and 08-3859 UNITED STATES OF AMERICA v. Douglas Kennedy

NOT PRECEDENTIAL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

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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)

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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 four-
day 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

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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

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Kennedy does not use the term “prejudicial spillover.” “The concept of prejudicial1
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 Court1
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

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The Cendant Corp court and Pioneer Court dealt with excusable neglect in terms of2
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 in3
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 claim-
processing 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 challenge2
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 its3

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(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 a4
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

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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

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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.

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See Lowenfield v. Phelps, 817 F.2d 285, 291-92 (5th Cir.1987) (holding that counsel5
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 cross-
examination. Kennedy did not show that trial counsel’s decision was not part of a5
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.

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If Kennedy’s counsel had objected to the chain of custody of the Cadillac, it is unclear6
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 had6
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.

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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.

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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.

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