United States v. Morton
| Decision Date | 16 March 2020 |
| Docket Number | Criminal No. 2017-34 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. NILDA MORTON, Defendant. |
| Court | U.S. District Court — Virgin Islands |
ATTORNEYS:
Gretchen Shappert, United States Attorney
Delia L. Smith, AUSA
St. Thomas, U.S.V.I.
For the United States of America,
A. Jeffrey Weiss, Esq.
A.J. Weiss & Associates
St. Thomas, U.S.V.I.
For Nilda Morton.
Before the Court are Nilda Morton's motion for a judgment of acquittal, or in the alternative, a new trial, pursuant to Federal Rules of Criminal Procedure 29 and 33.
To fully appreciate the factual and procedural circumstances of this case, a brief review of three earlier cases that were adjudicated in this Court is in order.
Vernon Fagan ("Fagan") was convicted in Criminal Case No. 5-76 ("Redball I"1) of conspiracy to distribute a controlled substance and importation of controlled substances. He was also convicted in Criminal Case No. 6-80 ("Redball II") of conspiracy to distribute a controlled substance. In Redball I, Fagan was sentenced to a term of imprisonment of eighty months and a term of supervised release of four years on each of his two counts of conviction, to be served concurrent to each other and to the sentence imposed in Redball II. In Redball II, Fagan was sentenced to a term of imprisonment of 168 months and a term of supervised release of five years.
In November, 2016, a Grand Jury in St. Thomas, Virgin Islands, returned a ten-count superseding indictment in Criminal Case No. 16-39 () charging Nilda Morton ("Morton") with multiple violations of drug trafficking laws. Morton was convicted on seven of the ten counts on January 23, 2017.
On April 27, 2017, the Court summoned Fagan to appear before the Court because of alleged violations of the terms of his supervised release in Redball I and Redball II. Fagan wasalleged to have attempted to facilitate the collection of a drug debt in or about June and July, 2016. The drug debt, which exceeded $100,000, was owed to Nilda Morton.
On August 10, 2017, the Court held a consolidated supervised release revocation hearing in Redball I and Redball II. At that hearing, the United States called Morton as a witness. Morton attempted to invoke her Fifth Amendment right against self-incrimination and refused to answer the United States's questions.
In light of Morton's invocation of the Fifth Amendment, the Court sua sponte appointed attorney George Marshall Miller ("Attorney Miller") to represent Morton during the hearing. The Court permitted Morton to consult privately with Attorney Miller.2 After Attorney Miller consulted privately with Morton, he confirmed that he had sufficient time to advise Morton regarding her rights and obligations. Thereafter, the United States resumed questioning Morton. Again, Morton attempted to invoke her Fifth Amendment right against self-incrimination and refused to answer the United States's questions.
The Court found that Morton's invocation of the Fifth Amendment was inappropriate, ordered Morton to answer the questions of the United States, and warned Morton that a refusal to do so could result in her being charged with criminal contempt. On nine separate occasions, the Court had exchanges with Morton substantially similar to the following:
See Revocation of Supervised Release Hr'g Tr. 39:7-40:2, United States v. Fagan, Criminal No. 5-76 (D.V.I. Feb. 12, 2019), ECF No. 1149; see also id. at 17:23-18:16; 21:11-22; 22:16-23:15; 30:15-31:2; 31:23-32:9; 34:25-35:10; 35:24-36:9; 37:25-38:12. After consulting with her counsel, Morton continued her refusal to answer the questions of the Untied States.
Thereafter, the Court advised Morton that it would hold a trial to determine whether she committed criminal contempt:
THE COURT: Okay. Ms. Morton, I want to advise you and give you notice that on September 20th there will be a trial to determine whether you have committed criminal contempt. . . . I want to give you an opportunity to prepare your defense. The facts to the criminal contempt are those that I observed in court during the course of your testimony. The Court made findings on a number of occasions to very specific questions. The Court found your invocation of the Fifth Amendment to be inappropriate. The Court directed you specifically on multiple occasions to answer those several questions, advised you of the exposure, and the Court observed that you refused to obey the Court's directive. Those are the essential facts constituting the charge, criminal contempt, for which you will answer on September 20th in this court, beginning at 9:00 a.m.
Id. at 41:19-22; 42:2-15. The Court appointed Attorney Miller to represent Morton for those proceedings.
On August 11, 2017, the United States filed an Information charging Morton with one count of criminal contempt in violation of 18 U.S.C. § 401(3). Morton was arraigned on the Information that day. The Court appointed Attorney Juan Matos de Juan as Morton's counsel. At the same time, the Court relieved Attorney Miller from his representation of Morton. Thereafter, Attorney Matos de Juan moved to withdraw as Morton's counsel. The Court relieved Attorney Matos de Juan and appointed Attorney Jeffrey Weiss as Morton's counsel.
On April 12, 2018, the Grand Jury returned an Indictment charging Morton with one count of criminal contempt in violation of 18 U.S.C. § 401(3).
On April 30, 2018, this matter went before a jury for trial. At the trial, the Government introduced those portions of the transcript from the August 10, 2017, revocation hearing that contained Morton's testimony. Specifically, the portion of that transcript introduced contained each exchange between the Court and Morton in which the Court (1) advised Morton that her invocation of the Fifth Amendment was improper, (2) ordered her to answer, and (3) advised her that she could be found in criminal contempt and further incarcerated if she failed to obey the Court's order to answer. Additionally, Morton testified that the Court repeatedly advised her that she could be found guilty of criminal contempt if she disobeyed a court order without good cause. See id. at 189:15-24. Morton also testified that she refused to answer questions, notwithstanding the Court's direction that she do so, because she did not understand the Court's directive.
Morton petitioned the court to allow Attorney Miller to testify that he advised Morton not to answer the Government's questions at the August 10, 2017, revocation hearing. The Court found that such testimony would be impermissible because such a defense in these circumstances was legally invalid. Consequently, the Court did not permit Attorney Miller to testify for such a purpose. Similarly, the Court did not permit Morton to testify that Attorney Miller advised her not to answer the Government's questions at the August 10, 2017, revocation hearing. At the conclusion of the trial, the jury found Morton guilty of contempt of court.
On May 10, 2018, Morton requested an extension of time to file motions pursuant to Federal Rule of Criminal Procedure 29 ("Rule 29") and Federal Rule of Criminal Procedure 33 ("Rule 33") because she had not yet received a copy of the April 30, 2018, trial transcript. On September 4, 2018, the official transcript for the April 30, 2018, trial was filed on the docket. On September 12, 2018, Morton again requested an extension of time to file her Rule 29 and Rule 33 motions. On September 14, 2018, the Court granted Morton's request for an extension of time--extending the deadline to September 26, 2018.
On September 26, 2018, Morton filed her Rule 29 and Rule 33 motions for a judgment of acquittal, or in the alternative, a new trial.
On October 17, 2018, the United States requested an extension of time to respond to Morton's Rule 29 and Rule 33 motions. The Court granted the United States's motion--extending the deadline to November 16, 2018. On November 16, 2018, the United States again requested an extension of time to respond. The Court granted the United States's motion--extending the deadline to November 26, 2018. On November 26, 2018, the United States filed its opposition to Morton's Rule 29 and Rule 33 motions.
A judgment of acquittal is appropriate under Rule 29 if, after reviewing the record in a light most favorable to the prosecution, the Court determines that no rational jury could find proof of guilt beyond a reasonable doubt. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006); see also United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) () (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)).
A finding that there is insufficient evidence to support a conviction should be "'confined to cases where the prosecution's failure is clear.'" Smith, 294 F.3d at 477 (quoting United States v. ...
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