                    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.
