The Third Circuit Court of Appeals has decided the case of United States v. Brown, holding that the Double Jeopardy Clause of the United States Constitution does not bar a subsequent prosecution when a prosecutor engages in prosecutorial misconduct by failing to provide exculpatory evidence prior to the first trial.

United States v. Brown

In 1995, firefighters responded to a fire at the defendant’s residence. At the time, the defendant was 17 years old, and he lived there with his mother and several family members. After arriving on 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 samples from the basement confirmed the presence of gasoline and investigators located a gas can close to what an expert testified 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. The police suspected the defendant started the fire at his mother’s direction to collect on a renter’s insurance policy.  

The defendant was subsequently charged with three counts of second-degree murder, two counts of arson, and one count of insurance fraud in state court. Local, state, and federal authorities formed a joint prosecution team which consisted of an Assistant District Attorney for Allegheny County and an Assistant U.S. Attorney. At trial, the defendant argued that he could not have set the fire because he had been shopping with his mother when the fire started. However, the prosecutors called witnesses who came forward with testimony undermining the defendant’s alibi. During the trial, the witnesses denied receiving payment and that they were promised payment in exchange for their testimony. The jury found the defendant guilty of the aforementioned charges and he 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 conviction. 

A few months after the trial, the defendant filed post-sentence motions arguing that he was entitled to an evidentiary hearing because the ATF agents had offered money to potential witnesses. The trial court denied this request. The defendant also filed various appeals with the Pennsylvania Superior Court. He was able to get one of his murder convictions vacated, but he was unsuccessful in obtaining relief for his other convictions. The defendant then filed a habeas petition claiming that the prosecution failed to disclose that it had paid witnesses to testify against him. At the hearing, the Commonwealth’s attorney said that he had reviewed ATF records and contacted the prosecutors and had not seen any record of witness payment. The habeas court denied the defendant’s petition and request for an evidentiary hearing. 

Nearly a decade later, the defendant filed a petition in state court under the Post-Conviction Relief Act (“PCRA”) alleging that newly discovered evidence based on an expert opinion about the cause of the fire. Additionally, a non-profit organization filed a Freedom of Information Act (“FOIA”) request with the ATF seeking all recordings relating to the payment of reward money in the defendant’s case. The ATF provided two canceled checks showing that it had made payments of $5,000 and $10,000 relating to the fire. The non-profit then contacted one of the witnesses who said he had received $5,000 from an ATF agent after the defendant’s trial.

Armed with this information, the defendant filed a new PCRA petition alleging newly discovered facts in the form of a Brady violation. The PCRA court found that the defendant’s claim about the prosecution’s nondisclosure of the witnesses’ rewards satisfied the exceptions to the PCRA’s time-bar and granted the defendant a new trial. The Pennsylvania Superior Court affirmed this decision. Upon remand to the state trial court, the defendant moved to dismiss the charges on double-jeopardy grounds. While that motion was pending, a federal grand jury indicted the defendant, charging him with destruction of property by fire resulting in death. The Commonwealth then filed a motion to nolle pros the state charges. The state court granted the motion to dismiss the state charges. 

The defendant then moved to dismiss the federal indictment on Double Jeopardy grounds. Specifically, the defendant argued that his state prosecution was “a tool of the federal authorities.” The Government argued that the dual-sovereignty principle applied. That rule allows the federal and state governments to charge a defendant for the same crime. After hearing arguments, the federal District Court denied the defendant’s motion to dismiss, holding that the dual-sovereignty principle allowed the defendant’s case to go forward in federal court. The defendant then filed a timely appeal. 

The Third Circuit’s Decision 

The Third Circuit denied the defendant’s appeal. The Double Jeopardy Clause says that no personal shall “be subject for the same offense to be twice put in jeopardy of life or limb.” However, the Double Jeopardy Clause’s prohibition against a second prosecution for the same offense is not absolute. There are exceptions to this rule. One, obviously, is the dual-sovereignty principle. Another exception is that a prosecutor can retry a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack. This is referred to as the “trial-error rule.” In the instant case, the Third Circuit said the dual-sovereignty principle was not applicable to the defendant’s case, but rather the trial-error rule. 

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 or incorrect jury instructions. Paradoxically, the Third Circuit also categorizes prosecutorial misconduct as a “trial-error.” In other words, according to the Third Circuit, a prosecutor can commit some type of misconduct (i.e. withhold exculpatory evidence) and that will not necessarily bar them from retrying a defendant. However, there is an exception to this rule that if the prosecutor attempted to goad a defendant into asking for a mistrial because they feared an acquittal and the mistrial was granted, then Double Jeopardy could apply. According to the Third Circuit, “the Fifth Amendment does not permit such gamesmanship.” 

The Third Circuit found that this exception did not apply in this case. Although the prosecution had failed to provide the defense with discovery, the prosecution had not done so with the intent to prove a mistrial. Therefore, the mistrial exception did not apply in this case. The government will therefore be able to try the defendant in federal court.

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