UNITED STATES of America, Plaintiff-Appellee, v. Valentine Rodriguez-Solel BOTELLO AKA Jose M. Pagan, Defendant-Appellant

Valentine Rodriguez-Solel Botello appeals his conviction for communicating false information that a product was tampered with in violation of 18 U.S.C. § 1365 (c). He disputes a jury instruction regarding the interstate commerce element of subsection 1365(c). Jurisdiction lay in the district court under 18 U.S.C. § 3231 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

In June 1993 rumors circulated amongst the public in Anchorage that cans of Pepsi contained hypodermic needles. Pepsi sales consequently dropped by half. It was during this period, on June 14, that Botello bought some Pepsi at a local shop. Shortly after making his purchase, he returned to the shop with the complaint that one of his Pepsis contained a hypodermic needle. He recounted his story to the other customers in the store and to an investigator called in from the Food and Drug Administration (FDA). He admonished Pepsi’s representative on the scene, saying he “couldn’t believe that [Pepsi] would put a needle in a can and poke my daughter’s lip.” In response to Botello’s allegation, Pepsi, with the involvement of the FDA, undertook an extensive investigation in Anchorage and in the Seattle…