United States v. Saeku

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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 (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

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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.

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 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

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