682 F.3d 244 (3rd Cir. 2012), 11-1145, United States v. Kennedy

Docket Nº:11-1145.
Citation:682 F.3d 244
Opinion Judge:CHAGARES, Circuit Judge.
Party Name:UNITED STATES of America, Appellant v. Douglas KENNEDY.
Attorney: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, Newark, NJ, for Appellant. Michael N. Pedicini, Esquire, Morristown, NJ, for Appellee.
Judge Panel:Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.
Case Date:June 15, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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682 F.3d 244 (3rd Cir. 2012)

UNITED STATES of America, Appellant

v.

Douglas KENNEDY.

No. 11-1145.

United States Court of Appeals, Third Circuit.

June 15, 2012

Submitted Pursuant to Third Circuit LAR 34.1(a) March 22, 2012.

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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, Newark, NJ, for Appellant.

Michael N. Pedicini, Esquire, Morristown, NJ, for Appellee.

Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.

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 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

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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,1 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.

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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, 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

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" 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...

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