USA v. GIAMBRO

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA
v.
DARIO GIAMBRO,
Defendant.
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Docket no. 2:22-cr-00044-GZS
ORDER ON DEFENDANT’S MOTION TO DISMISS
ON DOUBLE JEOPARDY GROUNDS
Before the Court is Defendant’s Motion to Dismiss on Double Jeopardy Grounds (ECF
No. 229). For reasons briefly stated herein, the Court DENIES the Motion without further briefing.
As Defendant acknowledges in his Motion, “if a mistrial results from a hung jury, the
Supreme Court has indicated in several cases that the Double Jeopardy Clause is no bar to a second
trial.” (ECF No. 229, PageID # 2461 (citing Richardson v. United States, 468 U.S. 317 (1984) &
Logan v. United States, 144 U.S. 263 (1892)).1 While Defendant suggests that this clear precedent
should be revisited, this District Court is duty bound to apply binding precedent. 	On this basis
alone, the Court denies this Motion.
1 See also, e.g., Smith v. United States, 599 U.S. 236, 253 (2023) (“[T]he Double Jeopardy Clause is not
triggered when a trial ends in juror deadlock.”) (citing Blueford v. Arkansas, 566 U.S. 599, 610 (2012));
United States v. Garske, 939 F.3d 321, 336 (1st Cir. 2019) (concluding that double jeopardy did not bar
retrial after a mistrial was declared based on manifest necessity and the mistrial was “not the product of any
purposeful instigation or other government misconduct”); United States v. McIntosh, 380 F.3d 548, 553
(1st Cir. 2004) (noting that “a hung jury is the paradigmatic example of manifest necessity”).
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2
The Court notes an additional reason why Defendant cannot seek to invoke the Double
Jeopardy clause to bar his retrial: 	Mr. Giambro ultimately consented to the declaration of a
mistrial. See ECF No. 216, PageID # 2368 (“Mr. Giambro does not object to the Government's
suggested mistrial, agrees it’s appropriate.”); PageID # 2371 (the Court reiterating that “both sides
have agreed to a mistrial in this case” without objection).2 Having failed to properly present, much
less preserve, any objection to the declaration of a mistrial, Defendant’s belated invocation of the
Double Jeopardy clause at this juncture is without merit and reflects an apparent attempt to delay
retrial. 	See, e.g., United States v. Candelario-Santana, 977 F.3d 146, 157 (1st Cir. 2020)
(“[D]ouble jeopardy does not bar reprosecution in cases where the defendant either requests or
explicitly consents to the declaration of a mistrial.”)
Therefore, the Court DENIES Defendant’s Motion to Dismiss on Double Jeopardy
Grounds (ECF No. 229).
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 22nd day of September, 2023.
2 In fact, the initial request for a mistrial was made by Defendant. See ECF No. 216, PageID # 2359 (“Mr.
Giambro accepts the jury's note and believes a mistrial should be declared, Your Honor.”), PageID # 2360
(“Mr. Giambro believes there should be a mistrial declared. He reserves his double jeopardy issues. 	I
understand the Court likely has a different view on how that would be resolved.”); see also United States
v. Tucker, 61 F.4th 194, 203 (1st Cir. 2023) (“When a defendant is the party requesting a mistrial then he
or she is ordinarily deemed to have waived any subsequent claim of double jeopardy and so the manifest
necessity standard does not come into play.”) (cleaned up). The Court notes that any attempt to reserve
double jeopardy issues was not renewed when the Court received the jury’s final note (Court Ex. 10) and
determined that there was a manifest necessity for a mistrial.
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