                                                                NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                    _______________

                                     Nos. 14-2668 & 15-3729
                                       ________________

                               UNITED STATES OF AMERICA

                                                 v.

                                       CARLOS C. HILL,

                                                   Appellant
                                       ________________

                        On Appeal from the United States District Court
                            for the Middle District of Pennsylvania
                                 (D.C. No. 1:12-cr-00243-001)

                           District Judge: Honorable Sylvia H. Rambo
                                         _____________

                       Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                       August 25, 2016

                  Before: RENDELL, SMITH, and KRAUSE, Circuit Judges

                                (Opinion filed: August 26, 2016)

                                   ______________________

                                          OPINION
                                   ______________________

KRAUSE, Circuit Judge

       
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Appellant Carlos Hill challenges his conviction as a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g), and his sentence of 235 months’

imprisonment, imposed pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)

(“ACCA”). Hill raises six issues on appeal, stemming from his criminal proceedings, as

well as those raised when we remanded his initial appeal for further consideration. We

will address each in turn, and, for the reasons stated below, we will affirm.

I.     Background1

       In the morning hours of July 13, 2012, Tamela Corish and Rodney Nicholson,

driving separately after leaving a family get-together, pulled into a gas station in

Harrisburg, Pennsylvania, to buy cigarettes. While Nicholson was inside the store, a

young man jumped out of an SUV parked at the gas station, hopped into Nicholson’s

car—which was unlocked with the keys in the ignition—and took off despite Corish’s

attempts to stop him. Corish and Nicholson got into Corish’s vehicle and gave chase.

While they lost sight of Nicholson’s car, they followed the SUV until they eventually

caught up to it and parked alongside it. A man emerged from the SUV, and Nicholson

demanded the return of his car. At that moment, a second man stepped out of the SUV

and, per Corish and Nicholson, pointed a handgun at Corish and Nicholson, telling them

to leave. Corish and Nicholson complied and thereafter contacted the authorities.

       The Harrisburg police later questioned Elijah Brown, who, according to the SUV’s

owner, was driving the vehicle at the time of the crime. Brown consented to a search of

       1
         Because we write primarily for the parties, we provide background only as
relevant to the issues on appeal.

                                              2
his home, where the police recovered a handgun. Brown admitted to having been part of

the robbery and named Appellant Carlos C. Hill and Wesley Garner as two other

individuals who had been in the SUV during the heist. He further told the police that

Garner gave Hill the weapon while in the SUV, and Hill used the gun to intimidate

Corish and Nicholson by lifting up his shirt to expose a firearm. During the ensuing

investigation, Corish identified Brown as the driver of the SUV and twice identified Hill

in a photo array as the individual with the gun, while Hill maintained that Brown—not

he—pointed the gun at Corish and Nicholson.

       Hill was tried and convicted as the person who intimidated Corish and Nicholson

with the handgun, resulting in a conviction under 18 U.S.C. § 922(g)(1) for being a felon

in possession of a firearm. He was sentenced to 235 months’ imprisonment pursuant to

the ACCA, 18 U.S.C. § 924(e), and the applicable sentencing guidelines. Hill now

challenges his conviction and sentence, arguing: (1) the trial court’s jury instructions

were improper; (2) the Government’s use of Brown’s statement to the police violated

Brady v. Maryland, 373 U.S. 83 (1963); (3) the Government engaged in prosecutorial

misconduct; (4) Hill was denied his Sixth Amendment Confrontation Clause rights;

(5) Hill’s trial counsel had an actual conflict of interest because of his prior representation

of Nicholson, who testified against Hill at trial; and (6) Hill’s 235 month sentence is

unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135




                                              3
S. Ct. 2551 (2015), which struck down the residual clause of the ACCA.2 Upon careful

consideration of these myriad claims, we reject Hill’s arguments and will affirm his

conviction and sentence.

II.    Discussion3

       A.     Jury Instructions

       Hill argues that the District Court erred in instructing the jury on the theories of

constructive and joint possession of a firearm. Specifically, Hill asserts that the

Government prosecuted solely on the basis of actual possession and that the substantive

evidence at trial, consisting of testimony identifying Hill as the assailant who pointed a

gun at the robbery victims, only supported an instruction of actual possession. Hill did

not, however, raise an objection to the District Court’s initial instruction at trial. After

the jurors began deliberating, they twice asked for clarification as to the elements of

constructive possession, and the District Court twice offered clarifications that mirrored

its initial instructions; defense counsel objected to the District Court’s supplemental

instruction following the first jury question but did not object to the second clarification

provided by the District Court. We will review the instructions that were challenged at

trial for abuse of discretion and review those that were not challenged at trial for plain

error. See United States v. Sims, 329 F.3d 937, 942-43 (7th Cir. 2003).

       The first four arguments were raised in Hill’s initial appeal, whereas the latter
       2

two were the subject of a remand of that initial appeal by this Court on May 28, 2015.
We consider all six issues in this single opinion.
       3
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                               4
       Applying the relevant standards, we perceive no error in the District Court’s

instructions. As a threshold matter, Hill’s argument that the Government did not argue

constructive possession is untrue. While the Government’s arguments and evidence

focused on actual possession, it mentioned both actual and constructive possession in its

opening statement. Hill’s assertion that there was insufficient evidence at trial to support

a constructive possession instruction is also unavailing. We will review each of the three

instructions in turn.

       Hill’s argument concerning the initial instruction is precluded by Griffin v. United

States, 502 U.S. 46 (1991), which

       restated the longstanding rule that if the evidence is insufficient to support a
       conviction on one alternative theory in a count but sufficient to convict on
       another alternative theory that was charged to the jury in the same count,
       then a reviewing court should assume that the jury convicted on the
       factually sufficient theory and should let the jury verdict stand.

United States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002) (citing Griffin, 502 U.S. at 49-

50). Hill does not challenge the sufficiency of the evidence under the theory of actual

possession, and any such challenge would surely fail based on the record at trial.

Therefore, pursuant to Griffin, we presume the jury convicted under an actual possession

theory and conclude there was no error, much less plain error, in the District Court’s

instruction.

       Hill’s objections to the two supplemental instructions also fail. We review jury

instructions by considering “the totality of the jury instructions to determine ‘whether,

viewed in the light of the evidence, the charge as a whole fairly and adequately submits

the issues in the case to the jury.’” United States v. Antico, 275 F.3d 245, 265 (3d Cir.

                                              5
2001) (quoting United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999)), abrogated on

other grounds by Skilling v. United States, 561 U.S. 358 (2010). While Hill did object to

the District Court’s first supplemental instruction, he provides no specific objection

beyond a general complaint as to the appropriateness of the constructive possession

instruction in the first place. That complaint is foreclosed by Griffin, and we discern no

abuse of discretion in the District Court’s decision to respond to the jury’s questions in a

way consistent with its initial instructions. For the same reasons, we find no plain error

in the District Court’s second supplemental instruction, to which Hill did not object at

trial.

         B.     Brady Challenge

         Hill next argues that the Government withheld evidence from the defense in

violation of Brady v. Maryland, 373 U.S. 83 (1963). We disagree.

         At trial, Hill’s counsel introduced a jailhouse letter written by Brown that implied

Brown was the one who brandished the handgun at Corish and Nicholson. In rebuttal,

the Government introduced the statement Brown made to the police shortly after the

incident, in which he identified Hill as the one with the gun. Because Brown had invoked

his Fifth Amendment right and declined to testify, his testimonial hearsay statement to

the police could only be admitted as a prior inconsistent statement for impeachment

purposes under Federal Rule of Evidence 806. The District Court warned both the

Government and the jury that Brown’s statement to the police was only to be used for

that purpose. Hill argues that, because the Government failed to disclose Brown’s

statement to defense counsel prior to trial, it violated Brady. Because Hill did not

                                               6
properly raise a Brady objection in the District Court, we review—if at all—only for

plain error. See, e.g., United States v. Mota, 685 F.3d 644, 648 (7th Cir. 2012).4

       The Government argues that Brown’s statement does not trigger Brady because it

was inculpatory. Brady, however, extends to impeachment evidence that makes an

eyewitness’s testimony “markedly weaker,” Kyles v. Whitley, 514 U.S. 419, 441, 453

(1995), and the Supreme Court has rejected the contention that impeachment evidence

does not qualify as Brady material merely because it is also inculpatory, Strickler v.

Greene, 527 U.S. 263, 282 n.21 (1999). Here, Brown’s statement had impeachment

value because it contradicted both Brown’s jailhouse letter and certain elements of

Corish’s story (e.g., whether Hill pointed the gun or merely exposed it by lifting his

shirt), and thus constitutes Brady material because it could have significantly weakened

key eyewitness testimony.

       But failure to disclose Brady evidence only necessitates a new trial if the evidence

is “material,” meaning “there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” United

States v. Bagley, 473 U.S. 667, 682 (1985). Here, we cannot discern how earlier

disclosure of Brown’s statement to the police would have altered the outcome of the trial.

Brown’s statements were made before trial; the evidence was ultimately disclosed at trial;


       4
        In United States v. Green, 556 F.3d 151, 154 n.2 (3d Cir. 2009), we implied that
where a Brady claim is not raised in the district court, it is largely unreviewable because
the appellate record will lack the requisite findings of fact from the district court.
Because we ultimately decided Green on other grounds, we follow the Seventh Circuit’s
approach and review Hill’s Brady claim for plain error.

                                             7
and Hill’s trial counsel was able to cross examine the detective who took Brown’s

statement. See, e.g., Mota, 685 F.3d at 649 (“[D]isclosure [of Brady material] even in

mid-trial suffices if time remains for the defendant to make effective use of [it].” (quoting

United States v. Gray, 648 F.3d 562, 567 (7th Cir. 2011))). Thus, because the

introduction of the Brady evidence did not prejudice Hill, it was not “material,” and the

District Court did not plainly err in admitting it.5

       C.     Prosecutorial Misconduct

       Hill not only takes issue with the introduction of Brown’s statement, but also

argues that the Government blatantly ignored the District Court’s warning to treat

Brown’s hearsay statement solely as impeachment evidence and engaged in prosecutorial

misconduct by using the statement as substantive evidence of Hill’s guilt during its

closing argument. While we agree the Government erred, we will affirm the District

Court’s conclusion that the prosecutor’s remarks were not so prejudicial as to warrant a

new trial.

       During its closing argument, the Government told the jurors that, in their efforts to

determine whether Hill possessed the handgun, they “may . . . consider” Brown’s

statement, “in which [Brown] says that Mr. Hill had the gun at the time of the incident.”

       5
        Hill fares no better with his argument that the District Court abused its discretion
by allowing Brown’s statement to be used for impeachment purposes under Federal Rule
of Evidence 806 on the grounds that the statement was not, in fact, inconsistent with
Brown’s jailhouse letter. See United States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000).
Brown’s post-arrest statement indicated that Hill pointed the gun at the victims, whereas
his subsequent jailhouse letter implied that Brown himself had done so.



                                               8
App. 346. Following closing argument, Hill’s counsel objected and requested a mistrial.

The District Court instead gave an immediate curative instruction, clarifying that

Brown’s statement could only be used “in determining the credibility of the witness, Mr.

Brown,” and not as “substantive proof that . . . Mr. Hill had the gun.” App. 347. We

review the District Court’s decision to deny a motion for a new trial predicated on

allegations of prosecutorial misconduct for abuse of discretion and find none. United

States v. Wood, 486 F.3d 781, 786 (3d Cir. 2007).

       Here, the District Court acknowledged and the Government does not seriously

dispute that the Government improperly treated Brown’s statement as substantive

evidence. But prosecutorial misconduct warrants a new trial only if it “so infect[s] the

trial with unfairness as to make the resulting conviction a denial of due process,” Greer v.

Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)), and a trial court must consider a prosecutor’s improper remarks in the context of

the entire trial, including any curative instructions, the weight of the properly admitted

evidence against the defendant, and the nature of the prosecutor’s improper actions,

United States v. Morena, 547 F.3d 191, 193-94 (3d Cir. 2008).

       The District Court did not abuse its discretion in concluding on this record that the

error did not require a mistrial. First, the Government’s misconduct was not the

introduction of improper evidence, but rather its characterization in a few sentences at the

end of its closing argument of how the jury should interpret Brown’s otherwise

admissible statement. Second, the District Court immediately followed the

Government’s closing argument with an appropriate curative instruction and again

                                              9
reminded the jurors after a lunch break as part of its final jury instructions that they

should adhere to the “limited purpose[s]” it assigned to various pieces of evidence,

including not using impeachment evidence “as proof of [the] truth about what the witness

said in an earlier statement.” App. 373, 383. Given the limited nature of the

Government’s conduct here and the careful instructions provided to the jury6 by the

District Court, we discern no abuse of discretion that would “raise doubts as to the

fairness of the trial” and will affirm. Morena, 547 F.3d at 194 (quoting Marshall v.

Hendricks, 307 F.3d 36, 67 (3d Cir. 2002)).

       D.     Confrontation Clause

       Hill next argues that the use of Brown’s statement to the police violated his

constitutional rights under the Sixth Amendment’s Confrontation Clause. Specifically,

Brown urges (1) that because Brown’s statement was inculpatory, this case is

distinguishable from precedent that has permitted the prosecution to use testimonial

statements for nonhearsay purposes; and (2) that because Brown was never available for

cross examination, the Government’s conversion of Brown’s statement to the police from

impeachment evidence to substantive evidence during closing arguments was reversible

error under the Confrontation Clause. Because Hill’s counsel neither specifically

objected to the admission of Brown’s post-arrest statement on Confrontation Clause

grounds, nor mentioned the Confrontation Clause as part of his objection to the


       6
        “We generally presume that juries follow instructions given by the District
Court.” United States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003).


                                              10
Government’s closing argument, we will review for plain error. See United States v.

Mussare, 405 F.3d 161, 167 (3d Cir. 2005).

       Hill’s contention that inculpatory evidence is not covered by existing

Confrontation Clause precedent fails. As a general matter, the Confrontation Clause does

not bar the use of testimonial statements for nonhearsay purposes. See Crawford v.

Washington, 541 U.S. 36, 59 n.9 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414

(1985)). Of particular relevance here, the Supreme Court permitted inculpatory,

testimonial, nonhearsay evidence for impeachment purposes in Street, 471 U.S. at 411-

12, 417, and it has since broadly construed Street to permit testimonial statements “as

long as [jurors] were instructed to consider [such a statement] not for its truth, but only

for the ‘distinctive and limited purpose’” of impeachment, Williams v. Illinois, 132 S. Ct.

2221, 2235 (2012) (quoting Street, 471 U.S. at 417); accord Adamson v. Cathel, 633 F.3d

248, 258-59 (3d Cir. 2011) (explaining that, under the Confrontation Clause, inculpatory

evidence may be admitted for impeachment purposes if accompanied with a limiting

instruction). The District Court provided such instruction here when it told the jury that

Brown’s statement “was used to show [the jury] that there was a prior inconsistent

statement” that could be relevant to Brown’s credibility and was “not substantive proof

that [Brown] . . . is saying Mr. Hill had a gun.” App. 347. There was thus no plain error

on this front.

       We agree with Hill that the Government endeavors at its peril to take refuge in the

nonhearsy purpose exception when it has characterized impeachment evidence as

substantive evidence during its closing argument, but we conclude in the circumstances

                                             11
of this case that the District Court did not plainly err in this regard, either. It is

indisputable that a confession by a nontestifying co-defendant that incriminates the

defendant during a joint trial may not be admitted as substantive evidence against the

nontestifying co-defendant unless the confession is redacted to eliminate any reference to

the defendant and the court provides a limiting instruction that the statement can be used

as evidence only against the nontestifying co-defendant. Richardson v. Marsh, 481 U.S.

200, 211 (1987). In Richardson, the Court concluded that where a “prosecutor sought to

undo the effect of the limiting instruction by urging the jury to use [the co-defendant’s]

confession in evaluating” the defendant’s guilt, such behavior was sufficient to create a

Confrontation Clause violation despite a limiting instruction before such statements were

made and a curative instruction thereafter. Id. at 205, 211. Thus, in the context of a joint

trial, a prosecutor’s misuse of a statement admitted against the nontestifying co-defendant

can warrant reversal even in light of a subsequent curative instruction. See id.; Bruton v.

United States, 391 U.S. 123, 137 (1968); Brown v. Superintendent, No. 14-2655, --F.3d--

(3d Cir. Aug. 22, 2016) (holding that a defendant’s Confrontation Clause rights were

violated when a co-defendant’s statement was admitted at their joint trial as substantive

evidence against the co-defendant and the prosecutor linked the statement to the

defendant during closing argument).

       Here, in contrast, Hill and Brown were tried separately, Brown’s statement was

originally admitted only as impeachment evidence, and the Government asked the jury to

make improper use of that statement only once in passing in its closing argument. While

the Seventh Circuit has implied that Richardson’s lessons may extend beyond the joint

                                               12
trial context, Lee v. McCaughtry, 892 F.2d 1318, 1326 (7th Cir. 1990), and we do not

foreclose that possibility, binding precedent is not “sufficiently clear” on that point, see

United States v. Calabretta, --F.3d--, 2016 WL 3997215, at *7 n.11 (3d Cir. July 26,

2016), for us to conclude that the District Court plainly erred in proceeding with a

curative instruction.

       E.     Conflict of Interest

       After Hill’s initial appeal, we remanded for the limited purposes of addressing

Hill’s arguments regarding his trial and appellate counsel’s alleged conflict of interest

and the applicability of Johnson to his ACCA conviction. We conclude the District

Court properly rejected both of these claims.

       Hill argues that because the Office of the Federal Public Defender, which

represented him at trial and on appeal, represented Nicholson (who testified against Hill

at trial) in an unrelated case involving a petty charge for driving on a suspended license,

the Federal Defender had a conflict of interest that ultimately denied Hill his Sixth

Amendment right to effective counsel. We disagree. Simply showing that a conflict of

interest exists is not enough to automatically warrant a new trial; rather, a defendant

seeking reversal based on an attorney conflict when no contemporaneous objection was

lodged must show “an actual conflict of interest” that “affected counsel’s performance—

as opposed to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162,

171 (2002). We agree with the District Court that Hill has not met this high standard.

       With respect to trial counsel, although Hill asserts that Mr. Thornton did not

investigate or prepare for cross examination of Nicholson as thoroughly as he would have

                                              13
without the conflict, the District Court correctly notes that Hill “provides no examples of

deficiencies in Mr. Thornton’s trial strategy or cross examination of Nicholson.” United

States v. Hill, No. 1:12-cr-0243, 2015 WL 6560632, at *5 (M.D. Pa. Oct. 29, 2015).

Indeed, Mr. Thornton indicated in a hearing on remand that Federal Defender’s prior

representation of Nicholson did not “factor into his decisions relating to Hill’s

representation,” and the trial transcript reflects that Mr. Thornton in fact vigorously cross

examined Nicholson during trial. Id.

       Similarly, while Hill’s counsel on his first appeal, Mr. Ulrich, personally

represented Nicholson in the unrelated petty criminal matter that ended long before Mr.

Ulrich took on Hill’s case, Hill points to no specific strategic choice Mr. Ulrich made that

prejudiced Hill on appeal. As a result, we find no “actual conflict of interest” on the part

of either Mr. Thornton or Mr. Ulrich, and we thus affirm the District Court on this matter,

as well.7

       F.     ACCA Sentence Enhancement

       Finally, Hill argues that the District Court erred in concluding that a robbery he

committed in Virginia counts as one of the three violent felonies necessary to trigger an

ACCA sentencing enhancement under 18 U.S.C. § 924(e)(2)(B)(i). He urges that,

because robbery is not an offense enumerated in the ACCA, nor does it have “as an

       7
         We further note that the Pennsylvania Rules of Professional Conduct, which
govern Mr. Thornton and Mr. Ulrich’s professional behavior, did not prohibit the Federal
Defender from representing Hill because Hill’s federal firearms case was not the “same
or substantially related” to Nicholson’s petty offense. Pa. Rules of Prof’l Conduct 1.9.
As the District Court recounted, even Mr. Ulrich acknowledged that the two cases were
“not related” to one another. Hill, 2015 WL 6560632, at *6.

                                             14
element the use, attempted use, or threatened use of physical force against the person of

another” such that it could fall under § 924(e)(2)(B)(i), his conviction for “robbery by

force however slight” necessarily falls under the residual clause of the ACCA, which the

Supreme Court ruled unconstitutionally vague in Johnson, 135 S. Ct. at 2563.

       We need not weigh in on the merits of this argument, however, because Hill has

failed to identify and argue the critical issue in his brief and consequently has waived the

argument entirely. That is, Hill bases his argument on a Pennsylvania robbery statute,

which criminalizes robbery “by force however slight,” 18 Pa. Cons. Stat. § 3701(a)(1)(v),

and which, as he notes, the Government has conceded in another case does not have the

force element necessary to fall under § 924(e)(2)(B)(i) of the ACCA. United States v.

Blair, No. 12-4427, Appellee’s Br. 31-32 & n.10 (3d Cir.) (conceding that a conviction

based on “force however slight” could only fall under the residual clause of the ACCA).

But Pennsylvania law has no relevance whatsoever to Hill’s claim on appeal. Hill was

convicted of robbery in Virginia, which defines the offense under common law and

punishes it pursuant to Va. Code. § 18.2-58—a statute which makes no reference to

“force however slight.” Yet Hill presented no argument to the District Court or to this

Court as to the language of that statute or the definition of robbery under Virginia

common law.

       Hill’s failure to raise arguments as to the relevant statutes and case law constitutes

a waiver of the argument on appeal, and we will affirm the District Court’s ACCA ruling

on that ground without opining on the merits. See United States v. Pelullo, 399 F.3d 197,



                                             15
222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to identify or argue an

issue in his opening brief constitutes waiver of that issue on appeal.”).8

III.   Conclusion

       For the foregoing reasons, we will affirm Hill’s conviction and sentence.




       8
         We note that, twenty years ago, the Fourth Circuit concluded that the “violence
or intimidation” required for a conviction of robbery under Virginia law amounts to the
type of “physical force” described in the ACCA. United States v. Presley, 52 F.3d 64, 69
(4th Cir. 1995). Since that time, however, in addressing other issues, the Fourth Circuit
has given mixed signals as to whether it still views Presley as good law. Compare
United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016), with United States v.
Gardner, 823 F.3d 793, 804 (4th Cir. 2016); see also United States v. Winston, No. 3:01-
cr-00079, 2016 WL 2757451, at *4-5 (W.D. Va. May 11, 2016) (discussing disagreement
in the district courts on this question). We will not wade into these murky waters without
any argument or briefing by Hill either in the District Court or on appeal.



                                              16
