             Case: 13-13063     Date Filed: 06/24/2014   Page: 1 of 13


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-13063
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:12-cr-20562-PCH-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

TAYURON DOLOMON,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (June 24, 2014)

Before CARNES, Chief Judge, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      Tauryon Dolomon appeals his conviction for unlawfully possessing a

firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
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He contends that the district court erred in denying his pretrial motion to suppress

the firearm underlying his conviction as the fruit of an unlawful Fourth

Amendment seizure. He further argues that the court erred in admitting evidence

of his 1998 conviction for firearm theft under Federal Rule of Evidence 404(b).

                                           I.

      On the night of December 8, 2011, Miami Police Detective Calvin

Chalumeau responded to a report of “an unknown black male selling narcotics out

of an Infiniti at an abandoned house” near the corner of 12th Avenue and 60th

Street, which was known as a high drug area. Dressed in plain clothes and driving

an unmarked police car, Detective Chalumeau drove to that location and parked

across the street from the vacant house, approximately twenty feet from the

Infiniti. When he arrived, Detective Chalumeau saw a uniformed police officer

searching a black male standing beside the Infiniti, but not the car itself or any of

its three occupants, and then saw that officer leave the scene without making an

arrest. Apparently, the officer had not found any narcotics on the black male.

      After the uniformed officer left, the black male walked over to the Infiniti,

leaned inside, and spoke to one of the car’s three occupants. Soon after, Dolomon

pulled up in his pickup truck, parked in the middle of street, exited the car, and

approached the black male still standing outside the Infiniti. Detective Chalumeau

witnessed Dolomon hand the black male money in exchange for a black pouch,


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which he promptly placed in the front waistband of his pants before getting back

into his truck and driving off.

      Convinced that he had just witnessed a hand-to-hand drug transaction,

Detective Chalumeau radioed his fellow officers to pursue Dolomon. At a

traffic light at the intersection of 10th Avenue and 62nd Street, three officers in

three unmarked police cars (Detectives Javier Gonzalez, Reynold Philippe, and

Horace Morgan) tried to “contain” Dolomon’s truck by blocking it in on three

sides — the front, the rear, and the driver’s side. Detective Philippe, who had

positioned his car behind Dolomon’s truck, activated his police lights, exited the

car, and began to draw his gun. Detective Gonzalez, who was positioned in front

of Dolomon’s truck, may or may not have attempted to bump the front fender of

the truck to prevent any possible escape. But even if he had, the record shows that

no actual contact was made and that Dolomon immediately threw his truck into

reverse, ramming into the front of Detective Philippe’s car, and then sped off

through a red traffic light.

      The officers pursued Dolomon with their police lights activated as he

exceeded the speed limit and ran multiple red lights. At various points during the

car chase, which lasted just under ten minutes, Detectives Philippe and Morgan

separately pulled alongside Dolomon’s truck, rolled down their windows, and

ordered him to pull over. Dolomon ignored those commands and, once he reached


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the vicinity of 5th Avenue and 20th Street, he threw the black pouch onto the

median of 20th Street, rolled out of his still-moving truck, and dashed on foot

toward the entrance of a nearby apartment complex. While Detective Philippe

stood guard over the unopened black pouch, Detective Duriel Smith, Detective

Morgan, and Sergeant Edwin Gomez chased Dolomon into the apartment complex,

where he was finally apprehended and placed under arrest. Officers then opened

the black pouch that Dolomon had discarded during the chase and found a loaded

handgun inside.

                                         II.

      Dolomon was indicted by a federal grand jury on one count of unlawfully

possessing a firearm as a convicted felon. Before trial, he moved to suppress the

firearm as the fruit of an unlawful Fourth Amendment seizure, claiming that he had

been seized without reasonable suspicion or probable cause when the police

attempted to contain his truck at the traffic light on the corner of 10th Avenue and

62nd Street. In particular, he argued that a seizure within the meaning of the

Fourth Amendment occurred because Detective Gonzalez physically struck the

front of his truck.

      Following an evidentiary hearing at which officers Chalumeau, Philippe,

Morgan, Gonzalez, Smith, and Gomez testified, a magistrate judge issued a report

recommending that Dolomon’s suppression motion be denied. Crediting Detective


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Gonzalez’s testimony that he never struck or attempted to strike Dolomon’s truck

during the attempted takedown at the traffic light, the magistrate judge concluded

that the firearm was not suppressible as the fruit of an unlawful seizure because

Dolomon had abandoned it before he was actually seized for the first time, which

was at the apartment complex. The magistrate judge alternatively found that even

if the initial attempted stop constituted a Fourth Amendment seizure, it was

adequately supported by reasonable suspicion that Dolomon had engaged in a drug

transaction. The district court adopted the magistrate judge’s report over

Dolomon’s objections and denied his suppression motion.

      In anticipation of trial, the government provided notice under Rule 404(b) of

its intent to introduce evidence of Dolomon’s 2009 conviction for fleeing and

eluding a police officer, during which Dolomon had thrown a firearm from a

moving vehicle. The government indicated that it intended to introduce that prior

conviction as proof of Dolomon’s intent, knowledge, and lack of mistake with

respect to the firearm possession charge. The district court ruled that it would not

permit the government to introduce the 2009 conviction under Rule 404(b) “unless

the door was opened” by the defense.

      Dolomon pursued an innocence defense at trial, suggesting that he did not

knowingly possess the firearm found by the police because it was either planted by

the officers or just happened to have been in the street. In support, he called his


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longtime girlfriend, Melissa Shervington, and his aunt, Linda Jones, both of whom

testified that they had never known Dolomon to be involved with firearms. To

counter that testimony and Dolomon’s defense, the government sought to introduce

evidence of Dolomon’s 1998 conviction for stealing firearms while burglarizing a

gun shop. Although that prior conviction had not been included in the

government’s Rule 404(b) notice, Dolomon did not object to its admission on that

ground. The district court concluded that Dolomon had “opened up the door” to

evidence of his 1998 conviction for firearm theft, and the court admitted it into

evidence under Rule 404(b) during the government’s rebuttal case. The jury found

Dolomon guilty as charged and the court sentenced him to 15 years imprisonment

as an armed career criminal.

                                         III.

      Dolomon first challenges the district court’s denial of his motion to suppress

the firearm underlying his conviction, contending that it was the fruit of an

unlawful seizure unsupported by either reasonable suspicion or probable cause of

wrongdoing. His challenge rests on the premise that he was seized for purposes of

the Fourth Amendment when the police officers attempted to contain him at the

first traffic light by boxing in his truck, bumping his vehicle, and displaying a

show of authority. To that end, he argues that the district court “improperly




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resolved critical credibility issues,” including its decision to credit Detective

Gonzalez’s testimony that he did not strike or attempt to strike Dolomon’s truck.

      When reviewing the denial of a motion to suppress, we review the district

court’s factual findings for clear error and its application of law to those facts de

novo. United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). A person

is “seized” within the meaning of the Fourth Amendment “only when, by means of

physical force or a show of authority, his freedom of movement is restrained.”

United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877 (1980); see

also Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 2405 (2007) (“A

person is seized by the police and thus entitled to challenge the government’s

action under the Fourth Amendment when the officer, by means of physical force

or show of authority, terminates or restrains his freedom of movement . . . .”)

(quotation marks omitted). A seizure is effected by physical force “when there is a

governmental termination of freedom of movement through means intentionally

applied,” such as where a law enforcement officer pulls his vehicle “alongside [a]

fleeing car and sideswipe[s] it, producing [a] crash.” Brower v. Cnty. of Inyo, 489

U.S. 593, 597, 109 S.Ct. 1378, 1381 (1989) (emphasis omitted). Absent the use of

physical force, a seizure requires both a show of authority and “submission to

[that] assertion of authority.” California v. Hodari D., 499 U.S. 621, 626, 111

S.Ct. 1547, 1551 (1991). An attempted seizure, without actual submission, is not a


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seizure for Fourth Amendment purposes. Id. at 626 n.2, 111 S.Ct. at 1551 n.2; see

also Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160, 1167 (11th Cir. 2005).

       In this case, the district court committed no error in denying Dolomon’s

motion to suppress the firearm that he discarded during his flight from the police.

Dolomon was not seized for Fourth Amendment purposes when the police

unsuccessfully attempted to contain his truck at the traffic light. Even assuming, as

Dolomon contends, that the simple act of bumping a car’s front fender constitutes

the physical force necessary to effect a Fourth Amendment seizure, the district

court specifically credited Detective Gonzalez’s testimony that he never struck

Dolomon’s truck. While Dolomon challenges that credibility determination and

the factual finding that flowed from it, he has not demonstrated that the district

court clearly erred in crediting Detective Gonzalez’s testimony. Not only was that

testimony not “incredible as a matter of law” by describing events the witness

“physically could not have possibly observed or events that could not have

occurred under the laws of nature,” see United States v. Rivera, 775 F.2d 1559,

1561 (11th Cir. 1985) (quotation marks omitted), but it also went unrebutted at the

evidentiary hearing. 1




       1
        While Detective Philippe testified that he believed Detective Gonzalez “attempted” to
bump Dolomon’s truck during the attempted takedown, even he acknowledged that Detective
Gonzalez “never got a chance to” do so before Dolomon reversed and drove off.
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       Nor did Dolomon actually submit to the officers’ show of authority at the

traffic light; instead, he fled. The attempted seizure at the traffic stop was only an

attempted seizure. Dolomon was not actually seized by the police until he was

apprehended at the apartment complex following the car chase. See Hodari D.,

499 U.S. at 629, 111 S.Ct. at 1552 (holding that a fleeing defendant was not seized

until he was finally subdued by the police). And because he discarded the firearm

before he was actually seized, thereby abandoning it, the firearm was not

suppressible as the fruit of an unconstitutional seizure. See id. (upholding the

denial of a motion to suppress because “[t]he cocaine abandoned [by the

defendant] while he was running [from the police] was . . . not the fruit of a

seizure”); United States v. Tinoco, 304 F.3d 1088, 1091 (11th Cir. 2002) (holding

that defendants had no basis for challenging the seizure of cocaine because they

“effectively abandoned it” while being pursued by the Coast Guard); see also

United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (explaining that if a

defendant has abandoned property — meaning that he “voluntarily discarded, left

behind, or otherwise relinquished his interest” in it — he has no Fourth

Amendment basis for objecting to its later acquisition by the police) (quotation

marks omitted).2


       2
        Dolomon cites several decisions from other courts for the proposition that property
abandoned after an illegal seizure is subject to suppression under the Fourth Amendment. See
United States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991); United States v. Jones, 374 F. Supp.
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                                             IV.

       Dolomon next contends that the district court erred in admitting his 1998

conviction for firearm theft under Rule 404(b), because the government failed to

provide advance notice of its intent use that evidence, the evidence was not

relevant to an issue other than his character, and the evidence was unduly

prejudicial. Although Dolomon objected to the government’s attempt to introduce

that 1998 conviction during its cross-examination of his aunt, he did not do so on

any of the grounds he now asserts on appeal, nor did he raise any objections when

the government finally introduced that conviction during its rebuttal case. We

therefore review his claim only for plain error. See United States v. Chilcote, 724

F.2d 1498, 1503 (11th Cir. 1984); Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir.

1997) (“[A]n objection on specific grounds does not preserve the error for

purposes of appeal on other grounds.”). To satisfy that standard, Dolomon bears

the burden of showing (1) an error, (2) that is plain, (3) that affected his substantial

rights, and (4) that seriously undermined the fairness, integrity, or public reputation

of the judicial proceedings. United States v. Aguilar-Ibarra, 740 F.3d 587, 592

(11th Cir. 2014).




2d 143, 156 (D.D.C. 2005); United States v. Eaglin, 759 F. Supp. 25, 27 (D.D.C. 1991); United
States v. Foster, 566 F. Supp. 1403, 1412–13 (D.D.C. 1983). Whatever the merits of those
decisions might be, they are all distinguishable from this case because Dolomon abandoned the
firearm before he was seized for Fourth Amendment purposes.
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      Under Rule 404(b), evidence of other crimes or prior bad acts “is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with [that] character,” but it may be

admissible to prove, among other things, the defendant’s knowledge, absence of

mistake, or lack of accident. Fed. R. Evid. 404(b). To be admissible, the Rule

404(b) evidence must: (1) be relevant to an issue other than the defendant’s

character; (2) be proved sufficiently to permit a jury determination that the

defendant committed the act; and (3) possess probative value that it is not

substantially outweighed by the danger of unfair prejudice. United States v.

Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Only the first and third elements

are at issue here. Rule 404(b) also provides that upon “request by a defendant in a

criminal case, the prosecutor must: (A) provide reasonable notice of the general

nature of any such evidence that the prosecutor intends to offer at trial; and (B) do

so before trial — or during trial if the court, for good cause, excuses the lack of

pretrial notice.” Fed. R. Evid. 404(b)(2).

      Dolomon has not established plain error in the admission of his 1998

conviction for firearm theft, which had not been mentioned in the government’s

Rule 404(b) notice. First, because Dolomon did not request that the government

provide advance notice of any Rule 404(b) evidence that it intended to offer at

trial, the plain language of that rule did not require the government to disclose that


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it would seek to introduce his 1998 conviction. See id. (requiring pretrial notice

upon “request by a defendant in a criminal case”); see also Aquilar-Ibarra, 740

F.3d at 592 (explaining that an error cannot be plain if it is not obvious “under

controlling precedent or in view of the unequivocally clear words of a statute or

rule”) (quotation marks omitted). Second, evidence of the prior conviction for

firearm theft was relevant to establishing that Dolomon knowingly possessed the

firearm involved in this case, and did not have it because of accident or mistake, as

suggested by the trial testimony of his longtime girlfriend and his aunt. See United

States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (holding that evidence of a

defendant’s prior conviction for possessing a firearm was admissible under Rule

404(b) to show that he knowingly possessed a firearm on a later occasion);

Jernigan, 341 F.3d at 1281–82 (“[T]he caselaw in this and other circuits establishes

clearly the logical connection between a convicted felon’s knowing possession of a

firearm at one time and his knowledge that a firearm is present at a subsequent

time (or, put differently, that his possession at a subsequent time is not mistaken or

accidental).”).

      Finally, because the evidence was vital to countering Dolomon’s defense

that he did not knowingly possess the firearm at issue in this case (and, indeed, the

testimony that he apparently had never possessed a firearm), its probative value

was not obviously and substantially outweighed by the danger of unfair prejudice.


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See United States v. Pollack, 926 F.2d 1044, 1049 (11th Cir. 1991) (“[I]f the

evidence is essential to obtain a conviction, it may come in.”); see also United

States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (explaining that excluding

evidence on grounds of undue prejudice “is an extraordinary remedy which the

district court should invoke sparingly, and the balance should be struck in favor of

admissibility”). Even if some error did exist in the admission of Dolomon’s 1998

conviction for firearm theft, it certainly is not plain or obvious.

      AFFIRMED.




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