## Facts

- In August 1990, an anti-drug task force conducting aerial surveillance observed marijuana cultivation and a nearby drying area within the Daniel Boone National Forest in Kentucky.
- On September 4, 1990, additional aerial surveillance showed marijuana hanging in the drying area.
- A ground team composed of the U.S. Forest Service, Kentucky State Police, Kentucky Attorney General’s Office, and Kentucky National Guard conducted surveillance of the area.
- National Guard personnel, armed with sidearms and automatic weapons, assisted with surveillance and security during the operation.
- Officers observed Jennings Gilbert remove marijuana buds from plants, place them in a bag, and move toward the drying area.
- The operation led to the arrests of Charles and Jennings Gilbert, a search and seizure of marijuana-related evidence, and an inculpatory statement by Charles; the government used this evidence at trial.
- After conviction and direct proceedings, the Gilberts filed a joint motion under 28 U.S.C. § 2255 asserting that National Guard participation violated the Posse Comitatus Act and required suppression; they also challenged federal authority under the Commerce Clause.

## Issues

1. Whether Kentucky National Guard involvement in surveillance and arrests violated the Posse Comitatus Act and, if so, whether it amounted to a Fourth Amendment violation.
2. Whether the failure to raise the Posse Comitatus challenge before trial could be excused by cause and prejudice on collateral review.
3. Whether the asserted Posse Comitatus error rendered the arrests and convictions a complete miscarriage of justice warranting § 2255 relief.
4. Whether the federal marijuana convictions were unconstitutional because the defendants’ conduct did not substantially affect interstate commerce.

## Decision

- The Sixth Circuit affirmed the denial of § 2255 relief.
- The court held the Posse Comitatus Act was not violated by the National Guard’s role in the operation.
- Because there was no Posse Comitatus violation, the court found no basis for a derivative Fourth Amendment claim or for § 2255 relief on a miscarriage-of-justice theory.
- The court found it unnecessary to resolve cause-and-prejudice arguments in detail given the lack of a meritorious underlying Posse Comitatus claim.
- The court rejected the Commerce Clause challenge to the marijuana convictions.

## Legal Principles

- The Posse Comitatus Act generally limits use of the Army and Air Force to execute civilian laws, but its application depends on the military status and control of the forces involved and on statutory authorizations for assistance.
- State-controlled National Guard support to civilian law enforcement in drug interdiction/eradication operations may be lawful where authorized by Congress and not amounting to prohibited direct execution of the laws in federal military capacity.
- On § 2255 review, relief generally requires a meritorious claim plus either cause and prejudice for a procedural default or a showing that refusal to consider the claim would result in a complete miscarriage of justice.
- Federal drug convictions are not invalidated merely because a defendant characterizes the conduct as purely local; Congress may regulate drug activity as part of a broader interstate regulatory scheme.

## Conclusion

The Sixth Circuit held that the Kentucky National Guard’s participation in a joint marijuana eradication operation did not violate the Posse Comitatus Act and therefore provided no basis for suppression or § 2255 relief, and it also rejected the defendants’ Commerce Clause attack on their federal marijuana convictions.


Gilbert v. United States, 165 F.3d 470 (6th Cir. 1999)