Nye

MEMORANDUM **

Jose Antonio Herrera and Steven Nye appeal from the district court’s denial of their motions to dismiss their indictments on double jeopardy grounds following the court’s order of mistrial and discharge of the jury upon motion by co-defendant Mario Jimenez. We have jurisdiction under 28 U.S.C. § 1291 . See Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977). We affirm.

Herrera and Nye argue the district court erred in finding they impliedly consented to the mistrial and discharge of the jury. We review a district court’s denial of a motion to dismiss on double jeopardy grounds de novo, and the district court’s factual findings for clear error. United States v. Lun, 944 F.2d 642, 644 (9th Cir.1991).

The Double Jeopardy Clause “protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982); United States v. Gaytan, 115 F.3d 737, 742 (9th Cir.1997). “[JJeopardy attaches once the jury is empaneled and sworn.... ” Crist v. Bretz, 437 U.S. 28, 38 , 98 S.Ct. 2156 , 57 L.Ed.2d 24 (1978). However, a defendant who moves for mistrial may be retried…