                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
