United States v. Nilda Morton ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-3270
______________
UNITED STATES OF AMERICA
v.
NILDA MORTON,
Appellant
______________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 3-17-cr-00034-001)
District Judge: Hon. Curtis V. Gomez
______________
Argued December 9, 2020
Before: SMITH, Chief Judge, CHAGARES,
and MATEY, Circuit Judges.
(Filed: April 7, 2021)
A. Jeffrey Weiss (Argued)
A.J. Weiss & Associates
6934 Vessup Lane
Charlotte Amalie
St. Thomas, VI 00802
Counsel for Appellant
Gretchen C.F. Shappert, United States Attorney
Alessandra P. Serano
Delia L. Smith (Argued)
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Counsel for Appellee
______________
OPINION OF THE COURT
______________
MATEY, Circuit Judge.
One of the more radical notions introduced at the
founding of the American republic was the idea that “[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself.” U.S. Const. amend. V. From
Madison’s first broad formulation, 1 the Framers embraced the
idea that citizens could demand the government prove each
element of an alleged crime without their assistance.
Nilda Morton followed that path. After pleading guilty
to drug trafficking, she agreed to cooperate with the United
States Attorney for the District of the Virgin Islands (“DVI”).
But her agreement was narrow, providing no immunity nor
barring anyone else from bringing fresh charges. So when the
DVI summoned Morton to testify about new criminal
activities, she invoked the privilege in the Fifth Amendment.
Dissatisfied, the DVI demanded she assist, arguing she faced
no new peril. And when she still declined, the DVI obtained an
indictment for criminal contempt and secured a guilty verdict.
All fair if, as the DVI claimed, Morton’s invocation was
improper. Answering that question required answering another
question: whether the testimony the DVI sought could not have
possibly tended to incriminate Morton in new crimes. Because
that question remains unanswered, the District Court’s order
requiring Morton to testify was invalid. And without a valid
court order, there is no criminal contempt. We will vacate
Morton’s contempt conviction and reverse the District Court’s
denial of her motion for a judgment of acquittal.
1
Madison’s proposal did not limit the privilege to
criminal cases. Madison’s Speech, June 8, 1789, in 1 Debates
and Proceedings in the Congress of the United States (Annals
of Congress), 1st Cong., 1st Sess., 451–52.
2
I. BACKGROUND
A. Morton’s Crimes, Arrest, and Cooperation
In 2017, Morton pleaded guilty to possession with intent
to distribute cocaine 2 and received a 97-month prison sentence.
In her written plea agreement, she admitted her role in an
enterprise that included shipping cocaine from the Virgin
Islands to the continental United States. She explained the
scheme involved commercial flights destined for New York
and Miami, with money from the transactions routed through
Cleveland before delivery back to St. Thomas. Nobody
disputes that part of the story.
The DVI claims there is more to tell, and that during the
investigation, intercepted telephone calls between Morton and
Vernon Fagan, an alleged co-conspirator, reveal Morton sold
cocaine to a man in New York named Alexci Emanuel.
Morton, the DVI explains, asked Fagan to collect the proceeds
from that sale in exchange for a finder’s fee of two kilograms
of marijuana. But for whatever reason, this story appears
nowhere besides the DVI’s legal briefs in this appeal, and is
not mentioned, let alone admitted, in Morton’s plea agreement.
Morton also entered into a separate cooperation
agreement with the DVI. There, she agreed to provide all
information about her knowledge of and participation in any
crimes. Neither the plea nor cooperation agreement offered
immunity, and each bound only Morton and the DVI. The
arrangement worked well for a time, and Morton testified as a
witness for the DVI in several matters.
Then, she was called as a witness at a hearing to revoke
Fagan’s supervised release. 3 The DVI alleged Fagan tried to
collect Emanuel’s debt to Morton, a violation of his release
2
In violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(ii)(II), (b)(2).
3
Juries convicted Fagan in two drug-trafficking cases.
The first case led to a sentence of eighty months’ imprisonment
and a four-year term of supervised release. The second
produced a 168-month term of imprisonment and five years of
supervised release.
3
terms. Perhaps unsurprisingly, the DVI called Morton to testify
about Fagan, Emanuel, the debt, and who owed what to whom.
Maybe less surprisingly, Morton refused to testify. 4 Rightfully,
the District Court advised Morton to consult with her
just-appointed attorney 5 and after doing so, she again invoked
the Fifth Amendment. The District Court then warned Morton
that her invocation was improper and directed her to answer or
risk charges of criminal contempt. Morton did not waver,
declining to respond some twenty-seven times over at least
nine separate warnings. Through all of this, the District Court
did not state why Morton lacked a reasonable basis for her
silence or how answering the DVI’s questions could not
reasonably tend to incriminate. 6
4
Possibly most surprisingly, the DVI seemed surprised
by this turn of events. The record shows Juan Matos de Juan,
Morton’s attorney, told the DVI that he believed this testimony
fell outside the scope of Morton’s agreements, but the record
offers no insight into whether, for example, the DVI sought to
square their inquiry with Morton’s agreements. Nor whether
they raised Morton’s reluctance with the District Court before
all of this unfolded at the hearing.
5
Morton’s representation, like much else here, was
unusual. A day before the Fagan hearing, Morton spoke with
Matos de Juan, her attorney in her drug trafficking case, by
telephone. But Matos de Juan was in Puerto Rico and could not
appear at the hearing. When Morton took the stand and asserted
the privilege, the District Court asked about her counsel, and
then adjourned for a recess. During that recess, a marshal
approached George Marshall Miller, an attorney in the
courthouse on unrelated business, and advised Miller to come
to Fagan’s hearing. Dutifully, Miller reported, and the District
Court appointed him to represent Morton. The Court permitted
Miller and Morton to confer with Matos de Juan by phone, and
twenty minutes later, the hearing resumed with Miller
representing Morton.
6
Morton’s testimony proved unnecessary as the District
Court found that Fagan violated the conditions of his
supervised release and imposed two concurrent thirty-three-
month sentences, one in each underlying criminal case.
4
B. Morton’s Criminal Contempt Trial
Instead, the District Court announced Morton would
face trial for criminal contempt. Obliging that suggestion, the
DVI then indicted Morton for violating 18 U.S.C. § 401(3). 7
At trial, the DVI framed its case against Morton as a story of
broken promises. She appeared at the revocation hearing, the
DVI stated, “pursuant to agreements that she made with the
United States.” Morton, the DVI explained, merely had to
“perform in accordance with the agreements,” (App. at 86–87),
because she already “agreed to provide these testimonies.”
Trial Transcript at 80, United States v. Morton, No. 17-cr-
00034 (D.V.I. Sept. 4, 2018), ECF No. 52 (“Trial Transcript”).
Despite those comments, the District Court declined to allow
the DVI to introduce the plea or cooperation agreements into
evidence, explaining they were “not in issue here.” Trial
Transcript at 91. Nor did the Court allow Morton to call
attorney Miller as a witness to testify about the advice he
provided at Fagan’s hearing and her fear that “a whole bunch
of different charges . . . could be brought if she gets up on the
stand.” (App. at 122.) By contrast, the Court did allow the DVI
to introduce several excerpts from the revocation hearing
transcript when the Court warned Morton her invocation of the
Fifth Amendment was inappropriate.
The jury found Morton guilty, leading to a sentence of
37 months’ imprisonment, running consecutive with her earlier
97-month sentence for her drug offenses. Morton filed motions
under Rules 29 and 33 of the Federal Rules of Criminal
Procedure, seeking a judgment of acquittal or a new trial. The
District Court denied both motions, and she timely appeals. 8
7
Following Morton’s repeated invocations of the Fifth
Amendment, the District Court stated: “Okay. Ms. Morton, I
want to advise you and give you notice that on September 20th
there will be a trial to determine whether you have committed
criminal contempt.” (App. at 81.) The next day, the DVI filed
an information charging her with one count of contempt. A
grand jury returned an indictment on April 12, 2018, and the
trial occurred later that month.
8
18 U.S.C. § 3231 and 48 U.S.C. § 1612 provided the
District Court jurisdiction, and we have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
5
II. ANALYSIS
Morton raises several issues on appeal, but we focus on
her argument under the Fifth Amendment. It is unclear whether
Morton adequately preserved this issue before the District
Court. We need not resolve this question, and we apply plain
error review because Morton’s conviction cannot stand even
under that exacting standard. See Fed. R. Crim. P. 52(b). Rule
52(b) requires a plain error of law that affects “substantial
rights.” Id.; United States v. Jabateh, 974 F.3d 281, 298 (3d
Cir. 2020) (citing United States v. Olano, 507 U.S. 725, 732–
34 (1993)). If that exists, we can take corrective action “if the
error ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Olano, 507 U.S. at 736(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). 9
A. The Propriety of Morton’s Invocation of the Fifth
Amendment
With the ratification of the Fifth Amendment, the
concept that individuals should not be compelled to act as
witnesses in their own criminal cases “became clothed in this
country with the impregnability of a constitutional enactment.”
Brown v. Walker, 161 U.S. 591, 597 (1896). The Fifth
Amendment’s protections include more than just “evidence
which may lead to criminal conviction,” extending to
“information which would furnish a link in the chain of
evidence that could lead to prosecution, as well as evidence
which an individual reasonably believes could be used against
him in a criminal prosecution.” Maness v. Meyers, 419 U.S.
449, 461 (1975) (citing Hoffman v. United States, 341 U.S.
479, 486 (1951)). As a result, the key inquiry is whether the
9
Rule 52(b) adopts the Supreme Court’s earliest
formulations on the power to notice unpreserved errors,
limiting review to matters “absolutely vital to defendants.”
Wiborg v. United States, 163 U.S. 632, 658 (1896); accord
Clyatt v. United States, 197 U.S. 207, 221–22 (1905).
Consistent with that standard, the Court had “less reluctance to
act under it when rights are asserted which are of such high
character as to find expression and sanction in the Constitution
or Bill of Rights.” Weems v. United States, 217 U.S. 349, 362
(1910).
6
witness “reasonably believes” her testimony “could be used in
a criminal prosecution or could lead to other evidence that
might be so used.” Kastigar v. United States, 406 U.S. 441,
444–45 (1972).
Mindful of that focus, where a witness, like Morton
here, makes a “prima facie” invocation of the privilege, United
States v. Yurasovich, 580 F.2d 1212, 1221 (3d Cir. 1978), it
must be “perfectly clear, from careful consideration of all the
circumstances in the case, that the witness is mistaken, and that
the answer[s] cannot possibly have such tendency to
incriminate.” Hoffman, 341 U.S. at 488 (emphasis in original)
(quotations omitted). So, for example, where a witness enjoys
immunity, Kastigar, 406 U.S. at 449, or where “a guilty plea
terminate[d] proceedings which embody all of the potential
criminal charges to which a witness is exposed,” Yurasovich,
580 F.2d at 1218 (emphasis in original), there is no chance of
self-incrimination through compelled testimony. On the other
hand, where a guilty plea leaves open possible crimes for
further prosecution, and the testimony sought may reveal
details relevant to those new crimes, the privilege against self-
incrimination remains. Yurasovich, 580 F.2d at 1218.
So when Morton invoked her privilege, and the DVI
objected, the District Court needed to determine whether she
could have reasonably believed her testimony could
incriminate, including by leading to evidence against her,
before ordering her to testify. Finding no record of that
analysis, we cannot conclude Morton’s claim was
unreasonable.
1. Morton’s Reasonable Concerns
We begin by considering why Morton might reasonably
believe her testimony could, directly or indirectly, self-
incriminate: 1) it is not clear that she waived her privilege for
the solicited testimony as part of her plea agreement; 2) her
plea and cooperation agreements did not insulate her from
charges in other jurisdictions; and 3) despite the DVI’s claims,
she did not have immunity.
The DVI first argues that Morton was called to testify
to the same conduct in her plea, waiving her Fifth Amendment
7
rights. But the mere existence of a plea agreement is not
enough. Rather, the question is what that plea agreement says.
And Morton’s plea agreement says nothing about Fagan or the
collection of a drug debt. The DVI responds that Morton
“admitted that Fagan had assisted her by facilitating the
collection of a drug debt.” (Response Br. at 3.) That would
indeed be relevant to waiver. But the DVI cannot point to
anywhere in the record (or, not that it would be relevant,
anywhere outside the record) where this admission occurred. 10
Nor can we find any such admission. If Morton did not admit
these facts, she did not waive her right to assert the privilege.
See Yurasovich, 580 F.2d at 1218.
And if Morton did not waive the right, it is easy to see
why she worried about self-incrimination. No one, including
Morton herself, disputes her involvement in a multi-state drug
operation. On top of other drug offenses, she worried her
testimony would lead to prosecution “for tax evasion, R.I.C.O.
or a host of other federal crimes.” (Opening Br. at 8.)
Moreover, Morton’s agreements with the Government promise
only that the DVI would file no other charges against her for
10
The DVI’s tell appeared early in the briefing. The
assertion that Morton “admitted” Fagan’s assistance in
collecting a debt is the only sentence without a record citation
in their summary of the case history. The cards tip again when
the DVI described Morton as an “immunized” witness, again,
without a record cite. Rooting around for an answer to these
mysteries is not our role, of course, as “[j]udges are not like
pigs, hunting for truffles buried in the record.” Doeblers’
Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8
(3d Cir. 2006), as amended (May 5, 2006) (internal quotation
marks and citation omitted). So we asked the DVI to explain
these unsupported claims at oral argument. They could not, but
did confirm that Morton was not, as claimed, “immunized.”
Transcript of Oral Argument at 15:9–17:13, United States v.
Morton, No. 18-3270 (3d Cir. Dec. 9, 2020), ECF No. 113.
That all leaves us rather skeptical that Morton ever
“admitted” the solicited testimony. After foraging around in
the record, it seems more likely the DVI intended to show
Morton “admitted” to this conduct during a meeting with a
Virgin Islands Police Officer—testimony the District Court
declined to admit. (App. at 89–90.)
8
any crimes arising out of the same transactions, but they bound
no one else. 11 See United States v. Gebbie, 294 F.3d 540, 550
& n.4 (3d Cir. 2002). In short, Morton could have reasonably
believed her testimony would produce new criminal charges,
and that is where the Fifth Amendment’s privilege arises. Her
invocation of that protection was proper. 12 We turn next to
whether Morton’s subsequent conviction for criminal
contempt resulted from plain error.
2. The Yurasovich Framework
We have explained the steps for considering assertions
of the Fifth Amendment. Once asserted, whether framed in
ordinary or technical terms, the burden falls to the government
to “make it ‘perfectly clear’ that the answers sought ‘cannot
possibly’ tend to incriminate.” Yurasovich, 580 F.2d at 1221(quoting Malloy v. Hogan, 378 U.S. 1, 12 (1964)). That
requires resolving any “ambiguity” and showing that the
witness will not run the risk of self-incrimination. Id. It is a
predictable standard that appropriately tasks the government
11
The DVI dismissed this concern, arguing it would not
be practical for other offices to file charges against Morton. As
a practical matter, that is no comfort to Morton and would offer
no defense should criminal charges arise. And what the DVI
finds “practical” does not determine when the Fifth
Amendment’s protections apply. The people made that
decision when they ratified the Fifth Amendment. And since
that time, “[f]ormal requirements are often scorned when they
stand in the way of expediency.” Neder v. United States, 527
U.S. 1, 40 (1999) (Scalia, J., concurring in part and dissenting
in part). Article III of the Constitution demands courts ensure
those rights drive the system of criminal justice rather than
taking a backseat to practicality.
12
The DVI also argues that because Morton once
testified as a witness for the Government, she could not assert
the Fifth Amendment privilege here. That argument is
incorrect, and we have explained “a person who has waived his
privilege of silence in one trial or proceeding is not estopped
to assert it as to the same matter in a subsequent trial or
proceeding.” In re Neff, 206 F.2d 149, 152 (3d Cir. 1953). Of
course, the DVI does not even claim Morton testified to this
same conduct in any prior hearing.
9
with producing evidence and argument that honors the
guarantees of the Constitution.
Here, the District Court did not follow that process. The
Court did not ask the Government, at either the Fagan hearing
or at the contempt trial, whether Morton’s testimony might be
self-incriminating. The Court should have asked the
Government to make it “perfectly clear” any fear was
unfounded before ordering Morton to testify. Without that
colloquy, we, like the Court in Yurasovich, cannot be sure that
Morton “transgressed the contours of [her] constitutional
privilege.” Id. And if her actions were within the contours of
her constitutional rights, then she did not commit criminal
contempt. See In re Neff, 206 F.2d 149, 151 (3d Cir. 1953) (“A
witness’ assertion of his constitutional privilege against self-
incrimination, if properly claimed, cannot be contempt of
court, however.”).
The District Court’s failure to require the Government
to meet its burden was an error, the first required element under
Rule 52(b). And as we next discuss, the error was plain and
affected Morton’s substantial rights.
B. The District Court’s Error Was Plain
Courts can only correct unpreserved errors when
“plain,” meaning “‘clear’ or, equivalently, ‘obvious’” under
current law. Olano, 507 U.S. at 734. When precedent speaks
directly to the issue, it is fair to say current law is clear. And
when the error veers from that precedent, there was a clear
error.
Here, the District Court, before ordering Morton to
testify, failed to determine that the solicited testimony could
not possibly tend to incriminate despite a “prima facie” claim
of privilege. Yurasovich, 580 F.2d at 1221. That is not a novel
error, and closely parallels the facts in Yurasovich. And there,
we explained that the Government must carry its burden before
a court can determine whether a witness overstepped their Fifth
Amendment rights. Id. That precedent makes the error here
plain. See Jabateh, 974 F.3d at 299.
10
C. The Error Affected Substantial Rights
And that plain error affected Morton’s “substantial
rights.” Morton need not prove her case would have ended
differently but for the mistake, but she does need to show a
“reasonable probability” that the outcome would have been
different. Molina-Martinez v. United States, 136 S. Ct. 1338,
1343 (2016) (quoting United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004)). Put another way, she must show that “the
probability of a different result is ‘sufficient to undermine
confidence in the outcome’ of the proceeding.” Dominguez
Benitez, 542 U.S. at 83 (quoting Strickland v. Washington, 466
U.S. 668, 694 (1984)).
That she has. Morton did not have immunity, making it
reasonable to fear future prosecution stemming from her
testimony. The District Court never required the DVI to prove
her fears were unfounded. If, for instance, Morton had been
able to present more evidence about her concerns—or, more
significantly, if the DVI had been required to show that her
testimony could not possibly tend to incriminate and could not
meet that burden—it is reasonable to think the jury may have
returned a different verdict. We cannot say, and therefore
cannot say the error did not affect “the outcome of the district
court proceedings.” Olano, 507 U.S. at 734.
D. The Error Warrants Correction
Because there was a plain error affecting substantial
rights, we may correct the error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 736. Correction under Rule 52(b) is a matter of discretion
rather than a mandate, id., most appropriate when failing to act
would lead to a “miscarriage of justice.” Id. And the ultimate
miscarriage of justice is a wrongful conviction. 13 See id. (“The
court of appeals should no doubt correct a plain forfeited error
13
As we noted in United States v. Williams, actual
innocence only means that a remedy is necessary, and not that
we automatically reverse, because “the discretion
contemplated by Rule 52(b) is to be preserved” in all federal
criminal direct appeals. 974 F.3d 320, 342 (3d Cir. 2020). We
exercise that discretion here.
11
that causes the conviction or sentencing of an actually innocent
defendant.”)
If Morton remained silent to avoid giving testimony that
might lead to further criminal charges, that decision enjoys
protection under the Fifth Amendment. If she was acting
within the bounds of the Fifth Amendment, charges for
criminal contempt were improper. It is hard to envision an error
that “seriously affects the fairness, integrity, and public
reputation” of the judiciary more than a wrongful conviction.
No person should be subject to criminal prosecution for
knowing and invoking their fundamental rights in an
appropriate scenario, and Morton is no exception to that rule.
E. The Error and The Conviction
The District Court plainly erred in its handling of
Morton’s invocation of the Fifth Amendment, and that error
affected her fundamental rights. Failing to correct that decision
on appeal will harm the fairness, integrity, and public
reputation of judicial proceedings. But how does that error—
neglecting to require the government to show it was “perfectly
clear” that Morton’s testimony could not possibly tend to
incriminate—impact her conviction for criminal contempt?
The answer rests in statute.
Section 401(3) of Title 18 of the United States Code
permits federal courts to punish acts in “contempt of its
authority” including “[d]isobedience or resistance to its lawful
writ, process, order, rule, decree or command.” A conviction
for criminal contempt requires proof beyond a reasonable
doubt showing the accused willfully and knowingly disobeyed
“a valid court order.” In re Kendall, 712 F.3d 814, 830 (3d Cir.
2013). See also United States v. Beaulieu, 973 F.3d 354, 358
(5th Cir. 2020) (describing the elements of criminal contempt
as a specific order to testify that was willfully violated); United
States v. Trudeau, 812 F.3d 578, 587–88 (7th Cir. 2016) (“The
essential elements of a finding of criminal contempt under 18
U.S.C. § 401(3) are a lawful and reasonably specific order of
the court and a willful violation of that order.” (emphasis
added)). Here, the District Court departed from the process
provided in Yurasovich. And, as always, the prosecution
shouldered the burden of proving every element of § 401(3)
12
beyond a reasonable doubt. United States v. Nasir, 982 F.3d
144, 162 (3d Cir. 2020) (en banc) (discussing In re Winship,
397 U.S. 358, 364 (1970)); see also Taylor v. United States,
136 S. Ct. 2074, 2085 (2016) (Thomas, J., dissenting).
Taken together, sharply departing from the procedures
in Yurasovich rendered the District Court’s contempt order
invalid, and it means the DVI necessarily did not establish the
first element required under § 401(3) at all, let alone beyond a
reasonable doubt. 14 That failure “results in acquittal.” Nasir,
982 F.3d at 176; accord Burks v. United States, 437 U.S. 1, 10–
11 (1978) (holding that an appellate court’s determination that
the prosecution failed to prove an element of the charged crime
“unmistakably mean[s] that the District Court had erred in
failing to grant a judgment of acquittal”); United States v.
Harra, 985 F.3d 196, 211 (3d Cir. 2021) (“[W]e have
repeatedly found that the prosecution’s failure to prove an
element of an offense is sufficiently grave to amount to a
‘miscarriage of justice’ and a basis to reverse a conviction even
on plain error review.”). So we will reverse. 15
III. CONCLUSION
For these reasons, we will vacate Morton’s conviction,
reverse the District Court’s denial of her Rule 29 motion, and
remand the case for entry of a judgment of acquittal.
14
Of course, charges of contempt for invoking the rights
codified in the Fifth Amendment are different than ordinary
instances of disregarding a judicial order. See Maness v.
Meyers, 419 U.S. 449, 459–60 (1975); see also United States
v. Hendrickson, 822 F.3d 812, 820 (6th Cir. 2016) (discussing
the collateral bar rule applicable to contempt charges not
related to assertions of Fifth Amendment rights).
15
Because we reverse Morton’s conviction, we need not
evaluate her other arguments.
13