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THE COURT OF APPEALS OF THE STATE OF ALASKA
LARRY FOX, )
) Court of Appeals No. A-5331
Appellant, ) Trial Court No. 3AN-S93-7689CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
)
ODELL W. FOX, JR., )
) Court of Appeals No. A-5337
Appellant, ) Trial Court No. 3AN-S93-7688CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1449 - December 22, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Mark C.
Rowland, Judge.
Appearances: G. Blair McCune, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant Larry Fox.
Leslie A. Hiebert, Assistant Public Advocate,
Brant McGee, Public Advocate, Anchorage, for
Appellant Odell W. Fox., Jr. Cynthia L.
Herren, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Larry Fox was convicted by a jury of two counts of
misconduct involving a controlled substance in the third degree,
in violation of AS 11.71.030(a)(1); the same jury convicted Larry
Fox's brother, Odell W. Fox, Jr., of one count of the same crime.
The Foxes appeal, contending that their convictions were obtained
in violation of the Posse Comitatus Act, that their indictment
was based on insufficient and improper evidence, and that certain
exhibits were admitted at trial without adequate foundation. We
affirm.
In mid-July 1993, T.B., a soldier at Fort Richardson,
tested positive for THC and cocaine during a urinalysis. As a
result, the Army decided to pursue military charges against him.
T.B. agreed to act as an informant in exchange for favorable
testimony at his court martial about his cooperation. T.B.
informed the Army's criminal investigation division (CID) that he
had purchased the drugs off-post from civilians who were selling
cocaine to active duty military personnel. Specifically, T.B.
named two individuals, Eldridge Bradley and Jessica Brees, who
had sold him cocaine at an apartment located on Peterkin Street
in Anchorage.1
Based on T.B.'S information, CID Special Agent John T.
Kohler called Sergeant William Miller of the Anchorage Police
Department (APD), informed Miller of the information T.B. had
given CID, and asked if APD would be willing to pursue T.B.'s
civilian drug sources. Miller, however, felt that APD did not
"have people that fit a military profile [and] that know the
military jargon[.]" So he asked Kohler for CID's assistance in
investigating the case.
Kohler subsequently sought formal authorization from
the Department of Defense for CID and APD to conduct a joint off-
post drug investigation targeting Bradley, Brees, "and their
associates."2 Two days later, he received a memorandum of
approval from CID headquarters.
Pursuant to this authorization, T.B. and an undercover
CID investigator named Eric Weeks went to 3407 Peterkin Street --
under surveillance by CID and APD personnel -- to attempt to
purchase cocaine from Eldridge Bradley and Jessica Brees. Brees
and an unidentified man were there, but Bradley was not; Brees
told T.B. that Bradley was gone and would not be back for a
couple of days and that she had no cocaine to sell. Brees'
unidentified companion then told Weeks and T.B. that they could
obtain drugs at a nearby apartment on North Price Street.
According to Weeks, the man referred to the North Price Street
apartment "as being a location where Bradley normally hung out
where he dealt drugs from. One of his locations. And that we
could obtain drugs from that location also." T.B. immediately
said he knew exactly where the apartment was, and Weeks and T.B.
left Brees' apartment.
After leaving the Peterkin Street apartment, Weeks
radioed his CID supervisor, Kohler, to obtain authorization to
proceed to the North Price Street apartment; Weeks was told that
he could go to the new address as long as he knew the people
there were associated with Bradley and Brees.
On the porch outside the North Price Street apartment,
Weeks and T.B. encountered Larry Fox, who evidently suspected the
men of being police officers and called out a warning to Odell
Fox, who was inside. T.B., however, walked up to the door,
saying, "No, man, you know me, I've been here before." Odell
emerged from the apartment and assured Larry that he remembered
T.B. The men then entered the apartment. Once inside, T.B. and
Weeks asked to buy cocaine. After asking both men if they were
in the military and being assured that they were, Larry sold them
a small quantity of cocaine.
Over the next several days, Weeks and T.B. returned to
the North Price Street apartment on two further occasions and
purchased additional cocaine from Larry Fox. One other time,
Weeks went to the apartment without T.B. and purchased cocaine
from Odell Fox. On each occasion, Anchorage Police Officers
worked jointly with CID personnel in monitoring the transactions.
The drugs purchased by Weeks and T.B. were turned over to APD for
testing, which confirmed the presence of cocaine. Based on these
transactions, the state charged Larry and Odell Fox with the
offenses that give rise to the present appeal.
Prior to trial, the Foxes moved to suppress evidence
and dismiss their charges. Alleging that Army CID personnel who
participated in their case had no legitimate military purpose and
acted merely to assist civilian authorities, the Foxes argued
that the evidence against them had been obtained in violation of
the Posse Comitatus Act. Following an evidentiary hearing,
Superior Court Judge Mark C. Rowland denied the motion,
concluding in part that
there was an independent military
purpose which justified the participation of
these military personnel in the investigation
which led in the natural and ordinary course
of the investigation to the defendants, the
discovery of their criminal activity in which
the military had a real and substantial
interest, and ultimately to their subsequent
prosecution.
On appeal, the Foxes renew their Posse Comitatus Act claim.
The Posse Comitatus Act finds form in 18 U.S.C. ' 1385,
which provides:
Whoever, except in cases and under
circumstances expressly authorized by the
Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as
a posse comitatus or otherwise to execute the
laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both.
The primary purpose of this provision is "to maintain
the traditional balance of authority between civilians and the
military." Moon v. State, 785 P.2d 45, 47 (Alaska App. 1990)
(quoting H.R. Rep. No. 71, 97th Cong., 1st Sess., pt. 2, at 3
(1981), reprinted in 1981 U.S.C.C.A.N. 1785, 1785).
Nevertheless, in 1981, Congress, perceiving a growing drug
problem of national proportions, emphasized the need "to maximize
the degree of cooperation between the military and civilian law
enforcement" to stem the influx of illegal drugs into this
country. Id. To this end, Congress enacted, and has more
recently amended, federal statutes designed to clarify and to
liberalize the restrictions of the Posse Comitatus Act. See 10
U.S.C. '' 371-78 (1988); Moon v. State, 785 P.2d at 46.
Regulations promulgated in accordance with this
legislation permit joint military-civilian drug enforcement
efforts when those efforts are undertaken "for the primary
purpose of furthering a military or foreign affairs function of
the United States, regardless of incidental benefits to civilian
authorities." Former 32 C.F.R. ' 213.10(a)(2)(i).3 More
particularly, the Department of Defense has issued a policy
memorandum that allows military involvement in investigations of
persons not subject to the Uniform Code of Military Justice if
the following guidelines are met:
(1) If there are reasonable grounds
to believe that such person has committed a
drug offense in conjunction with a member of
the Armed Forces and the investigative
actions are undertaken to obtain evidence
concerning all illegal drug transactions
between such person and any member of the
Armed Forces.
(2) If there are reasonable grounds
to believe that such person is the immediate
source of the introduction of illegal drugs
onto the military installation and the
investigative actions are undertaken to
obtain evidence concerning all persons
engaged in drug trafficking on the
installation.
Department of Defense Criminal Investigations Policy Memorandum
No. 5 (hereinafter DoD Memo 5), & D.3.b.; see also Moon v. State,
785 P.2d at 47-48.
In civilian prosecutions stemming from joint military-
civilian investigations into off-base drug sales, courts have
interpreted these regulations to require the government to
demonstrate a military purpose -- that is a nexus between the
targeted off-base sales and military personnel; this purpose must
be shown to have been the primary purpose of the military's
participation. In the absence of a nexus between the targeted
off-base drug sales and military personnel, courts have condemned
joint investigations as violative of the Posse Comitatus Act.
See, e.g., People v. Tyler, 854 P.2d 1366 (Colo. App. 1993),
rev'd on other grounds, 874 P.2d 1037, 1040 (Colo. 1994); State
v. Pattioay, 896 P.2d 911, 917 (Hawaii 1995). By contrast, when
the nexus has been shown to exist, no violation of the Act has
been found. See, e.g., McPherson v. State, 800 P.2d 928 (Alaska
App. 1990), rev'd in part on other grounds, 855 P.2d 420 (Alaska
1993); Moon v. State, 785 P.2d at 48; Badoino v. State, 785 P.2d
39, 42-43 (Alaska App. 1990).
In the present case, the record establishes a clear
military purpose in pursuing the challenged investigation: a
soldier, T.B., had tested positive for illicit drugs while on
duty, and formal military charges had been filed against him;
military investigators then focused their attention on T.B.'s
sources of supply, who, according to T.B., sold primarily to
military personnel. This is precisely the type of investigation
covered by DoD memo 5, & D.3.b.2., which authorizes military
participation in civilian drug enforcement efforts when
reasonable grounds exist to believe that the person targeted by
the investigation is "the immediate source of the introduction of
illegal drugs onto the military installation and the
investigative actions are undertaken to obtain evidence
concerning all persons engaged in drug trafficking on the
installation."
The Foxes appear to acknowledge that investigation of
T.B.'s immediate sources of supply might be a legitimate military
purpose justifying military participation. They point out,
however, that APD expressly requested CID to participate in the
investigation -- purportedly to provide undercover buyers who
could convincingly appear to be military personnel. The Foxes
reason that, because CID participated in the case at the behest
of APD, CID's primary purpose must have been to assist the
civilian authorities, and not to track down T.B.'s sources of
supply.
But the trial court reached a contrary conclusion,
expressly finding that "there was an independent military purpose
which justified [CID's] participation[.]" This factual finding
is subject to reversal only if clearly erroneous. See State v.
Bianchi, 761 P.2d 127, 129 (Alaska App. 1988).
The record fully supports the trial court's finding.
Although CID did agree to participate in the investigation upon
APD's request, the record makes it clear that APD's request for
military assistance was, in turn, triggered by CID's initial
suggestion that APD investigate T.B.'s source of supply. After
APD asked for assistance, CID requested and obtained formal
Department of Defense authorization to participate in the
investigation.
The record as a whole thus supports a reasonable
inference that CID was motivated by a legitimate military
interest, both in initially contacting APD to suggest an
investigation of T.B.'s sources and in subsequently agreeing to
provide assistance when APD conditioned its willingness to
investigate on the military's willingness to assist. The trial
court was not clearly erroneous in finding that CID's
participation was primarily motivated by a legitimate military
purpose.
The Foxes separately argue that even if the military
had a genuine interest in investigating T.B.'s sources of supply
at the Peterkin Street apartment -- where Bradley and Brees had
previously sold T.B. drugs -- that interest could not have
extended to the investigation of drug-related activity by persons
other than Bradley and Brees operating at locations other than
the Peterkin Street apartment. This argument touches on a valid
concern, for CID certainly had no legitimate military interest in
participating in a general investigation of off-base drug-related
activity. To the contrary, the scope of the military's interest
-- and of CID's permission to participate in a civilian
investigation -- was defined by the formal authorization issued
pursuant to DoD memo 5.
However, CID had asked for authorization to investigate
not only Bradley and Brees, but also "their associates." It is
undisputed that this request was granted.4 CID thus had limited
authority to extend its investigative efforts beyond Bradley and
Brees -- and beyond the Peterkin Street apartment -- provided
that it acted with "reasonable grounds to believe" that its new
target was directly associated with Bradley and Brees and would
therefore qualify as an "immediate source of the introduction of
illegal drugs onto the military installation[.]" DoD memo 5,
& D.3.b.2.
At the evidentiary hearing on the Foxes' suppression
motion, CID investigator Eric Weeks testified that, upon arriving
with T.B. at the Peterkin Street apartment and learning that
Bradley was out of town for several days, he and T.B. were told
by a companion of Brees that drugs would be available to them at
the North Price Street apartment. That apartment was described
"as being a location where Bradley normally hung out where he
dealt drugs from. One of his locations." Based on his past
experiences, T.B. knew exactly where the apartment was located.
And T.B. and Weeks gained admission to that apartment only upon
T.B.'s express assurance to Odell Fox that he (T.B.) had been
there before.
After considering this evidence, the trial court found
that CID's efforts to buy drugs from T.B.'s source at the
Peterkin Street apartment "led in the natural and ordinary course
of the investigation to the defendants." The record supports
this finding and establishes that, in proceeding to the North
Price Street apartment and making contact with the Foxes, Weeks
and T.B. had reasonable grounds to believe that the Foxes were
associated with Bradley in the sale of illicit drugs to military
personnel. The trial court did not err in declining to find a
Posse Comitatus Act violation under these circumstances.
The Foxes next challenge the validity of their
indictment, arguing that the state presented the grand jury with
insufficient evidence to establish their identity; they further
argue that the state introduced inadmissible evidence of prior
misconduct. We first consider the sufficiency of the grand jury
testimony on the issue of identity.
When CID investigator Eric Weeks bought cocaine at the
North Price Street apartment, he was evidently uncertain of the
true identities of his sellers. By the time the grand jury met,
however, Weeks had determined that his sellers were Larry and
Odell Fox. At the grand jury hearing, Weeks simply testified
that the persons who sold him cocaine were Larry and Odell Fox;
Weeks did not explain the basis for his identification of the
Foxes. The Foxes argue, as they did below, that this conclusory
testimony was insufficient to establish their identify for
purposes of indictment.
"The grand jury shall find an indictment when all the
evidence taken together, if unexplained or uncontradicted, would
warrant a conviction of the defendant." Alaska Criminal Rule
6(q). This court must review the evidence presented to the grand
jury to determine whether it "presented a sufficiently detailed
account of criminal activity and the defendant's participation in
this activity" to meet this standard. Taggard v. State, 500 P.2d
238, 242 (Alaska 1972). In making this determination, we must
view the evidence in the light most favorable to the state.
Panther v. State, 780 P.2d 386, 389 (Alaska App. 1989). However,
we may not consider evidence that was improperly presented to the
grand jury. Marion v. State, 806 P.2d 857, 859 (Alaska App.
1991).
Here, in testifying before the grand jury, Weeks
unequivocally identified the persons who sold him cocaine as
Larry and Odell Fox. Weeks' testimony ostensibly reflected his
personal knowledge at the time of the grand jury hearing. Unless
Weeks' testimony was based on hearsay or derived from some other
impermissible source -- and the Foxes made no such showing below
-- the testimony was properly before the grand jury, which was
free to accept it at face value or to reject it in its entirety.
While the basis for and reliability of Weeks' identification
testimony would certainly be proper subjects for cross-
examination at trial, the prosecution had no obligation to delve
into these issues before the grand jury. Cf. Frink v. State, 597
P.2d 154, 166 (Alaska 1979); Tookak v. State, 648 P.2d 1018, 1021
(Alaska App. 1982)(although the prosecution has a duty to present
evidence to the grand jury that is in itself exculpatory, it has
no obligation to develop potentially favorable leads for the
defendant).5
We conclude that the evidence before the grand jury was
sufficient to establish Larry Fox's and Odell Fox's identities as
the persons who sold cocaine to Weeks. We turn next to the
Foxes' claim that the state presented inadmissible evidence of
prior misconduct to the grand jury.
In testifying before the grand jury about the
investigation that led to the charges against Larry and Odell
Fox, APD Sergeant Miller described the investigation as having
focused on "civilians selling drugs to military personnel." CID
investigator Weeks later testified that his role in the
investigation had been to "get introduced to known drug dealers."
Weeks further testified that he had asked the Foxes to sell him
drugs "`cause they were known to be known drug traffickers." The
Foxes argue that these references amounted to evidence of other
misconduct that was inadmissible under Alaska Rule of Evidence
404(b); the Foxes further argue that the inadmissible evidence
was sufficiently prejudicial to warrant dismissal of their
indictment.
However, the presentation of inadmissible evidence to a
grand jury will warrant dismissal of an indictment only if the
remaining, properly admitted evidence would be insufficient or if
"the probative force of that admissible evidence was so weak and
the unfair prejudice engendered by the improper evidence was so
strong that it appears likely that the improper evidence was the
decisive factor in the grand jury's decision to indict." Stern
v. State, 827 P.2d 442, 445-46 (Alaska App. 1992) (citations
omitted). Here, the state presented the grand jury with strong
admissible evidence of guilt. Assuming the disputed references
to other misconduct were improper under A.R.E. 404(b), their
potential for prejudice was relatively slight in the context of a
grand jury hearing. We find no reasonable possibility that this
evidence "was the decisive factor in the grand jury's decision to
indict." Stern v. State, 827 P.2d at 446. Accordingly, we
conclude that the trial court did not err in denying the Foxes'
motion to dismiss their indictment.
The Foxes lastly dispute the trial court's decision
admitting as exhibits at trial the packets of cocaine they
allegedly sold Weeks. The Foxes argue that Weeks did not
adequately identify the packets as those he purchased from them,
because, in identifying the packets, Weeks relied only on their
general appearance, rather than on any distinct labels or
markings. The Foxes further argue that the state offered no
evidence to establish the packets' chain of custody after they
were tested by the state crime lab, and before their introduction
in the courtroom.
The admission of real evidence is governed by Alaska
Rule of Evidence 901(a), which requires the prosecution to
"demonstrate as a matter of reasonable certainty that the
evidence . . . was at the time it was observed properly
identified and free of . . . possible taints[.]" The reasonable
certainty requirement does not obligate the state to conclusively
rule out the possibility of tampering or to produce as a chain-of-
custody-witnesses all persons who had contact with the evidence.
Houston-Hult v. State, 843 P.2d 1262, 1266 (Alaska App. 1992).
For purposes of a drug prosecution such as the present case, the
state's duty to prove proper identification and freedom from
taint "at the time [the evidence] was observed," A.R.E. 901(a),
must focus on the integrity of the evidence from the time of
purchase to the time of testing; potential post-testing
alteration would seem wholly immaterial. See, e.g., People v.
Griffith, 567 N.Y.S.2d 476, 479 (N.Y. App. Div. 1991).
In the present case, Weeks testified without objection
that he recognized the disputed drug packets as the ones he had
purchased from Larry and Odell Fox. Weeks said that he turned
the packets over to two officers -- Miller and Kohler -- who had
maintained surveillance over his undercover purchases. Miller
and Kohler, in turn, confirmed that they received the packets
directly from Weeks, and they testified that they labeled,
initialed, and sealed them; they ultimately transferred the
packets to the crime lab for testing. Based on information they
had affixed to the disputed packets, Miller and Kohler identified
them as the ones they received from Weeks and turned over to the
crime lab. Finally, Kathryn Echols, a criminalist from the state
crime lab, testified that she received the packets, tested them,
and determined that they contained cocaine. Echols then resealed
them with distinctive crime lab tape, on which she entered her
initials and an identifying number. At trial, relying on these
features, Echols identified the disputed packets as those she had
received and tested.
Our review of the record convinces us that the
foregoing evidence fully complied with the foundational
requirements of A.R.E. 901(a). Cf. Brown v. State, 378 S.E.2d
908, 910-11 (Ga. App. 1989); State v. Vance, 602 P.2d 933, 942
(Hawaii 1979). The trial court did not abuse its discretion in
admitting the exhibits. Hawley v. State, 614 P.2d 1349, 1361
(Alaska 1980).
The convictions are AFFIRMED.
_______________________________
1. T.B. also described a third supplier, an unidentified woman who resided on
North Hoyt Street and who played no role in the events that led to the
appeal in this case.
2. The request stated that the purpose of the investigation was "to attempt to
identify soldiers who are involved in using, buying, or distributing drugs
from the above targets, and to effect the arrest of the targets who are the
immediate source of illegal drugs for soldiers stationed at Fort
Richardson, AK, or introducing controlled substances onto Ft. Richardson."
3. The 1981 federal legislation required the Department of Defense to
promulgate regulations governing military cooperation with civilian law
enforcement officials. See 10 U.S.C. ' 376. Although these regulations,
which were initially codified at 32 C.F.R. ' 213, have since been removed
from the Code of Federal Regulations, they remain in effect as Department
of Defense Directive 5525.5. 58 Fed. Reg. 25776 (April 28, 1993).
4. Although CID specifically requested authority to target Bradley, Brees, and
"their associates," the memorandum of approval from CID headquarters is
itself ambiguous concerning the scope of the approved investigation, since
it expressly mentions only Bradley and Brees, and does not refer to "their
associates." At the evidentiary hearing below, however, Kohler testified
"without doubt" that he acted within the scope of his DoD memo 5 approval
in authorizing Weeks and T.B. to go to the Foxes' apartment. This
testimony was not challenged. On appeal, the Foxes do not argue that the
DoD memo 5 authorization approved only the investigation of Bradley and
Brees, thereby in effect disapproving CID's request to target their
associates.
5. Fox incorrectly argues that this case is analogous to Marion v. State, 806
P.2d 857 (Alaska App. 1991), in which we found that evidence of the
defendant's proximity to illegal contraband was insufficient to support an
indictment; we concluded that mere proximity was insufficient to give rise
to a reasonable inference of knowing possession. Here, by contrast, direct
and unequivocal evidence was presented to the jury that Larry and Odell Fox
were the persons who sold Weeks cocaine; the Foxes simply maintain, without
supporting authority, that the conclusory nature of the evidence made it
unworthy of acceptance by the grand jury.
