Court Emphasizes Scope of Remand / Rejects Multiplicity Findings in Drug/Gun Case

      In United States v. Kennedy, 2012 WL 2161380 (June 15, 2012), the government appealed the district court’s decision, on a remand for "re-sentencing only," to vacate and merge several counts of conviction. Kennedy had been convicted on multiple drug counts 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, which the Circuit reversed on appeal. On remand, 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. Here the Circuit vacates the court's judgment, reinstates all counts of conviction, and remands for resentencing to a different judge.

     The charges stemmed from the search of a home and two vehicles connected with Kennedy. Inside the house was $8,300 in cash, ammunition, and 10 grams of crack. In one care (the Lincoln), they discovered a compartment containing a handgun and four brand stamped glassine envelopes with .15 grams of heroin. Later discovered in the second car (the Cadillac), in a secret compartment, was a second handgun and 41 bricks of heroin. This heroin weighed 103.9 grams and bore a different brand stamp than the Lincoln heroin.

     After the Circuit reinstated all counts of conviction on the first appeal and remanded for resentencing "only," the district court vacated one count of possession of a firearm in furtherance of a drug trafficking offense, finding error regarding unanimity in the jury instruction. The district court further found two sets of counts to be multiplicitous, and thus merged the counts together for sentencing. Similarly, the court found two counts of possession with intent to distribute heroin multiplicitous, and mergd those as well.

      The Circuit disagreed on each point. First, noting simply that reconsideration of a jury charge was "not a matter germane to resentencing. Jury instructions go to the validity of a conviction, not to the content of the punishment," and reversed. The Circuit also rejected the multiplicity findings, holding that the two counts of felon in possession of a firearm were not multiplicitous, although the two handguns were seized by the same group of police in the same operation at the same time and same street address, they were found in two separate vehicles, so that they were not possessed simultaneously, but separately. Similarly, with respect to the two drug counts, the two stashes were found in two separate vehicles, so that they were separately possessed, and the two stashes had different compositions and purities and bore different brand stamps. The matter was also reassigned to a different district court judge on remand, based on the appearance of bias against the government.