    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.




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     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.
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     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


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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).




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     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




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