Of the District of Puerto Rico, sitting by designation. * 

# U nitedStates C ou rt o f App eal s

For th e Firs t C ircuit

No. 06-1853 UNITED STATES OF AMERICA, Appellee,

v . SEAN STARK, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]

Before Torruella and Lipez, Circuit Judges, and Fusté, District Judge. *

Melvin Norris, with whom Richard J. Farrell, Jr. was on brief for appellant. Michael J. Burstein, Attorney, U.S. Dep artment of Justice, with whom Michael J. Sullivan, United States Attorney, and Jennifer Hay Zacks, Assistant United States Attorney, were on brief for appellee.

August 16, 2007The charges against Sugar were dismissed. 1 -2- FUSTÉ, District Judge. Sean Stark appeals his conviction

a n d s e n t e n c e f o r c o n s p i r a c y t o p o s s e s s m a r i j u a n a w i t h i n t e n t to distribute in violation of 21 U.S.C. § 846 (2007). For the reasons stated below, we affirm the judgment of the district court. I. Background At approximatel y 1 2:30 p.m. on October 22, 2003, while driving from Arizona to Massachusetts in an RV, Stark and a companion, Christopher Sugar, were stopped in Missouri by Deputy 1 Sheriff Carmelo Crivello after their RV crossed the fog line and swerved onto the right shoulder. The stop was based on an alleged traffic violation o f § 304.015.5 of the Missouri Code, which requires vehicles to drive within a single lane “as nearly as practicable.” See Mo. Rev. Stat. § 304.015.5 (2007). During the stop, Crivello found that Stark and his companion were acting in a suspicious manner and asked if they would consent to a s e arch of their RV. After they refused, he called a drug-sniffing dog to the scene. Crivello told the men that they could go to a nearby restaurant or hotel to wait for the canine but they chose to stay with the RV. Ten to f i f t e e n minutes later, the canine unit arrived. After the dog alerted to t h e r i g ht rear of the RV, the police conducted a warrantless search of the vehicle. They found 376.9 pounds of marijuana and a gun belonging to Stark.-3- Stark and his companion were arrested a n d b r ought to a detention facility in the Phelps County Sheriff’s Department, where Stark was interrogated by Detective Richard Hope. He confessed to the crime after he received a Miranda warning (“first confession”), and agreed to cooperate with the police in making a controlled delivery of the marijuana. A few hours la t e r , Stark was interrogated by Agents Robert Hanson and Leslee Tate from the Drug Enforcement Administration (“DEA”) in St. Louis. After Stark

rece i v e d another Miranda warning, he confessed to the crime a second time (“second confession”), stating that he was hi r e d to deliver the 376.9 pounds of marijuana to Massachusetts. Stark also confirmed his desire to cooperate.

The following day, on October 23, 2 002, after a third Miranda warning, Stark signed a statement of rights, as well as a prompt presentation waiver form, by which he waived his right to be immediately brought before a magistrate judge in the jurisdiction in which he was arrested. Hanson and Tate then drove Stark from St. Louis to Massachusetts. The trip took twenty-three hours, during which time Stark had a chance to rest in t h e RVa n deat during rest stops. While he was in the RV, Stark was handcuffed with his hands in front of him, but he was de-cuffed during rest stops. When they arrived in Massachusetts at 10:30 a.m. on October 24, 2002, DEA Agent David O’Neill took custody of Stark.After the return of the indict m e nt, Stark withdrew his 2 cooperation bid. Torres, one of his codefendants, assumed the role of cooperator and testified as a government witness against Stark. -4- He gave Stark a fourth Mira n d a warning and de-cuffed him. Accordi n g to Stark, O’Neill then asked him “to bring him up to speed,” and had him sign a confidential source agreement. After Stark confessed to the crime a third time (“third confession”), he and O’Neill prepared for the controlled delivery of the marijuana. Stark made suggestions as to how to best carry out the plan, and helped prepare the RV. As a result of the sting operation, the government arrested three co-conspirators, Fabian Ruiz, Anibal Torres, and Trevor Teague. Stark and the others were indicted for conspiracy to possess marij u a n a with intent to distribute in violation of 21 U.S.C. § 846. 2

Before trial, the district court granted Stark’s motion to suppress the marijuana, finding that the initial traffic stop, the detention of Stark and his companion while they waited for the canine unit to arrive, and the search of the RV viola t e dStark’s Fourth Amendment rights (“the unlawful search”). Although § 304.015.5 of the Missouri Code does not explain what it means to drive “as nearly as practicable” in a single lane, the district court concluded that an isolated incident of swerving was not a violation of the statute because it is common for large vehicles, such as Stark’s RV, to weave into other lanes. The court also found that it was unreasonable to detain Stark and his companion-5-

and to search the RV because their stories were consistent, their licenses were valid, and they had no cr i m i nal histories. Accordingly, the marijuana and the gun were suppressed.

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

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

On December 14, 2005, after a three-day jury trial, Stark was found guilty. He was sentenced on April 13, 2006, to a term of sixty months of imprisonment, to be followed by forty-eight months of supervised release.-6- II. Analysis Stark argues that the district court: (1) should have suppressed his third confession; (2) mistakenly admitted suppressed evidence at trial; (3) misled the jury in responding to a question regarding O ’ N e ill’s testimony; (4) erroneously failed to enter a judgment of acquittal; and (5) improperly found that Stark did not qualify for a safety valve sentence reduction. We address each argument in turn.
A. Stark’s Motion To Suppress His Third Confession

“We review a district court’s finding of fact for clear error, but give de novo consideratio n t o its legal conclusions.” United States v. Campa, 234 F.3d 733, 737 (1st Cir. 2000). “In determining the outcome [of a motion to suppress] under the attenuation doctrine, the court of appeals does not defer to the di s t r i c t c o u r t . ” U n i t e d S t a t e s v . P a r a d i s , 3 5 1 F . 3 d 2 1 , 3 2 (1st Cir. 2003); accord U n i ted States v. Hughes, 279 F.3d 86, 89 (1st Cir. 2002).

Stark contends that his third confession should have been suppressed as fruit of the unlawful search of his RV. However, it is well-settled that a court “need not hol d t h at all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). A confession made-7-

after an illegal search may be admitted i f i t was obtained “by

means s u f f iciently distinguishable to be purged of the primary taint.” I d. at 488 (internal quotations omitted). To determine whether the initial taint has been removed, we must balance the following factors: (1) the voluntariness of the statement; (2) “[t]he t e mporal proximity” of the illegal search and the confe s s i on; (3) “the presence of intervening circumstances”; and (4) “the purpose and flagrancy of the official misconduct” (“Brown factors”). Brown v. Illinois, 422 U.S. 590, 603-04 (1975).

The district court found that the Brown factors counseled against suppressing Stark’s t h i r d confession because it was made voluntarily two days after the illegal search; Star k w a s rested, fed, and de-cuffed; the confession was made to a new officer and in a new location; and the initial searc h a n d s e izure was not an egregious violation of the Fourth Amendment. We agree.

There are numerous indicators that Stark’s third confessi o n w a s voluntary, thus meeting the first of the Brown factors. The first of these is the fact that Stark received a

r e newed Miranda warning before making his third confession. Dunaway v. New Y o r k, 442 U.S. 200, 217 (1979) (stating that “a

con f e s s i o n a f t e r p r o p e r M i r a n d a w a r n i n g s m a yb e found ‘voluntary’”). In addition, Stark’s proactive role in the planning of t h e controlled delivery demonstrated that he was “not acting from compulsion, but in the spirit of self-interest and-8-

cooperation” in making his third confession. See United States v. Patino, 862 F.2d 128, 133-34 (7th Cir. 1988) ( f i n d ing that defendant’s decision to cooperate with the FBI and actively assist them with their investigation indicated that her second confession was voluntary).

The second Brown factor, temporal proximity, also counsels against suppression. Stark gave his third confession two days after the illegal search, which was arguably a sufficient amount of time for him to reflect on his predicament and determine whether he wanted to speak with an attorney before making any further statements. Compare Brown, 422 U.S. at 604-05 (stating that two hours was insufficient), with United States v. Oliver, No. 01-1108, 2 0 0 1 U.S. App. LEXIS 26500, at *4-5 (10th Cir. Dec. 12, 2001) (concluding that eleven hours was sufficient); United States v. Wesela, 223 F.3d 656, 662 (7th Cir. 2000) (finding that six days was adequate). Stark counters that tw o d a y s was insufficient because he was in police custody t h e entire time. However, this fact is not dispositive in cases where, as here, the conditions of detention were favorable, marked by rest and food. Compare Taylor

v. Alabama, 457 U.S. 687, 691 (1982) (concluding that six hours was too temporally proximate because defendant was in police c u s tody the entire time a n d was subjected to several interrogations, fingerprinting and a lineup); United S t a t e s v. Webster, 750 F.2d 307, 313, 325 (5th Cir. 1984) (finding that ten hours was-9-

insufficient because, inter alia, defendant was in police custody and was sleep deprived, having spent the previous night in the woods hiding from police), with Rawlings v. Kentucky, 448 U.S. 98, 107-08 (1980) (finding that fort y -five minutes was sufficient because, inter alia, defendants were detained in their hom e and able to move around freely); Oliver, 2001 U.S. App. LEXIS 26500, at *4-5 (stating that elev e n hours was adequate because, although defendant was in police custody, “he was apparently left alone by officers” during that time).

We also find that a s i g n ificant intervening event took place, satisfying the third Brown factor. Stark gave his third confession to O’Neill, a new DEA agent in a new location, and at a time w h e n he was rested, fed, and de-cuffed. United States v. Ayres, 725 F. 2 d806, 810 (1st Cir. 1984) (finding that interrogation by a new officer in a new location when defendant was “relaxed, composed and uncoerced” sufficiently dissipated “whatever taint may have infected his prior statements”).

The f i n a l Brown factor, which analyzes the purpose and flagrancy of the official misconduct, weighs against suppression as well. This is the most important part of the analysis “because it is tied directly to the rationale underlying the exclusionary rule, deterrence of police misconduct.” United States v. Reed, 349 F.3d 457, 464-65 (7th Cir. 2003). In analyzing this factor, courts look to see whether: (a) the police used threatening or abusive tactics;-10-

(b) the “impropriety of the [initial misconduct] was obvious”; and (c) the initial search was a mere evidence expedition calculated to elicit a confession. Brown, 422 U.S. at 605; see also Patino, 862 F.2d at 134.

The type of misconduct that the Supreme Court has found to warrant suppression of evidence is readily distinguishable from the facts of t he instant case. For example, in Brown, two detectives broke in t o a n d searched the defendant’s apartment without probable cause and, upon t he defendant’s arrival at his apartme n t , pointed a gun at his head and arrested him merely for furth e r i n vestigation and questioning. 422 U.S. at 592, 605. Similarly, in Wong Sun, six or seven officers went to the business of a man who was thought to be a heroin dealer, forcibly opened his door, followed him into his bedroom, and almost immediately handcuffed and arrested him without probable cause. 371 U.S. at 474, 486.

The coe r c i ve tactics used by police officials in Brown and W o n g S u n w ere certainly not at play here during the initial traffic stop, continued detention, or search of the RV. Crivello’s decision to effectuate the traffic stop was also not an obvious error. Brown, 422 U.S. at 605 (suppressing evidence after finding that the “impro p r i ety of the [initial misconduct] was obvious”). Although the district court found the stop was no t justified because a single instance of s w e r v i n g over the fog line did notStark’s objections to the motion in limine should have been 3 renewed at trial because the district court instructed Stark to do so, and because its ruling on the motion was not final and unconditional. See Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 33 (1st Cir. 2007) (stating that a district court’s ruling on a motion in limine must be final and unconditional to preserve the issue for appeal); Jenkins v. Keating, 147 F.3d 577, 581 (7th Cir. 1998) (finding that the party t h a t unsuccessfully opposes a motion in limine must renew its objections at trial if the court invites or tells the party to do so). -11- violate the statute, this may not have been apparent to Crivello because t h e statute does not define what it means to drive “as

n e a r l y as practicable” in one lane. See Mo. Rev. Stat. § 304.015.5. The ambiguity of this statute is further supported by the fact that several federal courts, in analyzing similarly-worded statutes, have found that an isolated instance of crossing over the fog line was sufficient to violate the statute. See United States

v. Herrera-Gonzalez, 474 F.3d 1105, 1109-10 (8th Cir. 2007) (citing several examples of such cases).

Accordingly, we affir m t he district court’s refusal to suppress Stark’s third confession. B. Evidence Admitted At Trial

Stark appeals t h e a dmission of O’Neill’s and Torres’ testimony regarding the marijuana delivery, and O’Neill’s testimony regarding Stark’s arrest.

Although Stark opposed the admission of these testimonies at the motion in limine hearing, he failed to properly preserve these issues for appellate review. We review unpreserved 3-12-

challenges to a district court’s evidenti a r yrulings for plain error pursuant to Federal Rule of Criminal Procedure 52(b). United States v. Olano, 507 U.S. 725, 733-34 (1993) (citing Fed. R. Crim. P. 52(b) (2007)). Under this standard of review, the error must be “clear or, equivalently, obvious,” and it must “affect substantial rights.” Id. at 734 (internal quotations omitted). To “affect substantial rights,” the plain error must have been prejudicial such that it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 734, 736. The defendant bears the burden of persuasion to show prejudice. Id. at 734.

1. Marijuana Testimony Stark challenges O’Neill’s testimony stating that Stark told him that he was “employed by a Fabian Ruiz to transport what he app r o x i m a t e dt o b e 3 5 0 p o u n d s o f m a r i j u a n a ” a n dT o r r e s’ testimony stating that he and others “unload[ed] marijuana into [his] trunk.” Stark argues, without citing to any legal support, that these st a t e m e nts violated the court’s suppression order because they referenced the seized marijuana.

While th e exclusionary rule equally applies to verbal stateme n t s , such testimony may be admitted if it is sufficiently attenuated from the illegal sear c h . See United States v. Ceccolini, 435 U.S. 268, 273-76 (1978). We have already determinedO’Neill was asked “when you first met [Stark], was he under 4 arrest?” and he responded “yes, he was.” -13- that O’Neill’s testim ony, which merely reiterated Stark’s third confession, was sufficiently attenuated.

Although Stark has failed to brief this issue with regard to Torres’ testimony, it is clear that Torres’ statement was not prejudicial, given that it merely corroborated Stark’s own confession that Torres was in v olved in the conspiracy. Acc o r d i n gly, the district court did not commit plain error in admitting O’Neill’s and Torres’ statements regarding the marijuana.

2. Arrest Testimony Similarly , the district court did not commit plain error in admitting O’Neill’s testimony regarding Stark’s arrest. 4 Contrary to Stark’s contention, O’Neill’s testimony did not reveal anything about the unlawful traffic stop or the seized marijuana. O’Neill merely stated that Stark was under arrest by the time they met, without providing any details of the circumstances of the

arres t . T herefore, we find that O’Neill’s mention of Stark’s arrest does not rise to the level of plain error. See United States v. McIntyre, 997 F.2d 687, 696 n.5 (10th Cir. 1993) (finding that the officer’s testimony regarding defendant’s arrest did not violate court’s order suppressing marijuana b e cause it did not state that the marijuana was the cause of the arrest).We disagree with the government’s contention that Stark is 5 only entitled to plain error review on this issue because we find that Stark properly objected to the district court’s instruction to the jury. -14- C. Jury Instruction Regarding Stark’s Arrest

Stark challenges the dist rict court’s response to the jury’s question asking whether they could consider testimony by O’Neill stating that “he met Stark at his arrest and Mirandized him.” The district court answered: “Yes. However, you shall not consider the evidence of the arrest in any way as proof of guilt.” A district court’s decision to give a particular instruction, over a party’s objection, constitutes reversible error only if the instruction was (1) “misleading, unduly complicating, or incorrect as a matter of law”; and (2) “adversely affected the objecting party’s substantial rights.” Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999). The district court’s response may have been misleading 5 because O’Neill met Stark after his arrest, not “at” his arrest as stated in the jury’s question. However, the c o u r t ’s instruction doe s n o t rise to the level of reversible error because Stark has not demonstrated that it affected his substantial rights. As such, his claim fails. D. Sufficiency of the Evidence

Stark asserts that the district court should have granted his motion for a judgment of acquittal because (1) the only testimony regarding drug weight was O’Neill’s recitation of Stark’sS t a r ka l s o a s s e r t s , i n a p e r f u n c t o r ym a n n e r , t h a t the 6 district court failed to tell the jury to make a foreseeability determination in deciding the drug amount. See United States v. Manjarrez, 306 F.3d 1175, 1181 (1st Cir. 2002) (stating that a narcotics conspirator is only responsible for the amount of drugs that he “reasonably could have foreseen to be embraced by the conspiracy he joined”). Instead, the district court gave a more general instruction, tel l i ng the jury to find “the amount of marijuana that w a s i nvolved in the conspiracy.” A general instruction of this kind is permitted as long as the foreseeability determination is made by the judge, as was the case here. See United States v. Ortiz, 447 F.3d 28, 37 (1st Cir. 2006). The government asserts that Stark i s not entitled to 7 plenary review with respect to his drug weight argument because he failed to r a i s e it in his Rule 29 motion. Because the record is unclear on this point, we will err on the side of caution and conduct a de novo review. -15- confession; and (2) the government faile d t o prove that Stark 6 participated in the conspiracy before he started cooperating with the government.

Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, the court “mu s t e nter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. R. 29 (2007). Generally, we review de novo a district court’s ruling on a Rule 29 motion. United 7 States v. Diaz, 300 F.3d 66, 77 (1st Cir. 2002). W e view all of the evidence in the light most favorable to the verdict in determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997).-16- O’Neill’s testimony regarding Stark’s third confession was sufficient to support the jury’s finding that the drug amount was 100 kilograms or more. Stark told O’Neill that he was hired “to transport what he approximated to be 350 pounds of marijuana,” an amount that equals 159
. 1 k i lograms. Although Stark correctly asserts that “[t]he general rule [is] that an a c c u s ed may not be convi c t e d on his own uncorroborated confession,” Smith v. United States, 348 U.S. 147, 152 (1954), drug quantity is not an element of the offense under 21 U.S.C. § 841 unless the amount of drugs is used to increase the defendant’s sentence beyond the applicable maximum penalty. See United S t a t es v. Clay, 376 F.3d 1296, 1301 (1st Cir. 2004). Drug quantity was clearly not an element of the offense in Stark’s case since he was sentenced to sixty months of imprisonment, which is the statutory minimum under § 841(b)(1)(B).

Similarly, we find that there was sufficient evidence to support the jury’s finding that Stark participated in the conspira c y before he started cooperating with the government. Stark confessed to O’Neill his participation in a drug-trafficking conspiracy, expressly stating that he had been hired to transport marijuana to Massachusetts by a man named Fabian Ruiz, who was not a government official. Moreover, Torres corroborated this information at trial, stating that Ruiz had told him that Stark was supposed to bring the marijuana to Massachusetts. Viewing the-17-

evidence in the light most favorable to the verdict, we affirm the district court’s denial of Stark’s Rule 29 motion. E. Sentencing

Stark challenges the district court’s refusal to apply a safety valve red u c t i o n to his sentence. Because the district court’s determination that Stark d i dnot qualify for the safety valve reduction rested on findings of fact, we review for clear error. United States v. Marquez, 280 F.3d 19, 22 (1st Cir. 2002). Pursuant to this highly deferential standard, “an appellate court ought not to disturb either findings of fact or conclusions drawn therefrom unl e s s t he whole of the record compels a strong, unyielding belief that a mistake has been made.” United States v. Matos, 328 F.3d 34, 39-40 (1st Cir. 2003).

The safety valve provision of the Sentencing Reform Act, 18 U.S.C. § 3553(f) (2007), allows a district court to sentence a first-time offender below the mandatory minimum if, inter alia, “the defendant did not . . . possess a firearm or other dangerous weapon . . . in connection with the offense.” Id. § 3553(f); see also U.S.S.G. § 5C1.2 (2007 ) . The defendant bears the burden of proving, by a preponderance of the evidence, that he is entitled torelief under the safety valve provision. United States v. MirandaSantiago, 96 F.3d 517, 529 n.25 (1st Cir. 1996).

The district court determined that Stark was not eligible for a safety valve reduction after finding, by a preponderance of-18-

the evidence, that the gun in Stark’s possession was connected to his drug trafficking activity. The court reasonably inferred that Stark brought the gun to protect himself and the large quantity of drugs that he was transporting in his RV. Because Stark failed to prove otherwise, the district court’s findings were not clearly

erroneous.Alternatively, Stark asserts that the gun was suppressed evidence and, therefore, sh o u l d not have been taken into account during sentencing. Although he concedes that suppressed evidence may generally be considered at sent e n c i n g, he argues that the district court should have nonetheless excluded evidence of the gun because the police misconduct in this case was egregious. see United S t a t e s v . Acosta, 303 F.3d 78, 86 (1st Cir. 2002) (“[W]e hold that the exclusionary rule d o e s not bar the use of evidence seized in violation of a defendant’s Fourth Amendment ri g h ts in sentencing. We leave open the question of whether the exclusionary rule would bar the use of evidence when police intentionally act in violation of the Fourth Amendment in order to increase a defendant’s sentence.” (footnote omitted)). We need not decide whether to adopt such an exception at this time, however, because Stark’s ar g u m e n t fails. We have already established that the misconduct was not egregious. See supra section II( A ). Accordingly, we affirm the district c o u r t’s consideration of the gun in determining Stark’s sentence.-19- III. Conclusion Based on the foregoing, Stark’s conviction and sentence

are AFFIRMED .