The opinion of the court was delivered by: Hon. William J. Martini
On May 23, 2006, a Second Superseding Indictment was returned against Defendant Douglas Kennedy alleging eight drug and firearm related counts. After a jury trial, Kennedy was found guilty on each count. Kennedy's attorney filed a motion for a new trial motion, which the Court granted in respect to Counts I, IV, V, and VIII. Kennedy was sentenced in regard to Counts II, III, VI, and VII. Kennedy and the Government cross-appealed. The Third Circuit reversed this Court's grant of a new trial on Counts I, IV, V, and VIII, and remanded for resentencing only.
For the reasons elaborated below, Counts VII and VIII will be merged into Count VII; Counts II and IV will be merged into Count II;Count V will be vacated, and sentencing, probation, supervised release, fine, restitution, special assessments, etc. will be specified in a separate order.*fn2
II. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
On November 9, 2004, while Kennedy was returning home in his Lincoln Navigator, he was arrested by Drug Enforcement Agency agents. The Agents searched his residence, the Lincoln Navigator, and his other car, a Cadillac. Both cars were outside the house and, apparently, within eyeshot of one another. Tr. 52 (July 24, 2006) (statement by Government witness that Cadillac was "parked out [in] front" of the house); Tr. 53 (July 24, 2006) (statement by Government witness that the Lincoln Navigator was parked in the house's driveway).A .45 caliber gun and heroin were found in the Lincoln Navigator. Cocaine was found in his residence.*fn3 No contraband was found in the Cadillac. The Cadillac was transferred to the possession of a private contractor that operated a storage facility on behalf of the United States Marshal's Service, which had seized the car.
On November 23, 2005, more than a year later, an employee of the private contractor doing route maintenance found 103.9 grams of heroin and a 9 mm handgun in a secret compartment in the Cadillac. No contraband had been found in prior searches of the car by the Government. Kennedy was already incarcerated at the time these drugs were found.
The operative indictment against Kennedy, a Second Superseding Indictment ("Indictment"), was returned on May 23, 2006. It alleged eight counts including:
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 18
U.S.C. § 2 (drugs found in Lincoln Navigator);
Count III -- Possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (gun in Lincoln Navigator in furtherance of Count II);
Count IV -- Possession with intent to distribute heroin, 21 U.S.C. § 841 and 18
U.S.C. § 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 in furtherance of Counts I and IV);
Count VI -- Possession with intent to distribute cocaine base, 21 U.S.C. § 841 and 18 U.S.C. § 2 (cocaine base found at Residence);
Count VII -- Possession of a firearm by a convicted felon, 18 U.S.C.
922(g)(1) (gun in Lincoln Navigator);
Count VIII -- Possession of a firearm by a convicted felon, 18 U.S.C.
922(g)(1) (gun in Cadillac).
With regard to Count V, the second Section 924(c) count (linked to the Cadillac), the Indictment stated:
On or about November 9, 2004, in Essex County, in the District of New Jersey, and elsewhere, defendant Douglas Kennedy did knowingly and willfully possess a firearm, namely, a loaded Fegarmy Arms Model P9R 9 millimeter caliber handgun, bearing serial number R23268, in furtherance of a drug trafficking crime for which he may be prosecuted in a court of the United States, namely, conspiracy to distribute and possess with intent to distribute 100 grams or more of a mixture or substance containing heroin, a Schedule I narcotic drug controlled substance, contrary to Title 21, United States Code, Section 841(a)(1) and (b)(1)(B), in violation of Title 21, United States Code, Section 846, as charged in Count 1 of this Second Superseding Indictment [the conspiracy count], and the possession with intent to distribute of 100 grams or more of a mixture or substance ...