United States v. Risha

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Precedential or Non-Precedential: Precedential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

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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.

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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