IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

: NO. 05-369

v. :

: CIVIL ACTION

JOSEPH NOBLE : NO. 09-594

MEMORANDUM

Bartle, C.J. February 23, 2010

Before the court is the pro se motion of Joseph Noble

("Noble") under 28 U.S.C. § 2255 to vacate, set aside, or correct

his sentence. 

On June 30, 2005, Noble was charged by grand jury

indictment with one count of kidnapping, in violation of 18

U.S.C. § 1201(a)(1), and one count of interstate domestic

violence, in violation of 18 U.S.C. § 2261(a)(1). On January 12,

2006, a jury found Noble guilty of kidnapping but not guilty of

interstate domestic violence. He was sentenced to 84 months'

imprisonment. On September 25, 2007, our Court of Appeals

affirmed the conviction and sentence. United States v. Noble,

251 Fed. Appx. 792, 2007 WL 3133065 (3d Cir. 2007). Noble

thereafter filed his § 2255 motion. The court appointed counsel

for Noble and held several evidentiary hearings. 

Noble raises a number of contentions: (1) deficiencies

in his grand jury indictment violate his rights under the Fifth

and Sixth Amendments; (2) the court's jury instructions

constructively amended the grand jury indictment, thereby further
violating his Fifth and Sixth Amendment rights; (3) trial counsel

was ineffective under the standard set forth by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984);

and (4) appellate counsel was similarly ineffective. 

I. 

The underlying facts, as established through evidence

at trial, are as follows. On November 13, 2004, Noble threatened

his wife, Joanne Noble ("Joanne"), during an argument, prompting

her to flee their home and stay with her stepsister, Krislyn Ruth

("Ruth"), in South Philadelphia. On the night of November 16,

2004, Noble drove to Ruth's house where he discovered the car of

Jack Bell ("Bell") parked outside. Believing Bell and Joanne

were having an affair, Noble became enraged and proceeded to

smash the windows of Bell's car and call for Joanne and Bell to

come out of the house. They did not do so. 

The next day, November 17, 2004, Noble called Joanne

claiming their five-year old daughter and two-year old son were

sick and suggested that she meet with him. Joanne agreed, and

Noble drove to Ruth's house with the two children. Upon his

arrival, Noble invited Joanne to join him and the children for

lunch. Joanne testified that, when she refused his invitation,

Noble lifted her off the ground and carried her to the car where,

despite her struggle, he forced her into the passenger seat,

placed their daughter on her lap, and drove off. Noble drove at

a high rate of speed, ran through red lights, and swerved onto

the wrong side of the road. Though police initially chased

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Noble, they were unable to stop his vehicle. Noble continued at

a high rate of speed as he crossed the Walt Whitman Bridge and

entered New Jersey. Joanne testified that, while speeding

erratically, Noble was screaming at her and threatening to smash

the car into a wall so it could be the family's "last time

together." 

Upon entering New Jersey, Noble slowed to a normal rate

of speed and made multiple stops for gas and food. According to

Joanne's testimony, Noble wanted to ensure that he had a full

tank of gas to aid his escape in the event that he was again

pursued by police. Noble also avoided use of credit cards and

disassembled his cellular phone to avoid being tracked by law

enforcement. When making such stops, Noble cautioned Joanne not

to attempt to communicate with anyone or otherwise indicate that

she was being held against her will. Joanne testified that she

complied with Noble's demand because, due to Noble's history of

violent behavior, she feared for her safety and that of their

children. 

Eventually the family arrived at a motel in Kingston,

New York. Noble backed the car into the parking lot so the rear

license plate could not be seen, and again paid in cash to avoid

detection. Joanne testified that Noble twice forced her to have

sexual intercourse with him during their brief stay at the motel. 

Although she communicated to him that she did not wish to be

intimate, she testified that she did not physically struggle. 

According to Joanne, she feared that physical resistance would

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only provoke Noble further and would alarm her young children,

who were in the same motel room at the time. 

The next morning, Noble and his family left New York to

return to Philadelphia. On the way, Noble came to believe that

the police had issued a warrant for his arrest. This prompted

him to drive directly to the office of his attorney, Arthur

Jarrett ("Jarrett"). When Joanne arrived at Jarrett's office

with Noble, she was taken aside and put in contact with a

detective who suggested she go to Thomas Jefferson Hospital for a

physical examination in relation to her accusations of sexual

assault. 

Joanne traveled to the hospital along with a police

escort. While there, Noble appeared unannounced and confronted

Joanne in a hallway. He was promptly arrested. Joanne was later

interviewed by police who took photographs of a lump on her head

and bruising on her arms which she had allegedly suffered when

Noble forced her into his car on November 17.

Noble was represented at trial by attorneys Mark Wilson

and Kathy Henry. Ms. Henry's primary role was to cross-examine

Joanne regarding her above-mentioned testimony. In his defense,

Noble presented testimony from a number of witnesses in an

attempt to show that Joanne was romantically involved with Bell

before and after November 17, 2004 and that she fabricated or

exaggerated the kidnapping and assault allegations. At the

evidentiary hearing on his § 2255 motion, defense counsel stated

that their trial strategy was to attack Joanne's credibility and

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prove that she voluntarily accompanied Noble on the trip to New

York. 

II.

A.

Noble first contends in his § 2255 motion that his

grand jury indictment was defective so as to deny him his Sixth

Amendment right to be informed of the nature and cause of the

accusations against him and his Fifth Amendment right to be

charged by grand jury indictment. He focuses on the fact that

the indictment did not state that the kidnapping was "for ransom

or reward or otherwise," although this phrase appears in the text

of the statute under which Noble was charged, 18 U.S.C.

§ 1201(a)(1). According to Noble, the omitted language forms an 1

essential element of the crime of kidnapping under § 1201(a)(1),

and the indictment therefore should have been dismissed for

1. At the time Noble was charged with kidnapping, § 1201(a)(1)

provided:

Whoever unlawfully seizes, confines,

inveigles, decoys, kidnaps, abducts, or

carries away and holds for ransom or reward

or otherwise any person, except in the case

of a minor by the parent thereof, when ...

the person is willfully transported in

interstate or foreign commerce, regardless of

whether the person was alive when transported

across a State boundary if the person was

alive when the transportation began; ...

shall be punished by imprisonment for any

term of years or for life and, if the death

of any person results, shall be punished by

death or life imprisonment.

18 U.S.C. § 1201(a)(1) (amended 2006) (emphasis added). 

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failure state an offense under Rule 12(b)(3)(B) of the Federal

Rules of Criminal Procedure.2

Questions regarding the sufficiency of a grand jury

indictment touch upon fundamental constitutional rights. See

Russell v. United States, 369 U.S. 749, 760-61 (1962). However,

a conviction will not be disturbed merely because of minor

deficiencies in the charging document. Id. at 763. In Russell,

the Court identified the important criteria by which the

sufficiency of an indictment is to be measured: (1) it must

"contain[] the elements of the offense intended to be charged"

and "apprise[] the defendant of what he must be prepared to

meet"; and (2) it must protect him from future proceedings by

"show[ing] with accuracy to what extent he may plead a former

acquittal or conviction." Id. at 763-64; see also United States

v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989). 

First, we consider whether the indictment apprised

Noble of the charges against him. See United States v. Knox Coal

Co., 347 F.2d 33, 37 (3d Cir. 1965). The indictment charges

that: 

On or about November 17, 2004, in

Philadelphia, in the Eastern District of

Pennsylvania and elsewhere, defendant Joseph

Noble, a/k/a/ "Joseph Soto," knowingly and

intentionally seized, confined, kidnaped,

abducted, and carried away and held his

estranged spouse, [Joanne Noble], and then

willfully transported her in interstate

commerce to Kingston, New York. In violation

2. This rule allows a defendant to file a motion alleging "that

the indictment ... fails ... to state an offense." Fed. R.

Crim. P. 12(b)(3)(B). 

-6-
of Title 18, United States Code, Section

1201(a)(1).

Noble claims that the "purpose" of the kidnapping is an essential

element of the offense, and by omitting the language "for ransom

or reward or otherwise" he was not adequately apprised of the

charges against him. We disagree. 

The Supreme Court has interpreted the word "otherwise"

as encompassing any purpose at all. See Gooch v. United States,

297 U.S. 124, 127-28 (1936); United States v. Healy, 376 U.S. 75,

81-83 (1964). Because of this expansive construction, the

kidnapping statute can be violated regardless of the defendant's

motivation, and thus the "purpose" language does not form an

essential element of kidnapping under 18 U.S.C. § 1201. See,

e.g., Gawne v. United States, 409 F.2d 1399, 1403 (9th Cir.

1969); United States v. Martell, 335 F.2d 764, 766 (4th Cir.

1964); Hayes v. United States, 296 F.2d 657, 665-67 (8th Cir.

1961); Clinton v. United States, 260 F.2d 824, 825 (5th Cir.

1958). Such was the result in United States v. Lutz, where Our

Court of Appeals held that an indictment charging kidnapping

under that section is not deficient merely because it omitted the

language "for ransom or reward or otherwise." 420 F.2d 414, 416

(3d Cir. 1970).

As in Lutz, Noble's indictment is constitutionally

sufficient. It clearly charged Noble with the offense of

kidnapping his wife and transporting her in interstate commerce. 

To include a statement that he held her for "ransom or reward or

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otherwise" would have added nothing to his ability to prepare a

defense. 

Noble's indictment also satisfies the second criteria

set forth in Russell. By specifying the date on which the

offense took place as well as the geographic locations and

parties involved, Noble's indictment was specific enough to avoid

any danger of double jeopardy. See Virgin Islands v. Moolenaar,

133 F.3d 246, 250 (3d Cir. 1998). 

Finding no defect in the indictment by which Noble was

charged, we conclude that Noble's Fifth and Sixth Amendment

rights were not violated.

B.

Noble next contends this court constructively amended

his indictment by referencing the § 1201(a)(1) "ransom or reward

or otherwise" language in the jury instructions, thereby

violating the fundamental grand jury guarantee of the Fifth

Amendment. 

An indictment is constructively amended when jury

instructions "broaden[] the possible bases for conviction from

that which appeared in the indictment." United States v. Lee,

359 F.3d 194, 208 (3d Cir. 2004). A constructive amendment

deprives a defendant of his right to be tried only for those

offenses charged by a grand jury, and therefore "constitutes 'a

per se violation of the fifth amendment's grand jury clause.'"

United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quoting

-8-
United States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002)); see

also Stirone v. United States, 361 U.S. 212, 218-19 (1960).

The jury instructions given by this court included the

following:

Count 1 of the indictment charges that on or

about November 17, 2004, the defendant,

Joseph Noble, violated a federal law by

knowingly and intentionally seizing,

confining, kidnapping, abducting, or carrying

away and holding for ransom or reward or

otherwise, his spouse, Joanne Noble, and

willfully transporting her in interstate

commerce ... .

[T]he government must prove ... beyond a

reasonable doubt ... the defendant held

Joanne Noble for ransom, reward or other

benefit or reason. 

The phrase "and holds for ransom or reward or

otherwise" means to detain a person for

anything the defendant considers to be of

benefit or to have value. Such benefit is

not limited to money or any measurable or

material item. A benefit is any legal or

illegal object of the kidnapping which the

perpetrator might consider sufficient motive

to induce him to undertake the kidnapping. 

Thus, the government must prove beyond a

reasonable doubt that the defendant, Joseph

Noble, held Joanne Noble for ransom or reward

or otherwise.

(Trial Tr. 53-55, Jan. 11, 2006.) Contrary to Noble's

allegations, these jury instructions did not constructively amend

his indictment. Count one of the indictment charges Noble with

kidnapping his wife in violation of 18 U.S.C. § 1201(a)(1). That

statute requires that the victim be held "for ransom or reward or

otherwise," the word "otherwise" meaning any purpose at all. See

e.g., Gooch, 297 U.S. at 127; Healy, 376 U.S. at 81-83. 

Therefore, the indictment, though it omitted the "purpose"

-9-
language of § 1201(a)(1), contemplated that Noble be charged with

kidnapping and holding his wife for any purpose, legal or

illegal. Considering the expansiveness of this allegation, it

cannot be said that the jury instructions added to or otherwise

broadened the charge as set forth in the indictment.

C.

Next, Noble alleges ineffective assistance of counsel

under the standard set forth in Strickland v. Washington. 466

U.S. at 687. Noble contends that counsel was ineffective for: 

(1) denying him the right to testify on his own behalf; (2)

failing to challenge his indictment on the ground that it lacked

the "purpose" language of § 1201(a)(1); (3) neglecting to

investigate his mental health at the time of the kidnapping; and

(4) inadequately cross-examining Joanne at trial. 

Under the Strickland standard, Noble bears the burden

of proving that: (1) counsel's performance was deficient; and

(2) he suffered prejudice as a result. Id.; United States v.

Nino, 878 F.2d 101, 103 (3d Cir. 1989). The first prong requires

that "[counsel's] performance was, under all the circumstances,

unreasonable under prevailing professional norms." United States

v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Our scrutiny of

counsel's performance is highly deferential in that we presume

counsel's actions were undertaken in accordance with professional

standards and as part of a "sound trial strategy." Strickland,

466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101

(1955)). Second, to satisfy the prejudice prong, Noble must show

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"there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Id. at 694. A "reasonable probability" is one

that is "sufficient to undermine confidence in the outcome." Id. 

First, Noble alleges that trial counsel denied him the

right to testify on his own behalf. According to Noble, he

alerted Mr. Wilson and Ms. Henry that he wished to testify, but

they nevertheless failed to call Noble as a witness. 

A criminal defendant has a constitutional right to

testify on his own behalf at trial, and this right can only be

waived by the defendant himself. See Rock v. Arkansas, 483 U.S.

44, 49-53 (1987); Jones v. Barnes, 463 U.S. 745, 751 (1983). 

However, "a trial court has no duty to explain to the defendant

that he or she has a right to testify or to verify that the

defendant who is not testifying has waived that right

voluntarily." United States v. Pennycooke, 65 F.3d 9, 11 (3d

Cir. 1995). 

Although Noble did not testify at trial, he was aware

of his right to do so. As Noble notes in his reply to the

Government's response to his § 2255 motion, the court informed

Noble of his right to testify on his own behalf at trial, and

Noble acknowledged that he understood it was his decision whether

or not to do so. Furthermore, during the evidentiary hearing on

October 21 and 27, 2009, Noble presented no credible evidence

demonstrating that his experienced defense counsel unilaterally

prohibited him from testifying at trial. As both Mr. Wilson and

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Ms. Henry testified during the hearing, they counseled Noble

against taking the stand because they believed it would be

detrimental to his case. Despite this reservation, however, both

attorneys stated that they would not have stopped Noble from

testifying if he chose to do so. 

Second, Noble contends that both trial counsel and

appellate counsel were ineffective for failing to challenge: (1)

count one of his indictment on the ground that it was defective

by not including the language "for ransom or reward or

otherwise"; and (2) the court's alleged constructive amendment to

that count during jury instruction. We have already determined

that count one was valid despite the absence of this language and

the court did not constructively amend the indictment. 

Accordingly, Noble suffered no prejudice and he cannot establish

ineffective assistance of either trial or appellate counsel on

this issue.

Third, Noble alleges that trial counsel failed to

investigate thoroughly his history of mental health problems. 

According to Noble, he lost the opportunity to present a defense

of insanity or create reasonable doubt as to the government's

ability to establish the mens rea element of his offense. We

recognize that "counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary." Strickland, 466 U.S. at

690-91. Nevertheless, the adequacy of counsel's investigation is

not dispositive—a petitioner is not entitled to relief unless he

-12-
can prove that he suffered prejudice. Strickland, 466 U.S. at

694. Therefore, we must consider whether there is a reasonable

probability that the outcome of Noble's trial would have been

different had counsel investigated further into his mental health

history. 

 The federal insanity defense, as set forth in 18

U.S.C. § 17, places on a defendant the burden of proving by 3

clear and convincing evidence that: (1) he suffered from a

mental disease or defect at the time of the commission of the

acts constituting the offense; and (2) this mental disease or

defect rendered him unable to "appreciate the nature and quality

or the wrongfulness of his acts." 18 U.S.C. § 17(a). Thus, in 4

3. The statute provides, 

(a) Affirmative defense.--It is an

affirmative defense to a prosecution under

any Federal statute that, at the time of the

commission of the acts constituting the

offense, the defendant, as a result of a

severe mental disease or defect, was unable

to appreciate the nature and quality or the

wrongfulness of his acts. Mental disease or

defect does not otherwise constitute a

defense.

(b) Burden of proof.--The defendant has the

burden of proving the defense of insanity by

clear and convincing evidence. 

18 U.S.C. § 17. 

4. For the purposes of 18 U.S.C. § 17(a), the term

"wrongfulness" refers to "objective societal or public standards

of moral wrongfulness, not the defendant's subjective personal

standards of moral wrongfulness." United States v. Ewing, 494

F.3d 607, 621 (7th Cir. 2007); see also Third Circuit Model

(continued...)

-13-
order to show prejudice under Strickland, Noble must demonstrate

that, but for counsel's failure to investigate, it is reasonably

probable that Noble would have successfully proven by clear and

convincing evidence that a mental disease or defect at the time

of the kidnapping rendered him unable to appreciate the nature

and quality or the wrongfulness of his actions. This, Noble

cannot do. 

Evidence at trial showed that Noble clearly recognized

the wrongfulness of his actions because he went to elaborate

lengths to avoid being captured by law enforcement. According to

Joanne's testimony, Noble disassembled his cellular telephone and

paid for food and gas with cash for the specific purpose of

preventing police from tracing his movement. When he arrived at

the motel in New York, Noble strategically parked his car in such

a way so as to conceal his license plate and avoid detection. 

These actions clearly demonstrate that Noble was able to

appreciate the wrongfulness of his behavior, and it is therefore

not reasonably probable that counsel's further investigation

would have allowed Noble successfully to invoke an insanity

defense. 

Noble also alleges that a proper investigation by

counsel would have uncovered evidence sufficient to prove that he

lacked the requisite mens rea for kidnapping under § 1201(a)(1),

that is, that he did not act knowingly and willfully. 18 U.S.C.

4.(...continued)

Criminal Jury Instructions, § 8.06 (2009).

-14-
§ 1201(a)(1); United States v. Osborne, 68 F.3d 94, 100 (1995). 

Again, to show prejudice under Strickland, Noble must demonstrate

that, had counsel investigated more thoroughly, it is reasonably

probable they would have discovered evidence sufficient to negate

the mens rea for kidnapping. 

Evidence of mental abnormality is admissible to show

that a defendant lacked the requisite intent to commit an

offense. United States v. Pohlot, 827 F.2d 889, 897 (3d Cir.

1987). However, "[o]nly in the rare case ... will even a legally

insane defendant actually lack the requisite mens rea purely

because of mental defect." Id. at 900. Accordingly, the court

in Pohlot cautioned that such evidence should be admitted "only

when, if believed, it would support a legally acceptable theory

of lack of mens rea." Id. at 905-06. 

At the evidentiary hearing on January 8, 2010, Noble

presented the testimony of Dr. John Ouligian, a forensic

psychiatrist. Dr. Ouligian provided his opinion that Noble, at

the time he kidnapped his wife, was suffering from untreated

chronic Post Traumatic Stress Disorder, Klonopin withdrawal, and

Major Depressive Disorder with psychotic features. Dr. Ouligian 5

based his opinion, in part, on information told to him by Noble,

5. During cross-examination, however, Dr. Ouligian admitted that

he was unable to say conclusively that Noble was suffering from

Klonopin withdrawal on the day of the kidnapping. Dr. Ouligian

realized that he did not have any information as to when Noble

had allegedly been given Klonopin, and he therefore could not

determine whether Klonopin withdrawal symptoms, if any, were

present at that time. 

-15-
including Noble's assertion that he carried out the kidnapping

under the delusion that his past sexual abusers were "coming

after" his family. 

6

The mens rea of "knowingly" is defined as acting with

an awareness of the nature of one's actions and of the

surrounding facts and circumstances as specified in the charged

offense. Third Circuit Model Criminal Jury Instructions, § 5.02

(2009). In contrast, to act willfully a defendant must act with

a purpose to disobey or disregard the law, that is, he must "act

with the knowledge that his conduct is unlawful." Bryan v.

United States, 524 U.S. 184, 192 (1998); Third Circuit Model

Criminal Jury Instructions, § 5.05 (2009). 

Even if we were to accept Dr. Ouligian's opinion, it

cannot negate the evidence that Noble acted knowingly and

willfully in seizing, holding, and transporting his unconsenting

wife in interstate commerce. See 18 U.S.C. § 1201(a)(1). His

erratic driving, continually filling his gas tank in the event he

was again pursued by police, using cash and disassembling his

cellular phone to avoid being traced by law enforcement,

threatening Joanne not to alert anyone that she was being held

against her will, and parking his car so as to obscure the

license plate all demonstrate that he was fully cognizant of the

6. Noble's claim that he kidnapped his wife under the delusion

that it was necessary to save her and their children from sexual

predators appears for the first time in the memorandum in support

of his § 2255 motion. Ms. Henry testified at the evidentiary

hearing that Noble never informed defense counsel of this story

at or before trial. 

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nature of his actions, that he was aware of the facts and

circumstances, and that he recognized the unlawful nature of his

conduct. This is all the statute requires, and Noble's alleged

motivation is irrelevant. 

Because Dr. Ouligian's opinion, if believed, is

insufficient to negate the mens rea for kidnapping under

§ 1201(a)(1), his testimony would likely have been excluded at

trial. See Pohlot, 827 F.2d at 905-06. It is therefore not

reasonably probable that the verdict would have been different

but for counsel's failure to further investigate Noble's mental

health. Accordingly, Noble suffered no prejudice and is not

entitled to relief on this issue.

Finally, Noble claims that trial counsel was

ineffective in cross-examining Joanne. According to Noble,

counsel failed to: (1) question Joanne adequately and offer

evidence regarding her alleged opportunity to exit Noble's car

before crossing the border between Pennsylvania and New Jersey;

(2) ask Joanne whether she had placed Klonopin in Noble's tea

without his knowledge; and (3) investigate Joanne's then-pending

criminal drug charges and use those charges to impeach Joanne at

trial. 

Noble contends that statements by Joanne recorded in an

FBI 302 form demonstrated that she stayed with Noble under her

own volition when he crossed from Pennsylvania into New Jersey. 

On the contrary, in the 302, Joanne stated only that while Noble

was driving through Philadelphia at a high rate of speed, he was

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stopped briefly at a red light where he proceeded to blow his

horn and force other vehicles into the center of the intersection

so that he could continue to flee from police. Not only is it

unclear whether Joanne herself could have escaped from the car

during this brief pause in an otherwise dangerous pursuit, she

testified at trial that she was concerned for the safety of her

children and would not have left them alone in the car with

Noble. 

During the evidentiary hearing, Ms. Henry stated that

she concluded that the 302 statements were consistent with

Joanne's testimony at trial, and that questioning her regarding

those statements would have been counterproductive for two

reasons: (1) it would have elicited testimony that Joanne was

afraid that Noble would harm the children; and (2) questions

regarding her ability to "escape" would contradict the main

theory of the defense, which was that Joanne accompanied Noble

willingly on their trip to New York. Based on this testimony, we

find that Ms. Henry's decision not to question Joanne regarding

these statements was part of a "sound trial strategy," and her

performance therefore cannot be considered deficient under the

Strickland standard. 

Noble also points to statements made by Joanne in a

voice recording which she left on the answering machine of Mr.

Wilson. In it, Joanne states that there was at least one

occasion during which she could have exited the car, but she

didn't want to leave her children. This statement is consistent

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with her testimony at trial, in which she said that, although

Noble stopped the car at a rest stop, she was afraid to run or

seek help because she did not want to leave her children and

feared that it would only provoke Noble. Furthermore, Joanne did

not specify in the recording when she had the opportunity to exit

the car, and we will not assume, as Noble suggests, that this

opportunity occurred prior to the car crossing the border from

Pennsylvania into New Jersey. Accordingly, it was not

unreasonable for Ms. Henry to decide not to question Joanne about

these statements.

Next, Noble contends that counsel was ineffective for

failing to cross-examine Joanne regarding her allegedly putting

Klonopin into his tea without his knowledge. Noble argues that

such evidence would support a theory that he was suffering from

Klonopin withdrawal at the time of the kidnapping. When asked

during the evidentiary hearing why Joanne was not asked about

this during cross-examination, Mr. Wilson stated that he had no

information regarding the dosage of Klonopin which Noble

allegedly ingested or when the alleged drugging took place. 

Without this information, he felt it would be impossible to

demonstrate that Noble was suffering from the effects of Klonopin

at the time of the kidnapping.

In light of counsel's testimony, we find the decision

not to cross-examine Joanne on this issue to be reasonable. Even

Noble's own psychiatric expert, Dr. Ouligian, testified that,

without knowing how much of the drug was ingested and the date on

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which such ingestion took place, it would be impossible to

conclude that Noble was suffering from the effects of Klonopin at

the time of the kidnapping. Furthermore, as discussed above,

even if such information could have been obtained it would not

have negated the willfulness of Noble's actions. 

7

Finally, as for Noble's contention regarding evidence

of the drug charges against Joanne, we find Noble is unable to

show that he suffered prejudice as required by Strickland. 

Because Joanne had not yet been convicted of any crimes at the

time of Noble's trial, it is likely that evidence of her pending

criminal charges would have been excluded. See Fed. R. Evid.

609, 403. Even if we were to assume that such evidence would

have been admitted, however, Noble is still unable to establish

prejudice. As previously discussed by both this court in our

memorandum dismissing Noble's motion for a new trial, and by our

Court of Appeals in its opinion affirming our decision, it is not

reasonably probable that Noble would have been acquitted of

kidnapping but for counsel's failure to uncover Joanne's

outstanding criminal charges. 

8

7. In his post hearing memorandum, Noble seems to also suggest

that questioning Joanne during cross-examination regarding her

allegedly drugging him would have laid an evidentiary foundation

to allow subsequent witnesses to testify that Joanne told them

that she had given Klonopin to Noble without his knowledge. 

However, such testimony from those subsequent witnesses would be

inadmissible hearsay regardless of whether counsel's questioning

provided Joanne the opportunity to admit or deny the accusation

during cross-examination. 

8. We note that, while both of these earlier decisions were made

(continued...)

-20-
For the reasons stated above, the motion of Joseph

Noble pursuant to 28 U.S.C. § 2255 will be denied.

8.(...continued)

in the context of Noble's motion for a new trial for the

government's alleged violation of Brady v. Maryland, 373 U.S. 83

(1963), the "reasonable probability" standard used to establish

materiality under Brady, is identical to the "reasonably

probable" standard used to determine prejudice under

Strickland—both require that petitioner's contention undermine

confidence in the outcome. See Strickland, 466 U.S. at 694;

Kyles v. Whitley, 514 U.S. 419, 434 (1995). 

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