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United States of America v. Omari Graham

December 10, 2012


Appeal from a judgment of conviction entered on October 27, 2011, by the United States District Court for the Western District of New York (David G. Larimer, Judge).


United States v. Graham


Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 10th day of December, two thousand and twelve.



Defendant-appellant Graham ("defendant" or "Graham") appeals from a judgment of conviction entered against him on one count of being a felon in possession of a semi-automatic handgun and seven rounds of ammunition, in violation of 18 U.S.C. § 922(g)(1). We assume the parties' familiarity with the facts and procedural history of this case, to which we refer only as necessary to explain our decision to affirm.

On appeal, Graham asserts that the District Court erred in admitting evidence of canine tracking under Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) and its progeny. Graham also argues that the District Court erred in admitting evidence that police officers, on the night of Graham's arrest, were aware of robberies in the area by a person reportedly wearing a face mask.


Around 2:30 a.m. on October 17, 2008, Deputy Sheriff Gary Wildman ("Wildman") of the Monroe County Sheriff's Office stopped a white four-door Honda Accord at the intersection of Chili Avenue and Bright Oaks Drive, in Chili, New York, for an equipment violation. Graham was a passenger, accompanied by a female driver. When the driver was unable to provide a valid form of identification, Wildman moved her to his police patrol to verify her license, while Graham remained in the Honda. While interviewing the driver in the patrol car, Wildman thrice ordered Graham, who had exited the Honda and paced some fifteen feet away, to re-enter and remain in that vehicle. Wildman thereupon requested "backup" from his police dispatcher and was quickly joined by Sergeant Thomas Rowe ("Rowe"). Shortly after Rowe's arrival, Graham, still alone in the Honda, started that vehicle, accelerated quickly, and fled. Rowe pursued Graham by vehicle for approximately a mile and a half until Graham, unable to negotiate a turn at upwards of 100 mph, lost control and crashed the Honda into a telephone pole at the intersection of Chili Coldwater Road and Chestnut Ridge Road. Approaching the crash site, Rowe observed Graham jump out of his car, and run across a yard. At this point, Rowe broadcast "perimeter points" to other patrolling deputy sheriffs, including Deputy Sheriff John Auberger ("Auberger"), who observed Graham's flight and pursued him first in his patrol car and then on foot. Auberger heard the rattling of a chain link fence located behind a minivan, whereupon he found Graham behind the fence, in a private yard, attempting to hide in the dark. As Auberger then arrested the defendant, Graham said that "his life was over." Auberger also searched Graham upon arrest and found a $10 dollar "dime bag" of marijuana on his person.

Among the officers who responded to Rowe's broadcast was Deputy Sheriff Andrew Belmont ("Belmont") of the K-9 unit. While law enforcement agents were still in pursuit of Graham, Belmont and his German Shepard partner "Czar" went to the crash site and began tracking the path of the defendant's flight. Belmont was notified that Graham had been apprehended during this process, but he asked the police units that had taken the defendant into custody not to move him from the site of arrest until the "tracking" had concluded. Czar followed a course of 150-200 yards over five minutes which came within several feet of the aforementioned minivan and ended at the site of arrest. Belmont then attempted to deploy Czar to detect nitrates and find any weapons that might have been discarded along the flight path. Czar checked the entire residential yard in which Graham was found and became fatigued, at which point Belmont requested canine replacements to finish the search. Officer Jeffrey Delgudico ("Delgudico") responded with his Belgian Malinois partner "Caesar." Accompanied by Belmont, Delgudico and Caesar continued the nitrate search for 10-15 minutes before recovering a black handgun underneath the minivan at approximately 4:15 a.m.

At trial, Wildman testified that earlier on the evening of Graham's arrest, he had learned that a white four-door Honda that was "possibly occupied by two black males," might have been used in a series of local armed robberies, and that a face mask was worn in at least one of the robberies. Wildman also ...

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