EFTA00191587

1450 
on FEDERAL REPORTER, 2d SERIES 
on his Fifth Amendment privilege against 
self-incrimination. 
18 U.S.C. § 6003(a). 
The statute authorizes the granting of 
"use" and derivative use immunity. 
18 
U.S.C. § 6002. Several points are notewor-
thy. First, a United States Attorney does 
not have the power to grant formal immu-
nity. Instead, he must first subpoena a 
witness and if the witness invokes the Fifth 
Amendment privilege, the prosecutor must 
obtain approval by the Attorney General or 
Deputy Attorney General and then request 
the court to order the witness to testify. 
18 US.C. § 6003.' Second, the statute only 
authorizes use immunity, not transactional 
immunity. Third, since formal immunity is 
granted to overcome a witness' invocation 
of the Fifth Amendment, the Supreme 
Court has held that the scope of the immu-
nity granted must be as broad as the privi-
lege. Kastigar, 406 U.S. at 460, 92 S.Ct. at 
1859. 
Due to the cumbersome requirements of 
obtaining properly authorized statutory im-
munity, U.S. Attorneys often make infor-
mal agreements with individuals in return 
for their cooperation. See United States a 
Quatermain, 613 F.2d 38, 45 (3d Cir.) (Al-
disert. J., dissenting), cert. denied, 446 U.S. 
954, 100 S.Ct 2923, 64 L.Ed.2d 812 (1980). 
The agreements are perfectly analogous to 
plea agreements: an individual with valu-
able information bargains with the prosecu-
tor with respect to pending charges in re-
turn for that individual's cooperation. A 
usual condition of cooperation is that the 
individual not be subject to prosecution for 
any of the information he provides. See id 
A prosecutor's power to grant informal 
immunity derives from his inherent discre-
tion over prosecuting cases; just as a pros-
ecutor has the discretion to plea bargain, 
he has the discretion to grant an individual 
immunity from prosecution. We have held 
that "due process requires the prosecutor's 
promise to be fulfilled." Rowe ro. Gr(05n, 
676 F.2d 524, 528 (11th Cir.1982); see also 
Plaster v. United States, 789 F2d 289, 293 
(4th Cir.1986); United States v. Fountain, 
776 F.2d 878, 882 (10th Cir.1985); United 
I. Immunity Is only available when the testimo-
ny is necessary to the public interest and the 
individual has refused or is likely to refuse to 
Stales v. Carter, 454 F.2d 426, 428 (4th 
Cir.1972). 
This practice has been dubbed "informal 
immunity," "hip pocket immunity," see 
Quatermain, 613 F.2d at 45, or "equitable 
immunity." Rowe, 676 F.2d at 626. Addi-
tionally, since the prosecutor often agrees 
not to prosecute at all, these agreements 
are sometimes carelessly labeled "transac-
tional immunity." See Rowe, 676 F.2d at 
526 (since prosecutor promised Rowe there 
would be no subsequent prosecution, court 
stated he was offered "transactional immu-
nity"). All these terms are unfortunate 
misnomers because they lead to confusion 
with formal statutory immunity. Such con-
fusion ignores the fact that the two types 
of immunity derive from totally different 
sources and that the source of the immuni-
ty determines the scope of a specific grant 
of immunity. 
For example, 18 U.S.C. 
I 6002 only authorizes use immunity. 
More importantly, because statutory immu-
nity is granted to avoid reliance on the 
Fifth Amendment privilege, the scope of 
immunity must be coextensive with the 
Fifth Amendment privilege. 
The Fifth 
Amendment only protects an individual 
against divulging information about future 
conduct if he faced a substantial risk of 
incrimination as to those events at the time. 
See United States v. Awn; 401 U.S. 601, 
603, 91 S.Ct. 1112, 1115, 28 1...Ed.2d 356 
(1971) (firearm registration requirement did 
not violate Fifth Amendment); Marchetti 
v. United States, 390 U.S. 39, 53, 88 S.Ct. 
697, 705, 19 1.-Ed.2d 889 (1968) (tax regis-
tration requirements violated fifth amend-
ment because registrants could expect pro-
visions to serve as evidence of violation of 
gambling laws). It therefore follows that 
under a formal grant of immunity, a wit-
ness is only immunized with respect to 
conduct if he faced a substantial risk of 
incrimination as to those events when he 
testified. 
In cases of informal immunity, however, 
the scope of the immunity is not limited by 
testify on the basis of the Privilege- 18 1-1.8.C-
6003. 
EFTA00191787

the Fifth Amendment. 
pointed out, 
under the self-incrimination clause of the 
filth amendment, evidence of guilt in-
duced by a government promise of immu-
nity is 'coerced' evidence and may not be 
used against the accused. For purposes 
of compelling testimony which otherwise 
would be privileged by the fifth amend-
ment, all that is constitutionally required 
is a grant of use immunity. However, in 
order to wore testimony, evidence or 
other cooperation from a potential 
criminal defendant, a prosecutor may 
see fit to promise complete immunity 
from prosecution. 
Rowe, 676 F.23 at 627 (emphasis added). 
Rowe holds that the government must of-
fer at least use immunity when an individu-
al is induced to cooperate, but that there is 
no Limit to what the defendant can demand 
in return for his cooperation. See Quota-
main, 613 F.28 at 45 (Aldisert, 3., dissent-
ing) ("(71The United States Attorney is at 
liberty to impose conditions that usually 
relate to testifying or providing certain in-
formation. For his part the ... informant 
often imposes conditions of his own, usual-
ly relating to agreements not to prosecute 
but often covering other matters as 
well[.]"). If the potential informant de-
mands too much, the government may de-
cide that the information is not worth the 
price or the government can always sub-
poena the potential informant to testify 
before a grand jury or at the trial thereby 
ensuring that the informant is only granted 
use immunity. This discussion illustrates 
that the scope of an informal grant of 
immunity depends on the bargain struck. 
The majority therefore is incorrect to 
assume the same principles apply to deter-
mining the scope of formal and informal 
immunity. In determining that the Fifth 
Amendment defines the scope of a grant of 
informal immunity, the majority ignores 
the cited quotation from Rowe. The only 
case the majority cites as support for its 
2. In 1965, the state Attorney General agreed not 
to prosecute Rowe in return for his testimony at 
the grand Jury and at trial. After new inform.. 
lion arose that Rowe might have lied about 
whether he actually fired any of the fatal shots. 
U.S. v. HARVEY 
1451 
otos 619 rid 1434 (11th at nen 
As Judge Fay has 
conclusion is United States v. Quour-
main, 618 F.2d 88 (8d Cir.1984). Unfortu-
nately, in Quaterntain, the court specifical-
ly held that the informant was granted 
"the minimum immunity required by the 
Constitution"—that is, use immunity. Id 
at 88 (emphasis added). Therefore, the fact 
that the agreement provides use immunity 
made the Fifth Amendment case law rele-
vant, not the fact that it was an informal 
grant of immunity. 
Rowe provides the appropriate analysis 
to apply in cases of informal immunity. In 
Rowe, the court considered a prosecutor's 
agreement not to prosecute a Ku Klux 
Klan informant in return for the informa-
tion he provided the state concerning a 
murder during the Selma to Montgomery 
Civil Rights March. 676 F.2d at 525.2 The 
court held that such an agreement must be 
enforced when the defendant proves that 
an agreement was made, that he performed 
his side and that the prosecution was di-
rectly related to the assistance the defen-
dant had given. 
The court specifically 
analogized to the case law on plea agree-
ments and held that "as a matter of fair 
conduct, the government (must) honor such 
an agreement(.]" Id. at 527. 
It follows then that the case law concern-
ing the interpretation of plea agreements is 
relevant to the interpretation of this type 
of an agreement made by the prosecutor. 
See id at 528 ("this contractual analysis 
applies equally well to promises of immuni-
ty from prosecution"). This court inter-
prets a plea agreement consistently with 
what the defendant reasonably understood 
when he entered the plea. In re Arnett, 
804 F.28 1200, 1201-02 (11th Cir.1986). 
The court first determines whether the 
written agreement is ambiguous on its 
face. If the agreement is unambiguous 
and there is no allegation of government 
overreaching, the court will enforce the 
agreement according to its plain words. 
United States v. (Michael) Harvey, 191 
F.2d 294, 300 (4th Cir.1986). If the agree 
the state attempted to prosecute him for mut. 
der. Rowe brought suit under 42 US.C. § 1983 
to enjoin the state prosecution. 676 F.24 at 
525-26. 
EFTA00191788

1452 
869 FEDERAL REPORTER, 2d SERIES 
ment is ambiguous, the ambiguity "should 
be resolved in favor of the criminal defen-
dant" Rowe, 676 F.2d at 626 n. 4 (ambi-
guity over whether Attorney General's 
promise bound future Attorney General 
was resolved in favor of the defendant); 
see In re Arnett, 804 F.2d at 1203 (govern-
ment breached the agreement when it 
sought forfeiture of defendant's farm since 
written agreement ambiguous as to wheth-
er government would seek forfeiture of 
property and government could not satisfy 
heavy burden of proving defendant under-
stood government reserved right to seek 
property forfeiture): United States v. (Mi• 
chat!) Harvey, 791 F.2d at 301 (imprecision 
in terms of written agreement construed 
against the government). 
11 
In this case, Harvey was not granted 
formal statutory immunity. He was never 
called to testify and never invoked his Fifth 
Amendment privilege. If he had been 
granted statutory immunity, a discussion 
of the scope of Harvey's Fifth Amendment 
privilege would be relevant. Instead, Har-
vey bargained with the government. In 
return for the information he provided, the 
government agreed to drop the charges 
against him in Mobile and agreed not to 
prosecute him for any crimes related to the 
information he gave. There is no doubt 
that Harvey entered an agreement with the 
government and that he performed his side. 
The crux of this case, therefore, depends 
on an interpretation of the agreement not 
to prosecute. 
The magistrate reconstructed the agree-
ment and found that Harvey had been 
granted both "transactional" and "use" im-
munity for the information he provided. 
The magistrate also determined that Har-
vey had told the government about the 
Cayman Islands funds. The majority ap-
parently takes comfort from this finding, 
stating "we are working solely with the 
familiar categories of transactional and use 
immunity, and do not face any different 
'species' of immunity—e.g., an express 
agreement not to prosecute for future tax 
violations with respect to the Cayman Is-
lands." Supra at 1446 n. 10. Indeed as I 
read the majority opinion, its holding that 
Harvey's immunity is only as broad as the 
fifth amendment Is explicitly dependent on 
this factual finding. See supra at 1446 
("By the same token, we believe that—ab-
sent any contrary factual finding—we 
should not conclude that the scope of the 
immunity Harvey received was any greater 
than that of the fifth amendment privilege 
he gave up.") (Emphasis added). I find this 
statement incomprehensible since the only 
"species of immunity" the prosecutor was 
414lltonied to grant was an agreement not to 
prosecute. Additionally, the magistrate's 
use of the terms "transactional" and "use" 
immunity should not be given such great 
weight since the term "transactional" immu-
nity has been used by this court to describe 
an agreement not to prosecute. See Rowe, 
676 F.2d at 526; Quatermain, 613 F.2d at 
44 (Aldisert, J., dissenting) (although the 
district court phrased its discussion in 
terms of transactional and use immunity, 
analyzing it as an agreement not to prose-
cute leads to same result). Furthermore, it 
is clear from the magistrate's opinion that 
although she used the terms "transaction-
al" and "use" immunity, she understood 
the critical distinction between formal and 
informal immunity. 
In rejecting the 
government's argument that it had no pow-
er to grant "transactional" immunity, the 
magistrate held 
what the government confuses with re-
spect to immunity is the court's power 
under 18 U.S.C. 6001 et seq. to force an 
unwilling defendant to testify versus the 
government's virtually unbridled discre-
tion to plea bargain with any defendant 
as to terms offered by the government 
With respect to § 6001 immunity, the 
court can compel a defendant to testify, 
but can only grant him use and not 
transactional immunity. On the other 
hand, the executive branch can grant 
transactional immunity in the form of a 
bargain and does not need the blessing 
of the court to do so. 
Record, Vol. 3, Tab 72 at 22. Indeed, the 
magistrate applied the principles applicable 
to plea agreements to what she described 
"transactional" immunity. Therefore, de-
EFTA00191789

U.S. I 
HARVEY 
1453 
Marlin 
filthCU. 1119) 
spite the majority's wishful thinking, we 
are dealing with an agreement not to prose 
cute. 
In this case, the government never wrote 
down the terms of the agreement. Addi-
tionally, there is no record of the informa-
tion Harvey provided. Clearly the written 
terms of the agreement would be the start-
ing place for determining the scope of im-
munity Harvey was granted. Due to the 
government's gross negligence, however, 
we are forced to reconstruct the terms of 
the agreement' In order to do so, the 
court must look to the testimony of those 
involved in negotiating the agreement to 
determine what Harvey believed the agree-
ment provided and whether Harvey's ex-
pectations were reasonable. 
Jerry Harvey testified that the govern-
ment "agreed nothing I ever give (sic] 
them would be used against me, nor would 
any U.S. Attorney's Office seek to prose-
cute me for anything; that I was just get-
ting a clean walk, and I should stay on the 
Government's 
side 
and 
help 
them." 
Record Vol. 8, Tab 72 at 14. Harvey's 
attorney, Tom Haas, testified that "the 
understanding I had with 
gent] 
was that nothing that Je 
Ha
to 
them, or any agent on
nt 
would ever at any time be used against 
Jerry 
Harvey." 
Id. 
at 
15. 
This 
testimony supports Harvey's argument 
that he believed he was immune from any 
prosecution related to the information he 
gave. Significantly, no testimony by either 
of the prosecutors involved in the negotia-
tions rebutted Harvey's broad interpreta-
tion of the agreement. In response to a 
question by the court, the U.S. Attorney 
for the Southern District of Alabama, Wil-
liam Kimbrough, testified that Harvey was 
3. I emphasize this point because the majority 
suggests. supra at 1442-1443, that the only prob. 
lea is that 
• 
record of the informauon 
IS 
provided by 
While that omission is 
Important. it is
 problematic (and ulti. 
mately decisive in my mind) that there is no 
record of the terms of the agreement. 
4. This is despite the fart that a letter from Mr. 
Sullivan was introduced in which he asked a 
state prosecutor to consider the fact that Harvey 
had cooperated with both the U.S. Attorney and 
the Drug Enforcement Agency. Additionally. 
given use Immunity but that he did not 
know whether or not he was given transac-
tional immunity. Finally, the prosecutor 
most intimately involved with the agree-
ment Patrick Sullivan, an Assistant U.S. 
Attorney in the Southern District of Flor-
ida had no recollection of any involvement 
with Jerry Lee Harvey.' He could not 
remember speaking to the Mobile U.S. At-
torney's office or having any negotiations 
with Harvey. 
The court must interpret an agreement 
consistently with the defendant's reason-
able interpretation of the agreement. In 
this ease, the government has failed to 
offer any evidence to disbelieve Harvey's 
view of the agreement 
Instead, the 
government argues that it was unreason-
able for Harvey to believe that the agree-
ment would shield him from prosecution 
for future tax violations relating to the 
Cayman Islands funds. I do not agree. It 
is not at all clear that a lay citizen would 
understand that a government's agreement 
not to prosecute for anything related to the 
Cayman Islands funds would not preclude 
prosecution for failure to declare interest 
from those funds. In addition, since we 
have no record of the agreement we have 
no way of knowing what the government 
officials represented to Harvey as the 
terms of the agreement- In the absence of 
some evidence that Harvey knew the 
agreement would not cover these crimes,' I 
cannot accept the government's position. 
See (Michael) Harvey, 791 F.2d at 300 (due 
process requires holding government to a 
greater degree of responsibility for ambi-
guity in plea agreement than defendant). 
Furthermore, to the extent that the govern-
ment's argument is based on the belief the 
Mr. Sullivan was unable to recall having used 
Harvey as a witness In a case In which he was 
the trial prosecutor some three to five years 
before the agreement. 
S. I emphasize the narrowness of such a holding. 
The terms of the agreement, if preserved, might 
have contradicted Hanty's interpretation. 
Even if the agreement was ambiguous, a tran-
script or even notes of the negotiations might 
have shown that Harvey's position is unreason. 
able. 
EFTA00191790

1454 
889 FEDERAL REPORTER, 2d SERIES 
government had no authority to enter the 
agreement as Haney perceived it because 
it granted immunity for future crimes, it is 
not persuasive. Pint, it is not apparent 
that Harvey would know that the govern-
ment did not have the power to enter the 
agreement as he perceived it. Second, that 
argument ignores the possibility that the 
government may have lead Harvey to be-
lieve (or at least contributed to his misun-
derstanding) that the agreement offered 
such immunity. Finally, this court has nev-
er refused to enforce a plea agreement just 
because the government made a bad deal. 
I would therefore hold that the govern-
ment agreed that it would not prosecute 
Harvey with respect to the Cayman Islands 
funds and that Harvey believed that he 
would not be prosecuted for failing to re-
port the interest on the Cayman Islands 
funds. This does not mean that Harvey 
was immunized from declaring the interest. 
Quite the contrary, I believe that Harvey 
was required to pay taxes on the interest 
and that the government may collect those 
back taxes. It may not, however, crimi-
nally prosecute Harvey for failing to re-
port his interest I also do not believe that 
the agreement forever insulates Harvey 
from criminal prosecution for failing to re-
port his taxes. Because the government 
failed to provide any evidence to disbelieve 
Harvey's view of the agreement, it is ap-
parent that the indictment entered against 
Harvey on November 25, 1985 for the fret 
time put Harvey on notice that his under-
standing of the agreement conflicted with 
the government's view. After that point, it 
became unreasonable for Harvey to believe 
the agreement provided such broad immu-
nity. 
III 
In conclusion I wish to emphasize that 
this case presents unique facts and con-
cerns which fortunately are of infrequent 
occurrence. The concern of the majority is 
that my view provides carte blanche au-
thority to U.S. Attorneys to enter into plea 
agreements that will insulate criminals 
from liability for future criminal conduct. 
That concern has many answers, the chief 
of which is that U.S. Attorneys are respon-
sible persons who do not conduct them-
selves as apprehended by the majority. I 
have tried to make clear that the holding is 
limited to the facts of this case. In this 
case, it was not unreasonable for Harvey to 
believe that the agreement covered the fu-
ture tax consequences from the informa-
tion he provided. Indeed, I have attached 
as an appendix excerpts from the testimo-
ny before the magistrate which show that 
the government may have interpreted the 
agreement to cover even more than this. I 
have also made clear that once Harvey was 
put on notice by the government that he 
was required to include income from the 
Cayman Island bank accounts on his in-
come tax returns, he no longer could con-
sider himself immune from prosecution for 
failure to report the income. Due process 
of law in the context of this case requires 
that Harvey be provided advance notice of 
the government's interpretation of the 
agreement, especially if the government's 
interpretation changed. 
The majority contorts this simple case 
concerning an agreement not to prosecute 
into a use or transactional immunity case 
and then relies on irrelevant Fifth Amend-
ment case authority. 
Here the same 
government that promised Harvey in a 
bona fide agreement that it would not seek 
to jail him based on information furnished 
in 1980 now seeks to breach that agree-
ment. It must be remembered that the 
district court found: "that tainted evi-
dence, evidence for which the defendant 
received both use and transactional immu-
nity, was presented before the grand jury 
which returned the (tax evasion] indictment 
against hint" 
The majority fears that if the govern-
ment is required to abide by its contract, a 
pandora's box will be opened where federal 
prosecutors will immunize criminals from 
being prosecuted for future crimes. That 
is obviously unreal. As I have explained, 
this case is an aberration. U.S. Attorneys 
seldom make oral agreements like this. 
We can have confidence that U.S. Attor-
neys will not abuse the inform' method of 
granting immunity and presumably such 
agreements will be reduced to writing. 
EFTA00191791

U.S.I HARVEY 
1455 
Oa elbrt r 
(What 11909) 
Harvey's due process rights not to be 
prosecuted pursuant to the government's 
agreement are violated by the majority's 
reversal of the district court's dismissal of 
the tainted indictment. 
APPENDIX 
The following are excerpts from the 
magistrate's report. (Record, Vol. 8, Tab 
72). 
Tom Ham [Harvey's attorney] and 
William Kimbrough, who was at the time 
of the agreement the U.S. Attorney in 
the Southern District of Alabama, testi-
fied the deal negotiated with Harvey was 
that Haney would not be prosecuted for 
anything about which he told the Govern-
ment nor would anything he said be used 
against him. 
Q. by Leonard Sands 
A. by Tom Haas 
Q. What was the bargain that was ulti-
mately struck with the two of them? 
A. Once it had been understood that he 
might be able to supply these things, the 
understanding I had with Ruddy and Bil-
ly was that nothing that Jerry Harvey 
said to them, or any agent on the 
Government would ever at any time be 
used against Jerry Harvey. 
Q. And what does that mean, "would 
ever be used against Jerry Harvey? 
A. That he wouldn't be prosecuted on 
the basis of what they found out from 
him. 
Q. What instructions or advice did you 
give Jerry Haney prior to his attending 
this meeting at the Sheraton? 
A. Well, I told him just what I just said, 
and I remember that Jerry was very 
skeptical about that He didn't seem to 
trust anybody, and maybe he didn't trust 
me either. Really, he didn't know me' 
anything about me. I was a small town 
lawyer in a small town to him, and I 
don't recall who had referred him to me. 
I usually try to find that out, particularly 
in drug cases, because I don't want to 
get in a situation where I am getting 
paid by somebody else. 
I 'mow that he was skeptical. I know 
he didn't trust anybody, and I had to 
literally force him to comply. I said, "I 
know these people, U.S. Attorney, and 
Assistant U.S. Attorney." I said, "I 
would stake my life on their honor and 
veracity." 
Mr. Sands asked Mr. Kimbrough: 
Q. In return for Harvey's furnishing 
information, what was he to receive? 
A. I was to dismiss the Indictment 
against him. 
Q. Do you know whether or not any—
A. And I would not prosecute him for 
anything he said; and I would not use 
anything he said as a means of going 
beyond this agreement to try to stir up 
trouble for Harvey. 
Q. At that time as United States Attor-
ney, you were speaking for yourself, and 
Southern District of Florida? 
A. I can't say that. It was certainly my 
understanding 
that 
somebody 
had 
touched base with South Florida who 
wanted the information, and I assumed, 
and I continued to assume that nobody 
would have—
I certainly would not have asked Mr. 
Harvey to make a total disclosure had 
thought that in doing so, I, you know, 
turned him loose to prosecution in some 
other district. I have no personal knowl-
edge of that. That is all I am saying. 
That is not the way we operated, I as-
sure you. We tried to treat everybody 
as human beings, although we tried to 
put some of them in the penitentiary. 
• 
• 
• 
• 
• 
• 
THE COURT; I need to interrupt you, 
Mr. Sands. Mr. Kimbrough, you made 
the statement that you would not have 
prosecuted him for anything he told you 
about. 
Now, there are all different kinds of 
immunities, and we have been discussing 
that. We have been discussing transac-
tional immunity versus use immunity. 
If in telling you about all drug-related 
murders about which he had knowledge, 
Mr. Harvey told you that he killed some-
EFTA00191792

1456 
869 FEDERAL REPORTER, 2d SERIES 
APPENDIX—Continued 
body in Mobile, Alabama, pursuant to 
this agreement, and this letter, and your 
understanding of this, could you prose-
cute him for that murder? 
THE WITNESS: 1 don't know. I prob-
ably •ouldn't have. 
THE COURT: Could you use his state-
ment or facts that he gave you in the 
statement in building of the murder 
ease?
THE WITNESS: No, because it would 
be derived from the statement he gave. 
• 
• 
• 
• 
• 
Q. by Leonard Sands 
A. by Jerry Lee Harvey 
Q. As a result of those conversations, 
was it your understanding you had an 
agreement with the U.S. Attorneys Of-
fice in the Southern District of Alabama? 
A. I knew I did. Mr. Kimbrough, and 
Mr. Fevre told me, and Tom Haas told 
me. 
Q. What did they tell you your deal 
was? What were you supposed to do? 
A. I was supposed to tell them every-
thing I knew about drug trafficking, peo. 
ple involved, how it took place, what hap-
pened to the funds, how you would reg-
ister airplanes fictitiously. Anything I 
knew from 1975, and everything I had 
done from '75 up to the present time. 
Q. And what was the Government's ob-
ligation to you in return for your cooper-
ation? 
A. They agreed nothing I ever give 
them would be used against me, nor 
would any U.S. Attorney's office seek to 
prosecute me for anything; that I was 
just getting a clean walk, and I should 
stay on the Government's side and help 
them. 
The best that can be said as a summa-
ry of the evidence or statement made by 
Harvey to the Drug Enforcement Agents 
at that meeting is that Harvey told them 
all about his drug dealings in which he 
had been involved prior to his arrest in 
June of 1980, and including the arrest of 
1980. This Court specifically finds from 
the facts adduced at the hearing that the 
defendant Harvey also divulged to the 
Drug Enforcement Administration his fi-
nanci►l dealings with respect to his it 
legal drug deals. 
HATCHETT, Circuit Judge, 
dissenting. 
I join Judge Clark's dissent. The agree-
ment in this case coven the subject funds. 
I hasten to add that nothing is gained by 
encouraging the government to enter into 
informal agreements, the terms of which 
are determined through evidentiary hear-
ings in the district court and fact-finding in 
the in bane court, after the accused has 
completed performance. 
Roy LOHR and Larry Randolph. 
Plaintiffs-Appellees, 
U 
STATE OF FLORIDA DEPARTMENT 
OF CORRECTIONS, et al., 
Defendants, 
Ken Ault, Defendant—Appellant. 
No. 81-5122 
Non—Argument Calendar. 
United States Court of Appeals. 
Eleventh Circuit. 
April 14, 1989. 
Keith C. Tischler, Parker, Skelding, Cos-
tigan, McVey & Labasky, Tallahassee, Fla., 
for defendant-appellant. 
Evan I. Fetterman and Salvatore Seibet-
ta. Fetterman & Associates, North Palm 
Beach, Fla., for plaintiffs-appellees. 
Appeal from the United States District 
Court for the Southern District of Florida. 
Before HILL, VANCE and CLARK, 
Circuit Judges. 
EFTA00191793

Page 1 of 3 
Westlaw. 
CJS INJUNCTION § 281 
43A C.J.S. Injunctions § 281 
Corpus Juris Secundum 
Database updated December 2007 
Page I 
Injunctions 
By John Bourdeau, J.D., Nicole D. Fox, J.D., John R. Kennel, J.D., of the National Legal Research Group, Charles 
J. Nagy, J.D., Thomas Muskus, J.D., Eric C. Surette, J.D. 
IV. Subjects of Protection and Relief 
H. Criminal Acts, Conspiracies, Prosecutions, and Judgments 
2. Criminal Proceedings, Prosecutions, and Judgments 
Topic Summary References Correlation Table 
§ 281. When injunctive relief available 
West's Key Number Digest 
West's Key Number Digest, Injunction C=105(1) 
There are circumstances under which the courts properly make exceptions to the general rule that equity will 
not interfere with criminal process by entertaining actions for injunction in advance of criminal prosecutions. 
An injunction to restrain a criminal prosecution may issue where a statute authorizes such relief,[FNI] and 
apart from statute, there are circumstances under which courts properly make exceptions to the general rule that 
equity will not interfere with criminal processes by entertaining actions for injunction in advance of criminal 
prosecutions.[FN2] More specifically, an injunction to restrain a criminal prosecution lies where it is shown that 
the prosecution is for the sole purpose of unlawfully taking property, destroying the business of the plaintiff,[FN3] 
or will result in irreparable injury to the plaintiff,[FN4) and the plaintiff has no adequate remedy at law.[FN5] 
Furthermore, there must be a grave danger of impending or imminent injury to the person or property rights; a mere 
threat or bare fear of such injury is not sufficient.[FN6) 
So long as the court has jurisdiction and the case is not moot,(FN7] the grant or denial of an injunction is a 
matter for the trial court in the exercise of its sound discretion according to the circumstances and exigencies of 
each particular case.[FN8] It is dependent on the establishment of a clear legal right to the relief sought.[FN9) 
Special circumstances making injunctive relief appropriate may involve prosecution in bad faith[FNIO] and 
the use of criminal statutes to suppress and chill constitutionally protected rights.[FN I I] In a proper case, unlawful 
proceedings in a criminal prosecution may be restrained,[FNI2] and injunctive relief may be available prior to an 
indictment.[FNI3] The action may or should be brought by one having standing to sue,[FN14] and equity is not 
restricted in affording relief to one who would be subject to prosecution under the law or ordinance,[FN15] but 
ordinarily, one who has not been indicted, arrested, or even threatened with prosecution has no standing to bring a 
02007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
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Page 2 of 3 
OS INJUNCTION § 281 
43A C.J.S. Injunctions § 281 
suit for injunction.[FN16] 
Page 2 
Suit relating to same matters pending in equity. 
Another exception to the general rule is that a court of equity will restrain a criminal prosecution begun while 
there is pending in equity a suit to try the same right between the same parties.[FN17] It has been stated that this 
rule is limited to cases where the parties sought to be enjoined have as plaintiffs submitted themselves to the court 
in the equity proceeding.(FN18] The suit must be pending in equity when the injunction is sought,(FN19) and the 
subject matter of the two proceedings must be identical.[FN20] 
It has been broadly stated that equity will enjoin a criminal proceeding if necessary to prevent a multiplicity of 
suits.[FN21] Furthermore, in some cases an exception to the general rule denying injunctive relief has been made 
on the ground that the prosecutions sought to be enjoined were vexatious and oppressive.[FN22] 
[FN1] Neb.—Webber'. City of Scottsbluff, 141 Neb. 363, 3 N.W.2d 635 (1942). 
[FN2] Ga.—Sarrio 
Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). 
[FN3] Ark.-Billy/Dot, Inc. 
Fields, 322 Ark. 272, 908 S.W.2d 335 (1995). 
Ga.—Sarrio 
Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). 
(FN41 U.S.-Scolaro I. District of Columbia Bd. of Elections and Ethics, 946 F. Supp. 80 (D.D.C. 1996). 
Ga.—Sarrio 
Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). 
(FN5] U.S.—Metro Medical Supply, Inc. 
Shalala, 959 F. Supp. 799 (M.D. Tenn. 1996). 
Ga.—Sarrio 
Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). 
(FN6) U.S.—Gersten 
Rundle, 833 F. Supp. 906 (S.D. Fla. 1993), affd, 56 F.3d 1389 (11th Cir. 1995). 
Ga.—Sarrio 
Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). 
[FN7] Ark.—Dickey 
Signal Peak Enterprises, 340 Ark. 276, 9 S.W.3d 517 (2000). 
Tenn.-Storey'. Nichols, 49 S.W.3d 288 (Tenn. Ct. App. 2000). 
[FN8] Wyo.—Nation 
Giant Dmg Co., 396 P.2d 431 (Wyo. 1964). 
[FN9] N.Y.—Weiss'. Beckmann, 197 Misc. 414, 96 N.Y.S.2d 66 (Sup 1950). 
[FN 10] U.S.—In re Scott, 166 B.R. 779 (D. Mass. 1994). 
La.—Board of Com'rs of Orleans Levee Dist.'. Connick, 654 So. 2d 1073 (La. 1995). 
A.L.R. Library 
Proceedings for injunction or restraining order as basis of malicious prosecution action, 70 A.L.R. 3d 536. 
C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
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C.IS INJUNCTION § 281 
Page 3 
43A C.J.S. Iniunctions § 281 
[FN11] U.S.—Metro Medical Supply, Inc. 
Shalala, 959 F. Supp. 799 (M.D. Tenn. 1996). 
[FN12] U.S.-U.S.'. Hasiwar, 299 F. Supp. 1053 (S.D. N.Y. 1969). 
[FN13] N.Y.-Simonsonil Cahn, 33 A.D.2d 790, 307 N.Y.S.2d 581 (2d Degn 1969), ordcr affd, 27 
N.Y.2d I, 313 N.Y.S.2d 9 , 261 N.E.2d 246 (1970). 
[FN14] U.S.—Younger 1 Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). 
[FNIS] U.S.—New Am. Library of World Literature I. Allen, 114 F. Supp. 823, 52 Ohio Op. 289, 67 Ohio 
L. Abs. 143 (N.D. Ohio 1953). 
[FN16] U.S.—Algs, Inc. 
Crosland, 327 F. Supp. 1264 (M.D. Ala. 1971), order af d, 459 F.2d 1038 (5th 
Cir. 1972). 
[FN17] U.S.—Packard 1 Banton, 264 U.S. 140, 44 S. Ct. 257, 68 L. Ed. 596 (1924). 
[FN18] Fla.—Gulf Theatres'. State ex rel. Ferguson, 133 Fla. 634, 182 So. 842 (1938). 
[FN191 U.S. Hartirader 1. Wadley, 172 U.S. 148, 19 S. Ct. 119, 43 L. Ed. 399 (1898). 
[FN20] Fla.—Coleman 
Greene, 136 Fla. 276, 186 So. 541 (1939). 
[FN21] Pa.—Pennsylvania Soc. for Prevention of Cruelty to Animals 
Bravo Enterprises, Inc., 428 Pa. 
350, 237 A.2d 342 (1968). 
[FN22] Ala.—Quinnelly I. City of Prichard, 292 Ala. 178, 291 So. 2d 295 (1974). 
C 2007 Thomson/West. No Claim to Orig. U.S. Govi. alorks. 
aS INJUNCTION § 281 
END OF DOCUMENT 
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EFTA00191796

STOLT-NIELSEN, S.A.' U.S. 
177 
CIleas443 F.3d 177 Ordar. 3006) 
Count Three is ripe for federal adjudica-
tion, and the District Court's dismissal on 
this ground will be reversed. We reserve 
judgment on whether a claim upon which 
relief can be granted has been stated. 
The facial SDP and EPC challenges to the 
Ordinance and the SDP challenge to appel-
lees' obstructive course of conduct prior to 
the enactment of the Ordinance are ripe 
for review. The complaint states a facial 
SDP claim upon which relief can be grant-
ed as to the Ordinance, and a SDP claim 
as to appellees obstructive course of con-
duct, and the order of the District Court 
dismissing those claims on this ground will 
be reversed. The complaint fails to state 
an EPC claim, and the order of the Dis-
trict Court dismissing on this ground will 
be affirmed. To the extent that the Dis-
trict Court dismissed the SDP, EPC, Tak-
ings and Tortious Interference claims 
(Counts One through Four) against the 
individual defendants on the ground of ab-
solute legislative immunity, the order of 
the District Court will be vacated, and we 
will remand for findings consistent with 
this opinion. To the extent the District 
Court accorded the individual defendants 
legislative immunity as to appellants' SDP 
claim attacking defendants' pre-Ordinance 
conduct under Blanche Road the order of 
the District Court will be reversed. The 
order of the District Court granting sum-
mary judgment on Counts Four and Seven 
will be affirmed as to all appellees, except 
Stern, with respect to whom the order will 
be reversed. The District Court's dismiss-
al of Count Five on statute of limitations 
grounds will be affirmed,' and the order 
dismissing Count Six will be vacated. The 
cross-appeal will be dismissed. 
In sum, the following claims survive: a 
substantive due process facial challenge to 
the Ordinance; a substantive due process 
challenge to appellees' obstructive course 
S. Appellants have not argued that the dismiss. 
of conduct leading up to the enactment of 
the Ordinance; a Fifth Amendment Just 
Compensation Takings challenge to the 
face of the Ordinance; breach of the im-
plied covenant of good faith and fair deal-
ing; and the tortious interference and civil 
conspiracy claims, but only against Stern. 
STOLT—NIELSEN, S.A.; Stolt-Nielsen 
Transportation Group Ltd.; 
Richard B. Wingfield 
I 
UNITED STATES of America 
Appellant. 
No. 05-1480. 
United States Court of Appeals, 
Third Circuit. 
Argued Sept. 30, 2005. 
Filed March 23, 2006. 
As Amended May 16, 2006. 
Background: Company and officer, faced 
with possible criminal charges for antitrust 
violations, brought action to enforce terms 
of immunity agreement under United 
States Department of Justice's (DOJ's) 
corporate leniency program. The United 
States District Court for the Eastern Dis-
trict of Pennsylvania, Timothy J. Savage, 
J., 352 F.Supp2d 553, enjoined prosecu-
tion, and government appealed. 
Holding: The Court of Appeals, Ambro, 
Circuit Judge, held that, on issue of first 
impression in circuit, district court lacked 
authority to enjoin executive branch from 
fling indictment. 
Reversed and remanded. 
al on Count Five should be reversed. 
EFTA00191797

178 
442 FEDERAL REPORTER, 3d SERIES 
1. Federal Courts er•754.1, 814.1 
District court's grant or denial of per-
manent injunction is reviewed for abuse of 
discretion, while its underlying legal con-
clusions are reviewed without deference. 
2. Federal Courts e=.776 
District 
court's 
determination of 
whether potential criminal defendant's co-
operation agreement with government has 
been breached Ls legal conclusion, re-
viewed de novo. 
3. Injunction e=105(I) 
Although court generally lacks juris-
diction to enjoin criminal prosecution, ex-
ception exists when necessary to avoid 
chilling effect on First Amendment or sim-
ilar constitutional rights. U.S.C.A. Cont. 
Amend. 1. 
4. Criminal Law e=42.5(3), 273.1(2) 
Government must adhere strictly to 
terms of agreements made with defen-
dants, including plea, cooperation, and im-
munity agreements, to extent they require 
defendants 
to 
sacrifice 
constitutional 
rights. 
5. Injunction e=,105(1) 
District court lacked authority to en-
join indictment of corporation and officer 
for antitrust violations, despite claim that 
indictment would violate terms of immuni-
ty agreement entered into as part of gov-
ernment's corporate leniency program; 
though agreement may have been defense 
to conviction, it was not defense to indict-
ment 
6. Equity 4=46 
Suit in equity does not lie where there 
is plain, adequate and complete remedy at 
• Then Judge. now Justice. Alito heard oral an 
gumcnt 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). 
law that is as complete, practical and effi-
cient as that which equity could afford. 
R. Hewitt Pate, Assistant Attorney Gen-
eral, Scott D. Hammond, Mahn Del shim, 
Deputy Assistant Attorneys General, John 
P. Fonte, John J. Powers, III, (Argued), 
United States Department of Justice, Anti-
trust Division, Washington, D.C., Robert 
E. Connolly, Antonia R. Hill, Wendy B. 
Norman, Kimberly Justice, Richard S. 
Rosenberg, U.S. Department of Justice, 
Philadelphia, PA, for Appellant. 
Ian M. Comisky, Matthew D. L 
Blank 
Rome LLP, Philadelphia, PA, 
J. 
Tenvillinger III, John M. Gidley, Christo-
pher M. Curran, (Argued), Lucius B. Lau, 
White & Case LLP, Washington, D.C., for 
Appellee Stolt—Nielsen S.A. and Stott-
Nielsen Transportation Group Ltd. 
Roberta D. Liebenberg, Allen D. Black, 
(Argued), Gerard A. Dever, Fine, Kaplan 
& Black, Philadelphia, PA, James A. Back-
strom, Jr., Philadelphia, PA, for Appellee 
Richard B. Wingfield. 
Before ALITO • and AMBRO, Circuit 
Judges and RESTANI,•• Judge. 
AMBRO, Circuit Judge. 
This case raises a significant constitu-
tional question of first impression in this 
Circuit: whether federal courts have au-
thority, consistent with the separation of 
powers, to enjoin the executive branch 
from filing an indictment. Although feder-
al courts have this authority in narrow 
circumstances, we conclude that this is not 
**Honorable Jane A. Restani. Chief Judge, 
United States Court of International Trade. 
sitting by designation. 
EFTA00191798

STOLT-NIELSEN, S.A. 
U.S. 
ace al 442 F.341177 (3rdC1r. 
such a ease and therefore reverse the Dis-
trict Court's judgment to the contrary. 
1. 
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 com-
plaint O'Brien filed against Stolt-Nielsen 
in Connecticut Superior Court in Novem-
ber 2002, and a subsequent article in The 
Wall Street Journal, O'Brien advised his 
superiors of illegal collusive trading prac-
tices between Stolt-Nielsen and two of its 
competitors, and resigned after the Com-
pany failed to take action to resolve the 
problem. On receiving O'Brien's Novem-
ber 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 con-
duct 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 tank-
er division, Samuel Cooperman. Cooper-
man informed Nannes that O'Brien 
"raisledl some antitrust concerns" in early 
2002, and that in response Stolt-Nielsen 
revised its antitrust compliance policy and 
disseminated it to its employees and com-
petitors. 
Cooperman also told Nannes 
that he believed an internal investigation 
would demonstrate that the Company was 
in violation of federal antitrust laws and 
asked Nannes about the possibility of le-
niency 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, 
179 
and the Government informed him that an 
investigation had already begun. 
Specifically, Nannes inquired about pos-
sible protection for Stolt-Nielsen and its 
officers under the Antitrust Division's Cor-
porate Leniency Policy. Under this Poli-
cy, the Government agrees "not Ito) 
charge) a firm criminally for the activity 
being reported" if (in the case of an appli-
cant who comes forward after an investiga-
tion 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 for-
ward, have enough information to sustain a 
conviction; (3) the applicant, "upon its dis-
covery of the illegal activity being report-
ed, 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, con-
tinuing and complete cooperation" with the 
Government's investigation; (5) the appli-
cant confesses to illegal anticompetitive 
conduct as a corporation and not merely 
through individual confessions by corpo-
rate officers; (6) the applicant makes resti-
tution where possible; and (7) the Govern-
ment determines that granting leniency to 
the applicant would "not be unfair to oth-
ers." The officers and directors of the 
corporation who assist with the investiga-
tion are considered for immunity from 
prosecution on the same basis as if they 
had come forward individually. 
B. The Conditional Leniency Agree-
ment 
The Government informed Nannes that 
Stolt-Nielsen would not be eligible for am-
nesty under the Corporate Leniency Poli-
cy 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 
EFTA00191799

180 
442 FEDERAL REPORTER, 3d SERIES 
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—Niel-
sen executive, Andrew Pickering, ex-
changed customer allocation lists with two 
of Stolt—Nielsen's competitors, presumably 
for the purpose of apportioning customers 
among the companies and restraining com-
petition. In January 2003, Pickering's 
successor, appellee Richard Wingfield, 
provided Nannes with four such lists, 
which confirmed that Stott-Nielsen had in-
deed engaged in illegal anticompetitive be-
havior. 
Nannes promptly turned these 
lists over to the Government, which en-
tered into a Conditional Leniency Agree-
ment (the "Agreement") with Stolt-Niel-
sen on January 16, 2003. 
Under the terms of the Agreement, the 
Government agreed "not to bring any 
criminal prosecution against [Stott-Niel-
sen] for any act or offense it may have 
committed prior to the date of this 
[Agreement] in connection with the anti-
competitive activity being reported." This 
promise was, of course, subject to Stolt-
Nielsen's strict compliance with the afore-
mentioned conditions, "[Aubject to verifi-
cation [by the Government! and subject to 
[Stott-Nielsen's) full, continuing and com-
plete cooperation." The Agreement fur-
ther stated: 
If the Antitrust Division at any time 
determines that [Stott-Nielsen] has vio-
lated this Agreement, rig shall be 
void.... Should the Antitrust Division 
revoke the conditional acceptance of 
[Stott—Nielsen) into the Corporate Le-
niency Program, the Antitrust Division 
may thereafter initiate a criminal prose-
cution against [Stott—Nielsen], without 
limitation. Should such a prosecution be 
initiated, any documentary or other in-
formation provided by [Stoll-Nielsen), 
as well as any statements or other infor-
mation provided by any current or for-
mer director, officer, or employee of 
[Stott-Nielsen) to the Antitrust Division 
pursuant to this Agreement, may be 
used against Stott-Nielsen in any such 
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 An-
titrust Division in its investigation of the 
anticompetitive activity being reported." 
Specifically, that cooperation entailed: (1) 
producing all documents and records re-
quested by the Government; (2) being 
available for Government interviews; (3) 
"responding fully and truthfully to all in-
quiries of the [Government) ... without 
falsely implicating any person or intention-
ally withholding any information"; (4) vol-
untarily providing any information or ma-
terials not requested by the Government 
that were nonetheless relevant to the in-
vestigation; and (5) testifying under oath 
when asked by the Government It con-
cluded with a standard integration clause: 
"This letter constitutes the entire agree-
ment between the (parties!, and super-
sedes 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. 
C. The Government Terminates the 
Agreement 
In the weeks following execution of the 
Agreement, the Government's investiga-
tion revealed that Stolt-Nielsen's partic-
ipation in the conspiracy persisted for 
EFTA00191800

STOLT-NIELSEN, SA.' US 
aleas442 FM 177 (2rdC1r. 2e06) 
several months after O'Brien raised his 
concerns to Cooperman in early 2002. 
The Government concluded that Stolt-
Nielsen, and Wingfield in particular, con-
tinued to collude unlawfully with competi-
tors until November 2002. Based on this 
information, the Government informed 
Nannes on April 8, 2003 that it was sus-
pending Stolt-Nielsen's obligations under 
the Agreement and considering withdraw-
ing the grant of conditional leniency en-
tirely because the Company did not take 
"prompt and effective action to terminate 
its part in the anticompetitive activity be-
ing reported upon discovery of the activi-
ty," 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 allega-
tions and issued its new antitrust policy. 
In June 2003, the Government concluded 
that Wingfield had not fulfilled his obli-
gations under the Agreement because he 
never informed the Government that his 
unlawful communications with Stolt-Niel-
sen's competitors did not cease in March 
2002 when Stolt-Nielsen issued its new 
antitrust policy. On June 24, 2003, the 
Government charged Wingfield by criminal 
complaint with violating the Sherman Act, 
15 U.S.C. § I. 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.I 
I. Although the Government "charged" Wing-
field by criminal complaint in June 2003. it 
could not prosecute him without an indict-
ment. See 1 Charles Alan Wright, Fed. Prac-
tice & Procedure § 121, at 518 (3d ed. 
1999) (-Although a criminal proceeding may 
181 
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 in-
junction preventing the Government from 
filing indictments against them. The Gov-
ernment agreed to postpone its indict-
ments of both parties pending the District 
Court's consideration of the complaints. 
The District Court bifurcated the pro-
ceedings into two phases. 
In Phase 
One, the Court considered whether 
Stolt-Nielsen's alleged conduct between 
March and November 2002 violated the 
terms of the Agreement. If so, Phase 
Two would determine whether the con-
duct 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, a Deputy As-
sistant Attorney General in 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 Stoit-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 Agree-
ment without a judicial determination that 
Stott-Nielsen and Wingfield breached it, 
be instituted by a complaint, this only per-
mits 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."). 
EFTA00191801

182 
442 FEDERAL REPORTER, 3d SERIES 
an issue appropriate for consideration be-
fore indictment "because if an indictment 
were later determined to have been 
wrongfully secured, it would be too late to 
prevent the irreparable consequences." 
a at 560. The Court further found that 
the Agreement did not specify a discovery 
date and instead granted amnesty for ac-
tivity before January 15, 2003, the date on 
which it was signed. Indeed, it found that 
"the date when (Stott-Nielsen] ended its 
participation (in the conspiracy] was never 
clearly established," id at 662 n. 10, and 
therefore, in light of the Agreement's inte-
gration clause, "DOJ, especially because it 
drafted the agreement, cannot depend 
upon a tacit understanding of what it con-
tends was meant Ito be the discovery date] 
but was not memorialized in the integrated 
agreement." Id at 562. The Court con-
cluded: 
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 con-
tends the parties contemplated. 
... [The Government's] goals (in con-
cluding the Agreement with Stott-Niel-
sen] were to pursue [Stolz-Nielsen's] co-
conspirators and break up the conspira-
cy. 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 incrimi-
2. The District Coun 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 
nated itself when it delivered the evi-
dence DOJ used to accomplish its goals. 
Id 
E. Appeal 
On appeal, the Government contends 
that the District Court erred in two re-
spects. 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 Wing-
field's actions between March and Novem-
ber 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' com-
plaints.2
(1, 2] We review a District Court's 
grant or denial of a permanent injunction 
for abuse of discretion, United States v. 
Belt, 414 F.Sd 474, 478 (3d Cir2005), but 
exercise plenary review over the District 
Court's underlying legal 
conclusions. 
Freethought Soe'y of Greater Phila. v. 
Chester County, 334 F.3d 247, 955...36 (3d 
Cir.2003). A District Court's determina-
tion whether a cooperation agreement has 
been breached is a legal conclusion. Unit-
ed States v. Baird, 218 F2d 221, 229 (3d 
Cir.2000). MI findings of fact are re-
viewed for clear error. See Bell, 414 F.Sd 
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). 
U.S.C. § 1291. since the Government filed a 
timely notice of appeal from a final decision 
of the District Coun. 
EFTA00191802

STOLT-N1ELSEN, S.A. I US. 
183 
Cliess412 1,3d 171 (3rdC1r. 2006) 
111. 
(31 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, 94 S.Ct. 
3090, 41 L.Ed2d 1039 (1974), and the Gov-
ernment therefore argues that courts lack 
jurisdiction to enjoin a criminal prosecu-
tion. See United States v. Cox, 342 F2d 
167, 171 (5th Cir.1965) (en bane) ("It fol-
lows, 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 is an exception to this general 
rule, however, in order to avoid a chilling 
effect on constitutional rights. See Dom-
browski v. Pfister, 380 U.S. 479, 486-87, 85 
S.Ct. 1116, 14 L.Ed2d 22 (1965) (recogniz-
ing that the threat of criminal prosecution 
creates the potential for a serious chill 
upon First Amendment rights); Hynes a 
Grimes Packing Co., 887 U.S. 86, 98-99, 69 
S.Q. 968, 93 L.Ed. 1231 (1949) (recogniz-
ing that the threat of prosecution may 
deny fishermen the right to earn a liveli-
hood); Truax v. Raich, 289 U.S. 88, 88-89, 
86 S.Ct. 7, 60 L.Ed. 131 (1915) (recognizing 
that the threat of prosecution may lead to 
an unconstitutional denial of the right to 
earn a livelihood and to continue employ-
ment). The Supreme Court has typically 
applied the exception in the First Amend-
ment context, and in such cases has recog-
nized, 
[al criminal prosecution under a stat-
ute regulating expression usually in-
volves imponderables and contingencies 
that themselves may inhibit the full ex-
ercise 
of First 
Amendment 
free-
doms. ... The assumption that defense 
of a criminal prosecution will generally 
assure ample vindication of constitution-
al rights is unfounded in such cases.... 
(\Vie have not thought that the improba-
bility 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, 380 U.S. at 486-87, 85 S.Ct. 
1116, 14 L.Ed.2d 22 (1965); see also Ash-
croft a ACLU, 642 U.S. 656, 670-71, 124 
S.Ct. 2788, 159 L.Ed2d 690 (2004) (uphold-
ing preliminary injunction against criminal 
enforcement of the Child Online Protection 
Act because, inter alio, "[w]here a prose-
cution is a likely possibility, yet only an 
affirmative defense is available, speakers 
may self-censor rather than risk the perils 
of trial"). 
[41 It is also well established that the 
Government must adhere strictly to the 
terms of agreements made with defen-
dants—including plea, cooperation, and im-
munity agreements—to the extent the 
agreements require defendants to sacrifice 
constitutional rights. See, e.g., Santobello 
v. New York 404 U.S. 257, 262, 92 S.Ct. 
495, 30 L.Ed.2d 427 (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 govern-
ment 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 au-
thority does exist in limited situations 
where the mere threat of prosecution 
would inhibit the exercise of constitutional 
freedoms. Federal courts also have juris-
diction to consider, and hold the Govern-
ment to, the terms of agreements it makes 
with defendants. The question thus be-
comes 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 
EFTA00191803

184 
442 FEDERAL REPORTER, 3d SERIES 
enjoin a federal criminal prosecution in 
order to avoid the filing of an indictment. 
The District Court relied on a Seventh 
Circuit case, United States v. Meyer, 167 
F.3d 1067 (7th Cir.1998), as authority for 
conducting a pre-indictment review of the 
Agreement before us. See Stolt-Nielsen, 
852 F.Supp2d at 560-61. In Meyer, the 
Seventh Circuit stated, in dicta, that "the 
preferred procedure, absent exigent cir-
cumstances, would be for the government 
to seek relief from its obligations under 
the immunity agreement prior to indict-
ment. Since the government is required 
to obtain a judicial determination of a de-
fendant's breach prior to trial, it is but a 
de minimis inconvenience for the govern-
ment to secure that determination pre-
indictment" 157 F.3d at 1077. 
We have no quarrel with the Seventh 
Circuit's observation that, in many circum-
stances, a pre-indictment determination of 
the parties' obligations under an immunity 
agreement might be useful. We point out, 
however, that no federal court (including 
the Seventh Circuit) has held that a pre-
indictment determination is constitutional-
ly required. Indeed, notwithstanding its 
dicta regarding the "preferred procedure," 
the Meyer Court held the defendant was 
constitutionally "entitled to a judicial de-
termination of his breach before being de-
prived of his interest in the enforcement of 
an immunity agreement," and that this 
"interest" was in not being convicted, rath-
er than not being indicted Id. at 1076-
77.' As the Court noted, "a post-indict-
ment evidentiary hearing on the defen-
dant's alleged breach was sufficient to sat-
isfy due process." Id at 1076 (citing 
United States v. Verrusio, 803 F2d 885, 
889 (7th Cir.19136)). 
(51 Other immunity agreements that 
have promised not to charge or otherwise 
3. In keeping with the case law discussed be: 
low, the Seventh Circuit reached this conclu-
sion despite the (act that the immunity agree-
ment before it stated that the Government 
would not "charge" the defendant. Meyer, 
157 F.3d at 1077. 
4. We do not address in this opinion those 
circumstances in which equity might serve to 
criminally prosecute a defendant, like the 
agreement at issue in this case, have like-
wise been construed to protect the defen-
dant against conviction rather than indict-
ment and trial. See, e.g., Heike v. United 
States, 217 U.S. 423, 431, 30 S.Ct. 539, 64 
L.Ed. 821 (1910) (construing the Sherman 
Act's immunity provision, which protected 
a testifying witness from being "prosecut-
ed," 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 prose-
cution, available to him as a defense"); 
United States v. Bailey, 34 F.3d 683, 690-
91 (8th Cir.1994) (holding that an agree-
ment "not to prosecute" protected the de-
fendant from "the inherent risk of convic-
tion and punishment as a result of the 
trial, not the trial itself'); United States v. 
Bird, 709 F2d 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."). 
This distinction is grounded in the un-
derstanding 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, 60 S.Ct. 540, 84 L.Ed. 
783 (1940); see Deaver v. Seymour, 822 
F2d 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 crimi-
nal prosecution brought in good faith so 
that larger societal interests may be pre-
served.").' As the District of Columbia 
enjoin an ultra vires prosecution brought in 
bad faith. The Supreme Court has only ap-
proved federal injunctions against state crimi-
nal proceedings on that basis. See Younger v. 
Harris. 401 U.S. 37, 55, 91 S.Ct. 746, 27 
L.Ed.2d 669 (1971) (noting that, although 
"the possible unconstitutionality of a statute 
'on its face' does not in itself justify an injunc-
EFTA00191804

STOLT-NIELSEN, SA. 
U.S. 
185 
Clicas442 Pad 177 Pratte. 
Circuit noted in Denver, in the absence of 
a chilling effect on constitutional rights, 
the adversary system "afford(s) defen-
dants, 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 surpris-
ing that subjects of federal investigation 
have never gained injunctive relief against 
federal prosecutors." 822 F2d at 69-70.6
Although this interpretation of agree-
ments "not to prosecute" may seem coun-
terintuitive, 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 con-
text of interlocutory appeals challenging 
tion against (a state's) good-faith attempts to 
enforce it." a "showing of bad faith (or) 
harassment" might "justify federal interven-
tion"); see also Howard W. Brill, Equity and 
the Criminal Law, 2000 Ark. L. Notes I, 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 con-
duct 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. Pic-A-Siate Pa., Inc.' Reno, 76 F.3d 
1294. 1300 (3d Cir.1996). Moreover, 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 per-
ceive no bad faith on the part of the Govern. 
mcnt in this case; rather, the parties are 
engaged merely in a good-faith dispute over 
the meaning of the Agreement. 
3. 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 
the Government% authority to proceed 
with a prosecution, for example, the Su-
preme Court has allowed those appeals 
only in very limited circumstances. For 
example, the Double if pardy Clause, see 
U.S. Cont. amend. 
("Igor 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 subse-
quent conviction," in that it provides a 
"guarantee against being twice put to trial 
for the same offense." Abney v. United 
Stales, 431 U.S. 651, 661, 97 S.Ct. 2034, 52 
L.Ed.2d 651 (1977) (emphasis added). Be-
cause the prohibition against double jeop-
ardy affords a defendant the right to 
"contest( ) the very authority of the Gov-
ernment to hale him into court to face 
properly be considered in deciding upon a 
permanent (as opposed to preliminary) in-
junction—which is a matter of some tension 
In our case law, compare Chao v. Rothemret 
327 F.3d 223. 228 (3d Cir.2003) (stating that 
a permanent injunction may be granted 
"where the moving party has demonstrated 
that: (I) the exercise of jurisdiction is appro-
priate; (2) the moving party has actually suc-
ceeded on the merits of its claim; and (3) the 
'balance of equities' (avon ranting injunctive 
relief"), and ACLU of NJ. 
Black Horse Pike 
Reg? Bd. of Edw., 84 F.3d 1471. 1477 nn. 2-3 
(3d Cir.19%) (en banc (noting that a prelimi-
nary injunction requires consideration of. in-
ter alia, irreparable injury, while a pennannu 
injunction merely requires consideration of 
whether "the plaintiff has actually succeeded 
on the merits." and, if so. whether an injunc-
tion is an "appropriate remedy" (intern' 
quotation marks omitted)), with Shields 
ZUCCOlilli, 254 F.3d 476, 482 (3d Cir.2001) 
(stating that a court may grant a permanent 
injunction if it finds, inter alia, that "the mov-
ing 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 accept-
S 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. 
EFTA00191805

186 
442 FEDERAL REPORTER, 3d SERIES 
trial on the charge against him," it neces-
sitates an exception to the "firm congres-
sional policy against interlocutory or 
'piecemeal' appeals." Id at 656, 659, 97 
S.Q. 2034. Likewise, the Speech and De-
bate Clause, see U.S. Const. art. I, 6, el. 
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 litiga-
tion's results but also from the burden of 
defending themselves," thus allowing in-
terlocutory appeals from denials of claims 
of immunity under that Clause. Helstoski 
v. Meanor, 442 U.S. 500, 508, 99 S.Ct. 
2445, 61 L.Ed2d 80 (1979) (internal quota-
tion 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 chal-
lenge the Government's decision to pursue 
a prosecution. Just as the authority to 
enjoin criminal enforcement of a law regu-
lating speech is grounded in the overriding 
need to avoid a chilling effect on the exer-
cise of core constitutional rights, so too 
does the right not to be prosecuted recog-
nized in Abney and Helstoski stem from 
express textual commands in the Constitu-
tion that prohibit any interference with the 
rights against double jeopardy or of mem-
bers of Congress to speak freely in legisla-
tive session. 
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, 102 S.Ct 8081, 73 L.Ed2d 754 (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 prejudi-
cial error normally are adequate means of 
vindicating the constitutional rights of the 
accused"); Parr v. United States, 351 U.S. 
513, 519, 76 S.Ct. 912, 100 L.Ed. 1377 
(1956) (holding that the mere fact a defen-
dant 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 inter-
locutory appeal); ef 
United States v. 
P.H.E., Inc., 965 F.2d 848, 855 (10th Cir. 
1992) (noting that, in comparing the vindic-
tive prosecution claim in Hollywood Motor 
Car to a vindictive prosecution claim based 
on the defendants' dissemination of consti-
tutionally protected speech, "[t]he wrong 
alleged is similar, but the right sought to 
be vindicated is not" because the "proce-
dural rule [at issue in Hollywood Motor 
Carl raises concerns distinct from and less 
pressing than the courts' obligation to pro-
tect 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 deci-
sion; rather, "the availability of dismissal 
after final judgment will adequately pro-
tect and secure for the defendant the ben-
efit of his bargain under the nonprosecu-
tion 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 enti-
tled to a judicial determination that he had 
breached the agreement before being sub-
jected to the risk of conviction. The dis-
trict court's pretrial [but post-indictment] 
evidentiary hearing satisfied this require-
EFTA00191806