United States v. Dema Daiga , 483 F. App'x 797 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4434
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMA DAIGA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:09-cr-00628-MJG-1)
Submitted: May 22, 2012 Decided: June 12, 2012
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dema Daiga, Appellant Pro Se. Jefferson McClure Gray, Sujit
Raman, Assistant United States Attorneys, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dema Daiga, proceeding pro se, appeals his conviction
by jury and resulting sixty-five-month sentence on ten counts of
wire fraud, violating 18 U.S.C. § 1343 (2006), and on two counts
of aggravated identity theft, violating 18 U.S.C. § 1028A(a)(1)
& (c)(5) (2006). The convictions arise from Daiga’s
participation in a scheme that fraudulently obtained home
mortgage loans from a Maryland mortgage lending company,
Landmark Funding LLC (“Landmark”). Having carefully examined
the record in light of Daiga’s arguments on appeal, we affirm
the judgment of the district court.
Daiga first argues that the district court erred in
refusing to give the jury his proposed instruction pertaining to
Landmark’s willful blindness. The decision to give or refuse a
jury instruction is reviewed for abuse of discretion. United
States v. Green, 599 F.3d 360, 377 (4th Cir. 2010). The failure
to give a requested theory of defense instruction is reversible
error “only if the instruction (1) was correct, (2) was not
substantially covered by the court’s charge to the jury, and
(3) dealt with some point in the trial so important that the
failure to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” Id. at 378(quotation marks omitted). We have thoroughly examined the
record in light of Daiga’s assertions and conclude that the
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district court’s refusal to give the requested instruction was
not an abuse of its discretion.
Daiga next contends that the district court erred in
denying his motion to suppress certain statements he made to an
FBI agent prior to trial. The district court’s legal
conclusions underlying a suppression determination are reviewed
de novo, while its factual findings are reviewed for clear
error. United States v. Guijon-Ortiz, 660 F.3d 757, 762 (4th
Cir. 2011). “Because the district court denied the motion to
suppress, we construe the evidence in the light most favorable
to the government.” United States v. Perkins, 363 F.3d 317, 320
(4th Cir. 2004). We have reviewed the record and conclude that
the district court properly ruled that the statements were not
subject to suppression. Moreover, because Daiga did not pursue
any argument at trial that his statements were involuntary, the
district court properly declined to give a jury instruction to
that effect.
Daiga next contends that the evidence was insufficient
to support his convictions on each count of the indictment.
When a defendant challenges the sufficiency of the evidence, we
view the evidence and all reasonable inferences in favor of the
government and will uphold the jury’s verdict if it is supported
by “substantial evidence.” United States v. Cameron, 573 F.3d
179, 183 (4th Cir. 2009). “[S]ubstantial evidence is evidence
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that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (internal quotation marks omitted).
Our review of the record convinces us that substantial evidence
supported Daiga’s convictions on all counts.
Next, Daiga claims that he was prejudiced by virtue of
the fact that he was tried jointly with a codefendant. However,
severance is warranted only when “there is a serious risk that a
joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” United States v. Najjar,
300 F.3d 466, 473 (4th Cir. 2002) (quoting Zafiro v. United
States, 506 U.S. 534, 539 (1993)). Because the only complaint
Daiga makes about his joint trial is the presence of mildly
antagonistic defenses, he identifies no specific right that was
meaningfully compromised by his joint trial. See id. at 474.
Daiga also asserts that the government committed
prosecutorial misconduct by misrepresenting the evidence and
making improper remarks during closing arguments. Because Daiga
failed to object at trial, his claims are subject to plain error
review. United States v. Griffin, 818 F.2d 97, 99 (1st Cir.
1987). Our review of the record persuades us that none of
Daiga’s allegations constitute plain error.
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Daiga further contends that his trial counsel was
unconstitutionally ineffective. Having examined each of his
contentions, we conclude that any asserted ineffectiveness on
behalf of Daiga’s counsel does not conclusively appear from the
record. As a result, these claims are unreviewable on direct
appeal. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006); see also Stephens v. Branker, 570 F.3d 198, 209 (4th
Cir. 2009) (“Adverse effect cannot be presumed . . . from the
mere existence of a conflict of interest.” (quotation marks
omitted)). Daiga also raises several other claims with respect
to various aspects of his trial; we have reviewed each of them
and find them meritless.
Finally, Daiga asserts that the district court
committed reversible error at sentencing. We review a sentence
for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). In assessing
whether a sentencing court properly applied the Guidelines, the
district court’s factual findings are reviewed for clear error
and its legal conclusions are reviewed de novo. United States
v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008) (quotation marks
omitted). This court will “find clear error only if, on the
entire evidence, we are left with the definite and firm
conviction that a mistake has been committed.” United States v.
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Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation
marks and citation omitted).
In light of the evidence adduced against him, Daiga’s
first argument — that he deserved a mitigating role reduction
under U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.2 solely
by virtue of the fact that the district court ruled that he was
ineligible for a leadership role enhancement — is unpersuasive.
Daiga also contends that the district court erred in
calculating the relevant loss amount as exceeding $400,000 under
USSG § 2B1.1(b)(1)(H). In support of his claim, Daiga contends
that the district court failed to deduct the value of the
collateral that secured the loans when calculating the amount of
loss. See United States v. Baum, 974 F.2d 496, 499 (4th Cir.
1992) (holding that “the value of the security interest should
be deducted from the amount of the loan in determining ‘loss’
for purposes of enhancing their sentences”). But, regardless of
whether the district court properly calculated the loss, a
procedural error is harmless where (1) the appellate court has
“knowledge that the district court would have reached the same
result even if it had decided the guidelines issue the other
way,” and (2) “the sentence would be reasonable even if the
guidelines issue had been decided in the defendant’s favor.”
United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir.),
cert. denied, 132 S. Ct. 454 (2011) (internal quotation marks
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omitted). Here, the district court indicated that an upward
departure would have been justified if its loss calculation was
erroneous. Accordingly, we conclude that the sentencing court
would have reached an identical result regardless of any error
and that the resulting sentence was in any event reasonable. We
therefore decline to disturb Daiga’s sentence on this basis.
Accordingly, we affirm the judgment of the district
court. We deny Daiga’s pending motion to clarify the denial of
his release pending resolution of his appeal. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the material before the court and
argument will not aid the decisional process.
AFFIRMED
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