United States District Court, D. Maine
ORDER ON DOMINGÓS NÓBREGA'S MOTION
TO PROFFER UNCONDITIONAL DISCHARGE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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).
The Charge, Trial, and Sentence
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).
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
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
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).
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.
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.
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
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.
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.
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.
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.
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).
THE PARTIES' POSITIONS
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).
Domingós Nóbrega's Settlement of Sum
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.
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.
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 ...