United States v. Morton

993 F.3d 198

UNITED STATES of America

v.Nilda MORTON, Appellant

No. 18-3270

United States Court of Appeals, Third Circuit.

Argued December 9, 2020

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

Before: SMITH, Chief Judge, CHAGARES, and MATEY, Circuit Judges.

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.

I. BACKGROUND

A. Morton's Crimes, Arrest, and Cooperation

In 2017, Morton pleaded guilty to possession with intent to distribute cocaine² 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 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 attorney⁵ 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

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

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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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, 113 S.Ct. 1770 (quoting United States v. Atkinson , 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (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, 16 S.Ct. 644, 40 L.Ed. 819 (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, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) (citing Hoffman v. United States , 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) ). As a result, the key inquiry is whether the 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, 92 S.Ct. 1653, 32 L.Ed.2d 212 (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, 71 S.Ct. 814 (emphasis in original) (quotations omitted). So, for example, where a witness enjoys immunity, Kastigar , 406 U.S. at 449, 92 S.Ct. 1653, 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...