                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 2 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-30144

                Plaintiff-Appellee,             D.C. No.
                                                3:13-cr-00092-RRB-1
 v.

STUART T. SEUGASALA, AKA Tone,                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                   Ralph R. Beistline, District Judge, Presiding

UNITED STATES OF AMERICA,                       No.    15-30150

                Plaintiff-Appellee,             D.C. No.
                                                3:11-cr-00031-HRH-1
 v.

STUART T. SEUGASALA, AKA Tone,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    15-30151

                Plaintiff-Appellee,             D.C. No.
                                                3:00-cr-00056-HRH-1

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 v.

STUART T. SEUGASALA, AKA Tone,

                Defendant-Appellant.

                   Appeals from the United States District Court
                             for the District of Alaska
                   H. Russel Holland, District Judge, Presiding

                  Argued and Submitted July 14, 2017
                         Seattle, Washington
Before: NGUYEN, FARRIS, and MURPHY,** Circuit Judges.

      Stuart Seugasala appeals his convictions following a jury trial for conspiracy

to distribute controlled substances, kidnapping, use of firearms in furtherance of

drug conspiracy, use of firearms in furtherance of kidnapping, and unauthorized

disclosure of health information. He also appeals the district court’s revocations of

supervised release based on these convictions. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      1. The district court did not violate Seugasala’s right to represent himself

under Faretta v. California, 422 U.S. 806 (1975). Seugasala’s comments to the

effect that he would rather represent himself—made at the end of a lengthy hearing

about his request for substitute counsel—were equivocal when viewed in context.

But even assuming that Seugasala unequivocally invoked his right to represent


      **
            The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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himself, the district court’s finding that he did so for purposes of delay was not

clearly erroneous. The request was made on the eve of trial, and the district court

had earlier found that substituting counsel would require the trial to be continued

for another six months. The court also noted the excessive delays in the case, with

five previous continuances of the trial. The court also found that Seugasala

“appears to be working to manipulate the system and unnecessarily delay final

resolution of this matter.” Viewed in context, the district court reasonably viewed

Seugasala’s belated request as a further attempt to delay the trial. See United

States v. George, 56 F.3d 1078, 1084 (9th Cir. 1995) (holding that the district court

did not err in finding that a defendant’s motion to proceed pro se was made for the

purposes of delay, in part because the defendant’s pre-trial conduct had caused

substantial delay and because he had failed to bring the motion earlier than the eve

of trial); see also United States v. Kaczynski, 239 F.3d 1108, 1117 (9th Cir. 2001)

(finding that a defendant’s pro se request necessarily implicated “considerable

delay” because of the complexity of his case).

      2. The district court properly denied Seugasala’s motion to dismiss his

indictment on the ground that it violated his right to a grand jury drawn from a fair

cross-section of the community. Although Pacific Islanders likely qualify as a

“distinctive group” in Alaska, Seugasala concedes that the absolute disparity

between Pacific Islanders in the population and the grand jury pool was only


                                          3
approximately 0.5%, a gap too small to “substantially affect the representation of

the group in the actual jury pool.” United States v. Hernandez-Estrada, 749 F.3d

1154, 1165 (9th Cir. 2014) (en banc). Seugasala also failed to marshal sufficient

empirical evidence demonstrating that the underrepresentation of Pacific Islanders

was due to systematic exclusion of the group. See id. at 1166.

      3. The evidence belies Seugasala’s claim that the asportation of the victims

was merely incidental to his assault and, therefore, the kidnapping convictions

must be overturned. Seugasala forced the victims out of the apartment where the

assault occurred and took them to a strip club and while there, he denied their

requests to leave for the hospital. At a minimum, the asportation of the victims

from the apartment to the club was not merely incidental to the assault.

      4. The district court did not plainly err by admitting evidence obtained from

the traffic stop, which Seugasala argues was unlawfully prolonged. First, the

record does not clearly show that the stop was even prolonged by the phone call

that the officers made to Seugasala’s probation officer. The traffic stop in its

entirety appeared to have lasted approximately ten minutes. Second, unlike in

Rodriguez v. United States, 135 S. Ct. 1609 (2015), where the officers lacked

reasonable suspicion to prolong a motorist’s detention, the probation officer had

reasonable suspicion that Seugasala had committed several serious crimes.

      5. The district court did not plainly err in denying Seugasala’s motion to


                                          4
suppress evidence obtained from the May 20 and June 12 searches. Seugasala’s

terms of supervision required him to submit to warrantless searches of his property

based on reasonable suspicion. Under the circumstances here, the seizure of his

electronic devices in order to effectuate the searches was implicit. Law

enforcement had reasonable suspicion that a forensic search of the electronic

devices would provide evidence of serious offenses and obtained search warrants

before searching the devices.

      6. The district court did not plainly err by admitting evidence obtained from

cell phone downloads without expert testimony. The officers who followed the

software prompts from Cellebrite and XRY to obtain data from electronic devices

did not present testimony that was based on technical or specialized knowledge

that would require expert testimony. See Fed. R. Evid. 701(c).

      7. The district court did not abuse its discretion when it admitted evidence

about the Denny’s shooting. This evidence was critical to one of the counts of

unauthorized disclosure of health information, as it explained Seugasala’s motive

for obtaining the illegal information. While Seugasala now argues that the district

court should have severed that charge because the probative value as to the

remaining charges was substantially outweighed by prejudice under Rule 403 of

the Federal Rules of Evidence, he failed to request severance of the charges.

Therefore, he waived any right to severance. See United States v. Heuer, 4 F.3d


                                         5
723, 733 (9th Cir. 1993).

      8. Even if the district court erred in admitting the video of the assault, any

error was harmless. The evidence that Seugasala committed the offenses was

overwhelming, including the testimony of both kidnapping victims, two charged

co-conspirators, Seugasala’s ex-girlfriend, and Seugasala’s own testimony. The

government has therefore satisfied its burden of demonstrating that it is more

probable than not that the introduction of the video did not materially affect the

verdict. See United States v. Waters, 627 F.3d 345, 358 (9th Cir. 2010).

      9. The district court did not clearly err in admitting statements from

Seugasala’s son as co-conspirator statements. United States v. Moran, 493 F.3d

1002, 1010 (9th Cir. 2007). There was ample evidence that the conspiracy was

continuing, including Seugasala’s orders from jail to criminal associates and his

instructions to his son to count his drugs and weapons.

      10. Because we affirm Seugasala’s convictions, we need not address his

supervised release revocations arguments, which rely on vacating the convictions.

      AFFIRMED.




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