                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 15-4127


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEA ANN SUMMERS,

                Defendant - Appellant.



                            No. 15-4128


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY SUMMERS,

                Defendant - Appellant.




Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling.    John Preston Bailey,
District Judge.    (5:14-cr-00031-JPB-JES-1; 5:14-cr-00031-JPB-
JES-2)


Submitted:   September 30, 2015           Decided:   November 19, 2015
Before KING, FLOYD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brendan S. Leary, Kristen M. Leddy, FEDERAL PUBLIC DEFENDER
OFFICE, Wheeling, West Virginia; Patricia Valentino Kutsch,
KUTSCH LAW OFFICES, Wheeling, West Virginia, for Appellants.
William J. Ihlenfeld, II, United States Attorney, David J.
Perri,   Assistant  United States Attorney,  Wheeling,  West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       A grand jury charged Lea Ann Summers and Timothy Summers

with conspiracy to commit mail fraud, in violation of 18 U.S.C.

§§ 1341, 1349 (2012), and aiding and abetting securities fraud,

in violation of 18 U.S.C. §§ 1348(2), 2(a) (2012).                            The grand

jury also charged Lea Ann with four counts of mail fraud, in

violation      of    18    U.S.C.    §   1341,      and   Timothy    with     interstate

transportation of stolen property, in violation of 18 U.S.C.

§ 2314 (2012).            The charges stemmed from the Summerses’ sale of

thousands of shares of stock owned by Timothy’s mother, Betty

Woods, and their purchase of a beach house with the proceeds.

Following      a    jury    trial,    the     Summerses     were     found    guilty   as

charged, and the district court sentenced each to twenty-four

months’      imprisonment.          In   their      joint   appeal,    the     Summerses

challenge several of the district court’s evidentiary rulings,

the    court’s      limitation      on   closing      argument,      and    the   court’s

application of a sentencing enhancement.                    We affirm.

       The   Summerses       contend     that      the    district    court    erred   in

excluding the testimony of their expert witnesses, in excluding

hearsay      testimony,      and    in   admitting        rebuttal    testimony.       We

review the district court’s evidentiary rulings for abuse of

discretion.         See United States v. Garcia, 752 F.3d 382, 390 (4th

Cir.    2014)       (regarding       expert       testimony);      United     States   v.

Gonzales-Flores, 701 F.3d 112, 117 (4th Cir. 2012) (regarding

                                              3
hearsay rulings); United States v. Byers, 649 F.3d 197, 213 (4th

Cir. 2011) (regarding rebuttal evidence).                  “A court abuses its

discretion    if    its    decision       is     guided   by    erroneous      legal

principles or rests upon a clearly erroneous factual finding.”

United    States   v.    McLean,    715   F.3d    129,    142   (4th   Cir.    2013)

(internal    quotation      marks     omitted).           Further,     evidentiary

rulings are subject to harmless error review, and any error is

harmless if we can “say with fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error.”     United States v. Johnson, 617 F.3d 286, 292 (4th Cir.

2010) (internal quotation marks omitted).

      The Summerses first contend that the district court abused

its   discretion    in    excluding       the    testimony      of   their    expert

witnesses.    Expert evidence is admissible if it is reliable and

“will assist the trier of fact to understand the evidence or to

determine a fact in issue.”               Fed. R. Evid. 702.           We conclude

that the district court permissibly determined that neither of

the defense’s proffered experts would have provided testimony

that would have assisted the jury in understanding the evidence

or in determining the ultimate issue — whether the Summerses

committed the charged offenses.                Thus, the court’s exclusion of

the defense’s expert testimony was not an abuse of discretion.



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       The Summerses also contend that the district court erred in

excluding as impermissible hearsay Timothy’s testimony regarding

statements       Woods    allegedly          made           granting       him    and    Lea    Ann

permission to sell the stock and use the proceeds.                                  We conclude

that    the    court’s     decision         to        limit    Timothy’s          testimony      was

permissible.          First, both Timothy and Lea Ann were permitted to

testify       that    Woods    agreed        to       the     stock    sale.         Second,      we

perceive no inconsistency between Woods’ grand jury testimony

and her trial testimony.               Finally, we conclude that, contrary to

the Summerses’ contention, Fed. R. Evid. 807 does not except

Woods’    statements          from    the     general          rule        excluding     hearsay.

Under Rule 807, to be excepted from the general exclusionary

rule,    “the    statement       [must]       ha[ve]          equivalent          circumstantial

guarantees       of    trustworthiness.”                     Fed.     R.    Evid.       807(a)(1).

Moreover, “[t]he statement is admissible only if, before the

trial     or    hearing,        the        proponent          gives        an    adverse       party

reasonable notice of the intent to offer the statement and its

particulars, . . . so that the party has a fair opportunity to

meet it.”        Fed. R. Evid. 807(b).                       Here, the defense did not

comply with Rule 807(b), and Timothy’s proposed testimony lacked

the     requisite      indicia        of     trustworthiness.                    Therefore,      the

district court did not abuse its discretion in excluding the

testimony at issue.



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     In the Summerses final evidentiary challenge, they contend

that the district court erred in permitting rebuttal testimony

of one of the investigating agents, Lawrence Quigley.

     Rebuttal evidence is defined as evidence given to
     explain, repel, counteract, or disprove facts given in
     evidence by the opposing party or that which tends to
     explain or contradict or disprove evidence offered by
     the adverse party.   Evidence offered in rebuttal may
     be introduced only to counter new facts presented in
     the defendant’s case in chief.

Byers, 649 F.3d at 213 (internal quotation marks, citation, and

brackets omitted).      We conclude that the district court did not

abuse its discretion in allowing the rebuttal testimony of Agent

Quigley, as he was recalled to counter new details provided by

Lea Ann Summers in her testimony.           Moreover, any impropriety in

Quigley’s rebuttal testimony was harmless in light of all of the

other evidence of the Summerses’ guilt.

     Next, the Summerses contend that the district court abused

its discretion in precluding defense counsel from arguing in

closing   that   the   case   was   a   civil,   rather    than   a   criminal,

matter.     “Generally,       the   district     court    is   afforded    broad

discretion in controlling closing arguments and is only to be

reversed when there is a clear abuse of its discretion.”                  United

States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010) (internal

quotation marks and brackets omitted).

     We conclude that the district court permissibly found that

an argument that this case involved a family matter that should

                                        6
have been handled in a civil suit invited impermissible jury

nullification          See United States v. Thomas, 113 F.3d 606, 616

(2d Cir. 1997); United States v. Perez, 86 F.3d 735, 736 (7th

Cir. 1996) (“An unreasonable jury verdict . . . is lawless, and

the   defendant        has     no    right          to    invite     the    jury      to    act

lawlessly.”).       Thus, the court’s limitation on closing argument

was not an abuse of discretion.

      Finally,     the       Summerses        contend      that     the    district        court

erred in applying the vulnerable victim sentencing enhancement,

pursuant    to    U.S.    Sentencing           Guidelines        Manual,    §    3A1.1(b)(1)

(2014).    “In considering the district court’s application of the

Sentencing       Guidelines,        we   review          factual    findings      for      clear

error and legal conclusions de novo.”                        United States v. Mehta,

594 F.3d 277, 281 (4th Cir. 2010).                       The Guidelines provide for a

two-level enhancement when the defendant “knew or should have

known that a victim of the offense was a vulnerable victim.”

USSG § 3A1.1(b)(1).

      Section 3A1.1(b)(1) thus creates a two-prong test for
      assessing the application of the vulnerable victim
      adjustment.   First, a sentencing court must determine
      that a victim was unusually vulnerable.     Second, the
      court must then assess whether the defendant knew or
      should have known of such unusual vulnerability.

United    States    v.    Llamas,        599    F.3d      381,     388    (4th   Cir.      2010)

(internal quotation marks and citations omitted).                                A victim of

the   offense     is    considered        a     “vulnerable        victim”       if   she    “is


                                                7
unusually vulnerable due to age, physical or mental condition,

or . . . is otherwise particularly susceptible to the criminal

conduct.”    USSG § 3A1.1 cmt. n.2.

        Applying the above standards, we conclude that the district

court correctly found that Woods was an unusually vulnerable

victim     and     that        the     Summerses        were   aware        of    Woods’

vulnerability.       Thus, the court did not err in applying the

vulnerable victim enhancement.

     Accordingly,         we    affirm     the     Summerses’        convictions     and

sentences.       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




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