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Interstate nexus requirement was an element of the offense and not subject matter jurisdiction

Isabel Grimon plead guilty to possessing 15 or more unauthorized access devices and aggravated identity theft after officers found 19 bland credit cards in her vehicle and a thumb drive containing 134 credit card numbers issued to other persons. The indictment charged her with knowing possession of unauthorized access devises and that “said conduct affected interstate commerce.” She went through the plea hearing with a factual proffer which 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 commerce.”

In her appeal Grimon argues that the district court lacked subject matter jurisdiction over her offense because the factual proffer merely stipulated to the interstate commerce element of her access device offense and did not contain any underlying facts showing that her possession of counterfeit credit cards affected interstate commerce. She stressed that the cards were never used. The government argued that even if Grimon’s stipulation was insufficient factual basis for the interstate commerce element of her offense that did not deprive the district court of subject matter jurisdiction to accept her plea.

The issue the court faced was whether the district court had subject matter jurisdiction over this violation of the federal statute. The subject matter jurisdiction is distinguishable from the jurisdictional element of the offense, which requires the government to prove the defendant’s offense had some nexus with interstate commerce. The interstate commerce element is jurisdictional only in the sense that it relates to the power of Congress to regulate the forbidden conduct. When it comes to federal criminal statutes requiring an interstate commerce nexus, the government’s failure to sufficiently allege or prove the interstate commerce element does not deprive the district court of its subject matter jurisdiction over the criminal case.

Here Grimon argued that her stipulated factual proffer merely stated that her offense affected interstate commerce, without providing supporting facts to explain how her conduct affected interstate commerce and therefore lacked subject matter jurisdiction over her case. The court of appeals rejected this argument. All that was required for the district court to exercise subject matter jurisdiction over Grimon’s case was an indictment charging her with a violation of a valid federal law enacted in the United States Code. An interstate nexus is merely a non-jurisdictional challenge to the sufficiency of the evidence as to an element of the offense and had no bearing on the district court’s power to adjudicate her case or subject matter jurisdiction.

The statute at issue 18 U.S.C. 1029(a)(3) did not require the court to determine that Grimon’s federal criminal offense affected interstate commerce to have subject matter jurisdiction. The interstate nexus requirement was simply one of several elements of the 1029(a)(3) offense that the government had to prove. No cases have held that the interstate nexus requirement of the statute is akin to the amount in controversy in 28 U.S.C. 1332 (a congressionally imposed limit on the court’s subject matter jurisdiction.) Whether the government proved the interstate commerce nexus or failed to prove it, the district court still had jurisdiction over Grimon’s case.