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United States v. Ausby

United States District Court, District of Columbia

August 7, 2019

UNITED STATES OF AMERICA
v.
JOHN MILTON AUSBY, Defendant.

          MEMORANDUM OPINION AND ORDER

          BERYL A. HOWELL CHIEF JUDGE

         The defendant, John Milton Ausby, was originally tried and convicted by a jury in 1972, on one count of Felony Murder and one count of Rape while Armed, for the rape and murder of Ms. Deborah Noel. United States v. Ausby, 916 F.3d 1089, 1091 (D.C. Cir. 2019). Forty-seven years later, in 2019, the defendant successfully moved under 28 U.S.C. § 2255 to vacate his Felony Murder conviction, on the ground that the government's knowing use of false hair-matching testimony materially affected the outcome of his trial, in violation of Napue v. Illinois, 360 U.S. 264 (1959). See Id. at 1092, 1095. As a result, the defendant has been granted a new trial on the Felony Murder count, see United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2870232, at *8 (D.D.C. July 3, 2019), charging that the defendant “did kill Deborah Noel while perpetrating and Attempting to Perpetrate the Crime of Rape, ” Indictment (Retyped) (July 17, 2019), ECF No. 48.

         Since the grant of the defendant's § 2255 motion, “the government has worked to locate case-related paperwork, physical evidence, trial witnesses, and additional individuals with information related to Ms. Noel's murder” for the defendant's new trial. Gov't's Reply at 2, ECF No. 61. Recently, in July 2019, “the government learned that the” D.C. Office of the Chief Medical Examiner (“OCME”) still “has slides made from swabs” of Ms. Noel's vaginal and rectal areas during her autopsy in 1971. Gov't's Mot. for Order Requiring Def. to Submit to Saliva Samples/Buccal Swab & for Permission to Consume DNA Evidence (“Gov't's Mot.”) at 3, ECF No. 50; Gov't's Reply at 2, 3.

         At the defendant's prior trial, Dr. James L. Luke, the “Chief Medical Examiner of the District of Columbia, ” testified about these slides, Trial Tr. (Aug. 23, 1972) at 579, which were prepared “at a time that predates the use of DNA for” identification purposes, Gov't's Reply, Ex. D, Aff. of Bruce Budowle (“Budowle Aff.”) ¶ 2, ECF No. 61-4. There, Dr. Luke explained that when performing Ms. Noel's autopsy, he took “swabs” from Ms. Noel's “mouth, rectum and vagina.” Trial Tr. (Aug. 23, 1972) at 583, 585, 589-90. Then, “the swabs were smeared under glass slides for microscopic examination performed by” Dr. Luke, who observed that “[t]he swabs from the mouth and rectum were negative” for sperm, but the “smear of the swab from the vagina showed large numbers of intact sperm.” Id. at 590.

         After finding “two rectal and two vaginal slides” from Ms. Noel's autopsy on July 22, 2019, Dr. Roger Mitchell, Jr., Chief Medical Examiner for the District of Columbia, “looked at the swabs” and, consistent with Dr. Luke's testimony, “described the sperm on the vaginal slides as ‘plentiful.'” Gov't's Reply at 2, 3, 8. Hence, the government now seeks “to conduct DNA testing on” the OCME slides to compare any “interpretable DNA profile” obtained from them against the defendant's DNA sample. Gov't's Mot. at 3.

         To that end, pending before the Court is the government's Motion for Order Requiring Defendant to Submit to Saliva Samples/Buccal Swab & for Permission to Consume DNA Evidence, ECF No. 50. Specifically, the government seeks (1) an “order” that “the defendant [ ] submit to the taking of a buccal swab” DNA sample, Gov't's Mot. at 1, and (2) permission “to sample and consume the entirety of the biological material on one of the vaginal slides, ” and to “consume biological material from both” rectal slides, Gov't's Reply at 13. The defendant opposes both requests. For the reasons discussed below, the government's motion is granted. Each of the government's requests is discussed in turn.

         I. BUCCAL SWAB

         The government may obtain a buccal swab DNA sample from the defendant. In Maryland v. King, the Supreme Court upheld the collection of an arrestee's DNA sample using a “buccal swab, ” pursuant to a Maryland law that permitted “Maryland law enforcement authorities to collect DNA samples from” arrestees charged with certain “serious crimes” for “DNA identification” as part of “a routine booking procedure.” 569 U.S. 435, 439, 443, 465 (2013). There, the Supreme Court reasoned that the “substantial” government interest in the “need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody, ” id. at 449, 461, outweighed the privacy interests of a defendant who had “been arrested on probable cause for a dangerous offense that may require detention before trial, ” id. at 463, since an arrestee's “expectations of privacy and freedom from police scrutiny are reduced, ” id., and “the intrusion of a cheek swab to obtain a DNA sample is a minimal one, ” id. at 461, that is “quick and painless, ” id. at 444, and poses “no threat to the [defendant's] health or safety, ” id. (internal quotation marks and citation omitted).

         Here, the government's “interest is both stronger and more specific” than was the governmental interest in King. United States v. Haight, No. CR 15-88 (JEB), 2015 WL 7985008, at *1 (D.D.C. Dec. 3, 2015). Unlike in King, the defendant “has been indicted at the time collection is sought, not just arrested, ” id., and his pretrial detention has been ordered, see United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2452988, at *4 (D.D.C. June 11, 2019), “thereby demonstrating a greater likelihood of his involvement in the offense, ” Haight, 2015 WL 7985008, at *1; see also United States v. Proctor, 230 F.Supp.3d 1, 2-3 (D.D.C. 2017) (allowing buccal swab DNA samples where “[d]efendants [were] not mere arrestees, ” but rather had “been indicted by a grand jury and whose conduct a neutral magistrate ha[d] found warrant[ed] pre-trial detention”). Indeed, as previously explained when the defendant's pretrial detention was ordered, “the government's evidence” against the defendant, “at this point, is strong.” Ausby, 2019 WL 2452988, at *4. Namely, the government, which relied on “testimony from transcripts of the defendant's prior trial” but proceeded by “way of proffer, ” provided evidence that “(1) links the defendant's gun to the murder weapon; (2) connects scented oil vials found at the crime scene to the defendant; (3) matches a fingerprint from the crime scene to the defendant; and (4) indicates that the defendant engaged in premeditated activity based on several eyewitnesses identifying the defendant as being present outside Ms. Noel's apartment in the days prior to her murder.” Id.

         Additionally, “[w]hile in King, the DNA collected in a subsequent arrest” for a general identification database “helped tie the defendant to a prior rape, the collection here is not intended for a general database, but for specific comparison to actual evidence in this case.” Haight, 2015 WL 7985008, at *1. “[I]nstead of merely seeking to identify” the defendant, “the government hopes to link” him to Ms. Noel's murder, by “matching his DNA to the genetic material it may locate on the” OCME slides. Id.; see also Proctor, 230 F.Supp.3d at 2 (permitting buccal swab DNA sample where “the collection here is not intended for a general database, but for specific comparison to actual evidence in this case” (internal quotation marks omitted) (quoting Haight, 2015 WL 7985008, at *1)). Thus, the government's interest in comparing the defendant's DNA to any DNA obtained from the OCME slides outweighs “‘the minor intrusion' that a buccal swab necessitates.” Proctor, 230 F.Supp.3d at 2 (quoting King, 569 U.S. at 465).

         Although the defendant asserts that the government has not shown “that the vaginal and rectal slides contain DNA of a sufficient quality to generate a profile suitable for comparison, ” Def.'s Opp'n at 8, the Fourth Amendment does not require the government in this case to “make any preliminary showing that there is analyzable material on the” OCME slides “in order to justify a request to search [the defendant] by buccal swab, ” Proctor, 230 F.Supp.3d at 2. The “likelihood of [the defendant's] involvement in” the murder and rape of Ms. Noel, id. (internal quotation marks omitted) (quoting Haight, 2015 WL 7985008, at *1), and the “four slides created during the autopsy of Ms. Noel, two of which contain sperm, ” Gov't's Reply at 7, easily establishes that obtaining the requested buccal swab from the defendant is a reasonable step since this may yield possible evidence that the defendant murdered Ms. Noel while raping her, see, e.g., United States v. Wilhere, 89 F.Supp.3d 915, 919 (E.D. Ky. 2015) (finding “probable cause” for “DNA buccal swab” because “Defendant is suspected of murder and . . . there might be DNA on the victim's body that could be compared to Defendant's DNA” (emphasis added)); United States v. Cesario, No. 14-CR-92 PJS, 2014 WL 3577436, at *10 (D. Minn. July 18, 2014) (concluding “buccal swab warrant was supported by probable cause because there was a fair probability that the DNA evidence sought would yield evidence of a crime, ” since defendant's DNA sample was “necessary to compare with ‘any DNA that may' be recovered from” handgun (emphasis added)).[1]

         Accordingly, “the Fourth Amendment is not offended by allowing the government to retrieve a” buccal swab DNA sample from the defendant. Proctor, 230 F.Supp.3d at 2.

         II. CONSUMPTION OF BIOLOGICAL MATERIAL ON OCME SLIDES

         Next, the government proposes to “consume, ” i.e., “sample, ” the “biological material” on the OCME slides to assess the quality and quantity of DNA on the slides, and to obtain an “interpretable DNA profile (other than the decedent).” Gov't's Reply at 13, 14, 19. Since these slides are “approaching 50 years of age, ” and “the conditions” under which “they have been stored are undetermined, ” the “quality” and ...


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