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United States v. Ausby

United States District Court, District of Columbia

December 20, 2019




         The defendant, John Milton Ausby, faces retrial on one count of felony murder, for the murder of Deborah Noel on December 14, 1971, after the defendant's 1972 conviction on the same charge was vacated pursuant to 28 U.S.C. § 2255. See United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019); Order (July 3, 2019), ECF No. 43. As retrial approaches, the parties now dispute whether the trial transcripts from the defendant's original trial in 1972 should be admitted as evidence. The government moves to admit the trial transcripts for twelve unavailable witnesses pursuant to Federal Rule of Evidence 804(b)(1). See Gov't's Mot. in Limine to Admit Prior Trial Testimony of Unavailable Witnesses and for the Court to Take Judicial Notice of Certain Records Related to the Prior Testimony (“Gov't's Mot.”), ECF No. 79. Conversely, the defendant seeks to exclude these and any other transcripts, arguing in four separate, overlapping motions that the transcripts are inadmissible under Federal Rules of Evidence 804, 403, and 702. See Def.'s Mot. to Dismiss the Indictment as a Cure to Lingering Prejudice Caused by Gov't Misconduct and, in the Alternative, to Exclude Prior Transcripts as Substantive Evidence (“Def.'s Prejudice Mot.”), ECF No. 42; Def.'s Mot. to Dismiss the Indictment or Exclude Transcripts for Violations of the Gov't's Duties Under Criminal Rule 16 and Brady v. Maryland (“Def.'s Brady Mot.”), ECF No. 75; Def.'s Mot. to Exclude Fingerprint Testimony Under Federal Rules of Evidence 702 and 403 (“Def.'s Fingerprints Mot.”), ECF No. 100; Def.'s Mot. to Exclude the Testimony of the Gov't's Proposed Expert Witness in Firearms Examination (“Def.'s Firearms Mot.”), ECF No. 101. For the reasons stated below, the government's motion to admit the trial transcripts is largely denied, and the defendant's motions are granted in part.

         I. BACKGROUND

         The full factual and procedural background for this case has been set out in prior decisions, see United States v. Ausby, 916 F.3d at 1090-92; United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2870232, at *1-3 (D.D.C. July 3, 2019); and United States v. Ausby, 275 F.Supp.3d 7, 8-24 (D.D.C. 2017), rev'd and remanded, 916 F.3d at 1095, and thus only a brief review of the facts directly related to the pending motions is provided here. The complex procedural history of the case is discussed first, followed by review of the original evidence at trial, the evidence available in 2019, and the trial transcripts at issue in the pending motions.

         A. Procedural History

         On December 14, 1971, Deborah Noel was raped and murdered in her apartment in Northwest Washington, D.C. In 1972, the defendant was tried and convicted by a jury of one count of felony murder and one count of rape while armed, for the rape and murder of Noel. Ausby, 916 F.3d at 1091. He was sentenced to life in prison for the felony murder conviction and 10 to 30 years, concurrently, for the rape while armed conviction. Id.; United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 2452988, at *1 (D.D.C. June 11, 2019). At a separate trial, in 1973, the defendant was also convicted of murdering two other women, Sharon Tapp and Sherry Frahm. For these additional convictions, the defendant received two 30-year sentences set to run concurrently with his sentence for the rape and murder of Noel. Ausby, 2019 WL 2452988, at *1. The defendant has been incarcerated for 47 years and, as of June 2019, remains on pre-trial detention pending retrial for the felony murder conviction as to Noel. Id.

         While the defendant was still incarcerated on the felony murder conviction, in 2015, following review of the defendant's case by the Department of Justice and the Federal Bureau of Investigation (“FBI”), the government concluded that “microscopic hair comparison analysis” used in the defendant's original trial “contained erroneous statements” and “exceeded the limits of science.” Def.'s Mot. to Vacate Conviction under 28 U.S.C. § 2255, Ex. B, Letter from Norman Wong to Vincent Cohen, Jr. (Sept. 11, 2015) (“Wong Ltr.”) at 1, 2, ECF No. 2-1. Eleven days later, on September 22, 2015, the government notified the defendant, see Def.'s Mot. to Vacate Conviction under 28 U.S.C. § 2255, Ex. A, Letter from Vincent H. Cohen, Jr. to Sandra Levick (Sept. 22, 2015) (“Cohen Ltr.”), ECF No. 2-1, and “waived any statute of limitations and procedural-default defenses in the event [the defendant] sought relief under 28 U.S.C. § 2255, ” Ausby, 916 F.3d at 1092.

         In 2016, the defendant filed a Motion to Vacate Conviction under 28 U.S.C. § 2255, arguing that “the government's knowing presentation of false and misleading expert hair examination testimony” violated the Due Process Clause of the Fifth Amendment and required vacatur of the defendant's conviction under the standard set out in Napue v. Illinois, 360 U.S. 264 (1959). Def.'s Mot. to Vacate Conviction under 28 U.S.C. § 2255 (“Def.'s Mot. to Vacate”) at 1, ECF No. 2. The defendant's § 2255 motion was denied after this Court concluded that the “overwhelming evidence against him” left no “reasonable likelihood” that the outcome would have been different without the false hair evidence. Ausby, 275 F.Supp.3d at 32 (internal quotation marks and citation omitted). Apart from the hair matching testimony, this evidence included: a fingerprint found in Noel's apartment, matched to a known fingerprint of the defendant by a government expert, id. at 16-17; testimony from a forensic firearms expert concluding that the bullet used to kill Noel was compatible with the gun seized from the defendant upon his arrest in New York City three days after the murder, id. at 17; testimony from a neighbor who said she saw the defendant on the third floor of Noel's apartment building, near Noel's apartment, on both December 9 and 10, 1971, several days before the murder, id. at 13- 14; and testimony from an importer and seller of scented oils, who said he sold to the defendant, on December 6, 1971, two vials of the same oil later found at the crime scene, id. at 13, and, further, that the defendant returned “[a]pproximately a week later” to purchase two more oil vials, because, as the defendant explained, he had “lost [his previous purchases] going through a window, ” id. (internal quotation marks omitted).

         The D.C. Circuit reversed the denial of the defendant's § 2255 motion, finding 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). Upon finding a Napue violation, the D.C. Circuit ruled that this Court “should have granted [the defendant's] § 2255 motion to vacate his conviction, ” id. at 1095, and “remanded for proceedings consistent with [its] opinion” to afford appropriate relief, id.

         Now, on remand, the government seeks to proceed with a new trial. See Hr'g Tr. (Apr. 12, 2019) at 3:14-15. Consequently, the parties were directed to file a joint proposed order to effectuate the D.C. Circuit's mandate. See Min. Order (June 7, 2019). The parties proposed vacatur of both the defendant's convictions for felony murder and rape while armed. See Jt. Filing: Proposed Order Vacating the Conviction, Att. 1 at 3, ECF No. 34-1. Upon consideration of the parties' proposal, the Court questioned sua sponte whether jurisdiction existed to vacate the rape while armed conviction, since the defendant had already completed his sentence on that conviction at the time he filed his § 2255 motion. See Min. Order (June 17, 2019). While conceding that the jurisdictional question under § 2255 was “not without complexity, ” see Jt. Submission Regarding Def.'s Conviction for Rape at ¶ 2, ECF No. 40, the parties agreed that the rape conviction should be vacated, id. at ¶ 1, and alternatively proposed vacatur through a writ of coram nobis, see Id. at ¶ 3; Def.'s Petition for Writ of Coram Nobis Vacating Conviction for Rape While Armed, ECF No. 41. After considering these additional filings, the Court vacated the defendant's felony murder conviction, but held that jurisdiction was lacking to vacate the rape while armed conviction under either 28 U.S.C. § 2255 or a writ of coram nobis, since the defendant had already served his sentence on that conviction and had failed to allege redressable, ongoing harm stemming from the rape conviction sufficient to meet the requirements of Article III standing. Ausby, 2019 WL 2870232, at *6, *8; see also United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 4737196, at *3-6 (D.D.C. Sept. 27, 2019) (denying defendant's Motion to Reconsider Denial of Vacatur of Rape Conviction, ECF No. 59). The defendant has since appealed this ruling. See Min. Order (Nov. 25, 2019) (granting certificate of appealability); Notice of Appeal, ECF No. 108.

         The government then filed a new, 1-count indictment charging the defendant with felony murder predicated on rape. See Gov't's Notice of Filing of Indictment (Retyped) (“Indictment (Retyped)”), ECF No. 48. The defendant subsequently moved to dismiss the indictment on double-jeopardy grounds, arguing that the Double Jeopardy Clause of the Fifth Amendment barred retrial for felony murder predicated on rape since the defendant's 1972 conviction for the lesser-included offense of rape while armed had not been overturned. See Def.'s Mot. to Dismiss the Indictment as a Bar to Successive Prosecution Under the Due Process and Double Jeopardy Clauses at 8-12, ECF No. 60. This motion was denied because the Double Jeopardy Clause does not bar retrial after the reversal of a conviction on appeal even when a related conviction for a lesser-included offense remains intact. See United States v. Ausby, No. CR 72-67 (BAH), 2019 WL 5102820, at *1-4 (D.D.C. Oct. 11, 2019). With the resolution of these legal questions about the scope of the charges to be retried, the parties have now turned to the evidence available and admissible at the retrial.

         B. Trial Evidence

         At the defendant's original trial, in 1972, the government presented a range of evidence linking the defendant to the crime. Ausby, 275 F.Supp.3d at 10-22. Aside from the forensic hair examiner, twenty-two witnesses testified for the government, including neighbors and employees in the building where Noel lived, the police officers who examined the crime scene and undertook forensic analysis of the evidence, and the medical examiner who performed the autopsy on Noel. Id. at 10, 10-19. In addition, the government relied on physical evidence, which included: the bullet used to kill Noel, a fingerprint found in her apartment, later matched to a known fingerprint of the defendant; vials of scented oil found in the apartment and similar vials from the same source in the possession of the defendant at the time of his arrest, as well as the testimony of the seller of those oil vials about the timing of those sales to the defendant both shortly before and after the murder; and a gun found in the defendant's possession at the time of his arrest, which a ballistics analyst determined could have been used to fire the bullet found at the crime scene. Id. at 8-9. The defense called no witnesses, and the defendant did not testify. Id. at 20.

         Forty-seven years later, much of this original trial evidence is no longer available. Of the twenty-two witnesses other than the forensic hair examiner originally presented by the government, nine are no longer alive, Gov't's Mem. Opp'n Def.'s Mot. Dismiss (“Gov't's Opp'n”) at 36-38, ECF No. 56, one is too ill to testify, id. at 37, and the whereabouts of two others are unknown, Gov't's Mot. at 1, n.1.[1] The memories of the remaining ten government witnesses, meanwhile, “have faded or are gone completely.” Gov't's Opp'n at 35. The government's fifty original trial exhibits, including all of the physical evidence in the case, have been lost or destroyed. Gov't's Opp'n at 4-6; Ausby, 275 F.Supp.3d at 9 (explaining that the government's case files, “which presumably included reports, grand jury transcripts, witness statements, photographs and trial exhibits as well as all physical evidence recovered in this case no longer exist[].” (internal quotation marks omitted)). Thus, the primary evidence that remains, and that the government intends to introduce, is the transcripts of the 1972 trial.[2] Without the trial transcripts, the government does not have sufficient evidence to proceed to trial. See Hr'g Tr. (June 7, 2019) at 16:2; Gov't's Submission Regarding Necessity of 1972 Trial Transcripts, ECF No. 93.

         The government moves to admit “the entirety of the transcripts” for twelve witnesses: three police officers (Donald Cherry, Otis Fickling, and Robert Laughery); three neighbors (Grace Thompson Pyles, Dorothy Rager, and Susan Shook); three expert witnesses (Cortland Cunningham, Alvin Hodge, and Joseph Mullinax); and two employees of the apartment complex where the Noel lived (George Elgy Crockett and Charles Wesley). Gov't's Mot. at 1. Conversely, the defendant moves to exclude these and any other trial transcripts that the government may seek to use to refresh the recollection of the remaining original trial witnesses called to testify. Def.'s Mem. Supp. Mot. Dismiss and Exclude (“Def.'s Prejudice Mem.”) at 41-44, ECF No. 42-1; Def.'s Brady Mot; Def.'s Fingerprints Mot.; Def.'s Firearms Mot.

         The final briefing on the five pending motions was submitted on December 13, 2019, see Gov't's Surreply to Def.'s Reply to Gov't's Opp. Mot. to Exclude Fingerprint Testimony (“Gov't's Fingerprints Surreply”), ECF No. 121, and the motions are now ripe for review.


         The Supreme Court has recognized that “[a]lthough the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see Id. at 40 n.2 (defining motion in limine “in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered”); see also Dietz v. Bouldin, 136 S.Ct. 1885, 1891 (2016) (noting inherent “power of a judge to hear a motion in limine”). Indeed, Rule 103(d) of the Federal Rules of Evidence mandates that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is not suggested to the jury by any means. Fed.R.Evid. 103(d). Pretrial motions in limine are an important mechanism to effectuate this goal of insulating the jury from inadmissible evidence and further the purpose of the rules, generally, to administer the proceedings “fairly . . . to the end of ascertaining the truth and securing a just determination.” Fed.R.Evid. 102; see Brodit v. Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003) (noting that motions in limine “allow parties to resolve evidentiary disputes ahead of trial, without first having to present potentially prejudicial evidence in front of a jury”); 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5042, at 965 (2d ed. 2005) (noting that “the motion in limine . . . still remains a favorite method of the writers for satisfying Rule 103(c)”). Moreover, “[a] pre-trial ruling, if possible, may generally be the better practice, for it permits counsel to make the necessary strategic determinations.” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980).


         The government contends that the prior testimony of twelve government witnesses who testified at the defendant's original trial in 1972 is admissible under Federal Rule of Evidence 804(b)(1) because each of the witnesses is either deceased or “unavailable” within the meaning of the rule, Gov't's Mot. at 1-2, and the defendant “had an opportunity to cross-examine” each witness during the original trial, id. at 2. The defendant counters that the prior trial testimony of these witnesses from the original trial should now be excluded for failure to meet the requirements of Rule 804(b)(1) and Rule 403, see Def.'s Prejudice Mem. at 30-44, and, as to expert testimony admitted during the original trial, Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Def.'s Fingerprints Mot.; Def.'s Firearms Mot. Thus, the parties' motions to admit and exclude the original trial transcripts turn on three evidentiary rules: Federal Rule of Evidence 804(b)(1), which governs the admissibility of prior testimony; Federal Rule of Evidence 403, which allows for the discretionary exclusion of unfairly prejudicial evidence; and Federal Rule of Evidence 702, which governs the admissibility of expert testimony. Each set of arguments will be examined in turn.

         A. Admissibility of Prior Trial Testimony Under Fed.R.Evid. 804(b)(1)

         The defendant argues that the trial transcripts are inadmissible under Federal Rule of Evidence 804(b)(1) for three reasons, each of which will be addressed separately. Def.'s Opp'n Gov't's Mot. (“Def.'s Opp'n”) at 1, 3-6, ECF No. 87; Def.'s Reply to Gov't's Opp'n Def.'s Mot. Dismiss (“Def.'s Reply”) at 13-19, ECF No. 63; Def.'s Prejudice Mem. at 30-41. Rule 804(b)(1) establishes an exception to the general rule against the admission of hearsay, which “prohibits admission of certain statements made by a declarant other than while testifying at trial.” United States v. Salerno, 505 U.S. 317, 320 (1992). In particular, Rule 804(b)(1) permits the admission of prior testimony given “at a trial, hearing, or lawful deposition” when two requirements are met. Fed.R.Evid. 804(b)(1)(A). First, the declarant must be “unavailable” to testify in person. See Fed. R. Evid. 804(a)(1)-(5). Second, the prior testimony must be “offered against a party who had … an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Fed.R.Evid. 804(b)(1)(B). Each requirement-unavailability, and an opportunity and similar motive for examination-is firm. See Salerno, 505 U.S. at 322 (“Nothing in the language of Rule 804(b)(1) suggests that a court may admit former testimony absent satisfaction of each of the Rule's elements.”); see also Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding, with respect to testimonial evidence, that “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”). To determine whether a party had the requisite opportunity and similar motive to develop given testimony, courts apply a “fact-specific inquiry.” United States v. Carson, 455 F.3d 336, 379 (D.C. Cir. 2006); Salerno, 505 U.S. at 326 (Blackmun, concurring) (stating that the inquiry is “inherently a factual inquiry, depending in part on the similarity of the underlying issues and on the context…”).

         Here, the defendant argues, first, that the government's witnesses, even those who have died, are not “unavailable” within the meaning of the rule. Second, the defendant maintains that he had neither an “opportunity” nor a “similar motive” to cross-examine the government's witnesses at the original trial. Third, the defendant contends that no precedent exists for admitting in bulk the prior testimony not just one or two but twelve witnesses in a single case, and that doing so runs contrary to the purpose of the rule. The defendant's 804(b)(1) arguments have force but are not ultimately persuasive.

         1. Unavailability

         For Rule 804(b) purposes, a witness “is considered unavailable only if the prosecution cannot procure her with good-faith, reasonable efforts.” United States v. Burden, 934 F.3d 675, 686 (D.C. Cir. 2019). The government bears the burden of demonstrating that this requirement is met. See Ohio v. Roberts, 448 U.S. 56, 74-75 (1980), abrogated in part on other grounds by Crawford, 541 U.S. 36; Burden, 934 F.3d at 686; United States v. Lynch, 499 F.2d 1011, 1022 (D.C. Cir. 1974). As a general matter, death establishes unavailability. See Burden, 934 F.3d at 686 (“‘The law does not require the doing of a futile act' such as producing a witness who has died…”) (quoting Roberts, 448 U.S. at 74)); Mattox v. United States, 156 U.S. 237, 242-43 (1895); United States v. Tirado-Tirado, 563 F.3d 117, 123 (5th Cir. 2009) (“if no possibility of procuring the witness exists (as, for example, the witness's intervening death), ‘good faith' demands nothing of the prosecution.”).

         Here, eleven of the witnesses whose transcripts the government seeks to admit have died, are believed to have died, or cannot be located. Gov't's Opp'n at 36-38.[3] One additional witness, the fingerprint analyst Joseph Mullinax, has a medical condition preventing him from traveling or testifying. Id. at 37. Nonetheless, the defendant argues that these witnesses are “not legally unavailable” even if they are “physically unavailable.” Def.'s Opp'n at 3. The crux of this claim is the defendant's assertion that the government “caused the witnesses' absence, ” Def.'s Reply at 15, by “fail[ing] to profess their wrongdoing for forty years, ” citing this as “the reason nearly half of the witnesses are unavailable, ” id. (emphasis in original); see also Def.'s Opp'n at 3. On this theory, the defendant maintains that even those witnesses who have died fail to qualify as unavailable within the meaning of Rule 804.

         To be sure, the requirement of unavailability is not met when a party “procure[s] or wrongfully cause[s] the declarant's unavailability as a witness.” Fed.R.Evid. 804(a). Thus, when the government affirmatively removes a witness from the jurisdiction-by, for example, deporting the witness-the witness may not be considered unavailable if the government fails to take reasonably sufficient measures to provide for the witness's return. See Burden, 934 F.3d at 689 (witness not “unavailable” when government “made no efforts before deporting [him] to secure his presence at trial”); Tirado-Tirado, 563 F.3d at 123-25 (same); United States v. Yida, 498 F.3d 945, 960-61 (9th Cir. 2007) (same). Thus, the “good-faith, reasonable efforts” required under the rule include a “duty to use reasonable efforts to prevent a witness from becoming absent in the first place.” Burden, 934 F.3d at 689; see also Yida, 493 F.3d at 956 (reasonableness inquiry should “include an assessment of the government's affirmative conduct which allowed [the witness] to be deported … in the first instance.”).

         Yet these cases focus on affirmative government conduct, like deportation, that renders a witness unavailable for trial and do not support the defendant's theory of unavailability for at least two reasons. First, the government took no affirmative steps to render unavailable the witnesses in this case, who died of natural causes. In Burden, as in Tirado-Tirado, death is contrasted explicitly with removal, and the deceased witness is presented as a clearly unavailable witness. See Burden, 934 F.3d at 686; Tirado-Tirado, 563 F.3d at 123.

         Second and more importantly, the record in this case does not show that the government “procured” or “wrongfully caused” the unavailability of its witnesses. Under the defense theory of unavailability, the government intentionally cloaked the flaws in the forensic hair testimony presented in the defendant's case, resulting in the almost fifty-year delay in the retrial. See Def.'s Opp'n at 3; Def.'s Reply at 15. Yet, the chronology of events does not show that the government engaged in purposeful delay in order to make its prior witnesses unavailable and trigger reliance under Rule 804(b)(1) on the transcripts of their prior testimony instead. In 2012, the FBI and Department of Justice began a “comprehensive review of microscopic hair comparison analysis testimony from more than 20, 000 cases litigated before the routine use of mitochondrial DNA.” Gov't's Omnibus Reply to Def.'s Opp'n to Gov't's Admission of Prior Trial Testimony and Mot. to Dismiss or Exclude Transcripts for Alleged Brady and Rule 16 Violations (“Gov't's Omnibus Reply”) at 10-11, ECF No. 98. The defendant's case was reviewed in June 2015, Wong Ltr. at 7, at which point the government determined that hair matching testimony presented against the defendant had “exceeded the limits of science, ” id. at 2. The United States Attorney's Office for the District of Columbia was notified on September 11, 2015, id. at 1, and the defendant's attorneys were notified eleven days later, on September 22, 2015, Cohen Ltr. at 1; see also Gov't's Omnibus Reply at 11.

         In notifying the defendant, the government conceded that the hair matching evidence “should be treated as false evidence, ” and that “knowledge of the falsity should be imputed to the prosecution.” Def.'s Mot. to Vacate, Ex. C, Letter from Peter J. Kadzik to Sen. Richard Blumenthal (Sept. 15, 2015) (“Kadzic Ltr.”) at 2, ECF No. 2-1; Cohen Ltr. (appending Kadzic Ltr.). The purpose of this admission was to “allow the parties to litigate the effect of the false evidence on the conviction in light of the remaining evidence in the case.” Kadzik Ltr. at 2. That is to say, the concession was designed to remove procedural barriers to new litigation under 28 U.S.C. § 2255, not to “affirmatively concede[] falsity or knowledge as a factual matter.” Gov't's Omnibus Reply at 12. This concession was made as part of a broader effort to investigate and respond to overstated hair matching testimony in the past. Thus, DOJ made “a policy decision to allow defendants to pursue judicial review of the potential materiality of the erroneous statements, ” not “an affirmative ‘concession' that the testimony of the forensic expert was, in fact, false or misleading and that the government knew or should have known so at the time of the defendant's trial.” Gov't's Omnibus Reply, Ex. A, Decl. Andrew D. Goldsmith (Nov. 12, 2019) at 3-4, ECF No. 98-1.

         Brushing over this fairly prompt timeline from determination to communication of that determination to the defendant, the defense theory of unavailability looks farther back in time to fault the government for failing to correct the forensic hair examiner's testimony decades earlier. This longer-range attempt to hold the government accountable for the unavailability of the witnesses due to the passage of over forty years is not supported by the record either. At the outset, the record does not indicate that the government's microscopic hair analyst, Special Agent Robert Neil, knew at the time of the original trial that his testimony was false or misleading. Neil testified that 28 of 49 hairs collected from the crime scene were “microscopically identical” or “microscopically similar” to the defendant's known hair samples. Trial Tr. (Aug. 22, 1972) at 414-23. On cross examination, however, Neil admitted that “microscopic hair comparisons do not constitute a basis of positive personal identification.” Trial Tr. (Aug. 22, 1972) at 450. He further clarified that “the questioned hairs either originated from the person represented by the known sample or from some other person of the same race whose head hairs or pubic hairs, whichever the case may be, exhibit the same identical microscopic characteristics.” Id. at 450-51. In other words, the record does not indicate that Neil knowingly concealed the limits of his analysis as he understood them, or that he falsely led the jury to believe that the hairs found at the crime scene positively matched those of the defendant to the exclusion of all others.

         Thus, as a factual matter, the record does not support the contention that the government purposefully delayed revealing the evidence in the defendant's case, or that the government has failed to demonstrate “good-faith, reasonable efforts” to procure its witnesses for trial. Accordingly, the witnesses are “unavailable” within the meaning of Rule 804.

         2. Opportunity and Similar Motive

         The defendant further contends that the defense did not have an “opportunity and similar motive” to develop the government's witness testimony at the original trial. See Fed. R. Evid. 804(b)(1). In evaluating “opportunity, ” the proper focus is whether the party's ability to examine the testimony in question was impeded or otherwise limited at the prior proceeding. As the D.C. Circuit explained with regard to the Confrontation Clause in United States v. Wilson, 605 F.3d 985, 1004 (D.C. Cir. 2010), “‘the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.'” (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)).

         Focusing in particular on the government's expert witnesses, the defendant first argues that he lacked an “opportunity” to cross-examine the now unavailable witnesses because at the time of the original trial, “relevant information, particular technical standards, and widespread availability of independent testing did not yet exist.” Def.'s Prejudice Mem. at 31. Put another way, the defendant believes his opportunity to cross-examine would be more fulsome with today's forensic and scientific knowledge than was possible in 1972. He may be correct, but that is not what Rule 804(b)(1) requires. The issue is not whether defense counsel might have advanced an additional line of questioning had the trial occurred later in time, but rather whether the trial court at the time prevented defense counsel from cross-examining the witnesses. Thus, in Ross v. Dist. Att'y of the County of Allegheny, 672 F.3d 198, 208 (3d Cir. 2012), the Third Circuit found no violation of the Confrontation Clause when a “failure to cross-examine” could not be “attributed to any decision by the court, or statutory limitation on the scope or nature of … cross-examination.” Similarly, in United States v. Watson, the Eighth Circuit rejected a Confrontation Clause challenge, and found that a defendant did have an “opportunity” to cross-examine, since “the trial court did not limit the scope or nature of defense counsel's cross-examination in any way.” 650 F.3d 1084, 1088 (8th Cir. 2011) (internal quotation marks and citation omitted). The fact that defense counsel chose not to cross-examine multiple witnesses during the defendant's original trial does not mean that the Court limited counsel's “opportunity” to do so. As the advisory notes to Rule 804 state, “no unfairness is apparent in requiring [a party] to accept his own prior conduct of cross-examination or decision not to cross-examine.” Fed.R.Evid. 804, Advisory Committee Notes, 1972 Proposed Rules, Note to Subdivision (b); see also United States v. Pizarro, 717 F.2d 336, 349 (7th Cir. 1983) (quoting same).[4]

         Second, the defendant argues that he lacked a “similar motive” during the original trial because prior defense counsel pursued a relatively narrow defense theory, while current counsel plans to pursue a broader trial strategy. Def.'s Prejudice Mem. at 39; Def.'s Reply at 17. According to the defendant, prior defense counsel chose not to contest government evidence suggesting that the defendant had been in the building and even in the Noel's apartment prior to the murder, but proffered a defense theory that the defendant had not been present on the day of the crime. See Def.'s Prejudice Mem. at 39-40. Current defense counsel, by contrast, will develop a broader defense theory in two ways. First, current counsel intends to challenge the scientific validity of the government's expert testimony and to question the reliability of the eyewitness testimony used to establish the defendant's presence in the building prior to the crime. See id. at 31-37; Def.'s Reply at 18-25; Def.'s Opp'n at 4-6. Second, the defendant intends to introduce new evidence regarding a possible third-party perpetrator. Def.'s Prejudice Mem. at 3-10; Def.'s Reply at 17; Def.'s Brady Mot. In this sense, counsel “will highlight different issues at trial and will be on a different side of issues previously presented.” Def.'s Reply at 17.

         This argument also misinterprets the rule. Both parties rely on United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993) (en banc), for the proposition that similarity of motive turns “not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue.” 8 F.3d at 912. Yet in DiNapoli, the Second Circuit explained, “[w]here both proceedings are trials and the same matter is seriously disputed at both trials, it will normally be the case that the side opposing the version of a witness at the first trial had a motive to develop that witness's testimony similar to the motive at the second trial.” Id. That is exactly the case here, where the defendant faces the same charge on retrial as he did at the original trial.

         Moreover, unlike DiNapoli and other cases testing the boundaries of the “similar motive” requirement, this case does not involve the government's use of prior grand-jury testimony of an unavailable witness at a criminal trial. See Id. at 913; Carson, 455 F.3d at 376; United States v. Miller, 904 F.2d 65, 66 (D.C. Cir. 1990). Instead, here the government seeks to admit prior testimony subject to cross-examination at a prior criminal trial, where the defendant had a “substantially similar interest, ” indeed of “substantially similar intensity, ” to disprove the government's case against him. DiNapoli, 8 F.3d at 912, 914. In this sense, the “underlying issues” on retrial are the same as they were at trial. See Salerno, 505 U.S. at 326 (Blackmun concurring).

         The D.C. Circuit has appraised similarity of motive in terms of the position and ultimate interests of the parties, not, as the defendant urges, in terms of competing trial strategies. In Carson, for example, the Circuit affirmed a decision not to admit prior grand-jury testimony under 804(b)(1) after finding that the “purpose” of examination at the grand-jury in question was different from that at trial. See Carson, 455 F.3d at 379. The key point for present purposes, however, is that the Circuit's analysis interpreted motive from a wide angle, at a broad level of generality: the “purpose” of the grand-jury proceeding was “to investigate a crime and identify possible criminals, ” while the issue at trial was simply “whether the appellants were involved in the triple murders.” Id. In Miller, which also concerned the admissibility of prior grand-jury testimony under 804(b)(1), the Circuit similarly framed the “issue” at trial broadly, as “the guilt or innocence” of the defendants. Miller, 904 F.2d at 68.

         The Ninth Circuit's “fundamental objectives” test, which the defendant also cites in support of his position, see Def.'s Prejudice Mem. at 39, similarly focuses on ultimate questions like guilt or innocence, rather than particular defense theories or trial strategies. In United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009), the Ninth Circuit “agree[d] with the D.C. Circuit's elaboration of the ‘similar motive' test, ” and found that that the government's “fundamental objective” in questioning a grand-jury witness was to develop evidentiary support for its theory that the witness had conspired with the defendant in the case to commit extortion. This broad objective, the Circuit then concluded, was “the same motive [the government] possessed at trial.” Id; see also United States v. Duenas, 691 F.3d 1070, 1090 (9th Cir. 2012) (finding that motive at suppression hearing differed from motive at trial, where “[t]he issue … was whether the evidence proved [the witness's] guilt beyond a reasonable doubt, not the circumstances of his confession.”).

         Applying these standards, the defendant undoubtedly had a similar motive to cross-examine the government's witnesses during the original trial as now. In both circumstances, the defendant's ultimate interest and “fundamental objective” was to contest the government's evidence as much as possible, so as to disprove the felony-murder charge against him. If we define the “issue, ” as in Duenas, as “whether the evidence proved … guilt beyond a reasonable doubt, ” 691 F.3d at 1090, the issue at stake in 1972 is the same at the retrial. Approaching the similarity of motive analysis as the D.C. Circuit did in Carson and Miller, the requirement is clearly met. Even though defense counsel intends to present new arguments and evidence, the parties' position and ultimate interests at trial remain the same: to prove or disprove the guilt of the defendant.

         3.Bulk Evidence

         The defendant's third set of arguments, concerning the use of Rule 804(b)(1) to admit prior testimony in bulk, has greater force. According to the defendant, the unprecedented scale of the government's request to admit in full the prior testimony of twelve witnesses must be considered in determining whether to apply the rule. See Def.'s Prejudice Mem. at 30; Def.'s Reply at 13-15. Admitting so much prior testimony, the defendant argues, would “freez[e]” the new trial, Def.'s Reply at 14, leaving the defendant with a “trial by transcript” and a mere “replay of 1972, ” id. at 9.

         Two factors bolster the seriousness of these concerns. First, as the defendant points out and the government concedes, in addition to the trial transcripts of the twelve unavailable witnesses, the government will rely on transcripts of prior trial testimony to refresh the recollection of many, possibly all, of the ten original witnesses who are available to testify at trial. See Def.'s Reply at 13; Gov't's Opp'n at 35 (“Many of the live witnesses' memories have faded or are gone completely, but their memories may be refreshed, or they may be impeached with their prior transcripts.”). The government concedes that two key live witnesses in particular, Dr. James Luke, the medical examiner who performed the autopsy of Noel's body, and Richard Ecroyd, who found Noel on the night of the murder, have little memory of the events in question. See Def.'s Reply, Ex. 2, Letter from Sharon Donovan to Eugene Ohm, Adam Thompson (June 13, 2019) at 2, ECF No. 63-1 (discovery letter stating that Luke “has no independent memory of the case” and that Ecroyd “is nearly 82 years old and may be experiencing the onset of a degenerative medical condition”). In sum, the government will rely heavily, if almost entirely, on twelve witness trial transcripts under 804(b)(1), and on up to ten witness trial transcripts to refresh the recollection of live witnesses under Rule 803(5). See Fed. R. Evid. 803(5) (providing, as an exception to the hearsay rule, that recorded recollections can be “read into evidence”).[5]

         Second, much of the key evidence in the case-including fingerprint and firearms analysis, identifications of the defendant, and the police investigation at the crime scene-comes from now unavailable witnesses. See Gov't's Mot., Ex. A, B, C, D, G, H, I, J, ECF Nos. 79-1- 79-8. The government cites no precedent, nor does such precedent exist, for admitting, under Rule 804(b)(1), the prior testimony not of one or two but rather of twelve witnesses in a single case. See Def.'s Reply at 13-14; Gov't's Opp'n at 43-44 (citing cases in which the prior testimony of multiple, but of no more than three, unavailable witnesses was admitted under Rule 804(b)(1)).

         Unsurprisingly, Rule 804(b)(1) has not previously been used to admit, in bulk, the prior testimony of twelve witnesses; after all, the rule was designed as an exception to a broader principle prohibiting the admission of hearsay. See Salerno, 505 U.S. at 318 (describing Rule 804(b)(1) as “an exception to the hearsay rule”). That broader principle, codified in Federal Rules of Evidence 801(c) and 802, “prohibits admission of certain statements made by a declarant other than while testifying at trial.” Id. at 320. The government's motion treats 804(b)(1) not as an exception but rather as the primary vehicle for the admission of key evidence to prove the criminal charge against the defendant. While the rule contains no express limit for the number of times or the scope of the proffered evidence for which it can be invoked in the course of a single proceeding, doing so to the extent proposed here arguably runs contrary to the purpose of the rule, raising troubling fairness concerns in the process. The defendant is correct that he is entitled to a new trial, not a replay ...

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