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United States v. Ausby

United States District Court, District of Columbia

June 11, 2019




         Having 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).[1]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.

         Based 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 curiam))).

         I. BACKGROUND

         This 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.

         With 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.

         Citing 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.

         The 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.

         Upon 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.


         The 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).

         In 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 ...

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