U.S. v. Green

• Decision Date: 18 February 2009
• Docket Number: No. 06-2468.,06-2468.
• Citation: 556 F.3d 151
• Parties: UNITED STATES of America, v. Artega GREEN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

556 F.3d 151

UNITED STATES of America, v. Artega GREEN, Appellant.

No. 06-2468.

United States Court of Appeals, Third Circuit.

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.

Filed: February 18, 2009.

Stephen P. Patrizio, Esq. (Argued), Philadelphia, PA, for Appellant.

Robert F. Kravetz, Esq. (Argued), Office of the United States Attorney, Wilmington, DE, for Appellee.

Before: AMBRO, CHAGARES and COWEN, Circuit Judges.

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 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

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, 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, 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, 93 S.Ct. 1038, 35 L.Ed.2d 297 (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 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...