U.S. v. Hitchcock

• Decision Date: 26 September 2001
• Docket Number: No. 00-10251.,00-10251.
• Citation: 286 F.3d 1064
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Steven HITCHCOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1064

286 F.3d 1064

UNITED STATES of America, Plaintiff-Appellee, v. Mark Steven HITCHCOCK, Defendant-Appellant.

No. 00-10251.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 2001.

Submission Withdrawn May 21, 2001.

Resubmitted August 23, 2001.

Opinion Withdrawn September 26, 2001.

Amended Opinion Filed March 21, 2002.^*

Sarah Courageous, Honolulu, HI, for the defendant-appellant.

Loretta Sheehan, Assistant U.S. Attorney, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawai'i; Alan C. Kay, District Court Judge, Presiding. D.C. No. CR-98-00716-ACK.

Before B. FLETCHER, CANBY and PAEZ, Circuit Judges.

OPINION

BETTY B. FLETCHER, Circuit Judge.

We must decide whether military participation in a civilian criminal investigation violated the Posse Comitatus Act or 10 U.S.C. § 375. Because we conclude that the military's participation falls under the "independent military purpose" exception, we affirm the district court's order denying Hitchcock's motion to dismiss the charges against him or to suppress all evidence because of a violation of the Posse Comitatus Act and § 375. We must also decide whether evidence should be suppressed that was gathered under a search warrant obtained and executed on November 16, 1998, but mistakenly dated November 17, 1998, by the magistrate judge. Since we conclude that the search was within the scope of the warrant, we affirm the district court's order denying Hitchcock's motion to suppress the evidence seized at his home. Finally, we conclude, in light of United States v. Antonakeas, 255 F.3d 714 (9th Cir.2001) and United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc), that Hitchcock's sentence does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

I. BACKGROUND

After the U.S. Army Criminal Investigation Division (CID) received information that Benjamin Lake, a U.S. Marine stationed in Hawai'i, was selling lysergic acid diethylamide (LSD) to other military personnel on his base, it began a joint investigation with the Naval Criminal Investigative Service (NCIS). Lake sold LSD to an undercover CID agent on October 31, 1998 and again on November 13, 1998. After the sale on November 13, NCIS agents arrested Lake. Lake agreed to cooperate with NCIS agents. He identified the defendant, Mark Hitchcock, as the source of the LSD. Because Hitchcock is a civilian, the lead NCIS agent on the case, Michael Moran, asked the Drug Enforcement Administration (DEA) to join the investigation. The DEA took control of the investigation, assigning Special Agent John Meade as the case agent. Two NCIS agents, Moran and Robert Rzepka, remained involved with the investigation. Under DEA Agent Meade's direction, Lake made two monitored calls to Hitchcock and discussed payment for LSD Lake had previously obtained. The calls were made from the DEA field office and were monitored using DEA equipment. NCIS Agent Rzepka brought Lake to and from the Naval brig so that Lake could make the calls.

On November 14, 1998, Lake met with Hitchcock, paying him for the LSD with DEA funds. On November 16, 1998, at the direction of the DEA, Lake made another monitored call to Hitchcock and ordered more LSD from him. Under DEA supervision, Lake met with Hitchcock later that same day and Hitchcock sold Lake additional LSD. After Lake purchased the LSD, DEA agents arrested Hitchcock and seized the LSD. The DEA sent the seized LSD to the DEA Western Regional Laboratory for analysis.¹ Shortly after Hitchcock's arrest, DEA Agent Meade advised Hitchcock of his Miranda rights. Hitchcock waived his rights. NCIS Agents Moran and Rzepka were present at Hitchcock's interrogation. DEA Agent Meade conducted the interrogation, although NCIS Agent Moran also participated.

On November 15, 1998, NCIS Agent Moran conducted surveillance of Hitchcock's home, as did NCIS Agent Rzepka, along with DEA agents, the next day. On the day of Hitchcock's arrest, the DEA obtained a search warrant from a U.S. magistrate judge. After Hitchcock's arrest, DEA agents executed the warrant, searched Hitchcock's house, and seized evidence they discovered. NCIS Agent Rzepka assisted in the search, as did two CID agents who were present. DEA Agent Meade's report of the investigation states that of the ten drug exhibits recovered, four were seized by CID investigators. The search revealed a significant amount of drugs and drug paraphernalia. The DEA sent all of this evidence to the DEA Western Regional Laboratory for analysis.

Hitchcock was charged in a superseding indictment filed on April 21, 1999, with five counts. Count one of the indictment charged Hitchcock with possession with intent to distribute and distribution of "a mixture containing a detectable amount" of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Counts two and three charged him with possession with intent to distribute and distribution of "one gram or more of a mixture containing a detectable amount" of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count four charged him with possession with intent to distribute (but not distribution of) "one gram or more of a mixture containing a detectable amount" of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Count five charged Hitchcock with conspiracy to distribute "one gram or more" of LSD, in violation of 21 U.S.C. § 841.²

On March 24, 1999, Hitchcock filed a motion seeking to suppress the evidence obtained during the November 16, 1998, search of Hitchcock's house. Hitchcock argued that the search and seizure was conducted without a valid warrant and that no grounds existed to justify a search without a warrant. The search warrant DEA Agent Meade obtained recites that a search of Hitchcock's home is permitted "on or before the tenth (10th) day after the issuance date" of the warrant. Although DEA Agent Meade obtained the warrant on November 16, 1998, the U.S. magistrate judge dated the warrant November 17, 1998. Hitchcock argued that because the warrant was dated November 17, 1998, the search of his home on November 16, 1998 was performed without a valid warrant. The district court found that the magistrate judge had inadvertently written the wrong date and had corrected the date on the return copy of the warrant when DEA Agent Meade brought the error to his attention. Furthermore, the district court found that the officers had a good faith belief that was objectively reasonable that the warrant was valid. The district court therefore denied Hitchcock's motion. Hitchcock appeals from the district court's order denying his motion to suppress.

Hitchcock filed another motion on May 10, 1999, seeking dismissal of all charges against him and suppression of all evidence on the grounds that NCIS and CID participation in the investigation leading to Hitchcock's arrest violated the Posse Comitatus Act (PCA), 18 U.S.C. § 1385,³ and 10 U.S.C. § 375,⁴ both of which generally prohibit military involvement in civilian law enforcement. After hearing oral argument, the district court held that NCIS and CID involvement in the DEA's investigation of Hitchcock did not violate the PCA or § 375 because the military had only rendered "indirect assistance" to civilian law enforcement and such assistance is not prohibited by the acts. United States v. Hitchcock, 103 F.Supp.2d 1226, 1229-30 (D.Hawai'i 1999). Alternatively, the court held that the investigation did not violate the acts because the military's participation arose out of "legitimate military concerns." Id. at 1230. Hitchcock appeals from the district court's order denying his motion to dismiss or suppress all evidence because of a violation of the PCA and § 375.

Hitchcock entered a conditional guilty plea to all five counts of the superseding indictment on September 17, 1999, reserving the right to appeal the district court's orders denying his motions to dismiss and suppress. He had no plea agreement with the government. While he admitted that the substances identified by the indictment contained a detectable amount of LSD, he did not concede "the actual weight or quality of the drugs," leaving that issue to be contested at sentencing. At the sentencing hearing on May 2, 2000, the government had three forensic chemists testify concerning the quality and weight of the LSD at issue in the indictment. Hitchcock's expert called into question the methods used by the government chemists to identify the LSD. However, Hitchcock's expert admitted that he did not carefully weigh the substance, nor did he analyze its chemical composition. After argument, the court made findings concerning the weight of the LSD:

The court finds that the government has established by a preponderance of the evidence that the weight of the — that there was LSD as to count one and the weight was .4 grams, as to count two was 1.1 gram, as to count three was 4.3 milligrams pure LSD and 2.0 grams, as to count 4 it was 9.3 milligrams of pure LSD and 3.1 grams weight.

Based on the total amount of LSD found by the court (13.6 milligrams), Hitchcock's base offense level was 12. See U.S.S.G. § 2D1.1(c)(14). The probation office's presentence report recommended and the district court awarded a two point downward adjustment for acceptance of responsibility, giving Hitchcock a total offense level of 10. With a criminal history category of II and an offense level of 10, the Sentencing Guidelines prescribe a sentence of eight to fourteen months' imprisonment. U.S.S.G. Ch. 5, Pt. A. However, 21 U.S.C. § 841(b)(1)(B) prescribes a mandatory minimum of five years' imprisonment for conviction of possession with intent to distribute and distribution of LSD in the amount of "1 gram or more of a mixture or substance containing a detectable amount" of LSD. 21 U.S.C. § 841(b)(1)(B)(v). Since counts two through five involved one gram or more of a mixture...