| On May 11, 1998, firefighters were summoned to a building at 559 Miller Avenue in Clairton, Pennsylvania to investigate a strong odor of gasoline. Inside the building they found a large collection of arcade and video games that had been doused in gasoline. They also found what appeared to be a crude ignition device—a cigarette and a book of matches on a newspaper next to gasoline pooled on the floor. Four empty five-gallon gasoline cans were discovered nearby.
More than five years later, on November 12, 2003, a federal grand jury indicted 47-year-old Jesse James Risha on a charge of attempted arson. He was accused of hiring Frank Caito to burn down the Miller Avenue building
After an initial trial ended with a mistrial because the jury was unable to reach an unanimous verdict, Risha went to trial a second time in U.S. District Court on July 19, 2004.
Caito, testifying pursuant to an immunity agreement with prosecution, told the jury that Risha offered him $5,000 to set the building on fire. He said that Risha pointed out the building and through an intermediary, was provided a key to get inside. Caito said he understood the building housed machines owned by a competitor of Risha, who had his own vending business, James Vending.
Caito said he poured gasoline over the machines and tucked a lit cigarette behind a pack of matches so that when the cigarette burned down, the matches would ignite and set the gasoline ablaze. The plot was interrupted, however, by the arrival of the fire department before it could ignite the gasoline and the building never burned.
He told the jury that in September 2002, when he learned that a state warrant had been issued for his arrest for illegal sale of firearms, he turned himself in to agents of the Pennsylvania Attorney General’s office.
Caito testified that he admitted that he was involved in the attempted arson back in 1998 and reached an agreement with state prosecutors that his involvement in the attempted arson was not to be used against him.
After admitting that the illegal sale of firearms charges were still pending, the prosecutor asked Caito: “And what, if any, bearing does your testimony in this case have on that case?”
“None,” Caito testified. He added that he was being prosecuted in state court by a different prosecutor.
On July 22, the jury convicted Risha of attempted arson.
On September 17, 2004, while Risha was still awaiting sentencing, Caito pled guilty to two counts of possession of a firearm without a license, which carried a combined maximum penalty of seven to 14 years in prison and a $30,000 fine. Two other charges were dismissed at the request of the prosecutor, assistant Pennsylvania Attorney General Bradley Hellein.
During Caito’s sentencing, Hellein said, “We would also add that Mr. Caito has provided very valuable assistance to the Commonwealth and the United States of America with regard to a certain prosecution that occurred in the Western District of Pennsylvania resulting in a conviction approximately a month and a half ago.” Caito was then sentenced to one year of probation.
Risha’s defense lawyer filed a motion for a new trial claiming that Caito had testified falsely about not expecting or being promised leniency in the gun case and that the prosecution had failed to disclose to the defense that it would make Caito’s cooperation known at sentencing on the gun charges.
On November 18, 2005, following a hearing, Chief Judge Donetta W. Ambrose ruled that the prosecution had failed to disclose the favorable treatment for Caito and vacated Risha’s conviction.
Judge Ambrose that although “there was no representation, at any time” by either the prosecutor or the agent in the federal case to Caito or his lawyer that the federal government “would make any attempt to intervene in the state court proceedings,” she concluded that “the jury should have been informed that the government’s key witness expected to receive a benefit for testifying.
Judge Ambrose said the favorable disposition of Caito’s state court gun charges gave “rise to the assumption” that he had a motive for lying. The judge noted that Caito’s gun charges were continued on several occasions and that his defense attorney had requested the delays for the “express purpose” of allowing Caito to complete his testimony against Risha.
The prosecution appealed and argued that the federal prosecution team had no involvement in Caito’s state prosecution. In October 2005, the Third Circuit U.S. Court of Appeals ordered the case remanded to Judge Ambrose to make more specific findings.
“It appears that here, at least one state agent was heavily involved in the federal charges against Risha,” the court said. “It also appears possible that federal and state forces engaged in a ‘joint investigation’ to resolve the alleged arson. Last, it is very possible that the impeachment information was ‘readily available’ to the prosecution. However, (Judge Ambrose) did not make such findings.”
On September 26, 2006, following a hearing before Judge Ambrose, the prosecution agreed that Risha’s conviction should be vacated. On November 2, 2006, the prosecution and defense filed a joint motion to dismiss the case.The motion specificed that Risha would not to file a claim under the Hyde amendment, which allows for recovering legal fees and other damages in cases of prosecutorial misconduct.
On November 6, 2006, Judge Ambrose granted the motion and the case was dismissed.
– Maurice Possley
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