United States v. Starks

Decision Date27 May 2022
Docket Number19-3256
Citation34 F.4th 1142
Parties UNITED STATES of America, Plaintiff - Appellee, v. Devonte Jemell STARKS, Defendant - Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

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.

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.


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 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.

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 "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.


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. § 2 (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.

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 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...

To continue reading

Request your trial
5 cases
  • United States v. Walker
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 30, 2023
    ... ... experts is consistent with our usage when discussing ... prosecutors. We have often used the term "vouching" ... to refer to improper comments from a prosecutor who expresses ... a "personal belief in the witness'[s] ... credibility." United States v. Starks , 34 F.4th ... 1142, 1173 (10th Cir. 2022) (quotations omitted). But we have ... also called such prosecutorial commentary ... "bolstering." See, e.g. , United States ... v. Rios-Morales , 878 F.3d 978, 987 (10th Cir ... 2017) ... Our approach is consistent ... ...
  • United States v. Arellanes-Portillo
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 27, 2022
  • United States v. Guinn
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 28, 2023
    ... ... error (reviewed for harmless error)."). Because both of ... Guinn's alleged errors were unpreserved, and thus ... reviewable only for plain error, we needn't engage with ... that more intricate framework. See United States v ... Starks ... ...
  • United States v. Capps
    • United States
    • U.S. District Court — District of Kansas
    • June 23, 2023
    ... ... followed in Capps' trial.[11] None of these are controlling ... precedent, but they lend credence to Capps' position that ... the question is a close one. And though the Tenth Circuit in ... United States v. Starks[12] declined to adopt a ... “one-size-fits-all categorical rule,” as the ... aforementioned courts did, it certainly did not endorse what ... it referred to as the Court's “unconventional ... approach.”[13] The court in Starks ultimately ... concluded that the ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Utah Law Developments
    • United States
    • Utah State Bar Utah Bar Journal No. 35-5, October 2022
    • Invalid date
    ...done, or something that should have been done, by a provider, specifically on the patient’s behalf.” 10TH CIRCUIT United States v. Starks 34 F.4th 1142 (May 27, 2022) While reviewing a challenge to a conviction for possession with intent to distribute, the Tenth Circuit criticized the “unco......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT