                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4787



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LUTHER EARL SATTERFIELD,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:04-cr-00173-D)


Submitted:   September 28, 2007           Decided:   November 8, 2007


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mary Jude Darrow, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Luther      Earl   Satterfield     appeals   his   conviction    and

sentence for conspiring to distribute and possess with the intent

to distribute more than fifty grams of cocaine base (crack), in

violation of 21 U.S.C. § 841(a)(1), 846 (2000) and distribution of

more than fifty grams of cocaine base in violation of 21 U.S.C.

§ 841(a)(1). On appeal, Satterfield argues that the district court

plainly erred by not dismissing the charges against Satterfield on

statutory or constitutional speedy trial grounds and by admitting

evidence      of     a    kidnapping     committed    by   Satterfield’s      drug

trafficking associates, abused its discretion by refusing to give

a requested supplemental instruction in response to a jury question

regarding Fed. R. Crim. P. 35, and clearly erred by applying a two-

level sentencing enhancement for being an organizer or manager

pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) (2005)

(USSG).    Finding no error, we affirm.

              Satterfield asserts for the first time on appeal a speedy

trial violation in the district court; therefore the claim is

reviewed for plain error.              Fed. R. Crim. P. 52(b); United States

v.   Olano,    507       U.S.   725,   731-32   (1993).    Satterfield’s   brief

primarily asserts a statutory speedy trial error, and makes a short

reference in closing to violation to his constitutional speedy

trial rights.




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              Under the Speedy Trial Act, an indictment must be filed

within thirty days from the date on which a defendant is arrested,

18 U.S.C. § 3161(b) (2000), and the trial must commence within

seventy days of the filing date of the indictment or the date of a

defendant’s initial appearance, whichever is later.                   18 U.S.C.A.

§   3161(c)(1)    (West    2000   &   Supp.     2007).     Certain      delays   are

excludable when computing the time within which a defendant must be

indicted or his trial must commence.              18 U.S.C. § 3161(h)(1)-(9)

(2000).        Satterfield    argues    that     his     indictment     should   be

dismissed.      However, because Satterfield did not object to the

alleged violation of the Speedy Trial Act prior to the trial

commencing, he is deemed to have waived the right to dismissal of

the indictment. 18 U.S.C. § 3162(a)(2) (2000). Satterfield argues

that even if he waived his statutory right to a speedy trial, the

district court had a duty sua sponte to reject the waiver and

dismiss the indictment.            However, where the Speedy Trial Act

violation is completed prior to trial or the entry of a guilty

plea,   the    defendant     is   deemed   to    have    waived   the    completed

violation by declining to move to dismiss the indictment.                        See

Zedner v. United States, 126 S. Ct. 1976, 1986 (2006).

              To the extent Satterfield claims his Sixth Amendment

right to a speedy trial was violated, this claim is without merit.

In determining whether a pretrial delay violated a defendant’s

Sixth Amendment right, a court must balance four considerations:


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(1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of his right to a speedy trial; and (4) the

extent of prejudice to the defendant.          Barker v. Wingo, 407 U.S.

514, 530 (1972).       The Supreme Court has explained that the first

factor actually involves two inquiries.         Doggett v. United States,

505 U.S. 647, 651-52 (1992).        The first question is whether the

delay is sufficient to trigger a speedy trial inquiry.             The Court

has answered this question affirmatively when the delay approaches

one year.     Id. at 651-52 & n.1.         Second, courts must consider,

together with other relevant factors, “the extent to which the

delay stretches beyond the bare minimum needed to trigger judicial

examination of the claim.”        Id. at 652.      The delay between the

return of Satterfield’s indictment and his trial was approximately

seventeen months, and is sufficient to trigger the speedy trial

inquiry.     See Doggett, 505 U.S. at 651-52.

             In order to prevail on his claim, Satterfield must

establish “that on balance, [the] four separate [Barker] factors

weigh in his favor.”       United States v. Thomas, 55 F.3d 144, 148

(4th Cir. 1995).       First, the seventeen-month delay was certainly

lengthy, perhaps uncommon, but is not an extraordinary delay.

Second, the reason for the delay appears to be mostly related to

Satterfield’s strategy to wait for the United States v. Booker, 543

U.S.   220   (2005),   decision   and   the   eventual   fallout   of   legal

precedent interpreting the landmark case.           Satterfield does not


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dispute that the Government attempted to contact him several times

to ascertain whether he intended to plead guilty or proceed to

trial once he withdrew his guilty plea.         Third, Satterfield never

asserted his right to a speedy trial prior to raising the argument

on appeal.    Finally, although Satterfield alleges prejudice due to

loss of his liberty and alleged inability to litigate his case, he

does not establish any particularized prejudice, such as loss of

witnesses or specific indication of witness memory loss.                We

therefore conclude that Satterfield has not established a statutory

or constitutional speedy trial error.

             Next, Satterfield argues that the district court erred by

admitting evidence regarding a kidnapping of Stevie Hester by

Satterfield’s co-conspirators.         He argues that the evidence was

“unfairly     prejudicial   and   monopolized    the   trial,”   and   was

impermissible under Fed. R. Evid. 403.      Satterfield did not object

at trial to the admission of evidence about his co-conspirators’

commission of a kidnapping.       Therefore, review is for plain error.

See Olano, 507 U.S. at 731-32.

             Rule 403 excludes otherwise relevant evidence “if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.”           Fed.

R. Evid. 403.     “Prejudice, as it is used in Rule 403, refers to

evidence that has an undue tendency to suggest a decision on an

improper basis, commonly, though not necessarily, an emotional


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one.”   United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997)

(internal quotation marks and citations omitted).                “The mere fact

that the evidence will damage the defendant’s case is not enough —

the evidence must be unfairly prejudicial, and the unfair prejudice

must substantially outweigh the probative value of the evidence.”

United States v. Hammoud, 381 F.3d 316, 341 (4th Cir. 2004) (en

banc) (internal quotation marks and citations omitted), vacated on

other grounds, 543 U.S. 1097 (2005).

           “Rule 403 judgments are preeminently the province of the

trial courts.        We thus review a district court’s admission of

evidence over a Rule 403 objection under a broadly deferential

standard.”      United States v. Love, 134 F.3d 595, 603 (4th Cir.

1998) (internal quotation marks and citations omitted).                      The

district court’s ruling is overturned only under extraordinary

circumstances, where the district court’s discretion has been

plainly abused, and it acted arbitrarily or irrationally.                 United

States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990).              The evidence

is   reviewed   in    the   “light   most    favorable     to   its   proponent,

maximizing its probative value and minimizing its prejudicial

effect.”   Id. (internal quotation marks and citations omitted).

           Satterfield objects to the weight of the evidence and

cites to multiple pages of testimony to establish undue prejudice.

However,   defense     counsel   elicited     the   bulk    of    the   evidence

regarding the kidnapping.            In addition, on appeal Satterfield


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contests the testimony his attorney elicited on direct and re-

direct examination of his own witness, Stevie Hester, and objects

to Hester’s testimony on cross-examination by the Government.              In

his closing argument, Satterfield argued that Hester’s testimony

proved that co-conspirator William Perry was not a credible witness

and therefore his testimony regarding all conspiracy events should

be discounted.

          As the foregoing facts demonstrate, Satterfield engaged

in repeated questioning as to the kidnapping and presented his own

witness to elicit evidence regarding the kidnapping.            He therefore

should not be allowed to benefit through his own invited error.

See United States v. Neal, 78 F.3d 901, 904 (4th Cir. 1996)

(explaining invited error).

          Regardless,    there    is   no   Rule   403    error,   plain   or

otherwise, as the kidnapping evidence was relevant because it was

probative of Satterfield’s drug distribution activities within the

conspiracy.      The   Government’s    intention    was    to   prove   that

Satterfield distributed to other conspiracy members.            The evidence

was not unduly prejudicial because Satterfield himself elicited

most of it as part of his trial strategy.

          Finally, Satterfield assigned error to the district court

for failing to weigh the probative value of the evidence by the

danger of unfair prejudice.      The district court did not err in this




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regard because it is not required to weigh the evidence under Rule

403, sua sponte, if there is no objection made by counsel.

              Next,    Satterfield           challenges      the   district     court’s

response to a jury question.                In response to the jury’s question of

“What is Rule 35,” the court declined defense counsel’s invitation

to read or supply the text of Rule 35(b) to the jury.                    Instead, the

court answered the question directing the jury to make their

decision “based on the evidence presented in this case and my jury

instructions considered as a whole. . . . It is up to you to

remember what evidence has been presented in this case concerning

Rule 35 and consider such evidence in the context of all of the

evidence and my jury instructions considered as a whole.”                         (J.A.

951). In its initial jury instructions, the court advised the jury

that the testimony of individuals who have entered into plea

agreements should be “received with caution and weighed with great

care.”    (J.A. 911).

              The necessity, extent, and character of supplemental jury

instructions are a matter within the discretion of the district

court and should be reviewed for an abuse of discretion.                         United

States v. Horton, 921 F.2d 540, 547 (4th Cir. 1990).                     We have held

that when evaluating the adequacy of supplemental jury instructions

given    in   response     to     a    question      asked    by   the   jury    during

deliberations,        it   must       ask    “whether   the    court’s    answer    was

reasonably responsive to the jury’s question and whether the


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original and supplemental instructions as a whole allowed the jury

to understand the issue presented to it.”            See Taylor v. Virginia

Union University, 193 F.3d 219, 240 (4th Cir. 1999) (quoting United

States v. Stevens, 38 F.3d 167, 170 (5th Cir. 1994)); see also

United States v. Martinez, 136 F.3d 972, 977 (4th Cir. 1998)

(holding that the proper inquiry when examining a district court’s

response to a jury’s request for clarification on a charge is

whether   the   court     addresses      the   jury’s   inquiry    fairly   and

accurately without creating prejudice).

           Satterfield argues that the district court’s refusal to

provide the jury with a definition of Rule 35, or with the text

itself, prejudiced him.       During trial, defense counsel argued that

the witnesses may receive additional reduction of their sentences,

and   questioned    witnesses    regarding     the   possibility    of   future

reductions.     Defense counsel made an issue of the Government

witnesses’ credibility and contends that the jury could not fully

evaluate credibility without understanding the mechanism for a

further reduction of sentence after Satterfield’s trial.                    The

Government contends that the court did not abuse its discretion

because merely providing the text of Rule 35 would have been

confusing to the jury, the proper inquiry was the witnesses’

understanding      of   the   benefits    of   cooperation,   and    therefore

Satterfield’s ability to conduct his defense was not impaired.




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           We conclude that the district court’s supplemental jury

instruction was adequate.     The original instruction, coupled with

the supplemental instruction, allowed the jury to understand that

witness testimony by a co-conspirator, or someone who has entered

into a plea agreement with the Government, should be weighed with

care because of the inducements of sentence reduction.           On cross-

examination of the Government’s witnesses, defense counsel elicited

testimony regarding the expectations of sentence reduction, which

was the key consideration.        The legal terminology of Rule 35 was

not relevant compared with the witnesses’ understanding of the

possibility    of   further   sentence      reduction   in   exchange   for

cooperation.    Therefore, the court addressed the jury’s inquiry

fairly and accurately without creating prejudice.            See Martinez,

136 F.3d at 977.

           Last,    Satterfield    received     a   two-level   sentencing

enhancement pursuant to USSG § 3B1.1(c) for being an organizer,

leader, manager or supervisor of criminal activity.          He challenges

the court’s factual finding that he was a leader or manager

claiming that he was acting alone and did not exert any managerial

control or supervise others.

           The district court’s determination that the defendant’s

conduct warrants a sentence enhancement is reviewed for clear

error.   United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).

A defendant qualifies for a two-level role adjustment if he was a


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leader, organizer, manager, or supervisor in any criminal activity

that   did   not   involve    five   or    more   participants    and   was   not

otherwise extensive.      Id.; USSG § 3B1.1(c).        For a role adjustment

to be given because a defendant was a leader, the defendant must

have controlled others. United States v. Carter, 300 F.3d 415, 426

(4th Cir. 2002).

             The district court determined that Satterfield controlled

how drugs were distributed to his dealers Oakley, Perry, Terry, and

Thorpe.      The court specifically found that fronting cocaine to

another dealer was indicative of control.               In this matter, the

evidence     contained   in   the    PSR    demonstrated   that    Satterfield

exercised control over several associates in the distribution of

cocaine base. He not only distributed to at least four individuals

as identified by the district court, but Oakley and Perry testified

that he occasionally engaged runners to deliver the drugs.                    The

evidence also showed that Satterfield fronted drugs to others.

Accordingly, we conclude that the district court did not plainly

err in its application of § 3B1.1.

              We therefore affirm the judgment. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                                        AFFIRMED




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