                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2008

USA v. Whitted
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3896




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                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 07-3896


                           UNITED STATES OF AMERICA

                                             v.

                                   JAMES WHITTED
                                    a/k/a MOHAMED

                                       James Whitted,

                                                Appellant


                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            District Court No.05-cr-00598-2
                  District Judge: The Honorable Michael M. Baylson


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 12, 2008

                 Before: MCKEE, SMITH, and ROTH, Circuit Judges

                               (Filed: December 18, 2008)


                                        OPINION


SMITH, Circuit Judge.

      A grand jury for the United States District Court for the Eastern District of



                                            1
Pennsylvania returned an indictment in October of 2006, charging Michael Harris and

James Whitted with, inter alia, conspiring to distribute five kilograms or more of cocaine

in violation of 21 U.S.C. § 846. A superceding indictment added charges of aiding and

abetting three other offenses: (1) distributing cocaine in violation of 21 U.S.C. §§ 841(b)

and 2; (2) the possession of a firearm in furtherance of a drug trafficking crime in

violation of 18 U.S.C. §§ 924(c) and 2; and (3) possession of a firearm by a convicted

felon in violation 18 U.S.C. §§ 922(g) and 2. A jury found Whitted guilty of all four

counts. The United States District Court for the Eastern District of Pennsylvania

sentenced Whitted, inter alia, to 420 months of imprisonment.

       This timely appeal followed.1 To its credit, the Government concedes that there

was an error in sentencing Whitted and requests remand for resentencing. Accordingly,

we will affirm Whitted’s conviction, but will vacate his sentence and remand for

resentencing.

       Whitted’s counsel filed an appellate brief, challenging both the conviction and the

legality of the sentence.2 With regard to the former, counsel argued that the District Court

erred: (1) in denying the motion to suppress physical evidence; and (2) by denying

Whitted’s motion for judgment of acquittal on the § 924(c) charge. In addition, at

Whitted’s behest, counsel briefed legal issues which Whitted has requested be raised.


       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United
States v. Cooper, 437 F.3d 324, 327–28 (3d Cir. 2006).
       2
        Because we will grant the Government’s motion to remand for resentencing, we
do not address the merits of the legality of Whitted’s sentence.

                                             2
Our Local Appellate Rules permit the filing of a pro se brief by an appellant when his

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See 3d

Cir. L.A.R. 109.2(a). We do not otherwise entertain pro se briefs when a counseled brief

has been filed. Accordingly, we reject counsel’s attempt to present issues raised solely

pro se within the counseled brief.3

       According to Whitted, the District Court erred by denying his motion to suppress

all physical evidence seized from Whitted’s person, as the officers lacked probable cause

for his warrantless arrest. Contrary to Federal Rule of Criminal Procedure 12(b)(3),

Whitted did not first raise this issue in the District Court. At the hearing before the

District Court, Whitted argued only that the warrant issued to search the hotel room

lacked probable cause. App. 2544–47. The District Court’s ruling on the motion

considered only the question of probable cause for the search warrant, and concluded that

probable cause existed. Because Rule 12(e) directs that “[a] party waives any Rule

12(b)(3) defense . . . not raised,” and because Whitted did not challenge whether there

was probable cause for his arrest prior to trial, we conclude that the issue is waived.4 See


       3
        After the briefing in this appeal was completed, Whitted’s counsel filed a motion
to withdraw, alleging that she had both a mandatory and a permissive basis for
withdrawal. We will grant counsel’s motion to withdraw, and relieve her of her
obligation to represent Whitted on remand.
       4
        Whitted tacitly acknowledges that the issue was not raised in his appellate brief,
stating: “To the extent that his attorney failed to raise the issue of suppressing the
physical evidence seized as direct result of Mr. Whitted’s arrest, his attorney was
ineffective as counsel as he could have had no reasonable basis for doing so.” We will
not address the merits of this ineffectiveness claim inasmuch as we have explained that
our preference is to address ineffectiveness claims on collateral review, particularly when
the record is insufficient. United States v. Thornton, 327 F.3d 268, 272 (3d Cir. 2003)

                                              3
United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005).

       The District Court also erred, in Whitted’s view, by denying his Rule 29 motion on

the conviction of aiding and abetting the use of a firearm in furtherance of a drug

trafficking offense in violation of 18 U.S.C. §§ 924(c) and 2. We “must sustain the

verdict if there is substantial evidence, viewed in the light most favorable to the

Government, to uphold the jury’s decision.” Burks v. United States, 437 U.S. 1, 16

(1978).

       Whitted acknowledged the Government’s reliance on Pinkerton v. United States,

328 U.S. 640 (1946), but asserted that Pinkerton did not apply because it was not

reasonably foreseeable to him that Harris would use the firearm in furtherance of their

conspiracy to distribute cocaine. Based on our review of the trial testimony, particularly

that of Harris, we disagree. Harris explained that he had the firearm recovered from the

hotel room because he had purchased cocaine that day. He testified that he regularly

carried the firearm when purchasing cocaine, that Whitted knew that he generally was

armed when they purchased cocaine, and that Whitted usually asked if Harris had his

firearm with him. These facts are sufficient to allow a jury to find beyond a reasonable

doubt that it was reasonably foreseeable to Whitted that Harris would use the firearm, as

he did on the day of their arrest, in furtherance of a drug trafficking crime. United States

v. Casiano, 113 F.3d 420, 427 (3d Cir. 1997). We reject Whitted’s contention that the

District Court erred by denying his Rule 29 motion on the § 924 conviction.



(citing Massaro v. United States, 538 U.S. 500 (2003)).

                                              4
      For the above stated reasons, we will affirm Whitted’s conviction, but will vacate

his sentence and will remand for resentencing. In addition, we will grant the motion to

withdraw filed by Whitted’s counsel.




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