                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-12-2007

USA v. Tiggett
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3287




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"USA v. Tiggett" (2007). 2007 Decisions. Paper 1500.
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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3287


                          UNITED STATES OF AMERICA

                                             v.

                                   JOHN TIGGETT,

                                                  Appellant



                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                      (D.C. Criminal Action No. 04-cr-00734-1)
                      District Judge: Honorable Juan R. Sanchez


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 6, 2007

                   Before: SLOVITER and AMBRO, Circuit Judges
                            THOMPSON,* District Judge

                           (Opinion filed:    March 12, 2007)



                                      OPINION


AMBRO, Circuit Judge


   *
   Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
       John Tiggett appeals his conviction for importation of more than 500 grams of

cocaine. Because we find no prejudicial error in the proceedings before the District

Court, we affirm.

                                             I.

       Tiggett, a resident of Vineland, New Jersey, returned from a short trip to Jamaica

in May 2003. As he was waiting to go through customs at the Philadelphia International

Airport, Inspector Joseph Mariani of U.S. Immigration and Customs Enforcement

(“ICE”) noticed that he was acting nervously. Mariani approached Tiggett and asked him

a few questions about his trip and his destination in the United States. Realizing that

Tiggett’s responses were contradictory and implausible and that he was becoming

defensive, Mariani referred Tiggett to a secondary processing area. There, Mariani and

Inspector Patricia Coggins opened Tiggett’s luggage. They found three suspicious coffee

bags. Opening one over Tiggett’s protest, they discovered a white powder that turned out

to be cocaine, and they arrested him.

       ICE Agent Michael Fleener took Tiggett to a holding cell, handcuffed him to the

bed, and read him his Miranda rights. Tiggett invoked his right to remain silent, and

Fleener left the cell. Shortly thereafter, ICE Agent Kevin McGetrick entered Tiggett’s

cell, told him that testing had confirmed that the substance in the coffee bag was cocaine,

and suggested that he “could help himself out.” Tiggett declined, and McGetrick left.

Some time later, McGetrick reentered Tiggett’s cell and apprised him that they had found


                                             2
cocaine in a rum bottle in his bag as well and that he had a “serious problem.” McGetrick

then left both the cell and the general area.

       Approximately ten minutes later, Tiggett began shouting to Fleener. He shouted

that he had never seen the coffee before. He then shouted that the coffee was already

packaged when he took it off the shelf. Shortly thereafter, he shouted that he knew a lot

about the smuggling trade. Fleener responded that he could not discuss the subject.

       Following his arrest, Tiggett was indicted by a grand jury, tried before a jury,

convicted, and sentenced to 150 months’ imprisonment. He now appeals his conviction.1

                                                II.

       Tiggett argues that his statements to Agent Fleener were inadmissible as evidence

because McGetrick baited him into speaking after he had duly asserted his right not to do

so. Specifically, McGetrick twice entered Tiggett’s cell after he invoked his Miranda

rights to apprise him of the progress of the investigation. The accuracy of McGetrick’s

statements is not disputed, and merely keeping an arrestee abreast of the progress of an

investigation and the charges he will likely face does not, without more, violate Miranda.

See United States v. Benton, 966 F.2d 642, 644 (3d Cir. 1993). More of a problem,

however, is McGetrick’s question whether Tiggett would like to “help himself out,” a



   1
     The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We review the District Court’s findings of fact for clear error,
its conclusions of law de novo, and its exercises of discretion for abuse. United States v.
Lockett, 406 F.3d 207, 211 (3d Cir. 2005) (findings of fact and conclusions of law);
United States v. Givan, 320 F.3d 452, 461 (3d Cir. 2003) (discretionary rulings).

                                                3
request that can only be interpreted as a suggestion that Tiggett waive the rights he had

already invoked.

       While we have reservations about McGetrick’s conduct,2 we reject Tiggett’s

argument because any error in admitting his statements was harmless. In this context, the

harmless error standard is high: we must “review[] the remainder of the evidence against

the defendant to determine whether the admission of the [evidence] was harmless beyond

a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). To hold such an

error harmless, we must be convinced that the admitted evidence “did not contribute to

the defendant’s conviction.” United States v. Walton, 10 F.3d 1024, 1032 (3d Cir. 1993).

       Here, the other evidence against Tiggett leads inexorably to the conclusion that he

is guilty of the offense charged. Importing more than 500 grams of cocaine has three

elements: (1) knowingly and intentionally (2) bringing cocaine into the United States (3)

that weighs more than 500 grams. See 21 U.S.C. § 952(a). Tiggett does not contest the

   2
     Offering for Tiggett to “help himself out” after he had invoked his Miranda rights
was the functional equivalent of an interrogation. See Rhode Island v. Innis, 446 U.S.
291, 300–01 (1980) (“[T]he term ‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.”). The issue is whether the
lapse of ten minutes between McGetrick leaving the cell and Tiggett yelling to Fleener
rendered the statements spontaneous and uncoerced. The Second Circuit Court of Appeals
has held a delay of four hours sufficient to negate the effects of any wrongful
interrogation. See United States v. Montana, 958 F.2d 516, 519 (2d Cir. 1992). Ten
minutes, however, is another story, but given the harmlessness of any error there, we
decline to wade too far into the issue. Suffice it to say that the Government should
recognize that McGetrick’s behavior “pushed the envelope close to the edge,” and were
the evidence against Tiggett not otherwise overwhelming, this would be a more difficult
case.

                                             4
latter two elements; rather, he argues that the Government has not proved that he knew

that he had cocaine in his bag.

       The Government presented evidence of the following:

•      Tiggett did not declare the coffee bags and rum bottle in which customs officials
       found cocaine, despite declaring most other items he acquired in Jamaica. He
       testified, however, that he knew that the items were in his bag.

•      When questioned by customs officials, Tiggett claimed that he had been to Jamaica
       on vacation and that he planned to finish his vacation by spending a few days in a
       Philadelphia hotel before taking a taxi to his home in Vineland, New Jersey.
       Tiggett, however, had but $29 on his person and no ATM card or other means of
       paying for a hotel or long-distance taxi ride.

•      At trial, Tiggett admitted lying to customs officials about his plans because he
       “didn’t think it was any of [the official’s] damn business where [he] was going.”
       He further testified that he “said a lot of stuff” because he “was jerking [the
       official’s] balls,” and that he “didn’t think [the official] would take [his statements
       about his plans] literally.”

•      When customs officials searched Tiggett’s bag, they found the coffee bags and
       rum bottle hidden underneath clothing. When they picked up a coffee bag and
       explained that they would open one of them because the contents did not feel like
       coffee, Tiggett was admittedly belligerent. He claimed that the coffee was a gift
       and threatened to sue the officials if they proceeded.

•      Coggins testified that the coffee bags and rum bottle were markedly heavier than
       one would expect. Moreover, it was apparent to the touch that the coffee bags did
       not contain coffee and that the rum bottle contained a solid, rather than a liquid.

•      Tiggett told customs officials that he packed his bag himself, though he testified at
       trial that his wife packed his bag. He explained the discrepancy by stating that he
       lied to customs officials.

•      Tiggett was unable to explain to customs officials how he purchased his plane
       ticket. The ticket reflected that it was purchased through a New York travel
       agency, but Tiggett could not recall the name of the agency or explain why he used
       an agency some 200 miles from his home in southern New Jersey.


                                              5
•      In a federal trial that was ultimately vacated for lack of personal jurisdiction,
       Tiggett testified that his wife had given him the coffee bags and rum bottle and
       asked him to take them to her sister in New Jersey. He further testified that only
       she and her daughter were present when he was given the items.

•      In this trial, Tiggett testified that his wife’s uncle gave him the coffee bags and
       rum bottle at a party. He explained the discrepancy by stating that his wife gave
       him a number of items to take with him—but not the coffee bags and rum bottle.

•      Two independent witnesses testified that Tiggett confessed to them that he went to
       Jamaica to smuggle drugs for a Dwayne Brown. E.C. Davidson testified that
       Tiggett told him about his crime when they were cellmates. Oberlin Pierce
       testified that he was part of the same drug smuggling ring as Tiggett, and was
       present when Tiggett agreed to smuggle cocaine from Jamaica. The evidence
       showed that Pierce and Tiggett were well acquainted, as they lived in the same
       house for a time and traded letters after Tiggett was arrested.

       Given this evidence, Tiggett’s alleged statements to Agent Fleener add little to the

case. In them, Tiggett introduced a third explanation for how he came by the cocaine-

filled coffee bags (i.e., he bought them that way). His testimony on this point, however,

was already conflicting and confused. Moreover, he conceded lying to customs officials,

and he admitted to an array of prior convictions. Hence we cannot accept that it was

Fleener’s testimony that broke his credibility and led to his conviction. Similarly, his

statement to Fleener that he knew about the smuggling business is largely cumulative, as

he testified to knowing about smuggling (and even offering to smuggle in order to get a

free ticket to Jamaica), and Pierce and Davidson also testified to his familiarity with the

business.

       Because the evidence against Tiggett was overwhelming and the challenged

statements added little, we conclude that any error in admitting it was harmless beyond a


                                              6
reasonable doubt.

                                             III.

       Tiggett argues that the Government struck potential jurors from the jury pool on

account of their race in violation of Batson v. Kentucky, 476 U.S. 79, 93–94 (1986).

Specifically, the Government struck Juror #15 and refused to use its last two peremptory

strikes, which resulted in the failure to seat Juror #40, an African-American next in line to

join the jury.

       The three-step Batson procedure is well-known: (1) a defendant can establish a

prima facie case for unlawful discrimination by pointing to evidence that gives rise to an

inference thereof; (2) the burden then shifts to the Government to state race-neutral

reasons for exercising its strikes; (3) the District Court must then decide whether the

defendant proved that the Government unlawfully discriminated. Id. at 96– 98.

       When Tiggett objected to the strike of Juror #15, the District Court asked the

Government the reason for the strike. The sidebar was not recorded,3 but both sides’

   3
     We note that the proper procedure for dealing with an unrecorded session is set out in
Federal Rule of Appellate Procedure 10(c). Under that rule, the parties submit their
recollections to the District Court, and the Court resolves any disputes and certifies a
reconstructed transcript for the appellate record. This is a good procedure, as it allows the
District Judge who was present for the proceedings to determine what actually transpired.
        Here, Tiggett chose to forgo that process, and merely included his recollections in
his Opening Brief. Not surprisingly, the Government disputes his recollections.
Specifically, it recalls offering more race-neutral reasons for striking Juror #15 than does
Tiggett. So we are left with a disputed issue and no certified record. We would be
justified in deeming that Tiggett’s failure to create the record for appeal waives his first
Batson challenge, as we cannot effectively review that issue without knowing what race-
neutral reasons the Government offered. We decline to hold that the issue is waived,
however, as both the Government and Tiggett agree that one race-neutral reason was

                                              7
recollections indicate that the Court overlooked step one and moved directly to step two.

This is curious, as exercising one peremptory strike against an African American, while

exercising three other peremptory strikes against members of other racial groups and

assenting to a jury composed of four African Americans (and one African-American

alternate), hardly raises an inference of unlawful discrimination. See Bronshtein v. Horn,

404 F.3d 700, 724–25 (3d Cir. 2005) (noting that a single strike, without more, ordinarily

will not raise an inference of unlawful discrimination); United States v. Uwaezhoke, 995

F.2d 388, 394 (3d Cir. 1993) (holding that Government’s failure to strike members of

defendant’s racial group despite opportunity to do so suggests a lack of discrimination).

       In any event, the Government explained that it struck Juror #15 because her long-

term boyfriend worked as an airport baggage handler, and the Government worried about

any biases that she might have against customs officials and the border search process.

Tiggett points out that other jurors had ties to the airport, but none of them had ties to the

baggage-handling process, which the Government correctly noted was at issue in this

case. Thus, the Government’s failure to strike those jurors does not undercut its proffered

reason. When considering the Government’s rationale, the District Court evaluates its

genuineness, not its reasonableness. Purkett v. Elem, 514 U.S. 765, 767–68 (1995) (“The

second step of this process does not demand an explanation that is persuasive, or even

plausible. ‘At this [second] step of the inquiry, the issue is the facial validity of the

prosecutor's explanation.’”) (quoting Hernandez v. N.Y., 500 U.S. 352, 360 (1991)

given. That reason is sufficient to sustain the District Court’s ruling on the merits.

                                               8
(O’Connor, J., concurring in judgment)).4 Here, the Court concluded that the reason was

genuine, and, Tiggett’s argument notwithstanding, we see no reason to disturb that

finding.

       Tiggett’s second Batson challenge may be novel: he argues that the Government

discriminated against an African-American juror by not exercising its final two

peremptory strikes. In the Eastern District of Pennsylvania, jurors are assigned numbers,

and the presumptive jury consists of Jurors #1–12. When one of those jurors is struck,

Juror #13 moves into the presumptive jury pool. Tiggett’s argument is that when the

Government refused to exercise its final two strikes,5 it effectively struck Juror #40, an

African American who was next in line to enter the jury pool. We need not decide

whether such a claim is viable in the abstract6 because, even assuming it is, Tiggett has

not made out a prima facie case for unlawful discrimination. The mere facts that the

Government struck one African American and refused to strike any further jurors, which

had the effect of keeping one African American from moving into the jury pool, simply

   4
      Indeed, the Supreme Court has approved a rationale as subjective as the prosecutor’s
unease with a potential juror’s hairstyle and grooming habits. See Purkett, 514 U.S. at
769. Under the Purkett standard, a concern about the potential biases of baggage handlers
in a case that revolves around a person smuggling drugs in checked luggage is clearly
race-neutral.
    5
      Federal Rule of Criminal Procedure 24(b)(2) gives the Government six peremptory
strikes.
    6
      Only the Ninth Circuit Court of Appeals has addressed this issue. It held that such a
claim is viable, so long as the evidence as a whole supports an inference of discriminatory
intent. United States v. Esparza-Gonzales, 422 F.3d 897, 904 (9th Cir. 2005). The
Government urges us to decide that it is per se unacceptable because the Government has
unfettered discretion to waive its peremptory strikes. Because this case does not require
it, we decline to go so far.

                                              9
do not establish the sort of pattern of behavior from which to draw an inference of

discrimination, particularly when the Government used most of its peremptory strikes

against non-African Americans. Thus, we cannot conclude that the District Court erred in

overruling Tiggett’s Batson objections.

                                             IV.

       Tiggett’s final argument is that the District Court improperly admitted evidence

that was substantially more prejudicial than probative in violation of Federal Rule of

Evidence 403. Specifically, the Court admitted a letter that Tiggett wrote to Pierce for the

purpose of showing that the two were well acquainted. The letter contained a variety of

vulgar expressions and racial epithets. Tiggett argues that its probative value was scant,

as he never disputed that he knew Pierce, and that it was highly prejudicial because the

language likely offended the jurors.

       We cannot agree under the circumstances presented. On cross-examination,

Tiggett did question Pierce’s credibility. Because the letter was written in such a familiar

style, it suggested that Tiggett and Pierce were close enough for Pierce to know about

Tiggett’s criminal activity. Indeed, the letter obliquely suggested Pierce’s familiarity not

just with Tiggett generally, but also with his case. Thus, the letter boosted Pierce’s

credibility. As to its prejudicial effect, we agree with Tiggett that the letter contained a

great deal of offensive language, but it was not so offensive as to give a typical juror an

improper motive to convict. See Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980)

(noting that evidence is only unfairly prejudicial for Rule 403 purposes if it would have

                                              10
an “undue tendency” to lead the jury to convict on “an improper basis”) (quoting Fed. R.

Evid. 403, Advisory Committee Note). Thus, the Court was within its discretion in

overruling Tiggett’s objection.

                                         *****

       Because Tiggett has not presented us with a prejudicial error in the District Court’s

proceedings, we affirm his conviction.




                                            11
