On Appeal from the United States District Court for the District of New Jersey (No. 2-06-cr-00028-001) District Judge: Honorable William J. Martini
The opinion of the court was delivered by: Chagares, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) March 22, 2012
Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.
The United States appeals the decision of the District Court to vacate and merge several of Douglas Kennedy‟s counts of conviction. A jury convicted Kennedy in July 2004 of crimes related to his possession with intent to distribute narcotics and his possession of two handguns. At the initial sentencing, the District Court granted Kennedy‟s motion for a new trial with respect to four counts of conviction. We reversed on appeal. On our limited remand for "re-sentencing only," the District Court sua sponte found certain counts of conviction multiplicitous and vacated another count on the basis that its own jury charge was plainly erroneous. We will vacate the District Court‟s judgment, once again reinstate all counts of conviction, and remand for resentencing. Regrettably, we find it necessary to direct the Chief Judge of the United States District Court for the District of New Jersey to reassign this case, and all related matters, to a different district court judge on remand.
In October and November 2004, Drug Enforcement Administration agents discovered a heroin distribution network operating out of a house in Clifton, New Jersey. The agents obtained information from wiretapped cell phone conversations that members of the network intended to make a sale at a Burger King restaurant in Newark, New Jersey on November 6, 2004. At the appointed hour, agents monitoring the Burger King observed two individuals from the Clifton house arrive in a livery cab. A black Cadillac automobile with tinted windows soon pulled into the parking lot. Carrying a red shopping bag with 200 bricks of heroin,*fn1 a woman exited the livery cab, got into the back seat of the Cadillac, then returned to the cab with a brown bag containing $24,000 in cash. As the vehicles left, agents tracked the Cadillac to a house in Irvington, New Jersey, and watched Kennedy exit from the driver‟s seat and enter the house. Parked in the driveway at the Irvington house was a green Lincoln Navigator automobile.
Based in part on these observations, agents obtained a search warrant for the house in Clifton. The search uncovered $72,000 in cash, large quantities of heroin stored in bags that resembled the red shopping bag seen in the Burger King transaction, and equipment used to process and package heroin. Agents also seized a ledger that recorded heroin transactions, and in particular listed the November 6 transaction. Esther Grullon, who was present in the Clifton house at the time of the search, quickly agreed to cooperate with the Government. She admitted that she took part in the Burger King transaction with Kennedy, who, she reported, was the driver of the Cadillac. One week earlier, she revealed, Kennedy and another man met her at the same Burger King to purchase a separate order of 200 bricks of heroin.
Armed with evidence of Kennedy‟s involvement in the drug ring, agents went to the Irvington residence to conduct surveillance the next morning, November 9, 2004. When they arrived, the black Cadillac was parked in the driveway, but the Lincoln Navigator was gone. Kennedy drove up to the house in the Lincoln some time later. Agents approached him, confirmed that he lived in the Irvington house, and placed him under arrest. They then obtained his consent to search the house, the Cadillac, and the Lincoln. Inside the home they found $8,300 in cash, ammunition, and a bag containing 10 grams of crack cocaine. Over the course of the search, Kennedy admitted that the bag of cocaine was his and that he was paid to transport the red shopping bag in the November 6 Burger King transaction.
Agents seized both vehicles and moved them to a secure location for a search by other agents and a drug- sniffing dog. Hidden under the center console of the Lincoln, they discovered, was a secret compartment containing a loaded handgun and four glassine envelopes with .15 grams of heroin. The brand stamped on the envelopes did not match the brands of heroin sold from the house in Clifton. The search did not uncover weapons or drugs inside the Cadillac. A year later, however, in November 2005, an employee performing routine maintenance on the Cadillac noticed abnormally loose wiring and a suspicious construction of the side panels on the center console. He dislodged one of the panels, exposing a secret compartment that had been overlooked in the first search of the Cadillac. Inside, agents found a second loaded handgun and 41 bricks of heroin. This heroin weighed 103.9 grams and bore a brand stamp that matched a stamp used by Grullon and the other Clifton distributors.
On January 12, 2006, a federal grand jury returned an indictment charging Kennedy with two counts of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B), 841(b)(1)(C), and 18 U.S.C. § 2, as well as one count of possession of a weapon by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The matter was assigned to an able, hardworking, and respected District Judge of the United States District Court for the District of New Jersey.
At the arraignment, the Assistant United States Attorney ("AUSA") detailed Kennedy‟s sentencing exposure, but emphasized that the recently uncovered evidence of the second gun and drugs in the Cadillac portended significantly greater exposure. The AUSA stated that if the parties did not reach a plea agreement, the Government planned to seek a superseding indictment charging Kennedy with two violations of 18 U.S.C. § 924(c). If proven, those charges alone would subject Kennedy to a mandatory 30 years in prison, to be served consecutively to any other sentence imposed. See 18 U.S.C. § 924(c)(1)(A)(i) (setting a five-year mandatory minimum for a violation of the statute), (c)(1)(C)(i) (setting a 25-year mandatory minimum for a "second or subsequent conviction" under the statute).
When plea negotiations faltered, the Government sought and obtained a superseding indictment on March 14, 2006 and a second superseding indictment on May 23, 2006. The latter indictment contained eight counts. Count 1 charged that from October 30, 2004 to November 9, 2004, Kennedy conspired with others to distribute and possess with intent to distribute 100 grams or more of a substance containing heroin, in violation of 21 U.S.C. § 846. Count 2, which referred to the heroin found in the Lincoln, charged possession with intent to distribute a quantity of heroin in violation of 21 U.S.C. § 841(a) and (b)(1)(C), and 18 U.S.C. § 2. Count 3 charged possession of a firearm in furtherance of the intended distribution of the heroin discovered in the Lincoln, in violation of 18 U.S.C. §§ 924(c) and 2. Count 4, which referred to the heroin found in the Cadillac, charged possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a) and (b)(1)(B), and 18 U.S.C. § 2. Count 5 charged possession of a firearm in furtherance of the conspiracy (Count 1) and in furtherance of the intended distribution of the heroin discovered in the Cadillac (Count 4), in violation of 18 U.S.C. §§ 924(c) and 2. Count 6, which referred to the cocaine found in the Irvington home, charged possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a) and (b)(1)(B), and 18 U.S.C. § 2. Count 7, which referred to the gun found in the Lincoln, charged possession of a weapon by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Count 8, which referred to the gun found in the Cadillac, charged possession of a weapon by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
The District Court held a four-day jury trial. After the close of evidence but before summations, and without the jury present, the court addressed Kennedy and his family present in the courtroom. Explaining that he has "never had this conversation with a defendant before," the Judge warned Kennedy that, if he were to be convicted on all charges, the court will have "absolutely no discretion" and "no choice" but to impose a 40-year sentence. App. 678-79. The Judge walked through the "extremely different" options facing Kennedy: either plead guilty and serve "an appropriate punishment" or risk a verdict that would result in "spending the rest of [his] life in jail and maybe never coming out because [he‟d] be an old man." Id. at 679-80. Kennedy elected to proceed with the trial. The next day, on July 28, the jury found him guilty on all counts.
Kennedy‟s attorney did not seek post-conviction relief or file a notice of appeal within the time allotted by the federal rules. On October 24, 2006, Kennedy filed a pro se motion requesting appointment of new counsel. The District Court granted the motion on November 2, 2006. On November 15, 2007, Kennedy‟s newly-appointed counsel moved for a new trial, arguing that the failure to move for a new trial within the period prescribed by the rules was excusable neglect. See Fed. R. Crim. P. 33(b)(2), 45(b)(1)(B). Through the motion, Kennedy contended that he had been denied his Sixth Amendment right to effective assistance of counsel because his trial attorney did not seek suppression of the gun and drugs found in the Cadillac. Moreover, he argued, his conviction was unlawful because the second superseding indictment improperly joined Counts 2 and 3 -- both of which involved contraband found in the Lincoln -- to the remaining counts, which concerned the Cadillac and the conspiracy. See Fed. R. Crim. P. 8(a). Alternatively, he theorized, the evidence adduced at trial proved the existence of two unrelated conspiracies and thus impermissibly varied from the indictment, which charged a single conspiracy.
On June 5, 2008, before ruling on the motion or proceeding to sentencing, the District Court held a status conference. The Judge told Kennedy that "[o]ne of the only ways that you can release the Court . . . from imposing th[e] mandatory minimum is if you were to be able to provide cooperation to the Government in some form." App. 904. When discussions between Kennedy and the Government bore no fruit, the District Court scheduled sentencing for August 21, 2008, more than two years after the date of conviction.
The court began the August 21 hearing by focusing on the pending motion for a new trial. Over the Government‟s objection, it found excusable neglect because trial counsel effectively abandoned Kennedy after the conviction. Turning to the merits, the court rejected Kennedy‟s misjoinder and variance arguments but found the ineffective assistance of counsel claim convincing. Trial counsel‟s failure to question the validity of Kennedy‟s consent to the searches and his decision not to seek suppression of the Cadillac gun and drugs on chain-of-custody grounds, the District Court ruled, amounted to constitutionally deficient representation.*fn2 Finding that counsel‟s deficiency resulted in prejudicial convictions, the District Court granted Kennedy‟s motion for a new trial with respect to Counts 1, 4, 5, and 8 -- all counts that were premised on the gun and drugs seized from the Cadillac. On the remaining counts of conviction -- Counts 2, 3, 6, and 7 -- the District Court imposed a 15-year term of incarceration, the minimum sentence authorized by Congress.
See 18 U.S.C. § 924(c)(1)(A); 21 U.S.C. § 841(a), (b)(1)(B)(iii) (2006).
Kennedy appealed and the Government cross- appealed. We affirmed the District Court‟s rejection of Kennedy‟s misjoinder argument and his effort to attain a new trial on all eight counts. United States v. Kennedy (Kennedy I), 354 F. App‟x 632 (3d Cir. Dec. 7, 2009). We held, however, that the District Court made two mistakes of law in its analysis of the ineffective assistance of counsel claim.*fn3
First, it erred in finding Kennedy‟s trial counsel constitutionally deficient by incorrectly placing upon the Government the burden to show that counsel was effective and by ignoring the possibility that counsel‟s decision not to mount a chain-of-custody attack was strategic. Second, it neglected to address in its discussion of prejudice whether Kennedy would have prevailed in a motion to suppress the Cadillac evidence. Based on the trial record, we concluded, Kennedy failed to demonstrate ineffective assistance of counsel. We therefore reversed the grant of a new trial on Counts 1, 4, 5, and 8 and remanded "for re-sentencing only." Id. at 639.
The District Court did not immediately set the matter for resentencing after we issued our mandate. Instead, "in anticipation of resentencing," it invited the parties to brief three issues: (1) whether Counts 3 and 5 were multiplicitous; (2) whether it was plain error to use "and/or" language in the jury charge on Count 5; and (3) whether the jury charge was inconsistent with Richardson v. United States, 526 U.S. 813 (1999). App. 1016-17. The Government submitted a sentencing memorandum that argued that only the multiplicity issue could be considered at sentencing; all other issues, it said, fell outside the mandate and were otherwise beyond the court‟s power to raise on its own initiative. It also disputed the issues on the merits. Kennedy did not submit briefing in anticipation of resentencing and did not file a second motion for a new trial.
The parties convened for resentencing on December 20, 2010. After a lengthy colloquy with the AUSA, the District Court announced that, even though it had not requested briefing on the matter, it would merge Counts 2 and 4 (the possession-with-intent-to-distribute counts) into a single count and likewise merge Counts 7 and 8 (the felon-in- possession counts) into a single count. The court explained that these sets of counts, which distinguished between contraband found in the Lincoln and contraband found in the Cadillac, charged Kennedy twice for single, undifferentiated offenses. The court also vacated the jury‟s verdict on Count 5, the second charge under 18 U.S.C. § 924(c). Having amended the counts of conviction in this way, the District Court resentenced Kennedy to 15 years in prison on the remaining counts. See 18 U.S.C. § 924(c)(1)(A); 21 U.S.C. § 841(a), (b)(1)(B)(iii) (2006).
Three days later, the District Court issued a memorandum opinion that set forth its reasoning. United States v. Kennedy (Kennedy II), Crim. No. 2:06-00028, 2010 WL 5418931 (D.N.J. Dec. 23, 2010). Endeavoring to apply a plain error standard of review, it began with its multiplicity rulings on Counts 7 and 8, the § 922(g)(1) convictions. The court identified as controlling authority United States v. Tann, which held that the allowable unit of prosecution under § 922(g) is the incident of possession and that possession of two firearms "seized at the same time in the same location supports only one conviction and sentence under § 922(g)(1)." 577 F.3d 533, 537 (3d Cir. 2009). Because Kennedy‟s gun in the Cadillac and his gun in the Lincoln "were within eyeshot of one another," the District Court found that Kennedy had simultaneously possessed both firearms. Kennedy II, 2010 WL 5418931, at *4. To remedy the multiplicity, it merged Counts 7 and 8 into Count 7.
The District Court next found that Count 2, which charged possession with intent to distribute under 21 U.S.C. § 841(a) for the heroin in the Lincoln, and Count 4, which charged possession with intent to distribute under § 841(a) for the heroin in the Cadillac, also were impermissibly multiplicitous. Punctuating its analysis for emphasis, it reasoned that both stashes of heroin were "seized by the police in a common operation working from a single surveillance post" and were "seized at the same time . . . and at the same street address." Id. at *6 (emphases in original). From this, the District Court concluded that Counts 2 and 4 also imposed cumulative punishment. Accordingly, it merged both counts into Count 2.*fn4
Having merged Counts 2 and 4 and Counts 7 and 8, the District Court next concluded that it must also merge Counts 3 and 5, the counts brought under § 924(c). As charged and tried, those counts relied on distinct predicate crimes. Count 3, which charged possession of the Lincoln handgun, furthered the intended distribution of the heroin found in the Lincoln (Count 2). And Count 5, which charged possession of the Cadillac handgun, furthered the intended distribution or conspiracy to distribute the heroin found in the Cadillac (Counts 4 and/or 1). Now that Counts 2 and 4 had been merged into a coterminous predicate offense, the District ...