 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 5, 2018                Decided March 1, 2019

                         No. 17-3077

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                    JOHN MILTON AUSBY,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:72-cr-00067-1)


     Adam G. Thompson 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
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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 (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.
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, 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
                                3
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
                               4
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 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
                               5
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
                                 6
though the government knew or should have known that the
testimony was false.” Id. at 603 (citations omitted). If the
government introduces false or misleading testimony,
however, “the grant of a new trial is not automatic,” Vega, 826
F.3d at 529; the false evidence must also be material to justify
a new trial, Giglio v. United States, 405 U.S. 150, 154 (1972).
We review a Napue claim de novo. United States v. Sitzmann,
893 F.3d 811, 821 (D.C. Cir. 2018) (per curiam).

     The government has conceded that Agent Neill’s
testimony regarding microscopic hair comparison analysis was
false and that the government knew or should have known it
was false at the time of Ausby’s trial. The parties dispute only
whether Agent Neill’s false statements were material to
Ausby’s conviction.

     As first formulated in Napue and repeated in the decades
of cases that have since applied its holding, the government’s
introduction of false testimony is material if the evidence
“could . . . in any reasonable likelihood have affected the
judgment of the jury.” Giglio, 405 U.S. at 154 (alteration in
original) (quoting Napue, 360 U.S. at 271); see also Sitzmann,
893 F.3d at 828; Straker, 800 F.3d at 603. The “reasonable
likelihood” standard does not require the defendant to show
“that he ‘more likely than not’ would have been acquitted”
absent the false statements. Wearry v. Cain, 136 S. Ct. 1002,
1006 (2016) (per curiam) (quoting Smith v. Cain, 565 U.S. 73,
75 (2012)). 1 Rather, the defendant need show only that the

    1
         Although Wearry explains the contours of Napue’s
“reasonable likelihood” standard, Wearry in fact addressed a claim
under Brady v. Maryland, 373 U.S. 83 (1963) (the prosecution
withheld material evidence favorable to the defense). Wearry, 136
S. Ct. at 1002. A Brady claim invokes a materiality standard
different from Napue’s “reasonable likelihood” standard. See Smith
v. Cain, 565 U.S. 73, 75 (2012) (observing that the withheld evidence
                                  7
false testimony “‘undermine[s] confidence’ in the verdict.”
Id. (quoting Smith, 565 U.S. at 76). Thus, even if the false
testimony “may not have affected the jury’s verdict,” it is
material if the evidence reasonably could have affected the
verdict. Id. at 1006 n.6 (emphasis added). As the Supreme
Court’s explication makes clear, the “reasonable likelihood”
standard is outcome-driven—that is, the relevant question is
whether the false testimony “could have altered the outcome of
the case.” Vega, 826 F.3d at 531. This standard “is quite
easily satisfied.” United States v. Williams, 233 F.3d 592, 594
(D.C. Cir. 2000). 2 This Court’s Napue decisions have also
held that the burden of proving materiality lies with the
defendant. See Sitzmann, 893 F.3d at 829; Straker, 800 F.3d
at 605; United States v. Burch, 156 F.3d 1315, 1328–29 (D.C.
Cir. 1998). Ultimately, then, the Napue materiality standard
requires Ausby to establish that Agent Neill’s false testimony
reasonably could have altered the outcome of his case, thereby
undermining confidence in the jury’s guilty verdict.

     Despite the consistency with which Napue decisions have
articulated the materiality standard, Ausby asks us to strike out
“reasonable likelihood” and insert the phrase “reasonable
possibility.” While Ausby posits that the two phrases are
substantively “synonymous,” he also maintains that the
semantic difference “is meaningful” for clarifying the
materiality standard. Even taking Ausby’s position as
internally consistent, we reject it. The only support Ausby
offers in favor of his new semantic gloss are the opinions of

is material under Brady if “there is a reasonable probability that, had
the evidence been disclosed, the result of the proceeding would have
been different” (emphasis added) (quoting Cone v. Bell, 556 U.S.
449, 469–70 (2009))).
2
   Williams involved a challenge under Federal Rule of Criminal
Procedure 33, not a Napue challenge. Williams, 233 F.3d at 593–
94.
                               8
two Supreme Court Justices, both of which failed to garner
majority support. See United States v. Bagley, 473 U.S. 667,
679–80, 679 n.9 (1985) (opinion of Blackmun, J.) (joined in
relevant part by Justice O’Connor); Strickler v. Greene, 527
U.S. 263, 299 (1999) (Souter, J., concurring in part and
dissenting in part) (writing for himself in relevant part). These
two non-precedential opinions fail to outweigh the nigh sixty
years of Supreme Court precedent consistently employing the
phrase “reasonable likelihood.”           We therefore decline
Ausby’s invitation to reformulate the Napue materiality
standard.

     In addition to quibbling over wording, Ausby argues that
the “reasonable likelihood” standard is substantively
equivalent to the harmless-error standard of Chapman v.
California, 386 U.S. 18 (1967). Under what he christens the
“Napue/Chapman standard,” Ausby argues that he is entitled
to a new trial unless the government can prove that Agent
Neill’s false testimony was harmless beyond a reasonable
doubt. For support, Ausby first relies on the opinions of
Justice Blackmun in United States v. Bagley and Justice Souter
in Strickler v. Greene. But just as we decline to rely on these
non-precedential opinions as definitive articulations of the
“reasonable likelihood” standard, we also decline to rely on
them as reliable explanations of the standard’s substantive
meaning.

     Next, Ausby relies on this Court’s decision in United
States v. Vega. Vega stated in dicta that the Napue materiality
standard is equivalent to the harmless-error standard of
Chapman v. California. Vega, 826 F.3d at 529 n.4. In its
holding, however, Vega applied and rested its decision
exclusively on the “reasonable likelihood” standard laid out in
Napue without reference to Chapman. See id. at 531. That is
this Circuit’s standard and the one we apply here as well. To
                               9
the extent Ausby tries to wring out of Vega’s footnote a rule
imposing the burden of proving immateriality on the
government or otherwise changing the “reasonable likelihood”
standard, he is flatly incorrect. Consistent with longstanding
precedent, Vega left on the defendant the burden of establishing
that the false testimony “could in any reasonable likelihood
have affected the judgment of the jury.” Vega, 826 F.3d at 529
(quoting Burch, 156 F.3d at 1329); see id. at 530–31; Straker,
800 F.3d at 605; Burch, 156 F.3d at 1328–29.

     The Supreme Court’s and this Court’s Napue decisions fall
at one end of the materiality spectrum or the other. In some
cases, the false testimony concealed facts that would have
undermined the credibility of the government’s key witness.
See Giglio, 405 U.S. at 151, 154–55 (“key” cooperating
witness falsely testified that he received no promise that he
would not be prosecuted if he testified); Napue, 360 U.S. at
265, 269–71 (“principal” cooperating witness falsely testified
that he was not promised a reduced sentence if he testified);
Alcorta v. Texas, 355 U.S. 28, 29, 31–32 (1957) (prosecution’s
only eyewitness falsely testified that he was not having an
affair with the accused’s wife at the time of the crime); United
States v. Iverson, 637 F.2d 799, 801–05 (D.C. Cir. 1980)
(“key” cooperating witness falsely testified that she had already
been sentenced, intimating that she had nothing to gain by
testifying). Because this evidence plainly could have affected
the jury’s verdict, the false statements were material. In other
cases, the false statements involved facts that were either
redundant or clearly irrelevant to the jury’s decision. See
Sitzmann, 893 F.3d at 829 (single purportedly false statement
in a five week trial was not material given “abundant evidence”
demonstrating defendant’s participation in the charged
conspiracy); Vega, 826 F.3d at 531 (witness’s false testimony
regarding photo-array identification was not material because
several other witnesses identified the defendant); Straker, 800
                               10
F.3d at 604–08 (false testimony either played almost no role in
the trial or was significantly outweighed by the defendants’
confessions); Burch, 156 F.3d at 1328–29 (“allegedly” false
statements were not material because they could not have
affected the credibility of the government’s evidence and
witnesses); United States v. Anderson, 509 F.2d 312, 327 &
n.110 (D.C. Cir. 1974) (one allegedly false statement regarding
a witness’s identification did not bear “such significance to [the
defendant’s] bribery trial as a whole that it ‘could . . . in any
reasonable likelihood have affected’” the jury’s judgment
(alteration in original) (quoting Giglio, 405 U.S. at 154)). The
false statements in these cases, therefore, were obviously not
material to the jury’s verdict.

     We believe Agent Neill’s false hair-comparison testimony
during Ausby’s trial falls somewhere between the two ends.
Agent Neill’s testimony was neither the sole piece of evidence
on which the prosecution hung its case nor redundant or
irrelevant. We ultimately conclude, however, that Agent
Neill’s testimony falls on the material side of the spectrum.
Agent Neill’s testimony was the primary evidence that directly
contradicted Ausby’s defense theory—that Ausby had been in
Noel’s apartment during her two-week absence but not on the
day of her rape and murder. Ausby’s defense theory plausibly
explained the remaining evidence. First, the sightings of
Ausby near Noel’s apartment occurred four or five days before
the murder and thus were consistent with Ausby’s presence in
Noel’s apartment on an earlier date. Second, Ausby could
have left the thumbprint and vials of oil in Noel’s apartment
while in her apartment sometime before the date of her rape
and murder. And third, the ballistic evidence could not yield
a positive identification. That Agent Neill’s testimony played
a key role in debunking Ausby’s defense is borne out by the
prosecution’s emphasis in its closing rebuttal that Agent Neill’s
microscopic hair-comparison analysis “is not a positive means
                              11
of identification but it amounts to a positive means here.”
Thus, without Agent Neill’s hair-comparison testimony, there
is a reasonable likelihood that the jury could have accepted
Ausby’s defense theory. Ausby has therefore carried his
burden of demonstrating that Agent Neill’s testimony
“could . . . in any reasonable likelihood have affected the
judgment of the jury.” Giglio, 405 U.S. at 154 (alteration in
original) (quoting Napue, 360 U.S. at 271). Because the
government has conceded that Agent Neill’s testimony was
false and that the government knew or should have known so
at the time of Ausby’s trial, Ausby has presented a valid claim
under Napue that he was convicted in violation of the Fifth and
Sixth Amendments. Accordingly, the district court should
have granted Ausby’s § 2255 motion to vacate his conviction.

    For the foregoing reasons, the judgment of the district
court is reversed and the case is remanded for proceedings
consistent with this opinion.

                                                   So ordered.
