Court reversed forfeiture order, but defendant loses other challenges to conviction and sentence

United States v. Pickel, 2017 WL 3028502 (July 18, 2017) (KS) (published): Perceptive readers might remember the update from April 4, 2017 in which we reported on the brothers Dahda. Unfortunately for Pickel, he was convicted of being part of the brothers’ conspiracy and like them, his convictions are affirmed by the circuit.

Pickel presented four challenges to his convictions and two regarding his sentence. He argued: (1) the district court incorrectly denied his motion to suppress marijuana found in his truck after a traffic stop; (2) the government’s evidence did not establish a single conspiracy or that he was connected to it; (3) the government’s failure to establish a single conspiracy caused a prejudicial variance between the superseding indictment and the trial evidence; (4) the government did not prove that he used a communication facility to facilitate a drug trafficking crime; (5) the 10-year term of supervised release exceeded 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. Pickel was successful only in setting aside the forfeiture order.

Pickel’s issues are reviewed here in order.

1. Law enforcement had probable cause to search Pickel’s truck under the collective knowledge doctrine: Collectively, the panel said, law enforcement had probable cause to stop Pickel in his truck as he was driving on the highway. Officials had developed probable cause from wiretapping various conspirators’ phones. They knew other conspirators had communicated with Pickel and that he had been assigned to bring marijuana from California to Kansas. Earlier Utah police had ‘randomly’ stopped and searched another conspirator and found marijuana hidden inside his truck’s auxiliary fuel tank. Together this information gave the officers cause to search the auxiliary fuel tank in Pickel’s truck. It did not matter then that Nebraska state troopers used a pretext to stop him in order to help other officials from losing him in the dark. (Did you know that Nebraska requires all vehicles to have “fenders, covers, or devices, including flaps or splash aprons, unless the body of the vehicle affords adequate protection to effectively minimize the spray or splash of water or mud to the rear of the motor vehicle or semitrailer”?).

2. The evidence proved a single conspiracy to which Pickel was connected: Pickel said he was outside the greater conspiracy which intended to distribute over 1000 kilos of marijuana. His involvement was only to grow marijuana inside his home. The panel pointed out the evidence showed that on behalf of the Dahda brothers, he collected payments, directed transactions and packaged marijuana for transport. This evidence demonstrated Pickel knew the scope and objective of the conspiracy and was an integral part of it.

3. There was no variance: since the evidence showed he participated in the conspiracy, there was no variance between the conspiracy charge and the evidence at trial.

4. The evidence was sufficient to prove Pickel used a phone to further a drug trafficking crime: Pickel argued the one intercepted phone call between him and R. Dahda was inadequate to sustain the conviction. In that call the two discussed a possible delivery of 5 lbs. of marijuana. The panel noted that completion of the specific transaction underlying the call is not an element of the offense. The issue for the jury is whether the call facilitated the conspiracy. Here, the call facilitated the conspiracy because the men discussed distributing marijuana for profit.

5. The supervised release term did not exceed the statutory maximum: 21 U.S.C. § 841(b)(1)(D), requires a two year minimum supervised release term but imposes no statutory maximum. Therefore, the ten year term the court imposed was not improper.

6. The district court incorrectly made Pickel jointly and severally liable for a $16 million forfeiture: After the Supreme Court’s decision in Honeycutt v. United States, forfeiture is limited to property Pickel actually acquired as a result of the offense. The panel reversed the forfeiture order and remanded for resentencing because the district court did not address the amount of tainted proceeds Pickel received.

"High-Risk" Procedures at Traffic Stop were Warranted Because of Gun Info

U.S. v. Windom, 2017 WL 3124047 (7/24/17)(CO)(published) - The Tenth affirms the denial of Mr. Windom's suppression motion, rejecting his claim that officers unreasonably used "high-risk" traffic stop procedures to investigate the "completed misdemeanor" of flashing a gun in public. After receiving a report from a bar employee that a man--who turned out to be Mr. Windom--flashed a gun at the bar and claimed to be a Crips member, officers stopped a car matching the description they were given. Mr. Windom argued that while officers had reasonable suspicion for the stop, the heightened degree of force they used converted what would have been an investigative stop into a de facto arrest requiring probable cause. The Tenth concludes that it was reasonable for officers to draw their weapons and order the car occupants to exit the car and get face-down on the ground with legs crossed because the available information suggested Mr. Windom was armed and dangerous and officers needed to take precautionary measures to protect their personal safety. Consequently, the seizure was lawful and Mr. Windom's felon in possession of a firearm conviction is affirmed.

Self-incriminating Statements Held to be "Spontaneous"

U.S. v. Yepa, 2017 WL 3014352 (7/17/17) (NM) (Published) - The 10th rejects arguments that Mr. Yepa's self-incriminating statements during a search of his person pursuant to a warrant resulted from interrogation and upholds the district court's ruling that they were spontaneous. Although officers asked a number of questions that elicited statements from Mr. Yepa, the court thinks these were just neutral follow-up questions intended to clarify spontaneous volunteered statements. The court says reasonable officers would not think their responses would be likely to result in incriminating statements despite Mr. Yepa's fatigue, intoxication, and high level of emotional stress. The court concludes that the officers' queries "did nothing to draw Defendant out" regarding the murder they were investigating.

Sentence reduction for accepting responsibility does not require more than pleading guilty and truthfully admitting offense conduct

US v. Spaulding, 2017 WL 2978235 (unpublished) (10th Cir. July 12, 2017): Mr. Spaulding pled guilty to distribution of meth and conspiracy to distribute meth. Acting as a courier, he had sold two ounces of meth to an undercover federal agent. He pled guilty and agreed to cooperate. The government joined Mr. Spaulding in requesting a sentencing reduction for acceptance and also promised to move for a departure based on substantial assistance. The government recommended a 77-96 month sentence. The district court imposed a 137-month sentence. It rejected the acceptance reduction because it believed the reduction required more than pleading guilty and saving the government the effort of preparing for trial; rather, the defendant needed to also do something like take steps "to deal with the victims" or combat defendant's drug addiction. It granted the motion for a reduction based on substantial assistance, but rejected the government's recommended sentence without explanation. First, the Tenth Circuit agrees with Mr. Spaulding and the government that the district court erred in its interpretation of USSG § 3E1.1. On the contrary, pleading guilty and truthfully admitting the offense conduct is "significant evidence of acceptance of responsibility," USSG § 3E1.1 cmt. n.3, and absent contrary evidence, is generally sufficient. Additionally, the court committed procedural error when it granted the substantial departure motion without adequately explaining the chosen sentence. Remand for resentencing is granted. However, Mr. Spaulding is denied his request that his case be assigned to a new district judge because he could not point to anything in the record to demonstrate personal bias against him. (I hope that Spaulding is not the defendant's real name since this decision mentions his cooperation.)