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United States v. Nobrega

United States District Court, D. Maine

October 5, 2016

UNITED STATES OF AMERICA
v.
DOMINGOS NOBREGA

          ON MOTION TO COMPEL U.S. GOVERNMENT TO PRODUCE COURT RECORD OF INVOKE/ASSERT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         A convicted defendant seeks to compel the Government to produce court records of a certain witness asserting her Fifth Amendment right to remain silent. However, no such records exist because the witness did not appear either at the defendant's trial or at his sentencing hearing to testify. The witness did not appear at trial because neither the government nor the defendant called her as a witness. The witness did not appear at the sentencing hearing because the defendant was unable to subpoena her for the hearing. Informed that the witness would assert her Fifth Amendment right of silence at the sentencing hearing, the Court allowed the defendant to introduce reports of the witness's prior statements in lieu of her testimony. Contrary to the defendant's contention, in these circumstances, the witness was not obligated to actually appear in court to assert her Fifth Amendment rights. The Court denies the defendant's motion to compel the records.

         I. BACKGROUND

         On May 24, 2011, following a two-day trial, a federal jury found Domingós Nóbrega guilty of being a felon in possession of a firearm. Jury Verdict Form (ECF No. 98). Pursuant to that jury verdict, on July 13, 2012, the Court sentenced Mr. Nóbrega to 120 months in prison, three years supervised release, and a $100 special assessment; the Court imposed no fine. J. (ECF No. 228). On May 20, 2014, the Court of Appeals for the First Circuit affirmed Mr. Nóbrega's conviction. J. (ECF No. 275) (First Circuit J.).

         Mr. Nóbrega has “never accepted the verdict and sentence and has pursued all conceivable avenues of relief…” Order on Def.'s Mots. for New Trial and New Sentencing at 5 (ECF No. 281) (Second New Trial Order); Order on Grand Jury Mots. at 1-2 (ECF No. 320). He has filed numerous post-judgment motions, and the Court has issued numerous orders. See Order on Mot. for New Trial (ECF No. 157) (First New Trial Order); Order on Def.'s Mots. (ECF No. 244); Order Granting Mot. to Construe Rule 60(b) Mot. as a Mot. Pursuant to Section 2255 (ECF No. 266); Recommended Decision on Rule 60(b) Mot. and Mot. to Construe Rule 60(b) Mot. as a 28 U.S.C. § 2255 Mot. (ECF No. 267); Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 270); Order Staying Mot. for Post-Conviction Relief (ECF No. 278); Second New Trial Order; Order on In-Camera Review of Select Grand Jury Test. (ECF No. 295); Further Order on Grand Jury Test. (ECF No. 297); Order in Resp. to Def.'s Mot. to Respond to Judge John A. Woodcock II on In-Camera Review of Select Grand Jury Test. (ECF No. 299); Order on Grand Jury Mots.; Order on Motion for Reconsideration of Order on Grand Jury Motions (ECF No. 341).

         On July 28, 2016, Mr. Nóbrega moved to compel the Government to produce court records of Norella Meerzon asserting her Fifth Amendment right to remain silent “in front of a [j]udge and a [s]tenographer for the Court.” Mot. to Compel U.S. Gov't to Produc. Ct. R. of Invoke/Assert at 1 (Pl.'s Mot.). In his motion, Mr. Nóbrega asserts that if the Government cannot produce the court records, then the Government committed fraud, and the Court should vacate his sentence. Id. at 1-2.

         On August 17, 2016, the Government responded to Mr. Nóbrega's motion to compel the court records. Gov't's Resp. to “Mot. to Compel U.S. Gov't to Produc. Ct. R. of Invoke/Assert” (ECF No. 354) (Gov't's Opp'n). The Government opposes the motion for two reasons: first, the Government asserts that “nothing in the record suggests that Meerzon ever appeared before the Court to plead the Fifth Amendment.” Id. at 7. Accordingly, the Government insists that it “cannot be expected to produce a record of an event that never occurred.” Id. Second, the Government clarifies that “Meerzon did not personally invoke the Fifth Amendment. Rather, the attorney who represented her told the AUSA twice that Meerzon would not testify absent a grant of immunity.” Id. The Government maintains that Ms. Meerzon's lawyer “had a good faith basis for making that representation.” Id. (citing Maness v. Meyers, 419 U.S. 449, 467 (1975)).

         Mr. Nóbrega replied on September 6, 2016. Mot. to Respond to U.S. Gov't Resp. Filed Doc. 354 on 08/17/16, a Resp. to Pet'rs' Mot. to Compel U.S. Gov't (ECF No. 360) (Pl.'s Reply).[1] His reply seizes on the Government's acknowledgment that Ms. Meerzon did not personally invoke the Fifth Amendment. Mr. Nóbrega highlights that Ms. Meerzon never asserted her Fifth Amendment rights in person or by means of a notarized legal document. Id. at 3. He further asserts that Ms. Meerzon's attorney, Stephen Smith, “did not or does not have proper [j]urisdiction” to assert Ms. Meerzon's Fifth Amendment rights because he did not have written, notarized authority. Id. Mr. Nóbrega contends that the Government merely assumed that Ms. Meerzon asserted her Fifth Amendment rights, and that the Court should have called Ms. Meerzon to testify to determine if she actually wished to assert her Fifth Amendment rights. Id. at 4, 7.

         II. DISCUSSION

         A. Norella Meerzon as a Trial Witness

         It has long been Mr. Nóbrega's strongly-held belief that Norella Meerzon, his former girlfriend, should have been called as a witness to testify at his trial. In his June 1, 2011 motion for new trial, Mr. Nóbrega argued that Ms. Meerzon had set him up for the criminal charge because she knew that as a felon, he could not possess a firearm, yet she bought a 9-millimeter firearm on May 5, 2010, snuck it into their Bangor home, and hid it in their house without his knowledge. See First New Trial Order at 7. He says that Ms. Meerzon's purchase of the firearm was itself a violation of federal criminal law because she was not a resident of Maine at the time of her purchase. Id. at 7-8. Furthermore, Mr. Nóbrega contends that, having hidden the firearm in the house, Ms. Meerzon contacted the Bangor Police Department and made a false report that Mr. Nóbrega possessed a firearm, a report that ultimately resulted in his arrest, prosecution, and conviction. Id. at 8. He has repeatedly expressed frustration that the federal prosecutor decided not to press charges against Ms. Meerzon for her allegedly criminal actions. Id. Mr. Nóbrega says that Ms. Meerzon's motivation was to oust him from their Bangor home, which they had owned jointly. Id.

         Mr. Nóbrega has raised the Norella Meerzon issue a number of times, and the Court has already addressed his contentions at some length. See First New Trial Order at 7-8, 12 (ECF No. 157); Second New Trial Order at 8-11 (ECF No. 281); Order on Grand Jury Mots. at 11-13 (ECF No. 320). The Court has explained that before trial, on May 16, 2011, defense attorney Virginia Villa filed a motion to determine whether Ms. Meerzon was going to assert the Fifth Amendment and refuse to testify. Mot. in Limine to Have Ct. Inquire Whether Gov't Witness Will Invoke Fifth Am. While Testifying (ECF No. 71). In the motion, Attorney Villa stated that “[i]t is believed that Ms. Meerzon may invoke her Fifth Amendment right should she be called as a witness at trial.” Id. at 1. If so, she noted that it would be improper to call Ms. Meerzon as a witness in front of the jury to assert the Fifth Amendment because it “could lead a jury to draw impermissible inferences from which neither side has a right to benefit.” Id. at 1-2 (quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)). In fact, Attorney Villa wrote that having a government witness invoke the Fifth Amendment “may result in reversible error.” Id. at 2 (citing Namet v. United States, 373 U.S. 179 (1963)). She said the “better practice” is for the Court to address Ms. Meerzon “outside the hearing of the jury before her testimony.” Id.

         After Attorney Villa filed the motion in limine, on May 17, 2011, the Government responded with a memorandum. Gov't's Resp. to Def.'s Mot. in Limine to Have the Ct. Inquire Whether Gov't Witness Will Invoke Fifth Am. While Testifying (ECF No. 76). In the Government's response, it said it had contacted Attorney Stephen Smith, a local criminal defense lawyer who represented Ms. Meerzon, and that it had no objection to the Court conducting an inquiry of Ms. Meerzon to determine whether she would assert the Fifth Amendment privilege if called to testify. Id. at 1.

         On May 23, 2011, at a conference of counsel, the Court raised the issue of Ms. Meerzon's testimony and agreed that it would be appropriate for the Court to allow an examination of Ms. Meerzon to determine whether she would assert the Fifth Amendment. Tr. of Proceedings 3:25 (ECF No. 247). The Assistant United States Attorney (AUSA), however, immediately represented that he was not going to call Ms. Meerzon as a government witness. Id. With this representation, because the Government elected not to call ...


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