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., 912 F.3d 1

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 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.

After a five week trial in the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge ), the jury found Aquart guilty of conspiracy to commit violent crimes in aid of racketeering ("VICAR"), specifically, murder, see 18 U.S.C. § 1959(a)(5) ; conspiracy to traffic cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846 ; and six substantive crimes punishable by a possible death sentence: three for VICAR murder, see 18 U.S.C. § 1959(a)(1), and three for murder in connection with a continuing criminal drug enterprise ("CCE murder"), see 21 U.S.C. § 848(e)(1)(A).

A capital penalty proceeding followed at which the same jury unanimously voted for a death sentence on the two VICAR and two CCE murder counts pertaining to the murders of Tina Johnson and Basil Williams, but not for these crimes as pertaining to James Reid. Aquart here appeals both his conviction and his death sentence. As to conviction, he argues that (1) the trial evidence was insufficient to support guilty verdicts on any of the charged VICAR counts, (2) the prosecution suborned perjury by witnesses John Taylor and Lashika Johnson, and (3) he was prejudiced by prosecutorial misconduct in summation.

As to sentence, Aquart's challenges fall into three categories: (1) prosecutorial misconduct at the penalty phase, (2) insufficiency of the evidence as to certain identified aggravating 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 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 to everyone, and he and Efrain Johnson took possession of two baseball bats. The four men proceeded to enter the apartment building through the garage and to climb the stairwell to Tina Johnson's floor. Taylor saw Aquart draw a gun as he approached the door to Apartment 101 and proceeded to kick it in, breaking the doorframe. Inside the apartment, Aquart brandished the gun and shouted, "get on the ground." Id. at 579. Basil Williams instead retreated to his bedroom, followed by Efrain Johnson.

Meanwhile, the Aquart brothers ran into the adjacent bedroom, where they found Tina Johnson and James Reid. Taylor remained in the living room, blocking the front door with a couch and keeping watch at a window. As he did so, Taylor heard the sound of duct tape being pulled off a roll. Looking into one of the bedrooms, he saw Aquart and Azikiwe Aquart using the duct tape to restrain Tina Johnson and Reid. Taylor returned to the living room and, after a brief silence, heard a muffled, high-pitched cry.

Looking into the bedroom, Taylor saw Azikiwe Aquart bludgeoning Reid with one of the baseball bats while Aquart did the same to Tina Johnson, "standing over [her] body bashing her like he was ... at a meat market, beating [her]." Id. at 626. When Taylor questioned what Aquart was doing, he replied, "Yo, come and get you some." Id. at 581. Instead, Taylor stated that he was "out of [t]here," whereupon he pushed the couch away from the front door and left the apartment. Id.

A short while later, Azikiwe Aquart also left the apartment, taking with him Aquart's gun, Tina Johnson's cell phone, and some money found in the apartment. When these two men reconnected, Azikiwe Aquart asked Taylor if he had "hear[d] the people say our names"; Taylor replied that he had not. Id. at 582. d. Discovery of the Murder Victims The prosecution offered no further eyewitness testimony as to what happened in Apartment 101 after Taylor's departure. It offered considerable evidence, however, as to the state of the victims' bodies when they were discovered the next morning.

Tina Johnson's adult son, Leroy Whittingham, testified that he went to Apartment 101 at approximately 10:00 a.m. on the morning of the murders. When his knocks went unanswered, he gained entry to the apartment through an open window. Inside, he found his mother and Reid lying dead on the floor in one bedroom, with Williams dead in another bedroom, all three victims bound with duct tape. The bedrooms were covered in blood, and the living room looked as if there had been "a war in there." Id. at 23.

Whittingham tried to exit the apartment through the front door to get help, but he found that it had been drilled shut from the inside. Instead, he jumped out of an apartment window and, with the assistance of a neighbor, called 911. e. Forensic Evidence Law enforcement authorities responded to the 911 call and, over the course of the next three days, collected forensic evidence inside Apartment 101. First-responder testimony and crime-scene evidence showed that all three murder victims had their hands and feet bound with duct tape. Duct tape was also wrapped tightly around their heads and mouths.

Medical examination showed that Tina Johnson died from "blunt force trauma," having suffered repeated blows to her head, administered with sufficient force to cause multiple skull fractures, among other injuries. Id. at 440. Reid and Williams also died from "blunt traumatic head injury," with multiple skull fractures. Id. at 113, 988-89. Despite the killers' having worn gloves, subsequent fingerprint analysis was able to link Azikiwe Aquart to two plastic bags (one from Walgreens) recovered from Williams's bedroom, and to link Aquart to a piece of duct tape holding the two bags together.

Subsequent DNA analysis linked Efrain Johnson to a latex glove fragment stuck in duct tape cut from Tina Johnson's hands and wrists. DNA analysis also linked various retrieved evidentiary fragments-somewhat more qualifiedly-to Azibo and Azikiwe Aquart as well as to the three victims. On some retrieved fragments, examiners found more than one person's genetic markers. On other fragments, examiners could not eliminate Aquart, Taylor, or the victims as DNA contributors. f. Post-Murder Inculpatory Evidence (

i) Lashika Johnson Testifies to Aquart's Efforts To Destroy Evidence and to Efrain Johnson's Admissions Lashika Johnson, the sister of Efrain Johnson and, in August 2005, Aquart's girlfriend, testified that, on the morning of August 24, 2005, she awoke to find both Aquart brothers and her own brother in her apartment. The Aquart brothers were wearing only their underwear. Aquart proceeded to give her some garbage bags containing clothing and a black drill, which he told her to throw in a dumpster.

Aquart further ordered Lashika Johnson to drive his car to his apartment, to park it in a manner that suggested he had been home all day and night, and then to retrieve some clothes for him. When Lashika Johnson had performed these tasks and returned to her apartment, only Aquart was still there. He received a call on his cell phone during which Lashika Johnson heard him say, "why would you take a cell phone from ... why would you be calling me from this cell phone[?]" Id. at 723.

Telephone records showed that at 10:25 a.m. on the morning of the August 24 murders-after Tina Johnson's dead body had already been discovered by her son-Aquart's cell phone was called by Tina Johnson's cell phone, which Azikiwe Aquart had taken from the murder scene. Lashika Johnson further testified that sometime later, but before his own arrest, her brother discussed the events of August 24 with her. Efrain Johnson admitted being in Apartment 101 that morning with the Aquart brothers and an unnamed fourth person (Taylor) who did not live in Bridgeport.

Efrain Johnson said that he had "helped tie the people up and rough them up a little bit," but he maintained that the occupants were "still alive" when he left the apartment, leaving only Aquart with the victims. Id. at 727-28.

Efrain Johnson further reported that the men had gotten rid of the gloves, masks, and bats used in the attack before arriving at his sister's apartment on the morning of August 24. (ii) Aquart Admits Destroying Evidence In September 2005, while in the Bridgeport Correctional Center, Aquart (arrested for violating parole) told Taylor (arrested for selling drugs) that he had had his "baby momma g[e]t rid of the weapons" from the night of the murders, an apparent reference to Shante Pettway. Id. at 586. (iii) Aquart's Efforts To Obstruct Justice Aquart was arrested in this case in 2007.

In 2009-10, while incarcerated awaiting trial, he engaged in various efforts to obstruct justice, manifesting consciousness of guilt. In October 2009, Aquart wrote to Venro Fleming, a member of his drug organization, stating that if federal authorities contacted Fleming, he should say that there was no "gang" working for Aquart and that "EVERYONE DID THEIR OWN THING." Id. at 1941 (capitalization in original). Aquart explained that this was important because the charge against him was conspiracy, which means "when TWO OR MORE people get together to do something illegal.

If people were doing what they do on their own, there is no conspiracy. ..." Id. (capitalization in original). Aquart told Fleming to pass this message on to others from Charles Street: "let them know the deal if you care about them," concluding that he hoped Fleming "got the message." Id. at 1942. In early 2010, Aquart told Shamarr Myers, a convicted drug dealer whom Aquart had befriended while incarcerated, that he had sold crack in Bridgeport, but had had some problems with others selling crack in the same building and decided, first, that "they had to go" but, eventually, that "they had to die." Id. at 911.

Soliciting Myers's help, Aquart prepared a letter detailing exactly what Myers was to do. Among the urged actions was for Myers to have a "courtroom outburst" when testifying at Aquart's trial. Id. at 1936. Specifically, Myers was to declare that "[e]verybody" knew that "Letho" had killed Tina Johnson, Reid, and Williams, and that Letho had confessed as much to Myers's friend "Simone." Id. The letter told Myers to "point [his] finger at pros[ecutors] and agents at the table" and testify that they had solicited his testimony against Aquart without caring whether Myers actually knew anything about the murders.

Id. at 1938. Myers was further to say that these officials had told him that all he had to do was remember what they told him about "people's names, dates, times," and "about ... bags and bats," in return for which they would arrange for his early release from prison. Id. Instead, Myers brought Aquart's communication to the attention of the authorities and testified as a prosecution witness. B. The Defense Case The defense called various law enforcement officials to testify to inconsistent pre-trial statements made by various witnesses cooperating with the government, including Lashika Johnson and John Taylor.

It urged the jury not to find these witnesses credible insofar as they inculpated Aquart. Indeed, the defense insinuated that Taylor was not even in Apartment 101 at the time of the murders and, thus, could not credibly testify to who was then inside the apartment or to what had happened. C. Verdict On May 23, 2011, the jury found Aquart guilty on the six capital and two non-capital charges against him.

The case then proceeded to a capital penalty proceeding on the three VICAR murder counts as to Tina Johnson, Reid, and Williams (Counts Two, Three, and Four), and the three CCE murder counts as to the same victims (Counts Five, Six, and Seven). II. The Capital Penalty Phase of Trial A. The Prosecution Case In urging the death penalty, the prosecution maintained that Aquart was over 18 at the time of the charged murders and that he had acted with the requisite culpable intent, as required by 18 U.S.C. § 3591(

a) and 21 U.S.C. § 848(n)(1) (1996).

Further, it relied on five statutory aggravating factors, specifically, that Aquart had (1) committed each proved murder in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse; (2) procured commission of the murders by payment, promise of payment, or anything of pecuniary value; (3) committed the murders in consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; (4) committed the murders after substantial planning and premeditation to cause the deaths of the victims; and (5) intentionally killed more than one person in a single criminal episode.

See 18 U.S.C. § 3592(c) ; 21 U.S.C. § 848(n) (1996). It also relied on two non-statutory aggravating factors:

(6) Aquart's engagement in a continuing pattern of violent criminal conduct posing a serious threat to the lives and safety of persons in addition to the three murdered victims; and (7) the severe and irreparable harm the murders caused the victims' families. In support of these factors, the prosecution relied on the evidence already adduced at the guilt phase of trial.

In addition, as to the first statutory factor-the heinous, cruel, and depraved manner of the murders-the prosecution offered expert testimony that blood stain patterns on the walls and ceiling of the bedroom where Tina Johnson and Reid were found dead indicated that these victims were beaten "many, many times," from multiple angles, and with a "great amount of force." Gov't App'x 1182, 1184.

Moreover, the object used to administer the beating had to have had a sufficient surface area to hold a large amount of blood and had to have been long enough that, when raised, it would propel so much blood onto the ceiling that it subsequently flowed down the walls. The same expert testified that the majority of blood stains in Williams's room were in the area around his head.

In support of the first non-statutory factor-Aquart's pattern of violence-the prosecution supplemented its guilt phase evidence of four assaults with proof of two further incidents-one while Aquart was at liberty, the other while he was detained-where he had attacked persons with sufficient force that they required hospital treatment. In support of the second non-statutory factor-familial harm-the prosecution offered the live testimony of six relatives of the deceased victims as well as letters from many more. B.

Defense Mitigating Factors Aquart presented the jury with 28 factors mitigating against a death sentence. Nineteen concerned hardships and privations he experienced as a child, including his parents' drug dealing, his father's imprisonment and deportation when Aquart was 11, and his mother's drowning death when Aquart was 12, after which he failed to receive adequate care and supervision.

Other mitigating factors included an assertion that the victims' own drug trafficking contributed to their deaths, the fact that confederates Taylor and Efrain Johnson were not facing the death penalty, the life sentence Aquart would serve if the jury did not vote for death, and the ability of the Bureau of Prisons to confine Aquart safely and securely for life. In support of his mitigator about the lesser penalties faced by Taylor and Efrain Johnson, Aquart called FBI Agent Christopher Munger to testify to accounts of the murders provided by Efrain Johnson in various interviews.

In these statements, Efrain Johnson acknowledged that he, Aquart, Azikiwe Aquart, and Taylor (referred to only as "the Big Dude") were the four men who entered Apartment 101 on August 24, 2005. But he attributed a larger role in the crime to Taylor than Taylor had admitted during his testimony. Specifically, Efrain Johnson stated that it was Taylor who had led the push into the apartment and that it was Taylor who had ordered Efrain Johnson to bind Tina Johnson (identified by Efrain Johnson only as "the woman") with duct tape.

Meanwhile, the Aquart brothers pushed a man unknown to Efrain Johnson into one of the back bedrooms. When Taylor grew frustrated with how long it was taking Efrain Johnson to restrain Tina Johnson, Taylor took the duct tape and completed the task himself. Efrain Johnson further told law enforcement officials that it was Taylor who punched Tina Johnson in the face when she started screaming, and who beat her in the head with a two-inch thick, ten-inch long metal pipe that he pulled from the side of his pants.

Efrain Johnson stated that it was at that point that he ran out of the apartment and waited in a car for the others to leave the apartment. C. The Penalty Verdict After three days of deliberation, the jury returned its penalty verdict, unanimously finding that Aquart should be sentenced to death for the racketeering and drug related murders of Tina Johnson and Basil Williams. The jury was unable to reach unanimity as to whether Aquart should be sentenced to death for the murder of James Reid.

In the special verdict informing its decision, the jury reported unanimously finding that the government had established each of the five statutory aggravating factors and each of the two non-statutory aggravating factors beyond a reasonable doubt. It reported unanimously finding 25 of the defense's 28 mitigating factors proved by the requisite preponderance of the evidence. Among the mitigators unanimously found so proved was the fact that other participants in the murders-specifically, Taylor and Efrain Johnson-were not facing the death penalty.

As to the remaining three mitigators, nine jurors were persuaded that Aquart lacked adequate parental supervision throughout his childhood, two found that he lacked meaningful adult supervision from the time of his mother's death, and nine found that he was exposed to emotional and physical abuse inflicted on his mother. The jury itself unanimously identified as another mitigator the fact that Aquart had a child. The jury nevertheless found beyond a reasonable doubt that the aggravating factors sufficiently outweighed the mitigating factors to warrant a death sentence. D.

Sentence After rejecting various defense motions for a new trial or penalty proceeding, the district court, on December 18, 2012, sentenced Aquart to death on Counts Two and Five for the VICAR and CCE murder of Tina Johnson, and on Counts Four and Seven for the VICAR and CCE murder of Basil Williams. It sentenced the defendant to consecutive life sentences on Counts Three and Six for the VICAR and CCE murder of James Reid, and on Count Eight for conspiracy to traffic in 50 grams or more of crack cocaine. It imposed a further consecutive prison sentence of ten years for VICAR conspiracy to murder.

This timely appeal followed. DISCUSSION Before addressing Aquart's capital sentence, we consider his challenges to the guilty verdict and unanimously affirm that part of the judgment of conviction. I. Guilty Verdict Challenges A. Sufficiency Challenge to VICAR Counts Aquart argues that the evidence was insufficient as a matter of law to support a guilty verdict on the single conspiracy and three substantive VICAR counts for which he stands convicted.

While we examine a sufficiency challenge de novo , the defendant bears a heavy burden because we must view the evidence "in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor, and deferring to the jury's assessment of witness credibility and its assessment of the weight of the evidence." United States v. Sheehan , 838 F.3d 109, 119 (2d Cir. 2016) (internal quotation marks omitted). In doing so, we consider the evidence "in its totality, not in isolation," United States v.

Aguiar , 737 F.3d 251, 264 (2d Cir. 2013) (internal quotation marks omitted), and we "will sustain the jury's verdict if 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,' " United States v. Pierce , 785 F.3d 832, 837 (2d Cir. 2015) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in Jackson ) ). Aquart does not here dispute the sufficiency of the evidence to prove that, together with others, he conspired to, and did in fact, murder Tina Johnson, James Reid, and Basil Williams.

Rather, he submits that the evidence failed to establish either (

a) VICAR's jurisdictional requirement of an interstate commerce nexus or (

b) its motive requirement that the murders have been committed to maintain or increase Aquart's position in the charged drug enterprise. The argument is defeated by both controlling law and the evidentiary record. 1. Interstate Commerce Nexus To secure conviction on any of the four VICAR counts, the government was required to prove that Aquart's racketeering enterprise "engaged in," or that its "activities ... affect[ed], interstate or foreign commerce." 18 U.S.C. § 1959(b)(2). This burden is not a heavy one, and can be satisfied by "even a de minimis effect on interstate commerce." United States v.

Mejia , 545 F.3d 179, 203 (2d Cir. 2008) ; see also United States v. Davila , 461 F.3d 298, 306 (2d Cir. 2006). Such an effect was here shown by evidence that Aquart and enterprise confederates used firearms and ammunition that had crossed state lines in furthering their criminal objectives. Toward the same end, they used instrumentalities of commerce to travel interstate. See United States v. Mejia , 545 F.3d at 203-04 (ruling that enterprise members' purchase of firearms that had crossed state lines as well as their own interstate travel to conduct enterprise-related activities satisfy interstate nexus).

But more, the requisite interstate commerce was here satisfied by evidence that the enterprise trafficked in crack cocaine. In Gonzales v. Raich , 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), and more recently in Taylor v. United States , --- U.S. ----, 136 S.Ct. 2074, 195 L.Ed.2d 456 (2016), the Supreme Court has recognized that drug trafficking, even local trafficking, is "part of an economic 'class of activities' that have a substantial effect on interstate commerce." Gonzales v.

Raich , 545 U.S. at 17, 22, 125 S.Ct. 2195 (recognizing Congress's Commerce Clause authority to criminalize production, possession, and sale of controlled substances, even when activity is purely local); accord Taylor v. United States , 136 S.Ct. at 2080 (applying Raich to Hobbs Act drug robberies). In the interval between these decisions, this court reached a similar conclusion in rejecting a sufficiency challenge to the interstate commerce element of the Hobbs Act. See United States v. Needham , 604 F.3d 673, 680-81 (2d Cir. 2010). The charged Hobbs Act robberies in Needham targeted heroin and cocaine supplies.

Observing that such drugs "necessarily travel in interstate commerce," we concluded that a jury was entitled to infer, based simply on its lay knowledge, and unassisted by expert testimony, that such drugs are imported into the United States so as to affect interstate and foreign commerce. Id. at 680-81 ; see United States v. Gomez , 580 F.3d 94, 102 (2d Cir. 2009).

No different sufficiency conclusion is warranted here because the interstate commerce element is part of the VICAR statute, see 18 U.S.C. § 1959 (pertaining to enterprise "engaged in, or the activities of which affect, interstate or foreign commerce"), rather than the Hobbs Act, see id. § 1951 (pertaining to robbery that "affects commerce"). Both statutes fall within

Chapter 95 of Title 18, entitled "Racketeering," and this court has drawn on Hobbs Act precedent in rejecting a sufficiency challenge to VICAR's interstate commerce element. See United States v. Mapp , 170 F.3d 328, 336 (2d Cir. 1999) (rejecting sufficiency challenge to § 1959 VICAR conviction by reference to United States v. Taylor , 92 F.3d 1313, 1333 (2d Cir. 1996) ).

In any event, insofar as the murder of a rival drug dealer completely removes a competitor from the market, whereas the robbery of such a dealer's supply does so only to a degree, we conclude that VICAR murders to preserve a drug trafficking monopoly, as here, affect interstate commerce as much as the Hobbs Act drug robberies at issue in Needham . Aquart argues nonetheless that Needham runs afoul of Apprendi v.

New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in that a "presumption" that cocaine travels in interstate commerce "effectively absolves the jury from finding" that fact as "an element of the offense." Appellant's Br. 229. The argument fails because Needham does not establish a presumption; rather, it permits an inference. See United States v. Needham , 604 F.3d at 679-80. The jury must still find proved the facts that support the inference. See id. at 678. As the Supreme Court explained in Taylor v.

United States , the standard of proof cannot be confused with the element that must be proved. 136 S.Ct. at 2080. Both VICAR and the Hobbs Act include a commerce element, which the government must establish beyond a reasonable doubt, "but the meaning of that element is a question of law." Id. Thus, in the Hobbs Act context, "if the Government proves beyond a reasonable doubt that a robber targeted a ... dealer's drugs or illegal proceeds," Taylor holds that "the Government has proved beyond a reasonable doubt that commerce over which the United States has jurisdiction was affected." Id. at 2080-81.

So in the VICAR context here, if the government adduced sufficient evidence to prove that Aquart and his confederates murdered a perceived drug rival, the government has carried its burden to prove that the murder affected interstate commerce. As detailed supra , Background

Section I.A., the government offered ample evidence-from former enterprise members, cooperating witnesses, and law enforcement officers-that the primary focus of the Aquart enterprise was drug trafficking; the enterprise exercised exclusive control over the distribution of crack cocaine at 215 Charles Street; in 2005, enterprise leader Aquart perceived Tina Johnson as a drug rival who threatened the enterprise's monopoly; and Aquart murdered Tina Johnson and two others in order to eliminate that competition.

Under controlling Supreme Court and circuit precedent, such evidence, viewed most favorably to the government, sufficed to prove beyond a reasonable doubt "that commerce over which the United States has jurisdiction was affected" by the charged VICAR murders. Id. at 2081 ; see United States v. Needham , 604 F.3d at 680-81. 2.

Motive Although Aquart does not challenge the proof of either his participation in the charged murders or his leadership of the racketeering enterprise, he argues that the evidence was insufficient to link the two so as to establish the requisite motive, specifically, that Aquart murdered "for the purpose of ... maintaining or increasing [his] position" in the racketeering enterprise. 18 U.S.C. § 1959(a).

This argument fails because VICAR's motive element can be satisfied by evidence that allows a jury to "infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership." United States v. Dhinsa , 243 F.3d 635, 671 (2d Cir. 2001) (internal quotation marks omitted).

Thus, we have affirmed VICAR convictions where violent crimes are "committed or sanctioned by high ranking leaders of the enterprise for the purpose of protecting the enterprise's operations and furthering its objectives." Id. That is this case. Various witnesses testified to Aquart's expressed frustration with Tina Johnson's sale of crack cocaine on what he perceived to be his enterprise's territory, and with her defiance of his orders to stop such sales.

The jury heard confederate Taylor testify that Aquart explained to his murder accomplices, as they were about to enter Apartment 101, that the defendant needed to get occupant Tina Johnson out of "his money business." Gov't App'x 573. They heard Shamarr Myers testify that, after the murders, Aquart had told him that persons who had attempted to sell drugs in competition with him "had to die." Id. at 911.

Such evidence was sufficient for a reasonable jury to conclude that Aquart orchestrated and participated in the charged VICAR crimes in order to "protect[ ] the enterprise's operations and further[ ] its objectives." United States v. Dhinsa , 243 F.3d at 671. Aquart acknowledges that Dhinsa defeats the motive prong of his VICAR sufficiency challenge, but he urges that Dhinsa should be overruled because its holding "cannot be squared with the plain language of § 1959, which ... sweeps more narrowly to cover only a defendant's own personal position." Appellant's Br. 229-30.

The proposition that VICAR's motive element is satisfied by proof that a defendant committed the crime "because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership" was first announced in United States v. Concepcion , 983 F.2d 369, 381 (2d Cir. 1992), and is well-settled in this circuit, see United States v. Dhinsa , 243 F.3d at 671-72 (collecting cases). This panel is bound by that precedent and not inclined, in any event, to depart from it. See Lotes Co. v. Hon Hai Precision Indus.

Co. , 753 F.3d 395, 405 (2d Cir. 2014) (reiterating rule that "a panel of this Court is bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court" (internal quotation marks omitted) ). Moreover, we conclude that the motive element would be satisfied even under Aquart's narrow reading of the statute.

He was the leader of the charged enterprise, and the evidence was sufficient to allow a reasonable jury to infer that he "was expected to act based on the threat posed to the enterprise" by Tina Johnson's drug sales, "and that failure to do so would have undermined his position within that enterprise." United States v. Dhinsa , 243 F.3d at 671 (emphasis added); see United States v. Diaz , 176 F.3d 52, 95-96 (2d Cir. 1999). Thus, defendant's sufficiency challenge to his VICAR convictions fails on the merits. B.

Perjury Challenges to Conviction Aquart argues that all counts of conviction were tainted by the perjured testimony of prosecution witnesses John Taylor and Lashika Johnson, specifically, by Taylor's understatement of his expectations for sentencing consideration and by Lashika Johnson's denial of prosecution threats during a proffer session. To pursue relief from conviction based on claimed perjury, Aquart must make a threshold showing that each of these witnesses in fact willfully testified falsely and that the falsehoods were not known to him at the time of trial. See United States v.

Stewart , 433 F.3d 273, 297 (2d Cir. 2006) ; see also United States v. Monteleone , 257 F.3d 210, 219 (2d Cir. 2001) (stating that "witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory"). Such a showing does not, by itself, warrant a new trial. See United States v. Stewart , 433 F.3d at 297.

At that point, the court must "strike a fair balance between the need for both integrity and finality in criminal prosecutions." Id. (internal quotation marks omitted). To do that, the court must assess the materiality of the false statements, applying one of two standards depending on the prosecution's awareness of the falsehoods at the time of trial. If the prosecution knew, or should have known, of the false testimony prior to the conclusion of trial, the conviction must be set aside if there is "any reasonable likelihood" that the testimony could have affected the jury's judgment. United States v.

Cromitie , 727 F.3d 194, 221-22 (2d Cir. 2013) (internal quotation marks omitted) (collecting cases). If the government was unaware of the falsity at the time of trial, a new trial is warranted if the court is left with the "firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." United States v. Stewart , 433 F.3d at 297 (internal quotation marks omitted). Applying these principles here, we conclude that neither of Aquart's perjury claims warrants relief. 1.

John Taylor At the time Taylor testified at Aquart's trial, he himself had pleaded guilty to three substantive VICAR counts pursuant to a plea agreement that allowed him to face three mandatory life sentences rather than the death penalty. See 18 U.S.C. § 1959(a)(1). Taylor had also entered into a cooperation agreement that held out the possibility of a government motion for a lesser, non-mandatory sentence if Taylor provided "substantial assistance in the investigation or prosecution of another person." Gov't App'x 1819 (citing 18 U.S.C. § 3553(e), U.S.S.G. § 5K1.1 ).

At the conclusion of Taylor's direct examination, the government elicited the following testimony about Taylor's motives for testifying and his sentencing expectations: Prosecution: Why are you testifying? Taylor: To tell the truth. Prosecution: Why? Taylor: People got killed for no reason. They shouldn't got killed. When I said they shouldn't got killed, it never should have gone to the point it went to. ... Prosecution: What are you hoping happens to you? Taylor: Lesser sentence. Prosecution: Do you think you are going to go home tomorrow? Taylor: No. Prosecution: When do you think you are going to go home?

Taylor: I don't think I'm never going home. Id. at 593-94. Aquart voiced no objection to these inquiries at trial. Nor did his attorney attempt to impeach any of Taylor's above-quoted responses despite a two-day-long cross-examination that repeatedly reminded the jury of various lies that Taylor had told law enforcement officers. See, e.g. , id. at 623-24. Instead, for the first time on appeal, Aquart suggests that Taylor's quoted statement-"I don't think I'm never going home"-falsely understated his expectations for sentencing consideration based on his cooperation.

Aquart concedes that, on the present record, he cannot make the showings necessary to secure a new trial based on perjured testimony. He submits that he should not now have to do so because he is not yet demanding a new trial, but only a hearing "to determine whether Taylor falsely understated his sentencing expectations." Appellant's Reply Br. 22. Because Aquart did not seek such relief in the district court, the government urges us to review only for plain error. See Fed. R. Crim. P. 52(b) ; United States v.

Marcus , 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (stating that defendant claiming plain error must show (1) error; (2) that is clear or obvious, rather than subject to reasonable dispute; (3) affecting his substantial rights; and (4) calling into question the fairness, integrity, or public reputation of judicial proceedings); see also United States v. Ferguson , 676 F.3d 260, 282 (2d Cir. 2011) (stating that plain error standard would apply to forfeited perjury claim).

Aquart maintains that plain error review is inapplicable because his attorney could not have requested a perjury hearing in the district court when he was not yet aware of facts supporting such a claim. See Fed. R. Crim. P. 51(b). Specifically, Aquart asserts that, at the time of trial, defense counsel did not know that a cooperator in another murder case (Mario Lopez), who had testified against a former client (Fausto Gonzalez) of Taylor's attorney, had received a five-year sentence in consideration of his cooperation.

Nor did Aquart's counsel then know that Taylor's attorney would reference Lopez's single-digit sentence in urging leniency at Taylor's own sentencing proceeding. Aquart argues that, on these facts, justice demands a perjury hearing because it is "unfathomable" that Taylor's counsel did not relay his knowledge of Lopez's sentence to Taylor, Appellant's Br. 103, and, thus, it is "virtually certain" that, when Taylor testified against Aquart, he knew that he could receive a considerably reduced sentence, making it false for him to state that he thought he would never be released from jail, id. at 101.

The reasoning is flawed in several respects. First, even if Aquart can avoid plain error review, he cannot avoid the "threshold" requirement to show actual falsity to secure judicial consideration-whether by hearing or otherwise-of a perjury challenge to conviction. United States v. Stewart , 433 F.3d at 297 (internal quotation marks omitted). It is such a showing that first tips the balance of judicial interest away from the finality of the judgment and toward a concern with the integrity of the conviction.

Once actual falsehood has been shown, hearings may determine when the parties knew (or should have known) of the falsehood and its materiality to the judgment. Such further inquiry determines what, if any, relief is warranted. But until actual falsity is shown, there is no concern for the integrity of the process requiring judicial hearings. See United States v. Sasso , 59 F.3d 341, 350-51 (2d Cir. 1995) (upholding denial of hearing regarding perjury by trial witness where defendants did not sufficiently establish that witness's statements were false).

Here, not only has Aquart failed to show that Taylor's challenged statement was false, but also, it is doubtful that the statement is even susceptible to proof of truth or falsity. It states no present or past matter of fact, such as the benefits identified in his cooperation agreement or discussed with him by government officials, his own lawyer, or the court. Rather, the statement is an expression of subjective belief about the likelihood of a future event. See United States v.

Stewart , 686 F.3d 156, 176 (2d Cir. 2012) (" 'To be false, the statement must be with respect to a fact or facts and the statement must be such that the truth or falsity of it is susceptible of proof.' " (quoting United States v. Endo , 635 F.2d 321, 323 (4th Cir. 1980) ) ). Second, and in any event, the facts Aquart adduces to support his perjury hypothesis do not compel a hearing. To begin, the murderous cooperator Lopez was sentenced on April 24, 2008, more than two years before Taylor's October 18, 2010 guilty plea, and more than three years before the May 4, 2011 start of Taylor's testimony against Aquart.

Thus, it is hardly "certain," as Aquart maintains, that Taylor's counsel-who did not represent Lopez, but a person against whom Lopez had cooperated-had both learned of Lopez's sentence and communicated it to Taylor before Taylor testified at Aquart's trial. Appellant's Br. 101, 103. Aquart can only speculate as to such matters, which is insufficient to warrant a hearing. See Haouari v. United States , 510 F.3d 350, 354 (2d Cir. 2007) (recognizing that "conclusory assertions" do not warrant evidentiary hearing on habeas petition (internal quotation marks omitted) ); United States v.

Watson , 404 F.3d 163, 167 (2d Cir. 2005) (same re: suppression hearing); United States v. Singh , 390 F.3d 168, 183-84 (2d Cir. 2004) (same re: challenge to warrant affidavit); United States v. Difeaux , 163 F.3d 725, 729 (2d Cir. 1998) (same re: sentencing hearing). Equally speculative, moreover, is Aquart's hypothesis that the government was aware of the alleged falsehood at the time of trial.

Because one of the prosecutors at his trial also appeared for the government in the Taylor, Lopez, and Gonzalez prosecutions, Aquart contends that the government (1) not only knew Lopez's sentence, but must have known (2) that Taylor's counsel had learned of Lopez's sentence, and (3) that Taylor's counsel told Taylor about Lopez's sentence before trial, so that (4) based on the information counsel provided, Taylor thought he, too, would receive a considerable sentencing reduction, and (5) falsely represented his release expectations at Aquart's trial.

No evidence supports the second through fifth links in this chain of alleged government knowledge. Indeed, even if we were to assume arguendo that, at a hearing, Aquart could show that Taylor knew of Lopez's sentence, and that the prosecutor was aware of Taylor's knowledge, that would not establish the falsity-much less the willful falsity-of Taylor's professed release expectations, nor the government's subornation of perjury. At the time of Aquart's trial, Taylor faced mandatory life imprisonment.

His ability to secure any lesser sentence was contingent on two events: (1) the government's filing of a motion pursuant to 18 U.S.C. § 3553(

e) and U.S.S.G. § 5K1.1, and (2) the district court's grant of that motion coupled with its determination that a sentence of less than life incarceration satisfied 18 U.S.C. § 3553(a). Neither of these events had occurred at the time Taylor testified, and Taylor knew from both his cooperation agreement and the district court's statements at the time of his guilty plea that he could not count on their occurrence.

See Gov't App'x 1819 (stating in cooperation agreement that determination whether to file motion for sentence reduction "rests solely with the Government" and that, even if motion is filed, district court "is under no obligation to grant or act favorably upon the motion"); id. at 1560 (confirming at plea allocution that no sentencing promises had been made to Taylor and advising that "no one knows what your sentence will actually be until it is imposed on the day of sentencing").

Thus, Taylor might well have thought that, until the requisite contingencies occurred, he faced a mandatory life sentence that would not allow him ever to go home. Construing Taylor's response as things stood at the time of his testimony-and not after possible future government and court action-is, moreover, consistent with its context. In response to a preceding question, "What are you hoping happens to you?," Taylor plainly acknowledged that he was hoping for a "[l]esser sentence." Id. at 594.

Taylor reiterated that hope on redirect, explaining that, in testifying at Aquart's trial, he was "looking for help" in his own case. Id. at 624. The profession of a pessimistic present release expectation cannot be deemed willfully misleading when thus coupled with acknowledged hope that, in the end, the witness would receive a lesser sentence. Any reasonable jury would have understood from the totality of Taylor's testimony that, however likely he then thought a life sentence, he retained the hope of receiving a lesser sentence by testifying against Aquart.

Thus, Taylor's professed release expectation did not deny the defense its argument that Taylor's motive in testifying against Aquart was to secure a reduced sentence. Indeed, a defense attorney might reasonably argue that Taylor's pessimistic release expectation gave him a greater motive to help the government obtain Aquart's conviction, because only such significant assistance could secure him relief from what he knew was otherwise a mandatory life sentence.

Further, the district court instructed Aquart's jury that the testimony of witnesses, such as Taylor, who had entered into cooperation agreements with the government, had to be considered "with particular caution" precisely because such agreements gave hope for reduced sentences. Id. at 1053-54. In short, the facts Aquart proffers on appeal about cooperator Lopez's reduced sentence in a different case do not support the urged possibility of perjury by Taylor, while Aquart's trial record actually undermines that hypothesis.

The same conclusion obtains with respect to Aquart's suggestion that the prosecution suborned perjury by Taylor. To be sure, cross-examination might have been used to challenge Taylor's professed release expectation, but that does not mean the testimony was false. In any event, Aquart's counsel, who pursued many lines of impeachment, chose not to cross-examine Taylor on this matter, and we are not persuaded by the argument that he could not meaningfully do so before learning facts pertaining to the Lopez sentence.

As already noted, moments before Taylor stated that he did not think he was ever going home, he admitted that he was "hoping" for a "lesser sentence." Id. at 594. This, by itself, provided a basis for cross-examination to insinuate that Taylor's hope belied his professed expectation. Aquart's failure to avail himself of this opportunity is a factor further weighing against his request for a hearing to explore the possibility of falsity. In sum, because

(1) Aquart fails to demonstrate that Taylor actually testified falsely and, indeed, offers little factual support for his claim of possible perjury; (2) the trial record shows that Taylor hoped for a reduced sentence; and (3) defense counsel chose not to use cross-examination to impeach Taylor on this issue despite an adequate opportunity to do so at trial, we conclude that the interests of justice do not here require a post-conviction hearing to explore whether Taylor understated his release expectations. 2.

Lashika Johnson Aquart's claim of perjury by Lashika Johnson arises in the context of his appeal from the district court's denial of his motion for a new trial. See Fed. R. Crim. P. 33. We review the denial of a new trial motion for abuse of discretion, which we will identify only if the district court's decision rests on an error of law or clearly erroneous fact finding, or if its decision cannot be located within the permissible range available to the district court. See United States v. Forbes , 790 F.3d 403, 406 (2d Cir. 2015). That is not this case.

Aquart claims that on cross-examination, Lashika Johnson falsely denied being threatened by the government at an October 14, 2008 proffer session. In support, he points to her acknowledgment of such threats at the subsequent trial of her brother Efrain Johnson. Judge Arterton, who presided over both trials, detailed in a written decision why she found that Lashika Johnson had not willfully given false testimony at Aquart's trial.

We accord this finding considerable deference, mindful that it is informed by the unique vantage point of a trial judge who directly observed the witness testify on the two occasions at issue. See United States v. Stewart , 433 F.3d at 296 (observing that, in ruling on new trial motion, district court's "vantage point ... has been informed by the trial over which it presided"). Moreover, because there is record support for the district court's finding, we identify no abuse of discretion in its denial of a new trial.

To facilitate our own discussion, we reproduce in the margin relevant excerpts from Lashika Johnson's testimony at both the Aquart and Efrain Johnson trials. The transcripts show, as the district court recognized, that while Lashika Johnson testified at Aquart's trial "that she did not regard the Government's warning about the consequences of lying as a threat," at her brother's trial, "she agreed with defense counsel's characterization that the AUSA threatened to put her in shackles, send her to jail, and take away her children." Appellant App'x 551.

At the same time, however, the transcripts support the district court's observation that Lashika Johnson's testimony at both trials was "consistent as to its inculpatory substance." Id. at 552. And more to the point of Aquart's perjury claim, Lashika Johnson's testimony consistently connected her disclosure of additional inculpatory information to government action reducing her to tears.

To the extent she particularized this government action at her brother's trial and did not do so at Aquart's, the record shows that was a function of the more pointed, leading questions asked by Efrain Johnson's attorney, which expressly referenced shackling and the loss of children-matters not raised by Aquart's counsel. Nevertheless, at both trials, Lashika Johnson testified that she made a fully inculpatory disclosure as to her brother only after the government challenged her veracity in a tearful confrontation.

Indeed, even at Aquart's trial, Lashika Johnson stated that she understood the prosecution's disbelief of her initial proffer to mean that she would be prosecuted. Thus, because Lashika Johnson's responses at both trials made clear that her testimony was a product of government pressure, we cannot identify clear error in the district court's determination that the witness did not willfully lie in declining to adopt the same "threat" characterization at Aquart's trial that she adopted at her brother's.

Moreover, even in accepting the threat characterization at her brother's trial, Lashika Johnson testified that she had never been threatened to make particular statements, that her trial testimony was not informed by any threats, and that neither anything said by prosecutors nor any fear for her children would make her lie.

On this record, we conclude that the district court, after having itself heard Lashika Johnson testify at both trials, did not clearly err in finding that Aquart had not shown her to have willfully testified falsely at his trial and, thus, did not abuse its discretion in denying him a new trial. We therefore reject both of Aquart's perjury challenges to his conviction. C. Prosecutorial Misconduct in Summation Aquart argues that he was denied a fair trial by the prosecution's interjection of facts not in evidence in its rebuttal summation at the guilt phase of trial.

The district court rejected this argument in denying Aquart's post-verdict motion for a mistrial. We review such a denial for abuse of discretion, see United States v. Deandrade , 600 F.3d 115, 118 (2d Cir. 2010), which is not evident here because, like the district court, we identify no prosecutorial misconduct at this stage of the proceedings. To secure relief from conviction based on prosecutorial misconduct, a defendant must show that the misconduct resulted in "substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process." United States v.

Elias , 285 F.3d 183, 190 (2d Cir. 2002) (internal quotation marks omitted); see United States v. Whitten , 610 F.3d 168, 202 (2d Cir. 2010). In assessing substantial prejudice, we consider "[1] the seriousness of the misconduct, [2] the measures adopted by the trial court to cure the misconduct, and [3] the certainty of conviction absent the improper statements." United States v. Banki , 685 F.3d 99, 120 (2d Cir. 2012) (internal quotation marks omitted). It is a "rare case" in which we will identify a prosecutor's summation comments, even if objectionable, as so prejudicial as to warrant relief from conviction.

United States v. Rodriguez , 968 F.2d 130, 142 (2d Cir. 1992) (internal quotation marks omitted); see United States v. Newton , 369 F.3d 659, 680 (2d Cir. 2004). The law recognizes that "summations-and particularly rebuttal summations-are not detached exposition[s] with every word carefully constructed ... before the event. Precisely because such arguments frequently require improvisation, courts will not lightly infer that every remark is intended to carry its most dangerous meaning." United States v.

Farhane , 634 F.3d 127, 167 (2d Cir. 2011) (alterations in original) (internal citations and quotation marks omitted); see United States v. Cohen , 427 F.3d 164, 170 (2d Cir. 2005) ("[T]he Government has broad latitude in the inferences it may reasonably suggest to the jury during summation." (internal quotation marks omitted) ).

The rebuttal comments at issue here responded to a defense argument impugning the government's DNA identifications for, among other things, focusing on suspects such as Aquart while failing to compare crime scene samples with the known DNA profile of other enterprise confederates such as cooperator Rodney Womble. Specifically, defense counsel argued, We're not asking you to conclude that [Connecticut forensic examiner Christine] Roy manipulated data or consciously forced anyone to fit or not fit inside of a profile. But observer bias, the problem that an

interpretation is driven by or colored by knowing who you are comparing the samples to; it exists. She had evidence in the form of an evidence request with the suspect's name on it, Azibo Aquart. And Rodney Womble, we don't know what happened with Womble, but we know by the time the testing began he was cooperating and his DNA profile was never provided to the lab. Gov't App'x 1071.

The government attempted to rebut the argument that Womble's DNA was not submitted for testing by reference to the CODIS comparisons in the case: Well, first of all, you know Womble is a convicted felon, and you know from Christine Roy that Womble-excuse me, that the CODIS database is made up of the DNA of convicted felons. And, in fact, you know that's how they originally got the hit on Efrain Johnson and proved that he, too, was part of these murders. ... There is absolute[ly] no evidence in this record whatsoever to suggest that Womble's DNA was at that crime scene. That, too, is telling.

As telling as the fact that on cross-examination the defense never asked Womble a word about whether or not he was involved in this murder. Id. at 1082-83. The government is afforded some latitude in responding to arguments made by the defense. See United States v. Farhane , 634 F.3d at 167-68. Aquart argues that these statements went beyond fair response because they gave the jury the misimpression that "all" DNA samples retrieved from the scene of the charged murders were submitted to CODIS for comparison. Appellant's Reply Br. 67. We are not persuaded.

As the district court observed in denying Aquart's mistrial motion, and as the record confirms, the government's first three quoted statements referenced "facts in evidence." Gov't App'x 1550. Certainly, Womble testified to his prior conviction. As to CODIS, Roy testified that it is "a DNA profile database ... run by the FBI," and accessible by "state accredited laboratories," "that contains DNA profiles from convicted offenders" and various crime scenes, as well as trace examiners. Id. at 778, 792, 801-02.

She did not testify to the specific number of crime scene samples sent to CODIS for comparison in this case. Rather, she testified that on one DNA sample that her lab retrieved from a latex glove fragment at the murder scene, CODIS identified Efrain Johnson's DNA profile. On another sample, it identified only the DNA of a Connecticut state trace examiner.

Regardless of the number of DNA samples sent for CODIS comparison in this case, this testimony provided a good faith factual basis for the government to challenge the defense suggestion that it had deliberately failed to consider Rodney Womble in any of its DNA testing. Roy's testimony would admit an inference that the CODIS comparisons performed in this case would necessarily include the known profile of a convicted felon such as Womble.

Further, because the government did not argue that any particular number of samples was sent for CODIS comparison, and because Roy testified to her own state laboratory's DNA identifications on certain samples and to CODIS identification on only two others, we do not think the government unfairly insinuated that CODIS testing had been performed on all samples. See United States v. Farhane , 634 F.3d at 167 (declining to infer that summation comments carry "most dangerous meaning" (internal quotation marks omitted) ). In short, we identify no misconduct. The next two sentences warrant no different conclusion.

Although a prosecutor certainly cannot shift the burden of proof to a defendant, see United States v. Fell , 531 F.3d 197, 221 (2d Cir. 2008), he can argue the lack of trial evidence to support an argument urged by the defense, see United States v. Salameh , 152 F.3d 88, 136 (2d Cir. 1998). Thus, to the extent the defense faulted the government for failing to compare Womble's known DNA to retrieved samples, the government was entitled to point out that no trial evidence, testimonial or forensic, had been adduced that put Womble (and, therefore, his DNA) at the scene of the charged murders.

See id. ("The government is free to comment on the failure of defendant to refute government evidence or to support his own claims." (internal quotation marks omitted) ). It was, of course, for the jury to determine the persuasiveness of this argument in light of the evidence it had heard and the inferences the defense urged it to draw. We conclude only that the government's rebuttal summation did not impermissibly suggest that all DNA samples retrieved from the crime scene had in fact been submitted for CODIS comparison.

Because Aquart thus fails to show any government misconduct in summation, much less conduct that denied him a fair trial, we conclude that the district court acted within its discretion in denying him a mistrial. In sum, we identify no merit in any of Aquart's challenges to the guilt phase of his trial and, therefore, conclude that he stands properly convicted on all counts the jury found proved in this case. II.

Sentencing Challenges Aquart challenges his capital sentence on numerous grounds falling into three categories: (1) repeated prosecutorial misconduct in response to mitigating hearsay evidence from Efrain Johnson, (2) insufficient proof of certain aggravating factors, and (3) the unconstitutionality of the death penalty. We reject Aquart's sufficiency and constitutionality challenges, but we conclude that two prosecutorial errors in response to the Efrain Johnson evidence, considered together, require vacatur and remand for a new sentencing hearing. A.

Standard for Reviewing Unpreserved Sentencing Challenges Before addressing Aquart's particular sentencing challenges, we consider the parties' dispute as to how we should review urged errors to which no objection was raised in the district court. We generally review unpreserved challenges, including sentencing challenges, only for plain error. See United States v. Marcus , 560 U.S. at 262, 130 S.Ct. 2159 (stating standard); United States v. Rubin , 743 F.3d 31, 39 (2d Cir. 2014). Aquart argues that the rule should not apply to capital sentencing proceedings.

In support, he cites 18 U.S.C. § 3595(c)(2), which states as follows: Whenever the court of appeals finds that- (

A) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (

B) the admissible evidence and information adduced does not support the special finding of the existence of the required aggravating factor; or (

C) the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure, the court shall remand the case for reconsideration under

section 3593 or imposition of a sentence other than death. The court of appeals shall not reverse or vacate a sentence of death on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless. Aquart submits that, by referencing proper preservation only in subpart (C), Congress signaled that the review of capital sentences under other subparts, specifically, subpart (

A) review for "arbitrary factors," must "cover some situations beyond properly preserved non-harmless error and plain error affecting substantial rights." Appellant's Supp. Br. 9/19/2016, 2. The Supreme Court construed the relevant statutory language in Jones v. United States , 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

The defendant there argued that his capital sentence was imposed under the influence of an "arbitrary factor," specifically, jury confusion as to sentencing arising from allegedly erroneous jury instructions, which "warrant[ed] resentencing even if he did not properly preserve the objection." Id. at 388, 119 S.Ct. 2090. In rejecting the argument, the Supreme Court held that "[t]he statute does not explicitly announce an exception to plain-error review, and a congressional intent to create such an exception cannot be inferred from the overall scheme." Id. at 388-89, 119 S.Ct. 2090.

The Court construed the preservation language in subpart (

C) to "make[ ] clear that Congress sought to impose a timely objection requirement at [a capital] sentencing and did not intend to equate the phrase 'arbitrary factor' with legal error." Id. at 389, 119 S.Ct. 2090 (observing that contrary "interpretation of § 3595(c)(2)(

A) would drain § 3595(c)(2)(

C) of any independent meaning"). Thus, Jones instructs that a capital defendant cannot simply recast unpreserved legal error as an arbitrary factor (or as the trigger for an arbitrary factor) to avoid plain error review. See United States v. Whitten , 610 F.3d at 190 (applying plain error review to unpreserved objection to "emotionally charged" victim impact statements at capital sentencing proceeding).

In arguing that he is not doing so here, Aquart submits that his sentencing challenges-particularly prosecutorial vouching and Sixth Amendment errors regarding the Efrain Johnson evidence-are distinguishable from the jury confusion/erroneous instruction error raised in Jones . In support, he cites State v. Butler , 277 S.C. 543, 546, 290 S.E.2d 420, 421 (1982) (characterizing prosecutorial vouching as "arbitrary factor" under parallel provision of state death penalty law), overruled on other grounds by State v. Torrence , 305 S.C. 45, 406 S.E.2d 315 (1991).

The difference is not one that allows Aquart to avoid Jones 's holding. Prosecutorial vouching is recognized as a claim of legal error that, if not preserved, is properly reviewed for plain error. See United States v. Williams , 690 F.3d 70, 75-76 (2d Cir. 2012) (reviewing unpreserved vouching claim for plain error in non-capital case); United States v. Martinez , 862 F.3d 223, 241-42 (2d Cir. 2017) (recognizing vouching claim to implicate due process right to fair trial), cert. petition filed sub nom. Rodriguez v. United States , 18-5234 (July 13, 2018).

Further, following Jones , this court has applied plain error review to unpreserved claims of precisely the sort Aquart presents here, i.e. , due process challenges to prosecution statements made in the course of a capital sentencing proceeding. See United States v. Fell , 531 F.3d at 209, 209 n.8, 220-21 ; see also United States v. Rodriguez , 581 F.3d 775, 802-03 (8th Cir. 2009) (reviewing for plain error unpreserved challenges to government summation disparaging capital defendant's case).

The point warrants no further discussion, however, because Aquart's vouching and Sixth Amendment challenges were preserved by timely objections. See infra , Discussion Sections II.B.1. & 3. Thus, we review those sentencing arguments de novo . Insofar as Aquart presents other, unpreserved sentencing challenges, however, see, e.g., infra at 37 (unpreserved challenge to form of questions), see also Discussion

Section II.B.2. (unpreserved challenge to plea allocution questions), we review for plain error even in this capital context. B. Prosecutorial Misconduct Pertaining to Efrain Johnson Evidence Aquart asserts various instances of prosecutorial misconduct in response to evidence pertaining to confederate Efrain Johnson. Certain challenged government conduct reflects no misconduct, but when we consider two errors-one in the cross-examination of FBI Agent Christopher Munger and the other in summation-together and in context, see United States v.

Fell , 531 F.3d at 233, we cannot confidently conclude that the jury would have returned a death verdict absent these errors. Accordingly, we vacate Aquart's capital sentence and remand for a new penalty proceeding. To explain that conclusion, we start by reiterating the nature of the Efrain Johnson evidence and the purpose for which the defense used it. At the penalty phase of trial, Aquart called FBI Agent Munger to testify to certain statements made by Efrain Johnson at law-enforcement interviews and proffer sessions. As detailed supra Background

Section II.B., in these statements, Efrain Johnson assigned prosecution witness Taylor a larger role in the charged murders than Taylor himself had admitted in his guilt-phase testimony. While Taylor had testified that it was the Aquart brothers who had duct taped and beaten Tina Johnson and Reid in a bedroom while Taylor himself stood guard in the living room, Efrain Johnson had told authorities that it was he and Taylor who had duct taped Tina Johnson in the living room, and that Taylor had there beaten Tina Johnson with a metal pipe, soon after which Efrain Johnson left the apartment.

Because the jury had already found Aquart guilty of Tina Johnson's murder, the defense could not use Efrain Johnson's hearsay statements to relitigate that question. Instead, it proposed to use the statements to dispute the confederates' relative roles in the proved murders, which it submitted was relevant both to the government's aggravating factor charging Aquart with having personally committed the Tina Johnson and Reid murders in a heinous and depraved manner, as well as to the defense's urged mitigating factor that equally culpable participants in those crimes were not facing the death penalty.

See App'x 481-82 (urging both grounds in moving for receipt of statements); see also Gov't App'x 1406-09. Over vigorous prosecution objection, the district court ruled that Aquart could offer the Efrain Johnson statements for these two purposes. At the actual penalty proceeding, however, Aquart used the statements only to argue for mitigation.

See Gov't App'x 1465 (arguing in summation that Efrain Johnson's statements should not "in any way ... shake your conclusion about [Aquart's] guilt for these murders"; rather, statements "matter[ed]" because "fact that others were also involved in the offense and will not receive a death sentence is something that you can and should consider in deciding on the punishment"). Indeed, in a colloquy with the court, Aquart's counsel specifically disavowed challenging any government aggravating factor.

See id. 1467-68 (stating in rebuttal colloquy that defense had "not in any sense attack[ed] or challenge[d] any of the aggravators alleged by the government in this case"). With this understanding of how Aquart used the Efrain Johnson evidence, we proceed to consider his claim of repeated government misconduct taking three forms: (1) negative vouching as to Efrain Johnson's credibility, (2) mischaracterization of Johnson's plea allocution, and (3) summation denigration of the defense for urging inconsistent theories at the guilt and penalty phases of trial.

We evaluate Aquart's argument first by identifying what prosecutorial actions, in fact, amount to misconduct. We then consider the seriousness of that misconduct, the curative measures adopted by the district court in response, and the certainty of a death sentence absent any error. See generally United States v. Banki , 685 F.3d at 120. On such review, we conclude that even though many of the challenged government actions, standing alone, do not manifest misconduct, a cross-examination error and a rebuttal error, considered together, may have denied Aquart a fair penalty proceeding. 1.

Improper Vouching Aquart charges the government with "blatant and impermissible vouching" when, in cross-examining Agent Munger, it referenced Efrain Johnson's failure to reach a cooperation agreement with the government. Aquart maintains that such references "plainly invited jurors to treat Taylor's account as truthful and Efrain [Johnson]'s as false because the government ... had formally deemed them so ." Appellant's Br. 77 (emphasis added).

The challenged cross-examination, which we reproduce in the margin, is in two parts, the first pertaining to Efrain Johnson's proffer sessions, the second pertaining to his failed guilty plea. We discuss each in turn. a. Proffer Session Queries On de novo review, we identify a single, but significant, error in the prosecution's cross-examination of Agent Munger about Efrain Johnson's proffer sessions: the attempt to elicit that Efrain Johnson did not receive a cooperation agreement because "it was determined he was lying." Gov't App'x 1421.

This inquiry ran afoul of established law holding that cross-examination cannot be used to "direct[ ] the jury to trust the Government's judgment rather than its own view of the evidence." ( United States v. Henry , 47 F.3d 17, 21 (2d Cir. 1995) (internal quotation marks omitted) ). Before discussing this error further, however, we note that to the extent Aquart would have us also identify misconduct in government inquiries about the purpose of a proffer session, we here conclude that such an inquiry, by itself, is not impermissible.

The circumstances under which a suspect speaks to the government may reveal motives that inform credibility. That is particularly so when the suspect incriminates others as well as himself. See Lee v. Illinois , 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (noting presumptive unreliability of hearsay confessions incriminating accomplice's confederates). Indeed, Aquart effectively acknowledged the relevancy of a proffer context to an assessment of credibility because his own attorney questioned Agent Munger about whether certain persons, including Lashika Johnson, had participated in proffer sessions.

For much the same reason, we identify no misconduct in the government eliciting the simple fact that Efrain Johnson never had a cooperation agreement with the government. Parties may fail to reach cooperation agreements for any number of reasons unrelated to the government's assessment of the declarant's credibility-e.g. , the government may be demanding a guilty plea to a more serious charge than that to which the defendant is willing to admit, or a defendant may be seeking sentencing assurances or other considerations that the government is unwilling to provide.

Here, the jury had already heard that various witnesses testified pursuant to cooperation agreements and that those agreements gave rise to motives informing credibility. Thus, the fact that Efrain Johnson had not made the statements at issue pursuant to a cooperation agreement was relevant to an assessment of the credibility of those statements. Had the government stopped there, Aquart could not complain of misconduct. That, however, was not the extent of the government's inquiry.

It proceeded to ask Agent Munger to confirm that the reason Efrain Johnson never had a cooperation agreement was the government's determination that "he was lying." Gov't App'x 1421. Thus, we consider the challenged questioning in light of its culmination in this improper inquiry. The concern here is not simply with the use of the word "lying," as the government suggests in citing United States v. Coriaty , 300 F.3d 244, 255 (2d Cir. 2002) (rejecting challenge to government's use of word "lies" because not excessive or inflammatory).

The concern is the law's insistence that witness credibility be left "exclusively for ... determination by the jury." United States v. Truman , 688 F.3d 129, 143 (2d Cir. 2012) (internal quotation marks omitted) (holding that "witnesses may not opine as to the credibility of the testimony of other witnesses at the trial" (internal quotation marks omitted) ). Efrain Johnson's proffer statements were received as the equivalent of witness testimony.

Asking Agent Munger whether law enforcement authorities had already determined that Efrain Johnson was lying in those statements impermissibly intruded on the jury's exclusive responsibility for determining credibility. See United States v. Henry , 47 F.3d at 21. The identification of such misconduct, however, is only a first step. We must consider that misconduct in context to determine whether the error was so serious and prejudicial as to compel a new penalty proceeding. See generally Greer v.

Miller , 483 U.S. 756, 756-66, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (observing that when defendant contends that prosecutor's question rendered trial fundamentally unfair, "it is important as an initial matter to place the remark in context" (alterations and internal quotation marks omitted) ). That context includes any curative actions taken by the district court. Here, the district court promptly sustained objection to the challenged question before it was answered. That alone would not sufficiently mitigate the seriousness of the prosecution's error because the question was leading and implied its own answer.

That concern, however, was addressed by the district court's earlier instructions, advising the jury that questions asked of witnesses were "not evidence," and that a question to which an objection was sustained should be "ignore[d]." Gov't App'x 4, 1050. The court had also instructed the jury that nothing said by counsel was evidence, and that witness credibility had to be determined by the jury. Such instructions together with a sustained objection are generally a sufficient cure for "any potential bias posed by the questions." United States v. McCarthy , 54 F.3d 51, 56 (2d Cir. 1995).

We presume that juries follow such instructions, see, e.g. , Weeks v. Angelone , 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) ; United States v. Stewart , 433 F.3d at 306-07, and this case warrants no exception, cf. Kansas v. Carr , --- U.S. ----, 136 S.Ct. 633, 645, 193 L.Ed.2d 535 (2016) (recognizing "narrow departure" from presumption where improperly presented evidence is so inculpatory as to be "ineradicable, as a practical matte

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