When will knowledge of impeachment material in the possession of state authorities be imputed to the government for Brady purposes?

In United States v. Risha, the Third Circuit revisits the issue of when the government will be charged with constructive possession of impeachment material for Brady purposes (here, information in the hands of state authorities). After being arrested on state charges, one Frank Caito disclosed his involvement in an unrelated arson and began cooperating in a federal arson prosecution of defendant Jesse Risha. Caito's state proceeding was continued until after his federal cooperation was completed with the conviction of Risha, at which time he entered into a favorable state plea agreement and was sentenced to probation after the state judge was informed of Caito's federal cooperation.

Risha sought a new trial, claiming a Brady violation in the government's failure to disclose Caito's forthcoming state plea agreement and his expectation of leniency at sentencing on the state charges. The district court granted the motion without detailed analysis of the government's actual or constructive possession of this impeachment material.

The Third Circuit found ample evidence of constructive possession in the record, but nonetheless remanded for specific factfinding by the district court on the knowledge issue. In doing so, the Court set forth three alternative triggers for when the goverment will be charged with knowledge of Brady material in the hands of state authorities: (1) if the party with actual knowledge is acting on the government's "behalf" or under its "control;" (2) if the state and federal governments are acting as a "team," are participating in a "joint investigation," or are sharing resources; and (3) if the government has "ready access" to the material.

Judge Nygaard filed a dissent, arguing for a new "reasonableness test" for determining whether the government should be deemed to constructively possess Brady material. This test would take into account whether the government was put on notice of the existence of the material and whether it took objectively reasonable steps to discover the material once put on notice. Although this test seemingly would lead to fewer successful Brady claims, Judge Nygaard would have affirmed the new trial grant in this case (without further factfinding) because the government was clearly put on notice of Caito's state charges and his potential state-side benefit, yet did nothing to investigate the matter.