United States v. Saeku ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4949
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SOMSAK SAEKU,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00304-BO-1)
Argued: January 28, 2011 Decided: April 28, 2011
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Michael McGuinness, Elizabethtown, North
Carolina, for Appellant. J. Gaston B. Williams, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2008, a jury in the Eastern District of North Carolina
convicted appellant Somsak Saeku of two wire fraud offenses, in
violation of 18 U.S.C. § 1343, plus a single offense of
interstate transportation of stolen property, in contravention
of 18 U.S.C. § 2314. After being sentenced to 108 months in
prison by the district court, Saeku has appealed, pursuing
multiple challenges to his convictions and sentence. Among his
contentions, Saeku maintains that the court erred in refusing to
dismiss the indictment for lack of a speedy trial, and that he
was denied a fair trial because of references to his race and
immigration status in the prosecutor’s closing argument. As
explained below, we affirm.
I.
A.
We begin by describing the circumstances underlying Saeku’s
fraud and interstate theft convictions, as adduced from the
evidence presented at trial. The factual recitation is set
forth in the light most favorable to the prosecution. See
United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2009).
Under the evidence, Saeku engaged a brazen theft and wire fraud
scheme in eastern North Carolina and elsewhere, spanning a
period of about five years, during which he shoplifted items in
2
bulk from retail stores and sold them on the Internet, and
thereafter made false stolen property claims to his homeowner’s
insurance carrier.
1.
In February 2002, an employee at a Barnes & Noble bookstore
in Raleigh observed Saeku shove multiple CDs into his pants
before leaving the store. Several mall security officers
apprehended Saeku after he reached his vehicle, and the officers
found the stolen CDs hidden behind a bush near where Saeku had
been walking. A subsequent search of Saeku’s vehicle revealed
CDs, DVDs, and clothing, which were seized by the officers.
After being given Miranda warnings, Saeku admitted that he had
stolen the goods seized from his car.
Three years later, in February 2005, at a Christian
bookstore in Raleigh, Saeku concealed merchandise in his
clothing, took it to his car, and returned to steal more. The
manager confronted Saeku and looked into the trunk of his
vehicle, where “at least” ten to fifteen CDs and DVDs bearing
the store’s stickers were found. J.A. 192. 1 The police were
summoned and, upon an officer’s instruction, Saeku produced
additional stolen merchandise from beneath his clothing. On
1
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
3
August 20, 2005, Saeku stole approximately six DVDs from the
Family Christian Bookstore in Raleigh, and then stole ten more
on July 4, 2006. In December 2005, an employee in the Borders
Bookstore café in Raleigh saw Saeku pick up approximately eight
audio books, pull the security stickers from them, and put the
audios in his pockets. On May 24, 2006, a barista at a
Starbucks in Raleigh saw Saeku conceal several CDs in a
newspaper and then leave the store.
On December 16, 2006, a loss prevention agent at a Best Buy
store in Raleigh, suspecting the theft of merchandise,
confronted Saeku and led him to the store’s loss prevention
room. There, Saeku pulled eighteen CDs from beneath his
clothing. The agent summoned police officers, who arrested
Saeku and searched his vehicle — where they found CDs and DVDs
“piled high.” J.A. 223. As Saeku was being transported to
jail, he spontaneously confessed to stealing some of the items.
On December 21, 2006, a floor manager at a Circuit City store in
Raleigh responded to a customer who had shouted that Saeku was
stealing. An employee stopped Saeku briefly, but allowed him to
leave. The manager of the store later viewed security tapes
that revealed Saeku taking several stolen DVDs to a vacant
register, where he deactivated the security stickers.
On January 18, 2007, an employee at an Office Depot in
Raleigh saw Saeku with a computer. On confirming that no one
4
had paid for the computer, the employee saw Saeku driving away
with it. The employee wrote down the license plate information
and contacted the authorities, and police officers then went to
Saeku’s house and spoke with him regarding the computer theft.
Saeku acknowledged that he had recently returned from Office
Depot and invited the officers into his kitchen. The officers
obtained consent to search Saeku’s house, where they found two
identical computers, one of which the Office Depot employee had
reported stolen. In Saeku’s residence, the officers also found
large quantities of unopened software, diapers, lawnmowers and
other lawn equipment, plus extensive mailing supplies.
2.
In January 2007, Detective Holly Rinaldo of the Raleigh
Police Department, upon receiving information that Saeku was
selling stolen goods over the Internet, secured and reviewed
several police reports involving Saeku. She identified twenty-
two reports involving theft-related arrests or criminal charges
against Saeku in the Raleigh area. As part of her
investigation, Rinaldo placed a tracking device on Saeku’s car
(with judicial authorization), after which she witnessed him
steal merchandise from at least two stores.
Between July 2006 and May 2007, police officers executed
four search warrants at Saeku’s four-bedroom residence.
Detective Rinaldo participated in the last of those searches,
5
where she noticed shelving made from PVC tubes in almost every
room of the residence. The shelving was stocked with well-
organized inventories of unopened CDs, DVDs, textbooks, and
audio books. Larger items, including power washers, lawn
equipment, and fans, were stored underneath the house. The
other three searches also revealed PVC shelving and similar
inventories. The PVC shelving was seized during the first
search, after which Saeku obtained more shelving and restocked
his inventories.
Saeku carried out his theft and stolen property scheme by
selling stolen goods on the Internet. The second search of his
residence revealed extensive records, including post office
receipts and records of items shipped, names and addresses of
recipients, shipment dates, and prices. Saeku’s records
identified the shipment of 7353 items in 2005, 7469 items in
2006, and 656 items from January through April 2007. Most of
these shipments were made to out-of-state addresses. For
example, during a two-week period in January 2006, Saeku’s
records showed 602 sales, more than 96 percent of which involved
shipments to addresses outside North Carolina. The
investigators also analyzed bank deposits made to Saeku’s
accounts and concluded that the deposits exceeded $331,000, and
had resulted from sales of stolen merchandise. The
6
investigators calculated the retail value of the items seized
from Saeku’s residence at more than $552,000.
On July 22, 2005, Saeku contacted Nationwide Insurance, his
homeowner’s insurer, and filed a claim seeking indemnity for
property that had been stolen from his home. In October 2005,
Saeku emailed to a Nationwide claims agent an inventory of items
that had purportedly been stolen, and also submitted a sworn
statement to Nationwide in support of his loss claim. Among the
items for which indemnification was sought were computer and
electronic equipment, furniture, CDs, DVDs, silverware, jewelry,
several suits of men’s clothing, and books. Saeku valued the
goods allegedly stolen from his residence at $157,162.30,
including $18,821 worth of newly released DVDs. Despite
requests from Nationwide, Saeku never provided proof of his
purchase of any of those items.
B.
The grand jury in the Eastern District of North Carolina
indicted Saeku on October 10, 2007, charging him with two counts
of wire fraud and a single charge of interstate transportation
of stolen property. Saeku first appeared and pleaded not guilty
in the district court on December 10, 2007. On December 17,
2007, the court entered a scheduling order requiring that
pretrial motions be filed by January 10, 2008, and scheduling
Saeku’s trial for February 2008. By subsequent orders, the
7
court granted Saeku’s two requests for extensions of time to
file pretrial motions. The second of those orders also
continued Saeku’s trial until the court’s “May 2008 term of
court.” Dist Ct. ECF No. 20. 2 Both of the extension orders
specified — pursuant to the so-called ends-of-justice exclusion
of the Speedy Trial Act — that the ends of justice justified the
periods of delay involved, and thus excluded those periods from
the seventy-day period within which the Act normally requires a
defendant to be brought to trial. 3
On March 13, 2008, Saeku filed several pretrial motions and
the court conducted a hearing on May 13, 2008. By order of June
16, 2008, the court ruled on the outstanding motions and
rescheduled the trial for June 30, 2008. On June 24, 2008, the
government moved for a trial continuance on the ground that two
of its “key” witnesses — an expert who would “substantially
shorten” the trial by “summariz[ing] a large volume of financial
information,” and the local law enforcement officer who had
coordinated the investigation of Saeku — were “scheduled to be
2
Citations herein to “Dist. Ct. ECF No. __” refer to the
docket entry numbers for documents filed in the district court
that are not included in the Joint Appendix.
3
The pertinent provisions of the Speedy Trial Act
establishing the seventy-day period and specifying the periods
of delay that may be excluded therefrom are identified and
discussed in Part III infra.
8
out of the area” until July 7, 2008. Dist. Ct. ECF No. 49, at
1. Before filing its continuance motion, the prosecutors had
contacted Saeku’s lawyer, “who stated that [Saeku] neither joins
nor concurs in [the] motion, but does not intend to file a
motion in opposition.” Id. at 2. By order of June 25, 2008
(the “Continuance Order”), the court granted the government’s
continuance motion, rescheduling the trial for the “September
term” of court. J.A. 97. The Continuance Order specified that
it was granted “for good cause shown” and included a handwritten
notation that the delay was to be excluded from any Speedy Trial
Act computations. Id. It did not, however, reference the ends-
of-justice exclusion or make any findings relating thereto. The
Continuance Order also did not specifically reference any of the
Act’s other exclusions from the seventy-day period.
On September 10, 2008, as the prospective jurors entered
the courtroom for jury selection, Saeku, proceeding pro se,
sought to address the trial court. 4 The court noted the presence
of the prospective jurors and asked Saeku, “[w]hat do you want
4
On September 4, 2008, Saeku sought court approval to
proceed pro se and represent himself at trial with the
assistance of standby counsel. On September 9, 2008, the
district court conducted a hearing on Saeku’s request for self-
representation and, by its oral ruling of the same day, granted
the motion. Saeku then indicated that he was “ready to proceed”
to trial the next day. J.A. 112. On appeal, Saeku is
represented by appointed counsel. In addition, we granted Saeku
leave to file a pro se brief.
9
to say, quickly?” J.A. 124. Saeku stated, without elaborating,
that he moved to “dismiss this indictment based on the violation
of speedy trial.” Id. The court took the matter under
advisement and jury selection was conducted. The trial
thereafter proceeded to its completion, and the court never
expressly addressed or disposed of Saeku’s oral motion to
dismiss. 5
C.
During the trial, both parties made mention of Saeku’s race
and immigration status. First, in conducting his pro se
examinations of witnesses and in addressing the jury, Saeku
referenced his race, language skills, and immigration status.
See, e.g., J.A. 140 (stating his national origin is Thailand);
J.A. 172 (“Although I speak a few languages, English is not my
native tongue.”); J.A. 277 (referring to his “green card” and
Thailand-issued passport). Second, the prosecutor began his
closing argument by responding to Saeku’s references to race and
immigration status, urging the jury to “find the defendant
5
The wire fraud offenses were tried on the theory that
Saeku had engaged in a scheme to defraud Nationwide Insurance by
way of two separate communications, the July 22, 2005 phone call
and the October 2005 email, in both of which he represented that
he was the rightful owner of the property purportedly stolen.
The interstate transportation of stolen property offense was
tried on the theory that Saeku’s interstate shipments of stolen
goods from Internet sales exceeded the $5000 jurisdictional
amount required under 18 U.S.C. § 2314.
10
guilty, whether [he is] a citizen or whether [he is] a visitor.”
J.A. 414. The prosecutor then reviewed and argued the evidence
introduced against Saeku. The prosecutor concluded by
admonishing the jury not to consider the personal attributes
that Saeku had previously mentioned:
I urge you to consider the evidence and the law
only, not whether Mr. Saeku looks a little different
than some other folks. He looks a lot like other
folks. . . . Don’t consider that he is a visitor. He
has the same constitutional protections as we all do
as citizens.
Don’t consider the way he speaks . . . .
[A]lthough he may speak with an accent and may not be
a lawyer, he understands and can process thoughts in
the English language, when he chooses to.
. . . .
Disregard the way he looks. Focus on the law and
the evidence, please. It’s a part of your duty as
jurors. It’s a part of the instructions. It’s a part
of why we have a Constitution that is revered by
nations of the world.
J.A. 419.
On September 11, 2008, the jury returned its verdict of
guilty against Saeku on all three offenses. On November 12,
2008, the district court sentenced Saeku to a prison term of 108
months, plus three years of supervised release, restitution, and
forfeiture. Saeku has filed a timely appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
11
II.
We review de novo a district court’s interpretation of “the
Speedy Trial Act, and review any of the court’s related factual
findings for clear error.” United States v. Rodriguez-Amaya,
521 F.3d 437, 440 (4th Cir. 2008) (internal quotation marks
omitted). On the other hand, we review for plain error an
appellate contention that was not preserved in the district
court. See Fed. R. Crim. Pro. 52(b); United States v. Olano,
507 U.S. 725, 731-32 (1993).
III.
As mentioned earlier, Saeku has raised multiple issues on
appeal, only two of which warrant a sustained discussion. More
specifically, Saeku contends that the grand jury was tainted by
references to his race and immigration status; that the trial
court erred in authorizing him to represent himself pro se; that
the court failed to conduct voir dire and improperly limited his
peremptory challenges; that the court erred in not dismissing
the indictment for violations of his speedy trial rights; that
the court erred by excluding him from bench conferences and in
not permitting him to deliver exhibits to witnesses; that the
court erred in denying his motion to suppress evidence seized
during a search of his residence; that the court intervened
excessively to limit his examination of witnesses; that the
12
court erred in admitting opinion testimony; that the court erred
in failing to exclude evidence obtained by the prosecutors in
violation of his Miranda rights; that the charges against him
violated the Double Jeopardy Clause of the Fifth Amendment; that
the evidence was insufficient to support any of his three
convictions; that the court erred in conducting hearings outside
his presence; that the court erred in its instructions to the
jury; that the two wire fraud charges were fatally
multiplicious; that the prosecutor’s closing argument improperly
referenced Saeku’s race and immigration status; that the
sentence imposed by the court was unreasonable; that the court
erred in ordering forfeiture; and that cumulative errors
deprived him of his Fifth Amendment right to due process.
Put succinctly, only the speedy trial issue and the
assertions regarding the propriety of the prosecutor’s closing
argument warrant further discussion. We have carefully
considered each of Saeku’s other contentions of error and are
satisfied to reject all of them for lack of merit. That said,
we turn to the speedy trial and closing argument contentions.
A.
Under the Speedy Trial Act, the district court was obliged
to “commence” Saeku’s trial “within seventy days . . . from the
date [he] has appeared before a judicial officer of the court.”
18 U.S.C. § 3161(c)(1). Pursuant to 18 U.S.C. § 3161(h),
13
certain periods of delay are excluded from the seventy-day
period — that is, they do not count against the statutory
“speedy-trial clock.” A court’s failure to commence a trial
within the seventy-day period can result in a dismissal if the
defendant so moves “prior to trial.” Id. § 3161(a)(2). 6
On appeal, Saeku contends that the delay resulting from the
Continuance Order — the seventy days from June 25 to September
4, 2008 — should not be excluded from the speedy-trial clock. 7
If that seventy-day delay is excluded, Saeku does not dispute
that his trial began in a timely manner, within the statutory
seventy-day period. Two of the Speedy Trial Act’s exclusions
are pertinent in evaluating this contention. First, “[a]ny
period of delay resulting from the absence or unavailability of
. . . an essential witness” is excluded. 18 U.S.C.
6
We are also content to reject the government’s assertion
that, under our precedent, Saeku’s oral motion to dismiss on
September 10, 2008, was untimely because it was made after “the
beginning of the court day when voir dire begins.” Br. of
Appellee 37 (emphasis added). The government misconstrues our
precedent in that respect. See United States v. A-A-A Elec.
Co., 788 F.2d 242, 246 (4th Cir. 1986) (ruling that, for
purposes of the Speedy Trial Act, “trial commence[s] at the time
of voir dire” (emphasis added)). Instead of deeming the oral
motion to dismiss untimely, however, we assume that the motion
was timely made, but reject it for lack of merit.
7
The period from September 4, 2008, to September 9, 2008,
is excluded from the speedy-trial clock on account of the
pendency of Saeku’s motion to represent himself pro se, filed on
September 4, 2008. See 18 U.S.C. § 3161(h)(1)(D).
14
§ 3161(h)(3)(A). Second, “[a]ny period of delay resulting from
a continuance granted by any judge . . . , if the judge granted
such continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best interest
of the public and the defendant in a speedy trial” is also
excluded. Id. § 3161(h)(7)(A).
Saeku is correct that the delay occasioned by the
Continuance Order cannot be excluded under the ends-of-justice
exclusion; the district court did not make any “express
findings,” and it could not do so on remand. See Zedner v.
United States, 547 U.S. 489, 506-07 (2006). We are convinced,
however, that the delay attributable to the Continuance Order
was properly excluded under the essential-witness exclusion,
which provides “ample independent statutory authority for
excluding [a period] of delay from the speedy trial calculation”
where the ends-of-justice exclusion does not apply. United
States v. Allen, 235 F.3d 482, 491 (10th Cir. 2000). A trial
court’s award of a continuance under the essential-witness
exclusion need not be accompanied by “specific findings that the
ends of justice require the continuance.” United States v.
Bourne, 743 F.2d 1026, 1031 (4th Cir. 1984) (per curiam).
Similarly, a trial continuance is not necessarily faulty simply
because “the district court fail[ed], in granting the
continuance, to identify” the specific exclusion being relied
15
upon. United States v. Keith, 42 F.3d 234, 239-40 (4th Cir.
1994).
The threshold issue on this point is whether the
Continuance Order is somehow flawed because it did not expressly
find that the two government witnesses were both essential and
unavailable. Put succinctly, however, the essential-witness
exclusion does not require any such findings. 8 See United States
v. Garcia, 995 F.2d 556, 560 (5th Cir. 1993) (excluding period
of continuance where court “impliedly found” witness essential);
United States v. Barragan, 793 F.2d 1255, 1258 (11th Cir. 1986)
(excluding period of continuance where court “never explicitly
ruled on” continuance motion, but “in effect granted the
requested continuance” on basis of essential-witness exclusion).
In adopting the Speedy Trial Act, Congress knew how to require
express findings by a district court. For example, a
continuance granted pursuant to the ends-of-justice exclusion is
excludable only if “the court sets forth, in the record of the
case, either orally in writing, its reasons for finding that the
ends of justice” justify the continuance. 18 U.S.C.
8
Notwithstanding our ruling here, we observe that the
better practice would be for a continuance request to expressly
rely on the essential-witness exclusion, and for the court, in
granting such a continuance, to expressly find that the
requirements of that exclusion have been satisfied.
16
§ 3161(h)(7)(A). By contrast, the essential-witness exclusion
contains no such requirement. Moreover, the Continuance Order,
by explicitly finding that the continuance was granted “for good
cause shown,” J.A. 97, incorporated the supporting facts of the
underlying motion. See United States v. Bruckman, 874 F.2d 57,
61-62 (1st Cir. 1989). The government’s continuance motion, in
turn, clearly explained that two “key” witnesses were
unavailable.
Turning to the substance of the essential-witness
exclusion, its applicability in these circumstances depends on
two inquiries: first, whether at least one of the witnesses was
“essential”; and second, whether the exercise of due diligence
would have produced each essential witness for trial. We have
addressed the second inquiry in our prior decisions, and so we
begin there. A witness is “unavailable” where “his whereabouts
are known but his presence for trial cannot be obtained by due
diligence.” 18 U.S.C. § 3161(h)(3)(B). “Due diligence”
requires merely “reasonable efforts,” not “maximum feasible
diligence.” United States v. Patterson, 277 F.3d 709, 711-12
(4th Cir. 2002). The unavailability bar is not a high one; in
one case, a witness’s prior wedding and honeymoon plans rendered
him unavailable. See United States v. Meyer, 803 F.2d 246, 247-
48 (6th Cir. 1986). Here, two witnesses were “scheduled to be
out of the area,” and the record provides no basis for upsetting
17
the court’s implicit determination that it would have been
unreasonable to compel them to return for trial as scheduled.
The continuance motion thus provided a sufficient basis for
the district court to find that the two witnesses were
unavailable. First, prior travel plans can render a witness
unavailable, and Saeku never challenged the veracity or good
faith of the representations made in the continuance motion by
the United States Attorney. Second, to the extent the
continuance motion lacks detail, relief is unwarranted. Saeku,
who was then represented by counsel, contributed to any lack of
detail by not expressly opposing the motion, depriving the
prosecution of any opportunity to further support its request.
See Keith, 42 F.3d at 239-40 (discussing what court called
“sandbagging” problem, and observing that defendant cannot seek
dismissal on basis of continuance to which he “affirmatively
consent[ed],” and where record supports continuance).
With respect to the first inquiry — whether the two
witnesses mentioned in the continuance motion were “essential” —
the district court similarly possessed a sufficient record to
deem them so. Although the Act does not define an “essential
witness,” the accompanying Senate Judiciary Committee report
explains that the term refers to a witness “so essential to the
proceeding that continuation without the witness would either be
impossible or would likely result in a miscarriage of justice,”
18
giving as an example “a chemist who has identified narcotics in
the defendant’s possession.” S. Rep. No. 93-1021, at 37 (1974).
In addressing this point, we benefit from the guidance of
several of our sister circuits, none of which have required the
witness’s testimony to be so important that conviction could not
be obtained in its absence. See United States v. Miles, 290
F.3d 1341, 1350 (11th Cir. 2002) (“A witness may be deemed
essential for the purposes of the [Speedy Trial] Act, even
though the government could obtain a conviction without his
testimony.”); Allen, 235 F.3d at 491; United States v. Hamilton,
46 F.3d 271, 276-77 (3d Cir. 1995) (same); United States v.
McNeil, 911 F.2d 768, 773 (D.C. Cir. 1990) (similar); United
States v. Eagle Hawk, 815 F.2d 1213, 1218 (8th Cir. 1987)
(similar); United States v. Tedesco, 726 F.2d 1216, 1222 (7th
Cir. 1984) (same); United States v. Marrero, 705 F.2d 652, 656
(2d Cir. 1983) (similar).
A well-crafted formulation of the applicable rule is found
in the Eighth Circuit’s Eagle Hawk decision, which explained
that
[w]here a witness is unquestionably important, and the
government has a good faith belief that it will use
that witness’s testimony at trial, that witness may be
deemed “essential” for purposes of the Speedy Trial
Act. If, however, the witness’s anticipated testimony
will be merely cumulative, or substantially
irrelevant, that witness should be deemed non-
essential.
19
815 F.2d at 1218. The assessment of a witness’s importance
before the witness testifies is necessarily a difficult
endeavor, however, and a reviewing court should not “second-
guess” the trial court’s determination “based upon hindsight.”
McNeil, 911 F.2d at 773. Whether a witness is essential “is a
quintessential question of fact.” Allen, 235 F.3d at 491.
Similarly, questions of “whether ‘a miscarriage of justice’
‘would likely result’” implicate the “sound discretion of the
district judge.” Marrero, 705 F.2d at 657. In this vein, we
have previously affirmed a trial court’s determination that a
witness was essential, deferring to its superior familiarity
with the anticipated testimony and its importance. See Bourne,
743 F.2d at 1030-31.
Applying these principles here, the district court
possessed a sufficient basis to deem either of the two witnesses
essential. The summary witness’s testimony was expected to
break down a vast quantity of records and financial information
into usable statistics and significantly circumscribe the trial,
thereby enhancing judicial economy and reducing the likelihood
that jurors might be confused by voluminous evidence. Cf.
United States v. Wainright, 351 F.3d 816, 820-21 (8th Cir. 2003)
(affirming court’s decision to admit summary evidence where
defendant charged with interstate transportation of stolen
property). Similarly, the other witness, the primary
20
investigator, would normally be expected to provide important
testimony. This officer oversaw many aspects of the
investigation and had personal knowledge of facts relating to
Saeku’s fraud scheme. Notably, Saeku nowhere suggests that the
evidence of these witnesses could have been obtained some other
way, cf. Bourne, 743 F.2d at 1030-31, or that the prosecutor did
not have a good-faith belief that the government would need
these witnesses at trial. Indeed, the descriptions of
anticipated testimony in the continuance motion were
sufficiently detailed — the motion precisely (if briefly)
described the anticipated testimony of both witnesses and how
that evidence related to the charges. As such, the prosecution
“show[ed] how the testimony that it expect[ed] a particular
witness will give fits within the overall framework of its case,
and why that witness’s testimony would be not only useful, but
essential.” McNeil, 911 F.2d at 774. 9
9
Although the continuance motion sought a delay “until
after July 14, 2008,” the Continuance Order continued the case
until September 2008. Dist. Ct. ECF No. 49, at 2. Nonetheless,
the entire period of the continuance — and not just the period
the witnesses were unavailable — is excluded from the speedy-
trial clock because the statutory phrase “resulting from”
mandates the exclusion of all time granted pursuant to the
continuance. See Miles, 290 F.3d at 1350-51.
21
B.
Finally, we address the prosecutor’s entreaty to the jury
in his closing argument that it should not consider Saeku’s race
or immigration status. To prevail on this unpreserved
contention of error, Saeku must meet the plain error standard of
United States v. Olano, which requires the presence of (1) an
error, that is (2) plain, and (3) affects the defendant’s
“substantial rights.” 507 U.S. 725, 732 (1993). Even then, we
will grant relief only if we determine, in our discretion, that
“the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks and alterations omitted). Indeed, relief under the plain
error test “demand[s] strenuous exertion.” United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004).
The established principles governing the propriety of
challenged prosecutorial remarks to a jury are likewise
demanding. To prevail, a defendant “must show [1] that the
remarks were improper and [2] that they prejudicially affected
the defendant’s substantial rights so as to deprive [him] of a
fair trial.” United States v. Adam, 70 F.3d 776, 780 (4th Cir.
1995) (internal quotation marks omitted). To properly gauge
whether a defendant suffered such prejudice, we must examine
several factors, including the following:
22
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters.
Id. (internal citations omitted). Importantly, we also evaluate
“(5) whether the prosecutor’s remarks were invited by improper
conduct of defense counsel and (6) whether curative instructions
were given to the jury.” United States v. Wilson, 135 F.3d 291,
299 (4th Cir. 1998) (internal quotation marks omitted).
To begin with, it is not at all clear that the remarks
challenged by Saeku were improper. In United States v. Alzanki,
the First Circuit relied in part on a prosecutor’s plea in
closing argument that the jury not consider the defendant’s
ethnicity and nationality to conclude that the risk of prejudice
resulting from the jury’s knowledge of those aspects of the
defendant’s background had, in fact, been ameliorated. See 54
F.3d 994, 1007 (1st Cir. 1995). As in Alzanki, the prosecutor’s
remarks in this case were not inflammatory and did not appeal to
prejudice; rather, they took the form of a plea not to consider
irrelevant or impermissible grounds. Moreover, there is no
indication that the prosecutor, by isolated references in his
lengthy closing argument, sought to invite adverse attention to
Saeku’s race or immigration status; on the contrary, the
23
prosecutor’s references were occasioned by Saeku’s previous
injection of those issues into the trial.
Nevertheless, any discussion of a defendant’s race or
immigration status before a criminal jury is a sensitive issue.
Such references — even this prosecutor’s sincere plea for the
jury not to consider irrelevant matters that Saeku himself first
brought up — are not to be encouraged. In United States v.
Young, the Supreme Court addressed the “all too common
occurrence in criminal trials” where “the defense counsel argues
improperly, provoking the prosecutor to respond in kind, and the
trial judge takes no corrective action” — warning that
“[c]learly two improper arguments . . . do not make for a right
result.” 470 U.S. 1, 11 (1985). As the Court explained,
“[p]lainly, the better remedy” is for the trial court “to deal
with the [defense counsel’s] improper argument . . . promptly
and thus blunt the need for the prosecutor to respond,” or for
the prosecutor to “object[] to the . . . improper statements
with a request that the court give a timely warning and curative
instruction to the jury.” Id. at 13. The Court also pointed
out that, “[a]t the very least,” the prosecutor could have
sought a bench conference out of the jury’s presence to suggest
an appropriate curative instruction. Id. at 13-14. Heeding
Young, there were better ways to address Saeku’s references to
his race and immigration status.
24
Ultimately, however, we need not definitively resolve the
propriety of the prosecutor’s remarks, because they were not
prejudicial. The evidence of Saeku’s guilt was overwhelming,
and the challenged statements were few in number and made in
passing during a protracted closing argument. Additionally, the
prosecutor merely cautioned the jury that it was sworn to render
its verdict solely on the facts and the law, and did so only
after Saeku had injected his race and immigration status into
the trial. Cf. United States v. Roach, 502 F.3d 425, 435-36
(6th Cir. 2007) (finding no reversible error where prosecutor’s
closing argument referred to race and immigration status of
victims, because remarks, although “condemn[able],” were
isolated, did not encourage jury to render verdict on improper
ground, and were in response to defense counsel’s own “race-
baiting”). In sum, the failure to follow the better practices
outlined in Young is not necessarily error, and, even assuming
error, Saeku clearly suffered no prejudice.
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
25