UNITED STATES of America, Appellant v. Jesse James RISHA, 445 F.3d 298

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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, 92 S.Ct. 763, 31 L.Ed.2d 104 (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 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. 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 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 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-.

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 sen-fencing recommendations. David Chontes, 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 Chontes’ 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 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 Chontes, 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 Chontes recollects a “powwow,” apparently before Risha’s second trial, during which Chontos, Caito, Hellein, and Marraway met to discuss Caito’s cooperation. 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 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 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 verdiet and ordered a new trial. The government filed a timely notice of appeal. II. Jurisdiction and Standard of Revieiv The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3281. 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, 83 S.Ct. 1194, 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 the first Brady inquiry — -whether the government suppressed relevant impeachment information. 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, 92 S.Ct. 763, 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, 115 S.Ct. 1555, 131 L.Ed.2d 490 (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). 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, 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 WL 300967 at *3, 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.

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.

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 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.

If these two inquiries are answered in the affirmative, there was a Brady violation, and Risha is entitled to a new trial. 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 ease remanded for farther proceedings consistent with this opinion. . 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.) .

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.” . 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. . 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. . 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, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (emphasis added). The District Court determined that the juiy 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. . Of course, the District Court may find actual knowledge if its view of the facts compels that conclusion. . 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 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.