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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-1233

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UNITED STATES OF AMERICA

v.

ROBERT ODOM, 

 Appellant

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On Appeal from United States District Court 

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-11-cr-00649-001)

District Judge: Honorable Robert F. Kelly

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Submitted Pursuant to Third Circuit LAR 34.1(a)

September 18, 2015

Before: FISHER, CHAGARES and JORDAN, Circuit Judges.

(Filed: September 30, 2015)

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OPINION*

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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.
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Robert Odom (“Odom”) 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 Eastern District of Pennsylvania. Odom appeals that conviction and asserts 

that there was insufficient evidence to support his conviction. We will affirm.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts that are necessary 

to our analysis.

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 black limousine. The officers commenced 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 policemen, Brian Clerkin (“Clerkin”) and Michael 

Chichearo, responded to a call for assistance at R&R. Boone relayed the same story to 

these officers but with more detail. Those officers then took Boone to where Odom was 

pulled over. Boone identified Odom as the man who had threatened her with the gun.
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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 Odom had 

threatened her with at R&R. Odom was then placed under arrest. That day, an 

investigator took a signed statement from Boone. After 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 adopted her prior signed statement. At 

trial, however, Boone claimed she had memory 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 statements to 

police as substantive evidence. The District Court admitted them over the objection.

Odom testified in his own defense, asserting that Boone and her male friend 

wielded a gun and threatened him. Odom also testified that other persons drove and had 

access to the limousines and that he did not know a gun was in the limousine. Despite his 

testimony, the jury found Odom guilty of being a felon in possession of a firearm. Odom 

was later sentenced to 60 months’ imprisonment.
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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 conviction 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 court’s decision to admit evidence are reviewed 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 not have been admitted at trial. We disagree. Boone’s statement to Hoppe was 

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, admitting this 

 

1 United States v. Caraballo-Rodriguez, 726 F.3d 418, 423-24 (3d Cir. 2013) (en 

banc). This Court will not review the Government’s assertion that we should review for 

plain error as we affirm under this less deferential 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.

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J.A. at 195.
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statement as an excited utterance was not an abuse of discretion.5 Further, Boone 

identified Odom after seeing him at R&R a short time thereafter. Hence, admitting 

Boone’s statement identifying Odom as substantive evidence of identification was not an 

abuse of discretion.6 Lastly, Boone’s signed statement is admissible as a recorded 

recollection because Boone adopted it by way of her signature, 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; and Boone 

was subject to cross-examination regarding 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 finding 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. Evid. 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. 801(d)(1)(A); Mornan, 413 F.3d at 378.
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to the government and affirm the judgment if there is substantial evidence from which 

any rational trier of fact could find guilt beyond a reasonable doubt.”

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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 beyond 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 bar, there is sufficient evidence to support a finding by the jury that 

Odom had constructive possession 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 support a finding 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 challenges the second requirement. 

This Court will review only constructive possession, 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.
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credibility,13 a rational jury could find that Boone’s prior grand jury testimony was more 

credible than Odom’s and Boone’s trial testimony, as both were unsupported by the 

testimony of other trial witnesses and Boone’s prior testimony and statements.

The evidence above is supported by further evidence that Odom knowingly 

possessed the firearm. When Odom was stopped, he was driving a limousine registered in 

his name and no one else was in the vehicle;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 All of these considerations support a rational 

jury’s finding that Odom constructively 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 

vehicle 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 under the vehicle’s front seat “could easily justify the inference ... [of the 

defendant’s] constructive 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 minutes 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).
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gun or that the limousine was driven by other people or previously had occupants 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 consideration 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 that 

the defendant had exerted control over the contraband. Here, 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 conclude 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).
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argument is waived.20 In the alternative, based on the evidence reviewed above, a new 

trial is not required in the interest of justice.

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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 not consider his claim on appeal).

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