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Prosecutorial Misconduct Causes Reversal in Drug Case

Posted On: September 15, 2010 by Marc Neff

The Third Circuit Court of Appeals recently vacated a defendant’s conviction on the grounds that the prosecutor’s introduction of testimony, that he had promised not to rely on at trial, had deprived the defendant of a fair trial. In US v. Liburd, Liburd was convicted of attempted importation of cocaine and possession with intent to distribute more than 500 grams of cocaine.

On Oct. 4, 2008, Liburd attempted to board a flight to Atlanta from the St. Thomas airport. As he passed through TSA security, one of the officers noticed an image of two large masses in his carry-on bag. He was referred to an inspection station, where another TSA officer searched his bag and asked about the two brick-like masses, which Liburd identified as “cheese.” He was subsequently permitted to continue to his flight, where, as he waited to board, another officer approached him for a “random inspection” because he appeared to be nervous. Upon a 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 in fact over 2 kilograms of cocaine. 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 Liburd’s statement that the cocaine was “cheese” during the first search of the bag because, at that time, the statement had not been disclosed. At the suppression hearing, the prosecutor stated that he would not rely on any statements made by Liburd at trial. As a result, the court declined to rule on the admissibility of the statements.

Right before the trial, the prosecutor disclosed Liburd’s “cheese” statement. At trial, he repeatedly referred to Liburd’s cheese statements. The court declined defense counsel’s objection and request for a mistrial, instead giving jurors an instruction not to consider statements attributed to Mr. Liburd that were improperly introduced. Liburd was convicted on both charges, and subsequently appealed.

On appeal, Liburd argued that the prosecutor’s use of his cheese statement was misconduct that violated his right to due process. The Court of Appeals agreed, explaining that once a prosecutor makes a promise to defense counsel, or the court, they are committed to keeping it, and that the prosecutor’s actions made a fair trial impossible in this case, therefore violating Liburd’s due process rights under the Fifth Amendment. The Court specifically noted that the prosecutor’s promise not to use any of Liburd’s statements affected his trial strategy, because but for this promise, the strategy would have been different. The Court vacated Liburd’s conviction and remanded the case for further proceedings.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at

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Posted in: Drug Crimes