United States v. Lynch

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2006
• Docket: 02-30216
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 02-30216 Plaintiff-Appellee, v.  D.C. No. CR-99-18-M-DWM JOHN LANNY LYNCH, OPINION Defendant-Appellant.  Appeal from the United States District Court for the District of Montana Donald M. Molloy, District Judge, Presiding

Submitted February 3, 2005* San Francisco, California

Filed February 10, 2006

Before: Mary M. Schroeder, Chief Judge, and Diarmuid F. O’Scannlain, Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Johnnie B. Rawlinson, and Richard R. Clifton, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Kleinfeld

*The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).

1587 UNITED STATES v. LYNCH 1591

COUNSEL

Judy Clarke and Roger J. Peven , Federal Defenders of East- ern Washington and Idaho, Spokane, Washington, for the defendant-appellant.

John A. Drennan, Department of Justice, Washington, D.C., and Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for the plaintiff-appellee.

OPINION

PER CURIAM:

This appeal arises out of John Lanny Lynch’s conviction and twenty-year sentence for violation of the Hobbs Act, 18 1592 UNITED STATES v. LYNCH U.S.C. § 1951, and his conviction and five-year consecutive sentence for using or carrying a firearm during the commis- sion of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). In United States v. Lynch, 282 F.3d 1049 (9th Cir. 2002) (Lynch I), we held that crimes directed toward an individual violate the Hobbs Act only if “the acts deplete the assets of an individual who is directly and customarily engaged in interstate commerce; if the acts cause or create the likelihood that the individual will deplete the assets of an entity engaged in interstate commerce; or if the number of individuals victimized or the sum at stake is so large that there will be some cumulative effect on interstate commerce.” Id. at 1053 (quoting United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994)). We remanded with instructions to the district court to apply the Collins test, which it found that the govern- ment had met. United States v. Lynch, 207 F.Supp.2d 1133, 1135 (D. Mont. 2002) (Lynch II). When Lynch appealed again, however, we held that the Collins test “is utilized where the defendant’s conduct had no direct effect upon inter- state commerce, but only an indirect effect.” United States v. Lynch, 367 F.3d 1148, 1154 (9th Cir. 2004) (Lynch III). In doing so we drew upon our earlier decision in United States v. Atcheson, 94 F.3d 1237 (9th Cir. 1996), which distin- guished between crimes that have direct and indirect effects on interstate commerce. We ordered rehearing en banc to resolve this tension in our law.

We conclude that the Collins test is not the exclusive means of establishing Hobbs Act jurisdiction, but that jurisdiction may be shown for a Hobbs Act prosecution of an individual by showing either that the crime had a direct effect or an indi- rect effect on interstate commerce. Otherwise, we adopt the panel opinion in Lynch III.

I1 1 We view the evidence given at Lynch’s trial in the light most favorable to the government. United States v. Daychild, 357 F.3d 1082, 1096 (9th Cir. 2004). UNITED STATES v. LYNCH 1593 Lynch, the victim Carreiro, and a third participant, Larry Pizzichiello, were all residents of Las Vegas, Nevada. Car- reiro 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 Car- reiro.

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 Car- reiro would shortly be receiving a settlement from his work- ers’ 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 metham- phetamine. Lynch intended to rob Carreiro of these drugs and his money once Carreiro arrived in Montana.

Carreiro took the bait. After receiving his workers’ com- pensation 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 metham- phetamine and marijuana and a pager Carreiro used in the drug business.

A prosecution witness at Lynch’s trial, Pizzichiello testified that the day after he and Carreiro arrived at Lynch’s father’s 1594 UNITED STATES v. LYNCH 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 includ- ing his shoes and the keys to Carreiro’s pick-up truck. To cover up the robbery-murder, Lynch proceeded to burn Car- reiro’s body in a metal barrel.

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 elec- tronic contact from the place of withdrawals in Montana, Utah, and Nevada with computer servers in Nevada and Kan- sas 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 Car- reiro’s debit card one last time to withdraw the remaining bal- ance in the credit union account. Lynch then repainted Carreiro’s truck, which, at the time of his arrest, was in Lynch’s possession.

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 inconsis- tent. Thereafter, the Las Vegas detectives, through the Clark County District Attorney’s office, sought and obtained a court 2 Lynch took the stand in his own defense and testified that it was Piz- zichiello who did the shooting; it was not disputed that both Lynch and Pizzichiello were present when Carreiro was killed. UNITED STATES v. LYNCH 1595 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 con- versations 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.

Lynch and Pizzichiello were charged and separately con- victed for Carreiro’s murder in a Montana state court. Both defendants were sentenced to life imprisonment. Those con- victions 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, 969 P.2d 920 (Mont.1998); State v. Pizzichiello, 983 P.2d 888 (Mont.1999). The Montana court ordered new trials.

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 indict- ments of Lynch and Pizzichiello, charging them with (1) vio- lation 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). Pizzich- iello entered into a plea agreement and pled guilty to the Hobbs Act robbery charge. Sentenced to fifteen years impris- onment, 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 com- mission of that offense (Count II). He was sentenced to 1596 UNITED STATES v. LYNCH twenty years on Count I and a consecutive term of five years on Count II.3

This is Lynch’s second appeal from his federal convictions and sentences. In his first appeal, Lynch raised the same issues. Lynch I 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 jurisdic- tional “hook” is satisfied. The Collins/Lynch I test, as dis- cussed 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 Lynch II. 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 Col- lins test.

II

A. The Sufficiency of the Evidence of Interstate Nexus

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

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 threat- ens physical violence to any person or property in 3 A life sentence was not imposed because the jury, as it stated in response to a special interrogatory, was not convinced beyond a reason- able doubt that Lynch was the actual triggerman in Carreiro’s murder. UNITED STATES v. LYNCH 1597 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.

(Emphasis supplied).

In Stirone v. United States, 361 U.S. 212 (1960), the Supreme Court recognized the very broad scope of the Hobbs Act. “That Act speaks in broad language, manifesting a pur- pose to use all the constitutional power Congress has to pun- ish interference with interstate commerce by extortion, robbery, or physical violence. The Act outlaws such interfer- ence ‘in any way or degree.’ ” Id. at 215 (internal citations omitted) (emphasis supplied).

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 (1978), stating:

[T]he statutory language sweeps within it all persons who have “in any way or degree . . . affect[ed] com- merce . . . 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 pun- ish interference with interstate commerce by extor- tion, robbery or physical violence.”

Id. at 373 (internal citations omitted) (second alteration in original).

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

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 1598 UNITED STATES v. LYNCH 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.

Id. at 379 (citing to the Congressional Record).

[2] The Hobbs Act defines commerce as, inter alia, “all commerce between any point in a State . . . and any point out- side 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 com- merce. 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 (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) (internal quotation marks omitted). The government need not show that a defen- dant’s acts actually affected interstate commerce. Id. at 1389- 90.

[3] As Atcheson pointed out: “This court has consistently upheld convictions under the Hobbs Act”:

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 threat- ened to deliver embarrassing audio tapes to his vic- tim’s employer, a corporation engaged in interstate UNITED STATES v. LYNCH 1599 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) (defen- dant’s extortion “threatened the depletion of resources from a business engaged in interstate com- merce”).

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

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

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 cre- ated a sufficient potential effect on interstate com- merce 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 com- merce. 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 1600 UNITED STATES v. LYNCH credit card was sufficient to establish interstate com- merce under 18 U.S.C. § 1029).

94 F.3d at 1243.

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 recog- nized not only the distinction between the robbery of individ- uals and businesses, but also the distinction between direct and indirect effects on interstate commerce. As Collins stated:

Both direct and indirect effects on interstate com- merce may violate section 1951(a). The govern- ment’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.”

40 F.3d at 99 (emphases supplied). The Collins court then concluded that a strictly intrastate robbery “which caused only a speculative indirect effect on a business engaged in inter- state 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”) (emphases supplied).

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. UNITED STATES v. LYNCH 1601 2001). The relevant issue in Carcione was the sufficiency of the evidence of an interstate nexus where the defendants trav- eled 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 inter- state commerce, and rejecting the application of the Diaz (Collins) indirect tests, the court stated:

While this test is an effective barometer for measur- ing a defendant’s action and their effect on interstate commerce, we have repeatedly held that “in deter- mining whether there is a minimal effect on com- merce, each case must be decided on its own facts.” Likewise, the “words of the Hobbs Act ‘do not lend themselves to restrictive interpretation.’ ”

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

In United States v. Marrero, 299 F.3d 653, 656 (7th Cir. 2002), cert. denied, 537 U.S. 1145 (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.

Id.

[4] With the foregoing guidance in mind, we have no hesi- tation in finding that the evidence in this case, construed as it must be in favor of the government, clearly established that 1602 UNITED STATES v. LYNCH Lynch’s actions, accompanied by Pizzichiello, had a direct effect on interstate commerce:

1. Lynch, Pizzichiello, and Carreiro jointly partici- pated 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).

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

3. After his arrival in Montana, Lynch used inter- state 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 inter- state 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 suffi- cient interstate nexus where defendants lured drug dealers across state lines on pretext).

4. Pizzichiello testified that Lynch killed Carreiro in Montana with a firearm that Lynch had trans- ported from Las Vegas to Montana. Lynch 4 In Lynch’s opening brief, he cites the case of United 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. UNITED STATES v. LYNCH 1603 returned to Las Vegas from Montana with the firearm.

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).

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.

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

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.

[5] Based on the foregoing, we conclude that there was suf- ficient 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 recon- sideration of legal questions previously decided).5 5 In any event, the application of the law of the case doctrine is discre- tionary, not mandatory. Houser, 804 F.2d at 567. Although adopting the 1604 UNITED STATES v. LYNCH Lynch also contends that since Lynch I adopted the Collins indirect effect on interstate commerce test, a new trial is required with instructions containing the Collins test. How- ever, since we have determined that there was more than ade- quate evidence of direct effects on interstate commerce, a new trial as to any indirect effect under Collins is not required.

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

In pertinent part, 18 U.S.C. § 924(c)(1)(A) provides that “any person who, during and in relation to any crime of vio- lence . . . 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 punish- ment provided for the crime of violence. Lynch was found by the jury to have so used a firearm and was sentenced to a con- secutive five-year term.

Lynch’s argument that § 924(c) is unconstitutional as beyond the scope of the Commerce Clause is, as he recog- nizes, 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); see

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 inter- state commerce. If we were to read it in such a way, then, having consid- ered 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 applica- tion 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). UNITED STATES v. LYNCH 1605 also Branch v. Tunnel, 14 F.3d 449, 456 (9th Cir. 1991), over- ruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). 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 con- viction with its interstate commerce finding by the jury.

C. The Nevada Court Wiretap Orders

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 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 com- mitting, 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 communica- tions concerning that offense will be obtained through such inter- ception; (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 com- mission of such offense, or are leased to, listed in the name of, or commonly used by such person. 1606 UNITED STATES v. LYNCH This court’s review of a finding of probable cause is defer- ential. 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 con- clusion 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 under- lying factual issues are reviewed for clear error. United States v. Summers, 268 F.3d 683, 686 (9th Cir. 2001).

The district court held a full evidentiary hearing on Lynch’s motion to suppress the wiretaps. That hearing and the affida- vits 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 Piz- zichiello 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).

D. Evidence Of Prior Pizzichiello Misconduct

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

One week prior to the commencement of the trial, the gov- ernment 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 UNITED STATES v. LYNCH 1607 trait of character for the purpose of proving action in confor- mity therewith on a subsequent occasion. Lynch responded to that motion contending, inter alia, that evidence of Pizzichiel- lo’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.” (emphases supplied).

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

Evidence of a person’s character or a trait of charac- ter is not admissible for the purpose of proving action in conformity therewith on a particular occa- sion, except:

(1) Character of Accused . . .

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

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

Lynch did not then contend, as he now does, that the testi- mony 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 1608 UNITED STATES v. LYNCH banc), a case which we find, infra, is distinguishable from this case.

[7] 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 wit- ness,” stating that this ruling was based on Rule 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.” Fed. R. Evid. 404(a). The district court also performed the balancing analy- sis provided for under Rule 403. Neither in that ruling nor at trial did the court preclude Lynch from testifying that the rea- son that he stayed with Pizzichiello after Carreiro’s murder and never contacted the police was his fear of Pizzichiello.

Lynch was further allowed to testify that Pizzichiello “al- ways 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 threaten- ing to kill me,” and that he went with Pizzichiello after the shooting because he was afraid of him.

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 UNITED STATES v. LYNCH 1609 shooting of Carreiro. Lynch suggests that such evidence from other witnesses would have corroborated Lynch’s fear of Piz- zichiello. 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.

The defendant in James was charged with aiding and abet- ting 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 atro- cious crimes about which Ogden had bragged to her. She offered corroborating evidence that these atrocities had actu- ally 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 evi- dence of Ogden’s violence was that known to the defendant at the time of Ogden’s killing.

The Ninth Circuit in James found that the trial court’s rul- ing was too narrow, holding:

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

Id. at 1214.

[8] Clearly, the character of the victim in James was rele- vant to the defendant’s defense of self-defense, and so was 1610 UNITED STATES v. LYNCH 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 ele- ment of the Hobbs Act charge or a defense thereto.

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 per- son. 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.

[9] While “it may well be that courts should indulge the accused when the defendant seeks to offer prior crimes evi- dence 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 testi- fying 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

[10] Lynch contends it was error to permit the jury to con- vict 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 UNITED STATES v. LYNCH 1611 that he aided and abetted Pizzichiello in the murder of Car- reiro. Lynch did not challenge the aiding and abetting instruc- tion 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 rea- sonable doubt. United States v. Daychild, 357 F.3d 1082, 1096 n.22 (9th Cir. 2004).

[11] In this case, the jury could have reasonably found that it was Lynch who, as a principal, used the firearm in the kill- ing 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 evi- dence 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 with- out merit.

F. Cross Reference To First Degree Murder In Sentencing

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 evi- dence 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).

[12] The Supreme Court has held that a jury’s verdict of acquittal does not prevent the sentencing court from consider- 1612 UNITED STATES v. LYNCH ing conduct underlying the acquitted charge. United States v. Watts, 519 U.S. 148, 157 (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 estab- lished Lynch’s murder of Carreiro by proof beyond a reason- able doubt. It was therefore not error for the court to make its own finding in sentencing Lynch.

[13] 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 enhance- ment 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 evi- dence for the clear and convincing finding. There was no error in the court’s use of the first degree murder cross refer- ence.

III

[14] The government may establish jurisdiction for prose- cution under the Hobbs Act for a crime directed toward an individual by showing either that the crime had a direct effect or an indirect effect on interstate commerce. Any statement to the contrary in Lynch I is overruled.

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 UNITED STATES v. LYNCH 1613 effect existed. The evidentiary rulings of the district court pre- cluding 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 Guide- line in determining the defendant’s Guideline offense level.

AFFIRMED.

KLEINFELD, Circuit Judge, concurring:

I concur in the result. I would not, however, reach most of the questions the per curiam opinion attempts to resolve because, on the facts of this case, the opinion is merely advi- sory. This case plainly involves a substantial and direct effect on interstate commerce. A person in Montana engaged in a commercial transaction with a person in Nevada, causing con- traband to be brought to Montana. There, the Montana man killed the Nevada man in order to steal the merchandise that had been transported. The doctrine of constitutional avoidance1 counsels that we should not attempt to clarify abstruse and esoteric questions of constitutional law in cases where they will not affect the decision.

Our opinion is driven by a desire to resolve the tension between our decisions in Lynch I2 and Lynch III3 as explained in Judge Berzon’s concurrence in Lynch III.4 We can wait until the inconsistencies matter, and should. This case is squarely within Congress’ power to regulate interstate com- 1 See, e.g., United States v. Rivera-Guerrero, 377 F.3d 1064, 1069 (9th Cir. 2004). 2 United States v. Lynch, 282 F.3d 1049 (9th Cir. 2002) (Lynch I). 3 United States v. Lynch, 367 F.3d 1148 (9th Cir. 2004) (Lynch III). 4 Lynch III, 367 F.3d at 1163-64. 1614 UNITED STATES v. LYNCH merce under any interpretation. Federal courts should not stretch beyond the decisions they need to make in the futile hope of cleaning all of the cobwebs out of constitutional law.