2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-2-2008

USA v. Green

Precedential or Non-Precedential: Precedential

Docket No. 06-2468

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-2468

 

UNITED STATES OF AMERICA,

v.

ARTEGA GREEN,

Appellant

 

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

 

Argued June 5, 2008

BEFORE: AMBRO, CHAGARES and COWEN, Circuit

Judges

(Filed: September 2, 2008)
2

Stephen P. Patrizio, Esq. (Argued)

1500 John F. Kennedy Boulevard, Suite 1205

Two Penn Center Plaza,

Philadelphia, PA 19102

Counsel for Appellant

Robert F. Kravetz, Esq. (Argued)

Office of the United States Attorney

1007 North Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899

Counsel for Appellee

 

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. Defendant 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
 The video was first introduced, not by the Government, but 1

by defense counsel during his cross-examination of Special

Agent Hughes. The parties subsequently agreed to introduce the

video recording as a joint exhibit. 

3

Defendant’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 in which the CI 1

allegedly engaged in a drug transaction with Defendant. 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?”
4

and agreed to the buy. The only evidence introduced by the

Government in its case-in-chief directly connecting Defendant

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 Defendant. 

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, Defendant 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 Defendant’s

reactions after viewing of the video of the controlled buy;

whether the District Court erred (4) in allowing jury to review

transcripts of audio tape identifying Defendant by name; (5) in

attributing additional drug quantities to Defendant at

sentencing; and (6) in determining that the drug involved was

crack cocaine. Because we conclude that the errors as to the

admission of the CI’s statement and of references to
 Defendant devotes much of his attention to the Brady v. 2

Maryland issue on appeal. The thrust of Green’s complaint is

that the Government’s failure to disclose the extent of the

DEA’s prior encounters with him prejudiced his ability to

effectively cross-examine Special Agents Hughes and Miller on

the basis of their identifications of his voice and likeness. He

claims the prejudice inuring from this omission is evident given

the transactions that allegedly formed the basis of the agents’

familiarity with him were ones for which the District Court

rejected (upon a preponderance standard) as insufficiently

attributable to Defendant to warrant recognition as relevant

conduct at sentencing. We understand the argument. But

because this issue was not formally raised and litigated below,

we are thus unable to make the requisite materiality

determination based on the record before us. See United States

v. Bagley, 473 U.S. 667, 682-84 (1985) (relevant standard is

reasonable probability of different outcome at trial had

impeachment evidence been disclosed). 

5

Defendant’s custodial responses warrant 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, Defendant never got out of the car on the
6

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 Defendant 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 Defendant’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
7

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);
 Here, the prearranged controlled transaction concluded at 3

approximately 2:55pm, and the statement was made at 3:45pm.

App. at 507A. 

8

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 may appropriately be considered 3
 The precise timing of the statement at issue in United 4

States v. Blakey (in which an extortion victim described an

instance of defendants’ threats) was unclear. 607 F.2d 779, 785

(7th Cir. 1979). The chronology there was as follows: the

defendants left the victim’s store at 6:00pm after threatening

him, and a phone call was made at 6:23pm. In the interim, the

victim was recorded having a lengthy conversation with another

individual, during which he made the statement sought to be

admitted. Id. at 785-86. There, the court found that “a relatively

large amount of conversation” was recorded after the statement

at issue. Id. at 786. Thus, the Seventh Circuit concluded that

although the only outer temporal demarcation available was 23

minutes, the statement at issue was nevertheless likely made

well within the 23-minute span. Id. 

9

“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 779, 785-86 (not error to admit statement made at most 23

minutes after event ); cf. Manfre, 368 F.3d at 840 (statement 4

made after “an intervening walk or drive” following event not
10

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 presentsense 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
11

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 presentsense impression. 

Nor does Special Agent Miller’s testimony corroborating

the substance of Brown’s description of the transaction
 Furthermore, although not necessary to our decision, we 5

observe that the admission of Brown’s statement may also have

been improper under Federal Rule of Evidence 613(b), as was

argued by Defendant below. Fed. R. Evid. 613(b) (“Extrinsic

evidence of a prior inconsistent statement by a witness is not

admissible unless the witness is afforded an opportunity to

explain or deny the same and the opposite party is afforded an

opportunity to interrogate the witness thereon, or the interests of

justice otherwise require.”). Under the circumstances, the

prosecution was entitled to question Brown about his prior

written statement during cross-examination, see Fed. R. Evid.

613(a) (may inquire about prior statement for impeachment

purposes), but the rule is explicit that in order to “prove up” the

content of the inconsistent statement, Brown must be confronted

with it. E.g., 4 Jack B. Weinstein and Margaret A. Berger,

12

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 presentsense 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. 

5
WEINSTEIN’S FEDERAL EVIDENCE § 613.05[1] (2d ed. 1997)

(extrinsic evidence of prior statement should be excluded if Rule

613(b) requirements are not satisfied); United States v. Liefer,

778 F.2d 1236, 1250 (7th Cir. 1985) (trial court correctly

sustained objection to admission of prior statement when

government did not confront witness with it). However, here

the Government did not ask Brown about his statement while he

was on the stand, did not recall him after the statement was

introduced through the rebuttal witness (nor was any attempt to

do so evident on the record) for its substantive content, and the

District Court made no determination that the statement’s

admission was otherwise warranted in “the interests of justice.”

Fed. R. Evid. 613(b); 4 WEINSTEIN’S FEDERAL EVIDENCE

§ 613.02[2][a] (need for full opportunity to explain prior

statement is particularly strong where inconsistent statement

may be admitted as substantive evidence); see also id.

§ 613.05[4][a] (“interest of justice” exception may be invoked

if, inter alia, witness was not present to be recalled to be

questioned about prior statement).

13

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 Defendant, outside of Brown’s statement, was

not overwhelming. While Special Agent Miller testified he
 At the outset, we acknowledge that on appeal Defendant 6

frames this claim as one of prosecutorial misconduct based on

an alleged violation of his post-arrest, post-Miranda right to

silence, and only expressly objects to the prosecutor’s references

as they were made in her closing arguments. However, even a

14

recognized Defendant 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

Defendant is plain. Under the circumstances, 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. 

B.Defendant’s Responses and Statements

Next, we also consider whether the Government’s

references to Defendant’s custodial responses and statements

violated his constitutional rights. In particular, at issue is the

prosecutor’s questions and statements pertaining to the fact that

after being placed under arrest and while in DEA custody, and

after being shown a videotape which supposedly depicted him

selling drugs, Defendant widened his eyes, asked for the video

to be replayed, and then sighed and hung his head.6
cursory review of the trial record makes clear that the

constitutional violations effected here extend well beyond the

confines of Doyle v. Ohio, 426 U.S. 610 (1976), and that the

Government’s comments on Defendant’s reactions were not

limited to its summation, but rather were made during its casein-chief as well as in its opening statements. 

15

As no objections were made below, we may only review

for plain error. Fed. R. Crim. Proc. 52(b). The plain error

doctrine allows courts to correct an otherwise forfeited error

where the mistake is obvious and so prejudicially impacted the

outcome at trial such that it arises to a fundamental miscarriage

of justice. United States v. Warren, 338 F.3d 258, 260 (3d Cir.

2003); see also United States v. Olano, 507 U.S. 725, 732

(1993). Notwithstanding this demanding standard of review,

where, as here, the errors are manifest in light of decades of

well-settled Fifth Amendment and due process jurisprudence

and were not harmless beyond a reasonable doubt, we require

no further briefing to conclude that Defendant’s conviction

must be vacated on these grounds as well. See United States v.

Shaw, 701 F.2d 367, 382 n.9 (5th Cir. 1983) (comment on

defendant’s invocation of right to remain silent may arise to

plain error); United States v. Whitehead, 200 F.3d 634, 639 (9th

Cir. 2000) (admission of evidence of defendant’s post-arrest,

pre-Miranda silence “plainly infringed upon [defendant’s]

privilege against self-incrimination” and warrants reversal as

long as error affected outcome of proceeding). 

We begin with a brief recitation of the circumstances

surrounding Defendant’s prosecution. The narcotics transaction
 However, Defendant presented undisputed evidence at the 7

hearing that this capias had in fact been withdrawn as of

December 1, 2004, the day prior to Green’s arrest. But there

was no indication as to when this information was updated in the

police database. 

16

for which Green was convicted occurred in May 2002, and the

Government obtained a federal indictment against Defendant

for this act in September 2004. On December 2, 2004, Green

was arrested by DEA Special Agents Miller and Hughes. While

in custody, Defendant admitted that he had sold narcotics in the

instance depicted on the videotape that he was shown

(purportedly of the May 2002 transaction). Prior to trial, Green

sought to suppress his confession, claiming that he did not

waive his Miranda rights, but the District Court denied the

motion.

At the suppression hearing, Special Agent Hughes

testified that prior to heading out to the field to arrest Green on

December 2, 2004, he did an outstanding warrants check and

found that Green had an active capias for an unrelated state

court matter. Based on this, when Hughes arrested Green, he 7

purposefully did not identify himself as DEA, but merely said

that he was “police” and that Green was being arrested for the

state capias. Only after Green was transported to DEA offices

did Hughes inform him of the true nature of the arrest – that he

had been indicted by a federal grand jury for distribution of

narcotics. Then, after holding Green in a cell for a brief period,

Hughes took him into an interrogation room, showed him the

video, advised Green of his Miranda warnings, and then began
 There is also a suggestion in the record that this was done 8

because DEA agents had Green in custody on previous

occasions but were unable to extract any statements from him.

17

express questioning. Green subsequently waived his rights and

confessed, although no waiver form was signed. 

Remarkably, the failure to administer Miranda warnings

prior to showing Green the video was the result of a conscious

decision on the part of the DEA. As Hughes explained:

[I]t was my intention to get Mr. Green back to our

office, show him the video, and attempt to gain

his cooperation so I could identify the source of

supply ... And, quite frankly, had I said, you

know, I was DEA Special Agent Hughes and had

him out on the scene, it’s quite possible he would

have said, I want to speak to my lawyer right

away. 

App. at 59A-60A (transcript from suppression hearing).

Indeed, Hughes candidly stated that the withholding of Miranda

was his plan all along. App. at 63A-64A (“Q: Is there a reason

why when you were arresting [Green] that day ... on the street,

when you approached him, why you didn’t advise him of his

Miranda rights at that time? [Hughes]: I chose not to ... Q:

Purposely? A: Purposely ... The [] plan was not to Mirandize

Artega Green until he saw the video.”); id. at 60A (“So, yes,

[not giving the warnings until after the video] was a strategy

and a plan that I intended on utilizing upon making that

arrest.”). 

8
In particular, as the prosecutor argued to the District Court at

suppression:

I think the most telling evidence [that Defendant

voluntarily waived his Miranda rights]... is the

testimony of Agent Hughes about prior contact by

one of the officers participating in this case, in the

Mirandizing of the defendant as well as the

officer, Task Force Officer Lawrence Collins,

who had prior law enforcement contact with the

defendant in a drug investigation, Mirandized, or

was present when the defendant was Mirandized.

And the defendant, being savvy and knowing the

criminal justice system, invoked those rights.

App. at 87A. 

18

Defendant did not testify in his own defense at trial.

However, during the Government’s case-in-chief, the AUSA

was permitted to elicit from Hughes testimony as to Green’s

reactions and statements after viewing the video. In particular,

in response to the AUSA’s questions, Hughes stated:

[W]hen the defendant first viewed the video ... he

looked at it, and the defendant’s eyes kind of

widened. He looked surprised. And the next

statement was, can he see it again. And I

rewound it. Hit play again. Allowed the

defendant to see the video again ... At the

conclusion of the video, the defendant kind of

lowered his head, took like a sigh, a deep breath.
19

App. at 272A. During her closing, the AUSA argued that

Green’s reactions clearly demonstrated his admission of guilt:

[Y]ou heard Agent Hughes’ testimony when he

sat the defendant down and said I want to show

you something. When he played the video ... of

the actual drug transaction, what did the

defendant do? Well, Agent Hughes told you. His

eyes opened wide as if he were surprised. Might

you have been surprised if you were being

confronted with crack cocaine you sold two and

a half years ago? ... And what was the

defendant’s reaction after his eyes opened wide?

He asked to see the video again. Now, if you are

not the person who was caught on the video, why

would you want to see the video again? Why

would you look surprised? And more

importantly, ladies and gentlemen, why would

you do what Agent Hughes told you the

defendant did after he saw it the second time?

Why would you sit and lower your head

(indicating)? Why, if you didn’t do it? Who

cares?

...

Ask yourself, ladies and gentlemen, if you are in

a DEA office and you are being told about all

these terrible thingsthat could happen to you and

you are being confronted by a federal prosecutor

and you have seen this videotape of somebody

who looks just like you selling crack cocaine to
 As a threshold matter, we note that because Defendant did 9

not testify, there is no issue before us pertaining to whether any

such evidence may be properly used for impeachment purposes.

See Jenkins v. Anderson, 447 U.S. 231, 240 (1980) (prosecution

may use defendant’s pre-arrest, pre-custodial silence for

impeachment purposes); but cf. Doyle v. Ohio, 426 U.S. 610,

611 (1976) (impeachment use of defendant’s post-Miranda

silence violates due process). 

20

another individual, but you are innocent, what

might you say? Would you shake your head and

look surprised ... Or would you say, I didn’t do it?

App. at 555A-556A, 557A. No objection was lodged as to any

of these references. 

Notwithstanding the failure to object, the error in

allowing these questions and comments plainly rises to that of

a constitutional magnitude. Here, the issues before us are

whether the prosecution may use in its case-in-chief as

substantive evidence (1) Green’s responses and reactions upon 9

seeing the video before being advised of his Miranda rights and

(2) the statements he made subsequent to being advised of his

Miranda rights. Under the circumstances present in this case,

we conclude that it may not. 

1. Responses after viewing video

It is hornbook law that the police must advise a suspect

of his Fifth Amendment right to remain silent before initiating

a custodial interrogation. Miranda v. Arizona, 384 U.S. 436

(1966). Miranda’s protections “come into play whenever a
 Although the Supreme Court has recognized a few limited 10

exceptions to this general rule of inadmissibility, see New York

v. Quarles, 467 U.S. 649, 655-56 (1984) (public safety

exception); Harris v. New York, 401 U.S. 222, 226 (1971)

(impeachment exception where defendant testifies), none are

implicated here. 

21

person in custody is subjected to either express questioning or

its functional equivalent,” that is, “the term ‘interrogation’

under Miranda refers not only to express questioning, but also

to any words or actions on the part of the police ... that the

police should know are reasonably likely to elicit an

incriminating response.” Rhode Island v. Innis, 446 U.S. 291,

300-01 (1980). Any statements or testimonial acts made prior

to the administration and voluntarywaiver of Miranda rights are

“irrebuttably presumed involuntary” and may not be used in the

prosecution’s case-in-chief. United States v. Pacheco-Lopez,

531 F.3d 420, 424 (6th Cir. 2008) (quoting Oregon v. Elstad,

470 U.S. 298, 307 (1985)); Missouri v. Seibert, 542 U.S. 600,

608 (2004) (plurality opinion). An act is “testimonial” if it 10

“explicitly or implicitly, relate a factual assertion or disclose

information.” Doe v. United States, 487 U.S. 201, 210 (1988);

Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990); cf.

Schmerber v. California, 384 U.S. 757, 761 (1966) (physical

evidence does not implicate Fifth Amendment). 

As even the Government acknowledged during oral

argument, Green was in custody for purposes of Miranda when

he was shown the videotape. And we can hardly imagine a

more prototypical example of the “functional equivalent” of
22

interrogation than when a suspect isshown a video in which he

is depicted as engaging in a criminal act. In this case, not only

was Hughes’s action one which he should have known was

“reasonably likely to elicit an incriminating response,” Innis,

446 U.S. at 301; indeed, as was openly admitted, Hughes

showed the video with the express design that Green would

respond by incriminating himself, App. at 59A-60A. Thus, it is

clear that Green’s Miranda rights were implicated at the point

he was shown the video. 

Furthermore, in the particular context of this trial,

Hughes’ testimony about Green’s non-verbal reactions upon

viewing the video – that Green widened his eyes, lowered his

head and sighed – was plainly elicited by the Government with

the intent of arguing to the jury that these acts demonstrated

Green’s acknowledgment of guilt. And as the portions of the

trial transcript excerpted above make clear, the AUSA did

exactly this in her closing. Under these circumstances, we need

not decide whether a defendant’s acts in lowering his head and

sighing or opening his eyes wide are necessarily testimonial for

purposes of the Fifth Amendment in every instance. See United

States v. Rivera, 944 F.2d 1563, 1569 (11th Cir. 1991) (noting

in dicta the “difficult levels of gradation” between non-verbal

communicative acts and “purely physical” non-assertive

reactions). It is enough that the Government clearly presented

them as such to the jury in this case. See United States v.

Elkins, 774 F.2d 530, 538 (1st Cir. 1985) (acknowledging that

while defendant did not seem surprised by arrest or questioning

“may arguably [be] evidence of [] demeanor,” where it was

nevertheless clear that the description of defendant’s reaction

was unambiguously used at trial in a manner that “invited the
 We note that the inadmissibility of such statements is 11

generally an issue that is readily conceded by the prosecution.

See, e.g., United States v. Naranjo, 426 F.3d 221, 226 (3d Cir.

2005) (government agreed defendant’s pre-Miranda statements

could not be used at trial so only issue before court was

admissibility of post-Miranda statements); United States v.

Yamba, 407 F. Supp. 2d 703, 719 n.1 (W.D. Pa. 2006) (“The

United States conceded that the statement Yamba made before

he was Mirandized must be suppressed.”). 

23

jury to infer guilty knowledge from the [] failure to respond,

admission was error); see also Rivera, 944 F.2d at 1568-69

(dicta that government’s comment about defendant’s “deadpan”

expression during custodial interrogation upon observing

discovery of contraband in her luggage may be “constitutionally

problematic,” but declining to decide issue because error, if any,

was harmless). Here, because the DEA agents did not

administer the requisite warnings prior to showing Green the

video, the admission at trial of Green’s statements – both verbal

and non-verbal – made after seeing the video was error. Elstad,

470 U.S. at 317.11

We emphasize that the most critical aspect of this case is

that Green’s reactions here came after he was unquestionably in

custody and was subjected to the functional equivalent of

interrogation. In the context of our Fifth Amendment and due

process jurisprudence, the terms pre- and post-Miranda are

merely shorthand for the crucial inquiry of whether one’s

Miranda rights have been implicated. Indeed, that police fail to

administer warnings when they were constitutionally required to
24

do so obviously does not mean that subsequent statements (or

silence) are “pre-Miranda” for purposes of trial admissibility.

Otherwise, police could render all statements (and silence)

admissible simply by withholding the requisite warnings until

after the fact and thus circumvent Miranda entirely. See United

States v. Moore, 104 F.3d 377, 386, 385 (D.C. Cir. 1997) (no

case could logically “stand[] for the proposition ... that the

defendant’s silence can be used against him so long as he has

not received his Miranda warnings”; concluding to the contrary

“would create an incentive for arresting officers to delay

interrogation in order to create an intervening ‘silence’ that

could then be used against the defendant”). As such, although

Defendant’s statements in this case were technically and

chronologically pre-Miranda – that is, occurring before

Defendant was advised of his Miranda rights – they were not

truly of the pre-Miranda variety for purposes of the relevant

constitutional analysis since they in fact occurred after

Miranda’s safeguards were triggered and after the warnings

should have been given. Therefore, nothing more than a

straightforward application of Miranda is required in the case

before us; because Defendant’s reactions were impermissibly

compelled, their admission at trial violated due process.

Miranda, 384 U.S. at 444 (“the prosecution may not use

statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the privilege

against self-incrimination”). 

Moreover, we observe that the record before us also

amply supports the conclusion that the prosecutor commented

on Green’s silence or non-responsiveness through reference to
 The issue of whether a defendant’s pre-Miranda silence 12

may be used as substantive evidence of guilt in the prosecution’s

case-in-chief has divided the circuits. The majority hold that

such use is not constitutionally permissible. See, e.g., United

States v. Elkins, 774 F.2d 530, 538 (1st Cir. 1985) (testimony

regarding defendant’s apparent lack of surprise when arrested

and given Miranda warnings violated due process); Combs v.

Coyle, 205 F.3d 269, 283 (6th Cir. 2000) (“use of a defendant’s

25

his non-verbal reactions. App. at 557A (Government’s closing:

“[I]f you are in a DEA office ... and you are being confronted

by a federal prosecutor and you have seen this videotape of

somebody who looks just like you selling crack cocaine ... but

you are innocent, what might you say? Would you shake your

head and look surprised ... Or would you say, I didn’t do it?”)

(emphasis added). It may be that this use was also

constitutionally questionable in light of the well-settled rule that

once Miranda rights have attached, the prosecutor may not ask

the jury to draw the inference that the defendant’s subsequent

silence is inconsistent with his innocence. E.g., Griffin v.

California, 380 U.S. 609, 614-15 (1965); cf. Fletcher v. Weir,

455 U.S. 603, 606-07 (1982) (not fundamentally unfair to use

defendant’s silence for impeachment purposes where

government did not expressly induce his silence by advising of

Miranda rights). However, because we premise our decision

here on the basis that Green’s non-verbal acts were testimonial

and communicative in nature, we do not reach the distinct, but

somewhat thorny question of whether the prosecutor’s

references to Defendant’s technically pre-Miranda nonresponsiveness may separately arise to constitutional error.12
prearrest silence as substantive evidence of guilt violates the

Fifth Amendment”); United States ex rel. Savory v. Lane, 832

F.2d 1011, 1018 (7th Cir. 1987) (same); United States v.

Velarde-Gomez, 269 F.3d 1023, 1033 (9th Cir. 2001) (en banc)

(district court erred in allowing government to comment on

defendant’s post-arrest, pre-Miranda silence); United States v.

Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991) (admission

into evidence of defendant’s pre-arrest, pre-Miranda refusal to

answer questions constituted plain error); United States v.

Moore, 104 F.3d 377, 385 (D.C. Cir. 1997) (“custody and not

interrogation is the triggering mechanism for the right of pretrial

silence under Miranda”; government’s comment on post-arrest,

pre-Miranda silence was error); see also United States v. Caro,

637 F.2d 869, 876 (2d Cir. 1981) (noting in dicta “we have

found no decision permitting the use of silence, even the silence

of a suspect who has been given no Miranda warnings and is

entitled to none, as part of the Government's direct case”). But

cf. United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985)

(testimony of defendants’ pre-arrest, pre-Miranda silence

properly admitted; no fundamental unfairness in admitting

evidence of non-Miranda-induced silence); United States v.

Frazier, 408 F.3d 1102, 1111 (8th Cir. 2005) (comment on

defendant’s post-arrest, pre-Miranda silence permissible as

substantive government evidence where defendant was under no

official compulsion to speak); United States v. Rivera, 944 F.2d

1563, 1568 (11th Cir. 1991) (dicta that government may

reference defendant’s post-arrest, pre-Miranda silence without

raising constitutional questions). See also United States v.

Pando Franco, 503 F.3d 389, 396 (5th Cir. 2007) (noting circuit

26
split but declining to resolve question). 

27

2 .Subsequent confession

Given our conclusions that the showing of the video was

the functional equivalent of interrogation, and that the failure to

advise Green of his rights violated Miranda, we are thus left

with the on-the-record statement by DEA Special Agent Hughes

that this omission was the result of a deliberate and calculated

plan. Although Defendant fails to raise this issue, we are unable

to ignore the implication that this stark admission on the part of

a federal law enforcement official has on the admissibility of

Defendant’s subsequent, post-Miranda statements. See Missouri

v. Seibert, 542 U.S. 600 (2004). This is precisely the type of

error contemplated by the “plain error” standard of review.

Warren, 338 F.3d at 260 (unpreserved error which affected the

outcome of trial proceedings may be corrected on appeal where

it “seriously affects the fairness, integrity, or public reputation

of judicial proceedings”); see also United States v. Stewart, 388

F.3d 1079, 1091 (7th Cir. 2004) (remanding to district court for

Seibert determination but stating if Seibert rendered confession

inadmissible, earlier admission of confession was plain error

affecting defendant’s substantial rights). 

In Seibert, the Supreme Court considered the

constitutionality of the “question first, Mirandize later”

interrogation strategy. There, the Court held that where police

make a conscious decision to withhold Miranda until after

interrogating and obtaining a confession, all subsequent

incriminating statements, even those made after the midinterrogation provision of Miranda warnings are rendered
28

inadmissible. Seibert, 542 U.S. at 616-17; cf. Oregon v. Elstad,

470 U.S. 298, 311-14 (1985) (although defendant made

unsolicited confession at scene, police’s later Miranda warnings

given when defendant was formally in custody made

subsequent, repeated confession admissible under objective

inquiry of voluntariness). 

We have previously discussed the Seibert decision at

length in United States v. Naranjo, 426 F.3d 221 (3d Cir. 2005).

In Naranjo, federal customs agents suspected that the defendant

was involved in narcotics trafficking, and a few days into their

investigation, a number of agents converged on the suspect as he

was leaving his residence. Id. at 224. Naranjo was handcuffed,

but the agents told him that although he was not under arrest and

did not have to answer any questions, they wanted to know if he

would be willing to speak with them in any event. Id. at 224-25.

Defendant agreed to talk and incriminated himself. Id. at 255.

After a break in the questioning, however, notwithstanding the

defendant’s desire to continue speaking, the agents stopped him

and advised him of his Miranda rights; Naranjo subsequently

waived his rights and offered additional details of his criminal

involvement. Id. 

We held in Naranjo that the threshold inquiry, when

confronted with a statement challenged on “question first,

Mirandize later” grounds, 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. Id. at 231-32 (citing Seibert, 542 U.S. at 622
 As we noted in Naranjo, because Justice Kennedy’s 13

concurrence is narrower than the plurality’s opinion, his

reasoning is properly viewed as the holding of the Court. 426

F.3d at 231 (quoting Marks v. United States, 430 U.S. 188, 193

(1977)). 

29

(Kennedy, J., concurring in judgment)). Where Miranda is 13

consciously withheld, “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.” Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring). Such “curative measures” may “include an inquiry

into whether or not the defendant was informed that his/her prior

unwarned statement can not be used as evidence, although it’s

not necessary to inform the suspect of that in every instance.”

Naranjo, 426 F.3d at 232. Further, “a substantial break in time

and circumstances between the prewarning statement and the

Miranda warning may suffice in most circumstances, as it allows

the accused to distinguish the two contexts and appreciate that

the interrogation has taken a new turn.” Seibert, 542 U.S. at 622

(Kennedy, J., concurring). In determining the efficacy of the

midstream warnings (i.e., whether the belated advisement

sufficiently “cured” the taint of the initial Miranda violation),

courts may also consider the degree of overlap between the

substance of pre-warning and post-warning statements and

questions, whether the same interrogators were involved, the

level of detail of the pre-warning statements, and the extent to

which interrogators treated the post-warning questioning as a

continuation of the pre-warning session. Id. at 615 (plurality

opinion); see Stewart, 388 F.3d 1090 (if two-step interrogation
30

strategy is intentionally undertaken, “the central voluntariness

inquiry of Elstad has been replaced by a presumptive rule of

exclusion, subject to a multifactor test for change in time, place,

and circumstances from the first statement to the second”).

Because it was unclear based on the record available to the

Naranjo court whether the Miranda warnings there were omitted

as a result of a “rookie mistake” or a deliberate interrogation

strategy, we remanded the case to the district court to make the

requisite Seibert findings. Naranjo, 426 F.3d at 232. No such

ambiguity exists in this case. 

Here, DEA Special Agent Eric Hughes and Task Force

Officer Lawrence Collins arrested Defendant on the street

pursuant to a federal drug indictment but told him initially that

it was for a state warrant. This was done, at least in part, to

prevent Green from invoking his rights at the outset. App. at

59A (“And, quite frankly, had I said [] I was DEA ... and had

him out on the scene, it’s quite possible he would have said, I

want to speak to my lawyer right away.”). After arriving at

DEA offices, Defendant was taken to an interrogation room by

Hughes and Collins and only then was informed of the true

nature of his arrest. Hughes told Green “not to say anything

further,” at which point the video was played. After seeing the

video, Green made a number of verbal and non-verbal

statements which acknowledged his guilt. 

Hughes then immediately administered the Miranda

warnings, and Green allegedly waived his rights, although no

waiver form was signed. Hughes asked Green if he recognized

anyone on the video. After a long pause, Defendant shook his

head and said that he was “smoking a lot of weed back then and

just didn’t remember.” Hughes reminded Green of the evidence
 The hour and 20 minute break here occurred during the 14

post-Miranda questioning. 

31

they had against him, the severity of the charges, and repeated

the question. Defendant again gave the same response that he

did not recall. Hughes and Collins thus suspended the

questioning, moved Defendant back to a holding cell, and

sought the assistance of the AUSA assigned to the case. After

the prosecutor arrived at DEA offices approximately an hour

and 20 minutes later, Green was again taken to an interview

room and Hughes and Collins, this time accompanied by the

AUSA, resumed questioning. After all three government

officials emphasized the potential criminal penalties he was

facing, Defendant responded: “What do you want to know?”

Collins then asked Green if he had ever sold crack cocaine;

Green responded that he had done so only once, and gestured

toward the video. Defendant then told the agents the identity of

his drug source for the particular transaction. 

Because Hughes openly stated at the suppression hearing

that he intentionally refrained from advising Green of his

Miranda rights prior to showing the video, Seibert dictates that

Green’s post-Miranda statements which relate to his preMiranda admissions are presumptively inadmissible unless we

determine that the second interrogation session was carried out

under sufficiently different circumstances so as to have cured

the initial taint. Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring). In this instance, however, there was no intervening

lapse of time between the warned and unwarned interrogations.14

Cf. id. (a break between prewarning statements and advisement
32

of rights may suggest to a reasonable person that the two stages

of interrogation are distinct). All of the relevant questioning

here occurred in the same location, and with essentially the same

interrogators. The focus of the two consecutive interrogation

sessions was identical, as were the questions asked. And

although neither agent engaged in express questioning preMiranda, for purposes of our constitutional analysis, there is no

difference between showing Defendant a video of him engaging

in a criminal act and informing him of the existence of such

evidence against him. None of these undisputed facts indicate

that any sort of curative measures were undertaken in

Defendant’s case. 

On the other hand, we acknowledge that Green’s initial

pre-Miranda statements after seeing the video were not

expressly inculpatory or particularly detailed, and that the

prewarning interrogation session lasted only a few minutes.

However, Defendant’s prewarned statements, although not

express, were nevertheless implicit admissions of guilt. See

discussion supra Section II.B.1. Furthermore, in light of the fact

that the entire interrogation session at issue here was relatively

brief – not surprising given that the particular charged crime in

this case consisted solely of a single hand-to-hand drug sale –

we believe the factor of the exhaustive nature of the prewarning

questioning and of the admissions is not particularly helpful to

the sufficiency of the curative measures inquiry in this instance.

Under the unique circumstances before us, where

everything occurred in one continuous span in the same place

and with the same people, we think it unlikely that a reasonable

person in Defendant’s position would have viewed the pre- and

post-Miranda questioning as distinct episodes, nor would he
33

have thought that he had a meaningful choice in whether to

continue to make incriminating statements. See United States

v. Aguilar, 384 F.3d 520, 525 (8th Cir. 2004) (excluding

confession under Seibert). Unlike those of the vast majority of

the cases that courts have encountered in the wake of Seibert,

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. Cf. Reinert v. Larkins, 379 F.3d 76,

91 (3d Cir. 2004) (no Seibert violation where police appear to

have unintentionally neglected to administer Miranda warnings

at the outset of questioning); United States v. Yamba, 407 F.

Supp. 2d 703, 718 (W.D. Pa. 2006) (Hardiman, J.) (single

unintentional unwarned question did not taint subsequent,

warned interrogation and 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. Because we find that insufficient curative measures were

undertaken in Defendant’s case, Seibert requires the exclusion

of Green’s post-Miranda statements as well. 

3. Harmlessness

Finally, although the admission of Defendant’s pre- and

post-Miranda statements was plainly contrary to settled

constitutional principles, we may not reverse if we can

determine “beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.” Chapman v.

California, 386 U.S. 18, 24 (1967); Mitchell, 145 F.3d at 579

(Chapman applies to constitutional errors). We have little
34

trouble concluding that the error here was not harmless under

Chapman. 

Defendant’s admissions were a central part of the

Government’s case at trial. Indeed, the prosecutor highlighted

Green’s reactions and statements in her opening statement,

elicited direct testimony pertaining to their substance in the

Government’s case-in-chief, and vigorously stressed their

damaging impact at closing. Outside of these statements, the

extent of the Government’s properly admitted evidence

consisted of a two-second audio recording of a phone call, a

short video depicting the profile of the suspect engaging in a

drug transaction, and the testimony of two DEA agents that

Defendant was seen entering the location of the controlled buy,

and that it was Defendant who spoke on the tape and was caught

on the video. The defense parried with the testimony of Michael

Brown, the confidential informant involved in the controlled

transaction, that it was not Green who sold him the drugs in the

May 2002 transaction. While the Government did make some

headway during cross-examination in suggesting to the jury that

Brown was not the most convincing witness, the CI nevertheless

remained steadfast to his account of the events. Under these

circumstances, and in light of the fact that the identity of the

individual depicted in the videotape was perhaps the most hotly

contested issue at trial, we cannot imagine that Green’s

improperly admitted statements confessing to his involvement

did not impact the verdict. We thus must reverse, because the

error here was not harmless beyond a reasonable doubt. 
35

III. CONCLUSION

The District Court erred in admitting the written

statement of the confidential informant as a present-sense

impression. Additionally, the admission of Defendant’s preand post-Miranda statements violated due process, and seriously

impaired the fairness and integrity of the trial; when a

complained-of error is one of such a significant constitutional

dimension, the failure to correct it would plainly result in a

fundamental miscarriage of justice. Since none of these errors

were harmless under the relevant standards, we must therefore

vacate Green’s conviction and remand the matter for a new trial.