2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-22-2010

USA v. Tyshaun St. Vallier

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3210

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"USA v. Tyshaun St. Vallier" (2010). 2010 Decisions. Paper 41.

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 NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 09-3210

______

UNITED STATES OF AMERICA

 

v.

TYSHAUN ST. VALLIER

Appellant

______

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 07-cr-613)

District Judge: Hon. Susan D. Wigenton

______

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 17, 2010

Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

(Filed: December 22, 2010 )

______

OPINION OF THE COURT

______

 

VAN ANTWERPEN, Circuit Judge.

Tyshaun St. Vallier (“St. Vallier”) was convicted of one count of knowingly and 

intentionally importing 500 grams or more of cocaine into the United States in violation 

of 21 U.S.C. §§ 952(a) and 960(b)(2)(B), and one count of conspiracy to import 500 

grams or more of cocaine into the United States contrary to 21 U.S.C. §§ 952(a) and 
2

960(b)(2)(B), in violation of 21 U.S.C. § 963. Pursuant to this conviction, the District 

Court sentenced St. Vallier to 204 months of imprisonment. St. Vallier appeals his 

conviction and sentence contending that: (1) the District Court erred by denying his 

motion to suppress statements made to customs officers in Newark Liberty International 

Airport; (2) the District Court erred by preventing the impeachment of a key prosecution 

witness; (3) the Government violated his Fourteenth Amendment rights by knowingly 

using perjured testimony; (4) the District Court erred by precluding the introduction of 

certain evidence at trial; (5) the District Court erred by denying his motion for a new trial; 

(6) defense counsel rendered ineffective assistance; and (7) the District Court abused its 

discretion by imposing a procedurally and substantively unreasonable sentence. 

Based on our conclusion that the District Court committed no error at trial, that the 

Government did not knowingly use perjurious testimony, and that St. Vallier‟s ineffective 

assistance claims are unready for review on direct appeal, we will affirm St. Vallier‟s 

judgment of conviction. We will, however, vacate St. Vallier‟s sentence and remand for 

resentencing due to a procedural error committed by the District Court. 

I.

Because we write solely for the parties‟ benefit, we assume familiarity with the 

case and discuss only those facts relevant to our decision.

On May 6, 2007, St. Vallier, along with co-conspirators Ezra McCombs 

(“McCombs”) and Charisse LaRoche (“LaRoche”), traveled from Port of Spain, Trinidad 

to Newark, New Jersey. Upon arrival at Liberty International Airport in Newark, each 

individual proceeded to separate customs lines. Unbeknownst to them, officers working 
3

for United States Customs and Border Protection had flagged them for secondary 

inspection. Accordingly, customs officers escorted all three individuals to a secondary 

inspection area of the airport. On the way, St. Vallier was taken to the baggage claim to 

retrieve his single checked item of luggage. 

Following arrival in the secondary inspection area, Customs Officer Jorje Erraez 

questioned St. Vallier. In response to Officer Erraez‟s questions, St. Vallier indicated 

that he had travelled to Trinidad for vacation. He additionally stated that he knew 

McCombs, but denied knowing LaRoche. Officer Erraez thereafter confronted St. Vallier 

with a copy of LaRoche‟s travel itinerary, which he had located in St. Vallier‟s single 

checked luggage bag. St. Vallier then acknowledged knowing LaRoche, and stated that 

she was McCombs‟ girlfriend. No Miranda warnings were provided prior to questioning 

St. Vallier. 

Upon discussion, Officer Erraez and other customs officers who had separately 

interviewed LaRoche and McCombs discovered inconsistencies in each individual‟s 

responses. Notably, McCombs stated that LaRoche was St. Vallier‟s girlfriend, directly 

contradicting St. Vallier. Based on this and other inconsistencies, Officer Erraez 

obtained permission from his supervisor to conduct a personal search of St. Vallier. 

Although no contraband was found, Officer Erraez located a credit card used to acquire 

LaRoche‟s plane ticket and several thousand dollars in cash. 

Meanwhile, based on inconsistent statements made by LaRoche, customs officers 

obtained permission to search three suitcases checked in her name. Customs officers 

discovered within a large amount of powder and liquid cocaine. LaRoche was then 
4

escorted to a personal search room where she admitted to concealing cocaine inside her 

body as well. In addition, LaRoche made statements implicating St. Vallier in the 

smuggling plan. In total, 3,280 grams of liquid and powder cocaine were seized from 

LaRoche‟s three suitcases and body. 

Upon learning that customs officials had discovered cocaine, Officer Erraez 

ceased questioning and searching St. Vallier. Shortly thereafter, agents from Immigration 

and Customs Enforcement (“ICE”) arrested both St. Vallier and McCombs. ICE 

provided St. Vallier a written statement of rights including Miranda warnings. St. Vallier 

chose to exercise his Miranda rights. 

On July 24, 2007, a grand jury sitting in Newark, New Jersey, returned a twocount indictment against St. Vallier charging him with one count of knowingly and 

intentionally importing 500 grams or more of cocaine into the United States in violation 

of 21 U.S.C. §§ 952(a) and 960(b)(2)(B), and one count of conspiracy to import 500 

grams or more of cocaine into the United States contrary to 21 U.S.C. §§ 952(a) and 

960(b)(2)(B), in violation of 21 U.S.C. § 963. After pleading not-guilty, St. Vallier failed 

to appear for a scheduled court date. Accordingly, on November 20, 2008, the grand jury 

returned a superseding indictment adding a third count charging St. Vallier with willfully 

failing to appear, in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). St. Vallier was 

subsequently apprehended by authorities and plead guilty to that offense.

Prior to trial, St. Vallier filed a motion to suppress statements he made to customs 

officials during the questioning conducted in the secondary inspection area of Liberty 

International Airport. St. Vallier contended that these statements were made while he 
5

was subject to custodial interrogation, thus entitling him to warnings as required by 

Miranda v. Arizona, 384 U.S. 436 (1966). Because no such warnings were provided 

prior to questioning, he argued that the statements made to customs officials were 

inadmissible at trial. The District Court rejected this argument and denied St. Vallier‟s 

motion.

Trial commenced on April 23, 2009. Five days later the jury returned a guilty 

verdict on both counts of importation and conspiracy to import cocaine. Thereafter, St. 

Vallier filed a motion for a new trial arguing, inter alia, that the court erred by allegedly 

preventing him from impeaching McCombs regarding testimony on St. Vallier‟s use of a 

specific cellular phone to make calls and text messages to Trinidad in furtherance of the 

drug importation conspiracy. St. Vallier additionally argued that testimony provided by 

ICE Agent Riley left the jury with the false impression that funds seized from St. Vallier 

on the day of his arrest were narcotics proceeds.1 The District Court denied St. Vallier‟s 

motion on July 8, 2009. 

On August 3, 2009, the District Court sentenced St. Vallier to 204 months of 

incarceration followed by five years of supervised release. Prior to and during the 

sentencing proceeding, St. Vallier contested the guidelines calculation of his criminal 

history category as set forth within his Pre-Sentence Report (“PSR”). Specifically, St. 

Vallier contended that the PSR contained an error indicating that he served the entirety of 

 

1 On appeal, St. Vallier reiterates these two particular arguments. See infra II. A., 

B., and C.
6

a 364 day term of incarceration pursuant to an earlier conviction when, according to him, 

the sentence was actually suspended.2 

When factored into the overall calculation, the presence of this allegedly mistaken 

period of incarceration resulted in the addition of three points to St. Vallier‟s criminal 

history category. The District Court overruled St. Vallier‟s objections, finding that 

representations provided by defense counsel were insufficient to dispute the accuracy of 

the PSR. Accordingly, when calculating St. Vallier‟s sentence for the current offenses, 

the court took the prior sentence into account as represented in the PSR. Following 

sentencing, the Government confirmed that St. Vallier‟s 364 day sentence was indeed 

suspended as claimed.

St. Vallier now appeals both his conviction and sentence. 

II.

The District Court possessed jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction over the challenges to the conviction pursuant to 28 U.S.C. § 1291 and over 

the challenges to the sentence pursuant to 18 U.S.C. § 3742(a).

A. Motion to Suppress

 

2

The Probation Office overruled St. Vallier‟s initial objections based on a phone

conversation with a representative from the Clerk‟s Office of the Superior Court for 

Essex County, who confirmed that St. Vallier had received a sentence of 364 days of 

incarceration. (PSR ¶ 64.) During the sentencing proceeding, the Assistant United States 

Attorney did not produce evidence to prove the disputed PSR allegation, and instead 

argued that even if St. Vallier had in fact received a suspended sentence, the difference 

would not affect the ultimate calculation of his criminal history category. This assertion 

later proved incorrect, as conceded by the Government. (Government‟s Br. at 42.) 
7

St. Vallier argues that the District Court erred in denying his motion to suppress 

statements made to customs officials at Newark Liberty Airport.3 In support of this 

claim, St. Vallier contends that he was subjected to custodial interrogation from the 

moment customs officers directed him to leave the general customs area of the airport 

terminal. Therefore, he argues, customs officers were required to provide Miranda

warnings prior to questioning and that their failure to do so renders his statements 

inadmissible at trial. 

The District Court rejected similar arguments during the suppression hearing and 

denied St. Vallier‟s motion based on its determination that he was not subjected to 

custodial interrogation for Miranda purposes, given that the questioning occurred at the 

international border. The court explained that at the time St. Vallier was questioned by 

Customs Officer Erraez, “he was not free to leave, but he was not – it was not a custodial 

interrogation for purposes of Miranda.” (Supp. App. at 67.) The court went on to explain 

that “[t]here are certain exceptions that have been provided as it relates to custodial 

interrogation, specifically as it relates to border situations.” (Id.) “This was clearly a 

border situation,” the court found, and “[the] questions that were being asked . . . did not 

rise to a custodial interrogation, [therefore] . . . there is no need for Miranda warnings to 

 

3

St. Vallier does not specifically identify which statements made to customs 

officials are at issue here, and instead argues that all of the statements he made once 

within the secondary inspection area should have been suppressed. (St. Vallier‟s Br. at 

11.) Based on our review of the trial and suppression hearing transcripts, it appears that 

the statements of relevance here include: St. Vallier‟s explanation that he traveled to 

Trinidad on vacation; his statement that he did not know LaRoche; and his subsequent 

contradictory statement that LaRoche was McCombs‟ girlfriend. (See Supp. App. at 52-

55, 67.) 
8

be given to Mr. St. Vallier.” (Id.) Accordingly, the court denied the motion. For the 

reasons that follow, we conclude that this denial was proper. 

We review the District Court‟s factual findings in a suppression hearing for clear 

error. United States v. Naranjo, 426 F.3d 221, 226 (3d Cir. 2005). Alternatively, our 

review of legal rulings and mixed questions of law and fact is plenary. Id. 

It is well-settled that an individual is entitled to Miranda warnings where the 

government seeks to perform a custodial interrogation. See, e.g., United States v. Walton, 

10 F.3d 1024, 1026 (3d Cir. 1993). As a general rule, Miranda warnings are required to 

protect a suspect‟s Fifth Amendment right against self-incrimination. Miranda, 384 U.S. 

at 444-45. Thus, prior to asking any questions of a suspect in custody, law enforcement 

officers must provide appropriate warnings and notification of rights. Id. Any statement 

that is the product of unwarned custodial interrogation may be barred from use at trial by 

the exclusionary rule. See United States v. DeSumma, 272 F.3d 176, 179-80 (3d Cir. 

2001).

A person is subject to custodial interrogation when both the elements of custody 

and interrogation are satisfied. Rhode Island v. Innis, 446 U.S. 291, 300 (1980). An 

individual is in custody if, given the circumstances surrounding the interrogation, “a 

reasonable person would have felt that he or she was not at liberty to terminate the 

interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). Interrogation, 

for Miranda purposes refers to express questioning or its “functional equivalent.” Innis, 

446 U.S. at 300-01.
9

As observed by this Court, normal Miranda rules are, however, inapplicable to 

circumstances where border inspectors question persons seeking entry into the United 

States. United States v. Kiam, 432 F.3d 524, 529-30 (3d Cir. 2006) (describing the 

“responsibility of immigration or customs agents to inspect entrants at our borders” and 

explaining that while persons questioned are “unquestionably in „custody‟ . . . normal 

Miranda rules simply cannot apply to this unique situation at the border”). 4 

Furthermore, whether an individual is questioned in a primary inspection line or removed 

from the line for secondary inspection has no bearing on the inapplicability of normal 

Miranda rules under such circumstances. See id. at 530. 

On appeal, St. Vallier contends that he was in custody from the time he was 

approached by customs officials and consequently that the subsequent questioning absent 

Miranda warnings was impermissible. In making this argument, St. Vallier places undue 

emphasis on whether or not he was “in custody,” and in doing so ignores our holding in 

Kiam. Even if St. Vallier was “in custody” for purposes of Miranda, it does not follow 

 

4

The Presentence Report indicates that St. Vallier is a U.S. Citizen. (PSR at 2.) 

We note that in Kiam the questioning pertained to the admissibility of Kiam, an alien, 

into the United States, whereas here, if St. Vallier is a U.S. Citizen, the questioning 

would pertain to whether St. Vallier could bring his effects into the United States. In 

short, Kiam focused on immigration questioning, whereas here, we are faced with 

customs questioning. Nonetheless, Kiam indicated that its reasoning applied to both 

immigration and customs officials, and that those officials had to determine whether both 

persons and their effects were entitled to enter the country. Kiam, 432 F.3d at 531 

(“Regardless of whether an immigrations inspector had probable cause to arrest for a 

criminal violation, a customs officer remained „duty bound to determine whether [the 

alien] was entitled to enter the country with her effects.‟ (quoting United States v. Silva, 

715 F.2d 43, 48 (2d Cir. 1983)). Consequently, we find no material distinction between 

questioning an alien to determine whether he is entitled to enter the country and 

questioning a U.S. Citizen to determine whether his effects are entitled to enter the 

country.
10

that Officer Erraez was required to provide relevant warnings before conducting the 

questioning that occurred here. See Kiam, 432 F.3d at 529. Custody is not dispositive in

the context of border questioning. See id. Thus, while St. Vallier may have been in 

custody for Miranda purposes, for the reasons we explained in Kiam, this alone does not 

render Officer Erraez‟s questioning improper. 

Having addressed St. Vallier‟s custody argument, we now turn to the issue of 

whether the questions asked by Officer Erraez crossed the boundary we articulated in 

Kiam.

5

 In Kiam, we acknowledged that at some point a line must be drawn after which 

Miranda requirements might apply even in the context of border questioning. Kiam, 432 

F.3d at 530. Therein, we explained that “[i]f the inspector‟s questions objectively cease 

to have a bearing on the grounds for admissibility and instead only further a potential 

criminal prosecution, however, this line has been crossed.” Id. Importantly, in 

acknowledging this limitation, we refused to “hold that if a customs official subjectively 

suspects criminal conduct in addition to inadmissibility, he must Mirandize the alien 

before questioning him on any subject.” Id. 

This pronouncement reflects the practical reality that determinations regarding the 

admissibility of persons or importation of effects often involve an initial assessment of 

whether a person is engaged in criminal activity. See, e.g., id. (border inspector properly 

 

5 On appeal, St. Vallier cites our decision in Kiam for the proposition that Miranda

warnings are required once customs officials have completed their admissibility 

determination and move on to ask questions that only further a criminal prosecution. (St. 

Vallier‟s Br. at 13.) He stops short of explicitly arguing that Officer Erraez crossed this 

line; however, to the extent that his discussion of Kiam insinuates that this line was 

crossed, we disagree.
11

questioned appellant about his prior travels and association with other passengers on his 

arrival flight as part of admissibility determination relating to concerns of ongoing human 

smuggling operation); United States v. Moya, 74 F.3d 1117 (11th Cir. 1996) (permitting 

an immigration inspector to question an alien, without Miranda warnings, after an INS 

system indicated that the alien had previously been deported and was therefore 

potentially attempting the criminal act of illegal reentry). A criminal offense, such as 

illegal reentry, may be inextricably tied to a person‟s admissibility, yet customs officers 

are not required to provide Miranda warnings prior to asking questions that might bear 

upon this illegal conduct. See Kiam, 432 F.3d at 531. The same is true when an officer 

may suspect that an individual or that individual‟s effects must be interdicted because of 

a presently occurring effort or ongoing conspiracy to smuggle drugs across the 

international border. Accordingly, “[s]uspicion of criminal conduct [does not] overrule 

the simultaneous responsibility of immigration or customs agents to inspect entrants at 

our borders.” Id. Similarly, questions that bear upon both admissibility and criminal 

conduct, while not relating solely to prosecution of the latter, do not cross the boundary 

we articulated in Kiam. See id. 

The questions asked by Officer Erraez did not cross the line we enunciated in 

Kiam. Although they were arguably directed at determining whether St. Vallier was 

involved in ongoing criminal activity,6they were still integral to Officer Erraez‟s 

 

6 Officer Erraez testified that when St. Vallier was diverted for questioning he was 

informed by other customs officials of various red flags including St. Vallier‟s prior

criminal record, the fact that he had paid for LaRoche‟s ticket, the observation that all 

three individuals went to separate lines in spite of travel affiliations, and that they had
12

determination of whether St. Vallier‟s effects could enter the country.7 Officer Erraez‟s 

inquiries into St. Vallier‟s motives for traveling to Trinidad and his associations with 

other passengers on his arrival flight reasonably sought to establish basic facts relevant to 

such a determination. At the time of questioning, St. Vallier had neither admitted to nor 

been found in possession of direct evidence of criminal activity, even though information 

suggested that he and his co-conspirators were providing false answers to customs 

officers. The fact that neither contraband nor an admission of criminal conduct had been 

obtained at this juncture further reinforces our conclusion that Officer Erraez‟s 

questioning fell comfortably within the boundary we delineated in Kiam. Therein we 

suggested that an admission of criminal conduct or discovery of drugs might represent a 

transition point after which questioning could only practically relate to a potential 

criminal prosecution. Kiam, 432 F.3d at 530 n.6. Moreover, once Officer Erraez learned 

that cocaine was discovered in LaRoche‟s luggage, all examination ceased. (Supp. App. 

at 57.) For these reasons, we conclude that Officer Erraez was not required to provide 

Miranda warnings prior to eliciting the responses at issue here. 

Finding no error in the District Court‟s factual or legal conclusions, we will affirm 

the District Court‟s denial of St. Vallier‟s motion to suppress the statements he made to 

 

arrived following a short trip to “a source country for narcotics.” (Supp. App. at 47-50, 

251.) 

7 Customs officials are explicitly authorized to search and examine persons entering 

the United States, and seize contraband. See 19 U.S.C. § 1467; 19 C.F.R. §§ 162.6 & 

162.21. Moreover, federal regulations prohibit the importation of controlled substances. 

19 C.F.R. § 162.61. Thus, whether St. Vallier was attempting to smuggle controlled 

substances into the country from Trinidad had a direct bearing on the admissibility of his 

effects. 
13

customs officials in Liberty International Airport. We also note that even if the District 

Court had erred in denying St. Vallier‟s motion to suppress, we would view the error as 

harmless since other evidence introduced at trial independently established the critical 

facts contained in his statements to customs officers. 

B. Attempt to Impeach McCombs and Alleged Prosecutorial Misconduct

St. Vallier raises two claims concerning testimony presented at trial regarding his 

alleged use of various phones in furtherance of the importation conspiracy. First, he 

challenges a purported evidentiary ruling by the District Court, which, he contends, 

prevented him from introducing critical impeachment material that would have 

discredited McCombs by revealing instances of perjury he allegedly committed at trial.8 

Second, St. Vallier suggests that the Government violated his due process rights by 

knowingly using McCombs‟ allegedly perjurious testimony. Both of these claims fail. 

During trial, McCombs testified on direct examination that St. Vallier routinely 

used different cell phones, and that he witnessed St. Vallier speaking with persons from 

Trinidad on at least one of those phones. (Supp. App. at 354-60.) On cross-examination, 

 

8 On appeal, St. Vallier‟s arguments center on his purported efforts to impeach 

McCombs through another witness, ICE Agent Thomas Sharpe. At one point when 

summarizing his argument, however, St. Vallier writes that the court erred by “not 

allow[ing] defense counsel to adequately cross examine the Government‟s key witness, 

Ezra McCombs . . . .” (St.Vallier‟s Br. at 17 (emphasis added).) Nowhere else does St. 

Vallier assert that the court erred by limiting his examination of McCombs. Nor does he 

provide any pertinent citations to the record or develop this argument elsewhere. As 

such, we will only address at length his arguments concerning the effect of the purported 

limits on his examination of Agent Sharpe. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d 

Cir. 1993) (“It is also well-settled . . . that casual mention of an issue in a brief is cursory 

treatment insufficient to preserve the issue on appeal.”). Nonetheless, we note that our 

review of the record does not indicate any error in the court‟s rulings during St. Vallier‟s 

cross-examination of McCombs at trial. 
14

defense counsel for St. Vallier proceeded to question McCombs as to whether he made 

certain statements regarding St. Vallier‟s phone use to ICE Agent Thomas Sharpe, later 

reflected in a warrant affidavit submitted by the agent. (Id. at 437-39.) 

Following the close of the Government‟s case, St. Vallier requested permission to 

call Agent Sharpe as a defense witness, explaining his desire to inquire about steps taken 

by the Government to investigate the various phone numbers discussed at trial. (Supp. 

App. at 547.) Defense counsel never mentioned during arguments before the court the 

intent to bring Sharpe forward specifically for the purpose of impeaching McCombs. 

After consideration of arguments from both sides, the court ruled as follows:

The Court: All right. You can call Agent Sharpe. To be honest with you, I 

don‟t know where we‟re going with it, and if your purpose for calling him 

is about the phone numbers, then it is a very limited area. And I don‟t want 

us to go off track and get into all these different phone calls, and what did 

your investigation consist of, and that sort of thing. 

[Defense Counsel]: No, I want to know: Did you investigate this number? 

Did you determine this number was a landline? Did you determine that no 

calls were made from this phone to Trinidad?

The Court: All right.

(Supp. App. at 550.) Consistent with the colloquy above, the District Court permitted St. 

Vallier to call Agent Sharpe. (Id. at 588.)

St. Vallier examined Sharpe regarding his efforts to obtain records for various 

phone numbers presented through prior testimony. (Id. at 588-95.) St. Vallier 

additionally asked Sharpe about several numbers associated with the Appellant, and 

whether records indicated that any of those numbers were used to call Trinidad. (Id. at 
15

592-94.) Defense counsel ended questioning thereafter and declined to conduct redirect. 

(Id. at 595-96.)

As to St. Vallier‟s first claim, our review of the transcript provides no indication 

that the District Court limited St. Vallier‟s examination of Agent Sharpe in any way that 

prevented the impeachment of McCombs. Although the District Court initially sought to 

restrict the scope of examination prior to agreeing to allow St. Vallier to call Sharpe, the 

court subsequently acquiesced and allowed St. Vallier to proceed without limitation. 

When Sharpe was on the witness stand, St. Vallier never asked whether McCombs made 

affirmative statements to him regarding St. Vallier‟s use of certain phones to call 

Trinidad in furtherance of the conspiracy. Instead, Sharpe was asked to examine the 

contents of a phone in evidence that belonged to McCombs, not St. Vallier, and about 

steps taken to investigate various phone numbers discussed at trial. (Id. at 588-95.) 

Finally, the three objections sustained by the District Court during defense counsel‟s 

examination of Sharpe related solely to issues of leading questions and imposed no 

limitations on the substance of the examination. Thus, St. Vallier‟s claim that the District 

Court prevented impeachment of McCombs is entirely unsupported by the record. To the 

contrary, the record indicates that St. Vallier‟s decision not to elicit impeaching testimony 

was self-imposed. St. Vallier cannot now transform that choice into judicial error. See 

United States v. Strothers, 77 F.3d 1389, 1393 (D.C. Cir. 1996). Thus, St. Vallier‟s claim 

fails. 

St. Vallier also suggests that the Government violated his due process rights 

through prosecutorial misconduct. Specifically, St. Vallier contends that the Government 
16

knowingly used perjurious testimony when it permitted McCombs to deny making 

various statements to Agent Sharpe regarding the Appellant‟s use of a specific cellular 

phone in furtherance of the importation conspiracy. To succeed on this claim, St. Vallier 

bears the burden of establishing that: (1) McCombs committed perjury; (2) the 

Government knew or should have known that McCombs committed perjury but failed to 

correct his testimony; and (3) there is a reasonable likelihood that the false testimony 

could have affected the verdict. United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 

2008). A witness commits perjury if he “gives false testimony concerning a material 

matter with the willful intent to provide false testimony, rather than as a result of 

confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 

(1993). Because St. Vallier cannot meet his burden as to the first element, we need not 

address the second and third. 

St. Vallier‟s claim that McCombs committed perjury centers on the following 

testimony:

Q: Do you recall speaking to Agent Sharpe? 

A: Yes.

. . . 

Q: And during those conversations, did you tell him that Tyshaun St. 

Vallier used his cellular telephone to call Trinidad to make arrangements 

for these drug deals?

A: No, I never told him that.

[Defense Counsel]: I‟ll ask that Agent Sharpe be available for the defense 

case, please. Thank you. 

The Court: Alright.

Q: So you deny telling him that Tyshaun used his cell phone to call 

Trinidad?
17

A: I told him that on occasion that me and Tyshaun both spoke on phones 

in Trinidad, yes.

Q: You didn‟t tell him Tyshaun‟s cell phone number by number?

A: No. 

Q: You didn‟t tell him that he used a Samsung assigned telephone number 

[redacted] in order – a prepaid phone and that you didn‟t tell him that he 

used that number to call Trinidad?

A: No, I didn‟t.

. . . 

Q: . . . So you are actually denying that you told Agent Sharpe that the calls 

were made on Tyshaun St. Vallier‟s cell phone; is that correct?

A: I‟m not denying that calls were made on his cell phone. I‟m saying that 

I didn‟t tell him that he made the calls.

Q: But you‟re saying that Tyshaun St. Vallier did make calls on his cell 

phone?

A: On his cell phone, yes.

Q: Even though there‟s no record of any call to Trinidad on his cell phone?

A: Right. I told you he had other phones.

(Supp. App. at 438-39, 443.)

St. Vallier‟s assertion that McCombs lied when providing the answers excerpted 

above rests on his reading of an amended search warrant affidavit submitted by Agent 

Sharpe on April 1, 2009. (Sharpe Amend. Affidavit at ¶¶ 9-11.) In this affidavit, Agent 

Sharpe averred that McCombs told him that St. Vallier used a specific cellular phone, 

which was the subject of the search warrant, to call and text Trinidad in furtherance of the 

importation conspiracy.9 St. Vallier argues that the contents of this affidavit necessarily 

 

9

In pertinent part, the affidavit provides that: 

 “9. I am informed by Ezra McCombs . . . that Tyshaun St. Vallier used the Subject 

Telephone in furtherance of the conspiracy to import cocaine. 10. Specifically, I was 
18

demonstrate that McCombs lied, that the Government was aware of this fact, and that the 

Government nonetheless “[held] him out as truthful . . . .” (St. Vallier‟s Br. at 19.) 

We review a district court‟s factual finding that a witness‟s testimony was not 

false for clear error, and “will not disturb that finding unless it is wholly unsupported by 

the evidence.” Hoffecker, 530 F.3d at 183. St. Vallier first raised this claim in his 

memorandum of law in support of his motion for a new trial. The District Court orally 

denied St. Vallier‟s motion without making an explicit finding with respect to his 

allegations of perjury. 

Even absent such a finding by the District Court, St. Vallier cannot show on 

appeal that McCombs committed perjury. Although we recognize that McCombs‟ 

statement that he “never told” Agent Sharpe that St. Vallier “used his cellular telephone 

to call Trinidad to make arrangements for these drug deals” can be read as conflicting 

with Sharpe‟s amended affidavit, it is not clear that his response was anything more than 

the product of confusion, and certainly does not prove that McCombs willfully intended 

to provide false testimony. See Dunnigan, 507 U.S. at 94 (“A witness testifying under 

oath or affirmation [commits perjury] if she gives false testimony concerning a material 

matter with the willful intent to provide false testimony, rather than as a result of 

confusion, mistake, or faulty memory.”). McCombs testified that St. Vallier routinely 

used multiple cell phones. He additionally attempted to explain the apparent conflict 

 

informed by Ezra McCombs that Tyshaun St. Vallier used the Subject Telephone to 

call individuals in Trinidad who had agreed to supply them with the cocaine seized on 

May 6, 2007 by ICE. 11. I was also informed by Ezra McCombs that Tyshaun St. 

Vallier used the Subject Telephone to text individuals in furtherance of the conspiracy 

. . . .” (Sharpe Amend. Affidavit at ¶¶ 9-11.) 
19

between the affidavit and his testimony at trial by suggesting that the calls to Trinidad 

were simply made on one of St. Vallier‟s several phones, but not the one referenced in 

the affidavit. (Supp. App. at 443.) Defense counsel‟s questioning also appears to 

presume that St. Vallier was the source of the actual phone number associated with the 

cell phone referenced in Agent Sharpe‟s affidavit. Nowhere in the affidavit does it state 

that St. Vallier provided the actual number, as opposed to simply identifying the phone 

based on physical appearance.10 Given the existence of multiple phones and associated 

numbers, we are not convinced that the conflict between McCombs‟ first denial and 

Agent Sharpe‟s characterization of McCombs‟ statements in the affidavit establishes 

perjury. See Dunnigan, 507 U.S. at 94.

Because St. Vallier cannot show that McCombs committed perjury, his claim that 

the Government violated his due process rights through the knowing use of false 

testimony necessarily fails. 

C. Testimony by Agent Riley

St. Vallier next argues that the District Court erred by preventing him from 

introducing evidence to counter testimony at trial that could have suggested to the jury 

that funds seized from him on the day of his arrest were narcotics proceeds. For the 

reasons that follow, we find this claim unavailing. 

 

10 On direct examination, McCombs was questioned about the contents of the 

cellular phone and was permitted to answer based on his ability to physically identify it 

rather than based on his knowledge of the specific number associated with the phone. 

(See Supp. App. at 357.)
20

During trial, ICE Agent Mike Riley testified that $3,694 was recovered from St. 

Vallier on May 6, 2007, the day of his arrest. (Supp. App. at 475.) When asked “[d]oes 

ICE routinely seize – any time money is taken off of an arrestee, does ICE routinely seize 

that money?,” Agent Riley responded, “[n]o.” He then began to comment that, “[i]f we 

believe that the money is part of narcotics proceeds --” prompting an objection by 

defense counsel, which the District Court sustained (id. (emphasis added)). On crossexamination, St. Vallier attempted to introduce a settlement agreement he entered into 

with the Bureau of Customs and Border Protection (id. at 483-84), which he argues 

would have illustrated that the seized funds originated from legitimate sources, thereby 

remedying the impression potentially created by Agent Riley‟s earlier comment. Upon 

proffer, the Government objected for lack of foundation. (Id. at 484.) Agent Riley 

confirmed that he had never before seen the agreement and had no personal knowledge of 

it. Accordingly, the District Court sustained the objection, thereby preventing St. Vallier 

from questioning ICE Agent Riley regarding the settlement agreement at issue here. 

The District Court did not err in making this evidentiary ruling. We review a 

district court‟s “decision to admit or exclude evidence for abuse of discretion.” United 

States v. Bobb, 471 F.3d 491, 497 (3d Cir. 2006). The Federal Rules of Evidence forbid a 

witness from testifying as to a matter “unless evidence is introduced sufficient to support 

a finding that the witness has personal knowledge of the matter.” FED. R. EVID. 602; see 

also United States v. Villard, 885 F.2d 117, 128 (3d Cir. 1989). Here, Agent Riley 

clearly lacked personal knowledge about the settlement agreement. Thus, the District 

Court did not abuse its discretion in sustaining the Government‟s objection. 
21

Finally, we are unmoved by St. Vallier‟s contention that the comment by Agent 

Sharpe created irreparable damage by leaving the jury with the impression that the funds 

were drug proceeds. Even if Agent Riley‟s comment initially gave such an impression, 

St. Vallier was able to introduce ample testimony to the contrary. For example, 

McCombs noted that St. Vallier won money while gambling in Trinidad. (Supp. App. at 

429.) St. Vallier‟s sister testified that their mother provided him with roughly $20,000 to 

start a business at some point prior to the trip to Trinidad. (Id. at 503.) Additionally, St. 

Vallier elicited explicit testimony from Agent Riley that Riley was unaware of the source 

of the seized funds and that the money could have come from legitimate sources. (Id. at 

485.) Finally, defense counsel stressed each of these points during closing arguments, 

and the District Court instructed the jury not to consider as evidence answers to questions 

to which the Court sustained an objection. (Id. at 655, 699.) The existence of this 

countering testimony coupled with the court‟s instruction undermines St. Vallier‟s 

contention that Agent Riley‟s comment created irreparable harm. 

D. Motion for New Trial

St. Vallier next asserts that the District Court erred in denying his motion for a 

new trial pursuant to Federal Rule of Criminal Procedure 33,11 which provides that 

“[u]pon the defendant‟s motion, the court may vacate any judgment and grant a new trial 

 

11 Defense counsel initially submitted St. Vallier‟s motion for a new trial under 

Federal Rule of Criminal Procedure 29(c), which challenges a jury verdict based on the 

sufficiency of the evidence. FED. R. CRIM. P. 29(c). It is clear from the record before us, 

including the hearing on this motion, that defense counsel intended to submit the motion 

under Federal Rule of Criminal Procedure 33. Accordingly, we will treat the motion as 

filed under Rule 33.
22

if the interest of justice so requires.” FED. R. CRIM. P. 33(a). “Unlike an insufficiency of 

the evidence claim, when a district court evaluates a Rule 33 motion it does not view the 

evidence favorably to the [g]overnment, but instead exercises its own judgment in 

assessing the [g]overnment‟s case.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 

2002) (citations omitted). A district court may “order a new trial only if it believes that 

there is a serious danger that a miscarriage of justice has occurred–that is, that an 

innocent person has been convicted.” United States v. Silveus, 542 F.3d 993, 1004-05 

(3d Cir. 2008) (internal quotation marks and citation omitted). “We review the denial of 

a motion for a new trial pursuant to Rule 33 for abuse of discretion.” Id. at 1005 (citation 

omitted). 

St. Vallier challenges the District Court‟s denial of his motion for a new trial by 

referencing the arguments set forth in Section II of his brief and asserting that their 

reconsideration by this Court in the context of a Rule 33 motion evinces the need for a 

new trial.12 (St. Vallier‟s Br. at 23.) Potentially narrowing the scope of his argument 

further, St. Vallier cites only the allegedly perjurious testimony by McCombs, and insists 

 

12 Restated, these arguments include St. Vallier‟s claims that: (1) the District Court 

erred by preventing the impeachment of Ezra McCombs; (2) the Government violated his 

Fourteenth Amendment rights by knowingly using perjured testimony; and (3) the 

District Court erred by precluding the introduction of evidence showing that the funds 

seized from St. Vallier on the day of his arrest were procured from legitimate sources. St. 

Vallier‟s motion for a new trial was based on several grounds; however, because he limits 

his arguments on appeal to those raised in Section II of his brief, we decline to consider 

the other arguments St. Vallier presented before the District Court in support of his 

motion for a new trial. See FED. R. APP. P. 28(a)(9) (brief must include the “argument, 

which must contain . . . [the] appellant's contentions and the reasons for them, with 

citations to the authorities and parts of the record on which the appellant relies[.]”).
23

that a new trial is required because “the blatant and unchecked perjury . . . could have 

affected the judgment of the jury. (Id. at 24.)

In light of our conclusions set forth above, we find no error in the District Court‟s 

denial of St. Vallier‟s Rule 33 motion. As this Court observed in Silveus, Rule 33 

“motions are not favored and should be granted sparingly and only in exceptional cases.” 

Id. (internal quotation marks and citation omitted). In denying St. Vallier‟s motion, the 

District Court described the evidence against St. Vallier as “overwhelming” and noted 

that “[t]his was not a case that dealt with Mr. McCombs versus Mr. St. Vallier.” (Id. at 

763.) Given the additional inculpating evidence cited by the District Court, which 

included testimony by law enforcement officers as well as St. Vallier‟s co-conspirator 

LaRoche, ample basis existed for the District Court to determine that a new trial was not 

merited. McCombs‟ testimony regarding St. Vallier‟s purported use of a phone to call 

Trinidad was not indispensible to his conviction, and we do not believe that even if 

McCombs lied, the effect would have changed the outcome of St. Vallier‟s trial. 

Accordingly, we conclude that the District Court did not abuse its discretion by 

denying St. Vallier‟s Rule 33 motion for a new trial. 

E. Ineffective Assistance

St. Vallier additionally argues that defense counsel rendered ineffective assistance 

in three ways. First, he contends that his original attorney, Paul Bergrin, Esq., misguided, 

coerced, and threatened him in the early stages of representation, thereby inadequately 

preparing him for trial. Second, St. Vallier asserts that his newly appointed attorney 

failed to secure phone records in advance of trial that were crucial to his defense. Lastly, 
24

St. Vallier argues that trial counsel failed to effectively cross-examine the Government‟s 

key witness in order to impeach him regarding statements made about the contents of the 

suitcases in which authorities found cocaine. 

This Court generally does not entertain Sixth Amendment ineffective assistance of 

counsel claims under Strickland v. Washington, 466 U.S. 668 (1984) on a direct appeal. 

See, e.g., United States v. McLaughlin, 386 F.3d 547, 556 (3d Cir. 2004); United States v. 

Thorton, 327 F.3d 268, 271 (3d Cir. 2003); United States v. Headley, 923 F.2d 1079, 

1083 (3d Cir. 1991). Our reluctance to consider Strickland claims on direct review is 

based on the fact that “such claims frequently involve questions regarding conduct that 

occurred outside the purview of the district court and therefore can be resolved only after 

a factual development at an appropriate hearing.” Gov’t of Virgin Islands v. Zepp, 748 

F.2d 125, 133 (3d Cir. 1984) (internal quotations and citations omitted); see also United 

States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir. 1989) (“[T]he proper avenue for 

pursuing such a claim is through a collateral proceeding.”).

We have, however, recognized a narrow exception to this general rule. “[W]here 

the record is sufficient to allow determination of ineffective assistance of counsel, an 

evidentiary hearing to develop the facts is not needed.” Headley, 923 F.2d at 1083. The 

case before us does not fall within this narrow exception. 

The record requires further development in several respects before we can 

properly evaluate St. Vallier‟s ineffective assistance claims. As an initial matter, even 

accepting St. Vallier‟s allegations against Attorney Bergrin as true, it is entirely unclear 

to us how his actions bear upon the presently appealed conviction given that new counsel 
25

was appointed months before trial.13 This observation aside, the two affidavits contained 

in the record setting forth the allegations against Attorney Bergrin speak only to the 

purported consequences with respect to St. Vallier‟s failed appearance at a pre-trial 

hearing. They offer no insight into how Bergrin‟s actions affected St. Vallier‟s 

preparation for trial and the resulting conviction. Thus, this claim, if having any merit, is 

not ready for review. 

Similarly, St. Vallier‟s other two arguments relating to ineffective assistance on 

the part of his trial counsel require further development. On the record before us, we are 

unable to determine why Attorney Liebesman chose not to subpoena the phone records at 

issue here prior to the start of trial. Likewise, the appellate record is inadequate for us to 

determine what factors led Ms. Liebesman not to impeach McCombs on statements he 

made about actions purportedly taken by he and the Appellant when packing the suitcases 

containing cocaine. During post-trial arguments, defense counsel contended that she 

merely forgot; however, this is not enough for us to conduct “a comprehensive inquiry 

into the elements of strategy or tactics that may have entered into defense counsel‟s 

challenged decision.” McLaughlin, 386 F.3d at 555.

None of St. Vallier‟s Strickland claims fit within the narrow class amenable to 

review on direct appeal. St. Vallier‟s ineffective assistance of counsel claims are thus 

premature. Accordingly, we will deny these claims without prejudice to his right to raise 

them on collateral attack. See Thorton, 327 F.3d at 272.

 

13 According to the Docket Sheet provided in the record on appeal, Attorney Ruth M. 

Liebesman replaced Attorney Bergrin as defense counsel on January 7, 2009. Trial 

commenced on April 20, 2009, almost four months later. 
26

D. Sentencing

Lastly, St. Vallier challenges the sentence imposed by the District Court, arguing 

that it is both procedurally and substantively unreasonable. Because we conclude that the 

District Court committed a procedural error, we need not address St. Vallier‟s latter 

argument. 

On August 3, 2009, the District Court sentenced St. Vallier to 204 months of 

incarceration. Prior to and during the sentencing proceeding, St. Vallier objected to the 

guidelines calculation of his criminal history category provided by the Probation Office 

in his PSR. Specifically, St. Vallier claimed that the PSR contained an error indicating 

that he served the entirety of a 364 day sentence pursuant to an earlier conviction when, 

according to him, the sentence was actually suspended. Consideration of this prior 

sentence resulted in the addition of three points to St. Vallier‟s criminal history 

category.14 The District Court overruled St. Vallier‟s objections, and when calculating 

St. Vallier‟s sentence for the current offenses, took the prior sentence into account as 

represented in the PSR. 

Following sentencing, the Government confirmed that St. Vallier‟s 364 day 

sentence was in fact suspended. On appeal, the Government concedes that the District 

Court relied on inaccurate information contained in the PSR and urges this Court to 

 

14 Two criminal history points were assessed based on the Probation Office‟s belief 

that the earlier conviction resulted in a prior sentence of more than sixty days but less 

than thirteen months, pursuant to U.S.S.G. § 4A1.1(b). An additional criminal history 

point was assessed pursuant to U.S.S.G. § 4A1.1(d) based on the Probation Office‟s 

belief that St. Vallier had served 364 days of incarceration and committed the instant 

offense within two years of his release.
27

vacate the sentence and remand for resentencing using an accurate criminal history 

category and appropriate guidelines range. (Government‟s Br. at 39.)

“If the district court commits procedural error, our preferred course is to remand 

the case for re-sentencing, without going any further.” United States v. Merced, 603 F.3d 

203, 214 (3d Cir. 2010) (citing United States v. Ausburn, 502 F.3d 313, 328 (3d Cir. 

2007)). Here, the District Court clearly committed a procedural error by relying on the 

erroneous information contained in St. Vallier‟s PSR. 

Accordingly, we will vacate St. Vallier‟s 204 month sentence and remand this 

matter for resentencing in light of the correct information now available. 

III. 

For the foregoing reasons, we will affirm the District Court‟s judgment of 

conviction. Due to the procedural error discussed above, we will vacate St. Vallier‟s 

sentence and remand for resentencing before the District Court.