and you can amend to the punishments the same proceeding we're not talking about the punishments there is no quibble here the only conviction there was was vacated in a way that allows the government to retry it wasn't vacated for insufficient evidence so why is there even a double jeopardy problem you don't continue to beat any double jeopardy problem with we prosecuting your client in state court so why is it even a double jeopardy problem to reprosecute in federal court your honor we would contend that it's a double jeopardy problem in either four m and that's because of the intentional government misconduct that is the reason why the even need a retrial today and in that respect we are asking about that this court apply  oregon versus kennedy which recognizes that there can be a nd jeopardy bar in instances where the defendant interest in having his guilt finally decided by the tribunals that was impaneled is his simple sovereignty case of all this is just a straight was there intentional misconduct that barney prosecution either formal or not i don't see a reason why he could be prosecuted in the state court but not the federal court correct i agree your honor this far would apply any other state or federal court however the district court here denies mr brown's double jeopardy claim because of the dual sovereignty doctrine it didn't even reach the nd jeopardy issue because it found that the doctrine applied and that this federal prosecution which is clearly a joint federal and state prosecution by a superstar and found that it was somehow different from the very same state and federal prosecution that was time in state court and that's because mr brown's interest in having that st state court jury decide his guilt finally had been subverted by the misconduct that took place over the course of many years in this case and it's the reason he needs to face the nd jeopardy but i would like to talk with this scandal about why the barkeep exception applies in this case because this is the reason why we are before this court  direct your honor to really what occurred at the close of the case when the defense became aware of the existence of the federal board findings and about the a t f to reaching out to bryson street residents at that time want and the defense sought to reopen they wanted to make the jury aware of the federal board findings and and certainly at least be able to argue that the the commonwealth witnesses were influenced by that reward the prosecution vehemently opposed those efforts in fact be a usa cross designated in the matter made affirmative representations to the trial court that that reward had never been stuck and because you know it would have taken bringing back all of those witnesses and questioning them about it in the district are piecemeal the trial court at the time declined counsel motion to reopen on that basis now defense count that that i think is really clear evidence of really sort of acceptance of a risk or perhaps intentional provocation of a defense mistrial request and although we the defendants st trial short they really want to abort because they know they don't have they don't have what they need either the attempt to abort or also just these subversion of the defendant's right to have his guilt finally decided misconduct that's motivated by that we recognize that the defendant double jeopardy rights must prevail because part of it is the defendant's right to have his guilt finally state court trial records and the p c r a testimony which supports those findings the p three court found intentional misconduct on behalf of the lead  overreaching and it should make no difference whether the overreaching as it is by the case agents or the prosecutors the prosecutors are charged with knowing what their case agents are doing and the why and the line of is the deal with the prosecution team otherwise we're going to have rules that really encourage prosecutors to turn a blind eye to what their case agents are doing  court overwhelming evidence that this case agent gave witnesses an expectation of payments that that with the pressed those witnesses then went on to testify at trial that they expected nothing and then you have by which i think it is very relevant at the close of this pace efforts by the defense to discuss the award with the jury which were met with don for existence and which the trial court didn't allow though i this is a very unique case and the kennedy exception fits for these for these circumstances where although we don't have a mistrial he didn't qualify the facts a barque assault you know it would have to be some kind of extreme manipulation and here do we have any evidence of anything approaching you know a kind of deliberate plot like that to circumvent double jeopardy honor here we have much stronger facts than the court was presented with and bart katz we have coped prosecution teams comprised of state and federal prosecutors st since the court and now in federal court and that was by design it's always been recognized that there was state and federal jurisdiction for this prosecution and at key points in this case you saw brands of matt discuss the case and they've chosen a forum and they've chosen to proceed together and the way they have done that is through cross designation which allows the prosecutors to appear in the sovereignty of the other to avail themselves of the law in the course of the other critically your honor in this case neither prosecuting entity has yielded to the other as is customary normally you have with a null process you have you know for example the commonwealth actually receding from the case no longer pursuing the case here we have instead bargained for continued involvement of the commonwealth in this case and make no mistake it's very clear from this record that the commonwealth considers this federal prosecution to be their prosecution as well and this court need look no further than the on the record statement of the deputy district attorney who argued for the no process and state court as this after the federal indictment was this huge sheet she writes represented to be the trial court that the federal prosecution has many benefits to the commonwealth evidentiary benefits benefits in terms of enhanced penalties those statements make clear  that this cross designation she is not appearing in this case as the united states attorney representatives she is very much appearing in these and these proceedings as a representative of the commonwealth and vindicate the commonwealth continued interest in this prosecution so your eight honor in part because we did not have anything remotely close to this coke prosecution that we have in this case you had involvement by the continuing involvement by essentially federal investigative forces a case agent who continued to be involved and who like you said provided a sort of silver platter  strengthen the case of proceeded to state court here what we have is is much much stronger if there was ever a case for recognizing superstar brand and then exception to the dual sovereignty doctrine record of intentional misconduct at the initial trial and and the fact that this is the nd jeopardy one option however for this court if it finds that the record support for either of those arguments is specifically we thought information relating to the sort of cross designation and the reasons for it after the after the prosecution had offered you know reasons for it that we didn't think were actually  supported by the circumstances because then to hear and so and so in that respect you know every man for discovery might be appropriate but again we think we think the record as it stands  no the district court can actually find that the government's arguments with the district court ultimately found was that we couldn't proceed on discovery because it wasn't clear that this was even determine if the privilege was properly asserted so no the district court sort of never put in him imprimatur on the claims of privilege in this case and arguably you know the government really  waves any privilege by offering affirmatively you know selective evidence of you know the reason for the cross does ignition back in nine thousand and ninety six and now in this case  will hear from me shortly list warden rogers thank you good morning may please the court haley when rogers for the united states three preferred firefighters lost their lives battling a house fire we believe that we can prove beyond a reasonable doubt that the fire was an arson and that grain brown is responsible for that arson and while we're well aware of the troubling allegations of a brady violation of the state trial rec adopt this case and bring them measure of closure and justice to the public and the victims families p r however concerns and narrow issue rather the double jeopardy clause bars this federal and this really is a question of the kennedy exception although we think that the case could be decided as the district court did by reference to  ahad denied any bias or expectation of reward the prosecutors did their due diligence in this case and i had no reason to believe that there was any expectation of what about agent wisc and his conduct  if they miss something that that certainly would still be a brady violation even if it was known by a member of the prosecution team and that's what happened here he obtained a new trial however it's far from clear whether a retrial might be barred by double jeopardy unless there's manifest necessity for it in for example a case of a hung jury so charity is a very narrow exception that's really focused on an improper inten incumbents the kinds of misconduct that's alleged here and agent apparently according to the picture court was trying to obtain a conviction there was never any point at which the government believe clause and the majority opinion clearly rejected big harassment and overreach as an unworkable standard the concurrence there which women have applied to harassment and overreach standards actually found there it wouldn't let the case they wouldn't move that standard because there was no evidence that the prosecutor believed that they were about to lose their case and engaged in misconduct to turn it around never again or there's the prosecutors a situation where if there were a intentional brady violation it would be to obtain a conviction in the st trial and then use the ruler for brady violations been deemed out rule is that the remedy is a new trial at which exculpatory or impeachment evidence comes and we we have exactly that here mr brown well hop the opportunity to cross examine these with witnesses at a new trial evidence that came to light that shows that we got the wrong by this it was potential impeachment evidence that could and should have been introduced and direct of these witnesses just like any other situation for example where you have a reward or a cooperator i when they might be expecting a benefit from their testimony or the court martials were for their questions on the kennedy issue i would like to at least briefly it plainly turns on the text of the backward jeopardy clause and they after that go through and reject many of the arguments that have been raised by appellate courts criticizing middle if it exists is difficult to square with this plain text reading of a gamble and if it doesn't exist it's limited to the situations that park is itself mentioned where there is one this issue  because of his experience in arson cases that's at appendix recently four to seventy six anyway walker had been had much more close involvement in the state case after the pickwick hearing and so was intimately knowledgeable about the facts and it helps the federal government to vindicate its interests in this case to avoid the ramp up of having to gather all of that and relearn all of that information support local law enforcement and when there is concurrent jurisdiction as in this case which is undisputed but consultation about the appropriate forum in which to pursue a prosecution is not only on him but actually ace to be cross designated but it does happen and finally it's not unheard of for the federal government to adopt a state case after a conviction or an acquittal on related charges where there remains a federal interest as an indicat of course as you point out here we don't have that because he is for the purpose of the double jeopardy clause jeopardy never attached in the  don't want to just point out a couple of facts that brown does not mention that undermine its members are an argument the st is that the d a s office independently controlled the entire state indictment process including who would be habeas and pick the proceedings but he wasn't involved as a as a party or an attorney in that case i want to say sweeney is wrong mistaken as was limited to the time surrounding the very hearing the trial certain post trial motions and th sentencing parts for the federal case there were more than fifty communications between and among members of the u s attorney's office and the department of justice attorneys whose responsibility is to advise on the pedal policy this was not a rubber stamp  he signed off on this prosecution and the u s attorney determined staffing including whether to staff a usa sweeney or some other usa bottom line there were different u s attorneys involved different district attorney involved different eighty eight different a usa is involved in the federal case this is not like archer which is the only case that's ever really applied the barkus exception and even that it was on collateral estoppel not on actually double jeopardy grounds there where when it's a single prosecutor an elected state prosecutor who brought charges in state court and then simultaneously brought charges in federal court with apparently a lack me united states they are looking out to challenging the circumstances and asking whether whether which party or or whether both parties perhaps in this case are fueling and controlling the litigation and that's how that sham uncover language comes into play so it's our position i think very much supported by my lands and marquez that notwithstanding gamble successive state and then federal prosecution that was no allegation and gamble that the state and federal governments have come together such as the way they have done so here are in a way that  flying nun has addressed it under circumstances like what we have here which is the employment of these prosecution teams involving state and federal prosecutors i submit that is the most unique aspect of this case intent on behalf of the prosecutor to provoke that mistrial because otherwise it seems that perhaps the defendant had an interest in cutting his trial short and i think if you will if you requirement also has to be slightly be framed and we're not suggesting that it would apply robbery where you have any government overreach that prejudices the defendant really look at the circumstances that existed at the time state  make much of the fact that this is mere impeachment you know this impeachment went to the heart of their case it and it brought the credibility of their two being witnesses into serious serious outcry by introducing the fact that they have financial incentive for their testimony and we're talking about the right who basically destroyed mr brown's alibi and then trial i think the government have no real answer to the extremely unique facts that we have present in this case  mr brown's double jeopardy interests have been trampled on he has now been forced to endure the anxiety the oppression of the prosecution by two sovereign