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 STATES OF AMERICA, 

Appellee,

v. 

AZIBO AQUART, AKA D., AKA DREDDY, AKA JUMBO, AKA AZIBO SMITH, 

AKA AZIBO SIWATU JAHI SMITH, 

Defendant-Appellant, 

AZIKIWE AQUART, AKA ZEE, NATHANIEL GRANT, AKA

CORRECTIONAL OFFICER STONE, EFRAIN JOHNSON, 

Defendants. 

__________ 

On Appeal from the United States District Court

for the District of Connecticut

__________ 

ARGUED: MAY 9, 2023 

DECIDED: JANUARY 29, 2024 

________________ 

Before: LIVINGSTON, Chief Judge, RAGGI, and CARNEY, 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 
2

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.

AFFIRMED.

_________________

DANIEL HABIB, 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 LALLI CORONADO, 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.

_________________
3

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 
4

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 
5

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 
6

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.
7

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 
8

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 lawof-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, 
9

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 
10

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-thecase 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 
11

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 
12

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.
13

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.
14

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:
15

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.
16

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”).
17

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 
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 
19

“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 
20

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 
21

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 
22

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 
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. CONST. 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 
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-afirearm 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).
25

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 drugrelated 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, 53a54c.

August 2010: Notice of intent to seek death penalty filed for substantive drugrelated murders.

March 2011: Jury selection begins.
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).
27

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.
28

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
29

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.
30

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 
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. CONST.

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 
32

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). 
33

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. 
34

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.
35

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 
36

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).
37

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 drugrelated 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 
38

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 
39

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. 
40

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. 
41

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 drugoffense 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. 
42

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
43

“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.
44

 Accordingly, we AFFIRM in all respects the November 1, 2021 judgment of 

conviction entered against Aquart in this case.