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 ...