US v. Somsak Saeku, No. 08-4949 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4949 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SOMSAK SAEKU, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 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 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 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 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. 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 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 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 out of the area until July 7, 2008. 1. 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 to say, quickly? J.A. 124. 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 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. 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 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), certain period periods that of delay is, they speedy-trial clock. are do 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 § 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 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 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 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 § 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). 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 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 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 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. 19 815 F.2d at 1218. before the 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 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 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 (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 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. 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. 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 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
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