## Facts

- Artega Green was charged with distributing more than 50 grams of cocaine base in violation of 21 U.S.C. § 841 based on a May 14, 2002 controlled buy arranged by federal agents using confidential informant Michael Brown.
- The government’s case-in-chief relied on: (1) agent testimony; (2) a brief recorded phone call placing the order to a number associated with Green; and (3) a low-quality video of the transaction in which the alleged seller was only briefly shown in profile.
- Agents testified they recognized Green’s voice on the audio and Green’s image on the video and that they observed Green arrive and enter the premises connected to the sale.
- Brown testified for the defense and stated that Green was not the person who sold him the drugs shown on the video, making identity the central disputed fact.
- In rebuttal, the government elicited testimony from an agent that Brown, about 50 minutes after the buy and back at the DEA office, stated that Green was the seller.
- Over objection, the district court admitted Brown’s out-of-court identification as substantive evidence under Federal Rule of Evidence 803(1) (present sense impression).
- A jury convicted Green, and the district court sentenced him to 151 months’ imprisonment.

## Issues

1. Whether Brown’s out-of-court identification of Green, made about 50 minutes after the controlled buy, qualified as a present sense impression under Federal Rule of Evidence 803(1).
2. If the statement was improperly admitted, whether the error was harmless given the remaining identification evidence.

## Decision

- The Third Circuit held that Brown’s statement did not satisfy Rule 803(1)’s requirement that the statement be made while perceiving the event or “immediately thereafter.”
- The court concluded that a 50-minute lapse was not sufficiently contemporaneous to support admission under the present sense impression exception.
- The court determined the admission of the statement as substantive evidence was not harmless because identity was central and the remaining proof of identity was comparatively weak.
- The conviction was vacated and the case remanded for a new trial.

## Legal Principles

- Federal Rule of Evidence 803(1) admits statements describing or explaining an event only if made during perception of the event or immediately after; the exception requires substantial contemporaneity to reduce risks of fabrication and memory error.
- No fixed time limit governs Rule 803(1), but a substantial delay—such as approximately 50 minutes—does not satisfy “immediately thereafter” absent circumstances showing near-contemporaneous narration.
- Courts may not use Rule 803(1) as a substitute method to admit a witness’s prior inconsistent statement as substantive evidence when the temporal requirement is not met.
- An evidentiary error warrants reversal when it likely affected the verdict, particularly where the improperly admitted evidence bears directly on the central disputed issue.

## Conclusion

The Third Circuit ordered a new trial because the district court improperly admitted a confidential informant’s identification made roughly 50 minutes after the transaction as a present sense impression, and the resulting error was prejudicial in a case turning on the seller’s identity.


United States v. Green, 556 F.3d 151 (3d Cir. 2009)