NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 15-3752 ________________

UNITED STATES OF AMERICA

v.

JAMES WHITTED, Appellant ________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2-05-cr-00598-002) District Judge: Honorable Michael M. Baylson ________________

Argued: April 24, 2018

Before: AMBRO, SCIRICA, and SILER, JR., * Circuit Judges

(Filed: May 18, 2018)

________________

OPINION** ________________

* Hon. Eugene E. Siler, Jr., United States Court of Appeals for the Sixth Circuit, sitting by designation. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Lisa B. Freeland, Esq. Sarah E. Levin, Esq. [ARGUED] Office of Federal Public Defender 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222

Counsel for Appellant

Salvatore L. Astolfi, Esq. Robert A. Zauzmer, Esq. [ARGUED] Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106

Counsel for Appellee

SCIRICA, Circuit Judge

James Whitted moves to vacate, set aside, or correct his sentence under

. For the following reasons, we will affirm the District Court’s denial of his

motion.

I.

James Whitted and twelve other individuals were charged with conspiracy to

distribute five kilograms or more of cocaine.

. Whitted was also charged

with one count of possession with intent to distribute cocaine and aiding and abetting,

;

, one count of possession of a firearm in furtherance of a drug

trafficking crime and aiding and abetting,

(c); 2, and one count of

possession of a firearm by a convicted felon,

(g)(1), (2). Whitted was

convicted on all counts at trial. He was sentenced to 420 months’ imprisonment.

2 Whitted appealed his conviction and sentence. We affirmed his conviction but

vacated his sentence because Whitted had been improperly classified as a career offender.

See United States v. Whitted,

(3d Cir. 2008). On remand, Whitted

was resentenced to 180 months’ imprisonment on August 3, 2009. He appealed this

sentence, and we affirmed. See United States v. Whitted,

(3d Cir.

2011).

On May 24, 2012, Whitted filed a pro se motion under

raising

numerous claims. The district court denied the motion, and we denied Whitted’s request

for a certificate of appealability. Whitted then filed a pro se motion for reconsideration

under Federal Rule of Civil Procedure 60(b). The district court denied this motion and we

denied his request for a certificate of appealability.

On April 8, 2014, Whitted filed a petition for a writ of habeas corpus under

in the Northern District of Ohio, arguing that he was not guilty of the

§ 924(c) offense in light of Rosemond v. United States,

(2014). That

court construed the petition as a second or successive motion under § 2255(h) and

dismissed it. See Whitted v. Coakley,

(N.D. Ohio Nov. 5,

2014).

On March 2, 2015, Whitted filed another motion under § 2255 in the Eastern

District of Pennsylvania, raising the same Rosemond claim at issue in his prior § 2241

petition. The District Court dismissed the motion as second or successive. Whitted filed a

motion for reconsideration, asserting that his filing should not have been considered

second or successive because he did not receive certain notice, as required by United

3 States v. Miller,

(3d Cir. 1997), at the time he filed his original § 2255

motion. In Miller, we held that district courts should issue a form notice to § 2255

movants advising them, among other things, of the bar on second or successive petitions

and the importance of raising all claims within the Antiterrorism and Effective Death

Penalty Act’s one-year statute of limitations. See id. at 646.

The District Court denied the motion for reconsideration, reasoning Whitted did

receive the notice required by Miller. Whitted filed an application for a certificate of

appealability, which we granted as to four issues: (1) whether the court correctly

determined that Whitted received notice under Miller; (2) whether he was entitled to

Miller notice; (3) whether he is entitled to a new trial in light of Rosemond; and (4)

whether Rosemond applies retroactively.

II.1

Whitted is not entitled to a new trial under Rosemond v. United States,

(2014). Rosemond only involved the application of aiding and abetting liability

under

(c), which prohibits using or carrying a firearm “during and in

relation to any crime of violence or a drug trafficking crime.” Because Whitted was

1 The trial court had jurisdiction under

. We have jurisdiction pursuant to

and 2553(a). See United States v. Davenport,

, 608 n.4 (3d Cir. 2015). “We exercise plenary review over the District Court’s legal conclusions and apply the clearly erroneous standard to its factual findings.” United States v. Ross,

, 378 n.1 (3d Cir. 2015) (citation omitted).

4 convicted of a § 924(c) violation under a Pinkerton theory of conspiracy and not under an

aiding and abetting theory, Rosemond is inapposite.2

A.

The government may seek a conviction for a substantive criminal offense by

introducing evidence that a defendant directly committed the offense or by proceeding on

a theory of vicarious liability under Pinkerton or aiding and abetting. In Pinkerton v.

United States,

(1946), “the Supreme Court held that the criminal act of one

conspirator in furtherance of the conspiracy is attributable to the other conspirators for

the purpose of holding them responsible for the substantive offense.” United States v.

Lopez,

(3d Cir. 2001) (internal quotation marks, citation, and brackets

omitted). A defendant is liable for substantive offenses committed by co-conspirators

under a Pinkerton theory if (1) the defendant is a party to a criminal conspiracy, (2) one

or more co-conspirators committed the substantive offense in furtherance of the

conspiracy, and (3) commission of the substantive offense was reasonably foreseeable.

See United States v. Ramos,

(3d Cir. 1998).

In contrast, to be liable for aiding and abetting under federal law a defendant must

“(1) take[ ] an affirmative act in furtherance of that offense, (2) with the intent of

facilitating the offense’s commission.” Rosemond,

. The Supreme

2 Although we granted a certificate of appealability on the question of whether Rosemond applies retroactively, we need not decide this question because Rosemond is inapposite to our merits decision. And because Whitted’s claim fails on the merits, we need not consider whether, under United States v. Miller,

(3d Cir. 1999), he received notice or whether such notice is still required.

5 Court in Rosemond held that to establish the intent element of aiding and abetting under

§ 924(c), the government must prove that the aider-and-abettor had advance knowledge

that a gun would be employed and decided thereafter to join or continue the underlying

offense. See id. at 1250.

Both Pinkerton and aiding and abetting theories support convictions under

§ 924(c). See, e.g., United States v. Casiano,

(3d Cir. 1997).

B.

Whitted was convicted of the substantive offense of

(c) under a

Pinkerton theory of liability. Accordingly, his argument that he is entitled to a new trial

under Rosemond––which applies only to aiding and abetting liability––is inapposite.

Whitted was charged in the superseding indictment with conspiracy to distribute

five kilograms or more of cocaine in addition to knowingly possessing, and aiding and

abetting the possession of, a firearm in furtherance of a drug trafficking crime in violation

of

(c). At trial, the government proceeded under both Pinkerton and

aiding and abetting theories. Both parties agree, however, that the jury was instructed on

only a Pinkerton theory for Count 17––the § 924(c) charge. And the jury convicted on

this count.3 Thus, there cannot be a Rosemond instructional error because there was never

3 At oral argument, Whitted’s counsel suggested that the jury verdict form supported her argument that Whitted was convicted under an aiding and abetting theory. See Oral Argument at 2:58:42. But the verdict form only described the substantive charge––violating § 924(c). It did not ask nor did it reflect under which theory the jury convicted Whitted of violating § 924(c). This is not surprising because the jury was instructed only under a Pinkerton theory. Indeed, Whitted’s opening brief acknowledges that the jury was never charged on an aiding and abetting theory for Count 17. See Appellant’s Br. at 15 (“[T]he court did not separately instruct the jury as to aiding and

6 an aiding and abetting instruction given. Rather, Whitted was convicted of the substantive

offense of § 924(c) under Pinkerton liability.4 We acknowledged this fact when we

abetting in connection with Count 17. Instead, it instructed the jury that Mr. Whitted is guilty of a violation of § 924(c) ‘based upon the legal rule that each member of a conspiracy is responsible for crimes and other acts committed by other members of the conspiracy, and were reasonably foreseeable to James Whitted as a necessary or natural consequence of the agreement.’”). Accordingly, there was no need for the jury verdict form to be more specific. Whitted’s counsel also cited the judgment issued by the district court to support her argument that Whitted was convicted for violating § 924(c) under an aiding and abetting theory. See Oral Argument at 2:58:42. Counsel is correct that the judgment lists

(aiding and abetting) in addition to a conviction for the substantive offense under 18 U.S.C. 924(c) among the offenses of which Whitted was convicted. But in light of the record outlined above––the district judge gave only a Pinkerton instruction for § 924(c) and the jury convicted on that basis––we have no doubt that Whitted was properly convicted under Pinkerton––not aiding and abetting. 4 It is immaterial that Whitted was charged in the superseding indictment with violating § 924(c) under an aiding and abetting, but not Pinkerton, theory. Because Pinkerton and aiding and abetting are two alternative theories under which the government may prove a substantive criminal offense, cf. Nye & Nissen v. United States,

, 618–20 (1949), the government was entitled to proceed under both theories at trial. See, e.g., United States v. Rosalez,

(10th Cir. 2013) (“[E]ven in the absence of evidence supporting an aiding and abetting conviction, persons indicted as aider and abettors may be convicted pursuant to a Pinkerton instruction.” (quoting United States v. Comeaux,

(8th Cir. 1992)); United States v. Vazquez-Castro,

(1st Cir. 2011) (“[A] jury may be instructed to consider the liability theory established in Pinkerton as an alternative ground for conviction under § 924(c)(1) in addition to an aiding and abetting theory. The alternative instruction is justified because, as with the aiding and abetting theory, vicarious co-conspirator liability under Pinkerton is not in the nature of a separate offense.” (quotation marks, citation and brackets omitted)). Indeed, “[i]ndictments do not recite the government’s theory of proof, which is what the Pinkerton theory is. The function of a federal indictment is to state concisely the essential facts constituting the offense, not how the government plans to go about proving them.” United States v. Washington,

(D.C. Cir. 1997) (quotation marks, citation, ellipsis, and brackets omitted). Additionally, we have held that “conspiracy need not be charged in order for Pinkerton’s doctrine to apply.” United States v. Lopez,

, 480–81 (3d Cir. 2001); see also United States v. Zachary,

(8th Cir. 2007) (“As

7 upheld Whitted’s conviction under Pinkerton on direct appeal. See United States v.

Whitted,

(3d Cir. 2008). In so doing, we held there was sufficient

evidence to support Pinkerton liability:

Whitted acknowledged the Government’s reliance on Pinkerton[ ], 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,

(3d Cir. 1997). We reject Whitted’s contention that the District Court erred by denying his Rule 29 motion on the § 924 conviction.

Id.5

Pinkerton liability is an issue of whether the evidence was sufficient to convict the defendant of a substantive offense, whether the indictment charged a separate conspiracy offense is simply irrelevant.”). In any event, Whitted was charged and convicted of a conspiracy to distribute five kilograms or more of cocaine. See

. A Pinkerton conviction under § 924(c) is proper because the § 924(c) violation was a reasonably foreseeable consequence of the drug conspiracy.

5 As noted, the jury was never instructed on aiding and abetting liability. But assuming it was, Whitted’s Rosemond argument would still fail because the jury received a proper Pinkerton instruction. See United States v. Hare,

(4th Cir. 2016) (affirming conviction when, even assuming Rosemond error, jury was properly instructed on Pinkerton and evidence supported conviction on that theory); see also United States v. Edmond,

(6th Cir. 2016) (Sutton, J.), granted, vacated, and remanded on other grounds by Edmond v. United States,

(2017) (collecting cases where trial court gave correct Pinkerton instruction and faulty aiding and abetting instruction in light of Rosemond, concluding that each court has upheld convictions as long as Pinkerton supported them).

8 III.

For the foregoing reasons, we will affirm the district court’s order dismissing

Whitted’s motion to vacate, set aside, or correct a sentence under

.

9