United States v. Burwell (79 F. Supp. 3d 1, 2015)

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

On July 15, 2005, Bryan Burwell (“Bur-well”) 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 Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June 12, 2004 (“Racketeering Act 3”) 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 Industrial Bank on or about June 12, 2004 (“Count X”); and using and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004 (“Count XI”). Presently before the Court is Bur-well’s pro se [822] Motion Under 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 Bur-well’s conviction and sentence at this time. However, the Court shall require further briefing on the sole issue of whether Bur-well’s trial counsel was ineffective by failing to investigate and interview two witnesses prior to trial, and shall hold in abeyance the motion only with respect to this claim. Burwell’s motion is denied as to all other claims, as described herein. Accordingly, the Court shall DENY IN PART and HOLD IN ABEYANCE Bur-well’s [822] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.

I. BACKGROUND

On August 3, 2004, a federal grand jury indicted Burwell and seven codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland. Indictment, ECF No. [10]. The United States Court of Appeals for District of Columbia Circuit (“D.C.Circuit”) described the factual scenario:

[Burwell 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 Burwell was tried alongside five other codefen-dants. On July 15, 2005, a jury convicted Burwell on all four counts upon which he was charged in the indictment. Verdict Form, ECF No. [474].

On April 28, 2006, this Court sentenced Burwell to 135 months of imprisonment on Count I, 60 months of imprisonment on Count II, and 135 months of imprisonment on Count X to run concurrently to each other. The Court also sentenced Burwell to 360 months of imprisonment on Count XI to run consecutive to all counts. See Judgment in a Criminal Case, ECF No. [615]. Burwell filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Burwell’s conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C.Cir.2011). The D.C. Circuit then granted Burwell’s petition for rehearing en banc on the issue of whether 18 U.S.C. § 924(c)(l)(B)(ii), the statute governing Count XI, requires the government to prove that the defendant knew that the weapon he was carrying while committing a crime of violence was capable of firing automatically. United States v. Burwell, 690 F.3d 500, 502 (D.C.Cir.2012). In a split opinion, the D.C. Circuit held that the statute in question did not require that the defendant know that the weapon he used, carried, or possessed was capable of firing automatically, and, accordingly, the D.C. Circuit affirmed Burwell’s conviction. Id. at 516. Burwell filed a petition for writ of certiorari which was denied by the Supreme Court of the United States. United States v. Burwell, — U.S. -, 133 S.Ct. 1459, 185 L.Ed.2d 368 (2013). Burwell currently is serving his sentence.

Pending before the Court is Burwell’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Burwell’s motion is premised on overarching ineffective assistance of counsel claims at four stages of the proceedings, pre-trial, trial, post-trial, and appeal, by his trial counsel, Anthony D. Martin, and his appellate counsel, Robert S. Becker. Specifically, Burwell claims that his counsel rendered him ineffective assistance by: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and failing to move to dismiss based on this challenge during trial; (3) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (4) generally providing a “poor overall performance” at trial; (5) failing to allow Burwell to exercise his right to testify at trial; (6) failing to challenge government misconduct at trial and on appeal; (7) failing to give an effective closing argument at- trial; (8) failing to request an informant jury instruction at trial; (9) failing to request a theory-of-defense instruetion at trial; (10) failing to request polling of the jury at trial; (11) failing to properly challenge juror misconduct and bias at trial and on appeal; and (12) failing to conduct pre-trial interviews of potential defense witnesses. Burwell also claims that the jury instructions related to Count XI were erroneous in light of the Supreme Court’s holding in Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014).

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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Nonetheless, “[ujnless 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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 Fed.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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011). “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.... [IJnquiry 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, 104 S.Ct. 2052. 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, 106 S.Ct. 2574, 91 L.Ed.2d 305 (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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052.

III. DISCUSSION

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-Lindsay, 572 F.Supp.2d 144, 166 (D.D.C.2008), appeal dismissed, No. 083089, 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.Appx. 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, 113 S.Ct. 322, 121 L.Ed.2d 242 (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, 82 S.Ct. 510, 7 L.Ed.2d 473 (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 ort the instant motion at this time. However, the Court shall reserve its ruling on the issue of whether a hearing is necessary based on Burwell’s claim that his counsel failed to properly investigate specific witnesses prior to trial until further briefing is complete. As explained below, Burwell has not proffered detailed and factual allegations outside of the record such that a hearing is required on all other issues raised in his motion. Accordingly, the Court shall render its findings on these claims based on the parties’ pleadings and the record.

Burwell raises 12 ineffective assistance of counsel claims related to counsel allegedly: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and failing to move to dismiss based on this challenge during trial; (3) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (4) generally providing a “poor overall performance” at trial; (5) failing to allow Burwell to exercise his right to testify at trial; (6) failing to challenge government misconduct at trial and on appeal; (7) failing to give an effective closing argument at trial; (8) failing to request an informant jury instruction at trial; (9) failing to request a theory-of-defense instruction at trial; (10) failing to request polling of the jury at trial; (11) failing to properly challenge juror misconduct and bias at trial and on appeal; and (12) failing to conduct pretrial interviews of potential defense witnesses. Further, Burwell claims that the jury instructions related to Count XI were erroneous in light of recent Supreme Court precedent. The Court shall address each claim in turn.

A. Speedy Trial Challenge

Burwell alleges that his trial counsel was ineffective by failing to move to dismiss in the instant action based on a violation of the Speedy Trial Act. Def.’s Memo, at 11-15; Def.’s Reply at' 2-4. Pursuant to 18 U.S.C. § 3161(c)(1), a trial for a defendant who has pled not guilty must commence within 70 days from the filing and making public of the indictment, or from the date that Defendant appeared before a judicial officer of the court in which the charge is pending, whichever is later. In a case involving multiple defendants, the speedy trial clock resets upon the initial appearance of a new defendant. United States v. Van Smith, 530 F.3d 967, 969-70 (D.C.Cir.2008). In other words, all codefendants share the speedy trial computation of the latest codefendant. Id. (quoting Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986)). However, pursuant to section 3161(h), there are several scenarios under which the Court may toll this 70-day time period.

In the instant action, Burwell was indicted pursuant to a sealed indictment on August 3, 2004, and arraigned on August 6, 2004. Marvin Palmer was the last of Burwell’s codefendants to be arrested and arraigned. Palmer’s arrest and arraignment occurred on August 25, 2004. Accordingly, August 25, 2004 is the operative date under the Speedy Trial Act for calculating the 70-day period for all codefendants in this matter, see Van Smith, 530 F.3d at 969-70, and Burwell’s trial commenced on April 5, 2005, 223 days from this date.

However, on September 27, 2004, 33 days from the operative date, the Court held a status hearing with Burwell and his seven codefendants present, to discuss the Government’s Notice to the Court of Plan, in Consultation with Defense Counsel, for Future Actions in this Case. See Notice to the Court of Plan, ECF No. [90]. At the hearing, Burwell’s counsel, indicated on the record in the presence of Burwell, that this was a complex case under the Speedy Trial Act, allowing for tolling of the Act for a reasonable period of time in order to prepare the case. Order (Oct. 4, 2004), ECF No. [92], Indeed, Mr. Martin expressly indicated that he had spoken with his client about the likelihood that the case would be deemed complex and that the trial probably would be set in 2005. Tr. 22:25-23:2 (Sept. 27, 2004), ECF No. [675]. Further, Mr. Martin stated, “I believe that at this point all counsel have had a chance to talk with their clients regarding the complexity designation and how that affects their speedy trial issue.” Id. at 23:3-5. .

Following the hearing on October 4,-2004, 40 days from the operative Speedy Trial Act date, the Court entered a written order tolling the time period under the Act pursuant to 18 U.S.C. §§ 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). Order (Oct. 4, 2004). Specifically, the Court cited the nature of the case (eight codefendants and an alleged conspiracy to rob six separate banks on six different dates), the possible testimony (expert testimony on DNA, hair, fingerprint, and firearm analysis, and testimony of lay witnesses from the banks), as well as the number of potential witnesses at trial (potentially sixty government witnesses). Id. at 1-2. In its order, the Court noted that it was “the consensus of the parties and the Court that it would be unlikely that this case would be ready to proceed to trial within the next several months due to the extensive discovery involved, the complexity of the case, and the breadth of forensic evidence requiring expert testimony.” Id. at 2.

The Court, specifically with the consent of Defendants, their counsel, and the Government, ultimately held that: (1) the case was so unusual or so complex, due to the nature of the prosecution that it was unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established under the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A), .(B)(ii) (2004); (2) the failure to grant the requested additional time to prepare the case would result in a miscarriage of justice to the Defendants, 18 U.S.C. § 8161(h)(8)(B)(i) (2004); and (3) the failure to grant the requested additional time would deny the Defendants reasonable time necessary for the effective preparation of the case, taking into account the exercise of due diligence, 18 U.S.C. § 3161(h)(8)(B)(iv) (2004). Id. at 2-3. Based on these findings, the Court concluded that the ends of justice required that the case proceed to trial outside of the 70-day period prescribed by the Speedy Trial Act. Id. at 3.

Given the Court’s specific written findings tolling the time frame under the Speedy Trial Act in compliance with the requirements of 18 U.S.C. § 3161(h) (2004), the Court finds that Burwell’s related ineffective assistance of counsel claim fails. Burwell argues that the requirements of an “ends-of-justice” continuance were not met because the grant of a continuance allowed the Government to bolster its case against Burwell by giving the Government time to negotiate with code-fendants who testified against Burwell. Def.’s Memo, at 14. While one reason for granting the continuance was to give the prosecution time to prepare because of the complex nature of the case, this characterization is inaccurate because the continu-anee also specifically was granted to give the defense time to effectively prepare their case and to avoid a miscarriage of justice. Accordingly, it is clear that the Court granted the continuance only after specifically finding that it benefited both the Government and the Defendants.

Burwell also cites Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), in support of his argument. However, Zedner is distinguishable from the instant action. The Supreme Court in Zedner addressed the propriety of a district court’s grant of a continuance when the court did not make express findings on the record either orally or in writing regarding the end-of-justice balance. Zedner, 547 U.S. at 506, 126 S.Ct. 1976. Here, it is clear that the Court made formal written findings on this issue close in time to the hearing and, as such, Zedner is distinguishable.

Finally, Burwell asserts that “at no point did counsel ever explain to Petitioner his right to a speedy trial, or the mandatory dismiss[al] for that violation.... Had counsel- done so in this case, Petitioner would have insisted that a motion to dismiss was filed.” Defi’s Memo, at 14. Even assuming arguendo that Burwell’s counsel did commit an error by not advising of him -of his statutory Speedy Trial rights, and that his counsel misrepresented that he had explained his rights to his client and that his client had consented to the designation of the ease as complex, Burwell was not prejudiced by this error. The Court tolled the time under the Speedy Trial Act pursuant to 18 U.S.C. §§ 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). None of those provisions require the consent of the defendant. Rather, a party or the Court may move for tolling under these provisions, but the Court applying the appropriate legal standard must determine whether such a continuance is permissible. Accordingly, even if Bur-well’s counsel had objected to the tolling of the time prior to the entry of the Court’s findings, it is not reasonably likely that this objection would have dissuaded the Court from finding that the case was complex and that all parties needed additional time to prepare given that this was a case involving several codefendants alleged to have been involved in a conspiracy that included the armed robbery of six different banks. Further, if Burwell’s counsel moved to dismiss the indictment on the basis that there was a violation of the Speedy Trial Act, it is not reasonable to conclude that the Court would have dismissed the indictment given that it followed the required procedures under the Act for tolling. See Order (Oct. 4, 2004). Finally, the Court notes that Burwell and his codefendants filed 40 substantive pretrial motions which added to the complexity of the case and independently tolled the Speedy Trial clock. See 18 U.S.C. § 3161(h)(1)(F) (2004). Accordingly, the Court concludes that there was no Speedy Trial Act violation in the instant action regardless of the consent issue.

Given that the Court followed the required process for tolling time under the Speedy Trial Act regardless of whether Burwell consented to the tolling, Burwell cannot establish that his counsel acted in an objectively unreasonable manner by failing to move to dismiss the case on the basis that the Court violated the 70-day requirement of the Act, nor can he establish that there is a reasonable likelihood of a different result had trial counsel made such a motion. Accordingly, Burwell’s ineffective assistance of counsel claim premised on trial counsel’s failure to move to dismiss the instant action on the basis of a Speedy Trial Act violation is without merit.

B. Double Jeopardy and Multiplicity Challenges

Burwell next argues that his trial counsel was ineffective by failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and for failing to move to dismiss the indictment based on this challenge. Def.’s Memo, at 15-18, 21, 24-25; Def.’s Reply at 1-2. Specifically, Burwell objects to Count I of the indictment, conspiracy to participate in a racketeer influenced corrupt organization (“RICO”) pursuant to 18 U.S.C. § 1962(d), which Burwell argues is multi-plicitous of the other charged robbery offenses. Def.’s Memo, at 15-18, 21; Def.’s Reply at 2. Burwell also argues that his multiple charges under 18 U.S.C. § 924(c), using and carrying a firearm during and in relation to a crime of violence, were improper. Def.’s Memo, at 16-17; Def.’s Reply at 2. Burwell’s claims for ineffective assistance of counsel on these issues fail because: (1) his trial counsel did challenge the RICO charge, Count I, prior to trial on the grounds that it was multipliei-tous and Burwell raises no additional valid arguments that his counsel should have advanced; and (2) Burwell was only charged with one count under 18 U.S.C. § 924(c), Count XI, and accordingly, he cannot argue that he was improperly charged with multiple offenses under section 924(c).

Turning first to the RICO charge, Bur-well’s counsel filed a Joint Defense Motion to Dismiss the Indictment due to Multiplic-itous and Duplicitous Charging prior to trial. Sealed Jt. Def.’s Mot. to Dismiss Indictment, ECF No. [172]. The Court issued a Memorandum Opinion on March 16, 2005, finding that Burwell’s arguments were without merit. Memo. Op. (Mar. 16, 2005), at 13-22, ECF No. [437], While Burwell at one point concedes that his trial counsel actually did argue that the RICO charge constituted double jeopardy and a multiplieitous charge, Burwell then asserts that his trial counsel’s “arguments were deficient,” and “[h]ad counsel made the proper arguments there is reasonable probability that the substantive count would have been dismissed.” Def.’s Memo, at 25. Burwell appears to raise two arguments as to the deficiency of the arguments raised in the motion: (1) trial counsel should have relied on different case law to establish that the RICO charge was multiplieitous of other charged offenses; and (2) trial counsel should have argued that the RICO charge and the charge of armed robbery of the Industrial Bank were multiplicitious. The Court shall address each argument in turn.

Burwell asserts that the RICO charge required proof that Burwell: committed the robberies at issue; protected members of the enterprise; maintained weapons, body armor, and money of the enterprise in safe places; and retaliated against persons who interfered with the operation of the- enterprise. Burwell argues that this conduct also forms the bases of other charged offenses for which Burwell was convicted and, accordingly, the RICO charge violates the Double Jeopardy clause. Def.’s Memo, at 15. Burwell provides a lengthy quote from the Second Circuit’s holding in United States v. Basciano, 599 F.3d 184 (2d Cir.2010), in support of his argument. However, Basciano is distinguishable from the instant action because in that case, the Second Circuit addressed the issue of bringing multiple RICO charges against the same defendant based on the same enterprise. See id. at 188-89 (indicating that the defendant was indicted for one count of substantive racketeering, and three counts of conspiracy to murder in the aid of racketeering, and that the government conceded that the racketeering charges stemmed from the same enterprise but argued that they involved different patterns of racketeering). In contrast, the instant action does not raise the same concerns as those in Basciano because Burwell was charged with one RICO charge related to one enterprise. Accordingly, the Court is not persuaded that Burwell’s counsel was ineffective by failing to make this additional argument on Burwell’s behalf.

Further, to the extent that Burwell may be arguing that the RICO charge (Count I), and the armed robbery of the Industrial Bank on or about June 12, 2004 (Count X) are multiplieitous charges, an argument that does not appear to have been advanced in his pre-trial motion, the Court finds that this argument also is without merit. Multiplieitous charges “improperly prejudice a jury by' suggesting that a defendant has committed not one but several crimes.” United States v. Reed, 639 F.2d 896, 904 (2d Cir.1981). “An indictment is multiplieitous, and thereby defective, if a single offense is alleged in a number of counts, unfairly increasing a defendant’s exposure to eriminál sanctions.” United States v. Anderson, 39 F.3d 331, 353-54 (D.C.Cir.1994), rev’d en banc, 59 F.3d 1323 (D.C.Cir.1995) (en banc). Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the relevant test for determining whether two counts of an indictment are multiplicitous is as follows: “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [count] requires proof of an additional fact which the other does not.” Id. at 304, 52 S.Ct. 180. However, “the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Indeed, “the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress.” Id. Accordingly, it is particularly relevant to the instant action that “Congress intended that a RICO violation be a discrete offense that can be prosecuted separately from its underlying predicate offenses.” United States v. Crosby, 20 F.3d 480, 484 (D.C.Cir.1994).

Here, Count I charges racketeering acts that require the Government to establish an “enterprise” and the “continuing” commission of stated offenses such as armed robbery and acts involving murder. In contrast, Count X is a charge for the substantive crime of armed robbery. Given the clear congressional intent to allow RICO violations to be prosecuted separately from underlying offenses, the Court finds that Counts I and X are not multi-plicitous in violation of the Double Jeopardy clause. Accordingly, the Court cannot conclude that trial counsel acted in an objectively unreasonable manner by not raising this specific challenge to Burwell’s indictment.

Turning to Burwell’s argument regarding Count XI, using and carrying a firearm during a crime of violence under 18 U.S.C. § 924(c), Burwell points to case law to support his argument that the charge under this section was improper. Burwell cites the D.C. Circuit’s ruling in United States v. Anderson, 59 F.3d 1323 (D.C.Cir.1995) (en banc), in which the Circuit held that a defendant could not be convicted of multiple counts of using or carrying a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1), if each of the charges was tied to the same predicate offense, in that case a narcotics conspiracy. Anderson, 59 F.3d at 1324-25, 1334. Burwell also cites to the D.C. Circuit’s holding in United States v. Wilson, 160 F.3d 732 (D.C.Cir.1998), that a defendant cannot be convicted of more than one offense under 18 U.S.C. § 924(c), based on one use of one firearm but with two underlying offenses. Id. at 748-50. Anderson and Wilson are not instructive because those cases deal with the propriety of convicting a defendant of more than one violation of 18 U.S.C. § 924(c), and in the instant action, Burwell was charged with only one count (Count XI), of using and carrying a firearm during a crime of violence under section 924(c).

Given that Burwell has pointed to no additional, valid arguments that his counsel should have raised, the Court finds that trial counsel, who moved the Court to dismiss the indictment based on several double jeopardy and multiplicity challenges prior to trial, did not act in an objectively unreasonable manner. Accordingly, the Court finds that Burwell’s ineffective assistance of counsel claims related to the multiplicity and double jeopardy challenges to the indictment are without merit.

C. Confrontation Clause Challenge

Burwell next alleges that his trial and appellate counsel rendered ineffective assistance of counsel by fading to raise a Confrontation Clause challenge to records and affidavits admitted into evidence at trial to establish that the banks that were robbed were Federal Deposit Insurance Corporation (“FDIC”) insured, one of the elements of Count II. Specifically, Bur-well objects to the admission of documents establishing the insured status of four banks — Bank of America, Riggs Bank, Chevy Chase Bank, and SunTrust — along with affidavits attesting to the fact that the documents were official records of the FDIC; the records and accompanying affidavits were admitted into evidence at trial without objection. See Ex. CCB-001 (Proof of Insured Status for Chevy Chase Bank), ECF No. [837-1]; RB-001 (Proof of Insured Status for Riggs Bank), ECF No. [837-2]; BOA-OOl (Proof of Insured Status for Bank of America), ECF No. [837-3]; SUN-001 (Proof of Insured Status for SunTrust Bank), ECF No. [837-4]. The Court finds that this claim is without merit for the several reasons described below.

First, Burwell’s claim fails because the official records and accompanying affidavits were not testimonial and, thus, do not invoke Confrontation Clause challenges. As the Government properly points out, the records themselves were admitted into evidence under the public records exception to the hearsay rule. See Fed.R.Evid. 803(8) (Hearsay Exception for Public Records). Further, the affidavits were admitted pursuant to Federal Rule of Evidence 902(4), to establish that the evidence was self-authenticating as certified copies of public records.

Burwell relies on the Supreme Court’s holding in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), in support of his Confrontation Clause argument. In Melendez-Diaz, the Supreme Court held that affidavits showing the results of forensic analyses performed on seized substances are testimonial statements and, accordingly, analysts are witnesses under the Confrontation Clause of the Sixth Amendment. Id. at 309-11, 129 S.Ct. 2527. The Court clarified that affidavits “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” id. at 311, 129 S.Ct. 2527 (quoting Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)), are testimonial statements and, accordingly, the authors of such affidavits are witnesses for the purposes of the Confrontation Clause of the Sixth Amendment. Id. at 311, 129 S.Ct. 2527. The Court found that “[a]bsent a showing that the [authors of the affidavits] were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the [authors of the affidavits] at trial.’ ” Id. In drawing a connection between the affidavits at issue in Melendez-Diaz, and the affidavits certifying the FDIC records in this instant action, Bur-well argues that his trial counsel erred by failing to raise a Confrontation Clause challenge to the admissibility of the affidavits reflecting that the banks were insured by the FDIC because the authors of the affidavits did not testify at trial. The Court finds that this argument fails based on the relevant case law on this issue.

Indeed, the Supreme Court in Melendez-Diaz, appeared to distinguish between situations in which an affidavit is used to authenticate an otherwise admissible record from an affidavit created for the sole purpose of providing evidence against a defendant. See Melendez-Diaz, 557 U.S. at 322-23, 129 S.Ct. 2527. This Court itself has held that an affidavit certifying the authenticity of a record is not testimonial and, accordingly, not subject to the Confrontation Clause. As this Court held, “[fit is the records, not the certification, that are introduced into substantive evidence against the defendant during trial. The certifications at issue are simply ‘too far removed from the ‘the principal evil at which the Confrontation Clause was directed’ to be considered testimonial.’ ” United States v. Edwards, Crim. Case No. 11-129-1, 1, 11(CKK), 2012 WL 5522157, at *2 (D.D.C. Nov. 15, 2012) (quoting United States v. Ellis, 460 F.3d 920, 920 (7th Cir.2006)). The Court finds the affidavits were not testimonial within the meaning of the Confrontation Clause because the affidavits in question were created only to certify the authenticity of the public records, and not to provide substantive evidence against Burwell at trial.

Second, Burwell’s claim fails because there was independent testimony at trial that each of the four banks were FDIC-insured and Burwell’s counsel was presented with the opportunity to cross-examine these witnesses on the issue. Tr. 1216:6— 21 (Apr. 18, 2005) (Testimony of Viola J. Scott, banking center manager at Bank of America branch); Tr. 1463:23-1464:10 (Apr. 19, 2005) (testimony of Ricardo Young, assistant manager at Riggs Bank branch); Tr. 1543:5-19 (Apr. 20, 2005) (Testimony of Jacqueline Caldwell, bank manager at Chevy Chase Bank branch in ■ Hyattsville, MD); Tr. 1634:15-23 (April 20, 2005) (Testimony of Curtis Oliver, branch manager at Chevy Chase Bank branch in Silver Hill, MD); Tr. 2168:11-2169:2 (Apr. 25, 2005) (Testimony of Charlene Hollings, branch manager of SunTrust Bank branch). Finally, Burwell’s claim fails because he has not pointed to any evidence that his counsel failed to present that re-, futed the assertion that the banks were in fact FDIC-insured, nor does Burwell himself at this juncture appear to be claiming that the banks were not FDIC-insured.

Given that the evidence in question does not raise Confrontation Clause concerns and that defense counsel was presented with the opportunity to cross-examine witnesses who testified that each bank was FDIC-insured, the Court finds that both trial counsel and appellate counsel did not act in an objectively unreasonable manner By failing to raise this challenge either at trial or on appeal. Nor does the Court find that Burwell was prejudiced by counsels’ failure to raise this claim because Burwell has not pointed to any evidence to rebut the claim that the banks were FDIC-insured. Accordingly, the Court concludes that Burwell’s claim that his counsel rendered him ineffective assistance of counsel by failing to raise a Confrontation Clause challenge is without merit.

D. General Performance During Trial

Burwell next alleges that his counsel rendered ineffective assistance by failing to cross-examine witnesses, by failing to employ a “theory of defense,” and by generally providing a “poor overall performance” at trial. The Court finds that Burwell has failed to establish that his trial counsel was deficient in any of these respects and, accordingly, his claims for ineffective assistance of counsel on these bases are without merit.

Burwell does not point to any specific witnesses whom his counsel failed to cross-examine. He simply explains that his counsel “during trial was ineffective with poor overall performance.” Def.’s Memo, at 22. Specifically, Burwell argues that his counsel’s strategy was to remain silent as much as possible due to Burwell’s lesser role and lesser charges as compared to his codefendants. Id. Burwell further asserts that “[djuring the trial[,] testimony from government witnesses was inconsistent and counsel still waited for other defense lawyers to object and [did] not applying any theory of defense what so ever.” Id. at 23.

Under Strickland, in order to establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient, and that the deficient performance prejudiced the defense. United States v. Brown, 398 Fed.Appx. 599, 600 (D.C.Cir.2010). However, the Court is not required to consider both prongs of the test if it can dispose of the claim on one or the other. Id. Here, Burwell has failed to meet the first prong because he has not shown that his counsel’s performance was deficient. Burwell’s vague claim that his counsel should have cross-examined unnamed government witnesses is insufficient to overcome the strong presumption that his counsel’s representation at trial was adequate and reasonable. See United States v. Rush, 910 F.Supp.2d 286, 293-94 (D.D.C.2012) (holding that defendant’s broad claim that counsel failed to secure and adequately explain the terms of her plea agreement was insufficient to overcome the presumption that her counsel’s representation was reasonable); Simms v. United States, 730 F.Supp.2d 58, 61 (D.D.C.2010) (holding that “vague and conclusory” allegations that counsel’s representation was ineffective are not enough to overcome the strong presumption of effective representation). Indeed, Burwell has pointed to no specific witnesses that he argues his attorney should have cross-examined, other than generally referring to the testimony, of “government witnesses,” that spanned over roughly eight weeks.

Burwell’s allegation that his counsel employed “no theory of defense” and, thus, was ineffective similarly fails. While Bur-well asserts that his counsel employed no “theory of defense,” in the same passage he does indicate that his counsel employed the strategy of minimally speaking at trial to deflect focus away from Burwell and on to his codefendants who allegedly had played a larger role in the conspiracy. Def.’s Memo, at 22-23. Indeed, the assertion that Burwell’s counsel made a strategic decision to allow codefendants’ counsel to speak more frequently in order to draw attention away from Burwell’s alleged role does not establish that Burwell’s counsel had no theory of the defense. As the Government points out, Burwell’s counsel pursued an alibi defense which is well within the range of professionally reasonable judgments. Govt.’s Opp’n at 17. Given the nature of the charges against Burwell as compared to those of his code-fendants and the nature of the evidence, Burwell has not demonstrated that his trial counsel’s performance was in any way deficient based on his alleged failure to employ a theory of the defense. See Strickland, 466 U.S. at 681, 104 S.Ct. 2052 (“[Sjtrategic choices about which lines of defense to pursue are owed deference commensurate with the reasonableness of the professional judgments on which they are based.”). Similarly, Burwell’s general allegation that his defense counsel waited for codefendants’ counsel to object does not establish either that Burwell’s counsel’s performance was deficient or that such a deficiency prejudiced Burwell, given that objections were made by other counsel and Burwell has pointed to no specific objection that should have been raised but was not. Finally, Burwell’s bare allegation that his counsel was ineffective by giving a “poor overall performance” is simply not enough to overcome the presumption that his counsel’s representation was reasonable. See Def.’s Memo, at 22.

Burwell has made no specific arguments to support the contention that his trial counsel’s performance was deficient by failing to cross-examine unspecified witnesses, employing “no theory of defense,” or generally providing what Burwell deemed a “poor overall performance” at trial with no specific information. Accordingly, Burwell’s ineffective assistance of counsel claims on these bases fail.

E. Burwell’s Right to Testify at Trial

Burwell raises the claim that his counsel was ineffective by failing to allow him to testify on his own behalf despite Burwell “plead[ing] with counsel” to be able to do so. Def.’s Memo, at 22. The D.C. Circuit explained that ineffective assistance of counsel claims premised on the argument that a defendant was denied his right to testify on his own behalf should be analyzed in a manner consistent with the two-part Strickland test. United States v. Tavares, 100 F.3d 995, 998 (D.C.Cir.1996), cert. denied, 520 U.S. 1160, 117 S.Ct. 1344, 137 L.Ed.2d 502 (1997). The Court must “continue to assign special significance to the defendant’s precluded right to testify and at the same time to inquire whether it is reasonably probable that the defendant’s testimony would have changed the outcome of the trial in his favor.” Id. Indeed, a defendant’s testimony would have no impact or a negative impact at trial in some cases. Id.

The Court first notes that in the instant action, Burwell was placed under oath on June 13, 2005, and Burwell, after being fully advised of his right to testify by the Court, indicated that he was undecided on the issue of whether or not to testify. Tr. 6909:12-6911:24 (Jun. 13, 2005). On June 16, 2005, the Court again asked Burwell if he had made a decision regarding his right to testify, Tr. 7472:1-4 (Jun. 16, 2005), and Burwell indicated on the record, “I have made my decision and I don’t want to testify,” id. at 7472:5-6. Further, Burwell has offered absolutely no evidence as to what testimony he would have presented at trial that would have changed the outcome. See Tavares, 100 F.3d at 998 (considering an affidavit submitted by the defendant describing what testimony he would have provided at trial). The Court finds that Burwell’s claim for ineffective assistance of counsel must fail because Burwell has failed to establish that he was prejudiced in any way by his failure to testify. See Wilson v. United States, Crim. No. 96319-01(CKK), 2005 WL 6293747, at *9-10 (D.D.C. Sept. 12, 2005) (finding that a defendant must establish that his testimony would have sufficiently supported his alibi defense so as to create a reasonable probability that the result of the trial would have been different); Townsend v. United States, Crim. No. 88-254-03(TFH), 2000 WL 35761242, at *5 (D.D.C. Aug. 28, 2000) (denying defendant’s ineffective assistance of counsel claim premised on the allegation that he was told by his defense attorney that he could not testify due to his criminal record when defendant did not allege that his testimony would have altered the outcome of the trial or that he had information that was substantially useful to his defense). The Court cannot conclude that Burwell was prejudiced in any way by his failure to testify at trial and, accordingly, the Court finds that his ineffective assistance of counsel claim related to this issue fails. Moreover, Burwell made the decision during trial not to testify.

F. Government Misconduct

Burwell next argues that his trial counsel was ineffective by failing to challenge government misconduct at trial or on appeal. Def.’s Memo, at 24, 28. Generally, Burwell asserts that from a review of the trial transcripts, “it is clear that the government vouched for its witnesses and made several prejudicial remarks to the jury during closing.” Id. at 24. Burwell also alleges that two coconspirators turned government witnesses both testified that they were not expecting and had not been promised any benefit for testifying at trial. Id. The Court shall address each claim in turn.

First, the vague assertion regarding the government’s closing argument is insufficient to establish that Burwell’s counsel’s performance fell below an objective standard of reasonableness. Indeed, Burwell cannot overcome the strong presumption that his counsel acted reasonably by simply lodging a vague objection that the government vouched for unidentified witnesses and made prejudicial remarks during closing without citing a single example of objectionable conduct. See United States v. Moore, 651 F.3d 30, 85 (D.C.Cir.2011) (Defendant must raise a “ ‘colorable claim’ by making ‘factual allegations that, if true, would establish a violation of his sixth amendment right to counsel.’ ”); United States v. Rush, 910 F.Supp.2d 286, 293-94 (D.D.C.2012) (requiring more than a broad claim that counsel failed to secure and adequately explain the terms of a plea agreement to overcome the presumption that defense counsel’s representation was reasonable). Accordingly, the Court finds that Burwell’s claim that his trial and appellate counsel were ineffective by failing to challenge unspecified incidents of pros-ecutorial misconduct is without merit.

Second, Burwell asserts that government witnesses Noureddine Chtaini and Antwon Perry both testified that they were not expecting nor had been promised any benefit for testifying. Defi’s Memo, at 24. Burwell’s assertion that both Chtaini and Perry testified that they had not been promised anything in exchange for then-testimony is incorrect. Specifically, Chtai-ni indicated that he had pled guilty to multiple charges, Tr. 3102:16-3104:4 (May 3, 2005), and, if he complied with the terms of his agreement including testifying truthfully and , cooperating with the Government, that the Government would submit a 5K letter requesting a sentence that departed from the Guideline range, id. at 3104:25-3105:15. Chtaini also indicated that he had not yet been sentenced, but that he would sentenced by this Court and that no one had indicated to him what sentence this Court would impose. Id. at 3105:16-24. Similarly, Perry indicated that he had entered a guilty plea, that he discussed the sentencing guidelines with his attorney, that he was cooperating in hopes of getting a lesser sentence, and that although he would be sentenced by this Court, he had not yet been sentenced. Tr. 5486:1-5488:6 (Jun. 1, 2005).

Accordingly, Burwell cannot establish that either his trial or appellate counsel was ineffective for failing to object to, or raise on appeal, this issue, because it is clear from the record that neither witnesses testified that he was not expecting ’ any benefit in exchange for testifying.

G. Defendant’s Closing Argument

Burwell next argues that his counsel was ineffective by failing to use the allotted time for closing argument in an efficient manner. Def.’s Memo, at 23. Specifically, Burwell asserts that his counsel used an ineffective strategy by choosing to use half of the 30-40 minutes to deliver an anecdote. Id. “[CJounsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). Accordingly, “[j]udicial review of a defense attorney’s summation is ... highly deferential.” Id. at 6, 124 S.Ct. 1. In order to show that his counsel’s closing argument was ineffective as to violate the Sixth Amendment, Burwell must meet the Strickland test by showing that (1) his counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Smith v. Spisak, 558 U.S. 139, 149, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Here, Burwell’s claim fails because neither prong of the test is met based oh the record.

First, Burwell’s counsel’s use of an anecdote during closing was not objectively unreasonable. See Tr. 7881:7-7883:23 (Jun. 20, 2005). In his closing argument, Burwell’s counsel first reminded the jury that the burden of proof rested at all times with the Government, and reminded the jury of the charges that specifically were pending against Burwell. Id. at 7872:1-7873:4. Burwell’s counsel then spent a large amount of time attacking the government’s evidence against Burwell, and emphasizing evidence that demonstrated Burwell’s innocence. Id. at 7873:5-7881:6. Finally, Burwell’s counsel chose to employ an anecdote about defense counsel and his brother eating a pie and then blaming it on a cat to avoid being punished by their mother to close the argument. Id. at 7881:7-7883:23. Given the strong presumption that his counsel’s conduct was within the wide range of reasonable professional assistance, the Court finds that the use of this anecdote during his closing was not objectively unreasonable such that Burwell’s counsel’s closing argument was deficient. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Indeed, Burwell’s counsel spent the majority of his allotted time pointing to discrepancies between the testimony of government witnesses and Burwell’s witnesses, and discussing the alternative reason why Burwell’s DNA was found on one of the vests. Tr. 7873:5-7881:6 (Jun. 20, 2005). The fact that at the end of closing, Burwell’s counsel chose to use an anecdote illustrating Burwell’s defense theory in support of his argument is simply not enough to demonstrate that he provided objectively unreasonable representation. Further, even assuming arguendo, that defense counsel’s closing was deficient, Burwell does not point to any evidence that his counsel should have, but failed to point to during his closing argument, nor does Burwell even point to any general argument that he claims would have been more effective. Accordingly, the Court concludes that Burwell’s ineffective assistance of counsel claim as it relates to the closing argument fails.

H. Informant Jury Instruction

Burwell next argues that his trial counsel rendered him ineffective assistance of counsel by failing to request an “informant jury instruction.” Specifically, Burwell asserts “the jury need[ed] to be instructed to scrutinize the informant testimony more carefully than other witnesses, even biased witnesses, because of the potential for perjury born out of self-interest.” Def.’s Memo, at 20. Burwell points to the testimony of two codefen-dants turned government witnesses in relation to this claim. Id.

Burwell’s claim fails because the record reflects that the Court did, in fact, give instructions regarding witnesses with plea agreements and witnesses who are accomplices. The instructions as read during trial follow:

Now, you’vé heard evidence that Nour-eddine Chtaini, Omar Holmes and Ant-won Perry each entered into separate plea agreements with the government, pursuant to which each of these witnesses agreed to testify truthfully in this case, and the government agreed to dismiss charges against him and/or decline prosecution of charges against him, and bring the witness’s cooperation to the attention of the sentencing court on the remaining charges.

The government is permitted to enter into this kind of plea agreement. You in turn may accept the testimony of such a witness and convict the defendant on the basis of this testimony alone, if it convinces you of the defendant’s guilt beyond reasonable doubt.

A witness who has entered into a plea agreement is under the same obligation to tell the truth as is any other witness, because the plea agreement does not protect, him against prosecution for perjury or false statement, should he lie under oath.

However, you may consider whether a witness who has entered into such an agreement has an interest different from any other witness. , A witness who realizes that he may be able to obtain his own freedom or receive a lighter sentence by giving testimony may have a motive to lie.

The testimony of a witness who has entered into a plea agreement should be received with caution and scrutinized with care. You should give the testimony such weight as in your judgment it’s fairly entitled to receive.

Now, you’ve also heard that Omar Holmes and Noureddine Chtaini were accomplices. Accomplices in the commission of a crime are competent witnesses, and the government has the right to use them as witnesses. An accomplice is anyone who knowingly and voluntarily cooperates with, aids, assists, advises or encourages another person in the commission of a crime, regardless of his degree of participation.

The testimony of an alleged accomplice should be received with caution and scrutinized with care. You should give it such weight as in your judgment it’s fairly entitled to receive. If the testimony of an alleged accomplice is not supported by other evidence, you may convict the defendant upon that testimony only if you believe that it proves the guilt of the defendant beyond a reasonable doubt.

Tr. 7996:1-7997:16 (Jun. 21, 2005).

Accordingly, Burwell’s ineffective assistance of counsel claims fail on this issue because the Court did give the relevant instruction.

I. Theory of Defense Instruction

Next, Burwell argues that his trial counsel rendered him ineffective assistance of counsel by failing to request a theory-of-defense jury instruction. Def.’s Memo, at 23-24. “A theory-of-defense instruction is in order if there is ‘sufficient evidence from which a reasonable jury could find’ for the defendant on his theory.” United States v. Hurt, 527 F.3d 1347, 1351 (D.C.Cir.2008). In assessing Burwell’s claim, the Court again employs the Strickland test for ineffective assistance of counsel. See id. at 1356.

As an initial matter, Burwell’s claim fails because he does not point to any specific theory-of-defense instruction to which he believes that he was entitled. Rather, he simply states that his counsel should have requested such an instruction without any specificity. Furthermore, the Court gleans from the record and the instant motion that Burwell’s defense consistently has been that he was not present at the specific bank robbery to which he was charged as corroborated by an alibi, and that his DNA was present on one of the vests because he had previously owned it. Indeed, the Court is unable to identify any other defense advanced by Burwell. Here, while Burwell’s counsel did not request a specific theory-of-defense instruction, see Tr. 8050:1-8051:1 (Jun. 21, 2005), the Court did give a particularized alibi instruction in which Burwell was identified:

Now this is the instruction on alibi. Evidence has been introduced that defendant Bryan Burwell was not present on June 12, 2004, and defendant Marvin Palmer was not present at the time when and the place where the offense was allegedly committed.

The defendant may not be convicted of the offense with which he is charged unless the government proves beyond a reasonable doubt that the defendant was present at the time when and the place where the offense allegedly was committed. If, after a full and fair consideration of all the facts and circumstances in evidence, you find that the government has failed to prove beyond a reasonable doubt that the defendant was present at the time when and the place where the offense charged was allegedly committed, you must find the defendant not- guilty.

Id. at 8049:12-25.

Given that the jury instruction regarding alibis related to Burwell, the Court cannot find that defense counsel’s failure to also request another theory-of-defense instruction fell below an objectively unreasonable standard in light of professional norms. Nor can the Court conclude that the outcome would have been different if trial counsel had requested a theory-of-defense instruction given that the instructions as a whole convey the substance of Burwell’s defense in light of the alibi instruction. Cf. Hurt, 527 F.3d at 1351 (holding that a trial court’s mistaken refusal of a requested jury instruction is not a reversible error if the instructions as a whole adequately convey the substance of the requested instruction). Accordingly, the Court finds that Burwell’s claim that his trial counsel rendered him ineffective assistance of counsel by failing to request a theory-of-defense instruction is without merit.

J. Request for Polling of the Jury

Burwell asserts that he was rendered ineffective assistance of counsel because his trial counsel failed to request a polling of the jury after the verdict. Bur-well argues that his counsel should have made this request due to “ambiguous markings on the verdict form,” the potentially confusing wording of the jury form, and the emotion of the foreperson when reading the verdict. Def.’s Memo, at 26-27. Burwell’s claim fails because the trial transcript reflects that Mr. Martin did request that the jury be polled, Tr. 8303:10-11 (July 15, 2005), and it is equally clear that the jury was in fact polled as a result of that request, id. at 8303:12-8306:18. Accordingly, Burwell’s claim for ineffective assistance of counsel on the basis that his counsel failed to request polling of the jury fails.

K. Juror Misconduct and Bias

Next, Burwell argues that his trial counsel failed to effectively represent him when allegations of juror misconduct and bias arose, and that his appellate counsel failed to raise the issue on appeal. Def.’s Memo, at 25-26, 28. Allegations of juror misconduct were raised in two post-trial motions by trial counsel. On August 15, 2005, codefendant Miguel Morrow filed a Motion for a New Trial which the Co