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UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 98-10469 v. D.C. No. CR-97-01189-ACK CHAE WAN CHON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 98-10470 v. D.C. No. CR-97-01189-ACK BUDDY COSTA, Defendant-Appellant. UNITED STATES OF AMERICA, No. 98-10478 Plaintiff-Appellee, D.C. No. v. CR-97-01189-ACK MAHLON K. KAPULE, JR., OPINION Defendant-Appellant.
Appeals from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Argued and Submitted
November 3, 1999--Honolulu, Hawaii
Filed April 20, 2000
Before: Dorothy W. Nelson, Alex Kozinski,
and William A. Fletcher, Circuit Judges.
Opinion by Judge D.W. Nelson
_________________________________________________________________
COUNSEL
Rustam A. Barbee, Honolulu, Hawaii, for defendant-appellant
Mahlon K. Kapule, Jr.; Wayne E. Costa, Jr., Honolulu,
Hawaii, for defendant-appellant Buddy Costa; and Ray Allen
Findlay, Honolulu, Hawaii, for defendant-appellant Chae
Wan Chon.
Craig H. Nakamura and Leon Schydlower, Assistant United
States Attorneys, Honolulu, Hawaii, for the plaintiff-appellee.
_________________________________________________________________
OPINION
D.W. NELSON, Circuit Judge:
Buddy Costa and Mahlon K. Kapule appeal their convic-
tions for stealing and selling United States property, and Chae
Wan Chon for knowingly purchasing government property, in
violation of 18 U.S.C. S 641. The district court sentenced
Costa to twenty-one months imprisonment, Kapule to five
months imprisonment, and Chon to three years probation.
On appeal, Chon, Costa, and Kapule assert that the district
court made four separate errors: (1) the court held that the
involvement of the Naval Criminal Investigative Service
(NCIS) in investigating the theft of government property was
permissible under the independent military purpose exception
of 10 U.S.C. S 375;1 (2) it failed to suppress the evidence
obtained as a result of the NCIS investigation; (3) the court
failed to order discovery of all materials pertinent to NCIS
activities targeting civilians; and (4) the court declined to pre-
clude Special Assistant United States Attorney (SAUSA)
Philip Sundel from prosecuting the case due to a conflict of
interest.
FACTUAL AND PROCEDURAL BACKGROUND
In May 1996, Costa and Kapule broke into the Navy Public
Works Center in Honolulu, Hawaii, and stole two flatbed
trucks, spools of copper wire, and other military equipment.
They later sold the stolen wire to Chon, owner of Aiea Recy-
cling Company. On December 10, 1997, a grand jury indicted
Costa and Kapule for stealing and selling United States prop-
erty, and Chon for knowingly receiving such property, in vio-
lation of 18 U.S.C. S 641.
The indictments were principally the result of leads devel-
oped by the NCIS, the investigative unit of the Navy. Most
significantly, a cooperating witness informed NCIS agents
that he saw copper wire being unloaded from a Navy flatbed
truck at Aiea. The agents, accompanied by the FBI, subse-
quently went to Aiea and questioned Chon as well as seven
other civilians who were present on the property. The NCIS
obtained Chon's written consent to search the premises and
recovered 30 spools of copper wire valued at $17,950.55.
Chon stated that he had purchased the wire from an individual
named "Buddy" and provided the NCIS agents with Buddy's
license plate number.
Later that day, Chon was asked to go to the Naval Station
where he was again interviewed by NCIS agents. Chon told
the agents that Buddy had come to him several times during
a four-day period seeking to sell him wire. In addition to dis-
cussing these transactions, Chon informed the NCIS agents
that Buddy had been accompanied by two other males and
provided descriptions of them.
Based on the information gleaned from Chon, the NCIS
interviewed Kapule's cousin, conducted two photographic
line-ups for Chon to identify Kapule, interviewed Costa's for-
mer employer, questioned Costa, Kapule, and Kapule's father,
and conducted a search of Kapule's residence. These investi-
gative activities were fruitful as the NCIS agents, working
with the Honolulu Police Department and the FBI, recovered
additional stolen property at Kapule's residence and obtained
confessions from Costa and Kapule.
During the trial proceedings, Chon, joined by Costa and
Kapule, filed a Motion to Compel Discovery seeking informa-
tion related to any activities of the NCIS and its predecessor
agency, the Naval Investigative Service (NIS), that targeted
civilians. The magistrate judge denied this motion, noting that
the request was a "far reaching fishing expedition." Chon,
again joined by Costa and Kapule, also filed a Motion to Sup-
press Evidence and to Dismiss the Indictment (Motion to
Suppress/Dismiss), arguing that the NCIS had violated the
Posse Comitatus Act (PCA). During the hearing on the
Motion to Suppress/Dismiss, the Defendants made a separate
motion for the removal of the prosecutor (Motion for
Removal), SAUSA Sundel, claiming a conflict of interest
based on his status as an active duty Navy Judge Advocate
General. On March 31, 1998, the district court issued an order
denying the Motion to Suppress/Dismiss and Motion for
Removal.
In May 1998, Chon, Costa, and Kapule entered conditional
pleas of guilty and reserved the right to appeal the district
court's denial of their Motion to Suppress/Dismiss and
Motion to Compel Discovery. Five months later, Chon, Costa,
and Kapule filed their notices of appeal. By orders entered on
November 30, 1998 and December 24, 1998, this court con-
solidated the appeals. We affirm.
DISCUSSION
I. Posse Comitatus Act
The PCA prohibits Army and Air Force military personnel
from participating in civilian law enforcement activities. See
18 U.S.C. S 1385 (1994).2 Although the PCA does not directly
reference the Navy or Marine Corps, we do not construe this
omission as congressional approval for Navy involvement in
enforcing civilian laws. See United States v. Kahn, 35 F.3d
426, 431 (9th Cir. 1994). Congress has, in fact, required the
Secretary of Defense to "prescribe such regulations as may be
necessary" to prohibit "direct participation by a member of
the Army, Navy, Air Force, or Marine Corps" in law enforce-
ment activities. 10 U.S.C. S 375 (1998). The Department of
Defense (DoD) thereafter, by directive, made the PCA appli-
cable to the Navy and the Marine Corps as a "matter of DoD
policy," DoD Directive 5525.5(C); the Secretary of the Navy,
using nearly identical language, has adopted this policy, see
SECNAVINST 5820.7B.
The government argues that S 375 does not apply to the
NCIS because most of its agents are civilians. The govern-
ment bases its claim on SECNAVINST 5820.7B(a)(b) and
DoD Directive 5525.5(B), which exempt four categories of
people from PCA-like restrictions: (1) members of reserve
components when not on active duty; (2) members of the
National Guard when not in the Federal Service; (3) civilian
employees of DoD unless under the direct command and con-
trol of a military officer; and (4) military service members
when off duty and in a private capacity. We take these exemp-
tions to mean that the PCA and PCA-like restrictions function
to proscribe use of the strength and authority of the military
rather than use of the private force of the individuals who
make up the institution. In other words, while DoD personnel
may participate in civilian law enforcement activities in their
private capacities, they may not do so under the auspices of
the military.
[1] Under this analysis, we find that the PCA-like restric-
tions adopted by DoD with respect to the Navy apply to the
NCIS. Here, the NCIS was the driving force behind going to
Aiea and questioning Chon, searching the premises, question-
ing Costa and Kapule and obtaining their confessions, search-
ing Kapule's home, and recovering stolen government
property. In doing so, civilian NCIS agents represented and
furthered the interests of the Navy, and were delegated the
same authority to do so as military NCIS agents. When the
civilian world is confronted by agents of the Navy, it is
unlikely to make the fine distinctions asserted by the govern-
ment between military and civilian NCIS agents.
[2] The government also contends that the NCIS should be
exempt from PCA-like restrictions because it is headed by a
civilian director with a civilian chain of command. As the
record indicates, however, the NCIS Director has a direct
reporting relationship to the Chief of Naval Operations, a mil-
itary officer. Despite a civilian Director, the NCIS continues
to be a unit of, and accountable to, the Navy. We thereby hold
that the NCIS is bound by the limitations of S 375.
[3] Here, however, the NCIS agents' activities were per-
missible because there was an independent military purpose
for their investigation -- the protection of military equipment.
See DoD Directive 5525.5(A)(2)(a)(5);3 SECNAVINST
5820.7B(9)(2)(a)(5). Other courts have relied on the military
purpose exception to sanction military assistance in law
enforcement activities where the illegal acts were perpetrated
by military personnel or where civilians committed illegal
acts on military bases. See e.g. Applewhite v. United States
Air Force, 995 F.2d 997, 1001 (10th Cir. 1993) (holding that
the military may investigate illegal drug transactions by active
duty military personnel); United States v. Banks , 539 F.2d 14,
16 (9th Cir. 1976) (allowing military personnel to act upon
on-base violations of civil law committed by civilians);
United States v. Thompson, 30 M.J. 570, 574 (1990) (allowing
military jurisdiction over a military member who stole both
civilian and military property). As "considerable weight
should be accorded to an executive department's construction
of a statutory scheme it is entrusted to administer, " Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 844 (1984), we rule in accordance with DoD Direc-
tive 5525.5(A)(2)(a)(5) and hold that the NCIS investigation
was permissible as it was undertaken for the independent mil-
itary purpose of recovering military equipment. Because the
NCIS action here was valid, we need not address whether the
exclusionary rule applies where the PCA is violated.
II. Motion to Compel Discovery
Chon, Costa, and Kapule submitted a discovery request to
the government which included such items as copies of all
materials pertinent to NCIS activities targeting civilians,
materials implicating widespread and repeated violations of
the PCA in the State of Hawaii and within the United States,
information reflecting warnings to the NIS/NCIS against vio-
lating the PCA, and materials of all Organized Crime Drug
Enforcement Task Force activities targeting civilians. The dis-
trict court, opining that the requested discovery was a "far
reaching fishing expedition," ruled that the government had
met its obligations under Fed. R. Crim. R. 16(a)(1)(C).4
We review discovery rulings for an abuse of discretion. See
United States v. De Cruz, 82 F.3d 856, 866 (9th Cir. 1996).
Under that standard, this court cannot reverse unless we have
a definite and firm conviction that the district court committed
a clear error of judgment. See Valley Eng'rs Inc. v. Electric
Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). To justify
reversal of a conviction, Chon, Costa, and Kapule must show
a likelihood " `that the verdict would have been different had
the government complied with the discovery rules.' " De
Cruz, 82 F.3d at 866 (quoting United States v. Baker, 10 F.3d
1374, 1398 n.8 (9th Cir. 1993)).
[4] In United States v. Armstrong , 517 U.S. 456 (1996), the
Supreme Court considered the parameters of Fed. R. Crim. P.
16(a)(1)(C) and ruled that defendants are entitled to the dis-
covery of only those materials that are relevant to the defen-
dant's response to the Government's case in chief:
While it might be argued that as a general matter, the
concept of a "defense" includes any claim that is a
"sword," challenging the prosecution's conduct of
the case, the term may encompass only the narrower
class of "shield" claims, which refute the Govern-
ment's arguments that the defendant committed the
crime charged. Rule 16(a)(1)(C) tends to support the
"shield-only" reading. If "defense" means an argu-
ment in response to the prosecution's case in chief,
there is a perceptible symmetry between documents
"material to the preparation of the defendant's
defense," and, in the very next phrase, documents
"intended for use by the government as evidence in
chief at the trial."
Id. at 462. Under Armstrong, the appellants here are entitled
to the discovery of only those materials relevant to the
charges of theft and conversion of government property and
receipt of such property. As the discovery request is consider-
ably broader and the materials in question do not serve the
purpose of fortifying the appellants' "shield claims," we find
that the district court satisfied the requirements of FRCP
16(a)(1)(C).
III. Conflict of Interest
Upon entering their conditional pleas of guilty, Chon,
Costa, and Kapule reserved the right to appeal the district
court's denial of their Motion to Suppress/Dismiss and
Motion to Compel Discovery. Pursuant to Fed. R. Crim. P.
11(a)(2),5 they thereby waived all other issues not expressly
reserved for appeal. See United States v. Martinez-Vitela, 193
F.3d 1047, 1050-51 (9th Cir. 1999). The appellants here
maintain that SAUSA Sundel's status as an active duty Naval
officer is an additional basis for dismissal pursuant to their
Motion to Dismiss/Suppress. This contention is at odds with
the record.
The appellants acknowledge that they filed a motion to
remove SAUSA Sundel independent of their motion to sup-
press the evidence and dismiss the indictment; the two
motions were distinct despite the Motion for Removal being
raised orally during the hearing for the Motion to Suppress/
Dismiss. The district court, moreover, denied the Motion for
Removal separate and apart from its denial of the Motion to
Suppress/Dismiss. Appellants may not now state that they
have subsumed the conflict of interest issue into the larger
issue of the Motion to Suppress/Dismiss and have it be so.
AFFIRMED.
_______________________________________________________________
FOOTNOTES
1 10 U.S.C. S 375 restricts the direct participation of military personnel
in civilian law enforcement activities: "The Secretary of Defense shall pre-
scribe such regulations as may be necessary to ensure that any activity . . .
under this chapter does not include or permit direct participation by a
member of the Army, Navy, Air Force, or Marine Corps in a search, sei-
zure, arrest, or other similar activity unless participation in such activity
by such member is otherwise authorized by law." 10 U.S.C. S 375 (1998).
2 18 U.S.C. S 1385 stipulates that "[w]hoever, except in cases and under
circumstances expressly authorized by the Constitution or Act of Con-gress, willfully uses any part of the Army or the Air Force as a posse com-
itatus or otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both." 18 U.S.C. S 1385 (1994).
3 DoD Directive 5525.5(A)(2) allows for direct assistance in civilian law
enforcement activities where the actions "are taken for the primary pur-
pose of furthering a military or foreign affairs function of the United
States . . ." The directive specifies that such actions include the
"[p]rotection of DoD personnel, DoD equipment, and official guests of the
Department of Defense." DoD Directive 5525.5(A)(2)(a)(5).
4 Fed. R. Crim. P. 16(a)(1)(C) stipulates that "[u]pon request of the
defendant the government shall permit the defendant to inspect and copy
or photograph books, papers, documents, photographs, tangible objects,
buildings or places, or copies or portions thereof, which are within the
possession, custody or control of the government, and which are material
to the preparation of the defendant's defense or are intended for use by the
government as evidence in chief at the trial, or were obtained from or
belong to the defendant." Fed. R. Crim. P. 16(a)(1)(C).
5 Fed. R. Crim. P. 11(a)(2) stipulates that "[w]ith the approval of the
court and the consent of the government, a defendant may enter a condi-
tional plea of guilty or nolo contendere, reserving in writing the right, on
appeal from the judgment, to review of the adverse determination of any
specified pretrial motion."
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