MAGISTRATE JUDGE’S RULING
Judge opposes request by Noe for a new trial
Former area coin dealer was convicted on 29 counts in ’06
6/20/2013
A federal magistrate judge recommended that Tom Noe’s bid for a new trial be denied. The former Toledo-area coin dealer is serving an 18-year prison term.
Former Toledo-area coin dealer Tom Noe, a convicted thief, won’t be leaving prison anytime soon.
On Thursday, a federal magistrate judge recommended that Noe’s bid for a new trial be denied. Magistrate Judge Kathleen B. Burke dismissed Noe’s claims that the trial court improperly denied his motion to change venue and improperly allowed the state’s expert witnesses to testify while denying Noe’s experts the same chance.
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Noe was convicted in 2006 of the theft of millions of dollars from rare-coin funds he managed for the Ohio Bureau of Workers’ Compensation.
“I was expecting this,” said Kevin Pituch, an assistant Lucas County prosecutor who tried the case against Noe in 2006. “Twelve jurors heard this case and found that there was overwhelming evidence of guilt that Tom Noe was not only a thief, but a swindler. The judge, in commenting on the case in post-trial proceedings, said the evidence was overwhelming, so I’m not surprised at all.”
Defense attorneys will have the opportunity to respond to Judge Burke’s report and recommendation.
Judge Burke, 65, of Akron grew up in New York City and received undergraduate and law degrees from St. John’s University, where she served as an editor of the Law Review until her graduation in 1973.
Before becoming a magistrate judge for the Northern District of Ohio on Aug. 20, 2011, she was executive director of the Ohio Lottery Commission. Before that, she was a partner with the Jones Day law firm and also was the first female president of the Ohio State Bar Association.
The recommendation will now be forwarded to U.S. District Court Judge John Adams for a final decision.
The case was randomly assigned — as all federal cases are — to Judge Adams, who is seated in the federal court in Akron.
Rick Kerger, a Toledo attorney who said he is representing Noe without being paid at this time, said he will file a response to the recommendation. “I don’t like it,” he said of the recommendation. “That’s the truth.”
Noe, now 58 and an inmate at the Hocking unit of the Southeastern Correctional Complex in Nelsonville, Ohio, was convicted by a jury in Lucas County Common Pleas Court of 29 charges of corruption, theft, money laundering, and of tampering with records for the theft of millions of dollars from two $25 million rare-coin funds. He was found not guilty on 11 other charges, and several others were dismissed or consolidated.
Noe was sentenced to 18 years in state prison and ordered to pay $13,747,000 in restitution, as well as the cost of prosecution totaling $2,979,402 and $139,000 in fines. The cost of restitution was subsequently reduced by more than $2 million after his forfeited assets were sold.
Noe began serving his state sentence in December, 2008, after he spent two years in federal prison for making illegal contributions to President George W. Bush’s 2004 re-election campaign.
His state conviction was upheld by the 6th District Court of Appeals in December, 2009, and in June, 2010, the Supreme Court of Ohio refused to grant a hearing on his appeal.
In 2011, Mr. Kerger filed in federal court for a writ of habeas corpus against Francisco Pineda, the warden of what was then called Hocking Correctional Institution. A writ of habeas corpus is a petition seeking release from unlawful detention that requires the petitioner to prove he is in custody in violation of the U.S. Constitution or laws.
Mr. Kerger said Wednesday that Noe’s appeals likely will continue to the 6th Circuit Court of Appeals in Cincinnati if Judge Adams affirms the recommendation. Ultimately, Noe could take his case to the U.S. Supreme Court.
“I thought we had good issues,” Mr. Kerger said, explaining that his strongest argument was that Noe should have been allowed to call an expert witness to testify about the valuation of the coins in question particularly after the state was allowed to call David Tripp, a Sotheby’s consultant.
“If you’re going to determine the issue of value is important, then it’s important for both sides,” Mr. Kerger added. “By not giving Tom the chance to call an expert, I think that certainly is a denial of what my idea of a fair trial would be. Obviously, the federal magistrate disagrees.”
Federal magistrate judges, who are appointed by federal district judges, do not preside over felony trials but are authorized to conducted post-conviction proceedings in felony cases such as Noe’s.
Judge Burke found that none of Noe’s three claims for relief had any merit.
“Noe’s claims of prejudice are conclusory and do not demonstrate that the state courts’ evidentiary rulings were so prejudicial that he was denied due process and a fair trial,” she wrote in the report.
Judge Burke noted that Noe admitted that rebuttal testimony from his own expert witnesses might not have been directly relevant to the charges against him.
“… Even if the court were to conclude that the trial court incorrectly allowed Tripp to testify in the manner that he did and/or improperly denied admission of Noe’s proposed expert testimony, federal habeas relief would not be warranted because Noe has failed to demonstrate that the admission of that evidence was so prejudicial that it deprived him of due process and a fair trial,” her report stated.
The Ohio attorney general’s office, which has been handling the proceedings in federal court, had no comment on the judge’s recommendation, said Dan Tierney, a spokesman for the attorney general.
Mr. Kerger conceded his claim that Noe’s trial should have been moved out of Lucas County because of the barrage of “poisonous” pretrial publicity was perhaps not as strong a claim as the other two.
“It’s very difficult these days with the Internet,” he said. “Where would you go?”
The allegations against Noe came to light following a year-long investigation by The Blade — stories that were picked up and covered heavily by several other major newspapers.
Noe himself seemed to consider the publicity fatal to his case. He told the Columbus Dispatch in a 2010 interview from prison that media coverage, which he claimed was biased, before his trial made it impossible for him to be exonerated.
“When I walked into the courtroom that first day, the visitor’s light on the scoreboard lit up,” he told the newspaper. “I figured that I had no chance in the world of getting a fair trial.”
Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.