information in the briefs i wanted to bring that to the court's attention thank you this is a very simple but important case the reason it's important is because under the government's theory every pickpocketing and every person that ching would be a federal crime and that result is untenable the factual proffer in this case establishes nothing more than simple possession it fails to establish intent to defraud and it fails to establish a substantial effect on interstate commerce as a result there was no federal jurisdiction and there was no finding a federal jurisdiction consequently the conviction is invalid and must be vacated the government's argument is premised on only the allegations of the indictment the government does not claim that there is evidence of intent to defraud or of an effect on interstate commerce it asked the court to assume one the problem with assuming that in this case would be that that assumption would then apply in every case of a pickpocketing a person making if if a briefcase were still in a federal statute against pickpocketing the there there is a federal theft statute and if somebody stole a credit card and were that in possession of that credit card this very same statute that was applied in this case would apply in that case in other words the wouldn't the answer to the question be no the answer would be yes your honor because if there are federal statute that covers simple pickpocketing there's a federal statute that pup covers simple possession and that is the statute that was applied in this case and if you pick pocket a credit card you are in possession of it so yes the same statute would apply and the same jurisdictional theory would establish federal jurisdiction over every pickpocketing and every person in the united states of america help me with something thirty two thirty one of title eighteen says basically provides a statutory grant of exclusive jurisdiction to the federal district courts for federal criminal cases district courts of the united states shall have original jurisdiction exclusive of the courts of the states of all offenses against the laws of the united states is it not so that so long as the indictment charges the defendant with violating a valid federal statute as an act in the united states code it alleges an offense against the laws of the united states and thereby invokes the district court subject matter jurisdiction isn't that hornbook law all of that is true and we are not in this case did the indictment not indisputable alleged violation of federal law too with ten twenty nine eighty three of title eighteen and twenty eight yes but that is insufficient to sustain a conviction that may be but your claim really seems to me to go more to the sea fish and see the evidence on jurisdiction then it goes to the question about whether the court had the power in the first place to adjudicate the case isn't that really what you're saying that it's not th no jurisdiction in the sense that the district court couldn't entertain the matter but that simply the evidence was insufficient to establish the interstate element isn't that basically your claim it is my claim and it's the claim that this court system continue there was there were on which is binding precedent just bear with me for a sec accepting that as true the claim is a sufficiency claim what does the plea of guilty under united states where we're on not a mere sufficiency claim jurisdiction depends on both evidence and the power of a federal court does not arise from things that a party alleges i just case you're relying on i think it is it is not your honor fitzgerald versus the board systems is that in our circuit yes it is american express versus trivago there are numerous numerous case let's go back and talk about it  jurisdiction of the united states right yes or jurisdiction was used in the elements of the statute correct yes your honor is no reference to jurisdiction then state interstate commerce jurisdiction says that the vessel was in the jurisdiction of the united states and that's truly a jurisdictional type element to exercise authority over the comm yes your honor and in this case the jurisdictional element is a substantial effect on interstate commerce and there is no evidence of that in this record help me with this about the reference to the m d l e a case it's kind of a peculiar statute and it seems to me to be different from this one at least in one respect and help me with whether or not that distinction is and meaningful here given the nature of the argument you make in that case the jurisdictional issue arises under the chapter as a preliminary question of law to be determined initially by the court it's different in the sense that in most of the statutes jurisdiction is a question for the jury to determine whether interstate commerce was affected or not but the distinction i'm asking about is that in the war on the jurisdictional issue arises as in congress it's kind of a peculiar statute and says judges you folks decide it's jurisdictional question it's not to say the courts wouldn't look the jurisdiction afterwards even when the jury had the obligation to do it but there's that distinction is that not illuminating as to the argument that you make you cite that case as one not the only but as a principle on which you turn your claim your honor regardless of who the fact finder is federal jurisdiction always depends on whether facts are proven with evidence it never ever depends on a party merely asserting allegations and then failing to prove them there are many instances including fitzgerald including american express including iran in which this court has said we cannot proceed because the record fails to establish federal jurisdiction every record in every federal criminal case must have evidence of jurisdiction the idea that the united states may please the court good morning my name is your husseini i'm an assistant united states attorney i represent the united states in this matter with me at counsel table is a u s c mckinsey twain who represented the united states district court this appeal does not involve an said section thirty two thirty one gives district court subject matter jurisdiction over all offenses against the laws of the united state so long as the indictment charges a defendant would violating  constitutional or statutory power to adjudicate a case he's not saying the district court didn't have the power to hear it he simply said when you go beyond that the factual data was just wholly insufficient to support it and that jurisdiction is somehow different from the other elements that are normally perceived as being away from that i think is what he's saying if jurisdiction that's so basic that that's the kind of thing that's not waive a bull by the entry of a plea or at least that has to be the argument that is in contravention to this court's binding precedent that's the abolition is that this kind of an argument where the appellant says that you know state commerce element in this statute is jurisdictional so the court lacked subject matter to restriction because there was insufficient evidence in the record that that argument in fact is not on jurisdiction because a claim of insufficient connection to the interstate commerce is all it's jurisdictional in the sense that without the nexus that could be no federal crime determine so the united states of a stylish that the vessel what apprehended why would it matter who is making the determination why do i care whether it's the district judge making the jurisdictional determination or the fact finder that is to say the jury making the jurisdictional finding at the end of the day the finding about jurisdiction isn't that essential even is that something you can waive is i guess what i'm really asking well  states versus vis go united states versus all the karni both of them hold that sufficiency of the evidence challenge which is based on this interview interstate commerce element even though it's child labeled as jurisdictional is think that there is too that out being able to establish some kind of interstate effect some kind of impact on interstate commerce or foreign commerce yes ron i think there's two legal principles there is congress's power to regulate the conduct at issue and then there's the jurisdiction of the court so it is a jurisdictional element because it's a constitutional limit on congress us power to regulate that conduct whether it be entertain a matter is not affected by whether the government did it prove an interstate nexus element if there are no further questions for me so i would just like to refer the court to page four of the reply brief where all of this court's the precedents regarding jurisdiction  sort of summarizing apparent that because these are all cases where the court said there is no evidence of diversity jurisdiction there is no evidence of federal jurisdiction for one reason or another and in those cases the parties of course alleged diversity they alleged and about and controversy but they didn't prove it and the rule for jurisdiction is the same whether the case is civil or criminal the reason for the rule of course is because the federal court limited jurisdiction could the government have proven federal jurisdiction in this case let me ask a question this way suppose the charge was in charge of a federally insured bank two guys go into chase manhattan bank with shotguns they stick up the bank they make off with a hundred bucks in cash they charge you with three hundred twenty one thirteen of title eighteen i just suppose that's what happens among the elements that the government would have to prove beyond a reasonable doubt are the knowing willful intentional taking by force or violence a sum of money belonging to a bank that was insured by the f b i see went into the bank with a shotgun and made off with a hundred bucks judge takes the plea enters the plea but announces a sentence and then there's a challenge to later on the grounds that the evidence was insufficient to establish that the bank in fact was insured by the f b i see it's an element it had to go to the jury it's jurisdictional in the sense that you had to show the interstate commerce relationship if the bank wasn't insured it isn't a federal crime period now does that suggest that the district court did not have the power to would you  able to come back later and challenge the judgment on the grounds that the plea could not have been accepted because the government screwed up that was just no to hide the commerce because the f d i c i want was missing and they couldn't provide yes you are so good you challenge that yes you are and let me explain why because i understand that this argument seems nitpicky and hyper technical but it really isn't because we do need a way to figure out when a federal district court has power and what it doesn't and the only way the common law knows to do that so you would say so if i understand what you're saying you could turn around and human later on the grounds that the evidence supporting jurisdictional were otherwise insufficient even if the parties stipulated that it was sufficient on the front end of course because parties cannot create jurisdiction with a stipulation let me read to you something the seventh circuit said about it and i invite your comment about it i wrote in case some years ago the name of the case was martin and the seventh circuit put it this way the nexus with interstate commerce which courts frequently call the jurisdictional element is simply one of the essential elements of the crime there was section eight forty four which the crime all the courts frequently call it the jurisdictional element of the statute it is jurisdictional only in the shorthand sense that without could be no federal crime under the bombing statute it's not jurisdictional in the sense that it affects a subject a court subject matter jurisdiction that is a court's constitutional  statutory authority to adjudicate the case once the defendant pleads guilty in court which has jurisdiction of the subject matter and of the defendant as did the district court in this case the court judgment cannot then be assailed they are after on the grounds that the government has not met its burden of proving this so called jurisdictional fact why are they wrong they are wrong because that case conflicts with iran in every case determine whether subject subject matter jurisdiction exists even in the absence of a challenge from any party but the case also says if the legislature clearly states that a threshold limitation on the character why does that not govern here because the question here is whether this was a florida crime earth federal crime and the only way this is a federal crime the only way as judge marcus suggested that that simple possession of a stolen credit card with no other evidence is federal is if it affected interstate commerce all they had to do was put that in the factual proffer and the district court could then have made a finding i think i think that's a good and interesting argument but why doesn't that language from the united states supreme court dispose of it that since congress didn't say this is a jurisdictional because you don't have to prove that beforehand instead you treat it as an  offense because the entire apprentice line of cases from the president through booker holds that labels don't matter it's not up to congress to define article three power that's defined by the constitution congress can change that so it doesn't matter of congress call something jurisdictional or not what matters is i thought i thought it's congress that has the power to create the inferior federal courts and rebels in them such power to adjudicate such cases  as it may choose to so that the power is derived of course from the constitution but it's congress that sets the nature of our jurisdiction i said but congress courts have limited jurisdiction i can't assert your sticks you know over a dissolving marriage in a divorce suit because i don't have the power because congress didn't give it to me you don't have the power because congress can't give it to you congress has no power so there's no question they can't they can't create a crime where there's no interstate element that much we know but that's different from saying that congress doesn't repos jurisdiction in the courts to adjudicate the kinds of cases it wants the crime may not state a crime and maybe not it may go be on the power of car congress to make it a crime to possess a firearm within a thousand feet of the school or something like that correct so congress congress can try to create federal crimes but courts frequently as in lopez which is the case you are referring to court frequently say this goes beyond congress's numerated powers you cannot put these cases in the federal courts they belong in the state courts and this is the problem here is the government's factual proffer is gigantic you talk about the factual  she admits that if it went to trial i'm reading from the first paragraph of the factual proc are for she didn't knowingly with an intent to defraud possess fifteen more devices that are counterfeit that she had one hundred thirty four on the thumb drive which she later talks about and she's met said conduct her conduct affected interstate and foreign commerce why is that not sufficient under factual proffer where she admits she  affected interstate commerce your honor that is a legal conclusion that is what judges decide judges decide whether interstate commerce or your view counsel is that every time every counsel for every defendant in this circuit walks into a federal court to plead guilty to with federal crime and lays out the evidence in some kind of general way when they get to the jurisdictional element the district judge is required to say thank quest but i want to know what is the foundation for the interstate element i want to know specifically chapter and verse how does this implicate interstate commerce that's your view my view is that with what ha happened i understand i just ask you that is what you have to do in every case it's not enough to rely on the allocution by the prosecutor and the defense lawyer who says we're satisfied that the  met including interstate commerce yes sure that follows from the court's independent obligation under mr stanbury to ascertain jurisdiction in every case courts have to do that regardless of what the party says i've got it thank you very much to your i q for your efforts focus and will move on to the next case