                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4949


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

SOMSAK SAEKU,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cr-00304-BO-1)



Argued:   January 28, 2011                 Decided:   April 28, 2011


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:     Joseph   Michael   McGuinness,  Elizabethtown,  North
Carolina, for Appellant.    J. Gaston B. Williams, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Anne M.
Hayes,   Jennifer   P.   May-Parker,   Assistant   United  States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     In 2008, a jury in the Eastern District of North Carolina

convicted appellant Somsak Saeku of two wire fraud offenses, in

violation      of     18   U.S.C.      § 1343,          plus    a        single   offense    of

interstate transportation of stolen property, in contravention

of 18 U.S.C. § 2314.                After being sentenced to 108 months in

prison    by    the    district       court,       Saeku       has       appealed,    pursuing

multiple challenges to his convictions and sentence.                                 Among his

contentions, Saeku maintains that the court erred in refusing to

dismiss the indictment for lack of a speedy trial, and that he

was denied a fair trial because of references to his race and

immigration status in the prosecutor’s closing argument.                                     As

explained below, we affirm.



                                             I.

                                             A.

     We begin by describing the circumstances underlying Saeku’s

fraud    and    interstate         theft    convictions,            as    adduced    from   the

evidence presented            at   trial.         The    factual         recitation    is   set

forth    in    the    light    most    favorable         to    the       prosecution.       See

United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2009).

Under the evidence, Saeku engaged a brazen theft and wire fraud

scheme    in    eastern       North    Carolina         and    elsewhere,         spanning   a

period of about five years, during which he shoplifted items in

                                              2
bulk       from    retail    stores      and     sold    them    on    the       Internet,     and

thereafter made false stolen property claims to his homeowner’s

insurance carrier.

                                                 1.

       In February 2002, an employee at a Barnes & Noble bookstore

in   Raleigh        observed      Saeku    shove       multiple       CDs    into      his    pants

before       leaving       the    store.         Several     mall       security         officers

apprehended Saeku after he reached his vehicle, and the officers

found the stolen CDs hidden behind a bush near where Saeku had

been walking.             A subsequent search of Saeku’s vehicle revealed

CDs,   DVDs,        and    clothing,      which       were   seized     by       the   officers.

After being given Miranda warnings, Saeku admitted that he had

stolen the goods seized from his car.

       Three        years    later,       in     February       2005,       at    a    Christian

bookstore          in     Raleigh,       Saeku       concealed    merchandise            in    his

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

manager       confronted         Saeku    and     looked     into      the       trunk    of   his

vehicle, where “at least” ten to fifteen CDs and DVDs bearing

the store’s stickers were found.                        J.A. 192. 1         The police were

summoned          and,    upon   an   officer’s         instruction,         Saeku       produced

additional stolen merchandise from beneath his clothing.                                        On


       1
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                                 3
August 20, 2005, Saeku stole approximately six DVDs from the

Family Christian Bookstore in Raleigh, and then stole ten more

on July 4, 2006.         In December 2005, an employee in the Borders

Bookstore café in Raleigh saw Saeku pick up approximately eight

audio books, pull the security stickers from them, and put the

audios    in   his    pockets.        On    May    24,    2006,    a     barista      at   a

Starbucks      in    Raleigh    saw     Saeku      conceal       several       CDs   in    a

newspaper and then leave the store.

       On December 16, 2006, a loss prevention agent at a Best Buy

store    in     Raleigh,       suspecting         the     theft    of      merchandise,

confronted     Saeku    and    led    him   to    the    store’s    loss       prevention

room.       There,     Saeku    pulled      eighteen       CDs    from     beneath        his

clothing.       The    agent    summoned        police    officers,      who     arrested

Saeku and searched his vehicle — where they found CDs and DVDs

“piled high.”          J.A. 223.        As Saeku was being transported to

jail, he spontaneously confessed to stealing some of the items.

On December 21, 2006, a floor manager at a Circuit City store in

Raleigh responded to a customer who had shouted that Saeku was

stealing.      An employee stopped Saeku briefly, but allowed him to

leave.      The manager of the store later viewed security tapes

that    revealed      Saeku    taking    several        stolen    DVDs    to    a    vacant

register, where he deactivated the security stickers.

       On January 18, 2007, an employee at an Office Depot in

Raleigh saw Saeku with a computer.                      On confirming that no one

                                            4
had paid for the computer, the employee saw Saeku driving away

with it.    The employee wrote down the license plate information

and contacted the authorities, and police officers then went to

Saeku’s house and spoke with him regarding the computer theft.

Saeku acknowledged that he had recently returned from Office

Depot and invited the officers into his kitchen.                    The officers

obtained consent to search Saeku’s house, where they found two

identical computers, one of which the Office Depot employee had

reported stolen.       In Saeku’s residence, the officers also found

large quantities of unopened software, diapers, lawnmowers and

other lawn equipment, plus extensive mailing supplies.

                                       2.

       In January 2007, Detective Holly Rinaldo of the Raleigh

Police    Department,     upon   receiving    information        that    Saeku   was

selling stolen goods over the Internet, secured and reviewed

several police reports involving Saeku.               She identified twenty-

two reports involving theft-related arrests or criminal charges

against    Saeku     in    the    Raleigh     area.        As     part     of    her

investigation, Rinaldo placed a tracking device on Saeku’s car

(with    judicial    authorization),       after   which   she    witnessed      him

steal merchandise from at least two stores.

       Between July 2006 and May 2007, police officers executed

four     search     warrants     at   Saeku’s      four-bedroom          residence.

Detective Rinaldo participated in the last of those searches,

                                       5
where she noticed shelving made from PVC tubes in almost every

room of the residence.                 The shelving was stocked with well-

organized    inventories          of   unopened     CDs,       DVDs,    textbooks,    and

audio    books.       Larger       items,       including      power     washers,    lawn

equipment,    and     fans,    were      stored    underneath       the    house.      The

other   three     searches     also      revealed       PVC    shelving     and   similar

inventories.         The    PVC    shelving       was    seized    during     the    first

search, after which Saeku obtained more shelving and restocked

his inventories.

      Saeku carried out his theft and stolen property scheme by

selling stolen goods on the Internet.                    The second search of his

residence    revealed        extensive      records,          including    post     office

receipts and records of items shipped, names and addresses of

recipients,       shipment        dates,    and     prices.            Saeku’s    records

identified the shipment of 7353 items in 2005, 7469 items in

2006, and 656 items from January through April 2007.                              Most of

these    shipments     were       made     to    out-of-state      addresses.         For

example,    during     a     two-week      period       in    January     2006,   Saeku’s

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

shipments       to    addresses          outside        North      Carolina.           The

investigators        also    analyzed       bank    deposits       made     to    Saeku’s

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

had     resulted      from     sales        of     stolen       merchandise.           The



                                             6
investigators calculated the retail value of the items seized

from Saeku’s residence at more than $552,000.

        On July 22, 2005, Saeku contacted Nationwide Insurance, his

homeowner’s insurer, and filed a claim seeking indemnity for

property that had been stolen from his home.                     In October 2005,

Saeku emailed to a Nationwide claims agent an inventory of items

that had purportedly been stolen, and also submitted a sworn

statement to Nationwide in support of his loss claim.                     Among the

items for which indemnification was sought were computer and

electronic equipment, furniture, CDs, DVDs, silverware, jewelry,

several suits of men’s clothing, and books.                      Saeku valued the

goods     allegedly      stolen    from    his    residence      at    $157,162.30,

including      $18,821    worth    of     newly    released      DVDs.        Despite

requests    from   Nationwide,       Saeku      never   provided      proof   of    his

purchase of any of those items.

                                          B.

     The grand jury in the Eastern District of North Carolina

indicted Saeku on October 10, 2007, charging him with two counts

of wire fraud and a single charge of interstate transportation

of stolen property.         Saeku first appeared and pleaded not guilty

in the district court on December 10, 2007.                      On December 17,

2007,    the   court     entered    a     scheduling     order     requiring       that

pretrial motions be filed by January 10, 2008, and scheduling

Saeku’s trial      for    February      2008.     By    subsequent     orders,      the

                                           7
court granted Saeku’s two requests for extensions of time to

file       pretrial    motions.       The       second    of   those    orders      also

continued      Saeku’s      trial   until   the    court’s     “May    2008   term    of

court.”       Dist Ct. ECF No. 20. 2             Both of the extension orders

specified — pursuant to the so-called ends-of-justice exclusion

of the Speedy Trial Act — that the ends of justice justified the

periods of delay involved, and thus excluded those periods from

the seventy-day period within which the Act normally requires a

defendant to be brought to trial. 3

       On March 13, 2008, Saeku filed several pretrial motions and

the court conducted a hearing on May 13, 2008.                   By order of June

16,    2008,    the     court     ruled   on     the     outstanding    motions      and

rescheduled the trial for June 30, 2008.                    On June 24, 2008, the

government moved for a trial continuance on the ground that two

of its “key” witnesses — an expert who would “substantially

shorten” the trial by “summariz[ing] a large volume of financial

information,”         and   the   local   law     enforcement    officer      who    had

coordinated the investigation of Saeku — were “scheduled to be


       2
       Citations herein to “Dist. Ct. ECF No. __” refer to the
docket entry numbers for documents filed in the district court
that are not included in the Joint Appendix.
       3
        The pertinent provisions of the Speedy Trial Act
establishing the seventy-day period and specifying the periods
of delay that may be excluded therefrom are identified and
discussed in Part III infra.



                                            8
out of the area” until July 7, 2008.            Dist. Ct. ECF No. 49, at

1.    Before filing its continuance motion, the prosecutors had

contacted Saeku’s lawyer, “who stated that [Saeku] neither joins

nor concurs in [the] motion, but does not intend to file a

motion in opposition.”          Id. at 2.     By order of June 25, 2008

(the “Continuance Order”), the court granted the government’s

continuance motion, rescheduling the trial for the “September

term” of court.     J.A. 97.      The Continuance Order specified that

it was granted “for good cause shown” and included a handwritten

notation that the delay was to be excluded from any Speedy Trial

Act computations.       Id.    It did not, however, reference the ends-

of-justice exclusion or make any findings relating thereto.              The

Continuance Order also did not specifically reference any of the

Act’s other exclusions from the seventy-day period.

      On September 10, 2008, as the prospective jurors entered

the   courtroom   for   jury    selection,   Saeku,   proceeding   pro   se,

sought to address the trial court. 4         The court noted the presence

of the prospective jurors and asked Saeku, “[w]hat do you want

      4
       On September 4, 2008, Saeku sought court approval to
proceed pro se and represent himself at trial with the
assistance of standby counsel.      On September 9, 2008, the
district court conducted a hearing on Saeku’s request for self-
representation and, by its oral ruling of the same day, granted
the motion. Saeku then indicated that he was “ready to proceed”
to trial the next day.        J.A. 112.   On appeal, Saeku is
represented by appointed counsel. In addition, we granted Saeku
leave to file a pro se brief.



                                      9
to say, quickly?”        J.A. 124.        Saeku stated, without elaborating,

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

of    speedy   trial.”       Id.         The     court     took      the    matter       under

advisement      and   jury     selection         was      conducted.             The    trial

thereafter     proceeded     to    its    completion,          and    the    court      never

expressly      addressed     or    disposed         of    Saeku’s     oral       motion      to

dismiss. 5

                                            C.

       During the trial, both parties made mention of Saeku’s race

and    immigration     status.        First,        in     conducting       his        pro   se

examinations     of   witnesses       and      in   addressing        the    jury,       Saeku

referenced his race, language skills, and immigration status.

See, e.g., J.A. 140 (stating his national origin is Thailand);

J.A. 172 (“Although I speak a few languages, English is not my

native tongue.”); J.A. 277 (referring to his “green card” and

Thailand-issued       passport).         Second,         the   prosecutor        began       his

closing argument by responding to Saeku’s references to race and

immigration     status,      urging      the     jury     to   “find       the    defendant

       5
       The wire fraud offenses were tried on the theory that
Saeku had engaged in a scheme to defraud Nationwide Insurance by
way of two separate communications, the July 22, 2005 phone call
and the October 2005 email, in both of which he represented that
he was the rightful owner of the property purportedly stolen.
The interstate transportation of stolen property offense was
tried on the theory that Saeku’s interstate shipments of stolen
goods from Internet sales exceeded the $5000 jurisdictional
amount required under 18 U.S.C. § 2314.



                                            10
guilty, whether [he is] a citizen or whether [he is] a visitor.”

J.A. 414.     The prosecutor then reviewed and argued the evidence

introduced     against   Saeku.    The   prosecutor     concluded   by

admonishing the jury not to consider the personal attributes

that Saeku had previously mentioned:

          I urge you to consider the evidence and the law
     only, not whether Mr. Saeku looks a little different
     than some other folks.    He looks a lot like other
     folks. . . . Don’t consider that he is a visitor. He
     has the same constitutional protections as we all do
     as citizens.

          Don’t consider the way he speaks . . . .
     [A]lthough he may speak with an accent and may not be
     a lawyer, he understands and can process thoughts in
     the English language, when he chooses to.

             . . . .

          Disregard the way he looks. Focus on the law and
     the evidence, please.    It’s a part of your duty as
     jurors. It’s a part of the instructions. It’s a part
     of why we have a Constitution that is revered by
     nations of the world.

J.A. 419.

     On September 11, 2008, the jury returned its verdict of

guilty against Saeku on all three offenses.           On November 12,

2008, the district court sentenced Saeku to a prison term of 108

months, plus three years of supervised release, restitution, and

forfeiture.     Saeku has filed a timely appeal, and we possess

jurisdiction pursuant to 28 U.S.C. § 1291.




                                  11
                                             II.

      We review de novo a district court’s interpretation of “the

Speedy Trial Act, and review any of the court’s related factual

findings for clear error.”                   United States v. Rodriguez-Amaya,

521   F.3d    437,   440     (4th     Cir.    2008)   (internal      quotation    marks

omitted).       On the other hand, we review for plain error an

appellate     contention       that    was     not    preserved     in   the   district

court.       See Fed. R. Crim. Pro. 52(b); United States v. Olano,

507 U.S. 725, 731-32 (1993).



                                             III.

      As mentioned earlier, Saeku has raised multiple issues on

appeal, only two of which warrant a sustained discussion.                             More

specifically, Saeku contends that the grand jury was tainted by

references to his race and immigration status; that the trial

court erred in authorizing him to represent himself pro se; that

the court failed to conduct voir dire and improperly limited his

peremptory challenges; that the court erred in not dismissing

the indictment for violations of his speedy trial rights; that

the court erred by excluding him from bench conferences and in

not permitting him to deliver exhibits to witnesses; that the

court erred in denying his motion to suppress evidence seized

during a      search    of     his    residence;      that    the   court   intervened

excessively     to     limit    his    examination       of   witnesses;       that    the

                                              12
court erred in admitting opinion testimony; that the court erred

in failing to exclude evidence obtained by the prosecutors in

violation of his Miranda rights; that the charges against him

violated the Double Jeopardy Clause of the Fifth Amendment; that

the   evidence     was     insufficient         to   support       any    of     his    three

convictions; that the court erred in conducting hearings outside

his presence; that the court erred in its instructions to the

jury;    that      the     two      wire    fraud           charges       were      fatally

multiplicious; that the prosecutor’s closing argument improperly

referenced       Saeku’s     race    and    immigration            status;       that    the

sentence imposed by the court was unreasonable; that the court

erred    in     ordering     forfeiture;         and    that       cumulative          errors

deprived him of his Fifth Amendment right to due process.

       Put     succinctly,    only    the       speedy       trial       issue    and     the

assertions regarding the propriety of the prosecutor’s closing

argument       warrant     further    discussion.                 We     have     carefully

considered each of Saeku’s other contentions of error and are

satisfied to reject all of them for lack of merit.                              That said,

we turn to the speedy trial and closing argument contentions.

                                           A.

       Under the Speedy Trial Act, the district court was obliged

to “commence” Saeku’s trial “within seventy days . . . from the

date [he] has appeared before a judicial officer of the court.”

18    U.S.C.    § 3161(c)(1).         Pursuant         to    18    U.S.C.        § 3161(h),

                                           13
certain    periods         of   delay    are    excluded      from    the   seventy-day

period    —    that    is,      they    do   not    count    against    the    statutory

“speedy-trial clock.”              A court’s failure to commence a trial

within the seventy-day period can result in a dismissal if the

defendant so moves “prior to trial.”                     Id. § 3161(a)(2). 6

      On appeal, Saeku contends that the delay resulting from the

Continuance Order — the seventy days from June 25 to September

4, 2008 — should not be excluded from the speedy-trial clock. 7

If that seventy-day delay is excluded, Saeku does not dispute

that his trial began in a timely manner, within the statutory

seventy-day period.             Two of the Speedy Trial Act’s exclusions

are   pertinent       in    evaluating       this    contention.        First,   “[a]ny

period of delay resulting from the absence or unavailability of

. . .     an    essential         witness”          is    excluded.         18   U.S.C.


      6
       We are also content to reject the government’s assertion
that, under our precedent, Saeku’s oral motion to dismiss on
September 10, 2008, was untimely because it was made after “the
beginning of the court day when voir dire begins.”        Br. of
Appellee 37 (emphasis added).    The government misconstrues our
precedent in that respect.     See United States v. A-A-A Elec.
Co., 788 F.2d 242, 246 (4th Cir. 1986) (ruling that, for
purposes of the Speedy Trial Act, “trial commence[s] at the time
of voir dire” (emphasis added)).    Instead of deeming the oral
motion to dismiss untimely, however, we assume that the motion
was timely made, but reject it for lack of merit.
      7
       The period from September 4, 2008, to September 9, 2008,
is excluded from the speedy-trial clock on account of the
pendency of Saeku’s motion to represent himself pro se, filed on
September 4, 2008. See 18 U.S.C. § 3161(h)(1)(D).



                                               14
§ 3161(h)(3)(A).              Second, “[a]ny period of delay resulting from

a continuance granted by any judge . . . , if the judge granted

such continuance on the basis of his findings that the ends of

justice served by taking such action outweigh the best interest

of the public and the defendant in a speedy trial” is also

excluded.      Id. § 3161(h)(7)(A).

       Saeku       is     correct      that     the    delay       occasioned         by     the

Continuance Order cannot be excluded under the ends-of-justice

exclusion;         the    district      court       did    not     make       any    “express

findings,” and it could not do so on remand.                                 See Zedner v.

United States, 547 U.S. 489, 506-07 (2006).                            We are convinced,

however, that the delay attributable to the Continuance Order

was    properly         excluded    under     the     essential-witness             exclusion,

which     provides        “ample       independent        statutory          authority       for

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

where    the   ends-of-justice           exclusion        does    not       apply.     United

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

court’s      award       of    a   continuance        under      the    essential-witness

exclusion need not be accompanied by “specific findings that the

ends    of   justice       require     the    continuance.”             United      States    v.

Bourne,      743    F.2d       1026,   1031     (4th      Cir.    1984)      (per    curiam).

Similarly, a trial continuance is not necessarily faulty simply

because      “the        district       court       fail[ed],          in    granting        the

continuance, to identify” the specific exclusion being relied

                                              15
upon.        United States v. Keith, 42 F.3d 234, 239-40 (4th Cir.

1994).

        The       threshold        issue     on        this    point      is    whether     the

Continuance Order is somehow flawed because it did not expressly

find that the two government witnesses were both essential and

unavailable.           Put    succinctly,          however,         the   essential-witness

exclusion does not require any such findings. 8                           See United States

v. Garcia, 995 F.2d 556, 560 (5th Cir. 1993) (excluding period

of continuance where court “impliedly found” witness essential);

United States v. Barragan, 793 F.2d 1255, 1258 (11th Cir. 1986)

(excluding period of continuance where court “never explicitly

ruled       on”    continuance           motion,       but    “in     effect    granted     the

requested continuance” on basis of essential-witness exclusion).

In adopting the Speedy Trial Act, Congress knew how to require

express          findings     by     a     district          court.       For    example,     a

continuance granted pursuant to the ends-of-justice exclusion is

excludable only if “the court sets forth, in the record of the

case, either orally in writing, its reasons for finding that the

ends        of    justice”         justify     the        continuance.           18   U.S.C.

        8
       Notwithstanding our ruling here, we observe                                  that the
better practice would be for a continuance request to                              expressly
rely on the essential-witness exclusion, and for the                               court, in
granting such a continuance, to expressly find                                     that the
requirements of that exclusion have been satisfied.




                                                  16
§ 3161(h)(7)(A).        By contrast, the essential-witness exclusion

contains no such requirement.           Moreover, the Continuance Order,

by explicitly finding that the continuance was granted “for good

cause shown,” J.A. 97, incorporated the supporting facts of the

underlying motion.        See United States v. Bruckman, 874 F.2d 57,

61-62 (1st Cir. 1989).         The government’s continuance motion, in

turn,   clearly        explained     that   two   “key”     witnesses    were

unavailable.

     Turning      to     the   substance     of   the     essential-witness

exclusion, its applicability in these circumstances depends on

two inquiries:      first, whether at least one of the witnesses was

“essential”; and second, whether the exercise of due diligence

would have produced each essential witness for trial.                We have

addressed the second inquiry in our prior decisions, and so we

begin there.     A witness is “unavailable” where “his whereabouts

are known but his presence for trial cannot be obtained by due

diligence.”       18     U.S.C.    § 3161(h)(3)(B).        “Due   diligence”

requires   merely      “reasonable    efforts,”   not     “maximum   feasible

diligence.”    United States v. Patterson, 277 F.3d 709, 711-12

(4th Cir. 2002).        The unavailability bar is not a high one; in

one case, a witness’s prior wedding and honeymoon plans rendered

him unavailable.       See United States v. Meyer, 803 F.2d 246, 247-

48 (6th Cir. 1986).        Here, two witnesses were “scheduled to be

out of the area,” and the record provides no basis for upsetting

                                       17
the   court’s    implicit       determination         that     it    would    have     been

unreasonable to compel them to return for trial as scheduled.

      The continuance motion thus provided a sufficient basis for

the   district       court     to     find    that     the     two     witnesses       were

unavailable.         First, prior travel plans can render a witness

unavailable, and Saeku never challenged the veracity or good

faith of the representations made in the continuance motion by

the   United     States      Attorney.             Second,     to     the    extent     the

continuance motion lacks detail, relief is unwarranted.                             Saeku,

who was then represented by counsel, contributed to any lack of

detail   by    not    expressly       opposing       the     motion,       depriving    the

prosecution of any opportunity to further support its request.

See   Keith,    42    F.3d     at   239-40        (discussing       what    court   called

“sandbagging” problem, and observing that defendant cannot seek

dismissal on basis of continuance to which he “affirmatively

consent[ed],” and where record supports continuance).

      With     respect    to    the    first       inquiry     —     whether    the     two

witnesses mentioned in the continuance motion were “essential” —

the district court similarly possessed a sufficient record to

deem them so.         Although the Act does not define an “essential

witness,”      the   accompanying       Senate       Judiciary       Committee      report

explains that the term refers to a witness “so essential to the

proceeding that continuation without the witness would either be

impossible or would likely result in a miscarriage of justice,”

                                             18
giving as an example “a chemist who has identified narcotics in

the defendant’s possession.”           S. Rep. No. 93-1021, at 37 (1974).

In   addressing      this    point,    we    benefit      from    the    guidance     of

several of our sister circuits, none of which have required the

witness’s testimony to be so important that conviction could not

be obtained in its absence.                 See United States v. Miles, 290

F.3d   1341,    1350   (11th    Cir.   2002)        (“A   witness    may    be    deemed

essential      for   the    purposes   of     the    [Speedy      Trial]    Act,   even

though   the    government     could    obtain       a    conviction     without    his

testimony.”); Allen, 235 F.3d at 491; United States v. Hamilton,

46 F.3d 271, 276-77 (3d Cir. 1995) (same); United States v.

McNeil, 911 F.2d 768, 773 (D.C. Cir. 1990) (similar); United

States   v.    Eagle   Hawk,    815    F.2d    1213,       1218   (8th     Cir.    1987)

(similar); United States v. Tedesco, 726 F.2d 1216, 1222 (7th

Cir. 1984) (same); United States v. Marrero, 705 F.2d 652, 656

(2d Cir. 1983) (similar).

       A well-crafted formulation of the applicable rule is found

in the Eighth Circuit’s Eagle Hawk decision, which explained

that

       [w]here a witness is unquestionably important, and the
       government has a good faith belief that it will use
       that witness’s testimony at trial, that witness may be
       deemed “essential” for purposes of the Speedy Trial
       Act. If, however, the witness’s anticipated testimony
       will   be    merely   cumulative,   or   substantially
       irrelevant,   that  witness  should  be   deemed  non-
       essential.


                                        19
815 F.2d at 1218.            The assessment of a witness’s importance

before    the     witness       testifies            is        necessarily         a     difficult

endeavor, however, and a reviewing court should not “second-

guess” the trial court’s determination “based upon hindsight.”

McNeil, 911 F.2d at 773.               Whether a witness is essential “is a

quintessential      question         of    fact.”              Allen,      235    F.3d       at    491.

Similarly,      questions       of    “whether            ‘a    miscarriage        of        justice’

‘would likely result’” implicate the “sound discretion of the

district judge.”          Marrero, 705 F.2d at 657.                         In this vein, we

have previously affirmed a trial court’s determination that a

witness   was     essential,         deferring        to       its   superior          familiarity

with the anticipated testimony and its importance.                                     See Bourne,

743 F.2d at 1030-31.

       Applying     these       principles                here,      the     district             court

possessed a sufficient basis to deem either of the two witnesses

essential.        The   summary       witness’s            testimony        was     expected         to

break down a vast quantity of records and financial information

into usable statistics and significantly circumscribe the trial,

thereby enhancing judicial economy and reducing the likelihood

that   jurors     might    be    confused            by    voluminous        evidence.             Cf.

United States v. Wainright, 351 F.3d 816, 820-21 (8th Cir. 2003)

(affirming      court’s     decision        to       admit        summary        evidence         where

defendant    charged       with       interstate               transportation           of     stolen

property).          Similarly,            the        other        witness,         the        primary

                                                20
investigator, would normally be expected to provide important

testimony.            This       officer      oversaw        many    aspects     of   the

investigation and had personal knowledge of facts relating to

Saeku’s fraud scheme.              Notably, Saeku nowhere suggests that the

evidence of these witnesses could have been obtained some other

way, cf. Bourne, 743 F.2d at 1030-31, or that the prosecutor did

not   have    a   good-faith       belief      that    the    government     would    need

these       witnesses       at    trial.           Indeed,     the   descriptions      of

anticipated          testimony         in     the     continuance        motion       were

sufficiently         detailed      —    the    motion        precisely   (if     briefly)

described the anticipated testimony of both witnesses and how

that evidence related to the charges.                      As such, the prosecution

“show[ed]      how    the    testimony        that    it   expect[ed]    a     particular

witness will give fits within the overall framework of its case,

and why that witness’s testimony would be not only useful, but

essential.”       McNeil, 911 F.2d at 774. 9




        9
       Although the continuance motion sought a delay “until
after July 14, 2008,” the Continuance Order continued the case
until September 2008. Dist. Ct. ECF No. 49, at 2. Nonetheless,
the entire period of the continuance — and not just the period
the witnesses were unavailable — is excluded from the speedy-
trial clock because the statutory phrase “resulting from”
mandates the exclusion of all time granted pursuant to the
continuance. See Miles, 290 F.3d at 1350-51.



                                              21
                                          B.

     Finally, we address the prosecutor’s entreaty to the jury

in his closing argument that it should not consider Saeku’s race

or   immigration      status.        To        prevail       on   this     unpreserved

contention of error, Saeku must meet the plain error standard of

United States v. Olano, which requires the presence of (1) an

error,   that    is   (2)   plain,   and        (3)    affects      the    defendant’s

“substantial rights.”        507 U.S. 725, 732 (1993).                   Even then, we

will grant relief only if we determine, in our discretion, that

“the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.”                   Id. (internal quotation

marks and alterations omitted).                Indeed, relief under the plain

error test “demand[s] strenuous exertion.”                         United States v.

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

     The     established    principles          governing         the    propriety   of

challenged      prosecutorial    remarks          to     a    jury      are   likewise

demanding.      To prevail, a defendant “must show [1] that the

remarks were improper and [2] that they prejudicially affected

the defendant’s substantial rights so as to deprive [him] of a

fair trial.”      United States v. Adam, 70 F.3d 776, 780 (4th Cir.

1995) (internal quotation marks omitted).                         To properly gauge

whether a defendant suffered such prejudice, we must examine

several factors, including the following:



                                          22
      (1) the degree to which the prosecutor’s remarks have
      a tendency to mislead the jury and to prejudice the
      accused; (2) whether the remarks were isolated or
      extensive; (3) absent the remarks, the strength of
      competent proof introduced to establish the guilt of
      the accused; and (4) whether the comments were
      deliberately   placed  before    the jury  to  divert
      attention to extraneous matters.

Id. (internal citations omitted).                   Importantly, we also evaluate

“(5) whether the prosecutor’s remarks were invited by improper

conduct of defense counsel and (6) whether curative instructions

were given to the jury.”             United States v. Wilson, 135 F.3d 291,

299 (4th Cir. 1998) (internal quotation marks omitted).

      To begin with, it is not at all clear that the remarks

challenged by Saeku were improper.                  In United States v. Alzanki,

the   First   Circuit       relied     in    part    on    a    prosecutor’s        plea      in

closing   argument        that   the    jury       not    consider        the    defendant’s

ethnicity and nationality to conclude that the risk of prejudice

resulting     from    the    jury’s    knowledge          of    those     aspects       of   the

defendant’s background had, in fact, been ameliorated.                                  See 54

F.3d 994, 1007 (1st Cir. 1995).                   As in Alzanki, the prosecutor’s

remarks in this case were not inflammatory and did not appeal to

prejudice; rather, they took the form of a plea not to consider

irrelevant     or    impermissible          grounds.           Moreover,        there   is    no

indication that the prosecutor, by isolated references in his

lengthy closing argument, sought to invite adverse attention to

Saeku’s     race     or     immigration       status;          on   the    contrary,         the


                                             23
prosecutor’s       references          were     occasioned         by   Saeku’s        previous

injection of those issues into the trial.

      Nevertheless,            any    discussion       of    a     defendant’s         race   or

immigration status before a criminal jury is a sensitive issue.

Such references — even this prosecutor’s sincere plea for the

jury not to consider irrelevant matters that Saeku himself first

brought up — are not to be encouraged.                             In United States v.

Young,     the     Supreme           Court    addressed          the    “all     too     common

occurrence in criminal trials” where “the defense counsel argues

improperly, provoking the prosecutor to respond in kind, and the

trial    judge         takes    no      corrective      action”         —      warning     that

“[c]learly two improper arguments . . . do not make for a right

result.”         470    U.S.    1,     11    (1985).        As    the    Court    explained,

“[p]lainly, the better remedy” is for the trial court “to deal

with the [defense counsel’s] improper argument . . . promptly

and thus blunt the need for the prosecutor to respond,” or for

the prosecutor to “object[] to the . . . improper statements

with a request that the court give a timely warning and curative

instruction to the jury.”                    Id. at 13.          The Court also pointed

out   that,      “[a]t    the        very    least,”   the       prosecutor      could     have

sought a bench conference out of the jury’s presence to suggest

an appropriate curative instruction.                         Id. at 13-14.              Heeding

Young, there were better ways to address Saeku’s references to

his race and immigration status.

                                               24
     Ultimately, however, we need not definitively resolve the

propriety of the prosecutor’s remarks, because they were not

prejudicial.      The evidence of Saeku’s guilt was overwhelming,

and the challenged statements were few in number and made in

passing during a protracted closing argument.            Additionally, the

prosecutor merely cautioned the jury that it was sworn to render

its verdict solely on the facts and the law, and did so only

after Saeku had injected his race and immigration status into

the trial.     Cf. United States v. Roach, 502 F.3d 425, 435-36

(6th Cir. 2007) (finding no reversible error where prosecutor’s

closing    argument    referred   to   race   and   immigration   status   of

victims,     because     remarks,      although     “condemn[able],”   were

isolated, did not encourage jury to render verdict on improper

ground, and were in response to defense counsel’s own “race-

baiting”).     In sum, the failure to follow the better practices

outlined in Young is not necessarily error, and, even assuming

error, Saeku clearly suffered no prejudice.



                                       IV.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                                   AFFIRMED




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