United States v. Ausby, No. 17-3077

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Per Curiam
• Citation: 916 F.3d 1089
• Docket Number: No. 17-3077
• Decision Date: 01 March 2019
• Parties: UNITED STATES of America, Appellee v. John Milton AUSBY, Appellant

916 F.3d 1089

UNITED STATES of America, Appellee
v.
John Milton AUSBY, Appellant

No. 17-3077

United States Court of Appeals, District of Columbia Circuit.

Argued November 5, 2018
Decided March 1, 2019

Adam G. Thompson, Washington, DC. argued the cause for the appellant. Jenna M. Cobb and Jonathan W. Anderson were with him on brief.

Jessie K. Liu, United States Attorney, argued the cause for the appellee. Elizabeth Trosman, John P. Mannarino and Pamela S. Satterfield, Assistant United States Attorneys, were with her on brief.

Before: Henderson, Srinivasan and Millett, Circuit Judges.

Per Curiam:

In 1972, the government charged John Milton Ausby with the murder and rape of Deborah Noel. The prosecution introduced several pieces of evidence at trial connecting Ausby to the crime, including the testimony of a forensic expert who claimed that hairs found at the crime scene were microscopically identical to Ausby's hair. The jury subsequently convicted Ausby of the rape and murder and Ausby received a life sentence.

The government now concedes that the testimony of the forensic expert was false and misleading and that the government knew or should have known so at the time of Ausby's trial. Ausby moved to vacate his conviction under 28 U.S.C. § 2255 and the holding in Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The district court denied Ausby's motion because it determined that the forensic expert's testimony was not material to the jury's guilty verdict. United States v. Ausby , 275 F.Supp.3d 7, 32 (D.D.C. 2017). We, however, conclude that Ausby has demonstrated a "reasonable likelihood" that the forensic expert's admittedly false testimony "could ... have affected the judgment of the jury." Napue , 360 U.S. at 271, 79 S.Ct. 1173. We therefore reverse.

I. BACKGROUND

Deborah Noel returned to her apartment on December 14 for the first time in two weeks. Shortly after her arrival, she was raped and murdered in her bedroom. A grand jury indicted Ausby on six counts related to Noel's death: felony murder,

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premeditated murder, rape while armed, rape, burglary while armed and burglary.

At trial, the prosecution introduced substantial evidence connecting Ausby to Noel's rape and murder. First, the prosecution called to testify two individuals who encountered a black male in garb resembling Ausby's in Noel's apartment building in the days leading up to her murder. One of the two identified Ausby himself from a photo array and in the courtroom during trial. Second, the prosecution presented evidence that Ausby had left a thumbprint inside Noel's apartment sometime within ten days of the murder. Third, the prosecution presented evidence that vials of scented oil left inside Noel's apartment and beneath her windows belonged to Ausby. Fourth, the prosecution presented evidence that the bullet that killed Noel potentially, but not definitively, matched the handgun Ausby was carrying when he was arrested.

At issue here, the government also elicited testimony from FBI Special Agent Robert Neill, a microscopic hair analysis specialist, regarding hair found at the scene of the crime. According to Agent Neill's testimony, microscopic analysis of hair involved categorizing hair on the basis of between fifteen and twenty-five characteristics "which tend to be more or less unique to a particular individual." To compare two hairs, Agent Neill placed them side-by-side under a special microscope and then compared them using the hairs' observable characteristics.

Agent Neill testified that hairs taken from inside Noel's apartment and on her body were "microscopically identical" to Ausby's hairs. Although Agent Neill acknowledged that "microscopic hair comparisons do not constitute a basis of positive personal identification," he opined that "the questioned hairs ... either originated from the head of Mr. Ausby or from some other person ... whose head hairs or pubic hairs are microscopically identical."

During its closing statement, the prosecution reviewed the testimony from those who encountered Ausby in the apartment building and the evidence connecting him to the oils found in Noel's bedroom and under her windows. The prosecutor then asked the jury: "Now, could I not have rested my case right there? Could you not have said, Why are you boring me with anything further in this case? Is that not enough to convict this defendant?" But continuing on, the prosecutor revisited Agent Neill's hair-comparison testimony as well as the evidence regarding Ausby's thumbprint and the potential match between Ausby's handgun and the bullet that killed Noel.

In his closing, defense counsel admitted that Ausby had entered Noel's apartment but argued that he did so during Noel's two-week absence, not on the day of her rape and murder. He challenged the reliability of Agent Neill's purported identification of Ausby's hairs on Noel's body, particularly given that Agent Neill had conceded that microscopic hair comparison analysis cannot produce a positive identification. In response, the prosecutor asserted during his rebuttal that microscopic hair comparison analysis "is not a positive means of identification but it amounts to a positive means here."

The jury convicted Ausby of felony murder and rape while armed. The court then sentenced Ausby to life imprisonment for Noel's murder and ten to thirty years' imprisonment for her rape. This Court affirmed Ausby's conviction and sentence. United States v. Ausby , 489 F.2d 1273 (Table) (D.C. Cir. 1974) (per curiam). Ausby has fully served his rape sentence, leaving his life sentence for murder.

In 2012, the FBI and the Department of Justice began reviewing cases in which the

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government had introduced testimony regarding microscopic hair comparison analysis to assess whether the government's forensic expert gave false or misleading testimony that exceeded the limits of science. After reviewing Ausby's case, the FBI determined that Agent Neill misled the jury by implying that he could positively identify the hairs taken from the crime scene as belonging to Ausby. In light of Agent Neill's admittedly misleading testimony, the United States conceded error and waived any statute of limitations and procedural-default defenses in the event Ausby sought relief under 28 U.S.C. § 2255. The government, however, took "no position regarding the materiality of the error" at that time.

Following the government's concession, Ausby moved to vacate his conviction under 28 U.S.C. § 2255(a)"due to the government's knowing presentation of false and misleading expert hair examination testimony, in violation of the Due Process Clause of the Fifth Amendment and Napue v. Illinois ." The district court denied Ausby's § 2255 motion. Ausby , 275 F.Supp.3d at 32. The court determined that Agent Neill's testimony was not material to Ausby's conviction "because given the overwhelming evidence against him, even absent the false hair matching testimony, there is no ‘reasonable likelihood’ that the hair evidence ‘could have altered the outcome of the case.’ " Id. (quoting United States v. Vega , 826 F.3d 514, 531 (D.C. Cir. 2016) (per curiam)). The district court, however, granted Ausby a certificate of appealability and Ausby timely noticed an appeal.

II. ANALYSIS

A federal prisoner may move to have his sentence vacated under 28 U.S.C. § 2255 if "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Under Napue v. Illinois and its progeny, "the prosecution's introduction of false testimony" deprives a defendant of a fair trial as required by the Fifth and Sixth Amendments. United States v. Straker , 800 F.3d 570, 602 (D.C. Cir. 2015) (per curiam). The government commits a Napue violation "when the government introduces false or misleading testimony or allows it to go uncorrected, even though the government knew or should have known...