                              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
