Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:13-cr-20293-UU-1.
For United States of America, Plaintiff - Appellee: Amit Agarwal, Kathleen Mary Salyer, Wifredo A. Ferrer, Sarah Joanna Schall, U.S. Attorney's Office, Miami, FL.
For David Edmond, a.k.a.: Zodey, a.k.a.: Zoedy, Defendant - Appellant: Michael Caruso, Federal Public Defender, Hector Alejandro Dopico, Federal Public Defender's Office, Miami, FL.
Before TJOFLAT, JILL PRYOR and COX, Circuit Judges.
TJOFLAT, Circuit Judge:
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.
From sometime in January to the beginning of April 2013, Edmond and his co-conspirator, Sheenequa Angel Michel, allegedly engaged in a scheme to fraudulently transfer money using unauthorized " replacement cards."  Michel, a Bank of America (" BofA" ) 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.
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. 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 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 ...