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.
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.
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