82 F. Supp. 3d 70
D.D.C.2015Background
- Carlos Aguiar was convicted by jury (July 15, 2005) of RICO conspiracy, multiple armed bank robberies, two § 924(c) counts (use/brandish/carry a firearm), and related firearms-possession counts; sentence aggregated to lengthy terms including consecutive § 924(c) sentences.
- He appealed; the D.C. Circuit affirmed (United States v. Burwell, later affirmed en banc), cert. denied. Aguiar is serving his sentence.
- Aguiar filed a pro se § 2255 motion asserting ineffective assistance of trial and appellate counsel on five principal grounds: (1) failure to explain sentencing consequences of rejecting a plea; (2) failure to challenge exclusion of family/public during voir dire; (3) failure to object to an alleged constructive amendment to the indictment by admission of weapons and jury instructions/verdict form; (4) failure to raise a duplicity/multiplicity challenge to Counts IV and XI (§ 924(c) counts); and (5) failure to challenge jury instructions and the special verdict form on the § 924(c) counts.
- The Court reviewed the record, transcripts, and parties’ filings, declined to hold an evidentiary hearing, and considered each ineffective-assistance claim under Strickland/Lafler standards.
- The Court denied the § 2255 motion in full and denied as moot the motion to exceed page limits; it also declined to issue a Certificate of Appealability.
Issues
| Issue | Plaintiff's Argument (Aguiar) | Defendant's Argument (Gov't & Court view) | Held |
|---|---|---|---|
| Did counsel fail to advise Aguiar of sentencing exposure from rejecting a plea? | Booker did not explain the consequences of consecutive § 924(c) exposure; Aguiar would have accepted the plea. | Plea offer predated charges for the second § 924(c) count; court on-record discussion shows Aguiar rejected the offer; counsel’s omission (if any) concerned charges not yet filed. | Denied — no deficient performance or prejudice because § 924(c) counts were added after the plea expired and Aguiar knowingly rejected the offer on the record. |
| Did exclusion of family members / holding individual voir dire in the jury room violate the Sixth Amendment and render counsel ineffective for not objecting? | Mother and sister were barred entry during voir dire; portions of voir dire were held in jury room off public view. | Any exclusion was trivial: no court-ordered closure, proceedings were on the record, courtroom size/logistics explained, public access otherwise preserved. | Denied — closure (if any) was trivial under Waller/Press-Enterprise standards; no Sixth Amendment violation and no ineffective assistance. |
| Did admission of multiple weapons and jury instructions/verdict form constructively amend the indictment (and counsel fail to object)? | Evidence and instructions allowed conviction for a semiautomatic assault weapon when indictment referenced machinegun, amounting to constructive amendment. | Indictment charged machinegun or semiautomatic assault weapon alternatives; jury was asked to resolve type; no alteration of charging terms or prejudice to notice/double jeopardy. | Denied — no constructive amendment; counsel not ineffective for failing to raise the claim. |
| Were Counts IV and XI duplicitous (use/carry versus possession in furtherance), and did counsel fail to preserve/separate them properly? | Counts improperly join distinct offenses (use/carry and possession in furtherance); counsel failed to object to instructions/verdict form. | Counsel (via joint defense motion) challenged duplicity; the Court allowed the charges proceed with special verdict form and instructions that required finding "use/carry" elements; verdicts reflect convictions only for use/carry. | Denied — counsel challenged duplicity; instructions/verdict form supported convictions for use/carry only; no prejudice from any omission. |
Key Cases Cited
- Lafler v. Cooper, 566 U.S. 156 (2012) (ineffective assistance in plea bargaining is analyzed under Strickland; defendant must show but-for acceptance and that plea would have been less severe)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Waller v. Georgia, 467 U.S. 39 (1984) (requirements to justify closure of criminal proceedings)
- Presley v. Georgia, 558 U.S. 209 (2010) (public-trial right extends to voir dire)
- United States v. Burwell, 642 F.3d 1062 (D.C. Cir. 2011) (affirming convictions in the multi-defendant bank-robbery/RICO case)
- United States v. Perry, 479 F.3d 885 (D.C. Cir. 2007) (triviality standard for courtroom closures)
- Bousley v. United States, 523 U.S. 614 (1998) (procedural default in collateral review; cause and prejudice standard)
- Harrington v. Richter, 562 U.S. 86 (2011) (deference to counsel performance review)
- Frady v. United States, 456 U.S. 152 (1982) (higher hurdle for collateral relief than for direct appeal)
- United States v. O'Brien, 560 U.S. 218 (2010) (machinegun provision of § 924(c) is an element requiring jury proof)