throbber
FILED
`United States Court of Appeals
`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 1
`Tenth Circuit
`May 27, 2022
`Christopher M. Wolpert
`Clerk of Court
`UNITED STATES COURT OF APPEALS
`
`PUBLISH
`
`TENTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`
`Plaintiff - Appellee,
`
`v.
`
`DEVONTE JEMELL STARKS,
`
`Defendant - Appellant.
`
`No. 19-3256
`
`Appeal from the United States District Court
`for the District of Kansas
`(D.C. No. 5:18-CR-40105-JTM)
`
`Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal
`Public Defender, with her on the briefs), Office of the Kansas Federal Public
`Defender, Topeka, Kansas, for Defendant-Appellant.
`
`James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting
`United States Attorney, with him on the brief), Office of the United States
`Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.
`
`Before HOLMES, Circuit Judge, LUCERO, Senior Circuit Judge, and
`PHILLIPS, Circuit Judge.
`
`HOLMES, Circuit Judge.
`
`

`

`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 2
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`Devonte Starks appeals from his convictions for possession with intent to
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`distribute fentanyl and possession with intent to distribute heroin. The central
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`question that we must address is whether Mr. Starks’s conviction can be upheld
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`after the government advised the jury in its closing argument that Mr. Starks’s
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`right to be presumed innocent no longer existed after the presentation of the trial
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`evidence (i.e., the “presumption-of-innocence advisement”). Mr. Starks did not
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`object to this presumption-of-innocence advisement. Accordingly, we review his
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`appellate challenge under the rigorous plain-error rubric. Under that rubric, we
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`conclude—as the government concedes—that the district court committed clear or
`
`obvious error in allowing this advisement to stand uncorrected before the jury.
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`We further believe that this error had some prejudicial effects. Irrespective of
`
`whether those effects, standing alone, were sufficient to affect Mr. Starks’s
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`substantial rights and warrant reversal, we conclude that, when those effects are
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`cumulated with the prejudicial effects stemming from two other errors—which the
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`government also concedes—Mr. Starks’s convictions cannot stand. Accordingly,
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`exercising jurisdiction under 28 U.S.C. § 1291, we reverse Mr. Starks’s
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`convictions and remand the case to the district court with instructions to vacate
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`its judgment and to conduct further proceedings consistent with this opinion.
`
`2
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`

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`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 3
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`I A
`
`On September 17, 2018, Kansas Highway Patrol Troopers Goheen and
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`Birney stopped a Toyota Camry (“Toyota”) and a Chevrolet Impala (“Chevy”)
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`that were driving single file across Interstate 70 (“I-70”) in Kansas. The Chevy
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`was occupied by two men—Mr. Starks and Kevin Scott—and contained drug
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`paraphernalia, but no drugs. The Toyota was occupied by two women—Toya
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`Avery and Lamika Watt—and contained two drug-laden suitcases holding two
`
`kilograms of fentanyl and four kilograms of heroin.
`
`More specifically, Trooper Goheen initially focused on the cars because the
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`Toyota was following the Chevy too closely on the highway. By the time the
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`troopers caught up to the vehicles, they had switched positions and the Chevy
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`(occupied by Mr. Starks and Mr. Scott) was following the Toyota too closely.
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`Trooper Goheen checked the Kansas Turnpike’s computer system—which stores
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`photographs that cameras on the turnpike take of vehicular traffic on I-70—and
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`noted that, on September 13, 2018 (i.e., four days prior), the same two vehicles
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`had passed the Bonner Springs turnpike station, traveling in the same lane, six
`
`seconds apart. Based on that information, Trooper Goheen inferred that the
`
`vehicles had been intentionally traveling together.
`
`Trooper Goheen pulled up next to the Toyota—occupied by Ms. Avery and
`
`Ms. Watt. And, when he did so, the Chevy pulled in behind his vehicle and began
`
`3
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`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 4
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`following it too closely. Trooper Goheen radioed Trooper Birney to stop the
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`Chevy for a following-too-closely violation, and he did so. Around the same
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`time, Trooper Goheen observed that the license-plate bracket of the Toyota
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`obscured the state of registration (i.e., Ohio), which is a traffic offense, and he
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`accordingly stopped the Toyota.
`
`Trooper Goheen approached the Toyota on the driver’s side. When Ms.
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`Avery, who was driving the Toyota, rolled down her window, Trooper Goheen
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`smelled burnt marijuana. He also observed that Ms. Avery’s hands were shaking
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`when she produced her license. Both Ms. Avery and Ms. Watt denied traveling
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`with the occupants of the Chevy. They stated that they were coming from Utah
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`and Colorado and were headed to Kansas City. Ms. Watt said that she was on a
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`business trip that involved recruiting people. They provided Trooper Goheen
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`with a rental agreement for the Toyota; according to the rental agreement, Ms.
`
`Watt had rented the vehicle in Ohio five days prior, on the morning of
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`September 12, 2018.
`
`Because of (among other things) the smell of marijuana, Trooper Goheen
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`suspected Ms. Avery and Ms. Watt of committing a criminal offense and
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`instructed them to get out of the Toyota, so he could search it. During the search,
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`Trooper Goheen found fentanyl and heroin in two suitcases in the trunk. Trooper
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`Goheen arrested Ms. Avery and Ms. Watt, both of whom denied knowledge of the
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`drugs. The packages were not tested for fingerprints or DNA.
`
`4
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`

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`Meanwhile, Trooper Birney had pulled over the Chevy; Mr. Starks was
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`driving and Mr. Scott was the passenger. As with the Toyota, Trooper Birney
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`smelled burnt marijuana inside this vehicle. Mr. Starks and Mr. Scott told
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`Trooper Birney that they were not traveling with the Toyota and did not know its
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`occupants. Mr. Starks explained that he was following the Toyota too closely
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`because he had his cruise control set and the Toyota slowed down. The Chevy
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`also was a rental vehicle. Trooper Birney obtained the rental agreement; it
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`showed that Mr. Scott had rented the vehicle. When Trooper Birney questioned
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`the two men about their travel plans, they said that Mr. Scott had picked up Mr.
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`Starks in Arizona and they had spent some time in Las Vegas. And, now, they
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`were heading to Topeka, Kansas, to see Mr. Starks’s son.
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`When Trooper Birney returned to his vehicle to perform a records check of
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`Mr. Starks’s license, he learned on the radio from Trooper Goheen that, four days
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`prior, the same two vehicles had passed the Bonner Springs turnpike station,
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`traveling in the same lane, six seconds apart, and that Trooper Goheen had found
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`drugs in the Toyota. Trooper Birney then returned to the Chevy and questioned
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`Mr. Starks and Mr. Scott about the marijuana smell; both men denied having or
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`smoking marijuana. Under questioning from Trooper Birney, both men also
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`denied again knowing the occupants of the Toyota. Trooper Birney searched the
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`Chevy but found no controlled substances. He did discover, however, items
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`associated with illegal drugs in the Chevy’s trunk—specifically, syringes, a
`
`5
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`

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`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 6
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`“vacuum sealer or a food saver,” and plastic bags to package items with the
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`sealer. R., Vol. III, at 355 (Trial Tr., dated Apr. 2, 2019).
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`Ultimately, law enforcement learned that the syringes found in the Chevy
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`belonged to Ms. Avery and the sealer and plastic bags belonged to Mr. Scott.
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`Furthermore, law enforcement recovered a total of four cell phones from the two
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`vehicles—two from the Chevy and two from the Toyota. During the subsequent
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`investigation, law enforcement determined that three of the four phones had been
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`in contact with each other, and one of the phones had a number that was
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`attributable to Mr. Starks.
`
`B
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`Mr. Starks, Mr. Scott, Ms. Avery, and Ms. Watt were all subsequently
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`charged in a three-count indictment with conspiring to possess with the intent to
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`distribute approximately two kilograms of a mixture or substance containing a
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`detectable amount of fentanyl and approximately four kilograms of a mixture or
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`substance containing a detectable amount of heroin in violation of 21 U.S.C.
`
`§ 846 (Count 1); possessing with the intent to distribute approximately two
`
`kilograms of a mixture or substance containing a detectable amount of fentanyl in
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`violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), as well as 18 U.S.C. § 2
`
`(Count 2); and possessing with the intent to distribute approximately four
`
`kilograms of a mixture or substance containing a detectable amount of heroin in
`
`violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), as well as 18 U.S.C. § 2
`
`6
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`

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`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 7
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`(Count 3). Mr. Scott and Ms. Watt are currently fugitives and were not tried on
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`the indictment.1 Ms. Avery pleaded guilty to the conspiracy offense and testified
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`at Mr. Starks’s trial as a government witness.
`
`1
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`Mr. Starks’s trial commenced—as the district court acknowledged—in an
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`unconventional manner. As particularly relevant here, apparently without
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`consulting counsel, the court adopted what it acknowledged was an unique
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`approach in instructing the jury. Rather than comprehensively instructing the jury
`
`concerning the governing law after the close of the evidence, the court elected to
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`give the jury—with only a couple of exceptions that it deemed “better left to the
`
`end of the case”2—the full set of instructions regarding the governing law
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`immediately before the presentation of the evidence. R., Vol. III, at 272 (Trial
`
`Tr., dated Apr. 1, 2019). Addressing the jury, the court said:
`
`Well, folks, usually the instructions are given at the end of the
`case, right before closing arguments. It has always seemed to me
`
`1 Mr. Scott was released after he told law enforcement that he would
`become a confidential informant. He never contacted the government after his
`release, and the government has not been able to locate him. Ms. Watt also fled
`after she was released from a detention facility in Russell County, Kansas.
`
`The two exceptions—that is, the instructions the court did not give at
`2
`that time—related, generally, to the jurors’ responsibility to arrive at a
`“unanimous” verdict, if they could “do so without violating [their] individual
`judgment and [their individual] conscience” and, further, the mechanics of the
`deliberation process, including the “first” requirement to “select a presiding
`juror.” R., Vol. I, at 169–72 (Instrs. 33 and 34).
`
`7
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`

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`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 8
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`that that got things backwards. It’s like waiting until the end and
`saying, [“]Oh, by the way, these are the things that you should
`have been listening for throughout the trial.[”]
`
`Id. at 244. The court allowed each juror to have a written set of the instructions,
`
`which permitted the jurors (if they wished) to “read along” while the court orally
`
`gave them the instructions, and to “take notes” on, and “refer” to, their copies of
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`the written instructions during the course of the trial. Id. And the court also
`
`informed the jury that the “original copy of the instructions” would “go back to
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`the jury room with [them] at the end,” along with “the verdict form.” Id. at 272.
`
`Notably, among the instructions that the court gave at this early stage were
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`the instructions directly bearing on the government’s obligation to establish Mr.
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`Starks’s guilt “beyond a reasonable doubt” (i.e., Instrs. 5 and 7) and concerning
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`the “presumption of innocence” that is constitutionally afforded to Mr. Starks
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`(i.e., Instr. 6). Id. at 248–50. In particular, in orally presenting Instruction No.
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`6—regarding the presumption of innocence—the court informed the jury that the
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`presumption of innocence “remains with [Mr. Starks] throughout the trial.” Id. at
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`249.
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`After the court finished instructing the jury, the parties presented their
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`evidence and closing arguments over the course of approximately two days. We
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`turn now to consider the evidence and arguments that the jury heard, insofar as
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`they bear on Mr. Starks’s contentions of error.
`
`8
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`

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`2
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`During its case in chief, the government called Troopers Goheen and
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`Birney to testify. The troopers communicated to the jury their factual
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`observations concerning the traffic stop of Mr. Starks. But Mr. Starks’s counsel
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`objected to five of the troopers’ statements that he believed constituted improper
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`expert testimony regarding the purported patterns and practices of drug
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`traffickers. In particular, Mr. Starks objected that the government had provided
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`“no notice of expert testimony,” and that the testimony was subject to “a Daubert
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`analysis3 or [Federal Rule of Evidence] 702 analysis.” R., Vol. III, at 297–98.
`
`Specifically, Mr. Starks objected to the following five statements:
`
`Trooper Goheen’s statement that “from our training and
`1.
`experience and what we’re seeing out on the road, [I-70 and I-35]
`are . . . the main highways of the United States that these drugs
`are being trafficked . . . on because [they are the] most direct
`route[s].” Id. at 277.
`
`Trooper Goheen’s statement that, based on his training and
`2.
`experience, “the guy hauling a hundred pounds of marijuana in
`his trunk is probably not going to come by you at 95 miles an
`hour so, you know, . . . [the] violations that I’m seeing are minor
`. . . . For instance, no turn signals; following too close[ly];
`fail[ing] to maintain a single lane of traffic, those are the types
`of violations that I’m out looking for because . . . the people
`transporting illegal contraband . . . are going to be making the
`minor mistakes.” Id. at 281.
`
`Trooper Goheen’s statement that, based on his training and
`3.
`experience, drugs are trafficked across the Mexican border,
`
`3
`
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
`
`9
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`

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`parceled out in California, and shipped across I-70 in “suicide
`loads” by rental car. Id. at 322–26.
`
`Trooper Goheen’s statement that based on his training and
`4.
`experience drug traffickers use “escort vehicles or decoys” to
`divert law enforcement from load vehicles. Id. at 357–58.
`
`Trooper Birney’s statement that, based on his training and
`5.
`experience, “just everything [was] adding up” that the two
`vehicles in this case and their occupants were operating together.
`Id. at 411.
`
`The court overruled Mr. Starks’s objections. As to Trooper Goheen, for
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`example, the court stated that it did “not consider what he has talked about in
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`terms of his knowledge and experience and conclusions he was drawing as expert
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`testimony but just the things that support his reasons for doing the things that he
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`did out there.” Id. at 299.
`
`During its closing argument, the government highlighted this testimony,
`
`saying:
`
`Remember the testimony of Trooper Goheen. Trooper Goheen
`told you that based on his training and experience, what you see
`in interdiction is a load car and then an escort car. In this case,
`who’s driving that escort car? The defendant [i.e., Mr. Starks].
`
`What does the defendant do? The defendant, when he sees the
`trooper pulling up along side, about to pull over the dope car, he
`whips over and tailgates a trooper.
`
`I challenge any of you to pull over and tailgate a trooper like that
`without knowing exactly what’s going to happen.
`
`Id. at 630 (Trial Tr., dated Apr. 3, 2019).
`
`3
`
`10
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`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 11
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`After Troopers Goheen and Birney testified, the government called Special
`
`Agent Heizer from the Department of Homeland Security. Agent Heizer testified
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`to the authenticity of a government record, Exhibit 11. Exhibit 11 showed that
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`two men, possessing names and birthdays identical to those of Mr. Scott and Mr.
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`Starks, crossed the U.S.-Mexico border on foot at 9:00 p.m. EST on September 7,
`
`2018—which was five days before Mr. Scott and Ms. Watt rented the cars that
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`Troopers Goheen and Birney later stopped on September 17. Eighteen minutes
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`later, they returned to the United States on foot via that same entry-exit point,
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`within one minute of each other.
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`Mr. Starks’s counsel objected to the introduction of Exhibit 11 on hearsay
`
`grounds. Specifically, Mr. Starks’s counsel maintained that Agent Heizer had no
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`personal knowledge concerning the creation of Exhibit 11 nor regarding the
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`section of the border where that record was generated. His objection was
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`overruled without comment.
`
`4
`
`Following Agent Heizer’s testimony, the government called Drug
`
`Enforcement Administration (“DEA”) Task Force Officer Proffitt (“TFO
`
`Proffitt”) to testify concerning the post-arrest search of the phones found in the
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`Chevy and Toyota, as well as Mr. Starks’s prior criminal history. In addition to
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`testifying that three of the four phones had been in contact with each other, and
`
`11
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`

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`that one of the phones had a number that was attributable to Mr. Starks,4 TFO
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`Proffitt noted that all of the phones had been activated on September 11,
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`2018—six days before the traffic stop. Through TFO Proffitt, the government
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`also presented evidence that in 2015 Mr. Starks was convicted in state court for
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`attempted possession of heroin for sale, for which he served prison time.
`
`Notably, during his cross-examination of TFO Proffitt, Mr. Starks’s counsel
`
`asked TFO Proffitt about a search warrant he had obtained for Mr. Starks’s
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`residence after Mr. Starks’s arrest on September 17, 2018, and prior to trial.
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`Specifically, Mr. Starks’s counsel asked TFO Proffitt what he found as a result of
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`that warrant, and if he had hoped to use that warrant to find additional evidence
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`of drug trafficking. TFO Proffitt stated that he obtained and executed the warrant
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`hoping to find additional drug-trafficking evidence, but his search of Mr. Starks’s
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`residence yielded no such evidence.
`
`On redirect, the government asked TFO Proffitt how he obtained probable
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`cause for the warrant. TFO Proffitt stated that two non-testifying, local police
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`officers who had responded to a domestic-dispute call at Mr. Starks’s residence
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`had informed him that they observed a gallon-sized Ziploc bag of cash at the
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`Tracking in part the testimony of Ms. Avery, discussed infra, TFO
`4
`Proffitt testified that contact information had been saved on the four phones under
`various names: “three had a [contact saved as], T-A, and the fourth had other
`versions, it had a Vonte, a Vonte KC, and . . . a Bro Tae,” and the stored data
`from the phones also referenced “Bro Tay” and “Ta.” R., Vol. III, at 440–41.
`
`12
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`

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`home and smelled marijuana coming from Mr. Starks’s person, the residence, and
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`a car on the property.
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`5
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`The government concluded its presentation of evidence with testimony
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`from Ms. Avery. Following her arrest, as previously noted, Ms. Avery pleaded
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`guilty to the conspiracy charge, and she agreed to testify as a government witness
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`under a plea agreement—with the acknowledged hope of receiving a more lenient
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`sentence. During her testimony, Ms. Avery stated that Mr. Scott regularly sold
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`heroin and fentanyl and used her as a drug tester. In that regard, Ms. Avery
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`testified that she was “addicted to heroin and fentanyl” and had “a very, very high
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`tolerance” for the drugs; thus, she was “beneficial to someone who sells drugs on
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`[a] large scale,” like Mr. Scott, as a tester of the quality of the drugs. R., Vol. III,
`
`at 519–20. They both worked the narcotics trade in Akron, Ohio.
`
`Ms. Avery stated that she first met Mr. Starks in Arizona after Mr. Scott
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`asked her to accompany him to meet a new potential supplier of heroin. In
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`Arizona, Mr. Starks, Ms. Avery, and Mr. Scott went to a house in a gated
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`community, where Ms. Avery tested tar heroin in the presence of Mr. Scott and
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`Mr. Starks. When Ms. Avery proclaimed that the heroin was “junk,” Mr. Starks
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`reportedly indicated that he would “talk to [his sources] and figure out what can
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`be done about this.” Id. at 526–27. Mr. Scott and Ms. Avery then transported
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`some heroin back to Ohio. The two typically traveled in rental cars that Mr. Scott
`
`13
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`would rent and pay for. Ms. Avery testified that it was her understanding that Mr.
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`Starks “was going to get paid every time” they did a drug deal with his suppliers.
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`Id. at 540.
`
`Ms. Avery testified that she met Mr. Starks at the same house in Arizona on
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`two subsequent trips with Mr. Scott. According to Ms. Avery, on the first of
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`these trips—which occurred around two months after the initial one—their group
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`was joined by “two Mexicans” who were narcotics suppliers of Mr. Starks. Id. at
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`533. The Mexican suppliers had brought with them “a kilo of heroin,” Ms. Avery
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`testified, but this was not satisfactory to her and Mr. Scott because Ms. Avery
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`said that she and Mr. Scott also wanted fentanyl; they “needed both” heroin and
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`fentanyl. Id. at 534. Mr. Scott expressed this need for both drugs to Mr. Starks
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`and his “Mexican” suppliers, but he purchased the heroin. Id. Mr. Scott and Ms.
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`Avery “broke it down, repackaged it and taped it to [her] body,” and then
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`transported the heroin back to Ohio. Id. at 535. On the final Arizona trip, Ms.
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`Avery testified that one of Mr. Starks’s suppliers did bring both—more than a
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`kilo of heroin and fentanyl. Mr. Scott purchased the narcotics, and, as before, he
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`and Ms. Avery repackaged the drugs and traveled back to Ohio.
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`Notably, Ms. Avery further testified that on September 12, 2018, she met
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`Mr. Scott, Ms. Watt, and Mr. Starks in Akron, where there were two rental
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`vehicles present—a Toyota and a Chevy. Mr. Scott gave everyone a phone with
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`pre-programmed contact information under different names: Mr. Scott’s name was
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`14
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`“Bro,” Ms. Avery’s name was “Sis,” and Mr. Starks’s name was “Ta.” Id. at 558.
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`The four traveled to Anaheim, California. On the way there, before entering
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`California, Ms. Avery stated that Mr. Starks spoke with someone on a speaker-
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`phone about getting drugs out of California, but the person advised that there was
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`no safe way to do so. Once they arrived in California, they stayed for a few days;
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`Ms. Avery was not sure why and did not ask. On the group’s return, Ms. Avery
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`started off riding in the car with Mr. Starks and Mr. Scott, but later joined Ms.
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`Watt in her vehicle. Ms. Avery did a small portion of the driving and had “been
`
`driving about five or ten minutes” when the Kansas trooper (i.e., Trooper Goheen)
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`pulled her over. Id. at 563.
`
`Ms. Avery stated that, even though Mr. Scott had recruited her for the
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`Anaheim trip and she believed that she would be testing drugs, she had not heard
`
`about any drug transaction or tested any drugs during the trip. Significantly, Ms.
`
`Avery testified that she did not know that drugs were in her vehicle on
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`September 17, 2018—the day she was pulled over and arrested. She further
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`testified that she did not talk directly to Mr. Starks about drug transactions. Ms.
`
`Avery said she and Mr. Starks did not “have an understanding about drugs. He’s
`
`not paying for them and I’m not, either, so we don’t need to be talking about how
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`much of anything is going to be, you know, bought because we’re not buying it.”
`
`Id. at 561.
`
`15
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`6
`
`Significantly, at the conclusion of the evidence—two days after the trial
`
`began—the district court elected not to comprehensively instruct the jury again.
`
`Specifically, in response to the government’s inquiry as to whether it would do
`
`so, the court responded that it was “not going to go through the instructions
`
`again,” but it would “read those final two instructions” that it initially had
`
`reserved for the end of the evidence, and then counsel could present their closing
`
`arguments. Id. at 485. Those two instructions concerned, generally, the jurors’
`
`responsibility to arrive at a “unanimous” verdict, if they could “do so without
`
`violating [their] individual judgment and [their individual] conscience,” and,
`
`further, the mechanics of the deliberation process. R., Vol. I, at 169–72 (Instrs.
`
`33 and 34); accord id., Vol. III, at 620–22. As the court described them, those
`
`mechanics included the “first” requirement of the jury to “select a presiding
`
`juror” and “[t]he second thing [the jury] should do,” that is, “review the
`
`instructions.” Id., Vol. I, at 171 (Instr. 34); accord id., Vol. III, at 621. As to the
`
`“second thing,” the court advised the jury that their work as jurors would be
`
`“more productive” if they were familiar with “the legal principles upon which
`
`[their] verdict must be based.” Id., Vol. I, at 171 (Instr. 34); accord id., Vol. III,
`
`at 621.
`
`Notably, however, as a consequence of the court’s unconventional approach
`
`regarding the timing of the delivery of its oral instructions, the jury heard the
`
`16
`
`

`

`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 17
`
`court’s oral instructions concerning most of the governing law only once, and
`
`approximately two days before they began deliberations. In particular, the jury
`
`did not hear again—at the close of the evidence—the court’s oral instructions
`
`regarding the government’s beyond-a-reasonable-doubt burden of proof (i.e.,
`
`Instrs. 5 and 7) nor the court’s instruction concerning the presumption of
`
`innocence that the Constitution afforded Mr. Starks (i.e., Instr. 6).
`
`7
`
`After the jury heard the court’s two remaining instructions, the parties’
`
`counsel gave their closing arguments. Importantly, in its closing, the government
`
`told the jury:
`
`Now, on Monday, if you’ll recall, you were instructed that this
`defendant was presumed innocent. That he was clothed in the
`presumption of innocence. And that was absolutely true
`Monday. But here we are[, on] Wednesday. Ladies and
`gentlemen, I submit to you that based upon the evidence and
`based upon your common sense, that that is no longer true. That
`as the defendant sits before you today, that that presumption has
`been changed based upon [the] substantial weight of credible
`evidence. And as you see him, the naked truth about him, this
`man, based on this evidence, is a drug dealer.
`
`Id., Vol. III, at 627 (emphases added). Mr. Starks’s counsel did not
`
`contemporaneously object, and the court did not admonish the government or
`
`otherwise comment on the propriety of its argument.
`
`The government then proceeded to make statements regarding its witnesses’
`
`truthfulness. Specifically, the government stated that Ms. Avery was bound to a
`
`17
`
`

`

`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 18
`
`plea agreement requiring her “only to do one thing: [t]ell the truth.” Id. at 631.
`
`The government added, “[n]obody has ever told her to do anything other than tell
`
`the truth. And she sat there and she told you the absolute truth . . . .” Id. Mr.
`
`Starks’s counsel objected to this statement as improper vouching. The district
`
`court sustained the objection, and it also instructed the jury to disregard the
`
`statement: i.e., “Jury will ignore what the prosecutor says in terms of truthfulness.
`
`That’s your determination to make, not counsel’s.” Id.
`
`8
`
`During his subsequent closing argument, Mr. Starks’s counsel did express
`
`his disagreement with the prosecutor’s presumption-of-innocence advisement:
`
`“[The] Prosecutor said when he stood up that . . . [Mr.] Starks had the
`
`presumption of innocence but he doesn’t now. I would disagree with that as a
`
`point of law. Until you decide otherwise, you, the jury, . . . Mr. Starks is
`
`presumed innocent. And he is innocent.” Id. at 657. But the court itself did not
`
`instruct the jury regarding this matter or otherwise take remedial action.
`
`When Mr. Starks’s counsel concluded, the government began its rebuttal
`
`closing argument with forceful statements that appeared to be aimed at bolstering
`
`the credibility of Ms. Avery, the only government witness who testified about the
`
`alleged narcotics conspiracy and Mr. Starks’s supposed involvement in it.
`
`Specifically, the government’s counsel said:
`
`Ladies and gentlemen, from the defendant’s [i.e., Mr. Starks’s]
`
`18
`
`

`

`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 19
`
`point of view, as you just heard, you should believe everything
`about everyone else in this conspiracy except the defendant.
`That’s not the law. It would defy human nature and common
`sense.
`
`They attack Ms. Avery. Well, conspiracies are characterized by
`their secrecy and their criminal nature and people involved.
`Hatching plots in hell doesn’t involve angels.
`
`Id. at 658. Further, the government sought to lend additional credibility to the
`
`predicate for Agent Proffitt’s search of Mr. Starks’s residence. In particular, the
`
`government stated “based upon the observations of the officers[,] . . . a search
`
`warrant was acquired. [A j]udge look[ed] at the evidence and [concluded there
`
`was] probable cause to search . . . .” Id. at 660. Mr. Starks’s counsel objected to
`
`this as improper vouching. The court sustained the objection, but did not provide
`
`a curative instruction.
`
`The government also made statements commenting on Trooper Birney’s and
`
`Trooper Goheen’s testimony. Specifically, the government stated to the jury:
`
`“You saw Trooper Birney. You saw Trooper Goheen. You know their demeanor.
`
`You know how they do their jobs and how they’ve done it for years. They have
`
`no axe to grind and no reason to make things up and they don’t take shortcuts.”
`
`Id. at 661. Mr. Starks’s attorney did not object to this statement.
`
`9
`
`After hearing closing arguments, a little after 12:00 pm—approximately
`
`two days after orally receiving most of their instructions from the court—the jury
`
`19
`
`

`

`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 20
`
`retired to deliberate, with a written set of the “original” instructions and the
`
`verdict form. Id. at 664. After being dismissed at the end of the business day, it
`
`returned to court the next day and reached a verdict in the early afternoon. The
`
`jury convicted Mr. Starks of the two counts charging him with possessing with the
`
`intent to distribute narcotics—specifically, fentanyl (Count 2) and heroin (Count
`
`3). However, the jury could not reach a verdict regarding the conspiracy charge
`
`(Count 1), and the court subsequently dismissed that charge on the government’s
`
`motion. The district court sentenced Mr. Starks to a total term of 180 months’
`
`imprisonment followed by 5 years’ supervised release. Mr. Starks timely
`
`appealed.
`
`II
`
`Mr. Starks presents five arguments that he believes warrant reversal:
`
`the district court abused its discretion when it admitted
`(1)
`expert testimony by Troopers Goheen and Birney regarding
`typical patterns and practices of drug traffickers, where the
`government failed to provide the requisite disclosures under
`Federal Rule of Criminal Procedure 16 and the court failed to
`make the necessary expert witness determinations under Federal
`Rule of Evidence 702;
`
`the district court abused its discretion by admitting hearsay
`(2)
`evidence that Mr. Starks and Mr. Scott crossed the U.S.-Mexico
`border together;
`
`the district court plainly erred, in violation of Mr. Starks’s
`(3)
`Sixth Amendment rights, by allowing the jury to hear the out-of-
`court statements of non-testifying local law enforcement officers
`through the testimony of Agent Proffitt;
`
`20
`
`

`

`Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 21
`
`the district court plainly erred in allowing the government
`(4)
`to engage in prosecutorial miscon

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