Filed: Nov. 09, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4187 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO JERROD FULLER, a/k/a Tone, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:13-cr-00072-RAJ-DEM-1) Argued: September 23, 2016 Decided: November 9, 2016 Before DUNCAN, AGEE, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUE
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4187 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO JERROD FULLER, a/k/a Tone, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:13-cr-00072-RAJ-DEM-1) Argued: September 23, 2016 Decided: November 9, 2016 Before DUNCAN, AGEE, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO JERROD FULLER, a/k/a Tone,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:13-cr-00072-RAJ-DEM-1)
Argued: September 23, 2016 Decided: November 9, 2016
Before DUNCAN, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Lawrence Hunter Woodward, Jr., SHUTTLEWORTH, RULOFF,
SWAIN, HADDAD & MORECOCK, P.C., Virginia Beach, Virginia, for
Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J.
Boente, United States Attorney, Alexandria, Virginia, Howard J.
Zlotnick, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Antonio Fuller of numerous offenses
stemming from gang-related activity that included multiple
homicides, robberies, and home invasions in the pursuit of drug-
trafficking territory. In this direct appeal, Fuller challenges
the district court’s denial of his motions for continuance and
whether his two court appointed trial attorneys were
constitutionally ineffective. Finding no error, we affirm.
I.
As a member of the Thug Relations gang in Newport News,
Virginia, Fuller and his associates engaged in acts of violence
that included murder, threat of murder, attempted murder,
malicious wounding, robbery, witness intimidation, and narcotics
distribution. 1 On August 28, 2013, after an Eastern District of
Virginia grand jury returned the initial indictment against
Fuller and almost a full year before the trial was scheduled to
begin, the district court appointed two attorneys to represent
Fuller during the course of this prosecution.
1
Because Fuller was convicted by a jury, the following
facts are recited in the light most favorable to the Government.
See United States v. Cabrera–Beltran, 660 F.3d 742, 746 (4th
Cir. 2011).
2
On November 12, 2013, the grand jury returned a superseding
indictment that charged Fuller with racketeering conspiracy, in
violation of 18 U.S.C. § 1962(d); drug conspiracy, in violation
of 21 U.S.C. § 846; three counts of murder in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(1); two counts
of attempted murder in aid of racketeering, in violation of 18
U.S.C. § 1959(a)(5); three counts of use of a firearm resulting
in death, in violation of 18 U.S.C. § 924(c)(1), (j); two counts
of felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1); and three counts of using, brandishing, and
discharging a firearm in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1). Fuller pleaded not guilty
to the charges, and his case proceeded to trial.
On September 6, 2013, the district court entered a
discovery order in which both parties agreed that the Government
would provide Jencks Act 2 and Giglio 3 materials to defense
counsel no later than five days before trial. The trial was
scheduled to begin on July 1, 2014. At a pretrial hearing on
June 26, 2014, Fuller’s counsel made an oral motion to continue
2 18 U.S.C. § 3500. The Jencks Act requires the government
to produce statements made by a government witness relating to
the witness’s trial testimony. Id. § 3500(b).
3 Giglio v. United States,
405 U.S. 150 (1972) (requiring
the government to disclose evidence tending to impeach a
government witness prior to trial).
3
the trial date, arguing they did not have a complete criminal
history for the Government’s witnesses. The Government
responded that it would produce the Jencks/Giglio materials
after the hearing. The district court deferred its ruling on
Fuller’s motion to continue because the Government was not in
violation of the joint discovery order as to timeliness. That
same day, after the hearing, the Government produced 1,800 pages
of Jencks/Giglio material.
On the eve of trial, June 30, 2014, Fuller’s counsel filed
a written motion to continue the trial date, arguing that the
volume of materials made it difficult to adequately prepare for
trial. The district court held a hearing that day, at which
time the court denied Fuller’s request for continuance and
determined that the Government’s voluminous disclosure made five
days before trial had not violated the agreed joint discovery
order.
The trial began as scheduled on July 1 and continued
through July 16, 2014. The Government called forty-three
witnesses, and the testimony at trial showed that, as a member
of the Thug Relations gang, Fuller participated in the
racketeering conspiracy.
At the conclusion of the Government’s case, Fuller moved
for judgment of acquittal as to all counts. The district court
granted his motion as to Counts 3 through 8. The case was
4
submitted to the jury on the remaining counts: Count 1
(racketeering conspiracy), Count 2 (drug conspiracy), Count 9
(felon in possession of a firearm), Count 11 (murder in aid of
racketeering), Count 12 (use of a firearm resulting in death),
Count 13 (attempted murder in aid of racketeering), Count 14
(using, carrying, brandishing and discharging a firearm in
relation to a crime of violence), and Count 15 (felon in
possession of a firearm).
The jury returned a guilty verdict as to all remaining
counts on July 16, 2014. Fuller moved for a judgment of
acquittal and for a new trial under Federal Rules of Criminal
Procedure 29 and 33. The district court denied both motions on
September 4, 2014.
Several months after the trial ended, on September 15 and
24, the Government informed Fuller’s counsel that it had located
Brady 4 and Giglio material that had not been previously
disclosed. Apparently seeking to negotiate how to proceed in
light of the post-trial disclosures, the Government sent defense
counsel a draft joint motion for new trial. However, as the
parties failed to reach agreement, that motion was never filed
4Brady v. Maryland, 373 U.S. 83 (1963) (requiring the
government to disclose “evidence favorable to an accused upon
request . . . where the evidence is material either to guilt or
to punishment”).
5
with the court. Instead, Fuller filed a motion to dismiss,
arguing his convictions should be dismissed outright based on
prosecutorial misconduct with regard to the late disclosures and
retrial of the charges would be barred by the Double Jeopardy
Clause. The government responded to Fuller’s motion by again
offering to agree to a new trial, but opposing dismissal.
After a hearing, the district court denied Fuller’s post-
trial motion to dismiss all charges. Fuller was sentenced on
March 3, 2015 to two life sentences plus 360 months to run
consecutively. Fuller timely appeals. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3231.
II.
On appeal, Fuller’s contentions distill to two challenges.
First, he asserts the district court erred by denying his
pretrial motions for a continuance. This, Fuller insists,
caused his counsel to go to trial unprepared such that his
constitutional rights were violated. Second, Fuller contends
his trial counsel were constitutionally ineffective by seeking
only dismissal –- and rejecting the government’s new trial offer
-- upon the government’s post-trial disclosure of Brady/Giglio
material. We address these claims in turn.
6
A.
We first consider whether the district court erred in
denying Fuller’s pretrial motions for a continuance. Fuller
contends that the district court’s denial of his requests for
continuance premised upon the government’s disclosure of 1,800
pages of Jencks/Giglio material five days before trial forced
his counsel to go to trial without adequate preparation. 5
Our standard is a deferential one. In order to demonstrate
an abridgment of a defendant’s constitutional rights based on an
alleged erroneous denial of a continuance, a defendant must show
that the district court abused its discretion in denying the
motion. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). In the
context of a denial of a motion for continuance, “abuse of
5 Fuller reframes his challenge to the district court’s
denial of the continuance motions as violations of due process,
noting broadly his perception that every party involved in the
trial failed to protect his constitutional rights. This
overarching contention is subsumed by the remaining issues
Fuller raises on appeal, to the extent it is not waived by
Fuller’s failure to develop more than a wholesale attack on the
district court proceedings and actors. See United States v.
LaRouche, 896 F.2d 815, 823 (4th Cir. 1990) (“The due process
analysis, in this context, merges into the sixth amendment
[right to counsel] analysis; if the district court's wrongful
denial of a continuance did not prejudice the defense's ability
to prepare, it cannot otherwise be said here that the court
deprived the defendant[] of a fair trial.”); see also Fed. R.
App. P. 28(a)(8)(A) (stating that an appellant’s brief “must
contain: appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which
appellant relies”).
7
discretion” means an “unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay
violates the right to the assistance of counsel.” Id. 6 “[E]ven
if such an abuse is found, the defendant must show that the
error specifically prejudiced [his] case in order to prevail.”
United States v. Hedgepeth,
418 F.3d 411, 419 (4th Cir. 2005);
United States v. Lawrence,
161 F.3d 250, 254 (4th Cir. 1998)
(“Furthermore, absent a presumption of prejudice, specific
errors must be shown which undermine confidence in the outcome
of the trial to constitute reversible error.”). That is, in the
absence of a presumption of prejudice, the defendant must point
to particular errors of defense counsel that undermine
confidence in the outcome of the trial.
LaRouche, 896 F.2d at
823.
Against the foregoing standard, we examine the facts in
this case. Nearly a year prior to trial, the district court
appointed two attorneys to represent Fuller. On September 6,
2014, those attorneys and the Government agreed to a discovery
order, which the district court entered, establishing the
deadline for disclosure of “Jencks/Giglio material” would be “no
later than five calendar days before trial.” J.A. 34-35. The
6
We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.
8
Government produced some Jencks/Giglio material well in advance
of that deadline and its remaining pre-trial disclosures were
made on June 26, 2014, still in compliance with the time
requirements of the joint discovery order. 7
Fuller insists that, despite the Government’s compliance
with the joint discovery order, the substantive complexity of
the case and voluminous pre-trial disclosure warranted a
continuance. “The difficulty for the defense in reading all the
discovery material in five days, meeting with the client and
discussing it and still preparing for trial and developing a
trial strategy is obvious,” he asserts. Appellant’s Opening Br.
17-18. However, this Court has held that “the burdensome task
of assembling a trial counsels against continuances, and,
therefore, the trial courts must be granted broad discretion.”
LaRouche, 896 F.2d at 823. Rather than attempt the “seemingly
impossible task in discounting the substantive complexity of a
7
Notably, the Government provided the district court with
reasons for seeking that timeframe for pretrial disclosure of
the Jencks/Giglio materials: the security risk to witnesses.
The prosecution of Fuller’s related cases involved multiple
homicides and spanned multiple gangs, some of which were at that
time the target of ongoing investigations. See, e.g., United
States v. Pridgen, No. 4:14-cr-59 (E.D. Va.) (involving six
defendants from the same gang for additional murders who were
indicted after the Fuller trial, on March 9, 2015). The
Government represented certain earlier disclosures could pose a
genuine risk to the personal safety of witnesses and foster
witness tampering.
9
case by the number of days available for preparation,” we
emphasize “the process with which the judge conducted the
trial.” LaRouche, 896 F.2d at 824.
In this case, the district court addressed the concerns of
Fuller’s trial counsel, explaining it would give counsel “all
the leeway [they] need[ed] during the course of th[e] trial[.]”
J.A. 165. That leeway took the form of multiple accommodations,
such as providing counsel “a lot of leeway” in cross examining
witnesses, allowing counsel time to retrieve a file, granting a
half-day recess to allow counsel to consult with Fuller, and
ensuring that the Fuller was available at 8:15 a.m. each day to
consult with trial counsel. J.A. 858. Moreover, the government
provided advance notice of witnesses it intended to call the
next day and reversed the order of its last two witnesses to
accommodate defense counsel. In view of these accommodations,
we simply cannot conclude that Fuller was denied the opportunity
to explore fully before the jury the issues material to his
defense. See United States v. Williams, 445 F.3d 724, 740 (4th
Cir. 2006) (holding no abuse of discretion in the denial of a
continuance where the trial record “confirm[ed] that the
district court was correct in its assessment of the time needed
to prepare”).
Fuller points to nothing specific in the record that
remotely suggests the district court was “unreasoning and
10
arbitrary” in denying the requests for continuance, as is
required to find abuse of discretion in this circumstance. See
Slappy, 461 U.S. at 11–12. Accordingly, Fuller's argument that
the district court abused its discretion must fail.
We note further that even had Fuller made the requisite
showing on the initial abuse of discretion element, his claim
still would be unavailing because he has not demonstrated any
specific prejudice. Fuller primarily contends, without
elaboration, that “[p]erhaps the biggest evidence of prejudice
is that the lack of time to prepare hampered the overall defense
strategy[.]” Appellant’s Opening Br. 19. This Court has
explained, however, that “[m]ore than a general allegation of
‘we were not prepared’ is necessary to demonstrate prejudice.”
LaRouche, 896 F.2d at 825.
Fuller identifies only two instances of purported
prejudice. He first asserts that his counsel could not locate
“a page of a witness 302” and so was unable to take a “position
on whether a statement [elicited by the Government] was a dying
declaration.” Appellant’s Opening Br. 19. The district court
found the statement offered by the Government inadmissible, and
so Fuller fails to explain how this incident prejudiced him.
Second, he challenges the district court’s refusal to permit
defense counsel time to “read through the documents as she
thought that someone else had a different recollection or that
11
[the witness] had testified differently before.” Appellant’s
Opening Br. 20. However, Fuller fails to explain what actually
happened with this witness to cause any prejudice that would
undermine our confidence in the outcome of the trial.
In sum, the mere suggestion that aspects of the defense
could have been better, without more, does not suffice to
demonstrate the requisite prejudice. See LaRouche, 896 F.2d at
825; United States v. Badwan,
624 F.2d 1228, 1231 (4th Cir.
1980) (observing that “post-hoc assertions by counsel that given
more time something might have turned up” does not independently
satisfy the prejudice element). For these reasons, we find the
district court did not abuse its discretion in denying Fuller’s
motions for continuance. 8
B.
Fuller next contends he was denied effective assistance by
both of his trial counsel. Specifically, he states that after
the United States made post-trial disclosures of Brady/Giglio
material, Fuller’s counsel rejected the government’s offer to
agree to a new trial and sought only dismissal of the charges
8 In support of his contentions, Fuller cites pages of the
Joint Appendix in string cite fashion without elaboration. We
therefore deem waived his “perfunctory and undeveloped
claim[s].” See Russell v. Absolute Collection Servs., Inc., 763
F.3d 385, 396 n.* (4th Cir. 2014) (holding that assigning error
without providing supporting argument is insufficient to raise
issue on appeal).
12
outright. Fuller asks this Court to grant him a new trial,
stating that had he been advised differently “he would have
accepted a new trial or plea bargained his case with the
government.” Appellant’s Opening Br. 31.
It is well-settled that
a defendant may raise a claim of ineffective
assistance of counsel in the first instance on direct
appeal if and only if it conclusively appears from the
record that counsel did not provide effective
assistance. Otherwise, he must raise his claim in the
district court by a collateral challenge pursuant to
28 U.S.C. § 2255.
United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014).
Fuller fails to satisfy this “demanding” standard.
Id.
It is unclear from the record whether Fuller was, in fact,
dissatisfied with trial counsels’ decision to seek dismissal
instead of agreeing to a new trial. When the district court
asked Fuller’s counsel why he was rejecting the government’s new
trial offer, counsel responded:
I have spoken with my client repeatedly about the
possibility of moving forward with the new trial and,
for reasons that I’m not really at liberty to disclose
to the Court directly . . . we felt that, quite
frankly, under the circumstances, a Motion to Dismiss
or renewal of the Motion to Dismiss was more
appropriate under the circumstances.
J.A. 2399-2400. There was no voir dire of Fuller in the
district court during the post-verdict proceedings to determine
his understanding or whether he had consented to the motion to
dismiss.
13
As Fuller raises his ineffective assistance claim on direct
appeal, without the benefit of an evidentiary record that might
be accorded him on collateral review, we have no ability to
assess Fuller’s role in choosing the dismissal course over the
government’s new trial offer. See Massaro v. United States, 538
U.S. 500, 504-06 (2003) (observing that considering ineffective
assistance claims on collateral review provides a more
comprehensive record and results in fairer procedure). The
record before us does not conclusively show that counsels’
performance “fell below an objective standard of
reasonableness,” particularly given that we “indulge a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance[.]” Strickland v.
Washington,
466 U.S. 668, 688-89 (1984); see also
Galloway, 749
F.3d at 241.
Fuller also has not shown that he was prejudiced by trial
counsels’ performance. A showing of prejudice requires “that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694; see also
Galloway, 749 F.3d at 241-42. Here, Fuller asserts in passing
that “[i]t is simple to satisfy the prejudice prong under these
circumstances.” Appellant’s Opening Br. 31. Yet, he provides
no legal argument as to how the post-trial disclosures might
14
have been exculpatory in light of what appears to be
overwhelming evidence supporting his conviction; whether the
disclosure materials were admissible; and whether there was a
reasonable probability that the late disclosures would have
changed the result of the proceeding had they been disclosed in
a timely fashion. These circumstances fail to satisfy the
“demanding” standard for an ineffective assistance claim to
succeed on direct appeal. See Galloway, 749 F.3d at 241-42. 9
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
9
Fuller also argues that the post-trial disclosures made by
the government amount to a Brady violation such that a new trial
is warranted. Below, however, Fuller repudiated the
government’s offer to agree to a new trial. Because Fuller had
the opportunity below to obtain the precise remedy he seeks on
appeal and expressly rejected it, this contention is waived.
See United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(“[W]hen a claim is waived, it is not reviewable on appeal[.]”).
15
