Daiga v. USA - 2255
Filing
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MEMORANDUM AND ORDER. Signed by Judge Marvin J. Garbis on 4/29/14. (c/m 4/30/14 mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
vs.
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DEMA DAIGA, et al.
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CIVIL ACTION NO. 13-978
(CRIMINAL NO. MJG-09-0628)
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MEMORANDUM AND ORDER
The Court has before it Petitioner's Motion to Vacate or
Set Aside Judgment and Sentence [Document 211], Petitioner's
Motion to Compel FBI Agent Bradford Lynch to Admit that He
Deliberately or Inadvertently Concealed Exculpatory Evidence
[Document 223], and the materials submitted relating thereto.
The Court finds that a hearing is unnecessary.
I.
BACKGROUND
On June 10, 2010, Petitioner was convicted by a jury on
ten Counts [1-3,5-7,9-12] of Wire Fraud [18 U.S.C. § 1343] and
two Counts [4 and 8] of Aggravated Identity Theft [18 U.S.C. §
1028A(a)(1) & (c)(5)].
On April 11, 2011, Petitioner was
sentenced to 37 months concurrent on each of the ten Wire Fraud
Counts, 24 months consecutive on the Aggravated Identity Theft
Count 4, and 4 months consecutive on the Aggravated Identity
Theft Count 8, for a total of 65 months of imprisonment.
Petitioner, although provided with appointed appellate
counsel, elected to proceed on appeal pro se.
On June 12, 2012,
the United States Court of Appeals for the Fourth Circuit
affirmed Petitioner's conviction.
United States v. Daiga, 483
F. App'x 797 (4th Cir. 2012), cert denied 133 S. Ct. 957 (2013).
II.
DISCUSSION
Petitioner seeks to have his conviction and sentence
vacated, contending that:
His trial counsel had a conflict of interest; and
A.
There was a variance between the evidence presented
at trial and the Indictment;
He was denied the effective assistance of counsel.
Variance
The Indictment set forth allegations that Petitioner was
engaged in a scheme with others to submit fraudulent loan
applications and appraisals to Landmark Funding LLC
("Landmark"), a mortgage lending company, resulting in loans
causing more than half a million dollars in losses to the
lender.
The Indictment did not expressly state that Daiga
agreed to pay, and did pay, a Landmark loan officer (Ms.
Perrault) for her assistance in obtaining loan approvals.
But,
since there was evidence to this effect, Petitioner contends
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there was a variance between the Indictment and the trial
evidence that violated his constitutional rights.
1.
Procedural Issue
The Government contends that Petitioner waived any variance
objection by failing to assert it in post-trial motions or on
direct appeal and by not showing cause for these failures.
See
United States v Frady, 456 U.S. 152, 167-68 (1982) ("[T]o obtain
collateral relief based on trial errors to which no
contemporaneous objection was made, a convicted defendant must
show both (1) 'cause' excusing his double procedural default,
and (2) 'actual prejudice' resulting from the errors of which he
complains.").
The Government may well be correct.
However, even if there
were no valid procedural objection, Petitioner would not be
entitled to the relief sought.
The Court will, therefore,
assume that there has been no waiver and that the appellate
court's conclusion that the conviction was supported by
substantial evidence does not bar Petitioner's variance claim.1
1
Cf. United States v. McDonald, 64 F. App'x 359, 361 (4th Cir.
2003) ("Because this court has decided the fatal variance
issues, and any remaining claims related to the indictment are
deemed frivolous, it is not debatable whether the claim properly
states the denial of a constitutional right. We therefore
dismiss this portion of the appeal."); Grene v. United States,
360 F.2d 585, 586 (5th Cir. 1966) ("This Court, however, has
already reviewed this case on its merits. We then held that
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2.
There Was No Cognizable Variance
As stated in United States v. Gold, 743 F.2d 800, 813 (11th
Cir. 1984):
a variance exists where the evidence at
trial proves facts different from those
alleged in the indictment, as opposed to
facts
which,
although
not
specifically
mentioned in the indictment, are entirely
consistent with its allegations.
The evidence of payments by Petitioner to Ms. Perrault is
not inconsistent with the allegations in the Indictment that
Daiga devised and executed a scheme and artifice to defraud
Landmark.
Petitioner concedes that he was aware of the Government's
intention to use the payments to Ms. Perrault to prove the wire
fraud allegations and, in fact, contends that he requested his
trial attorney subpoena Ms. Perrault to testify at trial.
[Document 211] at 17-18.
See
Moreover, Petitioner himself had told
the investigating agents of these payments and was – through
discovery - fully aware that the Government had evidence of
those payments for use at trial.
See [Document 219] at 17.
Therefore, there does not appear to be any basis upon which the
'there was ample evidence as to each of the appellants to
sustain the verdict of the jury and judgments of conviction.'
Thus the sufficiency of the proof, or any possibility of fatal
variance therein, has already been settled by the usual
appellate process." (internal citation omitted)).
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Government's use of the evidence in question at trial provides a
basis for § 2255 relief for Petitioner.
B.
Ineffective Assistance of Counsel
In order to prevail on a claim that counsel's
representation violated his Sixth Amendment right to effective
assistance of counsel, Petitioner must show (1) "that counsel's
representation fell below an objective standard of
reasonableness,"2 and (2) "that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984).
"A reasonable
probability is a probability sufficient to undermine confidence
in the outcome [of the proceedings]."
Id. at 694.
In this case, Petitioner bases his ineffective assistance
of counsel claim on:
1.
An alleged conflict of interest that interfered with
the effective representation of Petitioner; and
2.
Trial counsel's failures to:
a.
Subpoena certain "agents" of borrowers as
witnesses;
b.
Introduce certain bank records of Petitioner's;
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Thus overcoming a presumption that counsel's conduct (i. e.
representation of the criminal defendant) was reasonable. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
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c.
d.
Present testimony from Ms. Perrault to refute
the bribery allegations; and
e.
1.
Adequately cross-examine the Government's
appraisal expert and/or otherwise challenge the
Government's appraisal determinations;
Take various other actions.
Alleged Conflict of Interest
Petitioner's conflict of interest claim is based upon the
allegation that, prior to the trial in which Petitioner was
convicted, Petitioner's trial counsel intended to sue Landmark
on behalf of several victims of the scheme at issue.
[Document
211] at 11.
There is a factual dispute as to whether trial counsel had
this intention or took any action in regard to representation in
the civil case until after the trial in the criminal case was
concluded.
Trial counsel testified at Petitioner's sentencing
hearing that, weeks after the trial, he discussed with
Petitioner his intention to file suit on behalf of victims and
that he did not solicit any of the victims until July 8, 2010, a
month after the trial.
Petitioner, however, testified that,
prior to the trial, he was informed by his trial counsel of his
intent to sue Landmark.
Id.
The Court finds trial counsel's testimony more reliable
than Petitioner's.
However, even on Petitioner's version of the
facts, Petitioner would not be entitled to relief.
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Thus, the Court will assume, without finding that, as
alleged by Petitioner, trial counsel formed the intention, prior
to Petitioner's criminal trial, to solicit victims of the
fraudulent scheme to be his clients in a civil suit against
Landmark and notified Petitioner of this intent.
When notified
of this intent, Petitioner did not object and stated in his
Petition, "[trial counsel] never gave me any specifics.
I
couldn't imagine that his intentions could adversely affect me."
Id.
Petitioner has presented nothing to indicate that trial
counsel's alleged pretrial intent to sue Landmark – an intention
that Petitioner states was communicated to him prior to trial –
was in conflict with Petitioner's interests.
Indeed, a major
premise of Petitioner's defense was that Landmark was at fault
for making the loans at issue and that Petitioner was unaware of
any fraudulent scheme.
In the absence of any plausible theory
supporting a contention that there was no fraud at all, the best
contention (weak though it was) may have been that Landmark was
not a victim but a willing participant in the scheme.
In any event, Petitioner is not entitled to relief based
upon his conflict of interest contention.
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2.
"Agents" of Borrowers as Witnesses
Petitioner contends that trial counsel should have
subpoenaed and obtained testimony from certain "agents" who
supplied information about borrowers that was utilized in the
fraudulent scheme.
Petitioner further contends that trial
counsel should have sought to introduce evidence of emails that
demonstrated the loan applications were forwarded by the agents,
apparently from the borrowers.
Petitioner does not establish
that he provided trial counsel with information adequate to
enable counsel to locate these agents.
Nor does Petitioner
establish the exculpatory nature of emails sent by these agents.
Finally, Petitioner does not present a plausible version of
exculpatory testimony that would be forthcoming from these
agents, assuming the agents would have chosen to testify, rather
than to assert their Fifth Amendment rights against selfincrimination.
3.
Bank Records
Petitioner contends that trial counsel should have
introduced into evidence certain bank records of Petitioner's
that would have established that others profited from the
criminal transactions at issue.
Petitioner does not present a
reason to believe that these records would indicate that he did
not himself profit as well.
Moreover, at trial the Government
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conceded that persons other than Petitioner also profited from
the transactions at issue and that in some instances Petitioner
played a lesser role.
Petitioner does not explain how the bank records in
question – assuming they indicated that Petitioner did not
profit from the transactions to the extent claimed by the
Government - would have exculpated him.
4.
Appraisal Testimony
Petitioner contends that trial counsel was ineffective
because he did not adequately cross examine the Government's
valuation expert witnesses.
Petitioner further contends that
trial counsel should have subpoenaed other appraisers to testify
at trial and introduced evidence of comparable sales to justify
the home values.
Petitioner does not, however, present a
plausible basis to believe that such cross-examination or
additional evidence would negate the conclusion that most – if
not every one – of the valuations used as part of the fraudulent
scheme were grossly inflated.
Nor is there any basis for
concluding that such evidence – if available - would have
presented a plausible possibility, much less a likelihood, that
Petitioner would have been acquitted.
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5.
Ms. Perrault's Testimony
Petitioner contends that trial counsel should have obtained
trail testimony from Ms. Perrault (a Landmark employee), who was
an integral part of the fraudulent scheme.
She provided
information as to a prospective person whose identity was to be
used in the fraudulent scheme; specifically what level of income
and assets would need to be presented to create a loan
application in that person's name that would be accepted by
Landmark.
Ms. Perrault was paid thousands of dollars for providing
this information.
Petitioner contends that the payments to Ms.
Perrault could not have been bribes or compensation because
production of the list of conditions necessary to secure a loan
from Landmark is required by law.
Even if the payments to Ms.
Perrault were generous gratuities, rather than compensation, the
fact would remain that Petitioner obtained from Ms. Perrault
information needed to create fraudulent loan applications and
used the information to do so.
Petitioner does not present any plausible version of
testimony that Ms. Perrault – had she testified rather than
asserted her Fifth Amendment privilege - could have given that
would have been exculpatory.
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6.
Miscellaneous Contentions
In addition to the foregoing contentions, Petitioner
presents a plethora of miscellaneous contentions that the Court
has carefully considered and finds ineffective.
For example,
Petitioner contends that trial counsel failed to effectively
challenge (1) introduction of statements Petitioner made during
interviews with FBI agents (the "302 summaries") and (2) the
Government's attempt to conceal allegedly exculpatory evidence
in the possession of an FBI agent.
The Court finds none of
these to warrant discussion.
7.
Trial Counsel's Overall Performance
Any attorney in any trial, particularly a trial in which a
client is convicted, can be "second-guessed."
trial counsel was not perfect.
Petitioner's
However, the Court finds no
basis to conclude that any conceivable "improvement" in trial
counsel's performance would have presented a plausible chance,
much less a reasonable probability, that Petitioner would have
been acquitted.
Any attorney representing Petitioner in this case would,
like trial counsel, have been confronted with overwhelming
evidence of guilt and no plausible defense theory.
There is no
reasonable probability that the result would have been any
different, regardless of what trial counsel might have done.
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8.
Evidentiary Hearing
The Court finds the record more than sufficient to support
the instant decision.
The Court finds no need for an
evidentiary hearing.
C.
Motion to Compel Admission
Petitioner's Motion to Compel FBI Agent Bradford Lynch to
Admit that He Deliberately or Inadvertently Concealed
Exculpatory Evidence [Document 223] appears to be an informal
request for admissions.
procedural grounds.
The Motion can be denied purely on
However, inasmuch as Petitioner presents
contentions of misconduct on the part of a federal investigator,
the Court will – albeit briefly – address the matter.
The Court, having presided over the trial and, of course,
these post-conviction proceedings, finds no basis whatsoever for
a contention that the agent engaged in, or participated in, a
"fraud on the court" or "criminal" conduct.
Nor is Petitioner
justified in making such allegations against the Assistant
United States Attorney.
The bottom line is that, even if it were procedurally
possible to compel the agent to admit an allegation, the Court
would not compel the admission sought by Petitioner.
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III. CONCLUSION
For the foregoing reasons:
1.
Petitioner's Motion Vacate, or Set Aside Judgment
and Sentence [Document 211] is DENIED.
2.
Petitioner's Motion to Compel FBI Agent Bradford
Lynch to Admit that He Deliberately or Inadvertently
Concealed Exculpatory Evidence [Document 223] is
DENIED.
3.
This case shall be dismissed with prejudice.
4.
Judgment shall be entered by separate Order.
SO ORDERED, on Tuesday, April 29, 2014.
/s/__________
Marvin J. Garbis
United States District Judge
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