United States of America v. Lorenzo Liburd

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3156
UNITED STATES OF AMERICA
v.
LORENZO LIBURD, Appellant
On Appeal from the District Court
of the Virgin Islands
District Court No. 3-08-cr-00057-001
District Judge: The Honorable Curtis V. Gomez
Argued May 5, 2010
Before: SMITH, CHAGARES, and JORDAN, Circuit Judges
(Filed: June 9, 2010)
Everard E. Potter, Esq. (argued)
Office of United States Attorney
5500 Veterans Building, Suite 260

-- 1 of 17 --

2
Charlotte Amalie, St. Thomas, Virgin Islands 00802
Counsel for Appellee
Thurston T. McKelvin, Esq. (argued)
Jesse A. Gessin, Esq.
Office of the Federal Public Defender
P.O. Box 223450
Christiansted, St. Croix, Virgin Islands 00822
Counsel for Appellant
OPINION
SMITH, Circuit Judge.
A jury convicted Lorenzo Liburd of violating 21 U.S.C.
§ 841 and attempting to violate 21 U.S.C. § 952(a). Liburd
appeals, arguing that his trial was marred by prosecutorial
misconduct which denied him due process of law. We agree,
and will vacate the judgment of conviction.
I.
On October 4, 2008, Liburd entered Cyril E. King Airport
on St. Thomas, United States Virgin Islands, with the intention
of boarding a flight to Atlanta. He passed through the airport’s
Customs and Border Protection and agricultural checkpoints

-- 2 of 17 --

3
without incident. At the Transportation Security Administration
(“TSA”) checkpoint, however, an X-ray scan revealed two large
organic masses in his carry-on bag. TSA Officer Tamika
Martin, who was operating the scanner, referred Liburd to
fellow Officer Wendell Grouby for further inspection. Grouby’s
job was to check for “large amounts of liquids, weapons, [and]
anything harmful to the plane or passengers.” He was not
trained to detect narcotics. Grouby found two suspicious,
rectangular, brick-like objects in Liburd’s bag. Liburd told him
that the bricks were cheese. (We will refer to this claim as the
“Cheese Statement.”) Cheese was not, for Grouby’s purposes,
a prohibited substance, so he left the bricks in the bag and
proceeded with his inspection. He also found a white plastic
bag containing two bottles of shampoo, which he discarded
because they were not allowed on the flight. Liburd eventually
cleared the checkpoint and proceeded to the waiting area.
While Liburd stood in line for his flight, TSA Officer
Josina Green approached him for a random inspection.
According to Green, Liburd appeared nervous, avoided eye
contact, and would not respond to her initial request to step out
of line. Green directed him to TSA Officer Eric Brown for
inspection. While Brown searched Liburd’s carry-on bag,
Liburd uttered something along the lines of, “there’s something
in my bag.” Brown’s search uncovered two bricks which,
combined, contained more than two kilograms of cocaine.
Liburd was arrested and charged with possession with intent to
distribute 500 grams or more of cocaine, in violation of 21

-- 3 of 17 --

4
U.S.C. § 841(a)(1) and (b)(1)(B)(ii)(II), and attempted
importation of the same, in violation of 21 U.S.C. §§ 952(a) and
963. In pre-trial discovery, the government disclosed evidence
concerning the statement, “there’s something in my bag,” but it
disclosed nothing about the Cheese Statement.
Liburd moved to suppress both the cocaine and any
statements he had made, including the statement, “there’s
something in my bag.” The District Court asked the prosecutor,
Everard Potter, whether the government intended to introduce
that statement at trial. Potter’s response was unequivocal:
Potter: N o, Y our H onor.
Any statement that
Mr. Liburd may have
made was made prior
to any M iranda
w a r n i n g s b e i n g
given.
The Court: So you don’t intend –
you don’t intend to
rely on that, or
p r e s e n t t h e
statement?
Potter: I don’t intend to rely
on any statement that
Mr. Liburd made.

-- 4 of 17 --

5
The Court twice confirmed with the parties that Liburd’s
statement was “off the table,” and based on that understanding,
declined to rule on that aspect of the motion to suppress.
At trial, Liburd argued that he did not know that there
were bricks of cocaine in his bag. He theorized that someone
else—possibly a suspicious-looking ramp agent observed near
the scene of his arrest—had slipped the bricks into his bag
sometime after he cleared the TSA checkpoint. Of course, that
theory suffered from two major weaknesses. The first was
Officer Martin’s testimony that the X-ray scan at the TSA
checkpoint revealed two large brick-like organic masses in
Liburd’s bag. The second was the fact Liburd had
acknowledged that there were bricks in his bag, and told Officer
Grouby that they were cheese. Both facts undermined Liburd’s
contention that there were no bricks in his bag when he passed
through the TSA checkpoint. Recognizing the first weakness,
Liburd posited that the “masses” revealed by the TSA X-ray
scan were not bricks of cocaine but rather the shampoo bottles
that Officer Grouby discarded. While that theory could not
explain the Cheese Statement, Potter had promised not to
introduce anything Liburd said before his arrest. So long as that
promise was kept, the jury would never hear about the Cheese
Statement, and Liburd’s theory remained plausible.
Unfortunately, Potter wasted no time in breaking his
promise. In his opening statement, he noted that Liburd told
Officer Grouby that the bricks in his bag were cheese. Liburd

-- 5 of 17 --

6
objected. At sidebar, Potter reiterated that he had “no intention
of introducing anything that [Liburd] said.” With the issue
apparently laid to rest, the trial proceeded. The next witness was
Officer Grouby, who testified that he found two suspicious
rectangular objects in Liburd’s bag and that he determined that
those objects were blocks of cheese. Potter asked, “how did you
come to the conclusion that the masses were blocks of cheese?”
Over Liburd’s objection, Grouby testified that “the passenger”
(i.e., Liburd) told him so. Potter pursued the same line of
questioning on redirect examination, blatantly prompting
Grouby to remind the jury about the Cheese Statement:
Q. Okay. Why, sir, didn’t you remove
the brick-like items from the
defendant’s bag?
. . . .
A. To the best of my recollection . . .
from what I remember, I was led to
believe that those two rectangular
items were blocks of cheese.
Q. Who led you to believe that, sir?
A. The passenger.
Liburd moved for a mistrial, arguing that Potter’s deliberate
elicitation of testimony about the Cheese Statement unfairly

-- 6 of 17 --

The Court denied Liburd’s motion for a mistrial1
because it viewed its curative instruction as sufficient, and did
not believe that the government’s use of the Cheese Statement
was willful or prejudicial.
7
prejudiced his defense. He also faulted the government for not
disclosing the Cheese Statement in pre-trial discovery.
Potter admitted that the Cheese Statement had not been
disclosed, but claimed that he had only learned of it on the eve
of trial. When the Court reminded him of the promise he made
at the suppression hearing, Potter responded that his promise not
to “rely on any statement that Mr. Liburd made” referred only to
the statement, “there’s something in my bag.” He insisted that
it was not meant to exclude “every single thing that Mr. Liburd
may have said to an agent at the time that he was at the Cyril E.
King Airport.” The Court was skeptical, rightly noting that
Potter’s promise at the hearing was “pretty sweeping and
broad.” Nevertheless, it declined to grant a mistrial. Instead,1
the judge instructed the jury as follows:
During the course of this trial, you have heard
certain statements attributed to the defendant
regarding cheese in the defendant’s bag. Those
statements are improperly before you. You are
therefore instructed to disregard any such
statements in their entirety. That means, that you
may not consider such statements in any form or

-- 7 of 17 --

Liburd also argues that the prosecutor improperly2
shifted the burden of proof in his closing argument; that the
District Court improperly limited his cross-examination of
government witnesses; and that the Court abused its discretion
by replacing an unruly juror with an alternate during
deliberations. In light of our holding concerning the
government’s use of the Cheese Statement, we need not reach
any of those issues.
8
fashion.
Liburd was convicted on both counts and sentenced to 82
months in prison. He raises several arguments on appeal, but his
primary argument is that the prosecutor’s use of the Cheese
Statement was misconduct; that this misconduct violated his
right to due process; and that the District Court erred by refusing
to grant a mistrial once the Cheese Statement was introduced.2
II.
We exercise jurisdiction under 28 U.S.C. § 1291. We
review Liburd’s claim that the District Court improperly denied
his motion for a mistrial for abuse of discretion. See United
States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007). However, our
review of the underlying legal issue—whether Potter’s conduct
deprived Liburd of due process—is plenary. United States v.
Dees, 467 F.3d 847, 854 (3d Cir. 2006). Our analysis proceeds
in two stages. First, we must determine whether Potter

-- 8 of 17 --

9
committed misconduct. Because we conclude that he did, we
will proceed to consider the due process implications of that
misconduct.
A.
Liburd argues that Potter’s use of the Cheese Statement
at trial was misconduct because it violated his promises not to
introduce evidence of anything Liburd said at the airport. We
agree. Potter’s pre-trial promise not to rely on “any statement”
Liburd made required him do exactly that. Instead, he invoked
the Cheese Statement three times: once in his opening statement
and then twice more in his examination of Officer Grouby. This
was plainly improper.
The government emphasizes that it did not know about
the Cheese Statement at the suppression hearing, and argues that
it could hardly have promised not to rely upon evidence of
which it was unaware. It maintains that at the suppression
hearing, it merely promised not to use the statement, “there’s
something in my bag,” and points out that it kept that promise.
As an initial matter, we reject the premise that a prosecutor
could never make a promise governing his future use of as-yet-
undiscovered evidence. But we note also that the government’s
argument fails even on its own terms. Potter’s promise at the
suppression hearing may have been made in ignorance of the
Cheese Statement, but the same cannot be said of the identical
pledge he made—then immediately broke—during trial.

-- 9 of 17 --

We note that, on the present record, the context in3
which the Cheese Statement was made is unclear. It is possible
that it could fall within the ambit of Federal Rule of Criminal
Procedure 16(a)(1)(A), which requires the government to
disclose any statements made by the defendant “before or after
arrest, in response to interrogation by a person the defendant
knew was a government agent if the government intends to use
the statement at trial.” But see United States v. Scott, 223 F.3d
208, 212 (3d Cir. 2000) (stating that Rule 16(a)(1)(A) does not
require the government “to provide discovery of a defendant’s
unrecorded, spontaneous oral statements not made in response
to interrogation.”). Liburd takes the position that there was no
discovery violation here, and we will accept that as true for
purposes of our analysis.
10
Nor do we accept the government’s argument that
Potter’s actions were somehow acceptable because neither Fed.
R. Crim. P. 16(a)(1)(A) nor the Jencks Act, see 18 U.S.C. §
3500, required pre-trial disclosure of the Cheese Statement.
Such a contention may be true, but it is also irrelevant. Use of3
the Cheese Statement was not improper because the government
failed to disclose that statement; it was improper because the
government breached an unambiguous promise not to use “any”
statement Liburd made. Prosecutors routinely enter into
agreements with defendants—and make representations to the
court—that exceed their minimum obligations under the law.
Whether they do so strategically or for reasons of convenience
is of no moment. Once prosecutors undertake such
commitments, they are bound to honor them. See, e.g., United

-- 10 of 17 --

The District Court may, in its discretion, release a party4
from a pre-trial agreement of this nature but only if (1) the
repudiating party supplies reasonable notice and (2) “the
prejudice that will flow from the release is outweighed by the
reasons justifying it.” McKinney, 758 F.2d at 1047. See also
United States v. Laboy, 909 F.2d 581, 586 (1st Cir. 1990). Here,
the government never sought release from its promise when it
learned about the Cheese Statement. Quite the opposite; it
reaffirmed that promise at sidebar after Liburd objected to
Potter’s opening statement.
11
States v. McKinney, 758 F.2d 1036, 1046 (5th Cir. 1985)
(“[A]greements between the Government and a defendant to
forego the presentation of otherwise admissible evidence are
enforceable.”); United States v. Jackson, 621 F.2d 216, 2204
(5th Cir. 1980) (stating that “when the government and a
defendant enter into a pretrial agreement both parties are entitled
to rely upon that agreement in preparing their respective cases”).
B.
The rights guaranteed by the Fifth Amendment to the
United States Constitution have been extended to the Virgin
Islands. See 48 U.S.C. § 1561. Among those rights is the right
to due process of law, which encompasses the right to a fair
trial. See, e.g., United States v. Augurs, 427 U.S. 97, 107
(1976); United States v. Gatto, 995 F.2d 449, 455 (3d Cir.
1993).

-- 11 of 17 --

12
Not all prosecutorial misconduct violates this right.
“[T]he practicalities of judicial administration . . . preclude us
from reversing a jury verdict every time” a prosecutor commits
misconduct. Gov’t of the Virgin Islands v. Joseph, 770 F.2d
343, 349 (3d Cir. 1985). “To constitute a due process violation,
the prosecutorial misconduct must be of sufficient significance
to result in the denial of the defendant’s right to a fair trial.”
Greer v. Miller, 483 U.S. 756, 765 (1987) (internal quotations
omitted). “It is not enough that the prosecutor’s remarks were
undesirable or even universally condemned.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (internal quotations
omitted). The touchstone of our inquiry is “not the culpability
of the prosecutor” but the fairness of the trial. Smith v. Phillips,
455 U.S. 209, 219 (1982); see also id. (“[T]he aim of due
process is ‘not punishment of society for the misdeeds of the
prosecutor but avoidance of an unfair trial to the accused’”).
We must determine whether the misconduct “so infected the
trial with unfairness as to make the resulting conviction a denial
of due process in light of the entire proceeding.” United States
v. Morena, 547 F.3d 191, 194 (3d Cir. 2007) (internal quotations
omitted). In making this determination, we examine the curative
instructions, if any, given by the trial court; the weight of the
properly admitted evidence against the defendant; and the
prosecutor’s improper actions. Id.
The first factor of this test weighs in favor of upholding
Liburd’s conviction. The District Court properly instructed the
jury to ignore all testimony about the Cheese Statement, and

-- 12 of 17 --

13
while curative instructions cannot repair every error, we do
generally presume that juries follow their instructions. United
States v. Lee, 573 F.3d 155, 163 (3d Cir. 2009). The second
factor seems to point in the same direction. Even if we set aside
the Cheese Statement as evidence that was not “properly”
admitted, the evidence of Liburd’s guilt was not insubstantial.
Officer Martin testified that Liburd entered the TSA checkpoint
with a carry-on bag containing two objects that appeared on the
X-ray machine as square, organic masses. Officer Grouby
likewise testified that Liburd’s bag contained one or two
“suspicious,” brick-like, rectangular masses, and that those
masses were not shampoo bottles. Officer Green testified that
Liburd appeared nervous in the waiting area, and evaded her
requests to step out of line for inspection. Officers Brown and
Green both testified that they found brick-like objects inside of
Liburd’s bag, and it was undisputed that those bricks contained
cocaine. In short, there was ample evidence that Liburd
possessed bricks of cocaine when he passed through the TSA
checkpoint, and that those bricks were not, as he claimed at trial,
slipped into his bag in the waiting area.
“[T]he quantum or weight of evidence is crucial to
determining whether . . . [prosecutorial misconduct was] so
prejudicial as to result in a denial of due process.” Moore v.
Morton, 255 F.3d 95, 111 (3d Cir. 2001). “When the evidence
is strong, and the curative instructions adequate, the Supreme
Court has held the prosecutor’s prejudicial conduct does not
deprive a defendant of a fair trial.” Id. at 113. We applied this

-- 13 of 17 --

14
rule in Joseph, where the prosecutor’s closing argument
improperly attacked the defendant’s credibility and the
defendant claimed on appeal that those comments violated his
right to due process. 770 F.2d at 349. Despite the impropriety
of the prosecutor’s remarks, we upheld the conviction because
“the proof of Joseph’s guilt . . . was ample” and the District
Court had given a curative instruction concerning the improper
conduct. Id. We stated that “[i]f our review of the record
convinces us that the jury would have convicted the defendant
even had it not been exposed to the allegedly improper
prosecutorial comments, we must conclude that no actual
prejudice accrued.” Id. at 350. It may be thought that the same
result should follow here, for as explained above, the evidence
against Liburd was fairly strong.
But our polestar is no more Liburd’s culpability than it is
Potter’s. It is the fairness of the trial, and we think that the
nature of “the prosecutor’s improper actions” here made a fair
trial impossible. Morena, 547 F.3d at 194. In Joseph, the
prosecutor’s misconduct arose only at the end of the trial. It in
no way shaped the development of the record evidence we
evaluated, or the trial strategy pursued by either party. This case
is entirely different. Potter’s promise at the suppression hearing
not to introduce “any” statements Liburd made influenced
Liburd’s strategic decisions—and therefore the record evidence

-- 14 of 17 --

It also persuaded the District Court to forego a ruling5
on Liburd’s motion to suppress.
15
before us—from the outset. But for Potter’s promise, Liburd5
almost certainly would have chosen a trial strategy with a better
chance of success, or might well have opted for a negotiated
plea of guilty. Indeed, Liburd’s trial strategy must have been
crafted with Potter’s promise in mind. His theory of the case
was that someone slipped the cocaine into his bag after he
passed through the TSA checkpoint, and that the “objects”
Officer Martin saw on the X-ray machine were the bottles of
shampoo that Officer Grouby later discarded.
The Cheese Statement obliterated this theory. Evidence
that Liburd had acknowledged having bricks of something in his
bag all but disproved his claim that his bag contained only
shampoo. Few juries, we imagine, would accept that a TSA
inspector would mistake bottles of shampoo for bricks of
cheese. If there was any room for doubt on this point, however,
Grouby buried it when he testified that the bottles of shampoo
in Liburd’s bag were not the same objects as the bricks of
“cheese.” In other words, even if jurors were inclined to believe
that the masses revealed by the X-ray scanner were shampoo,
they still would have been left with an obvious question: what
were the bricks that Liburd told Grouby were cheese? Liburd
had no answer, because he was led to believe that he would not
need one. If he had known that the jury would hear about the
Cheese Statement, however, surely he would have adjusted his

-- 15 of 17 --

16
strategy accordingly. Cf. Lee, 573 F.3d at 165 (finding prejudice
from government’s failure to disclose evidence before trial
because “[a]bsent the discovery violation, [the defendant] would
have likely crafted a different trial strategy that might have
proven more effective”); California v. Trombetta, 467 U.S. 479,
485 (1984) (due process requires a “meaningful” opportunity to
prepare a defense).
We decline to countenance Potter’s misconduct simply
because the record contains enough evidence from which a jury
could have found Liburd guilty. Indeed, we must discount the
utility of that evidence to our analysis because the entire trial
record was corrupted by Potter’s misconduct. If Liburd appears
guilty from this record, that may only be because he was lulled
into pursuing a defense that was dead on arrival once Potter
broke his promise. Potter’s broken promise literally “infected”
everything that unfolded at trial with unfairness. Morena, 547
F.3d at 194.
We cannot know what defense Liburd would have chosen
absent Potter’s misconduct, or how that defense would have
measured up to the government’s evidence. Nor can we know
if he would have chosen to go to trial at all. We decline to
speculate. We know only that the defense he chose under the
circumstances could not and did not survive Potter’s ambush.
We cannot sustain a conviction obtained in this manner.

-- 16 of 17 --

17
III.
Potter’s use of the Cheese Statement “so infected the trial
with unfairness as to make the resulting conviction a denial of
due process[.]” Id. We will vacate the judgment and remand for
further proceedings. We express no view on the Double
Jeopardy implications of Potter’s actions.

-- 17 of 17 --