Metropolitan News-Enterprise


Friday, August 24, 2001


Page 1


Ninth Circuit Upholds Military Role in Probe of Civilian Drug Dealer


By KENNETH OFGANG, Staff Writer/Appellate Courts


Armed Forces involvement in a drug investigation that started on a military base but soon implicated a civilian didn’t violate a Reconstruction-era federal law designed to keep the military out of civilian law enforcement, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Neither the Posse Comitatus Act nor a related law generally prohibiting “direct” military involvement in domestic law enforcement absolutely bars the armed services from assisting civilian authorities, Senior Judge Betty B. Fletcher wrote. 

As long as an investigation has an “independent military purpose” and the civilian aspects of the probe are overseen by a civilian agency, Fletcher explained, Armed Forces involvement is permissible.

Yesterday’s decision affirms the conviction of a Hawaii man for dealing LSD. The case was sent back to the district judge for resentencing, however, in light of a recent Ninth Circuit ruling striking down a law allowing a judge, rather than a jury, to determine drug quantities for sentencing purposes.

DEA Arrest

The defendant, Mark S. Hitchcock, was arrested by Drug Enforcement Administration agents working with Army and Navy investigators after a Marine, Benjamin Lake, was arrested for selling LSD to other military personnel on the base where he was stationed.

Lake had been targeted by the investigators, and was taken into custody after selling the drug to an undercover agent of the Army’s Criminal Investigative Division. He agreed to cooperate and named Hitchcock as his supplier.

Because Hitchcock was a civilian, the DEA was notified. It was agreed that the DEA would continue the investigation with assistance from two agents of the Naval Criminal Investigative Service.

Hitchcock was arrested after two controlled sales by Lake, supervised by the DEA. He was interrogated by the DEA with the two NCIS investigators present, one of them asking questions.

A search warrant was executed by the DEA at Hitchcock’s home on the day of the arrest, with CID and NCIS agents present.

Hitchcock moved to suppress all evidence and dismiss the charges. He cited the Posse Comitatus Act and a 1981 law, 10 U.S.C. Sec. 375.

The Posse Comitatus Act makes it a crime, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” to use “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws.”

The more recent law provides that the military may assist civilian law enforcement agencies, subject to “such regulations [of the Department of Defense] as may be necessary to ensure that any activity...does not include or permit direct   participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

Motions Denied

U.S. District Judge Alan C. Kay denied Hitchcock’s motions following a hearing. He ruled that the military had only furnished “indirect” assistance in the case, and that it was in any event entitled to participate in the investigation because “legitimate military concerns” were involved.

Hitchcock then entered a conditional guilty plea. Kay conducted a sentencing hearing, found that the case involved more than one gram of LSD, and imposed a mandatory minimum sentence of five years imprisonment under 21 U.S.C. Sec. 841(b). Absent the finding as to quantity, the guidelines range for the offense would have been  eight to 14 months.

Fletcher, writing for the Ninth Circuit, agreed with the district judge that the military involvement in the case did not require dismissal of the charges..

Military involvement in the search of Hitchcock’s home and his interrogation may have constituted “direct” assistance, which would be illegal if the matter under investigation was of purely civilian concern, Fletcher wrote. (The Hawaii Supreme Court overturned drug convictions in a 1995 case not cited by Fletcher, State v. Pattioay, based on such an analysis.)

But the independent military purpose behind that involvement—cutting off the supply of a controlled substance to military personnel—renders it lawful, the judge said.

Fletcher agreed with the defense, however, that the mandatory minimum sentence must be reversed because the Ninth Circuit recently held that certain provisions of Sec. 841(b)—requiring a judge to impose such a sentence if he or she finds by a preponderance of the evidence that the crime involves specified quantities of particular drugs—are unconstitutional.

The court ruled on Aug. 9 in United States v. Buckland, 99-30285, that those provisions violate due process in light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Apprendi held that when a fact, other than a prior conviction, requires an increase in what would otherwise be the maximum sentence for a crime, that fact must be proven beyond a reasonable doubt and the defendant must be afforded a jury trial on the question.

The case is United States v. Hitchcock, 00-10251.


Copyright 2001, Metropolitan News Company