U.S. v. Lynch
| Decision Date | 13 May 2004 |
| Docket Number | No. 02-30216.,02-30216. |
| Citation | 367 F.3d 1148 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Lanny LYNCH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.*
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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 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.
(Emphasis supplied).
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. Id. at 215, 80 S.Ct. 270 (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, 373, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978), stating:
[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."
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