In United States v. Liburd, No. 09-3156 (D.VI 06/09/10), the Court of Appeals vacated Mr. Liburd’s conviction in light of repeated prosecutorial misconduct.
Mr. Liburd was in the St. Thomas airport intending to catch a flight to Atlanta. En route to his plane he passed through TSA security and one of the officers noticed on the scanner an image of two large organic masses located within his carry-on bag. He was therefore referred to an inspection station. While there, another TSA officer searched through his bag and asked about the two brick-like objects - Mr. Liburd told the officer that the bricks were “cheese.” Mr. Liburd was subsequently permitted to continue on to his flight. Then, while waiting for his flight, yet another TSA officer approached Mr. Liburd for a “random inspection” because he appeared to be nervous. Upon second search of his carry-on bag, Liburd made a statement that “there’s something in my bag” - the search revealed that the two brick-like objects were over 2 kilograms of cocaine.
Mr. Liburd was subsequently charged with possession with intent to distribute more than 500 grams of cocaine and attempted importation. Liburd moved to suppress the statement “there’s something in my bag” and the cocaine. Defense counsel did not move to suppress the cheese statement because, at that time, the statement had not been disclosed. At the suppression hearing, the district court asked the prosecutor if he intended to use Mr. Liburd’s statement at trial and the prosecutor stated, unequivocally, “No - that he wouldn’t rely on any statements” made by Mr. Liburd. As a result, the district court declined to rule on the admissibility of the statements.
On the eve of trial, the prosecutor disclosed Mr. Liburd’s cheese statement. And then, at trial, the prosecutor repeatedly admitted Mr. Liburd’s cheese statements. Defense counsel objected and ultimately requested a mistrial. The court declined the request for a mistrial but instead gave a curative instruction advising the jurors not to consider statements attributed to the defendant that were improperly introduced. Liburd was convicted and subsequently appealed.
On appeal, Liburd’s primary argument was that the prosecutor’s use of his cheese statement was misconduct, the misconduct violated his right to due process and the district court erred by refusing to grant a mistrial.
The Third Circuit Court of Appeals agreed - it determined that the prosecutor’s pre-trial promise not to rely on “any statement” made by Liburd required the prosecutor to do just that. The government responded by arguing that it did not know of the cheese statement until the eve of trial and argued it could not promise to not rely on a statement which it didn’t know about. The Court quickly rejected the government’s claim that a prosecutor could never make a promise regarding the use of undiscovered evidence. It also added that the claim was irrelevant - that once a prosecutor makes a promise to defense counsel or the court they are committed to keeping them.
The Court also determined that the prosecutor’s actions made a fair trial impossible in this case and therefore violated due process under the Fifth Amendment. Specifically, the prosecutor’s promise not to use any of Liburd’s statements affected his trial strategy - but for this promise, the strategy would have been different.
VACATED and REMANDED .