U.S. v. Stark

• Decision Date: 16 August 2007
• Docket Number: No. 06-1853.,06-1853.
• Parties: UNITED STATES of America, Appellee, v. Sean STARK, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

499 F.3d 72

UNITED STATES of America, Appellee, v. Sean STARK, Defendant, Appellant.

No. 06-1853.

United States Court of Appeals, First Circuit.

Heard June 8, 2007.

Decided August 16, 2007.

Melvin Norris, with whom Richard J. Farrell, Jr., was on brief for appellant.

Michael J. Burstein, Attorney, U.S. Department of Justice, with whom Michael J. Sullivan, United States Attorney, and Jennifer Hay Zacks, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and FUSTÉ,^* District Judge.

FUSTÉ, District Judge.

Sean Stark appeals his conviction and sentence for conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 (2007). For the reasons stated below, we affirm the judgment of the district court.

I. Background

At approximately 12:30 p.m. on October 22, 2003, while driving from Arizona to Massachusetts in an RV, Stark and a companion, Christopher Sugar,¹ were stopped in Missouri by Deputy Sheriff Carmelo Crivello after their RV crossed the fog line and swerved onto the right shoulder. The stop was based on an alleged traffic violation of § 304.015.5 of the Missouri Code, which requires vehicles to drive within a single lane "as nearly as practicable." See Mo.Rev.Stat. § 304.015.5 (2007). During the stop, Crivello found that Stark and his companion were acting in a suspicious manner and asked if they would consent to a search of their RV. After they refused, he called a drug-sniffing dog to the scene. Crivello told the men that they could go to a nearby restaurant or hotel to wait for the canine but they chose to stay with the RV. Ten to fifteen minutes later, the canine unit arrived. After the dog alerted to the right rear of the RV, the police conducted a warrantless search of the vehicle. They found 376.9 pounds of marijuana and a gun belonging to Stark.

Stark and his companion were arrested and brought to a detention facility in the Phelps County Sheriff's Department, where Stark was interrogated by Detective Richard Hope. He confessed to the crime after he received a Miranda warning ("first confession"), and agreed to cooperate with the police in making a controlled delivery of the marijuana. A few hours later, Stark was interrogated by Agents Robert Hanson and Leslee Tate from the Drug Enforcement Administration ("DEA") in St. Louis. After Stark received another Miranda warning, he confessed to the crime a second time ("second confession"), stating that he was hired to deliver the 376.9 pounds of marijuana to Massachusetts. Stark also confirmed his desire to cooperate.

The following day, on October 23, 2002, after a third Miranda warning, Stark signed a statement of rights, as well as a prompt presentation waiver form, by which he waived his right to be immediately brought before a magistrate judge in the jurisdiction in which he was arrested. Hanson and Tate then drove Stark from St. Louis to Massachusetts. The trip took twenty-three hours, during which time Stark had a chance to rest in the RV and eat during rest stops. While he was in the RV, Stark was handcuffed with his hands in front of him, but he was de-cuffed during rest stops.

When they arrived in Massachusetts at 10:30 a.m. on October 24, 2002, DEA Agent David O'Neill took custody of Stark. He gave Stark a fourth Miranda warning and de-cuffed him. According to Stark, O'Neill then asked him "to bring him up to speed," and had him sign a confidential source agreement. After Stark confessed to the crime a third time ("third confession"), he and O'Neill prepared for the controlled delivery of the marijuana. Stark made suggestions as to how to best carry out the plan, and helped prepare the RV. As a result of the sting operation, the government arrested three co-conspirators, Fabian Ruiz, Anibal Torres, and Trevor Teague. Stark and the others were indicted for conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846.²

Before trial, the district court granted Stark's motion to suppress the marijuana, finding that the initial traffic stop, the detention of Stark and his companion while they waited for the canine unit to arrive, and the search of the RV violated Stark's Fourth Amendment rights ("the unlawful search"). Although § 304.015.5 of the Missouri Code does not explain what it means to drive "as nearly as practicable" in a single lane, the district court concluded that an isolated incident of swerving was not a violation of the statute because it is common for large vehicles, such as Stark's RV, to weave into other lanes. The court also found that it was unreasonable to detain Stark and his companion and to search the RV because their stories were consistent, their licenses were valid, and they had no criminal histories. Accordingly, the marijuana and the gun were suppressed.

Stark also moved to suppress all three of his confessions, asserting that they, like the marijuana, were poisonous fruits of the unlawful search of the RV. The district court suppressed the first two confessions but found that Stark's third confession was admissible because it was made voluntarily and was sufficiently attenuated from the illegal search.

Subsequently, the government filed a motion in limine to clarify whether the district court's suppression order also applied to testimony relating to the illegally-seized marijuana. It sought to admit, inter alia, testimony from Torres describing how he unloaded the marijuana from Stark's RV, and testimony regarding the drug amount. The district court ruled in favor of the government, but stated that the testimony could not refer to the unlawful search and noted that it would provide the jury with limiting instructions during the trial if necessary.

On December 14, 2005, after a three-day jury trial, Stark was found guilty. He was sentenced on April 13, 2006, to a term of sixty months of imprisonment, to be followed by forty-eight months of supervised release.

II. Analysis

Stark argues that the district court: (1) should have suppressed his third confession; (2) mistakenly admitted suppressed evidence at trial; (3) misled the jury in responding to a question regarding O'Neill's testimony; (4) erroneously failed to enter a judgment of acquittal; and (5) improperly found that Stark did not qualify for a safety valve sentence reduction. We address each argument in turn.

A. Stark's Motion To Suppress His Third Confession

"We review a district court's finding of fact for clear error, but give de novo consideration to its legal conclusions." United States v. Campa, 234 F.3d 733, 737 (1st Cir.2000). "In determining the outcome [of a motion to suppress] under the attenuation doctrine, the court of appeals does not defer to the district court." United States v. Paradis, 351 F.3d 21, 32 (1st Cir.2003); accord United States v. Hughes, 279 F.3d 86, 89 (1st Cir.2002).

Stark contends that his third confession should have been suppressed as fruit of the unlawful search of his RV. However, it is well-settled that a court "need not hold that all evidence is `fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). A confession made after an illegal search may be admitted if it was obtained "by means sufficiently distinguishable to be purged of the primary taint." Id. at 488, 83 S.Ct. 407 (internal quotations omitted). To determine whether the initial taint has been removed, we must balance the following factors: (1) the voluntariness of the statement; (2) "[t]he temporal proximity" of the illegal search and the confession; (3) "the presence of intervening circumstances"; and (4) "the purpose and flagrancy of the official misconduct" ("Brown factors"). Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

The district court found that the Brown factors counseled against suppressing Stark's third confession because it was made voluntarily two days after the illegal search; Stark was rested, fed, and de-cuffed; the confession was made to a new officer and in a new location; and the initial search and seizure was not an egregious violation of the Fourth Amendment. We agree.

There are numerous indicators that Stark's third confession was voluntary, thus meeting the first of the Brown factors. The first of these is the fact that Stark received a renewed Miranda warning before making his third confession. Dunaway v. New York, 442 U.S. 200, 217, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (stating that "a confession after proper Miranda warnings may be found `voluntary'"). In addition, Stark's proactive role in the planning of the controlled delivery demonstrated that he was "not acting from compulsion, but in the spirit of self-interest and cooperation" in making his third confession. See United States v. Patino, 862 F.2d 128, 133-34 (7th Cir.1988) (finding that defendant's decision to cooperate with the FBI and actively assist them with their investigation indicated that her second confession was voluntary).

The second Brown factor, temporal proximity, also counsels against suppression. Stark gave his third confession two days after the illegal search, which was arguably a sufficient amount of time for him to reflect on his predicament and determine whether he wanted to speak with an attorney before making any further statements. Compare Brown, 422 U.S. at 604-05, 95 S.Ct. 2254 (stating that two hours was insufficient), with United States v. Oliver, 27 Fed.Appx. 927, 928-29 (10th Cir.2001) (concluding that eleven hours was sufficient); United States v. Wesela, 223 F.3d 656, 662 (7th Cir.2000) (finding that six days was adequate). Stark counters that two days was insufficient because he was in police custody the entire time. However, this fact is not dispositive in cases where, as here, the conditions of detention were favorable, marked by rest...