PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                 No. 17-1972
                _____________

        UNITED STATES OF AMERICA,

                             Appellant

                       v.

             RAYMONT WRIGHT

                ______________

            ON APPEAL FROM THE
      UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
          (D.C. No. 2-14-cr-00292-001)
        District Judge: Hon. Cathy Bissoon
                  ______________

             Argued May 24, 2018
               ______________

Before: MCKEE, SHWARTZ, and NYGAARD, Circuit
                  Judges.

        (Opinion Filed: January 17, 2019)
                     ______________

               OPINION OF THE COURT
                  ________________

Donovan J. Cocas, Esq.      [ARGUED]
Jane M. Datttilo, Esq.
Laura S. Irwin, Esq.
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

      Attorney for Appellant

Renee Pietropaolo, Esq. [ARGUED]
Lisa B. Freeland, Esq.
Akin Adepoju, Esq.
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

      Attorneys for Appellee Raymont Wright

Lawrence S. Lustberg, Esq. [ARGUED]
Gibbons, P.C.
One Gateway Center
Newark, NJ 07102

      Attorney for Amicus Appellee National Association of
      Criminal Defense Lawyers




                               2
SHWARTZ, Circuit Judge.

       The District Court barred a retrial of and dismissed the
indictment against Defendant Raymont Wright with prejudice
after two juries failed to reach a verdict. The Court did so
relying on its inherent authority, but without finding that any
misconduct had occurred or that Wright would suffer any
prejudice beyond the general anxiety and inconvenience of
facing a retrial. Under such circumstances, the Court lacked
the inherent authority to bar the retrial and dismiss the
indictment. Therefore, we will reverse the order dismissing the
indictment and remand for further proceedings.

                               I

       In December 2014, Wright was charged with being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). He pleaded not guilty and proceeded to trial in
May 2016. The jury was unable to reach a verdict. A second
trial was held in March 2017, and that jury was also unable to
reach a verdict.

        During both trials, the jury heard evidence from police
officers about Wright’s actions on July 24, 2014. 1 That
evening, five Pittsburgh Police detectives were patrolling in
two unmarked cars. Detectives Kennedy, Henson, and Baker
were in the lead car, and Detectives Fallert and Goob were in
the second car. Around 8:30 p.m. (when it was still daylight),
Fallert and Goob saw a man, later identified as Wright, driving

       1
         The following facts are drawn largely from the
evidence presented at the first trial.




                              3
a car in the opposite direction well above the 25-mile-per-hour
speed limit. The detectives turned around to follow Wright,
and Wright sped up and turned onto a loop-shaped road. The
detectives pursued Wright, who fled at a high speed and ran at
least four stop signs. The lead car lost sight of Wright shortly
thereafter and discontinued pursuit.

        Officers in the lead car then noticed skid marks
suggesting that a car had intended but failed to make a left turn
at the end of a street. Officers thereafter came upon Wright’s
car in a parking lot below. The car had gone through a fence,
over a hillside, and into the lot. The car hit two unoccupied
parked cars, its tires blew out, and its windows were down.

        Detectives Baker and Henson exited the vehicle at the
top of the hill and remained where Wright’s car broke through
the fence, and Detective Kennedy drove his car down to the
parking lot’s entrance. Baker and Henson testified that they
saw Wright search around the rear passenger seat of the car,
back out of the vehicle with a black semi-automatic handgun
in his right hand, and try to “rack the slide,” which can insert
or remove a round from the chamber. App. 118-19. They had
their weapons drawn and told Wright to drop the gun. At first,
Wright merely stepped back, but he eventually tossed the gun
to the side, backed away, and lied on the ground. Pittsburgh
police officer Elliott and his partner, who heard of the crash on
the radio, were the first to reach Wright, and saw him lying on
the ground with a handgun next to him. Henson stated that
when he made it down to the parking lot, he heard Wright say
to him, “Hey, big guy. You won this time or you won this
round, something of that nature. He [Wright] said: You feel
me? You won this time,” which Henson understood to mean
that he had just avoided a shootout or that he caught Wright




                               4
after the pursuit. App. 125. Henson subsequently took custody
of the gun and noticed the slide lever was bent, and when he
straightened it, saw the gun was loaded with eight rounds, and
one in the chamber. 2

        At the close of the Government’s case, Wright moved
for a directed verdict, arguing that no reasonable juror could
find beyond a reasonable doubt that Wright possessed the
firearm. The District Court denied the motion because “the
evidence does thus far demonstrate that a reasonable juror
could most certainly find the Defendant guilty of the charge in
this case.” App. 171. Wright did not present a case.

       The jury deliberated for approximately five hours and
then reported to the Court that it was deadlocked. After polling
the jurors to confirm they were deadlocked and further
deliberations would not bring them closer to a unanimous
verdict, the District Court declared a mistrial.

         At Wright’s March 2017 retrial, the Government
presented substantially the same evidence. The Government
also called Detective Kennedy and Lieutenant Palermo, who
were at the scene after Wright was arrested, as well as experts
who testified regarding the collection of DNA and fingerprint
evidence from firearms to respond to Wright’s argument at the
first trial that investigators chose not to test the gun for forensic
evidence in an effort to cover up that they had planted the gun
at the scene.


       2
         The parties stipulated Wright had been convicted of a
qualifying felony, and an ATF Special Agent testified about
the gun’s interstate nexus.




                                 5
       At the close of the Government’s case, Wright again
moved for a judgment of acquittal, which the Court denied
because “there is sufficient evidence in the record to establish
beyond a reasonable doubt that Mr. Wright possessed the
firearm in the case,” App. 650. Wright did not put on a case.

       The second jury deliberated for approximately three
hours and then reported that it was hopelessly deadlocked. The
Court polled the jury to confirm the deadlock and then
dismissed the jury. 3

         After the Government notified the Court that it intended
to retry the case, the Court required the parties to brief
“whether the Court, through an exercise of its inherent
authority, should prohibit or permit a second re-trial in this
case.” App. 26. After considering the parties’ arguments, the
District Court dismissed the indictment with prejudice, holding
that it “ha[d] the inherent authority, under some circumstances,
to dismiss an indictment following multiple mistrials.” United
States v. Wright, Crim. A. No. 14-292, 

, at
*4 (W.D. Pa. Mar. 30, 2017). It reasoned that: (1) principles
underlying the Double Jeopardy Clause also applied to a
defendant facing a retrial after multiple mistrials, 

(2) other courts had dismissed indictments in similar

       3
         Wright asserted that in the first trial, jurors voted 8-4
for acquittal, and in the second trial, the jury was evenly split.
The Government asserted that in the first trial, jurors voted 7-
5 for acquittal, and in the second trial, voted 8-4 for conviction.
See United States v. Wright, Crim. A. No. 14-292, 

, at *5 (W.D. Pa. Mar. 30, 2017). While Wright does
not explain how he obtained these numbers, the Government
said it obtained them by speaking with the jurors.




                                6
circumstances, 

(citing United States v. Rossoff, 

, 202-03 (C.D. Ill. 1992); United States v. Ingram,

, 385 (D.D.C. 1976); Sivels v. State, 

, 1201 (Ind. 2001); State v. Abbati, 

,
517 (N.J. 1985); State v. Moriwake, 

, 712-13
(Haw. 1982); State v. Witt, 

, 917 (Tenn.
1978)); (3) while Federal Rule of Criminal Procedure 31(b)(3)
expressly allows the Government to retry a case after a mistrial,
nothing in the rule “limits a court’s inherent supervisory
authority to dismiss an indictment in the interests of
fundamental fairness,” 

and (4) if the Court were to
adopt the Government’s position that there are no limit to the
number of times the Government can retry a defendant, it
would be tantamount to a “type of jury shopping” that a court
should not permit, 

The District Court also considered
the factors set forth in 

, and
concluded that most factors supported dismissal. 4

       4
           The Abbati factors are

        (1) the number of prior mistrials and the
       outcome of the juries’ deliberations, so far as is
       known; (2) the character of prior trials in terms
       of length, complexity, and similarity of evidence
       presented; (3) the likelihood of any substantial
       difference in a subsequent trial, if allowed;
       (4) the trial court’s own evaluation of the relative
       strength of each party’s case; and (5) the
       professional conduct and diligence of respective
       counsel, particularly of the prosecuting attorney.
       The court must also give due weight to the
       prosecutor’s decision to reprosecute, assessing
       the reasons for that decision, such as the gravity




                                7
       The Government appeals.

                              II 5

       We review the District Court’s order dismissing the
indictment based on the Court’s inherent power for abuse of
discretion. 6 See United States v. Chapman, 

,

       of the criminal charges and the public’s concern
       in the effective and definitive conclusion of
       criminal prosecutions. Conversely, the court
       should accord careful consideration to the status
       of the individual defendant and the impact of a
       retrial upon the defendant in terms of untoward
       hardship and unfairness.

Wright, 

, at *4 (quoting 

). For the reasons set forth herein, we would not
adopt Abbati, but even if we were to consider the Abbati
factors, we would conclude that they do not support dismissal
in this case.
        5
          The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C.
§ 3731.
        6
          The phrases “inherent power,” “inherent authority,”
“supervisory power,” and “supervisory authority” are all used
to describe the basis for a court action seeking to maintain the
integrity of the proceedings that is not directly tethered to a
specific rule, statute, or constitutional provision. See, e.g.,
Carlisle v. United States, 

, 426 (1996) (inherent
power); United States v. Williams, 

, 46 (1992)
(supervisory power); Chambers v. NASCO, Inc., 

,
43 (1991) (inherent power); Bank of Nova Scotia v. United




                               8
1084-88, 1090 (9th Cir. 2008) (reviewing dismissal of
indictment for abuse of discretion); cf. Chambers v. NASCO,
Inc., 

, 55 (1991) (reviewing a court’s imposition of
sanctions under its inherent power for abuse of discretion);
Gov’t of the Virgin Islands v. Fahie, 

, 258 (3d Cir.
2005) (“A trial court’s remedy for a discovery violation under
its supervisory powers is reviewed for abuse of discretion.”).
A district court abuses its discretion when it makes an errant
conclusion of law, an improper application of law to fact, or a
clearly erroneous finding of fact. McDowell v. Phila. Hous.
Auth., 

, 238 (3d Cir. 2005).

                               A

       Federal Rule of Criminal Procedure 31 allows the
Government to retry a case if the court declares a mistrial after
a jury announces it is unable to reach a verdict. Specifically,
Rule 31(b)(3) provides: “[i]f the jury cannot agree on a verdict
on one or more counts, the court may declare a mistrial on
those counts. The government may retry any defendant on any
count on which the jury could not agree.” Fed. R. Crim. P.
31(b)(3). The word “may” means that the Government has the


States, 

, 254-56, 263 (1988) (supervisory
authority); United States v. Hasting, 

, 505 (1983)
(supervisory power); United States v. Payner, 

,
733-36 (1980) (supervisory power); United States v. Nobles,

, 231 (1975) (inherent power).
        Even if we accepted the distinctions our dissenting
colleague has drawn between inherent judicial powers,
legislatively granted judicial powers, and supervisory powers,
each category must operate within the constitutional
framework, including the separation of powers.




                               9
discretion to retry a case, and nothing in the rule or its
commentary provides or even suggests a limit on the number
of retrials it may conduct. See United States v. Wqas Khan,
No. 2:10-CR-0175 KJM, 

, at *2 (E.D. Cal.
Apr. 1, 2014) (“Nothing suggests that multiple mistrials take a
case out of the Rule’s operation.”), appeal dismissed, No. 14-
10218 (9th Cir. July 9, 2014). 7 Moreover, there is nothing in

       7
          While Rule 31 does not limit the Government’s
authority to retry a case, a handful of district courts have
dismissed indictments following a second hung jury, but those
decisions are not persuasive. In Ingram, the district court
dismissed the indictment sua sponte (without any initial
objection by the Government) after two mistrials—in which
jurors had voted 10-2 and 11-1 for acquittal, the defendant was
jailed during the pendency of the trials, and “[t]he Government
ha[d] no new proof; it simply want[ed] another 

. The court concluded that to permit a retrial
would be “to ignore the reasonable doubt standard,” and so
“[t]he Court’s intervention [was] required in the interest of
justice.” 

(citing United States v. De Diego, 

, 824 n.8 (D.C. Cir. 1975); De 

n.6
(McGowan, J., dissenting)). The Ingram court, however, relied
in part on the dissent in De Diego. Cases since Ingram have
applied the De Diego majority’s view concerning a court’s
limited authority to dismiss an indictment. See, e.g., United
States v. Hall, 

, 1164-65 (9th Cir. 1977) (citing
De Diego and reversing the district court’s dismissal of the
indictment where the district court found it would be
“unconscionable” to retry to the defendant); United States v.
Hudson, 

, 724-26 (10th Cir. 1976) (discussing De
Diego and its dissent and holding a district court does not have
authority to sua sponte dismiss an indictment based on the




                              10
defendant’s poor health); United States v. Mussehl, 453 F.
Supp. 1235, 1236 (D.N.D. 1978) (denying defendants’ motion
to dismiss the indictment based on alleged errors at trial, and
citing De Diego for the proposition that “[t]he duty [to
administer justice] encompasses the concept of review of the
question whether the United States Attorney, in making his
decision to prosecute, complied with the law, but does not
allow the Court to question a United States Attorney’s
judgment decision to prosecute, when lawfully made”).
        The District Court also relied on Rossoff, where the
court denied the Government’s motion to dismiss the
indictment under Federal Rule of Criminal Procedure 48(a),
but still dismissed the indictment with 

(citing 

). There had
been two trials, and the Government sought to dismiss the
indictment and refile the charges in a different judicial district.

determined it had authority to dismiss an
indictment with prejudice if a retrial was “against the concept
of fundamental fairness,” 

(citing Ingram, 412 F.
Supp. 384), and did so because, among other reasons, the
defendant was in poor health, was under significant strain, and
a majority of jurors at both trials found him not guilty, 

Rossoff, however, is distinguishable from Wright’s case
because in Rossoff, the Government sought to dismiss the
indictment so that it could refile charges in a different judicial
district, which caused the court to question the Government’s
good faith. In Wright’s case, the District Court made no
finding that the Government’s desire to retry Wright was for
an improper purpose.
        In addition, and significantly, neither Ingram nor
Rossoff addressed the doctrine of separation of powers.
Rather, each essentially relied on a general concept of fairness




                                11
the text that empowers a court to prohibit the Government from
retrying a case. 8
                               B

        Apparently aware that Rule 31 did not provide it with a
basis to preclude a retrial in these circumstances, the District
Court concluded that it had the inherent authority to forbid the
retrial and dismiss the indictment. The District Court erred.

       The exercise of inherent authority must satisfy two
requirements: (1) it “must be a reasonable response to the


to the defendant in deciding to dismiss an indictment. See

; 

.
In this Circuit, however, “[t]he judiciary may not impose its
personal and private notions of ‘fairness’ on law enforcement
officials, but does have a limited authority to affect
prosecutorial actions when those actions are taken in violation
of the Constitution.” United States v. Santtini, 

,
596 (3d Cir. 1992) (citations omitted).
        8
          Rule 31 differs from other Federal Rules of Criminal
Procedure because it makes no mention of the court’s
authority. For instance, Rule 48(b) states that a court has
authority to dismiss an indictment “if unnecessary delay occurs
in: (1) presenting a charge to the grand jury; (2) filing an
information against a defendant; or (3) bringing a defendant to
trial.” Fed. R. Crim. P. 48(b). There are other Rule-based
grounds on which a district court could also dismiss an
indictment, but each would be triggered by a motion, such as a
motion to dismiss for failure to comply with Rule 16’s
discovery obligations if justice so requires, Fed. R. Crim. P.
16(d)(2)(D), or a motion asserting a defect in the indictment,
Fed. R. Crim. P. 12(b)(3)(B).




                              12
problems and needs confronting the court’s fair administration
of justice,” and (2) it “cannot be contrary to any express grant
of or limitation on the district court’s power contained in a rule
or statute.” Dietz v. Bouldin, 

, 1892 (2016)
(citations and internal quotation marks omitted). We will
examine each of these requirements in turn.

                                1

        As to the first Dietz requirement, “[g]uided by
considerations of justice, and in the exercise of supervisory
powers, federal courts may, within limits, formulate procedural
rules not specifically required by the Constitution or the
Congress.” United States v. Hasting, 

, 505 (1983)
(internal quotation marks and citation omitted). Such rules
must be imposed (1) “to implement a remedy for violation of
recognized rights,” (2) “to preserve judicial integrity by
ensuring that a conviction rests on appropriate considerations
validly before the jury,” and (3) “as a remedy designed to deter
illegal conduct.” 

Thus, a court may
exercise its inherent authority only when it is necessary to
address improper conduct and ensure respect for the
proceedings.

        Under these principles, a court may dismiss an
indictment based upon its inherent authority only if the
Government engaged in misconduct, the defendant was
prejudiced, and no less severe remedy was available to address
the prejudice. See Bank of Nova Scotia v. United States, 

, 254-56, 263 (1988); 

(stating that “[a] court may dismiss an indictment under its
supervisory powers only when the defendant suffers
substantial prejudice and where no lesser remedial action is




                               13
available” (citations and internal quotation marks omitted));
United States v. Goodson, 

, 514 (4th Cir. 2000)
(observing that “a district court may not, in the management of
its docket, exercise its discretion to dismiss an indictment with
prejudice, either under Rule 48(b) or under its supervisory
power, unless the violation caused prejudice to the defendant
or posed a substantial threat thereof” (emphasis omitted));
United States v. Derrick, 

, 808 (4th Cir. 1998)
(holding that an indictment may not be dismissed for
prosecutorial misconduct absent a showing that the misconduct
prejudiced the defendants, and stating that “virtually every
other circuit to consider the issue post-Hasting and Nova Scotia
has also held that an indictment may not be dismissed based on
prosecutorial misconduct, absent a showing of prejudice to the
defendant”); United States v. Van Engel, 

, 631-32
(7th Cir. 1993) (“A federal judge is not authorized to punish
the misconduct of a prosecutor by letting the defendant walk,
unless the misconduct not only violated the defendant’s rights
but also prejudiced his defense . . . .”); United States v. Tucker,

, 674 (9th Cir. 1993) (“[A] federal court may not
exercise its supervisory authority to reverse a conviction or
dismiss an indictment absent prejudice to the defendant.”);
United States v. Santana, 

, 11 (1st Cir. 1993) (“[T]aken
together, [United States v. ]Payner, [

, 735 (1980),]
Hasting, and Bank of Nova Scotia form a trilogy admonishing
federal courts to refrain from using the supervisory power to
conform executive conduct to judicially preferred norms by
dismissing charges, absent cognizable prejudice to a particular
defendant.”); United States v. Isgro, 

, 1094 (9th
Cir. 1992) (“Before it may invoke this [supervisory] power [to
dismiss an indictment], a court must first find that the
defendant is actually prejudiced . . . .”), amended by 

(9th Cir. 1994).




                                14
         In this case, there has been no misconduct. Indeed, the
District Court noted that the Government performed diligently
and professionally in both trials, Wright, 

,
at *4, and found that the evidence was sufficient to prove
beyond a reasonable doubt that Wright possessed the gun. The
District Court nonetheless applied its own predictions about
what another jury may do when presented with the same
evidence, emphasized the need for finality, and opined that the
effect of prosecution on the defendant precluded a proper
prosecution from proceeding. See 

Invoking its own
notions about the unfairness of requiring a defendant to face a
retrial where the Government did not obtain a majority of the
jurors’ votes is an improper exercise of a court’s supervisory
power. United States v. Miller, 

, 795 (9th Cir. 1993).
Moreover, there is no prejudice to a defendant simply because
he faces the anxiety and the normal stress of undergoing a trial.
See United States v. Shepherd, 

, 123 (5th Cir.
1975) (“[A]nxiety is present to some degree in virtually every
case.      Something more than the normal anxiety that
accompanies a trial is necessary to show a degree of
prejudice.”); United States v. Clyburn, Crim. No. 89-0154
(JHG), 

, at *2 (D.D.C. Mar. 22, 1991) (“The
only real harm alleged is the general unfairness to these
defendants in having to go forward yet again with a lengthy
trial, in their being ‘ground down’ by the several months’ drain
on their mental, emotional, and financial resources. A lack of
such fairness, however, does not alone violate due process.”).
Rather, prejudice sufficient for the District Court to intervene
in a proper prosecution based upon its inherent authority occurs
only where the Government engages in actions that place a
defendant at a disadvantage in addressing the charges. That
sort of prejudice is absent in this case.




                               15
        Unless there is some constitutional basis, such as a due
process violation, it makes sense to limit a court’s authority to
bar retrial to instances of prosecutorial misconduct and
prejudice. First, it ensures that a judge’s personal preferences
about a case do not influence whether the case proceeds. See
United States v. Santtini, 

, 596 (3d Cir. 1992)
(“The judiciary may not impose its personal and private
notions of ‘fairness’ on law enforcement officials, but does
have a limited authority to affect prosecutorial actions when
those actions are taken in violation of the Constitution.”).
Second, as more fully discussed below, it guarantees that a
court limits the Executive’s decision to prosecute only where
there is a constitutionally sound reason to do so. 9 This brings
us to the second Dietz requirement.


       9
         For these reasons, we find unpersuasive our dissenting
colleague’s reliance on Eash v. Riggins Trucking Inc., 

, 562 (3d Cir. 1985) (en banc), and particularly its
observation that a court has the inherent power to resolve a
case, as authority for allowing a court dismiss an indictment
after successive hung juries. As a general matter, there is no
doubt that a court has the authority to dismiss a case, but it may
not simply end a case because it decides that it should not be
tried again. Rather, as Bank of Nova Scotia, Chapman, and
their progeny make clear, the court must point to evidentiary
deficiency, prejudicial misconduct, or a constitutional basis,
such as double jeopardy or due process, to justify precluding a
prosecution. If a court believed that the evidence was deficient,
the prosecutor engaged in prejudicial misconduct, or a retrial
would violate the constitution, then it has a basis to preclude a
retrial. Requiring such reasons for barring a retrial ensures that




                               16
                               2

        The second Dietz requirement reminds a court that the
exercise of its powers must be in accordance with the
Constitution, statutes, and 

. Beginning
with the Constitution, a court must be mindful of its role in our
tripartite form of government and the doctrine of separation of
powers. Separation-of-powers principles limit a court’s
inherent authority. “Regardless of whether the supervisory
power stems from the federal courts’ inherent power to check
intrusions by other branches of government or whether it is a
form of specialized federal common law, the separation-of-
powers principle imposes significant limits on it,” and
“[p]roper regard for judicial integrity does not justify a
‘chancellor’s foot veto’ over activities of coequal branches of
government.” United States v. Gatto, 

, 1046 (9th
Cir. 1985) (internal quotation marks omitted) (quoting United
States v. Russell, 

, 435 (1973)).

        In the criminal context, the Executive Branch has
“broad discretion as to whom to prosecute,” and this discretion
“rests largely on the recognition that the decision to prosecute
is particularly ill-suited to judicial review.” Wayte v. United
States, 

, 607-08 (1985) (citation and internal
quotation marks omitted). A court is not equipped to evaluate

       [s]uch factors as . . . the prosecution’s general
       deterrence value, the Government’s enforcement
       priorities, and the case’s relationship to the


the ruling is not based on a court’s own personal sense of
whether a case is worthy of prosecution.




                               17
       Government’s overall enforcement plan . . . .
       Judicial supervision in this area, moreover,
       entails systemic costs of particular concern.
       Examining the basis of a prosecution delays the
       criminal proceeding, threatens to chill law
       enforcement by subjecting the prosecutor’s
       motives and decisionmaking to outside inquiry,
       and may undermine prosecutorial effectiveness
       by revealing the Government’s enforcement
       policy. All of these are substantial concerns that
       make the courts properly hesitant to examine the
       decision whether to prosecute.

Id.; see also In re Richards, 

, 786 (3d Cir. 2000)
(echoing similar sentiments with respect to Rule 48(a)
dismissals). Thus, absent constitutional concerns, the decision
to try or retry a case is at the discretion of the prosecutor.
United States v. HSBC Bank USA, N.A., 

, 129,
137-38 (2d Cir. 2017) (stating that the court’s “role is not to act
as superprosecutors, second-guessing the legitimate exercise of
core elements of prosecutorial discretion, but rather as neutral
arbiters of the law” (citation and internal quotation marks
omitted)); United States v. Raineri, 

, 43 (1st Cir.
1994) (“[T]he choice to forego permanently a prosecution is
ordinarily made by the executive branch.”); 

(“In maintaining order in our own house, we should not
needlessly trample on the interest of the prosecutor and of the
public in securing proper, lasting convictions.”); 

(stating that the doctrine of separation of powers
“mandates judicial respect for the independence of the
prosecutor,” and “[d]ismissal of an indictment with prejudice




                                18
is the most severe sanction possible”). 10 Accordingly,
separation-of-powers principles preclude a court from
terminating a prosecution absent misconduct and prejudice to
the defendant. See Bank of Nova 

,
263; 

; 

; 

.

       In short, a court’s power to preclude a prosecution is
limited by the separation of powers and, specifically, the
Executive’s law-enforcement and prosecutorial prerogative.
See 

; 

; In re

; 

; 

; 

; 

; 

. Exercising inherent authority
here to dismiss an indictment in the absence of misconduct and
prejudice and based only on the fact that two juries could not
reach a verdict intrudes on the Executive’s domain and thereby
violates the separation of powers. See, e.g., 

; Isgro, 

.

       10
          Several state courts have also refused to recognize
any inherent authority to dismiss an indictment to prevent a
retrial. See People v. Sierb, 

, 225 (Mich.
1998); State v. Johnson, 

, 613 (Tex. Crim.
App. 1991) (en banc); State v. Sherrod, 

, 753
(Fla. Dist. Ct. App. 1980). Other states, however, have
recognized a court’s authority to dismiss an indictment sua
sponte. See State v. Sauve, 

, 1167-68, 1167 n.1
(Vt. 1995); 

; 

; 

. These latter cases are
unpersuasive because they give too little weight to the
separation of powers, a crucial constitutional principle in the
federal system.




                              19
        Finally, there is no statute or procedural rule that
permits a court to bar a retrial in the absence of misconduct and
prejudice. First, a court may not dismiss an indictment as a
method to manage its own affairs. 11 See 

. Second, a court’s inherent power does not “include the
power to develop rules that circumvent or conflict with the
Federal Rules of Criminal Procedure.” Carlisle v. United
States, 

, 426 (1996). Barring a retrial through the
exercise of inherent authority circumvents the absence of
power of the district court to dismiss an indictment in Rule
31(b). As stated above, courts have inherent authority to
dismiss indictments, including, for instance, for prosecutorial
misconduct if the defendant was prejudiced, Bank of Nova

, 263, but neither the Supreme Court
nor our Court has extended a court’s inherent authority to allow

       11
           In Chambers, for example, the Supreme Court
recognized a court’s authority to impose silence, respect, and
decorum based on its authority to manage its own 

. This authority has been exercised by controlling
admission to the bar and disciplining its members; punishing
for contempt, which penalizes disruption to proceedings and
disobedience to court orders; disallowing fraud on the courts;
ensuring the proceedings move forward; and curtailing
litigation abuses. 

see also Link v. Wabash R.R.
Co., 

, 629-31 (1962) (noting a court can dismiss a
civil case for failure to prosecute to prevent delays and court
congestion as part of a court’s inherent power to manage its
own affairs). Chambers and Link address how a court may
manage its own proceedings, but they do not address how the
court must also account for issues of separation of powers in
the context of a criminal case.




                               20
the sua sponte dismissal of an indictment solely to preclude
multiple mistrials following hung juries, see 

; 

. 12

       12
          Most cases concerning a court’s inherent authority
have arisen in the civil context. See 

(noting a court’s inherent powers to rescind a jury discharge
order and recall a jury); 

, 55-58
(recognizing a court’s authority to vacate a judgment upon
proof that a fraud was perpetrated on the court, and, in
particular, to assess as a sanction the entire amount of the
opposing party’s attorney’s fees); 

(authority to dismiss a civil case sua sponte for failure to
prosecute); Gulf Oil Corp. v. Gilbert, 

, 507-08
(1947) (dismissing an action based on the doctrine of forum
non conveniens). See generally 

(citing cases involving the scope of a district court’s inherent
power); 

(same).
        There are other circumstances in which district courts
lack the inherent authority to act, and most of those situations
arise in the criminal context. See, e.g., 

(holding that a court does not have authority to grant a
post-verdict motion for judgment of acquittal, filed one day
outside the time limit under Rule 29(e)); 

, 55 (holding that a district court does not have inherent
authority to dismiss an indictment because the Government
failed to disclose to the grand jury substantial exculpatory
evidence; “[b]ecause the grand jury is an institution separate
from the courts, over whose functioning the courts do not
preside, we think it clear that, as a general matter at least, no
such ‘supervisory’ judicial authority exists”); 

, 135-37 (holding that the district court violated
separation-of-powers principles by sua sponte invoking its




                               21
        Thus, the District Court abused its discretion in barring
a retrial and dismissing the indictment. 13

                               III

        For the foregoing reasons, we will reverse and remand
for further proceedings.




supervisory power to oversee the government’s entry into and
implementation of a deferred prosecution agreement).
        13
           Our dissenting colleague says that our approach
deprives the court from taking action “when warranted to
protect the institutional integrity of the judiciary.” Dissent at
3. We disagree. This approach recognizes a court’s role in our
tripartite system of government and ensures that a court
intercedes when proceeding would violate the Constitution.
Furthermore, our approach does not preclude a court from
ending a case where the evidence is insufficient or the conduct
of the prosecution is improper.




                               22
No. 17-1972, United States of America v. Raymont Wright


NYGAARD, Circuit Judge, dissenting

        This appeal presents us with two issues: First, does a
district court possess the inherent power to dismiss an
indictment after serial hung juries, and second, did the
District Court here abuse its discretion by dismissing this
indictment after two of them. I answer yes to the first and no
to the second. Because I view this to be a matter of
substantial importance, I must respectfully dissent. 1

       As the majority notes, twice now, the Government has
tried Raymont Wright for a violation of federal law: being a
felon in possession of a firearm. 2        Twice now, the
Government has done so on the basis of essentially the same
evidence at trials presided over by the same District Court.
And twice now, two different juries could not reach a verdict.
Thus, when the Government announced its intention to put
Wright on trial for the third time, the District Court was
skeptical. It asked for briefing on whether it possessed the
inherent power to prohibit the Government from taking a

1
   Whether the District Court had the inherent power to
dismiss the indictment is a legal question. We employ a
plenary standard of review to that issue. See United States v.
Schiff, 

, 161 (3d Cir. 2010) (citing United States
v. Scott, 

, 210 (3d Cir. 2000)). Whether the
District Court appropriately exercised this power is reviewed
for an abuse of discretion. Link v. Wabash R.R. Co., 

, 633 (1962).
2
  See 18 U.S.C. § 922(g).
third turn, and if it did, whether the court should use that
power. 3 After hearing from both sides, the District Court
concluded that its inherent power applied to this
circumstance. It then exercised its discretion to dismiss the
indictment.

        Neither the Government nor the majority disputes that
district courts have the inherent authority to dismiss
indictments under at least some circumstances. Citing to
United States v. Hasting, 4 however, the majority cabins that
authority to those instances in which there is evidence of
prosecutorial misconduct. In my view, in so doing, the
majority conflates and confuses the various powers of the
court. And it also hobbles the court’s discretion to probe the
impact on the fair administration of justice of those
prosecutorial decisions that sit outside the definition of bad
conduct but still pose—or threaten to pose—real institutional
harm.

       The executive office inheres prosecutors with the
power to bring a case to trial. The judicial office, on the other
hand, inheres the court with the power to end a case. 5 Both

3
  The District Court ordered the parties to “file cross briefs
stating their position regarding whether the Court, through an
exercise of its inherent authority, should prohibit or permit a
second re-trial in this case.” United States v. Wright, No. 14-
cr-292, 

, at *1 (W.D. Pa. 2017).
4
  

, 505 (1983).
5
  See Young v. U.S. ex rel. Vuitton et Fils S.A., 

,
816 (1987)(Scalia, J. concurring)(“The judicial power is the
power to decide, in accordance with law, who should prevail
in a case or controversy. See Art. III, § 2. . . . [S]ince the




                                2
offices share a responsibility to safeguard the overall integrity
of the judicial process. But when a prosecutor decides to
proceed with another trial in the aftermath of multiple
mistrials, who but the court is empowered to question the
impact of the prosecutor’s discretion on the fair
administration of justice, particularly when the court has
concerns that the proceedings—and the institution—will be
tainted by the abuse of jury shopping? It could be argued that
two mistrials may not in some instances be enough to inflict
serious institutional damage. But, the majority’s combined
reliance on Dietz v. Bouldin 6 and Fed. R. Crim. P. 31(b)(3) to
allow the prosecutor to bring an unlimited number of retrials,
so long as she or he does not stray into the realm of “illegal
conduct,” provides the prosecutor with an unchecked power.
This poses a threat to the integrity of the judiciary and
contradicts the inherent responsibility and authority vested in
the judiciary by the framers of the Constitution. Thus, it is
the majority’s decision—and not the District Court’s exercise
of its inherent authority—that violates the separation of
power principles on which the majority relies. We must
affirm that our trial court judges have the discretion,
originating in the court’s inherent power, to take proper
action when warranted to protect the institutional integrity of
the judiciary.

       Here, the District Court mindfully struck the balance
that is necessary anytime the power of the court and the


prosecution of law violators is part of the implementation of
the laws, it is—at least to the extent that it is publicly
exercised—executive power, vested by the Constitution in the
President.”) (footnote omitted)).
6
  

, 1892 (2016).




                               3
power of the prosecutor intersect. Drawing from factors set
out in State v. Abbati, 7 the District Court identified and
investigated a circumstance that it identified as harmful to the
institution and to the defendant: jury shopping. It also took
note of the impact of serial retrials on the defendant. It then
properly dismissed the indictment. Its use of the court’s
inherent discretion did not violate the separation of powers
doctrine. To the contrary, it gave definition and substance to
it.

                               I.

       Some review is appropriate to illuminate how and
possibly why I believe the majority confuses the court’s
various powers.

                              A.

        Federal courts operate within a constitutional system
that enumerates the powers of each branch of government, as
set forth in the founding document.        Article I restrains
congressional power to those “legislative Powers granted
herein.” 8 By comparison, Article II vests the President with
“the executive Power” without further description, limitation,
or restriction. 9 Analogous to Article II, Article III conveys
without restriction or limitation the “judicial Power” to
federal courts. 10 Accordingly, the Supreme Court has—since
at least 1812—recognized that “[c]ertain implied powers must

7
  

, 521-22 (N.J. 1985).
8
  U.S. Const. art. I, § 1.
9
  U.S. Const. art. II, § 1.
10
   U.S. Const. art. III, § 1.




                               4
necessarily result to our Courts of justice from the nature of
their institution.” 11 “The moment the courts of the United
States were called into existence and invested with
jurisdiction over any subject, they became possessed of”
inherent authority. 12

       Moreover, two bedrock purposes of the Constitution—
checking the actions of the states and ensuring that Congress
and the Executive do not overstep their boundaries—require a
federal judiciary that exercises its own independent judicial
power. That is, it would be impossible for federal courts to
discharge these vital duties if they lacked some inherent
power beyond the reach of the Executive or the legislature. I
think of it this way: the elaborate measures set out in the
Constitution to protect the independence of the judiciary (life
tenure, removal from office only through impeachment, no
decrease in salary during a judge’s tenure, for example)
would be meaningless if there were not some inherent,
unimpeachable power vested solely in the federal courts.

       In Eash v. Riggins Trucking Inc., 13 we defined inherent
power as vesting in federal courts upon their creation and as
not deriving from any statute. In this sense, the “judicial
power” given to the federal courts by Article III of the
Constitution is the “power to decide, in accordance with law,
who should prevail in a case or controversy.” 14 No matter the
description, this power is intrinsic to the judicial office and

11
   United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812).
12
   Ex parte Robinson, 

, 510 (1873) (speaking of
the inherent contempt power).
13
   

, 561 (3d Cir. 1985) (en banc).
14
   

(Scalia, J., concurring).




                               5
cannot be inhibited by any rule or act of Congress. As we
have recognized, the boundaries of this power are often
“nebulous” and “shadowy,” 15 and “it is not always possible to
categorize inherent power.” 16 Yet, we have an outline.

        In Eash, we identified three main classes or categories
of inherent power: 1) inherent powers based in Article III,
that is, the power of a lower federal court to decide a case
over which it has jurisdiction; 2) those powers “necessary to
the exercise of all others,” 17 and 3) powers that include those
reasonably useful to achieve justice, which are “necessary
only in the practical sense of being useful.” 18 Focusing on the
first category, the inherent power to decide a case is “so
fundamental to the essence of a court as a constitutional
tribunal that to divest the court of absolute command within
this sphere is really to render practically meaningless the
terms ‘court’ and ‘judicial power.’” 19 In other words, powers

15
   

(citation omitted).
16
   

17
   

Express, Inc., v. Piper, 

,
764 (1980)).
18
    

see also Am. Civil Liberties Union v. Holder,

, 255-56 (4th Cir. 2011) (applying Eash factors);
In re Stone, 

, 901-02 (5th Cir. 1993) (per
curiam) (adopting Eash factors). In Chambers v. NASCO
Inc., the Supreme Court was urged to adopt our approach to
inherent powers. But the Court held that it “ha[d] never so
classified the inherent powers and . . . ha[d] no need to do so
now.” 

, 47 n.12 (1991).
19
    

. The third aspect of a court’s
inherent power is its authority to employ persons or
instruments not connected with the court, such as experts and




                               6
in this category make a court a court; they are encoded into
the judiciary’s DNA. Courts have referred to this power as a
court’s “irreducible inherent authority” 20 and “the core
Article III power.” 21 It is nothing less than our ability to
decide a case over which we have jurisdiction, without
interference by Congress or the Executive. 22

       Drawing from this, when I refer to a district court’s
inherent power, I mean a ‘“[c]ertain implied power[] [that]
must necessarily result to our Courts of justice from the
nature of their institution,’ [a] power[] ‘which cannot be
dispensed with in a Court, because they are necessary to the
exercise of all others.’” 23 It is “grounded in the separation of
powers concept,” since to deny it and yet maintain an
independent judiciary “is a self-contradiction.” 24

       However, that is not to say that the court operates
solely outside the realm of legislatively granted judicial


auditors, to assist in its decision-making function. This facet
of inherent power is not in play here.
20
   

Civil Liberties Union v. 

.
22
   United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871),

(noting that courts may exercise this
type of inherent power despite legislation to the contrary); see
also Michaelson v. United States ex rel. Chicago, St. P., M. &
O. Ry. Co., 

, 64 (1924) (acknowledging that the
Constitution vests courts with some powers unalterable by
legislation).
23
   

(quoting Hudson, 11 U.S. (7
Cranch) at 34.).
24
   

.




                               7
powers. 25 In fact, the categorization scheme in Eash was
intended largely as a means of explaining the relationship
between inherent judicial powers and legislatively granted
judicial powers. 26 It is here that I believe the majority’s
analysis strays.

                              B.

       The majority, the briefs, and the discussion at oral
argument reveal what has become a commonplace but
imprecise conflation of the terms “inherent power” and
“supervisory power.” 27 The Government, while referencing
the District Court’s “inherent power,” also referred to the
court’s “supervisory power,” and its “inherent supervisory
judicial authority.” 28 The Appellee covers the entire panoply,
citing the District Court’s “supervisory authority,” its


25
   See Hudson, 11 U.S. (7 Cranch) at 33.
26
   See In re Tutu Wells Contamination Litig., 

,
384 n.14 (3d Cir. 1997), overruled on other grounds by
Cunningham v. Hamilton County, Ohio, 

(1999).
27
   In Eash, we noted that “[t]he conceptual and definitional
problems regarding inherent power . . . have bedeviled
commentators for 

, and that “those
cases that have employed inherent power appear to use that
generic term to describe several distinguishable court
powers,” 

We also noted that “this lack of
specificity [has been compounded by courts] rel[ying] . . . on
precedents involving one form of power to support the court’s
use of another.” 

Appellant’s Br. at 13, 16; Appellant’s Reply Br. at 2,
14.




                               8
“supervisory power,” and its “inherent power.” 29 At times,
we too have been guilty of adding to the confusion. 30 The
erroneous interchangeability of these terms clouds an
important distinction that is crucial to this appeal: the
difference between inherent judicial powers and legislatively
granted judicial powers. 31 As 

, inherent “judicial
power” is given to the federal courts by Article III of the
Constitution. 32 Through this grant, federal courts receive the
“power to decide, in accordance with law, who should prevail
in a case or controversy.” 33 The merging of the terms
“inherent” and “supervisory” likely has its genesis in the fact
that some inherent powers are supervisory in function, such
as a federal court’s inherent power “to supervise the
administration of criminal justice.” 34

29
   E.g., Appellee’s Br. at 22, 26.
30
   See, e.g., United States v. Accetturo, 

, 396 (3d
Cir. 1986) (Sloviter, J., dissenting) (speaking of our “inherent
supervisory power”); see also United States v. Watkins, 

, 180 (3d Cir. 2003) (Nygaard, J., concurring)
(referring to both a court’s supervisory power and inherent
power to dismiss a case under Fed. R. Crim. P. 48(b)).
31
   In re Tutu Wells 

n. 14.
32
   See U.S. Const. art. III, § 1.
33
   

(Scalia, J., concurring).
34
    United States v. Payner, 

, 735 n.7 (1980)
(quotation marks omitted); see also Sara Sun Beale,
Reconsidering Supervisory Power in Criminal Cases;
Constitutional and Statutory Limits of the Federal Courts, 84
Colum. L. Rev. 1433, 1433-34, 1465, 1470 (1984)
(identification of Article III “judicial power,” not
congressional acts, as the source of the Supreme Court’s
supervisory authority).




                               9
       However, unlike inherent powers, a court’s
supervisory authority may come from, and can be limited by,
acts of Congress or a court’s own rules. 35 Supervisory power
often speaks to the power “to mandate ‘procedures deemed
desirable from the viewpoint of sound judicial practice.’” 36 A
court’s use of supervisory power can usually be classified in
one of three ways. First, supervisory power can refer to an
appellate court’s supervision of a district court, through the
imposition of procedures in addition to those already imposed
by federal statute or constitutional provision. 37 We have, for
example, relied on our supervisory power over district courts
to review the application of local rules of practice and
procedure. 38 We have also used our supervisory power to




35
   See, e.g., McNabb v. United States, 

, 340-41
(1943); 

.
36
   United States v. Moreno, 

, 780 (3d Cir. 2016)
(quoting Thomas v. Arn, 

, 146-47 (1985)).
37
   See, e.g., Castro v. United States, 

, 384 (2003)
(instructing district courts to notify pro se litigants about
consequences of re-characterizing motions as ones seeking
relief under 28 U.S.C. § 2255); Thiel v. S. Pac. Co., 

, 225 (1946) (announcing a new rule for the composition
of federal juries); Dunbar v. Triangle Lumber & Supply Co.,

, 129 (3d Cir. 1987) (prescribing procedures for
motions to dismiss based on the conduct of a litigant’s
counsel); United States v. Bazzano, 

, 1137-38
(3d Cir. 1977) (requiring district courts to state reasons for a
criminal sentence).
38
   See United States v. Wecht, 

, 204-05 (3d Cir.
2007).




                              10
prohibit certain jury instructions in the district courts 39 and to
review attorney-client fee arrangements. 40 Second, Courts—
both trial and appellate—also refer to their “supervisory
power” when meaning their power to supervise pending
litigation. 41 They can, for example, seal and unseal records, 42
reassign a case to a different judge on remand, 43 or disqualify
an attorney on ethical grounds. 44 Lastly, the power of a
federal court to supervise law enforcement officials can also
be what a court intends when it speaks of its “supervisory




39
   See United States v. E. Med. Billing Inc., 

,
607-12 (3d Cir. 2000).
40
   See Ryan v. Butera, Beausang, Cohen & Brennan, 

, 214 (3d Cir. 1999).
41
   See, e.g., Carlisle v. United States, 

, 425-26
(1996) (acknowledging “supervisory power” of district courts
over litigation before them).
42
   See, e.g., Hagestad v. Tragesser, 

, 1434 (9th
Cir. 1995).
43
   See Gov’t of the Virgin Islands v. Walker, 

,
376 (3d Cir. 2001) (noting that, “[a]lthough it is the standard
practice in the district courts and in this circuit that a case on
remand is assigned to the judge who originally heard it, we
can, in the exercise of our supervisory power, reassign this
case to a different judge upon remand.”) (quotation marks
omitted).
44
   In re Grand Jury Investigation, 

, 456-
57 (E.D. Pa. 2006) (collecting cases); see also United States
v. 

(summarizing supervisory
authority).




                                11
power.” 45 These powers broadly ensure that pending cases
are managed uniformly and efficiently.

        I concede that the boundary between supervisory
authority that is inherent to the court and that which is granted
by the legislature can, at times, be difficult to identify.
However, these difficulties are irrelevant to this case because
I conclude that the District Court here acted pursuant to its
inherent power and not to any authority conferred by any
statute or rule.      The District Court’s action was not
undertaken in supervision of pending litigation—two trials
were already concluded and a potential third trial had not yet
begun. Nor was it exercised according to a rule of procedure
or practice newly announced by an appellate tribunal.
Moreover, its action was not a response to any prosecutorial
misconduct or request from Wright to dismiss the indictment.
There is simply no basis to conclude that the inherent power
that the District Court exercised in this case derived from any
legislative grant.

       To the contrary, the specific power under review here
is the power to dismiss an indictment after two mistrials
because of deadlocked juries in each instance. This power
falls within Eash’s first category of power because it is an
inherent power to resolve a case. A court, by its nature, must
be able to dismiss with prejudice actions brought before it,
just as it must have the power to decide cases and enter

45
  See, e.g., United States v. Thompson, 

, 763 (3d
Cir. 2014). For a comprehensive discussion of the origins
and uses of supervisory power, see Amy Coney Barrett, The
Supervisory Power of the Supreme Court, 106 Colum. L. Rev.
324, 330 (2006).




                               12
judgments. 46 Such exercises of power are fundamental to the
essence of a court. Were they not, the judicial system simply
could not function. 47

        The inherent power to dismiss is “of ancient origin,
having its roots in judgments of nonsuit and non prosequitur
entered at common law,” and so is a power that is part of the
very nature of the judicial institution. 48 It is incidental and
necessary to the fair and efficient operation of the courts. 49
Indeed, “the power to dismiss exists in many situations. For
example, a district court has the inherent power to dismiss sua
sponte for lack of jurisdiction, or under the doctrine of forum
non conveniens.” 50 Because the power to resolve a case by
dismissing an indictment (in a criminal action) or a complaint
(in a civil action) is fundamental to the essence of a court of
justice, it cannot be interfered with. Indeed, as two
commentators have explained, “McNabb, other Supreme

46
   We have also noted that our power to remand is a subset of
the inherent power to dismiss a case. See Bradgate Assocs.,
Inc. v. Fellows, Read & Assocs., Inc., 

, 750 n.4
(3d Cir. 1993).
47
   See, e.g., Fitzgerald v. First E. Seventh St. Tenants Corp.,

, 363-364 (2d Cir. 2000) (holding a district court
has the inherent power to dismiss a case, sua sponte, if it
determines that the action is frivolous or the court lacks
jurisdiction over the matter).
48
   

.
49
   See, e.g., Bowers v. Nat’l Collegiate Athletic Ass’n, 564 F.
Supp. 2d 322, 333 (D.N.J. 2008) (citing Derzack v. County of
Allegheny, 

, 411 (W.D. Pa. 1996), aff’d
without op., 

(3d Cir. 1997)).
50
   In re Prevot, 

, 565-66 (6th Cir. 1995).




                              13
Court cases, and an analysis of several lower court opinions
addressing this precise issue should sufficiently dispel any
notion that the federal courts lack the power to bar repeated
attempts to obtain a conviction” following serial mistrials.51
Thus, the District Court’s action here was well within the
boundaries of its inherent power.

        Therefore, the majority’s conclusion that “inherent
authority,” “supervisory power,” and “supervisory authority”
all refer to the same thing (while understandable given the
rampant muddled references that persist) ultimately misses
the point. The power at issue here is the inherent power of
the court to decide a case: a power that is limited by the
boundaries of reason and discretion and is subject to appellate
review for abuse. It is not subject to the power of Congress
or the Executive.

                              II.

       There is no dispute that district courts have the
inherent power to dismiss indictments in at least some
circumstance. The majority nevertheless concludes that the
District Court lacked the power to do so in this case. The
majority reaches that conclusion for three principal reasons,
but none withstands scrutiny.

                              A.

51
  Michael A. Berch & Rebecca White Berch, The Power of
the Judiciary to Dismiss Criminal Charges After Several
Hung Juries: A Proposed Rule to Control Judicial Discretion,
30 Loy. L.A. L. Rev. 535, 543 & nn. 42-43 (1997) (collecting
cases).




                              14
       First, the majority agrees with the Government’s
argument that the District Court’s dismissal violated the
Separation of Powers Doctrine. I agree that the District
Court’s dismissal implicates the separation of powers. But its
actions were in furtherance—not in violation—of the
doctrine. The separation of powers doctrine refers to the
balance among the branches of Government which prevents
one branch from disrupting the constitutional functions of
another. 52

       Here, the majority concludes that, in dismissing the
indictment after two hung juries, the District Court
encroached on the independence of the Executive because it
prohibited the prosecution from exercising its constitutional
duty to enforce the laws of the United States. Certainly, the
United States Attorney, as a member of the Executive Branch,
has such a responsibility. 53 And, just as certainly, the
decision to prosecute “is soundly within the discretion of the
prosecutor, not the courts.” 54 The Government’s authority
not to prosecute a case is clear as well. 55 But we see no sign
that the District Court did anything to prevent the
Government from fulfilling its duty. To the contrary, the
Government was twice given a full and fair opportunity to

52
   See, e.g., Clinton v. Jones, 

, 699-700 (1997);
Morrison v. Olson, 

, 696 (1988); Nixon v. Adm’r
of Gen. Servs., 

, 442-43 (1977); Baraka v.
McGreevey, 

, 201 (3d Cir. 2007).
53
   See, e.g., In re Grand Jury, 28

53, 163 (3d Cir.
2002).
54
   United States v. Talley, 

, 997 (6th Cir. 1999).
55
   See, e.g., United States v. Quinn, 

, 255-56 (3d
Cir. 2013).




                              15
present its case and makes no claim that the District Court
ever prevented it from doing so.             Having had those
opportunities, the Government had no absolute right as a
matter of separation of powers or otherwise to try again. As
two commentators have explained, a district court’s use of its
inherent power to dismiss an indictment after serial mistrials
does not raise “significant separation of powers concerns”
because the nature of that inherent power means that federal
courts “need not automatically defer to a prosecutor’s
decision to retry a defendant” in this situation. 56

        The majority nevertheless concludes that prosecutors
have the unimpeded right to try persons for violating federal
law based on an indictment as many times as they wish and
that the separation of powers doctrine prohibits a federal court
from interfering. This position is untenable because it is not a
true reflection of the separation of powers. It is axiomatic
that no one branch of government is completely divorced
from the other two. In reality, “our constitutional system
imposes on the Branches a degree of overlapping
responsibility, a duty of interdependence as well as
independence.” 57 This overlap becomes problematic, of
course, when it results in an encroachment (when an action of
one branch might undermine the independence of another
branch) or an aggrandizement (where one branch seeks
“powers more appropriately diffused among separate
Branches”). 58


56
   Berch & Berch, supra note 51, at 544.
57
   Mistretta v. United States, 

, 381 (1989).
58
   

see also In re Tribune Media Co., 

,
285 (3d Cir. 2015) (Ambro, J., concurring).




                               16
        But recognizing a district court’s right to prohibit a
retrial following serial mistrials does not implicate these
concerns. To the contrary, and putting the shoe on the other
foot, the Government’s position that nothing limits its
opportunity to try and retry a defendant as many times as it
chooses violates the judicial branch’s constitutional mandate
to exercise its judicial power. Just as the filing of an
indictment is an exercise of executive power, the dismissal of
one is an exercise of judicial power. The unlimited serial
prosecutions that the Government advocates for, and that the
majority permits, would limit a court’s authority to dismiss an
indictment to only those instances in which the prosecutor
steps outside the bounds of professional conduct. But our
independence as an institution of government must include an
ability to adjudicate, and thus dismiss with prejudice,
individual cases when a district court, in its discretion, has
concerns about the impact of serial retrials on the institution
and the defendant. We view the prosecution of a defendant
after deadlocked juries as a tipping point in balancing the
separation of powers. As the repeated prosecutions increase,
so too does the judiciary’s power to limit them. As we stated
in Eash, and as we 

, a court’s exercise of its
inherent power to dismiss an indictment after retrials does not
violate the separation of powers but is grounded in it. 59

                                  B.

       Second, and relatedly, the majority concludes that the
District Court’s dismissal was in violation of Fed. R. Crim. P.
31(b)(3), which the majority claims confers on prosecutors
the unlimited discretion to retry defendants following serial

59
     See 

.




                                  17
mistrials. Rule 31 does nothing of the kind. Rule 31 provides
in relevant part that “if a jury cannot agree on a verdict on one
or more counts, the court may declare a mistrial on those
counts. The government may retry any defendant on any
counts on which the jury could not agree.” 60 The Supreme
Court adopted this rule in its original form in 1944 as a
“restatement of existing law.” 61 The Supreme Court itself
appears never to have cited Rule 31(b)(3), and neither the few
Courts of Appeals to have done so 62 nor its Advisory
Committee Notes have discussed its history or purpose in any
detail. Arguably, the rule’s reference to the prosecutor’s
general ability to retry a defendant following a mistrial may
be nothing more than a recognition of the longstanding
principle that retrials following mistrials are not prohibited by
the Double Jeopardy Clause, 63 which is not at issue here.

        In any event, this rule does not by its terms prohibit
district courts from dismissing indictments following serial
mistrials. District courts have the inherent power to do so as
explained above. A district court’s exercise of that power
could be contrary to Rule 31(b)(3) only if the rule contained
an “express grant of or limitation on” that power. 64 It does
not. The rule does not mandate a retrial after a mistrial. Nor

60
   Fed. R. Crim. P. 31(b)(3).
61
   

note to 1944 adoption.
62
    See United States v. Melendez, 

, 57 (1st Cir.
2014); United States v. Warren, 

, 546 (7th Cir.
2010); United States v. Fort, 

, 1111 n.3 (9th
Cir. 2007); United States v. Gotti, 

, 137 (2d Cir.
2006).
63
   See United States v. Perez, 

, 580 (1824).
64
   

.




                               18
does it contain any other limitation on the district court’s
power to prohibit one. In fact, the rule does not even mention
that issue. 65 Thus, as the Supreme Court has noted in
addressing other rules of court, “[i]t would require a much
clearer expression of purpose than [this rule] provides for us
to assume that it was intended to abrogate” the district courts’
inherent power. 66 Put simply, when there have been multiple
mistrials and the prosecutor seeks to try the case again, Rule
31(b)(3) does not purport to reduce the role of the district
courts to that of a rubber stamp.

                              C.

        Finally, the majority claims that a district court can
exercise its inherent power to dismiss an indictment only if
there is evidence of willful bad faith or prosecutorial
misconduct on the part of the government and resultant
prejudice to the defendant. It cites to numerous decisions that
it says supports this position. 67 But none of these cases deals

65
   The majority claims that Rule 31(b)(3)’s silence on this
issue supports the proposition that district courts lack the
authority to dismiss an indictment following serial mistrials.
But because district courts have the inherent power to do so
as explained above, the question is not whether Rule 31(b)(3)
permits district courts to dismiss an indictment in that
circumstance. The question instead is whether Rule 31(b)(3)
prohibits them from doing so. It does not.
66
   

.
67
   See Bank of Nova Scotia v. United States, 

,
254-56, 263 (1988); United States v. Chapman, 

, 1087 (9th Cir. 2008); United States v. Goodson, 

, 514 (4th Cir. 2000); United States v. Derrick, 163




                               19
with the particular circumstance we face here: the decision to
retry a defendant after serial mistrials. 68 In fact, many are
dismissals due to prosecutorial misconduct. The majority’s
reliance on such decisions is misplaced because it ignores the
fact that the dismissal in this case was not punitive in nature;
it was not a sanction for misconduct. 69 As two commentators
have explained, “[a]lthough the inherent power principle has
usually involved cases of misconduct by the parties or a
vindication of statutory principles, the doctrine is not so
limited.” 70 To the contrary, courts may use their inherent
authority to dismiss indictments whenever necessary to
vindicate “principles of fairness to the defendant and the
interests of the public in the effective administration of
justice.” 71

        That is just what the District Court did here. The
Government asked the District Court to dismiss without
prejudice “[e]ven if this court were inclined to dismiss the
case.” 72   Yet the Government proffered no additional


F.3d 799, 808 (4th Cir. 1998); United States v. Tucker, 

, 674 (9th Cir. 1993) (en banc); United States v. Van
Engel, 

, 631-32 (7th Cir. 1993); United States v.
Santana, 

, 11 (1st Cir. 1993); United States v. Isgro,

, 1094 (9th Cir. 1992).
68
   Derrick does deal with a dismissal of the indictment after
an initial grant of a retrial, but the circumstance differs from
this case because the mistrials were not due to deadlocked
verdicts. 

69
   Cf., e.g., 

.
70
   Berch & Berch, supra note 51, at 548.
71
   

, at *7.




                               20
evidence it would present if Wright was re-indicted. It asked
to try the same case again before a third jury, merely hoping
for a different result. The District Court’s dismissal of the
indictment with prejudice was based on the merits, or lack
thereof, of the Government’s request, no more and no less.

        Moreover, the dismissal was not, as the majority
contends, a general declaration of unfairness simply because
the government failed to obtain a conviction. 73 Nor was it
merely an attempt to shield the defendant from the anxiety of
a retrial. 74 Reference to Miller and Shepherd misconstrues
not only the circumstance of this case, but also the gravity of
the District Court’s concern. As I discuss next, the District
Court weighed many factors, mindful of the importance of
each, before making its decision. From all of this—even
taking into account the separation of powers and Rule
31(b)(3)—it is evident to me that the District Court correctly
concluded it had the inherent authority to act upon the
prosecutor’s decision to retry this case in the wake of two
mistrials. 75

73
   See United States v. Miller, 

, 795 (9th Cir. 1993).
74
   See United States v. Shepherd, 

, 123 (5th Cir.
1975); see also Arizona v. Washington, 

, 503-04
(1978).
75
   Although we conclude that the District Court appropriately
exercised its inherent power as a court of law to dismiss an
indictment, thus placing its actions within Eash’s first
category, the District Court appeared at one point to tether its
dismissal to its “inherent authority to effectuate . . . the
speedy and orderly administration of justice and to ensure
fundamental fairness.” Wright, 

, at *2.
These actions are typically associated with the second




                              21
                             III.

        Before moving to the actual merits of the District
Court’s decision, a word of caution is in order. Just because a
court has inherent power to dismiss an indictment after a
retrial does not mean it should always be exercised. 76 My
dissenting opinion today should not be interpreted as an
endorsement of unchecked and ungrounded judicial power.
Nor should it be interpreted as permitting district courts in
this Circuit to dismiss indictments without a significant basis
for doing so. Moreover, nothing in this opinion should be
read as limiting reprosecution to two trials. Cases no doubt
exist where a third or fourth trial on the same indictment may
be appropriate where the evidence so indicates. It is simply
my conclusion that, in some cases, and in the proper exercise
of its discretion, a district court has the inherent power to
prohibit continued re-prosecution by dismissing an
indictment.

                             IV.

      This is such a case. The District Court here rightly
proceeded with the Government’s request for another trial
with deliberate caution. Recognizing the lack of guidance


classification of Eash’s powers. See 

-
563. Nonetheless, it invoked the inherent power of the court
and dismissed the case and it is on this basis that I conclude
the District Court did not reach the boundaries of its power.
76
   See Lopez v. United States 

, 440 (1963); see
also 

(“Because of their very
potency and discretion, inherent powers must be exercised
with restraint and discretion.”).




                              22
from this Court, the District Court turned to a decision of the
Supreme Court of New Jersey. In State v. Abbati, 77 that court
listed several factors a trial court should consider before
dismissing an indictment after several hung juries. These
factors are valid inquiries and include

          • the number of previous mistrials and the
            outcome of the juries’ deliberations, as far as
            can be determined;
          • the character or nature of the previous trials,
            considering their length, complexity of issues,
            and similarities in evidence;
          • the probability that any subsequent trial will be
            much different from the previous ones;
          • the relative strength of the party’s case, as
            determined by the trial court;
          • the conduct of counsel during the previous
            trials. 78

In considering these factors, a district court must also accord
appropriate weight to the Government’s decision to continue
prosecution, giving deliberate consideration to the reasons for
that choice. 79

       Other considerations might include the seriousness of
the crimes charged, the public’s interest in the effective
resolution of criminal charges, and the criminal defendant’s
circumstances, including the impact that continued
prosecution might have on him or her and the potential for

77
   

.
78
   

79
   See 

or unnecessary hardship. 80 The factors just
outlined are not an exhaustive list and district courts could
consider other things that are reasonably useful in answering
whether further prosecutions after deadlocked juries should
be permitted. Moreover, all of these elements of inquiry
enable the court to assess the impact that a serial retrial has on
the integrity of the judiciary as an institution.

        These avenues of inquiry make sense to me. Take
differences in evidence, for example. If the evidence would
be different at a retrial, then there seems little chance that
continued prosecution should be curtailed. If, on the other
hand, there would be no substantial difference in evidence,
concern about re-prosecution is appropriate. So too the
number of deadlocked juries is an important consideration.
Continued prosecution after two, three, or even four
deadlocked juries could unbalance the scale. By inquiring
into the seriousness of the charges, a district court could
compare the crime being prosecuted to other cases when a
court dismissed an indictment after deadlocked juries.       In
other words, a district court must make sufficient findings and
establish a sufficient record supporting its decision, thus
enabling a court of appeals to accurately assess whether the
district court abused its discretion or not. That is what the
District Court did here.

       I see no abuse of discretion in the District Court’s
exercise of its inherent powers. The District Court’s ruling
was not arbitrary and instead was based on a thorough,
careful, and balanced consideration of the above factors. The
District Court first acknowledged the weight of its actions

80
     See 

our constitutional scheme. It then found that the
evidence suggested that the deadlock was not the result of a
lone holdout. As to the character of the preceding trials, the
District Court noted the Government’s position that this was a
“simple” case. It also stated that both previous trials were
“virtual duplicates” and that counsel on both sides was the
same for both prosecutions. The District Court further
observed the lack of any allegation of jury nullification or
bias. Instead, it found that “there is every indication that the
two juries engaged in deliberations in good faith, and, despite
their best efforts, were unable to reach a verdict.”

       The District Court also considered the strength of the
parties’ respective cases and determined that its opinion on
this factor was irrelevant, given that two separate juries had
concluded that the Government failed to meet its burden of
proof. It commended the professionalism and hence the
effectiveness of counsel on all sides, which it weighted as
favoring disallowing any further prosecution. The District
Court specifically considered the seriousness of the crime
charged, and it noted that other courts had dismissed
indictments when the charges were far graver. 81 Lastly, the
District Court thoroughly balanced the Government’s
authority to prosecute against the effect of continued
prosecution on Wright. Recognizing that Wright has been on
bond since July of 2014, and on home detention for nearly
two years, the District Court concluded that this inquiry
tipped in his favor.

81
   Wright, 

, at *6 (citing United States v.
Ingram, 

, 385 (D.D.C. 1976); State v.
Moriwake, 

, 708 (Haw. 1982); 

; and State v. Witt, 

, 914 (Tenn. 1978)).




                              25
                             V.

        In conclusion, I see no abuse of discretion in the
District Court’s careful and thorough balancing of relevant
factors, a balancing which led it to invoke its inherent power
and to dismiss the Government’s indictment of Wright. For
all of these reasons, I respectfully dissent from my esteemed
colleagues in the majority. I would affirm.




                              26