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


3-23-2006

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Precedential or Non-Precedential: Precedential

Docket No. 05-1480




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                                      PRECEDENTIAL

    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)

R. Hewitt Pate
  Assistant Attorney General
Scott D. Hammond
Makan Delrahim
  Deputy Assistant Attorneys General
John P. Fonte, Esquire
John J. Powers, III, Esquire (Argued)
United States Department of Justice
Antitrust Division, Room 30224
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Robert E. Connolly, Esquire
Antonia R. Hill, Esquire
Wendy B. Norman, Esquire
Kimberly Justice, Esquire
Richard S. Rosenberg, Esquire


      *
         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.

                              2
U.S. Department of Justice
One Independence Square West
7th & Walnut Streets, Suite 650
Philadelphia, PA 19106-2424

      Counsel for Appellant

Ian M. Comisky, Esquire
Matthew D. Lee, Esquire
Blank Rome LLP
One Logan Square
130 North 18th Street
Philadelphia, PA 19103

George J. Terwillinger III, Esquire
John M. Gidley, Esquire
Christopher M. Curran, Esquire (Argued)
Lucius B. Lau, Esquire
White & Case LLP
701 Thirteenth Street, N.W.
Washington, D.C. 20005

      Counsel for Appellee Stolt-Nielsen S.A. and
      Stolt-Nielsen Transportation Group Ltd.

Roberta D. Liebenberg, Esquire
Allen D. Black, Esquire (Argued)
Gerard A. Dever, Esquire
Fine, Kaplan & Black
1835 Market Street, 28th Floor
Suite 2300

                              3
Philadelphia, PA 19103

James A. Backstrom, Jr., Esquire
Suite 200
Two Penn Center Plaza
Philadelphia, PA 19102

       Counsel for Appellee
       Richard B. Wingfield




                 OPINION OF THE COURT




AMBRO, Circuit Judge

        This case raises a significant constitutional question of
first impression in this Circuit: whether federal courts have
authority, consistent with the separation of powers, to enjoin the
executive branch from filing an indictment. Although federal
courts have this authority in narrow circumstances, we conclude
that this is not such a case and therefore reverse the District
Court’s judgment to the contrary.




                                4
                                I.

       A.     Background

        Appellee Stolt-Nielsen, S.A., through its subsidiary Stolt-
Nielsen Transportation Group Ltd. (collectively “Stolt-Nielsen”
or the “Company”), is a leading supplier of parcel tanker
shipping services. In March 2002, Stolt-Nielsen’s general
counsel, Paul O’Brien, resigned. According to a complaint
O’Brien filed against Stolt-Nielsen in Connecticut Superior
Court in November 2002, and a subsequent article in The Wall
Street Journal, O’Brien advised his superiors of illegal collusive
trading practices between Stolt-Nielsen and two of its
competitors, and resigned after the Company failed to take
action to resolve the problem. On receiving O’Brien’s
November 2002 complaint, Stolt-Nielsen hired John Nannes, a
former Deputy Assistant Attorney General in the Antitrust
Division at the U.S. Department of Justice, to conduct an
internal investigation of possible antitrust violations by the
Company and advise it regarding any criminal liability.

        On November 22, 2002, Nannes met with the chairman
of Stolt-Nielsen’s tanker division, Samuel Cooperman.
Cooperman informed Nannes that O’Brien “rais[ed] some
antitrust concerns” in early 2002, and that in response Stolt-
Nielsen revised its antitrust compliance policy and disseminated
it to its employees and competitors. Cooperman also told
Nannes that he believed an internal investigation would

                                5
demonstrate that the Company was in violation of federal
antitrust laws and asked Nannes about the possibility of leniency
from the Department of Justice. With Cooperman’s permission,
Nannes spoke with an Antitrust Division official later that day
to inquire about amnesty if Stolt-Nielsen were to admit its
violations, and the Government informed him that an
investigation had already begun.

        Specifically, Nannes inquired about possible protection
for Stolt-Nielsen and its officers under the Antitrust Division’s
Corporate Leniency Policy. Under this Policy, the Government
agrees “not [to] charg[e] a firm criminally for the activity being
reported” if (in the case of an applicant who comes forward after
an investigation has begun) seven conditions are met: (1) the
applicant is the first to report the illegal activity; (2) the
Government does not, at the time the applicant comes forward,
have enough information to sustain a conviction; (3) the
applicant, “upon its discovery of the illegal activity being
reported, took prompt and effective action to terminate its part
in the activity”; (4) the applicant’s report is made “with candor
and completeness and provides full, continuing and complete
cooperation” with the Government’s investigation; (5) the
applicant confesses to illegal anticompetitive conduct as a
corporation and not merely through individual confessions by
corporate officers; (6) the applicant makes restitution where
possible; and (7) the Government determines that granting
leniency to the applicant would “not be unfair to others.” The
officers and directors of the corporation who assist with the

                                6
investigation are considered for immunity from prosecution on
the same basis as if they had come forward individually.

      B.     The Conditional Leniency Agreement

       The Government informed Nannes that Stolt-Nielsen
would not be eligible for amnesty under the Corporate Leniency
Policy if O’Brien’s departure was involuntary and due to his
exposure of the Company’s antitrust violations. Nannes assured
the Government that O’Brien left voluntarily and detailed the
changes to the Company’s antitrust policy that were
implemented in response to O’Brien’s concerns. During the
ensuing investigation, Nannes learned that between 1998 and
2001 a Stolt-Nielsen executive, Andrew Pickering, exchanged
customer allocation lists with two of Stolt-Nielsen’s
competitors, presumably for the purpose of apportioning
customers among the companies and restraining competition. In
January 2003, Pickering’s successor, appellee Richard
Wingfield, provided Nannes with four such lists, which
confirmed that Stolt-Nielsen had indeed engaged in illegal
anticompetitive behavior. Nannes promptly turned these lists
over to the Government, which entered into a Conditional
Leniency Agreement (the “Agreement”) with Stolt-Nielsen on
January 15, 2003.

      Under the terms of the Agreement, the Government
agreed “not to bring any criminal prosecution against [Stolt-
Nielsen] for any act or offense it may have committed prior to

                              7
the date of this [Agreement] in connection with the
anticompetitive activity being reported.” This promise was, of
course, subject to Stolt-Nielsen’s strict compliance with the
aforementioned conditions, “[s]ubject to verification [by the
Government] and subject to [Stolt-Nielsen’s] full, continuing
and complete cooperation.” The Agreement further stated:

             If the Antitrust Division at any time
             determines that [Stolt-Nielsen] has
             violated this Agreement, [it] shall
             be void . . . . Should the Antitrust
             Division revoke the conditional
             acceptance of [Stolt-Nielsen] into
             the Corporate Leniency Program,
             the A ntitrust Division may
             thereafter initiate a criminal
             prosecution against [Stolt-Nielsen],
             without limitation. Should such a
             prosecution be initiated, any
             documentary or other information
             provided by [Stolt-Nielsen], as well
             as any statements or other
             information provided by any
             current or former director, officer,
             or employee of [Stolt-Nielsen] to
             the Antitrust Division pursuant to
             this Agreement, may be used
             against Stolt-Nielsen in any such

                              8
              prosecution.

        The Agreement also provided that the Government would
not prosecute officers and directors of the Company who “admit
their knowledge of, or participation in, and fully and truthfully
cooperate with the Antitrust Division in its investigation of the
anticompetitive activity being reported.” Specifically, that
cooperation entailed: (1) producing all documents and records
requested by the Government; (2) being available for
Government interviews; (3) “responding fully and truthfully to
all inquiries of the [Government] . . . without falsely implicating
any person or intentionally withholding any information”; (4)
voluntarily providing any information or materials not requested
by the Government that were nonetheless relevant to the
investigation; and (5) testifying under oath when asked by the
Government. It concluded with a standard integration clause:
“This letter constitutes the entire agreement between the
[parties], and supersedes all prior understandings, if any,
whether oral or written, relating to the subject matter herein.”

       Using the information provided by Stolt-Nielsen and its
executives (including Wingfield), the Government secured
guilty pleas from Stolt-Nielsen’s co-conspirators, resulting in
prison sentences for individual executives at those companies
and fines totaling $62 million.




                                9
       C.     The Government Terminates the Agreement

        In the weeks following execution of the Agreement, the
Government’s investigation revealed that Stolt-Nielsen’s
participation in the conspiracy persisted for several months after
O’Brien raised his concerns to Cooperman in early 2002. The
Government concluded that Stolt-Nielsen, and Wingfield in
particular, continued to collude unlawfully with competitors
until November 2002.         Based on this information, the
Government informed Nannes on April 8, 2003 that it was
suspending Stolt-Nielsen’s obligations under the Agreement and
considering withdrawing the grant of conditional leniency
entirely because the Company did not take “prompt and
effective action to terminate its part in the anticompetitive
activity being reported upon discovery of the activity,” as
required by the Agreement. One of Wingfield’s subordinates,
Bjorn Jansen, then admitted that the anticompetitive agreement
between Stolt-Nielsen and its competitors was still in place in
the fall of 2002, despite having told Nannes that such conduct
ceased in March 2002 once the Company learned of O’Brien’s
allegations and issued its new antitrust policy.

       In June 2003, the Government concluded that Wingfield
had not fulfilled his obligations under the Agreement because he
never informed the Government that his unlawful
communications with Stolt-Nielsen’s competitors did not cease
in March 2002 when Stolt-Nielsen issued its new antitrust
policy. On June 24, 2003, the Government charged Wingfield

                               10
by criminal complaint with violating the Sherman Act, 15
U.S.C. § 1. The Government withdrew its grant of conditional
leniency to Stolt-Nielsen on March 2, 2004, and announced that
it intended to indict the Company and Wingfield for violations
of the Sherman Act.1

       D.     District Court Proceedings

       Shortly before the Government revoked Stolt-Nielsen’s
conditional leniency, the Company and Wingfield filed
complaints in the United States District Court for the Eastern
District of Pennsylvania seeking enforcement of the Agreement
and an injunction preventing the Government from filing
indictments against them. The Government agreed to postpone
its indictments of both parties pending the District Court’s
consideration of the complaints.

       The District Court bifurcated the proceedings into two
phases. In Phase One, the Court considered whether Stolt-


       1
         Although the Government “charged” Wingfield by
criminal complaint in June 2003, it could not prosecute him
without an indictment. See 1 Charles Alan Wright, Fed.
Practice & Procedure § 121, at 518 (3d ed. 1999) (“Although a
criminal proceeding may be instituted by a complaint, this only
permits issuance of a warrant for the arrest of the offender, and
he cannot be tried unless an indictment or information, as the
case may require, is brought against him.”).

                               11
Nielsen’s alleged conduct between March and November 2002
violated the terms of the Agreement. If so, Phase Two would
determine whether the conduct actually occurred. During the
Phase One proceedings, the District Court consolidated
consideration of Stolt-Nielsen’s and Wingfield’s requests for
preliminary injunctions with the trial on the merits, and heard
testimony from Nannes and James Griffin, the Assistant
Attorney General in charge of the Antitrust Division at the
Department of Justice.

        In January 2005, the District Court granted judgment in
favor of Stolt-Nielsen and Wingfield and permanently enjoined
the Government from indicting either of them for violations of
the Sherman Act. See Stolt-Nielsen S.A. v. United States, 352
F. Supp. 2d 553 (E.D. Pa. 2005). The Court concluded that the
Government could not unilaterally rescind the Agreement
without a judicial determination that Stolt-Nielsen and
Wingfield breached it, an issue appropriate for consideration
before indictment “because if an indictment were later
determined to have been wrongfully secured, it would be too
late to prevent the irreparable consequences.” Id. at 560. The
Court further found that the Agreement did not specify a
discovery date and instead granted amnesty for activity before
January 15, 2003, the date on which it was signed. Indeed, it
found that “the date when [Stolt-Nielsen] ended its participation
[in the conspiracy] was never clearly established,” id. at 562
n.10, and therefore, in light of the Agreement’s integration
clause, “DOJ, especially because it drafted the agreement,

                               12
cannot depend upon a tacit understanding of what it contends
was meant [to be the discovery date] but was not memorialized
in the integrated agreement.” Id. at 562. The Court concluded:

                     The agreement immunizes
             [Stolt-Nielsen] from prosecution
             for activity prior to January 15,
             2003. Now DOJ contends the
             activity had to have stopped at an
             earlier unspecified date that is not
             set forth in the agreement. Had it
             wanted to fix the date sometime
             before January 15, 2003, it could
             have replaced the words “to the
             date of this letter” with the earlier
             date it now contends the parties
             contemplated.

                     . . . [The Government’s]
             goals [in concluding the Agreement
             with Stolt-Nielsen] were to pursue
             [Stolt-Nielsen’s] co-conspirators
             and break up the conspiracy. It got
             what it had bargained for in the
             agreement. . . . Now that it has
             received the benefit of the bargain,
             DOJ cannot prosecute the party that
             incriminated itself w hen it

                              13
              delivered the evidence DOJ used to
              accomplish its goals.

Id.

       E.     Appeal

       On appeal, the Government contends that the District
Court erred in two respects. First, it argues that federal courts
lack jurisdiction to enjoin the executive branch from filing an
indictment. Second, it asserts that the District Court erred in
holding that Stolt-Nielsen’s and Wingfield’s actions between
March and November 2002 did not violate the terms of the
Agreement. For the reasons that follow, the District Court’s
judgment is reversed and the case remanded to that Court so that
it may dismiss the appellees’ complaints.2

                                II.

       We review a District Court’s grant or denial of a
permanent injunction for abuse of discretion, United States v.
Bell, 414 F.3d 474, 478 (3d Cir. 2005), but exercise plenary


       2
         The District Court had jurisdiction over this case under
28 U.S.C. § 1331, as it is a civil action arising under the laws of
the United States. Our jurisdiction arises under 28 U.S.C. §
1291, since the Government filed a timely notice of appeal from
a final decision of the District Court.

                                14
review over the District Court’s underlying legal conclusions.
Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d
247, 255–56 (3d Cir. 2003). A District Court’s determination
whether a cooperation agreement has been breached is a legal
conclusion. United States v. Baird, 218 F.3d 221, 229 (3d Cir.
2000). All findings of fact are reviewed for clear error. See
Bell, 414 F.3d at 478 (reviewing findings of fact related to a
permanent injunction for clear error); Baird, 218 F.3d at 229
(reviewing findings of fact related to a cooperation agreement
for clear error).

                               III.

       The Supreme Court has observed that the executive
branch “has exclusive authority and absolute discretion to decide
whether to prosecute a case,” United States v. Nixon, 418 U.S.
683, 693 (1974), and the Government therefore argues that
courts lack jurisdiction to enjoin a criminal prosecution. See
United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en
banc) (“It follows, as an incident of the constitutional separation
of powers, that the courts are not to interfere with the free
exercise of the discretionary powers of the attorneys of the
United States in their control over criminal prosecutions.”).

       There are exceptions to this general rule, however,
usually to avoid a chilling effect on First Amendment rights. As
the Supreme Court has recognized,



                                15
              [a] criminal prosecution under a
              statute regulating expression
              usually involves imponderables and
              contingencies that themselves may
              inhibit the full exercise of First
              Amendment freedoms. . . . The
              assumption that defense of a
              criminal prosecution will generally
              assure ample vindication of
              constitutional rights is unfounded
              in such cases. . . . [W]e have not
              thought that the improbability of
              successful prosecution makes the
              case different. The chilling effect
              upon the exercise of First
              Amendment rights may derive from
              the fact of the prosecution,
              unaffected by the prospects of its
              success or failure.

Dombrowski v. Pfister, 380 U.S. 479, 486–87 (1965); see also
Ashcroft v. ACLU, 542 U.S. 656, 670–71 (2004) (upholding
preliminary injunction against criminal enforcement of the Child
Online Protection Act because, inter alia, “[w]here a prosecution
is a likely possibility, yet only an affirmative defense is
available, speakers may self-censor rather than risk the perils of
trial”).



                               16
        It is also well established that the Government must
adhere strictly to the terms of agreements made with defendants
— including plea, cooperation, and immunity agreements — to
the extent the agreements require defendants to sacrifice
constitutional rights. See, e.g., Santobello v. New York, 404
U.S. 257, 262 (1971); United States v. Hodge, 412 F.3d 479,
485 (3d Cir. 2005) (“The government must adhere strictly to the
terms of the bargains it strikes with defendants. Because
defendants entering pleas forfeit a number of constitutional
rights, courts are compelled to scrutinize closely the promise
made by the government in order to determine whether it has
been performed.” (citation and internal quotation marks
omitted)).

        Therefore, although the Government is certainly correct
that there is no free-ranging jurisdiction on the part of courts to
enjoin criminal prosecutions, that authority does exist in limited
situations, typically those where the mere threat of prosecution
would inhibit the exercise of First Amendment freedoms.
Federal courts also have jurisdiction to consider, and hold the
Government to, the terms of agreements it makes with
defendants. The question thus becomes whether, in those cases
not concerning First Amendment rights, the authority to enforce
cooperation or immunity agreements may be exercised pre-
indictment in the form of an injunction.

      The District Court relied on a Seventh Circuit case,
United States v. Meyer, 157 F.3d 1067 (7th Cir. 1998), as

                                17
authority for conducting a pre-indictment review of the
Agreement before us. See Stolt-Nielsen, 352 F. Supp. 2d at
560–61. In Meyer, the Seventh Circuit stated, in dicta, that “the
preferred procedure, absent exigent circumstances, would be for
the government to seek relief from its obligations under the
immunity agreement prior to indictment. Since the government
is required to obtain a judicial determination of a defendant’s
breach prior to trial, it is but a de minimis inconvenience for the
government to secure that determination pre-indictment.” 157
F.3d at 1077.

        We have no quarrel with the Seventh Circuit’s
observation that, in many circumstances, a pre-indictment
determination of the parties’ obligations under an immunity
agreement would be a good idea. As we explain below,
however, federal courts (including the Seventh Circuit) agree
that a pre-indictment determination is not required. Indeed,
notwithstanding its dicta regarding the “preferred procedure,”
the Meyer Court held the defendant was constitutionally
“entitled to a judicial determination of his breach before being
deprived of his interest in the enforcement of an immunity
agreement,” and that this “interest” was in not being convicted,
rather than not being indicted. Id. at 1076–77.3 As the Court


       3
        In keeping with the case law discussed below, the
Seventh Circuit reached this conclusion despite the fact that the
immunity agreement before it stated that the Government would
not “charge” the defendant. Meyer, 157 F.3d at 1077.

                                18
noted, “a post-indictment evidentiary hearing on the defendant’s
alleged breach was sufficient to satisfy due process.” Id. at 1076
(citing United States v. Verrusio, 803 F.2d 885, 889 (7th Cir.
1986)).

         Other immunity agreements that have promised not to
charge or otherwise criminally prosecute a defendant, like the
agreement at issue in this case, have likewise been construed to
protect the defendant against conviction rather than indictment
and trial. See, e.g., Heike v. United States, 217 U.S. 423, 431
(1910) (construing the Sherman Act’s immunity provision,
which protected a testifying witness from being “prosecuted,”
see Act of Feb. 25, 1903, ch. 755, § 1, 32 Stat. 854, 904
(repealed 1970), “not . . . to secure to a person making such a
plea immunity from prosecution, but to provide him with a
shield against successful prosecution, available to him as a
defense”); United States v. Bailey, 34 F.3d 683, 690–91 (8th
Cir. 1994) (holding that an agreement “not to prosecute”
protected the defendant from “the inherent risk of conviction
and punishment as a result of the trial, not the trial itself”);
United States v. Bird, 709 F.2d 388, 392 (5th Cir. 1983) (“While
the agreement is phrased in terms of nonprosecution, its essence
is a promise of immunity. [The defendant’s] immunity from
punishment will not be lost simply because she is forced to stand
trial.”).




                               19
       This distinction is grounded in the understanding that
simply being indicted and forced to stand trial is not generally
an injury for constitutional purposes but is rather “one of the
painful obligations of citizenship.” Cobbledick v. United States,
309 U.S. 323, 325 (1940); see Deaver v. Seymour, 822 F.2d 66,
69 (D.C. Cir. 1987) (“Although it is surely true that an innocent
person may suffer great harm to his reputation and property by
being erroneously accused of a crime, all citizens must submit
to a criminal prosecution brought in good faith so that larger
societal interests may be preserved.”).4 As the District of


       4
          We do not address in this opinion those circumstances
in which equity might serve to enjoin an ultra vires prosecution
brought in bad faith. The Supreme Court has only approved
federal injunctions against state criminal proceedings on that
basis. See Younger v. Harris, 401 U.S. 37, 55 (1971) (noting
that, although “the possible unconstitutionality of a statute ‘on
its face’ does not in itself justify an injunction against [a state’s]
good-faith attempts to enforce it,” a “showing of bad faith [or]
harassment” might “justify federal intervention”); see also
Howard W. Brill, Equity and the Criminal Law, 2000 Ark. L.
Notes 1, 3-4 (noting that state courts have sometimes used
injunctions to prevent bad-faith prosecutions, such as those
brought solely to “harass and to retaliate for the exercise of
constitutional rights,” or where the prosecutor charges conduct
that is not illegal). As our precedent makes clear, however, in
the absence of a state prosecution, federal-state abstention
doctrine is irrelevant and Younger does not apply. Pik-A-State
Pa., Inc. v. Reno, 76 F.3d 1294, 1300 (3d Cir. 1996). Moreover,

                                 20
Columbia Circuit noted in Deaver, in the absence of an
unconstitutional chilling effect on First Amendment rights, the
adversary system “afford[s] defendants, after indictment, a
federal forum in which to assert their defenses — including
those based on the Constitution. Because these defendants are
already guaranteed access to a federal court, it is not surprising
that subjects of federal investigation have never gained
injunctive relief against federal prosecutors.” 822 F.2d at
69–70.5



even if the principles of Younger or the willingness of certain
state courts to entertain injunctions against bad-faith or illegal
prosecutions could be applied to a federal prosecution, we
perceive no bad faith on the part of the Government in this case;
rather, the parties are engaged merely in a good-faith dispute
over the meaning of the Agreement.
       5
         We note that the District Court’s finding that Stolt-
Nielsen and Wingfield would be irreparably harmed by an
indictment does not bring this case within the ambit of the cases
in which injunctions against indictment and trial have been
approved. Even assuming that irreparable harm is a factor that
may properly be considered in deciding upon a permanent (as
opposed to preliminary) injunction — which is a matter of some
tension in our case law, compare Chao v. Rothermel, 327 F.3d
223, 228 (3d Cir. 2003) (stating that a permanent injunction may
be granted “where the moving party has demonstrated that: (1)
the exercise of jurisdiction is appropriate; (2) the moving party
has actually succeeded on the merits of its claim; and (3) the

                               21
       Although this interpretation of agreements “not to
prosecute” may seem counterintuitive, it comports with the
federal courts’ general reluctance to recognize a right not to be
indicted or tried in the absence of an express constitutional (or
perhaps statutory) command. In the context of interlocutory
appeals challenging the Government’s authority to proceed with
a prosecution, for example, the Supreme Court has allowed
those appeals only in very limited circumstances. For example,
the Double Jeopardy Clause, see U.S. Const. amend. V (“[N]or
shall any person be subject for the same offense to be twice put
in jeopardy of life or limb . . . .”), protects interests that are
“wholly unrelated to the propriety of any subsequent


‘balance of equities’ favors granting injunctive relief”), and
ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d
1471, 1477 nn.2–3 (3d Cir. 1996) (en banc) (noting that a
preliminary injunction requires consideration of, inter alia,
irreparable injury, while a permanent injunction merely requires
consideration of whether “the plaintiff has actually succeeded on
the merits,” and, if so, whether an injunction is an “appropriate
remedy” (internal quotation marks omitted)), with Shields v.
Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001) (stating that a court
may grant a permanent injunction if it finds, inter alia, that “the
moving party will be irreparably injured by the denial of
injunctive relief” (citing Black Horse Pike, 84 F.3d at 1477
nn.2–3)) — we note that, as stated above, other courts have not
accepted the argument that the unpleasantness of an indictment
brought in good faith constitutes an injury that may be remedied
by a pre-indictment injunction, and neither have we.

                                22
conviction,” in that it provides a “guarantee against being twice
put to trial for the same offense.” Abney v. United States, 431
U.S. 651, 661 (1977) (emphasis added). Because the prohibition
against double jeopardy affords a defendant the right to
“contest[] the very authority of the Government to hale him into
court to face trial on the charge against him,” it necessitates an
exception to the “firm congressional policy against interlocutory
or ‘piecemeal’ appeals.” Id. at 656, 659. Likewise, the Speech
and Debate Clause, see U.S. Const. art. I, § 6, cl. 1 (“[F]or any
speech or debate in either House, [members of Congress] shall
not be questioned in any other Place.”), has been construed “to
protect Congressmen not only from the consequences of
litigation’s results but also from the burden of defending
themselves,” thus allowing interlocutory appeals from denials of
claims of immunity under that Clause. Helstoski v. Meanor, 442
U.S. 500, 508 (1979) (internal quotation marks omitted).

        Our case is not an interlocutory appeal, but the Supreme
Court’s cases in that field are instructive because they reinforce
the narrowness of a defendant’s ability to challenge the
Government’s decision to pursue a prosecution. Just as the
authority to enjoin criminal enforcement of a law regulating
speech is grounded in the overriding need to avoid a chilling
effect on the exercise of core constitutional rights, so too does
the right not to be prosecuted recognized in Abney and Helstoski
stem from express textual commands in the Constitution that
prohibit any interference with the rights against double jeopardy
or of members of Congress to speak freely in legislative session.

                               23
          In other contexts, however, courts have refused to allow
interlocutory appeals to stop prosecutions. See, e.g., United
States v. Hollywood Motor Car Co., 458 U.S. 263, 268 (1982)
(per curiam) (holding that a vindictive prosecution claim may
not be raised in an interlocutory appeal to stop an ongoing
prosecution, but rather may only be raised after the defendant
has been convicted, because “reversal of the conviction and
. . . the provision of a new trial free of prejudicial error normally
are adequate means of vindicating the constitutional rights of the
accused”); Parr v. United States, 351 U.S. 513, 519 (1956)
(holding that the mere fact a defendant would have to “hazard
a trial” in one venue before challenging the District Court’s
order transferring his case from a different venue did not
warrant an interlocutory appeal); cf. United States v. P.H.E.,
Inc., 965 F.2d 848, 855 (10th Cir. 1992) (noting that, in
comparing the vindictive prosecution claim in Hollywood Motor
Car to a vindictive prosecution claim based on the defendants’
dissemination of constitutionally protected speech, “[t]he wrong
alleged is similar, but the right sought to be vindicated is not”
because the “procedural rule [at issue in Hollywood Motor Car]
raises concerns distinct from and less pressing than the courts’
obligation to protect the First Amendment right not to be
subjected to a pretextual prosecution”). Indeed, when a district
court rejects prior to trial a defendant’s contention that an
immunity agreement bars his conviction, the defendant may not
avail himself of an interlocutory appeal challenging that
decision; rather, “the availability of dismissal after final
judgment will adequately protect and secure for the defendant

                                 24
the benefit of his bargain under the nonprosecution agreement
if he is entitled to it.” Bailey, 34 F.3d at 691; see Bird, 709 F.2d
at 392 (same).

        Here, Stolt-Nielsen and Wingfield may interpose the
Agreement (as a defense to conviction) in a pre-trial motion.
See, e.g., Meyer, 157 F.3d at 1077 (“In accordance with due
process, [the defendant] was entitled to a judicial determination
that he had breached the agreement before being subjected to the
risk of conviction. The district court’s pretrial [but post-
indictment] evidentiary hearing satisfied this requirement.”).6


       6
          In our view, the pre-trial determination approved by the
Seventh Circuit in Meyer does not conflict with the observations
of the Fifth and Eighth Circuits that non-prosecution agreements
of the sort involved in this case protect against the risk of
conviction and punishment, not trial. See Bailey, 34 F.3d at
691; Bird, 709 F.2d at 392. For one thing, Bailey and Bird
concerned attempted interlocutory appeals from district court
denials of post-indictment claims that immunity agreements
barred conviction, and as such were not concerned with the
timing of the claims in the district court. In any event, it is not
in the interest of defendants or the Government, once an
indictment has been issued, to proceed with a trial before
determining whether an immunity agreement bars conviction.
We therefore agree with the Seventh Circuit that a pre-trial
hearing is appropriate in these circumstances. We note,
however, that this timing is not essential, and a defendant may
raise an immunity agreement as a defense during the trial.

                                25
But their contention that the immunity they purportedly received
under the Agreement precludes an indictment in the first place
is belied by precedent, and we see no compelling reason to reach
a different result in this case.

                       *    *   *    *   *

        “[A] suit in equity does not lie where there is a plain,
adequate and complete remedy at law . . . [that is] as complete,
practical and efficient as that which equity could afford.”
Terrace v. Thompson, 263 U.S. 197, 214 (1923). Here, Stolt-
Nielsen and Wingfield have a practical and efficient — and
indeed complete — legal remedy available to them, i.e., access
to a federal forum post-indictment in which they may assert the
Agreement as a defense. Separation-of-power concerns thus
counsel against using the extraordinary remedy of enjoining the
Government from filing the indictments. Although courts have
carved out a narrow exception to this rule in those cases in
which the very act of filing an indictment may chill First
Amendment rights, this case does not implicate that concern.
Instead, we are guided by other cases in which the Supreme
Court and Courts of Appeals have held that non-prosecution
agreements may not form the basis for enjoining indictments
before they issue.

       In this context, we conclude that the District Court lacked
authority to employ the extraordinary remedy of enjoining the
Government’s indictments of Stolt-Nielsen and Wingfield. The

                                26
judgment is therefore reversed and the case remanded with the
instruction that the District Court dismiss their complaints with
prejudice.7




       7
         Because we conclude that the District Court lacked the
power to enjoin the filing of indictments in this case, we need
not consider, at this stage, the Government’s alternative
argument that the District Court inappropriately concluded that
Stolt-Nielsen’s and Wingfield’s actions between March and
November 2002 did not violate the terms of the Agreement. As
stated, the District Court’s lack of authority compels us to
reverse the judgment and remand to that Court so that it may
dismiss the complaints. Because the judgment is reversed, it
lacks preclusive effect. See, e.g., Joseph A. ex rel. Wolfe v.
Ingram, 275 F.3d 1253, 1266 (10th Cir. 2002) (“A judgment that
has been vacated, reversed, or set aside on appeal is thereby
deprived of all conclusive effect, both as res judicata and as
collateral estoppel.” (internal quotation marks omitted)).
Therefore, if the appellees assert the Agreement as a defense
after they are indicted, the District Court must consider the
Agreement anew and determine the date on which Stolt-Nielsen
discovered its anticompetitive conduct, the Company’s and
Wingfield’s subsequent actions, and whether, in light of those
actions, Stolt-Nielsen complied with its obligation under the
Agreement to take “prompt and effective action to terminate its
part in the anticompetitive activity being reported upon
discovery of the activity.”

                               27
