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.
The opinion of the court was delivered by: Becker, Circuit Judge.
Before: SMITH, BECKER, and NYGAARD, Circuit Judges.
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 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 vacatethe 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.*fn1 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 continuancesin 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.*fn2 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.*fn3 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 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 Marraway met to discuss Caito's cooperation.*fn4 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 ...