United States v. Douglas Kennedy

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)
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

2
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,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

1
A “brick” of heroin is 50 single-use envelopes of heroin
bundled together. Appendix (“App.”) 382-83.

3
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.

4
 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.

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,

5
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

6
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

7
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

8
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 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.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.

9
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

10
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. §

11
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.

12
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.

13
813 (1999), a case that did not interpret § 924(c),5 it 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).

14
 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.

15
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

16
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).

17
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

18
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.

19
 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

20
“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).

21
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

22
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

23
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

24
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

25
underlying drug trafficking offense. Diaz, 592 F.3d at 474.
Because Kennedy was convicted of two distinct possession-
with-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.

26
 Two statutes give us authority to order reassignment.
Under 28 U.S.C. § 455(a), a federal judge must self-
disqualify 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

27
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

28
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.

29
 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.

30
 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,

31
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

32
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.

33