UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 
7

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