and 09-1873 UNITED STATES OF AMERICA v. Timothy Barham, a/k/a Terrell Ganes

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 08-1526 and 09-1873
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UNITED STATES OF AMERICA,
v.
TIMOTHY BARHAM,
a/k/a Terrell Ganes,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Nos. 05-cr-00376-01and 07-cr-00325-01)
District Judge: Hon. Paul S. Diamond
Submitted January 27, 2011
Before: FUENTES, CHAGARES, and ROTH, Circuit Judges.
(Filed: March 21, 2011)
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Timothy Barham appeals his conviction on the ground that sufficient evidence was
not provided to the jury to convict him of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). For the reasons that follow, we affirm the judgment
of conviction.

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I.
We write for the parties‟ benefit and recite only the facts essential to our
disposition. Because this appeal comes to us following a jury‟s guilty verdict, we set
forth the facts in the light most favorable to the Government.
In the late evening of February 8, 2005, Timothy Barham was standing outside of
Georgette‟s Bar in Philadelphia with a group of people. Upon receiving complaints about
narcotic sales and gambling taking place outside of the bar, Officers Forbes and Gantz
drove to the bar and instructed the group of men outside to either leave or return to the
bar. About fifteen minutes later, Officers Forbes and Gantz returned to the bar to find the
crowd of men still outside. The officers again instructed the men to disperse. Some of
the men returned to the bar, while others walked away. The officers observed that
Barham appeared nervous, grabbed the front waistband of his pants and instead of
walking away, began to run.
Suspecting that Barham was in possession of contraband, Officer Forbes ordered
Barham to stop. When Barham refused, Officer Forbes pursued Barham on foot, while
Officer Gantz followed in the patrol car. As he fled, Barham continued to hold the
waistband of his pants. Approaching the end of an alley, Barham climbed onto an oil
drum, jumped over a fence, and landed in a yard. Only a few strides behind Barham,
Officer Forbes, with a flashlight in his hand, also climbed onto the oil drum and jumped
over the fence. At the top of the fence, Officer Forbes observed Barham remove a gun
from his waistband and throw it into the yard. Officer Forbes then recovered the firearm,
a Beretta nine-millimeter semiautomatic pistol with ten live rounds of ammunition. After

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discarding the gun, Barham was apprehended by Officer Gantz. Barham was arrested
and subsequently charged with possession of a firearm by a convicted felon pursuant to
18 U.S.C. § 922(g)(1).
On July 20, 2007, Barham proceeded to trial and Officer Forbes and Gantz
testified to the jury regarding the events that led to the discovery of the firearm. On July
23, 2007, the jury found Barham guilty of possession of a firearm by convicted felon. On
March 20, 2009, the District Court sentenced Barham to 235 months in prison. On
March 25, 2009, Barham filed a notice of appeal.1
II.
Barham argues that the evidence presented at his trial was not sufficient to sustain
his conviction because the testimony of Officers Forbes and Gantz was “so contradictory
and unbelievable as to warrant the conclusion that any verdict premised on it was the
product of speculation rather than reason.” Barham Br. at 6. Since Barham failed to
raise a sufficiency-of-the-evidence claim before the District Court, we will review for
plain error. United States v. Miller, 527 F.3d 54, 62 (3d Cir. 2008). “A conviction based
on insufficient evidence is plain error only if the verdict „constitutes a fundamental
miscarriage of justice.‟” United States v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999)
(quoting United States v. Barel, 939 F.2d 26, 37 (3d Cir. 1991)).
Barham only raises an insufficient evidence claim as to whether he knowingly
possessed a firearm. He argues that there was no evidence to corroborate Officer
1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291.

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Forbes‟s account that he jumped onto an oil drum, over a fence while holding a flashlight
and then was able to see Barham throw a gun in the yard. Specifically, Barham notes that
there were no photographs presented that contained depictions of the oil drum.
We conclude that Barham‟s sufficiency-of-the-evidence claim is not supported by
the trial record. The testimony of Officer Forbes alone is sufficient to support the jury‟s
verdict that Barham knowingly possessed a firearm. Officer Forbes testified in detail
about why the officers were at the bar, Barham‟s suspicious behavior, the chase and his
eyewitness observations of Barham removing the firearm from his waist and throwing it
in the yard. Additionally, Officer Forbes reasonably explained why photographs of the
oil drum were not taken and how he was able to jump the fence with a flashlight in his
hand. Appendix at 69-70, 72, 76-77.
In addition to Officer Forbes‟s testimony, the verdict was also supported by
corroborating evidence. For instance, the testimony at trial of Officer Gantz confirmed
the account of Officer Forbes. The recovery of the Beretta nine-millimeter
semiautomatic pistol in the yard where Officer Forbes observed Barham throw a firearm
also supported his testimony. Additionally, the jury heard testimony indicative of
Barham‟s guilt, including his flight from police after being ordered to stop and the
stipulation that Barham provided false identification information to police when arrested.
Therefore, we conclude that sufficient evidence was presented at trial for the jury
to conclude that Barham knowingly possessed a firearm as a convicted felon. As such,
his conviction did not constitute a fundamental miscarriage of justice.
III.

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For the foregoing reasons, we will affirm the judgment of the District Court.

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