                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 10-3266
                                _____________

                        UNITED STATES OF AMERICA

                                        v.

                              LORENZO LIBURD,

                                    Appellant
                               _______________

                        On Appeal from the District Court
                        of the United States Virgin Islands
                      District Court No. 3-08-cr-00057-001
                 District Judge: The Honorable Curtis V. Gómez

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                             December 17, 2010

      Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges

                           (Filed: December 29, 2010)

                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      In United States v. Liburd, 607 F.3d 339 (3d Cir. 2010), we concluded that

Lorenzo Liburd’s “trial was marred by prosecutorial misconduct which denied him
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due process of law.” Id. at 340. As a result, we vacated Liburd’s convictions for

possessing cocaine with the intent to distribute in violation of 21 U.S.C. § 841 and

attempted importation of cocaine in violation of 21 U.S.C. § 952(a). In addition,

we remanded the matter for further proceedings.

      On remand, Liburd moved to dismiss the indictment on the basis that retrial

would violate his Fifth Amendment right not to be subjected to double jeopardy.

The District Court of the Virgin Islands denied the motion. Thereafter, Liburd

entered a conditional plea, preserving his right to appeal the issue whether his

retrial violated the Double Jeopardy Clause. This timely appeal followed.1

      The Double Jeopardy Clause of the Fifth Amendment provides that no

person shall “be subject for the same offence to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. The Revised Organic Act of 1954 extends this right

to the people of the Virgin Islands. 48 U.S.C. § 1561. In United States v. Curtis,

683 F.2d 769 (3d Cir. 1982), we concluded that prosecutorial misconduct

prejudicial to a defendant does not preclude retrial unless the defendant shows that

the prosecutor intended to provoke a mistrial. Id. at 776. Curtis identified three


1
   The District Court exercised jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291. Abney v. United States, 431 U.S.
651 (1977). Our review of a district court’s denial of a defendant’s double jeopardy
challenge is plenary. United States v. Rigas, 605 F.3d 194, 204 (3d Cir. 2010) (en banc).
Because a defendant’s double jeopardy challenge based on prosecutorial misconduct
requires a district court to make certain factual findings, we review those findings for
clear error. United States v. Curtis, 683 F.2d 769, 776 (3d Cir. 1982).
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factors to consider in deciding whether a defendant has met his burden of showing

that the prosecutor had the intent to provoke a mistrial: (1) whether the “record

indicates that the prosecutor believed that the jury was about to acquit” the

defendant; (2) whether the government “stood to gain from a mistrial”; and (3)

whether the prosecutor proffered some justification for his misconduct. Id. at 777.

Following Curtis, we have “consistently emphasized that application of the double

jeopardy bar is dependent on a showing of the prosecutor’s subjective intent to

cause a mistrial in order to retry the case.” United States v. Williams, 472 F.3d 81,

85-86 (3d Cir. 2007).

      Here, the District Court presided over the first trial. Judge Gómez was fully

aware of the prosecutor’s missteps during both the government’s opening

statement and the direct examination of Officer Grouby. After reciting the factual

history of the case, he applied the analysis set forth in Curtis and concluded that

the prosecutor did not intend to goad the defendant into moving for a mistrial.

Liburd contends that the District Court erred because it did not take account of all

of the circumstances in the case.

      We find no error, clear or otherwise, in the District Court’s thorough

analysis and its determination that the prosecutor’s misconduct was not “aimed at

provoking a mistrial.” Liburd has not directed us to any evidence which would

support a finding that the government believed an acquittal was likely. As we

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noted in Liburd’s first appeal, “there was ample evidence that Liburd possessed

bricks of cocaine when he passed through the TSA checkpoint, and that those

bricks were not . . . slipped into his bag in the waiting area.” 607 F.3d at 344. Nor

is there any evidence that the government stood to benefit from a retrial. As Judge

Gómez noted, the government proffered an explanation for its conduct. Although

Judge Gómez did not find the prosecutor’s explanation persuasive, he concluded

that the explanation was at least plausible. Because the prosecutor claimed that he

learned of Liburd’s inculpatory statement on the eve of trial, we agree that the

prosecutor’s explanation was plausible. Furthermore, the District Judge’s finding

that the prosecutor did not intend to provoke defendant into a mistrial is supported

by the hesitancy of defense counsel to seek a mistrial. See Curtis, 683 F.2d at 777

(noting that trial court’s finding that prosecutor had the subjective intent to

provoke a mistrial was in tension with the fact that neither defense counsel nor the

court “recognized immediately the need for a mistrial”). Instead, defense counsel

referred to Liburd’s statement during cross examination of Officer Grouby in an

attempt to undermine the accuracy of Officer’s Grouby’s written statement.

Defense counsel did not request a mistrial until the second day of trial.

      In sum, we will not disturb the District Court’s finding that the prosecutor

did not intend to cause a mistrial. For that reason, we will affirm the District

Court’s order denying Liburd’s motion to dismiss on double jeopardy grounds.

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