United States v. Aquart

21-2763
United States v. Aquart
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2022
No. 21-2763-cr
UNITED S TATES OF AMERICA,
Appellee,
v.
AZIBO AQUART , AKA D., AKA D REDDY , AKA J UMBO, AKA AZIBO SMITH,
AKA AZIBO SIWATU JAHI S MITH,
Defendant-Appellant,
A ZIKIWE AQUART , AKA ZEE , N ATHANIEL GRANT , AKA
C ORRECTIONAL O FFICER STONE , E FRAIN J OHNSON,
Defendants.
__________
On Appeal from the United States District Court
for the District of Connecticut
__________
ARGUED: MAY 9, 2023
D ECIDED: J ANUARY 29, 2024
________________
Before: L IVINGSTON, Chief Judge, RAGGI , and C ARNEY , Circuit Judges.
________________
In 2012, appellant Azibo Aquart was found guilty after trial in the United
States District Court for the District of Connecticut (Arterton, J.) of multiple federal

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homicide and drug trafficking crimes and sentenced to death. On Aquart’s initial
direct appeal, this court affirmed his conviction insofar as it adjudicated guilt, but
vacated his death sentence and remanded the case for a new penalty proceeding.
See United States v. Aquart, 912 F.3d 1, 10 (2d Cir. 2018). When, on remand, the
government decided not to pursue the death penalty, the district court resentenced
Aquart to a total sentence of life imprisonment, a term statutorily mandated for
certain of his crimes of conviction. On this appeal, Aquart argues that the district
court erred in (1) relying on the mandate rule in declining to address new
challenges on remand to the guilt component of his conviction, and (2) sentencing
him for both drug-related murder and drug conspiracy in violation of double
jeopardy. The appeal fails because the district court correctly applied the mandate
rule, and Aquart’s double jeopardy argument is without merit.
A FFIRMED.
_________________
D ANIEL H ABIB , Federal Defenders of New York, Inc.,
New York, NY (Monica Foster, Executive Director,
Indiana Federal Community Defenders, Indianapolis,
IN; David A. Moraghan, Smith Keefe Moraghan &
Waterfall, LLC, Torrington, CT, on the brief), for
Defendant-Appellant.
ELENA L ALLI C ORONADO, Assistant United States
Attorney (Sandra S. Glover, Tara E. Levens, Assistant
United States Attorneys, on the brief), for Vanessa Roberts
Avery, United States Attorney for the District of
Connecticut, New Haven, CT, for Appellee.
_________________

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REENA RAGGI , Circuit Judge:
Defendant Azibo Aquart is no stranger to this court. For almost six years,
between 2012 and 2018, he pursued an appeal from a judgment of conviction
entered in the United States District Court for the District of Connecticut (Janet
Bond Arterton, Judge) for various federal crimes relating to the brutal drug-related
murder of three persons: Tina Johnson, Basil Williams, and James Reid. See United
States v. Aquart (“Aquart I”), 912 F.3d 1 (2d Cir. 2018). Specifically, after a five-week
jury trial, Aquart was convicted of one conspiracy and three substantive counts of
violent crime in aid of racketeering (“VICAR murder”), see 18 U.S.C. § 1959(a)(1),
(a)(5); three substantive counts of murder in connection with a conspiracy to traffic
crack cocaine in an amount proscribed by 21 U.S.C. § 841(b)(1)(A) (“drug-related
murder”), see id. § 848(e)(1)(A); and one count of conspiracy to traffic 50 grams or
more of crack cocaine, see id. §§ 841(a)(1), (b)(1)(A)(iii), 846. The same jury that
found Aquart guilty of these crimes decided that for the Johnson and Williams
murders, which Aquart personally executed, he should be sentenced to death.
In challenging both this capital sentence and the jury’s adjudication of guilt
on initial direct appeal, Aquart’s able and determined counsel filed six briefs
presenting some 360 pages of arguments. This court addressed these arguments
in a lengthy opinion, affirming the guilt component of Aquart’s judgment of
conviction in all respects and rejecting the majority of his sentencing challenges.
See Aquart I, 912 F.3d at 9–70. Nevertheless, because it identified two errors at the
capital penalty proceeding that, when considered in conjunction, could not
confidently be deemed harmless, the court vacated the sentence component of
Aquart’s judgment and remanded “for a new penalty proceeding.” See id. at 70.
On remand, the prosecution decided to forego the death penalty. As a
result, Aquart was subject to a statutorily mandated alternative sentence of life

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imprisonment on each of the three VICAR murder counts, see 18 U.S.C.
§ 1959(a)(1); and a sentence of not less than 20 years and as much as life
imprisonment on each of the three drug-related murder counts, see 21 U.S.C.
§ 848(e)(1)(A). Before any sentences could be imposed, however, Aquart, now
represented by different counsel, filed a series of motions raising new challenges
to the guilt component of his judgment of conviction and arguing that, in any
event, double jeopardy prohibited the district court from sentencing him for both
drug conspiracy and drug-related murders.
The district court denied these motions and, on November 1, 2021, entered
an amended judgment sentencing Aquart to three mandatory terms of life
imprisonment for the substantive VICAR murders, four 40-year prison terms for
the three drug-related murders and the single drug conspiracy count, and one 10-
year prison term for the VICAR conspiracy, all sentences to run concurrently.
Aquart now appeals this judgment, arguing that the district court erred in
(1) relying on the mandate rule in declining to address his new challenges to the
guilt component of the judgment, and (2) sentencing him for both drug-related
murder and drug conspiracy crimes in violation of double jeopardy. The appeal
fails because, as we explain in this opinion, the district court correctly applied the
mandate rule, and Aquart’s double jeopardy arguments are without merit.
Accordingly, we affirm Aquart’s November 1, 2021 judgment of conviction
in all respects.
BACKGROUND
The horrific details of Aquart’s homicide crimes, the compelling trial
evidence of his guilt, and the particulars of various proceedings leading to his
initial conviction and appeal are detailed in this court’s Aquart I opinion. See 912

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F.3d 1. We assume reader familiarity with that opinion and, therefore, do not
repeat those facts or the procedural history except as relevant to issues on this
appeal.
I. Remand
A. Aquart’s Motions on Remand
After the prosecution withdrew its notice of intent to pursue the death
penalty on remand, the district court observed that the statutorily mandated
alternative sentence for Aquart’s VICAR murders was life imprisonment and,
accordingly, set the matter down for what it anticipated would be “a somewhat
pro forma [sentencing] proceeding.” Status Conf. Tr. at 4:20–21, United States v.
Aquart, No. 3:06-cr-160 (JBA) (D. Conn. Jan. 13, 2021), ECF No. 1299. That
prediction proved wrong because, before resentencing, Aquart filed a trio of
motions that, collectively, sought the dismissal of all counts of conviction.
In one motion, filed June 2, 2021, he urged dismissal of all VICAR counts,
arguing, inter alia, that none of the Connecticut murder statutes referenced in the
Fourth Superseding Indictment constituted a valid predicate for VICAR murder.
In a second motion, filed the same date, Aquart attacked (1) his drug conspiracy
and drug-related murder counts of conviction based on defects in the indictment,
and (2) the imposition of any sentence on the drug conspiracy count as violative
of double jeopardy. In a third motion—initially mailed by Aquart pro se on May
19, 2021, but adopted by counsel on June 11, 2021—Aquart sought dismissal of all
counts based on alleged speedy trial violations.
In an omnibus response to these motions, the government argued that
Aquart’s challenges to the affirmed guilt component of his judgment of conviction
were barred by the mandate rule. Insofar as Aquart raised sentencing challenges,
however, the government urged the court to address and reject his double

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jeopardy challenge on the merits, but to resentence Aquart on the drug conspiracy
count in light of the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124
Stat. 2372 (2010).
B. Denial of Motions and Resentencing
Relying on the mandate rule, the district court, on October 18, 2021, denied
Aquart’s motions to dismiss. See United States v. Aquart, 2021 WL 4859863, at *1
(D. Conn. Oct. 18, 2021). Observing that this court, in Aquart I, had “plainly
affirmed” Aquart’s judgment of conviction as it pertained to guilt, the district
court concluded that, on remand, Aquart could not “relitigate the merits of his
convictions, whether or not the specific issues he raises now were addressed by
the Second Circuit” on his initial appeal. Id. at *3. The district court did consider
Aquart’s double jeopardy challenge but rejected it as without merit. Id. at *4, *6–
7. Further, the district court agreed to resentence Aquart on the drug conspiracy
count in light of the FSA and imposed a concurrent 40-year prison sentence rather
than the original consecutive life sentence. Id. at *4–5, *7.1
Thus, as earlier noted, on remand, the district court sentenced Aquart to life
sentences on each of the three substantive VICAR murder counts, 40-year prison
sentences on the three drug-related murder counts and the single drug conspiracy
1 Before the FSA’s enactment, a defendant convicted of possessing with intent to
distribute at least 50 grams of crack cocaine was subject to a mandatory minimum
sentence of ten years and a possible maximum sentence of life. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (2006). Following the FSA, such a defendant faced a lesser mandatory
minimum sentence of 5 years and a maximum sentence of 40 years. See 21 U.S.C.
§ 841(b)(1)(B)(iii). In 2012, the Supreme Court held that this more lenient provision
applies to offenders whose crack offenses predate the FSA’s enactment but who are
sentenced after enactment. See Dorsey v. United States, 567 U.S. 260, 264 (2012); United
States v. Highsmith, 688 F.3d 74, 75 (2d Cir. 2012). Because neither party challenges the
district court’s application of the FSA to Aquart on remand, we do not consider it further.

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count, and a ten-year sentence on the VICAR conspiracy count, all terms to run
concurrently.
Aquart timely filed notice of this appeal.
DISCUSSION
I. The Mandate Rule and Law-of-the-Case Doctrine Preclude
Reconsideration of Guilt on Aquart’s Affirmed Counts of Conviction
In 2018, this court rejected Aquart’s numerous challenges to his guilt
adjudication on all counts of conviction and most of his challenges to his capital
sentence. See Aquart I, 912 F.3d at 17–70. Nevertheless, because of the
identification of two errors in the capital sentencing proceeding that, when
considered in conjunction, could not confidently be deemed harmless, the court
vacated the sentence component of judgment and ordered a limited remand. The
limited nature of the vacatur and remand is reflected in the court’s decretal
language: “For the reasons stated [in this opinion], 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.” Id. at
70.
In this context—i.e., “a remand for resentencing where an appellate court
has already fully considered the merits of the conviction”—a trial court, on
remand, “generally is foreclosed from reconsidering the underlying merits of the
conviction.” United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). This foreclosure
is dictated by the mandate rule, a branch of the law-of-the-case doctrine, see United
States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002), that “rigidly binds the district
court,” barring it from considering issues “explicitly or implicitly decided on
appeal,” Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006) (internal quotation
marks omitted). The rule is subject to only “narrow exception” for “compelling

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circumstances, consisting principally of (1) an intervening change in controlling
law, (2) new evidence, or (3) the need to correct a clear error of law or to prevent
manifest injustice.” United States v. Valente, 915 F.3d 916, 924 (2d Cir. 2019)
(internal quotation marks omitted). Such circumstances rarely arise in the context
of a limited remand. See United States v. Malki, 718 F.3d 178, 183 (2d Cir. 2013)
(stating it will be “rare occasion[]” when party “may re-litigate issues foreclosed
by a limited mandate”).
Aquart nevertheless argues that the district court erred in relying on the
mandate rule in declining to consider his new challenges to the affirmed guilt
component of his judgment. Alternatively, he urges this court to depart from the
law-of-the-case doctrine and itself to consider his new challenges. While the law-
of-the-case doctrine does not bind this court with the same “rigidity” that the
mandate rule binds the district court, United States v. Tenzer, 213 F.3d 34, 40 (2d
Cir. 2000), we have consistently recognized it to reflect a “sound policy,” id. at 39,
that we should depart from “sparingly and only when presented with cogent and
compelling reasons,” Puricelli v. Argentina, 797 F.3d 213, 218–19 (2d Cir. 2015); see
United States v. Tenzer, 213 F.3d at 39 (stating that “major grounds justifying
reconsideration are [1] an intervening change of controlling law, [2] the availability
of new evidence, or [3] the need to correct a clear error or prevent manifest
injustice” (internal quotation marks omitted)). For reasons we now explain, we
identify neither error by the district court in relying on the mandate rule nor
compelling circumstances warranting an exception from the law-of-the-case
doctrine.
A. New Challenges
Aquart submits that the mandate rule did not preclude the district court
from considering his new challenges to the guilt component of his judgment of
conviction because those challenges were not at issue on his direct appeal and,

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thus, this court could not have decided them, even implicitly. The argument is
defeated by precedent, which holds that the mandate rule applies not only to
issues explicitly or implicitly decided on appeal but also to issues that were “ripe
for review at the time of an initial appeal but . . . nonetheless foregone” by a party.
United States v. Quintieri, 306 F.3d at 1229 (internal quotation marks omitted); see
United States v. Malki, 718 F.3d at 182 (“When our remand is limited, the mandate
rule generally forecloses re-litigation of issues previously waived by the parties.”).
As this court has observed, a contrary construction of the mandate rule would
effectively eviscerate it by creating an incentive for parties to hold ripe arguments
in reserve. See United States v. Quintieri, 306 F.3d at 1229; accord United States v. Ben
Zvi, 242 F.3d at 96. Aquart does not contend that his remand challenges to guilt
were not ripe for review on initial appeal. Thus, the district court correctly
concluded that their review on remand was barred by the mandate rule.
Cases cited by Aquart warrant no different conclusion. In United States v.
Cirami, this court reversed the denial of a second motion to vacate judgment
pursuant to Fed. R. Civ. P. 60(b)(6) based on the mandate rule because the
successive claim was supported by “newly discovered evidence.” 563 F.2d 26, 30,
35 (2d Cir. 1977) (internal quotation marks omitted). While newly discovered
evidence can also support an exception to the mandate rule in criminal cases, see,
e.g., United States v. Valente, 915 F.3d at 924, it does not do so here because Aquart
did not produce any new evidence to support his guilt adjudication challenges on
remand.
Nor does United States v. Lasaga, 136 F. App’x 428 (2d Cir. 2005), assist
Aquart. There, we upheld a district court’s application on remand of upward
departures to Sentencing Guidelines that it had found “fully warranted” but
unnecessary in imposing the original vacated sentence. Id. at 432. But in that case,
the initial appeal leading to vacatur effectively “nullified” the district court’s

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rationale for not applying the warranted upward departures initially. Id. Nothing
in Aquart I nullified the jury’s adjudication of guilt on each count of conviction. To
the contrary, this court expressly affirmed Aquart’s judgment of conviction as to
defendant’s guilt. See 912 F.3d at 70. Lasaga is further distinguishable because the
arguments there at issue pertained only to resentencing. See 136 F. App’x at 430.
By contrast, Aquart sought to use resentencing to relitigate the underlying,
affirmed, adjudication of his guilt. This attempt is supported by no exception to
the mandate rule.
Finally, United States v. Hernandez, 604 F.3d 48 (2d Cir. 2010), is inapposite.
In there remanding for resentencing, we held that the district court, on remand,
had misconstrued our mandate in declining to conduct a de novo resentencing. See
id. at 54 (noting that in 15-year interval between remand and resentencing, “law of
sentencing [had] substantially evolved, and [defendant] may have undergone a
remarkable rehabilitation”). Hernandez did not consider, much less conclude, that
on a remand for resentencing—even de novo resentencing—a district court is
obliged to consider new challenges to the defendant’s adjudication of guilt.
Accordingly, the district court correctly concluded that the mandate rule did
not permit it, on a remand limited to resentencing, to consider new challenges to
the affirmed guilt component of judgment that Aquart failed to raise on direct
appeal. Nor do we identify any compelling reason for this court to depart from
the law-of-the-case doctrine to hear such challenges on this appeal.
B. Jurisdictional Challenges
Aquart argues that his indictment challenges to the VICAR and drug-related
murder counts of conviction are not barred by the mandate rule or the law-of-the-
case doctrine because they are jurisdictional. See Fed. R. Crim. P. 12(b)(2) (“A
motion that the court lacks jurisdiction may be made at any time while the case is

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pending.”). His argument fails because his challenges do not implicate
jurisdiction.
Congress has expressly conferred on “[t]he district courts of the United
States . . . original jurisdiction . . . of all offenses against the laws of the United
States.” 18 U.S.C. § 3231. Thus, so long as an “indictment alleges an offense under
U.S. criminal statutes, the courts of the United States have jurisdiction to
adjudicate the claim.” United States v. Prado, 933 F.3d 121, 134 (2d Cir. 2019). The
standard for stating an offense is “not demanding.” United States v. Balde, 943 F.3d
73, 89 (2d Cir. 2019). “[T]o sufficiently charge a crime, an indictment must do little
more than track the language of the statute charged and state the time and place
(in approximate terms) of the alleged crime.” Id. (internal quotation marks and
ellipsis omitted); accord United States v. Frias, 521 F.3d 229, 235–36 (2d Cir. 2008);
United States v. Pirro, 212 F.3d 86, 92–93 (2d Cir. 2000). Further, when, as here, a
defendant makes a post-verdict jurisdiction challenge to the sufficiency of an
indictment, we “interpret the indictment liberally in favor of sufficiency, absent
any prejudice to the defendant.” United States v. Goodwin, 141 F.3d 394, 401 (2d
Cir. 1997) (internal quotation marks omitted).
Applying these principles here, we conclude that Aquart states no
cognizable jurisdiction challenge to the VICAR or drug-related murder counts of
conviction that would fall outside the mandate rule or law-of-the-case doctrine.
1. VICAR Counts
Aquart does not—and cannot—argue that the VICAR counts of his
indictment fail to track the relevant statutory language or to state the time and
place of the charged murders, which is all that precedent requires for the exercise

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of federal jurisdiction.2 Instead, he argues that the Connecticut statutes underlying
his VICAR convictions cannot, as a matter of law, constitute murder predicates
under VICAR because (1) VICAR’s use of the term “murders” references only
generic murder; (2) the state law violated by an alleged killing must be a categorical
match to generic murder to qualify as a VICAR predicate; and (3) the Connecticut
murder statutes reach more broadly than generic murder and, thus, “cannot serve
as valid bases for federal jurisdiction.” Appellant Br. at 9–10; see id. at 14–30.
2 The VICAR statute states in pertinent part as follows:
Whoever, as consideration for the receipt of, or as consideration for a promise
or agreement to pay, anything of pecuniary value from an enterprise engaged
in racketeering activity, or for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in racketeering
activity, murders, kidnaps, maims, assaults, with a dangerous weapon,
commits assault resulting in serious bodily injury upon, or threatens to
commit a crime of violence against any individual in violation of the laws of any
State or the United States, or attempts or conspires so to do, shall be punished
[as prescribed herein].
18 U.S.C. § 1959(a) (emphasis added).
The VICAR counts of the Fourth Superseding Indictment each allege as follows:
On or about August 24, 2005, in the District of Connecticut, AZIBO AQUART
[and various confederates], as consideration for the receipt of, and as
consideration for a promise and an agreement to pay, anything of pecuniary
value from the enterprise [alleged in ¶¶ 1–5 of the indictment], and for the
purpose of gaining entrance to and maintaining and increasing their position
in the enterprise, an enterprise engaged in racketeering activity, did murder
[Tina Johnson (Count Two), James Reid (Count Three), and Basil Williams
(Count Four)] unlawfully, willfully, knowingly, and in the perpetration of,
and attempt to perpetrate, a robbery, in violation of Connecticut General
Statutes, Sections 53a-54a, 53a-54c, and 53a-8a.
Special App’x 43–46.

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Whatever the merits of this line of reasoning—a matter we do not pursue—
it states no challenge to federal jurisdiction. In United States v. Cotton, the Supreme
Court expressly held that “defects in an indictment do not deprive a court of its
power to adjudicate a case.” 535 U.S. 625, 630 (2002). In United States v. Rubin, this
court interpreted Cotton to mean that “challenges to indictments on the basis that
the alleged conduct does not constitute an offense under the charged statute are
. . . non-jurisdictional challenges.” 743 F.3d 31, 37 (2d Cir. 2014) (emphasis added).3
Aquart urges a narrower reading of Cotton, citing United States v. Peter, in
which the Eleventh Circuit interpreted Cotton to pertain only to an “omission from
the indictment,” and not to call into question that court’s precedent holding that
“a district court lacks jurisdiction when an indictment alleges only a non-offense.”
310 F.3d 709, 714–15 (11th Cir. 2002). This court, however, has expressly refused
to “read Cotton so narrowly,” observing that the Supreme Court there “did not
speak merely of omissions; rather, it invoked the broader concept of ‘indictment
defects.’” United States v. Rubin, 743 F.3d at 37 (quoting United States v. Cotton, 535
U.S. at 630). Thus, Rubin held that whether alleged conduct constitutes the
charged offense is a non-jurisdictional question. See id. at 37–39; see also United
3 Consistent with this view, following Cotton, the Federal Rules of Criminal Procedure
were amended such that the rule that had permitted an indictment to be challenged for
failure to state an offense “any time while the case is pending,” Fed. R. Crim. P. 12(b)(3)(B)
(2013), was replaced by one requiring the issue to be raised “by pretrial motion if the basis
for the motion is then reasonably available and the motion can be determined without a
trial on the merits,” Fed. R. Crim. P. 12(b)(3)(B)(v). As explained in the Advisory
Committee Notes to the amendment, this rule change was prompted by the Supreme
Court’s “abandon[ment of] any jurisdictional justification” for such an indictment
challenge in Cotton. Fed. R. Crim. P. 12(b)(3), Advisory Comm. Notes to 2014
Amendments. Aquart’s observation that this amendment only took effect during the
pendency of his initial appeal does not alter our conclusion that his challenges on remand
do not implicate jurisdiction so as to fall outside the mandate rule.

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States v. Yousef, 750 F.3d 254, 260 (2d Cir. 2014) (stating that “[e]ven a defendant’s
persuasive argument that the conduct set out in the indictment does not make out
a violation of the charged statute does not implicate subject-matter jurisdiction”),
abrogated on other grounds as recognized in United States v. Van Der End, 943 F.3d 98,
104–05 (2d Cir. 2019).
This precedent controls here and compels the conclusion that Aquart’s
sufficiency challenge to his indictment’s VICAR charges raises no question of
jurisdiction.
2. Drug-Related Murder Counts
Precedent dictates the same conclusion as to Aquart’s jurisdiction challenge
to the sufficiency of his indictment’s drug-related murder counts. Here again,
there is no question that the indictment tracks the statutory language applicable at
both the time of the alleged 2005 murders and the time of the 2010 Fourth
Superseding Indictment. That language had required crack cocaine trafficking to
be in an amount of 50 grams or more to state a § 841(b)(1)(A) predicate for a
§ 848(e)(1)(A) murder.4 Aquart nevertheless argues that by the time of his 2011
4 Title 21 U.S.C. § 848(e)(1)(A) states in pertinent part,
[A]ny person . . . engaging in an offense punishable under section
841(b)(1)(A) of this title . . . who intentionally kills or counsels, commands,
induces, procures, or causes the intentional killing of an individual and such
killing results, shall be sentenced to any term of imprisonment . . . not. . . less
than 20 years, and . . . up to life imprisonment, or may be sentenced to death.
At the time of both the alleged murders and Fourth Superseding Indictment, trafficking
in “50 grams or more” of cocaine base, also known as “crack cocaine,” was punishable
under 21 U.S.C. § 841(b)(1)(A).
The three drug-related murder counts each charged in pertinent part as follows:

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trial, the indictment no longer stated a viable § 848(e)(1)(A) crime because, in 2010,
Congress enacted the FSA, which raised the minimum crack quantity required for
a § 841(b)(1)(A) predicate to a § 848(e)(1)(A) murder from 50 to 280 grams.
As a purely jurisdictional challenge, Aquart’s attack on the indictment’s
drug-related murder counts is foreclosed by Cotton. The Supreme Court there held
that an indictment was not jurisdictionally deficient because it failed to allege “any
of the threshold levels of drug quantity that lead to enhanced penalties under
§ 841(b),” even though the sentencing court subsequently attributed a drug
quantity to the defendant that made him eligible for the “enhanced penalties of
§ 841(b)(1)(A).” United States v. Cotton, 535 U.S. at 628.
In any event, Aquart is wrong in arguing that his indictment failed to state
On or about August 24, 2005, within the District of Connecticut, AZIBO
AQUART [together with various confederates], while engaged in an offense
punishable under Section 841(b)(1)(A) of Title 21 of the United States Code,
to wit: conspiracy to distribute and to possess with intent to distribute 50
grams or more of a mixture and substance containing a detectable amount of
cocaine base (“crack cocaine”), . . . did knowingly and intentionally kill and
command, induce, procure and cause the intentional killing of [Tina Johnson
(Count Five), James Reid (Count Six), and Basil Williams (Count Seven)], and
such killing did result.
Special App’x 46–48.
The drug conspiracy count of conviction charged in pertinent part as follows:
From in and about the fall of 2004, to in or about August 2005, in the District
of Connecticut and elsewhere, AZIBO AQUART [and various confederates]
did knowingly and intentionally conspire to distribute and to possess with
intent to distribute 50 grams or more of a mixture and substance containing
a detectable amount of cocaine base (“crack cocaine”) . . . contrary to the
provisions of Title 21, United States Code, Section 841(a)(1).
Id. at 48.

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a § 848(e)(1)(A) drug-related murder because the alleged 50-gram crack quantity
did not satisfy § 841(b)(1)(A) at the time of trial. In United States v. Guerrero, this
court observed that “[a] murder conviction under 21 U.S.C. § 848(e)(1)(A) requires
proof that the defendant was ‘engaging’ in a drug trafficking offense punishable
under 21 U.S.C. § 841(b)(1)(A) at the time he committed the intentional murder.” 813
F.3d 462, 463 (2d Cir. 2016) (emphasis added). At the time Aquart committed the
charged murders, the quantity of crack cocaine “punishable” under § 841(b)(1)(A)
was 50 or more grams. Because that is what the Fourth Superseding Indictment
charged, the district court’s jurisdiction was established. See id. at 465 (explaining
that § 848(e)(1)(A) crime “is complete at the time of the murder, . . . and it is as of
that time that the statute’s drug trafficking element is measured”). That
conclusion finds further support in United States v. Fletcher, wherein this court
stated that the “validity” of a § 848(e)(1)(A) conviction “for conduct committed
before the Fair Sentencing Act was not affected by changes to § 841(b)(1)(A) that
post-date the murder.” 997 F.3d 95, 98 (2d Cir. 2021). Implicit in the “validity” of
a conviction is the court’s jurisdiction to adjudicate the case and enter judgment.5
5 Aquart attempts to distinguish Guerrero and Fletcher on the ground that neither arose in
the precise procedural posture presented by his case. See United States v. Guerrero, 813
F.3d at 464 (FSA took effect between verdict and sentencing); United States v. Fletcher, 997
F.3d at 96 (FSA took effect between guilty plea and sentencing). This effort fails to
persuade because, as the language we quote from these cases shows, the statutory
interpretation stated therein was not limited to those circumstances.
Guerrero and Fletcher thus foreclose Aquart’s attempt to invoke the rule of lenity. See
United States v. Shellef, 507 F.3d 82, 106 (2d Cir. 2007) (rejecting lenity argument because
“statute, as interpreted by our case law, makes clear that [defendant’s] conduct is
proscribed”); see also United States v. Tabb, 949 F.3d 81, 89 n.8 (2d Cir. 2020) (explaining
that rule of lenity is “tool of last resort” not applicable when “traditional rules of statutory
interpretation[] resolve any ambiguity”).

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Finally, Aquart cannot show that he was prejudiced by the indictment’s
reference to 50 grams or more of crack because, at trial, the prosecution in fact
proved the higher 280 gram crack quantity required by the FSA. See United States
v. Goodwin, 141 F.3d at 401 (requiring post-verdict challenge to sufficiency of
indictment to be supported by prejudice). The jury responded affirmatively to a
special interrogatory asking whether Aquart engaged in a drug conspiracy
involving 280 grams or more of crack cocaine. That finding was, moreover, amply
supported by the trial evidence indicating a conspiracy trafficking in many
kilograms of crack cocaine.
In sum, Aquart fails to raise any jurisdiction challenge warranting a
departure from either the mandate rule or the law-of-the-case doctrine.
C. Intervening Change in Law
Aquart argues that even if the mandate rule applied to the district court on
remand and the law-of-the-case doctrine applies to this court on appeal, an
intervening change in controlling law warrants reconsideration of his guilt
adjudication on the VICAR counts of conviction. He locates that change in United
States v. Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court appears to have
first applied a categorical, rather than case-specific, approach to determine
whether the appealed conviction was for a crime of violence. In so doing, the
Court acknowledged that prior cases had applied the categorical approach to
assess the violence of crimes of past conviction, while Davis’s categorical challenge
was directed at the crime “currently charged.” Id. at 2327 (emphasis in original).
Aquart argues that this reflects a change in controlling law that allowed him, on
remand or now on appeal, to challenge his VICAR crimes of conviction on the
ground that the supporting Connecticut murder statutes categorically reach more
broadly than generic murder and, thus, cannot serve as VICAR predicates. The

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18
argument fails on several grounds.
First, Aquart misapprehends the standard for showing a change in law
sufficient to avoid the mandate rule or law-of-the-case doctrine. Citing our
decision in United States v. Plugh, 648 F.3d 118, 124 (2d Cir. 2011), Aquart submits
that such a change is evident whenever an intervening Supreme Court decision
“casts doubt” on our controlling precedent. Appellant Reply Br. at 13 (quoting
United States v. Plugh, 648 F.3d at 124). But this language in Plugh cannot be read
in isolation to suggest that any doubt, however minimal or abstract, is sufficient to
reopen all matters previously decided. Indeed, the Plugh panel observed that the
intervening decision at issue there “made clear” a change in prevailing Circuit law,
and “did so in a manner that departed significantly” from controlling precedent.
United States v. Plugh, 648 F.3d at 124 (emphasis added). Plugh, moreover, was
necessarily informed by earlier, controlling precedent explaining that more than
“mere doubt” is necessary to reconsider prior decisions. Fogel v. Chestnutt, 668
F.2d 100, 109 (2d Cir. 1981) (internal quotation marks omitted). Rather, “[t]he law
of the case will be disregarded only when the court has a clear conviction of error
with respect to a point of law on which its previous decision was predicated.” Id.
(internal quotation marks and citation omitted). That is not this case. This court’s
affirmance of Aquart’s conviction as to guilt was not predicated on any basis called
into question by Davis. Indeed, this court has never considered whether the
categorical approach applies to the VICAR statute.
Insofar as Aquart maintains that, before Davis, it was the “law of this Circuit
that the categorical approach to predicate crimes applied solely to prior
convictions,” Appellant Br. at 38 (emphasis in original), he is incorrect. Prior to
Davis, this court, like the Supreme Court, had applied the categorical approach in
evaluating crimes of prior convictions. See Stone v. United States, 37 F.4th 825, 830
(2d Cir. 2022) (reviewing history and noting that, in general, categorical approach

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“guides how a court may permissibly consider a defendant’s previous or other
convictions for the purpose of either determining whether the defendant
committed a separate offense . . ., or applying an enhanced prison term”); United
States v. Watkins, 940 F.3d 152, 162–63 (2d Cir. 2019) (applying categorical
approach, in wake of Davis, to Bail Reform Act’s residual clause defining “crime
of violence,” see 18 U.S.C. §§ 3142(f)(1)(A), 3156(a)(4)(B), but noting that categorical
approach “has generally been used in prior-conviction cases”). But in no prior
decision did this court ever hold that the categorical approach could not be applied
to an appealed crime of conviction. Indeed, this court has long applied the
categorical approach to assess whether an appealed count of conviction under 18
U.S.C. § 924(c) constituted a crime of violence under that statute’s elements clause.
See, e.g., United States v. Acosta, 470 F.3d 132, 134–35 (2d Cir. 2006) (applying
categorical approach to determine whether appealed § 924(c) conviction was
“crime of violence”); accord United States v. Ivezaj, 568 F.3d 88, 95–96 (2d Cir. 2009).
These cases predated not only Davis but also Aquart’s trial and first appeal. Thus,
while Davis may have been the first case in which the Supreme Court used the
categorical approach to evaluate the particular crime of conviction being appealed,
no pre-Davis precedent prevented Aquart from arguing on his initial direct appeal
to this court that the categorical approach applied in determining whether the
cited Connecticut laws satisfied the murder predicate element for his VICAR
counts of conviction.
In seeking to excuse his failure to so argue, Aquart submits that on his initial
direct appeal, his focus was on sentencing challenges to his four death sentences.
But, as the record shows, on initial appeal, Aquart also raised numerous challenges
to the guilt component of his judgment. See Aquart I, 912 F.3d at 17–29. A
categorical challenge to the Connecticut murder statutes as VICAR predicates
would simply have been one more. Moreover, Aquart not only had the

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opportunity to raise such an argument on his initial appeal. He also had every
incentive to do so because, if he could secure reversal or vacatur of his judgment
as to guilt on the VICAR counts, he would be free of any sentence, capital or
otherwise, for these crimes.
Second, and in any event, Davis is of little relevance here because it does not
mention, much less construe, the VICAR statute. Its holding is based on the “text,
context, and history” of an entirely different law: 18 U.S.C. § 924(c)(3). United
States v. Davis, 139 S. Ct. at 2327. The residual clause of that statute defines a “crime
of violence” as a felony that, “by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 924(c)(3)(B). That language, which the
Supreme Court held unconstitutionally vague, see United States v. Davis, 139 S. Ct.
at 2336, bears no resemblance to the VICAR provision under which Aquart stands
convicted, which proscribes “murders . . . in violation of the laws of any State or
the United States” related to racketeering. 18 U.S.C. § 1959(a). Thus, Davis sheds
little light on whether the categorical approach might apply to Aquart’s VICAR
murder counts of conviction.
Aquart argues that any differences between Davis and this case are
immaterial because an “intervening decision need not discuss the precise issue
decided by the panel for this exception to apply.” Appellant Reply Br. at 13
(quoting United States v. Plugh, 648 F.3d at 124). While he is correct that meticulous
precision is not required on this point, an intervening decision such as Davis,
bearing only a tenuous relationship to the case at hand, will not easily give rise to
a “clear conviction of error with respect to a point of law” on which our previous
affirmance of conviction as to guilt was based. Fogel v. Chestnutt, 668 F.2d at 109
(internal quotation marks omitted); see United States v. Becker, 502 F.3d 122, 127 (2d
Cir. 2007) (departing from law of the case when intervening Supreme Court

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decision “uprooted” the principle on which court’s earlier decision had relied);
Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 9 (2d Cir. 1996) (departing from
law-of-the-case doctrine, in part, when intervening Supreme Court decision
“expressly rejects” court’s prior holding). It gives rise to no such conviction here.
Indeed, our conclusion that Davis does not constitute an intervening change
in law requiring a categorical approach to VICAR finds support in decisions of
several sister circuits. In specifically considering whether, after Davis, the VICAR
statute is subject to categorical analysis, the Fourth Circuit ruled that it was not.
See United States v. Keene, 955 F.3d 391, 393 (4th Cir. 2020). The Sixth Circuit cited
favorably to Keene in similarly holding that the categorical approach does not
apply to the RICO statute, see Johnson v. United States, 64 F.4th 715, 720, 728 (6th
Cir. 2023), a conclusion also reached by the Seventh Circuit, see United States v.
Brown, 973 F.3d 667, 709 (7th Cir. 2020) (rejecting argument that categorical
approach “ought to apply in a RICO prosecution”). The last two holdings are
pertinent because, as this court has recognized, “VICAR complements RICO, and
the statutes are similarly structured.” United States v. Pastore, 83 F.4th 113, 119 (2d
Cir. 2023). We need not here decide whether to adopt the particular reasoning of
these courts in reaching their decisions. Rather, we cite these decisions only as
further support for our conclusion that Davis represents no clear intervening
change in controlling law with respect to VICAR so as to support an exception to
the mandate rule or the law-of-the-case doctrine in Aquart’s case.
D. Clear Error or Manifest Injustice
1. VICAR Counts
Reprising his Davis-based categorical argument, Aquart asserts that
allowing his VICAR convictions to stand would be “blatant error” resulting in
“serious injustice.” Appellant Br. at 37. The argument fails because, for reasons

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already stated, Davis is hardly relevant to this appeal, let alone indicative of clear
error in application of the VICAR statute to murders in violation of Connecticut
law. See supra at 17–21. Nor can Aquart—who does not profess innocence of the
VICAR murders—convincingly argue manifest injustice in the face of compelling
trial evidence supporting the jury’s finding that he personally killed or aided and
abetted in the killing of three bound and gagged victims, see Aquart I, 912 F.3d at
10–14 (detailing overwhelming evidence of Aquart’s guilt). See generally United
States v. Tiler, 602 F.2d 30, 35 (2d Cir. 1979) (observing that “generally a movant
must at least assert his innocence in order to establish ‘manifest injustice’”
necessary to withdraw guilty plea under then-existing provision of Fed. R. Crim.
P. 32).
2. Drug-Related Murder Counts
Aquart next argues that it would be clear error and manifestly unjust to
allow his drug-related murder counts of convictions to stand because he “was
convicted of and sentenced for a crime that did not exist at the time of trial and
sentencing,” i.e., murders related to a conspiracy to traffic in 50 grams or more of
crack cocaine in violation of 21 U.S.C. § 841(b)(1)(A). Appellant Br. at 79. Here
again, for reasons already discussed, such a clear error/manifest injustice
argument is defeated by precedent, see supra at 16–17 (discussing United States v.
Fletcher, 997 F.3d at 98; United States v. Guerrero, 813 F.3d at 463), and by the express
jury finding that the drug conspiracy pursuant to which Aquart committed the
charged murders involved at least 280 grams of crack cocaine, the higher amount
punishable under § 841(b)(1)(A) by the time of Aquart’s trial, see supra at 17.
3. Speedy Trial
Aquart did not raise a Sixth Amendment speedy trial challenge to
conviction on his initial direct appeal. In faulting the district court for refusing to

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23
consider such a challenge on this court’s limited remand, Aquart argues that the
delay in bringing his case to trial constituted clear speedy trial error requiring
vacatur of all counts of conviction in order to avoid manifest injustice.6 We are not
persuaded.
The Sixth Amendment to the Constitution guarantees an accused the “right
to a speedy and public trial.” U.S. C ONST . amend. VI. The right serves to
(1) “prevent oppressive pretrial incarceration,” (2) “minimize anxiety and concern
of the accused,” and, most importantly, (3) “limit the possibility that the defense
will be impaired.” Barker v. Wingo, 407 U.S. 514, 532 (1972) (identifying last as
“most serious . . . because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system”). Four factors are relevant to a speedy
trial claim: (1) length of delay, (2) reasons for the delay, (3) defendant’s assertion
of his right, and (4) prejudice to defendant. See id. at 530. These factors do not tilt
so decidedly in Aquart’s favor as to demonstrate the clear error or manifest
injustice necessary to avoid the mandate rule or law-of-the-case doctrine. Indeed,
because the absence of prejudice—the fourth factor—compels that conclusion, our
discussion of the other three factors is brief.
The first factor, the length of delay—here, five years7—is sufficient to trigger
constitutional concern, see Barker v. Wingo, 407 U.S. at 530, but it is not
6 Insofar as Aquart also argues that this claim is not barred by the mandate rule because
it “was neither expressly nor implicitly determined by this Court in his first appeal,”
Appellant Br. at 62, we reject that argument for reasons already discussed supra at 9–10.
See also United States v. Robertson, 48 F. App’x 823, 826 (2d Cir. 2002) (concluding that
defendant waived speedy trial argument by failing to raise it during first appeal and,
thus, could not do so on remand limited to resentencing).
7 While the parties generally anchor their speedy trial arguments on a delay of 64 months,
calculated from the December 7, 2005 date of Aquart’s first federal indictment on one

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24
determinative of clear error, particularly given the serious, complex charges
against Aquart. See United States v. Moreno, 789 F.3d 72, 82 (2d Cir. 2015) (stating
that only in “exceedingly rare circumstances” will “length of delay alone support[]
a showing of prejudice”); see also Barker v. Wingo, 407 U.S. at 531 (explaining that
“delay that can be tolerated for an ordinary street crime is considerably less than
for a serious, complex conspiracy charge”).
As for the second factor, the reasons for the delay, Aquart argues that it
should weigh against the government because it pursued multiple superseding
indictments presenting “shifting . . . theories of liability,” delaying trial. Appellant
Br. at 54.8 This is not so evident as to demonstrate clear speedy trial error or
count of conspiring to traffic 50 grams or more of crack cocaine, at times, Aquart appears
to suggest a 67-month delay, calculated from his September 2, 2005 arrest for state
charges, while the government, at one point, suggests a 53-month delay, calculated from
the November 2006 First Superseding Indictment. We need not resolve this dispute,
because our analysis and conclusion are the same whether the delay in bringing Aquart’s
case to trial was 53, 64, or 67 months.
8 The relevant chronology can be summarized as follows:
December 2005: Initial federal indictment charges Aquart with conspiracy to
traffic in 50 or more grams of crack cocaine. See 21 U.S.C. §§ 841(a)(1),
(b)(1)(A).
November 2006: First Superseding Indictment adds felon-in-possession-of-a-
firearm count to the drug conspiracy charge. See 18 U.S.C. §§ 922(g)(1),
924(e)(1).
June 2007: Second Superseding Indictment adds one conspiratorial and three
substantive counts of VICAR murder. See id. § 1959(a)(1) & (5).
January 2009: Notice of intent to seek death penalty filed for substantive
VICAR murders. See id. § 3593(a).

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manifest injustice compelling vacatur of all counts of conviction.
To explain, we consider the trial delay in parts. We assume that the
eighteen-month interval between the initial indictment and the Second
Superseding Indictment—the first indictment in which Aquart was charged with
murder—is time properly charged to the government. But the ensuing charging
instruments—all rooted in Aquart’s leadership of a violent drug enterprise—
appear more reflective of an expanding, rather than a shifting, theory of
culpability, which the government pursued in good faith. Indeed, Aquart does
not dispute that, even before return of the Second Superseding Indictment,
prosecutors advised him that he was under investigation for murders related to
his drug enterprise. This delay occasioned by investigation and eventual charging
of such serious crimes is more aptly characterized as “neutral” than “deliberate”
and, thus, weighs “less heavily” against the government than would deliberate
delay. Barker v. Wingo, 407 U.S. at 531 (instructing that “deliberate attempt to delay
the trial in order to hamper the defense should be weighted heavily against the
government,” while “more neutral reason such as negligence or overcrowded
courts should be weighted less heavily,” and “valid reason, such as a missing
April 2009: Third Superseding Indictment adds three substantive drug-
related murder counts to six charges in Second Superseding Indictment. See
21 U.S.C. § 848(e)(1)(A).
March 2010: Fourth Superseding Indictment reiterates nine counts of Third
Superseding Indictment pertaining to Aquart, but references Connecticut’s
felony murder statute as well as the state’s murder and accomplice liability
statute, as a VICAR predicate. See Conn. Gen. Stat. §§ 53a-8(a), 53a-54a, 53a-
54c.
August 2010: Notice of intent to seek death penalty filed for substantive drug-
related murders.
March 2011: Jury selection begins.

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26
witness, should serve to justify appropriate delay”); see also United States v. Cain,
671 F.3d 271, 297 (2d Cir. 2012) (holding pretrial delays resulting from “practical
difficulties occasioned by the complexities of the case” and not government’s or
court’s “bad faith or neglect . . . do not favor a finding that [defendant’s]
constitutional rights were denied”).
As for the further eighteen-month interval between the Second Superseding
Indictment and the prosecution’s filing of formal death penalty notices, this court
has recognized that the decision to seek the death penalty is necessarily “a complex
and appropriately deliberative process,” United States v. Black, 918 F.3d 243, 261
(2d Cir. 2019).9 There is an obvious public interest in such careful review that
justifies a reasonable delay in trial. See United States v. Abad, 514 F.3d 271, 274 (2d
Cir. 2008) (holding that “time needed for the Capital Case Unit [of Department of
Justice] to decide whether to seek the death penalty” was “valid reason[]” for
delay). Aquart points to nothing in the record indicating that the process was
deliberately or negligently prolonged in his case. This contrasts with
circumstances in the cases he cites. See United States v. Black, 918 F.3d at 261–62
(faulting prosecution for inexplicable delay of nearly three years in considering
death penalty, losing track of evidence, and repeatedly failing to produce
defendants and witnesses for court proceedings); cf. United States v. Tigano, 880
9 That process requires not only that local federal prosecutors develop sufficient evidence
to support a capital charge, but also that the Department of Justice authorize pursuit of
the death penalty, something it does only after a review that includes affording the
defense an opportunity to be heard. See United States v. Black, 918 F.3d at 287–88 (Cote, J.,
concurring in part and dissenting in part) (summarizing Department of Justice policy
“that federal prosecutors are required to follow” in death-eligible cases, including
(1) consultation with Department of Justice Capital Case Section; (2) offering defense
counsel “reasonable opportunity to present information which may bear on the decision
whether to seek the death penalty”; (3) consultation with victim’s family; (4) review by
various officials in Department of Justice; and (5) final decision by Attorney General).

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F.3d 602, 613–14 (2d Cir. 2018) (charging government with seven-month delay in
transporting defendant for competency hearing and with time spent conducting
needlessly repetitive and dilatory competency examinations yielding consistent
results). Accordingly, this eighteen-month interval does not weigh in favor of
Aquart’s claim of clear speedy trial error or manifest injustice.
Further trial delay following the prosecution’s filing of the first VICAR
death penalty notice appears largely attributable to Aquart, who either repeatedly
sought or acquiesced in his co-defendants’ requests for continuances from
September 8, 2009 to March 2011. See United States v. Black, 918 F.3d at 262–63
(charging defendants with delays resulting from their extension requests).10
Aquart seeks to avoid this last conclusion by now arguing that his trial
attorney’s litigation strategy was “contrary” to his own expressed wishes.
Appellant Br. at 52. It is true that “the right to a speedy trial belongs to the
defendant, not to defendant’s counsel,” such that “a defendant’s assertion of his
10 The relevant chronology can be summarized as follows:
September 8, 2009: Aquart acquiesces in co-defendant’s motion to continue
jury selection for six months because of medical issue with counsel and
mitigation witness. Court grants and adjourns trial to May 6, 2010.
March 3, 2010: Aquart joins in co-defendant’s motion for further continuance
until September 2010. Court grants over government objection.
July 6, 2010: Aquart requests continuance of trial to November 2010, with his
counsel disavowing any speedy trial claim.
August 11, 2010: Aquart files multiple motions and memoranda requesting
another continuance, which court grants to November 29, 2010.
October 8, 2010: Defense fails to make timely disclosure of expert evidence as
required by Fed. R. Crim. P. 12.2, professing need for more time. Court
adjourns trial to March 2011 when jury selection does, in fact, commence.

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own right to a speedy trial—even though ignored or contravened by his counsel—
is the relevant fact for purposes of Sixth Amendment analysis.” United States v.
Tigano, 880 F.3d at 618. Still, “delays sought by counsel are ordinarily attributable
to the defendants they represent.” Vermont v. Brillon, 556 U.S. 81, 85 (2009). In
Tigano, we departed from that rule because the record showed that defendant
“himself [had] made very clear that he desired a speedy trial” by “adamantly,
consistently, and explicitly rais[ing] his speedy trial rights at nearly every
appearance he made before the court.” 880 F.3d at 617–18 (emphasis added). That
is not this case, certainly not with respect to any delay following filing of the death
penalty notice. As we explain in discussing the next Barker factor, there is some
record evidence of Aquart raising his speedy trial right before he was charged with
capital crimes in the Second Superseding Indictment. See infra at 29. But there is
no evidence of his doing so in this case after the return of that indictment so as to
support his argument that counsel was then acting contrary to Aquart’s expressed
wishes in seeking continuances to prepare to defend against such serious charges.
Also, to the extent that counsel for Aquart and his co-defendants understandably
filed numerous pretrial motions in this complex capital case, the reasonable time
required to present, respond to, and resolve those motions is valid delay not
raising speedy trial concerns. United States v. Abad, 514 F.3d at 274–75 (counting
time dedicated to evaluating defendant’s pretrial motions as valid delay); Doggett
v. United States, 505 U.S. 647, 656 (1992) (recognizing that delay due to
government’s need to oppose defendant’s pretrial motions “is often both
inevitable and wholly justifiable”).
As for the third factor, defendant’s assertion of his speedy trial right, the
parties dispute whether Aquart satisfactorily asserted his right prior to trial. The
record in this case is not akin to those in which a defendant “frequently and
explicitly” asserted speedy trial rights. United States v. Black, 918 F.3d at 264; see

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United States v. Tigano, 880 F.3d at 617–18. Nevertheless, Aquart submits that he
demonstrated his desire for a speedy trial as early as 2006 when he refused to sign
a speedy trial waiver on the first federal indictment. Moreover, as the government
acknowledges, sometime before the June 2007 Second Superseding Indictment,
Aquart expressed a desire to proceed promptly to trial on the then-existing
charges.11 Nothing in the record indicates, however, that Aquart reasserted his
speedy trial rights in this case any time after the Second Superseding Indictment
charged him with more serious capital crimes. Aquart nevertheless asserts that
his continuing desire for speedy trial is evident from his 2008 filing of a civil action
under 42 U.S.C. § 1983 suing various state prison officials for actions infringing his
speedy trial rights with respect to other state prosecutions.
We need not here decide just how Aquart’s actions might weigh in the Barker
balance because, even if we were to resolve that question in Aquart’s favor, his
inability to demonstrate prejudice—the fourth and most important factor—
precludes him from showing the sort of clear speedy trial error or manifest
injustice necessary to avoid the mandate rule or law-of-the-case doctrine. See
Barker v. Wingo, 407 U.S. at 532.
In reaching this conclusion, we are mindful that “affirmative proof of
particularized prejudice is not essential to every speedy trial claim.” Doggett v.
United States, 505 U.S. at 655; see United States v. Black, 918 F.3d at 264.
Nevertheless, this court “generally ha[s] been reluctant to find a speedy trial
violation in the absence of genuine prejudice.” United States v. Cain, 671 F.3d at
11 The government asserts that it agreed to Aquart’s request but warned him that he could
still face further charges for murders then under investigation. See supra at 25–26. It is
not clear from the record whether Aquart then withdrew his request for trial on existing
charges or whether that possibility was simply mooted by return of the Second
Superseding Indictment.

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297; see also United States v. Cabral, 979 F.3d 150, 163–64 (2d Cir. 2020) (requiring
defendant to show “actual prejudice” where “government acted with reasonable
diligence”). Here, Aquart has “failed to articulate prejudice from the delay [in his
trial] with any specificity.” United States v. Williams, 372 F.3d 96, 113 (2d Cir. 2004).
Instead, he submits that prejudice in the form of pretrial anxiety can be “presumed
from the type of extraordinary pretrial delay at issue here,” and that prejudice to
his defense is “self-evident.” Appellant Reply Br. at 36 n.10, 42. We are not
persuaded.
To the extent Aquart urges us to presume anxiety because his “fiancée was
pregnant and gave birth to his child during the delay” in his trial, id. at 43, that
factual premise is belied by his Pre-Sentence Report, which indicates that the child
was born in October 2005, before Aquart was under any federal indictment and
while he was in state custody. In any event, while personal hardship can be
prejudicial, the more probative prejudice for purposes of identifying a speedy trial
violation is a “trial-related disadvantage.” United States v. Cain, 671 F.3d at 297.
On this point, Aquart’s argument of self-evident prejudice effectively urges
a presumption of prejudice in every case of lengthy pre-trial delay. That, however,
would be at odds with the Supreme Court’s explicit instruction “to approach
speedy trial cases on an ad hoc basis.” Barker v. Wingo, 407 U.S. at 530; see id. at
522–23 (rejecting urged “rigid” categorical approaches to identifying speedy trial
violations, observing that speedy trial right is “necessarily relative” (internal
quotation marks omitted)). Here, Aquart identifies no favorable evidence or
argument that was compromised or lost to him by reason of trial delay. He points
to no witnesses who “died or otherwise became unavailable,” or to any witnesses’
“lapses of memory” that were “significant to the outcome” of his trial. Id. at 534
(citing absence of such evidence in concluding that any prejudice to defendant
from over five-year delay in trial was “minimal”); see United States v. Cabral, 979

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31
F.3d at 163–65 (holding eleven-year delay not inherently prejudicial where
defendant bore principal responsibility for delay and could not identify “specific
prejudice to his defense” (internal quotation marks omitted)). Thus, we conclude
that the absence of prejudice here defeats Aquart’s claim of a clear speedy trial
violation or a manifestly unjust conviction warranting an exception from the
mandate rule or law-of-the-case doctrine.
III. Double Jeopardy
The Double Jeopardy Clause guarantees that “[n]o person shall . . . be subject
for the same offense to be twice put in jeopardy of life or limb.” U.S. C ONST .
amend. V. This “command encompasses three distinct guarantees,” protecting
against (1) “a second prosecution for the same offense after acquittal,” (2) “a
second prosecution for the same offense after conviction,” and (3) “multiple
punishments for the same offense.” United States v. Josephberg, 459 F.3d 350, 355
(2d Cir. 2006) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)). Only the third
protection is at issue here, and it pertains even though Aquart’s prison terms run
concurrently. See Rutledge v. United States, 517 U.S. 292, 301–02 (1996); Ball v. United
States, 470 U.S. 856, 864–65 (1985). Aquart argues that the district court violated
double jeopardy in sentencing him on a drug conspiracy count of conviction
(Count Eight), as well as on three counts of murder committed while engaging in
that conspiracy (Counts Five, Six, and Seven), because the conspiracy crime was a
lesser included offense of the murder crimes. On de novo review, see United States
v. Weingarten, 713 F.3d 704, 708 (2d Cir. 2013), we reject the argument as meritless.
A. Forfeiture
Before explaining that conclusion, we briefly address the government’s
forfeiture argument. Although, on remand, prosecutors urged the district court to
address—and reject—the merits of Aquart’s double jeopardy argument, see supra

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at 6, the government now argues that we should not review this decision on appeal
because Aquart forfeited his double jeopardy argument by failing to raise it
“before trial, at trial, in post-trial proceedings, or even in his first appeal.” Gov’t
Br. at 80. We need not here decide whether the government itself waived this
forfeiture argument because, although a defendant can forfeit or waive double
jeopardy rights, see United States v. Kurti, 427 F.3d 159, 162 (2d Cir. 2005), we do
not think Aquart did so here.
First, a double jeopardy concern as to multiple punishments is properly
understood to arise after trial because punishment is imposed only after an
adjudication of guilt.12 As this court explained in United States v. Josephberg, “[i]f
the jury convicts on no more than one of the multiplicitous counts, there has been
no violation of the defendant’s right to be free from double jeopardy, for he will
suffer no more than one punishment.” 459 F.3d at 355. Thus, Aquart did not forfeit
his particular double jeopardy sentencing challenge by failing to raise it before or
during trial.
Second, although Aquart could have raised his challenge after trial or in his
first appeal, he at least arguably had no incentive to do so, given that the jury voted
to impose the death penalty for two VICAR murder counts and two drug-related
murder counts. See United States v. Quintieri, 306 F.3d at 1229 (“An issue is not
considered waived . . . if a party did not, at the time of the purported waiver, have
. . . an incentive to raise it before the sentencing court or on appeal.”). In these
12 For this reason, the government’s cases in support of its forfeiture argument are
inapposite: They concern the distinguishable situation in which a defendant was
subjected to successive prosecutions and failed to raise a double jeopardy objection before
his second conviction. See United States v. Leyland, 277 F.3d 628, 632 (2d Cir. 2002)
(rejecting double jeopardy argument to successive prosecutions first raised after guilty
plea); Paul v. Henderson, 698 F.2d 589, 591–92 (2d Cir. 1983) (holding defendant waived
double jeopardy claim by failing to raise it prior to second trial for same offense).

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circumstances, Aquart may have thought a double jeopardy argument as to the
one drug conspiracy count for which he was sentenced to life imprisonment was
irrelevant until the decision in Aquart I vacated the capital sentences and
remanded for a new penalty proceeding. See id. at 1230 (holding defendant not
required to raise sentencing issues on appeal that are “irrelevant to the immediate
sentencing determination,” just in case, “upon remand, the issue[s] might be
relevant” (internal quotation marks omitted)); cf. United States v. Atehortva, 69 F.3d
679, 685 (2d Cir. 1995) (allowing government to raise novel arguments on remand
for resentencing following vacatur of some convictions because, before vacatur,
arguments were “purely academic”).13 Thus, we are not persuaded that Aquart
forfeited his double jeopardy argument.
Third, and in any event, because, on remand, the district court addressed
the merits of Aquart’s double jeopardy challenge after the government had
sufficient opportunity to express its views, this court may, in its discretion, review
its decision on appeal. See 32BJ N. Pension Fund v. Nutrition Mgmt. Servs. Co., 935
F.3d 93, 102 n.14 (2d Cir. 2019) (holding that issue was not forfeited because “the
district court considered the question and rendered a decision on the merits,”
which “is sufficient to preserve the issue for our review”); United States v. Male
Juvenile (95-CR-1074), 121 F.3d 34, 39 (2d Cir. 1997) (addressing merits,
notwithstanding alleged waiver, where district court reached merits).
13 For reasons already explained supra at 20, Aquart did have an incentive on his initial
direct appeal to challenge the sufficiency of the charges on which he had been found
guilty.

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B. The Drug Conspiracy and Drug-Related Murder Counts of
Conviction
Aquart was convicted of three drug-related murders under that provision
of 21 U.S.C. § 848 which states as follows:
[A]ny person engaging in or working in furtherance of a continuing
criminal enterprise, or any person engaging in an offense punishable under
section 841(b)(1)(A) of this title . . . who intentionally kills or counsels,
commands, induces, procures, or causes the intentional killing of an
individual and such killing results, shall be sentenced to any term of
imprisonment, which shall not be less than 20 years, and which may be
up to life imprisonment, or may be sentenced to death.
21 U.S.C. § 848(e)(1)(A) (emphasis added). Counts Five, Six, and Seven of the
Fourth Superseding Indictment charged that the “offense punishable under
section 841(b)(1)(A)” in which Aquart was engaged when he intentionally killed
or aided in the killing of Tina Johnson, Basil Williams, and James Reid was a
conspiracy to traffic 50 grams or more of crack cocaine. See 21 U.S.C. §§ 846
(proscribing drug trafficking conspiracy), 841(b)(1)(A) (providing enhanced
penalty for drug crimes involving, inter alia, 50 grams or more of crack cocaine).
Aquart was separately charged with this conspiracy crime in Count Eight of the
indictment, and the district court instructed the jury that to convict Aquart of a
murder charged in Counts Five, Six, or Seven, it had to find him guilty of the crack
conspiracy charged in Count Eight.
Aquart argues that because the charged crack conspiracy was thus the
specified predicate crime for the charged drug-related murders, that conspiracy
must be considered a lesser included offense to the § 848(e)(1)(A) murders, for
which he cannot stand convicted or be punished without violating double
jeopardy. In support, he relies on Rutledge v. United States, 517 U.S. 292. That case,
however, is not analogous.

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The Rutledge defendant “organized and supervised a criminal enterprise
that distributed cocaine,” for which conduct the jury found him guilty of both
engaging in a continuing criminal enterprise (“CCE”) in violation of § 848 and
conspiring to distribute cocaine in violation of § 846. Id. at 294–95. The Supreme
Court ruled that the concurrent life sentences imposed for these crimes violated
double jeopardy because “conspiracy as defined in § 846 does not define a
different offense from the CCE offense defined in § 848.” Id. at 300. In short,
Rutledge holds that double jeopardy precludes multiple punishments for what was
essentially the same criminal agreement charged as both a CCE under § 848 and a
conspiracy under § 846. Following Rutledge, this court also has held that “where
the alleged CCE is the same enterprise as the [charged drug] conspiracy,” United
States v. Polanco, 145 F.3d 536, 541 (2d Cir. 1998), the conspiracy is a “lesser
included offense” of the CCE violation, United States v. Miller, 116 F.3d 641, 678 (2d
Cir. 1997).
That, however, is not the case here. Aquart was not convicted of engaging
in virtually identical criminal conduct violating both § 848 and § 846. Rather, he
was convicted of engaging in distinct crimes, one substantive and one
conspiratorial, with different objectives: murder in the case of § 848(e)(1)(A); a
scheme to traffic drugs in the case of § 846. To be sure, that § 846 conspiracy
involved a quantity of drugs that, at the time of indictment, was punishable under
§ 841(b)(1)(A), making it an appropriate predicate drug offense for § 848(e)(1)(A)
murder. But Rutledge did not consider whether—much less decide that—
punishing a defendant for both a drug-related murder and the drug crime that is
the predicate for that murder violates double jeopardy. Indeed, Aquart cites no
case in which a court has so held.
This court has previously raised, but not answered, the question of whether
§ 848(e)(1)(A) drug-related murder and § 846 drug conspiracy crimes “should be

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viewed as a greater and a lesser-included offense.” United States v. Jackson, 658
F.3d 145, 151 (2d Cir. 2011).14 That, however, is not necessarily the determinative
inquiry. Rather, in considering whether the same or overlapping conduct may be
prosecuted or punished under two different statutes, a court properly looks to
legislative intent. See Garrett v. United States, 471 U.S. 773, 778–79 (1985). In Garrett,
a defendant already convicted of unlawful drug importation raised a double
jeopardy challenge to further prosecution and punishment for engaging in a CCE
to be proved in part by evidence of the importation. See id. at 775–76. In rejecting
the defendant’s challenge, the Supreme Court stated that the fact that the same
conduct violates two statutory provisions, each providing for punishment, does
not necessarily establish a double jeopardy violation. A court must first
“determine whether the legislature . . . intended that each violation be a separate
offense.” Id. at 778; accord United States v. Chacko, 169 F.3d 140, 146 (2d Cir. 1999)
(explaining that “touchstone” of multiple punishments analysis “is whether
Congress intended to authorize separate punishments for the offensive conduct
under separate statutes”).
To determine whether Congress intended to create separate offenses
allowing distinct punishments, courts frequently employ a test derived from
Blockburger v. United States, 284 U.S. 299 (1932). The Supreme Court there stated
that “where the same act or transaction constitutes a violation of two distinct
14 In Jackson, this court held that double jeopardy was not violated by retrying a defendant
for a § 848(e)(1)(A) drug-related murder count following an initial trial at which the jury
had deadlocked on that count but convicted on a § 846 conspiracy count that was the
predicate drug crime for the § 848(e)(1)(A) murder. 658 F.3d at 151. It noted that “[w]here
the defendant is convicted on both counts, assuming they were properly viewed as a
greater and a lesser-included offense, it may be that the lesser conviction must be
subsumed in the greater,” but the Jackson defendant had advanced no such argument. Id.
at 152 (emphasis added).

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statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not.” Id. at 304; accord United States v. Dixon, 509 U.S. 688, 696 (1993)
(reaffirming Blockburger test). Here, the parties do not dispute that Aquart’s drug-
related murder counts of conviction required proof of a fact not required by his
drug conspiracy crime, specifically, intentionally killing or aiding and abetting the
killing of another person. But they disagree as to whether the drug conspiracy
count required proof of a fact not required by the drug-related murder counts.
In urging an affirmative answer, the government submits that proof of a
criminal agreement, a necessary element for § 846 conspiracy, is not required to
convict a defendant of § 848 drug-related murder because the requisite predicate
“offense punishable under § 841(b)(1)(A)” can be a substantive drug crime.
Aquart, however, argues that the drug-related murder counts of conviction here
required proof of all elements of § 846 conspiracy because the indictment, jury
instructions, and verdict sheet confirm that the particular predicate drug crime for
his charged § 848 murders was the same § 846 conspiracy charged in Count Eight.
We need not resolve this dispute about how the Blockburger test might properly
apply to the counts of conviction here because we conclude, in any event, that
Aquart’s double jeopardy challenge fails.
While the identification of one or more distinct statutory elements under the
Blockburger test can usefully signal Congress’s intent to create separate offenses,
the test is simply a “rule of statutory construction to help determine legislative
intent”; it is “not controlling when the legislative intent is clear from the face of the
statute or the legislative history.” Garrett v. United States, 471 U.S. at 778–79; see
Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (“Where, as here, a legislature
specifically authorizes cumulative punishment under two statutes, regardless of
whether those two statutes proscribe the ‘same’ conduct under Blockburger, a

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court’s task of statutory construction is at an end.”); United States v. Khalil, 214 F.3d
111, 117 (2d Cir. 2000) (stating Blockburger test required only when “statutes
themselves do not make the legislature’s intent explicit”); United States v.
Mohammed, 27 F.3d 815, 819 (2d Cir. 1994) (eschewing Blockburger test when
congressional intent “plain from the language of” statute).
In Garrett, the Supreme Court concluded, based on “common sense” and the
“language, structure, and legislative history” of § 848, that Congress intended for
the CCE provisions of § 848 to state separate offenses from any substantive drug
crimes under other statutory sections that might be used to prove the enterprise.
471 U.S. at 785, 779, 781 (holding that double jeopardy did not preclude § 848
prosecution based in part on proof of § 952 drug importation for which defendant
had earlier been indicted). The Court explained that Congress’s intent in enacting
the CCE provisions of § 848 was to “reach the ’top brass’ in the drug rings” by
“add[ing] a new enforcement tool to the substantive drug offenses already
available to prosecutors.” Id. at 781, 784. Given that intent, the Court deemed it
“illogical” to require prosecutors to choose between a predicate drug crime and a
CCE offense, or to forego prosecution of the latter because a defendant had already
been convicted of the former. Id. at 785. Having thus concluded that Congress
intended a CCE crime to be a separate offense from any underlying drug crime
committed in furtherance of the enterprise, the Supreme Court recognized a
concomitant “presumption” that Congress “intend[ed] to permit cumulative
sentences.” Id. at 793.
While Garrett’s focus was on the CCE provisions of § 848, its reasoning
applies with equal force to the statute’s drug-related murder provision here at
issue. Also applicable here is Garrett’s “caution against ready transposition” of
lesser-included-offense principles of double jeopardy from “classically simple
situation[s]” of conduct equally relevant to two crimes to the “multilayered

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conduct” involved in CCE crimes. Id. at 789. Garrett cited Brown v. Ohio, 432 U.S.
161 (1977), to illustrate a “classically simple” example of lesser-included-offense
principles. 471 U.S. at 789. Garrett explained that, in Brown, which held double
jeopardy to preclude a felony auto theft prosecution of a defendant already
prosecuted for misdemeanor joyriding, the Court had been presented with “[t]he
very same conduct . . . depending only on the defendant’s state of mind.” Id. at
787 (“Every moment of [defendant’s] conduct was as relevant to the joyriding
charge as it was to the auto theft charge.”). That was not the case with the drug
importation and CCE prosecutions at issue in Garrett, and it is not the case with
Aquart’s drug-related murders and drug conspiracy crime.
Indeed, this court has cited Garrett’s caution in rejecting double jeopardy
challenges to prosecutions and punishments for both multilayer crimes and their
predicate offenses, notably, RICO and RICO predicates. See United States v. Persico,
832 F.2d 705, 711 (2d Cir. 1987) (quoting Garrett); cf. United States v. Boylan, 620 F.2d
359, 361 (2d Cir. 1980) (“[N]othing in the RICO statutory scheme . . . would suggest
that Congress intended to preclude separate convictions or consecutive sentences
for a RICO offense and the underlying or predicate crimes which make up the
racketeering pattern.” (quoting United States v. Rone, 598 F.2d 564, 571 (9th Cir.
1979))). Following these precedents here, we conclude that, just as Congress
intended to permit prosecutions and punishments for both a CCE and an
importation offense that is part of that CCE, and for RICO crimes and their
predicates, so Congress intended to permit prosecutions and punishments for both
§ 848(e)(1)(A) drug-related murders and the predicate drug crimes to which the
murders relate.
Legislative history supports this conclusion. See, e.g., 134 Cong. Rec. 22,607
(daily ed. Sept. 7, 1988) (statement of Rep. McCollum) (referring to § 848(e)(1)(A)
provision as “additional tool for law enforcement”); id. at 24,923 (daily ed. Sept.

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22, 1988) (statement of Rep. Donnelly) (noting “provision will provide an
important tool in the war against drugs”); id. at 30,228 (daily ed. Oct. 13, 1988)
(statement of Sen. DeConcini) (supporting provision “to further strengthen our
law enforcement efforts against those who traffic and deal in illegal drugs”); see
Garrett v. United States, 471 U.S. at 782 (consulting legislative history as evidence
of legislative intent).
But, more important, statutory text supports the conclusion. At the core of
§ 848(e)(1)(A) is specific, violent criminal activity: murder. To be sure,
§ 848(e)(1)(A) punishes murder in a particular context, i.e., when the murderer is
engaged in other serious criminal activity, whether a CCE or a drug crime
punishable under § 841(b)(1)(A). But the actus reus focus of the § 848(e)(1)(A) crime
is intentional killing, an injury distinct from and in addition to that addressed by
the predicate crimes. See Diaz v. United States, 223 U.S. 442, 448–49 (1912) (rejecting
double jeopardy challenge by defendant prosecuted first for assault and battery
and then for homicide when assault victim died: “although identical in some of
their elements,” crimes were “distinct offenses both in law and in fact. The death
of the injured person was the principal element of the homicide, but was no part
of the assault and battery.”); see also Garrett v. United States, 471 U.S. at 791 (quoting
approvingly to Diaz in holding that double jeopardy did not preclude prosecuting
defendant for ongoing CCE notwithstanding prior prosecution for drug
importation crime constituting part of CCE activity). As in Garrett, then, it would
be illogical to conclude here that Congress intended to require the government to
choose between prosecuting a § 846 conspiracy and a § 848(e)(1)(A) murder
committed while defendant engaged in the conspiracy, or to preclude any
punishment for the conspiracy, which, as in this case, spanned many months
because Aquart was punished for murders committed pursuant thereto on a single
day.

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That conclusion is reinforced by the first sentence of § 848(e)(1), which states
that the penalties authorized therein for murder—from 20 years to life
imprisonment, or even death—must be imposed “[i]n addition to the other
penalties set forth in this section.” While “this section” plainly refers to § 848, the
text signals that Congress, in enacting § 848(e)(1)(A), clearly intended to create a
separate homicide offense in addition to the drug crimes proscribed even in the
same statutory section and to authorize a distinct punishment. The same
conclusion logically obtains for a § 848(e)(1)(A) drug-related murder. Had
Congress not intended to create a distinct homicide crime in that circumstance, it
could simply have amended § 841(b)(1)(A) to enhance penalties for drug
trafficking in specified quantities involving murder. After all, that statute was
already structured to aggravate drug trafficking sentences in stated circumstances.
See 21 U.S.C. § 841(b) (raising mandatory minimum sentence from 10 to 20 years
when “death or serious bodily injury results from the use of [the controlled]
substance” involved in the drug crime of conviction (emphasis added)). But
Congress did not do so. Instead, it used a single sentence in a different statute,
§ 848, to criminalize and punish murder when committed with either a CCE or
drug-crime predicate. See Castillo v. United States, 530 U.S. 120, 124–25 (2000)
(concluding that when Congress includes multiple terms “in a single sentence,”
“structural features strongly suggest” that those terms are related); Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 58 (1987) (explaining that when
statutory language is contained “in the same subsection, even in the same
sentence,” that “suggests a connection between” relevant language). Thus, the
structure as well as text of § 848 and § 841(b)(1)(A) indicate Congress’s intent for
§ 848(e)(1)(A) to state a homicide crime separate and in addition to any drug-
offense predicates. As in Garrett, “the presumption when Congress creates two
distinct offenses is that it intends to permit cumulative sentences.” 471 U.S. at 793.

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Case law from sister circuits supports this conclusion. See United States v.
Vasquez, 899 F.3d 363, 383 (5th Cir. 2018) (holding that defendant may be punished
for § 848(e)(1)(A) murder “in addition to the underlying [conspiratorial and
substantive] predicate drug-trafficking offenses” (emphasis in original)); United
States v. Honken, 541 F.3d 1146, 1154–59 (8th Cir. 2008) (holding successive
prosecutions for § 846 drug conspiracy and § 848(e)(1)(A) drug-related murder do
not violate double jeopardy); United States v. Collazo-Apone, 216 F.3d 163, 199–200
(1st Cir. 2000) (holding that “statutory language of 21 U.S.C. § 848(e)(1) clearly
indicates that a drug-related murder conviction is a separate offense from the
predicate drug conspiracy offense” for purposes of double jeopardy), cert. granted
and judgment vacated for further consideration in light of Apprendi v. New Jersey, 532
U.S. 1036 (2001), convictions affirmed on remand, 281 F.3d 320 (1st Cir. 2002); United
States v. Snow, 48 F.3d 198, 200–01 (6th Cir. 1995) (holding that § 848(e)(1) creates
“separate offense” from § 846 conspiracy “punishable in addition to, and not as a
substitute for,” conspiracy (internal quotation marks omitted)); see also United
States v. McCullah, 76 F.3d 1087, 1104–05 (10th Cir. 1996) (holding § 846 drug
conspiracy “separate and distinct from the murder charge” contained in
§ 848(e)(1)(A) such that “cumulative punishment” for murder in furtherance of
CCE was authorized). Indeed, “[e]very court of appeals to consider the question”
has concluded that a defendant “may be prosecuted, convicted, and punished”
under § 848(e)(1)(A) “in addition to the underlying predicate drug-trafficking
offenses,” and Aquart points us to no case holding otherwise. United States v.
Vasquez, 899 F.3d at 383 (emphasis in original); see also United States v. Junius, 86
F.4th 1027, 1030 n.5 (3d Cir. 2023) (same).
Relatedly, albeit in different contexts, our court has construed § 848(e)(1)(A)
to state a separate crime from the underlying CCE or predicate drug offenses,
notably rejecting the argument that § 848(e)(1)(A) murder in furtherance of a CCE

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“is only a sentencing enhancement and not a separate substantive offense.” United
States v. Guzman Loera, 24 F.4th 144, 155 (2d Cir. 2022). Further, in rejecting
requests to reduce § 848(e)(1)(A) drug-related murder sentences based on
retroactive amendments to § 841(b)(1)(A) drug quantities, this court has stated that
“a violation of § 848(e)(1)(A) is a standalone, substantive offense that is distinct
from the underlying drug crime,” and “the penalty in § 848(e)(1)(A) is
independent of that in § 841(b)(1)(A).” United States v. Fletcher, 997 F.3d at 97 &
n.2.
Thus, because we identify no merit in Aquart’s double jeopardy challenge
to his sentence on the § 846 drug conspiracy count of conviction, we affirm that
count of conviction along with all others.
CONCLUSION
To summarize, we conclude as follows,
1. On remand only for resentencing, the district court correctly applied the
mandate rule in declining to consider Aquart’s new challenges to the
affirmed guilt component of his judgment of conviction, and this court
identifies no compelling reason to depart from the law-of-the-case
doctrine to consider those challenges on this appeal.
2. Because drug-related murder in violation of 21 U.S.C. § 848(e)(1)(A) is a
crime distinct from the drug predicates in which a defendant is engaged
when he commits such a murder, double jeopardy was not violated by
the district court sentencing Aquart to concurrent 40-year prison
sentences both for § 848(e)(1)(A) murders and for a predicate § 846 drug
conspiracy.

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Accordingly, we AFFIRM in all respects the November 1, 2021 judgment of
conviction entered against Aquart in this case.

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