                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                    PUBLISH                     March 28, 2014
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                               TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,
 v.
                                                        No. 12-1373
 GWEN BERGMAN,

       Defendant-Appellee.


                 Appeal from the United States District Court
                         for the District of Colorado
                     (D.C. No. 1:04-CR-00180-WJM-1)


Paul Farley, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.

Beth L. Krulewitch, Aspen, Colorado, for Defendant-Appellee.


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.


      Gwen Bergman thought she had hired a hit man to kill her ex-husband. She

searched the Internet, found a name, negotiated a deal, even tapped her mother’s

retirement account to pay the man $30,000. But it turned out he was an

undercover officer. Or at least that’s the story the government presented and the
court credited at Ms. Bergman’s trial. Yet as strange as all this may be, it’s not

the end of it. After trial it emerged that Ms. Bergman’s lawyer was not a lawyer

at all: he was a con man. And a pretty good one at that. For years he’d made a

comfortable living duping clients and courts alike. See United States v. Kieffer,

681 F.3d 1143 (10th Cir. 2012); United States v. Bergman, 599 F.3d 1142 (10th

Cir. 2010); United States v. Bergman, 191 F. App’x 762 (10th Cir. 2006).

      It is this discovery that takes us to the current dispute. When Ms. Bergman

(unsurprisingly) pursued a habeas motion under 28 U.S.C. § 2255 alleging a

violation of her Sixth Amendment right to effective assistance of counsel at trial,

the district court agreed, vacated her conviction, and discharged her from

supervised release (she had already finished her prison term). Assuming the

court’s decision to vacate the conviction it won at Ms. Bergman’s first trial was

without prejudice to a new trial with a (real) defense lawyer, the government

asked the court to set a date. But the district court refused, stating that its

discharge order “implicitly” forbade any effort to secure a valid conviction at a

second trial. It is this ruling the government now asks us to review and reverse.

      Before getting to that business, though, we must attend to another. Do we

have jurisdiction to hear this appeal? There’s no question we may hear an appeal

by the government from any “decision, judgment, or order of a district court

dismissing an indictment.” 18 U.S.C. § 3731; see also United States v. Wilson,

420 U.S. 332, 345 (1975); Serfass v. United States, 420 U.S. 377, 392-94 (1975).

                                         -2-
But do we have that here? The government filed a motion to set a new trial date

in Ms. Bergman’s criminal case. The district court replied by treating that motion

as a request to reopen Ms. Bergman’s § 2255 proceeding, a proceeding the court

had docketed separately as a civil case. The district court then proceeded to deny

the government’s new trial request and enter an order saying so in both the civil

habeas and the underlying criminal case. And that poses us this question: do the

district court’s actions denying a new trial date in the separate civil and criminal

actions amount to an appealable “order . . . dismissing an indictment”?

      No doubt this appeal’s curious procedural posture owes at least something

to § 2255’s enigmatic character. Some suggest that § 2255 proceedings should be

understood as motions in the preexisting criminal prosecution. Of course, § 2255

petitioners don’t always enjoy the full panoply of rights the Constitution affords

criminal defendants (like the right to be present or the right to be assisted by

counsel). Of course, § 2255 proceedings are often docketed as separate civil

cases. But on this account they remain part of the underlying criminal

prosecution all the same. See, e.g., Rules Governing Section 2255 Proceedings

for the United States District Courts, Rule 1 advisory committee note. Others are

less sure about this much, given that habeas petitions at common law were

traditionally understood as collateral civil proceedings; given that § 2255

expressly aims to provide a remedy commensurate with the common law habeas

writ; given that few of the rights defendants enjoy in criminal proceedings attach

                                         -3-
in § 2255 proceedings; and given that the contrary understanding of § 2255 seems

to be based in some significant measure on a single paragraph from the statute’s

1948 legislative history. See, e.g., 3 Charles Alan Wright & Sarah N. Welling,

Federal Practice and Procedure § 622 (4th ed. 2011); Wall v. Kholi, 131 S. Ct.

1278, 1289 n.7 (2011) (noting “confusion”); cf. Heflin v. United States, 358 U.S.

415, 418 n.7 (1959) (suggesting § 2255 proceedings are collateral civil actions).

      But whatever the confusion surrounding § 2255 in general or the procedural

status of this case in particular, none of that can obscure the fact that the district

court order before us qualifies as an “order . . . dismissing an indictment” for

purposes of § 3731. To be sure, the order purports only to deny a trial date, not to

dismiss the indictment. And, to be sure, one might worry that this leaves the

indictment still alive, if perhaps lingering in a catatonic state never to be tested at

trial but never to be formally dismissed either. Worries along these lines,

however, seem to us to take too much account of form and too little account of

substance. The district court has refused any trial on the indictment. Both the

criminal and civil matters, it has declared, “shall remain closed.” No new trial

can be had, not now, not ever, so long as the district court’s order remains in

place. As a practical matter, that result is tantamount to a dismissal of the

indictment even if it’s not labeled that way. And it can’t be the case that a

district court may deny a party its statutory right to appeal by the simple

expedient of refusing to enter an order explicitly labeled a “dismissal.” See

                                          -4-
generally United States v. Scott, 437 U.S. 82, 96 (1978) (a district court’s

characterization of its own action “cannot control” the question whether it

amounts to an appealable order). Indeed, in many other arenas we grant appellate

review if the proceedings in the district court appear firmly resolved, whether or

not the district court has entered a document entitled “final judgment.” See, e.g.,

Yost v. Stout, 607 F.3d 1239, 1243 (10th Cir. 2010). Seeing no reason to justify a

different path here, we join those courts already holding that district court actions

and orders bearing the practical effect of dismissing an indictment are subject to

appeal under § 3731 even if they do not formally “dismiss” an indictment or

happen to be labeled that way. See United States v. Tranowksi, 702 F.2d 668, 670

(7th Cir. 1983); United States v. Cote, 51 F.3d 178, 180-81 (9th Cir. 1995).

      Ms. Bergman doesn’t disagree with any of this but she does dispute our

authority to hear this appeal all the same. After explaining that we may entertain

appeals from orders dismissing indictments, § 3731 adds this qualification:

“except that no appeal shall lie where the double jeopardy clause . . . prohibits

further prosecution.” So it is that our authority to entertain a governmental

appeal hinges on a peek at the merits of any double jeopardy complaint the

defendant may press. When we peek at the merits in her case, Ms. Bergman

insists, we will find that the Double Jeopardy Clause does indeed foreclose any

further prosecution against her — and, with that, the government’s appeal.




                                         -5-
      With this we cannot agree. Of course, the Double Jeopardy Clause

sometimes prohibits the government from proceeding further against a defendant

— for example, after the defendant is acquitted or after the defendant’s conviction

is reversed for lack of sufficient evidence. See Evans v. Michigan, 133 S. Ct.

1069, 1074-75 (2013). But the Supreme Court has long held that the Double

Jeopardy Clause does not prohibit the government from seeking a new trial when

the defendant’s conviction is reversed because of a trial error unrelated to the

question of guilt or innocence. See, e.g., id. at 1075; Lockhart v. Nelson, 488

U.S. 33, 38 (1988); United States v. Wood, 958 F.2d 963, 967 (10th Cir. 1992).

And that description describes our case. Everyone before us acknowledges that

Ms. Bergman received ineffective assistance of counsel at trial. But no one

suggests the jury acquitted her or that the evidence presented against her was

legally insufficient to support a finding of guilt. So it would seem pretty clear

that Ms. Bergman isn’t protected from further prosecution by the Double

Jeopardy Clause and we may finally turn to consider the merits of the

government’s appeal.

      But before we can do that, Ms. Bergman submits, we must consider one

more wrinkle still. She says double jeopardy bars further prosecution not only

when the defendant is acquitted or when the evidence against the defendant is

insufficient to support a conviction but also when the defendant has fully served

her sentence. For support, she cites a pair of out-of-circuit authorities, United

                                        -6-
States v. Smith, 115 F.3d 241 (4th Cir. 1997), and United States v. Silvers, 90

F.3d 95 (4th Cir. 1996). But as it turns out these authorities do nothing to help

her cause. At most they stand for the proposition that a defendant who has

completed a sentence on a particular charge may not be resentenced later in a

manner that imposes more punishment for the same charge. Even assuming

without deciding this court would reach the same conclusion in an appropriate

case, cf. North Carolina v. Pearce, 395 U.S. 711, 719-21 (1969), overruled on

other grounds by Alabama v. Smith, 490 U.S. 794 (1989); United States v.

DiFrancesco, 449 U.S. 117, 135-38 (1980), it is a conclusion without any

application here. The question before us at the moment isn’t whether Ms.

Bergman may be exposed to a graver sentence after a new trial and conviction, it

is whether she may be exposed to a new trial and a lawful conviction in the first

place. Nothing in the cases Ms. Bergman cites purports to preclude that

possibility. Neither, for that matter, does Ms. Bergman allege that she has fully

discharged her sentence on any charge, so it’s not clear the cases she cites would

help her even at sentencing after a new trial and conviction.

      With that, with any impediment to this appeal now finally cleared, we may

at last approach the merits of the district court’s order. A district court decision

dismissing an indictment is generally reviewed for abuse of discretion. See

United States v. Fishman, 645 F.3d 1175, 1185 (10th Cir. 2011). We think that’s

the right standard, too, when the district court’s decision is tantamount to rather

                                         -7-
than formally denominated a dismissal of the indictment. For its part, the

government suggests the district court abused its discretion in this way. Absent

“a double jeopardy bar,” the government says, it possesses the absolute right, “at

its option, to retry a defendant whose conviction has been reversed on direct

appeal or vacated as a result of a collateral attack.” And, as we’ve just seen,

double jeopardy doesn’t preclude a new trial here. So on the government’s logic

it possesses an unrestricted right to demand a new trial and the district court erred

in holding otherwise.

      Here it is the government that’s mistaken. Of course and as we’ve seen,

certain double jeopardy problems can prevent the government from retrying a

successful § 2255 petitioner. But from this it doesn’t follow that a district court

granting relief under § 2255 may preclude a retrial only in the presence of a

double jeopardy problem. To the contrary, § 2255 sets forth a variety of potential

remedies and leaves it to the district court to choose the one that “may appear

appropriate” in the case at hand. Nowhere does the statute single out double

jeopardy violations for special treatment. Naturally, in habeas (as most

elsewhere) remedies must be tailored to the wrongs they seek to redress. See

Lafler v. Cooper, 132 S. Ct. 1376, 1388-89 (2012); United States v. Morrison,

449 U.S. 361, 365 (1981). But barring a new trial may be an appropriately

tailored remedy not only when certain double jeopardy problems arise but also

when (for example) any future prosecution would offend the defendant’s

                                        -8-
constitutional right to a speedy trial, proceed under an unconstitutional statute, or

confront an insuperable jurisdictional problem. In each of these scenarios, a new

trial would unavoidably violate the settled legal rights of the defendant and it is

surely appropriate for a court in a § 2255 proceeding to acknowledge as much.

See Douglas v. Workman, 560 F.3d 1156, 1176 (10th Cir. 2009) (denying retrial

may be appropriate “when the error forming the basis for the relief cannot be

corrected in further proceedings”); see also Brian R. Means, Federal Habeas

Manual § 13:9 (2012) (collecting cases).

      The government’s first argument for reversal may bear its problems but the

government’s remaining argument bears closer scrutiny. Rather than contend

categorically that only double jeopardy problems may preclude retrial, the

government here suggests more modestly that the remedy the district court

selected is too attenuated from the right it found violated. And here the

government has a point. The district court found a violation of Ms. Bergman’s

Sixth Amendment right to effective assistance of counsel. It is beyond dispute

that “Sixth Amendment deprivations are subject to the general rule” requiring

habeas “remedies [to] be tailored to the injury suffered from the constitutional

violation.” Morrison, 449 U.S. at 364. To meet this standard, the Supreme Court

has told us that a § 2255 remedy must address the Sixth Amendment violation but

that it should also seek to avoid providing “a windfall to the defendant” and

should seek to account for any “competing interests” present in the case at hand,

                                         -9-
including “society’s interest in the administration of criminal justice.” Lafler,

132 S. Ct. at 1388-89; Morrison, 449 U.S. at 364. Bearing these considerations in

mind, the presumptively appropriate remedy for a trial with an ineffective lawyer

is a new trial with an effective one. Not absolution, not the liberty of avoiding a

fair trial simply because at some point along the way the defendant happened to

hire a bad lawyer (or someone posing as a lawyer). Instead, we generally seek to

“neutralize the taint” of a Sixth Amendment ineffective assistance problem by

“assur[ing] the defendant the effective assistance of counsel and a fair trial.”

Morrison, 449 U.S. at 365; see also Pearce, 395 U.S. at 721 n.18 (“It would be a

high price indeed for society to pay were every accused granted immunity” from

trial “because of any defect sufficient to constitute reversible error in [prior]

proceedings.”).

      Of course, this doesn’t mean that a district court may never refuse to permit

a new trial after finding a Sixth Amendment effective assistance violation.

Barring retrial may well be a reasonable remedy when, for example, it’s clear

even competent counsel could not “provide adequate representation” in a new

proceeding. Morrison, 449 U.S. at 365-66. If so much time has passed and so

many witnesses have died and so much evidence has been lost that not even

Daniel Webster could provide constitutionally adequate representation, precluding

a new trial could become an appropriate remedy for an effective assistance



                                         - 10 -
violation much as it becomes an appropriate remedy when any future prosecution

would confront a fatal and insurmountable speedy trial problem.

      The difficulty is, there’s no indication that this case poses a problem like

that, no indication that the Sixth Amendment ineffective assistance problem the

district court found present here can’t be corrected by supplying Ms. Bergman

with effective assistance in a future trial. Put simply, the presumptively

appropriate remedy for an effective assistance violation is a new trial; the district

court failed to identify any reason why that presumption is inapplicable here; and

in these circumstances refusing a new trial amounts to an abuse of discretion.

Indeed, this court’s cases have long and consistently held as much and we see no

way we might faithfully reach a different result now. See, e.g., Bromley v. Crisp,

561 F.2d 1351, 1364 (10th Cir. 1977) (en banc) (reversing as abuse of discretion

district court habeas order denying retrial in a case involving trial error); Capps v.

Sullivan, 13 F.3d 350, 352-53 (10th Cir. 1993); Burton v. Johnson, 975 F.2d 690,

693 (10th Cir. 1992).

      The district court’s order denying a new trial takes pains to mention the

fact that the court had already granted Ms. Bergman a discharge in response to

her § 2255 motion. From this it appears the district court may have thought that a

habeas discharge order necessarily and “implicitly” bars any future prosecution.

But if that’s the premise on which the district court proceeded, it is a faulty one.

Section 2255 provides that a district court may “discharge the prisoner or

                                         - 11 -
resentence him or grant a new trial or correct the sentence.” Nothing in that

language suggests that the granting of a discharge precludes a new trial (or vice

versa). Our cases make the point plainly, explaining that a defendant can be

granted a new trial with or without being discharged from custody and that she

can be discharged from custody with or without prejudice to future efforts by the

government to seek a new trial. See, e.g., Bowen v. Maynard, 799 F.2d 593, 614

& n.12 (10th Cir. 1986) (discharge without prejudice); Burton, 975 F.2d at 693; 2

Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

Procedure § 33.2, at 1903-04 & nn.11 & 13 (6th ed. 2011) (collecting

authorities). Indeed, this court has previously explained that “granting the writ”

in any fashion “do[es] not generally bar retrial on the original charge,” absent

some express direction that so much is needed to remedy the violation found.

Bromley, 561 F.2d at 1364.

      In reaching a contrary understanding, the district court placed heavy

emphasis on Robinson v. United States, 744 F. Supp. 2d 684, 697 (E.D. Mich.

2010). In that case, a Michigan district court granted the defendant an

“unconditional” release after finding a Sixth Amendment violation and stressing

that the defendant had completed most of his sentence. But the district court in

Robinson never acknowledged or addressed the Supreme Court’s instructions in

cases like Morrison and Pearce; it issued its decision before and without the

benefit of the Court’s guidance in Lafler; and it did not address our precedents in

                                        - 12 -
cases like Capps and Bromley. Given its failure to confront any of the relevant

authorities, Robinson does not begin to persuade us that barring a trial was an

appropriate remedy in Ms. Bergman’s case. For that matter, it’s not even clear

whether the “unconditional” release in Robinson itself was with or without

prejudice to future prosecution efforts under a new indictment.

      After saying so much about Ms. Bergman’s case, we pause to emphasize

what we haven’t said and don’t mean to say. We haven’t suggested that a

discharge with prejudice to any further prosecution is always an inappropriate

habeas remedy, or even always an inappropriate remedy for the violation of a

defendant’s Sixth Amendment right to effective representation. Neither have we

attempted to catalog the reasons that might suffice to justify granting a discharge

with prejudice. To resolve this particular appeal, we need only observe that a

discharge with prejudice to further prosecution efforts is a powerful remedy

requiring powerful justification to qualify as tailored to the problem at hand —

and in this case the district court failed to offer any reason suggesting so much

might be called for here. Perhaps such a reason lurks somewhere in the record,

but it is not to be found in the order under review.

      The district court’s order is vacated and the case is remanded for further

proceedings consistent with this opinion.




                                        - 13 -
