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

United States Court of Appeals

For the First Circuit

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. Department 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, 2007
 The charges against Sugar were dismissed. 1

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FUSTÉ, District Judge. Sean Stark appeals his conviction

and sentence for conspiracy to possess marijuana with intent 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 approximately 12:30 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 of § 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 search 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 fifteen minutes later, the canine unit

arrived. After the dog alerted to the right 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. 
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Stark and his companion were arrested and brought 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 later, Stark was

interrogated by Agents Robert Hanson and Leslee Tate from the Drug

Enforcement Administration (“DEA”) in St. Louis. After Stark

received another Miranda warning, he confessed to the crime a

second time (“second confession”), stating that he was hired to

deliver the 376.9 pounds of marijuana to Massachusetts. Stark also

confirmed his desire to cooperate.

The following day, on October 23, 2002, 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 the RV and eat

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 indictment, Stark withdrew his 2

cooperation bid. Torres, one of his codefendants, assumed the role

of cooperator and testified as a government witness against Stark.

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He gave Stark a fourth Miranda warning and de-cuffed him.

According 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 marijuana 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 violated Stark’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
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and to search the RV because their stories were consistent, their

licenses were valid, and they had no criminal 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 admit, inter 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’Neill’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 consideration to 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

district court.” United States v. Paradis, 351 F.3d 21, 32 (1st

Cir. 2003); accord United 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 hold that 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 if it was obtained “by

means sufficiently distinguishable to be purged of the primary

taint.” Id. 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 temporal proximity” of the illegal search and the

confession; (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 third confession because it was made

voluntarily two days after the illegal search; Stark was rested,

fed, and de-cuffed; the confession was made to a new officer and in

a new location; and the initial search and seizure was not an

egregious violation of the Fourth Amendment. We agree.

There are numerous indicators that Stark’s third

confession was voluntary, thus meeting the first of the Brown

factors. The first of these is the fact that Stark received a

renewed Miranda warning before making his third confession.

Dunaway v. New York, 442 U.S. 200, 217 (1979) (stating that “a

confession after proper Miranda warnings may be found

‘voluntary’”). In addition, Stark’s proactive role in the planning

of the controlled delivery demonstrated that he was “not acting

from compulsion, but in the spirit of self-interest and
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cooperation” in making his third confession. See United States v.

Patino, 862 F.2d 128, 133-34 (7th Cir. 1988) (finding 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, 2001 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 two days was insufficient

because he was in police custody the 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 custody

the entire time and was subjected to several interrogations,

fingerprinting and a lineup); United States 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 forty-five minutes was sufficient

because, inter alia, defendants were detained in their home and

able to move around freely); Oliver, 2001 U.S. App. LEXIS 26500, at

*4-5 (stating that eleven 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 significant 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 when he was rested, fed, and de-cuffed. United States v.

Ayres, 725 F.2d 806, 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 final 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;
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(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 the instant case. For example, in Brown, two

detectives broke into and searched the defendant’s apartment

without probable cause and, upon the defendant’s arrival at his

apartment, pointed a gun at his head and arrested him merely for

further investigation 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 coercive tactics used by police officials in Brown

and Wong Sun were 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 “impropriety of the [initial misconduct] was obvious”).

Although the district court found the stop was not justified

because a single instance of swerving over the fog line did not
 Stark’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 that 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 the statute does not define what it means to drive “as

nearly 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 affirm the district court’s refusal to

suppress Stark’s third confession. 

B. Evidence Admitted At Trial

Stark appeals the admission 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
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challenges to a district court’s evidentiary rulings 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 approximated to be 350 pounds of marijuana” and Torres’

testimony stating that he and others “unload[ed] marijuana into

[his] trunk.” Stark argues, without citing to any legal support,

that these statements violated the court’s suppression order

because they referenced the seized marijuana. 

While the exclusionary rule equally applies to verbal

statements, such testimony may be admitted if it is sufficiently

attenuated from the illegal search. See United States v.

Ceccolini, 435 U.S. 268, 273-76 (1978). We have already determined
 O’Neill was asked “when you first met [Stark], was he under 4

arrest?” and he responded “yes, he was.”

-13-

that O’Neill’s testimony, 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 involved in the conspiracy.

Accordingly, 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

arrest. Therefore, 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 because 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. 

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C. Jury Instruction Regarding Stark’s Arrest 

Stark challenges the district 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 court’s instruction

does not 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’s
 Stark also asserts, in a perfunctory manner, that 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, telling the jury to find “the amount of

marijuana that was involved 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 is not entitled to 7

plenary review with respect to his drug weight argument because he

failed to raise 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 failed to 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 “must enter 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). We 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 kilograms. Although Stark correctly

asserts that “[t]he general rule [is] that an accused may not be

convicted 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 States 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

conspiracy 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 reduction to his sentence. Because the district

court’s determination that Stark did not 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 unless the 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 to

relief 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, should not have been taken into account

during sentencing. Although he concedes that suppressed evidence

may generally be considered at sentencing, 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 States v. Acosta, 303 F.3d 78, 86 (1st Cir. 2002) (“[W]e

hold that the exclusionary rule does not bar the use of evidence

seized in violation of a defendant’s Fourth Amendment rights 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 argument fails. We have already established that the

misconduct was not egregious. See supra section II(A).

Accordingly, we affirm the district court’s consideration of the

gun in determining Stark’s sentence. 
-19-

III.

Conclusion

Based on the foregoing, Stark’s conviction and sentence

are AFFIRMED.