                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4347


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TROY DOUGLAS BAYLOR,

                Defendant – Appellant.



                            No. 12-4357


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES DERRICK BAYLOR,

                Defendant – Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, District
Judge. (3:11-cr-00064-JRS-2; 3:11-cr-00064-JRS-1)


Argued:   May 17, 2013                    Decided:    August 1, 2013


Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: Elizabeth W. Hanes, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellants.      Michael Arlen
Jagels, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.   ON BRIEF:   Kevin E. Johnson, KEVIN E.
JOHNSON, P.L.L.C., Heathsville, Virginia, for Appellant James
Derrick Baylor; Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia; Frances H. Pratt, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond,
Virginia, for Appellant Troy Douglas Baylor. Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

           A jury convicted James and Troy Baylor of seven counts

in a multiple count indictment stemming from the brothers’ armed

robberies of a Family Dollar store in Chester, Virginia, and

Tommy Wilson’s Vans & Auto, in Richmond, Virginia.                  The district

court sentenced James Baylor to 514 months imprisonment and Troy

Baylor to 624 months imprisonment.            In this consolidated appeal,

the Baylors raise numerous claims of error.                 Appellants contend

that the district court abused its discretion by rejecting their

proposed       voir      dire        questions       regarding          eyewitness

identification;       excluding   the    testimony     of    their      eyewitness

identification    expert;       refusing     the    Baylors’      proposed   jury

instructions regarding eyewitness identification; and admitting

certain testimony offered by the Government’s DNA expert.

           The Baylors also assert that the Government presented

insufficient evidence to support a finding that the object used

or   carried   during     one   of    the    robberies      met   the   statutory

definition of a “firearm.”            They alternatively argue that the

seven-year sentences imposed on them for violating 18 U.S.C.

§ 924(c) are constitutionally infirm.              For the reasons set forth

below, we affirm the district court in all respects.

                                        I.

           Viewing the evidence in the light most favorable to

the Government, United States v. Moye, 454 F.3d 390, 394-95 (4th

                                        3
Cir. 2006) (en banc), the record demonstrates the following.                            On

November 30, 2010, the Family Dollar store (“Family Dollar”) in

Chester, Virginia, was robbed by two men.                   Three weeks later, on

December 21, 2010, Tommy Wilson’s Vans & Auto (“Wilson’s Auto”)

in    Richmond,     Virginia,       was    also   robbed        by   two   men.        Both

robberies were caught on videotape.                     Each robbery involved one

taller robber who walked with a cane or, alternatively, a limp,

and another shorter robber.               Multiple witnesses identified James

and Troy Baylor 1 as the two men that robbed each store.                               DNA

evidence taken from a hat left at Wilson’s Auto matched James,

although DNA evidence from another hat was inconclusive as to

Troy.       Other    additional       direct      and    circumstantial         evidence

confirmed that both robberies were committed by James and Troy

Baylor.

                                           A.

                              The Baylor Brothers

             James    and    Troy    are    brothers      and    lived     in   New    York

until moving to Virginia in 2010.                 Upon relocating to Virginia,

the   brothers      stayed   with    their      mother,    Leona      Baylor,     at    her

residence on Woodhaven Drive in Richmond.                        Both brothers also

received mail at the Woodhaven address and had belongings there.


        1
       Like the Baylors in their opening brief, we refer to the
Baylor brothers by their first names for the purpose of clarity.



                                            4
Their     mother      lived     with   her        fiancé   Richard        Washington   at

Woodhaven Drive during the time of the robberies.                          Leona Baylor

and Washington had two vehicles at their residence: a four-door

Oldsmobile and a Chevrolet Blazer.

               Of note, James has a disability known as a club foot

that requires the use of cane.

                                             B.

                            The Family Dollar Robbery

               On November 30, 2010, Family Dollar assistant manager

Dena Smith arrived at work around 8:00 a.m.                         Another employee,

Diane Miners, a cashier, arrived at the store about two hours

later.     Shortly after Miners arrived, Smith told Miners that she

was going to go to the bathroom and then outside to smoke a

cigarette.       Upon exiting the bathroom, Smith was approached by a

man, later identified as Troy Baylor, who asked for the manager

and requested a job application.                     Smith told him the manager

would    not    be    in   until   the     next     day,    and    that    she   was   the

assistant manager.             Smith also told Troy to go to the front of

the     store    where     a    computer     was     located       and    fill   out    an

application.         Smith was about to go outside to smoke when Troy

approached      her    again     and   asked      where    the    wrapping    paper    was

located.       Smith then went outside.

               Once outside, Smith was once again approached by Troy.

Troy told Smith, “This is what you going [sic] to do. You going

                                             5
[sic] to take us in the back and give us money.”                              J.A. 340. 2   At

that       point,    another      man,    later       identified       as     James   Baylor,

approached Smith holding what she believed was a gun.                                 The gun

barrel was visible to Smith as it protruded from James’s sleeve.

They       entered    the   store    and    walked        to     the   back    before    Smith

stopped and said, “Why we going [sic] to the back of the store?

There’s no money there.”              Troy asked Smith, “Where’s it at?”, to

which Smith answered that it was in front of the store.                                 Id. at

342.

               Once    up   front,       Troy       sat   down    at   the     computer     and

pretended to type.                Meanwhile, James stood behind Smith while

she entered the combination of the store safe.                                 Once opened,

Troy jumped up and took the cash box from Smith, which contained

$501.00.        Miners then took note and asked Smith, “Dee, what’s

going on?”          Smith told Miners she was “Getting petty cash for my

till.”        J.A. 342.           When Troy took the cash box from Smith,

Miners told him, “Oh, no you don't.”                              J.A. 343. James told

Miners to get back.               At that point, the Baylor brothers exited

the store and ran across the parking lot.

               Outside      the    store,   Rhonda         Goad    was      sitting   in    her

truck in the parking lot.                  While seated in her vehicle facing


       2
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                                6
Family Dollar, she saw the Baylors enter and exit the store

several times.

              A number of things struck her as peculiar about the

two men.       One of them walked with a cane and was “crippled on

his right leg.”         J.A. 379.       The last time Goad saw the men exit

the store, one of them was carrying something under his arm.

The two men were in a hurry, so much so that Goad believed they

had just shoplifted.          Upon exiting the store, the men increased

their pace.         The “short guy” took off running.      Id. at 380.      The

other man also took off running “with his cane” but fell when he

lost his balance on an embankment near the parking lot.                  Id. at

380.       After the men cleared the embankment, Goad saw a car leave

from the area in “kind of a hurry.”              Id. at 382.   She described

the top of the four door car as dark in color with “chrome

around the windows and around the front and back.”                 Id.     Goad

identified      a    photo   of   the    Baylors’   mother’s   Oldsmobile    as

looking like the vehicle she saw. 3




       3
       The car was the same vehicle that Troy drove when it ran
out of gas several miles from the Family Dollar store nearly
three weeks later. During the consensual encounter with police,
who assisted Troy by giving him a ride to his girlfriend’s
nearby apartment, Troy admitted that the car, a 1989 four-door
Oldsmobile, was his mother’s or his mother’s boyfriend’s. Troy
told the assisting officer that his mother had let him use the
car to travel to his girlfriend’s residence.



                                          7
             After the robbery, Goad went to the business where she

had   seen   the    getaway   car    parked    to   see   if    they’d   seen    the

robbers.      She then returned to the Family Dollar and told the

clerks she had witnessed the robbery.

                                          1.

                          Eyewitness Identification

             Smith was shown photo lineups of both Baylor brothers

and correctly selected each brother and identified the role each

played during the robbery.              The lineups were done in a “double

blind” method, meaning that the detective showing the photos to

Smith had no idea who the suspects were.                    The detective also

conveyed     to   Smith   prior    to    showing    her   the   photos   that    the

suspects may or may not be included in the photos. 4

                                          2.

                                  Video Evidence

             Video from inside the Family Dollar store was taken

from several vantage points.              One view shows the front doors,

while a second view shows the front of the store where the safe

is located.        A third view shows the register where Miners was

working during the robbery.




      4
       Neither Miners nor Goad were shown a photo spread.                       They
did, however, identify both defendants at trial.



                                          8
              The photo stills of the video show several important

details.      The hat worn by Troy during the robbery has a small

brim on it.      The small brim is identical to the hat that Troy

was wearing (and that later fell off) during the robbery at

Wilson’s Auto.      James can be seen walking with a limp and with

the assistance of a cane.          The relative size of the brothers can

also be seen in the video, with James being the taller of the

two.     Finally, the brothers’ facial hair can be seen in the

video.

                                        C.

                              Wilson’s Auto Robbery

              On December 21, 2010, three weeks after the Family

Dollar robbery, Wilson’s Auto was also robbed by two men.                    On

that   day,    inside   the    used   auto   business   shortly   after   10:00

a.m., Tommy Wilson Sr. and his son Tommy Wilson Jr. were working

in a bay toward the rear of the business.               As the father and son

were speaking in the bay, two men -- one tall and one shorter --

walked into the bay.          The men were later identified as Troy and

James Baylor.      Tommy Wilson Sr. told the men that they were not

permitted in that section of the business.                 James then pulled

out a gun and said, “Old man, we don't have to go anywhere.”

J.A. 543.      Troy then ordered the Wilsons to the ground.               Tommy

Wilson Jr. obeyed and placed money from his pocket on the floor

then laid on his stomach toward the rear of the car that was in

                                        9
the garage, but his father refused to get on the floor.                Troy

walked over to Tommy Wilson Jr. and took his money, then walked

to Tommy Wilson Sr. and searched his pockets, taking his money.

The younger Wilson told the men, “You got your money, now get

out of here.”   J.A. 544.

           The elder Wilson and James began to argue.           James then

began to beat Tommy Wilson Sr. on the head with the gun.               The

younger Wilson then got off the floor to help his father.             Troy

grabbed the gun and pointed it at Tommy Wilson Sr.          Tommy Wilson

Jr. then grabbed Troy, dragging him in front of the car.                He

attempted without success to get Troy to drop the gun by beating

his hands on the fender and hood of the car.             In the process,

the right side mirror of the vehicle broke off.

           Searching for something to hit Troy with, Tommy Wilson

Jr. grabbed a wiper blade and hit him on the head.          The hat that

Troy was wearing fell off on the hood of the car.           Tommy Wilson

Jr. and Troy continued to struggle, during which time Troy’s

face was less than a foot from Tommy Wilson Jr.           Meanwhile, the

elder Wilson continued to fight with James.

           The brawl between Tommy Wilson Jr. and Troy led to the

adjoining front office.       Troy took a swing with the gun at the

younger   Wilson,   cutting   his   nose.   By   then   James   and   Tommy

Wilson Sr. also entered the front office.               Tommy Wilson Jr.

grabbed James and slammed him down on the desk, then hit him.

                                    10
James fell to the floor.     By then, Troy had jumped on the elder

Wilson and was “beating on him.”         J.A. 547.    Standing apart from

one another, Tommy Wilson Jr. looked at Troy from a distance of

several feet away and told him to get out.           When the two robbers

left the business, Tommy Wilson Sr. followed the path the men

took in order to determine the direction in which they fled.

The younger Wilson called police and reported the robbery.

           At the time of the robbery, Officer Karen Spencer was

on patrol several miles away and, upon learning of the robbery,

drove   toward   Wilson’s   Auto,   cutting    through    a   neighborhood

adjoining the area near the business.         She later testified that

she passed a speeding SUV, dark in color, and similar to the

Blazer owned by Leona Baylor.        Even though she continued on to

Wilson’s Auto, she noted in her rear view mirror the direction

in which the SUV turned.       After determining at the scene that

the dark SUV she passed had likely been driven by the robbers,

she quickly returned to the neighborhood where she saw the SUV.

She turned down one of the streets near where she had seen the

SUV turn and saw an SUV that “looked exactly like the vehicle”

that passed her earlier parked at a house; indeed, she knew the

vehicle had been recently driven due to the SUV’s warm hood.

Additional officers responded to the scene at Woodhaven Drive,

located less than two minutes driving time from Wilson’s Auto.



                                    11
            Detective       Christina       Benkahla       of     the    Richmond       City

Police    Department     responded         to    the   Woodhaven        location.        She

knocked   on     the   door    of    the    residence       and    was    met   by   Leona

Baylor.        Once    inside,      she    also    met     Leona    Baylor’s       elderly

“husband.”       Officer Benkahla observed men’s clothing that she

described as “younger”-looking likely not worn by the elderly

man.      J.A.    660.        Notably,      Officer        Benkahla      observed       mail

addressed to Troy Baylor.             When asked about whether anyone had

driven the SUV, Leona Baylor stated that nobody had driven it.

            Following         the    robbery,          Richmond     police        forensic

detectives     collected      evidence      from       inside     Wilson’s      Auto,    and

among the items recovered was a hat located on a car in the rear

car bay, a hat on the floor of the front office, and a firearm.

Video that recorded events inside and outside the business were

also recovered.

                                            D.

                                     The Arrests

            On    January     4,    2011,       Virginia    State       Trooper    Jeffrey

Hanna was on routine patrol in Richmond when he noticed a dark

colored SUV traveling with no rear lights.                         Hanna stopped the

vehicle and asked the driver for identification.                             The driver

identified himself as Alfago Tillman.                      James and Troy Baylor,

along with an unidentified female, were passengers in the SUV

driven by Tillman.            Trooper Hanna then asked everyone in the

                                            12
vehicle    for     identification.        Upon    running       their       information

through a police database, Trooper Hanna learned that there were

outstanding      arrest      warrants   for   James     and    Troy   Baylor.        The

brothers were taken into custody and turned over to Richmond

police, and the SUV impounded.            The SUV, a Chevrolet Blazer, was

registered to Leona Baylor.

            Once        in   custody,   Richmond      police     confiscated         the

clothing and belongings in possession of James and Troy at the

time of their arrest.           The clothes worn by James were identical

to clothes he was wearing in the video of the Wilson’s Auto

robbery.     James had a cane in his possession although it was not

confiscated so that he could use it in jail.                        Items in Troy’s

possession       upon    his   arrest    included       keys   to     the    Chevrolet

Blazer, other vehicles, and his mother’s residence on Woodhaven

Avenue.      The    bracelet     and    boots    worn    by    Troy     when    he   was

arrested match those he wore during the Wilson’s Auto robbery,

evidence that was captured on video.

            In addition, cheek swabs were taken from both Troy and

James to compare to DNA taken from the items found at Wilson’s

Auto.     Melissa Baisden, an employee at the Virginia Department

of Forensic Science, analyzed the DNA evidence and developed DNA

profiles from Troy, James, and Tommy Wilson Sr., and from the

hat recovered from the front office at Wilson’s Auto and the

firearm recovered from Wilson’s Auto.                    The DNA profiles from

                                         13
James and the hat matched.               James was thus identified as a

“major contributor” to the DNA found on the hat.                  When Baisden

compared the DNA to determine if Troy could also be eliminated

as a minor contributor to DNA on the hat, her results were

inconclusive,      meaning      she     could   not     determine,       due     to

insufficient DNA information, whether Troy should be eliminated

as a contributor.

                                        1.

                           Eyewitness Identification

           Detective Jack Larry compiled a photo lineup of Troy

Baylor   and,     later,    James     Baylor.   Larry    showed    the    photos

separately to Tommy Wilson Jr. and Sr. on December 30, 2010.

The younger Wilson identified Troy as one of the robbers.                      When

he was later shown photos that included James, he did not select

anyone, indicating that he did not get as good a look at the

taller robber.       Tommy Wilson Sr. was also shown photo lineups

that   included    the     Baylor   brothers.    He   correctly    selected      a

photo of James, noted below the photo “out of all picture [sic]

this is one I picked.         He & I fought . . . [he] hit one fist and

gun on top of my head & he and I pushed each other.”                 J.A. 999.

The elder Wilson incorrectly selected a photo from an array that

included Troy.




                                        14
                                         2.

                                 Video Evidence

             Video cameras captured events from outside of Wilson’s

Auto    as   the    Baylor    brothers    walked      into   and       away    from   the

business, and a video from a nearby business captured the men

getting out of a Chevrolet Blazer.                   The Blazer can be clearly

seen and is similar to the Blazer owned by Leona Baylor.                           Video

also shows the brothers entering the business then walking to

the rear bay behind the front office.                 James can be seen limping

when he enters and walks into the business, with his right foot

appearing angled to the right as he walks.                         Moreover, while

struggling with the elder Wilson, Troy placed his right hand on

a desk, allowing the video to record a bracelet on his right

hand, which is similar to and on the same hand as the bracelet

found on Troy when he was arrested.              The boots worn by Troy when

he was arrested also match those worn during the robbery.

                                         E.

                        The District Court Proceedings

             On March 1, 2011, a federal grand jury indicted the

Baylors on numerous charges relating to the Family Dollar and

Wilson’s     Auto   robberies.         Count   one    alleges      a   conspiracy      in

violation of the Hobbs Act, 18 U.S.C. § 1951(a).                              Counts two

through four allege, respectively, three offenses relating to

the    robbery     of   the   Family   Dollar   on     November        30,    2010:   the

                                         15
substantive count of robbery, in violation of § 1951; the use or

carry of a firearm during and in relation to that robbery, in

violation of 18 U.S.C. § 924(c); and the possession of a firearm

by   a   convicted     felon,    in   violation   of    18   U.S.C.   §   922(g).

Counts 11 through 13 charged the Baylors with the same offenses

in connection with the Wilson’s Auto robbery on December 21,

2010.     Counts five through ten, relating to other robberies,

were dropped before trial.

                                        1.

          Motion to Exclude Expert on Eyewitness Testimony

            Before     trial,     the   Government      moved    to   exclude     a

defense expert expected to testify at trial about how certain

factors    affect      the   accuracy     of    eyewitness      identification.

Specifically,    Dr.     Brian    Cutler’s     proposed      testimony    was   to

address factors including, among other things, the effect of

stress     on    the      accuracy      of     identification,        cross-race

identification, and witness confidence versus accuracy.                     After

the hearing, the district court granted the Government’s motion,

ruling that     the    understanding     of    each    factor   was   within    the

common knowledge of jurors such that expert testimony would not

be helpful.     As to the cross-race identification and eyewitness

confidence factors, the district court determined that because

the expert’s research did not quantify the accuracy of white eye

witnesses identifying African-American suspects, there would be

                                        16
a high risk that the testimony would confuse and mislead the

jury.    The district court concluded, “[t]he jurors’ common sense

and powers of observation, along with an appropriate instruction

from the Court, are all that is needed for the jurors to judge

the eyewitness identification in this case.”          United States v.

Baylor, 3:11-CR-64, 2011 WL 5910061, at *8 (E.D. Va. Nov. 28,

2011).

                                  2.

   Motion to Exclude Part of the Forensic Analyst’s Testimony

           Before trial, Troy moved to exclude a portion of the

testimony of the Government’s forensic analyst on grounds of

relevance.     Specifically, Troy highlighted the expert’s finding

that she could not draw a conclusion as to whether he was a

contributor to the minor DNA profile she had developed from one

of the hats recovered after the Wilson’s Auto robbery.                The

Government opposed the motion.         The court held a hearing and

denied   the   motion.   The   district    court   concluded   that   the

testimony was relevant and therefore admissible because it spoke

directly to the material fact that Troy could not be ruled out

as a possible minor contributor to the DNA on the hat.

                                  3.

                               Voir Dire

           Before trial, the Baylors submitted proposed voir dire

questions pertaining to eyewitness identification issues.             The

                                  17
Government objected to the asking of these questions, arguing

that the defendants’ concerns would be properly covered by the

jury instructions.       During voir dire, the court did not ask any

questions     specifically       addressing            the    issue     of     eyewitness

identification.       When the district court inquired at the end of

voir dire if the parties wanted any further questions asked,

Troy’s counsel reminded the court of his request for questions

about eyewitness identification.                   The district court refused.

When   James’s     counsel    inquired           about      his    specific    questions

relating to eyewitness identification, the court responded that

it would not ask them because “we have instructions to deal with

that.”    J.A. 297.

                                            4.

                                           Trial

             At    the   close        of    the     Government’s        evidence,         the

defense    moved   pursuant      to    Rule       29   of    the     Federal      Rules    of

Criminal    Procedure    for     a     judgment        of     acquittal      on    several

counts.     With regard to the Family Dollar § 924(c) charge (count

three),     the    Baylors     argued        that      the        Government      had     not

established that the object that Dena Smith saw was in fact a

firearm.    The district court denied the motion.

            The Baylors also requested a specific jury instruction

regarding eyewitness identification.                   The district court refused

to give the instruction, stating, “Obviously, we had plenty of

                                            18
cross-examination on it and you can argue it all you want.”

J.A. 750.       The jury found both men guilty on all counts.

                                                   5.

                                            Sentencing

               The    presentence             reports          prepared     on     each     Baylor

brother recommended that a seven-year mandatory minimum sentence

apply to the count three violation of 18 U.S.C. § 924(c).                                     Count

three charged that the Baylors “did knowingly and unlawfully use

and    carry    a     firearm         during       and    in    relation     to    a    crime     of

violence,” namely, the robbery of the Family Dollar store on

November 30, 2010.                   J.A. 16-17.          However, count three did not

allege that the firearm was brandished during the robbery.                                     Troy

objected to the recommendation, arguing that if the district

court    adopted          it,    the       court    would       necessarily       be    making     a

finding of fact that would raise the mandatory minimum, thus

violating his rights under Apprendi v. New Jersey, 530 U.S. 466,

490 (2000).          The district court overruled the objection, relying

on the Supreme Court’s decision in Harris v. United States, 536

U.S.    545,        556     (2002)         (concluding          that      brandishing        is    a

sentencing      factor          to    be    found    by    the    judge,     not       an   offense

element to be found by a jury).                         After overruling the objection,

the court sentenced Troy to 624 months imprisonment and James to

514 months imprisonment.                     Judgments were entered on April 24,



                                                   19
2012.   Troy timely noted his appeal on May 3, and James, on May

4.

                                          II.

                                           A.

                       The Proposed Voir Dire Questions

                                           1.

                                Standard of Review

           The    Baylors       first     contend    that     the   district   court

improperly refused to ask prospective jurors questions regarding

the specific issue of eyewitness identification, a decision we

review for abuse of discretion.                 See United States v. Jeffery,

631 F.3d 669, 673 (4th Cir. 2011).

                                           2.

                                        Analysis

           We must “examine the voir dire as a whole to determine

whether it was reasonably sufficient to probe the prospective

jurors for bias and partiality.”                United States v. Lancaster, 96

F.3d 734, 742 (4th Cir. 1996).                   Even so, district courts are

not   required    to    ask    every    question     that   counsel    believes   is

appropriate.     See Fed. R. Crim. P. 24(a).

           In this case, the questions proposed by the Baylors

essentially      argued       factual    points     instead    of   attempting    to

identify jurors’ bias or partiality, the ultimate goal of voir

dire.   That is, the proposed questions were designed to suggest

                                           20
to   prospective     jurors     that   forensic     data    is   preferable    to

eyewitness      identification,     the      reliability    of   an    eyewitness

identification is increased with time viewing a suspect, and

eyewitness identification is less reliable with the passage of

time   between    the   crime   and    the    identification,      among   others

suggestions.      We conclude the district court did not abuse its

discretion by rejecting the proposed voir dire questions because

when viewed in its totality, the district court’s voir dire was

reasonably sufficient to achieve the ultimate goal of voir dire

that is, to probe prospective jurors for bias or partiality.

                                       B.

       The Exclusion of the Eyewitness Identification Expert

                                       1.

                              Standard of Review

           We review a district court’s ruling regarding the use

of expert testimony for abuse of discretion.                 See United States

v. Davis, 690 F.3d 226, 257 (4th Cir. 2012).

                                       2.

                                    Analysis

           We    conclude     the   district     court     did   not   abuse   its

discretion by excluding the testimony of an expert in eyewitness

identification, where evidence of the two robberies involved far

more than isolated eyewitness identification: it included video

of both robberies, DNA evidence linked to one of the defendants,

                                       21
identification            by     five     eyewitnesses,           and     other        direct      and

circumstantial evidence.

              The     Baylors          argue     the       district       court        abused      its

discretion by denying expert testimony as it pertained to three

factors -- (1) effect of stress on accuracy of identification;

(2) cross-race identification; and (3) witness confidence versus

accuracy.      The district court ruled that the stress factor was a

matter   of    common           knowledge      to     the       jury.      As    to     cross-race

identification, the district court concluded that the risk of

confusion as a result of the testimony substantially outweighed

the   probative       value        of   such     testimony.              And     as    to     witness

confidence,         the        district     court      determined          that        this     vague

guidance would only serve to confuse the jury, and would risk

misleading the jury as to their role as trier of fact.                                             The

district court concluded, “The jurors’ common sense and powers

of observation, along with an appropriate instruction from the

Court,   are    all        that    is     needed      for       the     jurors    to    judge      the

eyewitness     identifications              in      this    case.”         United       States      v.

Baylor, 3:11-CR-64, 2011 WL 5910061, at *8 (E.D. Va. Nov. 28,

2011).

              In United States v. Harris, 995 F.2d 532 (4th Cir.

1993), we      affirmed          the    exclusion          of    expert    testimony          on   the

reliability of eyewitness identification, but acknowledged that

such testimony should be admitted under “narrow circumstances.”

                                                 22
Id. at 535. 5   Federal Rule of Evidence 702 sets the standard for

the admissibility of expert testimony, and provides:

     [i]f scientific, technical, or other specialized
     knowledge will assist the trier of fact to understand
     the evidence or to determine a fact in issue, a
     witness qualified as an expert by knowledge, skill,
     experience,   training,  or   education,  may   testify
     thereto in the form of an opinion or otherwise.

Fed. R. Evid. 702.      We have previously explained that district

courts    possess   broad   discretion    in   evaluating   when    expert

testimony will be helpful:

     As Rule 702 indicates, expert testimony is only
     permitted if it assists the trier of fact to
     understand evidence or to determine a fact in issue.
     The exclusion of expert testimony under Rule 702 is
     within the sound discretion of the trial judge.
     Exercising its discretion, the court should consider
     whether the testimony is within the common knowledge
     of the jurors.     This type of evidence, almost by
     definition, can be of no assistance to a jury.

Harris, 995 F.2d at 534 (internal citations omitted).

           In view of the facts of this case, we reaffirm the

central    teaching    of   Harris:      “Outside   of   such      narrowly

constrained circumstances, jurors using common sense and their


     5
        We   cited   examples   of   cases  where  the   “narrow
circumstances” were present in order to support the introduction
of expert testimony. See Harris, 995 F.2d at 535 (citing, among
others, United States v. Sebetich, 776 F.2d 412, 418-19 (3rd
Cir. 1985) (holding erroneous the exclusion of expert testimony
where the identification came nineteen months after the robbery,
it was made under stressful circumstances, and it was only
derived from one person’s testimony)).




                                   23
faculties        of    observation       can    judge      the     credibility      of     an

eyewitness        identification,         especially           since   deficiencies        or

inconsistencies in an eyewitness’s testimony can be brought out

with skillful cross-examination.”                   Id.

                Like    Harris,    the     narrow         circumstances      that    would

permit the testimony of an eyewitness identification expert are

not present in this case.                First, the facts do not support the

argument that the Baylors’ identifications were suspect.                                 Both

robberies in this case were videotaped.                        Without any eyewitness

identifications, jurors could have decided for themselves that

both    Baylors        committed   these       crimes.          From   the   videotapes,

jurors were able to 1) observe James’s disability through the

use    of   a   cane    at   Family   Dollar        and    a    very   evident   limp      at

Wilson’s Auto; 2) observe the relative size difference between

the brothers; 3) compare the matching clothing worn by James at

Wilson’s Auto with that worn upon his arrest; 4) compare the

matching bracelet worn on Troy’s right wrist with the bracelet

worn on his right wrist upon his arrest; and 5) compare the

unique brim on the hat Troy wore at Family Dollar with the hat

that fell off his head at Wilson’s Auto.

                Jurors also saw videotape and photos of the black SUV

that the Baylors drove to and from Wilson’s Auto.                            They heard

testimony from a responding officer who saw the SUV pass her at

a high rate of speed and turn onto a neighborhood street.                                 The

                                               24
jury also heard that police found the SUV at the home of Leona

Baylor and heard that both Baylor brothers were living there.

The SUV was the same vehicle that the Baylors were in upon their

arrest.      The jury heard that Troy had keys to the SUV, along

with keys to his mother’s house.              The jury heard that Troy also

drove another car belonging to his mother, an Oldsmobile with a

dark   top   and    chrome    surrounded      windows.          The   same    car    was

identified as similar to the getaway car used by the Baylors at

Family Dollar.

             Finally,   jurors       heard    from       five     eyewitnesses       who

identified    the    Baylors    as   the     robbers      --    three   from      Family

Dollar and two from Wilson’s Auto.                The main witness from Family

Dollar, Dena Smith, is an African-American like the Baylors.                         In

addition, many of her interactions with Troy were not stressful,

as they occurred before the robbery.                     Likewise, Rhonda Goad’s

observations were made from the peaceful interior of her parked

car.    Diane Miners did not even realize that the store was being

robbed until she saw Smith opening the safe.                     The witnesses from

Wilson’s Auto had extended interactions with the Baylors.                           Each

witness wrestled with a Baylor brother.                    Tommy Wilson Jr. was

less than a foot away from Troy during the struggle.

             Regarding witness confidence, some of the eyewitnesses

who    identified    the     brothers      expressed       confidence        in    their

identifications,      while    others      were    not    100%    confident.         For

                                        25
example, Tommy Wilson Sr. indicated on the photo of James he

selected that James’s picture was the one that most looked like

the suspect he had the most interaction with during the robbery.

This point was highlighted by counsel during cross-examination.

                The record here shows that the jury was made keenly

aware that identification was a key issue and that they would

need       to   determine     whether     the     prosecutor’s     witnesses    were

credible        regarding   their     identification     testimony.      This    was

accomplished        through    the      skillful    cross-examination     of     the

prosecution witnesses regarding the description of the suspect

and subsequent identification of the Baylors, 6 the presentation

of     alibi     testimony,     the     closing     arguments, 7   and   the    jury


       6
       For example, on cross-examination of Tommy Wilson Jr.,
counsel for James asked the following question:

       Q. In your testimony, you stated that you did not get
       a good look at the taller man.    And it is the case
       that more than a year ago, you could not place him
       when you were shown the photo line-up; is that
       accurate?

       A. Yes, sir.

J.A. 568.
       7
       For instance, during closing argument, Troy’s attorney
questioned the reliability of Dena Smith’s eyewitness testimony
arguing, in part, as follows:

     And so sure, there’s a couple, you know, seconds there
     where [the Baylors and Smith] have this conversation.
     What you hear from her is that she is focused on this
     gun. And I would be. I’m sure anyone would be. And
     she tells you she is not familiar with what she sees
(Continued)
                                           26
instructions on judging the credibility of witnesses in general,

and   the    reliability    of    witness   identification    testimony    in

particular. 8

             Accordingly,   the    district   court   did    not   abuse   its

discretion      in   precluding      expert   testimony      regarding     the

unreliability of eyewitness identification.

                                      C.

                     The Proposed Jury Instructions

                                      1.

                            Standard of Review

            The standard of review for a district court’s refusal

to give a specific eyewitness identification jury instruction is

abuse of discretion.         See United States v. Brooks, 928 F.2d

1403, 1408 (4th Cir. 1991).            A refusal to grant a requested




      and what she thinks is a weapon and she is flipping
      out and you can see that. At the end of the tape, you
      hear it from every single person, that she is
      distraught. . . . And so what you can see from just a
      brief timeline is that Dena Smith had a brief
      interaction with these individuals.    And from that
      interaction, it would be difficult to know who the
      right person might be.

J.A. 798-99.
      8
       The district court instructed the jury, in part, as
follows: “In testing the credibility of the witnesses, you may
consider . . . the opportunity they had to see, hear, and know
the things about which they testified.” J.A. 832.



                                      27
instruction is only reversible error if the instruction (1) was

correct; (2) was not substantially covered by the court’s charge

to the jury; and (3) dealt with some point in the trial so

important       that     failure    to     give     the   requested           instruction

seriously       impaired    the     defendant’s        ability     to     conduct       his

defense.        See United States v. Lewis, 53 F.3d 29, 32 (4th Cir.

1995) (internal quotation marks and citations omitted).

                                            2.

                                         Analysis

            In     our   view,     the    district     court    did     not    abuse    its

discretion by refusing the Baylors’ proposed jury instruction

regarding eyewitness identification.                   We reach this conclusion

because    the    evidence       against    both     brothers     did    not     strongly

suggest    the     likelihood      of    irreparable      misidentification,            any

concerns        regarding        poor      identification          procedures           and

misidentification         were    raised    on    cross-examination           and   during

opening and closing arguments, and the issue of credibility and

witness    identification         testimony      was   substantially          covered   by

the court’s charge to the jury.

            In United States v. Holley, 502 F.2d 273 (4th Cir.

1974),     we     adopted    a     detailed       model    jury       instruction       on

eyewitness identification testimony “in the context of a case

that contain[ed] no evidence of identification except eyewitness

testimony.”       Id. at 275.        We later refined this view in Brooks,

                                            28
where we concluded that a Holley instruction is “compelled only

where the evidence in the case strongly suggests the likelihood

of irreparable misidentification.”                        Brooks, 928 F.2d at 1407

(internal quotation marks omitted).                       We “generally require[] a

Holley [] instruction when the only evidence of a defendant’s

criminal agency is eyewitness identification testimony.”                           United

States v. Greene, 704 F.3d 298, 301 (4th Cir. 2013).                                “‘The

Holley   []    instruction         or    its    substantial         equivalent     is   not

required      to    be    given,    sua      sponte,       in   a   case   where    other

independent evidence, whether direct or circumstantial, or both,

is presented to the trier of fact which is corroborative of the

guilt of the accused.’”                 Id. at 313 (quoting United States v.

Revels, 575 F.2d 74, 76 (4th Cir. 1978)).

              The circumstances present in Holley are not present in

this case.         Importantly, as described above, the Government’s

case was not wholly dependent on eyewitness identification.                             Far

from   it.         With   respect       to   the      Family    Dollar     robbery,     the

evidence      tending     to   inculpate            the   Baylors,    including     video

recordings, was legion.             See ante at 5-9.                Likewise, the case

against the Baylors in the robbery of Wilson’s Auto was not

dependent solely on eyewitness identification testimony.                                See

ante at 9-12.

              The facts presented here take this case well-beyond

Holley’s purview.          Certainly the wealth of evidence against both

                                               29
Baylors does not strongly suggest the likelihood of irreparable

misidentification.             In     addition,     any    concerns      regarding     poor

identification procedures and misidentification were raised on

cross-examination           and     during    opening      and     closing      arguments.

Therefore, the district court did not abuse its discretion in

refusing the proposed jury instructions.

                                             D.

                            The Government’s DNA Expert

                                             1.

                                    Standard of Review

              The Baylors contend that the district court abused its

discretion        by    permitting        Melissa      Baisden,    a    DNA     expert,   to

testify about the inconclusive results of her test of whether

Troy could be eliminated as a contributor to the minor profile

of DNA located on a hat recovered after the robbery at Wilson’s

Auto.        We    review      questions      regarding      the       admissibility      of

evidence     for       an   abuse    of   discretion.        See       United    States   v.

Summers, 666 F.3d 192, 197 (4th Cir. 2011).

                                             2.

                                          Analysis

              Troy first attacks Baisden’s testimony as irrelevant.

See   Fed.    R.       Evid.   403.       This    is    plainly    not    so:    Baisden’s

testimony was relevant and therefore admissible because it had a

tendency to make the existence of a fact that was of consequence

                                             30
to the determination of the action more or less probable.                                       See

Fed. R. Evid. 401.            That is, her testimony spoke to the material

fact   that    Troy     could      not    be    ruled       out   as     a     possible     minor

contributor        to   DNA    on     the      hat.        This        fact,    as     correctly

testified to by Ms. Baisden on direct and again pointed out by

Troy’s     attorneys          on    cross-examination              and       during       closing

argument, did not mean that Troy was a contributor to the minor

DNA profile found on the hat.

              Nor was Baisden’s evidence irrelevant and confusing.

The testimony actually assisted the trier of fact to understand

the evidence or determine a fact in issue, rather than confuse

them, by helping the jury to determine the outcome of the DNA

analysis      as   to   Troy.        See     Fed.     R.    Evid.       403.         To   exclude

Baisden’s testimony would have permitted a false inference by

the jury and led to the confusion that Rule 702 is meant to

prevent.      That is, the jury would have heard that DNA evidence

was recovered from the hat, that it was tested by an analyst,

but    they    would     not       have     heard     the     results.           The      natural

inference      would     be        that     Troy      could       be     eliminated        as     a

contributor to the minor DNA mixture, which was not accurate.

              Accordingly, we conclude the district court did not

abuse its discretion by admitting testimony of a DNA expert to

explain an inconclusive finding for Troy, because the evidence



                                               31
was    relevant,        admissible,       and      assisted      the    trier      of   fact    in

understanding the evidence or determining a fact at issue.

                                                  E.

                        Firearm Possession and “Brandishing”

                The Baylors also raise two claims of error regarding

their respective convictions for violating 18 U.S.C. § 924(c) as

to the Family Dollar robbery as charged in count three of the

indictment. 9          Section 924(c) of Title 18 prohibits persons from

using or carrying a “firearm” in the commission of a crime of

violence.             First, the Baylors claim the Government presented

insufficient evidence in support of the finding that the object

used       or   carried       during    the        robbery    met      the       definition     of

“firearm.”             Alternatively,        they       contend     that     the     seven-year

sentences        imposed      on   them      as    a    result    of   their       count    three

convictions are unconstitutional because the indictment did not

allege,         and     the   jury     did        not   find,     that       a    firearm      was

brandished.




       9
       The Baylors do not raise this issue with respect to the
robbery of Wilson’s Auto.



                                                  32
                                                 1.

                        The Sufficiency of the Evidence

                                                 a.

                                   Standard of Review

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

motion made pursuant to Rule 29 of the Federal Rules of Criminal

Procedure     for      judgment       of    acquittal.           See     United      States       v.

Alerre, 430 F.3d 681, 693 (4th Cir. 2005).                               We must uphold a

jury verdict if there is substantial evidence, viewed in the

light most favorable to the Government, to support it.                                        See

Burks v. United States, 437 U.S. 1, 17 (1978).                                 “[S]ubstantial

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.

Burgos,    94    F.3d       849,    862     (4th      Cir.     1996)     (en    banc).        “In

applying this standard of review, we remain cognizant of the

fact   that     ‘[t]he      jury,     not       the    reviewing        court,      weighs    the

credibility of the evidence and resolves any conflicts in the

evidence      presented,        and    if       the    evidence        supports     different,

reasonable           interpretations,                 the      jury       decides          which

interpretation         to    believe.’”          Id.        (quoting    United      States        v.

Murphy, 35 F.3d 143, 148 (4th Cir. 1994)).




                                                 33
                                      b.

                                 Analysis

            We agree with the Government that Smith’s testimony,

together with the other evidence, was sufficient to establish

the Baylors’ possession of a firearm.              In this case, Dena Smith

testified “the taller guy . . . he had a gun in his arm sleeve.”

J.A. 341.      Ms. Smith testified that the taller man then said,

“Now, this is what you going [sic] to do.                 Take us in the back

and give us the money.”         J.A. 341.      According to Smith, “[h]e

had the gun in his arm sleeve but it weren’t [sic] like pointing

at me.    The barrel was inside of his sleeve so he just had it

laying in his palm.”       J.A. 363.        Smith further testified, “the

barrel was in the sleeve.            The part where fire come out of.”

Id.   While she conceded that she wasn’t familiar with the parts

of the gun, she explained, “But I know the part that you hold,

that was in his sleeve so the part where the bullet come out of

[sic] was pointing out in his palm.”           J.A. 363.      Upon seeing the

gun, Smith testified that she thought, “Oh, God.”                 J.A. 341.

            The direct evidence of Smith’s observations along with

the   direct   and   circumstantial     evidence     of    both    the   Baylors’

actions   as    already   catalogued        were    more    than    sufficient,

particularly    when   viewed   in    the   light   most    favorable     to   the

Government, for a rational jury to find both Baylors guilty of

violating § 924(c).

                                      34
                                           2.

                                  Brandishing

             The Baylors also contend the district court violated

their    constitutional       rights   by       imposing      mandatory       seven-year

sentences based on a question of fact not submitted to the jury

because count three of the indictment, which charged that the

Baylors    violated      18   U.S.C.   §    924(c)     in     connection       with   the

Family    Dollar     robbery,    failed         to   allege    that     the    gun    was

brandished.        Until recently, Appellants’ argument was foreclosed

by Harris v. United States, 536 U.S. 545, 556 (2002), a decision

concluding that brandishing is a sentencing factor for the judge

to find, rather than an element that must be found by the jury.

However, in Alleyne v. United States, ___ U.S. ___, 133 S. Ct.

2151 (2013), the Supreme Court expressly overruled Harris and

concluded that the brandishing enhancement in § 924(c) must be

submitted to the jury.            Therefore, under Alleyne, Appellants

were     subject    to   an   improper      mandatory         minimum    because      the

brandishing factor was not alleged in the indictment or found by

the jury.     The question for us, then, is whether the error was

harmless.

                                           a.

                               Standard of Review

             Apprendi errors are subject to harmless error review.

See Washington v. Recuenco, 548 U.S. 212 (2006).                          The Supreme

                                           35
Court    has       “repeatedly     recognized        that     the    commission        of    a

constitutional error at trial alone does not entitle a defendant

to automatic reversal.             Instead, ‘most constitutional errors can

be harmless.’”         Id. at 218 (quoting Nedar v. United States, 527

U.S. 1, 8 (1999)).             “[I]n the context of a particular case,

certain constitutional errors, no less than other errors, may

have been ‘harmless' in terms of their effect on the factfinding

process at trial.”            Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986).        “[A]n    otherwise      valid    conviction          should      not   be    set

aside if the reviewing court may confidently say, on the whole

record,    that      the    constitutional       error      was     harmless       beyond     a

reasonable doubt.”           Id.

                                           b.

                                       Analysis

            Section 924(c) provides a mandatory, and consecutive,

term of five years of imprisonment upon conviction for using or

carrying a firearm in the commission of a crime of violence.                                 18

U.S.C. § 924(c)(1)(A)(i).                 “[I]f the firearm is brandished,”

however,       a    defendant      must    be     sentenced          to     a    mandatory,

consecutive             seven-year              term          of             imprisonment.

§ 924(c)(1)(A)(ii).           Congress defined the term “brandish” in 18

U.S.C. § 924(c)(4) as follows: “‘brandish’ means, with respect

to   a   firearm,      to    display      all   or     part    of     the       firearm,     or

otherwise      make    the    presence     of   the    firearm       known       to   another

                                           36
person,      in    order      to    intimidate            that    person,        regardless    of

whether the firearm is directly visible to that person.”

              In    this      case,   the       record      below        amply     supports    the

conclusion that a firearm was brandished by the Baylors during

the   robbery      of    the    Family         Dollar.           The   jury      was   asked   and

ultimately         found       that       a     weapon       was       present,        that    is,

“possessed.”            The    only   other          element      needed      to   satisfy     the

definition of “brandish” is the act of displaying or making the

presence of the firearm known for the purpose of intimidation,

which   as    Smith’s         testimony        indicates,          was    also     established.

Smith testified that she encountered the Baylors outside of her

store   shortly         after      Troy       had    approached        her    with     questions

several times inside the store.                          When asked what happened when

she was confronted by the Baylors outside of the Family Dollar,

Smith answered:

      A.      When the taller guy, before he was out there, he
              had a gun in his arm sleeve. He was like, “Now,
              this is what you going [sic] to do.    Take us in
              the back and give us the money,” or whatever. He
              had a gun in his arm sleeve but it weren’t [sic]
              like pointing at me.    The barrel was inside of
              his sleeve so he just had it laying in his palm.
              That’s when I asked to put my hands in my pocket
              and I was like, “Oh, God.”

      Q.     You saw the gun?

      A.      Yes.




                                                    37
J.A. 341.      She again testified, that “the barrel was in the

sleeve.   The part where the fire came out of.”         J.A. 363.

             As her testimony plainly demonstrates, James displayed

at least part of the firearm with the aim of intimidating Smith

–- and succeeded.        We thus conclude that if the indictment had

so alleged, the jury would have found beyond a reasonable doubt

that   the     firearm    was   “brandished,”    thus     justifying     the

imposition of the seven-year mandatory minimum.              Accordingly,

even though, per Alleyne, it was error to impose the mandatory

minimum without asking the jury to specifically find whether the

firearm was “brandished,” the record as a whole demonstrates

beyond a reasonable doubt that it was brandished, and thus the

error is harmless.


                                     III.

             For   the   foregoing    reasons,   the    judgment    of   the

district court is

                                                                   AFFIRMED.




                                      38
