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United States v. Nobrega

United States District Court, D. Maine

December 5, 2019

UNITED STATES OF AMERICA
v.
DOMINGÓS NÓBREGA DOMINGÓS NÓBREGA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ON DOMINGÓS NÓBREGA'S MOTION TO PROFFER UNCONDITIONAL DISCHARGE

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The Court rejects a defendant's demand for an unconditional discharge from his conviction and sentence, including supervised release, because the statute upon which the defendant relies, 12 U.S.C. § 95a(2), is void, and because a companion statute, 50 U.S.C. § 4305(b)(2), does not provide a basis for the relief he is requesting. Also, contrary to his argument, the federal court has jurisdiction over federal crimes occurring within the state of Maine, including possession of a firearm by a felon, the crime the defendant was convicted of violating. Lastly, the Court rejects his claim for damages, as he has not been wrongfully incarcerated and as the statutes he cites in support of his position, 26 U.S.C. §§ 7213 and 7431, provide relief to taxpayers whose return information has been improperly disclosed, and do not provide a basis for his requested relief.

         I. BACKGROUND

         A. Procedural Background

         On October 31, 2019, Domingós Nóbrega filed a pro se motion with the Court entitled, “Motion to Proffer Unconditional Discharge of 1:10-cr-000186-JAW-001 Through Settlement of Sum Certain Amount Held by Title 12 U.S.C. § 95(a)(2).” See (ECF No. 472) (Mot. to Proffer). At a hearing on the conditions of supervised release, Mr. Nóbrega raised the status of his motion and, as the Court's order dated October 31, 2019 describes, the Court informed Mr. Nóbrega that its practice when represented defendants file pro se motions is to allow the attorney who is representing the defendant to adopt, modify, or decline to adopt the pro se motion. Preliminary Order on Domingós Nóbrega's Mot. to Proffer Unconditional Discharge (ECF No. 473). On November 4, 2019, Attorney Jeffrey Silverstein filed a notice confirming that he was not adopting the pro se filing. Defense Counsel's Notice of Intent not to Adopt Pro Se Filing: “Mot. to Proffer Unconditional Discharge of 1:10-CR-000186-JAWE-001 Through Settlement of Sum Certain Amount Held by Title 12 U.S.C. § 95(A)(2).” (ECF No. 472) (ECF No. 475). After Attorney Silverstein's notice, the Government filed its response. Gov't's Resp. to the Def.'s Mot. to Proffer Unconditional Discharge of 1:10-CR-00186-JAW-001 Through Settlement of Sum Certain Amount Held by Title 12 USC § 95(a)(2) (ECF No. 477) (Gov't's Resp.). Mr. Nóbrega then made two filings with the Court. The first is a seventy-page document without a title that the Clerk's Office received on November 14, 2019, which the Court docketed as his reply. Reply to Resp. to Mot. to Proffer (ECF No. 480) (Def.'s Reply); Order on Recently-Received Doc. (ECF No. 479). The next was entitled a motion to respond to Government docket number 477 that the Clerk's Office received on November 20, 2019, Mot. to Respond to Govt Dkt No. 477 (ECF No. 481) (Def.'s Suppl. Reply), and on November 25, 2019, the Court treated Mr. Nóbrega's most recent filing as a supplemental reply. Order on Def.'s Mot. to Resp. to Gov't Docket No. 477 (ECF No. 482).

         B. The Charge, Trial, and Sentence

         On November 18, 2010, a federal grand jury indicted Domingós Nóbrega of possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1). Indictment (ECF No. 16). Jury trial began on May 23, 2011, Min. Entry for Proceedings Held Before Judge John A. Woodcock, Jr. (ECF No. 93), and on May 24, 2011, the jury issued a verdict, finding Mr. Nóbrega guilty as charged. Jury Verdict Form (ECF No. 98).

         Trial testimony revealed that in October 2010, Mr. Nóbrega, who had previously been convicted of a felony, was staying in Bangor, Maine, with his girlfriend Norella Meerzon. During the months before October 2010, Mr. Nóbrega was in email communication with a friend by the name of Eric Babilonia. Mr. Babilonia became increasingly concerned about Mr. Nóbrega's emails and he let Ms. Meerzon know about Mr. Nóbrega's apparent instability. On October 23, 2010, Ms. Meerzon went to the Bangor Police and showed them email correspondence that Mr. Babilonia had shared with her. Based on the email correspondence, the Bangor Police set up a tactical team around Mr. Nóbrega's home in Bangor. After repeatedly attempting to contact Mr. Nóbrega over the next four hours, the police teargassed the residence. Mr. Nóbrega emerged peacefully and the police arrested him.

         During the hours the tactical team had the residence surrounded, Joel Nadeau, a Bangor Police Detective trained as a sniper, testified that he had the Nóbrega residence under surveillance with a high-powered scope and saw Mr. Nóbrega hold a semiautomatic handgun. Another Bangor Police Detective, Erik Tall, participated in the execution of a search warrant of the Nóbrega premises sometime just after midnight and found a 9-millimeter Glock pistol underneath the mattress in the master bedroom. Detective Nadeau identified the Glock that Detective Tall found as bearing a very close resemblance to the handgun he observed in Mr. Nóbrega's hand the evening before. Tr. of Proceedings Vol. II at 155:16-19 (ECF No. 137) (Vol. II). The Government called several other police officers who confirmed the events surrounding the tactical team's staking out of the Nobrega residence and his arrest.

         In addition to the police officers, the Government called a number of lay witnesses. Mr. Babilonia confirmed that among other things Mr. Nóbrega had said that caused him to contact Ms. Meerzon was that he was “sitting next to his gun, ” and that he was “locked, cocked and ready to go, pretty much he had his guns, and he was suited up . . ..” Tr. of Proceedings Vol. I at 21:22-23; 22:14-15 (ECF No. 136) (Vol. I).

         During the days leading up to October 23, 2010, a group of friends from New York visited the Nóbrega-Meerzon residence. One was Crystal Schroeder. Ms. Schroeder arrived at the Bangor home on October 18th or 19th with Jason Rodriguez, Christopher Sherrill, and Justina Cipriano, and a woman named Olga. Ms. Schroeder testified that when she arrived at the Meerzon home, Mr. Nóbrega opened the door and was carrying a black handgun. Id. at 38:18-23. Ms. Schroeder said that she noticed the same firearm on the nightstand in Ms. Meerzon's and Mr. Nóbrega's bedroom. Id. at 39:10-12; 41:17-22. Finally, she testified that the evening before the New York friends left, when they sat down for dinner, Mr. Nóbrega got dressed up in a black bullet-proof vest, a robe, and a shoulder holster containing a gun. Id. at 39:7-43:12. Ms. Schroeder identified Exhibit 6, which was the Glock that Detectives Tall and Nadeau identified, as being the firearm that Mr. Nóbrega had in his holster. Id. at 42:16-43:12. Ms. Schroeder said that Mr. Nóbrega described the meal as the “Last Supper” and during the meal, he brought out a Bible and had Ms. Schroeder read a passage about betrayal. Id. at 41:7-12.

         Christopher Sherrill also testified. He arrived in Bangor with Justina Cipriano, Crystal Schroeder, Jason Rodriguez, and Olga. He confirmed that he had seen a handgun in the master bedroom on a nightstand. Id. at 55:20-56:4. Mr. Sherrill testified that when he and Justina Cipriano were in one of the bedrooms, Mr. Nóbrega entered wearing a black shoulder holster with a gun. Id. at 57:4-21. Mr. Sherrill later saw the holster through the white robe Mr. Nóbrega was wearing that evening. Id. at 58:3-14. He confirmed that Mr. Nóbrega called the dinner the “Last Supper.” Id. at 58:15-18. Mr. Sherrill testified that Mr. Nóbrega told him that he had the gun in order to protect himself from Jason Rodriguez, who he thought was a police officer. Id. at 59:25-60:6. Mr. Sherrill identified Exhibit 6 as appearing to be the same firearm that he saw on the nightstand in the master bedroom. Id. at 60:16-24.

         Justina Cipriano testified. She corroborated Mr. Sherrill's testimony about Mr. Nóbrega coming into their bedroom with a gun and a vest. Id. at 68:2-9. She also was “pretty sure” he was playing with the firearm, cocking it. Id. at 69:9-13. Similarly, she identified Exhibit 6 as appearing like the gun Mr. Nóbrega had in the bedroom. Id. at 68:25-69:3.

         Jason Rodriguez testified. Mr. Rodriguez is a sound technician who met Mr. Nóbrega in the music business in New York, and they had developed a “working relationship.” Id. at 73:3-4, 73:9-74:8. Mr. Rodriguez testified that while they were in New York, Mr. Nóbrega had told him he had a gun and that Mr. Rodriguez had witnessed him with one. Id. at 75:9-17. When Mr. Rodriguez arrived in Maine to visit Ms. Meerzon and Mr. Nóbrega, Mr. Rodriguez did not see Mr. Nóbrega with a firearm, but he confirmed details about the so-called “Last Supper, ” including Mr. Nóbrega's white robe and Bible readings. Id. at 79:14-80:14.

         The Government also called April Renee Maness as a witness. She has known Mr. Nóbrega since she was 12 or 13 years old. Vol. II at 138:11-14. She said that on October 23, 2010, he began texting her about having “some kind of a crisis.” Id. at 139:2-6. He thought his girlfriend was having him followed by the FBI. Id. at 139:6- 9. He told Ms. Maness that “he wasn't going down without a fight and he was packed.” Id. at 139:22-23.

         Mr. Nóbrega did not testify. Id. at 223:2-225:4. The defense called one witness, an investigator, who provided foundational evidence for the admission of a deed, which confirmed that Ms. Meerzon and Mr. Nóbrega both owned the house where this incident took place, that a number of liens and mortgages had been filed against the premises, and that Ms. Meerzon was suing Mr. Nóbrega civilly. Id. 226:21-237:23.

         On July 13, 2012, the Court sentenced Mr. Nóbrega to 120 months of incarceration, three years of supervised release, and a $100 special assessment. J. (ECF No. 228). The Court did not fine Mr. Nóbrega. Id.

         On July 25, 2012, Mr. Nóbrega appealed the judgment. Notice of Appeal (ECF Nos. 232, 233). The First Circuit dismissed the appeal on August 22, 2012 for lack of diligent prosecution. J. (ECF No. 237).

         II. THE PARTIES' POSITIONS

         A. Overview

         The Court observed previously that 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). He filed numerous post-judgment motions that have resulted in numerous court orders. See Order on Mot. for New Trial (ECF No. 157); 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 Grand Jury Mots. (ECF No. 320); Order on Mot. for Recons. of Order on Grand Jury Mots. (ECF No. 341); Am. Further Order on Mot. for Recons. of Order on Grand Jury Mots. (ECF No. 351); Order on Def.'s Mot. Concerning the Warden's Mail Practices (ECF No. 357); Order on Mot. for Relief from Stay (ECF No. 358); Order on Mot. to Compel U.S. Gov't to Produce Ct. Record of Invoke/Assert (ECF No. 362); Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 369); Order Affirming Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 397); Order on Def.'s Mot. to Hear, Correct, Update, Change PSI & Adopt[] New Finding & Change Probation Office to N.Y. & Mot. to Sever & Aff. (ECF No. 399); Order on Def.'s Obj. and Mot. for Recons. (ECF No. 401); Order on Mot. to Recons. Order Affirming Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 403); Order Affirming Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 420). Mr. Nóbrega has now been released from incarceration and is serving the three-year period of supervised release. See Req. for Summons and Modification of the Conditions or Term of Supervised Release (ECF No. 428).

         B. Domingós Nóbrega's Settlement of Sum Certain Motion

         On October 31, 2019, Mr. Nóbrega filed a four-page document with the Court entitled “Motion to Proffer Unconditional Discharge of 1:10-cr-000186-JAW-001 Through Settlement of Sum Certain Amount Held by Title 12 U.S.C. § 95(a)(2).” Mot. to Proffer. In the motion, Mr. Nóbrega says that he is “trying to ACCEPT Responsibility of 1:10-cr-000186-JAW-001 & hereby Seeks to zero out the Remainder CUM CERTAIN AMOUNT in the above-stated matter.” Id. at 1. Citing 12 U.S.C. § 95(a)(2), Mr. Nóbrega requests the Court “for the Remaining SUM CERTAIN AMOUNT &/or Subscription Contract Remaining in this Case/Matter to Zero-out the Balance as the ‘Point of Authority' of Law (12 U.S.C. § 95(a)(2)) stated above.” Id. at 2. Mr. Nóbrega writes that “[t]he Petitioner & nóbrega § 1-308 would like to Settle/zero-out the accounting ledger/business records of the Clerk of Court of this matter today & an full unconditional discharge of this case & supervised release.” Id. at 3.

         To this motion, Mr. Nóbrega attached a “NOTICE OF APP[O]INTMENT SPECIAL DEPOSIT” directed to the Assistant United States Attorney (AUSA) Joel Casey now assigned to his case. Id. Attach. 1, Notice of App[o]intment Special Deposit. In this notice, Mr. Nóbrega returns “legal title” to AUSA Casey and grants him “such issue required to settle all liability of the defendant.” Id.

         Mr. Nóbrega also attached an offer to this Judge “for settlement.” Id. Attach. 2, Offer by Title 12 U.S.C. §95(a)(2). In this notice, Mr. Nóbrega again asks to “Zero-out the SUM CERTAIN AMOUNT by CONVEYING (Dkt # 429) the AFFIDAVIT-Clause 41 BILL OF LADING over to Off-Set & Zero-out the remaining Balance Equally in this matter. For full unconditional Discharge of 186-JAW-1.” Id. at 1. Mr. Nóbrega asks:

Now does this Court Trustee Honor or Dishonor this Offer of Settlement to Zero the remaining SUM CERTAIN AMOUNT balance? Held by ...

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