United States v. Jeremy Noyes , 501 F. App'x 168 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2773
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UNITED STATES OF AMERICA
v.
JEREMY NOYES,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 08-cr-00055-001)
District Judge: Honorable Sean J. McLaughlin
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Argued: September 10, 2012
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Before: SCIRICA, ROTH and BARRY, Circuit Judges
(Opinion Filed: October 18, 2012)
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Lee Markovitz, Esq. (Argued)
Suite 1220
330 Grant Street
Pittsburgh, PA 15219
Counsel for Appellant
Rebecca R. Haywood, Esq. (Argued)
Mary M. Houghton, Esq.
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219-0000
-and-
Christian A. Trabold, Esq.
Office of United States Attorney
17 South Park Row
Room A330
Erie, PA 16501-0000
Counsel for Appellee
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OPINION
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BARRY, Circuit Judge
Jeremy Noyes was charged in a four-count indictment with the transportation,
receipt, and possession of material depicting the sexual exploitation of a minor and the
transportation of obscene matter. He was convicted on all counts following a five-day
jury trial at which he represented himself, and was sentenced to 45 years’ imprisonment,
the statutory maximum. He now appeals, arguing that his waiver of counsel was not
knowing, voluntary, and intelligent; that a five-level enhancement to his offense level
under U.S.S.G. § 2G2.2 should not have been applied; and that his sentence was
substantively as well as procedurally unreasonable. We will affirm.
I.
Because we write only for the parties, who are fully familiar with this case, we will
move directly to the issues before us. On September 9, 2008, a grand jury sitting in the
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Western District of Pennsylvania returned a four-count indictment charging Noyes with
transportation of child pornography (Count One), receipt of child pornography (Count
Two), and possession of child pornography (Count Three), all in violation of 18 U.S.C. §
2252, as well as transportation of obscene matter (Count Four), in violation of 18 U.S.C.
§ 1462. Noyes rejected a plea offer, electing to proceed to trial.
On the morning that trial was to begin, Noyes entered the courtroom and presented
a handwritten note to his court-appointed attorney, Michael Hadley, Esq. (“Hadley”),
stating that he wished to proceed pro se. Thereafter, the District Court conducted an
extensive colloquy with Noyes during which it thoroughly explained, among other things,
the numerous risks in proceeding pro se, the numerous advantages of being represented by
counsel, and the maximum penalties he was facing, and urged him to reconsider. Noyes
confirmed time and again that he wished to represent himself. Ultimately, after Noyes
stated that he was “absolutely certain” that he wished to represent himself and that he
didn’t see a need “to waste any more of the jury’s time” (J.A. 59), the District Court
permitted him to do so, with Hadley to serve as stand-by counsel. The jury returned a
guilty verdict on all four counts after little more than one hour of deliberations.
A sentencing hearing was held on June 23, 2011. Noyes assured the District Court
that he wished to continue to represent himself, and the Court permitted him to do so after
another colloquy regarding the risks of proceeding without counsel. At the sentencing
hearing, the Court ruled on the various objections to the presentence report (“PSR”), and
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determined, as had the PSR, that the guideline range was 360 months to life, although the
statutory maximum capped the potential sentence at 45 years. The Court imposed the
statutory maximum sentence and explained why it did so. This appeal followed.
III.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Our
review of Noyes’s claim that the District Court’s determination that his waiver of his right
to counsel was knowing, voluntary, and intelligent is plenary. United States v. Stubbs,
281 F.3d 109, 113 n.2 (3d Cir. 2002). We review for plain error Noyes’s challenge to the
procedural reasonableness of his sentence and the five-level enhancement, neither of
which was challenged before the District Court. Johnson v. United States, 520 U.S. 461,
467 (1997). Our review of the substantive reasonableness challenge to his within-
guidelines sentence is highly deferential, and we will affirm the sentence “unless no
reasonable sentencing court would have imposed the same sentence on [Noyes] for the
reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.
2009) (en banc).
A. Waiver of Right to Counsel
It is well-established that the Sixth Amendment protects both a defendant’s right to
the assistance of counsel and his right to refuse counsel and proceed pro se. Faretta v.
California, 422 U.S. 806, 814 (1975). “A defendant who wishes to represent himself
‘must be allowed to make that choice, even if it works ultimately to his own detriment.’”
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United States v. Jones, 452 F.3d 223, 228 (3d Cir. 2006) (citation omitted). Before
permitting a defendant to proceed pro se, however, “the trial court [bears] the weighty
responsibility of conducting a sufficiently penetrating inquiry to satisfy itself that the
defendant’s waiver of counsel is knowing and understanding as well as voluntary.”
United States v. Peppers, 302 F.3d 120, 130–31 (3d Cir. 2002). In order for a waiver of
counsel to be considered knowing, intelligent, and voluntary, a district court must
establish that the defendant: (1) has “clearly and unequivocally” expressed his desire to
proceed pro se; (2) “understands the nature of the charges, the range of possible
punishments, potential defenses, technical problems that [he] may encounter, and any
other facts important to a general understanding of the risks involved”; and (3) is
competent to stand trial. Id. at 131, 132, 134.
In Peppers, we set out a number of model questions to serve as a guide to the
district court in performing this inquiry. Id. at 136-37. There is no “scripted recital” or
“talismanic formula” for this colloquy, Jones, 452 F.3d at 229, 234, but “if it appears that
the defendant needs further explanation, or it is evident that the defendant does not
comprehend what the court is saying or asking, the court will need to probe further.”
Peppers, 302 F.3d at 137; see also Jones, 452 F.3d at 234 n.8 (observing that the district
court must “probe . . . more deeply” or “follow up on questions to which [the defendant
gives] ambivalent or tentative answers”).
Although purporting to do so, Noyes, who, we note, was studying medicine at the
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time of his arrest, does not seriously argue, nor could he given this record, that his waiver
of counsel was not knowing or intelligent or voluntary. His argument is more nuanced
than that, and is bottomed on the fact, and fact it be, that when, during the extensive
colloquy conducted by the District Court, he gave strange if not nonsensical answers to, at
most, a few of the Court’s questions, the Court should have but did not probe further to
assure itself that he was competent to waive counsel. In support of our observation that
his argument is “nuanced,” Noyes does not argue that he was not competent to waive
counsel and proceed pro se, but only that the Court’s failure to follow up on those
answers invalidates the waiver.
It is, of course, well-established that “[i]n order for a waiver of the right to counsel
to be valid, the court must first assure itself that the defendant is competent to waive the
right.” Gov’t of the V.I. v. Charles, 72 F.3d 401, 404 (3d Cir. 1995). The question of
competency “does not test one’s legal competency to represent oneself.” Peppers, 302
F.3d at 132 n.11. Rather, the degree of competency necessary to waive the right to
counsel generally is viewed as being the same as the competency necessary to stand trial.
Godinez v. Moran, 509 U.S. 389 (1993) (stating that the standard is whether a defendant
“has sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding and has a rational as well as factual understanding of the
proceedings against him”) (citation omitted). In evaluating competency, “a mere routine
inquiry . . . may leave a judge entirely unaware of the facts essential to an informed
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decision that an accused has executed a valid waiver of his right to counsel.” Von Moltke
v. Gillies, 332 U.S. 708, 724 (1948). Accordingly, a trial court should be mindful of its
duty to “probe . . . more deeply” or “follow up” if the defendant’s responses to
questioning raise a doubt as to his ability to make a valid waiver of counsel. Jones, 452
F.3d at 234 n.8. Of course, a court need not “make a competency determination in every
case in which a defendant seeks . . . to waive his right to counsel.” Godinez v. Moran,
509 U.S. 389, 401 n.13 (1993). However, “a competency determination is necessary . . .
when a court has reason to doubt the defendant’s competence.” Id.The District Court could, and, in an ideal world, perhaps should, have followed up
with additional questions when Noyes gave his few strange answers. However, there is
nothing else in this record that would or should have caused the Court, or causes us, to
doubt that Noyes was competent to waive his right to counsel. 1 We will not invalidate
that waiver.
B. Enhancement Under U.S.S.G. § 2G2.2 2
Noyes argues that the District Court erred in applying U.S.S.G. § 2G2.2(b)(3)(B),
1
Although not directly relevant to the determination of Noyes’s competency at the time
he waived his right to counsel, we note that his then-competence was borne out by his
performance at trial, at which he cross-examined the government witnesses with relevant
questions, moved for a judgment of acquittal, and conducted direct examination of his
own witnesses.
2
We reject Noyes’s claim that the District Court committed procedural error by not
discussing rehabilitation. A sentencing court is not, of course, required to rigidly adhere
to a script or mechanically check off each of the § 3553(a) factors. In any event, although
the Court did not explicitly discuss rehabilitation, it surely had that in mind when it found
that Noyes was “not capable of being deterred.” (J.A. 855).
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which provides for a 5-level increase if the offense involved “[d]istribution for the
receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” The
commentary defines this standard to mean:
any transaction, including bartering or other in-kind transaction, that is
conducted for a thing of value, but not for profit. “Thing of value” means
anything of valuable consideration. For example, in a case involving the
bartering of child pornographic material, the “thing of value” is the child
pornographic material received in exchange for other child pornographic
material bartered in consideration for the material received.
U.S.S.G. § 2G2.2, cmt. n.1.
The enhancement was applied based on a series of e-mails and online chats
between Noyes and an individual using the e-mail address julliettehodge@gmail.com
(“Julliette”). On appeal, Noyes does not dispute that he distributed images of child
pornography to Juliette during their chats and that he received images of child
pornography. He contends, however, that the enhancement requires the government to
prove that his conscious purpose or object in distributing the pornography was to receive
other pornography from Julliette in return, and he asserts that “[n]owhere in those emails
or chat transcripts is there any evidence of consideration or expectation, or that the emails
were sent by either party on condition of a quid pro quo.” (Appellant’s Br. 17).
A purely gratuitous distribution of child pornography would not warrant the
application of this enhancement, even if additional pornographic images were later
received by the defendant. Here, however, the chat transcripts make clear that Noyes
shared child pornography with Julliette with the conscious object of receiving additional
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pornography in return. This quid pro quo arrangement, of the sort contemplated by the
enhancement, is demonstrated by the following chat transcript, which took place while
Noyes and Julliette were simultaneously exchanging e-mails containing images of child
pornography:
me: 3 yes I got the two
Julliette: look in your email
me: more?
me: nice
Julliette: Oke….:)
me: to show you theres nothing to be ashamed of ;)
me: here Ill send you some
me: :)
me: I was encrypting them
....
me: ok thats just a sample
Julliette: yes yes yes
me: do you like?
Julliette: baby!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
me: ok I sent you some ;)
Julliette: got it
....
me: or did you send me more?
me: you want me to send more?
Julliette: send some other
me: I haven’t sent mine yet gimme a sec theres a lot
Julliette: yes
me: you sent more?
....
Julliette: ok
me: got yours ;)
....
me: and why do you keep going offline
me: lil girls should be fair
me: since I sent so much :-p
me: can you send?
3
In these chats, “me” refers to Noyes. Typographical errors have not been corrected.
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Julliette: I have more
....
me: thank you thank you thank you
me: ooooo more
....
Julliette: does it make u happy?
Julliette: yes yes yes
me: SUCH A GOOD GIRL.
me: more you sent more
Julliette: ok
me: that’s all I ask
As evidenced by this transcript, Noyes distributed pornographic images from his
own collection with the expectation of receiving images in return from Julliette. Indeed,
at one point Noyes makes the understanding of reciprocity explicit, asking Julliette to be
“fair” and send him more images “since [he] sent so much.” The District Court’s
application of a five-level enhancement under §2G2.2, to which Noyes did not object,
was not plain error.
C. Substantive Reasonableness
Finally, Noyes argues that his 45-year sentence was substantively unreasonable.
On appeal, the “substantive reasonableness inquiry must be highly deferential” because
the “sentencing judge, not the court of appeals, is in a superior position to find facts and
judge their import under § 3553(a) in the individual case.” United States v. Merced, 603
F.3d 203, 214 (3d Cir. 2010). That surely is true in a case such as this where the
experienced District Judge presided over a five-day trial; heard all of the overwhelming,
damning evidence; and watched and listened as Noyes vigorously testified that he had
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been framed.
The sentence, a within-guidelines sentence, was undoubtedly harsh, but was not
unreasonable. The District Court recognized that Noyes had no prior convictions, but
found his crimes here were “extremely serious.” (J.A. 852). It further found that Noyes
demonstrated a “complete lack of remorse,” which was especially troubling “given the
level of depravity exhibited by [him].” (J.A. 855). With respect to potential sentencing
disparities between similarly situated defendants, the Court made quite clear that Noyes’s
crimes were “so outrageously perverse and shocking as to be in a class of their own.”
(Id.) Finally, it emphasized that such a lengthy sentence was justified in the interests of
general and specific deterrence.
I do not think that I have ever seen a case where the sentencing goal of
protection of the public figured more predominantly. Anyone who sat
through this trial would realize that this defendant is the worst nightmare of
every child’s parent. The entirely credible and overwhelming evidence
demonstrated that the defendant is a dangerous predatory sadist, who took
pleasure in viewing the abuse of children and who was fully prepared to do
so himself if given the opportunity.
(J.A. 854-55). 4
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Noyes’s argument that the District Court overstated the need to protect the public from
him is without merit. The evidence presented at trial depicted Noyes’s long-term goals
for propagating “quality blood lines” by attempting to impregnate women and young girls
beginning at the age of eight. Although Noyes had no history of contact offenses with
minors, the evidence directly contradicts his assertion that he posed no danger to the
public because his plans to sexually abuse small children were simply fantasies. In an e-
mail describing plans for his sex slave society, Noyes explicitly stated, “This isn’t fantasy,
and it is possible.” (J.A. 276). And in other conversations, he stated that because
“[p]eople like us are hunted,” he is forced to solicit child pornography through
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The District Court’s conclusions and application of the § 3553(a) factors are amply
supported by the record. It surely cannot be said that the same sentence would not have
been imposed, and for the same reasons, by any reasonable sentencing court.
III.
For the foregoing reasons, we will affirm the judgment of sentence.
hypothetical stories. That way, he explains, “I can later deny if someone says I’m sick
etc. . . . I just say they’re fantasy stories.” (J.A. 284).
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