367 F3d 1148 United States v. Lynch

367 F.3d 1148

UNITED STATES of America, Plaintiff-Appellee,
v.
John Lanny LYNCH, Defendant-Appellant.

No. 02-30216.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 11, 2003.

Filed May 13, 2004.

Judy Clarke (argued) and Roger J. Peven (on the briefs), Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the defendant-appellant.

John A. Drennan (argued), Department of Justice, Washington, DC, and Bernard F. Hubley, Assistant United States Attorney (on the brief), Helena, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Donald M. Molloy, District Judge, Presiding. D.C. No. CR-99-18-M-DWM.

Before: HAWKINS and BERZON, Circuit Judges, and QUACKENBUSH, Senior District Judge.*

PER CURIAM:


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1

Defendant John Lanny Lynch ("Lynch"), appeals his conviction and twenty-year sentence for violation of the Hobbs Act, 18 U.S.C. § 1951, and his conviction and five-year consecutive sentence for using or carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), both arising out of the robbery and murder of Brian Carreiro in Montana.

I. BACKGROUND1

2

Lynch, the victim Carreiro, and a third participant, Larry Pizzichiello, were all residents of Las Vegas, Nevada. Carreiro and Pizzichiello were drawing workers' compensation benefits and, while all three claimed to be unemployed, they were in fact deeply involved in illegal drug trafficking: the procurement, distribution, and sale of methamphetamine. Originally, Pizzichiello purchased drugs and gave them to Lynch to sell. Thereafter, Carreiro stepped into the role of the purchaser of drugs given to Lynch to sell. Their business arrangement required purchaser and seller to split the profits from the drug sales. A falling out occurred when Lynch failed to pay Carreiro under this arrangement and at the time of the Montana murder, Lynch was substantially indebted to Carreiro.

3

In 1995, Lynch left Las Vegas, taking with him the firearm subsequently used in Carreiro's murder. After arriving at his father's cabin in northwest Montana, and knowing that Carreiro would shortly be receiving a settlement from his workers' compensation claim, Lynch called Pizzichiello and Carreiro in Las Vegas, Nevada and asked about Carreiro's workers' compensation money. Intending to lure Carreiro to Montana, Lynch asked Pizzichiello and Carreiro to come to Montana from Las Vegas to pick him up after Carreiro received his money and to bring along a pound of methamphetamine. Lynch intended to rob Carreiro of these drugs and his money once Carreiro arrived in Montana.

4

Carreiro took the bait. After receiving his workers' compensation check and depositing a portion of it in the Las Vegas Federal Credit Union, he and Pizzichiello traveled in Carreiro's truck from Las Vegas to Lynch's father's residence in rural Montana, bringing with them a quantity of methamphetamine and marijuana and a pager Carreiro used in the drug business.

5

A prosecution witness at Lynch's trial, Pizzichiello testified that the day after he and Carreiro arrived at Lynch's father's cabin in Montana, Lynch shot and killed Carreiro.2 Lynch took Carreiro's personal effects from his wallet including his debit card from the Las Vegas Federal Credit Union. Lynch also took other personal effects from Carreiro's body including his shoes and the keys to Carreiro's pick-up truck. To cover up the robbery-murder, Lynch proceeded to burn Carreiro's body in a metal barrel.

6

Before leaving Montana, Lynch and Pizzichiello withdrew money from Carreiro's Las Vegas Federal Credit Union account by using Carreiro's debit card at a Montana ATM. The pair then drove Carreiro's truck from Montana back to Las Vegas, traveling from Montana through Wyoming and into Utah. On the trip, Lynch and Pizzichiello used Carreiro's debit card to withdraw money electronically from Carreiro's credit union account. Each of these withdrawals required electronic contact from the place of withdrawals in Montana, Utah, and Nevada with computer servers in Nevada and Kansas through the use of interstate telephone lines. While driving through Utah, Carreiro's truck broke down and Lynch and Pizzichiello rented a vehicle to haul the truck back into Las Vegas. Upon their return, Lynch and Pizzichiello used Carreiro's debit card one last time to withdraw the remaining balance in the credit union account. Lynch then repainted Carreiro's truck, which, at the time of his arrest, was in Lynch's possession.

7

When Carreiro failed to return to Las Vegas, Carreiro's family and friends became concerned and contacted the Las Vegas Police Department. An investigation ensued. The assigned detectives interviewed Lynch and Pizzichiello and determined that their statements about Carreiro were inconsistent. Thereafter, the Las Vegas detectives, through the Clark County District Attorney's office, sought and obtained a court order authorizing the interception of Lynch and Pizzichiello's conversations along with the installation of a pen register and trap and trace device. The wiretaps produced recorded conversations between Lynch and Pizzichiello that established their complicity in the murder and robbery of Carreiro. The detectives also established the use of Carreiro's debit card by Lynch and Pizzichiello in Montana, Utah, and Nevada. In May 1996, the burned remains of Carreiro's body were found near the cabin of Lynch's father in Montana.


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8

Lynch and Pizzichiello were charged and separately convicted for Carreiro's murder in a Montana state court. Both defendants were sentenced to life imprisonment. Those convictions were reversed by the Montana Supreme Court in 1999 by reason of a Montana rule that flatly prohibits the use at trial of non-consensual electronic surveillance of oral and wire communications, even if properly authorized by a state such as Nevada that allows such surveillance pursuant to a valid court order. State v. Lynch, 292 Mont. 144, 969 P.2d 920 (1998); State v. Pizzichiello, 294 Mont. 436, 983 P.2d 888 (1999). The Montana court ordered new trials.

9

Rather than retrying the defendants in Montana state court without the suppressed evidence, the Montana authorities apparently referred the matter to the United States Attorney for the District of Montana who, in 1999, obtained indictments of Lynch and Pizzichiello, charging them with (1) violation of the Hobbs Act, 18 U.S.C. § 1951(a), based upon the robbery of Carreiro and (2) the use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). Pizzichiello entered into a plea agreement and pled guilty to the Hobbs Act robbery charge. Sentenced to fifteen years' imprisonment, he became a principal witness against Lynch in his trial. Lynch was found guilty after a jury trial of the Hobbs Act offense (Count I) and also of using a firearm in the commission of that offense (Count II). He was sentenced to twenty years on Count I and a consecutive term of five years on Count II.3

10

This is Lynch's second appeal from his federal convictions and sentences. In his first appeal, United States v. Lynch, 282 F.3d 1049 (9th Cir.2002) (Lynch I), Lynch raised the same issues as are before this panel. The first panel did not address those issues, but adopted the test set forth in United States v. Collins, 40 F.3d 95 (5th Cir.1994), for determining when the Hobbs Act's federal jurisdictional "hook" is satisfied. The Collins/Lynch I test, as discussed in more detail below, is utilized where the defendant's conduct had no direct effect upon interstate commerce, but only an indirect effect. The panel then remanded the matter to the district court for further findings as to the indirect effect of Lynch's activities on interstate commerce. Lynch I did not consider the adequacy of the evidence of the direct effect on interstate commerce of Lynch's activities, nor did it address any of the other issues now before this court. The district court's subsequent findings are found in United States v. Lynch, 207 F.Supp.2d 1133 (D.Mont.2002). Lynch appeals again, raising the very same issues that were before, but not decided by, the first panel, as well as a new argument that he should be retried before a jury instructed on the Collins test.

II. DISCUSSION

11

A. The Sufficiency of the Evidence of Interstate Nexus

12

The Hobbs Act, 18 U.S.C. § 1951(a), states that:

13

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

14

(Emphasis supplied).

15

In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme Court recognized the very broad scope of the Hobbs Act. "That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence. The Act outlaws such interference `in any way or degree.'" Id. at 215, 80 S.Ct. 270 (emphasis supplied).

16

The Supreme Court further emphasized the broad reach of the "affects commerce" language of the Act in United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978), stating:

17

[T]he statutory language sweeps within it all persons who have "in any way or degree ... affect[ed] commerce ... by robbery or extortion." These words do not lend themselves to restrictive interpretation; as we have recognized, they "manifest ... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence."

18

(Second alteration in original; internal citations omitted.).

19

The Court in Culbert also dealt with the suggestion that the Hobbs Act constituted an interference with state's rights in such matters:

20

With regard to the concern about disturbing the federal-state balance, moreover, there is no question that Congress intended to define as a federal crime conduct that it knew was punishable under state law. ... Congress apparently believed, however, that the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so.

21

Id. at 379, 98 S.Ct. 1112 (citing to the Congressional Record).

22

The Hobbs Act defines commerce as, inter alia, "all commerce between any point in a State ... and any point outside thereof; [and] all commerce between points within the same State through any place outside such State." 18 U.S.C. § 1951(b)(3). To establish the interstate commerce element of a Hobbs Act charge, the government need only establish that a defendant's acts had a de minimis effect on interstate commerce. United States v. Atcheson, 94 F.3d 1237, 1241 (9th Cir.1996); United States v. Phillips, 577 F.2d 495, 501 (9th Cir.1978). The decision of the United States Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), holding unconstitutional the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1994), which outlawed the possession of guns in local school zones, did not require a change in the de minimis standard. Atcheson, 94 F.3d at 1242. The interstate nexus requirement is satisfied "by proof of a probable or potential impact" on interstate commerce. United States v. Huynh, 60 F.3d 1386, 1389 (9th Cir.1995) (quotation omitted). The government need not show that a defendant's acts actually affected interstate commerce. Id. at 1389-90.

23

As Atcheson pointed out: "This court has consistently upheld convictions under the Hobbs Act":

24

even where the connection to interstate commerce was slight. See, e.g., [United States v. Pascucci, 943 F.2d 1032, 1035 (9th Cir.1991)] (defendant threatened to deliver embarrassing audio tapes to his victim's employer, a corporation engaged in interstate commerce); United States v. Hanigan, 681 F.2d 1127, 1130-31 (9th Cir.1982) (defendant robbed three undocumented alien farm workers, affecting the movement of labor across borders); United States v. Phillips, 577 F.2d 495, 501 (9th Cir.1978) (defendant's extortion "threatened the depletion of resources from a business engaged in interstate commerce").

25

94 F.3d at 1243 (citing Huynh, 60 F.3d at 1389).

26

Atcheson is quite similar to our facts here. There the defendants traveled from Salt Lake City, Utah, to Pocatello, Idaho, took hostages, stole their credit and ATM cards, and unsuccessfully attempted to obtain money from ATM machines. All of these activities took place in Idaho. In addition, the defendants took jewelry which had been taken from one of the hostages across state lines. Finding these activities affected interstate commerce, the Atcheson court stated:

27

The evidence before the district court establishes that McGrath and Atcheson attempted to obtain, or obtained, out-of-state credit or ATM cards from each of the victims except Deanna Rosen. These acts created a sufficient potential effect on interstate commerce to support their convictions under the Hobbs Act. See United States v. Rushdan, 870 F.2d 1509, 1512 (9th Cir.1989) (conspiracy to possess out-of-state bank cards illegally, and illicit possession of out-of-state bank cards, are offenses which affect interstate or foreign commerce for purposes of 18 U.S.C. § 1029(a)(3)). McGrath and Atcheson's placement of out-of-state phone calls to determine the victims' account balances and credit card limits created a further connection with interstate commerce. United States v. Lee, 818 F.2d 302, 305-06 (4th Cir.1987) (interstate telephone call by a bank manager triggered by defendant's attempt to use credit card was sufficient to establish interstate commerce under 18 U.S.C. § 1029).

28

94 F.3d at 1243.

29

As noted above, in the prior appeal, the panel focused on the robbery of an individual and adopted the Fifth Circuit's Collins test. 282 F.3d at 1053. The Collins court, however, and various other circuits which have followed it, have recognized not only the distinction between the robbery of individuals and businesses, but also the distinction between direct and indirect effects on interstate commerce. As Collins stated:

30

Both direct and indirect effects on interstate commerce may violate section 1951(a). The government's "depletion of assets" theory falls into the indirect category. This theory [indirect] relies on a minimal adverse effect upon interstate commerce by a "depletion of the resources of the business which permits the reasonable inference that its operations are obstructed or delayed."

31

40 F.3d at 99 (emphasis added). The Collins court then concluded that a strictly intrastate robbery "which caused only a speculative indirect effect on a business engaged in interstate commerce," without other direct or indirect effects or relationships with interstate commerce could not fulfill the effect on interstate commerce nexus required for a Hobbs Act conviction. Id. at 101; see also United States v. Hollis, 725 F.2d 377, 379 (6th Cir.1984) (noting that "the possibility of an indirect effect need not be considered if the extortion had a direct effect on commerce") (emphasis supplied).

32

The Eleventh Circuit has also adopted the Collins test where the only evidence is of an indirect effect on interstate commerce. See United States v. Diaz, 248 F.3d 1065, 1085 (11th Cir.2001). Subsequent to that adoption, the court decided United States v. Carcione, 272 F.3d 1297 (11th Cir.2001). The relevant issue in Carcione was the sufficiency of the evidence of an interstate nexus where the defendants traveled from Illinois to Florida to rob an elderly, non-business Florida resident, made interstate phone calls, and returned to Illinois with the robbery proceeds. In determining that such evidence was sufficient to establish a direct effect on interstate commerce, and rejecting the application of the Diaz (Collins) indirect tests, the court stated:

33

While this test is an effective barometer for measuring a defendant's action and their effect on interstate commerce, we have repeatedly held that "in determining whether there is a minimal effect on commerce, each case must be decided on its own facts." Likewise, the "words of the Hobbs Act `do not lend themselves to restrictive interpretation.' "

34

Id. at 1301 n. 6 (citations omitted).

35

In United States v. Marrero, 299 F.3d 653, 656 (7th Cir.2002), cert. denied, 537 U.S. 1145, 123 S.Ct. 951, 154 L.Ed.2d 846 (2003), the court found sufficient interstate nexus where the defendants lured three drug dealers from Detroit to Chicago on the pretext of selling them cocaine and then robbed the drug dealers, even though the defendants did not have the cocaine to sell. Marrero held that the interstate commerce element was established: The dealers' business was "in commerce" not only because it bought its merchandise (cocaine) from out of state but also because conducting the business involved crossing state lines when the dealers came to Chicago to try to buy drugs from the defendants.

36

Id.

37

With the foregoing guidance in mind, we have no hesitation in finding that the evidence in this case, construed as it must be in favor of the government, clearly established that Lynch's actions, accompanied by Pizzichiello, had a direct effect on interstate commerce:

38

1. Lynch, Pizzichiello, and Carreiro jointly participated in the illegal drug trafficking business in Las Vegas, Nevada, and their trip to Montana involved the interstate transportation of illegal drugs. See United States v. Rodriguez, 360 F.3d 949 (9th Cir.2004).

39

2. Lynch traveled to Montana in a vehicle rented in Nevada.4

40

3. After his arrival in Montana, Lynch used interstate telephone lines to lure Carreiro from Nevada to Montana for the purpose of robbing him of money and drugs. See id. (distinguishing Lynch I because robbery of drug traffickers was akin to robbery of a business engaged in interstate commerce); Atcheson, 94 F.3d at 1243 (defendants' use of interstate telephone calls created connection with interstate commerce); see also Marrero, 299 F.3d at 656 (finding sufficient interstate nexus where defendants lured drug dealers across state lines on pretext).

41

4. Pizzichiello testified that Lynch killed Carreiro in Montana with a firearm that Lynch had transported from Las Vegas to Montana. Lynch returned to Las Vegas from Montana with the firearm.

42

5. After the robbery, Lynch and Pizzichiello used Carreiro's debit card in Montana, Utah, and Nevada to withdraw Carreiro's money from his Las Vegas Credit Union account. See Atcheson, 94 F.3d at 1243 (noting that obtaining and attempting to use out of state credit cards and ATM cards created a sufficient potential effect on interstate commerce).

43

6. The use of the debit card required the use of interstate communications from the source of the use, to Las Vegas, to Kansas, back to Las Vegas, and back to the place of withdrawal. See id.

44

7. Lynch and Pizzichiello traveled from Montana through Utah and back to Nevada in Carreiro's stolen truck.

45

8. On the return trip to Nevada from Montana, Lynch and Pizzichiello rented a U-Haul truck in Utah to transport Carreiro's disabled truck from Utah to Nevada.

46

Based on the foregoing, we conclude that there was sufficient evidence of a direct effect on interstate commerce to satisfy the Hobbs Act. We also determine that this conclusion is not barred by the law of the case doctrine, as the prior panel never reached a conclusion regarding the sufficiency of the evidence question that was presented to it in the prior appeal. See, e.g., United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986) (noting that law of the case generally precludes reconsideration of legal questions previously decided).5

47

Lynch also contends that since the Lynch I panel adopted the Collins indirect effect on interstate commerce test, a new trial is required with instructions containing the Collins test. However, since we have determined that there was more than adequate evidence of direct effects on interstate commerce, a new trial as to any indirect effect under Collins is not required.

48

B. Constitutionality of 18 U.S.C. § 924(c)(1)(A)

49

In pertinent part, 18 U.S.C. § 924(c)(1)(A) provides that "any person who, during and in relation to a crime of violence... uses or carries a firearm or who ... in furtherance of any such crime possesses a firearm" shall be punished by incarceration for a term of five years in addition to the punishment provided for the crime of violence. Lynch was found by the jury to have so used a firearm and was sentenced to a consecutive five-year term.

50

Lynch's argument that § 924(c) is unconstitutional as beyond the scope of the Commerce Clause is, as he recognizes, foreclosed by United States v. Staples, 85 F.3d 461 (9th Cir.1996), and United States v. Harris, 108 F.3d 1107 (9th Cir.1997). This issue having been previously decided, a three-judge panel may not overrule a previous decision of this court, unless "the relevant court of last resort[has] undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc); Branch v. Tunnell, 14 F.3d 449, 456 (9th Cir.1991). There has been no Supreme Court case undercutting Staples and Harris. Lynch's challenge is also without merit since the enhanced firearm sentence was imposed based on the Hobbs Act conviction with its interstate commerce finding by the jury.

C. The Nevada Court Wiretap Orders

51

Lynch filed pre-trial motions to suppress the fruits of the wiretaps conducted pursuant to Nevada state court orders. Lynch contended that there was no showing of necessity as required by 18 U.S.C. § 2518(1)(c),6 and there was neither probable cause nor sufficient need for the wiretap orders as required by § 2518(3).7

52

This court's review of a finding of probable cause is deferential. Whether other investigative procedures have been exhausted or why they reasonably appear to be unlikely to succeed if attempted, is reviewed de novo. However, the conclusion that the wiretap was necessary in each situation is reviewed for abuse of discretion. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir.1985). A district court's denial of a motion to suppress evidence is reviewed de novo and underlying factual issues are reviewed for clear error. United States v. Summers, 268 F.3d 683, 686 (9th Cir.2001).

53

The district court held a full evidentiary hearing on Lynch's motion to suppress the wiretaps. That hearing and the affidavits submitted in support of the wiretap orders established that both Pizzichiello and Lynch had made false and inconsistent statements to the detectives concerning the disappearance of Carreiro. The affidavits and testimony established that normal investigative procedures and interviews had been employed in good faith and that further investigation or interviews of Pizzichiello and Lynch would not likely succeed in obtaining evidence concerning Carreiro's disappearance. We conclude that the motion to suppress the wiretaps was properly denied. See United States v. Canales Gomez, 358 F.3d 1221, 1226-27 (9th Cir.2004).

54

D. Evidence Of Prior Pizzichiello Misconduct

55

A district court's ruling precluding testimony is an evidentiary ruling that is reviewed for abuse of discretion. United States v. Ravel, 930 F.2d 721, 726 (9th Cir.1991). If the ruling precludes the presentation of a defense, review is de novo. United States v. Ross, 206 F.3d 896, 898-99 (9th Cir.2000).

56

One week prior to the commencement of the trial, the government filed its Fourth Motion in Limine to preclude Lynch from cross-examining Pizzichiello as to his alleged prior acts of violence and threats, citing Federal Rule of Evidence 404(a), which prohibits evidence of a person's character or trait of character for the purpose of proving action in conformity therewith on a subsequent occasion. Lynch responded to that motion contending, inter alia, that evidence of Pizzichiello's prior violent acts or threats of violence was admissible and relevant "(2) to impeach credibility to the extent he is portrayed as a passive follower acting under the influence of John Lynch; and (3) to the extent these acts were known to John Lynch, to establish his lack of intent to rob and to assist in explaining his actions in covering up the crime." (emphasis supplied).

57

Federal Rule of Evidence 404(a), concerning character evidence states, in pertinent part, that:

58

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

59

(1) Character of Accused ...

60

(2) Character of Alleged Victim — Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same ...

61

(3) Character of Witness — Evidence of the character of a witness, as provided in rules 607, 608 and 609.

62

Lynch did not then contend, as he now does, that the testimony of other witnesses should be admitted to corroborate his trial testimony that the reason he accompanied Pizzichiello from Montana back to Nevada and did not go to the police at any time was because he was afraid of Pizzichiello. Nor did Lynch cite to the district court the case he now relies on, United States v. James, 169 F.3d 1210 (9th Cir.1999) (en banc), a case which we find, infra, is distinguishable from this case.

63

The district court granted the government's motion and precluded evidence "that pertains to specific instances of threats made by any witness, control issues, affiliation with organizations, dangerous character of somebody who's a witness," stating that this ruling was based on Rules 404(a) and (b), 405(b), 607, 608, and 609, which preclude prior acts of misconduct and violence "for the purpose of proving action in conformity therewith on a particular occasion." The district court also performed the balancing analysis provided for under Rule 403. Neither in that ruling nor at trial did the court preclude Lynch from testifying that the reason that he stayed with Pizzichiello after Carreiro's murder and never contacted the police was his fear of Pizzichiello.

64

Lynch was further allowed to testify that Pizzichiello "always carried a gun"; that his fear was enhanced "because I just saw him kill somebody"; that "if anything I would have done would have triggered him to react, he would have shot me, I had no doubt"; and that "Larry wasn't going to let me leave him anyway." The district court did sustain an objection to Lynch's testimony that "if somebody were to come there, they would have got shot," and also sustained an objection to Lynch's testimony that "Larry's a dangerous guy." While those rulings may have been inconsistent and even erroneous, they were not prejudicial in that Lynch was allowed to fully express his fear of Pizzichiello to the jury, including further statements that Pizzichiello was "threatening me and threatening to kill me," and that he went with Pizzichiello after the shooting because he was afraid of him.

65

Lynch primarily relies upon United States v. James, 169 F.3d 1210 (9th Cir.1999) (en banc), to support his argument that he should have been entitled to introduce evidence of acts of misconduct and violence by Pizzichiello, unknown to Lynch at the time of the murder, that took place prior to the shooting of Carreiro. Lynch suggests that such evidence from other witnesses would have corroborated Lynch's fear of Pizzichiello. However, Lynch's testimony was that his fears arose from Pizzichiello's shooting of Carreiro. None of the alleged corroborating witnesses had knowledge of those events.

66

The defendant in James was charged with aiding and abetting the shooting death of David Ogden by furnishing the gun with which her daughter shot and killed Ogden. Her defense was one of self-defense based upon Ogden's prior violence that she had seen and had visited upon her, as well as atrocious crimes about which Ogden had bragged to her. She offered corroborating evidence that these atrocities had actually occurred, although she was unaware of that corroboration at the time of the murder. Id. at 1214. The trial court rejected the proffered evidence, holding that the only relevant evidence of Ogden's violence was that known to the defendant at the time of Ogden's killing.

67

The Ninth Circuit in James found that the trial court's ruling was too narrow, holding:

68

It was absolutely necessary to her defense for the jury to believe (1) that she wasn't making up the stories and (2) that, when she heard them, she heard them from the man who had actually done these terrible things and who was not just spinning tales. The records proved that he had done them so that the stories of his wild exploits would have had the ring of truth to her, and the records proved that what Ernestine James testified to had actually taken place. The records corroborated her testimony, and the records corroborated her reason to fear.

69

Id. at 1214.

70

Clearly, the character of the victim in James was relevant to the defendant's defense of self-defense, and so was admissible under Rule 404(a)(2) — which pertains only to evidence of the character of the victim. In the instant case, the character of the victim Carreiro was not in issue and Lynch's defense to the Hobbs Act charge was not one of self-defense. Evidence of Lynch's knowledge of Pizzichiello's violence was offered and admitted for the limited purpose of showing why Lynch stayed with him after the killing of Carreiro. Prior acts of violence or alleged "mob" connections by Pizzichiello, unknown to Lynch, only showed possible propensity on the part of Pizzichiello, rather than Lynch, to kill Carreiro. Whether Lynch or Pizzichiello killed Carreiro was not an element of the Hobbs Act charge or a defense thereto.

71

The district court did not err in concluding that the purpose of the proffered testimony was to show a character of violence and a propensity on the part of Pizzichiello to kill another person. Such evidence is precluded under Rule 404. In addition, the district court balanced the probative value of the evidence as opposed to its prejudicial effect under Rule 403.

72

While "it may well be that courts should indulge the accused when the defendant seeks to offer prior crimes evidence of a third person for an issue pertinent to the defense other than propensity," United States v. McCourt, 925 F.2d 1229, 1236 (9th Cir.1991), and courts should allow full and complete inquiry as to the background of a co-defendant testifying against another defendant, in this case the district court reasonably concluded that the precluded evidence was strictly propensity evidence as to Pizzichiello.

E. The 18 U.S.C. § 924(c) Conviction

73

Lynch contends it was error to permit the jury to convict him of Count II for using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) on the theory that he was either a principal or an aider and abettor. He contends that the government proceeded at trial solely on the theory that Lynch acted alone in using the gun, rather than that he aided and abetted Pizzichiello in the murder of Carreiro. Lynch did not challenge the aiding and abetting instruction until his post-trial Rule 29 motion based upon the alleged insufficiency of the evidence. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Daychild, 357 F.3d at 1096 n. 22.

74

In this case, the jury could have reasonably found that it was Lynch who, as a principal, used the firearm in the killing of Carreiro. The jury could have also concluded that Lynch aided and abetted the robbery of Carreiro with the use of a firearm. "A defendant can be convicted of aiding and abetting even if a principal is never identified or convicted," so long as the evidence established that the criminal offense was committed by someone. United States v. Powell, 806 F.2d 1421, 1424 (9th Cir.1986). Clearly, in this case, the evidence was undisputed that either Pizzichiello or Lynch used a firearm in the murder and robbery of Carreiro. Lynch's challenge to the lack of aiding and abetting evidence is without merit.

75

F. Cross Reference To First Degree Murder In Sentencing

76

The district court imposed a twenty-year sentence on Lynch for the Hobbs Act offense (Count I). In a special interrogatory the jury determined that the government had failed to prove beyond a reasonable doubt that Lynch had murdered Carreiro. However, the district court found by clear and convincing evidence that Lynch had participated in the murder and therefore cross-referenced United States Sentencing Guidelines Manual (U.S.S.G.) § 2A1.1, the first-degree murder guideline, as required by U.S.S.G. § 2B3.1(c)(v).

77

The Supreme Court has held that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge. United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). In this case, Lynch was not found innocent of a charge of murdering Carreiro. In response to the special interrogatory, the jury merely found that they did not unanimously agree that the government had established Lynch's murder of Carreiro by proof beyond a reasonable doubt. It was therefore not error for the court to make its own finding in sentencing Lynch.

78

In this circuit, when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir.1999). Since the use of the enhancement in this case increased the sentencing range by 105 to 203 months, the clear and convincing standard applied. There was sufficient evidence for such a finding by the district court and the defendant does not challenge the sufficiency of that evidence for the clear and convincing finding. There was no error in the court's use of the first degree murder cross reference.

III. CONCLUSION

79

The evidence clearly established a direct effect on interstate commerce. As previously determined by this court, 18 U.S.C. § 924(c)(1)(A) is not unconstitutional as being beyond the scope of Congress' power under the Commerce Clause. There was probable cause for and an adequate showing of necessity for the issuance of the Clark County, Nevada wiretaps. A new trial utilizing the indirect analysis as to the effect on interstate commerce is not required since ample evidence of a direct effect existed. The evidentiary rulings of the district court precluding propensity evidence of the character of Pizzichiello were not erroneous. The aiding and abetting instruction on the use or carrying of a firearm was not in error and sufficient evidence supported the defendant's conviction on Count II. The district court properly cross referenced the murder Guideline in determining the defendant's Guideline offense level.

80

AFFIRMED.

Notes:

*

The Honorable Justin L. Quackenbush, Senior District Judge for the Eastern District of Washington, sitting by designation

1

We view the evidence given at Lynch's trial in the light most favorable to the governmentUnited States v. Daychild, 357 F.3d 1082, 1096 (9th Cir.2004).

2

Lynch took the stand in his own defense and testified that it was Pizzichiello who did the shooting; it was not disputed that both Lynch and Pizzichiello were present when Carreiro was killed

3

A life sentence was not imposed because the jury, as it stated in response to a special interrogatory, was not convinced beyond a reasonable doubt that Lynch was the actual triggerman in Carreiro's murder

4

In Lynch's opening brief, he cites the case ofUnited States v. Geiger, 263 F.3d 1034 (9th Cir.2001), and states that the holding of that case was that the "(fact that truck was subject to an out-of-state lease and insured by an out-of-state insurance company insufficient to establish jurisdiction under 18 U.S.C. § 844(i))." The holding of the Geiger court was the exact opposite. That court held that the out-of-state truck leasing and insurance was sufficient to establish an effect on interstate commerce. 263 F.3d at 1037-38. The Geiger case supports our conclusion that the numerous interstate acts of Lynch and his co-defendant affected interstate commerce.

5

In any event, the application of the law of the case doctrine is discretionary, not mandatoryHouser, 804 F.2d at 567. Although adopting the Collins test with respect to robbery of individuals, we do not read Lynch I to foreclose consideration of other direct evidence of an effect on interstate commerce. If we were to read it in such a way, then, having considered all of the evidence in this case, we would have to conclude that the prior panel clearly erred in so limiting its consideration and that application of the law of the case doctrine would work a manifest injustice. See Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.1995) (explaining circumstances in which court will not apply law of the case doctrine).

6

Section 2518(1)(c) requires that any application for a judicial order authorizing a wiretap include, inter alia, "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous."

7

Section 2518(3) allows entry of a wiretap order if the issuing judge determines:

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in [18 U.S.C. § 2516];

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) except as provided in [§ 2518(11)], there is probable cause for belief that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

81

BERZON, Circuit Judge, concurring in part and concurring in result:

82

I join the per curiam opinion except for part II.A, concerning the sufficiency of the evidence under the Hobbs Act, 18 U.S.C. § 1951. I also agree with the conclusion that the Hobbs Act reaches Lynch's actions, but I believe the law of our circuit requires us to reach that result in a different fashion than the court does.

83

* The majority's analysis should be correct. In particular, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), handed down several months after United States v. Collins, 40 F.3d 95 (5th Cir.1994), substantially clarified the approach we are to take in evaluating federal criminal statutes enacted under Congress's commerce power. Lopez drew a sharp line between activities Congress may regulate as per se interference with commerce and those it could regulate only through a showing of substantial interstate effect. 514 U.S. at 558-559, 115 S.Ct. 1624. Similarly, United States v. Morrison, 529 U.S. 598, 615-17, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), struck down a Commerce Clause enactment as pertaining to activities with an insufficiently direct tie to interstate economic activity, but did not indicate that where the ties to interstate economic activity are direct, there is any Commerce Clause reason for limiting federal authority.

84

There is therefore no basis in the Supreme Court's recent Commerce Clause jurisprudence for finding this case beyond the reach of the Hobbs Act, which all agree reaches to the boundaries of Congress's constitutional authority. See Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Lynch, 282 F.3d 1049, 1051-52 (9th Cir.2002) (Lynch I). Where, as here, the defendant lured the victim over state lines, used interstate telecommunications systems to facilitate the crime, drove the stolen truck through several states, and used the stolen debit card to facilitate the transfer of funds from a Nevada bank to the defendant while he was in other states, the impact of the robbery on interstate commerce was direct and immediate. The circumstances here are thus entirely different from situations in which the prosecution relies on the origin of the products stolen or the likely aggregate impact of similar robberies on the market for certain products in other states. Cf., e.g., United States v. Perrotta, 313 F.3d 33, 36 (2d Cir.2002) (reversing Hobbs Act conviction because "the government must show something more than the victim's employment at a company engaged in interstate commerce to support Hobbs Act jurisdiction"); United States v. Peterson, 236 F.3d 848, 853 (7th Cir.2001) (rejecting government theory that the Hobbs Act reaches a theft of currency because it was printed out of state); United States v. Wang, 222 F.3d 234, 240 (6th Cir.2000) (rejecting an aggregation theory that would otherwise create "a general federal police power with respect to the crimes of robbery and extortion").

85

Our caselaw has gone off the rails, however. As much as I would prefer to conclude otherwise, there is in my view simply no escaping the fact that the earlier opinion in this case precludes the majority's application of a "direct effects" theory.

86

Lynch I, relying on Collins, held unequivocally that robbery of individuals can only be prosecuted under the Hobbs Act if one of three criteria are met:

87

In United States v. Collins, the Fifth Circuit formulated a test for determining when the robbery or extortion of an individual would have the requisite de minimis effect. 40 F.3d at 100. Under this test, crimes directed toward an individual violate the Hobbs Act only if:

88

(1) the acts deplete the assets of an individual who is directly and customarily engaged in interstate commerce; (2) if the acts cause or create the likelihood that the individual will deplete the assets of an entity engaged in interstate commerce; or (3) if the number of individuals victimized or the sum at stake is so large that there will be some cumulative effect on interstate commerce.

89

Id. at 1053 (emphasis added). I do not know how to read the italicized language as stating anything other than an unalterable requirement applicable in any robbery of an individual prosecuted under the Hobbs Act.

90

The majority reads Collins as intending the standard announced to apply only where the reliance is on indirect effects on commerce. That reading is possible. Collins did note that "[b]oth direct and indirect effects on interstate commerce may violate section 1951(a)," and the government's theory in that case relied upon either the inference that the robbery affected the victim's ability to conduct interstate business or the fact that the vehicle stolen had previously traveled in interstate commerce. 40 F.3d at 99.

91

The facts in Lynch I, however, were, of course, the very facts now before us, involving a crime that began by enticing the victim to travel interstate and ended with the interstate use of the stolen vehicle and credit card. Yet, the remand order in Lynch I, 282 F.3d at 1055, was absolutely clear that if the district court could not find Hobbs Act jurisdiction under one of those three categories, it had to dismiss the indictment.1 There is no mention in Lynch I of the possibility of direct effects on commerce, no citation to the reference to direct effects in Collins, and no indication whatever that the standard announced for this circuit was anything other than what the opinion said it was — the sine qua non requirement for Hobbs Act jurisdiction over robbery of individuals.

92

Moreover, our court has since relied on Lynch as adopting the rule governing Hobbs Act jurisdiction for robbery of individuals, not a rule limited to cases of indirect impact on commerce:

93

Specifically, [Lynch I] held that when the government brings charges for robbery under the Hobbs Act, and the target of the robbery was an individual, the government must show that the defendant (1) stole from a person directly and customarily engaged in interstate commerce; (2) created a likelihood that the assets of an entity engaged in interstate commerce would be depleted; or (3) victimized a large number of individuals or took a sum so large that there was some cumulative effect on interstate commerce.

94

United States v. Rodriguez, 360 F.3d 949, 955 (9th Cir.2004) (emphasis added, internal quotation marks omitted) (citing Lynch I, 282 F.3d at 1055).

95

While there is no law-of-the-case problem here, as the per curiam opinion notes, ante at 1157-58, we cannot avoid the fact that the rule concerning Hobbs Act jurisdiction announced in Lynch I is the law of the circuit.2 As a three-judge panel, we are powerless to rewrite Lynch I to apply, as it should, to (at most) indirect-effects cases. See Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1162 n. 3 (9th Cir.2002). Rather, our only recourse would be to call as a panel for en banc review of Lynch I, explaining that the standard there adopted cannot be reconciled with Commerce Clause principles as announced in recent Supreme Court cases. See 9th Cir. Gen. Order 5.2(b).

96

There are good grounds, in addition to the palpable conflict with Supreme Court Commerce Clause jurisprudence, for hearing Lynch I en banc. For one thing, as the majority opinion suggests, Lynch I is impossible to reconcile with an earlier (but post-Lopez) case from this circuit, United States v. Atcheson, 94 F.3d 1237 (9th Cir.1996). In Atcheson, we affirmed a Hobbs Act conviction for a scam in which the defendants made appointments with contractors, waited for them to arrive for a "business meeting," and then held them hostage and robbed them of cash, jewelry, and credit and ATM cards. We readily found a "direct impact on interstate commerce" and held that, "[where the crime itself directly affects interstate commerce, as in the Hobbs Act, no requirement of a substantial effect is necessary to empower Congress to regulate the activity under the Commerce Clause]." Id. at 1242-43 (emphasis added).

97

Lynch I distinguished Atcheson on the ground that the victims in Atcheson were targeted qua "business men and women." 282 F.3d at 1054 (quoting Atcheson, 94 F.3d at 1240). But Atcheson never mentioned that the victims were engaged in interstate business, and did not rely on their status as business people as the basis for finding that robbing them of personal property established an effect on commerce.3 Instead, the basis for Atcheson's holding was that the theft, not the victims, affected interstate commerce, because the credit cards stolen were from out-of-state financial institutions, the defendants made out-of-state telephone calls to facilitate the use of those cards, one victim's property was fenced across state lines, and another victim's funds were withdrawn from a bank headquartered out of state — factors considerably less substantial than the direct interstate effects in this case. In short, the distinction of Atcheson in Lynch I simply does not hold water; there was no basis for deciding the two cases under different standards despite their similar facts.

98

Moreover, as the majority notes, ante at 1156-57, the Eleventh Circuit, in United States v. Carcione, 272 F.3d 1297 (11th Cir.2001), had, before Lynch I was decided, addressed facts not distinguishable for Commerce Clause purposes from those here and held that the facts were sufficient to establish a direct effect on commerce, and that the Collins standard, previously adopted in the Eleventh Circuit, did not apply. Lynch I therefore created an intercircuit as well as an intracircuit conflict.

99

I therefore believe that there are compelling grounds for en banc consideration of the rule announced in Lynch I. The panel should have requested that the court hear this case en banc so as to reject the "only if" standard. The alternative the majority adopts, of rewriting Lynch I, may be rough justice, as Lynch I, in my view, rewrote Atcheson. But appellate courts should not be in the business of pursuing correct results by ignoring established stare decisis principles, even to right a perceived prior breach of those same principles.

100

In short, while I agree with the majority's Commerce Clause analysis, I am simply unwilling, as much as I might like to do so, to join the majority in recasting Lynch I unilaterally rather than calling upon the court sitting en banc to do so.

II

101

Applying Lynch I rather than revising it, I would reach the same result as does the majority. Rodriguez supplies the basis for doing so.

102

Rodriguez involved a government sting operation in which the defendant agreed to take part in a theft of a drug "stash house" from which he and co-defendants expected to steal twenty-five kilograms of cocaine. Upholding Rodriguez's Hobbs Act conviction, we held that "an intended robbery of cocaine from narcotics traffickers is the robbery of a business, and [we] do not require the government to make the heightened showing under Lynch [I]" for robberies of businesses — only of individuals. 360 F.3d at 955-56. Noting that "the trafficking of narcotics is a federally-regulated activity implicating interstate commerce," Rodriguez held that "federal jurisdiction exists to apply the Hobbs Act to conspiracies involving the theft of cocaine from narcotics traffickers." Id. at 956.

103

Although the Lynch I panel failed to note it, the evidence at Lynch's federal trial showed that the robbery and murder of Brian Carreiro stemmed from the unraveling of Carreiro, Lynch, and Larry Pizzichiello's drug trafficking ring. Pizzichiello testified that Lynch owed Carreiro money from past deals. Lynch and Pizzichiello's motive in killing Carreiro was, at least in part, to cancel that debt. While I cannot discern from the record whether Lynch and Pizzichiello succeeded in taking drugs from Carreiro along with his money, truck, and life, the activities charged under the Hobbs Act were plainly crimes against a drug trafficker in, at least in part, his "business" capacity. We therefore need not consider the Collins factors — not because those factors pertain only to indirect effects, as the majority holds, but because the robbery of Carreiro was not, under Rodriguez, the robbery of an individual.

104

Establishing federal jurisdiction by distinguishing among the activities of robbery victims, rather than looking to the actual or expected interstate effects of the robbery itself, is a rule that has no basis in the language of the Hobbs Act or in broader principles of federalism. Cf. Lynch I, 282 F.3d at 1051-52 (discussing federalism backdrop to Commerce Clause analysis). Atcheson, Lynch I, and Rodriguez, however, require us to focus on Carreiro's involvement in drug trafficking, not on the interstate aspects of the crime itself. I would therefore affirm the Hobbs Act conviction on the basis of Rodriguez's singling out of drug trafficking-related crimes as outside the purview of the rule regarding robbery of individuals announced in Lynch I.

105

I recognize that this result is not consistent with the remand language of Lynch I. Law of the case, however, gives way when there are intervening legal developments affecting the propriety of an earlier order in a case. Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.1997) (en banc). Rodriguez is, in my view, such a legal development. That Rodriguez interprets the very opinion, Lynch I, that would otherwise govern this appeal as law of the case does not seem to me to matter; Rodriguez is a plausible reading of Lynch I, and should be applied to all later appeals, including this one. Applying an after-decided case that is consistent with Lynch I is quite different from applying a rule of law different from the one announced in Lynch I.

CONCLUSION

106

Keeping the court's precedent coherent when we sit in three-judge panels is not always an easy task. When one panel has strayed from our rules designed to achieve that end, as I believe the panel in Lynch I did, it is tempting to restore order by bending the rules a second time. In the long run, however, the court and the litigants are better served if the second panel is scrupulous in applying our principles regarding the respective roles of three-judge and en banc panels, for principles serially ignored will eventually atrophy entirely. I therefore cannot concur in the majority's treatment of Lynch I, although I entirely agree with its Commerce Clause analysis.

Notes:

1

TheLynch I panel explained the scope of the remand thusly:

We therefore vacate the district court's denial of Lynch's Rule 29 motion and remand for a determination whether the evidence presented at trial supports the conclusion that Lynch (1) stole from a person "directly and customarily engaged in interstate commerce;" (2) created a likelihood that the assets of an entity engaged in interstate commerce would be depleted; or (3) victimized a large number of individuals or took a sum so large that there was "some cumulative effect on interstate commerce." [Collins,] 40 F.3d at 100. If the district court concludes there is federal jurisdiction under the new test, it should again deny Lynch's Rule 29 motion; if not, it should grant the motion and dismiss his indictment with prejudice.

282 F.3d at 1055.

2

It is especially regrettable that theCollins "test" should have been adopted in this form, since Collins itself provided no principled argument for why those categories and no others should be sufficient for Hobbs Act jurisdiction in robberies of individuals. The Collins factors were simply those categories of conduct the Fifth Circuit had previously found susceptible to Hobbs Act jurisdiction; why it strung the factors together as an "only if" test is elusive. See Collins, 40 F.3d at 100.

3

The defendants inAtcheson had traveled from Utah to Idaho to initiate their scheme, but our opinion in Atcheson does not report that any of the victims were found to have moved interstate to attend the "business meeting." See Atcheson, 94 F.3d at 1240.