US v. Richaco Fernandis Holloway
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:13-cr-00540-PJM-1 Copies to all parties and the district court/agency. [999638986].. [14-4908]
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Richaco
entered
Fernandis
after
possession
of
(2012).
a
jury
a
firearm,
Holloway
denying
his
substantial
firearm.
Holloway
found
motion
evidence
him
in
argues
for
appeals
criminal
of
being
guilty
violation
that
the
of
18
judgment
a
felon
U.S.C.
§ 922(g)
the
district
court
erred
acquittal
because
there
was
proving
that
he
knowingly
in
in
not
possessed
the
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
studio
firearm
was
the
found
same
at
the
firearm
American
that
Music
appeared
in
Group
a
(“AMG”)
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.”
300 (2d Cir. 2002).
of
the
firearm
United States v. Gaines, 295 F.3d 293,
The jury compared the video to the photos
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.”
argues
that
this
statement
constituted
1
(J.A. 131).
lay
opinion
Holloway
testimony
To 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 . . . .”
Evid. 701.
Fed. R.
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
possession of the jurors” as well as personal knowledge.
States v. Perkins, 470 F.3d 150, 155-56 (4th Cir. 2006).
not
in
United
“Rule
701 forbids the admission of expert testimony dressed in lay
witness
clothing,
but
it
drawing by lay witnesses.”
does
not
interdict
all
inference
Id. at 156 (internal quotation marks
omitted).
2
The 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.
did
not
because
visits
abuse
Green
to
its
testified
the
determining
discretion
AMG
whether
to
studio,
the
in
his
his
The district court
admitting
personal
found
at
testimony
observations
observations
firearm
Green’s
were
the
AMG
during
relevant
studio
to
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.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this Court and argument would not aid the decisional process.
AFFIRMED
5
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