United States v. Mark Steven Hitchcock

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)…