                                               Filed:   August 23, 2013

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4298
                          (5:09-cr-00321-D-1)


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

GREGORY BARTKO,

                  Defendant - Appellant.



                               O R D E R


           The Court amends its opinion filed August 23, 2013, as

follows:

           On page 17, in the citation to United States v. Bartko

slip op., “W.D.N.C.” is corrected to read “E.D.N.C.”

           On page 30, Part III, second paragraph, line 4, the

spelling of “Jenks” is corrected to read “Jencks.”



                                          For the Court – By Direction

                                             /s/ Patricia S. Connor
                                                       Clerk
                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4298


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

GREGORY BARTKO,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:09-cr-00321-D-1)


Argued:   May 17, 2013                      Decided:   August 23, 2013


Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion.    Judge Floyd wrote the opinion,
in which Judge Keenan and Judge Hudson concurred.


ARGUED: Donald Franklin Samuel, GARLAND, SAMUEL & LOEB, Atlanta,
Georgia, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.       ON
BRIEF: Amanda R. Clark-Palmer, GARLAND, SAMUEL & LOEB, Atlanta,
Georgia, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
FLOYD, Circuit Judge:

      Appellant      Gregory       Bartko     was      charged      by    a   superseding

indictment with conspiracy to commit mail fraud, launder money

instruments,        engage    in     unlawful      monetary      transactions,          make

false statements, and obstruct proceedings of the Securities and

Exchange Commission (SEC), in violation of 18 U.S.C. § 371 (Count

One); mail fraud and aiding and abetting, in violation of 18

U.S.C. §§ 1341 and 2 (Count Two through Count Five); sale of

unregistered securities and aiding and abetting, in violation of

15 U.S.C. §§ 77e, 77x, and 18 U.S.C. § 2 (Count Six); and making

false statements to a federal agent in January and October 2009,

in violation of 18 U.S.C. § 1001(a)(2) (Counts Seven and Eight).

Before     trial,    and     pursuant    to      the    government’s          motion,   the

district court dismissed Counts Seven and Eight, as well as two

of   the   objects     of    the     conspiracy        in   Count    One—making        false

statements and obstructing SEC proceedings.                         After a thirteen-

day trial, the jury convicted Bartko of the remaining counts.

      Thereafter, Bartko filed four motions for a new trial, all

of   which    the     district       court       denied.       The       district      court

subsequently sentenced Bartko to 272 months’ imprisonment.                              This

timely appeal followed.

      In his appeal, Bartko maintains that the district court

erred in denying two of his motions for a new trial, improperly

considered     an     ex     parte     sealed       document        submitted     by     the

                                             2
government, abused its discretion by not instructing the jury on

accomplice/informant testimony and on multiple conspiracies, and

improperly imposed Sentencing Guidelines enhancements based on

the amount of loss, the number of victims, and Bartko’s status

as a registered broker/dealer at the time of the offenses.                      We

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).          Discerning   no   reversible     error,    we     affirm   both

Bartko’s conviction and sentence.



                                         I.

       From 2004 to 2005, Bartko was the leader and organizer of a

financial scheme that involved securing money from investors to

provide funding for two private equity funds, the Caledonian

Fund   and    the    Capstone    Fund.    John     Colvin,    Scott    Hollenbeck,

Darryl Laws, Rebecca Plummer, and Levonda Leamon participated in

the scheme.         As a part of their scheme, the parties mailed,

faxed, and e-mailed correspondence to one another and engaged in

banking transactions.

       Bartko was a securities attorney, investment banker, and

registered broker/dealer.             Laws was also an investment banker

who, along with Bartko, created the Caledonian Fund.                   Colvin was

the president of Colvin Enterprises and a co-managing general

partner      with    Scott   Hollenbeck       of   Franklin    Asset     Exchange.



                                         3
Leamon      and   Plummer       were      financial      advisors    who    owned       and

operated Legacy Resource Management (LRM).

      In    January      2004,      Bartko    was    seeking    investors        for    the

Caledonian Fund.          On January 15, 2004, Colvin sent to Bartko a

fax regarding an investment opportunity that one of Colvin’s

companies, Webb Financial Services, was offering.                         The articles

of incorporation for the company were attached.                            They listed

Scott Hollenbeck as the initial registered agent of Webb Group.

These materials made fraudulent claims that the principal and

interest were guaranteed and that the investments were insured.

On January 15 and 16, 2004, Bartko performed a record check on

Colvin with the National Association of Securities Dealers.                             On

February 17, 2004, he made the same record check on Hollenbeck.

According to those records, both had past allegations of forgery

and   both        had    been       fired     from       securities-related         jobs.

Hollenbeck’s check also showed that his securities license had

been suspended for violations of securities rules.

      Bartko      sent    a   fax    to     Laws    on   January    19,    2004,    which

detailed Colvin’s fraudulent fundraising methods.                         For example,

one page of the materials stated that “[p]rincipal investment is

secured & insured [and that the] [i]nterest rate declared is

guaranteed[.]”          In a fax that Colvin sent to Bartko on February

9, 2004, proposing an agreement between Franklin Asset Exchange

and   the    Caledonian       Fund,    Hollenbeck        was   referred     to     in   the

                                              4
materials as a “Co-Managing General Partner” of Franklin Asset

Exchange and as “the founder and creator of both Franklin Asset

Exchange, LLC and The Webb Group Financial Services, Inc.”

     Colvin    ultimately          agreed   to       raise   $3     million     for    the

Caledonian fund through the Franklin Asset Exchange.                            Although

the March 30, 2004, agreement to raise the money was signed by

Colvin, it was Hollenbeck who actually solicited and secured the

money from the individual investors.

     In   April      2004,    the   North       Carolina     Securities       Regulatory

Agency issued a cease and desist order directing Hollenbeck to

stop selling securities in North Carolina.                        This arose from his

involvement    in     a   separate    investment        scheme      regarding       Mobile

Billboards of America (Mobile Billboards).                         Bartko, along with

his co-counsel, Wes Covington, provided legal representation to

Hollenbeck     on     this     matter.           During      the     course    of      that

representation,       Hollenbeck       provided        Bartko       with     information

concerning how he had sold the Mobile Billboards investments.

Hollenbeck informed Bartko that he had promised investors that

their money was guaranteed and insured.                       He also provided to

Bartko    a   copy    of     his    promotional        materials,          including    an

application for an insurance policy that he used to show that

the investment was insured.

     From     January        15,    2004,       to   May     6,     2004,     Hollenbeck

fraudulently raised large amounts of money for the Caledonian

                                            5
Fund, as well as for other investments, from a total of 171

investors.        He     then    deposited        the    money     into    Franklin      Asset

Exchange or some similar account.                       The money was not separated

but   was   instead         comingled.        He        sent    the    money      to   various

entities, as directed by Colvin.

      Hollenbeck and Colvin raised $701,000 for the Caledonian

Fund, which was wired to the Caledonian Fund on four separate

occasions between February and May 2004.                          Bartko and Laws used

the money to pay salaries and expenses.                         None of it was used for

investments or loans.

      In late 2004, after Colvin failed to send Bartko the $3

million     that       he       had   promised,           Bartko       terminated        their

relationship.          In November 2004, the Caledonian Fund dissolved.

The $701,000 in the fund was not returned to the investors.

      Almost      immediately         after   dissolution             of   the    Caledonian

Fund,   Bartko     began        the   Capstone          Fund.      Hollenbeck          was   the

primary fundraiser.             Nevertheless, on December 8, 2004, during a

deposition        with       the      SEC     concerning           Mobile        Billboards,

Hollenbeck was asked what investments he was currently selling.

He failed to mention the Capstone Fund.                               Bartko and his co-

counsel,    Wes    Covington,         were    at    the        deposition        representing

Hollenbeck,       but       neither     one       corrected           Hollenbeck’s       false

statement.



                                              6
       Although securities law disallowed it, Hollenbeck continued

selling    securities       and    raising       money   for    the        Capstone    Fund

through fraudulent means.               Moreover, some of the investors were

not     accredited    or    sophisticated          investors,         as    required     by

securities law.       To be an accredited investor, one’s net worth

or net income must reach a certain threshold.

       On January 11, 2005, Bartko met with potential investors at

LRM.     Around the same time as this meeting, Bartko asked Plummer

and Leamon whether LRM would receive money from the Capstone

Fund’s investors and then send the money back to the Capstone

Fund.      Because    the   money       that    Hollenbeck      had    raised—over      $1

million at that point—was fraudulently obtained and because the

Capstone Fund was an unregistered fund, Bartko wanted LRM to

appear to be the investor.                Plummer and Leamon agreed, and on

January 19, 2005, they opened a bank account with TriStone Bank

for the purpose of receiving the Capstone Fund money.                          TriStone,

however, eventually closed their account and so, at Bartko’s

suggestion, they opened an account with Wachovia.

       Also    on   January       19,    2005,    Bartko    issued         reimbursement

checks    to    several     investors.            But    then    Bartko       instructed

Hollenbeck to have the investors receiving the reimbursements

endorse the checks and return them to LRM.                      Bartko sent some of

the checks to Hollenbeck to return to the investors because he

did not have their addresses.                   Instead, Hollenbeck forged the

                                            7
signatures      of       the    investors       on    the       checks      and    embezzled     the

proceeds.

        The money that was sent to LRM was returned to the Capstone

Fund.        Thus, with the exception of one individual, no refunds

were actually made to the investors.                             All told, Bartko received

$2,684,928.86 from forty Capstone Fund investors.

       In February 2005, the North Carolina Secretary of State

learned that Hollenbeck was continuing to sell investments for

Bartko, and it advised the SEC of that fact.                                 On March 14, 2005,

Alex Rue, an attorney for the SEC, confronted Bartko.                                          Bartko

then    filed       an    interpleader         action       in    the    Middle      District     of

North Carolina on May 26, 2005, and ultimately returned ninety-

four percent of the Capstone Fund money to the court.

       Bartko eventually stood trial for conspiracy to commit mail

fraud,       launder        money      instruments,             and     engage      in    unlawful

monetary transactions (Count One); mail fraud and aiding and

abetting       (Count          Two     through        Count        Five);          and    sale    of

unregistered         securities         and    aiding       and       abetting      (Count      Six).

The district court dismissed Counts Seven and Eight, as well as

two     of    the        objects     of   the        conspiracy         in     Count     One—false

statements and obstructing SEC proceedings.                                  After a thirteen-

day trial, the jury convicted Bartko of the remaining counts.

       Bartko       then       filed    four    motions          for    a    new    trial.       The

district      court       denied       them    all    in    a     comprehensive          and   well-

                                                 8
reasoned 120-page order.             At the subsequent sentencing hearing,

Bartko     objected      to    several        of       the    Sentencing     Guidelines

enhancements, including those based on the amount of loss, the

number     of   victims,       and     Bartko’s          status    as    a   registered

broker/dealer at the time of the offenses.                        The district court

overruled the objections and sentenced Bartko to 272 months’

imprisonment.     This appeal followed.



                                         II.

     First,     Bartko    argues       that       the    district    court      erred   in

denying two of his motions for a new trial.                             Rule 33 of the

Federal Rules of Criminal Procedure provides, in relevant part,

that “[u]pon the defendant’s motion, the court may vacate any

judgment and grant a new trial if the interest of justice so

requires.”      Fed.     R.    Crim.    P.       33.     “We    review    the   district

court’s denial of a motion for a new trial under an abuse of

discretion standard.”           United States v. Wilson, 624 F.3d 640,

660 (4th Cir. 2010).



                                          A.

     Bartko’s first motion for a new trial concerns a report on

Internal    Revenue    Agent     Scott       Schiller’s        interview     with   Judge

Anderson     Cromer,     who    presided          over       receivership    litigation

involving Webb Group and Franklin Asset Exchange as plaintiffs

                                             9
and   Bull   Mountain     Project,      Colvin,     Colvin     Enterprises,      and

others as defendants.          Bartko and Covington had represented the

plaintiffs   and   had       obtained   a    substantial      settlement.       The

government   failed     to    give   this    report     to   Bartko   until    after

trial.

      In the fact section of Bartko’s opening brief, he states

the following:

      This interview summary, referred to in Bartko’s new
      trial motions as the Judge Cromer “302,” revealed that
      the judge believed that Bartko had performed ethically
      and professionally in connection with the coal company
      litigation and that Bartko had made disclosure of his
      prior relationship with Colvin, Hollenbeck and the
      proposed receiver.   Because that information had not
      previously been furnished to the defense, the defense
      did not know that Judge Cromer’s testimony would have
      been favorable. He was, therefore, never called as a
      witness and the topic of the coal company litigation
      was never raised at trial.     The jury never learned
      that Bartko’s efforts on behalf of Hollenbeck’s
      victims   in   other  schemes   resulted  in   a   $20
      million recovery for the people he—Bartko—supposedly
      victimized.

The only mention that Bartko makes in the argument section of

his   opening    brief,      however,       is   that   the    interview      report

“related to Mr. Bartko’s actual innocence of the charges in this

case, because that information related to his behavior and state

of mind, rather than the credibility of any particular witness.”

Bartko also states that the government agreed “when it moved to

exclude this evidence” that it “would have unfairly cast Bartko

in a favorable light.”


                                        10
     After reading Bartko’s opening brief, it first appeared to

us, as it did to the government, that Bartko was not raising

this issue on appeal.      But, then in his reply brief, buried in a

footnote, he states that it is an issue in this appeal and that

“this Brady violation [was] a component of his argument that the

cumulative effect of the withheld evidence resulted in a trial

that was unfair.”

     The argument section of an appellant’s opening brief must

contain the “appellant’s contentions and the reasons for them,

with citations to the authorities and parts of the record on

which   the   appellant   relies.”         Fed.    R.   App.   P.   28(a)(9)(A).

Because Bartko has failed in this regard, we consider this issue

waived.   See Wahi v. Charleston Area Med. Ctr., 562 F.3d 599,

607 (4th Cir. 2009) (concluding that those issues on which the

appellant failed to comply with the specific dictates of Rule

28(a)(9)(A) were waived).



                                      B.

     In Bartko’s second motion for a new trial, he protests that

the government allowed Scott Hollenbeck to testify falsely that

he had not received any promises or inducements in exchange for

his trial testimony.      The Supreme Court long ago opined that “a

State   may   not   knowingly   use   false       evidence,    including   false

testimony, to obtain a tainted conviction.”                Napue v. Illinois,

                                      11
360 U.S. 264, 269 (1959).                       “This is true regardless of whether

the    [g]overnment              solicited       testimony          it    knew    or    should    have

known    to    be    false         or    simply        allowed      such       testimony    to    pass

uncorrected.”            United States v. Kelly, 35 F.3d 929, 933 (4th

Cir.    1994).           A   new       trial     is    required          when    the    government’s

knowing use of false testimony could affect the judgment of the

jury.       See Giglio v. United States, 405 U.S. 150, 154 (1972).

“We do not, however, automatically require a new trial whenever

‘a     combing      of       the       prosecutors’          files       after    the     trial    has

disclosed evidence possibly useful to the defense but not likely

to have changed the verdict. . . .’”                            Id. (quoting United States

v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968)).

       To     obtain         a     new    trial        on     the    basis       that    Hollenbeck

testified falsely, Bartko must demonstrate that Hollenbeck gave

false       testimony;            he     need     not       demonstrate          that    Hollenbeck

committed perjury.                  “[D]ue process is violated not only where

the prosecution uses perjured testimony to support its case, but

also    where      it    uses          evidence       which    it    knows       creates    a    false

impression of a material fact.”                            Hamric v. Bailey, 386 F.2d 390,

394 (4th Cir. 1967).                     Hence, “[e]vidence may be false either

because       it    is       perjured,           or,       though        not    itself     factually

inaccurate, because it creates a false impression of facts which

are known not to be true.”                      Id.



                                                      12
     In early 2009, as part of its investigation of the Capstone

Fund, as well as several other investment schemes, the United

States    Attorney       for   the     Eastern   District     of    North   Carolina

wanted    to    interview      Scott    Hollenbeck.      Thus,      the    government

entered   into      a    proffer     agreement   with   him   and    his    attorney,

Scott Holmes.           The agreement, directed to Holmes but signed by

both Holmes and Hollenbeck, set forth the following:

          As   you   have   indicated, your   client,  Mr.
     Hollenbeck, is interested in meeting with federal
     agents currently investigating the sale of numerous
     investments, including Webb Group, Franklin Asset
     Exchange, Disciples Trust, and Capstone. I have
     informed you that Mr. Hollenbeck is not a target of
     this investigation. The parties will schedule an
     interview of Mr. Hollenbeck to take place at the
     Federal Correctional Institution in Coleman, Florida.
     Mr. Hollenbeck, you, and the United States Attorney’s
     Office (USAO) agree as follows concerning the “ground
     rules” for this interview:

     1.        In any trial in this matter, the USAO will not
               offer into evidence in its case in-chief or at
               sentencing any statements made by Mr. Hollenbeck
               at   the   interview;  provided,   however,  this
               Paragraph 1 shall not apply to any prosecution
               for false statements, obstruction of justice, or
               perjury that is based in whole or in part on
               statements   made   by  Mr.  Hollenbeck   at  the
               interview.

     2.        Notwithstanding Paragraph 1 above:

               a.   the   USAO  may   use   information  derived
                    directly or indirectly from statements made
                    by Mr. Hollenbeck at the interview for the
                    purpose of obtaining other evidence, and
                    that evidence may be used in the prosecution
                    and sentencing of Mr. Hollenbeck by the
                    USAO; in any trial of this matter or at
                    sentencing, the USAO may use statements made

                                          13
                   by Mr. Hollenbeck at the interview to cross-
                   examine him if he testifies or to rebut any
                   evidence offered by or on behalf of him.

     3.            This agreement is limited to statements made
                   by Mr. Hollenbeck at the interview and does
                   not apply to any other statements made by
                   Mr.   Hollenbeck  at   any  other   time.  No
                   understandings,   promises,   or   agreements
                   exist with respect to the meeting other than
                   those set forth in this agreement, and none
                   will be entered into unless memorialized in
                   writing and signed by all parties.

     4.            The USAO will not         share the statements made
                   by Mr. Hollenbeck         during the interview with
                   any other state            or federal prosecuting
                   entity unless the         prosecuting entity agrees
                   to be bound by the        terms of this agreement.

     Please return the original signed copy of this letter
     agreement prior to the interview.

Scott Hollenbeck’s wife, Crystal Hollenbeck, also entered into a

proffer agreement with the government. It is almost identical to

her husband’s agreement.

     At   trial,     on    direct    examination,       the    government      asked

Hollenbeck,   “Mr.        Hollenbeck,   what     if    any    promises   has    the

government    made    to     you    about    your     testimony   here   today?”

Hollenbeck responded, “None.”               Despite any contrary suggestion

by Bartko, our review of the record convinces us that this was a

truthful statement.

     Bartko makes much of the fact that the agreements stated

that the Hollenbecks were not targets of the investigation into

the sale of investments, including Webb Group, Franklin Asset


                                        14
Exchange, Disciples Trust, and the Capstone Fund.                    From this,

Bartko concludes that Hollenbeck had some sort of incentive to

assist the government in its prosecution of Bartko.                  But that is

not how we interpret the agreement.

       Paragraph three of the agreements make clear that “[n]o

understandings, promises, or agreements exist[ed] with respect

to the meeting other than those set forth in th[e] agreement[s],

and none will be entered into unless memorialized in writing and

signed   by   all     parties.”   Because      nothing    in   the    agreements

suggests that the Hollenbecks not being a target was conditioned

on their participation in the investigative interviews, or that

they would not be a target in the future, we decline to graft

such a provision into the agreements.

       Therefore,     Hollenbeck’s    answer     that     he   had    not    been

promised anything in return for his testimony at trial was true.

But, his answer to the follow-up question by his counsel was

not.     During cross-examination of Hollenbeck, Bartko’s counsel

asked, “Now, one of the things that you said when you took the

stand was that the government has made you no promises, correct?

You said that?”         Hollenbeck replied, “That is exactly right.”

Then defense counsel followed up: “And the government has not,

as of this time, made you any promises, have they?”                   Hollenbeck

answered,     “They    have   not.”    The     district    court      held   that

Hollenbeck’s answer to this question was not false.                  However, it

                                      15
provided    an     alternative      analysis         on    the   assumption       that

Hollenbeck’s testimony on this point was false.

     From    our    review    of    the     record,       we   conclude    that    the

government had made a promise to Hollenbeck.                     In fact, it made

to him several promises concerning how the information that he

gave at the investigatory interview would and would not be used

against him.       And, because the government made those promises,

it had a duty to correct Hollenbeck’s answers when he testified

falsely    that    it   had   not    made      any   promises.       But    this    it

regrettably failed to do.           Therefore, we must now decide whether

that testimony could have affected the jury’s judgment.

     Had Hollenbeck testified truthfully when asked whether the

government had made any promises to him up to that time, Bartko

arguably could have used that fact to impeach Hollenbeck.                         But,

having made an exhaustive review of the record, we do not think

that impeachment could have made an iota of difference in the

jury’s final judgment.        As explained by the district court,

     [d]efense counsel thoroughly impeached Hollenbeck on
     the subject of bias in favor of the government and on
     Hollenbeck’s motive to lie to please the government.
     Defense   counsel    thoroughly   impeached   Hollenbeck
     concerning his desire to avoid prosecution for his
     fraud involving Colvin, Webb Group, Franklin Asset
     Exchange, Disciple Trust, the Caledonian Fund, and the
     Capstone Fund.    Defense counsel thoroughly impeached
     Hollenbeck about his desire to receive a cooperation-
     based reduction in his 168-month prison sentence
     stemming    from    the    Mobile   Billboards    fraud.
     Furthermore, defense counsel explored at great length
     and with absolutely devastating effect Hollenbeck’s

                                          16
     character   for   untruthfulness.     Defense   counsel
     recounted the many lies Hollenbeck had told and the
     many frauds he had committed throughout his life. In
     fact, this court has never seen a witness more
     thoroughly impeached than Hollenbeck.   In the face of
     such blistering impeachment and the other evidence in
     the trial, one more false statement by Hollenbeck
     could not have possibly affected the jury’s judgment.

United States v. Bartko, No. 5:09-CR-321-D, slip op. at 101-02

(E.D.N.C. Jan. 17, 2012) (citations omitted).       Consequently, the

district court did not err in refusing to grant to Bartko a new

trial on this issue.



                                   C.

     In Bartko’s second motion for a new trial, he also contends

that the government’s failure to disclose the agreements between

it   and   Scott   and   Crystal   Hollenbeck   amounts   to   a   Brady

violation.

     As this Court recognized in United States v. Wilson, 624

F.3d 640 (4th Cir. 2010):

     In Brady, the Supreme Court held “that the suppression
     by the prosecution of evidence favorable to an accused
     upon request violates due process where the evidence
     is material either to guilt or to punishment,
     irrespective of the good faith or bad faith of the
     prosecution.”   373 U.S. at 87, 83 S. Ct. 1194.      In
     order to prove that the [g]overnment’s failure to
     tender certain evidence constitutes a Brady violation,
     the burden rested on [the defendant] to show that the
     undisclosed evidence was (1) favorable to him either
     because   it   is  exculpatory,  or   because   it   is
     impeaching;   (2)  material  to   the  defense,   i.e.,
     “prejudice must have ensued”; and (3) that the
     prosecution had materials and failed to disclose them.

                                   17
       United States v. Stokes, 261 F.3d 496, 502 (4th Cir.
       2001).

Id. at 660-661.           “Evidence is ‘exculpatory’ and ‘favorable’ if

it ‘may make the difference between conviction and acquittal’

had    it    been     ‘disclosed        and       used       effectively.’”          Id.    at    661

(quoting United States v. Bagley, 473 U.S. 667, 676 (1985)).

And, it is “‘material’ if it is ‘likely to have changed the

verdict.’”       Id.     (quoting Moseley v. Branker, 550 F.3d 312, 318

(4th    Cir.    2008)).           “It    is       an     abuse    of    discretion         for   the

district       court    to    commit          a     legal      error—such       as    improperly

determining         whether       there       was        a     Brady    violation—and            that

underlying legal determination is reviewed de novo.”                                       Wilson,

624 F.3d at 661 n.24.

       There is no dispute that factors one and three of the test

set    forth     in    Stokes      are        satisfied—namely            that       the   proffer

agreements were favorable to Bartko because they were impeaching

and    that     the    prosecution            had       the    materials     and      failed       to

disclose them.          See Stokes, 261 F.3d at 502.                      Thus, our inquiry

here    will     focus       on    only       the        second      element:    whether          the

agreements were material to the defense.                               In other words, was

Bartko prejudiced by the non-disclosure?                          See id.

       The     district      court       held          that    the     Hollenbecks’        proffer

agreements constituted cumulative impeachment evidence.                                     In the

alternative, it stated that there is no reasonable probability


                                                   18
that   the    jury’s     verdict     would     have   been    different     if   the

government had disclosed the agreements.

       If Bartko had had the Hollenbecks’ proffer agreements, he

could have used them in an attempt to attack Scott Hollenbeck’s

credibility.          But,   as   the    district     court    noted,      “Bartko’s

impeachment      of     Hollenbeck      was     devastatingly        thorough    and

thoroughly devastating.”           Bartko, No. 5:09-CR-321-D, slip op. at

103.   It encompassed:

       (1) Hollenbeck’s felony convictions, (2) his bias in
       favor of the government due to his desire to receive a
       Rule 35 motion and a reduction in his 168-month prison
       sentence for his involvement in Mobile Billboard’s
       fraud, (3) his bias in favor of the government due to
       his desire to avoid being prosecuted for the fraud
       that he committed with Colvin, Webb Group, Franklin
       Asset Exchange, Disciples Trust, and others, (4) his
       bias in favor of the government due to his desire to
       avoid being prosecuted for the fraud he committed
       while raising money for the Caledonian Fund and the
       Capstone Fund, (5) myriad specific instances of lying,
       fraud, and forgery throughout Hollenbeck’s adult life,
       (6) prior inconsistent statements to prosecutors, (7)
       contradictions within his trial testimony, and (8) his
       inability to recall certain facts.

Bartko,   No.    5:09-CR-321-D,         slip   op.    at   107-08.      Thus,    the

proffer agreements would have been cumulative and, as such, we

are unable to fathom how the jury’s knowing about them could

have   further   damaged      Hollenbeck’s      credibility.         The    “proffer

agreement[s] had nothing to add and would not have shed any new

light on the depth of Hollenbeck’s wrongdoing, the magnitude of

his incentive to cooperate with the government, or the absence


                                         19
of his credibility.”            Bartko, No. 5:09-CR-321-D, slip op. at

103.      Hence,    we    are   confident         that   there    is    no    reasonable

probability that the jury would have reached a different verdict

if Bartko had been given and effectively used the Hollenbecks’

proffer agreements.



                                            D.

       In Bartko’s third motion for a new trial, he contends that

the    government    committed         a    Brady       violation      in    failing   to

disclose the tolling agreements that it had entered into in 2010

with   Levonda     Leamon.       The       agreements      tolled      the   statute   of

limitations “for potential federal criminal violations regarding

Ms. Leamon’s involvement in the fraudulent sale of investments

during the year 2005, including conspiracy, mail fraud, the sale

of unregistered securities, and money laundering.”                           The purpose

of the agreements was “to allow additional time for the parties

to present facts and discuss the matter . . . [and] to evaluate

and discuss potential resolutions to [the] case.”                            The January

5, 2010, agreement tolled the statute of limitations on Leamon’s

crimes    until    July   5,    2010;      and    the    July    2,   2010,    agreement

tolled the statute of limitations until December 5, 2010.                              It

appears    from    the    record   that,         without   these      agreements,      the

statute of limitations on some of Leamon’s alleged crimes would

have run before she gave her testimony at Bartko’s trial.

                                            20
       As    already    enumerated,       we     consider      three        factors   in

determining whether a Brady violation has occurred:                         whether the

undisclosed      evidence      was    “(1)     favorable      to     [the    defendant]

either because it is exculpatory, or because it is impeaching;

(2) [whether the evidence was] material to the defense, i.e.,

‘prejudice must have ensued’; and (3) [whether] the prosecution

had materials and failed to disclose them.”                   Stokes, 261 F.3d at

502.     The government acknowledges that the Leamon agreements are

impeaching and that it had the materials but failed to disclose

them.       Thus, as before, because factors one and three are met,

we need focus on only the second factor—the materiality factor.

       We “discard[] as immaterial . . . undisclosed impeachment

evidence      where    it   was      cumulative    of     evidence      of     bias   or

partiality already presented ‘and thus would have provided only

marginal additional support for [the] defense.’”                       United States

v.     Cooper,   654    F.3d      1104,   1120    (10th       Cir.    2011)     (second

alteration in original) (quoting Douglas v. Workman, 560 F.3d

1156, 1174 (10th Cir. 2009)).

       “In general, evidence whose function is impeachment may be

considered to be material where the witness in question supplied

the only evidence linking the defendant to the crime.”                           United

States      v.   Avellino,     136     F.3d     249,    256    (2nd     Cir.     1998).

Likewise, we may find impeaching evidence to be “material where

the witness supplied the only evidence of an essential element

                                          21
of the offense.”         Id. at 257.          “This is especially true where

the undisclosed matter would have provided the only significant

basis for impeachment.”         Id..

        Leamon testified at trial that she was a seventy-year-old

high school graduate and former flight attendant.                       She became a

co-owner of LRM in 2003 or 2004 with her role primarily being

community involvement.           She also attested to Bartko’s use of

LRM’s    office    for   the   January    11,     2005,      meeting    and      how   LRM

received money from the Capstone Fund, as well as Hollenbeck’s

other    investors,      and   then    sent    the   money     back    to     Capstone.

According to Leamon, she spoke with Hollenbeck and Bartko about

pooling the money that came in from investors and the potential

round trip of the refund checks as the investors endorsed them

to LRM.      Leamon also stated that LRM received a six-percent

commission from the Capstone Fund.

     Leamon       further   testified     about      LRM’s    process       of   mailing

statements    and     letters    to     investors,      as     well    as     corrected

statements and letters, the closing of the account at TriStone

Bank and the opening of an account with, as Bartko put it, “a

larger bank like a Wachovia.”

     As     the    district     court     noted,      “This     testimony         served

primarily     as     summary    evidence        of    [LRM’s]     bank        activity,

mailings, and meetings, which was corroborated by substantial

documentary evidence, the testimony of victims, the testimony of

                                         22
Plummer, and the testimony of Bartko.”              Bartko, No. 5:09-CR-321-

D,   slip   op.    at   111.     “In    short,   Bartko’s     admissions    and    a

mountain    of    other    evidence    independently       corroborate   Leamon’s

testimony.”       Id. at 112.         As such, Leamon’s testimony was not

material.       And, because it was not material, the district court

did not err in its refusal to grant Bartko a new trial on this

issue.



                                         E.

      Although “courts of necessity examine undisclosed evidence

item-by-item, their materiality determinations must evaluate the

cumulative       effect    of   all    suppressed    evidence     to     determine

whether     a   Brady     violation    has    occurred.”      United   States     v.

Ellis, 121 F.3d 908, 916 (4th Cir. 1997).                  When “the net effect

of the evidence withheld by the [government] in [a] case raises

a reasonable probability that its disclosure would have produced

a different result, [the defendant] is entitled to a new trial.”

Kyles v. Whitley, 514 U.S. 419, 421-22 (1995).                    “A reasonable

probability does not mean that the defendant ‘would more likely

than not have received a different verdict with the evidence,’

only that the likelihood of a different result is great enough

to ‘undermine[] confidence in the outcome of the trial.’”                   Smith

v. Cain, 132 S. Ct. 627, 630 (2012) (quoting Kyles, 514 U.S. at

434).

                                         23
     Here “the likelihood of a different result is [not] great

enough to ‘undermine[] confidence in the outcome of [Bartko’s]

trial.’”    See id.       As the district court aptly noted,

     In so finding, the court stresses that Bartko’s case
     was not a close one.         The trial record reveals
     overwhelming evidence of Bartko’s guilt.      The jury
     carefully heard the evidence over a three-week period.
     The jury received detailed jury instructions.    After
     deliberating   approximately   four  hours,  the  jury
     unanimously convicted Bartko on all six counts.

     . . . .

     Circumstantial this case was; tenuous it absolutely
     was not.   The mountain of evidence marshaled against
     Bartko demonstrated his guilt beyond any shadow of a
     doubt.   Moreover, if the jury had had any doubts,
     Bartko’s testimony destroyed them.     The jury was
     permitted not only to disbelieve Bartko’s testimony,
     but to believe the opposite.

Bartko, No. 5:09-CR-321-D, slip op. at 118.                         Therefore, having

reviewed   the       omitted    evidence      “in    the    context    of       the   entire

record.”     United States v. Agurs, 427 U.S. 97, 112 (1976), and

finding    that      there     is     no   reasonable       probability          that       the

disclosure      of    the      withheld      evidence      or   the    correction           of

Hollenbeck’s      false      testimony       could   have    produced       a    different

result,    we   conclude       that    the    district      court     did   not       err    in

refusing to grant Bartko a new trial.



                                             F.

     Having analyzed the Brady and Giglio issues that Bartko

raises, we pause here to address the discovery practices of the

                                             24
United States Attorney’s office in the Eastern District of North

Carolina. 1   A cursory review of this Court’s opinions reveals

recent consideration of at least three cases involving discovery

abuse by government counsel in this district.   See, e.g., United

States v. Flores-Duran, No. 11-5167, 2013 WL 3286248, *2-4 (4th

Cir. July 1, 2013) 2 (noting that (1) “[d]uring the week prior to

trial, . . . the [g]overnment sent over one thousand pages of

additional discovery, the bulk of which was due no later than

fourteen days prior to trial” and that the government argued its

“discovery violation” was excusable because it “misread[] . . .

the discovery order; a power outage [occurred] at the courthouse

in Raleigh; and [it made a] last minute decision to present

certain evidence” and (2) that on the Saturday immediately prior

to the Monday on which trial was to begin, the government faxed

key information obtained approximately twenty-four hours earlier

to defense counsel’s office, but it did nothing to ensure that

counsel received the fax, even though it sent the information

     1
       We note that the current United States Attorney for the
Eastern District of North Carolina did not assume office until
2011, which is after some of the conduct described herein
occurred.
     2
       We recognize that unpublished cases have no precedential
value in this circuit. We rely on them here not for their legal
conclusions, but only to demonstrate that certain conduct has
occurred repeatedly.




                               25
outside of normal business hours); United States v. Burkhardt,

484 F. App’x 801, 802 (4th Cir. 2012) (considering a defendant’s

appeal of his civil commitment as a sexually dangerous person

and citing as a “matter of concern” the government’s failure to

disclose      prior     to      the   commitment         hearing     that       one     of    the

defendant’s victims would testify); United States v. King, 628

F.3d 693, 701-04 (4th Cir. 2011) (vacating and remanding the

defendant’s         conviction        for     felony     possession        of    a      firearm

because the government “specifically rebuffed both . . . written

and    oral     demands         [by    the      defendant]      that        it        disclose”

potentially     exculpating           grand    jury      testimony    and       “refused        to

disclose”      the      testimony,          even      after    the     district              court

“suggest[ed] that it do so”).                  And this case, which confronts us

with   three    alleged         constitutional         violations—two       instances          of

withholding         discoverable        evidence       and    one    choice        to        leave

uncorrected a witness’s false testimony—only adds to the list.

       Mistakes happen.           Flawless trials are desirable but rarely

attainable.           Nevertheless,           the      frequency      of     the        “flubs”

committed by this office raises questions regarding whether the

errors are fairly characterized as unintentional.                                Cf.         Oral

Argument at 24:50-25:10, Flores-Duran, 2013 WL 3286248 (No. 11-

5167), available           at     http://www.ca4.uscourts.gov/OAaudioop.htm.

(referencing         the     government’s         late    disclosure        of     pages        of

discovery      in     violation       of    the     judge’s    discovery         order        and

                                               26
stating, “This is a repeat offense by the government.                        The order

is entered by the court requiring disclosure by a certain date,

and the government simply ignores it.                   And their explanation for

ignoring it is, ‘I missed it.               So what.         There’s no prejudice.’

And    it   just    happens    again        and       again.”).       Moreover,      the

government’s responses to queries regarding its practices are

less than satisfactory.           For example, in this case, when asked

at oral argument about its failure to correct Scott Hollenbeck’s

testimonial misstatement regarding promises he had received, the

government    suggested       that    at     the      time    Hollenbeck      made    the

misstatement, trial counsel had no recollection of the promises

made to him.        But as Judge Keenan aptly noted, such an idea

“just strains credulity.”            Oral Argument at 21:54-21:56, United

States       v.      Bartko          (No.          12-4298),        available          at

http://www.ca4.uscourts.gov/OAaudiotop.htm.                       Similarly    artless

responses    have   been   given      in    other      cases.      See,     e.g.,    Oral

Argument at 11:20-14:30, Flores-Duran, 2013 WL 3286248 (No. 11-

5167), available      at   http://www.ca4.uscourts.gov/OAaudiotop.htm.

And here, when we gave counsel an opportunity to correct her

farfetched assertion, she refused.                 Faced with such behavior, we

must   conclude     that   this   office         is    uninterested    in     placating

concerns about its practices.

       As detailed above, our confidence in the jury’s conviction

of Bartko was not undermined by the government’s misconduct in

                                            27
this case.       And such is the result in many cases.                        Remedies

elude defendants because discovery violations ultimately prove

immaterial to the verdict.             But that is not the true problem.

The problem is that the government appears to be betting on the

probability     that      reams   of     condemning        evidence    will     shield

defendants’ convictions on appeal such that at the trial stage,

it can permissibly withhold discoverable materials and ignore

false testimony.          Make no mistake, however.             We may find such

practices “harmless” as to a specific defendant’s verdict, but

as to litigants in the Eastern District of North Carolina and

our justice system at large, they are anything but harmless.

“No [one] in this country is so high that [she or] he is above

the law.       No officer of the law may set that law at defiance

with impunity.         All the officers of the government, from the

highest to the lowest, are creatures of the law and are bound to

obey it.”      United States v. Lee, 106 U.S. 196, 220 (1882).                    The

law of this country promises defendants due process, U.S. Const.

amend.    V,   and   the   professional        code   to    which     attorneys    are

subject mandates candor to the court, see Model Rules of Prof’l

Conduct R. 3.3., and fairness to opposing parties, see id. R.

3.4.     Yet the United States Attorney’s office in this district

seems    unfazed     by    the    fact    that    discovery         abuses     violate

constitutional       guarantees     and    misrepresentations          erode    faith

that justice is achievable.            Something must be done.

                                          28
      We urge the district court in the Eastern District of North

Carolina to meet with the United States Attorney’s Office of

that district to discuss improvement of its discovery procedures

so as to prevent the abuses we have referenced here.                           Moreover,

if this sort of behavior continues in subsequent cases, this

Court may wish to require that the United States Attorney for

the Eastern District of North Carolina, as well as the trial

prosecutor, be present at oral argument so that the panel can

speak   directly       to    her   or   him        about   any   alleged   misconduct.

Sanctions or disciplinary action are also options.

      To underscore our seriousness about this matter, and to

ensure that the problems are addressed, we direct the Clerk of

Court to serve a copy of this opinion upon the Attorney General

of    the     United        States      and        the     Office    of    Professional

Responsibility for the Department of Justice.                          The transmittal

letter should call attention to this section of the opinion.

      We do not mean to be unduly harsh here.                       But “there comes a

point where this Court should not be ignorant as judges of what

we know as men [and women].”              Rumsfeld v. Padilla, 542 U.S. 426,

465   n.10    (2004)    (Stevens,        J.,       dissenting)      (quoting   Watts   v.

Indiana, 338 U.S. 49, 52 (1949)).                    What we know is that we are

repeatedly confronted with charges of discovery abuse by this

office.      What we know is that our questions regarding this abuse

remain unanswered.            And what we know is that such conduct is

                                              29
unacceptable.       Appropriate actions need to be taken to ensure

that   the   serious     errors   detailed      herein    are     not     repeated.

Whatever it takes, this behavior must stop.



                                     III.

       Next, Bartko contends that the district court improperly

considered     an   ex   parte     sealed      document       submitted    by     the

government.     Bartko had filed a motion asking the district court

to unseal the document, but the court denied his motion.

       At our request, the government provided to us a copy of the

sealed document, which asks the district court to make an in

camera   review     of   grand    jury    testimony      in    another     case   to

determine whether that testimony contained any Jencks materials.

The district court concluded that the sealed document did not,

and we agree.       Thus, we need not decide whether the district

court erred in considering the document in that it caused no

harm to Bartko.



                                         IV.

       Bartko also maintains that the district court erred by not

instructing the jury on accomplice/informant testimony and on

multiple conspiracies.       A district court’s “decision to give (or

not to give) a jury instruction . . . [is] reviewed for abuse of

discretion.”      United States v. Russell, 971 F.2d 1098, 1107 (4th

                                         30
Cir. 1992).   A district court’s decision not to give a requested

instruction   by   the   criminal   defendant   amounts   to    reversible

error only if the proffered instruction: (1) was correct, (2)

was not substantially covered by the charge that the district

court actually gave to the jury, and (3) involved some point so

important that the failure to give the instruction seriously

impaired the defendant’s defense. United States v. Lewis, 53

F.3d 29, 32 (4th Cir. 1995).          Even if these factors are met,

however, failure to give the defendant’s requested instruction

is not reversible error unless the defendant can show that the

record as a whole demonstrates prejudice.            See Ellis, 121 F.3d

at 923.



                                    A.

     Bartko   complains    that     the   district    court    abused   its

discretion in its refusal to instruct the jury that it “should

consider the testimony of Hollenbeck, Leamon and Plummer with

great care and scrutiny.”      It appears that Bartko asked for an

instruction regarding the testimony of an accomplice, informer,

or witness with immunity.      But, the district court declined and

gave the following instruction instead:

     You, as jurors, are the sole and exclusive judges of
     the credibility of each of the witnesses called to
     testify in this case, and only you can determine the
     importance or weight that their testimony deserves.
     After   making   your   assessment  concerning   the

                                    31
       credibility of a witness, you may decide to believe
       all of that witness’[s] testimony, only a portion of
       it, or none of it.

            In making your assessment of each witness, you
       should carefully scrutinize all of the testimony given
       by each witness, the circumstances under which each
       witness has testified, and all of the other evidence
       which tends to show whether a witness, in your
       opinion, is worthy of belief.

             Consider each witness’[s] intelligence, motive to
       falsify, state of mind, and appearance and manner
       while on the witness stand. Consider each witness’[s]
       ability to observe the matters as to which he or she
       testified and consider whether he or she impresses you
       as having an accurate memory or recollection of these
       matters.    Consider also any relation each witness may
       bear to either side of the case, the manner in which
       each witness might be affected by your verdict, and
       the extent to which, if at all, each witness is either
       supported or contradicted by other evidence in the
       case.

       This    instruction      certainly       encompasses            any    specific

instruction     that     the   jury   “should    consider     the       testimony    of

Hollenbeck, Leamon and Plummer with great care and scrutiny.”

And,    as    detailed    herein,     the    record   fails       to    support      any

argument that the three were promised something in exchange for

their testimony.         Thus, in our judgment, we are unable to say

that the district court’s decision denying Bartko’s request to

give    an    accomplice/informer           instruction     was        an    abuse   of

discretion in that Bartko was not prejudiced by the omission.




                                        32
                                               B.

       Bartko       also    insists      that       the    district     court        erred    in

refusing to give his requested multiple conspiracy charge.                                    “A

court need only instruct on multiple conspiracies if such an

instruction is supported by the facts.”                         United States v. Mills,

995    F.2d       480,    485   (4th    Cir.    1993).           Hence,    “[a]       multiple

conspiracy instruction is not required unless the proof at trial

demonstrates         that    appellants       were    involved      only    in       ‘separate

conspiracies unrelated to the overall conspiracy charged in the

indictment.’”            United States v. Kennedy, 32 F.3d 876, 884 (4th

Cir. 1994) (quoting United States v. Castaneda-Cantu, 20 F.3d

1325,      1333    (5th     Cir.    1994)).         And,    even   if     one    overarching

conspiracy is not evident, the district court’s failure to give

a    multiple      conspiracies        instruction         is   reversible       error       only

when the defendant suffers substantial prejudice as a result.

United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996).                                   For

us    to      find       such      prejudice,        “the       evidence        of    multiple

conspiracies [must have been] so strong in relation to that of a

single conspiracy that the jury probably would have acquitted on

the conspiracy count had it been given a cautionary multiple-

conspiracy instruction.”               Id.

       Bartko proposed that the district court give the following

multiple conspiracy charge:



                                               33
            You must determine whether the conspiracy charged
       in the indictment existed, and, if it did, whether the
       defendant was a member of it.      If you find that the
       conspiracy charged did not exist, then you must return
       a not guilty verdict, even though you find that some
       other conspiracy existed.        If you find that a
       defendant was not a member of the conspiracy charged
       in the indictment, then you must find that defendant
       not guilty, even though that defendant may have been a
       member of some other conspiracy.

       According to Bartko, “the [g]overnment’s evidence, at best,

would    show     that     there   were      two      separate          and    independent

conspiracies:        the   Caledonian     Fund       and    Capstone         Fund.    .   .   .

There    was    no     testimony   that      the     activities         of    either      fund

overlapped or coexisted.           The only connection between the Funds

was Bartko.”

       But, “a single overall conspiracy can be distinguished from

multiple       independent     conspiracies          based    on        the    overlap        in

actors, methods, and goals.”                 United States v. Stockton, 349

F.3d 755, 762 (4th Cir. 2003).                 Here, we have all three.                   The

actors   in     both    conspiracies      were     the     same:    Bartko,          Franklin

Exchange,      and     Scott   Hollenbeck.            The    methods          of     investor

recruitment and the handling of their money were also the same.

And, the goals of raising money for investing and personal gain

were    the    same.       Moreover,    we     are    unable       to    say       that   “the

evidence of multiple conspiracies was so strong in relation to

that of a single conspiracy that the jury probably would have

acquitted on the conspiracy count had it been given a cautionary


                                          34
multiple-conspiracy           instruction.”             Tipton,    90    F.3d    at     883.

Hence,    we    are    unconvinced        that    the       district    court    committed

reversible error in its refusal to give a multiple conspiracy

charge.



                                             V.

       Bartko next complains that the district court improperly

imposed Sentencing Guidelines enhancements based on the amount

of loss, the number of victims, and his status as a registered

broker/dealer         at    the    time     of   the    offenses.         When    deciding

whether the district court properly applied the Guidelines, “we

review    the    court’s      factual       findings     for    clear    error    and    its

legal conclusions de novo.”                  United States v. Allen, 446 F.3d

522,   527      (4th       Cir.    2006).        The    district       court’s   decision

concerning       a     role       adjustment      is    a     factual    determination,

reviewable for clear error.                 United States v. Kellam, 568 F.3d

125, 147-48 (4th Cir. 2009).                     “A finding of fact is clearly

erroneous when, ‘although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.’”                              In re

Mosko, 515 F.3d 319, 324 (4th Cir. 2008) (quoting United States

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).




                                             35
                                                 A.

        Bartko argues that the district court erred in determining

the   amount         of   loss    attributed          to    him.        The     district   court

imposed an eighteen-level increase to his base offense level

pursuant        to    U.S.S.G.     § 2B1.1(b)(1)(J)               (providing      an    eighteen-

level increase for a loss of more than $2,500,000).

      But Bartko claims that he should have been able to take

advantage of a Guidelines-provided credit against loss for the

amount     of     money    he     caused    to    be       returned       “to    the    victim[s]

before      the       offense      was     detected.”               U.S.S.G. § 2B1.1           cmt.

n.3(E)(i).           The Guidelines provide, however, that “[t]he time of

detection of the offense is the earlier of (I) the time the

offense was discovered by a victim or a government agency; or

(II) the time the defendant knew or reasonably should have known

that the offense was detected or about to be detected by a

victim or government agency.”                Id.

      First,         Bartko      contends    that          none    of     the   refund     checks

should be counted in the loss amount.                             But, as detailed above,

and   as    observed       by    the     district       court      during       the    sentencing

hearing, “the part [of the refund checks] that wasn’t embezzled

ended      up    being     filtered        back       through       LRM    as    part     of    the

conspiracy,” with the exception of investor Danny Briley, who

decided not to endorse his refund check over to LRM.                                           Thus,



                                                 36
because the money was not ultimately returned to the investors,

the district court did not clearly err on this point.

       Second, Bartko avers that the loss amount should be reduced

by the money that was returned to the investors through the

interpleader.       As noted above, the SEC knew of Bartko’s offense

when Alex Rue, an attorney from that office, met with him on

March   14,   2005.     But,    Bartko     did   not    file   his   interpleader

action until after that, on May 26, 2005.                  Consequently, he is

unable to avail himself of Guidelines-provided credit against

loss for the amount of money he caused to be returned “to the

victim[s] before the offense was detected.”                    U.S.S.G. § 2B1.1

cmt.    n.3(E)(i).      Thus,    the      district     court   did   not   err   in

overruling Bartko’s objection to this enhancement.



                                          B.

       Bartko also avers that the district court erred by finding

that there were more than fifty victims of his crimes.                     Bartko

posits “that none of the money invested in Caledonian should be

counted towards [his] loss amount . . . .                Therefore, the number

of victims is limited to those people who invested in Capstone,

which is fewer than 50.”         The import of this objection is that,

under U.S.S.G. § 2B1.1(b)(2)(B), the district court is to impose

a four-level enhancement if the offense that the defendant was

convicted     of   “involved    50   or   more   victims.”       The   commentary

                                          37
accompanying       this      Guideline       provides,         in     relevant     part:

“‘Victim’ means . . . a person who sustained any part of the

actual loss determined under subsection (b)(1) [the amount of

loss    chart].”      U.S.S.G.       §     2B1.1    cmt.     n.1.       Neither    party

disputes    that     there    were    at    least      thirty-nine          investors    in

Capstone.      So, we are left to decide if there were at least

eleven investors in Caledonian.              We think that there were.

       As we have already observed, from January 15, 2004, to May

6, 2004, Hollenbeck fraudulently raised large amounts of money

from a total of 171 investors for the Caledonian Fund, as well

as other investments.              The money was not separated, but was

comingled.     He sent the money to various entities, including the

Caledonian Fund, as directed by Colvin.

       If one’s money is combined with other funds and, as here,

$701,000 is lost from the total, then each individual or entity

who    contributed    to     the    total   loses      a    pro-rata    share     of    her

contribution.         And,    because       each    of      those     who    contributed

“sustained     [a]    part     of     the    actual         loss    determined     under

subsection (b)(1),” id., they are a victim pursuant to U.S.S.G.

§   2B1.1(b)(2)(B).          Accordingly,        the       district    court    did     not

commit clear error in its refusal to sustain Bartko’s objection

to the imposition of this enhancement.




                                            38
                                          C.

       Finally, Bartko asserts that the district court erred in

imposing an enhancement pursuant to U.S.S.G. § 2B1.1(b)(18)(A)

inasmuch as, according to him, he was part-owner of a registered

broker-dealer, but it was not used to commit the crime.

       Pursuant    to    U.S.S.G.    §    2B1.1(b)(18),       “[i]f     the    offense

involved . . . a violation of securities law and, at the time of

the offense, the defendant was . . . a registered broker or

dealer, or a person associated with a broker or dealer[,] . . .

increase    by    4     levels.”      The      accompanying     comment       to   this

Guideline defines a “registered broker or dealer” as “a broker

or dealer registered or required to register.”                    U.S.S.G. § 2B1.1

cmt. n.14(A) (incorporating 15 U.S.C. § 78c(a)(48)).

       Without citation, Bartko maintains that “[t]he purpose of

this enhancement is not to increase the punishment for anybody

who   happened    to     have   a   broker-dealer       license    who    commits     a

securities law violation.”            He is mistaken.         The meaning of the

Guideline is clear.         Under § 2B1.1(b)(18), the district court is

to impose a four-level enhancement when a broker or dealer’s

criminal offense involves a securities law violation.                         There is

no    dispute    that    Bartko     was   a    broker   and     that    his    offense

involved    a     securities        violation.          Thus,     the     four-level

enhancement was proper.



                                          39
                               D.

     The government states that, even if we find any procedural

sentencing error in our review, the error is harmless.       But,

because we find no error in the district court’s sentencing of

Bartko, we need not engage in a harmless error review.



                               VI.

     For the foregoing reasons, we affirm Bartko’s conviction

and sentence.

     The Clerk of Court shall serve a copy of this opinion upon

the Attorney General of the United States and the Office of

Professional Responsibility for the Department of Justice.   The

transmittal letter should call attention to Section II(F) of

this opinion.

                                                         AFFIRMED




                               40
