United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, District Judge.
On July 15, 2005, Carlos Aguiar ("Aguiar") was convicted by a jury in this Court of: conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity ("Count I"), including the armed robbery of the Bank of America located at 5911 Blair Road, N.W., Washington, D.C., on or about January 22, 2004 ("Racketeering Act 1"), the armed robbery of the Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June 12, 2004 ("Racketeering Act 3"), the armed robbery of the Chevy Chase Bank located at 3601 St. Barnabas Road, Silver Spring, Maryland, on or about May 10, 2004 ("Racketeering Act 5"), and the armed robbery of the Chevy Chase Bank located at 5823 Eastern Avenue, Chillum, Maryland, on or about May 27, 2004 ("Racketeering Act 6"); conspiracy to commit offenses against the United States, that is, armed robberies of banks the deposits of which were then insured by the Federal Deposit Insurance Corporation ("Count II"); armed robbery of the Bank of America on or about January 22, 2004 ("Count III"); using and carrying a firearm during and in relation to a crime of violence on or about January 22, 2004 ("Count IV"); unlawful possession on or about January 22, 2004, of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("Count V"); armed robbery of the Industrial Bank on or about June 12, 2004 ("Count X"); using and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004 ("Count XI"); unlawful possession of a firearm on or about June 12, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("Count XIII"); and unlawful possession of a firearm on or about August 4, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("Count XX"). Presently before the Court is Aguiar's pro se  Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, and  Motion for Leave to Exceed Page Limitation in Filing his Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. Upon a searching review of the parties' submissions,  the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside Aguiar's conviction and sentence. Accordingly, the Court shall DENY Aguiar's  Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Further, the Court shall DENY AS MOOT Aguiar's  Motion for Leave to Exceed Page Limitation in Filing his Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence.
On August 3, 2004, a federal grand jury indicted Aguiar and six codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland. Indictment (Aug. 3, 2004), ECF No. . The United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") described the factual scenario:
[Aguiar and his codefendants] indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed a signature style. The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire power, preferring to use military weapons like AK-47s instead of handguns because they surmised the metropolitan police "wouldn't respond" when Appellants "robb[ed] banks with assault weapons." The gang made use of several stolen vehicles, strategically placed along the get-away-route, for each robbery. The robbers would serially abandon the vehicles, often torching them in an attempt to destroy any forensic evidence that might be left behind.
United States v. Burwell, 642 F.3d 1062, 1064-65 (D.C. Cir. 2011). The matter proceeded to trial in this Court, and Aguiar was tried alongside five other codefendants. On July 15, 2005, a jury convicted Aguiar on all nine counts upon which he was charged in the indictment. Verdict Form, ECF No. .
On May 4, 2006, this Court sentenced Aguiar to a term of 292 months on Count I, 60 months on Count II, 300 months each on Counts III and X, and 120 months each on Counts V, XIII and XX, to run concurrently to each other. The Court also sentenced Aguiar to 120 months on Count IV and 300 months on Count XI to run consecutively to each other and to Counts I, II, III, V, X, XIII, and XX. Judgment in a Criminal Case, ECF No. . Aguiar filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Aguiar's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C. Cir. 2011), aff'd in part en banc, 690 F.3d 500 (D.C. Cir. 2012). Aguiar filed a petition for writ of certiorari with the Supreme Court of the United States which was denied. Aguiar v. United States, ___ U.S. ___, 132 S.Ct. 357 (2011). Aguiar currently is serving his sentence.
Pending before the Court is Aguiar's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Aguiar's motion is premised on ineffective assistance of counsel claims related to his trial counsel, Tony L. Booker, and appellate counsel, Mary E. Davis. Specifically, Aguiar claims that his counsel rendered him ineffective assistance by: (1) failing to explain the sentencing consequences of rejecting a plea offer and proceeding to trial; (2) failing to investigate and object to Aguiar's family members being excluded from the courtroom during jury selection, and failing to object to certain portions of voir dire taking place in the jury room; (3) failing to challenge an alleged constructive amendment to the indictment; (4) failing to raise a duplicity challenge to Counts IV and XI; and (5) failing to challenge the jury instruction and verdict form related to Counts IV and XI.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the sentence was imposed "in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. "[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b).
A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) "cause" for his failure to do so and "prejudice" as a result of the alleged violation, or (2) "actual innocence" of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However, "[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show cause and prejudice' for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion." United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C. 2000), aff'd, 22 F.Appx. 3 (D.C. Cir. 2001) (citation omitted).
A defendant claiming ineffective assistance of counsel must show (1) "that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, " and (2) "that this error caused [him] prejudice." United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citation omitted). "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the petitioner's burden to show that counsel's errors were "so serious" that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104 (2011). "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... [I]nquiry into counsel's conversations with the defendant may be critical to a proper assessment of... counsel's other litigation decisions." Strickland, 466 U.S. at 691. In evaluating ineffective assistance of counsel claims, the Court must give consideration to "counsel's overall performance, " Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " Strickland, 466 U.S. at 689. Moreover, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
A district court may deny a Section 2255 motion without a hearing when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "The decision whether to hold a hearing is committed to the district court's discretion, particularly when, as here, the judge who is considering the § 2255 motion also presided over the proceeding in which the petitioner claims to have been prejudiced.'" United States v. Orleans-Lindsey, 572 F.Supp.2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-3089, 2009 U.S.App. LEXIS 20833 (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States, No. Civ. A. 06-0086 (JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted)); see also United States v. Agramonte, 366 F.Supp.2d 83, 85 (D.D.C. 2005), aff'd, 304 Fed.App'x 877 (D.C. Cir. 2008). "The judge's own recollection of the events at issue may enable him summarily to deny a Section 2255 motion." Agramonte, 366 F.Supp.2d at 85 (citing United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992)). To warrant a hearing, the petitioner's Section 2255 motion must "raise detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's personal knowledge or recollection.'" Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).
Based on a thorough review of the parties' pleadings and the entire record in the criminal proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion. As explained below, Aguiar has not proffered detailed and factual allegations outside of the record such that a hearing is required on the issues raised in his motion. Accordingly, the Court shall render its findings based on the parties' pleadings and the record.
Aguiar filed a Motion for Leave to Exceed Page Limitation, requesting that the Court grant him leave to file a § 2255 Motion in excess of the 45-page limit prescribed by LCvR 7(e). See also LCrR 47(e). Aguiar asserts that in preparation of the filing of his motion and accompanying memorandum that he expected the length to be at least 65 pages. However, Aguiar never provided the Court with a copy of the proposed brief in excess of the page limitation. Instead, Aguiar timely filed a 6-page § 2255 Motion, and a 33-page Memorandum of Law In Support of that Motion, as well as 6 pages of Affidavits supporting his Motion, in compliance with the page limitations for such filings. See Def.'s Mot., ECF No. ; Def's Memo. in Support of Def.'s Mot., ECF No. [808-1]; Def.'s Mot., Ex. A (Affidavit of Carlos Aguiar), ECF No. [779-1]; Def.'s Mot., Ex. B (Affidavit of Lily Aguiar), ECF No. [779-2]; Def.'s Mot., Ex. C (Affidavit of Mariana Aguiar), ECF No. [779-3]. The Court has reviewed Aguiar's pleadings and it appears that he has fully presented his arguments in his § 2255 Motion and accompanying Memorandum as filed such that this Court can address each argument on its merits. As a result, the Court finds that it does not need additional briefing in excess of the page limitation from Aguiar. Further, the Court notes that it also granted leave for Aguiar to file a 35-page Reply Memorandum in support of his § 2255 Motion which was in excess of the 25-page limitation for a reply set by LCvR 7(e). The Court has determined that Aguiar's request to exceed the page limitation is moot. He has briefed his arguments in his timely filed § 2255 motion and reply brief that exceeded the page limitations, and he never provided the Court with a proposed § 2255 motion in excess of the page limitation for the Court to consider. Accordingly, the Court shall deny as moot Aguiar's Motion for Leave to Exceed Page Limitation in Filing his Petition Pursuant to 28 U.S.C. § 2255 for the reasons described.
Turning to the merits of Aguiar's motion, Aguiar raises five ineffective assistance of counsel claims related to counsel allegedly: (1) failing to explain the sentencing consequences of rejecting a plea offer and proceeding to trial; (2) failing to investigate and object to Aguiar's family members being excluded from the courtroom during jury selection, and failing to object to certain portions of voir dire taking place in the jury room; (3) failing to challenge an alleged constructive amendment to the indictment; (4) failing to raise a duplicity challenge to Counts IV and XI; and (5) failing to challenge the jury instruction and verdict form related to Counts IV and XI. The Court shall address each claim in turn.
A. Plea Offer
Aguiar alleges that his trial counsel failed to properly explain to him the sentence that he was facing if convicted when he was offered a plea agreement. Aguiar submitted an affidavit that was filed alongside the pending motion attesting to the following facts:
My attorney, Mr. Booker informed me verbally that the government had offered me a thirty (30) year plea to resolve my case. He failed to inform and explain to me the consequences of the consecutive sentences exposure [sic] I was actually facing, if I was convicted at trial. He failed to advise me regarding the disirability [sic] of accepting the plea offered, rather than to proceed to trial. Had I been awared [sic] that I was actually facing a total of 35-years for the two (2) § 924(c) counts, consecutively with an additional 30-years for the remaining counts, I would had accepted the 30-year plea offer and pleaded guilty in a timely manner instead of proceeding to trial.
Def.'s Mot., Ex. A (Affidavit of Carlos Aguiar), at 1, ECF No. [779-1]. The Court finds that Aguiar's ineffective assistance of counsel claim fails because Aguiar was not charged with any violations of 18 U.S.C. § 924(c), using and carrying a firearm during and in relation to a crime of violence, at the time that the plea offer was extended to and rejected by him.
A criminal defendant's right to effective assistance of counsel under the Sixth Amendment extends to the plea-bargaining process. Lafler v. Cooper, ___ U.S. ___, ___, 132 S.Ct. 1376, 1384 (2012). The Court employs the two-part Strickland test in analyzing an ineffective assistance of counsel claim arising out of the plea negotiations. Id. First, a defendant must show that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008). This Circuit has recognized that a lawyer who makes a plainly incorrect estimate of a likely sentence due to ignorance of applicable law of which he should have been aware while advising his client on the prudence of accepting a plea offer falls below the threshold of reasonable performance within the meaning of the Strickland standard. United States v. Booze, 293 F.3d 516, 518 (D.C. Cir. 2002). Second, a defendant must show that the error caused him prejudice. Hurt, 527 F.3d at 1356. In order to establish prejudice:
[A] defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
Lafler, 132 S.Ct. at 1385.
The Court requested that the government provide a copy of the plea agreement that was offered to Aguiar pursuant to a letter sent to Aguiar's trial counsel, in order to assist with the resolution of this claim. Govt.'s Resp. to Order of the Court, Ex. A (Sept. 17, 2004 Letter), ECF No. [852-1]. In the letter dated September 17, 2004, the government extended a plea offer that would have required Aguiar to plead guilty to three charges: (1) conspiracy to participate in a racketeer influenced corrupt organization (18 U.S.C. § 1962(d)); (2) using a fully automatic firearm in furtherance of a federal crime of violence (18 U.S.C. § 924(c)); and (3) felon-in-possession of a firearm (18 U.S.C. § 922(g)). Id. at 1. If Aguiar accepted the plea offer prior to its expiration, he was entitled to a 2-level decrease under the Sentencing Guidelines for acceptance of responsibility, and the government would file a motion requesting an additional 1-level decrease if Aguiar met certain conditions. Id. at 4-5. Notably, by the terms of the letter, the offer expired at the conclusion of the status hearing held on September 27, 2004. Id. at 1. The Court is unaware of any other plea offer made by the government to Aguiar.
On January 31, 2005, the Court also held a hearing to discuss the pleas offers extended to Aguiar and his codefendants on the record. Specifically, the Court reviewed plea offers that already had been rejected by Aguiar and his codefendants. Tr. 10:2-4 (Jan. 31, 2005), ECF No. . The Court notes, as the government pointed out in its supplemental brief, that the terms of the plea offer as expressed in the letter differ slightly from the terms placed on the record in summary form during the status hearing held on January 31, 2005. See Govt.'s Resp. to Order of the Court at 1. Specifically, government counsel did not indicate during the hearing that in addition to the RICO charge and the one section 924(c) charge, Aguiar also would have been required to plead guilty to one count of felon-in-possession of a firearm. See Tr. 33:6-34:10 (Jan. 31, 2005). Nonetheless, the Court discussed the plea offer with Aguiar, Aguiar's trial counsel, and the prosecutor on the record and Aguiar indicated that he did not accept the plea offer, even as stated on the record where the prosecutor appears to have mistakenly excluded the requirement that Aguiar also plead to one count of felon-in-possession of a firearm. In relevant part, the Court inquired:
THE COURT: Did you discuss with him the difference between a RICO conspiracy and the other conspiracy?
TONY BOOKER (Defense Counsel): Yes, Your Honor.
THE COURT: In terms of the 924(c) and what ...