. (Distributed)
- Mar 04 2026Brief of respondent United States in opposition filed.
- Jan 28 2026Motion to extend the time to file a response is granted and the time is further extended to and including March 4, 2026.
- Jan 26 2026Motion to extend the time to file a response from February 2, 2026 to March 4, 2026, submitted to The Clerk.
- Dec 22 2025Motion to extend the time to file a response is granted and the time is further extended to and including February 2, 2026.
- Dec 19 2025Motion to extend the time to file a response from January 2, 2026 to February 2, 2026, submitted to The Clerk.
- Dec 03 2025Brief amici curiae of The National Association of Criminal Defense Lawyers, et al. filed.
- Nov 25 2025Motion to extend the time to file a response is granted and the time is extended to and including January 2, 2026.
- Nov 24 2025Motion to extend the time to file a response from December 3, 2025 to January 2, 2026, submitted to The Clerk.
- Nov 03 2025Response Requested. (Due December 3, 2025)
- Oct 29 2025DISTRIBUTED for Conference of 11/14/2025.
- Oct 22 2025Waiver of right of respondent United States to respond filed.
- Oct 02 2025Petition for a writ of certiorari filed. (Response due November 5, 2025)
- Sep 19 2025Application of Scott Breimeister for a further extension of time not accepted for filing. (September 23, 2025)
- Jul 29 2025Application (25A114) granted by Justice Alito extending the time to file until October 2, 2025.
- Jul 24 2025Application (25A114) to extend the time to file a petition for a writ of certiorari from August 3, 2025 to October 2, 2025, submitted to Justice Alito.