United States v. Risha, 445 F.3d 298 (3rd Cir. 2006): An Oldie but Goodie, Plus This Case Makes Me Really Happy

I’m dealing with an issue in an on-going criminal appeal that led to me to this little gem of a case.  It’s incredibly important, so I want to highlight it.   The essentially issue here is whether one jurisdiction, say the federal government, should have constructive knowledge of Brady material that it is in possession of another jurisdiction, like the state prosecutor’s office.  In this case, the Court vacated the lower court’s order and remanded the case to determine whether the federal government had constructive possession of information in the possession of the state.

The facts are simple:  Witness A agreed to cooperate against Risha who was facing federal charges.  Witness A had outstanding state charges that were continued while he assisted law enforcement.  Risha was convicted and Witness A got a sweetheart deal.  Shampoo.  Rinse.  Repeat.  We see this sort of thing every day in our court system.

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 with material to guilt or punishment.  This is an objective test, meaning that no bad-faith inquiry is required.  United States v. Merlino, 349 F.3d 144, 154 (3rd Cir. 2003).

There is no question that the governments 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 governments behalf in the case, including the police.”  Kyles v. Whitley, 514 U.S. 419, 437 (1995). Constructive possession has been defined by the Third Circuit as follows:

             We construe the term “constructive possession” to mean that although the 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 (3rd Cir. 1993).

The Court discussed the possibility of constructive possession at some length in another case, United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991).  There, the Court found a Brady violation where defense counsel submitted requests for the criminal background of prosecution witnesses, and the prosecution failed to check local Virgin Island records.  The panel reasoned that the background criminal information was “readily available” to the prosecution. Therefore, the failure to disclose was a suppression of exculpatory evidence.

In United States v. Thornton, 1 F.3d 149 (3rd Cir. 1993), the Court also rejected a hands-off approach to information about a government witness. Prosecutors were charged with constructive knowledge of DEA payments to government witnesses even though they had no actual knowledge of the payments. The Court 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.”   Id. at 158.

In addressing the issue of cross-jurisdiction constructive knowledge, most courts of appeal have looked to these questions: (1) whether the party with knowledge of the information is acting on the governments “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.

In conclusion, the Court held that 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).

The thoughtful dissent, by Justice Nygaard found that a remand back to district court was not necessary because the prosecutor should have made reasonable inquiries into the existence of exculpatory information in the concurrent state court proceeding.

In other words, there is a meaningful duty on the part of prosecutors to make reasonable inquires to other law enforcement agencies, like the FBI or the South Carolina Law Enforcement Division to discover if their witnesses are also cooperating, or are targets, in other investigations.  Defense counsel needs to make sure the prosecution is disclosing this evidence to which their clients are entitled. Great case to use in court, should someone attempt to disagree.