FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. No. 2:12-CR-20083-KHV-4)
E. Brady (Henri J. Watson, on the briefs), Watson &
Dameron, Kansas City, Missouri, appearing for Appellant.
N. Capwell, Assistant United States Attorney (Thomas E.
Beall, Acting United States Attorney, with her on the brief),
Office of the United States Attorney for the District of
Kansas, Kansas City, Kansas, appearing for Appellee.
TYMKOVICH, Chief Judge, MATHESON, and MORITZ, Circuit Judges.
MATHESON, Circuit Judge.
Pickel was convicted on two counts related to the operation
of a marijuana-distribution network centered in Kansas. He
was sentenced to 27 months in prison and 10 years of
supervised release. The court also imposed a $16, 985, 250
criminal forfeiture money judgment, to be paid jointly and
severally by Mr. Pickel and his co-defendants.
Pickel raises six issues on appeal. He contends: (1) the
district court erroneously denied his motion to suppress
marijuana found in his truck after a traffic stop; (2) the
Government did not present sufficient evidence to establish a
single conspiracy and connect him to it; (3) the
Government's failure to establish a single conspiracy led
to a prejudicial variance between his superseding indictment
and the trial evidence; (4) the Government did not present
sufficient evidence to establish that he used a communication
facility to facilitate a drug trafficking conviction; (5) his
10-year term of supervised release exceeds the statutory
maximum set forth in 21 U.S.C. § 841(b)(1)(D); and (6)
the district court violated 21 U.S.C. § 853(a) when it
imposed joint and several forfeiture liability on him for the
value of marijuana attributable to the whole conspiracy.
jurisdiction under 28 U.S.C. § 1291, we affirm Mr.
Pickel's convictions and term of supervised release but
reverse the forfeiture judgment and remand for resentencing
regarding Mr. Pickel's forfeiture liability.
Factual History 
Mr. Pickel participated in a large drug distribution network
that obtained marijuana from California and distributed it in
Kansas. One member of the network typically would drive or
fly to California from Kansas, buy the marijuana, package it,
store it in a warehouse, and ship or drive it to Kansas.
United States v. Dahda (Los Dahda), 853
F.3d 1101, 1106 (10th Cir. 2017).
Drug Distribution Network
network began operating in 2006 when Chad Bauman, Peter Park,
and Wayne Swift started working together to distribute
marijuana in Kansas. In late 2008, they purchased high-grade
marijuana from Stephen Rector and, in 2009, from Phillip
Alarcon in California. They soon began working with brothers
Los and Roosevelt Dahda, and others. The network operated for
roughly seven years, but the participants and their roles
Law Enforcement's Investigation
2011, Kansas law enforcement began investigating the drug
network and conducted controlled marijuana purchases from Los
Dahda. In January 2012, officers obtained wiretap
authorizations for two of Los Dahda's phones, and other
Mr. Pickel's Involvement
before May 2011, Mr. Pickel began helping the Dahdas with
drug-related tasks. Law enforcement learned about Mr. Pickel
through Los Dahda's intercepted phone calls, which
contained conversations between the two.
calls revealed Los Dahda had helped Mr. Pickel relocate from
Kansas to California and funded Mr. Pickel in starting a
marijuana-grow operation in his home. At Los Dahda's
request, other conspirators helped Mr. Pickel by providing
growing advice. While in California, Mr. Pickel also
assisted the network by packaging the Dahdas' marijuana
for shipment to Kansas.
January 2012, Roosevelt Dahda and another co-conspirator
drove Los Dahda's pickup truck from Kansas to California.
Based on intercepted calls and physical surveillance, law
enforcement believed an auxiliary fuel tank attached to the
truck was filled with cash. Intercepted calls also revealed
that, upon arriving in California, Roosevelt Dahda planned to
stay with Mr. Pickel at his residence.
enforcement also conducted physical surveillance of the
California operations, including surveillance of Mr. Pickel.
They observed him pick up Los Dahda at the airport and host
him at his residence. They also saw Mr. Pickel go to Mr.
Alarcon's residence at least twice-once carrying a duffel
bag-and stay for only a few minutes.
Auxiliary Fuel Tanks
end of January 2012, law enforcement had information that the
drug distribution network used modified auxiliary fuel tanks
in their pickup truck beds to hide and transport drugs and
cash. Physical surveillance revealed auxiliary tanks in the
pickup trucks owned by Los Dahda, Mr. Bauman, and Mr. Pickel.
Law enforcement also intercepted calls between Roosevelt and
Los Dahda regarding how to "pop the top" of the
auxiliary fuel tanks. On March 26, 2012, the Utah Highway
Patrol stopped a co-conspirator, Mr. Rector, in Utah driving
a pickup truck and found 40 pounds of marijuana in his
auxiliary fuel tank.
Search of Mr. Pickel's Truck
April 2012, Los Dahda arranged for a load of marijuana to be
sent to Kansas in Mr. Pickel's truck. Intercepted calls
between Los and Roosevelt Dahda showed Mr. Pickel would be
driving from California to Kansas to deliver the marijuana.
April 24, 2012, another intercepted call revealed that a
Kansas customer, Dominic Mussat, had requested marijuana from
Roosevelt Dahda. Mr. Dahda told Mr. Pickel about the
customer's order and Mr. Pickel responded that he could
change direction to deliver Mr. Mussat's order if needed.
April 25, 2012, having tracked Mr. Pickel's location
using the GPS on his cell phone, Kansas officers followed Mr.
Pickel's truck, which had an auxiliary fuel tank, on
Interstate 80 for at least three hours.
began to get dark, Kansas officers became worried they would
lose sight of the vehicle and asked the Nebraska Highway
Patrol to stop Mr. Pickel based on independent suspicion to
avoid revealing the ongoing drug investigation. Nebraska
Highway Patrol Trooper Kurt Frazey observed Mr. Pickel commit
a traffic violation and also noticed an equipment violation.
He then instructed Mr. Pickel to pull over. Upon approaching
Mr. Pickel's truck, Trooper Frazey saw an auxiliary fuel
tank in his truck bed and discovered that Mr. Pickel was
traveling with his then-girlfriend and their young son. Mr.
Pickel lied about his arrest history and stated travel plans
that were inconsistent with those provided by his girlfriend.
After Trooper Frazey issued a warning for the traffic and
equipment violations, Mr. Pickel agreed to answer additional
questions. When Trooper Frazey mentioned that Interstate 80
was known as a route for drug trafficking, he noted that Mr.
Pickel became visibly nervous. Trooper Frazey requested
consent to search the truck, but Mr. Pickel refused. By then,
Nebraska Highway Patrol Trooper Gordon Downing had arrived on
scene. Trooper Downing deployed his dog to sniff around the
truck and the dog alerted to the presence of drugs. In
addition to a small amount of personal marijuana found in the
truck, a search of Mr. Pickel's auxiliary fuel tank
recovered approximately 37 pounds of marijuana.
intercepted the next day confirmed that the marijuana found
in Mr. Pickel's truck belonged to the Dahdas. The
brothers expressed disappointment at having lost Mr.
Pickel's load and discussed that they would try to avoid
further detection by "kick[ing] back and
chill[ing]" and "run[ning] like conservative
Search of Mr. Pickel's Residence
13, 2012, officers executed a search warrant at Mr.
Pickel's California residence and found approximately 200
Mr. Pickel's Motion to Suppress
Pickel filed a pretrial motion to suppress the marijuana
found during the Nebraska traffic stop. The magistrate judge
recommended denying the motion, finding no Fourth Amendment
violation because Trooper Frazey had reasonable suspicion to
stop the vehicle and probable cause to search it. He found
that Trooper Frazey had reasonable suspicion to stop Mr.
Pickel based on an equipment violation under Neb. Rev. Stat.
§ 60-6283,  that the encounter became consensual when
Mr. Pickel agreed to answer additional questions, and that
Trooper Frazey developed probable cause to search the vehicle
based on responses to his questions and the police dog's
alert. Alternatively, the magistrate found that Trooper
Frazey had probable cause to stop Mr. Pickel and search the
truck based on the collective knowledge doctrine because
investigating officers had probable cause that the truck was
magistrate judge also recommended denying Mr. Pickel's
request to suppress the evidence seized from the search of
his residence, holding the warrant was based on probable
cause and any defects were relied upon in good faith.
district court adopted the magistrate judge's report and
recommendation and denied Mr. Pickel's motion to
Mr. Pickel was tried with Los and Roosevelt Dahda and
. Count 1: Conspiring to (1) manufacture and
possess with intent to distribute 1, 000 kilograms or more of
marijuana; and (2) maintain a drug-involved premises in
Kansas, Missouri, and California, all in or about and between
January 2005 and July 30, 2012, in violation of 21 U.S.C.
§ 846, 856, and 841(a)(1).
. Count 70: Using a cellular telephone on
April 24, 2012, to facilitate a drug trafficking offense, the
drug conspiracy, in violation of 21 U.S.C. §§
district court sentenced Mr. Pickel to 27 months in prison on
each of Counts 1 and 70, to run concurrently. It also
sentenced him to 10 years of supervised release on Count 1
and one year of supervised release on Count 70, to run
concurrently. The court imposed a $16, 985, 250 forfeiture
money judgment, to be paid jointly and severally by Mr.
Pickel and his co-defendants.
Pickel raises six issues on appeal. We affirm his convictions
and term of supervised release but reverse the forfeiture
judgment and remand for resentencing regarding Mr.
Pickel's forfeiture liability.
Denial of Motion to Suppress
Pickel argues the district court erred in denying his motion
to suppress evidence obtained from his truck during his April
25, 2012 Nebraska traffic stop. We affirm the district
court's decision based on the collective knowledge