UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 20-1734

____________

UNITED STATES OF AMERICA

v.

GREGORY BROWN, JR., Appellant ____________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 2-16-cr-00235-001) District Judge: Honorable David Stewart Cercone ____________

Argued: January 26, 2021

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

(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

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OPINION OF THE COURT ____________ PORTER, Circuit Judge.

Gregory Brown’s family home burned down in 1995. Three firefighters died fighting the blaze. The government sus- pected that Brown had started the fire at his mother’s request in an attempt to collect on a renter’s insurance policy. A com-

2 bination 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 doc- trine 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 excep- tion 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.

3 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 sam- ples from the basement confirmed the presence of gasoline, and investigators located a gas can close to what an expert tes- tified 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