Monday, February 23, 2009

Conviction Reversed for Erroneous Hearsay Admission; Court Holds Miranda Issue for Another Day

Held: Out-of-court statement by confidential informant that defendant was the person who sold him the drugs in question, made 50 minutes after event, was not admissible as a present sense impression under Rule 803(1) because it was not sufficiently contemporaneous and was made only after questioning by DEA agents.

After reversing a crack conviction but then vacating its decision on the government’s petition for rehearing, the original panel reversed again in a new opinion filed February 18 in United States v. Green, No. 06-2468, available here: http://www.ca3.uscourts.gov/opinarch/062468p1.pdf. Unfortunately, the new decision comes down without the Court’s previous finding of reversible Miranda error in what the government had called a "widely-used" interrogation tactic of presenting evidence to a suspect before reading the warnings. Instead, it relies exclusively on the erroneous admission of an informant’s prior out-of-court statement under the present sense impression exception to the hearsay rule.

The extended history of the case nonetheless underscores that counsel should be sure to challenge under Missouri v. Seibert, 542 U.S. 600 (2004), the admission of any post-Miranda statement that may have resulted from authorities’ confrontation of the defendant with evidence before administering the warnings. Given indications in the new Green decision that the court was troubled the issue had been waived, it is critical that these challenges not await appeal.

Artega Green was convicted of selling more than 50 grams of crack cocaine and sentenced to 151 months in prison. The government sought to have a confidential informant testify that Mr. Green was the individual with whom the informant appeared on a grainy video of the transaction. In a "rather dramatic turn of events," however, the informant said the video showed someone else entirely. Through a DEA agent, the government subsequently admitted as substantive evidence the informant’s prior statement identifying Mr. Green as the person who sold him drugs in the transaction charged in the indictment.

The court held the prior statement’s admission to be reversible error. The opinion reminds that the exception for "present sense impressions" requires "substantial contemporaneity of event and statement" so that "there is no time for deliberate fabrication" on the part of the declarant. This could not be said of the informant’s statement, the erroneous admission of which had likewise been identified in the court’s original opinion as an alternative ground for reversal.

The prosecution also admitted Mr. Green’s own statements before and after receiving Miranda warnings. Before the warnings, an agent sat Mr. Green in an interrogation room, advised him to say nothing, and played the video for him to watch. "The plan," the agent testified, "was not to Mirandize Artega Green until he saw the video." Otherwise, "it’s quite possible he would have said, I want to speak to my lawyer right away."

From the agent’s perspective, the plan worked. He described Mr. Green’s reaction in what might be mistaken for a clinical diagnosis: his "eyes kind of widened. He looked surprised. And the next statement was, can he see it again.… At the conclusion of the [second playing], the defendant kind of lowered his head, took like a sigh, a deep breath." He and another agent then read Mr. Green his rights and attempted to elicit a confession. When he stayed mum, they put him in a holding cell for more than an hour and then returned with an AUSA. After further prodding, Mr. Green stated that he had sold crack "only once, and gestured toward the video."

The panel’s original decision scrutinized the DEA’s "question first, Mirandize later" tactic and found it constitutionally wanting. Under Missouri v. Seibert and United States v. Naranjo, 426 F.3d 221 (3d Cir. 2005), the "threshold inquiry … 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." If so, then "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." The decision concluded in strong language that neither Mr. Green’s pre- nor post-Miranda statements should have been admitted. 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.… 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."

In its petition for rehearing and rehearing en banc, the United States argued that the decision established "a holding that is of considerable importance to law enforcement" because it "would invalidate the police practice of truthfully advising a suspect of the evidence against him after arrest, but before Miranda warnings are given." Separately, the government urged that the court was not free to reach the issue at all because Mr. Green had not specifically moved to suppress the post-Miranda statement under Seibert. Relying on the court of appeals’ decision in United States v. Rose, 538 F.3d 175 (3d Cir. 2008), the government argued that the failure to raise the issue via suppression motion waived its review on appeal even under a plain error standard.

In its new opinion, the court excised the Miranda/Seibert discussion. In a footnote, it explained that "the Government arguably violated Green’s rights under the Fifth Amendment and the Miranda doctrine," but that the hearsay error meant it "need not reach such constitutional issues at the present time." The court also took note of the government’s waiver argument but likewise stated that the alternative holding foreclosed any need to address the government’s contention "that Federal Rule of Criminal Procedure 12(e) and this Court’s recent ruling in United States v. Rose … prevent us from conducting a plain error review of these Miranda-related issues."

The panel’s excision of its earlier Miranda discussion despite apparently continuing concerns about the DEA’s tactics is a clear message that counsel should be on the lookout for Seibert claims and careful to raise them expressly by suppression motion.

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