                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4124


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL   EDUARDO   PINEDA-ZELAYA,       a/k/a   Daniel   Edgardo
Rodriquez, a/k/a Sarco,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:09-cr-00100-D-5)


Submitted:   October 25, 2011             Decided:   November 4, 2011


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Ethan A. Ontjes, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Daniel     Eduardo       Pineda-Zelaya         appeals     his    conviction

for robbery, in violation of 18 U.S.C. § 1951 (2006); conspiracy

to commit robbery, using and carrying a firearm during and in

relation    to    a   crime    of    violence,       in    violation    of    18    U.S.C.

§ 924(c)(1)(A) (2006); aiding and abetting, in violation of 18

U.S.C. § 2 (2006); and illegal entry, in violation of 8 U.S.C.

§ 1325(a)    (2006).          On    appeal,       Pineda-Zelaya      argues    that    the

district court erred in excluding testimony from both his gang

expert and a co-conspirator.            Finding no error, we affirm.

            Federal Rule of Evidence 702 permits expert witness

testimony if the expert’s “specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact

in issue.”       “Rule 702 is broadly interpreted, and helpfulness to

the trier of fact is its touchstone.                      Testimony from an expert

is presumed to be helpful unless it concerns matters within the

everyday knowledge and experience of a lay juror.”                                 Kopf v.

Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (internal citation and

quotation marks omitted).               However, expert witnesses may not

“state an opinion or inference as to whether the defendant did

or did not have the mental state or condition constituting an

element of the crime charged or of a defense thereto.”                             Fed. R.

Evid. 704(b).         Applying these standards, we conclude that the

district     court     did     not    abuse       its     discretion    in    excluding

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testimony from the expert witness.                   See United States v. Wilson,

484 F.3d 267, 273 (4th Cir. 2007) (stating standard of review

for district court’s ruling on admissibility of expert witness

testimony).

              Turning    to     the     co-conspirator’s           testimony,    Federal

Rule    of    Evidence        608(b)       allows    cross-examination          regarding

“[s]pecific     instances        of    the    conduct    of    a    witness,     for   the

purpose of attacking or supporting the witness’ character for

truthfulness . . . in the discretion of the court, if probative

of truthfulness or untruthfulness.”                   See United States v. Leake,

642 F.2d 715, 718 (4th Cir. 1981) (“Rule 608 authorizes inquiry

only into instances of misconduct that are clearly probative of

truthfulness      or         untruthfulness,          such    as      perjury,     fraud,

swindling, forgery, bribery, and embezzlement.”).                        However, even

if testimony is relevant and admissible, “the probative value of

the    evidence       must     not    be     substantially         outweighed    by    its

prejudicial effect.”           United States v. Wilson, 624 F.3d 640, 651

(4th Cir. 2010), petition for cert. filed, ___ S. Ct. __ (Feb.

4,    2011)    (No.     10-8807);       see    Fed.    R.     Evid.    403   (“Although

relevant, evidence may be excluded if its probative value is

substantially     outweighed           by    the    danger    of    unfair   prejudice,

confusion of the issues, or misleading the jury . . . .”).

“[I]n reviewing the trial court’s decision, [this court] must

look at the evidence in a light most favorable to its proponent,

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maximizing its probative value and minimizing its prejudicial

effect.”       United States v. Simpson, 910 F.2d 154, 157 (4th Cir.

1990)    (internal       quotation    marks   omitted).       Upon    a    thorough

review of the record, we cannot conclude that the district court

abused    its    discretion      in   excluding    testimony       from    the   co-

conspirator.       See United States v. Perkins, 470 F.3d 150, 155

(4th    Cir.    2006)    (discussing    standard   of     review    for    district

court’s evidentiary rulings).

               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 the

court and argument would not aid the decisional process.



                                                                           AFFIRMED




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