US v. Wright — criminal — affirmance — Shwartz

Today, a fractured Third Circuit panel reversed a district court’s order dismissing a criminal indictment with prejudice after two trials and two hung juries. The lead opinion held that the district court lacked inherent authority to dismiss the indictment absent misconduct or “any prejudice beyond the general anxiety and inconvenience of facing a retrial.”

Judge McKee concurred in the judgment and Judge Nygaard dissented. Although both separate opinions refer to Judge Shwartz’s opinion as a majority opinion, at first blush I read Judge McKee’s rationale as narrower than Judge Shwartz’s so it is unclear to me which opinion will be viewed as binding precedent by future panels.

The case originally was decided yesterday without Judge McKee’s opinion.

Arguing counsel were Donovan Cocas of the WDPA US Attorney’s office for the government and Renee Pietropaolo of the WDPA federal defenders for the defendant.

Bryan v. US — civil rights — affirmance — Roth

After customs agents searched the cabins of three cruise-shop passengers, the passengers brought Bivens claims against the agents and the a claim under the Federal Tort Claims Act against the government. Today, the Third Circuit affirmed summary judgment against the passengers, holding that the Bivens claims were barred by qualified immunity and the FTCA claim by the discretionary-function exception.

Joining Roth were Krause and Fisher. Arguing counsel were David Nissman of McChain Nissman for the passengers and Samantha Chaifetz for the government.