2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-7-2009

USA v. Douglas Kennedy

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3633

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Recommended Citation

"USA v. Douglas Kennedy" (2009). 2009 Decisions. Paper 141.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 08-3633 and 08-3859

_____________

UNITED STATES OF AMERICA,

 Appellant No. 08-3859

v.

DOUGLAS KENNEDY,

 Appellant No. 08-3633

 

Appeals from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 06-cr-00028-001)

District Judge: Honorable William J. Martini

 

Submitted Under Third Circuit LAR 34.1(a)

November 17, 2009

Before: RENDELL, BARRY and CHAGARES, Circuit Judges.

(Filed: December 7, 2009)

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Douglas Kennedy appeals following the District Court’s grant of his motion for a

new trial on four counts of conviction. Kennedy argues that he was entitled to a new trial

on all eight counts of conviction, and that joinder of two of the counts in the indictment
2

was improper. The government cross-appeals contending that it was error to grant a new

trial on any count.

 On November 9, 2004, after conducting surveillance and speaking with a

cooperating witness, Drug Enforcement Agency agents arrested Kennedy as he returned

to his home in his Lincoln Navigator. Kennedy consented to a search of his residence, the

Navigator, and a Cadillac, orally and in writing. Agents searched his residence and found

ammunition, firearms, cash, a phone that had been used to communicate with the

cooperating witness, and approximately 9 grams of crack cocaine, which Kennedy

allegedly admitted was his. Nothing illegal was found in the Cadillac, but a gun and

heroin were found in the Navigator. Over a year later, on November 23, 2005, an

employee of a private contractor operating a storage facility used by the United States

Marshal’s Service, found 103.9 grams of heroin and a handgun in a secret compartment in

the Cadillac while doing routine maintenance on the car. Previously, the government had

searched the Cadillac using drug sniffing dogs and the same employee had conducted

routine maintenance on the car numerous times, without finding any contraband. 

 On May 23, 2006, a Second Superseding Indictment was returned against

Kennedy alleging the following counts:

Count I: Conspiracy to distribute and possess with intent to distribute a controlled

substance, 21 U.S.C. § 846 (in part for drugs found in Cadillac)

Count II: Possession with intent to distribute heroin, 21 U.S.C. § 841 and § 2 (drugs

found in Navigator)

Count III: Possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.§

924(c) (gun in Navigator)
3

Count IV: Possession with intent to distribute heroin, 21 U.S.C. § 841 and § 2 (drugs in

Cadillac)

Count V: Possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.§

924(c) (gun in Cadillac)

Count VI: Possession with intent to distribute cocaine base, 21 U.S.C.§ 841 and § 2

(crack found at Residence)

Count VII: Possession of a firearm by a convicted felon, 18 U.S.C.§ 922(g)(1) (gun in

Navigator)

Count VIII: Possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (gun in

Cadillac)

On July 28, 2006, Kennedy was found guilty on all eight counts following a fourday jury trial. Numerous law enforcement officers testified about the surveillance, the

search of the house and cars, Kennedy’s statements to law enforcement, and the

contraband found in the Navigator and the Cadillac. Defense counsel attacked the

government’s initial failure to find the contraband in the Cadillac and the year-long

passage of time before it was found in his opening statement, his summation, and during

his cross-examination of witnesses. 

On October 24, 2006, Kennedy filed a pro se motion for new counsel, which the

District Court granted on November 2, 2006. On November 15, 2007, Kennedy’s new

counsel filed a motion for a new trial, arguing that the untimeliness of that motion was

due to excusable neglect. The motion for a new trial contended that: 1) trial counsel was

ineffective for failing to challenge the admissibility of the evidence found as a result of

the search of the Cadillac; 2) two counts of the Second Superseding Indictment were

improperly joined; and 3) the government improperly charged only one conspiracy despite

offering proof of numerous conspiracies. The government opposed the motion based on
4

its untimeliness and its substance. 

On August 21, 2008, the District Court held oral argument on Kennedy’s motion

for a new trial and a sentencing hearing. The District Court considered the merits of the

motion for a new trial after finding that there was excusable neglect due to

miscommunication, or no communication, between Kennedy and his trial counsel after

the trial. The District Court dismissed Kennedy’s improper joinder argument because the

joined counts were similar drug trafficking charges and dismissed Kennedy’s argument

regarding the conspiracy charge because the government “alleged and charged only one

conspiracy.” Kennedy Appendix (“KA”) 65. The District Court then decided that

Kennedy’s trial counsel was ineffective for failing to challenge the admissibility of the

evidence obtained from the search of the Cadillac a year after Kennedy’s arrest and that

this clearly prejudiced Kennedy. 

The District Court granted Kennedy a new trial on counts I, IV, V, and VIII of the

Second Superseding Indictment and sentenced Kennedy on the remaining four counts (II,

III, VI and VII) to 180 months’ imprisonment. Following these rulings, Kennedy filed a

notice of appeal and the government filed a notice of cross-appeal.

I. New Trial as to Four Counts

Kennedy argues that his trial counsel’s ineffective assistance poisoned his entire

trial and therefore, the District Court erred in granting a new trial as to only four counts. 

The District Court’s decision to grant Kennedy a new trial on four counts under Federal
Kennedy does not use the term “prejudicial spillover.” “The concept of prejudicial 1

spillover . . . requires an assessment of the likelihood that the jury, in considering one

particular count or defendant, was affected by evidence that was relevant only to a

different count or defendant.” United States v. Hamilton, 334 F.3d 170, 181 (2d Cir.

2003). Kennedy, however, does not demonstrate how the jury was prejudiced as to the

remaining counts by the admission of the evidence found in the Cadillac, especially since

the remaining counts also involved evidence of drugs and guns. See Hamilton, 334 F.3d

at 182 (“[P]rejudicial spillover is unlikely if the dismissed count and the remaining counts

were either quite similar or quite dissimilar.”).

5

Rule of Criminal Procedure 33 is reviewed for abuse of discretion; a District Court abuses

its discretion by definition when it makes an error of law. United States v. Kelly, 539

F.3d 172, 181 (3d Cir. 2008). 

 The District Court found that Kennedy’s trial counsel was ineffective in failing to

challenge the admissibility of the evidence found in the Cadillac, and granted his motion

for a new trial on the four counts arising out of that evidence. Kennedy argues that his

trial counsel’s ineffectiveness infected his entire trial with constitutional errors so that a

new trial was warranted as to all eight counts of conviction. Kennedy does not

demonstrate how these errors affected the other four counts, nor does he present any case

law to substantiate his claim. Therefore, we cannot conclude that the District Court 1

abused its discretion in granting Kennedy a new trial on only four out of eight counts.

The government contends that the District Court erred in granting Kennedy’s

motion for a new trial by 1) allowing Kennedy’s tardy motion for a new trial based on

excusable neglect, 2) ruling on a ground that was never raised by Kennedy in his motion
 The Cendant Corp court and Pioneer Court dealt with excusable neglect in terms of 2

Federal Rule of Civil Procedure 60(b), but the factors for a court to consider are relevant

to this case. 

The Government suggests in a footnote that, under the Supreme Court’s ruling in 3

Eberhart v. United States, 546 U.S. 12, 13 (2005), the District Court lacked authority to

consider Kennedy’s motion based on excusable neglect. The Court in Eberhart found

that the rules setting time limits were not jurisdictional, but were inflexible claimprocessing rules. Id. The Court also found that the time limit in Federal Rule of Criminal

Procedure 33 is “rigid” and may not be extended except as stated in Rule 33 itself. Id.

6

for a new trial, 3) granting a new trial on four counts based on trial counsel’s decision not

to bring a meritless motion, and 4) never explicitly finding that Kennedy suffered

prejudice and assuming that Kennedy suffered prejudice based on his potential sentence. 

A. Excusable Neglect

Under Federal Rule of Criminal Procedure 45(b)(1)(B), a court may extend the

time prescribed under Federal Rule of Criminal Procedure 33(b)(2) due to excusable

neglect. Excusable neglect is an equitable determination that should take account of

relevant circumstances, including danger of prejudice, the length of the delay, the delay’s

impact on judicial proceedings, the reason for the delay, whether the movant had control

over the delay, and whether the movant acted in good faith. In re Cendant Corp. PRIDES

Litig., 234 F.3d 166, 171 (3d Cir. 2000) (citing Pioneer Inv. Servs. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380 (1993)). The Government concedes that it did not challenge 2

the District Court's authority to extend the time period for Kennedy to file a motion for a

new trial, although it did oppose that motion as untimely because it was filed almost

sixteen months after Kennedy's conviction. The District Court did not abuse its 3
(citing Fed. Rule of Crim. Pro. 45(b)(2)). As the Second Circuit points out:

Read in conjunction with ... Rule 45(b), the defendant is ...

required to file a timely motion for a new trial under Rule

33(b)(2) within the seven-day period specified.... [However],

under Rule 45(b)(1)(B), if for some reason the defendant fails to

file the underlying motion for a new trial within the specified

time, the court may nonetheless consider that untimely

underlying motion if the court determines that the failure to file

it on time was the result of excusable neglect.

United States v. Owen, 559 F.3d 82, 84 (2d Cir. 2009) (citing Fed.R.Crim.P. 33 advisory

committee's notes (2005 Amendments)).

The District Court also asked Kennedy’s counsel at oral argument on the motion for a 4

new trial if he was arguing that trial counsel was ineffective in failing to challenge the

7

discretion in allowing the motion due to excusable neglect after finding that there was

little or no communication between Kennedy and his trial attorney after the trial and

Kennedy’s trial attorney had “abandoned him after the trial.” KA. 46, 54, 64. 

B. Ruling on Grounds not Raised by Kennedy in his Motion for a New Trial

A trial judge may not grant a new trial on grounds not raised by the defendant. 

United States v. Wright, 363 F.3d 237, 248 (3d Cir. 2004). In his motion for a new trial

Kennedy’s sentencing counsel argued that trial counsel was ineffective in not filing any

pre-trial motions or adequately challenging the evidence found in the Cadillac a year after

that car was seized by the government. The government faults sentencing counsel for not

specifically describing the issue as one involving “chain of custody.” However, the

District Court did not clearly err in considering the issue notwithstanding counsel’s

failure to characterize it as an argument regarding the “chain of custody,” because

Kennedy’s argument was substantially similar. 

4
chain of custody of the evidence in the Cadillac and Kennedy’s counsel answered in the

affirmative. 

8

C. Ineffective Assistance of Counsel

We note at the outset that rarely, if ever, should an ineffectiveness of counsel claim

be decided in a motion for a new trial or on direct appeal. "[T]his Court has expressed a

preference that ineffective assistance of trial counsel claims be brought as collateral

challenges under 28 U.S.C. § 2255, rather than as motions for new trials or on direct

appeal." United States v. Chorin, 322 F.3d 274, 282 n.4 (3d Cir. 2003) (citing United

States v. DeRewal, 10 F.3d 100, 104-5 (3d Cir. 1993) (stating that a Rule 33 motion is not

the preferred vehicle for asserting ineffectiveness of counsel claims)); see also United

States v. Ugalde, 861 F.2d 802, 809 (5th Cir. 1988) (“Defendants prejudiced by

ineffective assistance of counsel have a ready remedy. They may mount a collateral

challenge by a federal habeas petition as allowed by 28 U.S.C. § 2255. That mechanism,

rather than a new trial, seems best to accommodate the interests in finality and fairness

with respect to ineffective assistance of counsel claims.”). Habeas proceedings offer the

opportunity for the development of a factual record. No such record was developed here

in connection with the motion for a new trial. We do not endorse the procedure followed

by the District Court, but will proceed to examine what did occur here in connection with

the motion for a new trial. 

Under Strickland v. Washington, to grant a new trial based on ineffective
9

assistance of counsel, the District Court must find that (1) counsel’s performance was

deficient and (2) that the defendant was prejudiced by this performance. 466 U.S. 668

(1984). The District Court’s ruling on ineffective assistance of counsel is reviewed de

novo. United States v. Cross, 308 F.3d 308, 314 (3d Cir. 2002). 

i. Deficient Performance 

To determine whether Kennedy’s trial counsel’s performance was deficient, the

District Court should have started with a weak presumption that trial counsel’s decision

was strategic, which Kennedy could rebut by showing that the conduct was not part of a

strategy or that the strategy was unsound. Thomas v. Varner, 428 F.3d 491, 499 (3d Cir.

2005). The District Court did not start with this presumption of strategy and instead of

placing the burden on Kennedy to rebut the presumption of strategy it placed the burden

on the government to demonstrate that Kennedy’s trial counsel had a strategy. The

District Court also denied the government’s request for an adjournment so that Kennedy’s

trial counsel could testify as to his strategy. The District Court told the government that if

there were relevant facts that the Court should be aware of, the government should have

brought them to the Court in the proper form. KA. 51. 

 However, we have stated:

In cases in which the record does not explicitly disclose trial

counsel's actual strategy or lack thereof (either due to lack of

diligence on the part of the petitioner or due to the unavailability

of counsel), the presumption may only be rebutted through a

showing that no sound strategy posited by the Commonwealth

could have supported the conduct.
See Lowenfield v. Phelps, 817 F.2d 285, 291-92 (5th Cir.1987) (holding that counsel 5

was not deficient when he made a strategic decision not to challenge the chain of custody

of weapons so that he could argue that others were implicated in the murders and that the

sloppy police work reflected adversely on the state's entire case). 

10

Thomas, 428 F.3d at 499. 

The record in this case does not disclose trial counsel’s actual strategy or lack thereof, and

the burden was on Kennedy to show that trial counsel’s actions could never be part of a

sound strategy. The Government posits that Kennedy’s trial counsel may well have made

a decision not to move to exclude this evidence as such a motion would have been

meritless, and it would be more effective to attack the weight of this evidence on crossexamination. Kennedy did not show that trial counsel’s decision was not part of a 5

strategy nor that there was no possible sound strategy offered by the government. 

Nonetheless, the District Court made its own conclusory determination that Kennedy’s

trial counsel’s decision not to make a chain of custody argument “seems not to have been

his strategic choice” and that there was “no apparent reason not to make this appealing

argument.” KA. 67-8. 

We do not find support for this conclusion in the record. Counsel’s decision not to

challenge the evidence in the Cadillac based on a chain of custody argument is not a

deficient performance as a matter of law. Therefore, the District Court erred in relieving

Kennedy of his burden to prove ineffectiveness by rebutting the presumption of strategy. 

As the record stands, Kennedy failed to prove that counsel’s performance was deficient. 
If Kennedy’s counsel had objected to the chain of custody of the Cadillac, it is unclear 6

whether the government would have been able to establish chain of custody. “To establish

a chain of custody, the government need only show that it took reasonable precautions to

preserve the evidence in its original condition, even if all possibilities of tampering are

not excluded.” United States v. Dent, 149 F.3d 180, 188 (3d Cir. 1998).

11

ii. Prejudice

To show prejudice, there must have been a reasonable probability that, but for

Kennedy’s trial counsel’s deficient performance, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694. A reasonable probability is a “probability

sufficient to undermine confidence in the outcome.” Id. Kennedy had to show that he

would have likely prevailed on the motion to exclude the evidence found in the Cadillac

and that, having prevailed, there is a reasonable probability that he would not have been

convicted. Thomas, 428 F.3d at 502. The District Court ruled that the government’s chain

of custody over the Cadillac was “at least somewhat suspicious” (KA. 66) but never

actually concluded that Kennedy would have succeeded in a motion to exclude the

evidence based on chain of custody. Instead, the District Court merely found that had 6

Kennedy’s counsel been successful in this argument, the jury could not have convicted

Kennedy of the crimes based on possession of the evidence found in the Cadillac. The

District Court erred in failing to thoroughly reason through the prejudice prong of the

ineffective assistance of counsel analysis and in determining that Kennedy was

prejudiced. Accordingly, we conclude that the motion for a new trial should not have

been granted. 
12

II. Joinder

The District Court held that all of the offenses charged against Kennedy were drug

trafficking offenses and thus were properly joined. Kennedy argues that counts II

(possession of heroin with intent to deliver) and III (possession of a gun in furtherance of

a drug trafficking crime), which both dealt with evidence found in the Navigator, were

improperly joined because they were unrelated to the conspiracy charged. We make an

independent determination as to whether or not joinder of counts under Rule 8 was

proper; if joinder was improper, we must undertake a harmless error analysis. United

States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). Federal Rule of Criminal Procedure

8 states that “[t]he indictment or information may charge a defendant in separate counts

with 2 or more offenses if the offenses charged -whether felonies or misdemeanors or

both - are of the same or similar character, or are based on the same act or transaction, or

are connected with or constitute parts of a common scheme or plan.”

Kennedy cites no case law to support his position. Kennedy states that the

evidence of contraband found in the Navigator was capable of improperly influencing and

confusing the jury on the conspiracy charges and further prejudiced Kennedy by

enhancing his potential sentence. The government responds that all counts were properly

joined because they were based on similar conduct and implicated the same criminal

statutes. Furthermore, the government contends that Kennedy cannot show any prejudice

from the joinder. 
13

Joinder is proper if the offenses charged are of a similar character. Counts II and

III are identical charges to counts IV and V, except that they involve controlled

substances found in different locations. We find that counts II and III were properly

joined. 

For the reasons set forth above we will AFFIRM the District Court’s ruling on

joinder of counts II and III, REVERSE the District Court’s grant of a new trial on counts

I, IV, V, and VIII, and REMAND for re-sentencing only.