United States v. Douglas Kennedy, 2012 U.S. App. LEXIS 12171

Kennedy was convicted in 2004 on multiple drug- and weapon-related counts; the district court granted a new trial for some counts and we reversed on appeal, remanding for re-sentencing only; on remand the district court merged some counts and vacated Count 5 based on a plain error in the jury instruction; we then issued Kennedy I reversing those corrective actions and remanding for resentencing; the district court later reassigned Kennedy’s case to a different judge on remand after concerns about impartiality.
During resentencing, the district court merged Counts 2 and 4 and Counts 7 and 8 and vacated Count 5 on its own initiative, and imposed a 15-year sentence on remaining counts; Kennedy challenged whether the district court exceeded the scope of the mandate and whether Count 5 could be vacated without a motion.
The Third Circuit previously held the district court erred in some aspects of the ineffective assistance of counsel ruling and reinstated Counts 2, 3, 4, 7, and 8 for resentencing; on remand, the mandate limited the district court to resentencing and not to reconsider jury instructions or alter the verdicts beyond the scope of the remand.
The Government seeks reassignment for neutrality; Kennedy argues reassignment is unnecessary. The court ultimately directs reassignment to a different judge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the district court comply with the mandate limiting remand to re-sentencing only?	Kennedy (Honeywell/United States)	Kennedy (Kennedy)	No; the district court exceeded the mandate by revisiting Count 5’s jury instruction.
Were Counts 7&8, 2&4, and 3&5 multiplicitous and thus improperly punished?	United States argued not multiplicitous; the district court erred.	Kennedy contends multiplicity limits should apply and the district court’s merges were proper.	The court held these counts were not multiplicitous; merges were improper.
Should Count 5 have been vacated sua sponte under Rule 33?	United States argues the district court could correct plain error.	Kennedy argues district court cannot sua sponte grant a new trial without a motion.	Vacatur of Count 5 was improper; a new trial should not have been granted without a defendant’s motion.
Is reassignment of the case warranted to preserve appearance of impartiality?	Government requests reassignment for neutrality.	Kennedy opposes reassignment.	Yes; reassignment ordered to a different judge on remand.
What is the controlling remedy for the district court’s errors?	Government urges corrective action within remand.	Kennedy seeks reinstatement of convictions and resentencing consistent with mandate.	Reinstate Kennedy’s convictions (Counts 4, 5, and 8) and remand for resentencing; direct reassignment.

Briggs v. Pa. R. Co., 334 U.S. 304 (1948) (mandate compliance and limits on inferior courts)
Ex parte Sibbald v. United States, 37 U.S. (12 Pet.) 488 (1838) (mandate and finality guidance for remands)
The Santa Maria, 23 U.S. (10 Wheat.) 431 (1825) (mandate adherence and scope)
Himely v. Rose, 5 U.S. (Cranch) 313 (1809) (historical articulation of appellate mandate)
In re Sanford Fork & Tool Co., 160 U.S. 247 (1895) (mandate and law-of-the-case principles)
Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848 (3d Cir. 1994) (mandate and finality considerations in remand)
Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506 (11th Cir. 1987) (necessity of following appellate mandate for finality)
Hutto v. Davis, 454 U.S. 370 (1982) (appearance of impropriety in judicial proceedings)
United States v. Higdon, 638 F.3d 233 (3d Cir. 2011) (reassignment and appearance of fairness)