[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 97-1793
UNITED STATES,
Appellee,
v.
ERICKSON ALVELO-RAMOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge, Selya and Boudin, Circuit Judges.
Joseph C. Laws, Jr., Federal Public Defender, and Edgardo Rodriguez-Quilichini, Assistant Federal Public Defender, on brief for appellant. Guillermo Gil, United States Attorney, Camille Velez-Rive, Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, on brief for appellee.
July 27, 1998
Per Curiam. Erickson Alvelo-Ramos appeals from his conviction under 18 U.S.C. 1029(a), of possessing cloned cellular telephones and cloning hardware and software. Presented as a sufficiency of the evidence challenge, in effect Alvelo-Ramos' appeal challenges the jury instructions concerning 1029(a)'s requirement that the offense "affect[] interstate and foreign commerce." Under United States v. Lopez, 514 U.S. 549 (1995), Alvelo-Ramos argues, the government was required to prove that the offenses had a "substantial" effect on interstate commerce. In the alternative, Alvelo- Ramos argues that if the statute does not require proof of a "substantial" effect on interstate commerce, then it exceeds Congress' powers under the Commerce Clause, as interpreted in Lopez. I. Statutory Construction We review questions of statutory construction de novo. United States v. Cardoza, 129 F.3d 6, 10 (1st Cir. 1997). Section 1029(a) contains a jurisdictional element which requires that, to be punishable, an offense must "affect[] interstate or foreign commerce." Cases interpreting 18 U.S.C. 1029(a), usually in the context of credit card fraud offenses, have required only a minimal nexus to interstate commerce. See United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995)(possession of stolen credit cards bearing out-of-state addresses was sufficient to establish requisite effect on interstate commerce); United States v. Rushdan, 870 F.2d 1509, 1514 (9th Cir. 1989)(illicit possession of out-of-state credit card account numbers, even without their use, is sufficient effect on interstate commerce); United States v. Lee, 818 F.2d 302, 305 (4th Cir. 1987) (upholding jury instruction that proof of single interstate phone call by bank manager in connection with defendant's attempted use of a counterfeit credit card to obtain a cash advance would meet the interstate commerce requirement). Appellant argues that, under Lopez, the jurisdictional element in 1029(a) now requires the government to prove that the offenses had a "substantial" effect on interstate commerce. This court recently rejected an argument, similar to the one raised here, that "Lopez impliedly changes the meaning of the jurisdictional element present [to require a substantial effect on interstate commerce] before [defendant's] conviction [under 18 U.S.C. 922(g)] passes Commerce Clause scrutiny." Cardoza, 129 F.3d at 11; see alsoUnited States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996); United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir. 1995). The Cardoza court reasoned that when the [Lopez] Court stated that "the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce," Lopez, 514 U.S. at 559, it was not revising the government's burden of proof on a jurisdictional element in criminal proceedings, but instead identifying the extent to which purely intrastate activities must impact interstate activities before Congress may legislate under the Commerce Clause. Therefore, because the Court had no occasion in Lopez to reach the question, it remains the law that where a federal criminal contains a jurisdictional element requiring proof that an object was "in or affecting" commerce, the government need only meet the "minimal nexus" test enunciated in Scarborough v. United States, 431 U.S. 563, 577 (1977).
Cardoza, 129 F.3d at 11. Applying that reasoning here, it follows that Lopezalso did not revise the government's burden of proof with respect to the jurisdictional element in 18 U.S.C. 1029(a). Cf. United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997) (rejecting Clayton's argument that under Lopez, 18 U.S.C. 1029(a) requires the government to prove a "substantial" effect on interstate commerce). Accordingly, the cases interpreting 1029(a) to require only a minimal nexus to interstate commerce continue to control after Lopez. The district court did not err in instructing the jury that it could find that the requisite connection to interstate commerce was satisfied if it found that the cloned cell phones had the capacity to make interstate calls.
II. Sufficiency of the Evidence "With respect to Appellant's claim that there was insufficient evidence to sustain his convictions, Appellant 'faces an uphill climb,' United States v. Valle, 72 F.3d 210, 216 (1st Cir. 1995). 'If the evidence presented, taken in the light most agreeable to the government is adequate to permit a rational jury to find each essential element of the offense of conviction beyond a reasonable doubt, then [Appellant's] claim fails.' Id." United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir. 1996), cert. denied, 117 S. Ct. 1109 (1997). The evidence presented in this case is adequate to permit a rational jury to find that the cloned phones were manufactured outside of Puerto Rico and that they had the capacity to make long-distance interstate calls. Therefore, the evidence was sufficient for the jury to find that the offenses affected interstate commerce. Alvelo-Ramos' sufficiency of the evidence claim fails. III. Constitutional Challenge "We review de novo constitutional challenges to federal statutes." United States v. Bongiorno, 106 F.3d 1027, 1030 (1st Cir. 1997). Appellant argues that if 1029(a) does not require proof of a "substantial" effect on interstate commerce, then the reasoning of Lopez should apply to invalidate the statute as beyond Congress' affirmative powers under the Commerce Clause.
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[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 97-1793
UNITED STATES,
Appellee,
v.
ERICKSON ALVELO-RAMOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge, Selya and Boudin, Circuit Judges.
Joseph C. Laws, Jr., Federal Public Defender, and Edgardo Rodriguez-Quilichini, Assistant Federal Public Defender, on brief for appellant. Guillermo Gil, United States Attorney, Camille Velez-Rive, Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, on brief for appellee.
July 27, 1998
Per Curiam. Erickson Alvelo-Ramos appeals from his conviction under 18 U.S.C. 1029(a), of possessing cloned cellular telephones and cloning hardware and software. Presented as a sufficiency of the evidence challenge, in effect Alvelo-Ramos' appeal challenges the jury instructions concerning 1029(a)'s requirement that the offense "affect[] interstate and foreign commerce." Under United States v. Lopez, 514 U.S. 549 (1995), Alvelo-Ramos argues, the government was required to prove that the offenses had a "substantial" effect on interstate commerce. In the alternative, Alvelo- Ramos argues that if the statute does not require proof of a "substantial" effect on interstate commerce, then it exceeds Congress' powers under the Commerce Clause, as interpreted in Lopez. I. Statutory Construction We review questions of statutory construction de novo. United States v. Cardoza, 129 F.3d 6, 10 (1st Cir. 1997). Section 1029(a) contains a jurisdictional element which requires that, to be punishable, an offense must "affect[] interstate or foreign commerce." Cases interpreting 18 U.S.C. 1029(a), usually in the context of credit card fraud offenses, have required only a minimal nexus to interstate commerce. See United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995)(possession of stolen credit cards bearing out-of-state addresses was sufficient to establish requisite effect on interstate commerce); United States v. Rushdan, 870 F.2d 1509, 1514 (9th Cir. 1989)(illicit possession of out-of-state credit card account numbers, even without their use, is sufficient effect on interstate commerce); United States v. Lee, 818 F.2d 302, 305 (4th Cir. 1987) (upholding jury instruction that proof of single interstate phone call by bank manager in connection with defendant's attempted use of a counterfeit credit card to obtain a cash advance would meet the interstate commerce requirement). Appellant argues that, under Lopez, the jurisdictional element in 1029(a) now requires the government to prove that the offenses had a "substantial" effect on interstate commerce. This court recently rejected an argument, similar to the one raised here, that "Lopez impliedly changes the meaning of the jurisdictional element present [to require a substantial effect on interstate commerce] before [defendant's] conviction [under 18 U.S.C. 922(g)] passes Commerce Clause scrutiny." Cardoza, 129 F.3d at 11; see alsoUnited States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996); United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir. 1995). The Cardoza court reasoned that when the [Lopez] Court stated that "the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce," Lopez, 514 U.S. at 559, it was not revising the government's burden of proof on a jurisdictional element in criminal proceedings, but instead identifying the extent to which purely intrastate activities must impact interstate activities before Congress may legislate under the Commerce Clause. Therefore, because the Court had no occasion in Lopez to reach the question, it remains the law that where a federal criminal contains a jurisdictional element requiring proof that an object was "in or affecting" commerce, the government need only meet the "minimal nexus" test enunciated in Scarborough v. United States, 431 U.S. 563, 577 (1977).
Cardoza, 129 F.3d at 11. Applying that reasoning here, it follows that Lopezalso did not revise the government's burden of proof with respect to the jurisdictional element in 18 U.S.C. 1029(a). Cf. United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997) (rejecting Clayton's argument that under Lopez, 18 U.S.C. 1029(a) requires the government to prove a "substantial" effect on interstate commerce). Accordingly, the cases interpreting 1029(a) to require only a minimal nexus to interstate commerce continue to control after Lopez. The district court did not err in instructing the jury that it could find that the requisite connection to interstate commerce was satisfied if it found that the cloned cell phones had the capacity to make interstate calls.
II. Sufficiency of the Evidence "With respect to Appellant's claim that there was insufficient evidence to sustain his convictions, Appellant 'faces an uphill climb,' United States v. Valle, 72 F.3d 210, 216 (1st Cir. 1995). 'If the evidence presented, taken in the light most agreeable to the government is adequate to permit a rational jury to find each essential element of the offense of conviction beyond a reasonable doubt, then [Appellant's] claim fails.' Id." United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir. 1996), cert. denied, 117 S. Ct. 1109 (1997). The evidence presented in this case is adequate to permit a rational jury to find that the cloned phones were manufactured outside of Puerto Rico and that they had the capacity to make long-distance interstate calls. Therefore, the evidence was sufficient for the jury to find that the offenses affected interstate commerce. Alvelo-Ramos' sufficiency of the evidence claim fails. III. Constitutional Challenge "We review de novo constitutional challenges to federal statutes." United States v. Bongiorno, 106 F.3d 1027, 1030 (1st Cir. 1997). Appellant argues that if 1029(a) does not require proof of a "substantial" effect on interstate commerce, then the reasoning of Lopez should apply to invalidate the statute as beyond Congress' affirmative powers under the Commerce Clause. The statute under which appellant was convicted differs from the statute struck down in Lopez, however, in two important respects. First, "the statute at issue in [Lopez], 18 U.S.C. 922(q), 'contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the [offense] in question affects interstate commerce.'" Diaz-Martinez, 71 F.3d at 953. Section 1029(a), by contrast, extends only to offenses that "affect[] interstate or foreign commerce." Second, 1029(a) regulates the possession and sale of cloned cell phones, an activity that uses channels of interstate commerce and involves instrumentalities of interstate commerce. Lopez "identified three general categories of activity that lawfully can be regulated under the Commerce Clause: (1) activities that involve use of the channels of interstate commerce, (2) activities that implicate the instrumentalities of interstate commerce (including persons or things in interstate commerce), and (3) activities that have a substantial relation to, or substantially affect, interstate commerce." Bongiorno, 106 F.3d at 1031. Because 1029 falls within the first and/or second Lopez categories, there is no additional requirement that the regulated activities be shown to "substantially affect" interstate commerce. See Clayton, 108 F.3d at 1117. Alvelo-Ramos' conviction and sentence are affirmed.