US v. Somsak Saeku

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-00304-BO-1 Copies to all parties and the district court/agency. [998577880].. [08-4949]

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Document: 143

Date Filed: 04/28/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.
prison

by

the

After being sentenced to 108 months in

district

court,

Saeku

has

appealed,

multiple challenges to his convictions and sentence.

pursuing
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

evidence presented
forth

in

the

light

theft

at

convictions,

trial.

most

The

favorable

as

adduced

from

factual

recitation

to

prosecution.

the

is

the
set
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

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bulk

from

retail

Date Filed: 04/28/2011

stores

and

sold

Page: 3 of 25

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

before

observed

leaving

the

Saeku

shove

store.

multiple

Several

CDs

mall

into

his

security

pants

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.
CDs,

DVDs,

and

A subsequent search of Saeku’s vehicle revealed
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
bookstore

years
in

later,

in

Raleigh,

February

a

Christian
his

clothing, took it to his car, and returned to steal more.

The

manager

his

Saeku

and

concealed

at

in

confronted

Saeku

2005,

looked

merchandise

into

the

trunk

of

vehicle, where “at least” ten to fifteen CDs and DVDs bearing
the store’s stickers were found.

J.A. 192. 1

summoned

instruction,

and,

upon

an

officer’s

The police were
Saeku

produced

additional stolen merchandise from beneath his clothing.

1

On

Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

3

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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

Starbucks

his
in

pockets.
Raleigh

On

saw

May

24,

Saeku

2006,

conceal

a

barista

several

CDs

at

a

in

a

newspaper and then leave the store.
On December 16, 2006, a loss prevention agent at a Best Buy
store

in

confronted
room.

Raleigh,

suspecting

Saeku

led

and

him

There,

pulled

The

agent

to

summoned

clothing.

Saeku

the

theft

the

eighteen
police

of

store’s
CDs

merchandise,

loss

from

officers,

prevention

beneath
who

his

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.
leave.
that

An employee stopped Saeku briefly, but allowed him to
The manager of the store later viewed security tapes

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.
4

On confirming that no one

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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

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where she noticed shelving made from PVC tubes in almost every
room of the residence.
organized
audio

inventories

books.

equipment,
other

of

Larger

and

The shelving was stocked with wellunopened

items,

CDs,

including

were

stored

searches

three

fans,

also

revealed

inventories.

The

PVC

shelving

DVDs,
power

underneath
PVC

was

textbooks,

and

washers,

lawn

the

house.

shelving

seized

and

during

The

similar

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.
residence

revealed

extensive

The second search of his

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.
these

shipments

example,

during

were
a

made

to

two-week

out-of-state

period

in

Most of

addresses.

January

2006,

For
Saeku’s

records showed 602 sales, more than 96 percent of which involved
shipments

to

investigators

addresses
also

outside

analyzed

bank

North

Carolina.

deposits

made

to

The
Saeku’s

accounts and concluded that the deposits exceeded $331,000, and
had

resulted

from

sales

of

6

stolen

merchandise.

The

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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.
goods

allegedly

including
requests

stolen

$18,821
from

from

his

residence

of

newly

released

worth

Nationwide,

Saeku

never

Saeku valued the
at

$157,162.30,

DVDs.

provided

proof

Despite
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.
2007,

the

court

entered

a

scheduling

order

On December 17,
requiring

that

pretrial motions be filed by January 10, 2008, and scheduling
Saeku’s trial

for

February

2008.
7

By

subsequent

orders,

the

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court granted Saeku’s two requests for extensions of time to
file

pretrial

continued
court.”

motions.

Saeku’s

The

trial

second

until

the

Dist Ct. ECF No. 20. 2

of

court’s

those
“May

orders
2008

also

term

of

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.
16,

2008,

the

court

ruled

on

the

By order of June

outstanding

rescheduled the trial for June 30, 2008.

motions

and

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

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out of the area” until July 7, 2008.
1.

Page: 9 of 25

Dist. Ct. ECF No. 49, at

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,

sought to address the trial court. 4

Saeku,

proceeding

pro

se,

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 selfrepresentation 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

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to say, quickly?”

Date Filed: 04/28/2011

J.A. 124.

Page: 10 of 25

Saeku stated, without elaborating,

that he moved to “dismiss this indictment based on the violation
of

speedy

trial.”

advisement

and

thereafter

proceeded

expressly

jury

addressed

Id.

The

court

the

matter

under

was

conducted.

The

trial

completion,

and

court

never

selection
to

its

or

disposed

of

took

Saeku’s

the
oral

motion

to

dismiss. 5
C.
During the trial, both parties made mention of Saeku’s race
and

immigration

examinations

of

status.
witnesses

First,
and

in

in

conducting

addressing

his

the

pro

jury,

se

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

5

jury

to

“find

the

defendant

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

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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

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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.”
521

F.3d

437,

omitted).
appellate
court.

440

(4th

United States v. Rodriguez-Amaya,

Cir.

2008)

(internal

quotation

marks

On the other hand, we review for plain error an
contention

that

was

not

preserved

in

the

district

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

excessively

to

of
limit

his
his

residence;

that

examination
12

of

the

court

witnesses;

intervened
that

the

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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
13

to

18

U.S.C.

§ 3161(h),

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certain
period

Document: 143

periods
—

that

Date Filed: 04/28/2011

of

delay

is,

they

“speedy-trial clock.”

are
do

Page: 14 of 25

excluded

not

count

from

the

against

seventy-day

the

statutory

A court’s failure to commence a trial

within the seventy-day period can result in a dismissal if the
Id. § 3161(a)(2). 6

defendant so moves “prior to trial.”

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.
are

pertinent

in

Two of the Speedy Trial Act’s exclusions

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

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Document: 143

§ 3161(h)(3)(A).

Date Filed: 04/28/2011

Page: 15 of 25

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

findings,” and it could not do so on remand.
United States, 547 U.S. 489, 506-07 (2006).

any

“express

See Zedner v.

We are convinced,

however, that the delay attributable to the Continuance Order
was

properly

which

excluded

provides

under

“ample

the

essential-witness

independent

statutory

exclusion,

authority

for

excluding [a period] of delay from the speedy trial calculation”
where

the

apply.

United

States v. Allen, 235 F.3d 482, 491 (10th Cir. 2000).

A trial

court’s

ends-of-justice

award

of

a

exclusion

continuance

does

under

not

the

essential-witness

exclusion need not be accompanied by “specific findings that the
ends

of

Bourne,

justice
743

require

F.2d

1026,

the

continuance.”

1031

(4th

Cir.

United

1984)

(per

States

v.

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

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upon.

Date Filed: 04/28/2011

Page: 16 of 25

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

8

continuance.

18

Notwithstanding our ruling here, we observe
better practice would be for a continuance request to
rely on the essential-witness exclusion, and for the
granting such a continuance, to expressly find
requirements of that exclusion have been satisfied.

16

U.S.C.

that the
expressly
court, in
that the

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Document: 143

§ 3161(h)(7)(A).

Date Filed: 04/28/2011

Page: 17 of 25

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).
turn,

clearly

The government’s continuance motion, in

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.”
requires

18

merely

diligence.”

U.S.C.

§ 3161(h)(3)(B).

“reasonable

efforts,”

not

“Due

diligence”

“maximum

feasible

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

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the

Document: 143

court’s

Date Filed: 04/28/2011

implicit

determination

Page: 18 of 25

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

unavailable.

to

find

that

the

two

witnesses

were

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

continuance motion lacks detail, relief is unwarranted.

the

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.
witness,”

the

Although the Act does not define an “essential
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

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Date Filed: 04/28/2011

Page: 19 of 25

giving as an example “a chemist who has identified narcotics in
the defendant’s possession.”
In

addressing

this

point,

S. Rep. No. 93-1021, at 37 (1974).
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.
F.3d

1341,

essential
though

the

1350
for

(11th

the

Cir.

purposes

government

could

See United States v. Miles, 290
2002)
of

(“A

the

obtain

witness

[Speedy
a

may

Trial]

conviction

be

deemed

Act,

even

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
nonessential.

19

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Document: 143

Date Filed: 04/28/2011

815 F.2d at 1218.
before

the

Page: 20 of 25

The assessment of a witness’s importance

witness

testifies

is

necessarily

a

difficult

endeavor, however, and a reviewing court should not “secondguess” the trial court’s determination “based upon hindsight.”
McNeil, 911 F.2d at 773.
quintessential
Similarly,

Whether a witness is essential “is a

question

questions

of

of

fact.”

Allen,

“whether

‘a

235

F.3d

miscarriage

of

at

491.

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
See Bourne,

with the anticipated testimony and its importance.
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
defendant
property).

court’s
charged

decision
with

Similarly,

to

admit

interstate
the

evidence

transportation

other
20

summary

witness,

of

the

where
stolen

primary

Appeal: 08-4949

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Page: 21 of 25

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

these

a

good-faith

witnesses

at

belief

that

trial.

anticipated

testimony

sufficiently

detailed

in
—

the

the

Indeed,
the

government
the

descriptions

continuance

motion

would

precisely

motion
(if

need
of
were

briefly)

described the anticipated testimony of both witnesses and how
that evidence related to the charges.

As such, the prosecution

“show[ed]

expect[ed]

how

the

testimony

that

it

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 speedytrial 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

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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)

“substantial rights.”

plain,

and

(3)

affects

the

507 U.S. 725, 732 (1993).

defendant’s

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.”
marks and alterations omitted).

Id. (internal quotation

Indeed, relief under the plain

error test “demand[s] strenuous exertion.”

United States v.

Dominguez Benitez, 542 U.S. 74, 82 (2004).
The

established

challenged
demanding.

principles

prosecutorial

remarks

governing
to

a

the
jury

propriety
are

of

likewise

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

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Page: 23 of 25

(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.
the

First

closing

Circuit

argument

relied
that

in

the

In United States v. Alzanki,

part

jury

on

a

not

prosecutor’s

consider

the

plea

in

defendant’s

ethnicity and nationality to conclude that the risk of prejudice
resulting

from

the

jury’s

knowledge

of

those

aspects

defendant’s background had, in fact, been ameliorated.
F.3d 994, 1007 (1st Cir. 1995).

of

the

See 54

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;

23

on

the

contrary,

the

Appeal: 08-4949

Document: 143

prosecutor’s

Date Filed: 04/28/2011

references

were

Page: 24 of 25

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.
Young,

the

Supreme

Court

addressed

In United States v.
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

least,”

prosecutor

that,

“[a]t

the

very

the

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.
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Page: 25 of 25

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

victims,

because

referred

to

remarks,

race

and

although

immigration

status

“condemn[able],”

of

were

isolated, did not encourage jury to render verdict on improper
ground, and were in response to defense counsel’s own “racebaiting”).

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