No. 23-2431 ___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Donavan Jay White Owl, also known as DJ,

lllllllllllllllllllllDefendant - Appellant. ____________

Appeal from United States District Court for the District of North Dakota - Western ____________

Submitted: October 17, 2023 Filed: February 23, 2024 ____________ Before SMITH, Chief Judge, LOKEN and COLLOTON, Circuit Judges. ____________ COLLOTON, Circuit Judge.

Donovan White Owl appeals an order of the district court* denying his motion to dismiss an indictment based on the Double Jeopardy Clause. In a pending criminal

* The Honorable Daniel M. Traynor, United States District Judge for the District of North Dakota. case, the district court declared a mistrial after a jury was seated and jeopardy attached. White Owl maintains that a new trial would impermissibly place him in jeopardy twice for the same offense. He unsuccessfully moved to dismiss the indictment on that basis, and we have jurisdiction over an appeal of the district court’s order denying the motion. Abney v. United States, 431 U.S. 651, 662 (1977). We conclude that White Owl impliedly consented to the mistrial, and that a new trial is therefore not forbidden by the Constitution.

I.

White Owl is under indictment for felony murder and arson within Indian Country. See 18 U.S.C. §§ 2, 81, 1111, 1153. Trial commenced on March 14, 2023, but the district court declared a mistrial on March 22 after a dispute over White Owl’s access to information about a prosecution witness.

The government intended to call as a witness a fellow detainee of White Owl’s to testify that White Owl admitted setting the fire at issue in the case. Before the witness was called, defense counsel told the court that he was missing some materials that might be used to impeach the witness. The district court then ruled that the witness could not testify at trial “until and unless [defense counsel was] provided with each and every one of those documents and provided sufficient time to review them.”

White Owl later renewed a motion to exclude the fellow detainee’s testimony. The district court granted the motion on the ground that the government’s non- disclosure of certain material violated White Owl’s rights under the Due Process Clause. See Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). The court cited information known to the prosecutor handling the witness’s criminal case that was not disclosed to the defense by the prosecutors in White Owl’s case: “It was a situation where the right hand didn’t know what the left hand was doing.”

-2- Later the same day, however, the district court reconsidered. The court decided that “the United States should have a full opportunity to present their case,” but that “defense counsel also needs sufficient time to prepare himself for trial” and to perform any additional research or work regarding the history of the witness. The court determined that the “harsh remedy” of excluding the witness’s testimony was not warranted, and decided instead to declare a mistrial. But before declaring the mistrial, the district court requested the views of the parties. The government informed the court that it would still call the fellow detainee as a witness and proposed a continuance of several days that would allow defense counsel to prepare further.

The court then reques