                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-2-2008

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Precedential or Non-Precedential: Precedential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

BEFORE: AMBRO, CHAGARES and COWEN, Circuit
Judges

               (Filed: September 2, 2008)
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. Defendant 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

                              2
       Defendant’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 CI
allegedly engaged in a drug transaction with Defendant. 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?”


  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
video recording as a joint exhibit.

                                3
and agreed to the buy. The only evidence introduced by the
Government in its case-in-chief directly connecting Defendant
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 Defendant.
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, Defendant 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 Defendant’s
reactions after viewing of the video of the controlled buy;
whether the District Court erred (4) in allowing jury to review
transcripts of audio tape identifying Defendant by name; (5) in
attributing additional drug quantities to Defendant at
sentencing; and (6) in determining that the drug involved was
crack cocaine. Because we conclude that the errors as to the
admission of the CI’s statement and of references to



                               4
Defendant’s custodial responses warrant a new trial, we do not
reach the remaining issues.2
       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.
According to Brown, Defendant never got out of the car on the


   2
      Defendant 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 Defendant 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).

                               5
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 Defendant 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 Defendant’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

                                6
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);

                                7
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



  3
    Here, the prearranged controlled transaction concluded at
approximately 2:55pm, and the statement was made at 3:45pm.
App. at 507A.

                                 8
“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 779, 785-86 (not error to admit statement made at most 23
minutes after event4 ); cf. Manfre, 368 F.3d at 840 (statement
made after “an intervening walk or drive” following event not


   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 6:00pm after threatening
him, and a phone call was made at 6:23pm. 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. 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.

                                9
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

                               10
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 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

                               11
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 Defendant 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,

                                12
       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 Defendant, outside of Brown’s statement, was
not overwhelming. While Special Agent Miller testified he


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
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).

                               13
recognized Defendant 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
Defendant is plain. Under the circumstances, 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.
       B.Defendant’s Responses and Statements
       Next, we also consider whether the Government’s
references to Defendant’s custodial responses and statements
violated his constitutional rights. In particular, at issue is the
prosecutor’s questions and statements pertaining to the fact that
after being placed under arrest and while in DEA custody, and
after being shown a videotape which supposedly depicted him
selling drugs, Defendant widened his eyes, asked for the video
to be replayed, and then sighed and hung his head.6


   6
     At the outset, we acknowledge that on appeal Defendant
frames this claim as one of prosecutorial misconduct based on
an alleged violation of his post-arrest, post-Miranda right to
silence, and only expressly objects to the prosecutor’s references
as they were made in her closing arguments. However, even a

                                14
        As no objections were made below, we may only review
for plain error. Fed. R. Crim. Proc. 52(b). The plain error
doctrine allows courts to correct an otherwise forfeited error
where the mistake is obvious and so prejudicially impacted the
outcome at trial such that it arises to a fundamental miscarriage
of justice. United States v. Warren, 338 F.3d 258, 260 (3d Cir.
2003); see also United States v. Olano, 507 U.S. 725, 732
(1993). Notwithstanding this demanding standard of review,
where, as here, the errors are manifest in light of decades of
well-settled Fifth Amendment and due process jurisprudence
and were not harmless beyond a reasonable doubt, we require
no further briefing to conclude that Defendant’s conviction
must be vacated on these grounds as well. See United States v.
Shaw, 701 F.2d 367, 382 n.9 (5th Cir. 1983) (comment on
defendant’s invocation of right to remain silent may arise to
plain error); United States v. Whitehead, 200 F.3d 634, 639 (9th
Cir. 2000) (admission of evidence of defendant’s post-arrest,
pre-Miranda silence “plainly infringed upon [defendant’s]
privilege against self-incrimination” and warrants reversal as
long as error affected outcome of proceeding).
      We begin with a brief recitation of the circumstances
surrounding Defendant’s prosecution. The narcotics transaction



cursory review of the trial record makes clear that the
constitutional violations effected here extend well beyond the
confines of Doyle v. Ohio, 426 U.S. 610 (1976), and that the
Government’s comments on Defendant’s reactions were not
limited to its summation, but rather were made during its case-
in-chief as well as in its opening statements.

                               15
for which Green was convicted occurred in May 2002, and the
Government obtained a federal indictment against Defendant
for this act in September 2004. On December 2, 2004, Green
was arrested by DEA Special Agents Miller and Hughes. While
in custody, Defendant admitted that he had sold narcotics in the
instance depicted on the videotape that he was shown
(purportedly of the May 2002 transaction). Prior to trial, Green
sought to suppress his confession, claiming that he did not
waive his Miranda rights, but the District Court denied the
motion.
        At the suppression hearing, Special Agent Hughes
testified that prior to heading out to the field to arrest Green on
December 2, 2004, he did an outstanding warrants check and
found that Green had an active capias for an unrelated state
court matter.7 Based on this, when Hughes arrested Green, he
purposefully did not identify himself as DEA, but merely said
that he was “police” and that Green was being arrested for the
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. Then, after holding Green in a cell for a brief period,
Hughes took him into an interrogation room, showed him the
video, advised Green of his Miranda warnings, and then began


  7
    However, Defendant presented undisputed evidence at the
hearing that this capias had in fact been withdrawn as of
December 1, 2004, the day prior to Green’s arrest. But there
was no indication as to when this information was updated in the
police database.

                                16
express questioning. Green subsequently waived his rights and
confessed, although no waiver form was signed.
        Remarkably, the failure to administer Miranda warnings
prior to showing Green the video was the result of a conscious
decision on the part of the DEA. As Hughes explained:
        [I]t was my intention to get Mr. Green back to our
        office, show him the video, and attempt to gain
        his cooperation so I could identify the source of
        supply ... And, quite frankly, had I said, you
        know, I was DEA Special Agent Hughes and had
        him out on the scene, it’s quite possible he would
        have said, I want to speak to my lawyer right
        away.
App. at 59A-60A (transcript from suppression hearing).
Indeed, Hughes candidly stated that the withholding of Miranda
was his plan all along. App. at 63A-64A (“Q: Is there a reason
why when you were arresting [Green] that day ... on the street,
when you approached him, why you didn’t advise him of his
Miranda rights at that time? [Hughes]: I chose not to ... Q:
Purposely? A: Purposely ... The [] plan was not to Mirandize
Artega Green until he saw the video.”); id. at 60A (“ So, yes,
[not giving the warnings until after the video] was a strategy
and a plan that I intended on utilizing upon making that
arrest.”).8


  8
      There is also a suggestion in the record that this was done
because DEA agents had Green in custody on previous
occasions but were unable to extract any statements from him.

                               17
       Defendant did not testify in his own defense at trial.
However, during the Government’s case-in-chief, the AUSA
was permitted to elicit from Hughes testimony as to Green’s
reactions and statements after viewing the video. In particular,
in response to the AUSA’s questions, Hughes stated:
       [W]hen the defendant first viewed the video ... he
       looked at it, and the defendant’s eyes kind of
       widened. He looked surprised. And the next
       statement was, can he see it again. And I
       rewound it. Hit play again. Allowed the
       defendant to see the video again ... At the
       conclusion of the video, the defendant kind of
       lowered his head, took like a sigh, a deep breath.




In particular, as the prosecutor argued to the District Court at
suppression:
       I think the most telling evidence [that Defendant
       voluntarily waived his Miranda rights]... is the
       testimony of Agent Hughes about prior contact by
       one of the officers participating in this case, in the
       Mirandizing of the defendant as well as the
       officer, Task Force Officer Lawrence Collins,
       who had prior law enforcement contact with the
       defendant in a drug investigation, Mirandized, or
       was present when the defendant was Mirandized.
       And the defendant, being savvy and knowing the
       criminal justice system, invoked those rights.
App. at 87A.

                              18
App. at 272A. During her closing, the AUSA argued that
Green’s reactions clearly demonstrated his admission of guilt:
      [Y]ou heard Agent Hughes’ testimony when he
      sat the defendant down and said I want to show
      you something. When he played the video ... of
      the actual drug transaction, what did the
      defendant do? Well, Agent Hughes told you. His
      eyes opened wide as if he were surprised. Might
      you have been surprised if you were being
      confronted with crack cocaine you sold two and
      a half years ago? ... And what was the
      defendant’s reaction after his eyes opened wide?
      He asked to see the video again. Now, if you are
      not the person who was caught on the video, why
      would you want to see the video again? Why
      would you look surprised?             And more
      importantly, ladies and gentlemen, why would
      you do what Agent Hughes told you the
      defendant did after he saw it the second time?
      Why would you sit and lower your head
      (indicating)? Why, if you didn’t do it? Who
      cares?
                              ...
      Ask yourself, ladies and gentlemen, if you are in
      a DEA office and you are being told about all
      these terrible things that could happen to you and
      you are being confronted by a federal prosecutor
      and you have seen this videotape of somebody
      who looks just like you selling crack cocaine to

                             19
       another individual, but you are innocent, what
       might you say? Would you shake your head and
       look surprised ... Or would you say, I didn’t do it?
App. at 555A-556A, 557A. No objection was lodged as to any
of these references.
       Notwithstanding the failure to object, the error in
allowing these questions and comments plainly rises to that of
a constitutional magnitude. Here, the issues before us are
whether the prosecution may use in its case-in-chief as
substantive evidence9 (1) Green’s responses and reactions upon
seeing the video before being advised of his Miranda rights and
(2) the statements he made subsequent to being advised of his
Miranda rights. Under the circumstances present in this case,
we conclude that it may not.
              1. Responses after viewing video
       It is hornbook law that the police must advise a suspect
of his Fifth Amendment right to remain silent before initiating
a custodial interrogation. Miranda v. Arizona, 384 U.S. 436
(1966). Miranda’s protections “come into play whenever a


  9
     As a threshold matter, we note that because Defendant did
not testify, there is no issue before us pertaining to whether any
such evidence may be properly used for impeachment purposes.
See Jenkins v. Anderson, 447 U.S. 231, 240 (1980) (prosecution
may use defendant’s pre-arrest, pre-custodial silence for
impeachment purposes); but cf. Doyle v. Ohio, 426 U.S. 610,
611 (1976) (impeachment use of defendant’s post-Miranda
silence violates due process).

                               20
person in custody is subjected to either express questioning or
its functional equivalent,” that is, “the term ‘interrogation’
under Miranda refers not only to express questioning, but also
to any words or actions on the part of the police ... that the
police should know are reasonably likely to elicit an
incriminating response.” Rhode Island v. Innis, 446 U.S. 291,
300-01 (1980). Any statements or testimonial acts made prior
to the administration and voluntary waiver of Miranda rights are
“irrebuttably presumed involuntary” and may not be used in the
prosecution’s case-in-chief. United States v. Pacheco-Lopez,
531 F.3d 420, 424 (6th Cir. 2008) (quoting Oregon v. Elstad,
470 U.S. 298, 307 (1985)); Missouri v. Seibert, 542 U.S. 600,
608 (2004) (plurality opinion).10 An act is “testimonial” if it
“explicitly or implicitly, relate a factual assertion or disclose
information.” Doe v. United States, 487 U.S. 201, 210 (1988);
Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990); cf.
Schmerber v. California, 384 U.S. 757, 761 (1966) (physical
evidence does not implicate Fifth Amendment).
      As even the Government acknowledged during oral
argument, Green was in custody for purposes of Miranda when
he was shown the videotape. And we can hardly imagine a
more prototypical example of the “functional equivalent” of


  10
    Although the Supreme Court has recognized a few limited
exceptions to this general rule of inadmissibility, see New York
v. Quarles, 467 U.S. 649, 655-56 (1984) (public safety
exception); Harris v. New York, 401 U.S. 222, 226 (1971)
(impeachment exception where defendant testifies), none are
implicated here.

                               21
interrogation than when a suspect is shown a video in which he
is depicted as engaging in a criminal act. In this case, not only
was Hughes’s action one which he should have known was
“reasonably likely to elicit an incriminating response,” Innis,
446 U.S. at 301; indeed, as was openly admitted, Hughes
showed the video with the express design that Green would
respond by incriminating himself, App. at 59A-60A. Thus, it is
clear that Green’s Miranda rights were implicated at the point
he was shown the video.
        Furthermore, in the particular context of this trial,
Hughes’ testimony about Green’s non-verbal reactions upon
viewing the video – that Green widened his eyes, lowered his
head and sighed – was plainly elicited by the Government with
the intent of arguing to the jury that these acts demonstrated
Green’s acknowledgment of guilt. And as the portions of the
trial transcript excerpted above make clear, the AUSA did
exactly this in her closing. Under these circumstances, we need
not decide whether a defendant’s acts in lowering his head and
sighing or opening his eyes wide are necessarily testimonial for
purposes of the Fifth Amendment in every instance. See United
States v. Rivera, 944 F.2d 1563, 1569 (11th Cir. 1991) (noting
in dicta the “difficult levels of gradation” between non-verbal
communicative acts and “purely physical” non-assertive
reactions). I t is enough that the Government clearly presented
them as such to the jury in this case. See United States v.
Elkins, 774 F.2d 530, 538 (1st Cir. 1985) (acknowledging that
while defendant did not seem surprised by arrest or questioning
“may arguably [be] evidence of [] demeanor,” where it was
nevertheless clear that the description of defendant’s reaction
was unambiguously used at trial in a manner that “invited the

                               22
jury to infer guilty knowledge from the [] failure to respond,
admission was error); see also Rivera, 944 F.2d at 1568-69
(dicta that government’s comment about defendant’s “deadpan”
expression during custodial interrogation upon observing
discovery of contraband in her luggage may be “constitutionally
problematic,” but declining to decide issue because error, if any,
was harmless). Here, because the DEA agents did not
administer the requisite warnings prior to showing Green the
video, the admission at trial of Green’s statements – both verbal
and non-verbal – made after seeing the video was error. Elstad,
470 U.S. at 317.11
       We emphasize that the most critical aspect of this case is
that Green’s reactions here came after he was unquestionably in
custody and was subjected to the functional equivalent of
interrogation. In the context of our Fifth Amendment and due
process jurisprudence, the terms pre- and post-Miranda are
merely shorthand for the crucial inquiry of whether one’s
Miranda rights have been implicated. Indeed, that police fail to
administer warnings when they were constitutionally required to



   11
       We note that the inadmissibility of such statements is
generally an issue that is readily conceded by the prosecution.
See, e.g., United States v. Naranjo, 426 F.3d 221, 226 (3d Cir.
2005) (government agreed defendant’s pre-Miranda statements
could not be used at trial so only issue before court was
admissibility of post-Miranda statements); United States v.
Yamba, 407 F. Supp. 2d 703, 719 n.1 (W.D. Pa. 2006) (“The
United States conceded that the statement Yamba made before
he was Mirandized must be suppressed.”).

                               23
do so obviously does not mean that subsequent statements (or
silence) are “pre-Miranda” for purposes of trial admissibility.
Otherwise, police could render all statements (and silence)
admissible simply by withholding the requisite warnings until
after the fact and thus circumvent Miranda entirely. See United
States v. Moore, 104 F.3d 377, 386, 385 (D.C. Cir. 1997) (no
case could logically “stand[] for the proposition ... that the
defendant’s silence can be used against him so long as he has
not received his Miranda warnings”; concluding to the contrary
“would create an incentive for arresting officers to delay
interrogation in order to create an intervening ‘silence’ that
could then be used against the defendant”). As such, although
Defendant’s statements in this case were technically and
chronologically pre-Miranda – that is, occurring before
Defendant was advised of his Miranda rights – they were not
truly of the pre-Miranda variety for purposes of the relevant
constitutional analysis since they in fact occurred after
Miranda’s safeguards were triggered and after the warnings
should have been given. Therefore, nothing more than a
straightforward application of Miranda is required in the case
before us; because Defendant’s reactions were impermissibly
compelled, their admission at trial violated due process.
Miranda, 384 U.S. at 444 (“the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure the privilege
against self-incrimination”).
       Moreover, we observe that the record before us also
amply supports the conclusion that the prosecutor commented
on Green’s silence or non-responsiveness through reference to

                               24
his non-verbal reactions. App. at 557A (Government’s closing:
“[I]f you are in a DEA office ... and you are being confronted
by a federal prosecutor and you have seen this videotape of
somebody who looks just like you selling crack cocaine ... but
you are innocent, what might you say? Would you shake your
head and look surprised ... Or would you say, I didn’t do it?”)
(emphasis added). It may be that this use was also
constitutionally questionable in light of the well-settled rule that
once Miranda rights have attached, the prosecutor may not ask
the jury to draw the inference that the defendant’s subsequent
silence is inconsistent with his innocence. E.g., Griffin v.
California, 380 U.S. 609, 614-15 (1965); cf. Fletcher v. Weir,
455 U.S. 603, 606-07 (1982) (not fundamentally unfair to use
defendant’s silence for impeachment purposes where
government did not expressly induce his silence by advising of
Miranda rights). However, because we premise our decision
here on the basis that Green’s non-verbal acts were testimonial
and communicative in nature, we do not reach the distinct, but
somewhat thorny question of whether the prosecutor’s
references to Defendant’s technically pre-Miranda non-
responsiveness may separately arise to constitutional error.12


   12
      The issue of whether a defendant’s pre-Miranda silence
may be used as substantive evidence of guilt in the prosecution’s
case-in-chief has divided the circuits. The majority hold that
such use is not constitutionally permissible. See, e.g., United
States v. Elkins, 774 F.2d 530, 538 (1st Cir. 1985) (testimony
regarding defendant’s apparent lack of surprise when arrested
and given Miranda warnings violated due process); Combs v.
Coyle, 205 F.3d 269, 283 (6th Cir. 2000) (“use of a defendant’s

                                25
prearrest silence as substantive evidence of guilt violates the
Fifth Amendment”); United States ex rel. Savory v. Lane, 832
F.2d 1011, 1018 (7th Cir. 1987) (same); United States v.
Velarde-Gomez, 269 F.3d 1023, 1033 (9th Cir. 2001) (en banc)
(district court erred in allowing government to comment on
defendant’s post-arrest, pre-Miranda silence); United States v.
Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991) (admission
into evidence of defendant’s pre-arrest, pre-Miranda refusal to
answer questions constituted plain error); United States v.
Moore, 104 F.3d 377, 385 (D.C. Cir. 1997) (“custody and not
interrogation is the triggering mechanism for the right of pretrial
silence under Miranda”; government’s comment on post-arrest,
pre-Miranda silence was error); see also United States v. Caro,
637 F.2d 869, 876 (2d Cir. 1981) (noting in dicta “we have
found no decision permitting the use of silence, even the silence
of a suspect who has been given no Miranda warnings and is
entitled to none, as part of the Government's direct case”). But
cf. United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985)
(testimony of defendants’ pre-arrest, pre-Miranda silence
properly admitted; no fundamental unfairness in admitting
evidence of non-Miranda-induced silence); United States v.
Frazier, 408 F.3d 1102, 1111 (8th Cir. 2005) (comment on
defendant’s post-arrest, pre-Miranda silence permissible as
substantive government evidence where defendant was under no
official compulsion to speak); United States v. Rivera, 944 F.2d
1563, 1568 (11th Cir. 1991) (dicta that government may
reference defendant’s post-arrest, pre-Miranda silence without
raising constitutional questions). See also United States v.
Pando Franco, 503 F.3d 389, 396 (5th Cir. 2007) (noting circuit

                                26
              2 .Subsequent confession
        Given our conclusions that the showing of the video was
the functional equivalent of interrogation, and that the failure to
advise Green of his rights violated Miranda, we are thus left
with the on-the-record statement by DEA Special Agent Hughes
that this omission was the result of a deliberate and calculated
plan. Although Defendant fails to raise this issue, we are unable
to ignore the implication that this stark admission on the part of
a federal law enforcement official has on the admissibility of
Defendant’s subsequent, post-Miranda statements. See Missouri
v. Seibert, 542 U.S. 600 (2004). This is precisely the type of
error contemplated by the “plain error” standard of review.
Warren, 338 F.3d at 260 (unpreserved error which affected the
outcome of trial proceedings may be corrected on appeal where
it “seriously affects the fairness, integrity, or public reputation
of judicial proceedings”); see also United States v. Stewart, 388
F.3d 1079, 1091 (7th Cir. 2004) (remanding to district court for
Seibert determination but stating if Seibert rendered confession
inadmissible, earlier admission of confession was plain error
affecting defendant’s substantial rights).
       In Seibert, the Supreme Court considered the
constitutionality of the “question first, Mirandize later”
interrogation strategy. There, the Court held that where police
make a conscious decision to withhold Miranda until after
interrogating and obtaining a confession, all subsequent
incriminating statements, even those made after the mid-
interrogation provision of Miranda warnings are rendered


split but declining to resolve question).

                                27
inadmissible. Seibert, 542 U.S. at 616-17; cf. Oregon v. Elstad,
470 U.S. 298, 311-14 (1985) (although defendant made
unsolicited confession at scene, police’s later Miranda warnings
given when defendant was formally in custody made
subsequent, repeated confession admissible under objective
inquiry of voluntariness).
        We have previously discussed the Seibert decision at
length in United States v. Naranjo, 426 F.3d 221 (3d Cir. 2005).
In Naranjo, federal customs agents suspected that the defendant
was involved in narcotics trafficking, and a few days into their
investigation, a number of agents converged on the suspect as he
was leaving his residence. Id. at 224. Naranjo was handcuffed,
but the agents told him that although he was not under arrest and
did not have to answer any questions, they wanted to know if he
would be willing to speak with them in any event. Id. at 224-25.
Defendant agreed to talk and incriminated himself. Id. at 255.
After a break in the questioning, however, notwithstanding the
defendant’s desire to continue speaking, the agents stopped him
and advised him of his Miranda rights; Naranjo subsequently
waived his rights and offered additional details of his criminal
involvement. Id.
       We held in Naranjo that the threshold inquiry, when
confronted with a statement challenged on “question first,
Mirandize later” grounds, is whether the timing of the Miranda
warning was the product of a deliberate law enforcement tactic
to withhold the requisite warnings at the commencement of
questioning. Id. at 231-32 (citing Seibert, 542 U.S. at 622




                               28
(Kennedy, J., concurring in judgment)).13 Where Miranda is
consciously withheld, “postwarning statements that are related
to the substance of prewarning statements must be excluded
unless curative measures are taken before the postwarning
statement is made.” Seibert, 542 U.S. at 622 (Kennedy, J.,
concurring). Such “curative measures” may “include an inquiry
into whether or not the defendant was informed that his/her prior
unwarned statement can not be used as evidence, although it’s
not necessary to inform the suspect of that in every instance.”
Naranjo, 426 F.3d at 232. Further, “a substantial break in time
and circumstances between the prewarning statement and the
Miranda warning may suffice in most circumstances, as it allows
the accused to distinguish the two contexts and appreciate that
the interrogation has taken a new turn.” Seibert, 542 U.S. at 622
(Kennedy, J., concurring). In determining the efficacy of the
midstream warnings (i.e., whether the belated advisement
sufficiently “cured” the taint of the initial Miranda violation),
courts may also consider the degree of overlap between the
substance of pre-warning and post-warning statements and
questions, whether the same interrogators were involved, the
level of detail of the pre-warning statements, and the extent to
which interrogators treated the post-warning questioning as a
continuation of the pre-warning session. Id. at 615 (plurality
opinion); see Stewart, 388 F.3d 1090 (if two-step interrogation


    13
        As we noted in Naranjo, because Justice Kennedy’s
concurrence is narrower than the plurality’s opinion, his
reasoning is properly viewed as the holding of the Court. 426
F.3d at 231 (quoting Marks v. United States, 430 U.S. 188, 193
(1977)).

                               29
strategy is intentionally undertaken, “the central voluntariness
inquiry of Elstad has been replaced by a presumptive rule of
exclusion, subject to a multifactor test for change in time, place,
and circumstances from the first statement to the second”).
Because it was unclear based on the record available to the
Naranjo court whether the Miranda warnings there were omitted
as a result of a “rookie mistake” or a deliberate interrogation
strategy, we remanded the case to the district court to make the
requisite Seibert findings. Naranjo, 426 F.3d at 232. No such
ambiguity exists in this case.
       Here, DEA Special Agent Eric Hughes and Task Force
Officer Lawrence Collins arrested Defendant on the street
pursuant to a federal drug indictment but told him initially that
it was for a state warrant. This was done, at least in part, to
prevent Green from invoking his rights at the outset. App. at
59A (“And, quite frankly, had I said [] I was DEA ... and had
him out on the scene, it’s quite possible he would have said, I
want to speak to my lawyer right away.”). After arriving at
DEA offices, Defendant was taken to an interrogation room by
Hughes and Collins and only then was informed of the true
nature of his arrest. Hughes told Green “not to say anything
further,” at which point the video was played. After seeing the
video, Green made a number of verbal and non-verbal
statements which acknowledged his guilt.
        Hughes then immediately administered the Miranda
warnings, and Green allegedly waived his rights, although no
waiver form was signed. Hughes asked Green if he recognized
anyone on the video. After a long pause, Defendant shook his
head and said that he was “smoking a lot of weed back then and
just didn’t remember.” Hughes reminded Green of the evidence

                                30
they had against him, the severity of the charges, and repeated
the question. Defendant again gave the same response that he
did not recall. Hughes and Collins thus suspended the
questioning, moved Defendant back to a holding cell, and
sought the assistance of the AUSA assigned to the case. After
the prosecutor arrived at DEA offices approximately an hour
and 20 minutes later, Green was again taken to an interview
room and Hughes and Collins, this time accompanied by the
AUSA, resumed questioning. After all three government
officials emphasized the potential criminal penalties he was
facing, Defendant responded: “What do you want to know?”
Collins then asked Green if he had ever sold crack cocaine;
Green responded that he had done so only once, and gestured
toward the video. Defendant then told the agents the identity of
his drug source for the particular transaction.
        Because Hughes openly stated at the suppression hearing
that he intentionally refrained from advising Green of his
Miranda rights prior to showing the video, Seibert dictates that
Green’s post-Miranda statements which relate to his pre-
Miranda admissions are presumptively inadmissible unless we
determine that the second interrogation session was carried out
under sufficiently different circumstances so as to have cured
the initial taint. Seibert, 542 U.S. at 622 (Kennedy, J.,
concurring). In this instance, however, there was no intervening
lapse of time between the warned and unwarned interrogations.14
Cf. id. (a break between prewarning statements and advisement



   14
     The hour and 20 minute break here occurred during the
post-Miranda questioning.

                              31
of rights may suggest to a reasonable person that the two stages
of interrogation are distinct). All of the relevant questioning
here occurred in the same location, and with essentially the same
interrogators. The focus of the two consecutive interrogation
sessions was identical, as were the questions asked. And
although neither agent engaged in express questioning pre-
Miranda, for purposes of our constitutional analysis, there is no
difference between showing Defendant a video of him engaging
in a criminal act and informing him of the existence of such
evidence against him. None of these undisputed facts indicate
that any sort of curative measures were undertaken in
Defendant’s case.
        On the other hand, we acknowledge that Green’s initial
pre-Miranda statements after seeing the video were not
expressly inculpatory or particularly detailed, and that the
prewarning interrogation session lasted only a few minutes.
However, Defendant’s prewarned statements, although not
express, were nevertheless implicit admissions of guilt. See
discussion supra Section II.B.1. Furthermore, in light of the fact
that the entire interrogation session at issue here was relatively
brief – not surprising given that the particular charged crime in
this case consisted solely of a single hand-to-hand drug sale –
we believe the factor of the exhaustive nature of the prewarning
questioning and of the admissions is not particularly helpful to
the sufficiency of the curative measures inquiry in this instance.
       Under the unique circumstances before us, where
everything occurred in one continuous span in the same place
and with the same people, we think it unlikely that a reasonable
person in Defendant’s position would have viewed the pre- and
post-Miranda questioning as distinct episodes, nor would he

                               32
have thought that he had a meaningful choice in whether to
continue to make incriminating statements. See United States
v. Aguilar, 384 F.3d 520, 525 (8th Cir. 2004) (excluding
confession under Seibert). Unlike those of the vast majority of
the cases that courts have encountered in the wake of Seibert,
the record in this case is unambiguous that the initial violation
of Miranda was not merely hapless or inadvertent, but rather
was “an intentional withholding that was part of a larger,
nefarious plot” to prevent Defendant from invoking his rights so
as to gain his confession. Cf. Reinert v. Larkins, 379 F.3d 76,
91 (3d Cir. 2004) (no Seibert violation where police appear to
have unintentionally neglected to administer Miranda warnings
at the outset of questioning); United States v. Yamba, 407 F.
Supp. 2d 703, 718 (W.D. Pa. 2006) (Hardiman, J.) (single
unintentional unwarned question did not taint subsequent,
warned interrogation and confession). This dangerous practice
is precisely the type of systematic circumvention of Miranda that
the Supreme Court sought to root out in Seibert, and we must
thus decline to countenance these highly irregular procedures
here. Because we find that insufficient curative measures were
undertaken in Defendant’s case, Seibert requires the exclusion
of Green’s post-Miranda statements as well.
              3. Harmlessness
       Finally, although the admission of Defendant’s pre- and
post-Miranda statements was plainly contrary to settled
constitutional principles, we may not reverse if we can
determine “beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.” Chapman v.
California, 386 U.S. 18, 24 (1967); Mitchell, 145 F.3d at 579
(Chapman applies to constitutional errors). We have little

                               33
trouble concluding that the error here was not harmless under
Chapman.
        Defendant’s admissions were a central part of the
Government’s case at trial. Indeed, the prosecutor highlighted
Green’s reactions and statements in her opening statement,
elicited direct testimony pertaining to their substance in the
Government’s case-in-chief, and vigorously stressed their
damaging impact at closing. Outside of these statements, the
extent of the Government’s properly admitted evidence
consisted of a two-second audio recording of a phone call, a
short video depicting the profile of the suspect engaging in a
drug transaction, and the testimony of two DEA agents that
Defendant was seen entering the location of the controlled buy,
and that it was Defendant who spoke on the tape and was caught
on the video. The defense parried with the testimony of Michael
Brown, the confidential informant involved in the controlled
transaction, that it was not Green who sold him the drugs in the
May 2002 transaction. While the Government did make some
headway during cross-examination in suggesting to the jury that
Brown was not the most convincing witness, the CI nevertheless
remained steadfast to his account of the events. Under these
circumstances, and in light of the fact that the identity of the
individual depicted in the videotape was perhaps the most hotly
contested issue at trial, we cannot imagine that Green’s
improperly admitted statements confessing to his involvement
did not impact the verdict. We thus must reverse, because the
error here was not harmless beyond a reasonable doubt.




                              34
III. CONCLUSION
       The District Court erred in admitting the written
statement of the confidential informant as a present-sense
impression. Additionally, the admission of Defendant’s pre-
and post-Miranda statements violated due process, and seriously
impaired the fairness and integrity of the trial; when a
complained-of error is one of such a significant constitutional
dimension, the failure to correct it would plainly result in a
fundamental miscarriage of justice. Since none of these errors
were harmless under the relevant standards, we must therefore
vacate Green’s conviction and remand the matter for a new trial.




                              35
