United States v. Thomas Noble

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-1599

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UNITED STATES OF AMERICA

v.

THOMAS E. NOBLE,

A/K/A WALTER M. GUYER

A/K/A THOMAS D. GUYER,

Appellant

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On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1:18-cr-00015-001)

District Judge: Honorable Leonard P. Stark

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Submitted Under Third Circuit L.A.R. 34.1

March 30, 2022

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Before: CHAGARES, Chief Judge, SHWARTZ, Circuit

Judge, and ROSENTHAL, District Judge*

(Filed: August 2, 2022)

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Whitney C. Cloud

Graham L. Robinson

Jesse S. Wenger

Office of United States Attorney

1313 North Market Street

Hercules Building, Suite 400

Wilmington, DE 19801

Counsel for Appellee

Carina Laguzzi

Laguzzi Law

P.O. Box 30095

Philadelphia, PA 19103

Counsel for Appellant

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OPINION OF THE COURT

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*

Honorable Lee H. Rosenthal, Chief United States

District Judge for the Southern District of Texas, sitting by

designation.

2

CHAGARES, Chief Judge.

Thomas Noble appeals his judgment of conviction for

possession of child pornography on a number of bases.

Notably, Noble claims that the District Court erred in

determining that he waived and forfeited his right to proceed

pro se and in appointing him counsel. For the following

reasons, we hold that the District Court properly decided each

issue challenged, and we will affirm the judgment.

I.

A grand jury indicted Noble in February 2018 on one

count of attempted receipt of child pornography by someone

previously convicted of a child pornography offense, in

violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1) and

2256(2)(A), and one count of possession of child pornography

by someone previously convicted of a child pornography

offense, in violation of 18 U.S.C. §§ 2252(a)(4)(b), 2252(b)(2)

and 2256(2)(A). Shortly after being indicted, Noble indicated

to a Magistrate Judge that he wished to represent himself pro

se; the judge conducted a colloquy to ensure that Noble was

knowingly and voluntarily waiving his right to counsel. The

judge granted Noble’s request to proceed pro se, and appointed

an attorney from the Federal Public Defender’s Office as

standby counsel.

A few months thereafter, in July 2018, Noble

announced at a status hearing that he was invoking his “Fifth

Amendment right to be silent.” Supplemental Appendix

(“Supp. App.”) 70. Noble had filed numerous pro se motions

accusing the District Judge of criminal conduct, alleging that

all attorneys and judges within this circuit were controlled by

3

the “illuminati,” and demanding that his case be transferred to

a court outside the Third Circuit. He stated that he intended to

remain silent until his case had been transferred and he had

been appointed new counsel.1 From that date through his trial

and sentencing, Noble did not speak in court except on two

occasions, largely refused to acknowledge or look at the

District Judge while attending hearings, and returned all legal

mail to the court.

In April 2019, almost ten months after the

announcement of his silence, the District Court scheduled a

hearing to determine whether Noble had waived or forfeited

his right to represent himself. The court asked Noble a series

of questions regarding his ability to represent himself. Noble

refused to answer any questions or acknowledge the court. The

court ordered Noble to answer each question, and found that

Noble had violated the court’s orders twelve times by not

answering them. The court determined that Noble’s behavior

was obstructionist and that Noble had therefore waived and

forfeited his right to represent himself. In May 2019, the court

appointed Noble’s standby counsel as his attorney.2

Noble was tried by a jury, convicted on both counts, and

1

The District Court ordered a competency examination as a

result of this hearing and Noble’s previous behavior. Noble

was found to be competent, and his standby counsel did not

oppose this finding after an independent expert reviewed the

report.

2

At the April hearing, Noble read a statement in court alleging

that his standby counsel had been incompetent by not assisting

him in pursuing his various motions. Noble then “re-

4

sentenced to 180 months of imprisonment. His counsel from

the Federal Public Defender’s office filed a notice of appeal

and then filed a motion to withdraw. That motion was granted

and substitute counsel was appointed.

II.

We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). We exercise plenary review over the District

Court’s legal determination regarding a defendant’s waiver of

his Sixth Amendment rights. See United States v. Taylor, 21

F.4th 94, 99 (3d Cir. 2021). We review the factual findings of

the District Court for clear error. See United States v. Peppers,

302 F.3d 120, 127 (3d Cir. 2002). A court’s improper denial

of the right to proceed pro se is structural error, and we may

not consider it harmless. See Taylor, 21 F.4th at 99.

III.

A.

Noble contends that the District Court erred in holding

that Noble had “waived and forfeited” his right to proceed pro

se and in appointing counsel against his wishes. Supp. App.

158. The Sixth Amendment provides criminal defendants the

right to proceed pro se. See Faretta v. California, 422 U.S. 806,

819 (1975). When a defendant expresses the wish to represent

himself, the court must conduct an inquiry to ensure that the

invok[ed]” his right to remain silent. Supp. App. 144. The

court construed Noble’s statement as a motion to substitute

counsel; his standby counsel likewise filed a motion to

withdraw. The court denied these motions.

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defendant understands the consequences and risks of waiving

the right to counsel. See Peppers, 302 F.3d at 133. That

inquiry occurred at the outset of Noble’s case — Noble

expressed his desire to proceed pro se, the Magistrate Judge

conducted a thorough colloquy with him, and Noble acted as

his own attorney (with standby counsel from the Federal Public

Defender’s office) for over a year.

The right to represent oneself is not absolute, however;

judges “may terminate self-representation by a defendant who

deliberately engages in serious and obstructionist misconduct.”

Faretta, 422 U.S. at 834 n.46 (citing Illinois v. Allen, 397 U.S.

337 (1970)). Noble ceased communicating with the court in

July 2018. For ten months he returned all legal mail unopened,

and he refused to respond to questions from the judge during

pre-trial hearings. This pattern continued even when the judge

repeatedly held that Noble was violating orders by refusing to

answer questions.

The District Court concluded that it would be

impossible to conduct a fair trial with a pro se defendant who

refused to cooperate or engage at all with the court. The court

found that based on Noble’s obstruction over several months,

it could “confidently and reasonably predict” that if the case

went to trial, Noble “would not respond to requests, guidance,

or indeed an order to participate in a meaningful way which is

. . . necessary . . . for [the court] to conduct a fair trial.” Supp.

App. 159. The court also concluded that Noble would be

unable to preserve his rights and arguments for appeal if he was

unwilling to articulate any of those arguments before the

District Court. Finally, the court noted that it had explained to

Noble that his right to remain silent would not be undermined

by “minimal cooperation” with the court so that the case could

6

proceed, but that Noble nonetheless refused to provide any

such cooperation. Supp. App. 160. Based on these

circumstances, the court held that Noble waived and forfeited

his right to represent himself and must be appointed counsel.

We agree it would have been impossible to conduct a

fair trial if Noble continued pro se. Noble was found to be

competent in an examination supported by his then-standby

counsel, and he chose to speak on two occasions throughout

the proceedings. Under the circumstances, it is clear that

Noble’s silence was a conscious obstructionist tactic. The

District Court was exceedingly patient in its attempted

accommodation and careful in its thorough consideration of the

issues, and it did not err by appointing counsel after ten months

of obstruction. Defendants forfeit their right to self-

representation when they impede proceedings in such a

manner. See, e.g., United States v. Brock, 159 F.3d 1077,

1080–81 (7th Cir. 1998) (holding that a defendant had forfeited

his right to self-representation where he “refus[ed] to answer

the court’s questions . . . ma[king] it extremely difficult for the

court to move forward with its proceedings” and noting that the

“obstructionist conduct persisted even after several contempt

citations”); United States v. Mosley, 607 F.3d 555, 559 (8th

Cir. 2010) (holding that a defendant had forfeited the right to

self-representation where he “refused to respond to [the

judge’s] questions and participate in the proceedings”); cf.

Faretta, 422 U.S. at 836 (noting that the defendant should have

been permitted to proceed pro se where the judge warned that

he “would be required to follow all the ‘ground rules’ of trial

procedure”); United States v. Engel, 968 F.3d 1046, 1051 (9th

Cir. 2020) (explaining that if a defendant had violated court

orders, that may qualify as sufficiently disruptive but “a single

instance of disobedience that is unaccompanied by open

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defiance or disruption does not justify the termination of [a

defendant’s] constitutional right to self-representation without

prior warning.”).

This Court recently reiterated the importance of a

defendant’s right to self-representation and held that judges

should “refrain from denying” such a request “where

disruption is predicted but has not occurred.” Taylor, 21 F.4th

at 104. That is not what occurred here. The District Court did

not act prematurely or prioritize expediency over a defendant’s

constitutional rights. Noble was permitted to represent himself

for many months and the right was only deemed waived and

forfeited after repeated obstructionist conduct and warnings

from the District Court. We will accordingly affirm the

judgment of the District Court on this matter.

B.

Noble’s other arguments are likewise unavailing. First,

the District Court did not err when it denied counsel’s motion

to withdraw from representation and Noble’s motion to

substitute counsel (which the court construed from Noble’s

complaints about his attorney). We review both denials for

abuse of discretion. See United States v. Bellille, 962 F.3d 731,

738 (3d Cir. 2020); United States v. Gillette, 738 F.3d 63, 78

(3d Cir. 2013). The court concluded that Noble had not

established good cause for the substitution, since the

breakdown in communication with his attorney was “entirely

Mr. Noble’s fault” as he “unilaterally decided not to engage

with his standby counsel from the beginning due to personal

distrust of all lawyers and judges practicing in the Third

Circuit.” Supp. App. 177. Such obstinance without reason

does not form the basis of good cause. See, e.g., Romero v.

8

Furlong, 215 F.3d 1107, 1114 (10th Cir. 2000) (“A breakdown

in communication . . . cannot be the result of a defendant’s

unjustifiable reaction to the circumstances of his situation.”);

United States v. John Doe No. 1, 272 F.3d 116, 124–25 (2d

Cir. 2001) (determining it was “eminently reasonable” for the

district court to conclude that the defendant was the source of

conflict and “that substitution of new counsel was unlikely to

solve the problem”); United States v. Muslim, 944 F.3d 154,

166–67 (4th Cir. 2019) (concluding that the district court acted

within its discretion in denying a motion to withdraw where the

“[d]efendant’s conduct was a major causative factor” in the

breakdown of communication between the defendant and his

attorney). The court had already determined that Noble could

not proceed pro se, and based upon Noble’s own statements, it

reasonably determined that Noble would not accept any

counsel appointed by it or from anywhere within the Third

Circuit and so substitution of counsel would not remedy

Noble’s complaints. Given the court’s thorough inquiry into

the matter and the circumstances of this case, the court did not

abuse its discretion by denying these motions.

Second, the District Court did not abuse its discretion

by admitting into evidence Noble’s 2016 Delaware state court

child pornography conviction.3 In criminal cases where the

defendant is accused of, among other crimes, possession of

child pornography, “the court may admit evidence that the

defendant committed any other” similar crime. Fed. R. Evid.

414(a), (d); see United States v. Heatherly, 985 F.3d 254, 269

3

We review a district court’s decision regarding the

admissibility of evidence for abuse of discretion. See United

States v. Tyson, 947 F.3d 139, 142 (3d Cir. 2020).

9

(3d Cir. 2021); United States v. Cunningham, 694 F.3d 372,

385 n.22 (3d Cir. 2012) (“Rule 414 constitutes an exception to

the rule that evidence of prior bad acts is not admissible to

show a defendant’s propensity to commit the offense

charged.”) (quoting United States v. Loughry, 660 F.3d 965

(7th Cir. 2011)). Noble concedes that his prior conviction for

possession of child pornography was admissible pursuant to

this rule. He argues, however, that admission of his prior

conviction was “more prejudicial that probative,” Noble Br.

16, and should have been excluded under Rule 403, which

permits exclusion of evidence if its “probative value is

substantially outweighed by a danger of,” inter alia, “unfair

prejudice.” Fed. R. Evid. 403.

We considered the interplay between Rule 403 and

Rules 413–415 in Johnson v. Elk Lake School District, 283

F.3d 138 (3d Cir. 2002). We observed in that decision that

where a prior act or conviction is “demonstrated with

specificity and is sufficiently similar,” id. at 156 (citation

omitted), to the charged conduct, “the propensity inference that

can be drawn from the past act evidence is greatest,” id. In

addition, we noted that in such cases, “Congress surely

intended for the probative value of the evidence to outweigh its

prejudicial effect, and, conversely, did not want Rule 403

factors such as undue delay, waste of time, confusion of the

issues, etc., to justify exclusion.” Id. As a result, we held “the

probative value of the similar act [should] be presumed to

outweigh Rule 403’s concerns.” Id. at 144.4

4

When a prior act or conviction is not substantially similar to

the charged conduct or is insufficiently specific, we have

instructed courts to consider a number of factors to conduct a

Rule 403 analysis. See Johnson, 283 F.3d at 156. These

10

The District Court in the present case found that there

was a “strong similarity” between Noble’s prior conviction and

the charged conduct. Supp. App. 217–18. Indeed, Noble

employed the same file sharing protocol to share and receive

the child pornography in both cases, and the court recognized

the “close temporal proximity of the acts,” which was

“approximately 18 months.” Supp. App. 218. As a result, the

court determined that the presumption in favor of admitting the

prior conviction applied. We agree and hold that the District

Court did not abuse its discretion in admitting evidence of

Noble’s prior child pornography conviction.5

factors include “the closeness in time of the prior acts to the

charged acts, the frequency of the prior acts, the presence or

lack of intervening events, and the need for evidence beyond

the testimony of the defendant and alleged victim.” Id.

(quoting United States v. Guardia, 135 F.3d 1326, 1331 (10th

Cir. 1998) (citations omitted)). The District Court in the

present case also considered these factors, notwithstanding the

presumption discussed above, in properly exercising its

discretion to admit evidence of Noble’s prior conviction.

5

Even if the presumption of admissibility did not apply, the

District Court still did not abuse its discretion in admitting the

prior conviction. The court engaged in a typical Rule 403

balancing and held that the prior conviction had “high

probative value” that was not substantially outweighed by the

danger of unfair prejudice. Supp. App. 218. In addition, to

“help alleviate any risk . . . of unfair prejudice,” id., the District

Court gave the jury a limiting instruction about the prior

conviction and only permitted the prior conviction to come into

evidence through a certified copy of the transcript, rather than

through testimony.

11

Third, the District Court did not err by admitting

Noble’s prior statement against self-interest.6 At a preliminary

hearing, Noble stated that he believed that citizens have a “First

Amendment right to look at or read whatever they want in the

privacy of their own homes” and argued that the relevant

criminal statutes were unconstitutional. Supp. App. 30–35.

The court subsequently admitted this statement at trial. The

statement was made after the Magistrate Judge had twice

explained Noble’s right to counsel to him, after Noble had

accepted the appointment of standby counsel, and after counsel

himself advised the court that Noble wished to speak. Noble’s

attempt to link this testimony to an earlier interrogation where

he was not properly advised of his Miranda rights is far too

attenuated. Noble volunteered the statement at issue after

conferring with standby counsel; Miranda is simply not

implicated. See, e.g., United States v. Melendez, 228 F.3d 19,

24 (1st Cir. 2000) (“[T]he dangers that animated Miranda do

not exist in situations involving in-court testimony.”).

6

Noble did not challenge this before the District Court, so we

review for plain error. See United States v. Williams, 974 F.3d

320, 340 (3d Cir. 2020). To establish plain error, Noble must

show (1) an error, (2) that is plain, and (3) affects substantial

rights. Id. If all three elements are established, it is within this

Court’s “sound discretion” to correct the error, but only if “the

error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (quotation marks

omitted) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)).

12

Fourth, the District Court did not err in finding Noble

competent to stand trial.7 After Noble stopped communicating

with the court and his attorney, the District Court ordered a

competency evaluation. The evaluator concluded that Noble

was competent to stand trial. Noble’s standby counsel

contracted with an independent evaluator to review the report,

and the evaluator agreed that Noble was competent. The

District Court accepted the report and made “an independent

finding” that Noble was competent to stand trial. Supp. App.

120. On appeal, Noble essentially argues that his diagnosed

mental illnesses precluded a competency finding. But mental

illness does not, on its own, mean that a defendant is not

competent to stand trial. See United States v. Leggett, 162 F.3d

237, 244 (3d Cir. 1998). Rather, the defendant must possess

the “present ability to consult with his lawyer with a reasonable

degree of rational understanding” and a “rational as well as

factual understanding of the proceedings against him.” Drope

v. Missouri, 420 U.S. 162, 172 (1975) (quoting Dusky v.

United States, 362 U.S. 402, 402 (1975)). As discussed above,

Noble’s decision not to communicate with his attorney did not

signify a lack of ability to do so. We discern no clear error in

the District Court’s finding, in light of the thorough and

uncontested expert report, that Noble was competent to stand

trial.

7

We review the District Court’s factual findings regarding

competency for clear error. See United States v. Leggett, 162

F.3d 237, 241 (3d Cir. 1998). We exercise plenary review over

the court’s “interpretation and application of the standards for

determining competency.” Gillette, 738 F.3d at 76.

13

Fifth, the District Court did not plainly err by sustaining

the Government’s objection to part of Noble’s testimony. 8

Before testifying, Noble was instructed by the court that when

he testified, he could not discuss his mental health. Noble then

testified that he was an “honorably discharged psychiatrically

disabled veteran.” Supp. App. 428. The Government objected,

and the court sustained the objection. Noble’s counsel argues

that the objection was premature since Noble’s testimony that

he was “disabled” could have referred to physical or mental

disability. This is a misreading of the record, which clearly

shows that Noble referred to a “psychiatric” disability. As

such, the court’s ruling on the Government’s objection was not

erroneous.

Finally, the District Court did not abuse its discretion in

denying Noble’s motion for a mistrial.9 At the outset of his

testimony during trial, Noble accused a juror of disliking him

by pointing out a specific juror and stating that the juror was

“glaring at [him] hatefully.” Supp. App. 427. Noble also

stated that “if [he] had not been stripped of [his] right to

represent [himself] unjustly by Judge Stark, [he] would have

disqualified that juror as one of [his] picks.” Supp App. 428.

Noble’s counsel moved for a mistrial because Noble “verbally

8

Because Noble did not contest the District Court’s ruling as

to the objection, our review is for plain error. See Williams,

974 F.3d at 340 (“[R]egardless of the nature of the error, in

direct appeals from judgments of conviction in the federal

system, when there is no contemporaneous objection in the

district court, our review must be for plain error[.]”)

9

We review denial of a mistrial for abuse of discretion. See

United States v. James, 955 F.3d 336, 343 n.4 (3d Cir. 2020).

14

attacked a juror in the presence of the other jurors, and . .

. criticized the Court in the presence of the other jurors.” Supp.

App. 440. It was within the discretion of the court to deny the

motion for a mistrial stemming from this incident since it was

Noble himself who caused the incident. To hold otherwise

would create perverse incentives for defendants at trial. See

United States v. Stewart, 256 F.3d 231, 242 (4th Cir. 2001);

United States v. Padilla-Galarza, 990 F.3d 60, 80 (1st Cir.

2021); United States v. McCormac, 309 F.3d 623, 626–27 (9th

Cir. 2002); United States v. Harris, 2 F.3d 1452, 1456 (7th Cir.

1993); United States v. Trevino-Rodriguez, 994 F.2d 533, 535

(8th Cir. 1993).

Even if we were to consider Noble’s statement the same

way we consider allegedly prejudicial statements from non-

defendant witnesses, we would still hold that the District Court

did not abuse its discretion. We will affirm the denial of a

mistrial “where improper remarks were harmless, considering

their scope, their relation to the context of the trial, the

ameliorative effect of any curative instructions and the strength

of the evidence supporting the conviction.” United States v.

Self, 681 F.3d 190, 199 (3d Cir. 2012) (quoting United States

v. Rivas, 493 F.3d 131, 140 (3d Cir. 2007)). The scope of the

statement here was minimal in relation to the context of this

trial. See United States v. Lore, 430 F.3d 190, 207 (3d Cir.

2005) (concluding that a single statement could hardly be

deemed “pronounced and persistent”). The statement was

“brief, isolated, and unsolicited by the prosecutor.” Self, 681

F.3d at 199. The court took curative action by designating the

juror in question as an alternate juror and excusing him from

jury deliberation. The strength of the evidence also supports

the court’s decision; Noble did not meaningfully dispute that

he possessed and viewed the images in question, but rather

15

argued that he believed he had the right to do so under the

Constitution. Given the context of the entire trial, Noble’s own

comment could not serve as a basis for a mistrial.

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.

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