United States v. Starks

34 F.4th 1142

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 27, 2022
• Docket: 19-3256
• Status: Published

Opinion

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.

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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

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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.

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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. § 2

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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.

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).

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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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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).

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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.

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.

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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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).

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.

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.

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.

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)).

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)).

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.

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.

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.

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.

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

38 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 39

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

39 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 40

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

40 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 41

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...)

41 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 42

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”).

42 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 43

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

43 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 44

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

44 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 45

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.

46 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 47

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

47 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 48

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

48 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 49

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.

50 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 51

Starks’s substantial rights were affected and his convictions are fatally infirm.

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.

51 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 52

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

52 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 53

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.

“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...)

53 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 54

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))).

54 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 55

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).

55 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 56

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

56 Appellate Case: 19-3256 Document: 010110690141 Date Filed: 05/27/2022 Page: 57

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

“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.

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.

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.