In United States v. Aquart, the Second Circuit (Livingston, Raggi, and Carney) affirmed the sentence of Azibo Aquart, who was convicted of multiple federal homicide and drug trafficking crimes.  Aquart was originally sentenced to death, but on direct appeal the Second Circuit, while affirming his conviction, vacated his death sentence and remanded the case for resentencing.  The district court judge then sentenced Aquart to the statutorily mandated term of life imprisonment.  On this second appeal, the Second Circuit rejected Aquart’s claims that the district court (1) improperly relied on the mandate rule when it refused to address new challenges to Aquart’s conviction of guilt, and (2) violated the double jeopardy clause by sentencing him for both drug-related murder and drug-conspiracy.

Background

In 2012, Azibo Aquart was convicted in the District of Connecticut after a jury trial of one conspiracy count and three substantive counts of violent crimes in aid of racketeering (“VICAR murder”) in violation of 18 U.S.C. § 1959(a)(1), (a)(5); three substantive counts of murder in connection with a conspiracy to traffic crack cocaine in sufficient amounts to constitute a violation of 21 U.S.C. § 841(b)(1)(A) (“drug-related murder”), see id. § 848(e)(1)(A); and one count of conspiracy to traffic 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846.  The Second Circuit described the homicides as the “brutal drug-related murder of three persons.”  The jury sentenced him to death.

On direct appeal the Second Circuit affirmed his conviction but vacated his death sentence and remanded the case for a new penalty proceeding.  See United States v. Aquart, 912 F.3d 1, 10 (2d Cir. 2018).  On remand, the government chose to forgo the death penalty.  However, before the district court imposed a new sentence on Aquart, Aquart’s new counsel raised a number of new challenges to the guilt component of his judgment, arguing in part that the double jeopardy clause prevented the district court from sentencing him for both drug conspiracy and drug-related murders.  The district court denied Aquart’s motions and sentenced Aquart to three mandatory terms of life imprisonment for the substantive VICAR murders, four 40-year prison terms for the three drug-related murders and the drug conspiracy count, and one 10-year prison term for the VICAR conspiracy, all to run concurrently.

The Appeal

The Mandate Rule

            The district court held that because the Second Circuit had affirmed Aquart’s conviction as to guilt, Aquart could not now relitigate the merits of his convictions, even if the specific issues he raised after the remand from the Second Circuit were not addressed by that court.  Aquart argued on appeal that the district court erred in relying on the mandate rule in declining to consider his new challenges to his convictions and, alternatively, that the Court should depart from the law-of-the-case doctrine itself to consider his new challenges. 

            The mandate rule is a classic rule of appellate practice that places limitations on what a district court can do after a case is appealed and remanded.  It is a branch of the law-of-the-case doctrine that binds the district court from considering issues explicitly or implicitly decided on appeal.  See United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002); Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006).  The rule is subject to only “narrow exception[s]” for “compelling circumstances, consisting principally of (1) an intervening change in controlling law, (2) new evidence, or (3) the need to correct a clear error of law or to prevent manifest injustice.”  United States v. Valente, 915 F.3d 916, 924 (2d Cir. 2019) (internal quotation marks omitted). 

Aquart first contended that the mandate rule did not apply because his new challenges were not at issue on direct appeal and therefore the Court could not have even implicitly decided them.  But United States v. Quintieri holds that the mandate rule applies to issues that were “ripe for review at the time of an initial appeal but . . . nonetheless forgone” by a party, 306 F.3d at 1229 (internal quotation marks omitted), and Aquart did not argue that his challenges to his guilt raised on remand were not ripe for review on his initial appeal.  Accordingly, the Court concluded that the district court correctly applied the mandate rule.

            Aquart next argued that his indictment challenges to the VICAR and drug-related murder counts were jurisdictional and therefore not barred by the mandate rule or the law-of-the-case doctrine, as a defendant may raise at any time while a case is pending a motion that the court lacks jurisdiction.  See Fed. R. Crim. P. 12(b)(2).  But the Court found that his challenges did not, in fact, implicate jurisdiction.  The Court noted that “courts of the United States have jurisdiction to adjudicate the claim” so long as “an indictment alleges an offense under U.S. criminal statutes,” and that to sufficiently charge a crime “an indictment must do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” United States v. Prado, 933 F.3d 121, 134 (2d Cir. 2019) (internal quotation marks and ellipsis omitted). 

            The Court rejected Aquart’s framing of his argument that the Connecticut statutes underlying his VICAR convictions cannot, as a matter of law, constitute murder predicates under VICAR as a jurisdictional challenge, noting that the Court has already held that “challenges to indictments on the basis that the alleged conduct does not constitute an offense under the charged statute are . . . non-jurisdictional challenges.”  United States v. Rubin, 743 F.3d 31, 37 (2d Cir. 2014).  Similarly, the Court found that United States v. Cotton foreclosed Aquart’s argument that that the indictment no longer stated a viable drug-related murder crime because at the time of his trial the minimum crack quantity required by statute for the drug crime murder-predicate was higher than that noted in his indictment.  535 U.S. 625, 628 (2002) (holding that an indictment was not jurisdictionally deficient because it failed to allege the threshold levels of drug quantity that lead to enhanced penalties under § 841(b)).  The Court also noted that the relevant quantity threshold for the predicate drug offense for a drug-related murder crime is the threshold required by the statute at the time he committed the murder, not his trial.

            Next, Aquart argued that an intervening change in controlling law warranted reconsideration of his VICAR convictions regardless of the mandate rule.  Aquart pointed to United States v. Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court first applied a categorical, rather than a case-specific, approach to determine whether the appealed conviction was a crime of violence under 18 U.S.C. § 924(c) (as opposed to applying the categorical approach to assess the violence of crimes of past conviction) as the relevant law change.  Aquart thus argued that he could now (but could not previously) challenge his VICAR crimes of conviction due to the fact that the supporting Connecticut murder statutes are categorically more broad than generic murder, and thus, are improper VICAR predicates.  But the Court rejected that Aquart’s identified Davis holding constituted an intervening change in law in the Second Circuit.  Instead, the Court pointed to a number of cases pre-dating Davis in which it had applied the categorical approach to assess whether an appealed count of conviction under § 924(c) constituted a crime of violence.  See, e.g., United States v. Acosta, 470 F.3d 132, 134–35 (2d Cir. 2006); United States v. Ivezaj, 568 F.3d 88, 95–96 (2d Cir. 2009).  The Court also rejected Aquart’s argument because Davis construed § 924(c), not the VICAR statute, and thus sheds no light on whether the categorical approach may apply to Aquart’s VICAR murder convictions, much less renders the Court’s previous affirmance of Aquart’s VICAR murder convictions clearly erroneous in light of new controlling law.

            Finally, Aquart argued that for several reasons, it would be a clear error and manifest injustice to allow his convictions to stand.  The Court summarily rejected his arguments that his VICAR and drug-related murder convictions were clearly erroneous or manifestly unjust. 

But the panel evaluated in more detail Aquart’s claim that the delay in bringing his case to trial constituted clear error under the Sixth Amendment’s speedy trial clause, necessitating the vacatur of all counts of conviction. 

            The Court evaluated the four factors relevant to a constitutional speedy trial claim: (1) length of delay, (2) reasons for the delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant, and found they did not weigh in Aquart’s favor enough to demonstrate clear error or manifest injustice necessary for him to avoid the effects of mandate rule or the law-of-the-case doctrine.  As to the length of delay, the Court noted that the five-year delay in Aquart’s case was sufficient to trigger constitutional concern, but not determinative of clear error, in part because of the serious and complex nature of the charges against Aquart.  It also did not find that the second factor decidedly weighed in favor of Aquart, noting that not all of the delay could be attributed to the negligence of the government or an intentional delay on the government’s part.  In particular, it noted that the delay occasioned by investigation and eventual charging of more serious crimes and the decision of whether to seek the death penalty are neutral rather than deliberate delays, and therefore weigh “less heavily” against the government.  Barker v. Wingo, 407 U.S. 514, 531 (1972).  It also attributed a portion of the delay to Aquart for his litigation choices, even though Aquart claimed in this appeal that those decisions were made by his counsel and contrary to his wishes.  See United States v. Tigano, 880 F.3d 602, 618 (2d Cir. 2018) (“[D]elays sought by counsel are ordinarily attributable to the defendants they represent.”).

            The Court did not decide whether the third factor weighed in favor of Aquart or not, because it found that the fourth and most important factor weighed against Aquart.  The Court held that Aquart’s inability to demonstrate prejudice precluded him from demonstrating clear speedy trial error or manifest injustice necessary to avoid the mandate rule or law-of-the-case doctrine.  The Court determined that Aquart failed to articulate prejudice from the delay with any specificity by arguing that prejudice in the form of pretrial anxiety can be presumed from the pretrial delay present in his case.  United States v. Williams, 372 F.3d 96, 113 (2d Cir. 2004).  It noted that trial-related disadvantage is the more probative prejudice for purposes of identifying a speedy trial violation, and accepting the argument that he suffered from self-evident prejudice would require the Court to presume prejudice in every case of lengthy pre-trial delay.  It rejected that result because the Supreme Court has held that courts must “approach speedy trial cases on an ad hoc basis.”  Barker, 407 U.S. at 530.

Double Jeopardy

            The Double Jeopardy Clause guarantees that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb,” U.S. Const. amend. V, which encompasses the guarantee protecting against, in part, multiple punishments for the same offense, United States v. Josephberg, 459 F.3d 350, 355 (2d Cir. 2006).  Aquart argued that the district court violated the double jeopardy clause by sentencing him on a drug conspiracy count and three counts of murder committed while engaging in that conspiracy because the conspiracy crime was a lesser included offense of the murder crimes.  The Court reviewed this argument de novo.  United States v. Weingarten, 713 F.3d 704, 708 (2d Cir. 2013).

First, the Court rejected the government’s contention that Aquart forfeited this argument by failing to raise it before trial or on his first appeal.  The Court first noted that Aquart could not have raised this claim before trial, since he had not yet been sentenced (and therefore allegedly punished for the same offense).  While he could have raised the argument after his trial or on his first appeal, Aquart arguably had no incentive to do so, because he was sentenced to death for two VICAR murder counts and two drug-related murder counts.  Thus, the argument that his life sentence for drug conspiracy violated the Double Jeopardy Clause may have appeared irrelevant.

Next, the Court evaluated the substance of Aquart’s challenge.  Under the statute for drug-related murder, “[a]ny person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title . . . who intentionally kills . . . an [individual] shall be sentenced to any term of imprisonment, . . . which may be up to life imprisonment.  21 U.S.C. § 848(e)(1)(A) (emphasis added).  The indictment charged that the offense punishable under Section 841(b)(1)(A) in which Aquart was engaged when he intentionally killed three people was conspiracy to traffic 50 grams or more of crack cocaine.  Aquart was also separately charged with this conspiracy crime.  He therefore contended that the charged crack conspiracy was the specified predicate crime for the charged drug-related murders and was thus a lesser included offense for which he cannot be convicted or punished without violating double jeopardy.  Aquart pointed to Rutledge v. United States, 517 U.S. 292 (1996) as support for his position.  The Court rejected that analogy, finding that Rutledge held that double jeopardy precludes multiple punishments for what was essentially the same criminal conduct charged as both a continuing criminal enterprise under § 848 and a conspiracy under § 846.  But in this case, the Court held that Aquart was convicted of two different crimes: substantive murder and a conspiratorial scheme to traffic drugs.

In order to determine whether overlapping conduct can be punished under two different statutes without violating the Double Jeopardy Clause, a court looks to determine whether the legislature intended that each violation be a separate offense.  Garrett v. United States, 471 U.S. 773, 778–79 (1985).  In this case, the Court did not apply the test articulated in Blockburger v. United States, 284 U.S. 299 (1932), which states that in order to determine whether there are two offenses or one a court must determine whether each provision requires proof of a fact which the other does not.  To the contrary, the Court noted that Blockburger is a rule of statutory construction to help determine legislative intent, but is not controlling when legislative intent is clear from the face of the statute or legislative history.  The Court analogized this case to Garrett, in which the Supreme Court concluded based on “common sense” that Congress intended the continuing criminal enterprise provision of § 848 to state a separate offense from any substantive drug crimes that might be used to prove the enterprise.  471 U.S. at 785, 779, 781. 

In particular, the Supreme Court found that Congress wanted to add a new enforcement tool to the substantive drug offenses, and stated that courts should be cautious of applying the lesser-included-offense principles of double jeopardy to the “multilayered conduct” involved in continuing criminal enterprise crimes.  The Court found Garrett’s reasoning equally applicable to the statute’s drug-related murder provision, and accordingly held that Congress intended to permit prosecutions and punishments for both § 848 drug-related murders and the predicate drug crimes to which the murders relate.

The Court also found that the text of § 848 supported this conclusion.  First, the core of § 848 is murder, which is an act distinct from and in addition to that addressed by the predicate crimes.  Second, the § 848(e)(1)’s first sentence, which states that the penalties authorized therein for murder must be imposed in addition to the other penalties set forth in the section, indicates that Congress intended to create a separate homicide offense in addition to the drug crimes proscribed in the same statutory section.  Finally, the Court noted that every appellate court to consider the question has concluded that a defendant may be prosecuted and punished under § 848(e)(1)(A) in addition to the underlying predicate drug-trafficking offenses.  See, e.g., United States v. Vasquez, 889 F.3d 363, 383 (5th Cir. 2018).

Commentary

Aquart’s excellent appellate counsel made a compelling case for the Second Circuit to reexamine aspects of a conviction in which the defendant successfully avoided the death penalty and now faced a sentence of life imprisonment.  In particular, Aquart’s appeal presented two issues that required close examination by the Court in a precedential opinion. 

The Court did not state any new legal holdings in its discussion of the mandate rule, instead relying on Supreme Court and Second Circuit precedent to reject Aquart’s arguments.  However, in evaluating Aquart’s contention that the delay in bringing his case to trial constituted clear error under the speedy trial clause, the Court emphasized the importance of the fourth factor in the speedy trial analysis: prejudice to the defendant.  The Court rejected Aquart’s invitation to significantly lower the burden on defendants of proving this factor by finding that pretrial anxiety can be presumed from pretrial delay.  Instead, the Court continued to hold that a defendant must articulate prejudice in this context of a speedy trial challenge with sufficient specificity.  It also emphasized that the more important inquiry for this factor is whether the defendant suffered trial-related prejudice in the form of lost witnesses or evidence, while weighing less heavily any prejudice on a defendant’s personal life that may result from a lengthy pretrial delay.  This may make it more difficult for defendants to press speedy trial claims, even where (as here) it took the government many years to bring the defendant to trial.

The Court also announced a new rule in the context of double jeopardy: that the prosecution and punishment of a defendant under 18 U.S.C. § 848(e)(1)(A) and the underlying predicate drug-trafficking offenses does not constitute a violation under the Double Jeopardy Clause.  That ruling brings the Court in-line with the Fifth Circuit, Vazquez, 889 F.3d at 383, the Eighth Circuit, United States v. Honken, 541 F.3d 1146, 1154–59 (8th Cir. 2008), the First Circuit, United States v. Collazo-Apone, 216 F.3d 163, 199–200 (1st Cir. 2000), and the Sixth Circuit, United States v. Snow, 48 F.3d 198, 200–01 (6th Cir. 1995).  In making its decision, the Court chose not to follow the Blockburger test, which courts (including on most occasions the Second Circuit) look to in order to determine whether there are two offenses or one in the context of the Double Jeopardy clause.  Instead, the Court decided that it could determine based on “common sense” the intent of the legislators to create two offenses for which a defendant can be prosecuted and punished.  It found that the statute evidenced a Congressional goal to provide prosecutors with a further prosecution mechanism for individuals involved in drug trafficking crimes. 

There is a certain logic to the Court’s ruling—while a drug-related homicide under Section 848(e) requires the commission of an underlying drug crime, the statutes are aimed at conduct and social harms that are not identical.  At the same time, it is unusual to see the panel decline to use the Blockberger test, which is almost the default standard in the Second Circuit, and whether the Court departs from this test in the future will be important to follow.