                                                                    [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 98-5546
                           ________________________

                     D. C. Docket Nos. 96-8021-CV-UUB
                                       92-8108-CR-UUB

HOSSEIN ALIKHANI,
a.k.a. Hossein Alikani,
a.k.a. J. A. Faram,

                                                       Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                           ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                              (January 11, 2000)


Before COX and DUBINA, Circuit Judges and KRAVITCH, Senior Circuit Judge.

PER CURIAM:
      Hossein Alikhani appeals the denial of his petition for a writ of error coram

nobis. We affirm.

                                    Background

      Following an unsuccessful attempt to procure certain oil-production

equipment in the United States for sale to Libya, Alikhani (a Cypriot) was charged

with a criminal violation of executive orders and regulations, promulgated under

50 U.S.C. §§ 1701 and 1702, forbidding all exports to and certain transactions with

Libya. Alikhani challenged the indictment by a motion to dismiss under Fed. R.

Crim. P 12(b)(2). That challenge included the arguments that the Libyan embargo

regulations do not reach non-“U.S. persons,” a term that is defined in Executive

Order No. 12543, the primary basis of most of the regulations, and that even if the

executive order intended to prohibit conduct by non-U.S. persons, such a

prohibition would exceed the president’s statutory authority.

      The court never ruled on the motion, however, because Alikhani withdrew it

after entering a plea agreement. Under that agreement, Alikhani pleaded guilty to

the charge of violating the executive orders. Later finding inconvenient a

provision in the plea-agreement that prohibited him from filing suits concerning his

arrest, Alikhani has sought by this coram nobis petition to have his guilty plea

invalidated and the plea agreement thereby voided. The district court denied the


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petition after concluding that Alikhani had not presented any cognizable ground for

relief. This court has historically in unpublished opinions reviewed a denial of

coram nobis relief for abuse of discretion, see Warton v. United States, No. 91-

5133, unpublished op. at 2 (11th Cir. July 30, 1992), and following the practice in

other circuits we deem that to be the proper standard of review — keeping in mind

that an error of law is an abuse of discretion per se. See Fleming v. United States,

146 F.3d 88, 90 (2d Cir. 1998); United States v. Camacho-Bordes, 94 F.3d 1168,

1173 (8th Cir. 1996).

                                     Discussion

      The bar for coram nobis relief is high. First, the writ is appropriate only

when there is and was no other available avenue of relief. See United States v.

Morgan, 346 U.S. 502, 512, 74 S. Ct. 247, 253 (1954); Moody v. United States,

874 F.2d 1575, 1578 (11th Cir. 1989). Second, the writ may issue “only when the

error involves a matter of fact of the most fundamental character which has not

been put in issue or passed upon and which renders the proceeding itself irregular

and invalid.” Moody, 874 F.2d at 1576-77.

      In a brief that reads like one on direct appeal from a criminal conviction,

Alikhani asserts six challenges to his conviction. Five of the six are facially not

cognizable on coram nobis review because Alikhani could have, but failed to,


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pursue them in a pretrial motion. See Moody, 874 F.2d at 1576. Those five are

the arguments that (1) the indictment was defective because it failed to show that

he lacked U.S. authorization to export equipment to Libya; (2) the statute and

executive order issued under it did not prohibit his conduct because the order

forbids certain acts by U.S. persons, a category into which he assertedly does not

fit; (3) the export prohibitions do not apply to the transaction in which he was

engaging; (4) he cannot properly be held liable on an aiding-and-abetting theory;

and (5) the executive orders to whose violation he pleaded guilty were

unconstitutionally vague. The district court would not abuse its discretion by

rejecting such arguments.

      Alikhani makes one argument, however, that he deems to be an attack on the

district court’s subject-matter jurisdiction: the Government lacks the power to

prosecute a non-U.S. person, either because of an implicit limit on the president’s

power to impose an executive embargo, or because the embargo regulations

themselves implicitly bar only transactions by U.S. persons. A genuine claim that

the district court lacked jurisdiction to adjudicate the petitioner guilty may well be

a proper ground for coram nobis relief as a matter of law. But these statutory

arguments, even if meritorious, would not implicate the district court’s subject-

matter jurisdiction.


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       “Subject-matter jurisdiction defines the court’s authority to hear a given

type of case . . . .” United States v. Morton, 467 U.S. 822, 828, 104 S. Ct. 2769,

2773 (1984). Congress bestows that authority on lower courts by statute; in our

case, Congress has provided the district courts with jurisdiction — “exclusive of

the courts of the States” — of “all offenses against the laws of the United States.”

18 U.S.C. § 3231. The United States filed an indictment charging Alikhani with

violating “laws of the United States,” and § 3231on its face empowered the district

court to enter judgment upon the merits of the indictment, such as dismissing the

indictment on the ground that it does not allege facts showing that the defendant

committed the charged offense. See Sardelli v. United States, 813 F.2d 654, 656

(5th Cir. 1987) (district court has jurisdiction to determine if a certain kind of

conduct violates a federal criminal statute). Alikhani has cited no case, and we

have located none, holding that the failure of an indictment to state an offense —

as Alikhani at bottom contends here — divests the district court of the power even

to enter a judgment of acquittal. So to hold would be inconsistent, indeed, with the

Supreme Court’s insistence in the civil realm that “the absence of a valid (as

opposed to arguable) cause of action does not implicate subject-matter jurisdiction,

i.e., the courts’ statutory or constitutional power to adjudicate the case.” Steel Co.

v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1010 (1998) (emphasis in original).


                                           5
      Courts have rejected, moreover, the analogous assertion that a failure of

allegation or proof on an interstate-commerce element deprives the district court of

jurisdiction. An effect on interstate commerce may be required for Congress to

have authority under the Commerce Clause to forbid certain conduct. See United

States v. Lopez, 514 U.S. 549, 562, 115 S. Ct. 1624, 1631 (1995). But to this court

and at least one other, that does not imply that a district court faced with an

insufficient interstate-commerce nexus loses subject-matter jurisdiction of the case.

See United States v. Viscome, 144 F.3d 1365, 1370 (11th Cir.) (“Appellant

Viscome also attacks the sufficiency of the government's evidence regarding the

interstate nexus element. However, Viscome’s guilty plea waived all

non-jurisdictional defects in the proceedings against him; and Viscome’s

sufficiency of the evidence challenge is non-jurisdictional.”), cert. denied, 525 U.S.

941, 119 S. Ct. 1362 (1998); United States v. Martin, 147 F.3d 529, 532 (7th Cir.

1998) (“[O]nce a defendant pleads guilty in ‘[a] court which has jurisdiction of the

subject matter and of the defendant, as did the court in the instant case,’ the court’s

judgment cannot be assailed on grounds that the government has not met its burden

of proving ‘so-called jurisdictional facts.’” (quoting United States v. Hoyland, 264

F.2d 346, 352-53 (7th Cir. 1959))). By analogy, even if the Government had to

prove that Alikhani was a U.S. person, and even if the Government had failed to


                                           6
allege sufficient facts in the indictment to support an assertion that Alikhani was a

U.S. person, the district court would still have had subject-matter jurisdiction over

the case.

      We thus reject the notion that Alikhani’s statutory arguments are

jurisdictional. They were not, therefore, properly raised for the first time in a

collateral proceeding when they could have been raised earlier. The district court

did not abuse its discretion by denying relief.

                                     Conclusion

      For the foregoing reasons, we affirm the district court’s denial of the

petition.

      AFFIRMED.




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