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United States v. Green


February 18, 2009


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.


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.



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.


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 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.*fn2

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, 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, orimmediately 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, WEINSTEIN'S FEDERAL EVIDENCE § 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 WEINSTEIN'S FEDERAL EVIDENCE § 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, FEDERAL EVIDENCE § 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 FEDERAL EVIDENCE § 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 fact*fn3 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 event*fn4 ); 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 FEDERAL EVIDENCE § 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 FEDERAL EVIDENCE § 8:67, at 564 ("time for reflection [] lessen[s] or removes[s] the assurance of trustworthiness"); 5 WEINSTEIN'S FEDERAL EVIDENCE § 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.*fn5

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.


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.

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