FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]
Victoria R. Kelleher for appellant.
T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Kayatta, Circuit Judge, Souter, Associate Justice,
and Stahl, Circuit Judge.
KAYATTA, Circuit Judge.
case makes its second appearance on our docket. The first
appeal followed the conviction of Foster Starks, Jr. for
possessing a firearm in violation of 18 U.S.C. §
922(g)(1). We vacated that conviction because the district
court erred in finding that Starks lacked standing to
challenge the lawfulness of a traffic stop that led to his
arrest and the discovery of a gun and ammunition in a car he
was driving. See United States v.
Starks (Starks I), 769 F.3d 83, 88-90 (1st
Cir. 2014). On remand, the district court adjudicated
Starks's challenge to the traffic stop on its merits,
ruling that the stop and the resulting search were lawful.
Following a second jury trial, Starks was again convicted. He
now asks that we set aside this conviction because the trial
judge, Starks claims, effectively commented on the
credibility of witnesses by telling the jurors that the judge
had ruled prior to trial that the traffic stop was lawful.
Starks also contends that the district court erred in
determining that he was subject to a 180-month mandatory
minimum sentence under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), on account of three prior
convictions for the offense of armed robbery under
Massachusetts law. For the following reasons, we affirm
Starks's conviction but vacate his sentence.
challenge to his conviction rests on a jury instruction.
Starks does not claim that the instruction in any way
misstated the law. Rather, he claims that when the trial
judge told the jury that the judge had already found the
police officer's stop of Starks to be lawful, the judge
effectively commented on the credibility of the two key
witnesses at trial and put additional facts before the jury
that bore on the witnesses' credibility. Judicial
comments on the credibility of a witness in a criminal trial
before a jury are improper. See, e.g., United
States v. Márquez-Pérez,
835 F.3d 153, 158 (1st Cir. 2016); United States
v. Ayala-Vazquez, 751 F.3d 1, 28 (1st Cir.
2014). So, too, are judicial statements adding information to
the record that bears on a witness's credibility.
See, e.g., Quercia v. United
States, 289 U.S. 466, 471-72 (1933); United
States v. Cisneros, 491 F.2d 1068,
1075 (5th Cir. 1974). So we begin our inquiry by determining
whether the trial court's instruction, in context, could
be so understood by the jurors. Cf. United States
v. Rivera-Rodríguez, 761 F.3d 105,
120-23 (1st Cir. 2014) (reviewing the record to determine if
the trial judge's interventions created the appearance of
bias). Toward that end, we summarize enough of the relevant
evidence to allow us to gauge how the jurors might reasonably
have construed the instruction and, if necessary, how much
and to what degree of likelihood prejudice would have
24, 2009, at around 10:00 or 11:00 P.M., Starks pulled over
in the breakdown lane on Route 24 in Taunton, Massachusetts.
He was driving a black Kia Sportage with the permission of an
acquaintance who had rented the vehicle. Jason Vital, a
Massachusetts state trooper, pulled over behind him, got out
of his cruiser, and approached Starks's vehicle. When
Starks exited the vehicle, Vital asked him if anything was
wrong. Starks responded that he had just dropped a cigarette.
Vital testified that Starks appeared nervous during this
interaction; Starks testified that he was not nervous. After
Starks retrieved his cigarette, he and Vital returned to
their respective vehicles and pulled back onto Route 24.
started following Starks. Vital testified that he noticed
Starks drifting slightly into the next lane without signaling
on three occasions. Starks testified, to the contrary, that
he stayed in his lane and did not drift. Vital used his
computer to check the registration on Starks's car and
discovered that the car was registered to a rental company
and listed as red rather than black. At that point, Vital
pulled Starks over. Vital testified without contradiction
that the color discrepancy alone justified pulling Starks
approached Starks's driver's-side window and informed
him that the registration indicated that Starks's car was
red rather than black. Starks responded that the car was a
rental. Vital asked for Starks's license and
registration, which Starks provided. On checking the status
of Starks's license, Vital learned that it had been
suspended for failure to pay a ticket. He placed Starks under
arrest for driving with a suspended license. Vital testified
that after he asked Starks to exit the vehicle, Starks's
"nervous level had grown exponentially." Starks
testified that he was not nervous. After securing Starks in
the back seat of the cruiser, Vital requested a tow of the
rental car pursuant to state police policy. He then looked
through the windows of the car with a flashlight. He saw a
white Wal-Mart bag containing a box of ammunition in the
front passenger's seat. He opened the car door and
searched the bag, whereupon he found more ammunition and a
firearm wrapped in a black bandana.
our decision in Starks I, and prior to trial, Starks
pressed his motion to suppress the firearm and ammunition,
arguing that the stop was unconstitutional. The district
court rejected this motion after a hearing at which Starks
did not testify.
trial, Starks did not contest that the Wal-Mart bag in his
car contained a firearm and ammunition. Instead, his defense
was that he came into possession of the Wal-Mart bag without
knowing its contents. The key points of his account are these:
Starks's son, Dante, had been arrested on May 23 after
his girlfriend reported to the police that he had assaulted
her. On the evening of May 24, Dante called and asked Starks
to go to his apartment to pick up clothing and documents for
court. Starks drove to the apartment and encountered
Dante's girlfriend. She agreed to retrieve the clothing
and documents while Starks waited in the car outside. She
walked out to the car with the Wal-Mart bag, which she placed
in the front passenger's seat. Starks drove away without
looking in the bag. To support this account, defense counsel
asserted that it made no sense for Starks to place a bag
containing a gun and ammunition in the front passenger's
seat of the car and to leave it there even after Vital pulled
government challenged Starks's account in two primary
ways. First, the government pointed out that the Wal-Mart bag
contained four bottles of prescription pills, all of which
were prescribed to Starks. Starks specifically sought the
return of these pills--along with the clothing and
documents--after he was booked and released on bail. Second,
the government questioned whether it was plausible that
Starks would trust Dante's girlfriend to retrieve
Dante's clothing and documents after she had reported
Dante to the police. The government suggested that it was far
more plausible that Starks had gone into Dante's
apartment himself to retrieve the pills, the clothing, and
the documents--and that he had taken the gun and ammunition
too, so that Dante's estranged girlfriend wouldn't
turn them over to the police.
closing arguments, defense counsel sought to cast doubt on
aspects of Vital's testimony. Counsel argued that during
the first interaction, "[Starks] wasn't nervous.
Trooper Vital would have you believe that he was nervous. . .
. He was not somebody who was fearful of the police."
Counsel relied on Starks's testimony that he had once
worked as a truck driver to argue that he was not drifting
from lane to lane without signaling: "[Starks] drives
for a living. He knows at that point that there's a
trooper that's following behind him. . . . Somebody who
has a [commercial driver's] license and who relies on
their license, doesn't drive in that way and they know
how to drive." On rebuttal, the government argued, for
the first time, that Starks's nervousness while
interacting with Vital was evidence he knew about the gun and
ammunition on the seat next to him.
the final jury charge, the district court gave the
instruction that Starks now challenges on appeal. The court
instructed the jury:
Legality of the traffic stop. You have heard testimony by
Trooper Vital and Mr. Starks about the circumstances
surrounding Trooper Vital's stop of the rental car Mr.
Starks was driving and the reasons for that stop.
To the extent their descriptions of those circumstances
differed, you may consider such testimony like any other
testimony. You are not called upon, however, to determine the
legality of the stop. Before the trial, I ruled that the stop
was lawful. That was a legal determination and you may not
question my ruling. However, the evaluation of the
credibility of Trooper Vital, Mr. Starks, and the other
witnesses is solely and entirely for you to determine,
including all facts and circumstances about which you heard
district court had previously instructed the jury that the
judge's "opinion about the evidence in this case, if
[he] ha[s] one, is totally irrelevant"; that the jury
"should not interpret anything [the judge] ha[s] said or
done during the trial as indicating what [he] think[s] about
a witness or a piece of evidence or what [he] believe[s] the
verdict should be"; and that the jurors were "the
sole judges of the credibility of the witnesses."
instruction on the legality of the stop, argues Starks on
appeal, implicitly told the jury that a suppression hearing
had occurred before trial, that Starks and Vital had given
conflicting testimony at that hearing, and that the judge had
found Vital to be more credible. That implicit comment on the
respective credibility of the two central witnesses, he
claims, tilted the jury's assessment of which witness
spoke credibly at trial on the subject of whether Starks was
nervous during the stop. This nervousness, the jury may have
reasoned, evidenced his knowledge of the gun and ammunition
in the Wal-Mart bag.
government counters, first, that Starks failed to raise this
objection when the instruction was given. We disagree. In
response to the proposed instruction about the legality of
the stop, Defense counsel argued specifically that
"it's really an issue of credibility for the
jury" to evaluate the contrasting testimonies of Starks
and Vital and "[f]or the [jury] to be told that the
stop is lawful . . . would then be taking that question of
fact away from them." The trial judge understood Starks
to be raising this issue, acknowledging "the
possibility" that the jury might understand the
instruction as "a removal of certain credibility
determinations from them." The judge proposed adding the
last sentence of the instruction to resolve Starks's
objection, but defense counsel was not satisfied and renewed
the objection after the charge. It does not matter that
defense counsel never used the words "due process"
when stating the objection. Such an omission, if one calls it
that, is much like not specifically mentioning the Fourth
Amendment when challenging the reasonableness of a search. In
either situation, a trial court understands the point being
made. So, we turn to the merits of the preserved objection.
merits, we agree with the government that the challenged
instruction simply cannot carry the meaning Starks assigns to
it. The instruction itself provided no hint that the
court's legal determination turned on an assessment of
credibility or was the result of a hearing at which Starks
and Vital testified.To the contrary, both in its preface and in
its conclusion, the instruction distinguished the legal
ruling from questions of credibility. Importantly, too, the
evidence that the jurors did hear concerning the stop itself
pointed to an obvious and highlighted reason for the
court's ruling that did not touch on credibility.
Specifically, Vital testified that the car's color did
not match the color listed on the car's registration and
that such a discrepancy itself justified the
stop. Starks did not dispute or challenge either
aspect of this testimony.
we have on the one hand something of a stretch: An argument
that lay jurors would read judicial credibility endorsements
into an unadorned statement by the trial judge that he found
the stop lawful. On the other hand, we have an explicit
instruction that it was up to the jury to assess the
witnesses' credibility, and an explanation for the
lawfulness of the stop that had nothing to do with the
witnesses' credibility. All in all, we can find no direct
or indirect comment on the credibility of the witnesses. And
while the instruction did communicate to the jury an
additional fact not otherwise in evidence--that the court had
made a legal determination about the stop prior to
trial--Starks's only argument that the trial judge erred
by communicating this fact is that it implied a comment on
the witnesses' credibility. Having rejected the notion that
such an implication was conveyed in these circumstances, we
find no error.
next to whether the district court properly found that Starks
had at least "three previous convictions by any court .
. . for a violent felony" under the ACCA, thereby
triggering a mandatory minimum sentence of fifteen years'
imprisonment for violating 18 U.S.C. § 922(g).
See 18 U.S.C. § 924(e)(1). The ACCA defines a
"violent felony, " in relevant part, as
any crime punishable by imprisonment for a term exceeding one
year . . . that--
(i) has as an element the use, attempted use, or threatened
use of physical force against the ...