                                                               NOT PRECEDENTIAL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
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

                                              2
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

                                               3
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 two-

count 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

                                             4
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.
                                              5
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.)
                                              6
       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.)
                                              7
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.



                                               8
       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.
                                             9
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.
                                            10
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,6 they 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
                                             11
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.
                                             12
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.
                                               13
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




                                              14
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

                                               15
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?

                                              16
       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
                                              17
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.)
                                              18
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.)
                                             19
       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 cross-

examination, 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.

                                            20
       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.
                                              21
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[.]”).
                                             22
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,

                                             23
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

                                             24
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.
                                              25
                                       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.
                                             26
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.




                                            27
