United States v. Mohammed Keita , 742 F.3d 184 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4957
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOHAMMED KEITA, a/k/a Mohamed Keita,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:12-cr-00200-AW-1)
Argued: October 31, 2013 Decided: February 6, 2014
Before NIEMEYER and WYNN, Circuit Judges, and Louise W.
FLANAGAN, United States District Judge for the Eastern District
of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Niemeyer and Judge Flanagan joined.
ARGUED: Marc Gregory Hall, LAW OFFICE OF MARC G. HALL, P.C.,
Rockville, Maryland, for Appellant. Sujit Raman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
WYNN, Circuit Judge:
A federal jury convicted Defendant Mohammed Keita of
various charges related to credit and debit card fraud.
Defendant appeals, arguing that the district court: should have
dismissed the government’s case based on the Speedy Trial Act;
erred in allowing certain business records into evidence; and
miscalculated the loss at sentencing. For the reasons that
follow, we reject Defendant’s arguments and affirm.
I.
On January 31, 2012, pursuant to a search warrant based on
a credit card fraud investigation, federal agents searched
Defendant’s residence. There, they seized laptop computers
containing stolen credit card information, credit and debit
cards bearing Defendant’s name but re-encoded with stolen credit
card information, numerous credit card receipts, and a device
for re-encoding credit cards. That same day, the agents
arrested Defendant.
On February 10, 2012, with Defendant’s consent, the
government moved for a continuance of the thirty-day time period
to file an indictment under the Speedy Trial Act, 18 U.S.C. §§
3161-3174, stating that the parties were engaged in plea
negotiations. The district court granted the motion and
extended the deadline for filing an indictment through March 15,
2
2012. The court later granted a second consent motion seeking a
continuance to April 5, 2012, because “an on-going grand jury
investigation and plea discussions are being conducted . . . .”
J.A. 27. Plea negotiations ultimately failed, and Defendant was
indicted on April 9, 2012, for three counts of access device
fraud, three counts of aggravated identity theft, one count of
possession of counterfeit access devices, and one count of
possession of device-making equipment.
At trial in August 2012, the jury viewed store surveillance
videos and still photographs of Defendant using “cloned” credit
and debit cards. Loss prevention investigator Robert Fogel
explained that
[a] cloned credit card is a copy of someone’s credit
card . . . . [B]asically somebody has skimmed your
credit card or taken your credit card and run it
through a skimmer, taken the information off the
magnetic strip on the back. Then they . . . transfer
that information onto a blank credit card, onto the
magnetic strip, and then they have a copy or a clone
of your credit card and they can go out and use it as
they wish.
J.A. 174. The government presented evidence that Defendant used
the cloned cards to purchase, among other things, thousands of
dollars’ worth of gift cards and cigarettes. The government’s
witnesses included loss prevention specialists from two stores
where Defendant used the cloned cards, individuals whose credit
cards Defendant had cloned, fraud investigators from American
Express and Chase Bank, a computer forensic expert who analyzed
3
Defendant’s computers, and the lead detective who investigated
the case. Defendant called one witness, who testified that the
apartment federal agents searched was leased to someone other
than Defendant.
The jury convicted Defendant on all counts. At sentencing,
the district court determined that “as a conservative matter the
government has clearly established $136,838.30 as the amount of
the loss here,” J.A. 710, and imposed a total sentence of 76
months’ imprisonment. Defendant appeals.
II.
A.
Defendant first argues that the district court erred in
denying his motion to dismiss the indictment based on asserted
violations of his rights under the Speedy Trial Act. 1 “We review
de novo a district court’s interpretation of the [Speedy Trial
Act], while we review any of the court’s related factual
findings for clear error.” United States v. Leftenant, 341 F.3d
338, 342 (4th Cir. 2003).
The Speedy Trial Act provides that “[a]ny information or
indictment charging an individual with the commission of an
1
Defendant makes no constitutional argument related to
delay.
4
offense shall be filed within thirty days from the date on which
such individual was arrested or served with a summons in
connection with such charges.” 18 U.S.C. § 3161(b). An
indictment filed in violation of the thirty-day time limit must
be dismissed. 18 U.S.C. § 3162(a)(1).
However, certain delays “shall be excluded” when
calculating the thirty-day time period. 18 U.S.C. § 3161(h).
Two are relevant here: First, “[a]ny period of delay resulting
from other proceedings concerning the defendant” shall be
excluded. 18 U.S.C. § 3161(h)(1). We have interpreted “other
proceedings” to include plea negotiations. Leftenant, 341 F.3d
at 344-45. Second, “[a]ny period of delay resulting from a
continuance . . . , if the judge granted such continuance on the
basis of his findings that the ends of justice served by taking
such action outweigh the best interest of the public and the
defendant in a speedy trial” shall be excluded. 18 U.S.C. §
3161(h)(7); see Zedner v. United States, 547 U.S. 489, 498-99
(2006) (discussing ends-of-justice continuances, which “permit[]
a district court to grant a continuance and to exclude the
resulting delay if the court, after considering certain factors,
makes on-the-record findings that the ends of justice served by
granting the continuance outweigh the public’s and defendant’s
interests in a speedy trial”).
5
In this case, Defendant was arrested on January 31, 2012.
Absent any excluded delay, the government was required under the
Speedy Trial Act to file an indictment by March 1, 2012.
However, the parties twice jointly requested additional time “to
discuss a potential resolution of the case.” J.A. 24. The
district court accordingly granted two continuances: The first
secured a continuance until March 15, 2012, and the second
secured a continuance until April 5, 2012. Both orders granting
the continuances specifically found that the on-going grand jury
investigation and plea discussions warranted the continuances
and that the resulting periods of delay served the ends of
justice. The periods of delay resulting from these continuances
are therefore excluded in computing the thirty-day time period.
See 18 U.S.C. § 3161(h)(1), (h)(7); Leftenant, 341 F.3d at 344-
45.
Applying the exclusions, the speedy trial clock began on
February 1 (the day after Defendant’s arrest) and stopped on
February 10 (when the first continuance was granted). See
United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996)
(noting that the day of the event that triggers the speedy trial
clock “is not included in the calculation; the clock begins to
run the following day”). It resumed on April 6 (when the second
continuance lapsed) and stopped again on April 9 (when the
indictment was filed). Thus, a total of twelve non-excluded
6
days elapsed, well within the Speedy Trial Act’s thirty-day
limit. Consequently, the district court did not err in denying
the motion to dismiss based on purported Speedy Trial Act
violations.
B.
With his next argument, Defendant contends that the
introduction of business records relating to cardholders who did
not testify at trial violated his Sixth Amendment right to
confrontation. He further argues that those records were
irrelevant.
Whereas we generally review the district court’s
evidentiary rulings for abuse of discretion, United States v.
Perkins, 470 F.3d 150, 155 (4th Cir. 2006), when a defendant
fails to make a specific and timely objection at trial, our
review is restricted to plain error. United States v. Cabrera-
Beltran, 660 F.3d 742, 751 (4th Cir. 2011). To prevail under
the plain error standard, the defendant must show “there was an
error, the error was plain, and the error affected [the
defendant’s] substantial rights.” United States v. Boykin, 669
F.3d 467, 470 (4th Cir. 2012) (citing Fed. R. Crim. P. 52(b) and
United States v. Olano, 507 U.S. 725, 731-32 (1993)). The
correction of plain error lies within our discretion, which we
may exercise if “the error seriously affects the fairness,
7
integrity or public reputation of judicial proceedings, or the
defendant [is] actually innocent.” Id.
Here, Defendant objected to the business records on hearsay
grounds. 2 To preserve a claim that a district court erred in
admitting certain evidence, a party must, “on the record: (A)
timely object[] or move[] to strike; and (B) state[] the
specific ground, unless it was apparent from the context[.]”
Fed. R. Evid. 103(a)(1). A “hearsay objection at trial cannot
be understood to include a Confrontation Clause objection . . .
.” Cabrera-Beltran, 660 F.3d at 751. Because Defendant failed
to preserve his objections on Confrontation Clause and relevance
grounds, we review the asserted errors for plain error.
The Confrontation Clause states that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const.
amend. VI. In accordance with the Confrontation Clause,
“[t]estimonial statements of witnesses absent from trial [are]
admitted only where the declarant is unavailable, and only where
the defendant has had a prior opportunity to cross-examine.”
Crawford v. Washington, 541 U.S. 36, 59 (2004). The Supreme
Court has explained that the Confrontation Clause bars only
2
Defendant also objected on grounds of improper
authentication, but he does not raise that issue on appeal.
8
testimonial statements because “[o]nly statements of this sort
cause the declarant to be a ‘witness’ within the meaning of the
Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821
(2006). The “core class” of testimonial statements includes:
ex parte in-court testimony or its functional
equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably
expect to be used prosecutorially, extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions, [and] statements that were
made under circumstances which would lead an objective
witness reasonably to believe that the statement would
be available for use at a later trial.
Crawford, 541 U.S. at 51-52 (first alteration in original)
(quotation marks and citations omitted).
Crucially for this case, “[b]usiness and public records are
generally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but because—
having been created for the administration of an entity’s
affairs and not for the purpose of establishing or proving some
fact at trial—they are not testimonial.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 324 (2009). Although exceptions
are possible, see id. at 321 (cautioning that business records
may be testimonial if “the regularly conducted business activity
is the production of evidence for use at trial”), business
records are generally not testimonial if they are “created for
9
the administration of an entity’s affairs” rather than for
“proving some fact at trial.” Id. at 324; accord Cabrera-
Beltran, 660 F.3d at 752.
Here, Defendant does not challenge the district court’s
ruling that the admitted evidence fell within the hearsay
exception for business records. Rather, Defendant asserts that
the business records constitute testimonial statements by the
cardholders, whom he had no opportunity to cross-examine. We
therefore consider the business records at issue to determine
whether they come within Crawford’s “core class” of testimonial
statements.
At trial, Peter Boresky, the manager of global security for
American Express’s Mid-Atlantic region, testified that the
corporation maintains certain records called common point of
purchase reports. The common point of purchase reports are
internal documents identifying customer accounts that have been
compromised. American Express creates the common point of
purchase reports daily as part of its regular business practices
and sends them “throughout the global security team throughout
the country.” J.A. 277. Boresky reviews the common point of
purchase reports and other documentation sent to him by American
Express analysts to “make a determination whether or not to
basically contact law enforcement or to investigate the matter
initially by [him]self[.]” J.A. 276. Boresky also
10
authenticated screenprints of American Express customer account
records and screenprints of an American Express database system
known as the Worldwide Fraud Information System to “identif[y]
the account and the amount of fraud being booked on that
particular account.” J.A. 281. Boresky verified that these
records were kept in the course of American Express’s regularly-
conducted business activities.
Defendant asserts that the business reports contain
“statements from the cardholders that the transactions . . .
were unauthorized.” Appellant’s Br. at 16. But that assertion
is belied by the record. Indeed, many of the business reports
do not mention individual cardholders, let alone contain
statements made by cardholders.
In sum, American Express created the reports at issue for
the administration of its regularly-conducted business rather
than “under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial[.]” Crawford, 541 U.S. at 52 (quotation
marks omitted). The business records Defendant challenges are
therefore not testimonial, and the district court did not
plainly err in admitting them. 3
3
Defendant’s brief suggests that similar Chase Bank records
were wrongly introduced at trial. However, the only cardholder
Chase Bank identified was Michael Pena, who personally testified
(Continued)
11
Defendant further objects to the business records on
relevance grounds, arguing that they were not probative of the
aggravated identity theft charges. Additionally, because the
business records identified cardholders other than those named
in the indictment, Defendant complains that the records, even if
relevant, were unfairly prejudicial, because “using evidence of
this larger number of uncharged transactions . . . ma[de] [him]
look far worse in front of the jury.” Appellant’s Br. at 19.
As previously explained, Defendant never raised this
asserted error at trial, and thus we review only for plain
error. In accordance with Rule 403 of the Federal Rules of
Evidence, “general prejudice . . . is not enough to warrant
exclusion of otherwise relevant, admissible evidence.” United
States v. Siegel, 536 F.3d 306, 319 (4th Cir. 2008). Instead,
“[e]vidence may be excluded under Rule 403 only if the evidence
is unfairly prejudicial and, even then, only if the unfair
prejudice substantially outweighs the probative value of the
evidence.” Id. “‘Evidence is unfairly prejudicial and thus
should be excluded under Rule 403 when there is a genuine risk
that the emotions of a jury will be excited to irrational
behavior, and this risk is disproportionate to the probative
at trial that he had not authorized the relevant transactions.
Defendant thus had the opportunity to cross-examine Pena.
12
value of the offered evidence.’” Id. (quoting United States v.
Williams, 445 F.3d 724, 730 (4th Cir. 2006)).
In this case, the indictment charges Defendant not only
with aggravated identity theft (in which the individual victims
are identified by their initials), but also with three counts of
access device fraud. To prove the three counts of access device
fraud, the government had to show that Defendant “knowingly and
with intent to defraud” used an “unauthorized access device[]”
to “obtain[] anything of value aggregating $1,000 or more” for
each of the three one-year periods charged in the indictment.
18 U.S.C. § 1029(a)(2). The indictment does not allege that
Defendant committed access device fraud by using the credit card
number of any particular individual. Rather, it alleges that
Defendant obtained $1,000 or more worth of items in each one-
year period using unauthorized access devices. Thus, even if
the business records are not probative of the identity theft
charges, they are probative of the access device fraud charges.
The American Express records reflecting fraudulent transactions
ultimately traced to Defendant were plainly relevant to proving
access device fraud and were therefore properly admitted.
Nor was the evidence unduly prejudicial under Rule 403 of
the Federal Rules of Evidence. In light of the substantial
evidence presented by the government, which included videotapes
and photographs of Defendant using the cloned credit cards, as
13
well as highly incriminating evidence seized from Defendant’s
laptop computers, we are satisfied that introduction of the
business records posed no disproportionate risk of inflaming the
passions of the jury to “irrational behavior.” Siegel, 536 F.3d
at 319. The district court therefore did not plainly err in
admitting the business records.
C.
Finally, relying on his position regarding the business
records, Defendant asserts that the district court erred in
calculating the amount of loss at sentencing. “‘[T]he
determination of loss attributable to a fraud scheme is a
factual issue for resolution by the district court, and we
review such a finding of fact only for clear error.’” United
States v. Allmendinger, 706 F.3d 330, 341 (4th Cir.) (quoting
United States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001)),
cert. denied, 133 S. Ct. 2747 (2013). Factual findings
regarding the amount of loss must be supported by a
preponderance of the evidence. United States v. Miller, 316
F.3d 495, 503 (4th Cir. 2003). However, “‘the loss need not be
determined with precision. The court need only make a
reasonable estimate of the loss, given the available
information.’” Id. (quoting U.S.S.G. § 2F1.1, cmt. n.9).
At Defendant’s sentencing, Detective David Hill testified
on behalf of the government regarding the loss calculation.
14
Detective Hill created a seven-page spreadsheet detailing
Defendant’s fraudulent transactions, including the dates, the
locations, the credit card numbers used, the amounts charged,
and the banks associated with the credit card numbers.
Detective Hill noted that videotape surveillance showed
Defendant conducting many of the listed fraudulent transactions,
and that other losses were traced through the stolen credit card
information found on Defendant’s laptops. Regardless, each loss
attributed to Defendant was ultimately supported by videotape
evidence; Detective Hill explained, “[i]f I had no video of the
transaction and I could not associate that credit card number
with one where we did have [video], then I . . . didn’t count it
and did not put it on the spreadsheet.” J.A. 677. According to
these calculations, the actual loss caused by Defendant’s
conduct was $117,313, and the amount of intended loss, “where
[Defendant] swiped a card but it didn’t go through,” was
$19,525.30. J.A. 678. Upon consideration, the district court
added together these two numbers and found that “as a
conservative matter the government has clearly established
$136,838.30 as the amount of the loss here . . . .” J.A. 710.
Defendant does not challenge the evidence of loss presented
at sentencing. For reasons already discussed, we reject
Defendant’s argument that evidence of unauthorized transactions
to which no cardholder testified should have been excluded at
15
trial and at sentencing. Defendant thus fails to show clear
error.
III.
For the reasons discussed above, we affirm the judgment of
the district court.
AFFIRMED
16