United States v. Jesse James Risha

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. Pelullo, 399 F.3d 197, 211 (3d 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 *308 in terras 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 . 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 “ignoring] 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 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 Pelullo 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.” Pelullo, 399 F.3d at 217 (quoting United States v. Pelullo, 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 *309 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 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 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 de *310 fense 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 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 304-05. 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 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 *311 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.

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.

. 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.