                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4195


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MALCOLM ROBERT LEE MELVIN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00079-RBH-1)


Submitted:   January 17, 2013              Decided:   January 29, 2013


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Jeffrey Mikell
Johnson, Robert F. Daley, Jr., William Walker Bethea, Jr.,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Malcolm Robert Lee Melvin was charged with conspiracy

to interfere with commerce by robbery, in violation of 18 U.S.C.

§ 1951(a) (2006) (“Count One”); eight counts of interfering with

commerce by robbery and aiding and abetting, in violation of 18

U.S.C. §§ 2, 1951(a) (2006) (“Count Two” through “Count Nine”);

and eight counts of using and carrying firearms during and in

relation to, and possessing firearms in furtherance of, a crime

of violence and aiding and abetting, in violation of 18 U.S.C.

§§     2, 924(c)(1)(A)        (2006)      (“Count         Ten”   through      “Count

Seventeen”).        Following a jury trial, he was convicted on all

counts      and   sentenced    to   2,298       months’    imprisonment.      Melvin

appeals.

              On appeal, Melvin’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting that there

are no meritorious issues for appeal but questioning whether the

district court erred in denying Melvin’s Fed. R. Crim. P. 29

motion for judgment of acquittal based on the sufficiency of the

evidence.         Melvin was advised of his right to file a pro se

supplemental brief but did not do so.                     Upon our initial review

of    the    appeal,   we   directed     supplemental        briefing    to   address

whether the district court committed plain error by permitting

expert testimony as to whether a shotgun used in the offenses

met    the    definition      of    a   “firearm”     applicable    to     § 924(c).

                                            2
Melvin subsequently requested, and we granted, authorization to

also address whether the district court committed plain error

when   it    failed         to     give      a     jury      instruction         regarding         the

definition    of        a    firearm         and    charged        the    jury       that    a     lay

witness’s testimony that he believed a firearm was used may be

sufficient to meet this element.                          Finding no reversible error,

we affirm.

            We review de novo the district court’s denial of a

Rule 29 motion.             United States v. Penniegraft, 641 F.3d 566, 571

(4th Cir.), cert. denied, 132 S. Ct. 564 (2011).                                       Where the

motion alleges insufficiency of the evidence, we must affirm if,

viewing     the    evidence            in    the       light    most      favorable         to     the

government,        “the       conviction            is       supported         by     substantial

evidence,     where          substantial           evidence        is     evidence          that     a

reasonable        finder         of    fact        could       accept     as        adequate       and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”                  United States v. Hickman, 626 F.3d 756,

763 (4th Cir. 2010) (internal quotation marks omitted), cert.

denied, 132 S. Ct. 469 (2011).                            A defendant challenging the

sufficiency       of        the       evidence         bears     “a      heavy       burden,”      as

“[r]eversal       . . .       is      reserved         for   the      rare   case      where       the

prosecution’s failure is clear.”                          United States v. Ashley, 606

F.3d   135,       138       (4th      Cir.       2010)       (internal       quotation           marks

omitted).

                                                   3
              We      conclude    that     the      record       provides       overwhelming

evidence of Melvin’s guilt of Counts One through Nine.                                      See

§ 1951(a), (b)(1); United States v. Yearwood, 518 F.3d 220, 225-

26 (4th Cir. 2008) (conspiracy); United States v. Williams, 342

F.3d   350,      353    (4th   Cir.     2003)       (elements      of   § 1951     offense);

United     States      v.   Burgos,      94    F.3d     849,      873    (4th    Cir.   1996)

(aiding    and     abetting).         We      further      conclude      that    the    record

provides substantial evidence to support Melvin’s conviction in

Counts     Ten     through       Seventeen. *           See      § 924(c);       18     U.S.C.

§ 921(a)(3)(A) (2006) (definition of “firearm”); United States

v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) (elements of

§ 924(c) offense); Burgos, 94 F.3d at 873 (aiding and abetting).

              The evidentiary and jury instruction issues addressed

by   Melvin      in    supplemental        briefing        were    not    raised       in   the

district court.          Accordingly, our review of these issues is for

plain error.           See United States v. Olano, 507 U.S. 725, 731-32

(1993).     To establish plain error, Melvin must demonstrate that

1) there was error, 2) the error was plain, and 3) the error

affected substantial rights.                  Id.     Generally, an error does not

affect     substantial         rights    unless       it    is    prejudicial,         meaning

       *
       Because we conclude that the undisputed evidence, viewed
in the light most favorable to the Government, was sufficient to
support a finding that the shotgun was, in fact, a firearm, our
conclusion is not affected by the outcome of Melvin’s challenge
to “ultimate issue” testimony.



                                               4
“that   there      must   be    a    reasonable       probability      that   the    error

affected the outcome of the trial.”                     United States v. Marcus,

130 S. Ct. 2159, 2164 (2010).                  We will exercise discretion to

correct such error only if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”                            Olano,

507 U.S. at 736 (internal quotation marks omitted).

             An      expert     is    permitted        to     give    testimony        that

“embraces an ultimate issue” to be decided by the jury.                                 See

Fed.    R.   Evid.    704(a).         However,    an    expert       generally    is    not

permitted to apply law to facts to reach a legal conclusion, as

such testimony is not considered helpful to the jury.                            See Fed.

R. Evid. 702; United States v. Offill, 666 F.3d 168, 175 (4th

Cir.    2011),      cert.      denied,   132     S.    Ct.     1936    (2012);      United

States v. Perkins, 470 F.3d 150, 157-58 (4th Cir. 2006).                                In

determining whether “ultimate issue” testimony is helpful to the

jury, “[w]e identify improper legal conclusions by determining

whether the terms used by the witness have a separate, distinct

and specialized meaning in the law different from that present

in the vernacular.”            United States v. McIver, 470 F.3d 550, 562

(4th    Cir.      2006)     (internal    quotation          marks    omitted).         This

question will often turn on the precise wording of counsel’s

questions and responses provided by the witness, and the extent

to which this wording “framed the term in its traditional legal

context.”      Perkins, 470 F.3d at 159-60.

                                           5
              Here,       the    Government’s       expert    testified          that     the

shotgun was properly considered a firearm, and he confirmed, in

response to the Government’s question, that the shotgun “met the

definition      of    a    firearm    under      the    federal   statute.”             Trial

Transcript     at     297.        However,    we    need   not    determine       at     this

juncture      whether      the    district    court      erred    in   admitting         this

testimony, or whether any such error was plain.                        Even assuming,

without deciding, that admission of this testimony was plainly

erroneous,       the        remaining        evidence        against        Melvin        was

sufficiently strong and probative that we conclude that Melvin

fails    to    carry       his     burden     of       establishing     a     reasonable

probability that he would not have been convicted but for this

error.   See Marcus, 130 S. Ct. at 2164.

              Melvin next asserts that the district court failed to

instruct      the     jury       regarding    the       definition     of    a     firearm

applicable to § 924(c).               “In reviewing jury instructions, we

accord the district court much discretion and will not reverse

provided that the instructions, taken as a whole, adequately

state the controlling law.”                  United States v. Wills, 346 F.3d

476, 492 (4th Cir. 2003) (internal quotation marks omitted).

For the purposes of § 924(c), a firearm is defined as

     (A) any weapon (including a starter gun) which will or
     is designed to or may readily be converted to expel a
     projectile by the action of an explosive; (B) the
     frame or receiver of any such weapon; (C) any firearm
     muffler or firearm silencer; or (D) any destructive

                                             6
       device.         Such       term    does        not    include          an     antique
       firearm.

18 U.S.C. § 921(a)(3).

             Contrary        to   Melvin’s       assertions,            the    district           court

provided     the     jury     with       an    instruction             closely       mapping       the

statutory definition of a firearm under § 921(a)(3)(A), the only

portion of the statute applicable to the facts of Melvin’s case.

To    the   extent     it     differed         from    the       statutory          language,       we

conclude     that      the    court’s         instruction         adequately          and     fairly

stated the controlling law defining a firearm.

             Lastly,         Melvin      asserts           that        the    district            court

erroneously       instructed        the       jury     as    to        the    role       of   a    lay

witness’s belief that a firearm was used.                              However, viewing the

challenged       instruction        in    context          and    in    light       of    the      jury

charge      in   its    entirety,         we     conclude         that        the    instruction

accurately stated the controlling law.                             See United States v.

Redd, 161 F.3d 793, 797 (4th Cir. 1998); accord United States v.

Cruz-Diaz, 550 F.3d 169, 173 (1st Cir. 2008); United States v.

Jones, 16 F.3d 487, 490 (2d Cir. 1994).                                Moreover, given that

the   eyewitnesses       did      not    opine        as    to    whether      the       guns      were

“firearms,” and their beliefs regarding the weapons were not

reasonably in dispute, any error in this instruction could not

have affected Melvin’s substantial rights.                               See Marcus, 130 S.

Ct. at 2164.


                                                7
            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment.                              This court

requires that counsel inform Melvin, in writing, of the right to

petition    the    Supreme      Court   of       the    United      States     for   further

review.     If     Melvin      requests      that       a   petition      be    filed,    but

counsel believes that such a petition would be frivolous, then

counsel    may    move    in    this    court      for      leave    to   withdraw       from

representation.      Counsel’s motion must state that a copy thereof

was served on Melvin.

            We dispense with oral argument because the facts and

legal    contentions      are    adequately            presented     in   the    materials

before    this    court   and    argument         would     not     aid   the   decisional

process.

                                                                                     AFFIRMED




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