2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-15-2012

USA v. Douglas Kennedy

Precedential or Non-Precedential: Precedential

Docket No. 11-1145

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1145

_____________

UNITED STATES OF AMERICA,

Appellant

v.

DOUGLAS KENNEDY

_____________

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

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 22, 2012

____________

Before: RENDELL, FISHER, and CHAGARES,

Circuit Judges.

(Filed: June 15, 2012)
2

Paul J. Fishman, United States Attorney

Mark E. Coyne, Assistant United States Attorney

John F. Romano, Assistant United States Attorney

Office of the United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellant

Michael N. Pedicini, Esquire

60 Washington Street

Courthouse Plaza

Morristown, NJ 07960

Counsel for Appellee

____________

OPINION 

____________

CHAGARES, Circuit Judge.

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 
3

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.

I.

A.

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,1a

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 

 

1 A “brick” of heroin is 50 single-use envelopes of heroin 

bundled together. Appendix (“App.”) 382-83.
4

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.
5

Agents seized both vehicles and moved them to a 

secure location for a search by other agents and a drugsniffing 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.

B.

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, 
6

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 
7

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 
8

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 
9

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.2 

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 crossappealed. 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.3 

 

2

In reaching this conclusion, the District Court denied the 

Government‟s request to obtain testimony from Kennedy‟s 

trial counsel to explore his trial strategy.

3 We also disapproved of the procedure employed by the 

District Court, reminding the court that claims of ineffective 

assistance of counsel typically should be asserted in collateral 

proceedings, not on direct review or in motions for a new 

trial.
10

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 
11

4 (the possession-with-intent-to-distribute counts) into a 

single count and likewise merge Counts 7 and 8 (the felon-inpossession 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. § 
12

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 2.4

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 

 

4

The District Court wrote, “[N]o sentence will be imposed 

for Count IV in regard to the evidence found in the Cadillac, 

and Counts II and IV are merged into Count II.” Kennedy II, 

2010 WL 5418931, at *7. It did not mention that Counts 2 

and 4 charged Kennedy under separate penalty subsections of 

the statute: Count 2 charged Kennedy under 21 U.S.C. § 

841(a) and (b)(1)(C), while Count 4 charged Kennedy under 

21 U.S.C. § 841(a) and (b)(1)(B). Count 4, the count for the 

heroin found in the Cadillac, charged Kennedy for a larger 

quantity of heroin and carried the higher penalty, a mandatory 

minimum sentence of 10 years, in light of his prior felony 

drug conviction. 21 U.S.C. § 841(a), (b)(1)(B) (2006). By 

choosing to merge Counts 2 and 4 into Count 2, the count that 

charged “a quantity of heroin” and carried no mandatory 

penalty, the District Court effectively wiped out the jury‟s 

finding that Kennedy had possessed with intent to distribute 

over 100 grams of heroin. 
13

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 

Court reasoned, controlling precedent permitted punishment 

for only one § 924(c) count. Id. at *8 (citing United States v. 

Diaz, 592 F.3d 467, 471 (3d Cir. 2010)). 

Recognizing that its rationale with regard to Count 5 

made sense only insofar as it assumed that the jury believed 

that Kennedy used the Cadillac handgun in furtherance of 

Count 4, but not Count 1, the District Court pivoted to 

consider the propriety of the jury charge on Count 5. It 

focused on the portion of the instruction that permitted the 

jury to convict if it found that Kennedy used the Cadillac 

handgun in furtherance of the conspiracy charged in Count 1 

“and/or” the distribution charged in Count 4. This “and/or” 

language, reasoned the District Court, might have led some 

jurors to conclude that Kennedy used the Cadillac gun in 

furtherance of the intended heroin distribution charged in 

Count 4, while others might have concluded that Kennedy 

used the Cadillac gun in furtherance of the heroin conspiracy 

charged in Count 1. Even though the jurors unanimously 

found Kennedy guilty on Counts 1 and 4 and received a 

general unanimity instruction, the District Court reasoned, 

they might not have agreed unanimously on which predicate 

crime supported Kennedy‟s conviction in Count 5 because the 

court did not give a unanimity instruction specific to the 

count. Analogizing to Richardson v. United States, 526 U.S. 
14

813 (1999), a case that did not interpret § 924(c),5it held that 

the predicate crimes in a § 924(c) charge are elements of the 

crime, and that the “and/or” language of the charge prevented 

anyone from knowing whether the jury unanimously agreed 

on the predicate crime. This, the District Court concluded, 

was not harmless error, and in fact was plain error. To 

remedy the mistake, the court vacated Kennedy‟s conviction 

on Count 5 and declined to impose the 25-year mandatory 

sentence prescribed by § 924(c)(1)(C)(i).

 The Government filed this timely appeal.6

 

5 Richardson involved 21 U.S.C. § 848(a), a statute that 

forbids individuals from engaging in a “continuing criminal 

enterprise.” To obtain a conviction under the statute, the 

Government must prove, among other things, that the 

defendant committed a violation of a federal drug laws that 

was “part of a continuing series of violations” of federal drug 

laws. 21 U.S.C. § 848(c)(2). The question was whether the 

jury must agree unanimously on each violation in the series, 

or whether the jury need only agree unanimously that the 

defendant committed a series of violations. Richardson, 526 

U.S. at 817-18. The Supreme Court held that each violation 

in the series is an element of the crime on which the jury must 

agree unanimously. Id. at 824. The District Court extended 

the reasoning in Richardson to conclude that a jury must 

unanimously agree on which offense is the predicate offense 

in a charge under § 924(c). 

6

The District Court had jurisdiction under 18 U.S.C. § 3231. 

We have jurisdiction under 18 U.S.C. §§ 3731 and 3742(b).
15

II.

This is our second encounter with this case. The 

mandate in our first opinion instructed the District Court, on 

remand, to conduct “re-sentencing only.” Kennedy I, 354 F. 

App‟x at 639. The Government argues that the District Court 

ignored that directive when it vacated Kennedy‟s conviction 

in Count 5. We must agree.

A.

From the earliest days of the republic, and continuing 

through today, the Supreme Court has “consistently held that 

an inferior court has no power or authority to deviate from the 

mandate issued by an appellate court.” Briggs v. Pa. R. Co., 

334 U.S. 304, 306 (1948) (citing Ex parte Sibbald v. United 

States, 37 U.S. (12 Pet.) 488 (1838); Boyce‟s Ex‟rs v. 

Grundy, 34 U.S. (9 Pet.) 275 (1835); The Santa Maria, 23 

U.S. (10 Wheat.) 431 (1825); Himely v. Rose, 5 Cranch 313 

(1809)); see also 28 U.S.C. § 2106; In re Sanford Fork & 

Tool Co., 160 U.S. 247, 255 (1895). As the Court explained 

in Ex parte Sibbald v. United States, 

Whatever was before the court, and is disposed of, is 

considered as finally settled. The inferior court is 

bound by the decree as the law of the case; and must 

carry it into execution, according to the mandate. 

They cannot vary it, or examine it for any other 

purpose than execution; or give any other or further 

relief; or review it upon any matter decided on appeal 

for error apparent; or intermeddle with it, further than 

to settle so much as has been remanded.
16

37 U.S. at 492. The principle, as firmly ingrained as it is 

fundamental to our hierarchical system of justice, “has 

remained essentially unchanged in nearly one hundred fifty 

years.” Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848, 

857 (3d Cir. 1994). By now, “[i]t is axiomatic that on remand 

for further proceedings after [a] decision by an appellate 

court, the trial court must proceed in accordance with the 

mandate and the law of the case as established on appeal.” 

Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 

949 (3d Cir. 1985). “A trial court must implement both the 

letter and spirit of the mandate, taking into account the 

appellate court‟s opinion and the circumstances it embraces.” 

Id.

This mandate rule serves important purposes. It 

preserves the proper allocation of authority within the tiered 

federal court structure set up by Congress and the 

Constitution. Casey, 14 F.3d at 857; Litman v. Mass. Mut. 

Life Ins. Co., 825 F.2d 1506, 1508 (11th Cir. 1987). It 

promotes predictability and finality by notifying parties of the 

matters that remain open on remand and committing the rest 

to final resolution. And it safeguards stability in the 

administration of justice, for the orderly functioning of the 

judiciary would no doubt crumble if trial judges were free to 

disregard appellate rulings. See Litman, 825 F.2d at 1511-12 

(“Post mandate maneuvering in the district courts would 

undermine the authority of appellate courts and create a great 

deal of uncertainty in the judicial process.”); cf. Hutto v. 

Davis, 454 U.S. 370, 375 (1982) (“[U]nless we wish anarchy 

to prevail within the federal judicial system, a precedent of 

this Court must be followed by the lower federal courts no 
17

matter how misguided the judges of those courts may think it 

to be.”).

We must examine whether the District Court adhered 

to the mandate in our first opinion or whether it ventured 

beyond its authority.7 After we remanded for resentencing, 

the District Court did not consult the mandate or attempt to 

discern its scope. Before merging counts of conviction and 

finding error in the jury charge for Count 5, it made a 

generalized claim of “latitude and discretion” to modify the 

jury‟s verdict in the course of resentencing Kennedy. App. 

1048. But it gave no explanation as to how those issues were 

germane to resentencing and declined to grapple with the 

Government‟s argument that the mandate curtailed its power 

to reconsider jury instructions. Had it done so, it could not 

have avoided the limited scope of the mandate, which 

directed the District Court to undertake “re-sentencing only.” 

Kennedy I, 354 F. App‟x at 639. Our use of the word “only” 

was not typical, nor was it accidental. Most often, when we 

find error that necessitates resentencing, we remand for 

“resentencing,” expecting that the district court will attend to 

resentencing and nothing more. By qualifying our mandate 

with the term “only,” we forewarned the District Court to be 

especially careful not to consider issues extraneous to 

resentencing. 

The District Court correctly concluded, and the 

Government conceded, that concerns over multiplicity may 

be addressed at sentencing. See United States v. Pollen, 978 

F.2d 78, 83 (3d Cir. 1992). The Double Jeopardy Clause of 

the Fifth Amendment “prevent[s] the sentencing court from 

 

7 We review this question de novo. Cooper Distrib. Co. v. 

Amana Refrigeration, Inc., 180 F.3d 542, 546 (3d Cir. 1999).
18

prescribing greater punishment than the legislature intended.” 

Missouri v. Hunter, 459 U.S. 359, 366 (1983). It is within the 

power of a sentencing court to construe the unit of 

prosecution that Congress intended in drafting a criminal 

statute “„to ensur[e] that the total punishment [does] not 

exceed that authorized by the legislature.‟” Pollen, 978 F.2d 

at 83 (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)). 

In considering whether Counts 7 and 8, 2 and 4, and 3 and 5 

were multiplicitous, then, the District Court addressed a 

matter pertinent to resentencing and within the scope of the 

mandate.

Reconsideration of the jury charge on Count 5, 

however, was not a matter germane to resentencing. Jury 

instructions go to the validity of a conviction, not to the 

content of the punishment. Confined on remand to conduct 

“re-sentencing only,” the District Court should have turned its 

attention to fashioning a sentence, consistent with the law, 

that was tailored to Kennedy and his crimes. The procedure 

for sentencing is set forth in Federal Rule of Criminal 

Procedure 32. That rule does not mention reconsideration of 

jury instructions. We gave district courts additional guidance 

on the proper sentencing procedure in United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006). That procedure 

does not permit revisiting the jury instructions sua sponte. 

The conclusion is inescapable that the District Court, finding 

error in its jury charge on its own initiative, ventured beyond 

the scope of our mandate.

B.

The failure of the District Court to abide by our 

mandate is reason enough to vacate its order with respect to 
19

Count 5. Equally troubling, however, is the District Court‟s 

failure to consider whether it had legal power to identify and 

raise the matter sua sponte. By finding its own jury 

instruction on Count 5 plainly erroneous and vacating 

Kennedy‟s conviction, the District Court implicitly ordered a 

new trial on the count. See, e.g., Neder v. United States, 527 

U.S. 1, 15 (1999) (“Reversal [of a conviction] without any 

consideration of the effect of [an error of omission in a jury 

instruction] upon the verdict would send the case back for 

retrial[.]”). That is, although Kennedy did not move for a 

new trial on Count 5 or choose to brief the matter upon the 

court‟s invitation, the District Court nevertheless persisted in 

granting him a new trial. This decision was contrary to 

Federal Rule of Criminal Procedure 33, which permits a 

district court to vacate a judgment and grant a new trial only 

“[u]pon the defendant‟s motion.” Fed. R. Crim. P. 33; see 

also Fed. R. Crim. P. 33, advisory comm. notes, 1966 

amends. (“[A] judge has no power to order a new trial on his 

[or her] own motion, [but] can act only in response to a 

motion timely made by a defendant.”); United States v. 

Wright, 363 F.3d 237, 248 (3d Cir. 2004); United States v. 

Newman, 456 F.2d 668, 672 (3d Cir. 1972). Because 

Kennedy made no such motion, the District Court was 

powerless under the federal rules to assert it on his behalf. 

* * * * *

Acting on its own initiative and contrary to our 

mandate, the District Court maneuvered beyond its authority 

in vacating the conviction on Count 5 and implicitly granting 

Kennedy a new trial. Accordingly, we will reinstate the 

conviction on Count 5.
20

III.

The Government argues that although the question of 

multiplicity fell within our mandate, the District Court erred 

in finding Counts 7 and 8, 2 and 4, and 3 and 5 multiplicitous. 

In each instance, the Government maintains that the District 

Court misapplied controlling precedent in holding that 

Kennedy was indicted and convicted twice for conduct that 

constituted a single offense. Kennedy defends the District 

Court‟s authority to address multiplicity, but offers no 

defense of the court‟s decisions on the merits. 

Multiplicity is the charging of a single offense in 

separate counts of an indictment. United States v. Carter, 576 

F.2d 1061, 1064 (3d Cir. 1978); Charles Alan Wright & 

Andrew D. Leipold, Federal Practice & Procedure: Criminal 

§ 142 (4th ed. 2008). A multiplicitous indictment risks 

subjecting a defendant to multiple sentences for the same 

offense, an obvious violation of the Double Jeopardy Clause‟s 

protection against cumulative punishment. See Hunter, 459 

U.S. at 366; Pollen, 978 F.2d at 83. The purpose of the 

constitutional protection against duplicative punishment is “to 

ensure that the sentencing discretion of courts is confined to 

the limits established by the legislature.” Ohio v. Johnson, 

467 U.S. 493, 499 (1984). It is not surprising, then, that the 

test for multiplicity examines “„whether the legislature 

intended to make separately punishable the different types of 

conduct referred to in the various counts.‟” United States v. 

Stanfa, 685 F.2d 85, 87 (3d Cir. 1982) (quoting Carter, 576 

F.2d at 1064). In this endeavor, we look to each statute‟s 
21

“unit of prosecution.” Tann, 577 F.3d at 536; United States v. 

Frankenberry, 696 F.2d 239, 244 (3d Cir. 1982).8

A.

The District Court first concluded that Counts 7 and 8, 

the felon-in-possession convictions under 18 U.S.C. § 

922(g)(1), were multiplicitous. Section 922(g) makes it 

unlawful “for any person . . . who has been convicted in any 

court of[] a crime punishable by imprisonment for a term 

exceeding one year . . . to . . . possess in or affecting 

commerce, any firearm or ammunition[.]” 18 U.S.C. § 

922(g)(1). The District Court reasoned that Counts 7 and 8 

must be merged because the Cadillac handgun and the 

Lincoln handgun were “within eyeshot of one another” and 

were “seized by the same group of police in the same 

operation at the same time at the same street address.” 

Kennedy II, 2010 WL 5418931, at *4-5 (emphases in 

original).

In United States v. Tann, we held that Congress made 

the allowable unit of prosecution under § 922(g)(1) the 

defendant‟s incident of possession. 577 F.3d at 537. The 

defendant in Tann was charged with two § 922(g) counts after 

officers in pursuit apprehended him and placed him under 

arrest in his bathroom. Id. at 534. The officers recovered 

ammunition for a handgun on the defendant‟s person and 

found the handgun in the bathroom. Id. at 534-35. We held 

that the seizure of the firearm and ammunition “at the same 

 

8 We review a claim of multiplicity de novo. United States v. 

Baird, 63 F.3d 1213, 1215 (3d Cir. 1995).
22

time in the same location” supported only one § 922(g)(1) 

conviction. Id. at 537. In arriving at this conclusion, we

relied heavily on United States v. Marino, which held that 

under a similar felon-in-possession statute, “simultaneous 

possession of several firearms by a convicted felon 

constitutes a single offense[.]” 682 F.2d 449, 454 (3d Cir. 

1982).

The District Court identified Tann and Marino as 

controlling but misapplied their reasoning. Both decisions 

were concerned with the character of the defendant‟s incident 

of possession; the conduct of the police at the time of the 

seizure was inconsequential. The District Court‟s emphasis 

on the fact that the same group of police seized both guns in a 

single operation therefore was mistaken, for neither factor 

bears on the multiplicity inquiry. What matters is the 

defendant‟s “course of . . . treatment of the firearms,” which 

“may not be viewed in a frozen, momentary state 

immediately prior to the seizure.” United States v. Mullins, 

698 F.2d 686, 687 (4th Cir. 1983). 

The District Court correctly found that both guns were 

seized at approximately the same time, but it was mistaken in 

concluding that the guns were possessed in the same location. 

Like “simultaneous possession,” “same location” is an 

imprecise concept, one whose contours acquire definition by 

reference to case law. The District Court understood “same 

location” to mean “same street address,” inferring that 

because the guns were discovered in vehicles parked at the 

same address, Kennedy possessed them simultaneously. This 

represents a marked expansion of Tann and collides with 

myriad decisions of Courts of Appeals outside this circuit that 

understand the concept of simultaneous possession in the 
23

same location more narrowly. See, e.g., United States v. 

Verrecchia, 196 F.3d 294, 296, 298 (1st Cir. 1999) (holding 

that it was appropriate to bring two charges under § 

922(g)(1), one for guns seized from defendant‟s barn and a 

second for guns seized from defendant‟s truck that had 

previously been stored with the guns in the barn); United 

States v. Keen, 104 F.3d 1111, 1112, 1118 & n.11 (9th Cir. 

1996) (holding that simultaneous seizure of a shotgun and 

ammunition from the same room supports one § 922(g)(1) 

conviction, but observing that “[g]uns that are acquired at 

different times or stored in separate places permit separate 

punishment to be imposed for each violation of § 922(g)”); 

United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir. 

1996) (explaining that “simultaneous possession of multiple 

firearms generally constitutes only . . . one offense unless 

there is evidence that the weapons were stored in different 

places,” and finding that firearms stored in the defendant‟s 

bedroom, a car in his garage, and his truck could be charged 

as separate offenses) (quotation marks omitted); United States 

v. Bonavia, 927 F.2d 565, 569 (11th Cir. 1991) (explaining 

that “separate possessions can be established by showing . . . 

that the weapons were stored in different places” and finding 

counts multiplicitous when the Government presented no 

such evidence) (quotation marks omitted); United States v. 

Gann, 732 F.2d 714, 717, 721 (9th Cir. 1984) (holding that 

multiple charges were permissible when firearms were found 

in defendant‟s bedroom closet and car because they were 

“stored separately”). 

The evidence adduced at trial showed that Kennedy 

stored two different firearms in separate vehicles — one in 

the Cadillac, and a second in the Lincoln. The firearms were 

kept in secret compartments that contained heroin branded 
24

with different stamps, suggesting different distributors. The 

Lincoln gun was in the car with Kennedy upon his arrival at 

the Irvington residence before his arrest, indicating that the 

firearms were some distance apart while he was out driving. 

These facts were enough to show that Kennedy did not 

simultaneously possess the guns, but rather stored them in 

separate locations, albeit at times on the premises of the same 

street address. On these facts, it was proper for the 

Government to charge separate § 922(g)(1) counts. 

Kennedy‟s convictions will not twice punish him for the same 

offense. The District Court erred in finding otherwise and in 

merging Counts 7 and 8.

B.

The District Court next held that Counts 2 and 4, the 

possession-with-intent-to-distribute convictions under 21 

U.S.C. § 841(a), also were multiplicitous. Section 841(a) 

makes it unlawful “for any person knowingly or intentionally 

. . . to manufacture, distribute, or dispense, or possess with 

intent to manufacture, distribute, or dispense, a controlled 

substance[.]” 21 U.S.C. § 841(a)(1). The District Court 

reasoned that Counts 2 and 4 must be merged because the 

heroin seized from the Cadillac and the heroin seized from 

the Lincoln 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.” Kennedy 

II, 2010 WL 5418931, at *6 (emphases in original).

We confronted a similar allegation of multiplicitous 

charges in United States v. Carter. The defendant in Carter

was convicted under § 841(a) both of distributing 677 grams 

of heroin and of possessing with intent to distribute 95 grams 
25

of diluted heroin. 576 F.2d at 1063. He argued that these 

separate counts constituted a single, undifferentiated offense. 

We disagreed, explaining that “Congress . . . intend[ed] that 

two distinct offenses, punishable by separate sentences, 

should be seen to arise when the evidence shows — as it did 

here — that the acts of possession and distribution involved 

discrete quantities of narcotics[.]” Id. at 1064.

As with the § 922(g)(1) counts, the District Court 

mistakenly focused on the conduct of the police when it 

merged the § 841(a) counts. It should have discussed the trial 

testimony that the stash of heroin in the Lincoln and the stash 

of heroin in the Cadillac had different compositions and 

purities and bore different brand stamps. The quantities and 

means of packaging, too, were distinct: the Cadillac heroin 

totaled 103.9 grams and was bundled in bricks, while the 

Lincoln heroin totaled .15 grams and was packaged only in 

glassine envelopes. And, as discussed, the heroin was stored 

in separate vehicles. Our reasoning in Carter compels the 

conclusion that Counts 2 and 4 charged separate offenses and 

that the District Court erred in merging the convictions.

C.

Finally, the District Court suggested that it could 

merge Counts 3 and 5, the § 924(c) counts, because it had 

previously merged Counts 2 and 4, the predicate drug 

offenses. Section 924(c) imposes additional years of 

imprisonment on “any person who, during and in relation to 

any crime of violence or drug trafficking crime . . . uses or 

carries a firearm, or who, in furtherance of any such crime, 

possesses a firearm.” 18 U.S.C. § 924(c). The unit of 

prosecution for a § 924(c) count, we have held, is the 
26

underlying drug trafficking offense. Diaz, 592 F.3d at 474. 

Because Kennedy was convicted of two distinct possessionwith-intent-to-distribute counts, and because the jury properly 

found that he possessed separate firearms in furtherance of 

those crimes, his concomitant § 924(c) convictions were not 

multiplicitous. 

* * * * *

We conclude that Counts 7 and 8, 2 and 4, and 3 and 5 

were not multiplicitous and that Kennedy‟s punishment on 

those counts comports with the Double Jeopardy Clause. The 

District Court erred in concluding otherwise and in merging 

the counts of conviction. 

IV.

A.

The Government asks us to direct the Chief Judge of 

the United States District Court for the District of New Jersey 

to reassign this case on remand. It also requests reassignment 

of all related matters, including Kennedy‟s recent petition for 

collateral relief under 28 U.S.C. § 2255. The District Court‟s 

conduct, argues the Government, demonstrates that its ability 

to serve as a neutral arbiter might reasonably be questioned 

and that reassignment is necessary to restore to the 

proceedings the appearance of impartiality. Kennedy 

maintains that a reasonable person could not ascribe bias or 

partiality to the District Court and that reassignment is 

unwarranted.
27

Two statutes give us authority to order reassignment. 

Under 28 U.S.C. § 455(a), a federal judge must selfdisqualify from “any proceeding in which [her or] his 

impartiality might reasonably be questioned.” When the 

judge fails to do so, we may order recusal. United States v. 

Wecht, 484 F.3d 194, 213 (3d Cir. 2007); United States v. 

Bertoli, 40 F.3d 1384, 1411 (3d Cir. 1994); Alexander v. 

Primerica Holdings, Inc., 10 F.3d 155, 167-68 (3d Cir. 1993). 

Alternatively, we may order reassignment of a judge pursuant 

to our supervisory powers, as codified in 28 U.S.C. § 2106. 

Bertoli, 40 F.3d at 1411. Under either statute, reassignment is 

an exceptional remedy, one that we weigh seriously and order 

sparingly.

“The test for recusal under § 455(a) is whether a 

reasonable person, with knowledge of all the facts, would 

conclude that the judge‟s impartiality might reasonably be 

questioned.” In re Kensington Int‟l Ltd., 368 F.3d 289, 301 

(3d Cir. 2003). An objective inquiry, this test is not 

concerned with the question whether a judge actually harbors 

bias against a party. Primerica Holdings, 10 F.3d at 162. 

Because § 455(a) aims not only to protect both the rights of 

the individual litigants, but also to promote the public‟s 

confidence in the judiciary, our analysis focuses on upholding 

the appearance of justice in our courts. Id.; In re Sch. 

Asbestos Litig., 977 F.2d 764, 776 (3d Cir. 1992). 

The Government submits that a reasonable observer 

could detect distrust of and disfavor toward the Government 

in the District Court proceedings. It first points to the Judge‟s 

repeated questioning of the propriety of the prosecution. The 

Judge explained that he believed the Government obtained 

the second superseding indictment because Kennedy refused 
28

to plead guilty. He castigated the Government for charging 

Kennedy with two separate counts under § 924(c) after 

Kennedy declined to cooperate or plead. In the Judge‟s view, 

this was an exercise of prosecutorial discretion made in bad 

faith to punish Kennedy for going to trial. Addressing the 

prosecutor personally, he stated directly: 

[P]rosecutors . . . do have some discretion 

which they usually exercise responsibly, 

reasonably, with some interest in justice and 

some weighing of what the conduct really is. 

Okay? By what you did in terms of the 

Superseding Indictment, you‟ve exposed him 

now to a 40-year mandatory minimum on very 

suspicious conduct. . . . And you were the one 

exercising the discretion when you didn‟t get a 

plea to decide, well, now I‟ll really whack him 

on the head and I‟ll bring back two Draconian 

charges, two 924 charges. 

App. 953-54; see also id. at 958 (“That Superseding 

Indictment was, he didn‟t plead guilty to the first three counts 

and therefore if he was going to exercise his right to go to 

trial, he‟s going to pay the price because you‟re going to 

charge him with Draconian charges. That‟s the problem I had 

here.”). 

Insinuating additional prosecutorial misconduct, the 

Judge repeatedly characterized the timing of the 

Government‟s discovery of the gun and heroin in the 

Cadillac, one year after the initial search, as “suspicious.” 

See App. 941:17, 942:4, 942:23, 954:6, 954:12, 955:19. 

Elsewhere, he berated the AUSA and questioned his 
29

competence. Early in the initial sentencing hearing, the Judge 

erroneously placed the burden of demonstrating the 

effectiveness of Kennedy‟s trial counsel on the Government, 

then denied the Government an adjournment so it could 

prepare. When the Judge faulted the Government for not 

submitting an affidavit from Kennedy‟s trial counsel, the 

AUSA responded that it was not his responsibility to solicit 

that testimony, for Kennedy bore the burden of proving the 

claim. The following interaction transpired: 

Prosecutor: Well, Judge, beyond that I‟m not 

really sure how we would ever 

elicit the facts at this point.

The Court: [AUSA], how long have you been 

an Assistant U.S. Attorney?

Prosecutor: About four and a half years.

The Court: Okay. And how long have you 

been a lawyer?

Prosecutor: Approximately 15.

The Court: Okay. You‟re telling me you 

don‟t know how you would put 

forth probative facts on any 

motion or anything before a judge 

if they were so probative and 

important? Is that what you just 

said?

App. 927. 
30

Later in the same hearing, the prosecutor stated that 40 

years in prison was an appropriate punishment for Kennedy‟s 

conduct, an opinion that led to this colloquy:

The Court: I want to hear on the record, I just 

do. Forget — for this conduct, 

you in good conscience can go to 

sleep at night tonight and say this 

man deserved 40 years mandatory 

minimum, the rest of his life in 

jail for this conduct? I want to 

hear you say that.

Prosecutor: I‟m saying that.

The Court: You believe that?

Prosecutor: That is absolutely correct.

The Court: Sit down. Unless you have 

something more to say that‟s 

enlightening to me, you can sit 

down.

App. 957. On a separate occasion, the Judge interrupted the 

AUSA‟s argument and told him, once again, to “sit down.” 

App. 929:25-930:1. This treatment of the AUSA appears to 

stand in contrast to the Judge‟s demeanor at the same hearing 

toward Kennedy, whom he periodically referred to by his first 

name, Douglas. See, e.g., App. 933:15, 935:2, 935:3, 935:6, 

936:12, 938:7, 938:10. 
31

We agree with the Government that, taken together, 

these interactions cast a pall of distrust over the prosecution‟s 

handling of the case. When a judge openly questions the 

integrity of the Government‟s evidence collection practices, 

undermines the professionalism of the prosecutor, and 

accuses the Government of prosecuting in bad faith — all 

without evidence of governmental misconduct — a 

reasonable observer could very well find neutrality wanting in 

the proceedings.

Other aspects of these proceedings are equally 

troubling. The Government points out that, at times, the 

District Court Judge‟s conduct veered closer to that of a 

defense attorney than an impartial adjudicator. At trial, he 

questioned witnesses substantively to clarify matters left 

unaddressed by defense counsel. App. 327-28. Before the 

jury rendered its verdict, he urged Kennedy to consider 

pleading guilty so as to avoid the 40-year mandatory 

sentence, an entreaty that was arguably problematic in light of 

the Federal Rules‟ prohibition on judicial involvement in plea 

negotiations. See Fed. R. Crim. P. 11(c)(1); United States v. 

Brown, 595 F.3d 498, 520 (3d Cir. 2010). Before the initial 

sentencing, he urged Kennedy to cooperate with the 

Government so as to release the court from its obligation to 

impose the mandatory sentence. At resentencing, he 

exhibited a willingness to raise arguments on behalf of 

Kennedy, even when Kennedy chose not to press those 

arguments and despite the fact that certain matters were 

beyond the scope of the mandate and the power of the court 

to remedy. And throughout the proceedings, he characterized 

the charges and sentence as “Draconian,” “excessive,” and 

“offensive.” See, e.g., App. 13, 942:14, 953:12, 953:14, 
32

954:17, 954:21, 978:9, 1048:19, 1053:19-20, 1060:2, 

1076:12, 1088:7-8.

After considering the totality of these circumstances, 

we conclude that a reasonable observer, with knowledge of 

this case, could question the impartiality and neutrality of the 

proceedings. Accordingly, we will order reassignment of this 

case and all related matters to a different judge on remand.

B.

We do not make this decision lightly. We recognize 

that sentencing is one of the most difficult tasks a district 

court judge must perform, and we have deep respect for the 

professionalism and seriousness of purpose that judges bring 

to sentencing proceedings. Sentencing is particularly trying 

when a judge believes that the punishment mandated by 

Congress is not a just and proportional sanction for the 

conduct involved, as may have been the case here. But our 

Constitution entrusts Congress with the power to define 

crimes and set punishment for those crimes. Bell v. United 

States, 349 U.S. 81, 82 (1955). Judges must uphold 

legislative choices in this regard, made as they are by our 

elected representatives. 

Congress has chosen to require a 25-year mandatory, 

consecutive sentence for a “second or subsequent conviction” 

under § 924(c), even when the defendant‟s prior § 924(c) 

conviction has not become final. 18 U.S.C. § 924(c)(1)(C)(i); 

Deal v. United States, 508 U.S. 129, 136 (1993). It did so 

with full knowledge that the Supreme Court has long 

accorded prosecutors broad charging discretion. 

Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978); United 
33

States v. MacEwan, 445 F.3d 237, 251-52 (3d Cir. 2006); 

United States v. Esposito, 968 F.2d 300, 306 (3d Cir. 1992). 

To the extent that the District Court was dissatisfied with this 

state of affairs, the remedy lies with Congress. See Gore v. 

United States, 357 U.S. 386, 393 (1958) (“Whatever views 

may be entertained regarding severity of punishment, whether 

one believes in its efficacy or its futility . . . these are 

peculiarly questions of legislative policy.”). In the meantime, 

it is not for the judiciary to seek to circumvent the language 

of § 924(c) and the verdict rendered by an impartial jury. We 

must emphasize, once again: “Ours is a nation of laws, not 

judges.” United States v. Higdon, 638 F.3d 233, 247 (3d Cir. 

2011).

V.

For the reasons stated, we will vacate the judgment 

and sentence imposed by the District Court; reinstate 

Kennedy‟s convictions in Counts 4, 5, and 8; and remand 

once again for resentencing only. In so doing, we will direct 

the Chief Judge of the United States District Court for the 

District of New Jersey to assign this case and all related 

matters to a different district court judge.