United States of America v. Lea Ann Summers

UNPUBLISHED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

-- 1 of 8 --

2
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

-- 2 of 8 --

3
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 of 8 --

4
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.

-- 4 of 8 --

5
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.

-- 5 of 8 --

6
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 of 8 --

7
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 of 8 --

8
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

-- 8 of 8 --