United States v. Aquart

12‐5086
United States v. Aquart
In the
United States Court of Appeals
For the Second Circuit
________________
A UGUST TERM 2016
No. 12‐5086‐cr
U NITED S TATES OF AMERICA,
Appellee,
v.
A ZIBO A QUART, AKA D., AKA D REDDY, AKA JUMBO , AKA A ZIBO
S MITH , AKA A ZIBO S IWATU JAHI S MITH ,
Defendant‐Appellant,
A ZIKIWE A QUART, AKA Z EE , NATHANIEL G RANT, AKA
C ORRECTIONAL O FFICER S TONE, E FRAIN JOHNSON,
Defendants.
________________
On Appeal from the United States District Court
for the District of Connecticut
A RGUED: A UGUST 29, 2016
D ECIDED: D ECEMBER 20, 2018

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Before: CALABRESI, R AGGI, WESLEY , Circuit Judges.
________________
On appeal from a judgment of the United States District Court
for the District of Connecticut (Arterton, J.) sentencing defendant
Azibo Aquart to death for his role in drug and racketeering related
murders, Aquart raises myriad challenges to both his conviction and
death sentence.
A FFIRMED as to conviction; V ACATED AND R EMANDED as to
sentence.
Judge Calabresi concurs in the judgment, joining the opinion in
part and concurring in part.
________________
S EAN J. B OLSER (Barry J. Fisher, on the brief),
Federal Capital Appellate Resource Counsel
Project, Brooklyn, New York; B EVERLY V AN
NESS , E SQ ., New York, New York, for
Defendant‐Appellant.
TRACY L EE D AYTON, JACABED R ODRIGUEZ‐
C OSS , Assistant United States Attorneys
(Sandra S. Glover, Assistant United States
Attorney; Leslie R. Caldwell, Assistant
Attorney General, Sung‐Hee Suh, Deputy
Assistant Attorney General, David M.
Lieberman, Attorney, Criminal Division,

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Appellate Section, U.S. Department of
Justice, Washington, D.C., on the brief), for
John H. Durham, United States Attorney for
the District of Connecticut, New Haven,
Connecticut, for Appellee.
________________
R EENA R AGGI, Circuit Judge:
_________________
TABLE OF CONTENTS
BACKGROUND ......................................................................................... 7
I. The Guilt Phase of Trial ................................................................. 7
A. The Prosecution Case ................................................................. 7
1. The Aquart Drug Enterprise .............................................. 7
2. The Murders of Tina Johnson, James Reid, and Basil
Williams ................................................................................. 8
a. Tina Johnson Interferes with Aquart’s Drug Enterprise
........................................................................................... 8
b. Planning the Murders ...................................................... 9
c. The August 24, 2005 Murders ....................................... 10
d. Discovery of the Murder Victims ................................ 11
e. Forensic Evidence ........................................................... 12
f. Post‐Murder Inculpatory Evidence .............................. 13
(i) Lashika Johnson Testifies to Aquart’s Efforts To
Destroy Evidence and to Efrain Johnson’s
Admissions ................................................................ 13

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(ii) Aquart Admits Destroying Evidence .............. 14
(iii) Aquart’s Efforts To Obstruct Justice ............... 15
B. The Defense Case ...................................................................... 16
C. Verdict ........................................................................................ 17
II. The Capital Penalty Phase of Trial ............................................. 17
A. The Prosecution Case ............................................................... 17
B. Defense Mitigating Factors ...................................................... 19
C. The Penalty Verdict .................................................................. 21
D. Sentence...................................................................................... 22
DISCUSSION............................................................................................. 23
I. Guilty Verdict Challenges ............................................................ 23
A. Sufficiency Challenge to VICAR Counts .............................. 23
1. Interstate Commerce Nexus ............................................. 24
2. Motive.................................................................................. 28
B. Perjury Challenges to Conviction ........................................... 30
1. John Taylor .......................................................................... 32
2. Lashika Johnson ................................................................. 40
C. Prosecutorial Misconduct in Summation .............................. 46
II. Sentencing Challenges ................................................................. 51
A. Standard for Reviewing Unpreserved Sentencing
Challenges ................................................................................. 52
B. Prosecutorial Misconduct Pertaining to Efrain Johnson
Evidence .................................................................................... 55
1. Improper Vouching............................................................ 58
2. Misleading Characterization of Plea Allocution ........... 73
3. Denigrating Defense Strategy .......................................... 78

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C. Sufficiency Challenge ............................................................... 84
1. Substantial Planning and Premeditation Aggravator... 86
2. Multiple Killings Aggravator ........................................... 89
D. Constitutionality Challenges to Death Penalty .................... 94
1. Per Se Eighth Amendment Challenge ............................. 94
2. Proportionality Challenge ................................................ 99
a. Judicial Proportionality Review Is Not
Constitutionally Mandated for Capital Sentences
Under the Federal Death Penalty Act ........................ 99
b. Aquart’s Death Sentence Is Not Constitutionally
Disproportionate ......................................................... 103
3. Arbitrariness Challenge .................................................. 106
4. Necessary and Proper Clause Challenge ..................... 112
5. “Originalist” Challenge .................................................. 121
a. Extending Capital Punishment to VICAR and CCE
Murders ........................................................................ 123
b. Federalism and the Federal Death Penalty in
Connecticut .................................................................. 128
CONCLUSION ....................................................................................... 136
______________
Early on the morning of August 24, 2005, drug dealer Azibo
Aquart, together with his brother Azikiwe Aquart and confederates
Efrain Johnson and John Taylor, donned masks and, at gunpoint,
forced their way into perceived drug competitor Tina Johnson’s
apartment in Bridgeport, Connecticut, whereupon the men restrained
her as well as fellow occupants James Reid and Basil Williams before

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bludgeoning all three to death with baseball bats.1 After a five week
trial in the United States District Court for the District of Connecticut
(Janet Bond Arterton, Judge), the jury found Aquart guilty of
conspiracy to commit violent crimes in aid of racketeering
(“VICAR”), specifically, murder, see 18 U.S.C. § 1959(a)(5); conspiracy
to traffic cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846;
and six substantive crimes punishable by a possible death sentence:
three for VICAR murder, see 18 U.S.C. § 1959(a)(1), and three for
murder in connection with a continuing criminal drug enterprise
(“CCE murder”), see 21 U.S.C. § 848(e)(1)(A). A capital penalty
proceeding followed at which the same jury unanimously voted for a
death sentence on the two VICAR and two CCE murder counts
pertaining to the murders of Tina Johnson and Basil Williams, but not
for these crimes as pertaining to James Reid.
Aquart here appeals both his conviction and his death sentence.
As to conviction, he argues that (1) the trial evidence was insufficient
to support guilty verdicts on any of the charged VICAR counts, (2) the
prosecution suborned perjury by witnesses John Taylor and Lashika
Johnson, and (3) he was prejudiced by prosecutorial misconduct in
summation. As to sentence, Aquart’s challenges fall into three
categories: (1) prosecutorial misconduct at the penalty phase,
(2) insufficiency of the evidence as to certain identified aggravating
1 Insofar as some of the participants in this case have the same surname, we use “Aquart”
to refer to defendant‐appellant Azibo Aquart. We refer to his brother, Azikiwe Aquart, by
his full name. We similarly refer by full name to Aquart’s murder confederate, Efrain
Johnson; to Efrain Johnson’s sister and Aquart’s former girlfriend, Lashika Johnson; and
to unrelated murder victim, Tina Johnson.

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factors, and (3) unconstitutionality of the death penalty both
generally and as applied to his case.
The panel affirms Aquart’s conviction but, based on
prosecutorial error, vacates his death sentence and remands the case
for a new penalty hearing.
BACKGROUND
I. The Guilt Phase of Trial
A. The Prosecution Case
1. The Aquart Drug Enterprise
The trial evidence, viewed most favorably to the jury’s verdict,
showed that from at least the fall of 2004 through August 2005, Aquart
headed a drug distribution enterprise in Bridgeport, Connecticut,
whose base of operations was Apartment 211 at 215 Charles Street.
There, Aquart or one of his lieutenants would deliver pre‐packaged
crack cocaine to dealers and receive drug sale proceeds from them in
return.
Aquart maintained tight control over his enterprise, making
frequent unannounced visits to the Charles Street apartment to
ensure that drugs and sale proceeds were properly accounted for and
that the organization’s rules were followed. Departures from the
rules brought swift and often violent consequences. Dealers who
could not properly account for proceeds from crack given to them for

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sale or who presumed to sell drugs obtained from other sources had
their noses broken or knees dislocated, often by Aquart himself.
2. The Murders of Tina Johnson, James Reid, and
Basil Williams
a. Tina Johnson Interferes with Aquart’s Drug
Enterprise
In the summer of 2005, Tina Johnson and her boyfriend James
Reid moved into Apartment 101 at 215 Charles Street, where their
friend Basil Williams was already living. Tina Johnson and Reid
started purchasing crack from Aquart’s dealers in Apartment 211.
Later in the summer, however, when the quality of the crack sold
from Apartment 211 declined, Tina Johnson sought out another
supplier, and she began selling small packets of the crack she acquired
from that other source out of Apartment 101, attracting some
customers of the Aquart enterprise.
Prosecution witness Rodney Womble, a former Aquart
lieutenant, testified that he alerted his boss to Tina Johnson’s
activities, prompting Aquart to confront her directly and to tell her
that she had “better quit” selling crack in competition with him
because he was “not playing.” Gov’t App’x 290. Tina Johnson
ignored the warning, even when reiterated by Womble in a heated
argument during which he brandished a table leg. Indeed, Tina
Johnson told Womble that if she could not sell crack at Charles Street,
“nobody is selling” because she would call the police and shut down

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Aquart’s operation. Id. at 373. Womble reported this message to
Aquart, who replied that he would “take care of it.” Id.
b. Planning the Murders
In late August of 2005, Aquart recruited John Taylor, one of his
marijuana dealers, and Efrain Johnson, the brother of Aquart’s then‐
girlfriend Lashika Johnson, to help with “something.” Id. at 569.
Aquart did not immediately specify the nature of the task, but he
promised Taylor—who testified for the prosecution—a place to sell
drugs in the Charles Street apartment building.
A few days later, Aquart, accompanied by his brother Azikiwe
Aquart and Taylor, purchased rolls of duct tape at a Walgreens store.
The three men proceeded to the parking lot of a diner adjacent to 215
Charles Street, where they met Efrain Johnson. Taylor testified that
Aquart there explained that people in the apartment building were
“into his money business” and that he wanted to “take them out or
move them out . . . of the building.” Id. at 573. Azikiwe Aquart
proceeded to supply the men with face masks and latex gloves while
Efrain Johnson produced two baseball bats, giving one to Azikiwe
Aquart and keeping one for himself. All four men then entered 215
Charles Street intent on entering Apartment 101. They abandoned
their effort, however, after seeing a woman knock on the door of that
apartment with no answer.

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c. The August 24, 2005 Murders
Very early in the morning on August 24, 2005, the same four
men met again in the underground parking lot on Charles Street.
Referring to Tina Johnson, Aquart reported, “I know she’s there
now.” Id. at 577. As before, Azikiwe Aquart distributed masks and
latex gloves to everyone, and he and Efrain Johnson took possession
of two baseball bats.
The four men proceeded to enter the apartment building
through the garage and to climb the stairwell to Tina Johnson’s floor.
Taylor saw Aquart draw a gun as he approached the door to
Apartment 101 and proceeded to kick it in, breaking the doorframe.
Inside the apartment, Aquart brandished the gun and shouted, “get
on the ground.” Id. at 579. Basil Williams instead retreated to his
bedroom, followed by Efrain Johnson. Meanwhile, the Aquart
brothers ran into the adjacent bedroom, where they found Tina
Johnson and James Reid. Taylor remained in the living room,
blocking the front door with a couch and keeping watch at a window.
As he did so, Taylor heard the sound of duct tape being pulled off a
roll. Looking into one of the bedrooms, he saw Aquart and Azikiwe
Aquart using the duct tape to restrain Tina Johnson and Reid.
Taylor returned to the living room and, after a brief silence,
heard a muffled, high‐pitched cry. Looking into the bedroom, Taylor
saw Azikiwe Aquart bludgeoning Reid with one of the baseball bats
while Aquart did the same to Tina Johnson, “standing over [her] body
bashing her like he was . . . at a meat market, beating [her].” Id. at 626.

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When Taylor questioned what Aquart was doing, he replied, “Yo,
come and get you some.” Id. at 581. Instead, Taylor stated that he
was “out of [t]here,” whereupon he pushed the couch away from the
front door and left the apartment. Id. A short while later, Azikiwe
Aquart also left the apartment, taking with him Aquart’s gun, Tina
Johnson’s cell phone, and some money found in the apartment. When
these two men reconnected, Azikiwe Aquart asked Taylor if he had
“hear[d] the people say our names”; Taylor replied that he had not.
Id. at 582.
d. Discovery of the Murder Victims
The prosecution offered no further eyewitness testimony as to
what happened in Apartment 101 after Taylor’s departure. It offered
considerable evidence, however, as to the state of the victims’ bodies
when they were discovered the next morning.
Tina Johnson’s adult son, Leroy Whittingham, testified that he
went to Apartment 101 at approximately 10:00 a.m. on the morning
of the murders. When his knocks went unanswered, he gained entry
to the apartment through an open window. Inside, he found his
mother and Reid lying dead on the floor in one bedroom, with
Williams dead in another bedroom, all three victims bound with duct
tape. The bedrooms were covered in blood, and the living room
looked as if there had been “a war in there.” Id. at 23. Whittingham
tried to exit the apartment through the front door to get help, but he
found that it had been drilled shut from the inside. Instead, he

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jumped out of an apartment window and, with the assistance of a
neighbor, called 911.
e. Forensic Evidence
Law enforcement authorities responded to the 911 call and,
over the course of the next three days, collected forensic evidence
inside Apartment 101. First‐responder testimony and crime‐scene
evidence showed that all three murder victims had their hands and
feet bound with duct tape. Duct tape was also wrapped tightly
around their heads and mouths. Medical examination showed that
Tina Johnson died from “blunt force trauma,” having suffered
repeated blows to her head, administered with sufficient force to
cause multiple skull fractures, among other injuries. Id. at 440. Reid
and Williams also died from “blunt traumatic head injury,” with
multiple skull fractures. Id. at 113, 988–89.
Despite the killers’ having worn gloves, subsequent fingerprint
analysis was able to link Azikiwe Aquart to two plastic bags (one
from Walgreens) recovered from Williams’s bedroom, and to link
Aquart to a piece of duct tape holding the two bags together.
Subsequent DNA analysis linked Efrain Johnson to a latex glove
fragment stuck in duct tape cut from Tina Johnson’s hands and wrists.
DNA analysis also linked various retrieved evidentiary fragments—
somewhat more qualifiedly—to Azibo and Azikiwe Aquart as well as
to the three victims. On some retrieved fragments, examiners found
more than one person’s genetic markers. On other fragments,

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examiners could not eliminate Aquart, Taylor, or the victims as DNA
contributors.2
f. Post‐Murder Inculpatory Evidence
(i) Lashika Johnson Testifies to Aquart’s
Efforts To Destroy Evidence and to
Efrain Johnson’s Admissions
Lashika Johnson, the sister of Efrain Johnson and, in August
2005, Aquart’s girlfriend, testified that, on the morning of August 24,
2005, she awoke to find both Aquart brothers and her own brother in
her apartment. The Aquart brothers were wearing only their
underwear. Aquart proceeded to give her some garbage bags
containing clothing and a black drill, which he told her to throw in a
dumpster. Aquart further ordered Lashika Johnson to drive his car
to his apartment, to park it in a manner that suggested he had been
home all day and night, and then to retrieve some clothes for him.
2 Christine Roy, a forensic science examiner from the Connecticut State Forensic
Laboratory, testified that a cannot‐be‐eliminated conclusion meant that she had identified
a significant number, but not all, of a person’s genetic markers on a retrieved sample. Thus,
a vinyl glove retrieved from Tina Johnson’s and Reid’s bedroom revealed a mixture of
DNA to which Roy concluded Aquart, Azikiwe Aquart, Reid, and Williams had each
contributed because she detected all of each person’s genetic markers on the glove. By
contrast, because she detected a significant number, but not all, of the genetic markers of
Tina Johnson and Taylor on the glove, these persons could not be eliminated as DNA
contributors. Similarly, Roy could conclude that Reid contributed to the DNA mixture
detected on a latex fragment retrieved from under the cushion of a couch pushed against
the front door because all of his genetic markers were present, and that Aquart could not
be eliminated as a contributor because 28 of his 30 markers were detected.

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When Lashika Johnson had performed these tasks and
returned to her apartment, only Aquart was still there. He received a
call on his cell phone during which Lashika Johnson heard him say,
“why would you take a cell phone from . . . why would you be calling
me from this cell phone[?]” Id. at 723. Telephone records showed that
at 10:25 a.m. on the morning of the August 24 murders—after Tina
Johnson’s dead body had already been discovered by her son—
Aquart’s cell phone was called by Tina Johnson’s cell phone, which
Azikiwe Aquart had taken from the murder scene.
Lashika Johnson further testified that sometime later, but
before his own arrest, her brother discussed the events of August 24
with her. Efrain Johnson admitted being in Apartment 101 that
morning with the Aquart brothers and an unnamed fourth person
(Taylor) who did not live in Bridgeport. Efrain Johnson said that he
had “helped tie the people up and rough them up a little bit,” but he
maintained that the occupants were “still alive” when he left the
apartment, leaving only Aquart with the victims. Id. at 727–28. Efrain
Johnson further reported that the men had gotten rid of the gloves,
masks, and bats used in the attack before arriving at his sister’s
apartment on the morning of August 24.
(ii) Aquart Admits Destroying Evidence
In September 2005, while in the Bridgeport Correctional Center,
Aquart (arrested for violating parole) told Taylor (arrested for selling
drugs) that he had had his “baby momma g[e]t rid of the weapons”

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from the night of the murders, an apparent reference to Shante
Pettway. Id. at 586.
(iii) Aquart’s Efforts To Obstruct Justice
Aquart was arrested in this case in 2007. In 2009–10, while
incarcerated awaiting trial, he engaged in various efforts to obstruct
justice, manifesting consciousness of guilt.
In October 2009, Aquart wrote to Venro Fleming, a member of
his drug organization, stating that if federal authorities contacted
Fleming, he should say that there was no “gang” working for Aquart
and that “EVERYONE DID THEIR OWN THING.” Id. at 1941
(capitalization in original). Aquart explained that this was important
because the charge against him was conspiracy, which means “when
TWO OR MORE people get together to do something illegal. If
people were doing what they do on their own, there is no
conspiracy. . . .” Id. (capitalization in original). Aquart told Fleming
to pass this message on to others from Charles Street: “let them know
the deal if you care about them,” concluding that he hoped Fleming
“got the message.” Id. at 1942.
In early 2010, Aquart told Shamarr Myers, a convicted drug
dealer whom Aquart had befriended while incarcerated, that he had
sold crack in Bridgeport, but had had some problems with others
selling crack in the same building and decided, first, that “they had to
go” but, eventually, that “they had to die.” Id. at 911. Soliciting
Myers’s help, Aquart prepared a letter detailing exactly what Myers
was to do. Among the urged actions was for Myers to have a

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“courtroom outburst” when testifying at Aquart’s trial. Id. at 1936.
Specifically, Myers was to declare that “[e]verybody” knew that
“Letho” had killed Tina Johnson, Reid, and Williams, and that Letho
had confessed as much to Myers’s friend “Simone.” Id. The letter told
Myers to “point [his] finger at pros[ecutors] and agents at the table”
and testify that they had solicited his testimony against Aquart
without caring whether Myers actually knew anything about the
murders. Id. at 1938. Myers was further to say that these officials had
told him that all he had to do was remember what they told him about
“people’s names, dates, times,” and “about . . . bags and bats,” in
return for which they would arrange for his early release from prison.
Id.
Instead, Myers brought Aquart’s communication to the
attention of the authorities and testified as a prosecution witness.
B. The Defense Case
The defense called various law enforcement officials to testify
to inconsistent pre‐trial statements made by various witnesses
cooperating with the government, including Lashika Johnson and
John Taylor. It urged the jury not to find these witnesses credible
insofar as they inculpated Aquart. Indeed, the defense insinuated
that Taylor was not even in Apartment 101 at the time of the murders
and, thus, could not credibly testify to who was then inside the
apartment or to what had happened.

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C. Verdict
On May 23, 2011, the jury found Aquart guilty on the six capital
and two non‐capital charges against him. The case then proceeded to
a capital penalty proceeding on the three VICAR murder counts as to
Tina Johnson, Reid, and Williams (Counts Two, Three, and Four), and
the three CCE murder counts as to the same victims (Counts Five, Six,
and Seven).
II. The Capital Penalty Phase of Trial
A. The Prosecution Case
In urging the death penalty, the prosecution maintained that
Aquart was over 18 at the time of the charged murders and that he
had acted with the requisite culpable intent, as required by 18 U.S.C.
§ 3591(a) and 21 U.S.C. § 848(n)(1) (1996). Further, it relied on five
statutory aggravating factors, specifically, that Aquart had
(1) committed each proved murder in an especially heinous, cruel, or
depraved manner in that it involved torture or serious physical abuse;
(2) procured commission of the murders by payment, promise of
payment, or anything of pecuniary value; (3) committed the murders
in consideration for the receipt, or in expectation of the receipt, of
anything of pecuniary value; (4) committed the murders after
substantial planning and premeditation to cause the deaths of the
victims; and (5) intentionally killed more than one person in a single
criminal episode. See 18 U.S.C. § 3592(c); 21 U.S.C. § 848(n) (1996). It
also relied on two non‐statutory aggravating factors: (6) Aquart’s
engagement in a continuing pattern of violent criminal conduct

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posing a serious threat to the lives and safety of persons in addition
to the three murdered victims; and (7) the severe and irreparable
harm the murders caused the victims’ families.
In support of these factors, the prosecution relied on the
evidence already adduced at the guilt phase of trial. In addition, as
to the first statutory factor—the heinous, cruel, and depraved manner
of the murders—the prosecution offered expert testimony that blood
stain patterns on the walls and ceiling of the bedroom where Tina
Johnson and Reid were found dead indicated that these victims were
beaten “many, many times,” from multiple angles, and with a “great
amount of force.” Gov’t App’x 1182, 1184. Moreover, the object used
to administer the beating had to have had a sufficient surface area to
hold a large amount of blood and had to have been long enough that,
when raised, it would propel so much blood onto the ceiling that it
subsequently flowed down the walls. The same expert testified that
the majority of blood stains in Williams’s room were in the area
around his head.
In support of the first non‐statutory factor—Aquart’s pattern of
violence—the prosecution supplemented its guilt phase evidence of
four assaults with proof of two further incidents—one while Aquart
was at liberty, the other while he was detained—where he had
attacked persons with sufficient force that they required hospital

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treatment.3 In support of the second non‐statutory factor—familial
harm—the prosecution offered the live testimony of six relatives of
the deceased victims as well as letters from many more.
B. Defense Mitigating Factors
Aquart presented the jury with 28 factors mitigating against a
death sentence. Nineteen concerned hardships and privations he
experienced as a child, including his parents’ drug dealing, his
father’s imprisonment and deportation when Aquart was 11, and his
mother’s drowning death when Aquart was 12, after which he failed
to receive adequate care and supervision. Other mitigating factors
included an assertion that the victims’ own drug trafficking
contributed to their deaths, the fact that confederates Taylor and
Efrain Johnson were not facing the death penalty, the life sentence
3 The six assaults on which the government relied to prove the pattern aggravator were as
follows:
Jackie Bryant (November 2004)—When she is short approximately $100 on drug proceeds
owed to Aquart, he punches her until she loses consciousness. She sustains injury to her
knee resulting in permanent scarring.
Venro Fleming (February 2005)—Thinking that Fleming owes him money for missing
crack cocaine, Aquart assaults Fleming, fracturing his nose and cutting his eye and lip.
Frank Hodges (May 2005)—In retaliation for Hodges selling drugs from another supplier,
Aquart fractures his nose and blackens his eye.
Juanita Hopkins and John Sullivan (July 2005)—Upon learning that Aquart worker
Hopkins has allowed her brother, Sullivan, to sell others’ drugs from apartment 211,
Aquart pistol‐whips both of them, with Sullivan requiring stitches to his head and ear.
Anthony Armstead (October 2009)—Aquart confronts Armstead in prison and strikes him
repeatedly in the head, requiring stitches to his head, both eyes, lip, and ear.

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Aquart would serve if the jury did not vote for death, and the ability
of the Bureau of Prisons to confine Aquart safely and securely for life.
In support of his mitigator about the lesser penalties faced by
Taylor and Efrain Johnson, Aquart called FBI Agent Christopher
Munger to testify to accounts of the murders provided by Efrain
Johnson in various interviews.4 In these statements, Efrain Johnson
acknowledged that he, Aquart, Azikiwe Aquart, and Taylor (referred
to only as “the Big Dude”) were the four men who entered Apartment
101 on August 24, 2005. But he attributed a larger role in the crime to
Taylor than Taylor had admitted during his testimony. Specifically,
Efrain Johnson stated that it was Taylor who had led the push into the
apartment and that it was Taylor who had ordered Efrain Johnson to
bind Tina Johnson (identified by Efrain Johnson only as “the
woman”) with duct tape. Meanwhile, the Aquart brothers pushed a
man unknown to Efrain Johnson into one of the back bedrooms.
When Taylor grew frustrated with how long it was taking Efrain
Johnson to restrain Tina Johnson, Taylor took the duct tape and
completed the task himself. Efrain Johnson further told law
enforcement officials that it was Taylor who punched Tina Johnson in
the face when she started screaming, and who beat her in the head
with a two‐inch thick, ten‐inch long metal pipe that he pulled from
the side of his pants. Efrain Johnson stated that it was at that point
4 Aquart could not introduce such hearsay statements at the guilt phase of the trial, but
was permitted to do so at the penalty phase pursuant to 18 U.S.C. § 3593(c) (allowing
admission of information at capital sentencing proceeding “regardless of its admissibility
under the rules governing admission of evidence at criminal trials except that information
may be excluded if its probative value is outweighed by the danger of creating unfair
prejudice”).

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that he ran out of the apartment and waited in a car for the others to
leave the apartment.
C. The Penalty Verdict
After three days of deliberation, the jury returned its penalty
verdict, unanimously finding that Aquart should be sentenced to
death for the racketeering and drug related murders of Tina Johnson
and Basil Williams. The jury was unable to reach unanimity as to
whether Aquart should be sentenced to death for the murder of James
Reid.
In the special verdict informing its decision, the jury reported
unanimously finding that the government had established each of the
five statutory aggravating factors and each of the two non‐statutory
aggravating factors beyond a reasonable doubt. It reported
unanimously finding 25 of the defense’s 28 mitigating factors proved
by the requisite preponderance of the evidence. Among the
mitigators unanimously found so proved was the fact that other
participants in the murders—specifically, Taylor and Efrain
Johnson—were not facing the death penalty. As to the remaining
three mitigators, nine jurors were persuaded that Aquart lacked
adequate parental supervision throughout his childhood, two found
that he lacked meaningful adult supervision from the time of his
mother’s death, and nine found that he was exposed to emotional and
physical abuse inflicted on his mother. The jury itself unanimously
identified as another mitigator the fact that Aquart had a child.

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The jury nevertheless found beyond a reasonable doubt that the
aggravating factors sufficiently outweighed the mitigating factors to
warrant a death sentence.5
D. Sentence
After rejecting various defense motions for a new trial or
penalty proceeding, the district court, on December 18, 2012,
sentenced Aquart to death on Counts Two and Five for the VICAR
and CCE murder of Tina Johnson, and on Counts Four and Seven for
the VICAR and CCE murder of Basil Williams. It sentenced the
defendant to consecutive life sentences on Counts Three and Six for
the VICAR and CCE murder of James Reid, and on Count Eight for
conspiracy to traffic in 50 grams or more of crack cocaine. It imposed
a further consecutive prison sentence of ten years for VICAR
conspiracy to murder.6
This timely appeal followed.
5 The government acknowledges that federal law requires a capital jury to find that
aggravating factors sufficiently outweigh mitigating factors “to justify a sentence of
death,” 18 U.S.C. § 3593(e), but submits the finding need not be beyond a reasonable doubt.
See United States v. Mitchell, 502 F.3d 931, 993–94 (9th Cir. 2007); United States v. Barrett, 496
F.3d 1079, 1107–08 (10th Cir. 2007); United States v. Sampson, 486 F.3d 13, 31 (1st Cir. 2007);
United States v. Fields, 483 F.3d 313, 345–46 (5th Cir. 2007). We do not decide the question
here because the jury was specifically instructed that its weighing determination had to be
made beyond a reasonable doubt, and the government urges a lesser standard only in a
footnote. See United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993) (“We do not
consider an argument mentioned only in a footnote to be adequately raised or preserved
for appellate review.”).
6 On the government’s motion, the district court dismissed Count Ten, which had charged
Aquart with possession of a firearm by a convicted felon.

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DISCUSSION
Before addressing Aquart’s capital sentence, we consider his
challenges to the guilty verdict and unanimously affirm that part of
the judgment of conviction.
I. Guilty Verdict Challenges
A. Sufficiency Challenge to VICAR Counts
Aquart argues that the evidence was insufficient as a matter of
law to support a guilty verdict on the single conspiracy and three
substantive VICAR counts for which he stands convicted. While we
examine a sufficiency challenge de novo, the defendant bears a heavy
burden because we must view the evidence “in the light most
favorable to the government, crediting every inference that could
have been drawn in the government’s favor, and deferring to the
jury’s assessment of witness credibility and its assessment of the
weight of the evidence.” United States v. Sheehan, 838 F.3d 109, 119 (2d
Cir. 2016) (internal quotation marks omitted). In doing so, we
consider the evidence “in its totality, not in isolation,” United States v.
Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (internal quotation marks
omitted), and we “will sustain the jury’s verdict if ‘any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt,’” United States v. Pierce, 785 F.3d 832, 837 (2d Cir.
2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
in Jackson)).

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Aquart does not here dispute the sufficiency of the evidence to
prove that, together with others, he conspired to, and did in fact,
murder Tina Johnson, James Reid, and Basil Williams. Rather, he
submits that the evidence failed to establish either (a) VICAR’s
jurisdictional requirement of an interstate commerce nexus or (b) its
motive requirement that the murders have been committed to
maintain or increase Aquart’s position in the charged drug enterprise.
The argument is defeated by both controlling law and the evidentiary
record.7
1. Interstate Commerce Nexus
To secure conviction on any of the four VICAR counts, the
government was required to prove that Aquart’s racketeering
enterprise “engaged in,” or that its “activities . . . affect[ed], interstate
or foreign commerce.” 18 U.S.C. § 1959(b)(2). This burden is not a
heavy one, and can be satisfied by “even a de minimis effect on
interstate commerce.” United States v. Mejia, 545 F.3d 179, 203 (2d Cir.
2008); see also United States v. Davila, 461 F.3d 298, 306 (2d Cir. 2006).
Such an effect was here shown by evidence that Aquart and
enterprise confederates used firearms and ammunition that had
crossed state lines in furthering their criminal objectives. Toward the
same end, they used instrumentalities of commerce to travel
interstate. See United States v. Mejia, 545 F.3d at 203–04 (ruling that
7 Aquart acknowledges that both parts of his VICAR sufficiency challenge “are foreclosed
by the caselaw of this Circuit, which this Court is bound to apply,” but he raises them
nonetheless in order to preserve the issues for en banc and Supreme Court review.
Appellant’s Br. 228.

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enterprise members’ purchase of firearms that had crossed state lines
as well as their own interstate travel to conduct enterprise‐related
activities satisfy interstate nexus).
But more, the requisite interstate commerce was here satisfied
by evidence that the enterprise trafficked in crack cocaine. In Gonzales
v. Raich, 545 U.S. 1 (2005), and more recently in Taylor v. United States,
136 S. Ct. 2074 (2016), the Supreme Court has recognized that drug
trafficking, even local trafficking, is “part of an economic ‘class of
activities’ that have a substantial effect on interstate commerce.”
Gonzales v. Raich, 545 U.S. at 17, 22 (recognizing Congress’s Commerce
Clause authority to criminalize production, possession, and sale of
controlled substances, even when activity is purely local); accord
Taylor v. United States, 136 S. Ct. at 2080 (applying Raich to Hobbs Act
drug robberies). In the interval between these decisions, this court
reached a similar conclusion in rejecting a sufficiency challenge to the
interstate commerce element of the Hobbs Act. See United States v.
Needham, 604 F.3d 673, 680–81 (2d Cir. 2010). The charged Hobbs Act
robberies in Needham targeted heroin and cocaine supplies.
Observing that such drugs “necessarily travel in interstate
commerce,” we concluded that a jury was entitled to infer, based
simply on its lay knowledge, and unassisted by expert testimony, that
such drugs are imported into the United States so as to affect

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interstate and foreign commerce. Id. at 680–81; see United States v.
Gomez, 580 F.3d 94, 102 (2d Cir. 2009).8
No different sufficiency conclusion is warranted here because
the interstate commerce element is part of the VICAR statute, see 18
U.S.C. § 1959 (pertaining to enterprise “engaged in, or the activities of
which affect, interstate or foreign commerce”), rather than the Hobbs
Act, see id. § 1951 (pertaining to robbery that “affects commerce”).
Both statutes fall within Chapter 95 of Title 18, entitled
“Racketeering,” and this court has drawn on Hobbs Act precedent in
rejecting a sufficiency challenge to VICAR’s interstate commerce
element. See United States v. Mapp, 170 F.3d 328, 336 (2d Cir. 1999)
(rejecting sufficiency challenge to § 1959 VICAR conviction by
reference to United States v. Taylor, 92 F.3d 1313, 1333 (2d Cir. 1996)).
In any event, insofar as the murder of a rival drug dealer completely
removes a competitor from the market, whereas the robbery of such
a dealer’s supply does so only to a degree, we conclude that VICAR
murders to preserve a drug trafficking monopoly, as here, affect
interstate commerce as much as the Hobbs Act drug robberies at issue
in Needham.
8 To the extent Needham did not extend this conclusion to marijuana because it could be
“grown, processed, and sold entirely” intrastate, United States v. Needham, 604 F.3d at 676,
that part of its holding was expressly abrogated by Taylor v. United States, 136 S. Ct. at 2080–
81 (explaining that “Raich established that the purely intrastate production and sale of
marijuana is commerce over which the Federal Government has jurisdiction,” and
concluding therefrom that “if the Government proves beyond a reasonable doubt that a
robber targeted a marijuana dealer’s drugs or illegal proceeds, the Government has proved
beyond a reasonable doubt that commerce over which the United States has jurisdiction
was affected”).

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Aquart argues nonetheless that Needham runs afoul of Apprendi
v. New Jersey, 530 U.S. 466 (2000), in that a “presumption” that cocaine
travels in interstate commerce “effectively absolves the jury from
finding” that fact as “an element of the offense.” Appellant’s Br. 229.
The argument fails because Needham does not establish a
presumption; rather, it permits an inference. See United States v.
Needham, 604 F.3d at 679–80. The jury must still find proved the facts
that support the inference. See id. at 678. As the Supreme Court
explained in Taylor v. United States, the standard of proof cannot be
confused with the element that must be proved. 136 S. Ct. at 2080.
Both VICAR and the Hobbs Act include a commerce element, which
the government must establish beyond a reasonable doubt, “but the
meaning of that element is a question of law.” Id. Thus, in the Hobbs
Act context, “if the Government proves beyond a reasonable doubt
that a robber targeted a . . . dealer’s drugs or illegal proceeds,” Taylor
holds that “the Government has proved beyond a reasonable doubt
that commerce over which the United States has jurisdiction was
affected.” Id. at 2080–81. So in the VICAR context here, if the
government adduced sufficient evidence to prove that Aquart and his
confederates murdered a perceived drug rival, the government has
carried its burden to prove that the murder affected interstate
commerce.
As detailed supra, Background Section I.A., the government
offered ample evidence—from former enterprise members,
cooperating witnesses, and law enforcement officers—that the
primary focus of the Aquart enterprise was drug trafficking; the

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enterprise exercised exclusive control over the distribution of crack
cocaine at 215 Charles Street; in 2005, enterprise leader Aquart
perceived Tina Johnson as a drug rival who threatened the
enterprise’s monopoly; and Aquart murdered Tina Johnson and two
others in order to eliminate that competition. Under controlling
Supreme Court and circuit precedent, such evidence, viewed most
favorably to the government, sufficed to prove beyond a reasonable
doubt “that commerce over which the United States has jurisdiction
was affected” by the charged VICAR murders. Id. at 2081; see United
States v. Needham, 604 F.3d at 680–81.
2. Motive
Although Aquart does not challenge the proof of either his
participation in the charged murders or his leadership of the
racketeering enterprise, he argues that the evidence was insufficient
to link the two so as to establish the requisite motive, specifically, that
Aquart murdered “for the purpose of . . . maintaining or increasing
[his] position” in the racketeering enterprise. 18 U.S.C. § 1959(a).
This argument fails because VICAR’s motive element can be
satisfied by evidence that allows a jury to “infer that the defendant
committed his violent crime because he knew it was expected of him
by reason of his membership in the enterprise or that he committed it
in furtherance of that membership.” United States v. Dhinsa, 243 F.3d
635, 671 (2d Cir. 2001) (internal quotation marks omitted). Thus, we
have affirmed VICAR convictions where violent crimes are
“committed or sanctioned by high ranking leaders of the enterprise

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for the purpose of protecting the enterprise’s operations and
furthering its objectives.” Id. That is this case.
Various witnesses testified to Aquart’s expressed frustration
with Tina Johnson’s sale of crack cocaine on what he perceived to be
his enterprise’s territory, and with her defiance of his orders to stop
such sales. The jury heard confederate Taylor testify that Aquart
explained to his murder accomplices, as they were about to enter
Apartment 101, that the defendant needed to get occupant Tina
Johnson out of “his money business.” Gov’t App’x 573. They heard
Shamarr Myers testify that, after the murders, Aquart had told him
that persons who had attempted to sell drugs in competition with him
“had to die.” Id. at 911. Such evidence was sufficient for a reasonable
jury to conclude that Aquart orchestrated and participated in the
charged VICAR crimes in order to “protect[] the enterprise’s
operations and further[] its objectives.” United States v. Dhinsa, 243
F.3d at 671.
Aquart acknowledges that Dhinsa defeats the motive prong of
his VICAR sufficiency challenge, but he urges that Dhinsa should be
overruled because its holding “cannot be squared with the plain
language of § 1959, which . . . sweeps more narrowly to cover only a
defendant’s own personal position.” Appellant’s Br. 229–30. The
proposition that VICAR’s motive element is satisfied by proof that a
defendant committed the crime “because he knew it was expected of
him by reason of his membership in the enterprise or that he
committed it in furtherance of that membership” was first announced
in United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992), and is

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well‐settled in this circuit, see United States v. Dhinsa, 243 F.3d at 671–
72 (collecting cases). This panel is bound by that precedent and not
inclined, in any event, to depart from it. See Lotes Co. v. Hon Hai
Precision Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014) (reiterating rule
that “a panel of this Court is bound by the decisions of prior panels
until such time as they are overruled either by an en banc panel of our
Court or by the Supreme Court” (internal quotation marks omitted)).
Moreover, we conclude that the motive element would be
satisfied even under Aquart’s narrow reading of the statute. He was
the leader of the charged enterprise, and the evidence was sufficient
to allow a reasonable jury to infer that he “was expected to act based
on the threat posed to the enterprise” by Tina Johnson’s drug sales,
“and that failure to do so would have undermined his position within
that enterprise.” United States v. Dhinsa, 243 F.3d at 671 (emphasis
added); see United States v. Diaz, 176 F.3d 52, 95–96 (2d Cir. 1999).
Thus, defendant’s sufficiency challenge to his VICAR
convictions fails on the merits.
B. Perjury Challenges to Conviction
Aquart argues that all counts of conviction were tainted by the
perjured testimony of prosecution witnesses John Taylor and Lashika
Johnson, specifically, by Taylor’s understatement of his expectations
for sentencing consideration and by Lashika Johnson’s denial of
prosecution threats during a proffer session. To pursue relief from
conviction based on claimed perjury, Aquart must make a threshold
showing that each of these witnesses in fact willfully testified falsely

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and that the falsehoods were not known to him at the time of trial. See
United States v. Stewart, 433 F.3d 273, 297 (2d Cir. 2006); see also United
States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001) (stating that
“witness commits perjury if he gives false testimony concerning a
material matter with the willful intent to provide false testimony, as
distinguished from incorrect testimony resulting from confusion,
mistake, or faulty memory”). Such a showing does not, by itself,
warrant a new trial. See United States v. Stewart, 433 F.3d at 297. At
that point, the court must “strike a fair balance between the need for
both integrity and finality in criminal prosecutions.” Id. (internal
quotation marks omitted). To do that, the court must assess the
materiality of the false statements, applying one of two standards
depending on the prosecution’s awareness of the falsehoods at the
time of trial. If the prosecution knew, or should have known, of the
false testimony prior to the conclusion of trial, the conviction must be
set aside if there is “any reasonable likelihood” that the testimony
could have affected the jury’s judgment. United States v. Cromitie, 727
F.3d 194, 221–22 (2d Cir. 2013) (internal quotation marks omitted)
(collecting cases). If the government was unaware of the falsity at the
time of trial, a new trial is warranted if the court is left with the “firm
belief that but for the perjured testimony, the defendant would most
likely not have been convicted.” United States v. Stewart, 433 F.3d at
297 (internal quotation marks omitted).
Applying these principles here, we conclude that neither of
Aquart’s perjury claims warrants relief.

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1. John Taylor
At the time Taylor testified at Aquart’s trial, he himself had
pleaded guilty to three substantive VICAR counts pursuant to a plea
agreement that allowed him to face three mandatory life sentences
rather than the death penalty. See 18 U.S.C. § 1959(a)(1). Taylor had
also entered into a cooperation agreement that held out the possibility
of a government motion for a lesser, non‐mandatory sentence if
Taylor provided “substantial assistance in the investigation or
prosecution of another person.” Gov’t App’x 1819 (citing 18 U.S.C.
§ 3553(e), U.S.S.G. § 5K1.1).
At the conclusion of Taylor’s direct examination, the
government elicited the following testimony about Taylor’s motives
for testifying and his sentencing expectations:
Prosecution: Why are you testifying?
Taylor: To tell the truth.
Prosecution: Why?
Taylor: People got killed for no reason. They
shouldn’t got killed. When I said they
shouldn’t got killed, it never should
have gone to the point it went to.
. . .
Prosecution: What are you hoping happens to you?

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33
Taylor: Lesser sentence.
Prosecution: Do you think you are going to go
home tomorrow?
Taylor: No.
Prosecution: When do you think you are going to
go home?
Taylor: I don’t think I’m never going home.
Id. at 593–94.
Aquart voiced no objection to these inquiries at trial. Nor did
his attorney attempt to impeach any of Taylor’s above‐quoted
responses despite a two‐day‐long cross‐examination that repeatedly
reminded the jury of various lies that Taylor had told law
enforcement officers. See, e.g., id. at 623–24. Instead, for the first time
on appeal, Aquart suggests that Taylor’s quoted statement—“I don’t
think I’m never going home”—falsely understated his expectations
for sentencing consideration based on his cooperation.
Aquart concedes that, on the present record, he cannot make
the showings necessary to secure a new trial based on perjured
testimony. He submits that he should not now have to do so because
he is not yet demanding a new trial, but only a hearing “to determine
whether Taylor falsely understated his sentencing expectations.”
Appellant’s Reply Br. 22.

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34
Because Aquart did not seek such relief in the district court, the
government urges us to review only for plain error. See Fed. R. Crim.
P. 52(b); United States v. Marcus, 560 U.S. 258, 262 (2010) (stating that
defendant claiming plain error must show (1) error; (2) that is clear or
obvious, rather than subject to reasonable dispute; (3) affecting his
substantial rights; and (4) calling into question the fairness, integrity,
or public reputation of judicial proceedings); see also United States v.
Ferguson, 676 F.3d 260, 282 (2d Cir. 2011) (stating that plain error
standard would apply to forfeited perjury claim). Aquart maintains
that plain error review is inapplicable because his attorney could not
have requested a perjury hearing in the district court when he was not
yet aware of facts supporting such a claim. See Fed. R. Crim. P. 51(b).
Specifically, Aquart asserts that, at the time of trial, defense counsel
did not know that a cooperator in another murder case (Mario Lopez),
who had testified against a former client (Fausto Gonzalez) of
Taylor’s attorney, had received a five‐year sentence in consideration
of his cooperation. Nor did Aquart’s counsel then know that Taylor’s
attorney would reference Lopez’s single‐digit sentence in urging
leniency at Taylor’s own sentencing proceeding.9 Aquart argues that,
9 The district court sentenced Taylor to a total prison term of nine years. In doing so, Judge
Arterton explained that she had seen Taylor testify at both Aquart’s and Efrain Johnson’s
trials, and found him credible at each. Moreover, she understood each jury to have found
him credible and, specifically, more credible than Efrain Johnson, who testified at his own
trial. See Gov’t App’x 1578 (observing that “juries are pretty good at telling who’s been
truthful”). The district judge further noted that her sentence was informed by Taylor’s
sincere remorse and his intellectual limitations, as described by a psychiatrist. As to the
latter, she concluded that Taylor’s limitations likely prevented him from understanding
that Aquart intended to murder his victims until Taylor saw Aquart beat Tina Johnson to
death. Nevertheless, the district court concluded that a sentence of at least nine years was

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on these facts, justice demands a perjury hearing because it is
“unfathomable” that Taylor’s counsel did not relay his knowledge of
Lopez’s sentence to Taylor, Appellant’s Br. 103, and, thus, it is
“virtually certain” that, when Taylor testified against Aquart, he
knew that he could receive a considerably reduced sentence, making
it false for him to state that he thought he would never be released
from jail, id. at 101. The reasoning is flawed in several respects.
First, even if Aquart can avoid plain error review, he cannot
avoid the “threshold” requirement to show actual falsity to secure
judicial consideration—whether by hearing or otherwise—of a
perjury challenge to conviction. United States v. Stewart, 433 F.3d at
297 (internal quotation marks omitted). It is such a showing that first
tips the balance of judicial interest away from the finality of the
judgment and toward a concern with the integrity of the conviction.
Once actual falsehood has been shown, hearings may determine
when the parties knew (or should have known) of the falsehood and
its materiality to the judgment. Such further inquiry determines
what, if any, relief is warranted. But until actual falsity is shown,
there is no concern for the integrity of the process requiring judicial
hearings. See United States v. Sasso, 59 F.3d 341, 350–51 (2d Cir. 1995)
(upholding denial of hearing regarding perjury by trial witness where
defendants did not sufficiently establish that witness’s statements
were false).
necessary “[t]o reflect the seriousness of the crime” and Taylor’s role in it, even though his
involvement was at a “very much different level[]” than Aquart’s. Id. at 1578–79.

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Here, not only has Aquart failed to show that Taylor’s
challenged statement was false, but also, it is doubtful that the
statement is even susceptible to proof of truth or falsity. It states no
present or past matter of fact, such as the benefits identified in his
cooperation agreement or discussed with him by government
officials, his own lawyer, or the court. Rather, the statement is an
expression of subjective belief about the likelihood of a future event.
See United States v. Stewart, 686 F.3d 156, 176 (2d Cir. 2012) (“‘To be
false, the statement must be with respect to a fact or facts and the
statement must be such that the truth or falsity of it is susceptible of
proof.’” (quoting United States v. Endo, 635 F.2d 321, 323 (4th Cir.
1980))).
Second, and in any event, the facts Aquart adduces to support
his perjury hypothesis do not compel a hearing. To begin, the
murderous cooperator Lopez was sentenced on April 24, 2008, more
than two years before Taylor’s October 18, 2010 guilty plea, and more
than three years before the May 4, 2011 start of Taylor’s testimony
against Aquart. Thus, it is hardly “certain,” as Aquart maintains, that
Taylor’s counsel—who did not represent Lopez, but a person against
whom Lopez had cooperated—had both learned of Lopez’s sentence
and communicated it to Taylor before Taylor testified at Aquart’s trial.
Appellant’s Br. 101, 103. Aquart can only speculate as to such matters,
which is insufficient to warrant a hearing. See Haouari v. United States,
510 F.3d 350, 354 (2d Cir. 2007) (recognizing that “conclusory
assertions” do not warrant evidentiary hearing on habeas petition
(internal quotation marks omitted)); United States v. Watson, 404 F.3d

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37
163, 167 (2d Cir. 2005) (same re: suppression hearing); United States v.
Singh, 390 F.3d 168, 183–84 (2d Cir. 2004) (same re: challenge to
warrant affidavit); United States v. Difeaux, 163 F.3d 725, 729 (2d Cir.
1998) (same re: sentencing hearing).
Equally speculative, moreover, is Aquart’s hypothesis that the
government was aware of the alleged falsehood at the time of trial.
Because one of the prosecutors at his trial also appeared for the
government in the Taylor, Lopez, and Gonzalez prosecutions, Aquart
contends that the government (1) not only knew Lopez’s sentence, but
must have known (2) that Taylor’s counsel had learned of Lopez’s
sentence, and (3) that Taylor’s counsel told Taylor about Lopez’s
sentence before trial, so that (4) based on the information counsel
provided, Taylor thought he, too, would receive a considerable
sentencing reduction, and (5) falsely represented his release
expectations at Aquart’s trial. No evidence supports the second
through fifth links in this chain of alleged government knowledge.
Indeed, even if we were to assume arguendo that, at a hearing,
Aquart could show that Taylor knew of Lopez’s sentence, and that
the prosecutor was aware of Taylor’s knowledge, that would not
establish the falsity—much less the willful falsity—of Taylor’s
professed release expectations, nor the government’s subornation of
perjury. At the time of Aquart’s trial, Taylor faced mandatory life
imprisonment. His ability to secure any lesser sentence was
contingent on two events: (1) the government’s filing of a motion
pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, and (2) the
district court’s grant of that motion coupled with its determination

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38
that a sentence of less than life incarceration satisfied 18 U.S.C.
§ 3553(a). Neither of these events had occurred at the time Taylor
testified, and Taylor knew from both his cooperation agreement and
the district court’s statements at the time of his guilty plea that he
could not count on their occurrence. See Gov’t App’x 1819 (stating in
cooperation agreement that determination whether to file motion for
sentence reduction “rests solely with the Government” and that, even
if motion is filed, district court “is under no obligation to grant or act
favorably upon the motion”); id. at 1560 (confirming at plea allocution
that no sentencing promises had been made to Taylor and advising
that “no one knows what your sentence will actually be until it is
imposed on the day of sentencing”). Thus, Taylor might well have
thought that, until the requisite contingencies occurred, he faced a
mandatory life sentence that would not allow him ever to go home.
Construing Taylor’s response as things stood at the time of his
testimony—and not after possible future government and court
action—is, moreover, consistent with its context. In response to a
preceding question, “What are you hoping happens to you?,” Taylor
plainly acknowledged that he was hoping for a “[l]esser sentence.”
Id. at 594. Taylor reiterated that hope on redirect, explaining that, in
testifying at Aquart’s trial, he was “looking for help” in his own case.
Id. at 624. The profession of a pessimistic present release expectation
cannot be deemed willfully misleading when thus coupled with
acknowledged hope that, in the end, the witness would receive a
lesser sentence. Any reasonable jury would have understood from
the totality of Taylor’s testimony that, however likely he then thought

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39
a life sentence, he retained the hope of receiving a lesser sentence by
testifying against Aquart.
Thus, Taylor’s professed release expectation did not deny the
defense its argument that Taylor’s motive in testifying against Aquart
was to secure a reduced sentence. Indeed, a defense attorney might
reasonably argue that Taylor’s pessimistic release expectation gave
him a greater motive to help the government obtain Aquart’s
conviction, because only such significant assistance could secure him
relief from what he knew was otherwise a mandatory life sentence.
Further, the district court instructed Aquart’s jury that the testimony
of witnesses, such as Taylor, who had entered into cooperation
agreements with the government, had to be considered “with
particular caution” precisely because such agreements gave hope for
reduced sentences. Id. at 1053–54.
In short, the facts Aquart proffers on appeal about cooperator
Lopez’s reduced sentence in a different case do not support the urged
possibility of perjury by Taylor, while Aquart’s trial record actually
undermines that hypothesis. The same conclusion obtains with
respect to Aquart’s suggestion that the prosecution suborned perjury
by Taylor.
To be sure, cross‐examination might have been used to
challenge Taylor’s professed release expectation, but that does not
mean the testimony was false. In any event, Aquart’s counsel, who
pursued many lines of impeachment, chose not to cross‐examine
Taylor on this matter, and we are not persuaded by the argument that

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40
he could not meaningfully do so before learning facts pertaining to
the Lopez sentence. As already noted, moments before Taylor stated
that he did not think he was ever going home, he admitted that he
was “hoping” for a “lesser sentence.” Id. at 594. This, by itself,
provided a basis for cross‐examination to insinuate that Taylor’s hope
belied his professed expectation. Aquart’s failure to avail himself of
this opportunity is a factor further weighing against his request for a
hearing to explore the possibility of falsity.
In sum, because (1) Aquart fails to demonstrate that Taylor
actually testified falsely and, indeed, offers little factual support for
his claim of possible perjury; (2) the trial record shows that Taylor
hoped for a reduced sentence; and (3) defense counsel chose not to
use cross‐examination to impeach Taylor on this issue despite an
adequate opportunity to do so at trial, we conclude that the interests
of justice do not here require a post‐conviction hearing to explore
whether Taylor understated his release expectations.
2. Lashika Johnson
Aquart’s claim of perjury by Lashika Johnson arises in the
context of his appeal from the district court’s denial of his motion for
a new trial. See Fed. R. Crim. P. 33. We review the denial of a new
trial motion for abuse of discretion, which we will identify only if the
district court’s decision rests on an error of law or clearly erroneous
fact finding, or if its decision cannot be located within the permissible
range available to the district court. See United States v. Forbes, 790
F.3d 403, 406 (2d Cir. 2015). That is not this case.

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Aquart claims that on cross‐examination, Lashika Johnson
falsely denied being threatened by the government at an October 14,
2008 proffer session. In support, he points to her acknowledgment of
such threats at the subsequent trial of her brother Efrain Johnson.10
Judge Arterton, who presided over both trials, detailed in a written
decision why she found that Lashika Johnson had not willfully given
false testimony at Aquart’s trial. We accord this finding considerable
deference, mindful that it is informed by the unique vantage point of
a trial judge who directly observed the witness testify on the two
occasions at issue. See United States v. Stewart, 433 F.3d at 296
(observing that, in ruling on new trial motion, district court’s
“vantage point . . . has been informed by the trial over which it
presided”). Moreover, because there is record support for the district
court’s finding, we identify no abuse of discretion in its denial of a
new trial.
To facilitate our own discussion, we reproduce in the margin
relevant excerpts from Lashika Johnson’s testimony at both the
10 The jury found Efrain Johnson guilty of the charged homicide crimes on a felony‐murder
theory, but the district court subsequently entered a judgment of acquittal, finding the
evidence insufficient as a matter of law to prove that Efrain Johnson (1) knowingly and
intentionally participated in Aquart’s racketeering enterprise at the time of the killings, or
(2) “participated as consideration for the receipt of anything of pecuniary value.” United
States v. Johnson, No. 3:06‐cr‐160, 2013 WL 3422016, at *9 (D. Conn. July 8, 2013) (discussing
requirements of 18 U.S.C. § 1959).

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Aquart and Efrain Johnson trials.11 The transcripts show, as the
district court recognized, that while Lashika Johnson testified at
11 On cross‐examination at Aquart’s trial, Lashika Johnson testified as follows about the
October 14 proffer session:
Q. And then in that meeting [the prosecutors] confronted you, did they
not?
A. About?
Q. They said that we don’t think that you are telling us the truth.
A. Yeah.
Q. Now, you understood that at that point that if the law enforcement
people didn’t believe you, you were in big trouble.
A. Yeah.
Q. And they were telling you they didn’t believe you, right?
A. Yes.
Q. And then you started crying?
A. Uh‐huh (indicating affirmatively).
Q. And you understood, however, that if they didn’t believe you, your
proffer was gone, right?
A. Right.
Q. You could be prosecuted, right?
A. Right. . . .
Q. Well, you now said that your brother had admitted tying people up,
right?
A. Right.
Q. Because you were being threatened, right?
A. Not because I was being threatened.
Q. You were being threatened, were you not?

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43
A. I don’t think it was a threat. It was just more so like they were telling
me what was right and what I had to do.
Q. And you understood that if you didn’t do what they said, you were in
big trouble.
A. I understood that if I didn’t do what was right then I would be in
trouble.
Gov’t App’x 736–37.
At the subsequent trial of Efrain Johnson, Lashika Johnson testified on cross‐examination
about the same proffer session as follows:
Q. Do you remember a meeting around this time when you first started
meeting with the government where you kind of broke down crying?
A. Yes. . . .
Q. And am I correct at that meeting that [the prosecutor] yelled at you?
A. Yes.
Q. And she stood up and threatened to put you in shackles?
A. Yes.
Q. She said if you didn’t start saying what they wanted to hear they were
going to take you off to jail?
A. She didn’t put it in exactly those words.
Q. She threatened you’d be going to jail?
A. Yes.
Q. That you were going to lose your children?
A. Yes.
Q. How did that make you feel?
A. It didn’t feel too good.
Q. Scared?
A. Yes.

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Aquart’s trial “that she did not regard the Government’s warning
about the consequences of lying as a threat,” at her brother’s trial, “she
agreed with defense counsel’s characterization that the AUSA
threatened to put her in shackles, send her to jail, and take away her
children.” Appellant App’x 551. At the same time, however, the
transcripts support the district court’s observation that Lashika
Johnson’s testimony at both trials was “consistent as to its inculpatory
substance.” Id. at 552. And more to the point of Aquart’s perjury
claim, Lashika Johnson’s testimony consistently connected her
Id. at 1726.
Then, in response to leading questions on redirect, Lashika Johnson acknowledged that
her attorney was present throughout this proffer session and that she spoke to him
privately before providing more information to prosecutors. See id. at 1728. She further
acknowledged that there was nothing the prosecutor “or anyone [else] could say,” nor
“any fear about [her] children that would make [her] lie about [her] own brother.” Id.
On re‐cross, also in response to leading questions, she agreed that the prosecutor was not
hesitant to “yell” at her, or to “say if you don’t do this we’re going to send you to jail and
take away your kids,” or to “ma[k]e clear that she was going to have . . . agents who were
present take [her] out of th[e] room right then and take [her] to jail.” Id. at 1729.
Finally, on re‐redirect, Lashika Johnson gave the following testimony:
Q. Have you been threatened to say anything?
A. No.
Q. Had you ever been told you’d better say something bad about your
brother or anything else?
A. No.
Q. Are you telling us about your brother because it’s the truth or because
you’ve been threatened?
A. Because it’s the truth.
Id. at 1730.

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45
disclosure of additional inculpatory information to government
action reducing her to tears. To the extent she particularized this
government action at her brother’s trial and did not do so at Aquart’s,
the record shows that was a function of the more pointed, leading
questions asked by Efrain Johnson’s attorney, which expressly
referenced shackling and the loss of children—matters not raised by
Aquart’s counsel.12
Nevertheless, at both trials, Lashika Johnson testified that she
made a fully inculpatory disclosure as to her brother only after the
government challenged her veracity in a tearful confrontation.
Indeed, even at Aquart’s trial, Lashika Johnson stated that she
understood the prosecution’s disbelief of her initial proffer to mean
that she would be prosecuted. Thus, because Lashika Johnson’s
responses at both trials made clear that her testimony was a product
of government pressure, we cannot identify clear error in the district
court’s determination that the witness did not willfully lie in
declining to adopt the same “threat” characterization at Aquart’s trial
that she adopted at her brother’s.
Moreover, even in accepting the threat characterization at her
brother’s trial, Lashika Johnson testified that she had never been
threatened to make particular statements, that her trial testimony was
not informed by any threats, and that neither anything said by
prosecutors nor any fear for her children would make her lie. On this
record, we conclude that the district court, after having itself heard
12 The prosecution denies threatening to shackle the witness or to take away her children,
but we need not resolve that factual dispute to decide this appeal.

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46
Lashika Johnson testify at both trials, did not clearly err in finding that
Aquart had not shown her to have willfully testified falsely at his trial
and, thus, did not abuse its discretion in denying him a new trial.
We therefore reject both of Aquart’s perjury challenges to his
conviction.
C. Prosecutorial Misconduct in Summation
Aquart argues that he was denied a fair trial by the
prosecution’s interjection of facts not in evidence in its rebuttal
summation at the guilt phase of trial. The district court rejected this
argument in denying Aquart’s post‐verdict motion for a mistrial. We
review such a denial for abuse of discretion, see United States v.
Deandrade, 600 F.3d 115, 118 (2d Cir. 2010), which is not evident here
because, like the district court, we identify no prosecutorial
misconduct at this stage of the proceedings.
To secure relief from conviction based on prosecutorial
misconduct, a defendant must show that the misconduct resulted in
“substantial prejudice by so infecting the trial with unfairness as to
make the resulting conviction a denial of due process.” United States
v. Elias, 285 F.3d 183, 190 (2d Cir. 2002) (internal quotation marks
omitted); see United States v. Whitten, 610 F.3d 168, 202 (2d Cir. 2010).
In assessing substantial prejudice, we consider “[1] the seriousness of
the misconduct, [2] the measures adopted by the trial court to cure the
misconduct, and [3] the certainty of conviction absent the improper
statements.” United States v. Banki, 685 F.3d 99, 120 (2d Cir. 2012)
(internal quotation marks omitted). It is a “rare case” in which we

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will identify a prosecutor’s summation comments, even if
objectionable, as so prejudicial as to warrant relief from conviction.
United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (internal
quotation marks omitted); see United States v. Newton, 369 F.3d 659,
680 (2d Cir. 2004). The law recognizes that “summations—and
particularly rebuttal summations—are not detached exposition[s]
with every word carefully constructed . . . before the event. Precisely
because such arguments frequently require improvisation, courts will
not lightly infer that every remark is intended to carry its most
dangerous meaning.” United States v. Farhane, 634 F.3d 127, 167 (2d
Cir. 2011) (alterations in original) (internal citations and quotation
marks omitted); see United States v. Cohen, 427 F.3d 164, 170 (2d Cir.
2005) (“[T]he Government has broad latitude in the inferences it may
reasonably suggest to the jury during summation.” (internal
quotation marks omitted)).
The rebuttal comments at issue here responded to a defense
argument impugning the government’s DNA identifications for,
among other things, focusing on suspects such as Aquart while failing
to compare crime scene samples with the known DNA profile of other
enterprise confederates such as cooperator Rodney Womble.
Specifically, defense counsel argued,
We’re not asking you to conclude that [Connecticut
forensic examiner Christine] Roy manipulated data or
consciously forced anyone to fit or not fit inside of a
profile. But observer bias, the problem that an
interpretation is driven by or colored by knowing who
you are comparing the samples to; it exists. She had

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48
evidence in the form of an evidence request with the
suspect’s name on it, Azibo Aquart. And Rodney
Womble, we don’t know what happened with Womble,
but we know by the time the testing began he was
cooperating and his DNA profile was never provided to
the lab.
Gov’t App’x 1071.
The government attempted to rebut the argument that
Womble’s DNA was not submitted for testing by reference to the
CODIS comparisons in the case:13
Well, first of all, you know Womble is a convicted felon,
and you know from Christine Roy that Womble—excuse
me, that the CODIS database is made up of the DNA of
convicted felons. And, in fact, you know that’s how they
originally got the hit on Efrain Johnson and proved that
he, too, was part of these murders.
. . .
There is absolute[ly] no evidence in this record
whatsoever to suggest that Womble’s DNA was at that
crime scene. That, too, is telling. As telling as the fact
that on cross‐examination the defense never asked
Womble a word about whether or not he was involved
in this murder.
Id. at 1082–83.
13 The Combined DNA Index System (“CODIS”) is a DNA profile database maintained by
the FBI.

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49
The government is afforded some latitude in responding to
arguments made by the defense. See United States v. Farhane, 634 F.3d
at 167–68. Aquart argues that these statements went beyond fair
response because they gave the jury the misimpression that “all”
DNA samples retrieved from the scene of the charged murders were
submitted to CODIS for comparison. Appellant’s Reply Br. 67. We
are not persuaded.
As the district court observed in denying Aquart’s mistrial
motion, and as the record confirms, the government’s first three
quoted statements referenced “facts in evidence.” Gov’t App’x 1550.
Certainly, Womble testified to his prior conviction. As to CODIS, Roy
testified that it is “a DNA profile database. . . run by the FBI,” and
accessible by “state accredited laboratories,” “that contains DNA
profiles from convicted offenders” and various crime scenes, as well
as trace examiners. Id. at 778, 792, 801–02.14 She did not testify to the
specific number of crime scene samples sent to CODIS for comparison
in this case. Rather, she testified that on one DNA sample that her lab
retrieved from a latex glove fragment at the murder scene, CODIS
identified Efrain Johnson’s DNA profile. On another sample, it
identified only the DNA of a Connecticut state trace examiner.
Regardless of the number of DNA samples sent for CODIS
comparison in this case, this testimony provided a good faith factual
basis for the government to challenge the defense suggestion that it
had deliberately failed to consider Rodney Womble in any of its DNA
14 At defense counsel’s request, the district court instructed the jury that the CODIS
database was available only to law enforcement authorities.

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50
testing. Roy’s testimony would admit an inference that the CODIS
comparisons performed in this case would necessarily include the
known profile of a convicted felon such as Womble. Further, because
the government did not argue that any particular number of samples
was sent for CODIS comparison, and because Roy testified to her own
state laboratory’s DNA identifications on certain samples and to
CODIS identification on only two others, we do not think the
government unfairly insinuated that CODIS testing had been
performed on all samples. See United States v. Farhane, 634 F.3d at 167
(declining to infer that summation comments carry “most dangerous
meaning” (internal quotation marks omitted)). In short, we identify
no misconduct.
The next two sentences warrant no different conclusion.
Although a prosecutor certainly cannot shift the burden of proof to a
defendant, see United States v. Fell, 531 F.3d 197, 221 (2d Cir. 2008), he
can argue the lack of trial evidence to support an argument urged by
the defense, see United States v. Salameh, 152 F.3d 88, 136 (2d Cir. 1998).
Thus, to the extent the defense faulted the government for failing to
compare Womble’s known DNA to retrieved samples, the
government was entitled to point out that no trial evidence,
testimonial or forensic, had been adduced that put Womble (and,
therefore, his DNA) at the scene of the charged murders. See id. (“The
government is free to comment on the failure of defendant to refute
government evidence or to support his own claims.” (internal
quotation marks omitted)). It was, of course, for the jury to determine
the persuasiveness of this argument in light of the evidence it had

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51
heard and the inferences the defense urged it to draw. We conclude
only that the government’s rebuttal summation did not
impermissibly suggest that all DNA samples retrieved from the crime
scene had in fact been submitted for CODIS comparison.
Because Aquart thus fails to show any government misconduct
in summation, much less conduct that denied him a fair trial, we
conclude that the district court acted within its discretion in denying
him a mistrial.
In sum, we identify no merit in any of Aquart’s challenges to
the guilt phase of his trial and, therefore, conclude that he stands
properly convicted on all counts the jury found proved in this case.
II. Sentencing Challenges
Aquart challenges his capital sentence on numerous grounds
falling into three categories: (1) repeated prosecutorial misconduct in
response to mitigating hearsay evidence from Efrain Johnson,
(2) insufficient proof of certain aggravating factors, and (3) the
unconstitutionality of the death penalty. We reject Aquart’s
sufficiency and constitutionality challenges, but we conclude that two
prosecutorial errors in response to the Efrain Johnson evidence,
considered together, require vacatur and remand for a new
sentencing hearing.

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A. Standard for Reviewing Unpreserved Sentencing
Challenges
Before addressing Aquart’s particular sentencing challenges,
we consider the parties’ dispute as to how we should review urged
errors to which no objection was raised in the district court. We
generally review unpreserved challenges, including sentencing
challenges, only for plain error. See United States v. Marcus, 560 U.S.
at 262 (stating standard); United States v. Rubin, 743 F.3d 31, 39 (2d Cir.
2014). Aquart argues that the rule should not apply to capital
sentencing proceedings. In support, he cites 18 U.S.C. § 3595(c)(2),
which states as follows:
Whenever the court of appeals finds that—
(A) the sentence of death was imposed under
the influence of passion, prejudice, or any
other arbitrary factor;
(B) the admissible evidence and information
adduced does not support the special
finding of the existence of the required
aggravating factor; or
(C) the proceedings involved any other legal
error requiring reversal of the sentence that
was properly preserved for appeal under
the rules of criminal procedure,
the court shall remand the case for reconsideration under
section 3593 or imposition of a sentence other than death.
The court of appeals shall not reverse or vacate a

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sentence of death on account of any error which can be
harmless, including any erroneous special finding of an
aggravating factor, where the Government establishes
beyond a reasonable doubt that the error was harmless.
Aquart submits that, by referencing proper preservation only in
subpart (C), Congress signaled that the review of capital sentences
under other subparts, specifically, subpart (A) review for “arbitrary
factors,” must “cover some situations beyond properly preserved
non‐harmless error and plain error affecting substantial rights.”
Appellant’s Supp. Br. 9/19/2016, 2.
The Supreme Court construed the relevant statutory language
in Jones v. United States, 527 U.S. 373 (1999). The defendant there
argued that his capital sentence was imposed under the influence of
an “arbitrary factor,” specifically, jury confusion as to sentencing
arising from allegedly erroneous jury instructions, which
“warrant[ed] resentencing even if he did not properly preserve the
objection.” Id. at 388. In rejecting the argument, the Supreme Court
held that “[t]he statute does not explicitly announce an exception to
plain‐error review, and a congressional intent to create such an
exception cannot be inferred from the overall scheme.” Id. at 388–89.
The Court construed the preservation language in subpart (C) to
“make[] clear that Congress sought to impose a timely objection
requirement at [a capital] sentencing and did not intend to equate the
phrase ‘arbitrary factor’ with legal error.” Id. at 389 (observing that
contrary “interpretation of § 3595(c)(2)(A) would drain
§ 3595(c)(2)(C) of any independent meaning”). Thus, Jones instructs
that a capital defendant cannot simply recast unpreserved legal error

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54
as an arbitrary factor (or as the trigger for an arbitrary factor) to avoid
plain error review. See United States v. Whitten, 610 F.3d at 190
(applying plain error review to unpreserved objection to
“emotionally charged” victim impact statements at capital sentencing
proceeding).
In arguing that he is not doing so here, Aquart submits that his
sentencing challenges—particularly prosecutorial vouching and Sixth
Amendment errors regarding the Efrain Johnson evidence—are
distinguishable from the jury confusion/erroneous instruction error
raised in Jones. In support, he cites State v. Butler, 277 S.C. 543, 546,
290 S.E.2d 420, 421 (1982) (characterizing prosecutorial vouching as
“arbitrary factor” under parallel provision of state death penalty law),
overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d
315 (1991). The difference is not one that allows Aquart to avoid
Jones’s holding. Prosecutorial vouching is recognized as a claim of
legal error that, if not preserved, is properly reviewed for plain error.
See United States v. Williams, 690 F.3d 70, 75–76 (2d Cir. 2012)
(reviewing unpreserved vouching claim for plain error in non‐capital
case); United States v. Martinez, 862 F.3d 223, 241–42 (2d Cir. 2017)
(recognizing vouching claim to implicate due process right to fair
trial), cert. petition filed sub nom. Rodriguez v. United States, 18‐5234 (July
13, 2018). Further, following Jones, this court has applied plain error
review to unpreserved claims of precisely the sort Aquart presents
here, i.e., due process challenges to prosecution statements made in
the course of a capital sentencing proceeding. See United States v. Fell,
531 F.3d at 209, 209 n.8, 220–21; see also United States v. Rodriguez, 581

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55
F.3d 775, 802–03 (8th Cir. 2009) (reviewing for plain error unpreserved
challenges to government summation disparaging capital
defendant’s case). The point warrants no further discussion,
however, because Aquart’s vouching and Sixth Amendment
challenges were preserved by timely objections. See infra, Discussion
Sections II.B.1. & 3. Thus, we review those sentencing arguments de
novo.
Insofar as Aquart presents other, unpreserved sentencing
challenges, however, see, e.g., infra at 69 (unpreserved challenge to
form of questions), see also Discussion Section II.B.2. (unpreserved
challenge to plea allocution questions), we review for plain error even
in this capital context.
B. Prosecutorial Misconduct Pertaining to Efrain Johnson
Evidence
Aquart asserts various instances of prosecutorial misconduct in
response to evidence pertaining to confederate Efrain Johnson.
Certain challenged government conduct reflects no misconduct, but
when we consider two errors—one in the cross‐examination of FBI
Agent Christopher Munger and the other in summation—together
and in context, see United States v. Fell, 531 F.3d at 233, we cannot
confidently conclude that the jury would have returned a death
verdict absent these errors. Accordingly, we vacate Aquart’s capital
sentence and remand for a new penalty proceeding. To explain that
conclusion, we start by reiterating the nature of the Efrain Johnson
evidence and the purpose for which the defense used it.

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At the penalty phase of trial, Aquart called FBI Agent Munger
to testify to certain statements made by Efrain Johnson at law‐
enforcement interviews and proffer sessions. As detailed supra
Background Section II.B., in these statements, Efrain Johnson
assigned prosecution witness Taylor a larger role in the charged
murders than Taylor himself had admitted in his guilt‐phase
testimony. While Taylor had testified that it was the Aquart brothers
who had duct taped and beaten Tina Johnson and Reid in a bedroom
while Taylor himself stood guard in the living room, Efrain Johnson
had told authorities that it was he and Taylor who had duct taped
Tina Johnson in the living room, and that Taylor had there beaten
Tina Johnson with a metal pipe, soon after which Efrain Johnson left
the apartment.
Because the jury had already found Aquart guilty of Tina
Johnson’s murder, the defense could not use Efrain Johnson’s hearsay
statements to relitigate that question. Instead, it proposed to use the
statements to dispute the confederates’ relative roles in the proved
murders, which it submitted was relevant both to the government’s
aggravating factor charging Aquart with having personally
committed the Tina Johnson and Reid murders in a heinous and
depraved manner, as well as to the defense’s urged mitigating factor
that equally culpable participants in those crimes were not facing the
death penalty. See App’x 481–82 (urging both grounds in moving for
receipt of statements); see also Gov’t App’x 1406‐09. Over vigorous
prosecution objection, the district court ruled that Aquart could offer
the Efrain Johnson statements for these two purposes.

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57
At the actual penalty proceeding, however, Aquart used the
statements only to argue for mitigation. See Gov’t App’x 1465
(arguing in summation that Efrain Johnson’s statements should not
“in any way . . . shake your conclusion about [Aquart’s] guilt for these
murders”; rather, statements “matter[ed]” because “fact that others
were also involved in the offense and will not receive a death sentence
is something that you can and should consider in deciding on the
punishment”). Indeed, in a colloquy with the court, Aquart’s counsel
specifically disavowed challenging any government aggravating
factor. See id. 1467–68 (stating in rebuttal colloquy that defense had
“not in any sense attack[ed] or challenge[d] any of the aggravators
alleged by the government in this case”).15
With this understanding of how Aquart used the Efrain
Johnson evidence, we proceed to consider his claim of repeated
government misconduct taking three forms: (1) negative vouching as
to Efrain Johnson’s credibility, (2) mischaracterizion of Johnson’s plea
allocution, and (3) summation denigration of the defense for urging
inconsistent theories at the guilt and penalty phases of trial. We
evaluate Aquart’s argument first by identifying what prosecutorial
actions, in fact, amount to misconduct. We then consider the
seriousness of that misconduct, the curative measures adopted by the
district court in response, and the certainty of a death sentence absent
15 We do not fault defense counsel’s disavowal of aggravator challenges. Nor do we
suggest that counsel’s disavowal relieved the government of its burden to prove
aggravating factors beyond a reasonable doubt—a burden the jury ultimately found it to
have carried as to each factor. Rather, we cite counsel’s disavowal only to show how the
Efrain Johnson statements were used by the defense at the penalty proceeding.

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any error. See generally United States v. Banki, 685 F.3d at 120. On such
review, we conclude that even though many of the challenged
government actions, standing alone, do not manifest misconduct, a
cross‐examination error and a rebuttal error, considered together,
may have denied Aquart a fair penalty proceeding.
1. Improper Vouching
Aquart charges the government with “blatant and
impermissible vouching” when, in cross‐examining Agent Munger, it
referenced Efrain Johnson’s failure to reach a cooperation agreement
with the government. Aquart maintains that such references “plainly
invited jurors to treat Taylor’s account as truthful and Efrain
[Johnson]’s as false because the government . . . had formally deemed them
so.” Appellant’s Br. 77 (emphasis added). The challenged cross‐
examination, which we reproduce in the margin, is in two parts, the

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first pertaining to Efrain Johnson’s proffer sessions,16 the second
pertaining to his failed guilty plea.17 We discuss each in turn.
16 The proffer‐session exchange reads as follows:
Q. [Prosecutor] Can you please explain to the jury what a proffer is.
A. [Agent Munger] A proffer is when somebody comes in . . . with his
attorney . . . and they basically tell their side of the story. They’re
supposed to tell everything, anything and everything, and tell the truth.
Q. And usually the proffers, that’s another word for a meeting, right?
[DEFENSE COUNSEL]: I’m going to object—
A. Yes.
[DEFENSE COUNSEL]: —as this being outside the scope.
THE COURT: The statements on which Mr. Munger was
questioned were [made at] proffer sessions.
THE WITNESS: Yes.
THE COURT: Overruled.
Q. And proffer sessions are designed to work towards a cooperation
agreement, correct?
A. Yes.
Q. And Efrain Johnson never got a cooperation agreement, did he?
A. No.
Q. And that’s because it was determined he was lying.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
Gov’t App’x 1421.

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a. Proffer Session Queries
On de novo review, we identify a single, but significant, error in
the prosecution’s cross‐examination of Agent Munger about Efrain
Johnson’s proffer sessions: the attempt to elicit that Efrain Johnson
did not receive a cooperation agreement because “it was determined
he was lying.” Gov’t App’x 1421. This inquiry ran afoul of
established law holding that cross‐examination cannot be used to
“direct[] the jury to trust the Government’s judgment rather than its
own view of the evidence.” United States v. Henry, 47 F.3d 17, 21 (2d
Cir. 1995) (internal quotation marks omitted)).
Before discussing this error further, however, we note that to
the extent Aquart would have us also identify misconduct in
government inquiries about the purpose of a proffer session, we here
conclude that such an inquiry, by itself, is not impermissible. The
circumstances under which a suspect speaks to the government may
reveal motives that inform credibility. That is particularly so when
the suspect incriminates others as well as himself. See Lee v. Illinois,
476 U.S. 530, 541 (1986) (noting presumptive unreliability of hearsay
confessions incriminating accomplice’s confederates). Indeed,
17 The guilty plea inquiry reads as follows:
Q. [Prosecutor] . . . and that was just an attempt at a straight plea, correct,
not a cooperation agreement?
A. [Agent Munger] That is correct.
[DEFENSE COUNSEL]: Objection. Object as to the relevance of
that. Ask that it be stricken.
Gov’t App’x 1424.

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Aquart effectively acknowledged the relevancy of a proffer context to
an assessment of credibility because his own attorney questioned
Agent Munger about whether certain persons, including Lashika
Johnson, had participated in proffer sessions.
For much the same reason, we identify no misconduct in the
government eliciting the simple fact that Efrain Johnson never had a
cooperation agreement with the government. Parties may fail to
reach cooperation agreements for any number of reasons unrelated to
the government’s assessment of the declarant’s credibility—e.g., the
government may be demanding a guilty plea to a more serious charge
than that to which the defendant is willing to admit, or a defendant
may be seeking sentencing assurances or other considerations that the
government is unwilling to provide. Here, the jury had already heard
that various witnesses testified pursuant to cooperation agreements
and that those agreements gave rise to motives informing
credibility.18 Thus, the fact that Efrain Johnson had not made the
statements at issue pursuant to a cooperation agreement was relevant
to an assessment of the credibility of those statements.
18 These motives are not necessarily identical to those arising from a proffer agreement,
which may assure a declarant only that his statements will not be used against him in any
subsequent prosecution. See United States v. Cruz, 156 F.3d 366, 370 (2d Cir. 1998) (stating
that defendant who entered into proffer agreement “neither obtained the benefits nor the
burdens of . . . a cooperation agreement”). A cooperation agreement, by contrast, may
involve more complex, mutual promises with respect to charges, sentences, and the
consequences for any breaches of the agreement, including lying. See, e.g., United States v.
Doe, 741 F.3d 359, 362 (2d Cir. 2013); United States v. Tarbell, 728 F.3d 122, 124–25 (2d Cir.
2013).

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Had the government stopped there, Aquart could not complain
of misconduct. That, however, was not the extent of the government’s
inquiry. It proceeded to ask Agent Munger to confirm that the reason
Efrain Johnson never had a cooperation agreement was the
government’s determination that “he was lying.” Gov’t App’x 1421.
Thus, we consider the challenged questioning in light of its
culmination in this improper inquiry. The concern here is not simply
with the use of the word “lying,” as the government suggests in citing
United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (rejecting
challenge to government’s use of word “lies” because not excessive
or inflammatory). The concern is the law’s insistence that witness
credibility be left “exclusively for . . . determination by the jury.”
United States v. Truman, 688 F.3d 129, 143 (2d Cir. 2012) (internal
quotation marks omitted) (holding that “witnesses may not opine as
to the credibility of the testimony of other witnesses at the trial”
(internal quotation marks omitted)). Efrain Johnson’s proffer
statements were received as the equivalent of witness testimony.
Asking Agent Munger whether law enforcement authorities had
already determined that Efrain Johnson was lying in those statements
impermissibly intruded on the jury’s exclusive responsibility for
determining credibility. See United States v. Henry, 47 F.3d at 21.
The identification of such misconduct, however, is only a first
step. We must consider that misconduct in context to determine
whether the error was so serious and prejudicial as to compel a new
penalty proceeding. See generally Greer v. Miller, 483 U.S. 756, 756–66
(1987) (observing that when defendant contends that prosecutor’s

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question rendered trial fundamentally unfair, “it is important as an
initial matter to place the remark in context” (alterations and internal
quotation marks omitted)).19
That context includes any curative actions taken by the district
court. Here, the district court promptly sustained objection to the
challenged question before it was answered. That alone would not
sufficiently mitigate the seriousness of the prosecution’s error because
the question was leading and implied its own answer. That concern,
however, was addressed by the district court’s earlier instructions,
advising the jury that questions asked of witnesses were “not
evidence,” and that a question to which an objection was sustained
should be “ignore[d].” Gov’t App’x 4, 1050. The court had also
instructed the jury that nothing said by counsel was evidence, and
that witness credibility had to be determined by the jury. Such
instructions together with a sustained objection are generally a
sufficient cure for “any potential bias posed by the questions.” United
States v. McCarthy, 54 F.3d 51, 56 (2d Cir. 1995). We presume that
juries follow such instructions, see, e.g., Weeks v. Angelone, 528 U.S. 225,
234 (2000); United States v. Stewart, 433 F.3d at 306–07, and this case
warrants no exception, cf. Kansas v. Carr, 136 S. Ct. 633, 645 (2016)
(recognizing “narrow departure” from presumption where
19 Because the second‐step inquiry is necessary to decide if the identified vouching error
denied Aquart a fair trial, our ensuing discussion and negative conclusion are holdings,
notwithstanding the views of our concurring colleague. See Concurring Op., post at 2.
While the vouching error does not stand alone, see infra Discussion Part II.B.3., our
conclusion that it did not, by itself, deny Aquart a fair trial is necessary to understand why
only the identification of further error prompts vacatur and remand.

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improperly presented evidence is so inculpatory as to be
“ineradicable, as a practical matter, from the jury’s mind”).20
Nor is a different conclusion compelled by the fact that the
relevant instructions were given generally rather than in specific
response to the sustained objection. While pinpoint curative
instructions may be particularly effective in safeguarding against
prejudice, see United States v. Thomas, 377 F.3d 232, 245 (2d Cir. 2004),
they are not invariably required, see United States v. Elias, 285 F.3d at
192 (recognizing pattern instruction as sufficient safeguard against
prejudice, particularly where misconduct not severe).21 There is no
reason to have required them here where the general instructions
specifically addressed the matter at issue, cf. United States v. Friedman,
909 F.2d 705, 709–10 (2d Cir. 1990) (holding that court’s statement to
jury—“I don’t think that is appropriate”—after sustaining objection,
provided only modest response to error that, in context, was
20 In Kansas v. Carr, the “ineradicable” evidence was “a codefendant’s confession
implicating the defendant” in violation of the Confrontation Clause and the rule stated in
Bruton v. United States, 391 U.S. 123 (1968). See Kansas v. Carr, 136 S. Ct. at 645. The Supreme
Court, however, has itself “declined to extend that exception” beyond Bruton error. Id.
(ruling that exception did not apply to defendants at joint capital‐sentencing proceeding,
who argued that some evidence presented by each defendant was prejudicial to other);
Richardson v. Marsh, 481 U.S. 200, 208 (1987) (holding codefendant’s confession that “was
not incriminating on its face,” but “became so only when linked with evidence introduced
later at trial,” to “fall outside” narrow Bruton exception).
21 United States v. Modica, 663 F.2d 1173 (2d Cir. 1981), is not to the contrary because this
court there held pattern jury instructions an insufficient response to prosecutorial
misconduct where the district court had “overruled” objection, thus suggesting that the
instruction did not pertain to the conduct at issue. 663 F.2d at 1178–82. By contrast, here,
the district court sustained objection, bringing the government’s unanswered question
clearly within the instruction to ignore such questions.

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“insufficient” to preclude “significant risk of prejudice”), and Aquart
did not ask the court to repeat or supplement those instructions, see
Greer v. Miller, 483 U.S. at 766 n.8 (observing, in response to argument
that trial court’s “curative instructions should have been more
specific,” that “trial counsel b[ears] primary responsibility for
ensuring that the error was cured in the manner most advantageous
to his client”). As this court has observed, in the absence of such a
request, a trial court may well think “that a more emphatic instruction
would have the unwanted effect of focusing the jury’s attention on
the improper remark.” United States v. Melendez, 57 F.3d 238, 242 (2d
Cir. 1995). Thus, while we will overlook a defense counsel’s failure to
request specific curative instructions where the prosecutor’s
misconduct “is so prejudicial that no instruction could mitigate its
effects,” “in less egregious cases” where a curative instruction can
forestall prejudice, “the failure to request specific instructions before
the jury retires will limit the defense’s ability to complain about the
relative lack of curative measures for the first time on appeal.” Id.22
This does not necessarily end judicial inquiry into the severity and
prejudice of the prosecutor’s conduct. See generally United States v.
Friedman, 909 F.2d at 710 (observing that claims of prosecutorial
misconduct “must be carefully assessessed as to [each case’s]
22 The misconduct in Melendez, a prosecutor’s summation pronouncement that the trial
judge “knows” a government’s cooperating witness “is telling the truth,” United States v.
Melendez, 57 F.3d at 240, can be considered more serious than that here at issue, see id. at
241 (observing that “jury is more likely to be influenced when an evaluation of the facts
receives the imprimatur of an impartial trial judge, rather than a prosecutor, whom the
jury recognizes to be an advocate”), but, nevertheless, was deemed capable of mitigation
through appropriate instruction, see id. at 242.

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individual circumstances”). But where, as here, the defense neither
sought further instructions nor moved for a mistrial after objection to
the vouching question was sustained, that is “some indication” that
the defense itself did not perceive the improper question “as
rendering the trial unfair” in light of the instructions given and the
sustained objection. United States v. Melendez, 57 F.3d at 243.
The government’s ensuing conduct provides further context for
us to assess the vouching error and to conclude that—by itself—the
error did not deny Aquart a fair sentencing hearing. After the district
court sustained objection, the government largely, and properly,
focused its cross‐examination on showing the jury exactly how Efrain
Johnson’s proffer statements evolved, how lies and internal
inconsistencies were exposed, and how discrepancies with physical
and forensic evidence persisted. This mitigated one of the principle
concerns with vouching, i.e., that it “impl[ies] the existence of
extraneous proof,” available to the government but not to the jury,
which gives the former an advantage in assessing credibility. United
States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) (internal quotation
marks omitted); accord United States v. Williams, 690 F.3d at 76
(observing that statements “vouching for the credibility of witnesses
are generally improper because they imply the existence of evidence
not placed before the jury” (internal quotation marks omitted)).
Thus, the jury heard that when Efrain Johnson first spoke with
government authorities on March 6, 2007, he denied any involvement
in the murders at issue and stated that he had not been in the Charles
Street building for the previous eight or nine years. The falsity of the

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latter statement was established by the recovery of Efrain Johnson’s
DNA from the crime scene. Confronted with that evidence, Efrain
Johnson changed course and admitted being inside the building but
denied participating in any crimes. Rather, he stated that “Dreddy”
(Aquart) had told him to knock on an apartment door and to see if the
occupants would sell him drugs. When a woman answered, Efrain
Johnson spit in her face but then left the scene. This too was a lie
because Efrain Johnson’s DNA was specifically identified on a latex
glove fragment stuck in duct tape binding one of the murder victims.
Confronted with that fact, Efrain Johnson gave his third account of
the day. He stated that he had gone to 215 Charles Street in the middle
of the night with Aquart, Azikiwe Aquart, and “Big Dude” (Taylor).
There, Efrain Johnson knocked on an apartment door and when a
woman (Tina Johnson) answered, all four men rushed into the
apartment, with Taylor pushing the woman back into the living room.
Aquart and his brother then went down the hallway and pushed a
man into a back bedroom.
The jury further heard that in a November 20, 2008 proffer,
Efrain Johnson gave a still different account of the initial entry into
the apartment, stating that he was the first person to enter the
premises and the first to touch Tina Johnson, pushing her down when
he tripped over her. Moreover, Agent Munger testified that Efrain
Johnson—who stated that he restrained Tina Johnson on Taylor’s
orders and then saw Taylor beat Tina Johnson with a pipe—could not
identify Taylor in either of two photo arrays shown to him, one on
November 20, 2008, and the other on May 4, 2009.

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The jury also learned from Agent Munger that, while Efrain
Johnson had stated that Tina Johnson was restrained and beaten in
the living room, he gave different accounts of where in the living
room the assault had occurred. On March 6, 2007, he stated that Tina
Johnson was on the living room floor when attacked. On March 7,
2007, he said she was leaning over a bed. After Agent Munger told
Efrain Johnson that there was no bed in the living room, he altered his
account from bed to sofa bed. But, as Agent Munger told the jury,
there was no sofa bed anywhere in Apartment 101.
Agent Munger further put before the jury discrepancies in
Efrain Johnson’s account of how long he was at the murder scene. On
March 7, 2007, he admitted being in the apartment for 25 minutes. On
August 11, 2008, he said he was there only eight minutes. On October
2, 2008, he stated that the entire attack had taken 30 to 45 minutes, for
15 to 20 minutes of which he was waiting in a car.
The agent also testified that Efrain Johnson told authorities he
never saw any masks worn or baseball bats used during the murders,
and the only weapon he saw was the ten‐inch long pipe that Taylor
used to hit Tina Johnson. The jury, however, had already heard
Lashika Johnson testify that, sometime before his arrest, Efrain
Johnson had told her that the murder participants had disposed of the
gloves, bats, and masks used in the crime before coming to her
apartment early on the morning of August 24, 2005. See supra,
Background Section I.A.2.f.(i). The jury had also heard various
witnesses testify that Tina Johnson’s and Reid’s dead bodies were
found in a bedroom, and that their blood was spattered throughout

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that room. Specifically, the jury had heard expert witness Tom Martin
testify that particularly large blood spatters on the bedroom’s nine‐
foot high ceiling indicated that the victims were struck in that room
many times and with great force by a sufficiently long object with
enough surface area that, when raised upward, could propel large
amounts of blood onto the ceiling. Martin agreed that a baseball “bat
would fit that description.” Gov’t App’x 1181.
By thus showing the jury exactly how Efrain Johnson had lied
in his proffer sessions, and how his statements were internally
inconsistent and at odds with physical and forensic evidence, the
government significantly minimized the potential for prejudice from
its objectionable attempt to elicit its own adverse assessment of his
credibility.
Nor is a different conclusion compelled by the government’s
eliciting its admissible evidence through questions sometimes framed
in terms of what Efrain Johnson “claimed” or what he “did not
admit.” Gov’t App’x 1421–24, 1427. Aquart argues that such
formulations impermissibly insinuated the prosecutor’s own disbelief
and, thus, involved further vouching. The argument is undermined
by the absence of objection to a single one of these questions, which
“strongly indicates” that the defense “did not understand the
statements to communicate impermissible vouching.” United States
v. Newton, 369 F.3d at 682. This is not surprising. Referring to what a
declarant “claimed” or highlighting what he “did not admit” may
well signal to a jury that a witness’s account should be carefully
scrutinized, but it does not communicate the prosecutor’s own

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disbelief, nor does it attempt to substitute that disbelief for the jury’s
own assessment of the evidence. Accordingly, we identify no error,
let alone plain error, in the framing of these unobjected‐to questions.
In sum, when we consider the government’s vouching error in
light of both the district court’s curative actions and the record as
subsequently developed by the government, we conclude that this
error, by itself, would not warrant vacatur of sentence and remand.
We reach a different conclusion only when we consider this
misconduct together with subsequent rebuttal error discussed infra at
Discussion Section II.B.3.
b. Plea Allocution Queries
Before addressing the rebuttal error, however, we consider
Aquart’s challenges to other, intervening prosecutorial actions
pertaining to the Efrain Johnson evidence. The first involves further
cross‐examination of Agent Munger, this time about Efrain Johnson’s
statements at an attempted plea allocution. 23 The prosecutor asked
Munger to confirm that the allocution “was just an attempt at a
straight plea . . . not a cooperation agreement,” to which Agent
Munger answered “[t]hat is correct.” Gov’t App’x 1424. Aquart
asserts that this objected‐to inquiry repeated and, thereby, aggravated
the earlier vouching error. On de novo review, we deem the argument
unconvincing for several reasons.
23 The relevant testimony is reproduced infra at nn. 24–25.

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First, viewed by itself, the question sought to elicit only that
Efrain Johnson did not attempt to plead guilty pursuant to a
cooperation agreement; it did not inquire as to the reason for that fact.
We have already explained supra, Discussion Section II.B.1.a., why a
simple inquiry into whether a declarant did or did not have a
cooperation agreement with the government at the time he made
certain statements does not constitute vouching. To the contrary, it
elicits a fact relevant to the jury’s assessment of credibility. To
explain, in the allocution statements at issue, Efrain Johnson appeared
to implicate Aquart in the initial duct taping of Tina Johnson, while
making no mention of Taylor, as in Efrain Johnson’s earlier proffer
statements. If the plea allocution had been pursuant to a cooperation
agreement, Aquart might well have urged that the agreement
provided Efrain Johnson with a motive to curry favor with the
prosecution, which he was doing by assigning the taping role to
Aquart. The fact that Efrain Johnson had no agreement was thus
relevant to a jury’s credibility assessment of the statement, as the
district court appears to have recognized in initially overruling
Aquart’s relevancy objection.
Second, even when the challenged allocution inquiry is viewed
in light of the earlier vouching error, there was no risk of prejudice
because the government was not here insinuating that it disbelieved
Efrain Johnson’s allocution statement inculpating Aquart. To the
contrary, it elicited the lack of a cooperation agreement to suggest that
the jury could deem the statement credible because Johnson had not
aligned himself with the government.

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Third, even if the allocution inquiry risked any prejudice—
which we do not think it did—that was mitigated by the district
court’s ultimate decision to sustain objection and to strike both the
question and the answer. Here, as before, we presume the jury
followed the court’s instruction to ignore struck questions and
answers. See United States v. Stewart, 433 F.3d at 307.
Aquart nevertheless complains that the district court’s
accompanying curative instruction was opaque and insufficient. We
are not persuaded. After telling the jury that it was striking the
objected‐to question and answer about the lack of a cooperation
agreement, the district court told the jury that it was “to understand
that discussion to have been with respect to a proceeding in which
Efrain Johnson attempted to enter a guilty plea.” Gov’t App’x 1427.
In context, “that discussion” is reasonably understood to refer to the
discussion still in evidence, wherein, as Agent Munger confirmed,
Efrain Johnson made statements implicating Aquart. The district
court’s instruction made certain that the jury understood that the
context for those statements was “a proceeding in which Efrain
Johnson attempted to enter a guilty plea.” Id. Although Aquart now
argues that the district court should have given clearer or additional
instructions, his failure to seek either limits his ability to complain on
appeal. See Greer v. Miller, 483 U.S. at 766 n.8; United States v. Melendez,
57 F.3d at 242.
In sum, we conclude that the stricken question and answer
about Efrain Johnson allocuting without a cooperation agreement,

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whether considered alone or together with the earlier impermissible
vouching inquiry, did not deny Aquart a fair penalty proceeding.
2. Misleading Characterization of Plea Allocution
Aquart next argues that the government denied him a fair
penalty proceeding by mischaracterizing Efrain Johnson’s plea
allocution to suggest that he there recanted his proffer assertions that
it was he and Taylor who had taped Tina Johnson. We reproduce in
the margin the relevant portions both of Efrain Johnson’s allocution24
24 The following colloquy took place at Efrain Johnson’s attempted guilty plea:
THE COURT: All right, please tell me what it is that you did that shows
that you are in fact guilty of the charges in Counts One, Two and Three to
which you are offering to plead guilty.
THE DEFENDANT [Efrain Johnson]: I helped someone—Dreddy
[Aquart]—gain access to someone’s house, and I taped the person up.
And that’s it.
THE COURT: Okay, we’re going to be a little more specific. Can you tell
me the time frame[?]
THE DEFENDANT: August 24th.
THE COURT: And you helped someone. Who is the someone?
THE DEFENDANT: Dreddy. Azibo.
THE COURT: And you helped him do what?
THE DEFENDANT: Tape Tina Johnson up, and I drove him from the
scene.
THE COURT: Now, you are charged in Count One with assisting one of
the co‐defendants to commit the murder of Tina Johnson and in Count
Two James Reid and in Count Three Basil Williams. I haven’t heard
anything more than about Tina Johnson.

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and of the government’s cross‐examination of Agent Munger on that
topic. 25
THE DEFENDANT: I drove Azibo to Tina Johnson’s apartment. When I
got there, I put on gloves, I helped him gain entry by knocking on the door,
and when they went in there, I helped him tape her up, and then I drove
him away from there, Azibo.
Gov’t App’x 1738–39.
25 The following exchange took place on cross‐examination of Agent Munger:
Q. [Prosecutor] Were you here in this court when [Efrain] Johnson came
in here to plead guilty?
A. [Agent Munger] Yes, I was.
Q. And during that plea, he had to tell the court under oath what he did
wrong, correct?
A. Yes.
Q. And isn’t it true that during that . . . sworn statement, that Johnson
said, “I helped Dreddy gain access to someone’s house and I taped the
person up and that’s it”? Did you hear him say that?
A. I heard him say that.
Q. And . . . then the Court asked, “And you helped someone. Who is the
someone?” And Johnson replied “Azibo.” Did you hear that?
A. Yes.
Q. And then the Court asked, “And you helped him do what?” And
Johnson responded, “Tape Tina Johnson up and I drove him from the
scene.” Did you hear that?
A. Yes.
Q. So, he never said a word about Taylor having anything to do with the
taping, did he?
A. That is correct.
Gov’t App’x 1424.

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As these excerpts show, the defense’s quarrel is really with the
last cross‐examination question and answer: “Q. So, [Efrain Johnson]
never said a word [at his plea allocution] about Taylor having
anything to do with the taping, did he? A. That is correct.” Gov’t
App’x 1424. All other questions quoted accurately from the plea
transcript.
Aquart argues that the exchange was misleading because it
implied that, at his allocution, Efrain Johnson had been asked other,
“pointed” questions about Taylor and that he “had clearly and
unequivocally renounced any claim that Taylor had taped” Tina
Johnson. Appellant’s Br. 85. The hypothesis is undermined by
Aquart’s own failure to voice a contemporaneous objection. See
United States v. Newton, 369 F.3d at 682. That omission also limits our
review to plain error, which is not evident here.
Moreover, we identify no misconduct because the cross‐
examination question at issue cannot reasonably be understood to
imply either that Efrain Johnson was asked any unquoted questions
about Taylor, or that he “clearly and unequivocally renounced” his
proffer statements about Taylor taping Tina Johnson. To the contrary,
because the government’s three immediately preceding questions
quoted directly from Efrain Johnson’s plea colloquy, a reasonable jury
would have understood the government’s final question to be a
summary inquiry, asking Agent Munger to confirm what the quoted
questions and answers showed: that Efrain Johnson never mentioned
Taylor in his allocution discussion of taping Tina Johnson. It
remained for the jury to decide whether mention of Taylor would

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have been responsive to the quoted questions. But the government
had a good faith basis in the record for asking its questions, and
Aquart could have used redirect examination to eliminate any of the
ambiguities he now hypothesizes.
Aquart nevertheless maintains that the government’s final
quoted inquiry was unfair because, at the start of Efrain Johnson’s
attempted allocution, the government effectively instructed him to
focus his responses on the Aquart brothers. The prosecutor’s
statement, which identified the elements of the crimes to be admitted,
reads as follows:
For each count the elements are the same, and that’s that
you murdered or aided and abetted, which means
assisted or helped, in the murder of another person, in
this case it would be Tina Johnson, James Reid and Basil
Williams; that the murder was committed while either
you or your co‐defendants—in this case it would be Azibo
Aquart and Azikiwe Aquart, with whom you are charged,
while they, with your knowledge, were involved in a
conspiracy to sell crack cocaine, over 50 grams of crack
cocaine; and the conspiracy is just an agreement between
two or more people to engage in illegal behavior. So,
basically you would have to know or be a part of their
conspiracy to sell drugs, and that they committed these
murders with your assistance and that you acted knowingly
and intentionally.
Gov’t App’x 1738 (emphasis added).

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The highlighted text does indicate that Azibo and Azikiwe
Aquart were the “they” being referenced by the prosecutor as the
persons who committed the charged murders “with [Efrain
Johnson’s] assistance.” Aquart could certainly have elicited this fact
on redirect examination of Agent Munger and then argued therefrom
that Efrain Johnson’s allocution failure to mention Taylor was
explained by the prosecution’s focus on the Aquart brothers. Further,
Aquart could have argued to the jury—as he now does on appeal—
that when Efrain Johnson said that he had “helped . . . Azibo . . . [t]ape
Tina Johnson up,” id. at 1738–39, what he meant was not that Aquart
himself had participated in any taping, but that it was by taping Tina
Johnson that Efrain Johnson had helped Aquart to commit the
murders. But Aquart did not elicit the prosecutor’s statement on
redirect. Nor did he make such arguments to the jury. Having
foregone these available, classic adversarial means to challenge
inferences urged by the prosecution from facts in evidence, he cannot
now complain of prosecutorial misconduct in introducing a fact
supported by the record—Efrain Johnson’s allocution failure to
mention Taylor—admitting more than one inference.
The record does not, after all, compel the inferences urged by
Aquart. A reasonable jury might conclude that, even if the
prosecutor’s statement urged Efrain Johnson to focus on the Aquart
brothers, it did not preclude Efrain Johnson from referencing other
participants. More to the point, a jury could conclude that when
Efrain Johnson said he “helped . . . Azibo . . . [t]ape Tina Johnson up,”
he meant that Aquart was taping Tina Johnson and he (Efrain

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Johnson) helped. That appears to be how Judge Arterton, who
conducted the allocution, understood it. See id. at 1407 (telling
Aquart’s counsel, “You are aware that [Efrain Johnson] said at his
attempted . . . allocution, that he helped Mr. Aquart tape up, I think it
was Tina Johnson.”).26
We do not ourselves choose among the competing inferences
that might be drawn from the fact that Efrain Johnson referenced
Aquart, but made no mention of Taylor, when he admitted in his
allocution to taping Tina Johnson. We conclude simply that, because
these facts admit competing inferences relevant to a jury’s assessment
of the credibility of Efrain Johnson’s proffer statements, the
government did not engage in prosecutorial misconduct by eliciting
them on cross‐examination of Agent Munger.
3. Denigrating Defense Strategy
Aquart asserts that the prosecution denied him a fair penalty
proceeding when, in summation, it urged the jury to reject his first
mitigation factor—i.e., that confederates Taylor and Efrain Johnson
would not face the death penalty—because the defense’s assignment
of an aggravating role in the murders to Taylor was inconsistent with
its guilt‐phase theory that Taylor was not even present for the
26 The district court’s conclusion finds further support in another allocution statement by
Efrain Johnson that the government did not put before Aquart’s trial jury: “I drove Azibo
to Tina Johnson’s apartment. When I got there, I put on gloves, I helped him gain entry by
knocking on the door, and when they went in there, I helped him tape her up, and then I
drove him away from there, Azibo.” Gov’t App’x 1739 (emphasis added).

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murders.27 The defense objected, explaining at sidebar that the
prosecution’s remarks “denigrat[ed] the defense.” Id. at 1451. The
district court agreed that it was improper for the government to
suggest “that there is something wrong or different or flawed about
what defense counsel did by having an inconsistent theory.” Id. at
1452. After a lengthy sidebar requiring it to address other matters,
the district court “sustain[ed] the defense’s objection” and instructed
27 The challenged prosecution argument reads as follows:
Only one of the proposed mitigators relates to the crimes that the
defendant committed, and that’s No. 1. Specifically[,] No. 1 states that
neither John Taylor nor Efrain Johnson will receive the death penalty for
their roles in the offense.
The defense is trying to bolster this factor by relying upon Johnson’s
statements to law enforcement, statements which are not only internally
inconsistent and not only inconsistent with the forensic and testimonial
evidence, but also inconsistent with the defendant’s theory of the case during the
guilt phase.
For instance, Johnson claims that the only weapon he saw was a ten‐inch
pipe that Taylor allegedly whipped out of his pocket. Well, you know
from the medical examiners and [expert witness] Tom Martin that the
victims were not killed with a ten‐inch pipe. There was blood on the walls
and blood dripping from the ceiling, and the slaughterhouse effect in the
southwest bedroom must have been made, as you learned from Tom
Martin, with a weapon of sufficient length and surface area to splatter that
quantity of blood up to the 9’3[‐]7/8 inch ceiling.
So ask yourself, why did the defense introduce [Efrain] Johnson’s
statements? The government submits that it was in an effort to shift blame
from the defendant to Taylor, to make Taylor look like he was more
involved in these offenses than he testified to here at trial. But you saw
Taylor testify and you saw him get cross‐examined; the cross‐examination
where he wasn’t asked one question about what role he actually played in
the offense. Why? Because then the defense theory was that Taylor wasn’t even
there for the murders.
Gov’t App’x 1451 (emphasis added).

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the jury “not [to] take into account in [its] deliberations at the penalty
phase the strategic conduct of counsel”: “This is for you to assess
based on what you find proved and what you conclude about the
defendant and the government’s proof.” Id.
The government’s error violated a specific constitutional
guarantee. The Sixth Amendment affords a defendant the right to a
“meaningful opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks omitted);
Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir. 2006). The law does not
cabin that right to consistent defense theories. Rather, it demands that
defendants be allowed “to present wholly inconsistent defenses.”
United States v. Goldson, 954 F.2d 51, 55–56 (2d Cir. 1992). “When
specific guarantees of the Bill of Rights are involved,” courts “take[]
special care to assure that prosecutorial conduct in no way
impermissibly infringes them.” Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974). Following that mandate here, we conclude that the
government violated Aquart’s Sixth Amendment right when it urged
the jury to draw an adverse inference from the fact that the defense
had advanced different theories as to confederate Taylor’s role at the
guilt and penalty phases of trial.
In assessing the seriousness of this error, we are mindful that
(1) the prosecution’s argument did not reference matters outside the

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record of which the jury would otherwise have been unaware,28 and
(2) the district court made some effort to mitigate the error by
sustaining objection.29 We do not foreclose the possibility that in other
contexts, such circumstances might allow a reviewing court to
conclude that the error did not inform the jury verdict. But we cannot
confidently reach that conclusion here.
First, the objectionable argument, viewed in context, appears to
have faulted the defense not only for advancing inconsistent theories
in general, but also for advancing theories that the defense did not
itself believe. Specifically, the prosecution’s argument can be
understood to insinuate that the defense either (1) did not believe
“that Taylor wasn’t even there for the murders”—its guilt‐phase
theory—because it knew Efrain Johnson’s statements were to the
contrary, Gov’t App’x 1451; or (2) did not believe Efrain Johnson that
Taylor played an active role in the charged murders—its penalty‐
phase theory—because it had not asked Taylor a single role question
on cross‐examination at the guilt phase. Either way, the prosecution
was improperly injecting a “sharp practice” accusation into the jury’s
deliberations, where such accusations have no role to play. More
troubling still, just as it was error for the prosecution, on cross‐
28 This case is not akin to United States v. Forlorma, 94 F.3d 91 (2d Cir. 1996), wherein the
prosecution’s objectionable argument presented the jury with new and inaccurate facts, see
id. at 94–96.
29 This case is also not akin to United States v. Whitten, 610 F.3d 168. There, the district court
did not sustain, but rather overruled, objection to a prosecution summation argument that
challenged a capital defendant’s professed acceptance of responsibility as a mitigating
factor on the ground that it was inconsistent with the defendant’s decision to stand trial.
See id. at 194.

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examination of Agent Munger, to insinuate its own adverse view of
Efrain Johnson’s credibility, so too it was error, on summation, for it
to insinuate that the defense also did not believe Johnson. Indeed,
when the two errors are considered together, a jury might be left with
the impression that neither the prosecution nor the defense believed
Efrain Johnson, thus erecting an especially high hurdle for a jury to
make its own credibility assessment.
Second, while the district court’s instruction for the jury “not
[to] take into account . . . the strategic conduct of counsel,” id. at 1452,
may have mitigated the error of suggesting general impropriety in the
advancement of inconsistent defense theories, the charge did not
address the particular concerns just noted, i.e., insinuations of both
sharp practice and adverse witness credibility determinations by the
defense.30 We are mindful that Aquart did not object to the given
charge or seek further instruction, which limits his ability to claim
prejudice on appeal. See generally United States v. Melendez, 57 F.3d at
242. But in the circumstances of this case, where the government had
already engaged in one negative vouching error respecting the Efrain
Johnson statements, its summation insinuation that defense counsel
also did not believe Johnson was serious error, making it especially
30 We do not think the district court’s instruction manifests the sort of error identified in
United States v. Spangelet, 258 F.2d 338 (2d Cir. 1958). The trial court there, far from
sustaining defense objection to the prosecutor’s impermissible interjection of his own
credibility into the case, appeared to approve the misconduct. See id. at 342–43. It was in
this context that we faulted the court for giving “the jury the impression that the
defendant’s counsel rather than the prosecution was being admonished.” Id. at 343. Here,
the district court did nothing to signal approval of the prosecution’s stricken argument.
Thus, our concern here is not with the content of the district court’s instruction, but with
its sufficiency to mitigate the particular harm identified.

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important for jurors clearly to understand that they were the sole
judges of witness credibility, and that any impression they may have
been given as to the lawyers’ or parties’ views on credibility was to be
completely ignored. In these circumstances, more than general
instructions were necessary to dispel the misimpressions given by the
prosecution on both cross‐examination and summation as to
credibility assessments. Absent more focused and emphatic
instruction, we cannot confidently reach the necessary final
conclusion that, even absent these errors, the jury would still have
voted for the death penalty in this case. See United States v. Friedman,
909 F.2d at 709–10 (explaining why “modest,” rather than “emphatic”
response to government error was “insufficient” in circumstances to
allow reviewing court “confidently” to say that “conviction would
surely have been obtained in the absence of the misconduct”).
The nature of a capital sentencing proceeding only reinforces
our concern. In such proceedings, juries are asked to find aggravating
and mitigating factors not as ends in themselves, but as part of a larger
process that channels the jury’s sentencing discretion in ways that
safeguard against arbitrary capital decisions, the critical
constitutional concern. See infra at Discussion Section II.D.2–3.
Viewed in that context, prosecution errors directed at a particular
mitigator not only can infect jury determinations as to that mitigator
(and the credibility of witnesses supporting the mitigator) but also
can skew the ultimate balance whereby the jury determines whether
a defendant is sentenced to death or life imprisonment. In some cases,
it may be possible for a reviewing court to conclude, from a jury

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finding that a challenged mitigator was proved, that prosecution
errors directed toward that mitigator were not serious, and that the
jury would have returned the same verdict in any event. But the
conclusion is not invariable given that mitigation factors need only be
proved by a preponderance of the evidence and, even when proved,
can be assigned as much or as little weight as a jury chooses in capital
sentencing balance. Here, the government did not seriously challenge
the mitigation factor that Taylor and Efrain Johnson were not facing
the death penalty. Its focus—the focus of its cross‐examination and
summation errors—was on the weight that should be assigned that
factor in the jury’s capital sentencing balance. The district court
commendably recognized the government’s errors and sustained
objections. But its curative instructions were not sufficiently focused
and emphatic to dispel insinuations of sharp practice and of adverse
credibility determinations by the defense as well as the prosecution
regarding Efrain Johnson. It is these circumstances that do not permit
us to conclude that the jury in this case would have returned the same
capital sentence even absent these errors.
Accordingly, we vacate Aquart’s death sentence and remand
for a new penalty proceeding.
C. Sufficiency Challenge
Aquart argues that the evidence adduced as to two cited
aggravating factors, i.e., “substantial planning and premeditation”
and “multiple killings,” was insufficient to warrant their presentation
to the jury. See 18 U.S.C. § 3595(c)(1) (providing, in capital cases, for

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appellate review of “whether the evidence supports the special
finding of the existence of an aggravating factor”). Our decision to
vacate and remand on other grounds does not obviate the need to
address this sufficiency argument because our determination
necessarily informs pursuit of these aggravators on remand.
We need not decide here whether our sufficiency review is
limited to plain error by Aquart’s failure to raise these challenges in
the district court, or to still‐stricter “manifest injustice” review, as
urged by the government. Appellee’s Br. 181–82, 207. We conclude
that, even on de novo review, Aquart’s sufficiency challenges fail on
the merits. See Lewis v. Jeffers, 497 U.S. 764, 781–83 (1990) (applying
Jackson v. Virginia, 443 U.S. at 319, in § 2254 context, to sufficiency
review of capital aggravating factor); United States v. Taylor, 814 F.3d
340, 367–68 (6th Cir. 2016) (same).
In urging otherwise, Aquart invokes the “equipoise rule”
derived from United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002). As
this court has explained, however, that rule is of “no matter to
sufficiency analysis because it is the task of the jury, not the court, to
choose among competing inferences.” United States v. MacPherson,
424 F.3d 183, 190 (2d Cir. 2005) (internal quotation marks omitted);
accord Cavazos v. Smith, 565 U.S. 1, 7 (2011).31 Thus, we have held the
equipoise rule to apply only where evidence “is nonexistent or so
meager” as to preclude the inferences necessary to a finding favorable
31 See also United States v. Vargas‐Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc)
(abandoning equipoise‐rule equivalent); United States v. Caraballo‐Rodriguez, 726 F.3d 418,
431–32 (3d Cir. 2013) (en banc) (same).

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to the government. United States v. Jiau, 734 F.3d 147, 152 (2d Cir.
2013) (internal quotation marks omitted). That is not this case.
1. Substantial Planning and Premeditation
Aggravator
Aquart argues that the evidence shows that, on entering
Apartment 101, his only plan was to commit assault or robbery,
precluding a jury finding that the ensuing murders were
premeditated. In support, Aquart points to Taylor’s testimony that he
thought he was participating only in a robbery, as well as to a
statement by one of Aquart’s dealers (who participated in a dry run
for the charged crimes) that he did not suspect Aquart’s intent to be
murder. Aquart further maintains that Azikiwe Aquart’s question to
Taylor upon leaving Apartment 101—“Did you hear the people say
our names?” Gov’t App’x 582—would have been unnecessary if the
participants’ intent from the start had been to kill everyone.
The argument fails because what subordinates knew (or
professed to know) was not determinative of Aquart’s own intent. In
fact, the jury heard ample evidence to support its finding that
Aquart’s premeditated intent on entering Apartment 101 was
murder.
Notably, Aquart admitted as much to fellow inmate Shamarr
Myers while awaiting trial in this case. Aquart told Myers that he had
been having problems with people selling crack in competition with
him. He initially “told them they had to go,” but then decided “they
had to die.” Id. at 911. Aquart argues that it is not clear from the latter

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statement that he had reached a death decision even before entering
Apartment 101. But a reasonable jury could have inferred as much
from evidence that Aquart began planning his attack on the residents
of Apartment 101 soon after Tina Johnson defied his oral orders, and
from the fact that he told Myers they “had to die,” with no suggestion
that death was the unintended consequence of a premeditated plan
only to rob or assault.
In any event, the circumstances of the murders supported the
jury’s finding of planning and premeditation. See Ratzlaf v. United
States, 510 U.S. 135, 149 n.19 (1994) (stating that jury may find requisite
mens rea “by drawing reasonable inferences from the evidence of
defendant’s conduct”); accord United States v. MacPherson, 424 F.3d at
189. The jury heard that Aquart was not at all hesitant to use non‐
deadly force, by himself and seemingly spontaneously, to cause
serious injury to persons who jeopardized his drug operations. Yet,
he did not follow that course with respect to the occupants of
Apartment 101. Rather, he recruited three men to help him attack
those occupants, and he armed his confederates and himself with
weapons capable of taking lives, specifically, baseball bats and a gun.
Aquart also equipped everyone with duct tape, masks, and gloves in
advance of the attack. Within moments of entering Apartment 101,
Aquart and his confederates used the tape to bind the victims’ hands,
feet, and heads, and then beat the victims to death. These facts
sufficed to support the jury’s finding that murder was no
afterthought, but Aquart’s premeditated intent.

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Aquart argues that the assailants’ use of masks and gloves
precludes a finding of premeditated murder because there would
have been no need for the assailants to conceal their identities if his
intent, from the outset, had been to kill the victims. The argument
goes to the weight of the evidence, not to its sufficiency. Aquart
cannot prevail on a sufficiency challenge merely by showing that
inferences favorable to him plausibly could be drawn from the
evidence. See United States v. Downing, 297 F.3d 52, 56–57 (2d Cir.
2002). Rather, he must show that the evidence, even when viewed
most favorably to the government, would not allow any rational jury
to find premeditated murder. See Jackson v. Virginia, 443 U.S. at 319;
United States v. Pierce, 785 F.3d at 838. He has not made that showing
here. A reasonable jury could well have concluded that even
premeditated murderers may employ masks and gloves, mindful that
a victim might escape or survive, someone else might recognize the
assailants entering or exiting the apartment, and criminal
investigators will undoubtedly conduct a careful forensic
examination of a murder scene.
Aquart argues that the very likelihood of a homicide
investigation means he must have been planning lesser harms
because such heightened police attention would jeopardize his
Charles Street drug business. The hypothesis assumes facts not
supported by either the record or human experience, i.e., (1) that
criminals always act rationally, and (2) that Tina Johnson, if subjected
to a lesser assault, would not have attributed the attack to Aquart and

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acted on her threat to contact the police and have them shut down all
drug dealing at 215 Charles Street.
Nor was a jury finding of premeditated murder precluded by
Taylor’s testimony that Aquart took possession of Tina Johnson’s cell
phone and money in the apartment before taping and beating his
victims. Insofar as Aquart contends that this testimony supports an
inference that robbery was the only premeditated object, and the
murders were “a spur‐of‐the‐moment action,” Appellant’s Br. 124,
such an inference, even if plausible, does not mean the totality of the
evidence was insufficient to support the jury’s finding of
premeditated murder. A reasonable jury could have found that
Aquart wanted to deprive Tina Johnson of both a means to call for
help and the profits he thought she had diverted from him before also
depriving her and her confederates of their lives. Such a conclusion
was supported by the fact that Aquart did not leave Apartment 101
after taking this property but, rather, proceeded to tape and viciously
beat his victims with deadly tools brought to the apartment.
In sum, because the evidence was sufficient to allow a
reasonable jury to find that Aquart planned and premeditated his
victims’ murders before he entered Apartment 101, his sufficiency
challenge to that aggravating factor fails on the merits.
2. Multiple Killings Aggravator
In urging a multiple killings aggravator, the government
argued that Aquart personally killed Tina Johnson and Basil Williams
“by beating them over the head with baseball bats.” Gov’t App’x

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1449. Aquart does not dispute the sufficiency of the evidence to prove
that he personally killed Tina Johnson, but he does challenge its
sufficiency to prove that he personally killed Basil Williams. The
argument fails on the merits and, thus, we need not here consider the
government’s argument that less than personal involvement in
murder—e.g., aiding, abetting, or procuring a murder—could
support this aggravator.
The evidence that Aquart personally killed Basil Williams is
circumstantial rather than direct and includes the following:
(1) Aquart conceived, organized, and led the murder scheme;
(2) Aquart personally killed Tina Johnson with one baseball bat, his
brother Azikiwe Aquart personally killed James Reid with the other
bat, and confederates Taylor and Efrain Johnson denied killing
anyone; (3) Aquart remained in Apartment 101 after all his
confederates had left and at which time Williams was still alive;
(4) the next morning Williams was found dead, bound and
bludgeoned to death in the same manner as Tina Johnson and Reid;
(5) Aquart’s fingerprints were among those found in the same room
as Williams’s body; (6) when the victims’ bodies were discovered, the
front door of Apartment 101 had been drilled shut from the inside;
and (7) the morning after the murder, Aquart gave his girlfriend
Lashika Johnson a drill and told her to dispose of it.
In challenging sufficiency, Aquart highlights gaps or
shortcomings in this evidence that he submits admit a possibility that
one of his confederates killed Williams and, thus, preclude a jury
finding beyond a reasonable doubt that Aquart personally did so. To

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succeed on a sufficiency challenge, however, Aquart must do more
than advance a theory of the evidence consistent with his not having
killed Basil Williams. See United States v. Downing, 297 F.3d at 56–57.
He must show that the evidence viewed most favorably to the
government would not allow any rational jury to find that Aquart
personally killed Williams. See Jackson v. Virginia, 443 U.S. at 319;
United States v. Pierce, 785 F.3d at 838. Aquart cannot make that
showing because the record evidence admits a chain of reasonable
inferences that would allow a jury to find that he personally
murdered Williams.
First, from Aquart’s leadership role in the murder scheme, the
jury reasonably could have inferred that it was he who determined
that all three occupants of Apartment 101—Tina Johnson, James Reid,
and Basil Williams—had to die. Indeed, he acknowledged as much
to fellow inmate Shamarr Myers. Second, from the fact that the three
victims were bound and killed in the same manner on the same day,
the jury could have concluded that all three murders were committed
by the Aquart crew, and not by any other persons. Third, from
Aquart’s own killing of Tina Johnson, the jury could have concluded
that he had no qualms about personally taking a human life and, thus,
would not have hesitated to kill Williams himself. Fourth, from the
fact that the four assailants had two baseball bats among them, and
that Aquart and his brother first used those bats to beat Tina Johnson
and Reid, the jury could have concluded that Williams was beaten to
death thereafter. Fifth, from Taylor’s testimony that he left the
apartment while the Aquart brothers were beating Tina Johnson and

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Reid, and that he (Taylor) beat no one, the jury could have concluded
that Taylor did not kill Williams. Sixth, from Efrain Johnson’s
statement to his sister that the victims were all alive when he left the
apartment, and that only Aquart then remained behind, the jury
could have concluded that Efrain Johnson did not kill Williams and
that Aquart was the only assailant who could have done so. Seventh,
from the identification of Aquart’s fingerprints in the room where
Williams was killed, the jury could have concluded that Aquart was
at Williams’s murder scene and, thus, had the opportunity as well as
the motive to commit that crime. Eighth, from the drilling shut of the
apartment from the inside and from Aquart’s giving Lashika Johnson
a drill to dispose of a few hours after the murders, the jury could
further have concluded that he was the last assailant in the apartment
and, thus, the only one with the opportunity to kill Williams.
Aquart argues that no reasonable jury could have made this
chain of inferences because it required crediting both Taylor’s trial
testimony and Efrain Johnson’s statements to his sister about his
departure from Apartment 101, which accounts were inconsistent.
Specifically, Aquart argues that Taylor testified that he and Azikiwe
Aquart left Apartment 101 before both Efrain Johnson and Aquart, at
which time Tina Johnson and Reid were presumably already dead.
Meanwhile, Efrain Johnson told his sister that when he later departed
Apartment 101, leaving only Aquart behind, all the victims were still
alive.
The argument fails because the urged inconsistency is not as
clear as Aquart contends. Taylor did not specifically testify that Tina

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Johnson and Reid were dead when he left the apartment. Rather, he
testified that he left when Aquart and his brother were beating these
two bound victims. But even assuming the urged inconsistency, it
does not show insufficiency because a jury “is free to believe part, and
to disbelieve part, of any given witness’s testimony,” United States v.
Praddy, 725 F.3d 147, 152 (2d Cir. 2013), and a reviewing court must
assume it believed the parts that support its verdict, cf. United States
v. Coppola, 671 F.3d 220, 233 (2d Cir. 2012). Here, the jury could have
credited both Taylor and Efrain Johnson as to when they left
Apartment 101 relative to their confederates and, thus, concluded that
Aquart was the last to remain in the apartment. The jury also could
have credited Efrain Johnson insofar as he reported that Williams was
still alive when he left the apartment, without necessarily crediting
his report that Tina Johnson and Reid also were alive. Assuming that
the jury credited Taylor that Efrain Johnson was in Williams’s
bedroom while the Aquart brothers (armed with the only two
baseball bats) were in another bedroom beating Tina Johnson and
Reid, the jury could have found Efrain Johnson more reliable as to
Williams’s condition than as to that of the other victims.
In sum, because we conclude that the circumstantial evidence
was sufficient to allow a reasonable jury to find that Aquart
personally killed Basil Williams, Aquart’s sufficiency challenge to the
multiple‐killings aggravator fails on the merits.

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D. Constitutionality Challenges to Death Penalty
Aquart raises various constitutional challenges to his capital
sentence that, if successful, would make the appropriate relief vacatur
and remand for the imposition of a term of imprisonment by the
district court rather than vacatur and remand for a new penalty
proceeding before a jury. Accordingly, we now explain why we reject
these challenges.32
1. Per Se Eighth Amendment Challenge
Aquart urges this court to hold that the death penalty is
necessarily “cruel and unusual punishment[]” and, thus, per se
violative of the Constitution. U.S. C ONST. amend. VIII. This panel is
precluded from so ruling by controlling Supreme Court and circuit
precedent, specifically, Gregg v. Georgia, 428 U.S. 153 (1976), and
United States v. Quinones, 313 F.3d 49 (2d Cir. 2002). Quinones
recognized that, in Gregg, the Supreme Court “expressly held . . . that
capital punishment does not constitute a per se violation of the Eighth
Amendment” for crimes involving intentional murder. United States
v. Quinones, 313 F.3d at 67 (citing Gregg v. Georgia, 428 U.S. at 207 (joint
opinion of Stewart, Powell, and Stevens, JJ.)). 33
32 While our concurring colleague suggests that some of Aquart’s arguments need not be
addressed at this time, we think it important to explain why he is entitled only to a new
capital sentencing hearing and not to a non‐capital sentence as a matter of law.
33 The joint opinion of Justices Stewart, Powell, and Stevens in Gregg v. Georgia, 428 U.S. at
158–207, subsequently has been recognized as the controlling opinion of the Court. See
Johnson v. Texas, 509 U.S. 350, 360 (1993) (citing “joint opinion of [those] three Justices” as

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In urging otherwise, Aquart argues that, in the 15 years since
Quinones, national standards of decency—reflected in legislative
enactments, state court decisions, and federal and state capital
practice—have evolved to reflect a consensus against capital
punishment. See generally Roper v. Simmons, 543 U.S. 551, 560–61
(2005) (grounding Eighth Amendment jurisprudence in “evolving
standards of decency that mark the progress of a maturing society”
(internal quotation marks omitted)). Whatever the merits of Aquart’s
argument, only the Supreme Court can overrule Gregg or recognize
exceptions thereto. See Agostini v. Felton, 521 U.S. 203, 238 (1997)
(holding that lower courts must follow Supreme Court precedent
“unless and until” reinterpreted by that Court); Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (holding that if
Supreme Court precedent has direct application to case, “the Court of
Appeals should follow the case which directly controls, leaving to
th[e Supreme] Court the prerogative of overruling its own
decisions”); accord United States v. Quinones, 313 F.3d at 62 n.10, 69
(applying Agostini and Rodriguez de Quijas to conclude that Eighth
Amendment challenge to capital punishment was foreclosed by
Gregg).
Aquart nevertheless points out that, since Gregg, the Supreme
Court itself has ruled that the Eighth Amendment categorically
precludes a death sentence for certain defendants, specifically,
minors, see Roper v. Simmons, 543 U.S. at 575, and those with
“controlling”). Accordingly, where we cite Gregg elsewhere in this opinion, we refer only
to that joint opinion unless we denote otherwise.

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intellectual disability, see Atkins v. Virginia, 536 U.S. 304, 321 (2002);
and for certain crimes, notably, rape, see Kennedy v. Louisiana, 554 U.S.
407, 422–24, 433–34, 446–47 (2008) (holding death sentence for rape of
minor to constitute cruel and unusual punishment); Coker v. Georgia,
433 U.S. 584, 597–98 (1977) (plurality opinion) (holding death sentence
for rape of adult woman violates Eighth Amendment), and non‐
intentional killings, see Enmund v. Florida, 458 U.S. 782, 787–88, 801
(1982) (holding that death penalty could not be imposed on defendant
who did not commit, had no intention of committing, and did not
cause to be committed, two murders in course of robbery). Nowhere,
however, has the Supreme Court suggested that, contrary to Gregg,
such a categorical conclusion might be reached with respect to
(1) crimes of intentional murder (2) committed by mentally
unimpaired adults. In those circumstances, Gregg’s holding continues
to control: “when a life has been taken deliberately by the offender,
we cannot say that [capital] punishment is invariably
disproportionate to the crime.” Gregg v. Georgia, 428 U.S. at 187
(footnote omitted).
In short, in identifying crimes for which the death penalty is a
disproportionate and, therefore, cruel and unusual punishment, the
Supreme Court recognizes “a line ‘between [intentional] homicide
and other serious violent offenses against the individual.’” Graham v.
Florida, 560 U.S. 48, 69 (2010) (quoting Kennedy v. Louisiana, 554 U.S. at
438). Explaining the distinction, the Court has observed that while
“nonhomicide crimes against individual persons . . . may be
devastating in their harm, . . . ‘in terms of moral depravity and of the

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injury to the person and to the public,’ they cannot be compared to
murder in their ‘severity and irrevocability.’” Kennedy v. Louisiana,
554 U.S. at 438 (quoting Coker v. Georgia, 433 U.S. at 598 (plurality
opinion)); see Graham v. Florida, 560 U.S. at 69 (observing that,
although “robbery or rape is a serious crime deserving serious
punishment, those crimes differ from homicide crimes in a moral
sense” (internal quotation marks omitted)). Thus, although the
Supreme Court, after Gregg, has held the death penalty categorically
unconstitutional for certain defendants and certain non‐homicidal
crimes, Gregg’s rejection of such a categorical conclusion for crimes of
intentional murder committed by mentally unimpaired adults
continues to control this court.
No different conclusion is warranted because Aquart stands
convicted of intentional murder under the VICAR and CCE statutes.
Aquart does not suggest that the moral depravity and irredeemable
injury of intentional murder are somehow mitigated by the VICAR or
CCE context. Indeed, Congress might reasonably have deemed those
contexts aggravating. See generally Kennedy v. Louisiana, 554 U.S. at
437 (deferring determination whether “offenses against the State”
such as “treason, espionage, terrorism, and drug kingpin activity”
might warrant death penalty where victim’s life not taken); United
States v. Thomas, 757 F.2d 1359, 1370 (2d Cir. 1985) (observing that
“Congress’s express purpose in enacting the Organized Crime
Control Act[] . . . [and] RICO . . . was to provide increased penalties for
racketeering activity” (emphasis in original) (internal quotation
marks omitted)).

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In any event, “time and again” since Gregg, and as recently as
2015, the Supreme Court has consistently “reaffirmed that capital
punishment is not per se unconstitutional” for diverse intentional
murders. Glossip v. Gross, 135 S. Ct. 2726, 2739 (2015) (collecting
cases).34 Notably, plaintiff Glossip stood convicted of the capital
murder of his employer, which he accomplished by hiring a contract
killer who beat the sleeping victim to death with a baseball bat. See
id. at 2735. This scenario resembles the instant case except, of course,
that Aquart personally wielded a baseball bat to murder victims who
were all‐too‐awake for their executions. Further, in each of the last
three terms, the Supreme Court has denied writs of certiorari to capital
murder defendants urging the per se unconstitutionality of the death
penalty. See Hidalgo v. Arizona, 138 S. Ct. 1054 (2018) (challenging
capital murder conviction for carrying out gang contract); Reed v.
Louisiana, 137 S. Ct. 787 (2017) (challenging capital murder conviction
for shooting deaths of three brothers, aged 20, 18, and 13); Tucker v.
Louisiana, 136 S. Ct. 1801 (2016) (challenging capital murder
conviction for shooting death of pregnant girlfriend).
Thus, to the extent Aquart asks this court to hold the death
penalty categorically unconstitutional either for intentional murders
generally or for VICAR and CCE murders in particular, we remain
bound by Gregg and Quinones to reject the argument.
34 Aquart acknowledges that most of the arguments he advances in urging the per se
unconstitutionality of the death penalty were articulated by Justice Breyer in his dissenting
opinion in Glossip v. Gross, 135 S. Ct. at 2755 (Breyer, J., dissenting), and have not been
adopted by a majority of the Court.

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2. Proportionality Challenge
Aquart argues that, even if the death penalty is not
categorically unconstitutional, his death sentence must be vacated
because, “considering both the crime and the defendant, the sentence
is disproportionate to that imposed in similar cases” and, thus, cruel
and unusual. Pulley v. Harris, 465 U.S. 37, 44 (1984). We are not
persuaded.
a. Judicial Proportionality Review Is Not
Constitutionally Mandated for Capital
Sentences Under the Federal Death Penalty
Act
When, as here, a defendant convicted of intentional murder
appeals a capital sentence, the Federal Death Penalty Act (“FDPA”)
mandates judicial review of “the entire record,” including “the
evidence submitted during the trial,” “the information submitted
during the sentencing hearing,” “the procedures employed in the
sentencing hearing,” and “the special findings returned” by the jury
on aggravating and mitigating factors. 18 U.S.C. § 3595(a), (b). Upon
such review, the appellate court must “address all substantive and
procedural issues raised on . . . appeal,” and “consider whether the
sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor and whether the evidence
supports the special finding of the existence of an aggravating factor
required to be considered under section 3592.” Id. § 3592(c)(1). What
the statute does not require is judicial proportionality review of the

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challenged death sentence as compared to sentences in other capital
cases. Aquart argues that such review is constitutionally required to
safeguard against random and capricious death sentences—the
Eighth Amendment concern prompting the Supreme Court to
invalidate Georgia’s then‐existing capital sentencing scheme in
Furman v. Georgia, 408 U.S. 238, 239–40 (1972).
The argument fails because, while the Supreme Court has cited
approvingly to statutorily mandated proportionality review in
rejecting constitutional challenges to state sentencing schemes, see,
e.g., Gregg v. Georgia, 428 U.S. at 198, it has “ma[de] clear” that such
precedent “do[es] not establish proportionality review as a
constitutional requirement,” Pulley v. Harris, 465 U.S. at 44–45 (“[T]hat
some schemes providing proportionality review are constitutional
does not mean that such review is indispensable.”). Indeed, in Pulley,
the Court explained that the “components of an adequate capital
sentencing scheme” do not demand “comparative review” but,
rather, “‘a carefully drafted statute that ensures that the sentencing
authority be given adequate information and guidance.’” Id. at 46
(quoting Gregg v. Georgia, 428 U.S. at 195); accord McCleskey v. Kemp,
481 U.S. 279, 306 (1987) (acknowledging state court’s finding that
death sentence was not disproportionate, but holding that “where the
statutory procedures adequately channel the sentencer’s discretion,
such proportionality review is not constitutionally required”). A
capital statutory scheme that limits the number of death‐eligible
crimes, requires bifurcated proceedings, demands proof of at least
one aggravating factor, gives the jury broad discretion to consider

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mitigating circumstances, and provides the jury with standards to
guide its use of aggravating and mitigating information, has been
recognized as sufficient to “minimize[] the risk of wholly arbitrary,
capricious, or freakish sentences.” Pulley v. Harris, 465 U.S. at 45
(discussing Gregg v. Georgia, 428 U.S. at 197–98). In sum, comparative
proportionality review may be constitutionally required only when a
capital sentencing system lacks such adequate checks on
arbitrariness. See id. at 51.
The FDPA contains precisely the sort of checks the Supreme
Court recognized in Pulley to obviate the need for proportionality
review. It restricts the death penalty to an enumerated list of eligible
crimes, see 18 U.S.C. § 3591, and requires a bifurcated trial, first to
determine guilt, and only then to determine punishment, see id.
§ 3593(b). If a jury finds a defendant guilty of a death‐eligible crime,
the statute limits jury discretion to vote a death sentence to those
defendants unanimously found beyond a reasonable doubt to have
acted (a) with specific culpable intent, see id. § 3591(a)(2); and
(b) under circumstances specified in at least one statutory
aggravating factor, see id. §§ 3592(c), 3593(e)(2). If a jury finds both
these statutory requirements satisfied, it must consider non‐statutory
aggravating factors that it finds proved beyond a reasonable doubt as
well any mitigating factors established by a preponderance of the
evidence to the satisfaction of even a single juror. See id. § 3593(c), (d).
A jury must then carefully weigh such aggravating and mitigating
factors and only if it unanimously concludes that the aggravating
factors so outweigh the mitigating factors as to justify a capital

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sentence can the jury return a death verdict. See id. § 3593(e). A
capital jury, however, is never required to return a death sentence.
See Callins v. Collins, 510 U.S. 1141, 1141–42 (1994) (Scalia, J.,
concurring in denial of writ of certiorari) (referencing jury’s
“unlimited” “discretion not to impose death (to extend mercy)”
(emphasis omitted)). The FDPA further channels a capital jury’s
discretion to impose the death penalty by prohibiting it from
considering race, color, religious beliefs, national origin, or sex in its
sentencing decision and, indeed, requiring each juror to sign a
certificate that such factors did not inform his or her sentencing
decision. See 18 U.S.C. § 3593(f). Finally, the FDPA is structured so
that, if the jury does not vote for the death penalty, its decision is
unreviewable. If it does vote for the death penalty, however, the
statute affords a defendant who appeals his sentence the
comprehensive record review detailed at the start of this section.
The six of our sister circuits to have considered the question
have each concluded that these federal statutory procedures
sufficiently safeguard against arbitrary and capricious death
sentences to satisfy the Eighth Amendment. See, e.g., United States v.
Lawrence, 735 F.3d 385, 418–19 (6th Cir. 2013); United States v. Lighty,
616 F.3d 321, 368 n.44 (4th Cir. 2010); United States v. Mitchell, 502 F.3d
931, 982 (9th Cir. 2007); United States v. Sampson, 486 F.3d 13, 23–25
(1st Cir. 2007); United States v. Jones, 132 F.3d 232, 248–49 (5th Cir.
1998); see also United States v. Allen, 247 F.3d 741, 757–58 (8th Cir. 2001),
vacated on other grounds, 536 U.S. 953 (2002). We now reach the same
conclusion. And because we conclude that these federal “statutory

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procedures adequately channel the sentencer’s discretion,” we
further conclude that, contrary to Aquart’s argument,
“proportionality review is not constitutionally required.” McClesky v.
Kemp, 481 U.S. at 306; see Pulley v. Harris, 465 U.S. at 46.
b. Aquart’s Death Sentence Is Not
Constitutionally Disproportionate
Even if Aquart had shown the Eighth Amendment to require
proportionality review, he fails to show that a capital sentence in his
case would be constitutionally disproportionate. As already
emphasized, each of Aquart’s capital crimes involved intentional
murder. Aquart does not argue that the death penalty is a
disproportionate punishment for such crimes. Nor could he in light
of Supreme Court precedent. See Coker v. Georgia, 433 U.S. at 592
(plurality opinion) (construing Gregg v. Georgia to hold that “death
penalty for deliberate murder [is] neither the purposeless imposition
of severe punishment nor a punishment grossly disproportionate to
the crime”); cf. Kennedy v. Louisiana, 554 U.S. at 420 (observing that
“death penalty can be disproportionate to the crime itself where the
crime did not result, or was not intended to result, in death of the
victim”). Nor does Aquart argue that his murders are somehow
mitigated by having been committed in the context of serious federal
crimes proscribing racketeering and continuing drug enterprises.
Aquart also does not argue that the proved aggravating
circumstances of the murders are constitutionally insufficient to
support a capital sentence in this case. See United States v. Lawrence,
735 F.3d at 417 (explaining that capital punishment requires proof of

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“aggravating circumstance” that does “not apply to every defendant
convicted of a murder” (internal quotation marks omitted)). Instead,
he argues that the jury’s unanimous finding as to one mitigating
factor, specifically, that he could safely and securely be confined for
the rest of his life, renders his death sentence aberrational and,
therefore, disproportionate.
In support, Aquart cites precedent and scholarship recognizing
“future dangerousness” as an important sentencing factor generally
and particularly in the capital context. See, e.g., Simmons v. South
Carolina, 512 U.S. 154, 162 (1994) (plurality opinion) (stating that
“defendant’s future dangerousness bears on all sentencing
determinations made in our criminal justice system”); Scott E.
Sundby, War and Peace in the Jury Room: How Capital Juries Reach
Unanimity, 62 Hastings L.J. 103, 117 (2010) (observing that “first
concern” of jurors after convicting defendant of murder is “ensuring
that, above all else, the defendant will never kill again. Jurors
consistently expressed the view . . . that they would vote for a death
sentence if they were not assured that the defendant would be safely
locked away.”).
A finding like the one made by the jury in this case, that the
Bureau of Prisons can safely and securely incarcerate Aquart for the
rest of his life, does not equate to a finding that he poses no risk of
future dangerousness. It means only that the jury found that the
Bureau of Prisons could satisfactorily minimize that risk, likely by
detaining Aquart in the highly restrictive conditions of one of its
maximum security facilities.

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Further, even assuming that a jury’s unassuaged concern about
a capital defendant’s future dangerousness, despite his incarceration,
would weigh heavily in favor of the death penalty, it does not
necessarily follow that a jury’s finding that the defendant could be
safely incarcerated renders a capital sentence constitutionally
disproportionate. Aquart points to statistics purportedly showing
that in only a handful of the 78 federal capital cases where juries have
voted for the death sentence did a majority of jurors find non‐
dangerousness as a mitigating factor. But this ignores the myriad
other aggravating and mitigating factors that could have informed
jury decisions to impose or not to impose the death sentence in each
particular case. To isolate a single mitigating factor and argue it is
determinative of a constitutional sentence runs afoul of the principle
grounded in Furman and codified in the FDPA, see 18 U.S.C. § 3593(e),
that a jury’s death penalty determination must result from an
individualized, careful, and holistic consideration of all aggravating
and mitigating factors. See United States v. Fell, 531 F.3d at 236
(holding that district court correctly informed jury that “it should
make a qualitative assessment of the aggravating and mitigating
evidence as a whole”); see also Glossip v. Gross, 135 S. Ct. at 2748 (Scalia,
J., concurring) (rejecting use of single factor (egregiousness of crime)
to challenge death penalty as arbitrary, explaining that Supreme
Court requires individualized consideration of all factors “that render
a punishment condign”).
In sum, we reject Aquart’s argument that the Eighth
Amendment requires judicial proportionality review of any death

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sentence under the FDPA. In any event, we identify no merit in
Aquart’s particular proportionality challenge to the death sentence
voted by the jury in his case.
3. Arbitrariness Challenge
In a variation on his proportionality argument, Aquart submits
that the infrequency with which federal juries vote for death
sentences shows that the FDPA operates in an arbitrary and
capricious manner that both results in cruel and unusual
punishments and violates due process. See U.S. CONST. amend. V,
amend. VIII. In support, he cites to those opinions in Furman v.
Georgia that linked the infrequency of death verdicts in capital cases
under Georgia law—there, approximately 15–20%, see 408 U.S. at 386
n.11 (Burger, C.J., dissenting)—to the ultimate finding of
unconstitutional arbitrariness, see id. at 309–10 (Stewart, J.,
concurring) (stating that “petitioners are among a capriciously
selected random handful upon whom the sentence of death has in fact
been imposed”); id. at 313 (White, J., concurring) (observing that
under challenged scheme “death penalty is exacted with great
infrequency even for the most atrocious crimes and . . . there is no
meaningful basis for distinguishing the few cases in which it is
imposed from the many cases in which it is not”).
These arguments fail because, as the Supreme Court’s post‐
Furman capital jurisprudence makes clear, the reason the infrequency
of death sentences for intentional murder raised constitutional concern
in Furman was not because death was a disproportionate sentence for

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that crime but because Georgia’s then‐available sentencing
procedures were inadequate to ensure that death sentences were not
being arbitrarily and capriciously imposed in individual cases. See
Gregg v. Georgia, 428 U.S. at 187, 189 (holding death sentence not
invariably disproportionate punishment for intentional murder, but
“where discretion is afforded a sentencing body on a matter so grave
as the determination of whether a human life should be taken or
spared, that discretion must be suitably directed and limited so as to
minimize the risk of wholly arbitrary and capricious action”). Thus,
as the Court more recently explained in Kansas v. Marsh, 548 U.S. 163
(2006), Furman and Gregg instruct that, to be held constitutional, a
“capital sentencing system must: (1) rationally narrow the class of
death‐eligible defendants; and (2) permit a jury to render a reasoned,
individualized sentencing determination based on a death‐eligible
defendant’s record, personal characteristics, and the circumstances of
his crime.” Id. at 173–74; see Jones v. United States, 527 U.S. at 381
(“[F]or a capital sentencing scheme to pass constitutional muster, it
must perform a narrowing function with respect to the class of
persons eligible for the death penalty and must also ensure that
capital sentencing decisions rest upon an individualized inquiry.”).
We have already discussed how the FDPA satisfies these
criteria. See supra, Discussion Section II.D.2.a. Where such safeguards
are provided, no constitutional concern arises from the resulting
infrequency with which federal juries vote a death sentence for crimes
of intentional murder. See United States v. Mitchell, 502 F.3d at 983
(stating that “federal executions are rare . . . does not render the FDPA

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unconstitutional”); United States v. Sampson, 486 F.3d at 24 (holding
that infrequency with which “federal death penalty is sought” does
not “render the FDPA unconstitutional”). That conclusion is only
reinforced by the fact that the Supreme Court has mandated that a
capital jury’s discretion not to impose the death penalty, i.e., to show
mercy, be unlimited, a ruling that itself supports less frequent
application of the death penalty. See Callins v. Collins, 510 U.S. at
1141–42 (Scalia, J., concurring in denial of writ of certiorari) (collecting
cases).35
In urging otherwise, Aquart points to McCleskey v. Kemp, 481
U.S. at 308, in which the Supreme Court entertained an as‐applied
racial challenge to Georgia’s capital sentencing scheme, despite its
statutory procedural safeguards. The Court did so, however, in
explaining why it rejected the particular basis for McCleskey’s as‐
applied challenge—a statistical report purporting to show that, under
the Georgia statute at issue, juries were more apt to vote death
sentences against African‐American defendants than white
defendants. The Court expressly declined to accept the “likelihood
35 Justice Scalia thought there was an irreconcilable tension in the Supreme Court’s capital
jurisprudence insofar as it simultaneously demands that (1) a capital jury’s “discretion to
impose death must be closely confined” by clear and objective standards that provide
specific and detailed guidance, but (2) its “discretion not to impose death (to extend mercy)
must be unlimited.” Callins v. Collins, 510 U.S. at 1141 (Scalia, J., concurring in denial of
writ of certiorari) (emphasis in original); see Walton v. Arizona, 497 U.S. 639, 656–57 (1990)
(Scalia, J., concurring in part and concurring in judgment) (discussing tension in detail).
We do not pursue the point because the view has not been adopted by a Supreme Court
majority and, in any event, favors capital defendants.

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[of racial disparity] allegedly shown by the Baldus study as the
constitutional measure of an unacceptable risk of racial prejudice
influencing capital sentencing decisions.” Id. at 309; see id. at 294–97
(explaining why “nature of the capital sentencing decision, and the
relationship of the statistics to that decision, are fundamentally
different” from statistical analysis in other contexts and, thus
“demand exceptionally clear proof” to support inference that jury has
abused its decision‐making discretion).36
Aquart, however, seizes on a footnote in McCleskey noting that
the cited “study in fact confirms that the Georgia system results in a
reasonable level of proportionality among the class of murderers
eligible for the death penalty.” Id. at 313 n.36. He argues therefrom
that McCleskey requires a “reasonable level of proportionality” in
capital sentences, which infrequent application belies regardless of
race. The footnote, however, pronounces no such holding. It simply
makes the additional observation that the Georgia scheme did not, in
fact, manifest the racial disproportionality McCleskey alleged, much
less the “systemic defects identified in Furman.” Id. at 312–13 (internal
quotation marks omitted). The Court, however, had already
pronounced its holding: that the likelihood of racial
36 This holding necessarily defeats Aquart’s efforts to use statistics to prove that race was
an arbitrary factor that unlawfully contributed to his death sentence. Appellant’s Br. 216–
17 (asserting that both federal defendants sentenced to death in this circuit under FDPA
are African‐American, that 11 of 16 defendants sentenced to death nationwide were
“people of color,” and that 1994 House Staff Report concluded that “race continues to play
an unacceptable part in the application of capital punishment” (quoting Staff of H.
Judiciary Subcomm. on Civil and Constitutional Rights, Racial Disparities in Federal Death
Penalty Prosecutions 1988–1994 (1994))).

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disproportionality allegedly shown in the study is not the proper
“constitutional measure of an unacceptable risk of racial prejudice
influencing capital sentencing decisions.” Id. at 309. This reasoning
necessarily extends to Aquart’s assertion that his capital case cannot
be distinguished from 32 others in which juries did not vote death
sentences and precludes identifying infrequency as the
“constitutional measure” of a due process violation. Id.; see United
States v. Sampson, 486 F.3d at 25 (holding comparative capital case
summaries and verdict sheets “wholly inadequate” to prove
arbitrariness).
As the Supreme Court recognized in McCleskey, discrepancies
in capital sentencing are inevitable given that the responsibility for
“express[ing] the conscience of the community on the ultimate
question of life or death” is committed to the discretion of jurors who
bring diverse aspects of “human nature and varieties of human
experience” to the task. 481 U.S. at 310–11 (alteration in original)
(internal quotation marks omitted). When such diverse individuals
strive to “focus their collective judgment on the unique characteristics
of a particular criminal defendant” and his capital crime, “[i]t is not
surprising that such collective judgments often are difficult to
explain.” Id. at 311. The Court in McCleskey specifically “decline[d]
to assume that what is unexplained is invidious.” Id. at 313. Rather,
McCleskey recognized that “the jury’s function to make the difficult
and uniquely human judgments that defy codification” is what
“buil[ds] discretion, equity, and flexibility into a legal system.” Id. at
311 (internal quotation marks omitted). Such discretion can,

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moreover, inure to a defendant’s benefit insofar as jury decisions not
to impose the death penalty—the vast majority—are final and
unreviewable, whereas its infrequent death verdicts are subject to
detailed review. See id. at 311–12; supra, Discussion Section II.D.2.a.
It was in this context of recognizing and approving capital sentencing
discretion that may yield judgments “difficult to explain,” that the
Supreme Court identified the single “consistent rule” applicable to
capital punishment: “that constitutional guarantees are met when the
mode []for determining . . . [such] punishment[] itself has been
surrounded with safeguards to make it as fair as possible.” McCleskey
v. Kemp, 481 U.S. at 313 (internal quotation marks omitted).
This reasoning applies with equal force to the infrequency of
jury death verdicts. As the Supreme Court recognized in Gregg v.
Georgia,
. . . the relative infrequency of jury verdicts imposing the
death sentence does not indicate rejection of capital
punishment per se. Rather, the reluctance of juries in
many cases to impose the sentence may well reflect the
humane feeling that this most irrevocable of sanctions
should be reserved for a small number of extreme cases.
428 U.S. at 182. Thus, unless the death penalty is categorically
disproportionate to the crime at issue—which Gregg held it was not
for crimes involving intentional murder—the proper constitutional
focus is on providing the jury with adequate information and
guidance to safeguard against arbitrary or capricious capital
sentences.

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Because the FDPA satisfactorily provided those
constitutionally mandated safeguards here, the fact that federal juries
have only infrequently exercised their discretion to vote capital
punishment for crimes involving intentional murder does not
support a conclusion that a death sentence in Aquart’s case violates
due process.37
4. Necessary and Proper Clause Challenge
Aquart argues that, in providing a death sentence for his
crimes, Congress exceeded its constitutional authority “[t]o make all
Laws which shall be necessary and proper for carrying into
Execution” the powers constitutionally vested in that branch of the
federal government. U.S. CONST. art. I, § 8, cl. 18. It has long been
recognized that the word “necessary,” as used in the Constitution,
does not mean “absolutely necessary.” McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 413–15 (1819) (Marshall, C.J.) (emphasis in original);
accord United States v. Comstock, 560 U.S. 126, 133–34 (2010). Rather, a
37 The conclusion finds further support in Justice Scalia’s concurring opinion in Glossip v.
Gross, which echoes McCleskey’s reasoning:
It is because these questions [informing a capital sentencing decision] are
contextual and admit of no easy answers that we rely on juries to make
judgments about the people and crimes before them. The fact that these
judgments may vary across cases is an inevitable consequence of the jury
trial, that cornerstone of Anglo‐American judicial procedure. But when a
[capital] punishment is authorized by law . . . the fact that some
defendants receive mercy from their jury no more renders the underlying
punishment “cruel” than does the fact that some guilty individuals are
never apprehended, are never tried, are acquitted, or are pardoned.
135 S. Ct. at 2748 (Scalia, J., concurring).

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law will be deemed necessary and proper if it is “rationally related to
the implementation of a constitutionally enumerated power.” United
States v. Comstock, 560 U.S. at 134.
Aquart’s federal death sentences were expressly authorized by
the two statutes under which he was convicted, 18 U.S.C. § 1959(a)(1)
(VICAR) and 21 U.S.C. § 848(e)(1)(A) (CCE murder). We have upheld
both these statutes as constitutional exercises of Congress’s
Commerce Clause authority. See United States v. Walker, 142 F.3d 103,
111 (2d Cir. 1998) (CCE murder); United States v. Torres, 129 F.3d 710,
717 (2d Cir. 1997) (VICAR). Given this controlling authority, Aquart
does not argue that either statute is facially unconstitutional in
authorizing the death penalty. Rather, he argues that a capital
sentence is not necessary and proper here because of the essentially
local character of the murders at issue and the fact that he was
convicted in Connecticut, a state that now prohibits the death penalty
both legislatively and under its own Constitution. See State v.
Santiago, 318 Conn. 1, 52–86 (2015).38
Neither argument persuades us. In support of the first, Aquart
relies on United States v. Morrison, 529 U.S. 598 (2000), and United
States v. Lopez, 514 U.S. 549 (1995). In Morrison, the Supreme Court
38 Aquart’s arguments focus on the fourth and fifth considerations employed by the
Supreme Court in United States v. Comstock to determine whether a civil commitment
statute was rationally related to Congress’s implied authority to enact criminal laws and
administer the federal criminal justice system. These considerations are (1) the breadth of
the Necessary and Proper Clause, (2) the history of federal involvement in the relevant
area, (3) the rationale for and purpose of the challenged statute, (4) the statute’s
accommodation of state interests, and (5) the connection between the statute and
Congress’s enumerated powers. See 560 U.S. at 133–46.

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ruled that the Commerce Clause did not authorize Congress federally
to criminalize gender‐motivated violence because it was not, “in any
sense of the phrase, economic activity.” 529 U.S. at 613; see id. at 618
(explaining that “punishment of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved in
interstate commerce has always been the province of the States”). In
Lopez, the Supreme Court similarly invalidated a federal statute
criminalizing the possession of a firearm in a school zone. Although
the government there urged an interstate nexus because insurance
spread the cost of violent crime throughout the population and
reduced the willingness of persons to travel to areas that were
perceived as dangerous, the Supreme Court concluded that such a
piling of “inference upon inference” would impermissibly convert
Congress’s Commerce Clause authority into “a general police power
of the sort retained by the States.” United States v. Lopez, 514 U.S. at
567.
The exercise of federal jurisdiction here raises none of the
concerns identified in Morrison and Lopez. Both the VICAR and CCE
murder statutes require a “strong relationship” between the charged
murders and commerce‐affecting criminal activity. United States v.
Mapp, 170 F.3d at 336 (stating that required “strong relationship”
between predicate murder and racketeering activity affecting
interstate commerce eliminates risk of “making purely local crimes a
matter of federal concern”); see United States v. Aguilar, 585 F.3d 652,
658 (2d Cir. 2009) (same regarding “substantive connection” that CCE
murder statute requires between drug enterprise and charged

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murder). That strong relationship was established here by evidence
showing that Aquart’s express motive in killing Tina Johnson and her
associates was to eliminate a rival drug dealer. The murder of such a
rival directly affected interstate commerce both by actually
eliminating one retail competitor and by chilling possible competition
from others, thus maintaining the monopoly of Aquart’s racketeering
enterprise. See Gonzales v. Raich, 545 U.S. at 19 n.29 (recognizing
Congress’s power to regulate both lawful and unlawful markets
under Commerce Clause); United States v. Umaña, 750 F.3d 320, 337
(4th Cir. 2014) (“Congress could rationally have concluded that
proscribing reputation‐enhancing violence committed by members of
a criminal enterprise would disrupt the interstate commerce that the
enterprise itself engages in.”).
The second part of Aquart’s necessary‐and‐proper challenge
maintains that the lack of any “link” between the death penalty and
Congress’s exercise of an enumerated power precludes the federal
government from asserting an interest “in execution as a particular
punishment” that is superior to Connecticut’s interest in barring that
punishment within its borders. Appellant’s Supp. Br. 12/15/2015, 15
(emphasis in original). The argument is unpersuasive for several
reasons.
First, to the extent Aquart’s highlighting of the word
“particular” implies that a federal capital sentence may be imposed in
Connecticut only if it is absolutely necessary to Congress’s exercise of
Commerce Clause authority—in short, if no lesser punishment can be
effective—we explained at the outset that the Supreme Court has

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consistently rejected such a construction of the Necessary and Proper
Clause. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 413–15; accord
United States v. Comstock, 560 U.S. at 134–35 (collecting cases). Rather,
the Supreme Court has construed the Necessary and Proper Clause to
“make[] clear that the Constitution’s grants of specific federal
legislative authority are accompanied by broad power to enact laws
that are ‘convenient, or useful’ or ‘conducive’ to the authority’s
‘beneficial exercise.’” United States v. Comstock, 560 U.S. at 133–34,
(quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 413, 418).39
Congress having determined that capital punishment is useful and
conducive to its exercise of Commerce Clause authority over drug
and racketeering enterprises whose members resort to murder, the
Necessary and Proper Clause does not require it further to
demonstrate a need for that “particular punishment.” Appellant’s
Supp. Br. 12/15/2015, 15 (emphasis in original).
Second, to the extent Aquart’s argument suggests that the link
between capital punishment and Congress’s exercise of Commerce
Clause authority is too remote to be necessary and proper, it is
similarly defeated by precedent. The Supreme Court has explicitly
rejected the idea that Congress’s necessary‐and‐proper authority “can
39 Chief Justice Marshall famously defined the scope of the Necessary and Proper Clause
as follows:
Let the end be legitimate, let it be within the scope of the constitution, and
all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.
McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 421.

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be no more than one step removed from a specifically enumerated
power.” United States v. Comstock, 560 U.S. at 146. Thus, Congress’s
enumerated Commerce Clause authority supports a number of links,
implying, first, the power to enact criminal laws regulating
commerce, which in turn implies authority to determine punishments
for violations of those laws, including capital punishments, which in
turn implies authority to establish a federal prison system to carry out
those punishments. Indeed, Congress’s power to prescribe
punishments for federal crimes has been recognized from the
beginning of the Republic. See McCulloch v. Maryland, 17 U.S. (4
Wheat.) at 416 (“All admit, that the [federal] government may,
legitimately, punish any violation of its laws; and yet, this is not
among the enumerated powers of congress.”); accord United States v.
Comstock, 560 U.S. at 137 (“Neither Congress’ power to criminalize
conduct, nor its power to imprison individuals who engage in that
conduct, nor its power to enact laws governing prisons and prisoners,
is explicitly mentioned in the Constitution. But Congress nonetheless
possesses broad authority to do each of those things in the course of
‘carrying into Execution’ the enumerated powers ‘vested by’ the
‘Constitution’ . . . —authority granted by the Necessary and Proper
Clause.” (quoting U.S. C ONST. art. I, § 8, cl. 18)). Further, among the
punishments prescribed by the first Congress in its first identification
of federal crimes was the death penalty. See Act of Apr. 30, 1790, ch.
9, §§ 1–14, 1 Stat. 112–15. It therefore follows that because Congress’s
Commerce Clause power supports its enactment of criminal laws
such as VICAR and CCE murder, it is necessary and proper for
Congress to determine the appropriate punishments for those crimes.

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To be sure, Congress’s exercise of its punitive authority is limited by
the Eighth Amendment’s prohibition of cruel and unusual
punishments. But so long as a federal punishment does not violate
that constitutional limitation, it is not somehow rendered
constitutionally unnecessary or improper by the fact that it is imposed
in a state that does not employ the punishment for its own state
crimes.
That is the third part of Aquart’s argument: a federal death
sentence is not necessary and proper in Connecticut because that state
prohibits capital punishment for state crimes. To the extent Aquart’s
argument implies federal impingement on state sovereignty, it might
be understood to invoke the Tenth Amendment. See U.S. C ONST.
amend. X (“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.”). Aquart, however, specifically
disclaims any Tenth Amendment challenge (just as he disclaims any
Commerce Clause challenge). This is not surprising because, as the
Supreme Court has explained, the powers “‘delegated to the United
States by the Constitution’ include those specifically enumerated
powers listed in Article I”—such as those conferred by the Commerce
Clause—“along with the implementation authority granted by the
Necessary and Proper Clause”—such as the authority to codify and
punish federal crimes affecting interstate commerce. United States v.
Comstock, 560 U.S. at 144. “Virtually by definition,” then, the
authority to prescribe punishments for federal crimes is not a
“power[] that the Constitution ‘reserved to the States.’” Id. In short,

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“the federal interest in defining the punishment for federal crimes” is
not “a matter for local veto.” United States v. Acosta‐Martinez, 252 F.3d
13, 20 (1st Cir. 2001) (rejecting due process and statutory challenges
to FDPA in Puerto Rico, which bars death penalty under its own
constitution).40
This conclusion applies with equal, if not greater, force to
Aquart’s attempt to locate such veto power in the Necessary and
Proper Clause. To explain, a Tenth Amendment challenge at least
suggests that the Constitution reserved to all the states some authority
respecting federal sentences. By contrast, Aquart’s argument
suggests that the Necessary and Proper Clause gives each individual
state the power to veto federal laws authorizing capital punishment
for certain federal crimes. This is at odds with our very constitutional
design of two governments, “one state and one federal, each
protected from incursion by the other.” Printz v. United States, 521
U.S. 898, 920 (1997) (internal quotation marks omitted) (making point
in declaring unconstitutional federal law requiring state officials to
enforce aspects of federal gun law). It is further at odds with the idea
40 The argument in Acosta‐Martinez was premised on 48 U.S.C. § 734, which extends United
States laws to Puerto Rico except as “locally inapplicable,” rather than the Tenth
Amendment, which applies only to the states. See Franklin Cal. Tax‐Free Tr. v. Puerto Rico,
805 F.3d 322, 344–45 (1st Cir.), aff’d, 136 S. Ct. 1938 (2016). The First Circuit there concluded
that the FDPA applies in Puerto Rico just as it applies in the states that prohibit the death
penalty because Congress “retains federal power over federal crimes.” United States v.
Acosta‐Martinez, 252 F.3d at 20; see United States v. Johnson, 900 F. Supp. 2d 949, 962–63 (N.D.
Iowa 2012) (holding that federal legislation making death penalty applicable for federal
crimes does not violate Tenth Amendment “even in states that do not authorize capital
punishment under state law”); United States v. Tuck Chong, 123 F. Supp. 2d 563, 566–68 (D.
Haw. 1999) (rejecting Tenth Amendment challenge to imposition of federal death penalty
in Hawaii, which does not authorize death penalty under state law).

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that the Constitution “was designed for the common and equal
benefit of all the people of the United States” and, thus, must apply
equally throughout the states. Martin v. Hunter’s Lessee, 14 U.S. (1
Wheat.) 304, 348 (1816) (Story, J.).
The Necessary and Proper Clause warrants no exception.
Nothing in the Constitution contemplates that Congress’s exercise of
its constitutional authority may be necessary and proper in one state
and not in another depending on how each state treats the matter at
issue under its own laws. Indeed, such an argument would
appropriately be rejected out of hand if the state laws at issue opposed
not the death penalty, but the sorts of civil rights, environmental, or
gun trafficking requirements that are enforced through numerous
federal criminal laws not always mirrored in the legislation of each
state. Cf. United States v. Fell, 571 F.3d 264, 270 (2d Cir. 2009) (Raggi,
J., with Jacobs, C.J., Cabranes, Parker, Wesley, Livingston, JJ.,
concurring in the denial of rehearing en banc) (rejecting Sixth
Amendment argument demanding “special solicitude” in selecting
federal capital jury for “local values” opposing death penalty).
Nor is a different conclusion warranted by Comstock’s
consideration of whether the federal civil‐commitment statute there
at issue properly accounted for state interests. See 560 U.S. at 143–44.
That consideration was limited to assuring that the statute neither
violated the Tenth Amendment nor “otherwise improperly limit[ed]
the scope of powers that remain with the States.” Id. at 144 (internal
quotation marks omitted). Aquart does not—and could not—here
argue a violation of the Tenth Amendment. Insofar as he argues that

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a federal death penalty “usurps Connecticut’s traditional authority to
determine the appropriate sanctions for murder committed within
the state,” Appellant’s Supp. Br. 12/15/2015, 12, the argument fails as
a matter of law because Connecticut’s authority is limited to
determining sanctions for murders committed in violation of its own
laws. Neither the VICAR nor CCE murder statute places any limits
on Connecticut’s authority to determine the appropriate punishment
for state law murders. Nor does either statute issue any directives to
the Connecticut legislature, the concern at issue in New York v. United
States, 505 U.S. 144, 188 (1992) (holding federal statute requiring states
to accept ownership of waste or regulate according to instructions of
Congress exceeded enumerated powers). Further, neither these
statutes nor the FDPA conscripts state officials to carry out federal
commands, the concern identified in Printz v. United States, 521 U.S.
at 935 (holding federal law requiring state officials to conduct
background checks on prospective handgun purchasers to violate
state sovereignty and not to be enforceable as necessary and proper
to execution of Commerce Clause).
In sum, there is no merit to Aquart’s argument that his capital
sentences exceeded Congress’s authority under the Necessary and
Proper Clause.
5. “Originalist” Challenge
Finally, the panel requested further briefing on the “original”
meaning of the Cruel and Unusual Punishments Clause within our
system of federalism. In response, Aquart argues that his death

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sentence violates the original meaning of the word “unusual” because
(1) it marries a new punishment—death—to crimes for which it was
not previously available, i.e., VICAR and CCE murder; and (2) it
exceeds the punishment available in the state of Connecticut for
comparable crimes.41
Although we here discuss these “originalist” challenges, we
acknowledge at the outset that the Supreme Court does not construe
the Eighth Amendment’s Cruel and Unusual Punishments Clause
according to an original understanding of what was “cruel and
unusual.” Rather, it has ruled that “[t]he Amendment must draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society.” Atkins v. Virginia, 536 U.S. at 311–12
(internal quotation marks omitted); accord Moore v. Texas, 137 S. Ct.
1039, 1048 (2017); Roper v. Simmons, 543 U.S. at 560–61. In following
that principle, the Court has not drawn “precise distinctions between
cruelty and unusualness” or clearly indicated that the two words bear
qualitatively different meanings. Trop v. Dulles, 356 U.S. 86, 100 n.32
(1958) (plurality opinion). We are, of course, bound by Supreme
Court precedent in applying the Cruel and Unusual Punishments
41 Our concurring colleague states that he does not find the parties’ supplemental briefs all
that helpful, suggesting that the arguments advanced were not fully made out and might
better be developed on remand if Aquart deems it appropriate. See Concurring Op., post at
6–7. We cannot agree. The originalist hypothesis put to the parties by the panel is not one
requiring record development of fact, and there is no reason to think that able counsel did
not develop the arguments fully and to the best of their ability. The hypothesis simply
lacks persuasive support in law and history, and there is no reason for this court not to say
so.

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Clause. Nonetheless, we will now explain why Aquart’s “originalist”
arguments as to the word “unusual” do not persuade.
a. Extending Capital Punishment to VICAR
and CCE Murders
Aquart’s first “originalist” argument relies on a law review
article, which concludes that, “[a]s used in the Eighth Amendment,
the word ‘unusual’ was a [legal] term of art,” derived from the
common law, “that referred to government practices that are contrary
to ‘long usage’ or ‘immemorial usage.’” John F. Stinneford, The
Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel
Innovation, 102 NW. U. L. R EV. 1739, 1745 (2008) [hereinafter
“Stinneford, Original Meaning”].42 The author submits that historical
evidence from 17th and 18th Century England and America indicates
that three categories of punishment were recognized as “unusual”
under this long‐usage formulation:
42 The phrase “cruel and unusual punishments” first appeared in the English Bill of Rights
of 1689, in response to abusive and unprecedented sentencing practices by royal judges
under the Stuarts. See Stinneford, Original Meaning, at 1748; see also Harmelin v. Michigan,
501 U.S. 957, 967–69 (1991) (opinion of Scalia, J.) (detailing link between abuses attributed
to Lord Chief Justice Jeffreys of the King’s Bench and the English Bill of Rights’ prohibition
on “cruell and unusuall Punishments”). When the phrase reappeared in America in
Virginia’s 1776 Declaration of Rights, see Stinneford, Original Meaning, at 1748, its English
origins as a restraint on a lawless judiciary were well known throughout the colonies, see
Akhil Reed Amar, THE BILL OF R IGHTS: CREATION AND R ECONSTRUCTION 87, 279 (1998)
(“[E]very schoolboy in [Eighteenth Century] America knew that the English Bill of Rights’
1689 ban on excessive bail, excessive fines, and cruel and unusual punishments—a ban
repeated virtually verbatim in the Eighth Amendment—arose as a response to the gross
misbehavior of the infamous Judge Jeffreys.”).

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(1) punishment practices that were either entirely
new or were foreign to the common law system,
including—perhaps primarily—those that were used
in civil law jurisdictions; (2) punishments that were
newly married to crimes with which they had not
traditionally been associated—for example,
Parliament’s decision to make it a capital offense to
cut down a cherry tree in an orchard, among
numerous other minor offenses; and (3) traditional
punishments that had fallen completely out of usage
and were then revived, such as the practice of
‘ducking’ in cold water a woman convicted of being a
common scold.
Id. at 1745–46 (footnotes and internal quotation marks omitted).
We need not here decide whether this persuasively states the
original meaning of the word “unusual” as used in England and
transplanted to America’s Eighth Amendment because Aquart fails,
in any event, to bring his challenged death sentences within the
second quoted category on which he relies, i.e., a punishment newly
married to crimes for which it had not traditionally been associated.43
43 There is no ready agreement on the original meaning of the Cruel and Unusual
Punishments Clause. The article posits that English sources, especially Coke and
Blackstone, show that, within the common law tradition, “unusual” meant contrary to long
usage, hence the outrage at judicial imposition of sentences unprecedented at common
law. See Stinneford, Original Meaning, at 1745, 1767–92. But Justice Scalia, after reviewing
some of those same sources, concluded that “unusual” could not have had the same
meaning in the Eighth Amendment because “[t]here were no common‐law punishments
in the federal system.” Harmelin v. Michigan, 501 U.S. at 975 (opinion of Scalia, J.). Thus,
the Eighth Amendment’s Cruel and Unusual Punishments Clause had to have been

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To the extent the particular concern in the second category is
extending capital punishment to minor offenses, akin to the cherry
tree example derived from Blackstone,44 Aquart can hardly claim that
his capital crimes are of that sort. They are murders. To be sure, those
murders are federal crimes because they were committed in aid of
“meant as a check not upon judges but upon the Legislature.” Id. at 975–76. So understood,
Justice Scalia maintained that the original constitutional meaning of “unusual” in the
Eighth Amendment was its common meaning, i.e., “such as [does not] occu[r] in ordinary
practice.” Id. at 976 (alterations in original) (internal quotation marks omitted).
The Stinneford article maintains that there is a significant difference between “ordinary
practice” and “long usage.” Under the former formulation, “any punishment that was
permitted at the time of the Eighth Amendment’s ratification must necessarily be
permitted today because Justice Scalia sees the clause as embodying the standards of
decency that prevailed in 1790.” Stinneford, Original Meaning, at 1818. By contrast, a long‐
usage formulation is not tied to the Eighteenth Century. Rather, it operates at the time of
challenge:
If a punishment enjoys long usage, this is powerful evidence of
reasonableness because it has enjoyed the consent of the people over a
long period of time. If a punishment does not enjoy long usage, either
because it is completely new or because it is being reintroduced after
having fallen out of usage for a significant period of time, then it does not
enjoy any presumption of reasonableness.
Id. at 1819.
As noted, we do not choose between these formulations because Aquart fails to show that
his capital sentences are constitutionally unusual even under the long‐usage formulation
on which he relies. We nevertheless note that the amendment’s original meaning is open
to debate. See Trop v. Dulles, 356 U.S. at 100–01 (plurality opinion) (observing that words
of Eighth Amendment are “not precise” but must draw meaning from evolving standards
of decency); id. at 100 n.32 (observing that “[i]f the word ‘unusual’ is to have any meaning
apart from the word ‘cruel,’” it “should be the ordinary one, signifying something different
from that which is generally done”).
44 See Stinneford, Original Meaning, at 1791 (quoting 4 WILLIAM BLACKSTONE,
COMMENTARIES *4 (critiquing Parliament for deviating from common law in making minor
crimes capital offenses, including cutting down cherry tree in orchard or breaking down
fishpond so that fish escape)).

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racketeering and a continuing drug enterprise. Racketeering and
drug trafficking are serious crimes in themselves, but not ones that
Congress originally punished by death. See Pub. L. No. 91‐513, Title
II, § 408, 84 Stat. 1265 (codified as amended at 21 U.S.C. § 848); Pub.
L. No. 98‐473, Title II, § 1002, 98 Stat. 2137 (codified as amended at 18
U.S.C. § 1959). That, however, does not support Aquart’s argument
that Congress’s addition of a death sentence to the VICAR and CCE
murder statutes is unconstitutionally “unusual.” Such punishment is
prescribed only for VICAR and CCE murders. See 21 U.S.C. § 848(e);
18 U.S.C. § 1959(a)(1). Indeed, it was only proof of murder that
aggravated Aquart’s VICAR and CCE crimes to capital offenses and
made him eligible for a death sentence. Thus, murder, and nothing
less, is the pertinent conduct for purposes of considering Aquart’s
claim that Congress impermissibly married a new capital punishment
to a crime where it was not previously available.
Analyzed in that context, Aquart’s argument fails because he
cannot show that capital punishment has not traditionally been
associated with the crime of murder. To the contrary, it is the crime
most frequently associated with that punishment. Indeed, “[t]he
common‐law rule imposed a mandatory death sentence on all
convicted murderers.” Gregg v. Georgia, 428 U.S. at 176–77. At the
time of the Constitution’s ratification, all thirteen states treated
premeditated murder as a capital crime, punishable by a mandatory
death sentence. See Woodson v. North Carolina, 428 U.S. 280, 289 (1976);
see also H UGO A DAM B EDAU, THE D EATH PENALTY IN A MERICA, 5–6, 15,
27–28 (1967).

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Nor can Aquart show that an “originalist” meaning of
“unusual” precluded Congress from punishing newly codified
federal murder crimes with death. The same Congress that drafted
the Eighth Amendment enacted the Crimes Act of 1790, which, in
defining some of the first federal crimes, made murders on the high
seas or within the sole and exclusive jurisdiction of the United States
punishable by death. See Act of Apr. 30, 1790, ch. 9, §§ 3, 8, 1 Stat.
112–14; see generally Printz v. United States, 521 U.S. at 905 (stating that
“early congressional enactments provid[e] contemporaneous and
weighty evidence of the Constitution’s meaning” (alteration in
original) (internal quotation marks omitted)).
Further, Aquart does not argue, and cannot show, that capital
punishment is being revived in his case after having fallen
“completely out of usage” for murder, so as to be constitutionally
“unusual” under the third prong of Stinneford’s originalist analysis.
See Stinneford, Original Meaning, at 1746. Indeed, such a completely‐
out‐of‐use standard appears to be more demanding for declaring a
punishment unconstitutional than the Supreme Court’s evolving‐
standards‐of‐decency test. See, e.g., Roper v. Simmons, 543 U.S. at 564–
66 (holding death penalty for juveniles cruel and unusual punishment
when number of authorizing states declined from 25 to 20). Despite
evidence of declining use of capital punishment, the Supreme Court
has not declared the punishment categorically unconstitutional for
intentional murder under that standard. See supra, Discussion Section
II.D.1. We can hardly do so on a more demanding theory.

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What Aquart does argue in support of this part of his originalist
challenge is that Congress lacks a sufficient federal interest in the
murders carried out in violation of the VICAR and CCE statutes to
add capital punishment to these crimes. That argument, however, is
not grounded in an originalist construction of the Cruel and Unusual
Punishments Clause. Rather, it is a variation on Aquart’s argument
that criminalizing VICAR and CCE murders exceeds Congress’s
Commerce Clause authority under the Necessary and Proper Clause.
We have already rejected that argument as meritless, see supra,
Discussion Section II.D.4., and we are no more persuaded by it when
recast as an “originalist” challenge under the Eighth Amendment.
b. Federalism and the Federal Death Penalty in
Connecticut
The second part of Aquart’s originalist challenge invokes
federalism to argue that whether a federal punishment is
constitutionally “unusual” must be determined by reference to the
punishments permitted in the state of prosecution.
This argument also derives not from any controlling Eighth
Amendment precedent but from a law review article positing that the
federalism expectations of anti‐Federalist critics of the Constitution,
together with their success in securing a Bill of Rights, support a state‐
specific construction of the Cruel and Unusual Punishments Clause
to make unconstitutional any federal criminal sentence that
“punishes more harshly than the State where the conduct occurred.”
Michael J. Zydney Mannheimer, Cruel and Unusual Federal

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Punishments, 98 IOWA L. R EV. 69, 122 (2012) [hereinafter
“Mannheimer, Cruel and Unusual”]. Such a construction of the Eighth
Amendment has the potential for considerable mischief, insofar as
states that unsuccessfully opposed nationwide federal criminal
legislation in certain areas—e.g., firearms, civil rights, or
environmental practices—might attempt to render those laws
virtually ineffective within their borders by enacting parallel local
laws allowing only negligible punishments. But even without this
concern, Aquart’s second “originalist” argument does not persuade.
First, to the extent the argument rests on purported anti‐
Federalist expectations, the foundation is hardly a solid one. As
historians of the period have observed, “there were abundant
differences of opinion and many ‘original understandings’ about the
nature of federalism among the founders of the Republic.” KATHRYN
PREYER , Jurisdiction to Punish: Federal Authority, Federalism, and the
Common Law of Crimes in the Early Republic, in B LACKSTONE IN
A MERICA: S ELECTED ESSAYS OF K ATHERINE PREYER 185, 186 (Mary
Sarah Bilder et al. eds., 2009). Such differences appeared even within
the ranks of the anti‐Federalists. See PAULINE MAIER, R ATIFICATION:
THE PEOPLE D EBATE THE CONSTITUTION, 1787–1788 297 (2010)
[hereinafter “MAIER, R ATIFICATION”] (quoting Madison’s observation
during Virginia ratifying convention of “a great contrariety of
opinions among the Gentlemen in the opposition” to Constitution
(citing 10 THE DOCUMENTARY H ISTORY OF THE R ATIFICATION OF THE
C ONSTITUTION 1500–03, 1507 (John P. Kaminski et al. eds., 1993))).
Thus, even if one can conclude that anti‐Federalists generally viewed

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the states as “‘sure guardians of the people’s liberty’” against federal
infringement of their rights, MAIER, R ATIFICATION, at 463 (quoting
James Madison, Speech to Congress (June 8, 1789), reprinted in 11 THE
PAPERS OF JAMES MADISON 207 (Robert A. Rutland et al., eds., 1979)),
that does not support an “originalist” construction of the Bill of Rights
to apply differently from state to state.45
The noted concerns with reading such federalism expectations
into the Bill of Rights generally counsel particular caution when
applied to the Eighth Amendment because of the paucity of relevant
framing era statements. See Mannheimer, Cruel and Unusual, at 101
(acknowledging existence of “only a handful” of statements). Aquart
quotes two statements (reproduced in the margin) to support his
urged “originalist” construction, one from George Mason, the other
from Patrick Henry.46 These were not, of course, the only statements
45 On such a view, any number of constitutional standards identified in the Bill of Rights—
such as the “reasonableness” of a search, the “probable cause” necessary for a warrant, the
circumstances constituting “double jeopardy,” and the procedures satisfying “due
process”—could all vary from state to state. U.S. CONST . amend. IV, amend. V.
46 In his Objections to the Constitution of Government Formed by the Convention (1787), Mason
stated:
Under their own Construction of the general Clause at the End of the
enumerated powers [the Necessary and Proper Clause] the Congress may
grant Monopolies in Trade and Commerce, constitute new Crimes, inflict
unusual and severe Punishments, and extend their Power as far as they shall
think proper, so that the State Legislatures have no Security for the Powers
now presumed to remain to them; or the People for their Rights.

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made by these men, or other anti‐Federalists, in the course of the
ratification debates and, thus, it cannot be assumed that they express
their only concerns with the proposed Constitution.47 Nevertheless,
to the extent these are the statements Aquart highlights as best
supporting his argument, they cannot bear the weight he assigns
them.
Mason’s particular focus in the quoted statement is the
Necessary and Proper Clause, which he feared would allow Congress
Mannheimer, Cruel and Unusual, at 101–02 (emphasis added by Mannheimer) (quoting
George Mason, Objections to the Constitution of Government Formed by the Convention (1787),
reprinted in 2 THE COMPLETE A NTI‐F EDERALIST 13 (Herbert J. Storing ed., 1981)).
In his June 16, 1788 speech in the Virginia ratifying convention, Henry stated:
Congress from their general powers may fully go into the business of
human legislation. They may legislate in criminal cases from treason to
the lowest offence, petty larceny. They may define crimes and prescribe
punishments. In the definition of crimes, I trust they will be directed by
what wise Representatives ought to be governed by. But when we come
to punishments, no latitude ought to be left, nor dependence put on the
virtues of Representatives. What says [the Virginia] Bill of Rights? “That
excessive bail ought not to be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” Are you not therefore now
calling on those Gentlemen who are to compose Congress, to prescribe
trials and define punishments without this controul?
Id. at 102–03 (alteration in Mannheimer) (quoting Patrick Henry, Speech in the Virginia
State Ratifying Convention (June 16, 1788), reprinted in 5 THE COMPLETE A NTI‐FEDERALIST
248 (Herbert J. Storing ed., 1981)).
47 See generally M AIER , R ATIFICATION , at 255–319 (discussing Virginia ratifying convention
debates generally). Henry, in particular, found fault with almost every part of the
proposed Constitution, including its preamble because it referred to “We, the People”
instead of “we the States.” Id. at 264, 266 (observing that “[i]t was no easy thing defining
what exactly Henry proposed” in his speeches at Virginia ratifying convention, because
“[n]o amendment . . . was likely to address his fundamental criticism of the Constitution:
that its authority came from the people instead of the states”).

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to extend and abuse federal power—for example, by identifying new
crimes and imposing unusual and severe punishments—to the
detriment of the states’ presumably retained power in that area. See
MAIER, R ATIFICATION, at 46 (noting Mason’s earlier expression of
similar concern at Constitutional Convention). Henry’s statement
faults the Constitution for extending criminal power to the federal
government unchecked by the sorts of prohibitions on excessive bail,
excessive fines, and cruel and unusual punishments found in
Virginia’s 1776 Bill of Rights (drafted by Mason). Neither statement,
however, suggests (much less, states) that these concerns should be
addressed by an amendment that not only prohibits cruel and
unusual federal punishments but also affords each state the power to
determine what federal punishments are impermissibly cruel and
unusual within its borders.
Nothing in Virginia’s forty proposed amendments to the
Constitution hints at the states’ exercise of such veto power over
federal legislation. The first twenty amendments urged the addition
of a bill of rights virtually identical to Virginia’s Bill of Rights; the
second twenty urged “Amendments to the Body of the Constitution.”
CREATING THE B ILL OF R IGHTS : THE DOCUMENTARY R ECORD FROM THE
F IRST F EDERAL C ONGRESS 17–21 (Helen E. Veit et al. eds., 1991)
[hereinafter “C REATING THE B ILL OF R IGHTS”].48 The thirteenth
48 This comports with the double use of the word “amendment” during the ratification
debates to reference both the addition of a bill of rights (first unsuccessfully urged at the
Constitutional Convention by George Mason and Elbridge Gerry), and “changes in the
structure and powers of the new federal government” demanded by anti‐Federalists
during the ratification debates. See CREATING THE BILL OF R IGHTS , at ix.

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amendment in the first part of Virginia’s proposal states simply
“[t]hat excessive Bail ought not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” Id. at 18.
Nowhere does it urge that this right, when added to the federal
Constitution, should be construed by reference to the maximum
punishments permitted within each state. Meanwhile, the first
amendment in the second part of Virginia’s proposal, which speaks
directly to federalism, states “[t]hat each State in the Union shall
respectively retain every power, jurisdiction and right which is not by
this Constitution delegated to the Congress of the United States or to
the departments of the Federal Government.” Id. at 19. Neither this
proposal, nor the Tenth Amendment to which it led, however,
suggests that among such powers is the authority of each state to
prevent the federal government from enforcing duly enacted federal
criminal laws within the state’s borders.
Such a construction cannot be inferred simply by coupling the
common law origins of the English Bill of Rights’ ban on cruel and
unusual punishments with the state‐specific adoption of the common
law in America. See Mannheimer, Cruel and Unusual, at 90, 95–96,
109–20. Even English authority recognized that common law must
yield to statute. See Stinneford, Original Meaning, at 1787, 1789
(quoting 1 WILLIAM B LACKSTONE , C OMMENTARIES *89). And federal
crimes and punishments can be established only by statute. See United
States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 32–34 (1812)
(rejecting federal common law of crimes and requiring codification of
federal criminal law). Thus, because Congress could enact criminal

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statutes that departed from common law, anti‐Federalists may well
have thought it necessary to amend the Constitution expressly to
deny Congress the power to enact cruel and unusual punishments.
See Harmelin v. Michigan, 501 U.S. at 975–76 (opinion of Scalia, J.,
joined by Rehnquist, C.J.). But neither the text of the amendment nor
its anti‐Federalist origin supports an “originalist” argument that the
Clause would then be construed differently in each of the states
depending on the maximum punishments prescribed by the state for
its own crimes.49
Second, and in any event, Aquart’s state‐focused “originalist”
construction of the Eighth Amendment is precluded by two already
referenced strands of Supreme Court precedent. See supra, Discussion
Sections II.D.1. & 4. The first, originating in Justice Story’s
pronouncement in Martin v. Hunter’s Lessee that “[t]he constitution of
the United States was designed for the common and equal benefit of
all the people of the United States,” 14 U.S. (1 Wheat.) at 348
(emphasis added), establishes that the Constitution must apply
equally throughout the states. There would be no “equal benefit” if
the Eighth Amendment were construed to allow a federal
punishment in one state that it bars in another. How would one
explain to two federal defendants each convicted of comparable
49 Nor is such a conclusion supported by the assertion that, although “the ultimate goal of
the Bill of Rights was to protect individual rights, . . . it did so by ensuring the States’ right
to self‐governance.” Mannheimer, Cruel and Unusual, at 100. To the extent the States’ right
to self‐governance is safeguarded by the Constitution, that was done in the Guarantee
Clause of the pre‐amendment Constitution, not in the Bill of Rights. See U.S. CONST . art.
IV, § 4 (“The United States shall guarantee to every State in this Union a Republican Form
of Government . . . .”).

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VICAR and CCE murders—one in Texas, the other in Connecticut—
that the same Constitution that allows the Texas defendant to be
executed prohibits subjecting the Connecticut defendant to that
punishment because Texas employs capital punishment while
Connecticut does not? There is no satisfactory answer consistent with
the controlling rule that the Constitution and laws apply equally
across the states. See United States v. Begay, 42 F.3d 486, 498–99 (9th
Cir. 1994) (explaining that “federal criminal statute of nationwide
applicability,” for which situs is not element, “applies equally to
everyone everywhere within the United States”); see also United States
v. Mitchell, 502 F.3d at 946–48, 978 (applying principle to reject
challenge to FDPA’s application to Indian tribes).50
The second line of Supreme Court precedent defeating
Aquart’s state‐specific “originalist” argument is that referenced at the
start of Discussion Section II.D., supra. It eschews original meaning in
favor of evolving standards of decency in construing the Eighth
Amendment’s Cruel and Unusual Punishments Clause. See Atkins v.
Virginia, 536 U.S. at 311–12; accord Moore v. Texas, 137 S. Ct. at 1048;
Roper v. Simmons, 543 U.S. at 560–61. That standard factors state views
into the identification of cruel and unusual federal punishments, but
not so the maximum penalty set by each state for particular conduct
50 This is a recurring problem with attempts to enlist federalism to mount state‐specific
challenges to capital punishment. See generally United States v. Fell, 571 F.3d at 271 (Raggi,
J., concurring in denial of rehearing en banc) (raising same question in rejecting argument
that federalism interests underlying Vicinage Clause, see U.S. CONST . amend. VI, require
different approaches to qualifying federal capital juries depending on whether state of
prosecution authorizes or prohibits death sentence).

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becomes the maximum allowable federal punishment in that state for
comparable conduct, as Aquart urges. Rather, Supreme Court
precedent holds that the maximum sentences prescribed by various
states are properly considered in the aggregate because it is in that form
that they can serve as a proxy for a “national consensus” as to when
an employed federal punishment has come to be recognized as cruel
and unusual. See Kennedy v. Louisiana, 554 U.S. at 422–23, 426; see also
United States v. Fell, 571 F.3d at 274 (Raggi, J., concurring in denial of
rehearing en banc) (collecting cases applying this approach to identify
cruel and unusual state punishments). We are not ourselves free to
substitute a state‐specific standard for this consensus one and to
conclude therefrom that the FDPA death sentences constitute cruel
and unusual punishment in Connecticut.
In sum, history does not support, and precedent precludes,
Aquart’s urged originalist construction of the Eighth Amendment to
bar his capital sentences because they were imposed by a federal court
sitting in Connecticut.
CONCLUSION
To summarize, we conclude as follows:
1. Aquart’s challenges to the jury’s guilty verdict fail on the
merits.
a. The trial evidence is sufficient to permit a reasonable
jury to find both the interstate commerce and the

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motive elements of the VICAR counts proved beyond
a reasonable doubt.
b. Aquart’s post‐verdict claim of perjury fails because he
has not made the threshold showing of knowing
falsehood by either John Taylor or Lashika Johnson,
which showing is necessary to seek relief from
conviction, or even a hearing.
c. The record does not support Aquart’s claim of
prosecutorial misconduct in rebuttal summation, let
alone misconduct denying him a fair trial.
2. Insofar as Aquart challenges prosecution misconduct at
the penalty proceeding of trial, we identify error in both
its attempts (a) on cross‐examination, to elicit its own
disbelief of hearsay declarant Efrain Johnson, and (b) on
summation, to denigrate the defense for pursuing
inconsistent theories at the guilt and penalty phases of
trial. While the former error, by itself, would not warrant
vacatur of sentence and remand for a new penalty
proceeding, such relief is warranted when the former
error is considered together and in context with the
serious summation error. Other claims of prosecutorial
misconduct fail on the merits.
3. The record evidence was sufficient to allow a reasonable
jury to find proved beyond a reasonable doubt both the
substantial‐planning‐and‐premeditation and the

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multiple‐killings aggravators that it relied on in reaching
its penalty decision.
4. Aquart’s constitutional challenges to the death penalty
fail.
a. In the face of controlling Supreme Court and our own
precedent refusing to declare the death penalty per se
unconstitutional for intentional murder under the
Eighth Amendment, this panel cannot do so.
b. Proportionality review is not constitutionally
required for death sentences voted under the
carefully drafted FDPA but, even if it were, Aquart’s
sentence was not so disproportionate as to be
unconstitutional.
c. The infrequency of death sentences in federal capital
cases does not manifest arbitrariness because (a) the
FDPA properly channels jury discretion, and (b) such
infrequency is informed by a capital jury’s limitless
authority not to vote for death (but to show mercy),
which does not raise constitutional concerns.
d. The FDPA’s authorization of capital punishment for
VICAR and CCE murders does not exceed Congress’s
authority under the Necessary and Proper Clause to
define crimes affecting interstate commerce and to
prescribe punishments, and no different conclusion is

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warranted because Connecticut, the state where
Aquart was federally prosecuted, no longer permits
capital punishment for state crimes.
e. Even if the Supreme Court’s evolving‐standards‐of‐
decency test for cruel and unusual punishments
allowed this court to apply an “originalist”
construction to the Eighth Amendment prohibition of
such punishments, the “originalist” evidence Aquart
cites does not support his urged state‐specific
application of constitutional rights to prohibit FDPA
capital sentences in Connecticut while allowing such
federal sentences in other states.
For the reasons stated, the judgment of conviction is
AFFIRMED as to defendant’s guilt; his capital sentence is VACATED
and the case is REMANDED for a new penalty proceeding consistent
with this opinion.

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1
C ALABRESI, Circuit Judge, concurring in part and concurring in the result:
I concur and join fully in all of Parts I and II of the Background and Parts I
and II, Sections A‐C of the Discussion of this extraordinarily well‐crafted opinion,
with only a couple of caveats, which I will note below. As to Part II, Section D of
the Discussion, “Constitutionality Challenges to Death Penalty,” I concur and join
substantially, all of § 1 and 2a. With respect to the remainder of Part II, D: §§ 2b,
3, 4 and 5, I concur in the result, namely, that nothing in the constitutional
arguments that are before us precludes a new penalty proceeding.
Let me explain:
1. At the beginning of Part II of the Discussion, page 51, the opinion reads: “We
reject Aquart’s sufficiency and constitutionality challenges.” As I will discuss
shortly, I reject only some of Aquart’s constitutionality challenges; others I do not
reach and express no views about.
2. At several points in its careful discussion of vouching, the opinion states
that “the vouching error . . . —by itself— . . . did not deny Aquart a fair sentencing
hearing.” E.g., supra at 66. The Majority goes on to hold that this error, when
viewed together with the “denigration” error, requires vacatur. Id. at 57. I agree
completely with that conclusion. I am not, however, prepared to say how I would

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2
rule if the counter‐factual were the case, that is, if the vouching error stood alone.
Statements about counterfactuals are just that, and as a result can never be actual
holdings, though they may be (as this is) informative and important.
This is especially true in a situation involving vouching. The effect of
vouching is—as the opinion repeatedly notes—always contextual. See, e.g., supra
at 62‐63. The precise context that this counter‐factual speaks to can never repeat
itself, and even if, per impossibile, it did, how can we be sure of what we would do
when the consequences between life and death would be so different? The
Majority has every right to express strongly its view of the limited nature of the
error. I, however, must express my view of the limited effect of that expressed
opinion. I do so, especially, lest a prosecutor or a district judge be misled by the
Majority’s perfectly proper expression into repeating the error in this or a later
case. The vouching error—by itself—might very likely not suffice to constitute
prosecutorial misconduct resulting in prejudicial error, but more than that I dare
not say.
3. The discussion of the constitutionality of the death penalty, both per se and
as applied to Aquart, presents for me a different problem. There are arguments
that Aquart has made below and repeats to us that we are required to deal with,

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3
for if they were valid we would reverse the existing death sentence rather than
vacating and remanding for a new sentencing hearing. See supra at 94. As far as I
can tell, these arguments are all dealt with in the Discussion, Part II.D.1 and Part
II.D.2.a. Whatever their merits might perhaps seem to be to me (or perhaps even
to a future Supreme Court), they are currently directly contrary to Supreme Court
holdings. And, as the Majority opinion elegantly points out, we are now required
to follow such holdings even were we to think the High Court would alter them.
See supra at 95 (citing Agostini v. Felton, 521 U.S. 203, 238 (1997) and Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). Accordingly, while I
don’t necessarily join in every word of the Majority’s discussion in these Sections,
I join this part of the opinion substantially and in whole.
For different reasons, I don’t find part or the whole of some of the other
arguments Aquart makes to require answers from us at this time. Under the
circumstances, and believing that one should usually avoid constitutional
decisions unless required to make them, I decline to speak to them. My reasons
are particular to the distinct arguments Aquart makes, and so I treat each one
separately:

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4
§2.b. Whether Aquart’s Death Sentence is Constitutionally Disproportionate.
Because, as the Majority correctly explains, existing Supreme Court Law does not
mandate proportionality review, the question of whether, if it did, Aquart would
pass that test is entirely hypothetical. (I’m too much an academic to call it
academic.) It need not be reached, and I decline to do so.
§3. Arbitrariness. As the Majority demonstrates, the notion that an
individual death sentence imposed in a system that meets the requirements
established in Furman v. Georgia, 408 U.S. 238 (1972), and Gregg v. Georgia, 428 U.S.
153 (1976), can be challenged on arbitrariness grounds is not supported by
currently controlling Supreme Court precedent. See generally Glossip v. Gross, —
U.S. —, 135 S.Ct. 2726 (2015); Kansas v. Marsh, 548 U.S. 163 (2006); McCleskey v.
Kemp, 481 U.S. 279 (1987); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428
U.S. 262 (1976). But see Glossip, 135 S.Ct. at 2755‐56 (Breyer, J., dissenting)
(suggesting that new developments may have undermined the Court’s prior
decisions holding that the death penalty survives constitutional arbitrariness
challenges). This the Majority demonstrates fully and as far as I’m concerned that
is all that needs to be said on the matter.

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5
The Majority’s discussion of arbitrariness, however, seems to take on what
might be “new” arguments based on the effects of arbitrariness. I’m not sure I
fully see those arguments in Aquart’s briefs to us. They were certainly not made
to the District Court in this precise form, and as such I don’t believe I need to
discuss—let alone decide—them, and decline to do so.
§4. The Necessary and Proper Challenge. This Aquart argument, both in its
general and in its Connecticut‐based form, was clearly not made below. Aquart
gives reasons for this, some better than others, and our Court can, of course, choose
to deal with arguments that might otherwise be forfeited. The Majority chooses to
do so. I think it better not to discuss these arguments now when Aquart still has
an opportunity to present them fully to the District Court. Where a death sentence
is vacated, as here, and constitutional arguments that aren’t manifest winners are
presented for the first time on appeal, it seems to me to be by far the better course
to let the arguments be made below, where such arguments are best fleshed out.
This allows us to avoid making constitutional judgments that may not need to be
made at all. Cf. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 103 (1944)
(“If there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions of

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6
constitutionality . . . unless such adjudication is unavoidable.”) As it stands, the
Majority rules on a less‐than‐complete prior discussion, as is inevitable where the
arguments are raised for the first time to us.
For these reasons, I express no view on Aquart’s various Necessary and
Proper arguments, but, deeming them forfeited, find that they present no obstacle
to our disposition—i.e., vacating and remanding, rather than reversing, the death
sentence.
§ 5. “Originalist” Challenge. What I just said about the Necessary and Proper
arguments is even more true of these arguments. Aquart did not make them below
or on his initial appeal. As is our right, we asked for additional briefing. I cannot
say that, given the complexity of the issues, I found the supplemental briefs all that
helpful on topics that academics are just beginning to explore. If life or death now
depended on these arguments, I expect we would do the best we could with them.
But, given our vacatur, there is plenty of time for their development below, should
Aquart deem that appropriate. We need not, therefore, address these contentions
now, and I will not do so.
I also note that these arguments, because they are not fully made out,
cannot, in my judgment, be completely treated by the Majority. The opinion is an

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7
interesting first take on claims not perfectly elaborated. But I am far from sure that
we can treat this challenge as ultimately settled.
Let me be clear: I cannot, and do not, have any objection to the Majority
discussing each and every constitutional argument Aquart may be read as making,
whether raised below or not. Our Court is free to do so. Having doubts about the
desirability of treating these arguments now, and having no doubt that I am not
required to do so, I decline to express a view on the constitutional arguments that
I have just listed. And, on my own ground that they need not be heard now, I fully
join the Court’s conclusion that Aquart’s death sentence should be vacated and the
case remanded for further proceedings consistent with our Court’s opinion.

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