United States v. Malcolm Melvin , 508 F. App'x 209 ( 2013 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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).
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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.
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“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.
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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
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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.
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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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