UNITED STATES V. KEITA, No. 12-4957

Decided: February 6, 2014

The Fourth Circuit Court of Appeals affirmed the defendant’s conviction for various charges related to credit and debit card fraud. The Fourth Circuit rejected the defendant’s arguments 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.

On January 31, 2012, pursuant to a search warrant based on a credit card fraud investigation, federal agents searched the residence of Defendant Mohammed Keita (“Defendant”). 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.

Defendant first argued 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. The Speedy Trial Act provides that “any information or indictment charging an individual with the commission of an 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.” An indictment filed in violation of the thirty-day time limit must be dismissed. However certain delays shall be excluded when calculating the thirty-time period, such as those resulting from plea negotiations or from a continuance. Here, Defendant was arrested on January 31, 2012 and, therefore, the government was required to file an indictment by March 1, 2012. However, the parties twice jointly requested additional time and 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. 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). 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 days elapsed, well within the Speedy Trial Act’s thirty-day limit.

Defendant next argued that the introduction of business records relating to cardholders who did not testify at trial violated his Sixth Amendment right to confrontation and that those records were irrelevant. In accordance with the Confrontation Clause, testimonial 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. But, business and public records are generally admissible absent confrontation because they are not testimonial. Business records are generally not testimonial if they are created for the administration of an entity’s affairs rather than for proving some fact at trial. Here, American Express maintains certain records called common point of purchase reports, which are internal documents identifying customer accounts that have been compromised. American Express creates the reports daily as part of its regular business practices and sends them throughout the global security team throughout the country. Many of the business reports do not mention individual cardholders, let alone contain statements made by cardholders. Therefore, the Fourth Circuit concluded that the reports were not were not testimonial. Defendant further objected to the business records as irrelevant, because they were not probative of the aggravated identity theft charges, and unfairly prejudicial, because they identified cardholders other than those named in the indictment. 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. Thus, the Fourth Circuit concluded that even if the business records were not probative of the identity theft charges, they were probative of the access device fraud charges.  The Fourth Circuit further concluded that the evidence was not unduly prejudicial under Rule 403, which excludes evidence only if any unfair prejudice substantially outweighs its probative value. Based on the substantial evidence presented by the government, which included videotapes and photographs of Defendant using the cloned credit cards, as well as highly incriminating evidence seized from Defendant’s laptop computers, the Fourth Circuit concluded that introduction of the business records posed no disproportionate risk of inflaming the passions of the jury to “irrational behavior.”

Finally, the Defendant asserted that the district court erred in calculating the amount of loss at sentencing. Each loss attributed to Defendant was supported by videotape evidence. According to those 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 did not go through, was $19,525.30. Therefore, the district court added the two numbers together and found that the government established $136,838.30 as the amount of loss. Therefore, the Fourth Circuit concluded that factual findings regarding the amount of loss were supported by a preponderance of the evidence. The court need only make a reasonable estimate of the loss, and it could include evidence of unauthorized transactions to which no cardholder testified.

Full Opinion

– Sarah Bishop

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