                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-18-2009

USA v. Green
Precedential or Non-Precedential: Precedential

Docket No. 06-2468




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PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 06-2468


                         UNITED STATES OF AMERICA,

                                          v.

                                 ARTEGA GREEN,

                                               Appellant


                   On Appeal from the United States District Court
                            for the District of Delaware
                         (D.C. Criminal No. 04-cr-00105)
                       District Judge: Hon. Gregory M. Sleet


                                Argued June 5, 2008

                          Opinion filed September 2, 2008

   Petition for Panel Rehearing Granted and Opinion Vacated
December 30, 2008


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 January 27, 2009

                   BEFORE: AMBRO, CHAGARES and COWEN,
     Circuit Judges

                              (Filed: February 18, 2009)

Stephen P. Patrizio, Esq. (Argued)
1500 John F. Kennedy Boulevard, Suite 1205
Two Penn Center Plaza,
Philadelphia, PA 19102
Counsel for Appellant

Robert F. Kravetz, Esq. (Argued)
Office of the United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899

Counsel for Appellee


                                        OPINION



COWEN, Circuit Judge.
       Defendant Artega Green was convicted by a jury of one count of distribution of more
than 50 grams of cocaine base in violation of 21 U.S.C. § 841. The District Court sentenced
him to a term of imprisonment of 151 months. Green timely appeals from both his
conviction and sentence. For the reasons set forth below, we will vacate the judgment of
conviction and remand for a new trial.
I. FACTUAL BACKGROUND AND PROCEDURAL                          HISTORY
       Green’s current conviction is premised upon a single controlled narcotics transaction
which occurred on May 14, 2002. However, Green had apparently been a target of Drug
Enforcement Agency (“DEA”) investigative efforts since 2000, and was the subject of a
number of other attempted controlled buys from 2000 to 2002. But the May 2002
transaction was the only one for which he was charged. DEA Special Agent David Hughes
and Task Force Officer Lawrence Collins were the case agents; both were supervised by
DEA Special Agent Eric Miller. The DEA’s confidential informant (“CI”), Michael Brown,
participated in the buy.
       With regard to the May 2002 transaction, the Government’s evidence against Green,
as presented during its case-in-chief, consisted of: the testimonies of Special Agents (1)
Hughes, and (2) Miller, (3) an audio recording in which the CI called a cell phone number
“associated with” Green and ordered 3 ounces of cocaine base, and (4) a video1 in which the


                1
                 The video was first introduced, not by the Government, but
              by defense counsel during his cross-examination of Special
              Agent Hughes. The parties subsequently agreed to introduce the
CI allegedly engaged in a drug transaction with Green. The video was of relatively low
quality, and only briefly depicted the profile of the alleged perpetrator; thus, key to the
defense’s case was to cast doubt as to whether Green was in fact the person depicted.
Similarly, the audio recording consisted merely of a two-second phone call in which the
recipient of the call (Green, allegedly) said “What’s up dog, what’s the deal?” and agreed
to the buy. The only evidence introduced by the Government in its case-in-chief directly
connecting Green to both the audio and video was the testimony of the agents. Hughes
testified he recognized Green’s voice on the audio recording, Miller stated he recognized
Green on the video and that he observed Green arrive at the location of the controlled buy
and enter the premises with the CI (where the video surveillance took place). However, the
CI involved in the transaction, Brown, testified for the defense at trial that the individual on
the video was not Green.
II. DISCUSSION
       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction to review the judgment and resulting sentence under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
       On appeal, Green raises a number of issues: whether (1) the District Court erred by
admitting Brown’s prior written statement under the “present sense impression” hearsay
exception; (2) the Government violated its Brady v. Maryland disclosure obligations; (3) the
prosecutor engaged in misconduct in her summation by referring to Green’s reactions after
viewing of the video of the controlled buy; whether the District Court erred (4) in allowing
the jury to review transcripts of audio tape identifying Green by name; (5) in attributing
additional drug quantities to Green at sentencing; and (6) in determining that the drug
involved was crack cocaine. Because we conclude that the error as to the admission of the
CI’s statement warrants a new trial, we do not reach the remaining issues.2



              video recording as a joint exhibit.
                2
                  With respect to Green’s prosecutorial misconduct argument,
              Special Agent Hughes testified at a suppression hearing that,
              when he arrested Green, he purposefully did not identify himself
              as a DEA agent. Instead, he merely said that he was “police”
              and that Green was being arrested for a state capias. Only after
              Green was transported to DEA offices did Hughes inform him
              of the true nature of the arrest – that he had been indicted by a
              federal grand jury for distribution of narcotics. Before giving
              any Miranda warning, Hughes showed Green the video
              supposedly depicting him selling drugs. Hughes testified at trial
              that Green widened his eyes, asked for the video to be replayed,
              and, after watching it for a second time, sighed and lowered his
       A. Admission of Michael Brown’s Statement
        The crux of the Government’s case was proving the identity of the individual captured
on its audio and video evidence. It sought to do this exclusively through the testimonies of
Agents Hughes and Miller. In a rather dramatic turn of events, however, Michael Brown,
the CI involved in the controlled transaction, testified as the sole defense witness.


              head. Hughes then advised Green of his Miranda rights, and
              Green eventually gave an incriminating statement. In her
              closing statement, the prosecutor expressly relied on Green’s
              physical reactions to the video as demonstrating an admission of
              guilt.

                 Although the Government arguably violated Green’s rights
              under the Fifth Amendment and the Miranda doctrine, the Court
              need not reach such constitutional issues at the present time.
              The erroneous admission of the CI’s statement into evidence
              clearly mandates a new trial, rendering any further inquiry
              unnecessary. For the same reason, we need not address the
              Government’s contention that Federal Rule of Criminal
              Procedure 12(e) and this Court’s recent ruling in United States
              v. Rose, 538 F.3d 175 (3d Cir. 2008), prevent us from
              conducting a plain error review of these Miranda-related issues.

                Furthermore, Green devotes much of his attention to the Brady
              v. Maryland issue on appeal. The thrust of Green’s complaint
              is that the Government’s failure to disclose the extent of the
              DEA’s prior encounters with him prejudiced his ability to
              effectively cross-examine Special Agents Hughes and Miller on
              the basis of their identifications of his voice and likeness. He
              claims the prejudice inuring from this omission is evident given
              the transactions that allegedly formed the basis of the agents’
              familiarity with him were ones for which the District Court
              rejected (upon a preponderance standard) as insufficiently
              attributable to Green to warrant recognition as relevant conduct
              at sentencing. We understand the argument. But because this
              issue was not formally raised and litigated below, we are thus
              unable to make the requisite materiality determination based on
              the record before us. See United States v. Bagley, 473 U.S. 667,
              682-84 (1985) (relevant standard is reasonable probability of
              different outcome at trial had impeachment evidence been
              disclosed).
According to Brown, Green never got out of the car on the day of the buy, and the person
depicted on the video selling the drugs was an individual known as “Tex.” Brown also
stated that the DEA agents had used him before in other controlled buys, always with the
goal of catching Green on tape selling drugs; but they were never successful, and were upset
at Brown because of this. He was extensively cross-examined by the Assistant United States
Attorney (“AUSA”), who was allowed to elicit from Brown, without defense objection, that
he had previously purchased drugs from Green on several occasions.
       After Brown was excused from the witness stand, the prosecution called Special
Agent Miller as a rebuttal witness. Through Miller, and over Green’s vigorous objection,
the Government was permitted to introduce as substantive evidence a statement that Brown
purportedly made some 50 minutes following the controlled buy in question, after he was
brought back to DEA offices and debriefed by the case agents. In it, Brown attested that it
was Green who sold him the drugs. The statement was signed by Brown, and was witnessed
and signed by the agents as well. Although the defense argued that the statement should not
have been admitted under Federal Rule of Evidence 613(b) because Brown had not been
given the opportunity to explain or deny it on the stand, the District Court admitted the
statement, pursuant to the prosecution’s argument, as a present-sense impression under Rule
803(1). No limiting instruction was given.
       We generally review a trial court’s decision to admit or exclude evidence for abuse
of discretion. United States v. Sokolow, 91 F.3d 396, 402 (3d Cir. 1996). But where the
evidentiary determination is premised upon an interpretation of the federal rules, our review
is plenary. Id. Here, we conclude the District Court’s evidentiary ruling was in error.
        Federal Rule of Evidence 803(1) renders admissible as a present-sense impression “[a]
statement describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.” A hearsay statement may be
admitted under this exception if it explains or describes an event personally witnessed by the
declarant, and if the declaration is made essentially contemporaneous to witnessing the event.
United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998); 5 Jack B. Weinstein and
Margaret A. Berger, W EINSTEIN’S F EDERAL E VIDENCE § 803.03[1] (2d ed. 1997). In this
case, there is no dispute that Brown was personally present at the narcotics transaction and
that his statement purports to recount the details of that transaction. The only question before
us is whether the statement is sufficiently contemporaneous to qualify as a present-sense
impression.
       The fundamental premise behind this hearsay exception “is that substantial
contemporaneity of event and statement minimizes unreliability due to [the declarant's]
defective recollection or conscious fabrication.” United States v. Manfre, 368 F.3d 832, 840
(8th Cir. 2004) (quoting United States v. Blakey, 607 F.2d 779, 785 (7th Cir. 1979)); 5
W EINSTEIN’S F EDERAL E VIDENCE § 803.03[1]; see Miller v. Keating, 754 F.2d 507, 512 (3d
Cir. 1985) (lack of time to deliberately manipulate truth of account is key). “The idea of
immediacy lies at the heart of the exception,” thus, the time requirement underlying the
exception “is strict because it is the factor that assures trustworthiness.” 4 Christopher B.
Mueller and Laird C. Kirkpatrick, F EDERAL E VIDENCE § 8:67, 559, 562 (3d ed. 2007); see
also Chambers v. Mississippi, 410 U.S. 284, 298-99 (1973) (hearsay exceptions are premised
on the idea that the particular circumstances surrounding the making of certain utterances
guarantee their reliability). Put differently, the temporality requirement must be rigorous
because the passage of time – or the lack thereof – is the effective proxy for the reliability
of the substance of the declaration; hence the greater the passage of time, the less truthworthy
the statement is presumed to be, and the more the scales should tip toward inadmissibility.
Manfre, 368 F.3d at 840 (“The opportunity for strategic modification undercuts the reliability
that spontaneity insures.”). Nevertheless, some brief temporal lapse is permissible so as to
accommodate “the human realities that the condition or event may happen so fast that the
words do not quite keep pace.” 4 F EDERAL E VIDENCE § 8:67, at 562; Fed. R. Evid. 803(1)
Adv. Comm. Notes (1975) (“[w]ith respect to the time element, [803(1)] recognizes that in
many, if not most, instances precise contemporaneity is not possible and hence a slight lapse
is allowable”).
        While it is true, as the Government notes, that courts have not adopted any bright-line
rule as to when a lapse of time becomes too lengthy to preclude Rule 803(1)’s application,
see Blakey, 607 F.2d at 785 (no per se rule exists), we are nevertheless unaware of any legal
authority for the proposition that 50 minutes after the fact3 may appropriately be considered
“immediately thereafter.” On the contrary, given the clear language of the rule and its
underlying rationale, courts consistently require substantial contemporaneity. See, e.g.,
United States v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007) (911 phone call made “only one or
two minutes ... immediately following” event admissible); United States v. Danford, 435 F.3d
682, 687 (7th Cir. 2006) (statement made “less than 60 seconds” after witnessing robbery
qualified as present-sense impression); United States v. Jackson, 124 F.3d 607, 618 (4th Cir.
1997) (statement by witness to police upon their arrival at scene that defendant was
threatening to kill her family was admissible as “description of ongoing events”); Blakey,
607 F.2d at 779, 785-86 (not error to admit statement made at most 23 minutes after event4 );


                    3
                  Here, the prearranged controlled transaction concluded at
              approximately 2:55 p.m., and the statement was made at 3:45
              p.m. App. at 507A.
                4
                  The precise timing of the statement at issue in United States
              v. Blakey (in which an extortion victim described an instance of
              defendants’ threats) was unclear. 607 F.2d 779, 785 (7th Cir.
              1979). The chronology there was as follows: the defendants left
              the victim’s store at 6:00 p.m. after threatening him, and a phone
              call was made at 6:23 p.m. In the interim, the victim was
              recorded having a lengthy conversation with another individual,
              during which he made the statement sought to be admitted. Id.
cf. Manfre, 368 F.3d at 840 (statement made after “an intervening walk or drive” following
event not admissible; “The present-sense-impression exception ... is rightfully limited to
statements made while a declarant perceives an event or immediately thereafter, and we
decline to expand it to cover a declarant's relatively recent memories.”); Hilyer v. Howat
Concrete Co., Inc., 578 F.2d 422, 426 n.7 (D.C. Cir. 1977) (excluding statement made
between 15 and 45 minutes following event). Indeed, we have previously expressed
skepticism that a statement made some 40 minutes after the fact could be properly admitted
as a present-sense impression. Mitchell, 145 F.3d at 577 (where robbery occurred between
9:00am and 9:15am and notes were found in getaway car a mile from the crime scene at
approximately 10:00am, intervening lapse was “probably too long for applicability of the
present-sense impression[,] ... which requires the statement to be made virtually
contemporaneously with the event being perceived”); see also Miller, 754 F.2d at 512
(concluding it was “not necessarily an abuse of discretion” to admit statement made “several
minutes” after the fact as excited utterance, but noting “courts have recognized that the
length of time separating the event from the statement [for admission as an excited utterance]
may be considerably longer than for statements qualifying under the present sense
impression exception of Rule 803(1)”) (emphasis added).
        Here, we need not decide the precise temporal limits of application of the present-
sense impression exception, nor whether a statement made 50 minutes after the fact could
ever be properly admitted under Rule 803(1). This is so since Brown’s statement in this case
is problematic not only because of the lengthy passage of time, but also because the statement
was only made after he had been questioned by DEA agents about the details of the
transaction the statement purports to describe. This undisputed sequence of events
affirmatively indicates that Brown made his statement after he was expressly asked to reflect
upon the events in question, and thereby fatally disqualifies the declaration for admission as
a present-sense impression. See, e.g., 4 F EDERAL E VIDENCE § 8:67, at 564 (statements made
after “significant delays – those measured in minutes or hours, especially if the speaker has
made other statements in the interim – bar resort to [Rule] 803(1)”) (emphasis added); United
States v. Narciso, 446 F. Supp. 252, 287-88 (E.D. Mich. 1977) (note written two hours after
event and in response to questions not present-sense impression because declarant “not only
had time to reflect on what had transpired [but] was intentionally encouraged to reflect on
those events before answering”). Admitting Brown’s statement under these circumstances
would directly undermine the fundamental premise behind the present-sense impression
exception – that contemporaneity ensures reliability because there is no time for deliberate


              at 785-86. There, the court found that “a relatively large amount
              of conversation” was recorded after the statement at issue. Id.
              at 786. Thus, the Seventh Circuit concluded that although the
              only outer temporal demarcation available was 23 minutes, the
              statement at issue was nevertheless likely made well within the
              23-minute span. Id.
fabrication. E.g., 4 F EDERAL E VIDENCE § 8:67, at 564 (“time for reflection [] lessen[s] or
removes[s] the assurance of trustworthiness”); 5 W EINSTEIN’S F EDERAL E VIDENCE
§ 803.03[1] (substantial contemporaneity required as to allow “little or no time for calculated
misstatement”). In short, the weight of the authorities makes plain that Brown’s statement
– made 50 minutes after perceiving the transaction, after he was searched and driven to DEA
offices, and after he was debriefed by law enforcement – was not properly admitted as a
present-sense impression.
       Nor does Special Agent Miller’s testimony corroborating the substance of Brown’s
description of the transaction otherwise render the statement admissible under Rule 803(1).
We have indicated that courts may, in certain cases, require substantiation or other indicia
of trustworthiness in addition to contemporaneity before admitting the declaration as a
present-sense impression. See In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 303
(3d Cir. 1983), rev’d on other grounds, 475 U.S. 574 (1986) (declining to admit statements
“solely on the basis of contemporaneity” because there was otherwise “reason to be
skeptical” of their substance). However, we are aware of no authority that a statement which
does not independently satisfy a hearsay exception’s prerequisites may nevertheless be
admitted based solely upon corroboration of its contents. Such a proposition would
obviously render much of the actual text of the hearsay rules completely superfluous.5


                 5
                    Furthermore, although not necessary to our decision, we
              observe that the admission of Brown’s statement may also have
              been improper under Federal Rule of Evidence 613(b), as was
              argued by Green below. Fed. R. Evid. 613(b) (“Extrinsic
              evidence of a prior inconsistent statement by a witness is not
              admissible unless the witness is afforded an opportunity to
              explain or deny the same and the opposite party is afforded an
              opportunity to interrogate the witness thereon, or the interests of
              justice otherwise require.”). Under the circumstances, the
              prosecution was entitled to question Brown about his prior
              written statement during cross-examination, see Fed. R. Evid.
              613(a) (may inquire about prior statement for impeachment
              purposes), but the rule is explicit that in order to “prove up” the
              content of the inconsistent statement, Brown must be confronted
              with it. E.g., 4 Jack B. Weinstein and Margaret A. Berger,
              W EINSTEIN’S F EDERAL E VIDENCE § 613.05[1] (2d ed. 1997)
              (extrinsic evidence of prior statement should be excluded if Rule
              613(b) requirements are not satisfied); United States v. Liefer,
              778 F.2d 1236, 1250 (7th Cir. 1985) (trial court correctly
              sustained objection to admission of prior statement when
              government did not confront witness with it). However, here
              the Government did not ask Brown about his statement while he
       Our conclusion that the admission of Brown’s prior
statement was error warrants reversal unless the error was harmless. Lippay v. Christos, 996
F.2d 1490, 1500 (3d Cir. 1993). To determine harmlessness, we must decide whether it was
highly probable that the evidentiary error substantially influenced the jury’s verdict. Gov’t
of Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976). Here, notwithstanding the
Government’s conclusory assertions to the contrary, the evidence against Green, outside of
Brown’s statement, was not overwhelming. While Special Agent Miller testified he
recognized Green as the individual briefly (and partially) depicted on the videotape, the
informant himself – the only person who was actually physically present for the transaction
– testified to the contrary. Given this conflicting testimony, the import of Brown’s prior
statement in which he contradicts his trial testimony is self-evident, and the resulting
prejudice to Green is plain. Even after taking into account Green’s reactions to watching the
videotape and his subsequent inculpatory statement under interrogation, see supra n.2, we
cannot help but harbor a “grave doubt” that the erroneous admission of the written statement
here substantially influenced the jury’s verdict. Toto, 529 F.2d at 283 (quoting Kotteakos
v. United States, 328 U.S. 750, 765 (1946)); see Lippay, 996 F.2d at 1500 (new trial
warranted where evidence pertaining to key issue in case was improperly admitted).
Accordingly, we must vacate the conviction and remand for a new trial.
III. CONCLUSION
       The District Court erred in admitting the written statement of the confidential
informant as a present-sense impression. Because this error was not harmless, we will
vacate Green’s conviction and remand the matter for a new trial.




              was on the stand, did not recall him after the statement was
              introduced through the rebuttal witness (nor was any attempt to
              do so evident on the record) for its substantive content, and the
              District Court made no determination that the statement’s
              admission was otherwise warranted in “the interests of justice.”
              Fed. R. Evid. 613(b); 4 W EINSTEIN’S F EDERAL E VIDENCE
              § 613.02[2][a] (need for full opportunity to explain prior
              statement is particularly strong where inconsistent statement
              may be admitted as substantive evidence); see also id.
              § 613.05[4][a] (“interest of justice” exception may be invoked
              if, inter alia, witness was not present to be recalled to be
              questioned about prior statement).
