U.S. v. Lynch

• Citation: 437 F.3d 902
• Decision Date: 10 February 2006
• Docket Number: No. 02-30216.,02-30216.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Lanny LYNCH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

437 F.3d 902

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

No. 02-30216.

United States Court of Appeals, Ninth Circuit.

Submitted February 3, 2005.^*

Filed February 10, 2006.

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

John A. Drennan, Department of Justice, Washington, DC, and Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, 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 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, W. FLETCHER, RAYMOND C. FISHER, JOHNNIE B. RAWLINSON, and RICHARD R. CLIFTON, Circuit Judges.

PER CURIAM.

This appeal arises out of John Lanny Lynch's 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). 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 government 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 interstate 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 distinguished 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 indirect effect on interstate commerce. Otherwise, we adopt the panel opinion in Lynch III.

I¹

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, 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 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 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 Collins test.

II

A. The Sufficiency of the Evidence of Interstate Nexus

The Hobbs Act, 18...