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Edmond guilty plea was plain error

In U.S. v. Edmond, Defendant 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 48 months.

For some time in January to the beginning of April 2013, Edmond and his co-conspirator, Sheenequa Angel Michel, allegedly engaged in a scheme fraudulently transfer money using unauthorized “replacement cards”. Michel, a Bank of America teller, would improperly access, photograph, 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. This resulted in a total loss of $14,243.31. A BofA representative confronted her after investigation identity-theft complaints. Michel admitted her involvement. Later she agreed to cooperate. She transferred another 90 names to Edmond, this list consisted of controlled identities provided by law enforcement. Following the transfer, agents arrested Edmond.

On April 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. Counts two through seven alleged aggravated identity theft, 18 U.S.C. § 1028A(a)(1)-(2), predicated upon the conspiracy to commit access-device fraud alleged in Count One. Edmond was arraigned and pleaded not guilty to all counts. Edmond entered in to 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 describe Count One as “possession of 15 or more unauthorized access devices in violation of Title 18, U.S.C. § 1029(a)(3). The plea agreement stated that Count One carried a maximum statutory penalty of then years’ imprisonment. 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.

Edmond signed a factual proffer admitting that facts recounted above. That proffer concludes with the statement that Edmond “conspired to knowingly and with the intent to defraud, posses 15 or more unauthorized access devices.” These statements tracked the statutory language of Counts One and Three as charged in the indictment. Neither the prosecution nor the defense, however, noted 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.

Following the sentencing hearing and review of the resentence investigation report (PSI) 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, guilty under 18 U.S.C. § 1029(a)(3).

In his appeal Edmond argues for the first time that Count one of the indictment was insufficient to state an offense, and therefore that District court lacked jurisdiction over that count, because SSN, the “access device” required for the conspiracy count, are not access devices as defined in U.S.C. § 1029(a)(1). Finally he 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.

After hearing oral argument on these issues, the court of appeals discovered that both the Plea agreement and plea colloquy assume that Count one of the indictment charged Edmond with possession of 15 or more devices unauthorized. The indictment actually charged Edmond with conspiring to possess access devices under U.S.C. § 1029(b)(2).

The Fifth Amendment provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. The court of appeals believes in this case the District Court violated Edmond’s constitutional rights by accepting a guilty plea for a crime not charged in the indictment. The court of appeal found that accepting Edmond’s guilty plea was plain error and reverse Edmond’s conviction as to the indicted and they reversed Count Three for lack of sufficient evidence.

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