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w . v i l l a no v a . e du/thir dc ir c uit_2015/10441 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 14

- 1233

____________ UNITED STATES OF AMERICA

v. ROBERT ODOM, Appellant

____________ On Appeal from United States District Cour t for the Eastern District of Pennsylvania ( E

. D . Pa

. No. 2

- 11

- cr - 00649

- 001 ) District Judge: Honorable Robert F. Kelly

____________ Submitted Pursuant to Third Circuit LAR 34.1(a)

September 1 8 , 2015
Before: FISHER, CHAGARES and JORDAN , Circuit Judges

.

(Filed: September 30, 2015 )

____________ OPINION *

____________ FISHER, Circuit Judge

.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Robert Odom (“Od om”) was convicted of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), after a jury trial in the United States District
Court for the E a stern District of Pennsylvania. Odom appeals that conviction and asserts that there was insufficient evidence to support his conviction

. We will affirm.
I.
W e write principally for the parties, who are familiar with the factual context a nd legal history o f this case. Therefore, we will set forth only those facts that are necessary to our analysi s. On April 9, 2011, two Philadelphia policemen, William Hoppe (“Hoppe”) and Leonard Ginchereau (“Ginchereau”), were flagged down by a woman, Shelmina Boone (“Boone ”), and her male friend in front of R&R Auto Repair (“R&R”) at the intersection of Bridge and James Streets in Philadelphia, Pennsylvania. Boone told the officers that she had been threatened by a black man with a gun and that he had left the scene by way
of James Street in a bla ck limousine. The officers comm enced a search , by way of James Street, and pulled over a black limousine driven by a black man several blocks away from R&R in an area not known to have many limousines. Two other Philadelphia policem en, Brian Clerkin (“Clerkin”) and Michael
Chiche aro, responded to a call for assistance at R&R. Boone relayed the same stor y to these officers but with more detail. Those officers then took Boon e to where Odom was pulled over

. Boone identified Odom as the man who h ad threatened her with the gun.3

Clerkin looked inside the limousine’s driver’s side door, which was still open, and saw a handgun protruding from the floor’s torn upholstery next to the radio compartment on the driver’s side of the vehicle. Boone identified the gun as the one O dom had
threatened her with at R&R. Odom was then placed under ar rest

. That day, an investigator took a signed statement from Boone

. A fter a follow

- up investigation, the officers determined that Odom was the registered owner of the limousine, operated a limousine driving business, and owned R&R. During grand jury proceedings, Boone provided testimony that echoed her

statements to police the day of the incident and adop ted her prior signed statement. At trial, however, Boone claimed she had memor y loss and could not have her recollection
refreshed because she did not have her glasses with her that day. Odom stipulated to the authenticity of the grand jury transcript , which included Boone’s statements

. Odom , however, raised an objection to the admittance of the transcript and Boone’ s sta tements to police as substantive evidence

. The Distri ct Court admitted them over the objection.
Odom testified in his own defense , asserting that Boone and her male friend wielded a gun a nd threa tened him. Odom also testified that other persons drove and had
access to the limousines and that he did not kno w a gun was in the limousine. Despite his testimony, t he jury found Odom guilty of being a felon in possession of a firearm

. Odom
was later sent enced to 60 months’ imprisonment

.4 II. The District Court had jurisdiction over this criminal action under 18 U.S.C. § 3231. We have appellate jurisdiction over Odom ’s challenge to his con viction under 28 U.S.C. § 1291. We exercise plenary review over Odom’ s insufficiency of the evidence
claim. 1 In exercising that review, the evidence must be viewed “ in the light most
favorable to the Government ” as the verdict winner. 2 A request for a new trial and review
of a trial cour t’s decision to admit evidence are r eviewed for abuse of discretion. 3
III. We discuss Odom’s challenge of the sufficiency of the evidence based on his two alternative requests for relief, (A) acquittal and (B) a new trial, in turn.
A. Odom first argues that Boone’s grand jury testimony and statements to police
should n ot have been admitted at trial . W e disagree

. Boone’s statement to Hoppe wa s made right after the incident , and Hoppe testified that Boone was in an excited state and that Boone was flagging them down for immediate assistance. 4 Thus, a dmitting this

1 United States v. Caraballo

- Rodriguez , 72 6 F.3d 418, 423

- 24 (3d Cir. 2013) (en banc)

. This Court will not review the Government’ s assertion that we sh ould review for plain error as we affirm under this less defe rential standard

.

2 United States v. Rieger , 942 F.2d 230, 232 (3d Cir. 1991) ( citation omitted). 3 United States v. Jasin , 280 F.3d 355, 360 (3d Cir. 2002); United States v. Green , 556 F.3d 151, 155 (3d Cir. 2009), respectively.

4 J.A. at 195.5

statement as an excited utterance was not an abuse of discretion. 5 Further , Boone
ident ified Odom after seeing him at R&R a short time thereafter . H ence , a dmitting
Boone’s statement identifying Odom as substantive evi dence of identifi cation was not an abuse of discretion. 6 Lastly , Boone’s signed statement is admissib le as a recorded
recollection because Boone adopted it by way of her sign ature , she was unable to recall
the statement at trial but identified the signature as her own, and Boone had previously adopted it ( on the day of the incident ) when it was fresh in her mind. 7 Moreover, Boone’s testimony that she had memory loss was likely viewed by the District Court, within its discretion, as disingenuous; Boone testified at trial; an d Boone was subject to cross

- examination rega rding the grand jury testimony. Thus, admitting the grand jury testimony as a prior inconsistent statement was not an abuse of discretion. 8 Odom next asserts that there is insufficient evidence to support a fin ding that he knowingly possessed a firearm. Odom bears a heavy burden in challenging the sufficiency of the evidence as we must “ consider the evidence in the light most favorable

5 Fed. R. E vid. 803(2); United States v. Brown , 254 F.3d 454 (3d Cir. 2001). 6 Fed. R. Evid. 801(d)(1)(C); United States v. Brink , 39 F.3d 419, 426 (3d Cir. 1994)

. 7 Fed. R. Evid. 803(5); United States v. Mornan , 413 F.3d 372, 377

- 78 (3d Cir. 2005). 8 Fed. R. Evid. 8 01(d)(1)(A); Mornan , 413 F.3d at 378

.6

to the government and affirm the judgment if there is substantial evidence fr om which any rational trier of fact could find g uilt beyond a reasonable doubt. ” 9
Odom asserts that he did not knowingly possess a firearm through constructive possession. 10 In order to prove constructive possession, the Government must have proven beyon d a reasonable doubt that (1) Odom knew of the gun’s existence, (2) Odom had the power to exercise dominion and control over the gun, and (3) Odom intended to exercise dominion and control over the gun. 11 This proof may be circumstantial. 12
In the case at ba r, there is sufficient evidence to support a finding by the jury that Odom had constructive poss ession of the firearm

. Despite Boone’s failed recall and Odom’s testimony that Boone had a gun, Boone’s previous grand jury testimony and statements to police s upport a findi ng that Odom possessed the gun. This is further bolstered by Boone’s identification of Odom and of the gun on location the day of the
incident and Boone’s report of the incident occurring at R&R

. Because the jury is free to accord weight to a witness’ s testimony based on its assessment of the witness’ s

9 United States v. Benjamin , 711 F.3d 371, 376 (3d Cir. 2013 ) (internal quotation marks omitted).

10 The Government was required to prove (1) that Odom had previously been convicted of a felony ; (2) that Odom knowingly possessed a firearm; and (3) that the firearm had traveled in interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Dodd , 225 F.3d 340, 344 (3d Cir. 2000). Odom only chal lenges the second requirement. This Court will review only constructiv e possess ion, even though the parties address actual possession, as it supports affirming the jury verdict.

11 United States v. Iafelice , 978 F.2d 92, 96 (3d Cir. 1992). 12 Id

. at 97

.7

credibility, 13 a rational jury could find that Boone’s prior grand jury testimony was mor e credible than Odom’s and Boone’s trial testimony, as both were unsupported by the testimony of other tri al witnesses and Boone’s prior testimony and statements.
The evidence above is supported by further evidence that Odom k nowingly possessed the firearm. When Odom was stopped, he was driving a limousine registered in
his name and no one else was in the veh icle; 14 the butt of the gun was visible and placed on the driver’s side of the vehicle within Odom’s reach; 15 and Odom was stopped within a few blocks of his business and within a few minutes of the underlying incident. 16 Although Odom’s proximity to the gun and ownership of the vehicle is not by itself enough to prove constructive possession, this Court may consider those factors in the context of the surrounding circumstances. 17 A ll of these considerations support a rational jury’s finding that Odom construc tively possessed the gun. This finding is not overcome by Odom’s arguments, drawn from this Court’s holding in United States v. Brown , 18 regarding the lack of identifiable fingerprints on the

13 Rhoades, Inc. v. United Air Lines, Inc. , 340 F.2d 481 (3d Cir. 1965). 14 Iafelice , 978 F.2d at 97 (considering a defendant’s ownership and operation of a veh icle in which contraband is found as corroborative factors of constructive possession).

15 United States v. Lopez , 271 F.3d 472, 487 (3d Cir. 2001) (finding that the gun’s location u nder the vehicle’s front seat “could easily j ustify the inference ... [ of the defendant’s] con structive possession of the gun ”).

16 United States v. Arnold , 486 F.3d 177, 183 (6th Cir. 2007) (finding constructive possession where the defendant had threatened the victim m inutes before a gun was found under the defendant’s car seat and the gun matched the victim’s description of it).

17 Iafelice , 978 F.2d at 97. 18 3 F.3d 673 (3rd Cir. 1993).8

gun or that the limousine was driven by other people or previousl y had occupan ts other
than Odom. In Brown , this Court found that the Government had failed to prove constructive possession, citing as one factor the absence of the defendant’s fingerprints

on the seized contraband. But , we made this finding in considerat ion of other factors in
Brown : a co - defendant’s fingerprints were on the contraband, the defendant did not own the home from which the contraband was seized, and there was no evidence showing th at the defendant had exerted control over the contrab and. H ere , the evidence demonstrates
otherwise: Odom exerted control over the firearm as he was recently seen wielding it; Odom owned the vehicle in which the gun was found and R&R, where Boone stated Odom used the gun; and, finally, although the fingerprint on the gun was unidentifiable, no other fingerprints were on the gun signifying use by another person. 19 Thus, Odom has failed to show that there was not substantial evidence upon which a rational jury could find that he constructively possessed the firearm , and acquittal is therefore unwarranted.
B.
Odom did not file a motion for a new trial with the District Court. Because Odom
failed to make that motion , this Court cannot act upon his request for a new trial and his

19 Arnold , 486 F.3d at 181 (finding that a jury could reasonably conclud e that the gun did not have fingerprints because the defendant had the opportunity to wipe the gun off before he was apprehended by the police).9

argument is waived. 20 In the alternative, b ased on the evidence reviewed above, a new trial is not required in the interest of justice

. 21
IV. For the reasons set forth above, we will affirm the order of the District Court.

20 A district court may vacate a judgment and grant a new trial only “[u]pon the defendant's motion ” and may not order a new trial sua sponte

. Fed. R. Crim. P. 33; Fed. R. Crim. P. 33, advisory comm. notes, 1966 amends. ; United States v. Thorton , 1 F.3d 149 (3d Cir. 1993) (finding that where a defendant fails to file a new trial motion before the district court , we may n ot consider his claim on appeal).

21 Fed. R. Crim. P. 33(a).