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United States v. Grimon

United States Court of Appeals, Eleventh Circuit

May 13, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ISABEL YERO GRIMON, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:17-cr-20221-JEM-1

          Before MARCUS, GRANT and HULL, Circuit Judges.

          HULL, CIRCUIT JUDGE

         After pleading guilty, Isabel Yero Grimon appeals her convictions for possessing 15 or more unauthorized access devices and aggravated identity theft. Defendant Grimon argues that the factual proffer supporting her guilty plea was insufficient to establish that the unauthorized access devices she possessed affected interstate commerce and, therefore, the district court lacked subject matter jurisdiction. The question presented is whether the district court has subject matter jurisdiction over a criminal case to accept a guilty plea where: (1) the indictment charges a violation of a valid federal criminal statute and sets forth the interstate commerce element of the crime; (2) the factual proffer for the guilty plea states the government at trial would prove that the defendant's conduct affected interstate commerce; but (3) the factual proffer does not contain any underlying facts explaining how the interstate commerce nexus was satisfied.

         After review, and with the benefit of oral argument, we conclude that the interstate commence element in § 1029(a)(3) is not "jurisdictional" in the sense of bearing on whether the district court has subject matter jurisdiction to adjudicate a case, and thus the government's alleged failure to prove sufficiently the interstate commerce nexus does not deprive the district court of its subject matter jurisdiction over Grimon's criminal case. Thus, we affirm Grimon's convictions.

         I. BACKGROUND

         A. Arrest

         On January 18, 2017, officers conducted a traffic stop of Grimon's vehicle after observing her swerving between lanes and determining, through a records check, that there was an active warrant for her arrest out of Texas. Grimon was arrested on the active warrant, and officers conducted a search incident to that arrest.

         During the search, officers found 19 blank credit cards in Grimon's vehicle, 16 of which were encoded with account numbers issued to 10 other persons. Officers also recovered a thumb drive from Grimon, which contained 134 credit card account numbers issued to other persons. Grimon admitted that (1) she knew the blank cards were re-encoded with credit card account numbers issued to other persons, (2) the credit card numbers on the thumb drive did not belong to her, and (3) she was not authorized to possess those account numbers by their owners.

         B. Indictment and Plea

         In March 2017, a federal grand jury charged Grimon with (1) one count of possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count 1), and (2) three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 2-4). Count 1 specifically charged that Grimon knowingly, and with intent to defraud, possessed 15 or more unauthorized access devices and that "said conduct affect[ed] interstate and foreign commerce."

         In July 2017, pursuant to a written plea agreement, Grimon pled guilty to Counts 1 and 2 of the indictment, and the government agreed to dismiss Counts 3 and 4. In connection with her plea agreement, Grimon executed a factual proffer detailing the offense conduct described above. As to all of the elements of Count 1, Grimon's factual proffer stated that, had the case gone to trial, the government would have proved beyond a reasonable doubt that Grimon "did knowingly, and with intent to defraud, possess fifteen (15) or more devices which are counterfeit and unauthorized access devices, said conduct affecting interstate and foreign commerce."

         At the change of plea hearing, Grimon confirmed, through an interpreter, that she received a copy of the indictment and had an opportunity to fully discuss the charges with her attorney. The government summarized the charges in Counts 1 and 2. In doing so, the government explicitly stated with respect to Count 1 that one of the elements of the offense "is that the Defendant's conduct in some way affected commerce between one state and other states or between a state of the United States and a foreign country." Grimon then confirmed that she understood the charges to which she was pleading guilty. The government also read the factual proffer into the record. That proffer included a stipulation that the government would have proven at trial that Grimon "did knowingly and with intent to defraud, possess 15 or more devices which are counterfeit and unauthorized access devices, said conduct affecting interstate and foreign commerce."

         After this recitation, through an interpreter, Grimon agreed that the government's recitation of the facts was correct and that it could prove those facts at trial. Grimon also confirmed that she had read and discussed the factual proffer with her attorney before signing it. Grimon's attorney stated that he was bilingual and was able to translate the factual proffer into Spanish for ...


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