                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4908


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RICHACO FERNANDIS HOLLOWAY, a/k/a Richaco F. Holloway,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:13-cr-00540-PJM-1)


Submitted:   June 30, 2015                 Decided:   August 12, 2015


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marc Gregory Hall, LAW OFFICES OF MARC G. HALL, P.C., Greenbelt,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Adam K. Ake, Assistant United States Attorney,
Gustav W. Eyler, Special Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Richaco       Fernandis          Holloway        appeals     the    criminal        judgment

entered    after          a    jury    found      him     guilty     of    being       a   felon    in

possession      of    a       firearm,       in    violation        of    18    U.S.C.     § 922(g)

(2012).         Holloway         argues       that      the     district        court      erred    in

denying       his     motion           for    acquittal         because         there      was     not

substantial         evidence          proving      that    he    knowingly           possessed     the

firearm.       He also challenges the district court’s admission of

testimony that a witness viewed a firearm that he believed to be

real in the same space where the firearm at issue was found.

Finding no error, we affirm.

       Holloway argues that the government was unable to prove

that    the    firearm          found    at       the   American         Music   Group      (“AMG”)

studio    was       the       same    firearm      that    appeared        in    a    music      video

depicting Holloway, a convicted felon, holding and handling a

firearm.       He claims that the government did not prove that his

possession of the item in the music video was knowing, because

the brief duration of the video was insufficient for him to

determine whether the gun was real or a prop for the video.

       We review the denial of a motion for acquittal de novo.

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).

Here,    when       the       motion    was     based     on    a   claim       of    insufficient

evidence, the verdict of a jury must be sustained if there is

substantial evidence to support the verdict, taking the view

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most favorable to the government.               Glasser v. United States, 315

U.S. 60, 80 (1942).

      In this case, we conclude that the jury was entitled to

find that Holloway knowingly possessed the firearm as alleged in

the indictment. 1          The government introduced video evidence of

Holloway handling the firearm at issue, which evidence alone was

sufficient to allow a jury to find actual possession, “however

briefly it occurred.”           United States v. Gaines, 295 F.3d 293,

300 (2d Cir. 2002).           The jury compared the video to the photos

of   the    firearm       recovered    during    the    search,   and     reasonably

determined that Holloway knowingly had possessed the firearm.

      Next,       Holloway   argues    that     the    district   court    erred   in

admitting Gary Green’s testimony that he “assume[d]” a gun he

saw at the AMG studio was “a real gun.”                   (J.A. 131).       Holloway

argues     that    this    statement    constituted      lay   opinion     testimony

      1To the extent that Holloway argued that it was not
Congress’s intent to criminalize his conduct of possessing a
firearm as a prop in a music video, the issue raised involves a
defective indictment and not sufficient evidence.   A challenge
to the indictment is now untimely and waived. See Fed. R. Crim.
P. 12(b)(3)(B); Davis v. United States, 411 U.S. 233, 243-45
(1973); United States v. Williams, 544 F.2d 1215, 1217-18 (4th
Cir. 1976).   Even if we were to consider Holloway’s statutory
argument, it is foreclosed by our decision addressing a similar
challenge.  See United States v. Gilbert, 430 F.3d 215, 218-20
(4th Cir. 2005) (Section 922(g)(1) “simply does not allow for
the exception that [the defendant] requests” and “so long as
the[ ] three elements” of the statute are met, “the government
has conclusively established culpability,” irrespective of “why
the defendant possessed a firearm or how long that possession
lasted.” Id.


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that did not meet the requirements of Federal Rule of Evidence

701.       A district court’s evidentiary rulings are reviewed for

abuse of discretion, which occurs when the             court’s “decision is

guided by erroneous legal principles or rests upon a clearly

erroneous factual finding.” 2         United States v. Johnson, 617 F.3d

286, 292 (4th Cir. 2010) (internal quotation marks omitted).

       Rule 701 permits lay opinion testimony that is based on a

witness’s      own   perception,       is    helpful    to     the    jury      in

understanding facts at issue, and is “not based on scientific,

technical, or other specialized knowledge . . . .”                        Fed. R.

Evid. 701.      Generally, a lay opinion “must be based on personal

knowledge,” whereas an expert witness may testify based on “some

specialized     knowledge     or    skill   or   education   that    is   not   in

possession of the jurors” as well as personal knowledge.                   United

States v. Perkins, 470 F.3d 150, 155-56 (4th Cir. 2006).                    “Rule

701 forbids the admission of expert testimony dressed in lay

witness     clothing,   but    it    does   not    interdict   all    inference

drawing by lay witnesses.”           Id. at 156 (internal quotation marks

omitted).




       2The government argues that Holloway did not make a
sufficient objection to Green’s testimony.  However, because
there is no abuse of discretion, even assuming Holloway’s
objection was sufficient, we need not conduct plain error
review.



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      Holloway argues that Green’s testimony was not “rationally

based on [his] perception,” as required for the admission of lay

opinion testimony under Rule 701.                       Holloway also asserts that

the testimony was inconclusive, and thus unhelpful to the jury.

      We disagree with Holloway’s arguments.                         The district court

did   not   abuse      its    discretion         in    admitting       Green’s    testimony

because     Green     testified       to    his       personal    observations         during

visits    to    the    AMG    studio,      his    observations         were    relevant    to

determining      whether      the    firearm      found     at    the    AMG     studio   was

real, and his testimony did not require specialized or technical

knowledge or training.              Further, this testimony was not the only

evidence admitted to prove that the firearm was real.

      Accordingly, we affirm the district court’s judgment.                               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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