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United States v. Green,
No. 06-2468 (3rd Cir., September 2, 2008): 1. Hearsay; 2. Interrogations/Fifth Amendment: Green was convicted by jury of one count of Distribution of More Than 50 Grams of Cocaine Base and sentenced to 151 months. REVERSED on the basis of the admission of a prior statement of a CI that was introduced as a "present sense impression" under Rule 803(1). The panel reversed on another basis as well, the fact that the government made reference to Green's custodial responses. "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." The panel viewed the actions of the agent of showing Green the tape as the functional equivalent of an interrogation. Notably, the DEA Agent testified that he intentionally did not read Miranda prior to showing Green the tape because he was concerned that Green might ask for a lawyer. NOTE: The Miranda issue is a plain error winner.
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