United States District Court, D. Maine
ON MOTION TO COMPEL U.S. GOVERNMENT TO PRODUCE COURT
RECORD OF INVOKE/ASSERT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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.).
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).
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.
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)).
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). 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.
Norella Meerzon as a Trial Witness
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.
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
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.
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