United States v. Starks ( 2022 )

FILED
Appellate Case: 19-3256 Document: 010110690141 United
Date Filed: States CourtPage:
05/27/2022 of Appeals
1
Tenth Circuit
May 27, 2022
PUBLISH
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-3256
v.
DEVONTE JEMELL STARKS,
Defendant - Appellant.
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
Devonte Starks appeals from his convictions for possession with intent to
distribute fentanyl and possession with intent to distribute heroin. The central
question that we must address is whether Mr. Starks’s conviction can be upheld
after the government advised the jury in its closing argument that Mr. Starks’s
right to be presumed innocent no longer existed after the presentation of the trial
evidence (i.e., the “presumption-of-innocence advisement”). Mr. Starks did not
object to this presumption-of-innocence advisement. Accordingly, we review his
appellate challenge under the rigorous plain-error rubric. Under that rubric, we
conclude—as the government concedes—that the district court committed clear or
obvious error in allowing this advisement to stand uncorrected before the jury.
We further believe that this error had some prejudicial effects. Irrespective of
whether those effects, standing alone, were sufficient to affect Mr. Starks’s
substantial rights and warrant reversal, we conclude that, when those effects are
cumulated with the prejudicial effects stemming from two other errors—which the
government also concedes—Mr. Starks’s convictions cannot stand. Accordingly,
exercising jurisdiction under 28 U.S.C. § 1291, we reverse Mr. Starks’s
convictions and remand the case to the district court with instructions to vacate
its judgment and to conduct further proceedings consistent with this opinion.
2
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I
A
On September 17, 2018, Kansas Highway Patrol Troopers Goheen and
Birney stopped a Toyota Camry (“Toyota”) and a Chevrolet Impala (“Chevy”)
that were driving single file across Interstate 70 (“I-70”) in Kansas. The Chevy
was occupied by two men—Mr. Starks and Kevin Scott—and contained drug
paraphernalia, but no drugs. The Toyota was occupied by two women—Toya
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
Toyota was following the Chevy too closely on the highway. By the time the
troopers caught up to the vehicles, they had switched positions and the Chevy
(occupied by Mr. Starks and Mr. Scott) was following the Toyota too closely.
Trooper Goheen checked the Kansas Turnpike’s computer system—which stores
photographs that cameras on the turnpike take of vehicular traffic on I-70—and
noted that, on September 13, 2018 (i.e., four days prior), the same two vehicles
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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following it too closely. Trooper Goheen radioed Trooper Birney to stop the
Chevy for a following-too-closely violation, and he did so. Around the same
time, Trooper Goheen observed that the license-plate bracket of the Toyota
obscured the state of registration (i.e., Ohio), which is a traffic offense, and he
accordingly stopped the Toyota.
Trooper Goheen approached the Toyota on the driver’s side. When Ms.
Avery, who was driving the Toyota, rolled down her window, Trooper Goheen
smelled burnt marijuana. He also observed that Ms. Avery’s hands were shaking
when she produced her license. Both Ms. Avery and Ms. Watt denied traveling
with the occupants of the Chevy. They stated that they were coming from Utah
and Colorado and were headed to Kansas City. Ms. Watt said that she was on a
business trip that involved recruiting people. They provided Trooper Goheen
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
September 12, 2018.
Because of (among other things) the smell of marijuana, Trooper Goheen
suspected Ms. Avery and Ms. Watt of committing a criminal offense and
instructed them to get out of the Toyota, so he could search it. During the search,
Trooper Goheen found fentanyl and heroin in two suitcases in the trunk. Trooper
Goheen arrested Ms. Avery and Ms. Watt, both of whom denied knowledge of the
drugs. The packages were not tested for fingerprints or DNA.
4
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Meanwhile, Trooper Birney had pulled over the Chevy; Mr. Starks was
driving and Mr. Scott was the passenger. As with the Toyota, Trooper Birney
smelled burnt marijuana inside this vehicle. Mr. Starks and Mr. Scott told
Trooper Birney that they were not traveling with the Toyota and did not know its
occupants. Mr. Starks explained that he was following the Toyota too closely
because he had his cruise control set and the Toyota slowed down. The Chevy
also was a rental vehicle. Trooper Birney obtained the rental agreement; it
showed that Mr. Scott had rented the vehicle. When Trooper Birney questioned
the two men about their travel plans, they said that Mr. Scott had picked up Mr.
Starks in Arizona and they had spent some time in Las Vegas. And, now, they
were heading to Topeka, Kansas, to see Mr. Starks’s son.
When Trooper Birney returned to his vehicle to perform a records check of
Mr. Starks’s license, he learned on the radio from Trooper Goheen that, four days
prior, the same two vehicles had passed the Bonner Springs turnpike station,
traveling in the same lane, six seconds apart, and that Trooper Goheen had found
drugs in the Toyota. Trooper Birney then returned to the Chevy and questioned
Mr. Starks and Mr. Scott about the marijuana smell; both men denied having or
smoking marijuana. Under questioning from Trooper Birney, both men also
denied again knowing the occupants of the Toyota. Trooper Birney searched the
Chevy but found no controlled substances. He did discover, however, items
associated with illegal drugs in the Chevy’s trunk—specifically, syringes, a
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“vacuum sealer or a food saver,” and plastic bags to package items with the
sealer. R., Vol. III, at 355 (Trial Tr., dated Apr. 2, 2019).
Ultimately, law enforcement learned that the syringes found in the Chevy
belonged to Ms. Avery and the sealer and plastic bags belonged to Mr. Scott.
Furthermore, law enforcement recovered a total of four cell phones from the two
vehicles—two from the Chevy and two from the Toyota. During the subsequent
investigation, law enforcement determined that three of the four phones had been
in contact with each other, and one of the phones had a number that was
attributable to Mr. Starks.
B
Mr. Starks, Mr. Scott, Ms. Avery, and Ms. Watt were all subsequently
charged in a three-count indictment with conspiring to possess with the intent to
distribute approximately two kilograms of a mixture or substance containing a
detectable amount of fentanyl and approximately four kilograms of a mixture or
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
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. § 26
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(Count 3). Mr. Scott and Ms. Watt are currently fugitives and were not tried on
the indictment. 1 Ms. Avery pleaded guilty to the conspiracy offense and testified
at Mr. Starks’s trial as a government witness.
1
Mr. Starks’s trial commenced—as the district court acknowledged—in an
unconventional manner. As particularly relevant here, apparently without
consulting counsel, the court adopted what it acknowledged was an unique
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
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
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.
2
The two exceptions—that is, the instructions the court did not give at
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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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
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
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
the instructions directly bearing on the government’s obligation to establish Mr.
Starks’s guilt “beyond a reasonable doubt” (i.e., Instrs. 5 and 7) and concerning
the “presumption of innocence” that is constitutionally afforded to Mr. Starks
(i.e., Instr. 6). Id. at 248–50. In particular, in orally presenting Instruction No.
6—regarding the presumption of innocence—the court informed the jury that the
presumption of innocence “remains with [Mr. Starks] throughout the trial.” Id. at
249.
After the court finished instructing the jury, the parties presented their
evidence and closing arguments over the course of approximately two days. We
turn now to consider the evidence and arguments that the jury heard, insofar as
they bear on Mr. Starks’s contentions of error.
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2
During its case in chief, the government called Troopers Goheen and
Birney to testify. The troopers communicated to the jury their factual
observations concerning the traffic stop of Mr. Starks. But Mr. Starks’s counsel
objected to five of the troopers’ statements that he believed constituted improper
expert testimony regarding the purported patterns and practices of drug
traffickers. In particular, Mr. Starks objected that the government had provided
“no notice of expert testimony,” and that the testimony was subject to “a Daubert
analysis 3 or [Federal Rule of Evidence] 702 analysis.” R., Vol. III, at 297–98.
Specifically, Mr. Starks objected to the following five statements:
1. Trooper Goheen’s statement that “from our training and
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.
2. Trooper Goheen’s statement that, based on his training and
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.
3. Trooper Goheen’s statement that, based on his training and
experience, drugs are trafficked across the Mexican border,
3
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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parceled out in California, and shipped across I-70 in “suicide
loads” by rental car. Id. at 322–26.
4. Trooper Goheen’s statement that based on his training and
experience drug traffickers use “escort vehicles or decoys” to
divert law enforcement from load vehicles. Id. at 357–58.
5. Trooper Birney’s statement that, based on his training and
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
example, the court stated that it did “not consider what he has talked about in
terms of his knowledge and experience and conclusions he was drawing as expert
testimony but just the things that support his reasons for doing the things that he
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
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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
to the authenticity of a government record, Exhibit 11. Exhibit 11 showed that
two men, possessing names and birthdays identical to those of Mr. Scott and Mr.
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
Troopers Goheen and Birney later stopped on September 17. Eighteen minutes
later, they returned to the United States on foot via that same entry-exit point,
within one minute of each other.
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
personal knowledge concerning the creation of Exhibit 11 nor regarding the
section of the border where that record was generated. His objection was
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
Chevy and Toyota, as well as Mr. Starks’s prior criminal history. In addition to
testifying that three of the four phones had been in contact with each other, and
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that one of the phones had a number that was attributable to Mr. Starks, 4 TFO
Proffitt noted that all of the phones had been activated on September 11,
2018—six days before the traffic stop. Through TFO Proffitt, the government
also presented evidence that in 2015 Mr. Starks was convicted in state court for
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
residence after Mr. Starks’s arrest on September 17, 2018, and prior to trial.
Specifically, Mr. Starks’s counsel asked TFO Proffitt what he found as a result of
that warrant, and if he had hoped to use that warrant to find additional evidence
of drug trafficking. TFO Proffitt stated that he obtained and executed the warrant
hoping to find additional drug-trafficking evidence, but his search of Mr. Starks’s
residence yielded no such evidence.
On redirect, the government asked TFO Proffitt how he obtained probable
cause for the warrant. TFO Proffitt stated that two non-testifying, local police
officers who had responded to a domestic-dispute call at Mr. Starks’s residence
had informed him that they observed a gallon-sized Ziploc bag of cash at the
4
Tracking in part the testimony of Ms. Avery, discussed infra, TFO
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.
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home and smelled marijuana coming from Mr. Starks’s person, the residence, and
a car on the property.
5
The government concluded its presentation of evidence with testimony
from Ms. Avery. Following her arrest, as previously noted, Ms. Avery pleaded
guilty to the conspiracy charge, and she agreed to testify as a government witness
under a plea agreement—with the acknowledged hope of receiving a more lenient
sentence. During her testimony, Ms. Avery stated that Mr. Scott regularly sold
heroin and fentanyl and used her as a drug tester. In that regard, Ms. Avery
testified that she was “addicted to heroin and fentanyl” and had “a very, very high
tolerance” for the drugs; thus, she was “beneficial to someone who sells drugs on
[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
asked her to accompany him to meet a new potential supplier of heroin. In
Arizona, Mr. Starks, Ms. Avery, and Mr. Scott went to a house in a gated
community, where Ms. Avery tested tar heroin in the presence of Mr. Scott and
Mr. Starks. When Ms. Avery proclaimed that the heroin was “junk,” Mr. Starks
reportedly indicated that he would “talk to [his sources] and figure out what can
be done about this.” Id. at 526–27. Mr. Scott and Ms. Avery then transported
some heroin back to Ohio. The two typically traveled in rental cars that Mr. Scott
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would rent and pay for. Ms. Avery testified that it was her understanding that Mr.
Starks “was going to get paid every time” they did a drug deal with his suppliers.
Id. at 540.
Ms. Avery testified that she met Mr. Starks at the same house in Arizona on
two subsequent trips with Mr. Scott. According to Ms. Avery, on the first of
these trips—which occurred around two months after the initial one—their group
was joined by “two Mexicans” who were narcotics suppliers of Mr. Starks. Id. at
533. The Mexican suppliers had brought with them “a kilo of heroin,” Ms. Avery
testified, but this was not satisfactory to her and Mr. Scott because Ms. Avery
said that she and Mr. Scott also wanted fentanyl; they “needed both” heroin and
fentanyl. Id. at 534. Mr. Scott expressed this need for both drugs to Mr. Starks
and his “Mexican” suppliers, but he purchased the heroin. Id. Mr. Scott and Ms.
Avery “broke it down, repackaged it and taped it to [her] body,” and then
transported the heroin back to Ohio. Id. at 535. On the final Arizona trip, Ms.
Avery testified that one of Mr. Starks’s suppliers did bring both—more than a
kilo of heroin and fentanyl. Mr. Scott purchased the narcotics, and, as before, he
and Ms. Avery repackaged the drugs and traveled back to Ohio.
Notably, Ms. Avery further testified that on September 12, 2018, she met
Mr. Scott, Ms. Watt, and Mr. Starks in Akron, where there were two rental
vehicles present—a Toyota and a Chevy. Mr. Scott gave everyone a phone with
pre-programmed contact information under different names: Mr. Scott’s name was
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“Bro,” Ms. Avery’s name was “Sis,” and Mr. Starks’s name was “Ta.” Id. at 558.
The four traveled to Anaheim, California. On the way there, before entering
California, Ms. Avery stated that Mr. Starks spoke with someone on a speaker-
phone about getting drugs out of California, but the person advised that there was
no safe way to do so. Once they arrived in California, they stayed for a few days;
Ms. Avery was not sure why and did not ask. On the group’s return, Ms. Avery
started off riding in the car with Mr. Starks and Mr. Scott, but later joined Ms.
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)
pulled her over. Id. at 563.
Ms. Avery stated that, even though Mr. Scott had recruited her for the
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
September 17, 2018—the day she was pulled over and arrested. She further
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
much of anything is going to be, you know, bought because we’re not buying it.”
Id. at 561.
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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
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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
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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]
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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
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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:
(1) the district court abused its discretion when it admitted
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;
(2) the district court abused its discretion by admitting hearsay
evidence that Mr. Starks and Mr. Scott crossed the U.S.-Mexico
border together;
(3) the district court plainly erred, in violation of Mr. Starks’s
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;
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(4) the district court plainly erred in allowing the government
to engage in prosecutorial misconduct in closing argument, which
deprived Mr. Starks of a fair trial, by (a) telling the jury that Mr.
Starks’s presumption of innocence had been abrogated before
jury deliberations, (b) improperly vouching for Ms. Avery,
Troopers Goheen and Birney, and the non-testifying local
officers regarding whom Agent Proffitt testified, and (c) in its
rebuttal argument, telling “jurors that the law prohibited them
from concluding that [Ms.] Avery was telling the truth about her
own and Mr. Scott’s drug dealing, but lying about Mr. Starks”;
and
(5) the cumulative effect of two or more of the foregoing
errors deprived Mr. Starks of a fair trial.
See Aplt.’s Opening Br. at i–ii, 2.
However, in order to conclude that Mr. Starks’s convictions cannot stand,
we need not—and therefore do not—reach most of these arguments. See, e.g.,
United States v. Chavez, 976 F.3d 1178, 1213 n.20 (10th Cir. 2020). That is
because we determine that the cumulative effects of three errors that Mr. Starks
alleges are enough to warrant reversal of his convictions: specifically, (1) the
unpreserved error arising from the government’s presumption-of-innocence
advisement, (2) the preserved error concerning the court’s admission of the expert
testimony of Troopers Goheen and Birney regarding typical patterns and practices
of drug traffickers, and (3) the unpreserved error relating to the prosecution’s
vouching for Ms. Avery’s credibility.
More specifically, we begin our analysis with arguably the most
problematic of the errors: that is, the one pertaining to the government’s
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presumption-of-innocence advisement. As noted, Mr. Starks did not preserve his
challenge to this error in the district court (i.e., he failed to object to it). Thus,
our review is only for plain error. See, e.g., United States v. Anaya, 727 F.3d
1043, 1053 (10th Cir. 2013). The government does not dispute that, under the
second prong of the plain-error test, this error was clear or obvious. Moreover, in
our view, this error had some prejudicial effects. Regardless of whether those
effects, standing alone, were sufficient to affect Mr. Starks’s substantial rights
and warrant reversal, we conclude that, when those effects are cumulated with the
prejudicial effects of the errors relating to the court’s admission of the expert
testimony of Troopers Goheen and Birney and the prosecution’s vouching for Ms.
Avery’s credibility, we cannot uphold Mr. Starks’s convictions.
A
1
Under the plain-error rubric, reversal is only warranted where there is
“(1) error, (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Portillo-Vega, 478 F.3d 1194, 1202 (10th Cir.
2007) (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (en banc)). “We ‘apply the plain error rule less rigidly when reviewing a
potential constitutional error.’” United States v. Dalton, 918 F.3d 1117, 1130
(10th Cir. 2019) (quoting United States v. Weeks, 653 F.3d 1188, 1198 (10th Cir.
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2011)).
An error is “plain” if it is “so clear or obvious that it could not be subject
to any reasonable dispute.” United States v. Courtney, 816 F.3d 681, 684 (10th
Cir. 2016). “In turn, to be clear or obvious, the error must be contrary to
well-settled law.” United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008).
“In general, for an error to be contrary to well-settled law, either the Supreme
Court or this court must have addressed the issue.” United States v. Ruiz-Gea,
340 F.3d 1181, 1187 (10th Cir. 2003). To demonstrate under the third prong of
the plain-error test that an error affected a defendant’s substantial rights, “a
defendant generally must demonstrate that an error was ‘prejudicial, meaning that
there is a reasonable probability that, but for the error claimed, the result of the
proceeding would have been different.’” United States v. Bustamante-Conchas,
850 F.3d 1130, 1138 (10th Cir. 2017) (en banc) (quoting United States v.
Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008)).
“The reasonable-probability standard is not the same as, and should not be
confused with, a requirement that a defendant prove by a preponderance of the
evidence that but for error things would have been different.” Id. (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)). Instead, “[a]
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” United States v. Hasan, 526 F.3d 653, 665 (10th Cir. 2008) (quoting
Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002)). It is the defendant’s
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burden to make this showing, even in a case of alleged constitutional error.
Gonzalez-Huerta, 403 F.3d at 733.
As to plain error’s fourth requirement, a party that fails to raise an
argument in the district court must show that allowing a non-constitutional error
to stand would be “particularly egregious” and would constitute a “miscarriage of
justice.” United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997) (quoting
United States v. Ivy, 83 F.3d 1266, 1295 (10th Cir. 1996)). However, “[i]n the
context of an alleged constitutional error, the relaxed standard means we do not
require the exceptional showing required to remand a case of non-constitutional
error.” United States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005).
Nevertheless, the burden remains with the defendant to show “that an exercise of
our discretion is appropriate.” Id. The test is applied on “a case-specific and
fact-intensive basis.” Bustamante-Conchas, 850 F.3d at 1141 (quoting Puckett v.
United States, 556 U.S. 129, 142 (2009)).
2
Prosecutorial misconduct can cause constitutional error in two ways: first,
it can prejudice a specific constitutional right amounting to a denial of the right;
and second, “absent infringement of a specific constitutional right, a prosecutor’s
misconduct may in some instances render a . . . trial ‘so fundamentally unfair as
to deny [a defendant] due process.’” Underwood v. Royal, 894 F.3d 1154, 1167
(10th Cir. 2018) (quoting Littlejohn v. Trammell, 704 F.3d 817, 837 (10th Cir.
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2013)), cert. denied, Underwood v. Carpenter, --- U.S. ----, 139 S. Ct. 1342(2019).
“When evaluating allegedly inappropriate remarks of counsel for plain
error, we must view the remarks in the context of the entire trial.” United States
v. Vann, 776 F.3d 746, 760 (10th Cir. 2015) (quoting United States v. Lopez-
Medina, 596 F.3d 716, 738 (10th Cir. 2010)). The relevant context includes “the
curative acts of the district court, the extent of the misconduct, and the role of the
misconduct within the case.” United States v. Christy, 916 F.3d 814, 826 (10th
Cir. 2019) (quoting United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996)).
The Supreme Court in United States v. Young observed that “[t]he line separating
acceptable from improper advocacy is not easily drawn.” 470 U.S. 1, 7 (1985).
In Christy, we noted that one type of argument that clearly crosses the line into
improper advocacy involves “misstating the law.” 916 F.3d at 825 (citing United
States v. Currie, 911 F.3d 1047, 1057 (10th Cir. 2018)).
B
Arguably, Mr. Starks’s most compelling claim of error arises from the
government’s erroneous presumption-of-innocence advisement during its closing
argument:
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
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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.
R., Vol. III, at 627 (emphases added).
We have held that the “‘constitutionally rooted presumption of innocence’
[is] one of those basic rights whose violation may provide a ground for vacation
of a state conviction independent of the more general due process concerns
underlying fundamental fairness analysis.” Mahorney v. Wallman, 917 F.2d 469,
472 (10th Cir. 1990) (per curiam) (quoting Brinlee v. Crisp, 608 F.2d 839, 854
(10th Cir. 1979)). Specifically, “[t]he presumption of innocence, although not
articulated in the Constitution, is a basic component of a fair trial under our
system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976); see
Cool v. United States, 409 U.S. 100, 104 (1972) (per curiam) (discussing the
“constitutionally rooted presumption of innocence”). The presumption serves as a
reminder to the jury that the prosecution has the burden of proving every element
of the offense beyond a reasonable doubt, and is thus a bedrock of our criminal
justice system. See Delo v. Lashley, 507 U.S. 272, 278 (1993) (per curiam). Yet
the government here advised the jury in its closing argument that, after the
presentation of the evidence, Mr. Starks was “no longer” “clothed in the
presumption of innocence.” R., Vol. III, at 627.
On appeal, the government wisely concedes that the district court clearly or
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obviously erred in letting this presumption-of-innocence advisement stand
uncorrected before the jury. See Aplee.’s Resp. Br. at 44. However, the
government contends that this error did not affect Mr. Starks’s substantial rights
and, thus, he cannot demonstrate that the third prong of the plain-error test is
satisfied. Yet, in our view—irrespective of whether this is true—it is not
determinative here. We conclude that, under the circumstances of this case, this
clear or obvious error had some prejudicial effects. And, as noted, Mr. Starks’s
convictions cannot stand when these prejudicial effects are combined with the
prejudicial effects of two other errors. We discuss the case-specific
circumstances upon which we base this reasoning below. We begin, however,
with an overview of our on-point decision in Mahorney—a decision that informs
our subsequent analysis.
1
In Mahorney, we granted habeas relief on the ground that the prosecution’s
statements in closing argument impermissibly undermined the petitioner’s
presumption of innocence. See 917 F.2d at 474. Those statements are remarkably
similar to those at issue here. Specifically, the prosecution said:
I submit to you, under the law and the evidence, that we are in a
little different position today than we were in when we first
started this trial and it was your duty at that time, under the law
of this land, as you were being selected as jurors, to actively in
your minds presume that man over there not to be guilty of the
offense of rape in the first degree, but, you know, things have
changed since that time. I submit to you at this time, under the
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law and under the evidence, that that presumption has been
removed, that that presumption no longer exists, that that
presumption has been removed by evidence and he is standing
before you now guilty.
Id. at 471 (emphases added). As in this case, the prosecution did not even attempt
on appeal to defend the propriety of these statements. See id. Nevertheless, we
specifically noted that they were “impermissible because they undermined two
fundamental aspects of the presumption of innocence, namely that the
presumption (1) remains with the accused throughout every stage of the trial,
including, most importantly, the jury’s deliberations, and (2) is extinguished only
upon the jury’s determination that guilt has been established beyond a reasonable
doubt.” Id. at 471 n.2.
In particular, we noted in Mahorney that “the essence of the error in the
prosecution’s comments here was that they conveyed to the jury the idea that the
presumption had been eliminated from the case prior to deliberations.” Id. at 473.
We rejected the suggestion that a generalized fundamental fairness inquiry was
the proper framework for determining whether the prosecution’s comments
effected a constitutional violation. Id. at 472–73. That framework was applicable
in circumstances where the court failed “to give a specific charge on the
presumption of innocence.” Id. at 472. Such a failure “‘does not in and of itself
violate the Constitution’ in the absence of a finding that such failure, when
considered with all other circumstances, rendered the trial fundamentally unfair.”
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Id. at 472 (quoting Kentucky v. Whorton, 441 U.S. 786, 789 (1979)). Rejecting
this approach, and with the prosecution’s comments in mind, we stated that “[a]
misstatement of law that affirmatively negates a constitutional right or principle is
often, in our view, a more serious infringement than the mere omission of a
requested instruction.” Id. at 473.
We recognized, however, that it was not enough that the prosecution’s
comments violated the petitioner’s constitutional rights; they had to substantially
prejudice him. And, considering “the pertinent surrounding circumstances at
trial,” we concluded that they did “show substantial prejudice.” Id. Among the
factors that the court concluded supported its prejudice determination was the fact
that the court’s “overall charge on the presumption of innocence and burden of
proof was not sufficiently specific to preserve that presumption in light of the
prosecutor’s specific statement that it had been extinguished from the case.” Id.
at 473–74. Notably, we reached this conclusion even though “[t]he jury
instructions were read to the jury [by the court] before closing arguments were
made.” Id. at 474 n.5.
“Moreover, the trial court did not thereafter attempt to cure or minimize the
problem [caused by the prosecutor’s presumption-of-innocence advisement]
through admonishment or special instruction of the jury.” Id. at 473.
Furthermore, “the character and condition of the evidence” supported our
determination of substantial prejudice. Id. at 474. Specifically, the outcome of
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the case turned on the credibility of testimonial evidence, which neither “was
conclusively confirmed [n]or disproportionately discredited by extrinsic
evidence.” Id. Thus, considering the particular circumstances of the
case—including this state of the evidence, “the aggravated effect of the
prosecution’s misconduct . . . and the fact that this misconduct went directly to a
fundamental precept guiding the factfinder’s evaluation of guilt or
innocence”—we concluded that we could not “say that the constitutional infirmity
in petitioner’s criminal trial was harmless.” Id.
2
Akin to Mahorney, we conclude that, under the particular circumstances of
this case, the government’s presumption-of-innocence advisement—at the very
least—had some prejudicial effects on the trial, irrespective of whether those
effects were sufficient to affect Mr. Starks’s substantial rights, within the
meaning of the plain-error test’s third prong. This is so because in this case
(1) the substance of the court’s generalized instructions was not helpful in
mitigating the strong potential for prejudice—and actual prejudicial
effects—caused by the prosecution’s presumption-of-innocence advisement;
(2) the unconventional timing of the court’s delivery of its oral instructions may
have undermined the capacity of the instructions to be a positive instrument for
mitigating any prejudice from the advisement; and (3) contrary to the
government’s contentions, its proof of Mr. Starks’s guilt—being essentially
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circumstantial and dependent on the testimony of an admitted drug addict and
alleged coconspirator with a plea deal—was not “overwhelming.” Cf. Aplee.’s
Resp. Br. at 21. We address each of these factors in turn.
a
In Mahorney, we bolstered our conclusion that the prosecution’s
presumption-of-innocence advisement, like the one here, caused the petitioner
substantial prejudice by reasoning that “the trial court’s overall charge on the
presumption of innocence and burden of proof was not sufficiently specific to
preserve that presumption in light of the prosecutor’s specific statement that it
had been extinguished from the case.” 917 F.2d at 473–74. This reasoning also
seems cogent here, where the district court offered only generalized instructions
regarding the government’s proof-beyond-a-reasonable doubt burden and the
defendant’s presumption of innocence. See R., Vol. I, at 54 (Instr. 5); id. at 135
(Instr. 6); id. at 136 (Instr. 7); see also id., Vol. III, at 248–50 (Instrs. 5, 6, and
7).
Moreover, as in Mahorney, after the prosecution made its impermissible
statements concerning the presumption of innocence, “the trial court did not
thereafter attempt to cure or minimize the problem through admonishment or
special instruction of the jury,” 917 F.2d at 473—even though, as the government
here concedes, the error was clear or obvious and thus an error that the court
should have addressed sua sponte. This silence in the court’s instructions
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possibly could have left the jury with the impression that the court condoned the
prosecution’s impermissible statements. See Currie, 911 F.3d at 1056 (“A court’s
refusal to correct a prosecutor’s misstatement of law may affect the prejudicial
effect of the comment.”); cf. United States v. Slatten, 395 F. Supp. 3d 45, 103
(D.D.C. 2019) (“Because this Court quickly, forcefully, and repeatedly corrected
the prosecutor’s erroneous insinuation that the presumption of innocence no
longer applied, [the defendant] wasn’t prejudiced.”); cf. also Taylor, 514 F.3d at
1100–01 (concluding district court’s instruction immediately after improper
comment cured prejudicial effect). 5
Therefore, the substance of the district court’s generalized instructions here
5
In his closing argument, defense counsel attempted to address the
prosecution’s erroneous presumption-of-innocence advisement. He said:
[The] Prosecutor said when he stood up that on Monday [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, we, the people, Mr. Starks is presumed
innocent. And he is innocent.
R., Vol. III, at 657. However, by its own terms, this comment of Mr. Starks’s
counsel expressed nothing more than a mere disagreement with the prosecution
regarding the law. And the instructions made clear that the jury was obliged to
look to the court for guidance regarding the governing law. See id. at 245 (“You
must not substitute or follow your own notion or opinion as to what the law is or
ought to be. It is your duty to apply the law as I explain it to you, regardless of
the consequences.”); accord id., Vol. I, at 128. Accordingly, though well-
intentioned, counsel’s response to the prosecution’s erroneous presumption-of-
innocence advisement had little force to diminish the strong potential for
prejudice—and actual prejudicial effects—stemming from the advisement and
certainly could not make up for the court’s failure to correct the advisement.
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was unhelpful in mitigating the strong potential for prejudice—and actual
prejudicial effects—caused by the prosecution’s presumption-of-innocence
advisement. To be sure, the court’s presumption-of-innocence instruction stated
that the presumption “remains with [the defendant] throughout the trial.” R., Vol.
III, at 249 (emphasis added); accord id., Vol. I, at 135. However, nothing in the
jury instructions defined what procedural events constituted the “trial.” As a
result, a reasonable juror could have erroneously concluded—in a manner
consistent with the government’s flawed presumption-of-innocence
advisement—that the “trial” ended with the close of evidence. Cf. Mahorney, 917
F.2d at 471 n.2 (“[T]he presumption of innocence . . . remains with the accused
throughout every stage of the trial, including, most importantly, the jury’s
deliberations, and . . . is extinguished only upon the jury’s determination that
guilt has been established beyond a reasonable doubt.”).
Further, the government reminds us that the court—in addition to
instructing the jury regarding the government’s beyond-a-reasonable-doubt
burden and the presumption of innocence—also instructed the jury that
“[s]tatements, arguments, and remarks of counsel are not evidence in the case,”
and that the jury was admonished to “consider only the evidence in the case.” R.,
Vol. I, at 167 (Instr. 32). And the government points to the unremarkable
proposition that “the jury is presumed to have followed” its instructions. Aplee.’s
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Resp. Br. at 45; see also Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is
presumed to follow its instructions.”); Bland v. Sirmons, 459 F.3d 999, 1015 (10th
Cir. 2006) (noting that “[t]he jury is presumed to follow its instructions, even
when there has been misleading argument” (citation omitted)).
The government’s line of argument is of course intended to suggest that
Mr. Starks was not prejudiced by the prosecutor’s impermissible presumption-of-
innocence advisement because the jury—by dutifully following its
instructions—would have ignored the advisement. However, the presumption that
the jury follows its instructions in the face of a prosecutor’s impermissible
arguments is just that—a presumption.
More to the point, in the context of a prosecution argument remarkably
similar to the one here, we emphasized that “[a] misstatement of law that
affirmatively negates a constitutional right or principle” frequently results in a
“serious infringement” of a defendant’s constitutional rights. Mahorney, 917 F.2d
at 473 (emphasis added). And, as Mr. Starks aptly notes, “that instruction
[providing that counsel’s statements or arguments are not evidence, which the
government relies on here] says nothing about counsel’s statements about the law.
The prosecutor’s improper statement about the presumption of innocence stood
uncorrected by any instruction.” 6 Aplt.’s Reply Br. at 13. Accordingly, guided in
6
It is true that the court’s generalized instructions told the jury that it
(continued...)
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substantial part by Mahorney’s reasoning and outcome, we are inclined to
conclude that the district court’s generalized admonishments to the jury about the
non-evidentiary quality of counsel’s arguments would have had little effect in
dissipating the strong potential for prejudice—and actual prejudicial
effects—stemming from the prosecution’s presumption-of-innocence advisement.
In sum, the substance of the district court’s generalized instructions was unhelpful
in mitigating this strong potential for prejudice and actual prejudicial effects of
this advisement.
b
Moreover, at least under the circumstances here, the court’s unconventional
timing in orally delivering virtually all of its instructions may have significantly
undermined any capacity that the court’s generalized instructions had to mitigate
6
(...continued)
should “apply the law as [the court] explain[ed] it to [the jury].” R., Vol. III, at
245 (“You must not substitute or follow your own notion or opinion as to what
the law is or ought to be. It is your duty to apply the law as I explain it to you,
regardless of the consequences.”). Arguably, this could have suggested to the
jury that counsel’s statements and arguments should not be understood as
providing the law of the case. However, even though the jury was thus informed
that it should look to the court for the governing law, as we explain, the court
unconventionally gave the jury this oral instruction approximately two days
before it began deliberating, see infra, II.B.2.b—which may have significantly
diminished the instruction’s capacity to mitigate the potential and actual
prejudicial effects of the prosecution’s presumption-of-innocence advisement.
And, more broadly, the substance of the court’s generalized instructions was
unhelpful in mitigating the strong potential for prejudice—and actual prejudicial
effects—caused by this advisement.
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the strong potential for “serious infringement” of Mr. Starks’s constitutional
rights—and also the actual prejudicial effects of the advisement. Mahorney, 917
F.2d at 473. The district court here acknowledged that the timing of its
instructions was unconventional: with the exception of only a couple of
instructions, the court elected to give the full set of instructions to the jury even
before counsel started presenting evidence. See R., Vol. III, at 244. (“Well, folks,
usually the instructions are given at the end of the case, right before closing
arguments. It has always seemed to me that that got things backwards.”). As the
court understood, the usual practice is to give the instructions to the jury at the
end of the evidence—frequently, after counsel’s oral arguments. See, e.g., Neil P.
Cohen, The Timing of Jury Instructions, 67 T ENN . L. R EV . 681, 694 (2000) (“The
usual pattern in America is that jury instructions are given after closing arguments
by both sides.”); 1 Kevin F. O’Malley et al., F ED . J URY P RAC . & I NSTR . § 7.1 (6th
ed.), Westlaw (database updated Jan. 2022) (“The court’s charge generally
follows the jury arguments.”); id. § 7.6 (noting that “the majority of judges
deliver their instructions after final arguments”); see also Stephan Landsman, The
Civil Jury in America, 62 L AW & C ONTEMP . P ROBS . 285, 299 (Spring 1999)
(“Once all the evidence has been presented, it is the judge’s job to inform the jury
of the law to be used in deciding the case.” (emphasis added)).
Significantly, the court’s generalized instructions regarding the
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government’s beyond-a-reasonable-doubt burden (Instrs. 5 and 7) and the
presumption of innocence constitutionally afforded to defendants (Instr. 6) were
orally delivered to the jury on this unconventional schedule. And, crucially, the
court did not repeat these important, bedrock instructions—or any of the others
that it gave at the outset of the trial—at the close of the evidence. See R., Vol.
III, at 485 (responding to a query from counsel regarding whether it would repeat
the instructions at the close of the evidence, the court noted that it was “not going
to go through the instructions again”).
Therefore, as a consequence of the court’s approach, the jury heard the
court’s oral instructions regarding most of the governing law only once and
approximately two days before they began deliberations. And, in particular, the
jury did not hear again—at the close of the evidence—the court’s oral instructions
regarding the government’s burden of proof (i.e., Instrs. 5 and 7), nor the court’s
instruction concerning the presumption of innocence that the Constitution affords
to Mr. Starks (i.e., Instr. 6).
We have never opined on the propriety of this unconventional instructional
approach, and we do not need to lay down a one-size-fits-all categorical rule on
the subject to resolve this case. In this regard, we recognize that the federal rules
grant trial courts a certain amount of discretion regarding when they instruct the
jury. See F ED . R. C RIM . P. 30(c) (“The court may instruct the jury before or after
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the arguments are completed, or at both times.”). However, we are well aware
that some courts have deemed such an unconventional approach—involving the
pre-evidence oral delivery of instructions—to be problematic and even legally
erroneous, where, as here, the full set of instructions is not repeated at the end of
the presentation of evidence. And this is primarily because of concerns regarding
the jury’s capacity to remember important legal principles before they deliberate.
See, e.g., State v. Woolcock, 518 A.2d 1377, 1389 (Conn. 1986) (“While on
occasion preinstructions may be necessary and trial judges should not shrink from
acting, in the main we concur with Justice Fuchsberg when he said: ‘[T]he issue
crystallization process can only achieve its potential if detailed instructions are
given immediately before the jury’s deliberation. Introductory remarks are no
substitute.’” (alteration in original) (citation omitted) (quoting People v. Newman,
385 N.E.2d 598, 600 (N.Y. 1978))); State v. Nelson, 587 N.W.2d 439, 444 (S.D.
1998) (concluding that trial court’s delivery of instructions concerning the
presumption of innocence and reasonable doubt standard at the beginning of trial
but not at the close of evidence violated a statutory mandate and constituted plain
error, reasoning that “[p]reliminary instructions serve to inform jurors of their
‘function,’” but their use “never relieves the court of its duty to comprehensively
inform jurors of the law at the close of the evidence,” and the idea “[t]hat jurors
will remember instructions given at the beginning of a case may presume too
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much” (quoting State v. Eagle Star, 558 N.W.2d 70, 74 (S.D. 1996))); United
States v. Ruppel, 666 F.2d 261, 274 (5th Cir. 1982) (concluding that the district
court erred in instructing the jury on the presumption of innocence at the
beginning of the trial but failing to repeat the instructions at the close of trial
eleven days later); State v. Romanosky, 859 P.2d 741, 742 (Ariz. 1993) (holding
that the judge’s failure to re-instruct the jury regarding the reasonable doubt
standard at the end of the evidence was reversible error); see also Saul M. Kassin
& Lawrence S. Wrightsman, T HE A MERICAN J URY ON T RIAL : P SYCHOLOGICAL
P ERSPECTIVES 146 (1988) (“Preliminary instructions . . . are not a substitute for
the final charge, but a supplement to it.”); Cohen, supra, at 692 (“Of course, the
early jury instructions will not replace the final instructions.”).
This authority leads us, under the particular circumstances of this case, to
conclude that the court’s unconventional timing in delivering its oral instructions
may have undermined any capacity (albeit limited) that the court’s generalized
instructions may have had to mitigate the strong potential for “serious
infringement” of Mr. Starks’s constitutional rights—and the actual prejudicial
effects—caused by the prosecution’s impermissible presumption-of-innocence
advisement. Mahorney, 917 F.2d at 473; see also Aplt.’s Reply Br. at 12 (“The
unique and early timing of the oral jury instructions in this case (before, rather
than after, the presentation of evidence) meant that the district court’s only oral
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admonitions about the presumption of innocence were separated from the
prosecutor’s misconduct by two days.”).
Indeed, if the panel in Mahorney discerned substantial prejudice to the
petitioner from a presumption-of-innocence advisement like the one here, we are
hard pressed to say that the court’s unconventional timing in this case could
produce a better outcome in mitigating prejudice. In that regard, recall that in
Mahorney the court at least offered its generalized instructions regarding the
government’s beyond-a-reasonable-doubt burden and the petitioner’s presumption
of innocence after the close of the evidence and “before closing arguments.” 917
F.2d at 474 n.5. But under the court’s unconventional timing here, the oral
instructions were only delivered to the jury once before the presentation of
evidence and approximately two days before the jury retired to deliberate.
Moreover, the problematic effect of the court’s unconventional
timing—that is, its delivery of most of its oral instructions only once before the
presentation of evidence—is underscored when we contrast that timing with the
timing of the prosecution’s delivery of its erroneous presumption-of-innocence
advisement. The prosecution offered its advisement in closing argument so that
one of the last things the jury heard before retiring to deliberate was the
government’s uncorrected and erroneous statement that Mr. Starks no longer had
a right to be presumed innocent. One might reasonably have concerns that the
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timing of this advisement, standing alone, could magnify its prejudicial effect.
See, e.g., United States v. Velazquez, 1 F.4th 1132, 1140 (9th Cir. 2021)
(concluding that an error was reversible where the prosecutor’s
mischaracterization of the beyond-a-reasonable-doubt standard in closing “was
among the last things the jury heard before they began deliberations, . . .
exacerbating [the court’s] concerns”); Girts v. Yanai, 501 F.3d 743, 760 (6th Cir.
2007) (holding that an error was reversible where the prosecutor’s improper
comments during closing arguments about the petitioner’s silence “were some of
the last statements heard by the jury before deliberations”); see also Michael D.
Cicchini, Combating Prosecutorial Misconduct in Closing Arguments, 70 O KLA .
L. R EV . 887, 891–92 (2018) (“Because jurors enter deliberations with closing
arguments . . . still ringing in their ears, those words could have more impact than
the actual evidence presented much earlier in the case.”); 7 cf. United States v. De
7
Indeed, empirical research suggests that statements made in closing
arguments—including, as here, improper comments or misstatements of law—are
likely to have an outsized effect due to their temporal proximity to jury
deliberations. See, e.g., Mary Nicol Bowman, Mitigating Foul Blows, 49 G A . L.
R EV . 309, 343–44 (2015) (asserting that improper prosecutorial arguments, such
as improper vouching for prosecution witnesses, “might be particularly powerful
during closing arguments, as empirical research supports the common wisdom
among trial advocates about the persuasive power of closing arguments on
jurors”; specifically, “[e]mpirical research on the ‘recency effect’ suggests that
people tend to remember best and be influenced by the latest event in a sequence
more than by earlier events”); Mary Nicol Bowman, Confronting Racist
Prosecutorial Rhetoric at Trial, 71 C ASE W. R ES . L. R EV . 39, 62–63 (2020)
(“[The importance of] closing arguments is supported by psychological research
(continued...)
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La Luz Gallegos, 738 F.2d 378, 383 (10th Cir. 1984) (concluding that an error
was harmless because the government’s improper comments on the defendant’s
silence in its opening statement were not “fresh in the minds of the jurors” after
the presentation of evidence and closing statements). And those concerns could
only be exacerbated here by the fact that the jury instructions—which customarily
serve to mitigate the prejudice of impermissible arguments by counsel—were not
given around the time of the prosecution’s erroneous statements but, instead, two
days prior.
7
(...continued)
on ‘recency effect,’ which involves a focus on the most recent information
presented. ‘Recency effects arise when a fact-finder is presented with
voluminous, challenging evidence, and they must make an immediate decision
following trial.’ This research suggests that comments in closing arguments are
likely to have outsized significance compared to comments in the middle of the
trial.” (quoting Mark Spottswood, Ordering Proof: Beyond Adversarial and
Inquisitorial Trial Structures, 83 T ENN . L. R EV . 291, 293 (2015))); Ryan Patrick
Alford, Catalyzing More Adequate Federal Habeas Review of Summation
Misconduct: Persuasion Theory and the Sixth Amendment Right to an Unbiased
Jury, 59 O KLA . L. R EV . 479, 513–14 (2006) (“Empirical studies have also
demonstrated that the recency effect is at play during trials; jurors are more likely
to remember and be influenced by trial events that occur shortly before they begin
deliberating. . . . Indeed, because of the recency effect, the closing argument has
often been labeled the ‘make or break’ moment of the trial . . . .”); Hon. Amy J.
St. Eve & Gretchen Scavo, What Juries Really Think: Practical Guidance for
Trial Lawyers, 103 C ORNELL L. R EV . O NLINE 149, 168 (2018) (finding based on
survey of more than 500 jurors that “[c]losing arguments matter to juries
significantly more than opening statements,” likely due to recency effects). See
generally Christoph Engel et al., Coherence-Based Reasoning and Order Effects
in Legal Judgments, 26 P SYCHOL . P UB . P OL ’ Y & L. 333 (2020) (summarizing
previous empirical research regarding recency effects, and conducting two studies
on legal decision-making that “consistently observed recency effects”).
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To be sure, the district court ensured that each juror had a written set of the
instructions at the outset of the case and arranged for the original set of the
written instructions to be delivered to the jury at the start of its deliberations.
Indeed, the court went further, urging the jurors to review the instructions early in
their deliberations and pointing out that their work as jurors would be “more
productive” if they were familiar with “the legal principles upon which [their]
verdict must be based.” R., Vol. I, at 171 (Instr. 34); accord id., Vol. III, at 621.
However, these circumstances do not alter our belief that the district court’s
unconventional timing here in delivering its oral instructions may have
undermined the capacity for the instructions to mitigate the strong potential for
prejudice—and actual prejudicial effects—caused by the prosecution’s
presumption-of-innocence advisement. A court’s oral instructions play a unique
role in ensuring that jurors gain an accurate and comprehensive understanding of
a case’s governing legal principles—a role that written instructions arguably
cannot replicate. See, e.g., United States v. Becerra, 939 F.3d 995, 1001 (9th Cir.
2019) (“[M]any jurors may not adequately comprehend written instructions. It is
no secret that jury instructions are often written in language more suitable for
lawyers than laypersons. . . . When the instructions are read orally, tonal
inflection can make the content of the instructions more accessible, as well as
discourage the ‘tuning out’ common when reading dense material. Oral
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instruction in the formal courtroom setting thus assures that jurors are exposed to
the substance of the essential instructions by at least one sensual route.”); see also
William W. Schwarzer, Communicating with Juries: Problems and Remedies, 69
C ALIF . L. R EV . 731, 756 (1981) (“Oral instructions can be more easily followed
and understood by jurors because they are less formalized.”); Robert Winslow,
The Instruction Ritual, 13 H ASTINGS L. J. 456, 470 (1962) (“If we speak directly
to the jury in a personalized manner during the so-called general instructions, we
will be less likely to lose their attention.”). Indeed, there is reason to believe that
this unique role of oral instructions would be most fully at play when the subject
matter involves complex concepts, like the government’s beyond-a-reasonable
doubt burden and the defendant’s presumption of innocence. Cf. Laurence J.
Severance et al., Toward Criminal Jury Instructions that Jurors Can Understand,
75 J. C RIM . L. & C RIMINOLOGY 198, 203–04 (1984) (concluding based on
empirical research that jurors had particular “difficulty understanding instructions
on ‘reasonable doubt’ and the closely linked concept of ‘presumption of
innocence’”). Accordingly, at least under the particular circumstances here, we
conclude that the court’s unconventional timing in orally delivering most of its
instructions—before the presentation of evidence and not close in time to the
prosecution’s erroneous presumption-of-innocence advisement—may have
undermined the capacity of the (already unhelpful) generalized instructions to
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mitigate the strong potential for prejudice—and actual prejudicial effects—of the
government’s advisement.
c
In addition to the generalized substance of the court’s instructions and the
unconventional timing of their oral delivery, a factor that allowed for the strong
potential for prejudice—and actual prejudicial effects—of the government’s
presumption-of-innocence advisement was the lack of strength of the
government’s case.
Contrary to the government’s assertion, the evidence against Mr. Starks on
his possession-with-intent-to-distribute offenses of conviction was far from
“overwhelming.” Cf. Aplee.’s Resp. Br. at 21. As the government itself
recognizes, “the main issue” was Mr. Starks’s “knowledge of the drugs in the
Toyota”—that is, the vehicle that Ms. Avery was driving. Id. The government
had to prove beyond a reasonable doubt that Mr. Starks—who was occupying and
driving the other car (the Chevy)—possessed those drugs “[o]n or about
September 17, 2018,” the day of his arrest. R., Vol. I, at 109–11 (Second
Superseding Indictment, filed Mar. 26, 2019). More specifically, the government
had to prove that on that date Mr. Starks at least constructively possessed the
narcotics in the Toyota.
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In this regard, the court gave the jury an instruction about possession and
constructive possession, which is unchallenged here. It reads in part:
The law recognizes two kinds of possession: actual possession
and constructive possession. A person who knowingly has direct
physical control over a thing, at a given time, is then in actual
possession of it.
A person who, although not in actual possession, knowingly has
both the power and the intention, at a given time, to exercise
dominion or control over a thing, either directly or through
another person or persons, is then in constructive possession of
it.
Id. at 150 (Instr. 15). There was a dearth of trial evidence that Mr. Starks
possessed the narcotics in the Toyota—either actually or constructively—on
September 17. Indeed, the government itself concedes that there was no direct
evidence—be it “forensic evidence such as DNA or fingerprints” or anything
else—that connected Mr. Starks to the drugs in the Toyota. Aplee.’s Resp. Br. at
57. Moreover, even though Ms. Avery’s testimony inculpated Mr. Starks in other
respects, as the government further acknowledges, she “did not tie [Mr. Starks]
directly to the drugs in the Toyota.” Id. at 56–57. Indeed, Ms. Avery could not
shed any light whatsoever on whether Mr. Starks possessed the narcotics in the
vehicle that she was driving because, according to her testimony, she was
surprised herself upon arrest to learn that there were narcotics in the vehicle. And
Mr. Starks made no incriminating statements connecting him to the narcotics in
the Toyota. Nor, as he points out, was there any “surveillance evidence of Mr.
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Starks dealing drugs at any point.” Aplt.’s Opening Br. at 43. Our observation in
Chavez is thus apt here as well: “in evaluating the strength of the government’s
case, the evidence that it did not produce is telling.” Chavez, 976 F.3d at 1210.
Thus, the government’s case turned on circumstantial evidence—which,
contrary to the government’s description, was hardly “powerful.” Cf. Aplee.’s
Resp. Br. at 57. It summarized this evidence in the following way: “[Mr. Starks]
made false exculpatory statements denying that he and [Mr.] Scott were traveling
together with [Ms.] Avery and [Ms.] Watt; that [Ms.] Avery and [Ms.] Watt made
a similar false exculpatory statement; and that [Mr. Starks] had a prior similar
drug conviction.” Id. (citations omitted). This is hardly a smoking gun.
“[F]alse exculpatory statements . . . ‘are admissible to prove
circumstantially consciousness of guilt or unlawful intent.’” United States v.
Davis, 437 F.3d 989, 996 (10th Cir. 2006) (quoting United States v. Zang, 703
F.2d 1186, 1191 (10th Cir. 1982)), cert. denied, 547 U.S. 1122 (2006). And the
government is correct that certain evidence—particularly, “the turnpike records
and the phones found”—would have permitted the jury to reasonably infer that
Mr. Starks’s statement denying knowledge of the occupants of the Toyota was
false. Aplee.’s Resp. Br. at 22. However, the government’s own recounting of
the evidence reveals that Ms. Avery, too, made a false exculpatory statement at
the time of her arrest; yet, the government did not require Ms. Avery to plead
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guilty to possessing with the intent to distribute the narcotics in the Toyota, and
she denies knowing that the drugs were present in the vehicle. So, Mr. Starks’s
false exculpatory statement is hardly dispositive of his knowledge and possession
of these narcotics either. As for Mr. Starks’s prior narcotics conviction, the court
expressly instructed the jury that “the fact that [Mr. Starks] may have previously
committed an act similar to the one charged in this case does not mean that [Mr.
Starks] necessarily committed the act charged in this case.” R., Vol. I, at 158.
And we should at least presume that the jury followed this instruction. See, e.g.,
Weeks, 528 U.S. at 234.
Moreover, the jury’s inability to reach a verdict concerning Mr. Starks’s
conspiracy charge suggests that this was a close case for the jury—or, at the very
least, that the evidence regarding his counts of conviction was not
overwhelming—because that evidence was not “substantially different” from the
evidence the government used to prove up the conspiracy charge. Compare
United States v. Reese, 745 F.3d 1075, 1090–91 (10th Cir. 2014) (concluding that
counts of conviction did not present a “close case” because the evidence
supporting these counts was “substantially different from the evidence on the
counts of acquittal”), cert. denied, 574 U.S. 894 (2014), with Sanchez v.
Mondragon, 858 F.2d 1462, 1464, 1468 (10th Cir. 1988) (noting, where “[t]he
court submitted four counts to the jury[] [for] battery, possession of a burglary
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tool, aggravated burglary, and larceny,” that the defendant “was acquitted of both
aggravated burglary and larceny, [thus] indicating that the jury had some doubts
about his involvement in the crime”), overruled on other grounds by United
States v. Allen, 895 F.2d 1577 (10th Cir. 1990).
To be sure, Ms. Avery’s testimony painted a picture for the jury of Mr.
Starks as a seasoned drug trafficker and supplier of narcotics to Mr.
Scott—including the type of drugs involved in Mr. Starks’s convictions, fentanyl
and heroin. And she provided dramatic, detailed testimony of Mr. Starks’s
supposed prior dealings with Mexican drug traffickers in seeking to secure
narcotics for Mr. Scott—testimony that could have suggested to the jury a
nefarious explanation for why two men, with names and birthdays identical to
those of Mr. Scott and Mr. Starks, crossed the U.S.-Mexico border on foot at 9:00
p.m. EST on September 7, 2018—ten days before the Kansas Troopers arrested
them—and then eighteen minutes later returned to the United States on foot via
that same entry-exit point, within one minute of each other.
Yet Ms. Avery’s credibility “was open to question,” Chavez, 976 F.3d at
1212—and that is saying the very least: she was testifying under a plea agreement
in the hopes of securing leniency and was an admitted drug addict. And the
court’s jury instructions properly warned the jury of the need to consider Ms.
Avery’s testimony with greater caution than an ordinary witness. See, e.g., R.,
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Vol. I, at 159 (Instr. 24) (instructing, as to a government witness testifying under
a promise of favorable treatment, that the jury “should examine [the witness’s]
testimony with more caution and greater care than the testimony of an ordinary
witness”); id. at 163 (Instr. 27) (“The testimony of a drug abuser must be
examined and weighed by the jury with greater caution than the testimony of a
witness who does not abuse drugs.”). Accordingly, Ms. Avery’s testimony was
hardly the stuff of an overwhelming case.
Thus, along with the generalized substance of the court’s instructions and
the unconventional timing of their oral delivery, a factor that allowed for the
strong potential for prejudice—and actual prejudicial effects—of the
government’s presumption-of-innocence advisement was the lack of strength of
the government’s case.
***
In sum, we determine that the court’s error in allowing the government’s
presumption-of-innocence advisement to stand uncorrected had a strong potential
for prejudice and did in fact have some prejudicial effects. As we discuss below,
we need not determine whether those prejudicial effects were of the magnitude,
standing alone, to affect Mr. Starks’s substantial rights, within the meaning of the
plain-error test’s third prong. That is because when those prejudicial effects are
cumulated with the prejudicial effects of two other errors, it is patent that Mr.
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Starks’s substantial rights were affected and his convictions are fatally infirm.
C
We conclude, under the particular circumstances of this case, that the
prejudicial effects stemming from the government’s presumption-of-innocence
advisement—when cumulated with the prejudicial effects of a preserved error
relating to the troopers’ expert testimony and an unpreserved error pertaining to
the prosecution’s vouching for Ms. Avery’s credibility—did affect Mr. Starks’s
substantial rights, and his convictions cannot stand. In light of this cumulative-
error conclusion, as with the presumption-of-innocence advisement, we have no
need to make definitive determinations as to whether the prejudicial effects of
each of the two additional errors, standing alone, would be sufficient to satisfy
the third prong of the plain-error test.
We first outline the doctrine of cumulative error and then explain why the
prejudicial effects of the court’s errors with respect to the admission of the
troopers’ expert testimony and the prosecution’s impermissible vouching
regarding Ms. Avery’s credibility—when cumulated with the prejudicial effects
arising from the presumption-of-innocence advisement—affected Mr. Starks’s
substantial rights under the plain-error test’s third prong. And, lastly, we discuss
why we exercise our discretion to reverse Mr. Starks’s convictions under that
test’s fourth prong.
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1
When we engage in a cumulative-error analysis, we typically “aggregate[ ]
all the errors that individually have been found to be harmless, and therefore not
reversible, and . . . analyze[ ] whether their cumulative effect on the outcome of
the trial is such that collectively they can no longer be determined to be
harmless.” Lopez-Medina, 596 F.3d at 740–41 (emphasis added) (quoting Hooper
v. Mullin, 314 F.3d 1162, 1178 (10th Cir. 2002)). But “there are inherent
problems in cumulating unpreserved error[s] (reviewed for plain error) with
preserved error[s] (reviewed for harmless error).” United States v. Caraway, 534
F.3d 1290, 1302 (10th Cir. 2008). Therefore, our case law instructs that, when
there are both preserved and unpreserved errors, the cumulative-error analysis
proceeds as follows:
First, the preserved errors should be considered as a group under
harmless-error review. If, cumulatively, they are not harmless,
reversal is required. If, however, they are cumulatively harmless,
the court should consider whether those preserved errors, when
considered in conjunction with the unpreserved errors, are
sufficient to overcome the hurdles necessary to establish plain
error. In other words, the prejudice from the unpreserved error
is examined in light of any preserved error that may have
occurred. For example, the defendant may not be able to
establish prejudice from the cumulation of all the unpreserved
errors, but factoring in the preserved errors may be enough for
the defendant to satisfy his burden of showing prejudice. If so,
the fourth prong of plain-error review must then be examined.
Id. Under this framework, we assume without deciding that each of the three
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errors at issue here—though producing some prejudicial effects—would
ultimately be determined, standing alone, to be harmless. Under this assumption,
it is only when their prejudicial effects are cumulated that they affect substantial
rights.
2
“We review a district court’s determination regarding the admissibility of
evidence under an abuse of discretion standard.” United States v. Contreras, 536
F.3d 1167, 1170 (10th Cir. 2008). This includes the court’s decision regarding
the admission of expert testimony under Federal Rule of Evidence 702. See
United States v. Roach, 582 F.3d 1192, 1206 (10th Cir. 2009) (reviewing a court’s
decision on “whether to admit or exclude an expert’s testimony for abuse of
discretion” (quoting Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.
2003))); see also James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207,
1214 (10th Cir. 2011) (holding that the district court abused its discretion in
admitting as a lay opinion testimony, what was actually expert opinion testimony
“based on technical or specialized knowledge”).
Federal Rule of Evidence 702 provides that “[a] witness who is qualified as
an expert by knowledge, skill, experience, training, or education may testify in
the form of an opinion.” 8 F ED . R. E VID . 702. Testimony becomes “expert
8
Conversely, Federal Rule of Evidence 701 provides that the
(continued...)
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testimony” when it addresses topics that are “beyond the realm of common
experience and . . . require the special skill and knowledge of an expert witness.”
James River Ins., 658 F.3d at 1214 (quoting Randolph v. Collectramatic, Inc., 590
F.2d 844, 846 (10th Cir. 1979)).
Knowledge drawn from experience in a specialized job—including, as here,
a law enforcement officer’s knowledge of drug trafficking patterns and
practices—falls “squarely” within the scope of expert testimony under Rule 702.
United States v. Cristerna-Gonzalez, 962 F.3d 1253, 1259 (10th Cir. 2020)
(addressing agent’s testimony on drug slang, culture, and trafficking protocol as
expert testimony under Rule 702); accord United States v. Cushing, 10 F.4th
1055, 1079–80 (10th Cir. 2021). “Although the line is not always clear, . . .
‘opinion testimony premised on the officer’s professional experience as a whole
is expert testimony’ under Rule 702.” United States v. Draine, 26 F.4th 1178,
1187 (10th Cir. 2022) (emphasis added) (quoting Cushing, 10 F.4th at 1080); see
also United States v. Kamahele, 748 F.3d 984, 998 (10th Cir. 2014) (“[W]e have
long recognized that police officers can testify as experts based on their
8
(...continued)
testimony of a witness who is not testifying as an expert is limited to opinions
that are “not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.” F ED . R. E VID . 701(c); see also United States v. Draine,
26 F.4th 1178, 1187 (10th Cir. 2022) (noting that “‘a law-enforcement officer’s
testimony based on knowledge derived from the investigation of the case at hand
is typically regarded as lay testimony’ under Rule 701” (quoting United States v.
Cushing, 10 F.4th 1055, 1080 (10th Cir. 2021))).
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experience ‘[b]ecause the average juror is often innocent of the ways of the
criminal underworld.’” (second alteration in original) (quoting United States v.
Garcia, 635 F.3d 472, 477 (10th Cir. 2011))).
The government does not dispute that Mr. Starks preserved at trial his
challenge to the admission of the expert testimony of Troopers Goheen and
Birney, 9 and that the district court abused its discretion in admitting this
testimony. However, the government argues that the court’s error in admitting
this testimony was harmless and should not lead to reversal. Having evaluated
the balance of the evidence, we are willing to at least assume that this is true, but
only insofar as this expert-testimony error is considered in isolation. But that
does not mean that the error was devoid of some prejudicial effects. And we
conclude that the cumulative effects of this error with the two other errors
addressed here affected Mr. Starks’s substantial rights.
Recall that the major deficiency in the government’s case pertained to the
lack of evidence connecting Mr. Starks to the narcotics in Ms. Avery’s vehicle
(i.e., the Toyota). As the government itself tells us, “the main issue in the case . .
. was whether [Mr. Starks] had knowledge of the drugs in the Toyota.” Aplee.’s
9
Mr. Starks’s counsel timely objected to five statements from
Troopers Goheen and Birney on the grounds that they constituted impermissible
expert testimony and were introduced without appropriate notice under federal
discovery rules. See F ED . R. C RIM . P. 16(a)(1)(G). Those objections were
overruled, but preserved for appeal. See Rogers v. Roth, 477 F.2d 1154, 1160
(10th Cir. 1973).
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Resp. Br. at 21. Yet there was a dearth of evidence indicating that Mr. Starks
knew there were narcotics in that vehicle and contemporaneously intended to
exercise dominion or control over them—that is, to constructively possess the
narcotics (as well as, of course, a lack of evidence of actual possession). Indeed,
though Ms. Avery’s testimony incriminated Mr. Starks in other respects, she
could not shed any light on whether Mr. Starks possessed (actually or
constructively) the narcotics in the vehicle that she was driving because,
according to her testimony, she was surprised herself upon arrest to learn that
there were narcotics in the vehicle.
Critically, the improperly admitted expert testimony of the troopers
significantly helped to fortify the proof regarding the “main issue,” id., in the
government’s case. In particular, this testimony purported to educate the jury
regarding the patterns and practices of drug traffickers relating to the vehicular
movement of narcotics. The government sought to demonstrate through this
expert testimony that Mr. Starks drove his vehicle in a manner consistent with the
practices of drug traffickers. In other words, the troopers offered their opinions,
as experts, that Mr. Starks drove his vehicle in a manner consistent with the
conduct of one who knew that he was facilitating the movement of narcotics. For
example, recall that Trooper Goheen testified that Mr. Starks was traveling on an
interstate drug-trafficking route, see R., Vol. III, at 277, and that, based on his
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training and experience, drug traffickers use “escort vehicles or decoys” to divert
law enforcement from load vehicles, id. at 357–58. And Trooper Birney testified
that, based on his training and experience, “just everything [was] adding up” that
the two vehicles in this case and their occupants were operating together. Id. at
411.
The troopers’ improper expert testimony thus lent credence to the
government’s contention that Mr. Starks constructively possessed with intent to
distribute the narcotics in the vehicle that Ms. Avery was driving. Indeed, from
this testimony, a reasonable jury arguably could infer that not only did Mr. Starks
know the identities of the individuals occupying the vehicle driven by Ms. Avery,
but also that he knew that the vehicle contained and was transporting narcotics for
distribution.
Furthermore, through its statements to the jury at the beginning and the end
of the trial, the prosecution stressed that the officers’ expert testimony concerning
the patterns and practices of drug traffickers mirrored the actual driving patterns
and practices of Mr. Starks. For instance, alluding to the troopers’ expected
testimony, the prosecution pointed out that “you’ll have an escort vehicle. That
escort vehicle’s job is to make sure the dope gets home, it gets to the ultimate
source.” Id. at 77. And then shortly thereafter, in discussing Trooper Goheen’s
actual observations of the vehicles being driven by Mr. Starks and Ms. Avery, the
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prosecution said, “[t]urns out [Mr. Starks] was driving that escort vehicle.” Id. at
78.
Moreover, during closing arguments, the government emphasized the
importance of 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. The government thus directly and strongly leaned into the troopers’
status as experts in arguing that Mr. Starks’s otherwise unremarkable driving on
the interstate bore the hallmarks of drug trafficking. See Aplt.’s Reply Br. at 6
(“The prosecutor then exploited that expert testimony at the end of the trial during
closing argument to establish the disputed issues that the government
acknowledges no direct evidence proved: Mr. Starks’s possession, control, and
intent with respect to the drugs.”).
The impact of the troopers’ improperly admitted expert testimony was thus
significant. It fortified the proof regarding the “main issue,” Aplee.’s Resp. Br. at
21, in the government’s case against Mr. Starks—that is, whether he
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constructively possessed the narcotics in the Toyota being driven by Ms. Avery.
Consequently, we can say that this error at least had some prejudicial effects
during Mr. Starks’s trial. 10 We already have homed in on and discussed at some
length the prejudicial effects of one of the unpreserved errors—perhaps the most
problematic one—related to the prosecution’s presumption-of-innocence
advisement. Now we turn to examine the other unpreserved error related to the
government’s vouching for Ms. Avery’s credibility. 11
3
“It is a due process error for a prosecutor to indicate ‘a personal belief in
10
It is not a sufficient rebuttal to this assertion to say—as the
government does—that the troopers would have been qualified as experts in any
event. See Aplee.’s Resp. Br. at 25 (“Because the troopers could have been
qualified under Rule 702 to give the testimony, the failure to so qualify them was
harmless.”). This may be a persuasive argument under some circumstances. Cf.
Draine, 26 F.4th at 1189 (in concluding the defendant had not established that his
substantial rights were affected by the admission of expert law enforcement
testimony, observing that “he has not shown that, had he objected or had the
district court addressed sua sponte [the officers’] qualifications, they likely would
have been found unqualified under Rule 702”). But, as Mr. Starks points out, he
“did not just object that the troopers were not properly qualified. He objected
that he did not receive proper notice of the substance of their testimony . . . .”
Aplt.’s Reply Br. at 8. Moreover, we assume in this discussion that the error,
standing alone, was ultimately harmless, as the government argues; that is not
logically inconsistent, however, with our conclusion that the error at least had
some prejudicial effects.
11
Ordinarily, under Caraway’s framework, we would cumulate other
preserved errors first. See Caraway, 534 F.3d at 1302. But there are no such
errors amongst the errors that we have targeted for analysis. So, we proceed to
cumulate the preserved error regarding the troopers’ expert testimony with the
two unpreserved errors that we have elected to address.
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the witness’ credibility . . . .’” United States v. Jones, 468 F.3d 704, 707 (10th
Cir. 2006) (quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.
1990)). Discouraging prosecutors from engaging in vouching is critical because
“the prosecutor’s opinion carries with it the imprimatur of the Government and
may induce the jury to trust the Government’s judgment rather than its own view
of the evidence.” Young, 470 U.S. at 18–19. We distinguish between a
prosecutor’s “fair[ ] comment on the evidence” to a jury, United States v. Orr,
692 F.3d 1079, 1097 (10th Cir. 2012), which is permissible, and “vouching by an
attorney as to the veracity of a witness[, which] is improper conduct and an error
which this Court will carefully review,” United States v. Swafford, 766 F.2d 426,
428 (10th Cir. 1985). “An argument is only improper vouching ‘“if the jury could
reasonably believe that the prosecutor is indicating a personal belief in the
witness’ credibility, either through explicit personal assurance of the witness’
veracity or by implicitly indicating that information not presented to the jury
supports the witness’ testimony.”’” United States v. Franklin-El, 555 F.3d 1115,
1125 (10th Cir. 2009) (quoting United States v. Magallanez, 408 F.3d 672, 680
(10th Cir. 2005)); accord Anaya, 727 F.3d at 1053–54. In other words,
“[v]ouching requires ‘either . . . explicit personal assurances of the witness’s
veracity or . . . implicit[] indicat[ions] that information not presented to the jury
supports the witness’s testimony.’” Anaya, 727 F.3d at 1053 (second and third
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alterations and omissions in original) (quoting Orr, 692 F.3d at 1097); see also
Christy, 916 F.3d at 834 (concluding that statement in rebuttal closing argument
that the witness was “probably the most sincere witness the prosecutor had ever
seen” constituted plainly improper vouching).
Invoking the plain-error rubric, Mr. Starks argues that the prosecution
improperly vouched for the credibility of Ms. Avery’s testimony. Specifically,
the prosecution stated that Ms. Avery was bound to a plea agreement requiring
her “only to do one thing: [t]ell the truth.” R., Vol. III, at 631. The prosecution
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
did object to this statement as improper vouching. The district court sustained the
objection and instructed the jury to disregard the statement. Nevertheless, Mr.
Starks concedes here that his appellate challenge to the prosecution’s vouching
was not preserved and subject to plain-error review because he “did not request
further curative action when his objections were sustained.” 12 Aplt.’s Opening
Br. at 33. He maintains, however, that this error was clear or obvious, violated
his substantial rights, and should lead us to rule in his favor under the plain-error
standard. Notably, the government does not dispute that the prosecution
committed clear or obvious error; however, it contends that the error did not
12
We accept Mr. Starks’s concession on the preservation question and
do not independently opine on the matter.
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affect Mr. Starks’s substantial rights—i.e., the error did not satisfy the plain-error
test’s third prong.
We assume without deciding, for purposes of our cumulative-error analysis,
that the government is correct—that Mr. Starks has not satisfied the third prong,
when this error is considered alone. But that does not mean that this error was
devoid of all prejudicial effects. The credibility of Ms. Avery’s testimony was
critical to the prosecution’s case. In particular, Ms. Avery’s testimony painted a
picture for the jury of Mr. Starks as a seasoned drug trafficker and supplier of
narcotics to Mr. Scott—including the drugs involved in Mr. Starks’s convictions,
fentanyl and heroin. And she provided dramatic, detailed testimony of Mr.
Starks’s supposed prior dealings with Mexican drug traffickers in seeking to
secure narcotics for Mr. Scott—testimony that could have suggested to the jury an
illicit reason why two men, with names and birthdays identical to those of Mr.
Scott and Mr. Starks, crossed the U.S.-Mexico border on foot at 9:00 p.m. EST on
September 7, 2018—ten days before the Kansas Troopers arrested them—and then
eighteen minutes later returned to the United States on foot via that same entry-
exit point, within one minute of each other.
However, as we have noted, Ms. Avery’s credibility clearly “was open to
question,” Chavez, 976 F.3d at 1212: she was testifying under a plea agreement in
the hopes of securing leniency and was an admitted drug addict. And the court
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properly instructed the jury about the need to consider Ms. Avery’s testimony
with comparatively greater caution. 13 Accordingly, almost any elevation of Ms.
Avery’s credibility standing in the eyes of the jury would have been beneficial in
some appreciable measure to the government’s case. And Mr. Starks makes at
least a colorable argument that the court’s “curative instruction was not strong
enough to mitigate the harm.” Aplt.’s Reply Br. at 13 (citing United States v.
Alancantara-Castillo, 788 F.3d 1186, 1197–98 (9th Cir. 2015)). Accordingly,
even though we assume that that this vouching error was not sufficient, standing
alone, to affect Mr. Starks’s substantial rights, we cannot conclude that the
government’s vouching for the credibility of Ms. Avery’s testimony did not
benefit the government’s case and appreciably prejudice Mr. Starks.
4
When the prejudicial effects of the preserved error relating to the troopers’
expert testimony and the unpreserved error concerning the prosecution’s vouching
for the credibility of Ms. Avery’s testimony are combined with the prejudicial
effects stemming from the court’s failure to correct the government’s
presumption-of-innocence advisement, we conclude that Mr. Starks’s substantial
13
See, e.g., R., Vol. I, at 159 (Instr. 24) (instructing, as to a
government witness testifying under a promise of favorable treatment, that the
jury “should examine [the witness’s] testimony with more caution and greater
care than the testimony of an ordinary witness”); id. at 163 (Instr. 27) (“The
testimony of a drug abuser must be examined and weighed by the jury with
greater caution than the testimony of a witness who does not abuse drugs.”).
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rights were affected. In this regard, recall that the latter error involving the
presumption of innocence “went directly to a fundamental precept guiding the
factfinder’s evaluation of guilt or innocence.” Mahorney, 917 F.2d at 474. The
government effectively told the jury that when it was deliberating regarding the
elements of Mr. Starks’s charged offenses—including the critical element of
(constructive) possession—that Mr. Starks no longer was clothed in the
presumption of innocence, a presumption that properly “is extinguished only upon
the jury’s determination that guilt has been established beyond a reasonable
doubt.” Id. at 471 n.2 (second emphasis added). Accordingly, applying the
cumulative-error doctrine under the circumstances here, we conclude that the
plain-error test’s third prong is satisfied—that is, Mr. Starks has established that
his substantial rights were violated.
5
Lastly, applying the cumulative-error rubric, we exercise our discretion
under the plain-error test’s fourth prong to notice this cumulative prejudice and
reverse Mr. Starks’s convictions. At issue here, in substantial part, are errors of
constitutional magnitude. And where such errors are present under plain-error
review, “reversal usually directly cures the constitutional infirmity and, as a
result, the failure to notice and correct the constitutional error would impugn the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
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Mozee, 405 F.3d 1082, 1091 (10th Cir. 2005); see also Gonzalez-Huerta, 403 F.3d
at 745 (Hartz, J., concurring) (“Not to reverse to correct the error is to ignore the
injury the defendant suffered from the violation of his or her constitutional
rights.”).
Furthermore, it is difficult to overstate the importance of the presumption
of innocence to the fairness and integrity of our criminal justice system. The
presumption of innocence is a “bedrock ‘axiomatic and elementary’ principle
whose ‘enforcement lies at the foundation of the administration of our criminal
law.’” In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin v. United States,
156 U.S. 432, 453 (1895)); accord Taylor v. Kentucky, 436 U.S. 478, 483 (1979).
And the right to be presumed innocent is especially important in a case like this
one, where the evidence was circumstantial and not overwhelming. Under these
circumstances, the presumption of innocence “cautions the jury to put away from
their minds all the suspicion that arises from the arrest, the indictment, and the
arraignment, and to reach their conclusion solely from the legal evidence
adduced.” Taylor, 436 U.S. at 485. But Mr. Starks’s jury was told that this
presumption evaporated at the close of the evidence—before it began deliberating
on his guilt and innocence.
In light of these important considerations, we exercise our discretion to
notice the cumulative prejudicial effects of the three errors discussed above and
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determine that these errors “seriously affect[ed] the fairness, integrity, or public
reputation of [the] judicial proceedings.” United States v. Alapizco-Valenzuela,
546 F.3d 1208, 1222 (10th Cir. 2008) (quoting United States v. Lopez-Flores, 444
F.3d 1218, 1221 (10th Cir. 2006)). Accordingly, Mr. Starks’s convictions cannot
stand.
III
For the foregoing reasons, we REVERSE the district court’s judgment and
REMAND the case, instructing the court to VACATE Mr. Starks’s convictions
and conduct further proceedings not inconsistent with this opinion.
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