United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
A. HOWELL CHIEF JUDGE
been convicted of the murder of two women, the defendant,
John Milton Ausby, now faces re-trial for the murder of a
third woman, Deborah Noel, after the D.C. Circuit directed
vacatur of his conviction. See United States v.
Ausby, 916 F.3d 1089, 1095 (D.C. Cir.
2019).The murders of these three women occurred
during a three-month period in 1971 in “the same
neighborhood” within Northwest, Washington, D.C. and
led to the defendant's convictions, after jury trials, of
all three murders in 1972 and 1973. See
Gov't's Opp'n at 1, 16, ECF No. 28. Now, after
serving forty-seven years in prison for these three murders,
the defendant seeks to be released pending re-trial for the
felony murder of Ms. Noel. See Def.'s Mot. for
Pretrial Release, ECF No. 25; Def.'s Supplemental Mot.
for Pretrial Release (“Def.'s Suppl. Mot.”),
ECF No. 27; Def.'s Reply, ECF No. 29.
on the parties' briefing and evidence proffered at a
hearing on June 7, 2019, the defendant's Motion for
Pretrial Release was denied. See Min. Entry (June 7,
2019). This Memorandum Opinion and Order sets out the
findings and reasons for that denial. See 18 U.S.C.
§ 3142(i)(1) (requiring that a detention order
“include written findings of fact and a written
statement of the reasons for the detention”); see
also United States v. Nwokoro, 651 F.3d 108, 109 (D.C.
Cir. 2011) (per curiam) (noting that the Bail Reform Act
requires pretrial detention order be supported by “a
clear and legally sufficient basis for the court's
determination” in written findings of fact and a
written statement of the reasons for the detention or in
“the transcription of a detention hearing”
(internal quotation marks omitted) (quoting United States
v. Peralta, 849 F.2d 625, 626 (D.C. Cir. 1988) (per
case has a long history, dating back to 1972, and thus, a
brief review of the factual and procedural history is
necessary context for resolution of the instant motion. The
defendant was originally tried and convicted by a jury of the
rape and murder of Ms. Noel in 1972, and then sentenced to
life in prison on the felony murder conviction and a
concurrent sentence of 10 to 30 years for rape while armed.
Ausby, 916 F.3d at 1091. The defendant was also
convicted at a separate trial of murdering two other women,
Sharon Tapp and Sherry Frahm, whom the defendant shot and
killed in October 1971, just a few months before the charged
murder of Ms. Noel on December 14, 1971. See
Gov't's Opp'n at 1, 16. For the murders of Mses.
Tapp and Frahm, the defendant was sentenced on January 15,
1973 to two concurrent terms of 10 to 30 years'
imprisonment, to run concurrently with the sentences for the
rape and murder of Ms. Noel. Id. The prison terms
for the defendant's murders of Mses. Tapp and Frahm have
been completed. See Def.'s Suppl. Mot. at 8 n.8.
respect to the defendant's convictions for the rape and
murder of Ms. Noel, the evidence submitted at the
defendant's trial included testimony from a forensic
expert that hairs found at the murder scene were
microscopically identical to the defendant's hair.
Ausby, 916 F.3d at 1090. In 2015, however, the
government informed the defendant that the expert hair
testimony presented at his trial was false and misleading,
and that the government knew or should have known this at the
time of the trial. United States v. Ausby, 275
F.Supp.3d 7, 9 (D.D.C. 2017), rev'd on other
grounds, 916 F.3d 1089 (D.C. Cir. 2019). Based on this
concession, the defendant filed a habeas petition, pursuant
to 28 U.S.C. § 2255, forty-four years after he was
sentenced, challenging his conviction on the ground that the
government's knowing use of the false hair testimony
materially affected the outcome of his trial, in violation of
the Fifth Amendment and Napue v. Illinois, 360 U.S.
264 (1959). See id.
the testimony of the twenty-three witnesses, other than the
forensic expert's hair testimony, presented by the
government over the course of the four day trial,
id. at 10, and that the “prosecution only
briefly discussed the hair evidence in its opening and
closing arguments, devoting significantly more time” to
other evidence connecting the defendant to Ms. Noel's
rape and murder, id. at 30, this Court found
“overwhelming evidence against him, even absent the
false hair matching testimony, ” id. at 32,
and denied the defendant's habeas petition, id.
The evidence presented against the defendant included, for
instance, “oil vials and [a] fingerprint” at the
crime scene that “were conclusively linked to the
defendant, and the testimony of two expert witnesses
establish[ing] that the defendant's loaded gun fit the
profile of the likely murder weapon.” Id. at
8-9. Plus, “[t]hree witnesses saw the defendant in the
apartment building in the week preceding the murder, one of
whom saw the defendant loitering outside the victim's
apartment on two separate evenings.” Id. at 9.
Moreover, the defendant admitted to the seller of the oil
vials the day after the murder that he had lost some vials
“going through a window, ” and three oil vials
were found on the ground below the victim's window, tying
the defendant to the crime scene. Id. at 13, 31, 32.
D.C. Circuit saw the case differently, however, concluding
that the forensic expert's false hair-matching testimony
“could . . . have affected the judgment of the
jury.” Ausby, 916 F.3d at 1090 (alteration in
original) (internal quotation marks omitted) (quoting
Napue, 360 U.S. at 271). After acknowledging that
the forensic hair expert's testimony was “neither
the sole piece of evidence on which the prosecution hung its
case nor redundant or irrelevant, ” the D.C. Circuit
concluded this forensic evidence fell “on the material
side of the spectrum.” Id. at 1094- 95.
Accordingly, the D.C. Circuit ruled that this Court
“should have granted” the defendant's
“§ 2255 motion to vacate his conviction, ”
and “remanded for proceedings consistent with”
its opinion. Id. at 1095.
remand, the government announced its intention to retry the
defendant for the murder of Ms. Noel, see Min. Entry
(Apr. 12, 2019), and a trial date is set for October 7, 2019,
id. The government opposes the defendant's
release pending re-trial, arguing that the defendant is a
danger to the community. Gov't's Opp'n at 10.
Bail Reform Act of 1984, 18 U.S.C. § 3141 et
seq., provides that “a person awaiting trial on a
federal offense may either be released on personal
recognizance or bond, conditionally released, or detained,
” and “establishes procedures for each form of
release, as well as for temporary and pretrial
detention.” United States v. Singleton, 182
F.3d 7, 9 (D.C. Cir. 1999) (citing 18 U.S.C. § 3142(a)).
Under 18 U.S.C. § 3142(e), a judge “shall
order” the “detention of the [defendant] before
trial, ” if, after a detention hearing held under
§ 3142(f), and consideration of “the available
information concerning” enumerated factors,
id. §3142(g), “the judicial officer finds
that no condition or combination of conditions will
reasonably assure the appearance of the person as required
and the safety of any other person and the community, ”
id. § 3142(e)(1). “[T]he Act requires
that detention be supported by ‘clear and convincing
evidence' when the justification is the safety of the
community.” United States v. Simpkins, 826
F.2d 94, 96 (D.C. Cir. 1987). Even if the defendant does not
pose a flight risk, danger to the community alone is
sufficient reason to order pretrial detention. United
States v. Salerno, 481 U.S. 739, 755 (1987).
assessing whether pretrial detention is warranted, the Court
must consider four factors:
(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence, . . .
or involves a . . . firearm . . .;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including
. . . the person's character, physical and mental
condition, family ties, employment, financial resources,
length of residence in the community, community ties, past
conduct, history relating to drug or alcohol abuse, criminal
history, and record concerning appearance at court
proceedings; and . . .
(4) the nature and seriousness of the danger to any person or
the community that would be posed by the ...