United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit

FILED No. 23-20326 April 7, 2025 ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus Scott Breimeister,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CR-368-2 ______________________________ Before Haynes, Duncan, and Wilson, Circuit Judges. Cory T. Wilson, Circuit Judge: Scott Breimeister and four codefendants were jointly tried for allegedly defrauding public and private healthcare programs out of more than $140,000,000. Five weeks into trial—after the testimony of twenty-one Government 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 district court explored possible remedies for the Government’s breach, but ultimately found the curative measures proposed by the parties unlikely to produce a fair verdict. The court sua sponte declared a mistrial, and Breimeister then moved to bar retrial. The district court Case: 23-20326 Document: 116-1 Page: 2 Date Filed: 04/07/2025

No. 23-20326

denied that motion, finding that the Double Jeopardy Clause did not preclude a second trial because the mistrial was a “manifest necessity.” Breimeister now brings this interlocutory appeal, and we affirm. I. Scott Breimeister and four other defendants allegedly engaged in a scheme to defraud public and private healthcare programs through a chain of Houston-area pharmacies. 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.” Further, Breimeister and his codefendants allegedly took “actions to conceal the scheme or obstruct the investigation” while defrauding the programs of more than $140,000,000 and individually profiting “between hundreds of thousands of dollars and tens of millions of dollars.” The defendants jointly proceeded to trial. During five weeks of trial, the Government presented twenty-one witnesses and a host of exhibits intended to summarize the alleged fraudulent transactions. One of the Government’s final witnesses, a certified public accountant and certified fraud examiner named William Chan, testified that he prepared twelve of the Government’s summary exhibits, utilizing only the source materials listed on the exhibits (primarily bank records) and the assistance of one accounting-firm colleague. However, cross-examination exposed holes in Chan’s methodology and source materials that raised concerns with the district court about the exhibits’ reliability. Based on those concerns and at the defense’s request, the court ordered the Government to produce the unredacted notes Chan kept while preparing his summary exhibits. Chan’s unredacted notes conflicted with his testimony in two material ways. First, they revealed that Chan had worked closely with the Government to prepare his summary exhibits, rather than with just one