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      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]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.
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