          United States Court of Appeals
                        For the First Circuit

No. 13-1251

                      UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                           FOSTER L. STARKS,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]


                                Before

                          Lynch, Chief Judge,
                Thompson and Kayatta, Circuit Judges.



     James L. Sultan, with whom Kerry A. Haberlin was on brief, for
appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                            October 8, 2014
             THOMPSON, Circuit Judge.            Foster Starks, Jr. was not

having a good day.          First, he learned that his son had been

arrested, then he was tasked with the unenviable job of retrieving

a rental car from the son's irate girlfriend.               Lastly, as he was

nearing home that night, he saw a State Trooper's blue lights

reflected in the rental's rearview mirror.             So one could say that

the cherry on the cake of Starks's day was the Trooper's discovery

of the bag on the seat beside him--containing, as it did, a gun and

two boxes of ammunition.       Starks was charged with being a felon in

possession of a firearm, and when his luck did not improve at

trial, he was convicted and sentenced to 210 months in prison. He

raises   a   number   of   issues   on    appeal,    including   one    that   is

determinative.      Because the district court erred in holding that

Starks, as the unauthorized driver of the rental car, did not have

standing to challenge the stop, we reverse his conviction and

remand for an evidentiary hearing.

                                         I.

                                 BACKGROUND

                                A. The Stop

             On the night of May 24, 2009, Starks was driving north on

Route 24 in a black Kia Sportage.                Massachusetts State Trooper

Jason Vital was on patrol that evening when he saw Starks signal

and   pull   into   the    breakdown     lane.      Vital   stopped    to   offer

assistance, and as he approached the Kia, Starks stepped out of the


                                       -2-
car.       Noticing that Starks looked "tense, jittery, nervous," Vital

asked if he was alright, and Starks replied that he had dropped his

cigarette.       Starks then reached down to the floor on the driver's

side and produced the lit cigarette. Satisfied that his assistance

was not needed, Vital returned to his cruiser and watched as Starks

resumed his journey.

               Starks was not, however, home free.   According to Vital,

he followed behind Starks and noticed that the Kia was traveling at

approximately forty to forty-five miles per hour in a sixty-five

mile per hour zone.      After observing the Kia drifting and crossing

the lane lines, Vital conducted a registry check and determined

that the car was registered to a rental company, but that the

registration listed the car's color as red, rather than the black

that it was.       Vital continued to follow Starks for a short time,

and after noticing two more lane violations, he activated his

lights and pulled over the Kia.

               Starks provided his license and registration to Vital,

and during their discussion about the color discrepancy, Starks

said, "[H]ey, it's a rental."1       Vital returned to his cruiser to

conduct a license and warrants check, and discovered that Starks's

license had been suspended as a result of an unpaid seatbelt

violation.       At the same time, Vital learned that Starks had "a


       1
       As will be discussed infra, the car had been rented by
Starks's friend, Wendy Ford. Starks was not an authorized driver
on the rental agreement.

                                    -3-
fairly lengthy criminal history," and had completed a sentence for

armed robbery.   Vital returned to the Kia and placed Starks under

arrest for driving on a suspended license.

           In conducting a pat-down frisk, Vital felt a pill bottle

in Starks's pocket.     He removed the bottle, which Starks said

contained blood pressure medication, and opened it to find that it

held "approximately nine types of different pills."

                           B. The Search

           Vital handcuffed Starks and placed him in the back of his

cruiser.   Vital then returned to the Kia and shone his flashlight

through the passenger-side front window.       He spotted a white

plastic shopping bag on the front seat.    The bag was translucent

enough that Vital could see through it to glimpse a white box with

the word "Independence" printed on it in black.    Vital recognized

the label as a brand of ammunition.

           Vital opened the car door and began looking through the

contents of the bag.   It contained two boxes of ammunition (.357

caliber and .38 caliber) and two smaller plastic bags.      One bag

contained a .45 caliber handgun wrapped in a bandanna, as well as

a magazine with seven .45 caliber rounds, and a baggie with an

additional seven rounds. The other bag contained four prescription

medication bottles, all of which were labeled Foster L. Starks and




                                -4-
each of which contained only the medication listed on the label.2

The bags also contained other items, including clothing and "court

paperwork."

          After discovering the gun and the prescription bottles,

Vital opened the center console of the Kia and found a cache of

"approximately 227 round tablets" that appeared to be OxyContin;

the pills were later determined to be counterfeit.      The pills may

have been fake, but Starks was in real trouble.     He was indicted by

a grand jury for being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1).

                    C. The Motion to Suppress

          Starks's defense strategy was two-pronged; he intended to

challenge the legality of the stop, and he intended to show that he

had no knowledge of the contents of the bag, because it had been

packed by his son Dante's erstwhile girlfriend, Teanisha Rodriguez.

Prior to trial, Starks moved, pursuant to the Fourth and Fourteenth

Amendments, to suppress "all evidence obtained as a result of the

illegal stop." In his memo in support of the motion, Starks argued

that the stop was pre-textual, that he was neither swerving nor

driving too slowly, and that Vital stopped him because he is

African-American.   Specifically, Starks argued that "a seizure

occurred when Trooper Vital stopped the car" and that because the



     2
       Pharmacy records   indicate   that   these   medications   were
dispensed to Starks.

                               -5-
stop   was   not    justified,   the   "fruits"   of   the   stop    should    be

suppressed.        In support of this argument, Starks submitted an

affidavit from Professor of Economics Dr. Steven Durlauf, who

examined     statistics   from   the    Massachusetts    State      Police    and

determined that the percentage of African-Americans stopped by

Vital was 38.6% higher than the percentage stopped by other

troopers.

             A hearing on the motion to suppress was held on May 26,

2011. At the outset of the hearing, before either Vital or Durlauf

testified, the government stated that Starks "had absolutely no

standing to even challenge the search of the vehicle             . . . because

he was an unlicensed driver but it was a rental car so he was also

an unauthorized driver. . . . We think he lacks standing."                    The

district court gave Starks's counsel the choice of addressing

standing immediately, or proceeding with witness examination.

Because Durlauf had come in from Wisconsin, counsel chose to

proceed before addressing standing.          Following the two witnesses,

the hearing was continued to July 27.

             On the second day of the hearing, the district court

instructed Starks's counsel that "what I was waiting for you to do

is to get to somebody who is going to testify that he either has a

driver's license, you know, that the woman gave him permission to

use the car or she didn't give him permission."              Starks's friend,

Wendy Ford, then testified that she gave her license and credit


                                       -6-
card information to the rental company to allow Rodriguez to rent

the car.     She further testified that when Starks called her on

Sunday afternoon, May 24, 2009, she did not realize that Rodriguez

had extended the rental and still had the car.          During that

conversation, she and Starks agreed that he would retrieve the car

from Rodriguez and return it on Tuesday.3    Ford testified that she

gave Starks her express permission to drive the car.

            The government then called a rental company employee,

Richard Pozner, who testified that Ford could not authorize anyone

other than a domestic partner to drive the car.

            At the conclusion of testimony, the government argued

that Starks had no standing to challenge the stop because, as an

unauthorized, unlicensed driver, he had no reasonable expectation

of privacy in the contents of the vehicle.    Defense counsel argued

that Starks had standing under the Fourth Amendment, because Ford

had given him permission to drive the car and thus his expectation

of privacy was reasonable. In the alternative, counsel argued that

standing was established under the Equal Protection Clause of the

Fourteenth Amendment, saying:

            I guess I would like to jump, Your Honor, to
            the second issue of standing in this case
            which   is   under  the   defendant's  equal
            protection argument. We are not arguing that
            this is a straight Fourth Amendment illegal
            stop by an officer based on failure to have
            some kind of probable cause or reasonable


     3
         Memorial Day fell on that Monday, May 30, 2009.

                                 -7-
           suspicion.   We're arguing that this officer
           himself discriminated against my client
           because of his race, because of his color, and
           he stopped the car based on racial profiling.

The district court denied the motion to suppress in a brief

statement, saying "I don't think there's any standing here, to use

that phrase, but certainly no expectation of privacy.       He was

unlicensed and he was unauthorized and so he has no occasion to be

here challenging the admission of evidence. I am going to deny the

motion . . . to suppress."      The district court made no other

findings of fact.

                       D. Motions in limine

           As the case proceeded toward trial, the parties made a

number of motions in limine.     The government moved to bar the

testimony of Durlauf, the economics professor, arguing that Starks

was "improperly attempting to re-litigate the motion to suppress in

front of the jury."    When the court allowed the motion, Starks

moved for reconsideration, arguing during a pre-trial conference

that Durlauf's testimony was admissible to impeach Trooper Vital.

The district court denied the motion without further findings or

comment.   The court also barred the testimony of the defendant's

DNA expert, Dr. Carll Ladd, as irrelevant.

           The next flurry of motions centered on Rodriguez.   She

had previously given a statement to federal agents, and testified

before the grand jury. On both occasions, she denied being at home

when Starks came to her apartment, and stated that the firearm did

                                -8-
not belong to either Dante or herself.         Two years later, she spoke

with a defense investigator and admitted to putting the gun and the

ammunition into the shopping bag along with Dante's belongings, and

said that she did so without Starks's knowledge.

            Defense counsel made a motion in limine to "alert the

[c]ourt that the proposed government witness T[e]anisha Rodriguez

has significant Fifth Amendment rights" and would likely invoke

those rights to avoid testifying.          As a pre-emptive strike, the

defense moved for the admission of Rodriguez's statement to its

investigator, as well as several other pieces of evidence which, if

admitted,   would   tend   to   support   Starks's    third-party   culprit

defense.    Specifically, Starks sought to admit Rodriguez's grand

jury   testimony,   her    statements     to   federal   agents,    and   her

statements to the defense investigator.              Defense counsel also

sought the admission of Rodriguez's medical records, criminal

history, the cases pending against her at the time of her grand

jury testimony, as well as records of the Department of Children

and Families.

            The   government    opposed    the   motions,   arguing       that

Rodriguez's statements were not admissible because the defense

failed "to offer any corroborating circumstances clearly indicating

the trustworthiness" of the recitations.             See United States v.

Monserrate-Valentín, 729 F. 3d 31, 52 (1st Cir. 2013) (defining the

requirement of "meaningful corroboration" as "evidence that clearly


                                    -9-
indicates that the statements were worthy of belief, based upon the

circumstances     in   which      the   statements      were   made")   (internal

quotations omitted).         The government also argued that her medical

records were not relevant.          On the first day of trial, the court

adopted the reasoning of the government's response and denied the

motion. On the third day of trial, the defense called Rodriguez as

a   witness,     and   she     invoked     her    privilege      against       self-

incrimination.     Once she was unavailable as a witness, the defense

made   another   motion      in   limine   to    admit    Rodriguez's        earlier

statements, and again, the court denied the motion.

                                    E. Trial

           A jury trial commenced on October 11, 2011.                       During

defense   counsel's     cross-examination          of     Trooper    Vital,      she

approached the bench to seek guidance in pursuing a line of

questioning about racial profiling.              At sidebar, defense counsel

referenced the court's ruling on the motion to bar Durlauf's

testimony, stating, "[d]uring this time of my cross-examination, I

would ask him questions related to his knowledge of the race of the

drivers   that    he   had    stopped     and    issues   relating      to    racial

profiling. It's my understanding from the [c]ourt's order that you

are precluding me from asking questions on this topic?"                  When the

court replied "Yes," counsel asked that a chart describing the

statistics of Vital's stops relative to his fellow troopers be




                                        -10-
admitted for identification, to preserve it for the appellate

record.

          During the government's closing, the prosecutor urged the

jury to "not even consider . . . the propriety or the legality or

the constitutionality" of the stop, saying "The stop was legal.

The arrest was legal.   The search was legal.   That's a done deal.

That's been decided by the judge." Defense counsel objected to the

prosecution's comment, noting that the judge had ruled only that

Starks had no standing to contest the legality of the stop, and had

made no determination that the stop was legal.   When the district

court asked what she wanted to do about it, she declined a jury

instruction, saying "I can't think of an instruction that would not

draw more attention to the issue that would be helpful."

          The jury returned a guilty verdict.    Eight days later,

defense counsel received information that a juror was acquainted

with one of Starks's sons, and had not disclosed that information

to the court.   Starks moved for a new trial, arguing that the

prosecutor's closing remarks were improper, and that a juror

committed perjury during voir dire.   The district court conducted

evidentiary hearings before issuing a written order denying the

motion in its entirety. On February 13, 2013, Starks was sentenced

to 210 months in prison, and two years of supervised release. This

timely appeal followed.




                               -11-
                                      II.

                                 DISCUSSION

            Starks makes four main points on appeal. He argues that:

1) the district court erred in ruling that he lacked standing to

challenge    the    constitutionality       of   the    initial   stop;    2)   the

prosecutorial misconduct during closing argument deprived him of a

fair trial; 3) the district court committed two evidentiary errors

by   curtailing      impeachment     of     Trooper     Vital     during   cross-

examination, and by improperly excluding evidence of Rodriguez's

statements and background; and finally, 4) a juror's failure to

disclose information during voir dire violated his right to trial

by an impartial jury.

            A. Fourth Amendment Standing to Challenge Stop

            Starks's     first     argument,      the    standing    issue,      is

dispositive.       Although there were other missteps during the course

of this case, it was the stumble at this first hurdle that requires

us to vacate the conviction and remand for a new hearing.                  We will

therefore focus on the question of standing.

            We review de novo the district court's ruling that Starks

lacked standing to bring a Fourth Amendment claim. See United

States v. Werra, 638 F.3d 326, 335 n.13 (1st Cir. 2011).

            The government argues that Starks abandoned his Fourth

Amendment argument before the district court and thus the argument




                                     -12-
has been waived and our review should be limited to plain error.4

The government contends that, during the hearing on the motion to

suppress, defense counsel shifted focus to its second argument that

the   stop    was   racially   motivated,      thus   leading   the   court   to

understand "that [Starks] was not pursuing the argument that Vital

lacked reasonable suspicion."          In support of this argument, the

government     quotes   part   of    defense   counsel's    argument    at    the

hearing: "I am not arguing that this is a straight Fourth Amendment

illegal stop by an officer based on failure to have some kind of

probable cause or reasonable suspicion."              However, the government

has ripped this quote from its moorings.

             The hearing was preceded by defense counsel's submission

of a comprehensive memorandum in support of the motion which

thoroughly addressed both the Fourth and Fourteenth Amendment

bases.       In the memorandum, defense counsel led off with the

argument that Starks had standing to challenge the illegal seizure,

and then proceeded to contend that the stop which led to the

seizure was not justified.          In the final pages of her memorandum,

she addressed the second argument--the Equal Protection issue.

During the hearing, defense counsel again led off with the argument

that Starks had standing under the Fourth Amendment, and after



      4
       "Arguments related to the unlawfulness of a search that were
not raised to the district court, however, are considered waived or
forfeited and are reviewed at most for plain error." United States
v. Reynolds, 646 F.3d 63, 73 (1st Cir. 2011).

                                      -13-
discussing cases from other circuits, she said, "I guess I would

like to jump, Your Honor, to the second issue of standing in this

case which is under the defendant's equal protection argument."

That sentence makes clear that defense counsel was merely switching

gears from her first argument to her second argument; at no time

did she concede her Fourth Amendment argument.     Accordingly, our

review of the district court's ultimate legal decision to deny the

motion to suppress is de novo.

          Having addressed the waiver argument, the standing issue

is easily resolved.   In his memorandum in support of the motion to

suppress, Starks argued that "a seizure occurred when Trooper Vital

stopped the car," and that because the stop was not justified, its

"fruits" should be suppressed. "When a police officer makes a

traffic stop, the driver of the car is seized within the meaning of

the Fourth Amendment."   Brendlin v. California, 551 U.S. 249, 251

(2007). In Brendlin, the Supreme Court determined that a passenger

traveling in a car is seized along with the driver, and therefore

has standing to challenge the constitutionality of the stop.    Id.

In its brief, the government concedes that a holding that an

unauthorized driver cannot contest a stop "would be difficult to

square with Brendlin."    We concur.    Even accepting the district

court's finding that Starks was an unlicensed, unauthorized driver,

his status was still no less than that of a passenger.         Under

Brendlin, Starks was seized within the meaning of the Fourth


                                 -14-
Amendment, and thus has standing to challenge the constitutionality

of the stop.5     In ruling, the court relied on the prosecution,

which should have known its position was error.      The decision of

the district court was incorrect as a matter of law.

            The government concedes that if "the plain error standard

does not apply or has been met, a remand is appropriate for the

district court to address Starks's standing to contest the stop,

and, if standing is found, whether Vital had reasonable suspicion."

We agree.   Because the district court erred as a matter of law, we

remand for a new hearing on Starks's motion to suppress.6

                       B. Additional Concerns

            Because we are vacating his conviction on other grounds,

we need not address Starks's remaining arguments.     We would like,

however, for the sake of thoroughness, to make a few brief points.



     5
      In so holding, we distinguish this case from our decision in
United States v. Symonevich, 688 F.3d 12 (1st Cir. 2012).       In
Symonevich, we held that a passenger did not have standing to
challenge the lawfulness of a search; here, Starks is not
challenging the search, but rather, the stop that preceeded it.
Id. at 19-20.
     6
       We note that the district court did not address Starks's
alternative Equal Protection Clause argument. The Supreme Court,
in Whren v. United States, stated that "the constitutional basis
for objecting to intentionally discriminatory application of laws
is the Equal Protection Clause, not the Fourth Amendment." 517
U.S. 806, 813 (1996). Although other circuits have held that an
Equal Protection violation does not require suppression of
otherwise legally obtained evidence, see United States v. Nichols,
512 F.3d 789, 794 (6th Cir. 2008)(overruled on other grounds), we
have not yet opined on this issue. Starks contends that it is not
necessary for us to do so at this time, and we agree.

                                 -15-
First, the prosecutor's representation to the jury that the judge

had determined the stop was legal was not only inappropriate, it

was legally incorrect. The district court never reached the merits

of whether the stop was legal; it merely determined (erroneously)

that Starks lacked standing to make the argument that the stop was

illegal.     Starks also argued that the court erred in excluding

evidence of Rodriguez's statements and background; we review such

rulings for abuse of discretion. United States v. Powers, 702 F.3d

1, 10 (1st Cir. 2012).    The court did not abuse its discretion when

it found that her statements to the defense investigator lacked

meaningful     corroboration,     and   her    grand   jury    testimony    was

inadmissible because the government did not have a similar motive

to develop her testimony there. See United States v. Bartelho, 129

F.3d 663, 671 (1st Cir. 1997) ("[W]e focus narrowly on a party's

motive   and   opportunity   to    develop     particular     testimony    on   a

particular issue," and the government's motive may vary from case

to case.).     Finally, because this case will be remanded, we need

not reach the question of juror bias.

                                     III.

                                  CONCLUSION

             The district court's denial of Starks's standing was a

fundamental error that requires us to vacate the conviction and

remand for an evidentiary hearing in accordance with this opinion.




                                     -16-
