            Case: 13-14381    Date Filed: 03/16/2015   Page: 1 of 11


                                                                        [PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                                No. 13-14381
                          ________________________

                    D.C. Docket No. 1:13-cr-20293-UU-1



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

DAVID EDMOND,
a.k.a. Zodey,
a.k.a. Zoedy,

                                                Defendant - Appellant.

                          ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                               (March 16, 2015)

Before TJOFLAT, JILL PRYOR and COX, Circuit Judges.

TJOFLAT, Circuit Judge:
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      David Edmond was indicted for conspiracy to commit access-device fraud

and aggravated identity theft based upon his use of social security numbers to

make fraudulent bank transfers. Pursuant to a plea agreement, he pleaded guilty to

possession of fifteen or more unauthorized access devices—an unindicted

offense—and one count of aggravated identity theft. On the basis of this plea, the

District Court sentenced Edmond to prison for a total of forty-eight months.

      Edmond now appeals his sentence. First, he argues that the District Court

lacked jurisdiction because Count One of the indictment failed to state an offense.

Second, he argues that the District Court erroneously calculated his number of

victims resulting in an unduly large sentence. We reach neither argument. Instead,

we notice plain error and reverse his conviction for possession of fifteen or more

access devices. And, because this reversal eliminates the factual support for an

element of his aggravated identity-theft conviction, we also reverse that conviction

for lack of sufficient evidence.

                                            I.

                                           A.

      From sometime in January to the beginning of April 2013, Edmond and his

co-conspirator, Sheenequa Angel Michel, allegedly engaged in a scheme to




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fraudulently transfer money using unauthorized “replacement cards.” 1 Michel, a

Bank of America (“BofA”) teller, would improperly access, photograph,2 and

create lists of “the personal identification information, including Social Security

numbers,” of BofA customers. Edmond would then use that information to acquire

unauthorized replacement cards, and, in turn, would use those cards to make

fraudulent money transfers.

       By April 1, 2013, Michel had transferred two lists, each containing the

information of ninety BofA customers, to Edmond. Edmond attempted to change

the address of approximately sixty. 3 He was successful in obtaining thirty

replacement cards, and of those, he used six to make fraudulent transactions. This

resulted in a total loss of $14,243.31.

       On April 1, 2013, Michel created a third list of personal identification

information for ninety BofA customers. However, before she could transfer the

list to Edmond, BofA representatives—presumably after investigating identity-

theft complaints—confronted her. Michel admitted her involvement in the

conspiracy to the representatives, and, after waiving her Miranda rights, she
       1
          The factual proffer presented to the District Court does not specify whether these were
credit or debit cards (or something else entirely); it merely labels them “replacement cards.”
       2
           Michel used her cell phone to photograph her work computer’s screen.
       3
         The factual proffer does not link this fact to the subsequent issuance of the thirty
replacement cards. We infer that attempting to change the address of approximately sixty
customers was a necessary step to obtaining unauthorized replacement cards in the names of
those customers.

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admitted the same to law enforcement officers. She agreed to cooperate with their

investigation into Edmond’s activities and provided the officers with the 180 sets

of personal identification information she had already transferred to Edmond.

      Michel subsequently transferred another list of ninety names to Edmond on

April 11, 2013. Unbeknownst to Edmond, this list consisted of controlled

identities provided by law enforcement. Following the transfer, agents arrested

Edmond. Like Michel, he waived his Miranda rights. He then voluntarily

admitted that Michel had, without authorization, previously supplied him with

BofA customers’ personal identification information, including social security

numbers. In the course of their investigation, law enforcement learned about

Edmond’s successes and failures in obtaining and using replacement cards to

fraudulently transfer money. Law enforcement also obtained surveillance

photographs of Edmond using four of the unauthorized replacement cards to make

fraudulent transactions.

                                         B.

      On April 30, 2012, a Southern District of Florida grand jury returned a

seven-count indictment against Edmond and Michel. Count One alleged that

Edmond and Michel committed fraud in connection with access devices, stating

that the two

      did knowingly and willfully combine, conspire, confederate, and
      agree with each other and with other persons known and unknown to
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       the Grand Jury, to knowingly, and with the intent to defraud, possess,
       use and traffic in fifteen (15) or more counterfeit and unauthorized
       access devices, that is, Social Security numbers, said conduct
       affecting interstate and foreign commerce, in violation of Title 18,
       United States Code, Section 1029(a)(3). . . . All in violation of Title
       18, United States Code, Section 1029(b)(2).

Counts Two through Seven alleged aggravated identity theft, 18 U.S.C.

§ 1028A(a)(1)–(2)4, predicated upon the conspiracy to commit access-device fraud

alleged in Count One. Edmond was arraigned on May 2, 2013, and pleaded not

guilty to all counts.

       On July 29, 2013, Edmond entered into a plea agreement with the

government in which he would plead guilty to Counts One and Three in exchange

for the dismissal of the remaining five counts. The plea agreement, however,

incorrectly described Count One as “possession of fifteen (15) or more

unauthorized access devices in violation of Title 18, United States Code, Section

1029(a)(3).” Furthermore, the plea agreement stated that Count One carried a

maximum statutory penalty of ten years’ imprisonment. Although a § 1029(a)(3)

violation does carry a ten-year penalty, 18 U.S.C. § 1029(c)(1)(A)(i), the penalty

for conspiracy to commit access device fraud—the actual crime with which the

grand jury charged Edmond—carries a penalty of five years, 18 U.S.C.

§ 1029(b)(2).

       4
         We pause to note that 18 U.S.C. § 1028A(a)(2) is a terrorism offense. How these facts
implicate terrorism we do not know.

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      Along with this plea agreement, Edmond signed a factual proffer admitting

the facts recounted above. That proffer concludes with the statement that Edmond

“conspired to knowingly and with the intent to defraud, possess fifteen (15) or

more unauthorized access devices” and “did knowingly transfer, possess, and use,

without lawful authority, the means of identification of one hundred and eighty

(180) other persons.” These statements tracked the statutory language of Counts

One and Three as charged in the indictment. Neither the prosecution nor the

defense, however, noted the glaring inconsistency between the offenses described

in the proffer and those described in the plea agreement.

      Unfortunately, the District Court did not notice the problem either. During

Edmond’s plea colloquy, the court first confirmed that Edmond had a full

opportunity to review both the indictment and plea agreement with his attorney.

After accepting Edmond’s answer that he understood the contents of both

documents—an answer which demonstrated that he understood neither, given that

the documents referred to different crimes—the court explained that “[u]nder the

plea agreement, you’ve agreed to plead guilty to Count 1 of the indictment, which

charges you with possession of 15 or more unauthorized access devices, in

violation of Title 18, United States Code, Section 1029(a)(3).” The court also

explained that Count One carried a maximum penalty of ten years.




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       The District Court then set out to confirm that Edmond had actually

committed the crimes to which he was to plead guilty. It accomplished this feat by

confirming that Edmond had reviewed the factual proffer with his attorney and that

he understood and agreed to its contents. Unfortunately, the District Court did not

refer to any facts that might have made manifest the offense to which Edmond was

pleading. Following this exchange, the court accepted his guilty plea as to Counts

One and Three, 5 with the obvious understanding that Count One involved

possession rather than conspiracy.

       Following the sentencing hearing and a review of the presentence

investigation report (“PSI”), 6 the District Court sentenced Edmond to twenty-four

months’ imprisonment for Count One and twenty-four months’ imprisonment, to

be served consecutively, for Count Three. The judgment of conviction reflected

that Edmond had been adjudicated guilty under 18 U.S.C. § 1029(a)(3). It


       5
           The plea was mundane and opaque:

       THE COURT: And now, how do you plead to the charges in Counts 1 and 3: Guilty or
                  not guilty?

       EDMOND:         Guilty.
       6
          The PSI contained hints that something was amiss. While the PSI repeatedly referred to
Count One as“[c]onspiracy to possess 15 or more unauthorized access devices,” it also
repeatedly cited 18 U.S.C. § 1029(a)(3), the possession statute, as the basis for that count. It also
stated that Count One carried penalties consistent with a possession charge, but inconsistent with
a conspiracy charge. No one picked up on these hints. Regardless, by the time the PSI entered
the picture, the damage had been done; Edmond had already pleaded guilty to an unindicted
crime.

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described that offense as “[c]onspiracy to possess 15 or more unauthorized access

devices.”

                                               II.

       In his appeal, Edmond argues for the first time that Count One of the

indictment was insufficient to state an offense—and therefore that the District

Court lacked jurisdiction over that count—because social security numbers, the

“access device” required for the conspiracy count, are not access devices as

defined in 18 U.S.C. § 1029(e)(1). Furthermore, because the aggravated identity-

theft conviction cannot stand absent a conviction under Count One, he argues that

we must reverse his conviction on Count Three as well. See 18 U.S.C.

§ 1028A(a)(1).7 Finally, he also argues for the first time that the District Court

erred in calculating the number of victims for purposes of determining his sentence

enhancement under United States Sentencing Guidelines § 2B1.1(b)(2).

       After hearing oral argument on these issues, we discovered that both the plea

agreement and plea colloquy assume that Count One of the indictment charged

Edmond with possession of fifteen or more unauthorized access devices under 18




       7
         18 U.S.C. § 1028A(a)(1) punishes “[w]hoever, during and in relation to any felony
violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person.” Conspiracy to possess unauthorized
access devices under 18 U.S.C. § 1029(b)(2) and possession of unauthorized access devices
under 18 U.S.C. § 1029(a)(3) are both enumerated offenses. See 18 U.S.C. § 1028A(c)(4).

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U.S.C. § 1029(a)(3).8 As belabored above, the indictment actually charged

Edmond with conspiring to possess access devices under 18 U.S.C. § 1029(b)(2). 9

We requested that the parties submit supplemental briefs regarding whether we

should notice this error and, if so, whether the error merits reversal of Edmond’s

convictions. After receiving the benefit of that briefing, we conclude that the

District Court committed plain error and that Edmond’s convictions must be

reversed.

                                               III.

       As stated, neither party briefed, let alone noticed, the issue that Edmond

pleaded guilty to a crime for which he was not indicted. We nonetheless may

review a District Court’s acceptance of a defendant’s guilty plea sua sponte for

plain error. See Meadows ex rel. Meadows v. Cagle’s, Inc., 954 F.2d 686, 693–94

(11th Cir. 1992). To find plain error, there must be: (1) error, (2) that is plain, and

(3) that has affected the defendant’s substantial rights. United States v. Olano, 507

U.S. 725, 735–36, 113 S. Ct. 1770, 1778–79, 123 L. Ed. 2d 508 (1993). An error

affects a defendant’s substantial rights when it is “prejudicial: It must have affected

the outcome of the district court proceedings.” Id. at 734, 113 S. Ct. at 1777–78.

       8
        18 U.S.C. § 1029(a)(3) punishes “[w]hoever . . . knowingly and with intent to defraud
possesses fifteen or more devices which are counterfeit or unauthorized access devices.”
       9
         18 U.S.C. §1029(b)(2) punishes “[w]hoever is a party to conspiracy of two or more
persons to commit an offense under subsection (a) of this section, if any of the parties engages in
any conduct in furtherance of such offense.”

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Even if all three prongs are met, we can only reverse if the error is so grave that

allowing it to stand would “seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 732, 113 S. Ct. at 1776 (alteration

omitted) (quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84

L. Ed. 2d (1985)) (quotation marks omitted).

       The Fifth Amendment provides that “[n]o person shall be held to answer for

a capital, or otherwise infamous crime, unless on a presentment or indictment of a

Grand Jury.” U.S. Const. amend. V. “Simply put, a defendant can be convicted

only of a crime charged in the indictment.” United States v. Madden, 733 F.3d

1314, 1318 (11th Cir. 2013). In this case, the District Court violated Edmond’s

constitutional rights by accepting a guilty plea for a crime not charged in the

indictment.10 This was plain error. Because Edmond was convicted of a crime not

       10
            The Government asserts that Edmond pleaded guilty to Count One of the indictment—
that is, the conspiracy charge—and that the real question here is “whether the district court
plainly erred in failing to properly advise Edmond of the nature of the charged offense to which
he pleaded guilty.” In essence, the Government asserts that this case involves a harmless Rule
11 violation in which all parties actually understood the proceedings and charges despite some
technical violation or omission in the colloquy.

        It is clear to us, however, that everyone understood “Count One” to refer to a possession
charge. The plea agreement talked about a possession charge, listed the possession statute, and
cited the statutory penalty for possession. The District Court did the same, and the judgment of
conviction lists 18 U.S.C. § 1029(a)(3) as Count One (although it does, erroneously, state that
this provision regards a conspiracy). Furthermore, the District Court never discussed any facts
that might have made clear that Edmond was pleading guilty to a conspiracy. The record before
us is simply barren of any suggestion that Edmond was pleading guilty to anything but a
possession charge. We are unwilling to accept that when Edmond pleaded guilty to “Count
One,” he was actually pleading guilty to a conspiracy charge to which the attorneys and District
Court were oblivious.

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charged in the indictment, see id. at 1323, and is now serving a sentence for that

conviction, the error clearly affected the outcome of his proceedings. The

prejudice is manifest. Finally, as we stated in Madden, it is “self-evident” that a

defendant’s conviction for a crime not charged in an indictment seriously affects

the fairness, integrity, and public reputation of judicial proceedings. Id. at 1323;

see also United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc)

(“[C]onvicting a defendant for an unindicted crime affects the fairness, integrity,

and public reputation of federal judicial proceedings in a manner most serious.”).

       Accordingly, we find that accepting Edmond’s guilty plea was plain error.

We therefore reverse Edmond’s conviction as to the unindicted 18 U.S.C.

§ 1029(a)(3) offense. Furthermore, because his conviction under Count Three 11

relied upon the 18 U.S.C. § 1029(a)(3) conviction, we reverse Count Three for lack

of sufficient evidence.

       REVERSED.




       11
         Thankfully, the “Count Three” that Edmond pleaded to and the Count Three in the
indictment are one and the same.

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