UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4186

ROBERT W. PETTY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-97-107-DKC)

Submitted: January 29, 1999

Decided: April 22, 1999

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dennis M. Hart, THE ROBINSON LAW FIRM, Washington, D.C.,
for Appellant. Lynne A. Battaglia, United States Attorney, Hollis
Raphael Weisman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Robert W. Petty appeals from his conviction and sentence imposed
for violation of 18 U.S.C.A. § 922(g)(1) (West Supp. 1998). On
appeal, Petty contends that the district court erred in denying his
motion for judgment of acquittal on the basis that the government
failed to establish the interstate nexus element of the offense; erred in
permitting the government to introduce evidence in violation of Fed.
R. Crim. P. 16; erred in allowing the government to introduce the tes-
timony of an expert witness contrary to Fed. R. Evid. 702; and erred
in calculating his criminal history category. Petty has also filed a
motion to file a pro se supplemental brief, asserting that counsel was
ineffective in his representation of Petty and that the district court
erred in refusing to give an instruction on "mere presence," failing to
answer the jury's question about a photograph in evidence, and deny-
ing Petty's request to file a notice of insanity defense out of time. We
grant Petty's motion to file a pro se supplemental brief and have con-
sidered the issues raised by Petty. Finding no abuse of discretion and
no error, we affirm Petty's conviction and sentence.

I.

In the early morning hours of November 23, 1996, four individuals
left a bar in Clinton, Maryland. As they drove toward the home of the
driver, Mike Jamison, they noticed that they were being followed by
another vehicle. Jamison pulled the car off the traveled lane of the
road to allow the other vehicle to pass. When the other vehicle also
pulled off the road behind them, Jamison drove the car back onto the
road.

After traveling a short distance up the road, Jamison pulled into the
parking lot of a 7-11 convenience store. The other vehicle, a Jeep, fol-
lowed and stopped behind the car driven by Jamison. David Berkley,
a Capitol Police officer, got out of the back seat of the car driven by
Jamison, walked up to the vehicle behind them, and asked the driver
what the problem was. The driver and sole occupant of the following
vehicle asked a question about someone named "Theresa." When
Berkley did not promptly reply, the driver of the Jeep reached into the

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car, pointed a short-barreled shotgun at Berkley, and stated that he
was not joking.

Coincidentally, Prince George's County Police Officer Russell Gil-
bert was sitting in a marked cruiser parked in the 7-11 parking lot
doing paperwork. Officer Gilbert witnessed the incident. He drew his
service weapon and ordered the driver of the Jeep to drop his weapon.
The driver of the Jeep glanced over at Gilbert, tossed the shotgun into
his vehicle, and drove off. Officer Gilbert got into his cruiser and pur-
sued the Jeep. Although he lost sight of the Jeep for a moment, he
spotted it driving through a church parking lot across the street from
the 7-11. The Jeep was driven to the rear of the church, where the
occupant got out and ran. Officer Gilbert followed in his cruiser and
caught the occupant when he tripped and fell--not too far from the
Jeep. This person was later identified as Robert Petty. A sawed-off
shotgun was found in the middle of a nearby road. The gun was not
loaded, and the hammer was cocked. Officer Gilbert testified that the
person he arrested near the church parking lot, Robert Petty, was the
same person who had been driving the Jeep and who pointed the gun
at Berkley in the 7-11 parking lot.

The government presented testimony from Special Agent Tom
Love of the Alcohol, Tobacco, and Firearms Department. Agent Love
testified that he had training in identifying the interstate nexus of fire-
arms. His training and experience included examination and research
on firearms, including tool markings, proof marks, and origin. He had
previously testified in federal court as an expert in interstate nexus at
least six times. Love testified that he was familiar with Harrington
and Richardson, the manufacturer of the shotgun recovered following
Petty's arrest, and, during voir dire, testified that Harrington and
Richardson was located in Massachusetts and never produced a shot-
gun in Maryland.

Following the presentation of a stipulation as to Petty's prior felony
conviction, the government rested its case. Petty moved for judgment
of acquittal. The district court denied this motion and denied Petty's
renewed motion following the close of the evidence. Petty subse-
quently moved for a new trial in which he argued that the district
court erred in permitting the testimony of Agent Love under Rule 16
and Rule 702, and, absent his testimony, the evidence was insufficient

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to support Petty's conviction. Following a hearing on this motion, the
district court denied a new trial.

II.

Petty first argues that the district court erred in denying his motion
for judgment of acquittal because the government failed to establish
the interstate nexus element of the offense. To support a conviction
under 18 U.S.C.A. § 922(g)(1), the government must prove that the
defendant previously had been convicted of a felony and had "pos-
sess[ed] in or affecting commerce, any firearm." Id. In Scarborough
v. United States, 431 U.S. 563, 575 (1977), the Supreme Court con-
cluded that the government had to prove that the defendant possessed
a firearm that at some time had traveled in interstate commerce. Petty
contends that Agent Love--the only witness to address the interstate
nexus element--testified that the weapon recovered by Officer Gil-
bert was a Harrington and Richardson Topper Model 490 shotgun that
was manufactured in 1972. He also testified that Harrington and Rich-
ardson currently manufactures weapons in Massachusetts. Petty
asserts that this testimony does not show that in 1972, Harrington and
Richardson did not manufacture firearms in Maryland. However, in
addition to the statements recited by Petty, Agent Love also testified
that "there was never a Harrington and Richardson shotgun ever pro-
duced in the State of Maryland." (J.A. at 173). We find that Agent
Love's statements, in conjunction and viewed in the light most favor-
able to the government, provide sufficient evidence to prove beyond
a reasonable doubt, that the firearm at some time had traveled in inter-
state commerce. See United States v. Tresvant , 677 F.2d 1018, 1021
(4th Cir. 1982).

Relying on United States v. Lopez, 514 U.S. 549 (1995), Petty also
contends that the statute under which he was convicted is unconstitu-
tional under the Commerce Clause because the regulated activity does
not substantially affect interstate commerce. We have previously
upheld § 922(g) against such a challenge and decline to revisit the
issue in this case. See United States v. Wells , 98 F.3d 808, 810-11 (4th
Cir. 1996).

III.

Petty next contends that the district court abused its discretion in
allowing Agent Love to testify as an expert concerning the interstate

                    4
character of the firearm. During Agent Love's testimony, the defen-
dant approached the bench and claimed that the expert testimony
report was never disclosed to him as required by Rule 16 and that the
report proffered by the government was not Agent Love's report. The
district court concluded that the government's failure to fully comply
with the rule was inadvertent and that the government had made
enough of the information available to the defense such that Agent
Love's testimony was admissible. However, the court recessed for a
long lunch to allow Petty sufficient time to review the report.

Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure
requires the government, upon a defendant's request, to provide the
defendant with "a written summary of testimony that the government
intends to use under Rules 702, 703, or 705 of the Federal Rules of
Evidence during its case-in-chief at trial. . . . The summary . . . shall
describe the witnesses' opinions, the bases and the reasons for those
opinions, and the witnesses' qualifications." Fed. R. Crim. P.
16(a)(1)(E). Petty contends that the government did not identify
Agent Love as its proposed expert witness until five days before trial
and failed to disclose to him the report upon which Agent Love's tes-
timony was based.

To the extent that the government failed to provide Petty with the
name, qualifications, and report of Agent Love, he has failed to show
how he was prejudiced. See United States v. Figueroa-Lopez, 125
F.3d 1241, 1247 (9th Cir. 1997) (holding that defendant "must dem-
onstrate prejudice to substantial rights to justify reversal for violations
of discovery rules"), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3748
(U.S. May 18, 1998) (No. 97-8682). Petty was informed prior to trial
that Special Agent Chris Trainor would testify regarding the interstate
nexus element of the offense. When the government learned that its
original expert witness would be testifying elsewhere and was unable
to be in court for Petty's trial, the government notified Petty that
Agent Love would testify. Petty had sufficient notice of the substance
of the testimony and the basis for the opinion rendered. Also, the type
of testimony elicited from Agent Love is not on such a complex sub-
ject matter as to require lengthy preparation or consultation with
another expert. We find no prejudice to Petty by the lack of prior
notice.

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The Federal Rules of Criminal Procedure provide a district court
with discretion in determining the proper remedy for a discovery vio-
lation. See Fed. R. Crim. P. 16(d)(2). Accordingly, a trial court's deci-
sion as to the appropriate remedy may only be reversed for abuse of
discretion. See United States v. Ford, 986 F.2d 57, 59 (4th Cir. 1993).
We find no abuse of discretion by the district court in remedying the
alleged Rule 16 violation by recessing for lunch to allow Petty to
review the report of Agent Love.

Further, we find that the district court did not abuse its discretion
in determining that Agent Love was properly qualified as an expert
in the field of identifying the interstate nexus of firearms. See United
States v. Dorsey, 45 F.3d 809, 812 (4th Cir. 1995); United States v.
Barsanti, 943 F.2d 428, 432 (4th Cir. 1991). Rule 702 of the Federal
Rules of Evidence authorizes the presentation of expert opinion testi-
mony in cases in which "scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue." Fed. R. Evid. 702. While the district
court acknowledged that Agent Love's testimony was not "expert"
testimony in the sense of a scientist rendering an opinion about a tech-
nical or scientific matter, the place of manufacture of firearms is not
the type of information that is within the common knowledge of
jurors. Given Agent Love's specialized training, experience, and
knowledge in the identification of the interstate character of firearms,
we find no abuse of discretion in the district court's admission of
Agent Love's testimony concerning where Harrington and Richard-
son manufactured the shotgun at issue in this case.

IV.

Petty also argues that the district court erred in calculating his
criminal history category. He contends that three of his previous con-
victions should have been considered related under U.S. Sentencing
Guidelines Manual § 4A1.2(a)(2) (1996). The three convictions
resulted from conduct occurring on the same date and were consoli-
dated for sentencing. Even if these convictions were considered
related, Petty's criminal history category would be unaffected--both
because his number of criminal history points would still exceed the
13 points necessary to place him in category VI, and because he qual-
ified as an armed career criminal, which also places him in category

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VI. See USSG § 4B1.4(c). Therefore, we decline to address whether
or not the convictions were related. Moreover, because it does not
conclusively appear from the record that counsel provided ineffective
assistance by failing to raise this claim at sentencing, we decline to
address this claim as well. See United States v. Ford, 88 F.3d 1350,
1363 (4th Cir. 1996). Petty's claim that counsel rendered ineffective
assistance should be raised, if at all, in the district court by a motion
under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).

V.

In his pro se supplemental brief, Petty raises the additional claims
of ineffective assistance of counsel, asserting that counsel did not
investigate the government's witnesses, did not present witnesses, did
not present evidence that Petty's vehicle was brown when the vehicle
involved in the incident was described as red or bright red, did not
present evidence that Petty had short hair on the night of his arrest
while the person who pointed the shotgun was described as having
shoulder-length hair, did not object to Officer Gilbert's use of the
phrase "on-scene arrest," did not object to the district court's refusal
to answer the jury question concerning a photograph that was admit-
ted into evidence, and did not file a timely notice of insanity defense
or request a downward departure at sentencing based on Petty's prior
treatment by a psychologist and his use of alcohol and drugs from an
early age. Because counsel's ineffectiveness does not conclusively
appear on the record, Petty's claims are more appropriately addressed
in a § 2255 motion filed in the district court. See Ford, 88 F.3d at
1363; United States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973).

VI.

Petty also asserts that the district court erred in refusing to instruct
the jury that mere presence at the scene of a crime is insufficient to
find that the defendant committed the crime. The requested instruc-
tion is typically given in conspiracy cases or cases in which the defen-
dant may be culpable as an aider and abettor. See United States v.
Love, 767 F.2d 1052, 1058-59 (4th Cir. 1985). In denying the instruc-
tion, the district court noted that there was no evidence of an aider or
abettor in this case and that the issue was whether the person arrested
was the person who wielded the shotgun in the parking lot. Rather

                     7
than giving the "mere presence" instruction, the district court opted to
amplify its instructions on identification and the reliability of the
identification. We find that the district court correctly determined that
the issue was not one of Petty's being present and his being the sus-
pect, but rather an issue of identification: was the person arrested the
same person who pointed the shotgun? Therefore, we find no error in
the district court's denial of Petty's request for an instruction on
"mere presence."

VII.

Petty also argues that the district court erred in refusing to answer
the jury question as to when a photograph in evidence was taken. The
challenged photograph pictured Petty with short hair, and the person
who committed the crime was described by one witness as having
shoulder-length hair. The court proposed responding to the jury that
the court could not give any further information about the photo, and
the jury would have to rely on their collective recollection of the testi-
mony. Neither party objected to this proposed response. The testi-
mony concerning the photograph came from Officer Gilbert, the
arresting officer. He testified that the photograph was of Robert Petty
and that it pictured him the way he looked the night he was arrested.
Considering that the witness who described the person with the shot-
gun as having shoulder-length hair also testified that he did not get
a good look at the person and that the jury ultimately had to determine
which of the two descriptions was accurate, we find no plain error in
the district court's refusal to elaborate on the origins and history of
the photograph. See United States v. Olano, 507 U.S. 725, 732 (1993)
(to reverse for plain error, this court must (1) identify an error; (2)
which is plain; (3) which affects substantial rights; and (4) which seri-
ously affects the fairness, integrity or public reputation of judicial
proceedings).

VIII.

The final issue Petty raises in his pro se brief is that the district
court erred in denying his motion to allow the late filing of his notice
of an insanity defense. Petty's trial was scheduled to begin on Sep-
tember 23, 1997. On September 12, 1997, Petty's counsel filed a "No-
tice of Insanity Defense" and request to allow late filing.

                     8
Rule 12.2 of the Federal Rules of Criminal Procedure requires the
defendant to give notice of his intent to raise an insanity defense
within the time provided for filing pretrial motions. The failure to
timely give notice precludes the defendant from asserting insanity as
a defense, unless the court, for cause shown, allows the late filing or
grants the parties additional time to prepare for trial. See Fed. R. Civ.
P. 12.2(a). To establish cause for the late filing of a Rule 12.2 notice,
the defendant must provide both an explanation for the late filing and
some evidence that the asserted defense may prevail. See Government
of Virgin Islands v. Knight, 989 F.2d 619, 628 (3d Cir. 1993); United
States v. Duggan, 743 F.2d 59, 80 (2d Cir. 1984).

As an explanation for the late filing, counsel stated that he had just
received a letter from a doctor concerning Petty's mental status on the
night of the incident. This letter, dated August 4, 1997, was written
in response to a letter from Petty in which Petty described his symp-
toms. No medical or psychiatric examination or assessment was per-
formed. Counsel did not explain why he waited until July 30, 1997,
to contact this doctor, nor why he delayed from early August--the
date of the letter--until mid-September to file the notice of insanity
defense. We find that Petty failed to show cause justifying the late fil-
ing; therefore, the district court did not abuse its discretion in denying
Petty's request to file his notice of insanity defense out of time.

IX.

In conclusion, we find no error or abuse of discretion in the district
court's evidentiary rulings or jury instructions and no error in the
denial of Petty's motion for a new trial or in the determination of
Petty's criminal history category. Therefore, we affirm Petty's con-
viction and sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED

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