AUBURN — An attorney for a Pennsylvania man found guilty in March of aggravated drug trafficking is seeking a new trial for his client, claiming the prosecution hid and misrepresented evidence.

Dominic Nerval, 31, of Philadelphia, Pa., was arrested Aug. 1, 2014, on two counts of Class A aggravated trafficking in scheduled drugs.

The trafficking charges were aggravated because Nerval was within 1,000 feet of the Boys & Girls Clubs of Southern Maine Auburn/Lewiston at 43 Second St., a designated, drug-free safe zone.

He pleaded not guilty to the crimes; he was found guilty on all counts at a March 25 jury trial.

Adam Sherman, attorney for Nerval, said Friday that he was pushing for a new trial because the prosecution did not provide his client’s cellphone as physical evidence ahead of the trial.

“The day before the trial, I asked the state to bring all physical evidence so we could look at everything,” Sherman said. “They did, and acknowledged they did, but they didn’t bring (my client’s) phone with them.”

Sherman said he could have used the cellphone as evidence during the trial, and could have proven that his client never received the phone call that the police based their probable cause on, which “would be exculpatory for my client.” 

He also said the phone call that Maine Drug Enforcement Agency agent Nicholas Gagnon used to substantiate much of the case against Nerval “wasn’t recorded,” and that the confession Nerval made to Gagnon wasn’t recorded either.

“Right now, what we have is a swearing contest,” Sherman said. “They’ve had multiple opportunities to make it more than a swearing contest by recording phone calls, or recording the confession, but they haven’t done that.”

Gagnon wrote in a 2014 affidavit that he learned about Nerval selling drugs in Maine after receiving information that a new tenant at 96 Second St. had been receiving “a lot of foot traffic,” and that the parking lot in front of the building was receiving a lot of cars with out-of-state plates, something that is “indicative of drug trafficking.”

He spoke with the tenant, who said she met a man on the internet under the moniker “DJ,” and that he would visit her apartment once a month to sell drugs.

The tenant called “DJ” on July 29, asking him when he would return to Maine. “DJ” said he would be returning on the first of August.

Gagnon said the call was on speakerphone, and that he could hear the conversation.

According to court documents, the tenant called Gagnon on Aug. 1 to tell him him that “DJ” was at her apartment. Gagnon, with the assistance of other MDEA agents, entered her apartment and found “DJ,” who they later identified as Nerval.

Nerval admitted to bringing drugs to the apartment to sell, but denied having any on him or at the apartment, Gagnon wrote in the affidavit.

A drug-sniffing dog was brought to the apartment, and after searching, Gagnon said  officers found drugs hidden in the bathroom of the apartment, including 14.3 grams of cocaine, 149 oxycodone 30-mg. tablets, and 40 OxyContin 40-mg tablets.

Sherman had Jennifer Goodwin, the tenant of the 96 Second St. apartment, testify Friday morning on evidence related to Nerval’s iPhone.

Sherman showed Goodwin call logs taken from Nerval’s iPhone on July 29 through Aug. 1 and asked her if the cellphone number she used in 2014 was found anywhere on them.

She said her number was not among those listed on the call log for Nerval’s phone.

Sherman later heard testimony from Gagnon, who said he did not submit Nerval’s cellphone into evidence because the MDEA did not file a search warrant on it.

Gagnon told Sherman and prosecutor David Fisher that the MDEA logs all evidence into an “evidence tracking system,” in order to keep track of where everything is.

“Since I’ve been at the MDEA, nobody came up with a clear-cut way to handle cellphones and lithium batteries,” Gagnon said. “Evidence is stored at a central facility, and with the amount of phones taken from investigations, there’s no clear-cut place to put them.”

He said that in his office, if an officer takes a cellphone while on a case and “needs to do a search warrant on it,” it’s logged into the evidence tracker.

If officers decide not to do a search warrant on a phone, Gagnon said, whether it’s because of a password preventing them from accessing it or because the suspect already confessed, it’s not filed into evidence.

At one point during the hearing, Fisher asked Gagnon how many cellphones he seized from Goodwin’s apartment on Aug. 1.

Gagnon said he seized Nerval’s iPhone and an Android TracFone, both of which contained passwords.

Sherman objected to Fisher’s line of questioning, stating that there was “no disclosure of (the fact that there were two cellphones) in discovery.”

“The agent has testified that this was an important factor in his investigation, and it still has not been released in discovery,” Sherman said. “Now, they want to ambush us today telling us a new tale of two cellphones. It’s a discovery violation, and they shouldn’t be allowed to present us with it.”

Fisher argued that Nerval was “in the apartment, aware that the phone was in the apartment, and knew that two phones had been seized.”

“This doesn’t constitute an ambush, and there is no surprise,” Fisher said.

Sherman shot back that there was “no showing that Mr. Nerval was aware of two cellphones,” and that “it’s an ambush because I have no details to rebut any of this.”

Justice Lance Walker overruled the objection, and allowed Gagnon to explain that in his experience, drug traffickers carry more than one cellphone.

Following the presentation of testimony and evidence, Walker tasked Sherman and Fisher with presenting written arguments to him by July 15 and Aug. 5, respectively.

mdaigle@sunmediagroup.net

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