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District Court's errors in admitting hearsay statement as present sense impression and defendant’s un-Mirandized admissions were not harmless.

Defendant Artega Green was convicted by a jury of one count of distribution of crack cocaine, in violation of 21 U.S.C. § 841. The evidence offered by the Government at trial consisted of: (1) the testimony of two DEA agents; (2) an audio recording in which the CI called a cell phone number "associated with" Green and ordered 3 ounces of crack; and (3) a video in which the CI allegedly engaged in a drug transaction with Green. The video was of poor quality and only briefly depicted the profile of the alleged perpetrator.

Admission of CI’s Statement: The crux of the Government’s case was proving that Green was the individual captured on its audio and video evidence. It sought to do this exclusively through the testimony of the DEA agents. The CI testified as the sole defense witness and stated that Green was not the person depicted in the video. The CI also testified that the DEA agents used him before in an attempt to catch Green on video selling drugs, but that those attempts were unsuccessful and the agents were upset at the CI as a result. After the CI was excused, the Government called one of its DEA agents as a rebuttal witness and, through the agent, offered a statement that the CI purportedly made some 50 minutes following the controlled buy in question attesting that it was Green who sold him the drugs. The district court admitted the statement as a present-sense impression under Fed.R.Evid. 801(1).

On appeal, the Third Circuit, in United States v. Green, 06-2468 (3d Cir. Sept. 2, 2008), concluded that the district court erred in admitting the CI’s statement as a present-sense impression. The Court was troubled by the length of time that passed between the event and the statement, noting that it was unaware of any legal authority standing for the proposition that a 50 minute delay between the event and the statement was substantially contemporaneous. Even assuming that the 50-minute interval did not render the statement inadequately contemporaneous, however, the statement was made after the CI had been questioned by federal agents about the details of the transaction, thus disqualifying it as a present-sense impression. Further, the Court found that the error was not harmless because the evidence against Green outside of the CI’s statement was not overwhelming and the CI himself had testified, contrary to the agents, that the individual shown on the videotape was not Green.

Admission of un-Mirandized Statement: The Third Circuit also concluded that the district court erred by admitting Green’s un-Mirandized nonverbal reactions to the videotape. When DEA agents arrested Green, they told Green he was being arrested for an active state court warrant. Only after Green was transported to DEA offices was he informed of the true nature of the arrest, i.e., his indictment on a federal drug charge. Then, after holding Green in a cell for a brief period, the agents took Green into an interrogation room and showed him the video surveillance. Upon seeing the video, Green widened his eyes, asked for the video to be replayed, and then hung his head and sighed. Only after eliciting Green’s reaction to the video did the agents give Green his Miranda warnings and begin express questioning. Green subsequently waived his rights and confessed. At a suppression hearing, the agents admitted that they intentionally refrained from advising Green of his Miranda rights prior to showing him the video in order to lessen the likelihood that Green would request an attorney.

On appeal, the Third Circuit ruled that the district court erred in admitting Green’s both Green’s pre-Miranda testimonial non-verbal responses to the video and his post-Miranda confession. The Court found that there was no intervening lapse of time between the warned and unwarned interrogations, all questioning occurred at the same location with essentially the same interrogators, and the focus and questions in the respective interrogation sessions were identical. The Court also ruled that the error in admitting the statements was not harmless because the admissions were a central part of the Government’s case at trial and the other evidence in the case was not overwhelming.

Accordingly, based on the errors, the Third Circuit vacated Green’s conviction and remanded for a new trial.

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