United States v. Jen Seko

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 7, 2019
• Docket: 17-4479
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4479

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JEN SEKO, a/k/a Hanh Thuy Nguyen,

Defendant - Appellant.

No. 17-7116

No. 17-4495

Plaintiff - Appellee, v.

SAMMY REDI ARAYA, a/k/a Samaraii, a/k/a Samaraii Rainmaker,

No. 17-4497

MICHAEL DAVID HENDERSON, a/k/a Money Making Mike,

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:15-cr-00301-JCC-6; 1:15-cr- 00301-JCC-7; 1:15-cr-00301-JCC-10)

Submitted: May 30, 2019 Decided: June 7, 2019

Before WILKINSON and RICHARDSON, Circuit Judges, and DUNCAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Peter L. Goldman, O’REILLY & MARK, P.C., Alexandria, Virginia; Craig W. Sampson, BARNES & DIEHLL, PC, Richmond, Virginia; Curtis S. Fallgatter, FALLGATTER & CATLIN, P.A., Jacksonville, Florida, for Appellants. G. Zachary Terwilliger, United States Attorney, Samantha P. Bateman, Ryan S. Faulconer, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for

2 Appellee.

Unpublished opinions are not binding precedent in this circuit.

3 PER CURIAM:

A jury convicted Jen Seko, Sammy Redi Araya, and Michael David Henderson

(collectively, “Defendants”) of conspiracy to commit wire and mail fraud, in violation of

18 U.S.C. § 1349 (2012), as well as several substantive counts of wire fraud, in violation

of 18 U.S.C. §§ 1343, 2 (2012), and mail fraud, in violation of 18 U.S.C. §§ 1341, 2

(2012). In these consolidated appeals, Defendants challenge their convictions on

multiple grounds. Finding no reversible error, we affirm.

First, Henderson argues that the district court erred in denying his motion to

dismiss the charges against him pursuant to the Speedy Trial Act, 18 U.S.C. § 3161

(2012). We review the district court’s Speedy Trial Act determinations de novo and its

underlying factual findings for clear error. United States v. Rodriguez-Amaya, 521 F.3d

437, 440 (4th Cir. 2008). Henderson argues that the district court continued his trial date

from February 13, 2017, to April 10, 2017, without his consent and that the Speedy Trial

Act does not permit the exclusion of this continuance from the 70-day period by which

his trial was required to begin. See 18 U.S.C. § 3161(c)(1). We need not resolve this

question because, as the Government notes, Henderson’s trial commenced within the 70-

day statutory period, regardless of whether the continuance Henderson challenges is

excluded. We therefore find no reversible error in the district court’s Speedy Trial Act

ruling.

Next, Henderson argues that the district court erred by issuing a jury instruction

about willful blindness. We review this issue for abuse of discretion, United States v.

Bartko, 728 F.3d 327, 343 (4th Cir. 2013), and find none here. Because Henderson’s

4 defense included a claim that he lacked knowledge of the other Defendants’ criminal

conduct, the district court properly instructed the jury on willful blindness. See United

States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999).

Seko and Araya challenge different evidentiary rulings by the district court that

they claim resulted in the improper admission of hearsay evidence. We review a trial

court’s evidentiary rulings for abuse of discretion and “will only overturn an evidentiary

ruling that is arbitrary and irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir.

2011) (internal quotation marks omitted).

Seko’s hearsay claim concerns testimony from a Government witness about an

out-of-court statement that explicitly was introduced not for its truth, but to show its

effect on Seko’s state of mind. The district court duly gave the jury an appropriate

limiting instruction regarding this testimony, both during the Government’s case-in-chief

and prior to final deliberations. As the district court repeatedly explained in rejecting

Seko’s argument numerous times, a statement not offered for its truth is, by definition,

not hearsay. See Fed. R. Evid. 801(c)(2). We find no error in the district court’s ruling.

Araya’s hearsay argument relates to hard copies, in spreadsheet form, of electronic

voicemail records that were kept by a voicemail company in the ordinary course of its

business. Because machine-generated raw data do not constitute hearsay, United States

v. Washington, 498 F.3d 225, 231 (4th Cir. 2007), the district court did not err by

admitting these documents.

Seko and Araya further argue that the evidence at trial was insufficient to support

their convictions. “A defendant challenging the sufficiency of the evidence faces a heavy

5 burden.” United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). “A jury’s verdict

must be upheld on appeal if there is substantial evidence in the record to support it.” Id.

at 244. Evidence is “substantial” if, viewed in the light most favorable to the

Government, “there is evidence that a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.”

Id. at 245. We review de novo the district court’s evaluation of the sufficiency of the

evidence supporting a conviction. United States v. Barefoot, 754 F.3d 226, 233 (4th Cir.

2014).

Having carefully reviewed the entire record, we conclude that the jury had ample

evidence from which it could reasonably find that these Defendants were guilty beyond a

reasonable doubt of each offense of conviction. Because Defendants have not met the

heavy burden necessary to disturb the verdicts against them, we reject their claims of

insufficient evidence.

Finally, Araya contends that the district court erred by declining his invitation to

open a posttrial investigation into a Government witness who, Araya believes, committed

perjury at trial. The record contains no evidence to support Araya’s allegation of perjury,

and we reject this claim as baseless.

Accordingly, we affirm the judgments of the district court with respect to all

Defendants. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED