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.
The opinion of the court was delivered by: Cowen, Circuit Judge.
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.
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 video*fn1 in which 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.
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 ...