United States v. Richaco Holloway ( 2015 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.3
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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