                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2006

Stolt Nielsen v. USA
Precedential or Non-Precedential: Precedential

Docket No. 05-1480




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Recommended Citation
"Stolt Nielsen v. USA" (2006). 2006 Decisions. Paper 997.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/997


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                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1480


                           STOLT-NIELSEN, S.A.;
                STOLT-NIELSEN TRANSPORTATION GROUP LTD.;
                          RICHARD B. WINGFIELD

                                           v.

                           UNITED STATES OF AMERICA

                                                Appellant



                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 04-cv-00537)
                      District Judge: Honorable Timothy J. Savage


                              Argued September 30, 2005

                     Before: ALITO * and AMBRO, Circuit Judges
                                 RESTANI,** Judge

                             (Opinion filed March 23, 2006)


                  ORDER AMENDING PUBLISHED OPINION




      *
         Then Judge, now Justice, Alito heard oral argument in this case but was elevated
to the United States Supreme Court on January 31, 2006. This opinion is filed by a
quorum of the panel. 28 U.S.C. § 46(d).
      **
          Honorable Jane A. Restani, Chief Judge, United States Court of International
Trade, sitting by designation.
AMBRO, Circuit Judge

       IT IS NOW ORDERED that the published Opinion in the above case filed March
23, 2006, be amended as follows:

       On page 12, lines 7-8, replace “James Griffin, the Assistant Attorney General in
charge of the Antitrust Division” with “James Griffin, a Deputy Assistant Attorney
General in the Antitrust Division”.

        On page 15, at the bottom of page, replace the last three lines (from “There are
exceptions” to “has recognized,”) with the following: “There is an exception to this
general rule, however, in order to avoid a chilling effect on constitutional rights. See
Dombrowski v. Pfister, 380 U.S. 479, 486–87 (1965) (recognizing that the threat of
criminal prosecution creates the potential for a serious chill upon First Amendment
rights); Hynes v. Grimes Packing Co., 337 U.S. 86, 98–99 (1949) (recognizing that the
threat of prosecution may deny fishermen the right to earn a livelihood); Truax v. Raich,
239 U.S. 33, 38–39 (1915) (recognizing that the threat of prosecution may lead to an
unconstitutional denial of the right to earn a livelihood and to continue employment).
The Supreme Court has typically applied this exception in the First Amendment context,
and in such cases has recognized”.

      On page 16, at the beginning of the first line after the block quote, replace
“Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965)” with “Dombrowski, 380 U.S. at
486-87 ”.

       On page 17, lines 4-5 in the second full paragraph, replace “situations, typically
those where the mere threat of prosecution would inhibit the exercise of First Amendment
freedoms” with “situations where the mere threat of prosecution would inhibit the
exercise of constitutional freedoms”.

        On page 17, lines 8-11 in the second full paragraph, replace the sentence beginning
“The question thus becomes” with “The question thus becomes whether, even when there
is no risk of a chilling effect on constitutional rights, the existence of an immunity
agreement provides federal courts with authority to enjoin a federal criminal prosecution
in order to avoid the filing of an indictment.”

      On page 18, line 4 in the first full paragraph, replace “would be a good idea” with
“might be useful”.

      On page 18, lines 4-6 in the first full paragraph, replace the sentence beginning
“As we explain” with “We point out, however, that no federal court (including the

                                             2
Seventh Circuit) has held that a pre-indictment determination is constitutionally
required.”

       On page 21, lines 1-2 at the top of the page, replace “an unconstitutional chilling
effect on First Amendment rights” with “a chilling effect on constitutional rights”.

     On page 26, lines 12-13 in the first full paragraph, replace “may chill First
Amendment rights” with “may chill constitutional rights”.

      On page 26, lines 14-15 in the first full paragraph, replace “cases in which the
Supreme Court and Courts of Appeals have held” with “cases from the Supreme Court
and Courts of Appeals that lead us to conclude”.

       On page 27, lines 2-3 in footnote 7, replace “need not” with “do not”.



                                          By the Court,


                                          /s/ Thomas L. Ambro, Circuit Judge


Dated: May 16, 2006

ARL/cc: JPF; JJP; JAB; ADB; IAC; CMC; GAD; JMG; RDL




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