UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4569

OLADAYO OLADOKUN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-96-285)

Submitted: September 22, 1998

Decided: November 19, 1998

Before ERVIN and MOTZ, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Arcangelo M. Tuminelli, Baltimore, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Jan Paul Miller, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Oladayo Oladokun appeals from the district court judgment entered
pursuant to a jury verdict finding him guilty of bank fraud in violation
of 18 U.S.C. § 1344 (1994), and being a felon in possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1) (1994). Finding no merit to
his claims, we affirm.

The evidence at Oladokun's trial was that from September 1994
through February 1996 he engaged in a variety of bank fraud activi-
ties. One scheme involved obtaining numerous false identifications
for Sean Dayton, having Dayton open bank accounts under these ficti-
tious names, and then depositing in the accounts counterfeit checks
made payable to Dayton's fictitious identities. Dayton would then
withdraw money from the accounts and split the proceeds with Ola-
dokun. In another scheme, Oladokun made out checks to fictitious
individuals, provided accomplices with false identifications matching
those fictitious persons, and then had the accomplices cash the
checks. Oladokun also convinced accomplices to deposit and later
cash checks drawn on accounts that he opened under fictitious names
before the bank could ascertain that the checks were drawn on phony
bank accounts. In the course of investigating these fraudulent activi-
ties police obtained a search warrant to search Oladokun's apartment.
In the apartment police found a gray canvas bag which contained fake
identifications, blank counterfeit checks, and a loaded semiautomatic
handgun.

Oladokun first claims that the district court erred in denying his
motion to sever the count charging him with being a felon in posses-
sion of a handgun from the eight counts charging him with bank
fraud. While Fed. R. Crim. P. 14 allows for severance if a defendant
will suffer undue prejudice from joinder, the decision to sever is
within the discretion of the trial judge and will not be reversed absent
an abuse of discretion. See United States v. Brooks, 957 F.2d 1138,
1145 (4th Cir. 1992). Refusal to sever constitutes an abuse of discre-
tion only when the denial of severance deprives the defendant of a fair
trial and results in a miscarriage of justice. See United States v.
Chorman, 910 F.2d 102, 114 (4th Cir. 1990).

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We find no abuse of discretion in the district court's decision to
deny Oladokun's severance motion because he waited until the fifth
day of trial to make the motion. Oladokun does not deny that he had
sufficient information that would have enabled him to make a sever-
ance motion prior to trial based on his claim that the gun charge was
not sufficiently related to the bank fraud charges to permit joinder of
the offenses. See United States v. Ferguson, 778 F.2d 1017, 1020 (4th
Cir. 1985). Instead, he contends that the government failed to present
sufficient evidence supporting joinder of the counts under the stan-
dard set forth in Fed. R. Crim. P. 8(a).1 However, on the first day of
trial the government made it clear that it intended to introduce evi-
dence that Oladokun threatened one of his bank fraud accomplices
with a gun. Oladokun's success in having this evidence excluded does
not excuse his failure to move for severance earlier in the proceeding.
In addition, the evidence presented in support of Oladokun's convic-
tions was overwhelming and Oladokun has not met his burden of
making a particularized showing of prejudice from the denial of sev-
erance. See United States v. Clark, 928 F.2d 639, 645 (4th Cir. 1991).
Accordingly, we find no abuse of discretion in the district court's
denial of his motion for severance.

Prior to trial, bank teller Kim Powell identified Oladokun from an
array of photographs Special Agent Randy Walker presented to her.
At trial, Oladokun called Agent Walker as a witness to testify as to
the circumstances surrounding Powell's out-of-court identification.2
Oladokun asserts that the district court improperly prevented him
from using leading questions while examining Agent Walker because
Walker was a hostile witness. In addition, he alleges that the district
court committed further error in allowing the government to use lead-
ing questions when cross-examining Agent Walker.
_________________________________________________________________

1 Rule 8(a) provides that offenses may be charged in the same indict-
ment "if the offenses charged . . . are of the same or similar character or
are based on the same act or transaction or on two or more acts or trans-
actions connected together or constituting parts of a common scheme or
plan."

2 The district court denied Oladokun's pre-trial motion to suppress the
identification.

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The trial court is vested with broad discretion to control the mode
of interrogation and the presentation of evidence. United States v.
Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988). Moreover, "the extent
to which the use of leading questions may be indulged or limited is
a matter primarily for the discretion of the trial judge and an appellate
court will intervene only if there is a clear abuse of discretion."
United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963). The dis-
trict court gave Oladokun substantial leeway to ask Agent Walker
leading questions in an effort to elicit testimony about any gestures
or statements that may have influenced Powell's out-of-court identifi-
cation. We find no error in the district court's refusal to give Ola-
dokun the unfettered right to ask leading questions merely because
Agent Walker participated in the investigation of Oladokun's fraudu-
lent activities. See Fed. R. Evid. 611(c). 3 The district court properly
exercised its discretion in taking each question on a question by ques-
tion basis, and in limiting Oladokun's use of leading questions to
argue facts that were not in evidence. Finally, because Oladokun cal-
led Agent Walker as a defense witness, we find no abuse of discretion
in the district court's decision to permit the government to ask leading
questions on cross-examination. See id.

Oladokun's final claim is that the district court erred in calculating
the amount of loss attributable to him for sentencing purposes. Specif-
ically, Oladokun asserts that the district court should not have relied
on Sean Dayton's testimony from which the government calculated
$360,000 of loss due to fraud.4 We review the district court's calcula-
_________________________________________________________________
3 Fed. R. Evid. 611(c) provides:

          Leading questions should not be used on the direct examination
          of a witness except as may be necessary to develop the witness'
          testimony. Ordinarily leading questions should be permitted on
          cross-examination. When a party calls a hostile witness, an
          adverse party, or a witness identified with an adverse party,
          interrogation may be by leading questions. (emphasis added).

The Advisory Committee Notes to the 1972 Proposed Rules reflect that
the rule was deliberately drafted using suggestive rather than mandatory
language in light of the broad discretion trial judges are afforded in this
area.
4 The district court ultimately found that the appropriate loss figure
was in excess of $500,000. However, on appeal Oladokun only chal-
lenges the $360,000 derived from Dayton's testimony.

                     4
tion of fraud loss for clear error. See United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989). Dayton testified at trial that he opened
twenty to thirty fraudulent accounts for Oladokun, and that each
account generated approximately $8000 in fraudulently obtained
funds. Dayton also testified that while working with Oladokun he
cashed between 100 to 150 counterfeit checks for approximately
$2000 each. Oladokun asserts that the district court should not have
credited Dayton's testimony as recounted by Special Agent Frank
Bartlett at sentencing, and further that the government failed to verify
the loss figures derived from Dayton's testimony. However, a district
court is not required to precisely calculate the loss attributable to
fraud. Rather, it need only make a reasonable estimate, given avail-
able information. United States Sentencing Guidelines Manual
§ 2F1.1, comment. (n.8) (1997). Further, it is not within the province
of this court to second guess the district court's decision to credit
Dayton's testimony. Because his testimony supported holding Ola-
dokun responsible for $360,000 of loss, we can not say that the
court's findings were clearly erroneous. Finally, the record belies Ola-
dokun's claim that the district court failed to make specific findings
in support of its loss calculations.

We grant Oladakun's motion to file a pro se supplemental brief but
find no merit to the claim raised in his brief. Accordingly, we affirm
Oladokun's conviction and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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