The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1734
____________
UNITED STATES OF AMERICA
v.
GREGORY BROWN, JR.,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 2-16-cr-00235-001)
District Judge: Honorable David Stewart Cercone
____________
Argued: January 26, 2021
Before: RESTREPO, BIBAS, and PORTER,
Circuit Judges.
(Filed: April 13, 2021)
____________
David B. Fawcett, III
REED SMITH LLP
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Lisa B. Freeland
Samantha L. Stern [ARGUED]
OFFICE OF FEDERAL PUBLIC DEFENDER
1001 Liberty Avenue, Suite 1500
Pittsburgh, PA 15222
Counsel for Appellant
Scott W. Brady
Laura S. Irwin
Haley F. Warden-Rodgers [ARGUED]
OFFICE OF UNITED STATES ATTORNEY
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Gregory Brown’s family home burned down in 1995.
Three firefighters died fighting the blaze. The government sus-
pected that Brown had started the fire at his mother’s request
in an attempt to collect on a renter’s insurance policy. A com-
2
bination of local, state, and federal authorities prosecuted him
in state court for arson and other offenses. He was convicted
and sentenced to life in prison. Brown later discovered that the
prosecution had failed to disclose material evidence, and a
post-conviction court vacated his conviction and ordered a new
trial. The United States now wants to try Brown again, this time
in federal court.
Brown moved to dismiss the federal charges. He also
moved to compel discovery to support his claims. The District
Court denied both motions. On appeal, Brown argues that a
second prosecution for the same conduct violates the Double
Jeopardy Clause. He recognizes that the dual-sovereignty doc-
trine would defeat his claim because a state crime is not “the
same offense” as a federal crime, even if for the same conduct.
So he asks that we be the first circuit court to apply an excep-
tion to the dual-sovereignty doctrine because, he says, the state
prosecution was merely a tool of the federal authorities. But we
need not reach that question. Brown’s claim fails for a more
obvious reason: retrying a defendant because the conviction
was reversed for trial error is not a second jeopardy. Regardless
of whether it proceeds in state or federal court, Brown’s second
prosecution does not violate the Double Jeopardy Clause. The
District Court did not err in denying Brown’s motion to dismiss
the indictment and his motion to compel discovery on the dual-
sovereignty issue, so we will affirm.
I
A
Around midnight on February 14, 1995, firefighters
responded to a fire at Brown’s residence. Brown’s mother,
Darlene Buckner, had been renting the home since 1990.
3
Brown, who was seventeen years old at the time, lived there
with his mother and several family members. After arriving on
the scene, six firefighters entered the basement, where the fire
had originated. Several of the firefighters became trapped and
died when a staircase collapsed.
The Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) opened an investigation. Chemical sam-
ples from the basement confirmed the presence of gasoline,
and investigators located a gas can close to what an expert tes-
tified was the fire’s origin. ATF concluded that the fire was
intentionally set and offered a $15,000 reward for information
leading to arrest and conviction. A witness, Keith Wright,
came forward with testimony undermining Brown’s alibi that
he had been shopping with his mother at the time of the fire.
Another witness, Ibrahim Abdullah, said Brown later con-
fessed that he had started the fire.
Local, state, and federal authorities formed a joint pros-
ecution team and brought Brown’s case in state court. In 1997,
Brown and Buckner proceeded before a consolidated jury trial.
The joint prosecution team consisted of an Assistant District
Attorney for Allegheny County and an Assistant U.S.
Attorney. The prosecution’s witnesses denied receiving pay-
ment or having been promised payment in exchange for their
testimony. The jury convicted Brown on three counts of
second-degree murder, two counts of arson, and one count of
insurance fraud. Brown was sentenced to three consecutive
terms of life imprisonment for each murder conviction and a
consecutive term of 7.5 to 15 years’ imprisonment for the arson
convictions.
4
B
A few months after trial, Brown filed post-sentence
motions arguing, among other things, that he was entitled to an
evidentiary hearing because ATF agents offered money to
potential witnesses. The court declined to hold an evidentiary
hearing because it found no evidence that any witness who tes-
tified received reward money. On appeal, the Pennsylvania
Superior Court vacated one of the arson charges but otherwise
rejected Brown’s arguments. The Pennsylvania Supreme Court
denied Brown’s petition for allowance of appeal.
In 2001, Brown sought habeas relief in federal court,
again claiming that the prosecution failed to disclose that it had
paid witnesses to testify against him. At oral argument, the
Commonwealth’s attorney said that he had reviewed ATF rec-
ords and contacted the prosecutors and had not seen any record
of witness payment. The District Court denied Brown’s peti-
tion and request for an evidentiary hearing. This Court denied
Brown’s request for a certificate of appealability.
Nearly a decade later, Brown filed a petition in state-
court under the Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. § 9541–46, alleging newly discovered evidence
based on an expert opinion about the cause of the fire. Mean-
while, the Innocence Institute at Point Park University filed a
Freedom of Information Act (“FOIA”) request with ATF, ask-
ing for all records relating to the payment of reward money in
Brown’s case. In response to the FOIA request, ATF provided
two canceled checks, with identifying information redacted,
showing it had made payments of $5,000 and $10,000 in
August 1998 relating to the fire. The Innocence Institute then
contacted one of the witnesses, Abdullah, who said he received
$5,000 from an ATF agent after Brown’s trial.
5
Armed with this new information, Brown filed an
amended PCRA petition. Soon after, counsel for Brown
located another witness, Wright, who acknowledged receiving
$10,000 from ATF for his testimony. Brown filed a second
amended PCRA petition that reframed Wright’s acknowledg-
ment. Brown filed four more PCRA petitions as counsel con-
tinued to uncover evidence corroborating the witnesses’
accounts that they had understood they would receive—and in
fact received—money in exchange for their trial testimony.
The PCRA court found that Brown’s claims about the prose-
cution’s nondisclosure of the witnesses’ rewards satisfied
exceptions to the PCRA’s time-bar and granted Brown a new
trial. The Superior Court affirmed.
Upon remand to the state trial court, Brown moved to
dismiss the charges on double-jeopardy grounds. While that
motion was pending, a federal grand jury indicted Brown,
charging him with destruction of property by fire resulting in
death under 18 U.S.C. § 844(i). The Commonwealth then filed
a motion for nolle prosequi to dismiss the state charges. The
state court granted the motion and dismissed the state charges.
Brown moved to dismiss the federal indictment. He
argued that (1) the prosecution’s misconduct violated his due-
process rights and a new trial cannot cure that violation; (2) the
Double Jeopardy Clause barred the second prosecution; (3) the
statute of limitations barred the prosecution; and (4) the prose-
cution was vindictive because it sought enhanced penalties
through federal indictment. To support his claims, Brown
sought to subpoena records regarding the coordinated efforts
of state and federal prosecutors. The District Court granted the
subpoena. The prosecution turned over two sets of documents,
but Brown moved to compel production of other documents he
thought would be more responsive to the dual-sovereignty
6
issue. The District Court denied Brown’s motion to compel
because the requested documents went entirely to the dual-
sovereignty argument, and the court declined to reach the dual-
sovereignty issue “without a compelling reason to expand the
Supreme Court’s holding in in [sic] Oregon v. Kennedy, 456
U.S. 667 (1982).” App. 587.
The Supreme Court reaffirmed the vitality of the dual-
sovereignty doctrine in Gamble v. United States, 139 S. Ct.
1960 (2019). The District Court requested supplemental brief-
ing on Gamble and also asked the parties to address whether
Bartkus v. Illinois, 359 U.S. 121 (1959), creates an exception
to the dual-sovereignty doctrine applicable in Brown’s case.
After hearing arguments, the court denied the motion to dis-
miss, holding that the cooperation between state and federal
law enforcement did not meet the standard necessary to apply
the Bartkus exception. The court’s decision did not address the
applicability of the Kennedy exception. Brown timely appealed
the denial of his motion to compel discovery and the denial of
his motion to dismiss.
II
The District Court had jurisdiction under 28 U.S.C.
§ 3231 to review Brown’s prosecution for violating 18 U.S.C.
§ 844. We have jurisdiction under 28 U.S.C. § 1291 and the
collateral-order doctrine. See Abney v. United States, 431 U.S.
651, 662 (1977). Denials of motions to dismiss indictments are
typically not final judgments, but “pretrial orders rejecting
claims of [double] jeopardy, such as that presently before us,
constitute ‘final decisions’ and thus satisfy the jurisdictional
prerequisites of [28 U.S.C. § 1291].” Id.
7
We review double-jeopardy challenges de novo, United
States v. Rigas, 605 F.3d 194, 203 n.7 (3d Cir. 2010), and the
denial of a motion to compel discovery for abuse of discretion,
United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973).
III
The Double Jeopardy Clause says that no person shall
“be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. But the clause’s prohibi-
tion against a second prosecution for the same offense is not
absolute. Two examples are relevant here. First, under the trial-
error rule, the Double Jeopardy Clause “does not prevent the
government from retrying a defendant who succeeds in getting
his first conviction set aside, through direct appeal or collateral
attack, because of some error in the proceedings leading to con-
viction.” Lockhart v. Nelson, 488 U.S. 33, 38 (1988). Second,
the dual-sovereignty principle allows a federal indictment for
the same conduct punished under state law—and vice versa—
because the two prosecutions, under different sovereigns, are
not “for the same offence.” U.S. Const. amend. V; Gamble,
139 S. Ct. at 1965–66.
The District Court held that the dual-sovereignty prin-
ciple forecloses Brown’s motion to dismiss the federal indict-
ment. We will affirm the court’s denial of Brown’s motion to
dismiss, but the trial-error rule is the more appropriate avenue
for dismissal in this case.
A
The trial-error rule allows the prosecution “to retry a
defendant where the conviction is reversed due to ‘trial error’
such as ‘incorrect receipt or rejection of evidence, incorrect
8
instructions, or prosecutorial misconduct.’” McMullen v.
Tennis, 562 F.3d 231, 237 (3d Cir. 2009) (quoting Burks v.
United States, 437 U.S. 1, 15 (1978)). But even if the trial error
is discovered later—say, in collateral proceedings—the rule
still permits the defendant to be retried.1 Id. Additionally, a
retrial is generally not barred when a defendant requests a mis-
trial, United States v. Dinitz, 424 U.S. 600, 607, 611 (1976), or
when a defendant consents to a mistrial, United States v.
Kennings, 861 F.2d 381, 385 (3d Cir. 1988). In those situa-
tions, a retrial does not violate the Double Jeopardy Clause
because assenting to a mistrial is “a deliberate election on [the
defendant’s] part to forgo his valued right to have his guilt or
innocence determined before the first trier of fact.” United
States v. Scott, 437 U.S. 82, 93 (1978).
The mistrial rule itself has exceptions, but only one is
relevant here. In Oregon v. Kennedy, the Supreme Court held
that the Double Jeopardy Clause forbids retrial when “the con-
duct giving rise to the successful motion for a mistrial was
1
Here, the prosecution filed a nolle prosequi to dismiss the
state charges and proceeded under a new federal indictment,
but this does not change the analysis. The trial-error rule still
applies because “a nolle works no acquittal, and leaves the
prosecution just as though no such count had ever been inserted
in the indictment.” Dealy v. United States, 152 U.S. 539, 542
(1894). That Brown’s second prosecution proceeds under a
new (federal) indictment also changes nothing. “[A] defendant
who procures a judgment against him upon an indictment to be
set aside may be tried anew upon the same indictment, or upon
another indictment, for the same offense of which he had been
convicted.” Ball v. United States, 163 U.S. 662, 672 (1896);
accord Burks v. United States, 437 U.S. 1, 13–14 (1978).
9
intended to provoke the defendant into moving for a mistrial.”
456 U.S. 667, 679 (1982). The paradigmatic case of the
Kennedy exception is where the prosecution fears acquittal and
provokes a mistrial in order to present a stronger case on retrial.
See id. at 678–79; United States v. Curtis, 683 F.2d 769, 777
(3d Cir. 1982). The Fifth Amendment does not permit such
gamesmanship. When the government intentionally provokes
a mistrial, the Double Jeopardy Clause acts as a “shield”
against prosecutorial misconduct designed to secure “‘a more
favorable opportunity to convict’ the defendant.” United States
v. Coleman, 862 F.2d 455, 458 (3d Cir. 1988) (quoting
Downum v. United States, 372 U.S. 734, 736 (1963)). Brown
invites us to extend the Kennedy exception beyond the mistrial
context. We decline that invitation.
The Kennedy exception is narrow. The exception is
rooted in “the right of the defendant to have his trial completed
before the first jury empaneled to try him.” Kennedy, 456 U.S.
at 673. “Only where the governmental conduct in question is
intended to ‘goad’ the defendant into moving for a mistrial may
a defendant raise the bar of double jeopardy to a second trial
after having succeeded in aborting the first on his own motion.”
Id. at 676; see Dinitz, 424 U.S. at 611. The prosecution’s intent
is key. Kennedy bars a retrial for prosecutorial misconduct only
if “the conduct giving rise to the successful motion for a mis-
trial was intended to provoke the defendant into moving for a
mistrial.” Curtis, 683 F.2d at 776 (internal quotation marks
omitted) (quoting Kennedy, 456 U.S. at 679). In the absence of
such intent, double jeopardy does not bar retrial since the
defendant voluntarily waives his right “to have his trial com-
pleted before the first jury empaneled to try him” when he
requests a mistrial. Kennedy, 456 U.S. at 673; see Dinitz, 424
U.S. at 607–08. But that right would be a “hollow shell” if the
10
prosecution were able to avoid double-jeopardy preclusion by
intentionally provoking a defendant into moving for a mistrial.
Kennedy, 456 U.S. at 673. The Kennedy exception applies in
that limited scenario, where the prosecutorial misconduct was
intended to prejudice the defendant’s right to have his trial
completed by the first jury empaneled. Id.
B
The Kennedy exception is inapplicable here because
there was no motion for a mistrial. Brown’s trial proceeded to
a jury and culminated in a conviction that was vacated on col-
lateral review. Before we even reach the question of prosecu-
torial intent, the Kennedy exception does not apply because the
prosecution’s conduct did not provoke a “successful motion for
a mistrial.” 456 U.S. at 679. Brown’s success in getting his
conviction set aside through collateral attack does not prohibit
the government from retrying him. See Lockhart, 488 U.S. at
38. Short of accepting Brown’s invitation to expand the
Kennedy exception beyond the mistrial context, Brown’s case
falls outside of this narrow exception.
We have not decided whether the Kennedy exception
applies beyond mistrials. In United States v. Curtis, we dis-
cussed in dicta whether the Kennedy exception would apply to
appellate reversals resulting from prosecutorial misconduct
intended to provoke a mistrial request. Curtis, 683 F.2d at 774.
It is possible that a trial judge could err in denying a motion for
mistrial only for an appellate court to order a retrial based on
the same misconduct. If the Kennedy exception applies only to
mistrials, misconduct caught at the trial level would bar a
retrial, but the same misconduct caught at the appellate level
would not. In Curtis, we expressed concern about this apparent
inconsistency “to afford a defendant less constitutional protec-
11
tion simply because a trial judge erred in denying a mistrial
request.” Id. We attributed “considerable force to [the] propo-
sition” that the Kennedy exception “should apply with equal
weight to appellate reversals that result from prosecutorial mis-
conduct committed with the intent to provoke a mistrial
request.” Id. But we did not decide that issue in Curtis. We
instead relied, as nearly all courts do when confronting the
Kennedy exception, on the lack of evidence that the prosecu-
tor’s statements were intended to provoke a mistrial. Id. at 776.
Today, we resolve the issue and hold that the Kennedy
exception does not apply beyond the mistrial context to cases
in which a post-conviction court has ordered a new trial due to
prosecutorial misconduct. In Kennedy, the Supreme Court
already addressed the concerns we expressed in Curtis:
[W]e . . . hold that the circumstances under
which such a defendant may invoke the bar of
double jeopardy in a second effort to try him are
limited to those cases in which the conduct giv-
ing rise to the successful motion for a mistrial
was intended to provoke the defendant into mov-
ing for a mistrial.
12
Kennedy, 456 U.S. at 679 (emphasis added).2 The Kennedy
exception has two predicates: (1) a defendant’s successful
motion for a mistrial, and (2) the prosecution’s intent to pro-
voke the mistrial. The cases from which the Supreme Court
derived the Kennedy exception support this reading. See United
States v. DiFrancesco, 449 U.S. 117, 130 (1980) (“[R]eprose-
cution of a defendant who has successfully moved for a mistrial
is not barred, so long as the Government did not deliberately
seek to provoke the mistrial request.” (emphasis added));
Dinitz, 424 U.S. at 606 (reviewing a mistrial declaration);
United States v. Jorn, 400 U.S. 470, 478 (1971) (plurality opin-
ion) (same); United States v. Tateo, 377 U.S. 463, 468 & n.3
(1964) (reinstating charges where the defendant’s conviction
had been overturned in collateral proceedings but noting that
different considerations would obtain “[i]f there were any inti-
mation in a case that prosecutorial or judicial impropriety jus-
tifying a mistrial resulted from a fear that the jury was likely to
acquit the accused”).
The Supreme Court has drawn a distinction between
mistrials and overturned convictions. See Tateo, 377 U.S. at
468. This distinction exists in part because one of the principal
guarantees of the Double Jeopardy Clause is “the right of the
defendant to have his trial completed before the first jury
2
Curtis characterizes the Court’s opinion in Kennedy as a plu-
rality opinion. See United States v. Curtis, 683 F.2d 769, 775
(3d Cir. 1982). That is incorrect. The syllabus in the bound
copy of the United States Reports reveals that Chief Justice
Rehnquist’s opinion in Kennedy commanded five votes. See
Oregon v. Kennedy, 456 U.S. 667, 668 (1982). Justice Powell’s
concurrence notwithstanding, the Chief Justice’s opinion is the
“opinion of the Court” and binding law. Id.
13
empaneled to try him.” Kennedy, 456 U.S. at 673. The Kennedy
exception forecloses the prosecution’s ability to induce a
defendant into waiving that right by provoking a mistrial. Id.
But, for example, when a judge denies a motion for mistrial,
the defendant has not been deprived of his “valued right to
complete his trial before the first jury.” Id. A defendant
receives the opportunity for acquittal at trial, which is precisely
what the prosecution is trying to avoid by intentionally provok-
ing a mistrial. So we distinguish between cases in which a mis-
trial is declared from cases that result in a conviction. See id.
at 676 & n.6.
That distinction matters. “[I]f the first trial has ended in
a conviction, the double jeopardy guarantee ‘imposes no limi-
tations whatever upon the power to retry a defendant who has
succeeded in getting his first conviction set aside,’” with one
exception. DiFrancesco, 449 U.S. at 131 (emphasis omitted)
(quoting North Carolina v. Pearce, 395 U.S. 711, 720 (1969),
overruled on other grounds by Alabama v. Smith, 490 U.S. 794
(1989)). The “narrow exception” is that retrial is barred when
the reviewing court has found the evidence legally insufficient
to support conviction. Tibbs v. Florida, 457 U.S. 31, 40–41
(1982); see also Kennedy, 456 U.S. at 676 n.6. Brown does not
14
suggest that the insufficient-evidence exception applies here,
and it is not our role to carve out another.3
The Supreme Court considered and rejected the con-
cerns motivating our dicta in Curtis as to allowing retrial
beyond the mistrial context. The Court explicitly rejected a
broader rule that would have required merely “bad faith con-
duct” or “harassment” on behalf of the prosecutor, rather than
intent to provoke a mistrial. Kennedy, 456 U.S. at 674 (internal
quotation marks omitted). The Court even foresaw the scenario
we identified in Curtis, where prosecutorial misconduct result-
ing in a mistrial would bar retrial, but the same conduct caught
on appeal would not. Id. at 676–77. In that situation, “the
Double Jeopardy Clause would present no bar to retrial”
because it would be analyzed as a post-conviction case, not a
3
Neither does the logic underlying the insufficient-evidence
exception apply in this case. When a reviewing court finds the
evidence legally insufficient to support conviction, it “means
that the government’s case was so lacking that it should not
have even been submitted to the jury.” Tibbs v. Florida, 457
U.S. 31, 41 (1982) (internal quotation marks omitted) (quoting
Burks, 437 U.S. at 16). The Double Jeopardy Clause bars
retrial in those cases because (1) a reversal based on insuffi-
ciency of the evidence has the “same effect” as acquittal, and
(2) the clause prevents the state from “perfecting its evidence
through successive attempts at conviction.” Id. Neither of those
justifications support an extension of the Kennedy exception.
15
mistrial case.4 Id. at 676 & n.6. A broader rule would result in
even more cases in which the prosecutorial misconduct should
have resulted in a mistrial but was caught only on appeal. Id.
at 676–77. The narrower rule that the Court adopted mitigates
the problem by shrinking the range of prosecutorial miscon-
duct that triggers the exception. Id. at 675–76. In other words,
the Court framed the Kennedy exception narrowly because of
the same concerns we expressed in Curtis, not in spite of those
concerns.
Every circuit to address the issue has declined to expand
the Kennedy exception beyond the mistrial context. The Tenth
Circuit held in United States v. McAleer that Kennedy did not
apply where the defendants did not obtain a mistrial but had
instead convinced the district court to set aside the guilty ver-
dicts. See United States v. McAleer, 138 F.3d 852, 855–56
(10th Cir. 1998). The court reasoned that because the defend-
ants were not deprived of their rights to have their case submit-
ted to the first jury, the Kennedy exception did not apply. Id. at
856. The Seventh Circuit likewise held that “a defendant who
did not move for a mistrial on the basis of intentional prosecu-
4
Justice Stevens argued in his concurrence that “the
defendant’s choice—to continue the tainted proceeding or to
abort it and begin anew—can be just as ‘hollow’ in this
situation as when the prosecutor intends to provoke a mistrial.”
Kennedy, 456 U.S. at 689 (Stevens, J., concurring in the
judgment) (footnote omitted). The majority expressly
dismissed this argument, cautioning that Justice Stevens’s
proposed rule encompassing prosecutorial misconduct
generally would lack any standards for its application and
would be unmanageable for courts to apply. Id. at 675 & n.5
(majority opinion).
16
torial misconduct cannot invoke the double jeopardy clause to
bar the state from retrying him after his conviction is reversed
on that ground.” Beringer v. Sheahan, 934 F.2d 110, 114 (7th
Cir. 1991); cf. United States v. Doyle, 121 F.3d 1078, 1085 (7th
Cir. 1997) (observing that Seventh Circuit case law “impliedly
suggests” the court does not subscribe to an expansion of the
Kennedy exception beyond mistrials).
No circuit court has held that the Kennedy exception
applies outside of a mistrial, though some have discussed the
idea in dicta. The Second Circuit, for example, speculated that
the Supreme Court “might think” that the Kennedy exception
applies in other circumstances. United States v. Wallach, 979
F.2d 912, 916 (2d Cir. 1992). The Second Circuit noted that
“there is force to [the] argument for some sort of extension” of
the Kennedy exception under the theory that “the Double
Jeopardy Clause protects a defendant from retrial in some other
circumstances where prosecutorial misconduct is undertaken
with the intention of denying the defendant an opportunity to
win an acquittal.” Id. The court expressed “some doubt” that
Kennedy itself sanctioned an extension beyond mistrials and
acknowledged that any such extension would have to be nar-
row. Id. at 915–16. Regardless, the court did not rely on these
musings, but held that the defendant did not meet the Kennedy
exception because he had presented no evidence of prosecuto-
rial intent. Id. 916–17; see also United States v. Gary, 74 F.3d
304, 315 (1st Cir. 1996) (approvingly citing Wallach but find-
ing “no evidence to buttress a finding of deliberate prosecuto-
rial misconduct”). Every court to have considered extending
Kennedy has ultimately declined to do so.
We now hold that the Kennedy exception does not apply
beyond the mistrial context to cases where a post-conviction
17
court grants a new trial on the grounds of prosecutorial mis-
conduct.
C
Even if a mistrial had been granted in this case, Brown
has provided no evidence that the prosecution intended to pro-
voke one. Brown avers that the prosecution’s failure to disclose
the witnesses’ compensation “was motivated by a fear of an
acquittal and thus designed to secure a guilty verdict; at worst,
the misconduct would bring about a mistrial but only if
detected by the defense at trial.” Appellant’s Br. 64. That is
precisely why the Kennedy exception does not apply. “Every
act on the part of a rational prosecutor during a trial is designed
to ‘prejudice’ the defendant by placing before the judge or jury
evidence leading to a finding of his guilt.” Kennedy, 456 U.S.
at 674. Kennedy addresses the situation in which the prosecu-
tion fears acquittal and so goads the defendant into requesting
a mistrial so that it might present a stronger case on retrial. See
id. at 678–79; Curtis, 683 F.2d at 777. Here, the prosecution’s
failure to disclose the witnesses’ compensation demonstrates
only “an overzealous effort to gain a conviction from the first
jury and not . . . an attempt to subvert [Brown]’s ‘valued right’
by bringing the case before a second jury.” Coleman, 862 F.2d
at 458. Indeed, Brown concedes that the prosecution’s conduct
was intended to protect its key witnesses, without whom, he
suggests, the state “did not have a case.” Appellant’s Br. 64.
The prosecution’s intent behind the misconduct, according to
Brown, was to shore up its case, not have it dismissed.
IV
Brown argues in the alternative that he is entitled to dis-
covery on the dual-sovereignty issue. He urges us to reverse
18
the District Court if we find that the record is insufficient to
apply the Bartkus exception. See Bartkus, 359 U.S. at 122–24.
But Brown cannot overcome the trial-error rule, so additional
discovery would be unavailing. Even assuming, arguendo, that
the Bartkus exception applies and that Brown could satisfy it,
his retrial does not violate the Double Jeopardy Clause. See
Lockhart, 488 U.S. at 38. Because discovery on the Bartkus
exception would be fruitless, the District Court did not abuse
its discretion in denying the motion to compel. See Berrigan,
482 F.2d at 181.
* * *
We will affirm the District Court’s denial of Brown’s
motion to dismiss the indictment and its denial of Brown’s
motion to compel discovery.
19