                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-4283


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRYAN KEITH NOEL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Richard L. Voorhees,
District Judge. (1:09-cr-00057-RLV-1)


Argued:   October 24, 2012                 Decided:   December 28, 2012


Before DAVIS and FLOYD, Circuit Judges, and Catherine C. EAGLES,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by unpublished opinion.        Judge Eagles        wrote   the
opinion, in which Judge Davis and Judge Floyd joined.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Melissa Louise Rikard, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.   ON BRIEF: Henderson
Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, Matthew Segal,
Allison Wexler, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant.       Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
EAGLES, District Judge:

        A jury convicted Bryan Keith Noel of conspiracy to commit

mail fraud, multiple counts of mail fraud, conspiracy to commit

money    laundering,         money   laundering,     multiple    counts   of    bank

fraud, multiple counts of making false statements to a bank, and

making a false oath in a bankruptcy proceeding.                    J.A. 2192-93,

2460.     Noel was sentenced to 300 months’ imprisonment.                       J.A.

2453, 2461.       On appeal, Noel challenges two evidentiary rulings,

the     propriety       of    the    prosecutor’s     remarks    during   closing

arguments, and a sentencing enhancement.                  Finding no reversible

error, we affirm.



                                          I.

                                          A.

       Noel’s convictions in large part stem from an investment

fraud scheme.           The government alleged that, between 2003 and

2006, Noel recruited retirees to invest more than $10 million

with    his    estate     planning     company,     Certified    Estate   Planners

(“CEP”), by assuring them that their funds would be invested in

small-cap stocks and that the investments were low-risk.                        J.A.

252-54, 372.

       Although     Noel      consistently     provided    the   investors     with

quarterly statements indicating favorable returns, J.A. 281-82,

333-40,       376-77,    420-23,     650-52,    654-58,    744-45,   751,      their

                                          3
investments were generally unsuccessful.                        J.A. 985.          In early

2002, Noel agreed to offer a stock trading program developed by

Alexander      Klosek,      who   was    employed      by    CEP     as   an   independent

trustee and accountant.               J.A. 817, 820, 828-30.                   The program

went    well       for     several      months,       but     it     began        sustaining

substantial losses by June 2002.                   J.A. 842.       Klosek did not tell

Noel about the losses.            J.A. 842-44, 853-60.

       In 2003, Noel began borrowing money from CEP’s investor

funds   to   pay     for    his   start-up         mining    business,      including    $2

million to purchase a factory in Tennessee.                          J.A. 861-65, 872.

Noel and Klosek agreed to conceal the loan from the investors.

J.A. 875, 879-80, 915-16, 934, 1168.                        Noel continued to borrow

money   from       CEP   to   fund      his    start-up       companies        until   2006,

totaling an additional $2 million.                    J.A. 467, 474, 889, 903-04,

906-07, 912-13, 1360-63, 2270-74.                     In 2005, Klosek told Noel

about the losses sustained as a result of the stock trading

program.        J.A.       985-91.       Noel       continued      to     issue    positive

quarterly      statements.           J.A.     333,   337,     423,      893-96,    1718-19,

2223.

       Of    the     over     $10     million        invested        by    CEP     clients,

approximately $2 million were lost in stock market trades and

more than $4 million were diverted to Noel’s start-ups before

CEP’s collapse in August 2006.                      J.A. 1348, 1369, 1406, 1979,



                                               4
2267, 2275, 2359.           When the government seized CEP’s accounts in

August 2006, only $997,630.20 remained.                  J.A. 1375.

                                           B.

       Noel’s bank fraud convictions arose from Noel’s fraudulent

statements     on    two    loan   applications.          In     late     2005,       one   of

Noel’s    start-up     companies       applied     for     and      received      a    $1.25

million    loan     from    Carolina      First   Bank.        J.A.     1001,     1474-75,

1479, 1504, 1805, 1826.            The stated purposes of the loan were to

repay    an   earlier       loan   from    Carolina       First     and     to    purchase

equipment.        J.A. 1475, 1479, 1504, 1805, 1826.                  Noel signed the

loan on behalf of his start-up.                   J.A. 1504.          Noel and Klosek

actually invested the money in the stock market, hoping to make

enough to repay CEP for the funds Noel had routed to his start-

ups.     J.A. 1001-15, 1453.              The investments were unsuccessful,

and    Noel   again   sustained        substantial       losses.          J.A.    1006-07,

1018-20, 1196, 1970-74, 2368.

        In August 2006, Noel sought to refinance his home.                              J.A.

1511-12.      In his loan application, Noel falsely stated that he

was not a defendant to any lawsuit.                  J.A. 1322, 1381-82.                Noel

also certified that his income was $23,000 per month.                                   J.A.

1517,     1530,     1538,     1993-97.          However,       on     his   later-filed

bankruptcy petition, Noel reported his 2006 income as $150,000;

on his 2006 tax return, he reported $154,783.                        J.A. 1447, 1993-

97.

                                            5
                                              C.

     Noel’s        bankruptcy        fraud    convictions        stemmed          from   false

statements       he    made     on   his     August    2007     bankruptcy          petition.

Despite owning a 2007 BMW with a purchase price of $72,890 and a

$1000 assault rifle, Noel listed only a 1997 Ford truck valued

at $3500 and only $100 in sporting goods.                           J.A. 1631-34, 1654,

1683, 1685-86, 1688.



                                              II.

     On   appeal,        Noel    first     contends      that       the    district       court

erred in admitting testimony from four CEP investors about the

effects     of        their     financial          losses,    rendering           his     trial

fundamentally unfair under the Due Process Clause of the Fifth

Amendment.        The victims testified over defense objections that

after losing the money they invested with CEP, they could not

pay off their mortgages, had to sell their homes, and had to

work despite having saved for retirement.                       J.A. 283-84, 388-89,

638-39.          The    government’s          final     witness,          Carol    Odegaard,

testified     in       tears    that    she    almost        lost    her     home,       became

depressed, had thoughts of suicide, and could not afford her

medication.       J.A. 1720-21.

     We     review       preserved       evidentiary         rulings        for    abuse     of

discretion and will only reverse a ruling that is “arbitrary and

irrational.”           United States v. Cloud, 680 F.3d 396, 401 (4th

                                               6
Cir. 2012) (internal quotation marks omitted).                            Under Rule 52(a)

of the Federal Rules of Criminal Procedure, evidentiary rulings

are subject to harmless error review, “such that ‘in order to

find a district court’s error harmless, we need only be able to

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) (quoting

United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)).

      The    testimony        about      the     victims’         financial         losses     was

relevant to prove intent to defraud.                            Cloud, 680 F.3d at 402;

see also United States v. Copple, 24 F.3d 535, 545 (3d Cir.

1994)     (“Proving       specific         intent          in    mail    fraud        cases    is

difficult, and, as a result, a liberal policy has developed to

allow     the     government          to       introduce          evidence          that      even

peripherally      bears       on   the     question         of    intent.           Proof     that

someone was victimized by the fraud is thus treated as some

evidence     of     the       schemer’s              intent.”      (internal          citations

omitted)).        Even Odegaard’s testimony about her mental health

was     offered    in     the      context           of    explaining         the     financial

consequences      of    the    fraud       and       her   inability      to    pay    for     her

prescription medicine. This testimony was extremely brief and

was followed by a cautionary instruction not to be swayed by

sympathy or pity.

                                                 7
       Even assuming that the district court erred in admitting

Odegaard’s testimony, the error was harmless and did not rise to

the level of a due process violation.                      The jury heard extensive

testimony from Klosek that Noel planned and executed a scheme to

defraud the investors.               Several victims testified as to what

Noel   said     would   be    done    with       their    money    and     what    actually

happened to it.         The government presented documentary evidence

of the losses contrasted with letters in which Noel assured CEP

clients that their investments were thriving.                        The brief victim-

impact testimony “was therefore cumulative and did not have a

substantial or injurious effect on the jury’s verdict.”                             United

States     v.    DeLeon,      678     F.3d        317,     328     (4th     Cir.    2012).

Additionally, Noel was acquitted on one charge, indicating the

jury was not unfairly influenced by passion or sympathy.                              Thus,

we   are   confident      that      the   jury’s         guilty    verdicts       were   not

attributable      to    any      error    in       admitting        the    victim-impact

testimony.      See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).



                                          III.

       Noel also argues that the district court erred in admitting

Klosek’s      testimony       because     Klosek          was     taking    anti-anxiety

medication.      Noel contends that the testimony violated the Sixth

Amendment’s Confrontation Clause because the medication acted as



                                             8
a “screen” that deprived Noel of a meaningful opportunity for

confrontation and cross-examination.

       Because    defense     counsel   did   not   object   at   trial   with   a

reasonable degree of specificity as to the Confrontation Clause

violation, objecting instead on competency grounds, this claim

is subject to plain error review.               See Fed. R. Evid. 103(a);

United States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (“The

mandate for specificity in the Rule imposes upon the objecting

party the obligation to object with that reasonable degree of

specificity which would have adequately apprised the trial court

of the true basis for his objection; and would have clearly

stated the specific ground now asserted on appeal.” (internal

quotation        marks,      citations,       and    alteration      omitted)).

Accordingly, we will reverse only if Noel demonstrates error

that    was   plain   and    affected   his   substantial    rights.      United

States v. Mackins, 315 F.3d 399, 408 (4th Cir. 2003).

       The Confrontation Clause protects a defendant’s right to

face witnesses who testify against him and his right to conduct

cross-examination.          See Pennsylvania v. Ritchie, 480 U.S. 39, 51

(1987); United States v. Jinwright, 683 F.3d 471, 482-83 (4th

Cir. 2012).       There is nothing in the record to indicate that

Klosek’s medication had the effect of “screening” Klosek from

Noel.    See Coy v. Iowa, 487 U.S. 1012, 1020-21 (1988) (holding

that a witness’s testimony, given from behind a screen designed

                                          9
to    block    the    witness’s      view     of     the    defendant,   violated    the

defendant’s right to a face-to-face encounter).                          Further, Noel

was    given    a    full     and    complete       opportunity     to   cross-examine

Klosek   in    front     of    the    jury,        including     questions   about   his

mental health and the effects of his medication.                          Accordingly,

we hold that the district court did not err in permitting Klosek

to testify.



                                            IV.

       Noel    next    challenges       the    government’s        closing   argument.

Specifically,         Noel    objects    to        what    he   characterizes   as   the

prosecutor’s (1) call for justice; (2) comparison of Noel to the

victims; and (3) call for the jury to “do the right thing.”

       In the government’s closing argument, after summarizing the

fraud schemes, counsel closed with the following:

            While John Thomas worked for years as a lineman
       in the Wisconsin winters and the hot Midwest summers
       saving up so he and his wife could hike and travel in
       the final years of their retirement, it took Mr. Noel
       one seminar, one meeting, one wire transfer, and one
       big lie to take half of it away and to buy himself a
       factory . . . .

            While Ms. O’Ryan worked hard as a single mom and
       as a teacher saving up so her daughter could go to
       medical school Mr. Noel had other ideas for her money.
       She never even heard of [Noel’s start-up companies]
       until it was too late.

            While Mr. Emme and his wife lived under their
       means for 30 plus years saving up for retirement Mr.
       Noel was using their money to buy a factory . . . , to

                                              10
     fund [one of his start-ups], buying five BMWs in five
     years, refinancing his million-dollar home, and hiding
     his $73,000 BMW, his expensive firearm, and $200,000
     in income from the federal bankruptcy court.

          It’s been an endless stream of lies, members of
     the jury.   But now it is time for the truth.    It is
     time for you to hold Mr. Noel accountable. It is time
     for you to give these people justice.    It is time to
     find the truth. It is time to find him guilty.

J.A. 2093-94.      During the government’s rebuttal, counsel stated

     We’re asking for it to finish right.      These people
     were wronged.    They were lied to repeatedly.    They
     were defrauded.    They were subjected to a scheme to
     defraud, as was the bankruptcy court, as was JP Morgan
     Bank, as was Carolina First Bank, and what we are
     asking you to do is to end it right, to finish it
     right, to do the right thing.

J.A. 2134.

     Because Noel did not object to the prosecutor’s remarks, we

review this claim for plain error.               See United States v. Loayza,

107 F.3d 257, 262 (4th Cir. 1997).

     “[P]rosecutors         enjoy   considerable     latitude   in   presenting

arguments to a jury because the adversary system permits the

prosecutor to prosecute with earnestness and vigor.”                   Bates v.

Lee, 308 F.3d 411, 422 (4th Cir. 2002) (internal quotation marks

and citations omitted).             A prosecutor’s remarks may violate a

defendant’s due process rights, however, if the remarks were (1)

improper;    and     (2)    so   prejudiced    the   defendant’s     substantial

rights   that   he    was    denied   a   fair    trial.   United     States   v.




                                          11
Wilson,   624   F.3d    640,    656   (4th   Cir.    2010).      In   assessing

prejudice, we consider:

     (1) the degree to which the prosecutor’s remarks have
     a tendency to mislead the jury and to prejudice the
     accused; (2) whether the remarks were isolated or
     extensive; (3) absent the remarks, the strength of
     competent proof introduced to establish the guilt of
     the   accused;    (4)   whether    the    comments    were
     deliberately   placed   before   the    jury   to   divert
     attention to extraneous matters; (5) whether the
     prosecutor’s remarks were invited by improper conduct
     of   defense   counsel;   and   (6)    whether    curative
     instructions were given to the jury.

Id. at 656-57.

     The prosecutor’s comments were not improper and did not

deny Noel a fair trial.          When a crime has a victim, it is not

improper to point that out to the jury.              The argument accurately

summarized the evidence presented at trial and placed Noel’s

conduct in context.          Moreover, the government presented strong

evidence of Noel’s guilt, and the court had already instructed

the jury to resist being swayed by sympathy for the victims.

     Having     found   no     reversible    error    in   the   admission   of

evidence or the government’s closing argument, we also reject

Noel’s proposition that, combined, the victim-impact testimony

and the government’s closing argument warrant reversal pursuant

to the cumulative error doctrine.             Faced with strong evidence

against Noel and a fundamentally fair trial, we conclude that

cumulatively there is no error.



                                       12
                                          V.

       Finally,     Noel    claims    that      the   district            court    committed

procedural        sentencing        error       by      imposing             a     two-level

sophisticated       means    enhancement        pursuant           to     U.S.    Sentencing

Guidelines Manual (“USSG”) § 2B1.1(b)(9)(C) (2009), and a two-

level sophisticated laundering enhancement, pursuant to USSG §

2S1.1(b)(3).         In     reviewing       a    district            court’s      guidelines

calculation,       “including       its     application              of   any     sentencing

enhancements,       this    Court    reviews      the      district          court’s   legal

conclusions de novo and its factual findings for clear error.”

United States v. Horton, 693 F.3d 463, 474 (4th Cir. 2012).                               We

thus review for clear error the district court’s finding that

Noel used sophisticated means.

       Section 2B1.1(b)(9)(C) of the 2009 guidelines provides for

a    two-level    sentencing      enhancement         if       the      offense    “involved

sophisticated means,” which is defined as “especially complex or

especially intricate offense conduct pertaining to the execution

or   concealment     of     an   offense.”        USSG         §     2B1.1    cmt.   n.8(B).

Likewise,    USSG    §     2S1.1(b)(3)      applies        a    two-level        enhancement

where    a   money       laundering       offense          “involved         sophisticated

laundering,” similarly defined as “complex or intricate offense

conduct pertaining to the execution or concealment of the 18

U.S.C. § 1956 offense.”          USSG § 2S1.1 cmt. n.5(A).



                                          13
       Noel essentially argues that his conduct was not intricate

or complex enough to warrant sophistication enhancements because

he   did    not     use    fictitious     entities,       shell    corporations,      or

offshore accounts.             However, each of a defendant’s individual

actions need not be sophisticated to warrant a sophisticated

means enhancement.             See Jinwright, 683 F.3d at 486 (applying

USSG § 2T1.1(b)(2) tax fraud sophisticated means enhancement);

United States v. Snow, 663 F.3d 1156, 1163-64 (10th Cir. 2011)

(applying USSG § 2B1.1(b)(9)(C)); United States v. Ghertler, 605

F.3d 1256, 1267-68 (11th Cir. 2010) (same); United States v.

Wayland, 549 F.3d 526, 529 (7th Cir. 2008) (same).

       The district court found application of § 2B1.1(b)(9)(C)

and § 2S1.1(b)(3) was appropriate in light of the “intricate web

of   representations           and   manipulations        and    maneuverings”     Noel

created to hide the scheme from his investors.                     J.A. 2398.        This

finding was supported by substantial evidence.                        Over a three-

year period, Noel attracted CEP clients by assuring them that he

would      invest    their     money    safely      and   took    money     from   those

investors to fund his own start-up companies.                       Meanwhile, Noel

intentionally            informed      the        investors      through     quarterly

statements and letters, as well as in person, that their money

was producing well, and Noel instructed Klosek to do the same.

Noel    also      lied    to   two     financial      institutions     in    order    to

perpetuate and obscure the scheme.                   Noel’s three-year period of

                                             14
extensive,   intentional   concealment   is   the   kind   of    scheme

anticipated by the enhancements.      See, e.g., United States v.

Sheneman, 682 F.3d 623, 631-32 (7th Cir. 2012); Snow, 663 F.3d

at 1164; United States v. Fiorito, 640 F.3d 338, 351 (8th Cir.

2011).   Thus, we conclude that the district court did not err in

applying sophisticated means and laundering enhancements.



                                VI.

     For the reasons stated, we affirm Noel’s conviction and

sentence.

                                                                AFFIRMED




                                15
