08-5010-cr
USA v. Warren (Dohou)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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 24th day of June, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
__________________________________________
United States of America,
Appellee,
v. 08-5010-cr
Euphrem Dohou,
Defendant-Appellant.
__________________________________________
FOR APPELLANT: Euphrem Dohou, pro se, Rochester, MN.
FOR APPELLEES: Peter A. Norling, Shannon C. Jones, Assistant
United States Attorneys, for Loretta E.
Lynch, United States Attorney for the Eastern
District of New York, New York, NY.
Appeal from the United States District Court for the Eastern
District of New York (Dearie, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Appellant Euphrem Dohou, pro se, appeals from an amended
judgment of conviction entered October 20, 2008, following a jury
trial, convicting him of conspiracy to distribute and possess
with intent to distribute 1,000 kilograms or more of a substance
containing marijuana. Dohou was sentenced to 10 years’
imprisonment, five years’ supervised release, and a $100 special
assessment. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the
issues on appeal.
On appeal, Dohou argues that (1) the evidence was
insufficient to convict him; (2) the Government presented the
case “in such an unfounded manner” that Dohou was prejudiced, and
it improperly vouched for witnesses in summation; (3) the
Government committed a violation under Brady v. Maryland, 373
U.S. 83 (1963), by failing to disclose evidence that was
materially favorable to the defense; (4) his right to a speedy
trial was violated; (5) the Government failed to satisfy its
burden of establishing proper venue; and (6) he received
ineffective assistance of trial counsel.
2
With respect to his sufficiency of the evidence claim, there
was ample evidence for a rational fact finder to determine that
Dohou was personally responsible for transporting at least four
shipments of marijuana, totaling 1,900 pounds of marijuana, and
delivering payment for an additional 500 pounds. See United
States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008). Accordingly,
this claim is without merit.
Dohou’s claim that the Government offered false evidence has
no basis in fact. The Government’s submission of documents and
records relating to co-conspirator Luis Jiminez’s trip with Dohou
went to corroborate Jiminez’s testimony about the trip and the
different stops they made and when. The Government never stated,
or even intimated, that Dohou was present with Jiminez prior to
them meeting up in New Jersey, and Dohou cannot demonstrate that
these documents were false in any way, or amounted to an improper
suggestion.
Similarly, any suggestion that the Government presented
false evidence with respect to co-conspirator Valerie Taite’s
testimony is rejected. To the extent Taite’s testimony on direct
and cross-examination was contradictory, in that she stated on
direct that she did not see Dohou in New York in connection with
a December 2003 trip, and then on cross-examination, that she did
see Dohou at that time, it was likely the product of confusion or
a misunderstanding on her part. Moreover,there is no basis to
conclude that the Government knew the testimony was false.
3
Likewise, the Government did not commit error in its
summation. See United States v. Smith, 778 F.2d 925, 929 (2d
Cir. 1985). The arguments raised in closing referred to the
testimony that was presented, and asked the jury to draw
reasonable inferences from the proffered evidence. Accordingly,
the Government’s closing argument was proper.
With respect to Dohou’s Brady violation claim, the logbook
that he contends the Government failed to turn over to him in
violation of Brady does not meet any of the requirements under
the Supreme Court’s test. See Strickler v. Greene, 527 U.S. 263,
281-82 (1999). First, the Government did not have possession of
the logbook. Second, it is not at all clear that the logbook was
material to Dohou, in that it cannot be said that there is a
reasonable probability that the results of the proceedings would
have been different had the logbook been introduced into evidence
as Dohou suggests, as Jiminez testified only that Dohou was with
him when he picked up the marijuana, not that Dohou was driving.
With respect to Dohou’s speedy trial claims, because trial
counsel failed to file a pre-trial motion to dismiss the
indictment under the Speedy Trial Act, this claim is waived. See
18 U.S.C. § 3162(a)(2) (failure of the defendant to move for
dismissal prior to trial shall constitute a waiver of the right
to dismissal under this section); see also United States v.
Patten, 826 F.2d 198, 199 (2d Cir. 1987) (per curiam) (finding
4
Speedy Trial Act argument waived under § 3162(a)(2)).
Regardless, even if we were to consider Dohou’s Speedy Trial Act
claim, a review of the record indicates that the time was
properly excluded between Dohou’s indictment and his trial, based
on numerous factors including: (1) the complexity of the case, in
the interest of justice; (2) the allowance for defendants to file
pre-trial motions; and (3) for plea negotiations to take place.
See 18 U.S.C. § 3161(h) (periods of delay that shall be excluded
in computing the time within which a trial must commence include
delay resulting from any pretrial motion); United States v. Pena,
793 F.2d 486, 488-90 (2d Cir. 1986).
Dohou’s argument that the Government failed to arraign him
on his superseding indictment, and he was prejudiced by the
lateness of the filing, is equally unavailing. With respect to
Dohou’s claim of delay between the jury verdict and his sentence,
he has not asserted a viable argument because the reasons for
delay were entirely attributable to Dohou, as he was unable to
work with multiple attorneys appointed to represent him.
Venue was proper in the Eastern District of New York because
there was testimony that Dohou’s co-defendant received money at
her apartment in Queens, New York, for the purposes of purchasing
marijuana as part of the conspiracy. See United States v. Royer,
549 F.3d 886, 896 (2d Cir. 2008).
5
Finally, this Court disfavors ineffective assistance claims
on direct appeal. See Massaro v. United States, 538 U.S. 500,
504 (2003); United States v. Wellington, 417 F.3d 284, 288 (2d
Cir. 2005). The judgment of conviction is affirmed without
prejudice to Dohou raising his ineffective assistance claims in a
28 U.S.C. § 2255 motion.
We have considered Appellant’s remaining arguments and find
them to be without merit.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6