United States v. Ausby

Decision Date20 December 2019
Docket NumberCriminal Action No. 72-67 (BAH)
Citation436 F.Supp.3d 134
Parties UNITED STATES of America v. John Milton AUSBY, Defendant.
CourtU.S. District Court — District of Columbia

Denise Cheung, Sharon K. Donovan, Kimberley Charlene Nielsen, Pamela Stever Satterfield, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Adam G. Thompson, Roderick E. Thompson, Public Defender Service for the District of Columbia, Washington, DC, for Defendant.


BERYL A. HOWELL, Chief Judge

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.


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, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (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, 79 S.Ct. 1173 ). 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...

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