UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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, 780 F.3d 260, 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 crossexamination.’” United States v. Dargan, 738 F.3d 643, 650 (4th Cir. 2013) (quoting 

Crawford v. Washington, 541 U.S. 36, 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.” 

Reed, 780 F.3d at 269 (internal quotation marks omitted). Statements are testimonial if 

they are the functional equivalent of in-court testimony. Crawford, 541 U.S. at 51-52. 

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, 557 U.S. 305, 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.” Id. at 324. 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.” Id. at 321 (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, 742 F.3d 184, 190 (4th Cir. 2014). While Bland relies on United States v. 

Smith, 640 F.3d 358, 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, 810 

F.3d 932, 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.” Id. (internal quotation marks omitted). “The 

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

indictment.” Id. We review de novo “whether there has been a constructive amendment 

of an indictment.” United States v. Whitfield, 695 F.3d 288, 306 (4th Cir. 2012).

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

indictment constitutes a fatal variance.” United States v. Allmendinger, 706 F.3d 330, 

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.” Id. “Such a 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.” 

Id. (alteration and 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