Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 08-4949
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:
Decided:
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.
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
single
offense
of
by
the
district
court,
Saeku
has
appealed,
pursuing
Among his
As
I.
A.
We begin by describing the circumstances underlying Saekus
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
bulk
from
retail
stores
and
sold
them
on
the
Internet,
and
Raleigh
before
observed
leaving
the
Saeku
shove
store.
multiple
Several
CDs
mall
into
his
security
pants
officers
DVDs,
and
which
were
seized
by
the
officers.
years
in
later,
in
Raleigh,
February
Christian
his
The
manager
his
Saeku
and
concealed
at
in
confronted
Saeku
2005,
looked
merchandise
into
the
trunk
of
J.A. 192. 1
summoned
instruction,
and,
upon
an
officers
produced
On
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
Starbucks
his
in
pockets.
Raleigh
On
saw
May
24,
Saeku
2006,
conceal
barista
several
CDs
at
in
in
confronted
room.
Raleigh,
suspecting
Saeku
led
and
him
Saeku
pulled
The
agent
summoned
clothing.
There,
the
to
theft
the
eighteen
police
of
stores
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.
revealed
Saeku
taking
several
stolen
DVDs
to
vacant
had paid for the computer, the employee saw Saeku driving away
with it.
The officers
Department,
upon
receiving
information
that
Saeku
was
Saeku
in
the
Raleigh
area.
As
part
of
her
judicial
authorization),
after
which
she
witnessed
him
search
warrants
at
Saekus
four-bedroom
residence.
where she noticed shelving made from PVC tubes in almost every
room of the residence.
organized
audio
inventories
books.
equipment,
other
three
of
Larger
and
items,
CDs,
including
fans,
were
stored
searches
also
revealed
inventories.
The
PVC
shelving
DVDs,
power
underneath
PVC
was
textbooks,
washers,
the
house.
shelving
seized
and
during
and
lawn
The
similar
the
first
revealed
extensive
records,
including
post
office
shipment
dates,
and
prices.
Saekus
records
shipments
example,
during
were
a
made
to
two-week
out-of-state
period
in
Most of
addresses.
January
2006,
For
Saekus
to
investigators
addresses
also
outside
analyzed
bank
North
Carolina.
deposits
made
to
The
Saekus
resulted
from
sales
of
stolen
merchandise.
The
In October 2005,
Among the
allegedly
including
requests
stolen
$18,821
from
from
his
residence
of
newly
released
worth
Nationwide,
Saeku
never
$157,162.30,
DVDs.
provided
proof
Despite
of
his
the
court
entered
scheduling
order
On December 17,
requiring
that
for
February
2008.
7
By
subsequent
orders,
the
pretrial
continued
court.
motions.
Saekus
The
trial
second
until
the
of
courts
those
May
orders
2008
also
term
of
2008,
the
court
ruled
on
the
By order of June
outstanding
motions
and
and
the
local
law
enforcement
officer
who
had
Id. at 2.
J.A. 97.
Id.
The
courtroom
for
jury
selection,
Saeku,
proceeding
pro
se,
to say, quickly?
J.A. 124.
speedy
trial.
advisement
and
thereafter
proceeded
expressly
jury
addressed
Id.
The
court
selection
was
to
its
or
disposed
took
the
matter
under
conducted.
The
trial
court
never
completion,
of
and
Saekus
the
oral
motion
to
dismiss. 5
C.
During the trial, both parties made mention of Saekus race
and
immigration
examinations
of
status.
witnesses
First,
and
in
in
conducting
addressing
his
the
pro
jury,
se
Saeku
passport).
Second,
the
prosecutor
began
his
status,
urging
the
jury
to
find
the
defendant
10
introduced
against
Saeku.
The
prosecutor
concluded
by
On November 12,
11
II.
We review de novo a district courts interpretation of the
Speedy Trial Act, and review any of the courts related factual
findings for clear error.
521
F.3d
437,
omitted).
appellate
court.
440
(4th
Cir.
2008)
(internal
quotation
marks
that
was
not
preserved
in
the
district
III.
As mentioned earlier, Saeku has raised multiple issues on
appeal, only two of which warrant a sustained discussion.
More
search
excessively
to
of
limit
his
his
residence;
that
examination
12
of
the
court
witnesses;
intervened
that
the
evidence
was
insufficient
to
support
any
of
his
three
that
the
two
wire
fraud
charges
were
fatally
Saekus
race
and
immigration
status;
that
the
in
ordering
forfeiture;
and
that
cumulative
errors
succinctly,
only
the
speedy
trial
issue
and
the
warrant
further
discussion.
We
have
carefully
That said,
U.S.C.
3161(c)(1).
Pursuant
13
to
18
U.S.C.
3161(h),
certain
period
periods
that
of
is,
speedy-trial clock.
delay
they
are
do
excluded
not
count
from
the
against
seventy-day
the
statutory
pertinent
in
evaluating
this
contention.
First,
[a]ny
an
essential
witness
is
excluded.
18
U.S.C.
14
3161(h)(3)(A).
Id. 3161(h)(7)(A).
Saeku
is
correct
that
the
delay
occasioned
by
the
the
district
court
did
not
make
any
express
See Zedner v.
We are convinced,
properly
which
excluded
provides
under
ample
the
essential-witness
independent
statutory
exclusion,
authority
for
the
apply.
United
A trial
courts
ends-of-justice
award
of
exclusion
continuance
does
under
not
the
essential-witness
of
Bourne,
justice
743
require
F.2d
1026,
the
continuance.
1031
(4th
Cir.
United
1984)
(per
States
v.
curiam).
the
district
court
fail[ed],
in
granting
the
upon.
1994).
The
threshold
issue
on
this
point
is
whether
the
Put
succinctly,
however,
the
essential-witness
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
findings
by
district
court.
For
example,
of
justice
justify
the
continuance.
18
16
U.S.C.
that the
expressly
court, in
that the
3161(h)(7)(A).
clearly
explained
that
two
key
witnesses
were
unavailable.
Turning
to
the
substance
of
the
essential-witness
We have
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
out of the area, and the record provides no basis for upsetting
17
the
courts
implicit
determination
that
it
would
have
been
district
court
unavailable.
to
find
that
the
two
witnesses
were
United
States
Attorney.
Second,
to
the
extent
the
Saeku,
by
not
expressly
opposing
the
motion,
depriving
the
Keith,
42
F.3d
at
239-40
(discussing
what
court
called
respect
to
the
first
inquiry
whether
the
two
the
Senate
Judiciary
Committee
report
addressing
this
point,
benefit
from
the
guidance
of
1341,
essential
though
the
1350
for
(11th
the
Cir.
purposes
government
could
(A
the
obtain
witness
[Speedy
a
may
Trial]
conviction
be
deemed
Act,
even
without
his
v.
Eagle
Hawk,
815
F.2d
1213,
1218
(8th
Cir.
1987)
19
the
witness
testifies
is
necessarily
difficult
endeavor, however, and a reviewing court should not secondguess the trial courts determination based upon hindsight.
McNeil, 911 F.2d at 773.
quintessential
Similarly,
question
questions
of
of
fact.
Allen,
whether
235
F.3d
miscarriage
of
at
491.
justice
In this vein, we
was
essential,
deferring
to
its
superior
familiarity
See Bourne,
these
principles
here,
the
district
court
The
summary
witnesss
testimony
was
expected
to
jurors
might
be
confused
by
voluminous
evidence.
Cf.
United States v. Wainright, 351 F.3d 816, 820-21 (8th Cir. 2003)
(affirming
defendant
property).
courts
charged
decision
with
Similarly,
to
admit
interstate
the
evidence
transportation
other
20
summary
witness,
of
the
where
stolen
primary
This
officer
oversaw
many
aspects
of
the
have
these
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)
show[ed]
expect[ed]
how
the
testimony
that
it
particular
witness will give fits within the overall framework of its case,
and why that witnesss testimony would be not only useful, but
essential.
21
B.
Finally, we address the prosecutors entreaty to the jury
in his closing argument that it should not consider Saekus race
or
immigration
status.
To
prevail
on
this
unpreserved
that
is
(2)
substantial rights.
plain,
and
(3)
affects
the
defendants
Even then, we
United States v.
established
challenged
demanding.
principles
prosecutorial
remarks
governing
to
the
jury
propriety
are
of
likewise
To properly gauge
22
First
closing
Circuit
argument
relied
that
in
the
part
jury
on
not
prosecutors
consider
the
plea
in
defendants
from
the
jurys
knowledge
of
those
aspects
of
the
See 54
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
race
or
immigration
status;
23
on
the
contrary,
the
prosecutors
references
were
occasioned
by
Saekus
previous
any
discussion
of
defendants
race
or
the
Supreme
Court
addressed
In United States v.
the
all
too
common
judge
takes
no
corrective
action
warning
that
470
U.S.
1,
11
(1985).
As
the
Court
explained,
Id. at 13.
out
least,
prosecutor
that,
[a]t
the
very
the
could
have
Id. at 13-14.
Heeding
Additionally, the
argument
victims,
because
referred
to
remarks,
race
and
although
immigration
status
condemn[able],
of
were
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
25