PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 18-3270

______________

UNITED STATES OF AMERICA

v.

NILDA MORTON,

 Appellant

______________

On Appeal from the District Court

of the Virgin Islands

(D.C. No. 3-17-cr-00034-001)

District Judge: Hon. Curtis V. Gomez

______________

Argued December 9, 2020

Before: SMITH, Chief Judge, CHAGARES, 

and MATEY, Circuit Judges.

(Filed: April 7, 2021)

A. Jeffrey Weiss (Argued)

A.J. Weiss & Associates

6934 Vessup Lane

Charlotte Amalie

St. Thomas, VI 00802

Counsel for Appellant

Gretchen C.F. Shappert, United States Attorney

Alessandra P. Serano

Delia L. Smith (Argued)

Office of United States Attorney

5500 Veterans Drive
2

United States Courthouse, Suite 260

St. Thomas, VI 00802

Counsel for Appellee

______________

OPINION OF THE COURT

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MATEY, Circuit Judge.

One of the more radical notions introduced at the 

founding of the American republic was the idea that “[n]o 

person . . . shall be compelled in any criminal case to be a 

witness against himself.” U.S. Const. amend. V. From 

Madison’s first broad formulation,

1 the Framers embraced the 

idea that citizens could demand the government prove each 

element of an alleged crime without their assistance.

Nilda Morton followed that path. After pleading guilty 

to drug trafficking, she agreed to cooperate with the United 

States Attorney for the District of the Virgin Islands (“DVI”).

But her agreement was narrow, providing no immunity nor 

barring anyone else from bringing fresh charges. So when the 

DVI summoned Morton to testify about new criminal 

activities, she invoked the privilege in the Fifth Amendment. 

Dissatisfied, the DVI demanded she assist, arguing she faced 

no new peril. And when she still declined, the DVI obtained an 

indictment for criminal contempt and secured a guilty verdict. 

All fair if, as the DVI claimed, Morton’s invocation was 

improper. Answering that question required answering another 

question: whether the testimony the DVI sought could not have 

possibly tended to incriminate Morton in new crimes. Because 

that question remains unanswered, the District Court’s order 

requiring Morton to testify was invalid. And without a valid 

court order, there is no criminal contempt. We will vacate 

Morton’s contempt conviction and reverse the District Court’s 

denial of her motion for a judgment of acquittal.

1 Madison’s proposal did not limit the privilege to 

criminal cases. Madison’s Speech, June 8, 1789, in 1 Debates 

and Proceedings in the Congress of the United States (Annals 

of Congress), 1st Cong., 1st Sess., 451–52.
3

I. BACKGROUND

A. Morton’s Crimes, Arrest, and Cooperation

In 2017, Morton pleaded guilty to possession with intent 

to distribute cocaine2 and received a 97-month prison sentence. 

In her written plea agreement, she admitted her role in an 

enterprise that included shipping cocaine from the Virgin 

Islands to the continental United States. She explained the 

scheme involved commercial flights destined for New York 

and Miami, with money from the transactions routed through 

Cleveland before delivery back to St. Thomas. Nobody 

disputes that part of the story.

The DVI claims there is more to tell, and that during the 

investigation, intercepted telephone calls between Morton and

Vernon Fagan, an alleged co-conspirator, reveal Morton sold 

cocaine to a man in New York named Alexci Emanuel. 

Morton, the DVI explains, asked Fagan to collect the proceeds 

from that sale in exchange for a finder’s fee of two kilograms 

of marijuana. But for whatever reason, this story appears 

nowhere besides the DVI’s legal briefs in this appeal, and is 

not mentioned, let alone admitted, in Morton’s plea agreement.

Morton also entered into a separate cooperation 

agreement with the DVI. There, she agreed to provide all 

information about her knowledge of and participation in any 

crimes. Neither the plea nor cooperation agreement offered 

immunity, and each bound only Morton and the DVI. The 

arrangement worked well for a time, and Morton testified as a 

witness for the DVI in several matters. 

Then, she was called as a witness at a hearing to revoke 

Fagan’s supervised release.

3 The DVI alleged Fagan tried to

collect Emanuel’s debt to Morton, a violation of his release 

2 In violation of 21 U.S.C. §§ 841(a)(1) and 

841(b)(1)(A)(ii)(II), (b)(2). 3 Juries convicted Fagan in two drug-trafficking cases. 

The first case led to a sentence of eighty months’ imprisonment 

and a four-year term of supervised release. The second 

produced a 168-month term of imprisonment and five years of 

supervised release.
4

terms. Perhaps unsurprisingly, the DVI called Morton to testify

about Fagan, Emanuel, the debt, and who owed what to whom. 

Maybe less surprisingly, Morton refused to testify.4 Rightfully, 

the District Court advised Morton to consult with her 

just-appointed attorney5 and after doing so, she again invoked 

the Fifth Amendment. The District Court then warned Morton 

that her invocation was improper and directed her to answer or 

risk charges of criminal contempt. Morton did not waver, 

declining to respond some twenty-seven times over at least 

nine separate warnings. Through all of this, the District Court 

did not state why Morton lacked a reasonable basis for her 

silence or how answering the DVI’s questions could not 

reasonably tend to incriminate.

6

4 Possibly most surprisingly, the DVI seemed surprised 

by this turn of events. The record shows Juan Matos de Juan, 

Morton’s attorney, told the DVI that he believed this testimony 

fell outside the scope of Morton’s agreements, but the record 

offers no insight into whether, for example, the DVI sought to 

square their inquiry with Morton’s agreements. Nor whether 

they raised Morton’s reluctance with the District Court before 

all of this unfolded at the hearing. 5 Morton’s representation, like much else here, was

unusual. A day before the Fagan hearing, Morton spoke with 

Matos de Juan, her attorney in her drug trafficking case, by 

telephone. But Matos de Juan was in Puerto Rico and could not 

appear at the hearing. When Morton took the stand and asserted 

the privilege, the District Court asked about her counsel, and 

then adjourned for a recess. During that recess, a marshal 

approached George Marshall Miller, an attorney in the 

courthouse on unrelated business, and advised Miller to come 

to Fagan’s hearing. Dutifully, Miller reported, and the District 

Court appointed him to represent Morton. The Court permitted 

Miller and Morton to confer with Matos de Juan by phone, and 

twenty minutes later, the hearing resumed with Miller 

representing Morton. 

6 Morton’s testimony proved unnecessary as the District 

Court found that Fagan violated the conditions of his 

supervised release and imposed two concurrent thirty-threemonth sentences, one in each underlying criminal case.
5

B. Morton’s Criminal Contempt Trial

Instead, the District Court announced Morton would

face trial for criminal contempt. Obliging that suggestion, the 

DVI then indicted Morton for violating 18 U.S.C. § 401(3).

7

At trial, the DVI framed its case against Morton as a story of 

broken promises. She appeared at the revocation hearing, the 

DVI stated, “pursuant to agreements that she made with the 

United States.” Morton, the DVI explained, merely had to 

“perform in accordance with the agreements,” (App. at 86–87),

because she already “agreed to provide these testimonies.” 

Trial Transcript at 80, United States v. Morton, No. 17-cr00034 (D.V.I. Sept. 4, 2018), ECF No. 52 (“Trial Transcript”).

Despite those comments, the District Court declined to allow 

the DVI to introduce the plea or cooperation agreements into 

evidence, explaining they were “not in issue here.” Trial 

Transcript at 91. Nor did the Court allow Morton to call 

attorney Miller as a witness to testify about the advice he 

provided at Fagan’s hearing and her fear that “a whole bunch 

of different charges . . . could be brought if she gets up on the 

stand.” (App. at 122.) By contrast, the Court did allow the DVI 

to introduce several excerpts from the revocation hearing 

transcript when the Court warned Morton her invocation of the 

Fifth Amendment was inappropriate. 

The jury found Morton guilty, leading to a sentence of 

37 months’ imprisonment, running consecutive with her earlier 

97-month sentence for her drug offenses. Morton filed motions 

under Rules 29 and 33 of the Federal Rules of Criminal 

Procedure, seeking a judgment of acquittal or a new trial. The 

District Court denied both motions, and she timely appeals.8

7 Following Morton’s repeated invocations of the Fifth 

Amendment, the District Court stated: “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.” (App. at 81.) The next day, the DVI filed 

an information charging her with one count of contempt. A 

grand jury returned an indictment on April 12, 2018, and the 

trial occurred later that month. 8 18 U.S.C. § 3231 and 48 U.S.C. § 1612 provided the 

District Court jurisdiction, and we have jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742.
6

II. ANALYSIS

Morton raises several issues on appeal, but we focus on 

her argument under the Fifth Amendment. It is unclear whether 

Morton adequately preserved this issue before the District 

Court. We need not resolve this question, and we apply plain 

error review because Morton’s conviction cannot stand even 

under that exacting standard. See Fed. R. Crim. P. 52(b). Rule 

52(b) requires a plain error of law that affects “substantial 

rights.” Id.; United States v. Jabateh, 974 F.3d 281, 298 (3d 

Cir. 2020) (citing United States v. Olano, 507 U.S. 725, 732–

34 (1993)). If that exists, we can take corrective action “if the 

error ‘seriously affect[s] the fairness, integrity, or public 

reputation of judicial proceedings.’” Olano, 507 U.S. at 736

(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).9

A. The Propriety of Morton’s Invocation of the Fifth 

Amendment

With the ratification of the Fifth Amendment, the

concept that individuals should not be compelled to act as 

witnesses in their own criminal cases “became clothed in this 

country with the impregnability of a constitutional enactment.” 

Brown v. Walker, 161 U.S. 591, 597 (1896). The Fifth 

Amendment’s protections include more than just “evidence 

which may lead to criminal conviction,” extending to 

“information which would furnish a link in the chain of 

evidence that could lead to prosecution, as well as evidence 

which an individual reasonably believes could be used against 

him in a criminal prosecution.” Maness v. Meyers, 419 U.S. 

449, 461 (1975) (citing Hoffman v. United States, 341 U.S. 

479, 486 (1951)). As a result, the key inquiry is whether the 

9 Rule 52(b) adopts the Supreme Court’s earliest 

formulations on the power to notice unpreserved errors, 

limiting review to matters “absolutely vital to defendants.” 

Wiborg v. United States, 163 U.S. 632, 658 (1896); accord 

Clyatt v. United States, 197 U.S. 207, 221–22 (1905).

Consistent with that standard, the Court had “less reluctance to 

act under it when rights are asserted which are of such high 

character as to find expression and sanction in the Constitution 

or Bill of Rights.” Weems v. United States, 217 U.S. 349, 362 

(1910).
7

witness “reasonably believes” her testimony “could be used in 

a criminal prosecution or could lead to other evidence that 

might be so used.” Kastigar v. United States, 406 U.S. 441, 

444–45 (1972).

Mindful of that focus, where a witness, like Morton 

here, makes a “prima facie” invocation of the privilege, United 

States v. Yurasovich, 580 F.2d 1212, 1221 (3d Cir. 1978), it

must be “perfectly clear, from careful consideration of all the 

circumstances in the case, that the witness is mistaken, and that 

the answer[s] cannot possibly have such tendency to 

incriminate.” Hoffman, 341 U.S. at 488 (emphasis in original) 

(quotations omitted). So, for example, where a witness enjoys 

immunity, Kastigar, 406 U.S. at 449, or where “a guilty plea 

terminate[d] proceedings which embody all of the potential 

criminal charges to which a witness is exposed,” Yurasovich, 

580 F.2d at 1218 (emphasis in original), there is no chance of 

self-incrimination through compelled testimony. On the other 

hand, where a guilty plea leaves open possible crimes for 

further prosecution, and the testimony sought may reveal 

details relevant to those new crimes, the privilege against selfincrimination remains. Yurasovich, 580 F.2d at 1218.

So when Morton invoked her privilege, and the DVI 

objected, the District Court needed to determine whether she

could have reasonably believed her testimony could 

incriminate, including by leading to evidence against her, 

before ordering her to testify. Finding no record of that 

analysis, we cannot conclude Morton’s claim was 

unreasonable.

1. Morton’s Reasonable Concerns

We begin by considering why Morton might reasonably 

believe her testimony could, directly or indirectly, selfincriminate: 1) it is not clear that she waived her privilege for

the solicited testimony as part of her plea agreement; 2) her 

plea and cooperation agreements did not insulate her from 

charges in other jurisdictions; and 3) despite the DVI’s claims, 

she did not have immunity.

The DVI first argues that Morton was called to testify 

to the same conduct in her plea, waiving her Fifth Amendment 
8

rights. But the mere existence of a plea agreement is not 

enough. Rather, the question is what that plea agreement says. 

And Morton’s plea agreement says nothing about Fagan or the 

collection of a drug debt. The DVI responds that Morton 

“admitted that Fagan had assisted her by facilitating the 

collection of a drug debt.” (Response Br. at 3.) That would 

indeed be relevant to waiver. But the DVI cannot point to 

anywhere in the record (or, not that it would be relevant, 

anywhere outside the record) where this admission occurred.

10

Nor can we find any such admission. If Morton did not admit 

these facts, she did not waive her right to assert the privilege.

See Yurasovich, 580 F.2d at 1218. 

And if Morton did not waive the right, it is easy to see

why she worried about self-incrimination. No one, including 

Morton herself, disputes her involvement in a multi-state drug 

operation. On top of other drug offenses, she worried her 

testimony would lead to prosecution “for tax evasion, R.I.C.O. 

or a host of other federal crimes.” (Opening Br. at 8.)

Moreover, Morton’s agreements with the Government promise 

only that the DVI would file no other charges against her for 

10 The DVI’s tell appeared early in the briefing. The 

assertion that Morton “admitted” Fagan’s assistance in 

collecting a debt is the only sentence without a record citation 

in their summary of the case history. The cards tip again when 

the DVI described Morton as an “immunized” witness, again, 

without a record cite. Rooting around for an answer to these 

mysteries is not our role, of course, as “[j]udges are not like 

pigs, hunting for truffles buried in the record.” Doeblers’

Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8

(3d Cir. 2006), as amended (May 5, 2006) (internal quotation 

marks and citation omitted). So we asked the DVI to explain 

these unsupported claims at oral argument. They could not, but 

did confirm that Morton was not, as claimed, “immunized.” 

Transcript of Oral Argument at 15:9–17:13, United States v. 

Morton, No. 18-3270 (3d Cir. Dec. 9, 2020), ECF No. 113.

That all leaves us rather skeptical that Morton ever 

“admitted” the solicited testimony. After foraging around in 

the record, it seems more likely the DVI intended to show 

Morton “admitted” to this conduct during a meeting with a 

Virgin Islands Police Officer—testimony the District Court 

declined to admit. (App. at 89–90.)
9

any crimes arising out of the same transactions, but they bound 

no one else.

11 See United States v. Gebbie, 294 F.3d 540, 550 

& n.4 (3d Cir. 2002). In short, Morton could have reasonably 

believed her testimony would produce new criminal charges, 

and that is where the Fifth Amendment’s privilege arises. Her 

invocation of that protection was proper.12 We turn next to 

whether Morton’s subsequent conviction for criminal 

contempt resulted from plain error.

2. The Yurasovich Framework

We have explained the steps for considering assertions 

of the Fifth Amendment. Once asserted, whether framed in 

ordinary or technical terms, the burden falls to the government 

to “make it ‘perfectly clear’ that the answers sought ‘cannot 

possibly’ tend to incriminate.” Yurasovich, 580 F.2d at 1221 

(quoting Malloy v. Hogan, 378 U.S. 1, 12 (1964)). That 

requires resolving any “ambiguity” and showing that the 

witness will not run the risk of self-incrimination. Id. It is a 

predictable standard that appropriately tasks the government 

11 The DVI dismissed this concern, arguing it would not 

be practical for other offices to file charges against Morton. As 

a practical matter, that is no comfort to Morton and would offer 

no defense should criminal charges arise. And what the DVI 

finds “practical” does not determine when the Fifth 

Amendment’s protections apply. The people made that 

decision when they ratified the Fifth Amendment. And since 

that time, “[f]ormal requirements are often scorned when they 

stand in the way of expediency.” Neder v. United States, 527 

U.S. 1, 40 (1999) (Scalia, J., concurring in part and dissenting

in part). Article III of the Constitution demands courts ensure 

those rights drive the system of criminal justice rather than 

taking a backseat to practicality. 12 The DVI also argues that because Morton once 

testified as a witness for the Government, she could not assert 

the Fifth Amendment privilege here. That argument is 

incorrect, and we have explained “a person who has waived his 

privilege of silence in one trial or proceeding is not estopped 

to assert it as to the same matter in a subsequent trial or 

proceeding.” In re Neff, 206 F.2d 149, 152 (3d Cir. 1953). Of 

course, the DVI does not even claim Morton testified to this 

same conduct in any prior hearing.
10

with producing evidence and argument that honors the 

guarantees of the Constitution. 

Here, the District Court did not follow that process. The 

Court did not ask the Government, at either the Fagan hearing

or at the contempt trial, whether Morton’s testimony might be 

self-incriminating. The Court should have asked the 

Government to make it “perfectly clear” any fear was 

unfounded before ordering Morton to testify. Without that 

colloquy, we, like the Court in Yurasovich, cannot be sure that 

Morton “transgressed the contours of [her] constitutional 

privilege.” Id. And if her actions were within the contours of 

her constitutional rights, then she did not commit criminal 

contempt. See In re Neff, 206 F.2d 149, 151 (3d Cir. 1953) (“A 

witness’ assertion of his constitutional privilege against selfincrimination, if properly claimed, cannot be contempt of 

court, however.”).

The District Court’s failure to require the Government 

to meet its burden was an error, the first required element under 

Rule 52(b). And as we next discuss, the error was plain and 

affected Morton’s substantial rights.

B. The District Court’s Error Was Plain

Courts can only correct unpreserved errors when 

“plain,” meaning “‘clear’ or, equivalently, ‘obvious’” under 

current law. Olano, 507 U.S. at 734. When precedent speaks 

directly to the issue, it is fair to say current law is clear. And 

when the error veers from that precedent, there was a clear 

error.

Here, the District Court, before ordering Morton to 

testify, failed to determine that the solicited testimony could 

not possibly tend to incriminate despite a “prima facie” claim 

of privilege. Yurasovich, 580 F.2d at 1221. That is not a novel 

error, and closely parallels the facts in Yurasovich. And there, 

we explained that the Government must carry its burden before 

a court can determine whether a witness overstepped their Fifth 

Amendment rights. Id. That precedent makes the error here 

plain. See Jabateh, 974 F.3d at 299.
11

C. The Error Affected Substantial Rights

And that plain error affected Morton’s “substantial 

rights.” Morton need not prove her case would have ended 

differently but for the mistake, but she does need to show a 

“reasonable probability” that the outcome would have been 

different. Molina-Martinez v. United States, 136 S. Ct. 1338, 

1343 (2016) (quoting United States v. Dominguez Benitez, 542 

U.S. 74, 76 (2004)). Put another way, she must show that “the 

probability of a different result is ‘sufficient to undermine 

confidence in the outcome’ of the proceeding.” Dominguez 

Benitez, 542 U.S. at 83 (quoting Strickland v. Washington, 466 

U.S. 668, 694 (1984)).

That she has. Morton did not have immunity, making it 

reasonable to fear future prosecution stemming from her 

testimony. The District Court never required the DVI to prove 

her fears were unfounded. If, for instance, Morton had been 

able to present more evidence about her concerns—or, more 

significantly, if the DVI had been required to show that her 

testimony could not possibly tend to incriminate and could not 

meet that burden—it is reasonable to think the jury may have 

returned a different verdict. We cannot say, and therefore 

cannot say the error did not affect “the outcome of the district 

court proceedings.” Olano, 507 U.S. at 734.

D. The Error Warrants Correction

Because there was a plain error affecting substantial 

rights, we may correct the error if it “seriously affect[s] the 

fairness, integrity or public reputation of judicial proceedings.” 

Id. at 736. Correction under Rule 52(b) is a matter of discretion 

rather than a mandate, id., most appropriate when failing to act 

would lead to a “miscarriage of justice.” Id. And the ultimate 

miscarriage of justice is a wrongful conviction.13 See id. (“The 

court of appeals should no doubt correct a plain forfeited error 

13 As we noted in United States v. Williams, actual 

innocence only means that a remedy is necessary, and not that 

we automatically reverse, because “the discretion 

contemplated by Rule 52(b) is to be preserved” in all federal 

criminal direct appeals. 974 F.3d 320, 342 (3d Cir. 2020). We

exercise that discretion here.
12

that causes the conviction or sentencing of an actually innocent 

defendant.”)

If Morton remained silent to avoid giving testimony that 

might lead to further criminal charges, that decision enjoys 

protection under the Fifth Amendment. If she was acting 

within the bounds of the Fifth Amendment, charges for 

criminal contempt were improper. It is hard to envision an error 

that “seriously affects the fairness, integrity, and public 

reputation” of the judiciary more than a wrongful conviction.

No person should be subject to criminal prosecution for 

knowing and invoking their fundamental rights in an 

appropriate scenario, and Morton is no exception to that rule.

E. The Error and The Conviction

The District Court plainly erred in its handling of 

Morton’s invocation of the Fifth Amendment, and that error 

affected her fundamental rights. Failing to correct that decision 

on appeal will harm the fairness, integrity, and public 

reputation of judicial proceedings. But how does that error—

neglecting to require the government to show it was “perfectly 

clear” that Morton’s testimony could not possibly tend to 

incriminate—impact her conviction for criminal contempt?

The answer rests in statute. 

Section 401(3) of Title 18 of the United States Code 

permits federal courts to punish acts in “contempt of its 

authority” including “[d]isobedience or resistance to its lawful 

writ, process, order, rule, decree or command.” A conviction 

for criminal contempt requires proof beyond a reasonable

doubt showing the accused willfully and knowingly disobeyed 

“a valid court order.” In re Kendall, 712 F.3d 814, 830 (3d Cir. 

2013). See also United States v. Beaulieu, 973 F.3d 354, 358

(5th Cir. 2020) (describing the elements of criminal contempt 

as a specific order to testify that was willfully violated); United 

States v. Trudeau, 812 F.3d 578, 587–88 (7th Cir. 2016) (“The 

essential elements of a finding of criminal contempt under 18 

U.S.C. § 401(3) are a lawful and reasonably specific order of 

the court and a willful violation of that order.” (emphasis 

added)). Here, the District Court departed from the process 

provided in Yurasovich. And, as always, the prosecution 

shouldered the burden of proving every element of § 401(3)
13

beyond a reasonable doubt. United States v. Nasir, 982 F.3d 

144, 162 (3d Cir. 2020) (en banc) (discussing In re Winship, 

397 U.S. 358, 364 (1970)); see also Taylor v. United States,

136 S. Ct. 2074, 2085 (2016) (Thomas, J., dissenting).

Taken together, sharply departing from the procedures 

in Yurasovich rendered the District Court’s contempt order 

invalid, and it means the DVI necessarily did not establish the 

first element required under § 401(3) at all, let alone beyond a 

reasonable doubt.

14 That failure “results in acquittal.” Nasir, 

982 F.3d at 176; accord Burks v. United States, 437 U.S. 1, 10–

11 (1978) (holding that an appellate court’s determination that 

the prosecution failed to prove an element of the charged crime 

“unmistakably mean[s] that the District Court had erred in 

failing to grant a judgment of acquittal”); United States v. 

Harra, 985 F.3d 196, 211 (3d Cir. 2021) (“[W]e have 

repeatedly found that the prosecution’s failure to prove an 

element of an offense is sufficiently grave to amount to a 

‘miscarriage of justice’ and a basis to reverse a conviction even 

on plain error review.”). So we will reverse.

15

III. CONCLUSION

For these reasons, we will vacate Morton’s conviction,

reverse the District Court’s denial of her Rule 29 motion, and 

remand the case for entry of a judgment of acquittal.

14 Of course, charges of contempt for invoking the rights 

codified in the Fifth Amendment are different than ordinary

instances of disregarding a judicial order. See Maness v. 

Meyers, 419 U.S. 449, 459–60 (1975); see also United States 

v. Hendrickson, 822 F.3d 812, 820 (6th Cir. 2016) (discussing 

the collateral bar rule applicable to contempt charges not 

related to assertions of Fifth Amendment rights). 15 Because we reverse Morton’s conviction, we need not 

evaluate her other arguments.