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


4-24-2006

USA v. Risha
Precedential or Non-Precedential: Precedential

Docket No. 04-4677




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                                           PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 04-4677


           UNITED STATES OF AMERICA,
                               Appellant

                           v.

                 JESSE JAMES RISHA




     On Appeal from the United States District Court
        for the Western District of Pennsylvania
                 (D.C. No. 03-cr-00266)
     District Judge: Honorable Donetta W. Ambrose



                Argued October 20, 2005

Before: SMITH, BECKER, and NYGAARD, Circuit Judges.

                 (Filed: April 24, 2006)
MARY BETH BUCHANAN
United States Attorney
LAURA S. IRWIN (Argued)
Assistant U.S. Attorney
700 Grant Street, Suite 400
Pittsburgh, Pennsylvania 15219
     Attorneys for Appellant

CHARLES J. PORTER (Argued)
Brucker, Schneider & Porter
1715 Gulf Tower
707 Grant Street
Pittsburgh, PA 15219
       Attorney for Appellee



                  OPINION OF THE COURT



BECKER, Circuit Judge.

        This is a government appeal from an order of the District
Court granting a new trial on Brady grounds to Defendant Jesse
James Risha, who was convicted of attempted arson in violation
of 18 U.S.C. §§ 844 (i) and (2). See Brady v. Maryland, 373
U.S. 83 (1963). The District Court concluded that the
government’s key witness, Frank Caito, expected consideration
for testifying against Risha, and that his testimony in fact helped
him to secure an extremely favorable plea agreement in

                                2
unrelated state charges pending against him. The Court therefore
held that a new trial must be granted because of the
government’s failure to disclose these facts. Of course, a failure
of the prosecution to disclose impeachment evidence, coupled
with a duty to disclose, would result in a Brady violation. See
Giglio v. United States, 405 U.S. 150 (1972).
        No evidence has been advanced that the federal
prosecutors in Risha’s case had actual knowledge of Caito’s
expectations or of a pending plea agreement. The question
ultimately presented here is whether cross-jurisdiction
constructive knowledge can be imputed to the federal
prosecution because of close involvement between the federal
prosecution and state agents, or because impeachment
information may have been “readily available.” Under certain
fact findings, such knowledge might be imputed. In fact, we find
it possible, indeed very likely, that a new trial should be granted.
However, though the District Court made a conclusory
determination that the jury should have been told that Caito
expected a deal as a result of his federal cooperation, it did not
address, in terms, the necessary question of constructive
possession. That question involves factual and credibility
determinations. Therefore, we will vacate the District Court’s
order and remand for a determination whether there was
constructive possession of Brady material.

               I. Facts and Procedural History

       The government alleges that on May 10, 1998, Risha
offered to pay Caito to set fire to video machines owned by
Risha so that Risha could recover insurance proceeds. Caito
attempted to set fire to the Clairton, Pennsylvania property
where the machines were located; however, the smell of
gasoline was quickly reported to the authorities, and the fire did
not ignite.
       In September of 2002, more than four years later, Caito
learned of an unrelated state warrant for his arrest for the illegal

                                 3
 sale of firearms. He turned himself in to Pennsylvania
 authorities, later disclosing his involvement in the 1998 fire. As
 detailed below, proceedings on the state firearms charges were
 postponed until after Risha’s federal trial for the arson,
 presumably because of Caito’s cooperation. Ultimately, Caito
 received only probation on the state charges.
         Risha was twice brought to trial for aiding and abetting
 the attempted arson of a building used in, and affecting,
 interstate commerce. His first trial ended in a hung jury, and his
 second in a conviction. Caito testified as a principal witness for
 the government in both trials. At Risha’s second trial, the one at
 issue here, Caito testified that he had been given immunity for
 his testimony. He also told the jury that testifying against Risha
 would not have any impact on the disposition of the state
 firearm charges against him.1 At one point during cross
 examination, Caito asserted that the state and federal cases had
 nothing to do with each other. He did, however, disclose the
 earlier continuances in his state case and the fact that an agent
 involved in the federal case against Risha had arrested him for
 the state firearms charge.
         In its instructions to the jury, the District Court advised


      1
       The testimony was as follows:

              Q:     But there were still charges pending against
                     you for your illegal sale of firearms?

              A:     Yes, there are.

              Q:     And what, if any, bearing does your
                     testimony in this case have on that case?

              A:     None.

(Emphasis added.)

                                 4
the jurors to take note of Caito’s federal immunity. However,
the jury was at no time instructed to consider the pending state
charges against Caito. And yet, the prosecutor in Risha’s trial
emphasized in his closing that Caito had nothing to gain by
testifying, stating that because he had immunity, he did not have
“any particular reason not to tell the truth.” The controversy here
is whether the government was obligated to disclose that Caito
did in fact expect leniency and a forthcoming plea agreement in
the state charges against him.

       A.     Disposition of the State Charges Against Caito

        The proceedings on the state firearm charges were first
scheduled for May, 2003. Trial was postponed for various
reasons. On June 9, 2004, Caito moved for another continuance,
this time in apparent reference to his testimony in Risha’s case:

       Defendant’s participation in a federal court matter
       is not yet resolved (hung jury earlier this year;
       anticipated trial date late summer per AUSA
       Shawn [sic] Sweeney). Resolution of federal
       matter and unrelated state court matter will
       ultimately provide both parties with the factual
       basis to resolve this matter without a jury or non-
       jury trial.

Caito’s attorney, David Chontos, marked the “non-jury trial”
box on the motion and wrote that he was requesting a plea.
Bradley Hellein, Assistant Pennsylvania Attorney General and
the prosecutor in the state case against Caito, consented to the
motion. Risha argues, and the District Court agreed, that these
communications indicated that “a plea agreement would be
forthcoming,” following, and as a consequence of, Caito’s
testimony against Risha.
       At the District Court hearing, Hellein testified that he
knew that Caito was cooperating in the federal investigation of

                                5
 Risha. He further testified that he told Caito, “every time [he]
 met him,” that any state or federal cooperation would be “taken
 into consideration” in resolving the state charges.2 However,
 Hellein also testified that he never specifically stated that Caito
 would receive more “lenient treatment,” and that he did not have
 authority to make ultimate decisions regarding sentencing
 recommendations.3 David Chontos, Caito’s state-court attorney,
 also suggested that he expected Caito’s federal testimony
 against Risha to affect the disposition of the state charges.
 However, as indicated below, some of Chontos’ testimony on
 this matter is conflicting. On September 17, 2004, after Risha
 was convicted, Caito entered a plea to two counts of possession
 of a firearm without a license. Two more serious charges were
 dropped, as requested by the state. As felonies in the third
 degree, the crimes together carried a maximum penalty of 7 to
 14 years incarceration and a fine of $30,000, yet Caito’s plea
 agreement was for a period of probation only, the length of
 which was to be determined by the court. At sentencing, Caito
 was placed on probation for only one year. During Caito’s
 sentencing, Hellein made clear his knowledge of Caito’s
 involvement in Risha’s case. In a statement that the District
 Court felt confirmed Caito’s expectations of a beneficial plea

       2
         Indeed, the District Court stated that “it is clear that Caito
understood from Chontos and Hellein that testifying against Risha
in the federal case would impact the disposition of state charges.”
We note that the government has asserted that it “does not
challenge as clearly erroneous any of the district court’s factual
findings.”
       3
        The government makes much of the fact that Hellein had
“no authority to enter into a deal absent approval” from his
superiors. However, the fact that Hellein did not have ultimate
decisionmaking authority does not mean that his recommendation
carried no weight. Indeed, it appears that his recommendation was
ultimately approved.

                                  6
agreement, Hellein advised the Court of Caito’s cooperation:

       We would also add that Mr. Caito has provided
       very valuable assistance to the Commonwealth
       and the United States of America with regard to a
       certain prosecution that occurred in the Western
       District of Pennsylvania resulting in a conviction
       approximately a month and a half ago.

The District Court found it undisputed that the cooperation
referenced was Caito’s testimony against Risha.

       B.     The Overlap of State and Federal Agents

        As described below, a finding of constructive knowledge
as between federal and state forces may depend on the extent to
which the forces overlapped.
        It appears that the investigation of the arson began as a
joint federal-state effort. It also appears that at least one state
agent was simultaneously involved in the federal case against
Risha and the state case against Caito. Though neither the
District Court nor the government discuss Agent Paul Marraway
at length, his role may be highly relevant. Marraway was an
agent with the state Attorney General’s Office, who arrested
Caito on the firearm charges. Marraway was also involved in the
investigation of the attempted arson, and continued to be
involved after Risha was indicted on federal charges. Notably,
Marraway actually sat at the government counsel table during
Risha’s first federal trial.
        Caito’s state court attorney, David Chontos, suggested in
his testimony that Agent Marraway spoke with Hellein and may
have assisted Caito in receiving a deal on the state charges. At
one point Chontos recollects a “powwow,” apparently before
Risha’s second trial, during which Chontos, Caito, Hellein, and




                                7
 Marraway met to discuss Caito’s cooperation.4 Chontos affirmed
 that he told Caito “on numerous occasions” that in order to
 receive leniency, he needed to “satisfy” state Agent Marraway
 in the federal case. Marraway testified that he advised Hellein
 of Caito’s cooperation in federal court. He also represented that
 there was contact between himself and Shaun Sweeney, the
 federal prosecutor in Risha’s case. On the other hand, Marraway
 testified that he specifically told Caito that consideration from
 the federal government was a different matter from
 consideration in the state case, and that he was aware of no one
 from the state Attorney General’s Office who implied or directly
 stated that Caito’s federal cooperation would benefit him in the
 state system. Also, at one point, Caito claimed that he did not
 think there were manifestations by Sweeney or Hellein that
 federal cooperation would benefit Caito in the state charges, but
 that Marraway may have made such manifestations.
         As explained below, if a team or joint investigation did
 exist here, or if any state agent was acting on behalf of the
 federal government, the federal prosecution may be charged
 with the knowledge of the state Attorney General’s Office –
 including the knowledge of Marraway and perhaps Hellein.
 Notably, the federal prosecution conceded, in a September 8,
 2004 filing with the District Court, that it constructively
 possessed the state grand jury testimony of Richard Merlo.
 Merlo was, allegedly, a long-time associate of Risha. As here,
 the government maintained that it had no actual knowledge of
 the 2000 grand jury testimony. But it stated:

           Given the fact that government counsel was
           working with agents of the AG’s Office in the
           instant case, government counsel should have

       4
        While this specific discussion did not appear to involve the
federal testimony, the particulars are not clear. Regardless, the
“powwow” implies that Hellein and Marraway were in
communication regarding Caito.

                                 8
       specifically inquired of the agents as to whether
       Merlo had testified before the grand jury. . . .
       Again, the government concedes that, as a matter
       of law, government counsel’s lack of specific
       knowledge of the transcript is not an excuse for
       failing to disclose it.

(Emphasis added.)
        We believe that this language, omitted by the government
in its current appeal, is indicative that federal and state forces
may have acted as a team. It appears that the federal prosecution
itself viewed its relationship with the state Attorney General’s
Office as collaborative. Of course, the District Court will take
this information under consideration on remand.

       C.     The District Court’s Opinion

       The District Court found a Brady violation and granted
Risha’s motion for a new trial. It stated that the disposition of
Caito’s state court charges “[gave] rise to the assumption” that
he had a motive for lying. It cited the fact that Caito’s state
proceedings were continued on a number of occasions and that
Chontos testified that he requested postponements for the
“express purpose” of allowing Caito to complete his testimony.
Each time, it noted, Caito’s counsel and the deputy attorney
general agreed to a postponement. The Court emphasized
Chontos’ comment in conjunction with Caito’s June 3
postponement that completion of the federal testimony would
“provide both parties with the factual basis to resolve th[e]
matter without a jury or non-jury trial.”
       The Court agreed with the government that “there was no
representation, at any time, by either Assistant United States
Attorney Shaun Sweeney, or the agent on the case, to Caito or
Chontos that the United States would make any attempt to
intervene in the state court proceedings.” (Emphasis added.)
However, the Court did not opine as to whether there was actual


                                9
or constructive knowledge of an expected benefit on the part of
any “direct” member of the federal prosecution. At all events,
the Court concluded that “the jury should have been informed
that the government’s key witness expected to receive a benefit
for testifying against the Defendant.” It therefore vacated the
jury verdict and ordered a new trial. The government filed a
timely notice of appeal.

           II. Jurisdiction and Standard of Review

       The District Court exercised jurisdiction over this case
pursuant to 18 U.S.C. § 3231. This Court has jurisdiction
pursuant to 18 U.S.C. § 3731. Brady claims present mixed
questions of law and fact. This Court conducts a de novo review
of the District Court’s conclusions of law, and a clearly
erroneous review of findings of fact. See Virgin Islands v. Fahie,
419 F.3d 249, 252 (3d Cir. 2005). Where the correct legal
standard has been used, “weighing of the evidence merits
deference from the Court of Appeals, especially given the
difficulty inherent in measuring the effect of a non-disclosure on
the course of a lengthy trial covering many witnesses and
exhibits.” United States v. Thornton, 1 F.3d 149, 158 (3d Cir.
1993) (quotation omitted).

                        III. Discussion

        Under Brady v. Maryland, 373 U.S. at 87, the
prosecution’s suppression of evidence favorable to a criminal
defendant violates due process when the evidence is material to
guilt or punishment. To establish a Brady violation, it must be
shown that (1) evidence was suppressed; (2) the evidence was
favorable to the defense; and (3) the evidence was material to
guilt or punishment. See, e.g., United States v. Pelullo, 399 F.3d
197, 209 (3d Cir. 2005). This is an objective test, meaning that
no bad-faith inquiry is required. United States v. Merlino, 349
F.3d 144, 154 (3d Cir. 2003). This case turns on the answer to

                               10
 the first Brady inquiry – whether the government suppressed
 relevant impeachment information.5
         There is no question that the government’s duty to
 disclose under Brady reaches beyond evidence in the
 prosecutor’s actual possession. Since Giglio, 405 U.S. at 154,
 the Supreme Court has made clear that prosecutors have “a duty
 to learn of any favorable evidence known to the others acting on
 the government’s behalf in the case, including the police.” Kyles
 v. Whitley, 514 U.S. 419, 437 (1995). Constructive possession
 has been defined by this Court as follows:

           We construe the term “constructive possession” to
           mean that although a prosecutor has no actual
           knowledge, he should nevertheless have known
           that the material at issue was in existence.
           Accordingly, we consider whether the prosecutor
           knew or should have known of the materials even
           though they were developed in another case.

 United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993)
 (emphasis added).

       5
         There can be no dispute that the information in question is
favorable to the defense because Caito’s expectation of leniency in
the state proceedings could have been used to impeach him. We
also believe that there can be no serious dispute regarding
materiality. Evidence is “material” if there is a reasonable
probability that pretrial disclosure would have produced a different
result at trial. The question is not whether disclosure would have
resulted in a different verdict, but whether suppression of the
evidence “undermine[d] confidence in the outcome of the trial.”
Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (emphasis added).
The District Court determined that the jury could have concluded
that Caito was lying out of personal interest. Additionally, Risha
claims, and the government does not dispute, that Caito was the
“sole witness” to offer incriminating evidence.

                                  11
        In United States v. Perdomo, we discussed the possibility
of constructive possession at some length. 929 F.2d 967, 970 (3d
Cir. 1991). A Brady violation was found where defense counsel
submitted requests for the criminal background of prosecution
witnesses, and the prosecution failed to check local Virgin
Islands records. A National Crime Information Center computer
check that did not uncover local information was considered
insufficient, and constructive possession of the local,
unsearched, records was found. The panel reasoned that the
criminal background information was indeed “readily available”
to the prosecution. Id. at 970. Therefore, the failure to disclose
was a suppression of exculpatory evidence. Id.
        In Thornton, we also rejected a hands-off approach to
information about government witnesses. Prosecutors were
charged with constructive knowledge of DEA payments to
government witnesses though they had no actual knowledge of
the payments. We concluded that “prosecutors have an
obligation to make a thorough inquiry of all enforcement
agencies that ha[ve] a potential connection with the[ir]
witnesses.” Thornton, 1 F.3d at 158 (finding that, though there
was a duty to disclose, materiality was lacking because the
witnesses were not critical to the trial).
        Still, this Court has placed limitations on constructive
knowledge in the Brady context. In Pelullo, we asked whether
officials from the Pension and Welfare Benefits Administration
(“PWBA”) who possessed relevant documents should be
considered members of the “prosecution team.” 399 F.3d at 218.
We concluded that there was no “constructive knowledge”
because there was no reason to believe that the PWBA was
acting on behalf of the prosecution. There was no indication that
the PWBA and the prosecution were “engaged in a joint
investigation” or that they “otherwise shared labor and
resources.” Id. Instead, PWBA investigators played no role in
the criminal case. Id. We have also made clear that prosecutors
are not required to undertake a “fishing expedition” in other
jurisdictions to discover impeachment evidence. For example,

                               12
prosecutors are not obligated to learn of all information
“possessed by other government agencies that have no
involvement in the investigation or prosecution at issue.”
Merlino, 349 F.3d at 154 (quotation omitted).
        It appears that in addressing the issue of cross-
jurisdiction constructive knowledge, most courts of appeals have
looked to the same questions that we have. Those questions
include: (1) whether the party with knowledge of the
information is acting on the government’s “behalf” or is under
its “control”; (2) the extent to which state and federal
governments are part of a “team,” are participating in a “joint
investigation” or are sharing resources; and (3) whether the
entity charged with constructive possession has “ready access”
to the evidence. We touch on each of these questions briefly, in
turn.
        First, there is the question whether a party with actual
knowledge of the impeachment information was under the
federal government’s control or acting on its behalf. See, e.g.,
Moreno-Morales v. United States, 334 F.3d 140, 146 (1st Cir.
2003) (finding that “the Puerto Rico Senate was not acting on
behalf of the federal government”); United States v.
Leos-Hermosillo, No. 98-50546, 2000 U.S. App. LEXIS 5012
at *8 (9th Cir. Mar. 22, 2000) (holding that even though an
officer “was not employed by . . . the federal government, he
was no less an agent of the federal government; he was acting
on its behalf and subject to its control”). What is at issue here,
at least generally, is the intermingling of state and federal forces.
The record does not fully reflect the extent to which an officer
of the state Attorney General’s Office knew that Caito’s
testimony would benefit him or that a plea agreement would be
forthcoming; nor do the facts fully indicate the extent to which
state officers were acting “on behalf” of the federal prosecution.
We do know that at least Agent Marraway, a state agent,
assisted the federal government and was at the counsel table
during Risha’s first trial. However, the full scope of his role is,
at this point, unclear.

                                 13
        Related to the question whether an agent is acting on
behalf of the government is the question whether the forces are
part of a team or are engaged in a joint effort. See, e.g., United
States v. Beers, 189 F.3d 1297, 1303-04 (10th Cir. 1999); Moon
v. Head, 285 F.3d 1301, 1310 (11th Cir. 2002) (refusing to
impute to a Georgia prosecutor evidence possessed by a
Tennessee Bureau of Investigation agent because the agencies
shared no resources or labor); United States v. Brooks, 966 F.2d
1500, 1503 (D.C. Cir. 1992) (holding that the prosecution must
search files of other branches of government if they are “closely
aligned with the prosecution” or have a “close working
relationship”). Here, it appears that there may have been a
“close working relationship” between state agents and the
federal prosecution. The federal prosecution itself seemed to
concede as much in its September 8, 2004 response to the
District Court. But we cannot know without additional fact
finding.
        The last question, asked in Perdomo, is whether
impeachment information was readily available to the
prosecution. See, e.g., Kasi v. Angelone, 300 F.3d 487, 506 (4th
Cir. 2002); United States v. Auten, 632 F.2d 478, 481 (5th
Cir.1980). Risha argues that information of a pending deal for
Caito could have been easily obtained. Caito was represented by
the same attorney in the state court prosecution and the federal
grant of immunity. Risha claims that the federal prosecutor was
obligated simply to ask Caito, Chontos, or Hellein what
arrangements or inducements had been made. He submits that
“a simple inquiry [would] have yielded the response that Caito’s
State court case was being continued so that he could continue
to cooperate.” To this end, we note that the government
concedes that the federal prosecutor knew that Caito faced
unrelated state charges. Risha further alleges that the
government knew that Caito’s state case had been continued.
The record indicates that impeachment information may well
have been readily available to the prosecution, but we have no
further findings on this point.

                               14
        We find apposite a Fifth Circuit case, cited in Perdomo,
with facts redolent of those before us – United States v. Antone,
603 F.2d 566 (5th Cir. 1979). Antone involved the cooperation
of federal and state forces. A federal defendant appealed his
conviction on Brady grounds, claiming that a false statement by
a witness concealed the fact that the witness’ attorneys’ fees had
been paid by the State of Florida. Id. at 567. An investigative
task force of federal and state agents had been formed to solve
a murder in which the witness was allegedly involved. Id. at
568. It was decided that the witness should be represented by an
attorney. Id. A state agent agreed to “take care” of the matter
and a lawyer was appointed using state funds. Id. The
arrangement was not disclosed to federal agents or prosecutors,
and the fee vouchers were not made available. Id.
        Still, the state’s knowledge of the attorney’s appointment
was imputed to the federal team because the forces had “pooled
their investigative energies to a considerable extent” and the
effort overall was “marked by [the] spirit of cooperation.” Id. at
569. The Fifth Circuit concluded that, in the context of Brady,
“[i]mposing a rigid distinction between federal and state
agencies which have cooperated intimately from the outset of an
investigation would artificially contort the determination of what
is mandated by due process.” Id. at 570. The Court adopted a
“case-by-case analysis of the extent of interaction and
cooperation between the two governments.” Id. We find Antone
persuasive and agree that a case-by-case analysis is appropriate.

                        IV. Conclusion

        In sum, a Brady violation may be found despite a
prosecutor’s ignorance of impeachment evidence. “This may be
especially true when the withheld evidence is under the control
of a state instrumentality closely aligned with the prosecution .
. . .” United States ex rel. Smith v. Fairman, 769 F.2d 386, 391
(7th Cir. 1985). It appears that here, at least one state agent was
heavily involved in the federal charges against Risha. It also

                                15
 appears possible that federal and state forces engaged in a “joint
 investigation” to resolve the alleged arson. Last, it is very
 possible that the impeachment information was “readily
 available” to the prosecution. However, the District Court did
 not make such findings.
         We think it very possible that Risha must be granted a
 new trial. However, given the relative competencies of our two
 courts to decide issues of fact, we conclude that it is most
 appropriate to remand this case to the District Court to make this
 fact-driven determination. By way of explanation, we note that
 much of the detailed factual information that we rely upon was
 not mentioned by the District Court in its opinion. In fact, a
 large part of it was not briefed by the parties, but rather found
 in the extensive record before us.
         The District Court must determine, inter alia: (1) did
 Agent Marraway, Hellein, or any other state actor know, or have
 reason to know, of a deal or expectation involving the impact of
 Caito’s federal testimony on the state charges against him?; (2)
 was any state actor sufficiently involved with the federal case
 against Risha, or was impeachment information readily
 obtainable, such that a finding of constructive knowledge is
 appropriate? This latter question is informed by the factors laid
 out above.6 If these two inquiries are answered in the
 affirmative, there was a Brady violation, and Risha is entitled to
 a new trial.7


       6
        Of course, the District Court may find actual knowledge if
its view of the facts compels that conclusion.
       7
        Additionally, the government alleges that Risha cannot
prevail because he did not make a specific request for information
regarding any favorable treatment Caito might expect. In fact,
Risha did submit a Motion for Production of Favorable Evidence
requesting “[a]ny and all consideration or promises of
consideration given to or on behalf of each government witness,
including but not limited to, Frank Caito.” The motion specifies

                                16
        The dissent would find that impeachment information
 was indeed “readily available” to the prosecution and that the
 prosecution should have undertaken further inquiries. We do not
 dispute that this is a possible, or probable, conclusion. However,
 we find that this conclusion should be made by the District
 Court, which never appeared to contemplate constructive
 possession in the first instance. Therefore, the order of the
 District Court granting a new trial will be vacated, and the case
 remanded for further proceedings consistent with this opinion.




that consideration includes “assistance or favorable treatment or
recommendations” with respect to any criminal claim – state or
federal. This is certainly sufficient. See, e.g., Thornton, 1 F.3d at
157.

                                 17
United States of America v. Jesse James Risha, No. 04-4677

NYGAARD, J., Dissenting

        Although I agree with much of the majority’s discussion,
I reach the opposite conclusion. In remanding, the majority
poses certain questions to be answered by the District Court.
The answers may be helpful; but on this record they are
unnecessary. I conclude that the District Judge, who presided
over the trial and who saw and heard the critical testimony, was
correct in finding that a Brady violation occurred, and that the
federal prosecutor should have made reasonable inquiries into
the existence of exculpatory information in the concurrent state
court proceeding. Hence, I dissent.
                                   I.
        It is well settled that a Brady claim must set out three
distinct elements: (1) the prosecution must suppress or
withhold evidence, (2) that evidence must be favorable, and
(3) material to the defense. See United States v. Perdomo,
929 F.2d 967, 970 (3d Cir. 1991). Under the first element, a
prosecutor’s lack of knowledge concerning exculpatory
material does not automatically defeat a Brady claim.
Instead, the prosecutor may still be considered to have
suppressed evidence if he has not sought out information
readily available to him. Thus, in essence the prosecution has
an obligation to produce evidence that is constructively in its
possession. Constructive possession means that although a
prosecutor has no actual knowledge, he should have known
that the material at issue was in existence. See United States
v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993). This requirement
discourages the prosecution from behaving disingenuously by
turning its head from information that may be exculpatory or
undertaking a minimal or sham investigation. Further, it
recognizes that often times the government is in a position of
superior knowledge with respect to obtaining any exculpatory
material. See United States v. Pellulo, 399 F.3d 197, 211 (3d

                              18
Cir. 2005).
                               II.
        In Perdomo, we held that the prosecution’s failure to
conduct a basic search of their star witnesses’s criminal
background was sufficient to charge them with constructive
possession of the exculpatory information they would have
found had they undertaken the investigation. In so
concluding, we emphasized that, “[i]t is well accepted that a
prosecutor’s lack of knowledge does not render information
unknown for Brady purposes.” Perdomo, 929 F.2d at 970.
Additionally, we “declined to excuse non-disclosure in
instances where the prosecution has not sought out
information readily available to it.” Id. (citing United States
v. Auten, 632 F.2d 478, 481 (5th Cir. 1980)). For purposes of
constructive possession, then, we established that the
prosecution cannot avoid its Brady responsibilities “by failing
to take the minimal steps necessary to acquire the requested
information,” even where the prosecution was unaware that
the material existed. See Joseph, 996 F.2d at 40 (identifying
the “linchpin” of Perdomo’s holding that the prosecution
should be charged with constructive possession).
        The rule we formulated in Perdomo, that a prosecutor
is obliged to produce information if such information is
readily available to him, however, has undergone some shifts
which are important to understand the contemporary
framework of the Brady constructive knowledge requirement.
Initially, in Perdomo, we clarified that “the availability of
[exculpatory or impeachment] information is not measured in
terms of whether the information is easy or difficult to obtain
but by whether the information is in the possession of some
arm of the state.” Id. at 971. Our statement revealed an
awareness that investigation arms of the prosecution team are
as responsible as the actual prosecutor in locating and
disclosing exculpatory information. See id. at 970.
        However, in Joseph, we shifted our analysis away from
looking only at the location of the information as in Perdomo.

                              19
There, we refused to charge the prosecution with constructive
possession of exculpatory Brady material because the material
was located in an entirely unrelated case that bore no relation
to the case under prosecution. See Joseph, 996 F.2d at 40.
We noted that “this case is very different than Perdomo”
because, “unlike the defendant in Perdomo, the appellants did
not direct the prosecutor’s attention toward the type of
information they were seeking,” which was located in an
unrelated case file. Id.
        Distinguishing the present situation, we held that the
prosecution should not be charged with constructive
possession if the material was located in a “file unrelated to
the case under prosecution” unless a defendant “make[s] a
specific request for that information - specific in the sense that
it explicitly identifies the desired material and is objectively
limited in scope.” Id. at 41. This holding reflected our
recognition that “it would be unreasonable to expect the
prosecutor to search all unrelated files in his office to look for
exculpatory material.” Id. at 40. However, we counseled that
Perdomo prevented prosecutors from “ignor[ing] the very
records likely to reveal germane information.” Id. Thus,
while clearly “in possession of some arm of the state,” we
reasoned that the amount and scope of material for which a
prosecutor would have to be responsible would place an
unreasonable burden on prosecutors. See id. Under this new
formulation, the scope and amount of information a
prosecutor would be required to search, in addition to a
request from the defense, are factors in a determination of
whether constructive knowledge exists.
        Then, as the majority notes, in United States v.
Thornton we held that “prosecutors have an obligation to
make a thorough inquiry of all enforcement agencies that
ha[ve] a potential connection with the[ir] witnesses.” United
States v. Thornton, 1 F.3d 149, 158 (3d Cir. 1993) (emphasis
added). There, the Drug Enforcement Agency (DEA) paid
two witnesses in exchange for their testimony. This

                               20
exculpatory material was not disclosed to the defense and, in
an effort to excuse the non-disclosure, the prosecution argued
that it had made a disclosure request to the DEA but that the
DEA agents made no reply. Id. at 158. We responded that
the prosecution’s inquiry was deficient and that, under the
constructive possession doctrine, the prosecution was obliged
to do more than make a mere request. In sum, while we
ultimately ruled that the withheld evidence was not material,
we concluded that the prosecution should be required to make
thorough inquiries into the existence of any exculpatory
information concerning its witnesses. Id.
        Finally, we limited the scope of the constructive
possession requirement in Pellulo when we held that “the
prosecution is under no obligation to ferret out evidence from
another pending proceeding with a tenuous connection to the
prosecution.” Pellulo, 399 F.3d at 217 (quoting United States
v. Pellulo, 185 F.3d 863 (3d Cir. 1999)). There, we
determined that based on the tenuousness of the relationship
between the Department of Labor investigation and the
prosecution, to expect the prosecution to undertake a massive
hunt for any possibly related documents within the
Department of Labor would be to place an unreasonably
onerous burden on the prosecution. See id.
                               III.
        These cases all struggle with the question whether and
under what circumstances it would be reasonable to hold the
prosecution responsible for not knowing or finding out certain
exculpatory information. The contours of this
“reasonableness” inquiry have traditionally been quite murky
and none of our cases has explicitly developed anything near
a clear test. At first, we thought we could draw a bright line
around any information contained within any state arm. See
Perdomo, 929 F.2d at 971. Later, we recognized that the
scope of material such a requirement could possibly
encompass - including information from prior unrelated cases
going back potentially indefinitely - would place an

                             21
 unreasonable burden on prosecutors, so instead we shifted our
 inquiry to whether the defendants made a request for the
 information and how much information the prosecutor would
 have been responsible for if he was to try and learn about the
 exculpatory information.
         In light of these cases, it would be fair to say that a
 constructive knowledge test hinges on a number of different
 factors, including: (1) the location of the information; (2) the
 size and scope of the investigation it would take to uncover
 the information; (3) actions taken by the defense in asking for
 specific materials; and (4) the connection or relationship
 between the instant case and the proceeding in which the
 material is located.
         The key to harmonizing these factors, then, would be
 to articulate a test that could accurately encompass the factors
 without losing sight of the desire to hold prosecutors
 responsible for disclosing information they should be able to
 discover. This test might best be described as a
 reasonableness test, utilizing the different factors to help
 determine the reasonableness of the prosecution’s behavior
 and might look something like this:
         In order to establish a Brady violation based on
 constructive knowledge, the defendant must establish that:
 (1) the prosecution was put on notice either through specific
 defense requests for information or, under the circumstances,
 that exculpatory information may possibly exist; (2) once the
 prosecution is put on notice, it must take objectively
 reasonable steps to discover the potentially exculpatory
 information.8 Factors that should be considered include: (a)
 the location of the information; (b) the size and scope of the

       8
          Objective reasonable behavior obviously means different
things in different situations and is necessarily fact-driven by the
individual circumstances of the case; however the factor analysis
is an attempt to offer guidance for Courts charged with making this
determination.

                                22
investigation it would take to uncover the information; and (c)
the connection or relationship between the instant case and
the proceeding in which the material is located; and (3) if the
prosecution fails to take these objectively reasonable steps,
constructive knowledge of any exculpatory information will
be attributed to the prosecution.
                               IV.
        Applying this reasonableness test and the factors
previously identified to the facts in the instant case, the
District Court did not err by finding that the prosecution had
violated Brady. First, the prosecution was put on notice that
possibly exculpatory or impeachment evidence was in
existence when, during cross-examination, the defense
vigorously questioned Caito as to his agreements with and
postponement of the state prosecution of his separate weapons
offense. The repeated questioning by the defense on the
connection between Caito’s testimony in the federal
prosecution and the possible effect it might have on his state
criminal prosecution should have alerted the prosecution to
the possibility that some connection did, in fact, exist.
        This is certainly not a situation that would require the
prosecution to unreasonably “infer” that exculpatory
information might exist like in Joseph where we held that,
due to the defendant’s failure to alert the prosecution to the
possibility that exculpatory information existed, there was no
way the prosecution could have known of its existence. See
Joseph, 996 F.2d at 40. There, the information was located in
an old case file that was entirely unrelated to the
prosecution’s current case. Id. at 39. Here, the defense’s
continued questioning of the prosecution’s star witness over
the effect his testimony would have on his state court trial
clearly notified the prosecution that this information was
germane to the case. Additionally, the material was located in
a concurrent case and so was, in some sense, concurrently
being produced. In sum, the prosecution here was put on
notice as to the location and nature of the possible exculpatory

                              23
or impeachment evidence.
       Second, the “sporting theory” of justice has no place in
criminal law. As the District Judge obviously recognized, it
would have been objectively reasonable for the prosecution to
undertake an inquiry into the possibility that Caito received
some benefit from his testimony in Risha’s federal
prosecution. Amazingly, the prosecution failed to undertake
any inquiry into the existence of exculpatory information
related to their star witness, Caito. Despite their knowledge
that Caito faced concurrent state charges, they did not
investigate into the disposition of those charges as it might
have related to his help in the federal case against Risha. To
permit this to go unchecked would be to encourage a “don’t
ask, don’t tell” deliberate ignorance. The location of the
information was easily identifiable and accessible. Had the
prosecution merely asked Caito, his lawyer Chontos, or the
Assistant Attorney General Hellein what arrangements or
inducements had been made in Caito’s state case, the
prosecution would have discovered the exculpatory material.
Moreover, the connection between the two cases was not
tenuous, but rather strongly related, as they both involved the
government’s star witness, and the scope of the investigation
would have been minimal - the prosecution merely could have
asked Caito or Chontos, Caito’s lawyer, what arrangements or
inducement had been made.
       It is true, as the majority notes, that we have refused to
charge the prosecution with constructive possession where
they would be required to undertake a “fishing expedition” in
other jurisdictions for exculpatory information. Maj. Op. at
13-14. Thus, prosecutors are not required to “learn of all
information possessed by other government agencies that
have no involvement in the investigation or prosecution at
issue.” Id. (citations omitted). However, this case does not
present a situation even remotely resembling the “fishing
expedition” the majority apprehends. Instead, the exculpatory
information could have been found had the prosecution made

                               24
only the most cursory inquiry into their star witnesses’s
concurrent state case. The information did not lie in some
dark cavernous warehouse, nor was it possessed by an arcane
wing of an unrelated agency. As Perdomo, Joseph, and
Thornton teach, the prosecution must make reasonable
inquiries into the existence of exculpatory material
surrounding one of their witnesses. A failure to do so will not
excuse the prosecution from being charged with a Brady
violation if exculpatory material is later found. In all, to
charge the prosecution here with constructive possession
merely recognizes the well-accepted rule that the prosecution
must investigate that which is likely to reveal germane
information. See Joseph, 996 F.2d at 40.
                                   V.
        The majority excuses the prosecution’s failure to
undertake any investigation or inquiry whatsoever into its star
witness’s state case, despite having knowledge about it. This
is precisely the sort of reverse incentive that motivated us to
craft a constructive possession doctrine in the first place. See
Perdomo, 929 F.2d at 970 (“To do otherwise would be
inviting and placing a premium on conduct unworthy of
representatives of the United States Government.”) (quoting
Auten, 632 F.2d at 481).
         It is certainly true that the other factors the majority
discusses may reveal an even deeper fault attributable to the
prosecution. For instance, it is likely that the federal and state
agencies were engaged in a “joint investigation” to resolve the
alleged arson and, additionally, that at least one member of
the state investigation, Agent Marraway, was acting on behalf
of the prosecution. But for me, these will only serve as a
further indictment of the prosecution’s already inexcusable
behavior and are unnecessary, under our current constructive
possession requirement, to charge the prosecution with
constructive possession where the prosecution failed utterly to
make the most basic inquiry into an area that might reveal
germane and exculpatory information.

                               25
        I conclude the District Court was correct in
determining that a Brady violation had occurred because the
prosecution should have reasonably undertaken an inquiry
into the impact that Caito’s testimony would have had on his
state court proceeding. Fundamental fairness demands no less
than this. Because the prosecution failed to do this, they
should be charged with constructive knowledge of the Brady
material, thereby satisfying the first and only contested prong
in the Brady analysis. The order of the District Court granting
Risha’s motion for a new trial should be affirmed.




                              26
