UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4525


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

BENJAMIN BLAND,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:13-cr-00619-JFM-4)


Submitted: March 29, 2018                                         Decided: April 3, 2018


Before GREGORY, Chief Judge, and TRAXLER and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Vincent A. Jankoski, Silver Spring, Maryland, for Appellant. Stephen M. Schenning,
Acting United States Attorney, Lauren E. Perry, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      A jury convicted Benjamin Bland of conspiracy to commit wire fraud, in violation

of 18 U.S.C. §§ 2, 1349 (2012), wire fraud, in violation of 18 U.S.C. §§ 2, 1343 (2012),

and Social Security fraud, in violation of 18 U.S.C. § 2; 42 U.S.C. § 408(a)(7)(C) (2012).

On appeal, Bland contends that the admission of records from the Social Security

Administration (SSA) violated his rights under the Confrontation Clause and that the

Government constructively amended the indictment or, alternatively, that its argument

and evidence at trial amounted to a prejudicial variance. We disagree.

      “[W]e review an alleged Confrontation Clause violation de novo.” United States

v. Reed, 

, 269 (4th Cir. 2015).        The Confrontation Clause “bars the

admission of ‘testimonial statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.’” United States v. Dargan, 

, 650 (4th Cir. 2013) (quoting

Crawford v. Washington, 

, 53-54 (2004)).            “Evidence implicates the

Confrontation Clause only if it constitutes a testimonial statement—that is, a statement

made with a primary purpose of creating an out-of-court substitute for trial testimony.”

(internal quotation marks omitted). Statements are testimonial if

they are the functional equivalent of in-court testimony. 

.

Testimonial statements include “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.” Melendez-Diaz v. Massachusetts, 

, 310

(2009) (internal quotation marks omitted).

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       In Melendez-Diaz, the Court stated that “[b]usiness and public records are

generally admissible absent confrontation not because they qualify under an exception to

the hearsay rule, 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.” 

However, the Court also noted that it had previously “held that

an accident report created by an employee of a railroad company did not qualify as a

business record because, although kept in the regular course of the railroad’s operations,

it was calculated for use essentially in the court, not in the business.” 

(internal

quotation marks omitted).

       Here, Bland does not contest that the actual SSA records—the Social Security

numbers (SSNs) of the victims of his fraud—were created in the ordinary course of

business. Rather, he attacks the manner in which they were introduced, as “extracted”

from the SSA’s records and included as part of a spreadsheet introduced into evidence.

We find his argument unpersuasive. We have previously found that an extract of a

business’ records did not violate a defendant’s Confrontation Clause rights. United

States v. Keita, 

, 190 (4th Cir. 2014). While Bland relies on United States v.

Smith, 

, 363 (D.C. Cir. 2011) (internal quotation marks omitted), the records

in Smith “were made for the purpose of establishing or proving a fact at trial.” Thus, we

conclude that the district court properly admitted the records.

       Bland next argues that the Government constructively amended Counts 1 through

4 of the indictment because its argument and evidence concerning whether he defrauded

his customers was not alleged in the indictment, which alleged a scheme to defraud

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financial institutions. Alternatively, Bland contends that the argument and evidence

amounted to a prejudicial variance because it turned his customers into victims and

prevented him from using the manual he sent to customers in his defense.

       “[I]t is well established that a court cannot permit a defendant to be tried on

charges that are not made in the indictment against him.” United States v. Moore, 

, 936 (4th Cir. 2016) (internal quotation marks omitted). “An impermissible

constructive amendment—also referred to as a fatal variance—occurs when the

government, usually through its presentation of evidence or argument, or the district

court, usually through its jury instructions, broadens the possible bases for conviction

beyond those presented by the grand jury.” 

marks omitted). “The

key inquiry is whether a defendant has been tried on charges other than those listed in the

indictment.” 

de novo “whether there has been a constructive amendment

of an indictment.” United States v. Whitfield, 

, 306 (4th Cir. 2012).

       “However, not every difference between the government’s proof and the

indictment constitutes a fatal variance.” United States v. Allmendinger, 

,

339 (4th Cir. 2013). “When the government’s proof diverges to some degree from the

indictment but does not change the crime charged in the indictment, a mere variance

occurs.” 

variance violates the defendant’s Fifth Amendment rights only if it

prejudices him either by surprising him at trial and hindering the preparation of his

defense, or by exposing him to the danger of a second prosecution for the same offense.”

internal quotation marks omitted).



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       We conclude that no variance, fatal or otherwise, occurred in this case. The

Government presented voluminous evidence that Bland acted with the intent to defraud

creditors by selling fraudulent SSNs to his customers, and that Bland personally assisted

his customers in applying for credit cards with Capital One Bank with the fraudulent

SSNs. The Government further introduced evidence demonstrating that Bland sold the

fraudulent SSNs to his coconspirator, who then sold the numbers to other individuals, as

described in Counts 2 through 4. Moreover, the factual allegations in the indictment

alleged that Bland sold the fraudulent SSNs, provided fraudulent identification with the

SSNs, and instructed users how to fraudulently obtain loans. Thus, Bland was on notice

that his defense would have to center on the nature of his purported business. Moreover,

Bland attempted to argue his actions were legal. Therefore, Bland’s lies to his customers

became relevant to the issue of whether he had the necessary criminal intent to defraud

financial institutions.

       Accordingly, we affirm the district court’s judgment. 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 in the decisional process.



                                                                              AFFIRMED




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