United States v. Bergman, 746 F.3d 1128

Bergman hired an undercover officer to kill her ex-husband after paying $30,000 from her mother’s retirement account; the officer posed as a hit man and trial evidence framed him as the killer.
Her attorney was actually a con man who had duped clients and courts in prior cases; Bergman pursued habeas relief under 28 U.S.C. §2255 alleging ineffective assistance of counsel.
The district court vacated Bergman’s conviction and discharged her from supervised release, while signaling that a new trial would be barred; the government sought a new trial date, which the district court treated as a request to reopen §2255 proceedings and denied.
The government appealed under 18 U.S.C. §3731, arguing the district court’s actions effectively dismissed the indictment and were appealable, and that the remedy (discharge) violated no double jeopardy and could constitutionally permit retrial.
The court must determine (a) whether the appeal is proper under §3731 despite the absence of a formal dismissal, (b) whether double jeopardy bars retrial, and (c) what remedy best addresses the Sixth Amendment violation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the district court order an appealable dismissal under §3731?	Government argues the order effectively dismisses the indictment and is appealable.	Bergman argues the court has no authority to hear the appeal.	Yes; the order has practical effect of dismissing the indictment and is appealable.
Does the Double Jeopardy Clause bar a new trial here?	Bergman contends double jeopardy prevents retrial after reversal of conviction.	Government contends double jeopardy does not foreclose retrial when the conviction was reversed for trial-error reasons.	No; double jeopardy does not bar a new trial in this context.
Is a new trial the presumptively appropriate remedy for the Sixth Amendment violation?	Bergman argues the district court’s remedy was inappropriate and abused discretion by denying a new trial.	Government argues the remedy may be tailored and could be something narrower than a new trial in particular circumstances.	Presumptively appropriate remedy is a new trial; district court abuse in denying retrial without justification; remand warranted.

Morrison v. Lafler, 132 S. Ct. 1376 (U.S. 2012) (Sixth Amendment remedies must be tailored to the injury and avoid windfalls)
Pearce, 395 U.S. 711 (U.S. 1969) (remedies must balance defendant rights with societal interests)
Lafler v. Cooper, 132 S. Ct. 1376 (U.S. 2012) (remedy for ineffective assistance may include a new trial to remedy taint)
Morrison, 449 U.S. 361 (U.S. 1981) (remedies must account for competing interests in criminal justice)
Bowen v. Maynard, 799 F.2d 593 (10th Cir. 1986) (discharge without prejudice; reaffirmed that writ does not generally bar retrial on original charge)
Bromley v. Crisp, 561 F.2d 1351 (10th Cir. 1977) (habeas relief can be used to authorize retrial when appropriate; abuse of discretion standard applied)
Capps v. Sullivan, 13 F.3d 350 (10th Cir. 1993) (habeas remedies tailored to circumstance; retrial often appropriate for Sixth Amendment violations)
Burton v. Johnson, 975 F.2d 690 (10th Cir. 1992) (habeas relief and retrial considerations; discretion in remedy selection)
United States v. Scott, 437 U.S. 82 (U.S. 1978) (appealability of district court actions despite labeling)