United States v. Nilda Morton, 993 F.3d 198

Nilda Morton pleaded guilty in 2017 to possession with intent to distribute cocaine and entered a separate cooperation agreement with the U.S. Attorney for the District of the Virgin Islands; neither agreement conferred immunity or barred other jurisdictions from bringing charges.
The Government later called Morton to testify at a supervised-release revocation hearing for Vernon Fagan about alleged conduct involving collection of a drug debt and related actors; Morton invoked the Fifth Amendment and refused to answer repeatedly after consulting appointed counsel.
The District Court told Morton her invocation was improper, ordered her to answer, and warned of contempt; she continued to refuse and was later indicted and tried for criminal contempt under 18 U.S.C. § 401(3).
At trial the Government argued Morton broke promises to cooperate; the District Court excluded the plea and cooperation agreements from evidence and limited Morton’s defensive witnesses; a jury convicted Morton and she received a 37-month consecutive sentence.
On appeal the Third Circuit reviewed Morton’s Fifth Amendment claim under plain-error review, concluded the District Court failed to require the Government to show the compelled testimony could not possibly incriminate her (as required by precedent), and held that failure invalidated the contempt order.
The court vacated Morton’s contempt conviction, reversed the denial of her Rule 29 motion, and remanded for entry of a judgment of acquittal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Morton validly invoked the Fifth Amendment when called to testify at Fagan’s revocation hearing	Morton: plea/cooperation agreements did not waive privilege for this testimony; no immunity; reasonable fear testimony could lead to new prosecutions	Gov: Morton had already agreed to cooperate and effectively waived privilege as to the charged subject matter; testimony covered conduct admitted in plea	Held: Morton’s invocation was reasonable; Government did not show waiver or immunity or that answers "cannot possibly" incriminate, so privilege stood
Whether the contempt conviction should stand given the District Court’s handling and plain-error review	Morton: District Court erred by not requiring Government to make it "perfectly clear" answers could not incriminate; that plain error affected substantial rights and warrants reversal	Gov: District Court’s warnings and Morton’s prior cooperation justified contempt conviction	Held: Court committed plain error by departing from Yurasovich procedure; the contempt order was invalid; conviction vacated and judgment of acquittal required

Hoffman v. United States, 341 U.S. 479 (1951) (answers may be compelled only when it is clear they "cannot possibly" tend to incriminate)
Maness v. Meyers, 419 U.S. 449 (1975) (privilege protects testimony that could furnish links in chain of evidence leading to prosecution)
Kastigar v. United States, 406 U.S. 441 (1972) (use-and-derivative-use immunity standards and limits of compelled testimony)
United States v. Yurasovich, 580 F.2d 1212 (3d Cir. 1978) (government must make clear that answers cannot possibly incriminate a witness who makes a prima facie Fifth Amendment claim)
United States v. Olano, 507 U.S. 725 (1993) (plain-error review framework for unpreserved errors)
United States v. Jabateh, 974 F.3d 281 (3d Cir. 2020) (applies plain-error principles in criminal appeals)
In re Neff, 206 F.2d 149 (3d Cir. 1953) (proper assertion of Fifth Amendment privilege is not contempt)
United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (failure to prove an element of the offense requires acquittal)
Burks v. United States, 437 U.S. 1 (1978) (appellate finding that prosecution failed to prove an element mandates acquittal)