United States v. Aquart, No. 12-5086-cr

CourtU.S. Court of Appeals — Second Circuit
Citation912 F.3d 1
Docket NumberNo. 12-5086-cr,August Term 2016
Parties 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.
Decision Date20 December 2018

912 F.3d 1

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.

No. 12-5086-cr
August Term 2016

United States Court of Appeals, Second Circuit.

Argued: August 29, 2016
Decided: December 20, 2018


TABLE OF CONTENTS

BACKGROUND...10

I. The Guilt Phase of Trial...10

A. The Prosecution Case...10

1. The Aquart Drug Enterprise...10

2. The Murders of Tina Johnson, James Reid, and Basil Williams...10

a. Tina Johnson Interferes with Aquart’s Drug Enterprise ...10

b. Planning the Murders...10

c. The August 24, 2005 Murders...11

d. Discovery of the Murder Victims ...11

e. Forensic Evidence...12

f. Post-Murder Inculpatory Evidence...12

(i) Lashika Johnson Testifies to Aquart’s Efforts To Destroy Evidence and to Efrain Johnson’s Admissions...12

(ii) Aquart Admits Destroying Evidence...13

(iii) Aquart’s Efforts To Obstruct Justice...13

B. The Defense Case...14

C. Verdict...14

II. The Capital Penalty Phase of Trial...14

A. The Prosecution Case...14

B. Defense Mitigating Factors...15

C. The Penalty Verdict...16

D. Sentence...16

DISCUSSION...16

I. Guilty Verdict Challenges...17

A. Sufficiency Challenge to VICAR Counts ...17

1. Interstate Commerce Nexus ...17

2. Motive...19

B. Perjury Challenges to Conviction...20

1. John Taylor...21

2. Lashika Johnson...24

912 F.3d 9

C. Prosecutorial Misconduct in Summation...27

II. Sentencing Challenges ...29

A. Standard for Reviewing Unpreserved Sentencing Challenges...29

B. Prosecutorial Misconduct Pertaining to Efrain Johnson Evidence...31

1. Improper Vouching...32

2. Misleading Characterization of Plea Allocution....39

3. Denigrating Defense Strategy....41

C. Sufficiency Challenge ...44

1. Substantial Planning and Premeditation Aggravator...45

2. Multiple Killings Aggravator ...46

D. Constitutionality Challenges to Death Penalty....48

1. Per Se Eighth Amendment Challenge...48

2. Proportionality Challenge...51

a. Judicial Proportionality Review Is Not Constitutionally Mandated for Capital Sentences Under the Federal Death Penalty Act...51

b. Aquart’s Death Sentence Is Not Constitutionally Disproportionate...53

3. Arbitrariness Challenge....54

4. Necessary and Proper Clause Challenge ...57

5. "Originalist" Challenge...62

a. Extending Capital Punishment to VICAR and CCE Murders...62

b. Federalism and the Federal Death Penalty in Connecticut...65

CONCLUSION...69

Early on the morning of August 24, 2005, drug dealer Azibo Aquart, together with his brother Azikiwe Aquart and confederates Efrain Johnson and John Taylor, donned masks and, at gunpoint, forced their way into perceived drug competitor Tina Johnson’s apartment in Bridgeport, Connecticut, whereupon the men restrained her as well as fellow occupants James Reid and Basil Williams before bludgeoning all three to death with baseball bats.1 After a five week trial in the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge ), the jury found Aquart guilty of conspiracy to commit violent crimes in aid of racketeering ("VICAR"), specifically, murder, see 18 U.S.C. § 1959(a)(5) ; conspiracy to traffic cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846 ; and six substantive crimes punishable by a possible death sentence: three for VICAR murder, see 18 U.S.C. § 1959(a)(1), and three for murder in connection with a continuing criminal drug enterprise ("CCE murder"), see 21 U.S.C. § 848(e)(1)(A). A capital penalty proceeding followed at which the same jury unanimously voted for a death sentence on the two VICAR and two CCE murder counts pertaining to the murders of Tina Johnson and Basil Williams, but not for these crimes as pertaining to James Reid.

Aquart here appeals both his conviction and his death sentence. As to conviction, he argues that (1) the trial evidence was insufficient to support guilty verdicts on any of the charged VICAR counts, (2) the prosecution suborned perjury by witnesses John Taylor and Lashika Johnson, and (3)

912 F.3d 10

he was prejudiced by prosecutorial misconduct in summation. As to sentence, Aquart’s challenges fall into three categories: (1) prosecutorial misconduct at the penalty phase, (2) insufficiency of the evidence as to certain identified aggravating factors, and (3) unconstitutionality of the death penalty both generally and as applied to his case.

The panel affirms Aquart’s conviction but, based on prosecutorial error, vacates his death sentence and remands the case for a new penalty hearing.

BACKGROUND

I. The Guilt Phase of Trial

A. The Prosecution Case

1. The Aquart Drug Enterprise

The trial evidence, viewed most favorably to the jury’s verdict, showed that from at least the fall of 2004 through August 2005, Aquart headed a drug distribution enterprise in Bridgeport, Connecticut, whose base of operations was Apartment 211 at 215 Charles Street. There, Aquart or one of his lieutenants would deliver pre-packaged crack cocaine to dealers and receive drug sale proceeds from them in return.

Aquart maintained tight control over his enterprise, making frequent unannounced visits to the Charles Street apartment to ensure that drugs and sale proceeds were properly accounted for and that the organization’s rules were followed. Departures from the rules brought swift and often violent consequences. Dealers who could not properly account for proceeds from crack given to them for sale or who presumed to sell drugs obtained from other sources had their noses broken or knees dislocated, often by Aquart himself.

2. The Murders of Tina Johnson, James Reid, and Basil Williams

a. Tina Johnson Interferes with Aquart’s Drug Enterprise

In the summer of 2005, Tina Johnson and her boyfriend James Reid moved into Apartment 101 at 215 Charles Street, where their friend Basil Williams was already living. Tina Johnson and Reid started purchasing crack from Aquart’s dealers in Apartment 211. Later in the summer, however, when the quality of the crack sold from Apartment 211 declined, Tina Johnson sought out another supplier, and she began selling small packets of the crack she acquired from that other source out of Apartment 101, attracting some customers of the Aquart enterprise.

Prosecution witness Rodney Womble, a former Aquart lieutenant, testified that he alerted his boss to Tina Johnson’s activities, prompting Aquart to confront her directly and to tell her that she had "better quit" selling crack in competition with him because he was "not playing." Gov’t App’x 290. Tina Johnson ignored the warning, even when reiterated by Womble in a heated argument during which he brandished a table leg. Indeed, Tina Johnson told Womble that if she could not sell crack at Charles Street, "nobody is selling" because she would call the police and shut down Aquart’s operation. Id. at 373. Womble reported this message to Aquart, who replied that he would "take care of it." Id.

b. Planning the Murders

In late August of 2005, Aquart recruited John Taylor, one of his marijuana dealers, and Efrain Johnson, the brother of Aquart’s then-girlfriend Lashika Johnson, to help with "something." Id. at 569. Aquart did not immediately specify the nature of the task, but he promised Taylor—who testified for the prosecution—a place to

912 F.3d 11

sell drugs in the Charles Street apartment building.

A few days later, Aquart, accompanied by his brother Azikiwe Aquart and Taylor, purchased rolls of duct tape at a Walgreens store. The three men proceeded to the parking lot of a diner adjacent to 215 Charles Street, where they met Efrain Johnson. Taylor testified that Aquart there explained that people in the apartment building were "into his money business" and that he wanted to "take them out or move them out ... of the building." Id. at 573. Azikiwe Aquart proceeded to supply the men with face masks and latex gloves while Efrain Johnson produced two baseball bats, giving one to Azikiwe Aquart and keeping one for himself. All four men then entered 215 Charles Street intent on entering Apartment 101. They abandoned their effort, however, after seeing a woman knock on the door of that apartment with no answer.

c. The August 24, 2005 Murders

Very early in the morning on August 24, 2005, the same four men met again in the underground parking lot on Charles Street. Referring to Tina Johnson, Aquart reported, "I know she’s there now." Id. at 577. As before, Azikiwe Aquart distributed masks and latex gloves...

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    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 18, 2021
    ...[a] sufficiency analysis because it is the task of the jury, not the court, to choose among competing inferences.” United States v. Aquart, 912 F.3d 1, 44-45 (2d Cir. 2018) (quoting United States v. MacPherson, 424 F.3d 183, 190 (2d Cir. 2005)) (citing Cavazos v. Smith, 565 U.S. 1, 7 (2011)......
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