U.S. v. Saeku
| Decision Date | 28 April 2011 |
| Docket Number | No. 08-4949,08-4949 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SOMSAK SAEKU, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
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)
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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.
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 inbulk from retail stores and sold them on the Internet, and thereafter made false stolen property claims to his homeowner's insurance carrier.
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. OnAugust 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 cafe 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 onehad 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.
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, 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. Theinvestigators 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.
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, thecourt 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 beout 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]...
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