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United States v. Starks.

No. 19-3256.  D.Kan. Judge Holmes. Presumption of Innocence—Prosecutorial Misconduct—Admissibility of Evidence—Fed. R. Evid. 702—Pretrial Presentation of Jury Instructions—Cumulative Error—Plain Error.

May 27, 2022

Kansas Highway Patrol troopers stopped two vehicles that were driving single file across Interstate 70. Defendant was traveling in one of the vehicles. A vehicle search revealed drug paraphernalia in defendant’s vehicle, and fentanyl and heroin in the companion vehicle. Defendant was charged in a three-count indictment with conspiracy and possessing with intent to distribute fentanyl and heroin. The companion car’s occupant, Avery, pleaded guilty to conspiracy and testified as a government witness at defendant’s trial.

Defendant’s trial commenced in an unconventional manner. The court elected to give the jury, with two exceptions, the full set of jury instruction before the presentation of evidence. At the conclusion of the evidence, the district court tendered two additional instructions but did not comprehensively instruct the jury again. Notably, the jury did not hear again the court’s oral instructions regarding the government’s beyond-a-reasonable-doubt burden of proof nor the court’s instruction concerning defendant’s presumption of innocence. In the government’s closing argument, counsel told the jury that based on the evidence and common sense, the presumption of innocence was no longer true due to the substantial weight of credible evidence. Defense counsel did not object, and the court did not sua sponte admonish the government or issue a curative instruction. Counsel for the government also made statements regarding its witnesses’ truthfulness. Defense counsel objected to one of the statements, which was sustained, but did not object to the others. The jury convicted defendant on the two possession with intent to distribute counts but did not reach a verdict regarding the conspiracy charge. Defendant was sentenced to 180 months’ imprisonment followed by five years of supervised release.

Defendant presented five arguments on appeal. The Tenth Circuit initially determined that it was unnecessary to reach some arguments because the cumulative effect of three errors was enough to warrant reversal of the convictions. First, the Tenth Circuit considered defendant’s argument that the district court plainly erred in allowing the government to engage in prosecutorial misconduct in closing argument. The government conceded that the district court clearly erred in permitting counsel’s presumption of innocence advisement to stand uncorrected. This error was prejudicial because (1) the substance of the court’s generalized jury instruction was not helpful in mitigating the strong potential for prejudice, (2) the unconventional timing of the delivery of the oral instructions undermined their capacity to mitigate the prejudice, and (3) the government’s proof of defendant’s guilt was not overwhelming.

Second, the government conceded that the district court abused its discretion in admitting expert testimony from officers without compliance with Fed. R. Evid. 702, and that defendant preserved this issue by objecting at trial. Admission of this testimony was prejudicial because it significantly helped to fortify proof of constructive possession of narcotics, which was a key issue in the case.

Third, defendant challenged witness credibility statements made in the government’s closing argument. The government again conceded that the district court committed clear error in not issuing curative instructions. Here, the government’s improper vouching for Avery’s credibility appreciably prejudiced defendant. When the prejudicial effects of the preserved error relating to the officers’ expert testimony and the unpreserved error concerning the prosecution’s vouching for Avery’s credibility were combined with the prejudicial effects stemming from the court’s failure to correct the government’s presumption of innocence advisement, defendant’s substantial rights were affected. Further, the errors were of constitutional magnitude because the importance of the presumption of innocence to the fairness and integrity of the criminal justice system cannot be overstated; failure to notice and correct the constitutional errors would impugn the fairness, integrity, or public reputation of judicial proceedings.

The judgment was reversed, and the case was remanded with instructions to vacate the convictions and conduct further proceedings consistent with this opinion.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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