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United States v. Pickel

United States Court of Appeals, Tenth Circuit

July 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JUSTIN CHERIF PICKEL, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 2:12-CR-20083-KHV-4)

          James E. Brady (Henri J. Watson, on the briefs), Watson & Dameron, Kansas City, Missouri, appearing for Appellant.

          Carrie 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.

          Before TYMKOVICH, Chief Judge, MATHESON, and MORITZ, Circuit Judges.

          MATHESON, Circuit Judge.

         Justin 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.

         Mr. 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.

         Exercising 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.

          I. BACKGROUND

         A. Factual History [1]

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).

         1. Drug Distribution Network

         The 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 varied.

         2. Law Enforcement's Investigation

         In late 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 participants' phones.

         3. Mr. Pickel's Involvement

         Sometime 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.

         The 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.[2] While in California, Mr. Pickel also assisted the network by packaging the Dahdas' marijuana for shipment to Kansas.

         In late 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.

         Law 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.

         4. Auxiliary Fuel Tanks

         By the 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.

         5. Search of Mr. Pickel's Truck

         In 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.

         On 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.

         On 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.

         When it 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.

         Calls 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 status."

         6. Search of Mr. Pickel's Residence

         On June 13, 2012, officers executed a search warrant at Mr. Pickel's California residence and found approximately 200 marijuana plants.

         B. Procedural History

         1. Mr. Pickel's Motion to Suppress

         Mr. 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, [3] 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 transporting marijuana.

         The 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.

         The district court adopted the magistrate judge's report and recommendation and denied Mr. Pickel's motion to suppress.

         2. Trial

Mr. Pickel was tried with Los and Roosevelt Dahda and convicted of:
. 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. §§ 843(b).

         3. Sentencing

         The 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.

         II DISCUSSION

         Mr. 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.

          A. Denial of Motion to Suppress

         Mr. 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 doctrine.

         1. Legal Background

         a. Stand ...


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