Tuesday, April 27, 2021

Insufficient evidence for criminal contempt, underlying District Court order invalid because it compelled testimony in violation of Fifth Amendment

 

In United States v. Nilda Morton, 2021 WL 1287562, Appeal No. 18-3270 (3d Cir. Apr. 7, 2021), https://www2.ca3.uscourts.gov/opinarch/183270p.pdfthe Third Circuit reversed a contempt conviction under plain error review. Morton had pled guilty to drug offenses, entered into a narrow cooperation agreement, and testified for the government in several cases. She then invoked her right to remain silent when called to testify at a co-conspirator’s supervised release revocation hearing. The District Court ordered her to testify, and warned her against invoking her Fifth Amendment right, but she declined to answer 27 times. Morton was then indicted for and convicted of criminal contempt. At that trial, the District Court did not let in evidence relevant for its determination of whether Morton reasonably believed her testimony could incriminate herself (1) the plea or cooperation agreements, and (2) testimony by Morton’s attorney about his advice and Morton’s fear of new and different charges. The Third Circuit held the evidence was insufficient to support the contempt conviction because: (1) the government was required to prove the defendant disobeyed a "valid" court order; (2) where a defendant invokes the right against compelled self-incrimination, and the district court overrules the invocation and orders  a defendant to testify, the court's order is “valid” only if the record of the proceeding makes it "perfectly clear" that witness’s answers "cannot possibly" have a tendency to incriminate her; (3) here, the district court did not create the record necessary to meet this standard; (4) because the evidence was insufficient to prove that Morton violated a "valid" court order, see 18 U.S.C. § 401(3), the government failed to establish an essential element of the offense. The Court decided this error met all the prongs of plain error review, vacated Morton’s contempt conviction, and reversed the District Court’s denial of Morton’s motion for judgment of acquittal.

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