United States v. Ausby ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 72-67 (BAH)
Chief Judge Beryl A. Howell
JOHN MILTON AUSBY,
Defendant.
MEMORANDUM OPINION AND ORDER
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
1
The parties have been directed to submit, by June 14, 2019, “a joint proposed order ‘to vacate [the
defendant’s] conviction,’ . . . consistent with the D.C. Circuit’s mandate.” Min. Order (June 7, 2019) (quoting
Ausby, 916 F.3d at 1095). As the D.C. Circuit noted, the defendant was convicted of both “felony murder and rape
while armed,” but he has “fully served his rape sentence, leaving his life sentence for murder.” Ausby, 916 F.3d at
1091.
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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
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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
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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.
II. LEGAL STANDARD
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
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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 person’s release.
18 U.S.C. § 3142(g). At the detention hearing, both the government and the defendant may offer
evidence or proceed by proffer. United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (per
curiam).
III. FINDINGS
In considering the requisite statutory factors, the Court concludes, based on the current
state of the available record, that the government has demonstrated, by clear and convincing
evidence, that “no condition or combination of conditions will reasonably assure” the safety of
the community, 18 U.S.C. § 3142(e)(1), and therefore orders that the defendant continue to be
detained pending his re-trial. These statutory factors are addressed below.
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A. The Nature and Circumstances of the Offense Charged and the Weight of the
Evidence Against the Defendant
In determining the nature and circumstances of the offense charged, the Bail Reform Act
requires taking into consideration whether the offense is a crime of violence or involves a
firearm. See id. § 3142(g)(1). 2 In this case, a grand jury indicted the defendant for felony
murder, related to the murder and rape of Ms. Noel, who was found lying on her bed in her
apartment unclothed from the waist down and strangled with a stocking around her neck, and
with blood pooling next to her head due to being shot in the head at close range. See Gov’t’s
Opp’n at 3, 10–11. The charged conduct was undoubtedly a crime of violence and involved a
firearm. See 18 U.S.C. § 3156(a)(4) (defining “crime of violence” to include “an offense that has
as an element of the offense the use, attempted use, or threatened use of physical force against
the person or property of another” and “any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person or property of another may be
used in the course of committing the offense”). The defendant concedes, as he must, that the
charges he faces are “serious.” Def.’s Suppl. Mot. at 4.
Likewise, the weight of the government’s evidence, at this point, is strong. In arguing for
the weight of the evidence, the government is relying on testimony from transcripts of the
defendant’s prior trial, but is “proceed[ing] by way of proffer.” Smith, 79 F.3d at 1210. As
described in more detail below, the government’s proffer (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
2
While a rebuttable presumption of detention applies when a defendant is charged with certain serious
enumerated offenses described in §§ 3142(e)(2), (e)(3), and (f)(1), the parties agree that this rebuttable presumption
is not triggered in this case because the defendant is not charged with any of the offenses described in §
3142(e)(2)(A) while “on release pending trial,” id. § 3142(e)(2)(B), and he is not charged in this case with an
offense listed in § 3142(e)(3). See Rough Tr. of Hearing (June 7, 2019) at 60:14-17 (government’s statement that
“we do agree [the rebuttable presumption] does not apply”); Def.’s Mot. for Pretrial Release at 3.
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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. Taken together, the
government’s evidence presents a strong case against the defendant. 3
First, three days after Ms. Noel was found dead in the District of Columbia, the defendant
was arrested in New York City in possession of a gun that was loaded, except for two spent
cartridges with the same type of bullet that could have been used to shoot Ms. Noel in her
temple. See Gov’t’s Opp’n at 6, 7; id. at 8 (government’s firearms expert “was able to opine,
however, that [the bullet] could have been fired from this weapon on the basis of the rifling
characteristics” (internal quotation marks and citation omitted)). This fit between the
defendant’s gun and the profile of the murder weapon was probative of the defendant’s tie to the
crime, not just to the victim’s apartment at some unknown time prior to the murder. See id. at 14
(“A firearms expert was able to determine that this same firearm could have fired the bullet that
killed Ms. Noel ‘on the basis of the rifling characteristics’” (internal quotation marks and citation
omitted)).
3
The parties debate whether the weight-of-the-evidence factor requires analyzing the weight of the evidence
of the defendant’s dangerousness or of the defendant’s guilt for the charged offense. See Def.’s Suppl. Mot. at 3
(noting a “split in authority” over whether the weight of the evidence concerns dangerousness or guilt, and citing
United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010), and United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.
1991), for the proposition that this factor goes toward dangerousness); Gov’t’s Opp’n at 14 n.2 (arguing that the
weight-of-the-evidence factor concerns the defendant’s guilt). As another Judge on this Court has artfully
explained, “the ‘weight of the evidence’ factor” does not focus “on the defendant’s danger to the community . . . to
the exclusion of any consideration of the strength of the government’s case.” United States v. Taylor, 289 F. Supp.
3d 55, 66 (D.D.C. 2018). The “relevant statutory language does not focus on the evidence of danger to the
community . . . ; rather, it requires that the judicial officer consider ‘the weight of the evidence against the person,’”
id. (emphasis in original) (quoting 18 U.S.C. § 3142(g)(2)), and the fourth factor in § 3142(g) separately requires
consideration of “the nature and seriousness of the danger to any person or the community that would be posed by
the person’s release,” id. (internal quotation marks omitted) (quoting § 3142(g)(4)). Nonetheless, “the Bail Reform
Act does not purport to—nor could it, consistent with due process—authorize pretrial detention based simply on a
preliminary assessment of the defendant’s guilt.” Id. Accordingly, “overwhelming evidence of guilt would not,
alone” establish that no conditions of release would reasonably assure the safety of the community. Rather, this
factor must be balanced with evidence of dangerousness, and “[i]f the government possesses overwhelming
evidence that the defendant is guilty of the crime charged—and the nature of the charged offense involves a danger
to the community—then the second factor will help meet the government’s burden of persuasion.” Id.
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Second, the scented oil vials found at the crime scene directly link this defendant to the
charged murder. When the defendant was arrested, he had a “a small vial of perfume,” like the
scented oil vials found at the murder scene that had been sold to the defendant shortly before the
murder. See id. at 4–6, 7, 13. The precise location at the crime scene where these oil vials were
found are highly probative of the defendant’s presence there at the time of the murder. One of
the defendant’s oil vials was found at the crime scene under the victim’s coat at the foot of the
bed where she was halfway undressed, raped, and murdered, and another vial was found nearby
under a nightstand. Id. at 3–4. As this Court has previously pointed out, “[t]hese vials were not
found scattered about the apartment, only under and near the victim’s body in the room where
the victim was raped and murdered,” providing “strong circumstantial evidence of the
defendant’s presence at the time of the murder.” Ausby, 275 F. Supp. 3d at 31. The defendant
also admitted to the seller of the oil vials the day after the murder that he had lost some vials
“going through a window,” and, indeed, three oil vials were found on the ground below the
victim’s window, further tying the defendant to the crime scene. Gov’t’s Opp’n at 5, 6.
Third, at the crime scene, the police found only one fingerprint that “was valid for
identification purposes, and that print matched the right thumb impression of the defendant.” Id.
at 5 (internal quotation marks and citation omitted).
Fourth, in the week preceding the murder, three eyewitnesses saw the defendant in Ms.
Noel’s apartment building, and one of these eyewitnesses saw the defendant loitering outside
Ms. Noel’s apartment on two separate evenings. See id. at 8–9. Moreover, another of these
witnesses, who lived two doors down from Ms. Noel, had her apartment broken into on the same
day that the defendant was observed in the building, and whoever had broken in left a towel
doused in scented oil. See id. at 9. The government contends that these facts show that the
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charged conduct was not “random,” but premediated by the defendant, who had been seen
outside the door of the victim’s apartment and on her floor days before a final “brutal act[] of
violence.” See Gov’t’s Opp’n at 11.
The D.C. Circuit noted that Ms. Noel “returned to her apartment . . . for the first time in
two weeks” on the day she was murdered, Ausby, 916 F.3d at 1090, and the government’s
evidence, without the false hair testimony, could be “plausibly explained” by the defendant’s
“theory” that he “had been in Noel’s apartment during her two-week absence but not on the day
of her rape and murder,” id. Thus, the Circuit concluded, “[T]here is a reasonable likelihood that
the jury could have accepted [this] defense theory.” Id.
Despite the possibility that the prior jury, which convicted the defendant after less than
two hours of deliberation, Ausby, 275 F. Supp. 3d at 22, could have accepted this defense theory,
the evidence that the government intends to introduce at trial “makes a compelling case for the
defendant’s guilt,” id. at 31. In fact, the D.C. Circuit acknowledged that at the defendant’s prior
trial, “the prosecution introduced substantial evidence connecting [the defendant] to Noel’s rape
and murder.” Ausby, 916 F.3d at 1091. For example, the Circuit cited the government’s
evidence that “vials of scented oil left inside Noel’s apartment and beneath her windows
belonged to” the defendant, id., without addressing or even mentioning that the scented oil vials
found inside of Ms. Noel’s apartment were only located near Ms. Noel’s dead body, under her
“coat lying at her feet” and “[a]t the nightstand, directly alongside the bed,” Trial Tr. (Aug. 21,
1971) at 204, and that the defendant returned to the seller of the oil vials the day after Ms. Noel’s
murder to buy more because he had “lost [his previous purchases] going through a window,” id.
at 306; see also Gov’t’s Opp’n at 4, 6; Ausby, 275 F. Supp. 3d at 12, 32. The D.C. Circuit also
observed that the government’s case was “substantial” against the defendant because “the bullet
9
that killed Noel potentially . . . matched the handgun [the defendant] was carrying when he was
arrested,” the defendant “left a thumbprint inside Noel’s apartment sometime within ten days of
the murder,” and other witnesses “encountered a black male in garb resembling [the defendant]
in Noel’s apartment building in the days leading up to her murder.” Ausby, 916 F.3d at 1091.
Nonetheless, the defendant urges that the weight of the government’s evidence be
discounted because he now “faces retrial with little surviving evidence.” Def.’s Suppl. Mot. at 4.
The government has kept both the Court and the defendant apprised of its search for extant
evidence other than the trial transcripts. To date, the government reports that it has been unable
to find the physical evidence “collected in this case,” and efforts to locate this evidence, or “to
confirm loss or destruction” continue. See Gov’t’s Status Report ¶ 5 (Apr. 17, 2019), ECF No.
22. In addition, of twenty-one witnesses “essential to” the government’s case, only nine are
“believed to be alive,” see id. ¶ 7; Gov’t’s Suppl. Status Report ¶ 4 (Apr. 26, 2019), ECF No. 23.
Thus, the government is primarily left only with testimony from the prior trial’s transcripts to re-
try this case.
The defendant posits that the government’s reliance on testimony from the prior trial’s
transcripts undercuts the weight of the government’s evidence since (1) firearms and
fingerprinting forensic science has advanced since the defendant’s prior trial; (2) the memories
of living witnesses have faded, and the rest of the government’s witnesses have died; and (3) the
government’s evidence is likely to be excluded at trial, so the evidence should carry less weight
here. None of these arguments undercuts the strength of the government’s case at this pretrial
detention stage of proceedings.
First, the defendant asserts that the government’s prior firearms and fingerprinting expert
testimony is no longer reliable in today’s “different era of scientific understanding.” Id. at 5; see
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also Def.’s Reply at 3. The defendant’s general assertion that science has advanced in
fingerprinting and firearms forensic analysis, however, fails to explain what scientific advances
diminish which aspects of the government’s intended expert testimony. See Def.’s Reply at 3 &
nn.3-6. Thus, although the defendant cites in reply to various articles “questioning” prior
firearms and fingerprinting forensic science generally, see id., the defendant’s conclusory
assertion that these articles render the government’s expert evidence so unreliable that the
evidence should not be accepted here is far from sufficient. Moreover, even assuming the
defendant is correct, he has merely shown that the government’s expert evidence is “less
reliable” now than when first introduced, id. at 2, but fails to explain why this evidence may not
be used to link the defendant to the murder of Ms. Noel.
Second, the defendant argues that the weight of the government’s evidence is weak
because “the memories of the few living witnesses presumably have degraded over the last 47
years,” and the government intends to rely on the prior trial transcript for testimony of deceased
witnesses. Def.’s Suppl. Mot. at 5; see also Def.’s Reply at 3. As the government points out, the
defendant’s concern about fading memories and deceased witnesses is not pronounced, in the
context of this pretrial detention proceeding, since there is a trial transcript record of each
witness’s memory, close in time to the evidence and subjected to cross-examination. See Gov’t’s
Opp’n at 15.
Third, and more generally, the defendant argues that evidence from the defendant’s prior
trial, as established by that prior trial’s transcript, is likely to be excluded at the upcoming trial,
and once excluded, the government’s case will be weak. Def.’s Suppl. Mot. at 5–6. Indeed, the
defendant expressly contends, “[C]ourts should disregard, or at least place diminished reliance
11
on, suppressed evidence in assessing the ‘weight of the evidence’ factor.” Id. at 5 (quoting
Taylor, 289 F. Supp. at 67 (emphasis added)).
The defendant, however, has not yet moved for exclusion, let alone successfully
excluded, any of the government’s intended evidence or attacked the credibility of any of the
government’s witnesses. Notably, the statute makes clear that “[t]he rules concerning
admissibility of evidence in criminal trials do not apply to the presentation and consideration of
information at the [detention] hearing.” 18 U.S.C. § 3142(f). Thus, the testimony that the
defendant seeks to exclude is treated as admissible in this context. The Tenth Circuit, in United
States v. Hightower, 203 F.3d 836 (10th Cir. 2000), made this point clearly, stating: “We are
mindful that our ultimate ruling on the validity of the district court’s suppression order may have
a bearing on the issue of pretrial detention; until the validity of that order has been decided,
however, we consider the facts sought to be suppressed as if admissible,” id. at 836 (citing 18
U.S.C. § 3142(f)).
In conformity with the statutory direction at § 3142(f), other circuits have uniformly held
that at the detention hearing stage, the court may consider even evidence that may ultimately be
challenged and suppressed. See, e.g., United States v. Apker, 964 F.2d 742, 744 (8th Cir. 1992)
(affirming district court’s conclusion that “magistrate judge erred in disregarding the challenged
evidence against [the defendant] before the evidence was found inadmissible by a final order of
the court,” because “it is appropriate to consider challenged evidence in detention hearings”
(citing 18 U.S.C. § 3142(f)); United States v. Angiulo, 755 F.2d 969, 974 (1st Cir. 1985)
(challenged electronic surveillance information may be considered in detention rulings “at least
until a court has decided that the material was not obtained legally”).
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A district court’s decision to suppress evidence later may impact the weight of the
evidence and provide grounds to reopen a pretrial detention proceeding. For example, in United
States v. Peralta, 849 F.2d 625 (D.C. Cir. 1988) (per curiam), the D.C. Circuit held that the
district court could reopen its prior decision granting pretrial release and to order the defendant
detained, based on the district court’s intervening decision declining to suppress evidence, id. at
626–27. The Circuit reasoned that the district court’s decision not to suppress evidence amounts
to “previously nonexistent, material information” that “increased the likelihood of [the
defendant’s] conviction,” and under 18 U.S.C. § 3142(f), a detention hearing may be reopened at
any time before trial if material information exists that was unknown at time of hearing. Id.
Conversely, should the trial transcripts, and the facts established therein, be excluded upon
consideration of the defendant’s motion in limine, the weight of the government’s evidence
would substantially decrease and potentially provide grounds for reopening this decision on
pretrial detention. At this stage, however, the weight of the evidence remains strong.
B. History and Characteristics of the Defendant
The original indictment in this case not only charged the defendant with the rape and
murder of Ms. Noel, but also charged the defendant with the rape and murder of two other
women, Sharon Tapp and Sherry Frahm. See Ausby, 275 F. Supp. 3d at 9. “The charges related
to Tapp and Frahm were severed and the charges related to Noel’s murder were tried first.” Id.
As noted, the defendant was ultimately convicted for shooting and killing Mses. Tapp and
Frahm, and those convictions were “not at issue” when the defendant successfully obtained a
vacatur of his conviction as to Ms. Noel. Id.; see also Gov’t’s Opp’n at 16. At the same time,
those murder convictions of two other women are pertinent facts in the defendant’s criminal
history in assessing his danger to the community.
13
The defendant contends that he has a “compliant and nonviolent prison record,”
mitigating the dangerousness demonstrated by his prior murder convictions. See Def.’s Suppl.
Mot. at 1; Def.’s Reply at 2 (citing Ex. A, Def.’s Federal Bureau of Prisons Disciplinary History
(Jan. 4, 2017) (“Def.’s BOP Disciplinary History”), ECF No. 29-1). The defendant’s BOP
Disciplinary History only minimally diminishes a finding that the defendant remains dangerous
today because the defendant’s pattern of violence, with prior convictions for the murder of two
women, is highly disturbing. Indeed, for one of his two prior murders, the defendant shot a
woman “in the head at close range,” quite similar to charged conduct in this case. Gov’t’s Opp’n
at 16. Additionally, as the government points out, “the defendant was caught three days after
[the] raping and killing [of] Ms. Noel – with a gun and threatening to use it. The fact that he has
been incarcerated ever since and was unable to continue to commit violent crimes speaks to the
necessity of continued detention and not release.” Id. at 12.
Next, the defendant argues that BOP psychological data for the defendant “indicates no
current or remotely recent concerns,” and the defendant has “completed programming in anger
management and other areas,” Def.’s Reply at 2 (citing Def.’s BOP Psychological Data (Mar. 3,
2010), ECF No. 30 (sealed), and Def.’s BOP Disciplinary History). None of this evidence shows
that the defendant’s history of violence, particularly towards women, does not present a serious
risk of danger to the community. In fact, to the contrary, the BOP Psychological Data confirms
that the defendant “denied current psychological symptoms and expressed no desire for
psychological services,” see Def.’s BOP Psychological Data at 1, notwithstanding his two prior
convictions for shooting and killing two women. Even more, the defendant’s eight hours of
anger management programming, see Def.’s BOP Disciplinary History at 3, falls far short of
showing his violent impulses towards women have been overcome.
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Finally, the defendant points out that he is older now and has health issues. See Def.’s
Suppl. Mot. at 1 (arguing that the defendant is 67 now and has “significant health issues”); see
also Mem. Supp. Community Placement at 3–4, ECF No. 26 (sealed) (describing defendant’s
health issues). The defendant’s age, and those health issues identified by the defendant, do not
make him immobile or incapacitated. As the government indicates, none of the health issues
cited would “preclude him from obtaining a firearm, using it to force sex upon a vulnerable
individual, and then killing them.” Gov’t’s Opp’n at 13. The defendant’s history and
characteristics demonstrate that the danger he poses to the community persist and therefore
weigh in favor of detention.
C. The Nature and Seriousness of the Danger to Any Person or the Community
that Would Be Posed by the Defendant’s Release
As noted above, the defendant’s prior convictions for the murder of two women, and his
charged involvement in the brutal rape and murder of a third, along with his possession of a
firearm and threats to use that weapon at the time of his arrest, provide ample reason to believe
that the defendant’s release would pose a danger to the community, and no condition or
combination of conditions could be imposed that would reasonably assure the safety of the
community.
IV. CONCLUSION AND ORDER
Upon consideration of all of the evidence and the factors set forth in 18 U.S.C. § 3142(g),
and the possible release conditions set forth in § 3142(c), the Court finds by clear and convincing
evidence that the defendant’s pretrial release constitutes an unreasonable danger to the
community, and the Court finds clear and convincing evidence that no condition or combination
of conditions can be imposed that would reasonably ensure the safety of the community were he
to be released pending trial.
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For the foregoing reasons, it is hereby
ORDERED that the Defendant’s Motion for Pretrial Release, ECF No. 25, as
supplemented by the Defendant’s Supplemental Motion for Pretrial Release, ECF No. 27, is
DENIED; and it is further
ORDERED that the defendant, John Milton Ausby, be committed to the custody of the
Attorney General for confinement in a corrections facility separate, to the extent practicable,
from persons awaiting or serving sentences or being held in custody pending appeal; and it is
further
ORDERED that the defendant be afforded reasonable opportunity for private
consultation with counsel; and it is further
ORDERED that upon order of a court of the United States or on request of an attorney
for the Government, the person in charge of the corrections facility in which the defendant is
confined shall deliver the person to a United States Marshal for the purpose of an appearance in
connection with a court proceeding.
SO ORDERED.
Date: June 11, 2019
__________________________
BERYL A. HOWELL
Chief Judge
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