United States v. Lissette Christina Nukida

The government appeals from a judgment of the district court dismissing five counts of a sixteen count indictment charging that Nukida tampered with consumer products affecting interstate commerce, in violation of 18 U.S.C. § 1365 (a). In granting Nukida’s Federal Rule of Criminal Procedure 12(b) motion to dismiss, the district court concluded that the products allegedly tampered with did not then affect interstate commerce, and therefore it lacked subject matter jurisdiction. The government contends the district court exceeded its authority by ruling on the interstate commerce element prior to trial. Nukida counters that the government has waived this argument by failing to raise it in the trial court. The district court initially exercised jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over the government’s timely interlocutory appeal pursuant to 18 U.S.C. § 3731 . We reverse and remand.

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