United States v. Brown

994 F.3d 147

UNITED STATES of America

v.Gregory BROWN, Jr., Appellant

No. 20-1734

United States Court of Appeals, Third Circuit.

Argued: January 26, 2021

Filed: April 13, 2021

David B. Fawcett, III, Reed Smith LLP, 225 Fifth Avenue, Suite 1200, Pittsburgh, PA 15222, Lisa B. Freeland, Samantha L. Stern [ARGUED], Office of Federal Public Defender, 1001 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222, Counsel for Appellant

Scott W. Brady, Laura S. Irwin, Haley F. Warden-Rodgers [ARGUED], Office of United States Attorney 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

Before: RESTREPO, BIBAS, and PORTER, Circuit Judges.

OPINION OF THE COURT

PORTER, Circuit Judge.

Gregory Brown's family home burned down in 1995. Three firefighters died fighting the blaze. The government suspected that Brown had started the fire at his mother's request in an attempt to collect on a renter's insurance policy. A combination of local, state, and federal authorities prosecuted him in state court for arson and other offenses. He was convicted and sentenced to life in prison. Brown later discovered that the prosecution had failed to disclose material evidence, and a post-conviction court vacated his conviction and ordered a new trial. The United States now wants to try Brown again, this time in federal court.

Brown moved to dismiss the federal charges. He also moved to compel discovery to support his claims. The District Court denied both motions. On appeal, Brown argues that a second prosecution for the same conduct violates the Double Jeopardy Clause. He recognizes that the dual-sovereignty doctrine would defeat his claim because a state crime is not "the same offense" as a federal crime, even if for the same conduct. So he asks that we be the first circuit court to apply an exception to the dual-sovereignty doctrine because, he says, the state prosecution was merely a tool of the federal authorities. But we need not reach that question. Brown's claim fails for a more obvious reason: retrying a defendant because the conviction was reversed for trial error is not a second jeopardy. Regardless of whether it proceeds in state or federal court, Brown's second prosecution does not violate the Double Jeopardy Clause. The District Court did not err in denying Brown's motion to dismiss the indictment and his motion to compel discovery on the dual-sovereignty issue, so we will affirm.

I

A

Around midnight on February 14, 1995, firefighters responded to a fire at Brown's residence. Brown's mother, Darlene Buckner, had been renting the home since 1990. Brown, who was seventeen years old at the time, lived there with his mother and several family members. After arriving on the 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. A witness, Keith Wright, came forward with testimony undermining Brown's alibi that he had been shopping with his mother at the time of the fire. Another witness, Ibrahim Abdullah, said Brown later confessed that he had started the fire.

Local, state, and federal authorities formed a joint prosecution team and brought Brown's case in state court. In 1997, Brown and Buckner proceeded before a consolidated jury trial. The joint prosecution team consisted of an Assistant District Attorney for Allegheny County and an Assistant U.S. Attorney. The prosecution's witnesses denied receiving payment or having been promised payment in exchange for their testimony. The jury convicted Brown on three counts of second-degree murder, two counts of arson, and one count of insurance fraud. Brown 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 convictions.

B

A few months after trial, Brown filed post-sentence motions arguing, among other things, that he was entitled to an evidentiary hearing because ATF agents offered money to potential witnesses. The court declined to hold an evidentiary hearing because it found no evidence that any witness who testified received reward money. On appeal, the Pennsylvania Superior Court vacated one of the arson charges but otherwise rejected Brown's arguments. The Pennsylvania Supreme Court denied Brown's petition for allowance of appeal.

In 2001, Brown sought habeas relief in federal court, again claiming that the prosecution failed to disclose that it had paid witnesses to testify against him. At oral argument, 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 District Court denied Brown's petition and request for an evidentiary hearing. This Court denied Brown's request for a certificate of appealability.

Nearly a decade later, Brown filed a petition in state-court under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 –46, alleging newly discovered evidence based on an expert opinion about the cause of the fire. Meanwhile, the Innocence Institute at Point Park University filed a Freedom of Information Act ("FOIA") request with ATF, asking for all records relating to the payment of reward money in Brown's case. In response to the FOIA request, ATF provided two canceled checks, with identifying information redacted, showing it had made payments of $5,000 and $10,000 in August 1998 relating to the fire. The Innocence Institute then contacted one of the witnesses, Abdullah, who said he received $5,000 from an ATF agent after Brown's trial.

Armed with this new information, Brown filed an amended PCRA petition. Soon after, counsel for Brown located another witness, Wright, who acknowledged receiving $10,000 from ATF for his testimony. Brown filed a second amended PCRA petition that reframed Wright's acknowledgment. Brown filed four more PCRA petitions as counsel continued to uncover evidence corroborating the witnesses’ accounts that they had understood they would receive—and in fact received—money in exchange for their trial testimony. The PCRA court found that Brown's claims about the prosecution's nondisclosure of the witnesses’ rewards satisfied exceptions to the PCRA's time-bar and granted Brown a new trial. The Superior Court affirmed.

Upon remand to the state trial court, Brown moved to dismiss the charges on double-jeopardy grounds. While that motion was pending, a federal grand jury indicted Brown, charging him with destruction of property by fire resulting in death under 18 U.S.C. § 844(i). The Commonwealth then filed a motion for nolle prosequi to dismiss the state charges. The state court granted the motion and dismissed the state charges.

Brown moved to dismiss the federal indictment. He argued that (1) the prosecution's misconduct violated his due-process rights and a new trial cannot cure that violation; (2) the Double Jeopardy Clause barred the second prosecution; (3) the statute of limitations barred the prosecution; and (4) the prosecution was vindictive because it sought enhanced penalties through federal indictment. To support his claims, Brown sought to subpoena records regarding the coordinated efforts of state and federal prosecutors. The District Court granted the subpoena. The prosecution turned over two sets of documents, but Brown moved to compel production of other documents he thought would be more responsive to the dual-sovereignty issue. The District Court denied Brown's motion to compel because the requested documents went entirely to the dual-sovereignty argument, and the court declined to reach the dual-sovereignty issue "without a compelling reason to expand the Supreme Court's holding in in [sic] Oregon v. Kennedy , 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)." App. 587.

The Supreme Court reaffirmed the vitality of the dual-sovereignty doctrine in Gamble v. United States , ––– U.S. ––––, 139 S. Ct. 1960, 204 L.Ed.2d 322 (2019). The District Court requested supplemental briefing on Gamble and also asked the parties to address whether Bartkus v. Illinois , 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), creates an exception to the dual-sovereignty doctrine applicable in Brown's case. After hearing arguments, the court denied the motion to dismiss, holding that the cooperation between state and federal law enforcement did not meet the standard necessary to apply the Bartkus exception. The court's decision did not address the applicability of the Kennedy exception. Brown timely appealed the denial of his motion to compel discovery and the denial of his motion to dismiss.

II

The District Court had jurisdiction under 28 U.S.C. § 3231 to review Brown's prosecution for violating 18 U.S.C. § 844. We have jurisdiction under 28 U.S.C. § 1291 and the collateral-order doctrine. See Abney v. United States , 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Denials of motions to dismiss indictments are typically not final judgments, but "pretrial orders rejecting claims of [double] jeopardy, such as that presently before us, constitute ‘final decisions’ and thus satisfy the jurisdictional prerequisites of [ 28 U.S.C. § 1291 ]." Id.

We review double-jeopardy challenges de novo, United States v. Rigas , 605 F.3d 194, 203 n.7 (3d Cir. 2010), and the denial of a motion to compel discovery for abuse of discretion, United States v. Berrigan , 482 F.2d 171, 181 (3d Cir. 1973).

III

The Double Jeopardy Clause says that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. But the clause's prohibition against a...