Does a motion to dismiss an indictment for failure to satisfy the jurisdictional element of the federal arson statute need to include a full proffer of the evidence to be presented at trial?

Although we upheld a district court's dismissal of an indictment for failure to satisfy the jurisdictional element of the federal arson statute in United States v. Mennuti, 639 F.2d 107 (2d Cir.1981), in that case the government had filed an affidavit making a full proffer of the evidence to be presented at trial. See 639 F.2d at 108 & n. 1. By comparison, in the instant case, defendants' motion to dismiss did not even raise the issue of whether the government could meet its burden of establishing an effect on interstate commerce. The issue was raised for the first time by the district court sua sponte in its ruling granting the motion to dismiss, and the government made no detailed presentation of the entirety of the evidence that it would present to a jury. The government's brief statement during oral argument on its motion for reconsideration that it could prove defendants conspired to steal money and "a quantity of cocaine that was more than a personal use amount" cannot fairly be described as a full proffer for purposes of a pretrial ruling on the sufficiency of the evidence. ⁷ Accordingly, in the circumstances presented, we hold that the district court erred in dismissing Count One of the indictment.