861 F.3d 306 (1st Cir. 2017), 15-2365, United States v. Starks

Docket Nº:15-2365
Citation:861 F.3d 306
Opinion Judge:KAYATTA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. FOSTER L. STARKS, JR., Defendant, Appellant
Attorney:Victoria R. Kelleher, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Judge Panel:Before Kayatta, Circuit Judge, Souter, Associate Justice,[*] and Stahl, Circuit Judge.
Case Date:June 28, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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861 F.3d 306 (1st Cir. 2017)



FOSTER L. STARKS, JR., Defendant, Appellant

No. 15-2365

United States Court of Appeals, First Circuit

June 28, 2017

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[Copyrighted Material Omitted]

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United States v. Starks, 769 F.3d 83, (1st Cir. Mass., Oct. 8, 2014)

Victoria R. Kelleher, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Kayatta, Circuit Judge, Souter, Associate Justice,[*] and Stahl, Circuit Judge.


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KAYATTA, Circuit Judge.

This case makes its second appearance on our docket. The first appeal followed the conviction of Foster Starks, Jr. for possessing a firearm in violation of 18 U.S.C. § 922(g)(1). We vacated that conviction because the district court erred in finding that Starks lacked standing to challenge the lawfulness of a traffic stop that led to his arrest and the discovery of a gun and ammunition in a car he was driving. See United States v. Starks (Starks I), 769 F.3d 83, 88-90 (1st Cir. 2014). On remand, the district court adjudicated Starks's challenge to the traffic stop on its merits, ruling that the stop and the resulting search were lawful. Following a second jury trial, Starks was again convicted. He now asks that we set aside this conviction because the trial judge, Starks claims, effectively

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commented on the credibility of witnesses by telling the jurors that the judge had ruled prior to trial that the traffic stop was lawful. Starks also contends that the district court erred in determining that he was subject to a 180-month mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), on account of three prior convictions for the offense of armed robbery under Massachusetts law. For the following reasons, we affirm Starks's conviction but vacate his sentence.





Starks's challenge to his conviction rests on a jury instruction. Starks does not claim that the instruction in any way misstated the law. Rather, he claims that when the trial judge told the jury that the judge had already found the police officer's stop of Starks to be lawful, the judge effectively commented on the credibility of the two key witnesses at trial and put additional facts before the jury that bore on the witnesses' credibility. Judicial comments on the credibility of a witness in a criminal trial before a jury are improper. See, e.g., United States v. Má rquez--Pérez, 835 F.3d 153, 158 (1st Cir. 2016); United States v. Ayala-Vazquez, 751 F.3d 1, 28 (1st Cir. 2014). So, too, are judicial statements adding information to the record that bears on a witness's credibility. See, e.g., Quercia v. United States, 289 U.S. 466, 471-72, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); United States v. Cisneros, 491 F.2d 1068, 1075 (5th Cir. 1974). So we begin our inquiry by determining whether the trial court's instruction, in context, could be so understood by the jurors. Cf. United States v. Rivera-Rodríguez, 761 F.3d 105, 120-23 (1st Cir. 2014) (reviewing the record to determine if the trial judge's interventions created the appearance of bias). Toward that end, we summarize enough of the relevant evidence to allow us to gauge how the jurors might reasonably have construed the instruction and, if necessary, how much and to what degree of likelihood prejudice1 would have ensued.

On May 24, 2009, at around 10:00 or 11:00 P.M., Starks pulled over in the breakdown lane on Route 24 in Taunton, Massachusetts. He was driving a black Kia Sportage with the permission of an acquaintance who had rented the vehicle. Jason Vital, a Massachusetts state trooper, pulled over behind him, got out of his cruiser, and approached Starks's vehicle. When Starks exited the vehicle, Vital asked him if anything was wrong. Starks responded that he had just dropped a cigarette. Vital testified that Starks appeared nervous during this interaction; Starks testified that he was not nervous. After Starks retrieved his cigarette, he and Vital returned to their respective vehicles and pulled back onto Route 24.

Vital started following Starks. Vital testified that he noticed Starks drifting slightly into the next lane without signaling on three occasions. Starks testified, to the contrary, that he stayed in his lane and did not drift. Vital used his computer to check the registration on Starks's car and discovered

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that the car was registered to a rental company and listed as red rather than black. At that point, Vital pulled Starks over. Vital testified without contradiction that the color discrepancy alone justified pulling Starks over.

Vital approached Starks's driver's-side window and informed him that the registration indicated that Starks's car was red rather than black.2 Starks responded that the car was a rental. Vital asked for Starks's license and registration, which Starks provided. On checking the status of Starks's license, Vital learned that it had been suspended for failure to pay a ticket. He placed Starks under arrest for driving with a suspended license.[3] Vital testified that after he asked Starks to exit the vehicle, Starks's " nervous level had grown exponentially." Starks testified that he was not nervous. After securing Starks in the back seat of the cruiser, Vital requested a tow of the rental car pursuant to state police policy. He then looked through the windows of the car with a flashlight. He saw a white Wal-Mart bag containing a box of ammunition in the front passenger's seat. He opened the car door and searched the bag, whereupon he found more ammunition and a firearm wrapped in a black bandana.

Following our decision in Starks I, and prior to trial, Starks pressed his motion to suppress the firearm and ammunition, arguing that the stop was unconstitutional. The district court rejected this motion after a hearing at which Starks did not testify.

At trial, Starks did not contest that the Wal-Mart bag in his car contained a firearm and ammunition. Instead, his defense was that he came into possession of the Wal-Mart bag without knowing its contents.4 The key points of his account are these: Starks's son, Dante, had been arrested on May 23 after his girlfriend reported to the police that he had assaulted her. On the evening of May 24, Dante called and asked Starks to go to his apartment to pick up clothing and documents for court. Starks drove to the apartment and encountered Dante's girlfriend. She agreed to retrieve the clothing and documents while Starks waited in the car outside. She walked out to the car with the Wal-Mart bag, which she placed in the front passenger's seat. Starks drove away without looking in the bag. To support this account, defense counsel asserted that it made no sense for Starks to place a bag containing a gun and ammunition in the front passenger's seat of the car and to leave it there even after Vital pulled him over.

The government challenged Starks's account in two primary ways. First, the government pointed out that the Wal-Mart bag contained four bottles of prescription pills, all of which were prescribed to Starks. Starks specifically sought the return of these pills--along with the clothing and documents--after he was booked and released on bail. Second, the government questioned whether it was plausible that Starks would trust Dante's girlfriend to retrieve Dante's clothing and documents

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after she had reported Dante to the police. The government suggested that it was far more plausible that Starks had gone into Dante's apartment himself to retrieve the pills, the clothing, and the documents--and that he had taken the gun and ammunition too, so that Dante's estranged girlfriend wouldn't turn them over to the police.

During closing arguments, defense counsel sought to cast doubt on aspects of Vital's testimony. Counsel argued that during the first interaction, " [Starks] wasn't nervous. Trooper Vital would have you believe that he was nervous. . . . He was not somebody who was fearful of the police." Counsel relied on Starks's testimony that he had once worked as a truck driver to argue that he was not drifting from lane to lane without signaling: " [Starks] drives for a living. He knows at that point that there's a trooper that's following behind him. . . . Somebody who has a [commercial driver's] license and who relies on their license, doesn't drive in that way and they know how to drive." On rebuttal, the government argued, for the first time, that Starks's nervousness while interacting with Vital was evidence he knew about the gun and ammunition on the seat next to him.

During the final jury charge, the district court gave the instruction that Starks now challenges on appeal. The court instructed the jury: evidence or what [he] believe[s] the verdict should be" ; and that the jurors were " the sole judges of the credibility of the witnesses." Legality of the traffic stop. You have heard testimony by Trooper Vital and Mr. Starks about the circumstances surrounding Trooper Vital's stop of the rental car Mr. Starks was driving and the reasons for that stop.

To the extent their descriptions of those circumstances differed, you may consider such testimony like any other testimony. You are not called upon, however, to determine the legality of the stop. Before the trial, I ruled that the stop was lawful. That was a legal determination and you may not question my ruling. However, the evaluation of the credibility of Trooper Vital, Mr. Starks, and the other witnesses is solely and entirely for you to...

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