United States v. Pickel , 863 F.3d 1240 ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 18, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3041
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.
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I. BACKGROUND
A. Factual History1
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,
1
As described below, the standards of review for the four fact-intensive issues
Mr. Pickel raises on appeal require that we view evidence in the light most favorable
to the government. Portions of this summary are drawn from United States v. Los
Dahda (Los Dahda), 853 F.3d 1101 (10th Cir. 2017), and United States v. Roosevelt
Dahda (Roosevelt Dahda), 852 F.3d 1282 (10th Cir. 2017), the appeals of Mr.
Pickel’s two co-defendants at trial.
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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
2
See also Los Dahda, 853 F.3d at 1108 (“Los funded a grow operation in
California that was run by a co-defendant, Mr. Justin Pickel. Co-defendants Park and
Paiva helped with the grow operation. Approximately 200 marijuana plants were
later found at Mr. Pickel’s residence.” (citations omitted)).
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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.
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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.”
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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.
3
The statute provides:
Every new motor vehicle or semitrailer purchased after January 1, 1956,
and operated on any highway in this state shall be equipped with
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.
Neb. Rev. Stat. § 60-6283.
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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.
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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. Standard of review
“When reviewing a motion to suppress, we view the evidence in the light most
favorable to the government, accept the district court’s findings of fact unless they
are clearly erroneous, and review de novo the ultimate question of reasonableness
under the Fourth Amendment.” United States v. Pettit, 785 F.3d 1374, 1378-79 (10th
Cir. 2015). In doing so, “[w]e defer to all reasonable inferences made by law
enforcement officers in light of their knowledge and professional experience
distinguishing between innocent and suspicious actions.” Id. at 1379.
b. Probable cause, traffic stops, and vehicle searches
Under the Fourth Amendment,4 law enforcement officers may stop and search
a vehicle without a warrant if they have probable cause to believe it is carrying
contraband or other evidence that is subject to seizure under the law. United States v.
Stephenson, 452 F.3d 1173, 1177 (10th Cir. 2006) (“Probable cause to search a
vehicle exists if, under the totality of the circumstances, a fair probability exists that
4
Fourth Amendment protection applies to state law enforcement. See Mapp v.
Ohio, 367 U.S. 643, 655-56 (1961) (incorporating the Fourth Amendment’s
provisions against the states through the Fourteenth Amendment).
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the vehicle contains contraband or other evidence which is subject to seizure under
the law.” (quotations omitted)); see also Florida v. Harris, 568 U.S. 237, 243 (2013)
(“A police officer has probable cause to conduct a search when the facts available to
him would warrant a person of reasonable caution in the belief that contraband or
evidence of a crime is present.” (brackets and quotations omitted)); United States v.
Chavez, 534 F.3d 1338, 1343 (10th Cir. 2008) (“[P]olice may stop a car if they have
probable cause . . . to believe the car is carrying contraband.”). An officer with
probable cause may “search the entire vehicle, including the trunk and all containers
therein that might contain contraband.” Chavez, 534 F.3d at 1345 (quotations
omitted).
c. Collective knowledge doctrine
Under the collective knowledge doctrine, the officer who makes a stop or
conducts a search need not have reasonable suspicion or probable cause. Instead, the
reasonable suspicion or probable cause of one officer can be imputed to the acting
officer. See United States v. Whitley, 680 F.3d 1227, 1234 (10th Cir. 2012); Chavez,
534 F.3d at 1345-47 (citing United States v. Zamudio-Carrillo, 499 F.3d 1206 (10th
Cir. 2007) and our sibling circuits to hold that law enforcement’s collective probable
cause to search a vehicle extended to the executing officer and permitted a
warrantless search of locations in the vehicle that might contain the contraband). In
other words, “[w]here one officer knows facts constituting reasonable suspicion or
probable cause (sufficient to justify action under an exception to the warrant
requirement), and he communicates an appropriate order or request, another officer
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may conduct a warrantless stop, search, or arrest without violating the Fourth
Amendment.” United States v. Ramirez, 473 F.3d 1026, 1037 (9th Cir. 2007); see
Chavez, 534 F.3d at 1347 (quoting Ramirez).
The collective knowledge doctrine can be horizontal or vertical. “Under the
vertical collective knowledge doctrine, an arrest or stop is justified when an officer
having probable cause or reasonable suspicion instructs another officer to act, even
without communicating all of the information necessary to justify the action.”
Whitley, 680 F.3d at 1234.5 Thus, we consider only whether the officer requesting
the stop had probable cause, not whether the officer conducting the search
independently had probable cause. See id.
2. Analysis
When Kansas law enforcement requested the Nebraska Highway Patrol to stop
Mr. Pickel, Kansas law enforcement had probable cause to stop and search his truck.
Its request imputed that probable cause to Nebraska Highway Patrol under the
collective knowledge doctrine. Nebraska Highway Patrol Trooper Frazey’s search of
the truck was therefore permissible under the Fourth Amendment. The following
testimony from the suppression hearing described the investigative team’s probable
cause basis:
5
“Under the horizontal collective knowledge doctrine, a number of individual
officers have pieces of the probable cause or reasonable suspicion puzzle, but no
single officer has sufficient information to satisfy the necessary standard.” United
States v. Whitley, 680 F.3d 1227, 1234 n.3 (10th Cir. 2012). The horizontal
collective knowledge doctrine is not at issue in this case.
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 Intercepted calls showed Mr. Pickel was communicating with Los and
Roosevelt, and other members of the drug distribution network. ROA,
Vol. II at 3134.
 Intercepted calls showed Los Dahda sent Mr. Pickel to California to set
up a residence and high-grade marijuana grow operation funded by Los
Dahda. Id. at 3134-36; see also Los Dahda, 853 F.3d at 1108.
 Intercepted calls showed Mr. Pickel hosted Roosevelt Dahda at his
California residence. ROA, Vol. II at 3135-36.
 In “initial investigations,” Kansas law enforcement received information
and confirmed that Mr. Bauman had a false compartment in his pickup
truck. Id. at 3137.
 Physical surveillance by officers showed auxiliary fuel tanks in the back
of Los Dahda’s vehicle and Mr. Pickel’s vehicle. Id. at 3137-38.
Intercepted phone conversations led Kansas law enforcement to have
“probable cause to believe the tanks had false compartments in them
and they were used for narcotics distribution.” Id. at 3138-39.
 On March 26, 2012, Utah Highway Patrol randomly stopped Mr. Rector,
an alleged co-conspirator in the drug distribution network, and
discovered he had a false compartment in his tank with high-grade
marijuana inside. Id. at 3142. Kansas Detective McAtee testified this
discovery confirmed law enforcement’s suspicions that the auxiliary
tanks in trucks owned by other co-conspirators were modified to contain
hidden compartments. Id. at 3146, 3174.
 On April 17, 2012, intercepted calls showed that Los and Roosevelt
Dahda discussed sending marijuana from California to Kansas through
Mr. Pickel. Id. at 3149, 3176.
 Intercepted calls identified Mr. Mussat as a customer. One of the calls,
on April 24, 2012, revealed that he had requested five pounds of
marijuana. Roosevelt Dahda responded that his “guy’s en route” and
called Mr. Pickel to convey the request. Mr. Pickel agreed he could
change direction and “shoot south.” Id. at 3149-52.
 Kansas law enforcement conducted GPS tracking of Mr. Pickel’s
location through his cell phone, which showed he left California on
April 23, 2012 and was in Cheyenne, Wyoming on April 24, 2012. Id.
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at 3150-51.
 On April 25, 2012, Kansas law enforcement observed Mr. Pickel’s
vehicle on Interstate 80, confirmed he had an auxiliary fuel tank on the
back of the pickup truck, and followed his vehicle for at least three
hours. Id. at 3133, 3153-55.
 Kansas law enforcement, concerned they would lose the vehicle because
of oncoming darkness and traffic, called Nebraska Highway Patrol to
arrange a vehicle stop based on independent reasonable suspicion. Id. at
3156-57. Kansas Detective McAtee and Kansas Sergeant McLaren told
Nebraska Highway Patrol Sergeant Salmen that Mr. Pickel was being
investigated for narcotics, that he was driving from California, and that
officers believed there was high-grade marijuana in his vehicle. Id. at
3157-58.
 Sergeant Salmen conveyed Detective McAtee and Sergeant McLaren’s
request to Nebraska Highway Patrol Trooper Frazey and explained there
was a “high probability that [the truck] was transporting illegal
contraband.” Id. at 3221-22.
 Trooper Frazey pulled Mr. Pickel over for a traffic violation, and
because the truck had “overwidth tires” without splash guards, in
violation of Nebraska law. Id. at 3224-26. Trooper Frazey saw that the
truck bed contained an auxiliary fuel tank. Id. at 3227. He issued Mr.
Pickel a warning for the traffic and equipment violations. Id. at 3232-
33. Mr. Pickel agreed to answer more questions, but when conversation
turned to drugs, his level of nervousness elevated. Id. at 3238. Mr.
Pickel declined Trooper Frazey’s request to search the truck. Id. at
3233. Trooper Downing deployed his dog, and the dog alerted to the
presence of drugs. Id. at 3235-36. Trooper Frazey found personal
marijuana in the truck, towed the truck from the interstate, searched it,
and found approximately 37 pounds of high-grade marijuana in the
auxiliary fuel tank. Id. at 3237, 3242-46.
Viewing these facts in the light most favorable to the Government, Kansas law
enforcement, including Detective McAtee and Sergeant McLaren, had probable cause
to believe Mr. Pickel’s truck was carrying high-grade marijuana. From the
intercepted calls, physical surveillance, and corroboration provided by Mr. Rector’s
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traffic stop, Kansas law enforcement had probable cause to stop and search Mr.
Pickel’s truck because, under the totality of the circumstances, there was a fair
probability that the car contained contraband.
Based on that probable cause, Detective McAtee and Sergeant McLaren asked
Nebraska Highway Patrol to stop and search Mr. Pickel’s vehicle, explaining there
was a “high probability that it was transporting illegal contraband.” Id. at 3221-22.
Sergeant Salmen directed Trooper Frazey to execute that order. Under the collective
knowledge doctrine, Trooper Frazey “acted on the strength of [Kansas law
enforcement’s] probable cause when he stopped and searched [Mr. Pickel’s] truck.”
Chavez, 534 F.3d at 1348. As in Chavez, Trooper Frazey “merely supplied a cover
story [(the traffic violations)] that would mask the basis for his alternative probable
cause[,]” a valid law enforcement tactic calculated to safeguard the investigation’s
integrity. Id. Trooper Frazey could thus search Mr. Pickel’s entire vehicle, including
the auxiliary fuel tank, without violating the Fourth Amendment. Id. at 1345 (“Once
the officer’s suspicions rise to the level of probable cause, they are empowered to
search the entire vehicle, including the trunk and all containers therein that might
contain contraband.” (quotations omitted)).
B. Sufficiency of Conspiracy Evidence (Count 1)
Mr. Pickel argues there was insufficient evidence at trial to support the jury’s
conspiracy conviction. We disagree.
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1. Legal Background
a. Sufficiency of the evidence
“To review sufficiency of the evidence, we engage in de novo review,
considering the evidence in the light most favorable to the government to determine
whether any rational jury could have found guilt beyond a reasonable doubt.” Los
Dahda, 853 F.3d at 1106; see also United States v. Hutchison, 573 F.3d 1011, 1033
(10th Cir. 2009). “[W]e consider all of the evidence, direct and circumstantial, along
with reasonable inferences[,]” but “we do not weigh the evidence or consider the
relative credibility of witnesses.” Los Dahda, 853 F.3d at 1106; see also United
States v. Bowen, 527 F.3d 1065, 1076 (10th Cir. 2008). Thus, our review of the
evidence is “highly deferential.” Bowen, 527 F.3d at 1076 (quotations omitted).
“[W]e may reverse only if no rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quotations omitted)
b. Elements of the crime
To prove a conspiracy, the government must show that: “(1) two or more
persons agreed to violate the law, (2) [the defendant] knew the essential objectives of
the conspiracy, (3) [the defendant] knowingly and voluntarily participated in the
conspiracy, and (4) the alleged co-conspirators were interdependent.” Los Dahda,
853 F.3d at 1107; see also United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir.
2009). Proof of these elements tends to overlap. Mr. Pickel’s challenges concern the
third and fourth elements.
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Regarding participation, the third element, the government must prove “that
the defendant had knowledge of the conspiracy and voluntarily participated therein.”
United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992). Proving participation
therefore requires both (1) knowledge of the conspiracy, which overlaps with the
second conspiracy element, and (2) voluntary participation in that conspiracy.
To satisfy the first part of proving participation, the evidence must “show that
the defendant shared a common purpose or design with his alleged coconspirators.”
United States v. Hamilton, 587 F.3d 1199, 1206 (10th Cir. 2009) (quotations
omitted). “[W]e have recognized that because a criminal conspiracy by its very
nature is usually shrouded in a further conspiracy of silence, the common plan or
purpose must often be, and may legitimately be, proved by circumstantial evidence.”
Id. (quotations omitted). A conspirator “need not know of the existence or identity of
the other members of the conspiracy or the full extent of the conspiracy, but he or she
must have a “general awareness of both the scope and the objective of the enterprise
to be regarded as a coconspirator.” Evans, 970 F.2d at 669-70 (citations and
quotations omitted). Thus, merely associating with known criminal conspirators or
purchasing drugs for personal use is insufficient to prove participation in a
conspiracy; rather, the defendant’s participation must share a common purpose or
design with his co-conspirators. United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.
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1990); United States v. Dickey, 736 F.2d 571, 585 (10th Cir. 1984); see also United
States v. Rivera-Carrera, 386 F. App’x 812, 815 (10th Cir. 2010) (unpublished).6
To satisfy the second part of proving participation, the evidence need only
show that the defendant played a minor role in the conspiracy to make him a
co-conspirator. United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005); United
States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998) (“The defendant’s
participation in or connection to the conspiracy need only be slight, so long as
sufficient evidence exists to establish the defendant’s participation beyond a
reasonable doubt.”). The jury need not find that “the conspiracy could not have
functioned without [the defendant]; rather, it is sufficient that [the defendant] was an
operational link within it.” United States v. Cornelius, 696 F.3d 1307, 1318 (10th
Cir. 2012). As we explained in Los Dahda, “we have recognized the sufficiency of
evidence on a large drug conspiracy when various individuals perform assigned tasks
involving the transportation and sale of illegal drugs.” 853 F.3d at 1110; see also
United States v. Roosevelt Dahda (Roosevelt Dahda), 852 F.3d 1282, 1289 (10th Cir.
2017) (citing United States v. Anaya, 727 F.3d 1043, 1051 (10th Cir. 2013), and
explaining that a defendant may be found to participate in a drug conspiracy merely
by installing hidden compartments in vehicles).
6
Although not precedential, we find the reasoning of this unpublished case
instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
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Regarding interdependence, the fourth conspiracy element, the evidence must
show the “coconspirators intend[ed] to act together for their shared mutual benefit
within the scope of the conspiracy charged.” Caldwell, 589 F.3d at 1329 (brackets
and quotations omitted); see also United States v. Acosta-Gallardo, 656 F.3d 1109,
1124 (10th Cir. 2011). It may be shown when a defendant’s activities “facilitated the
endeavors of other alleged co-conspirators or facilitated the venture as a whole.”
Acosta-Gallardo, 656 F.3d at 1124 (quotations omitted). “[O]f principal concern is
whether the activities of alleged co-conspirators in one aspect of the charged scheme
were necessary or advantageous to the success of the activities of co-conspirators in
another aspect of the charged scheme, or the success of the venture as a whole.”
United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990), overruled on other
grounds by United States v. Gaudin, 515 U.S. 506 (1995); United States v. Carnagie,
533 F.3d 1231, 1240 (10th Cir. 2008) (quoting Daily). When reviewing a jury’s
determination that a single conspiracy existed, interdependence among co-
conspirators is “a focal point of the analysis.” Caldwell, 589 F.3d at 1329
(quotations omitted). Interdependence can be established by circumstantial evidence
alone, and “a single act can be sufficient to demonstrate interdependence.” Id.
2. Analysis
Mr. Pickel argues the evidence at trial was insufficient to support his
conspiracy conviction for three reasons. Each of his arguments fails.
First, Mr. Pickel argues the evidence showed there were multiple conspiracies
between many defendants, rather than a single common purpose or objective among
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the co-conspirators. But we concluded in Los Dahda and Roosevelt Dahda, the
appeals of his two co-defendants, that “the evidence [at trial] was sufficient to permit
the finding of a single conspiracy of 1,000 kilograms or more of marijuana.” 853
F.3d at 1107; 852 F.3d at 1288. 7 Applying the same reasoning underlying that
conclusion here, we reject Mr. Pickel’s first argument.
Second, Mr. Pickel argues the evidence was insufficient to establish his
participation in the conspiracy. He contends the evidence established that his
involvement was only to grow indoor marijuana in his home, financed by the Dahdas,
but that he did not share the objective of the conspiracy to possess with intent to
distribute over 1,000 kilograms of marijuana. He argues there was no evidence “that
he bought or sold any marijuana except from Jeffrey Paiva, and then only for his
personal use,”8 or that he knew most of the other co-conspirators. Aplt. Br. at 20-21.
But a rational jury could find that evidence at trial showed the following:
7
The superseding indictment also alleged conspiracy to distribute and possess
with intent to distribute five kilograms or more of cocaine, but this charge was never
submitted to the jury, and Mr. Pickel was not convicted of it. ROA Vol. 1 at 583
(Mr. Pickel stated in his Objections to the PSR that “the cocaine allegation in Count
1 of the superseding indictment was abandoned by the government with regard to Mr.
Pickel and never submitted to the jury.”); see also Los Dahda, 853 F.3d at 1110
(“Though count one charged a conspiracy involving cocaine, this part of the
conspiracy was not submitted to the jury.”).
8
Even if true, Mr. Pickel’s argument that he did not buy or sell marijuana is
inapposite because—as explained above—co-conspirators in a drug conspiracy may
perform different roles involving the transportation and sale of the drugs. See Los
Dahda, 853 F.3d at 1110; see also Roosevelt Dahda, 852 F.3d at 1289 (citing United
States v. Anaya, 727 F.3d 1043 (10th Cir. 2013)).
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1. Mr. Pickel assisted the drug distribution network with marijuana-related
tasks, including collecting payments, directing transactions, and packaging
for transport.9
2. He set up and maintained an indoor marijuana grow operation in
California.10 Los and Roosevelt Dahda financed the operation, and Mr.
Pickel received advice and help from two other co-conspirators at the
direction of Los Dahda.11
9
See, e.g., ROA, Vol. I at 1106 (Detective McAtee testified that he believed
Government’s Exhibit 762, a phone call recording, showed “Justin Pickel was
directing David Essman to meet an individual in Lawrence to facilitate a drug deal”
and that “Justin Pickel was going to pay Sadie Brown . . . a commission for her
assistance arranging or facilitating the narcotics trafficking.”); id., Vol. II at 752
(Samuel Villeareal testified that Mr. Pickel came to “pick[] up money” from his
residence in Kansas.); id. at 2159-2161 (Phillip Alarcon testified that “[a]ny time
they were needing marijuana packaged, Pickel would be involved in it,” and that Mr.
Pickel was “involved in that packaging process” at Mr. Alarcon’s house in
California.); id. at 2190-91 (Mr. Alarcon testified that Mr. Pickel “brought packaging
supplies to [his] house [in California] on a couple occasions.”); id. at 2288-92 (Mr.
Alarcon testified that Mr. Pickel “came to [his] house sometimes and, you know,
packaged marijuana, things of that nature,” that he saw Mr. Pickel packing marijuana
at “the warehouse maybe once or twice . . . . I can’t give you a date but he was there.
He assisted, he helped out,” that he saw Mr. Pickel at the warehouse “vacuum sealing
boxes, packaging, doing the normal procedure they do to package the marijuana,”
and that Mr. Pickel brought “vacuum sealed bags, . . . [a] vacuum sealer, [and] tape”
in a duffel bag to store at Alarcon’s home.); id., Vol. I at 1615 (Detective McAtee
testified that based on several intercepted calls “it’s reasonable to believe that Justin
Pickel directed David Essman to meet with Sadie Brown to obtain marijuana which
he had ordered from Sadie Brown which is ultimately distributed.”).
10
Id. at 2017-18 (Detective Randa testified that there was “evidence of an
active marijuana grow” at Mr. Pickel’s residence.).
11
Id., Vol. II at 649-50 (Mr. Paiva testified that he assisted Mr. Pickel in
starting up the process of a grow operation.); id. at 712 (Mr. Paiva testified that Los
Dahda “asked [him] to give [Mr. Pickel] some pointers [about marijuana growing].”);
id. at 2179-80 (Mr. Alarcon testified that he went to Mr. Pickel’s house “to help his
grow there” “[o]ut of friendship of Los Dahda trying to help him out.”); id. at 2322-
25 (Mr. Alarcon testified that Los Dahda “asked [him] to kind of guide Mr. Pickel on
how to start this grow operation” and that Los Dahda was paying for the grow
Continued . . .
- 20 -
3. He transported approximately 37 pounds of marijuana from California to
the Midwest at the Dahdas’ direction before law enforcement seized it.12
Like other members of the conspiracy, he used a false compartment in an
auxiliary fuel tank of his pickup truck.13
operation.); id., Vol. I at 1669-70 (Detective McAtee, summarizing calls, testified
that there were conversations with Justin Pickel informing Los Dahda about how he
was building the grow and which plants he was purchasing, showing Los Dahda was
aware of “what was going on with” Mr. Pickel’s grow operation.). See also Los
Dahda, 853 F.3d at 1108 (finding evidence that “Los funded a grow operation in
California that was run by a co-defendant, Mr. Justin Pickel” and that
“[a]pproximately 200 marijuana plants were later found at Mr. Pickel’s residence”);
Roosevelt Dahda, 852 F.3d at 1288 (finding evidence that “Roosevelt sent boxes
through the group’s shipping operation to Mr. Justin Pickel, who grew marijuana in
California. . . . Roosevelt also agreed to send money to Mr. Pickel.”).
12
ROA, Vol. I at 1232-33 (Detective McAtee testified that “marijuana [was]
found in the auxiliary fuel tank of Justin Pickel’s pickup” after his vehicle was
stopped in Nebraska.); id. at 2146 (Trooper Frazey testified that on the night of the
traffic stop Mr. Pickel’s truck had an “auxiliary fuel tank . . . in the back of the
pickup.”); id. at 2154 (Trooper Frazey testified that the “concealment compartment”
in Mr. Pickel’s truck contained a total of “35 packages weighing just over 37 pounds
. . . .”); id., Vol. II at 2201-02 (Mr. Alarcon testified that Mr. Pickel left California
with marijuana loaded in his vehicle, that Mr. Pickel was pulled over in Nebraska,
and that law enforcement “found marijuana in the hidden compartment.”). See also
Roosevelt Dahda, 852 F.3d at 1288-89 (finding evidence that “[t]he day after the
police seized approximately 37 pounds of marijuana from Mr. Pickel, Roosevelt and
Los [Dahda] discussed the fact that they had lost half of what they had worked for
and that they had to be cautious when bringing the rest of this back.” (brackets and
quotations omitted)).
13
ROA, Vol. II at 2133 (Mr. Alarcon testified that Chad Bauman had an
auxiliary fuel tank “with hidden compartments to store marijuana and cash” for
transport “to and from Kansas,” and the Dahdas had two trucks with those fuel
tanks.); id. at 2144 (Mr. Alarcon testified that “[w]e’d package [the marijuana] and
seal it and we’d ship either by tank at the smaller amounts but then we started
shipping in the crates.”); id. at 2167-68 (Mr. Alarcon testified that Los Dahda “didn’t
want to have to [stop using crates and] start driving [marijuana] in tanks . . . because
he could only drive half of what he was probably trying to ship in a tank and storage
tank and he didn’t want to do that.”); id. at 2457 (Mr. Bauman testified that similar
tanks were built for him, Los Dahda, Wayne Swift, and Mr. Pickel.); id. at 2460 (Mr.
Continued . . .
- 21 -
Viewing this evidence in the light most favorable to the Government, we
conclude that a rational trier of fact could find beyond a reasonable doubt that Mr.
Pickel knowingly and voluntarily participated in the conspiracy. See United States v.
Caro, 965 F.2d 1548, 1556 (10th Cir. 1992) (holding that a defendant’s delivery of
large quantities of drugs provides circumstantial evidence that he was a
co-conspirator and not merely a customer of the conspiracy); United States v. Horn,
946 F.2d 738, 743 (10th Cir. 1991) (holding that when a defendant agreed to bring in
customers and deliver drugs, the “defendant became part of the larger common plan
to distribute” cocaine and was thus a co-conspirator). Even if Mr. Pickel did not
know or interact with many of his co-conspirators, a reasonable jury could find from
the trial evidence that he knew the scope and objective of the conspiracy—to possess
and distribute marijuana for profit—and participated in that common plan or purpose
in various ways. See Evans, 970 F.2d at 669-70.
Third, Mr. Pickel argues there was insufficient evidence to establish that he
operated interdependently with the other co-conspirators. He contends his indoor
grow operation was not integral to the conspiracy and that he had difficulty growing
marijuana indoors. He also points out that only 37 kilograms of marijuana was
attributed to him at sentencing from the April 25, 2012 traffic stop and the June 13,
2012 search of his residence. But a rational jury could find that evidence at trial
showed the following:
Bauman testified that he and Wayne Swift would “drive money out to California” by
using “[o]ne of the trucks with the tank.”).
- 22 -
1. As described above, Mr. Pickel willingly participated in the conspiracy by
performing a variety of roles and expressed that other co-conspirators’
successes were advantageous to him.14
2. The Dadhas’ phone conversations the day after police seized marijuana
from Mr. Pickel’s truck showed that Mr. Pickel’s contributions
significantly affected the rest of the drug distribution network.15
14
See also id., Vol. I at 1149 (Detective McAtee characterized Government’s
Exhibit 795 as a conversation between Mr. Pickel and Los Dahda: “I believe the
conversation that Justin Pickel talked about that he wanted to be a productive part of
our business was indication of them working together.”); Suppl. ROA at Gov. Exh.
855 (Mr. Pickel told Roosevelt Dahda, “I can do what you need me to do. You know
what I mean? . . . [I]t’s whatever you want dog, you know what I mean, no bulls---
. . . . I’ll do whatever you want man . . . . [I]t’s not even my money it’s your
money but f--- you know what I mean the way s--- goes I probably need it more than
you do or use it more than you do or something, whatever you need to do dog . . . . I
could shoot south at that point and it would not be crazy out of the way . . . it’s out of
the way you know what I mean but f--- it really you know what I’m saying, whatever
you need done for real, no big s--- so just decide.”); ROA, Vol. I at 1215 (Detective
McAtee characterized Government’s Exhibit 855 as a conversation between Mr.
Pickel and Roosevelt Dahda: “Justin Pickel indicated that he . . . would be able to
change what he was doing . . . [to] take a different route and then drive down and
meet Domenic Mussat in regards to the possibility of providing five pounds of high-
grade marijuana to him.”).
15
Suppl. ROA at Gov. Exh. 860 (Los Dahda told Roosevelt Dahda about Mr.
Pickel’s seizure stating, “I don’t know sorry about last night . . . I don’t know we just
lost half of what we worked for so you know we’ll run like conservative status and
then like obviously we are not going to be able to bring the rest of this back so I just
going to try and get what I got for it here . . . . I mean I don’t know, think there is
going to be a way for me to figure out how to get it back. I am still trying but you
know I’m a little shy after what just happened.”); ROA, Vol. I at 1235 (Detective
McAtee characterized Government’s Exhibit 860 as a “guarded conversation in
regards to the auxiliary fuel tank, that type of compartment, they would not be able to
use it.”); id. at 1244-45 (Detective McAtee characterized Government’s Exhibits 863-
65, stating, “[t]here was indication that Roosevelt Dahda was trying to get money for
a situation [which he believed to] . . . relate back to the Justin Pickel situation” from
the traffic stop.).
- 23 -
The success of drug distribution networks often depends on different members
performing a variety of roles. Dickey, 736 F.2d at 582 (“Even the remote members of
the conspiracy [are] undeniably dependent on the success of each transaction to
ensure the continuing prosperity of the overall scheme. The success of each
transaction was essential to attain ultimate goal of profitability.”). Mr. Pickel’s
roles—collecting payment, directing transactions, packaging marijuana, transporting
marijuana, and growing marijuana—were material to the continuing success of the
conspiracy even if some were relatively minor. It is irrelevant that his grow
operation underperformed or that he did not participate in other acts of the
conspiracy. United States v. Yehling, 456 F.3d 1236, 1241 (10th Cir. 2006); United
States v. Bridgeman, 523 F.2d 1099, 1107-08 (D.C. Cir. 1975). Even if Mr. Pickel
had a minor role in the conspiracy compared to others, the evidence was sufficient
for a rational jury to conclude beyond a reasonable doubt that he played an
interdependent role. See Cornelius, 696 F.3d at 1318.
C. Variance in Conspiracy Evidence
Mr. Pickel argues there was a prejudicial variance between the single
conspiracy charged in Count One of the superseding indictment and the trial
evidence, which he contends established only multiple, smaller conspiracies.
“In the context of a conspiracy conviction, we treat a variance claim as a
challenge to the sufficiency of the evidence establishing that each defendant was a
member of the same conspiracy.” Los Dahda, 853 F.3d at 1111 (quoting United
- 24 -
States v. Gallegos, 784 F.3d 1356, 1362 (10th Cir. 2015)). Viewing the challenge in
this manner, our review is de novo. Id.
Because we found above that the trial evidence was sufficient for a rational
jury to conclude beyond a reasonable doubt that Mr. Pickel participated in a single
conspiracy—as charged in the indictment—Mr. Pickel’s variance claim fails. We
rejected the same variance challenge by both of Mr. Pickel’s co-defendants in Los
Dahda, 853 F.3d at 1111, and Roosevelt Dahda, 852 F.3d at 1290.
D. Sufficiency of Communication Device Evidence (Count 70)
Mr. Pickel argues there was insufficient evidence at trial to support the jury’s
conviction regarding his use of a communication device to facilitate a drug
trafficking felony. We disagree.
1. Legal Background
a. Sufficiency of the evidence16
As explained above, to review sufficiency of the evidence “we engage in de
novo review, considering the evidence in the light most favorable to the government
to determine whether any rational jury could have found guilt beyond a reasonable
doubt.” Los Dahda, 853 F.3d at 1106.
16
Mr. Pickel did not move for acquittal below on Count 70, which would
ordinarily result in plain error review. But we typically review the sufficiency claim
as if it had been raised below because the applicable standard is essentially the same
as plain error. United States v. Rufai, 732 F.3d 1175, 1189 (10th Cir. 2013); United
States v. Bowie, 892 F.2d 1494, 1496-97 (10th Cir. 1990). Moreover, because we
determine the evidence was sufficient to support Mr. Pickel’s conviction—resulting
in no error—the challenge would fail at step one of plain error review. See Rufai,
732 F.3d at 1189 (setting forth four steps of plain error review).
- 25 -
b. Elements of the crime
21 U.S.C. § 843(b) prohibits the knowing or intentional use of a phone to
facilitate a drug trafficking felony. It states, in relevant part:
It shall be unlawful for any person knowingly or
intentionally to use any communication facility in
committing or in causing or facilitating the commission of
any act or acts constituting a felony under any provision of
this subchapter or subchapter II of this chapter. Each
separate use of a communication facility shall be a separate
offense under this subsection. For purposes of this
subsection, the term “communication facility” means any
and all public and private instrumentalities used or useful
in the transmission of writing, signs, signals, pictures, or
sounds of all kinds and includes mail, telephone, wire,
radio, and all other means of communication.
Id.
To obtain a conviction under § 843(b), the government must prove the
defendant: (1) knowingly or intentionally (2) used a telephone or other
communications facility (3) to commit, cause or facilitate any act constituting a drug
felony. Acosta-Gallardo, 656 F.3d at 1121. “Thus, there are two conduct elements
that the government must prove: first that the defendant used a communication
facility, and second, that in doing so, the defendant committed, facilitated, or caused
to be committed a drug felony.” Id. To prove “facilitation,” the government must
show that “the use of the communication facility, a telephone in this case, made the
commission of the offense easier.” United States v. McIntyre, 836 F.2d 467, 473
(10th Cir. 1987).
- 26 -
We have held that “inchoate crimes such as attempt and conspiracy qualify as
drug felonies that may underlie a Section 843(b) offense.” Acosta-Gallardo, 656
F.3d at 1122.
2. Analysis
Mr. Pickel argues the evidence at trial was insufficient to support his
conviction on Count 70 for three reasons. Each argument fails.
First, Mr. Pickel argues the Government’s only evidence on this count was the
April 24, 2012 intercepted phone call between him and Roosevelt Dahda, and that
this was not enough to sustain his conviction. But evidence that Mr. Pickel used his
phone—even once—to facilitate the conspiracy was sufficient. Section 843(b) states
that “[e]ach separate use of a communication facility shall be a separate offense
under this subsection.” Count 70 in the superseding indictment is only for the date of
April 24, 2012.17 The evidence at trial showed the following:
 Mr. Pickel was driving a shipment of marijuana in his auxiliary fuel tank
from California toward the Midwest.18
17
Other individual phone calls were charged in separate counts.
18
ROA, Vol. I at 1229, 1232 (Detective McAtee testified that officers tracked
Mr. Pickel’s phone via GPS as it traveled on Interstate 80 from California and that
law enforcement believed he was “coming to the state of Kansas and based on the
calls between Roosevelt Dahda and Domenic Mussat and the earlier phone calls . . .
that there was high-grade marijuana in Justin Pickel’s vehicle and [] believed that it
would be hidden in the false compartment in the auxiliary fuel tank that he had in the
back of his pickup truck” and that after Mr. Pickel was stopped, marijuana was found
in the auxiliary fuel tank of his pickup.).
- 27 -
 Mr. Pickel and Roosevelt Dahda spoke on the phone about a possible
delivery of five pounds of marijuana to Mr. Dahda’s customer in Kansas.19
 Mr. Pickel said he would do “whatever” Roosevelt Dahda needed him to
do, including changing his driving direction, and asked if he would be
making the delivery alone.20
From this evidence a rational jury could conclude beyond a reasonable doubt that
Mr. Pickel knowingly used his phone to facilitate distribution of marijuana in furtherance
19
Suppl. ROA at Gov. Exh. 853 (Mr. Mussat requested, “Yeah man I mean I
can get, I’ll get 5,” and Roosevelt Dahda responded, “All right let me hit you right
back.”); id. at Gov. Exh. 854 (Roosevelt Dahda told Mr. Mussat, “I’m going to hit
you back here in a little bit . . . I just, my dude’s have called me and they, and they’re
asking me f---ing if I need anything taken there for me . . . . So I was trying to figure
. . . . I’ll hit you back here in a little, in a few hours.”); id. at Gov. Exh. 855 (Mr.
Pickel called Roosevelt Dahda and said, “I could shoot south at that point and it
would not be crazy out of the way or I could just keep going it, its out of the way . . .
no big s--- so just decide.”); ROA, Vol. I at 1214-16 (Detective McAtee testified that
Government’s Exhibits 853-55 showed that “Domenic Mussat indicated he would
like to get five, which . . . I believed that it indicates that he was wanting five pounds
of high-grade marijuana. And then as the call continued, Roosevelt Dahda indicated
that he was in contact with an individual and that once he was able to speak to, quote,
his dude . . . that Roosevelt Dahda would be in contact with Domenic Mussat to see if
there would be a possibility that he could provide him with five pounds of high-grade
marijuana . . . . [Then] Roosevelt Dahda and Justin Pickel discuss[ed] what I believe
to be the earlier phone call in reference to Domenic Mussat wanting to obtain high-
grade marijuana. Justin Pickel indicated that he—he would be able to change what
he was doing, which we believe . . . was traveling from California in his vehicle . . .
[and] take a different route and then drive down and meet Domenic Mussat in regards
to the possibility of providing five pounds of high-grade marijuana to him . . . . [in]
Wichita, Kansas.”).
20
Suppl. ROA at Gov. Exh. 855 (Mr. Pickel responded to Roosevelt Dahda
saying, “I can do what you need me to do. You know what I mean? It’s just f---ing
ah, it’s whatever you want dog, you know what I mean, no bull---. . . . I’ll do
whatever you want man. . . . whatever you need to do dog you have, you have until
tomorrow basically . . . to decide . . . it[’]s out of the way you know what I mean but
f--- it really you know what I’m saying, whatever you need done for real, no big s---
so just decide. . . . Um, do you think you are going to come meet me up there or am I
going to, am I going to f---ing be representative of, that is my first question?”).
- 28 -
of the conspiracy. See United States v. Reese, 775 F.2d 1066, 1075 (9th Cir. 1985)
(finding sufficient evidence to support a § 843(b) conviction because “[e]ach of the
charged telephone calls involved prospective narcotics transactions, and [the defendant]
willingly participated in each of them for the purpose of furthering his unlawful narcotics
trade”).
Second, Mr. Pickel argues he did not knowingly or intentionally make the call to
facilitate the conspiracy because he had already passed the exit to go to Kansas when he
was pulled over, and the evidence at trial did not establish where he was going in his
truck. But completion of the specific transaction underlying the call is not an element of
the offense. The inquiry is whether the call facilitated the conspiracy, not whether it
facilitated the particular transaction. See McIntyre, 836 F.2d at 473.21 Here, the phone
call facilitated the offense of conspiring to possess and distribute marijuana for profit
because it involved a conversation between co-conspirators to alter arrangements for
marijuana distribution.
21
Mr. Pickel relies on United States v. Biglow, 554 F. App’x 679, 683-84 (10th
Cir. 2014) (unpublished), a factually inapposite non-precedential case. In Biglow, the
defendant called a co-conspirator seeking to purchase cocaine, but the co-conspirator
refused. Id. at 683. We reversed the § 843(b) conviction under an attempt-to-possess
theory because the co-defendant’s refusal to sell cocaine could not facilitate the
conspiracy to possess with the intent to distribute cocaine, and the relevant jury
instruction did not list an attempt crime as a possible predicate offense. Id.
Here, Mr. Pickel already possessed marijuana in his auxiliary fuel tank when
he called Roosevelt Dahda. Roosevelt Dahda’s instruction to deliver, or not deliver,
the drugs to Mr. Mussat managed the distribution of the conspiracy’s marijuana. The
evidence was sufficient for a rational jury to find the call facilitated the “conspir[acy]
. . . to possess with intent to distribute . . . marijuana” charged in the superseding
indictment. ROA, Vol. I at 108.
- 29 -
Third, Mr. Pickel vaguely argues § 843(b) “requires mens rea” and there was no
evidence to show he knew he was transporting marijuana. Aplt. Reply Br. at 23. But he
makes this argument for the first time in his reply brief, and it is therefore waived. See
Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006)
(“[T]he failure to raise an issue in an opening brief waives that issue . . . . Consistent
with these principles is the general rule that appellate courts will not entertain issues
raised for the first time on appeal in an appellant’s reply brief.” (quotations omitted)).22
Viewing the evidence in the light most favorable to the Government, a rational
jury could have found beyond a reasonable doubt that Mr. Pickel knowingly used his
phone to facilitate the drug conspiracy.
22
Even if Mr. Pickel’s mens rea argument were not waived, he acknowledges
that the underlying crime for the § 843(b) offense is the conspiracy. See Aplt. Br. at
41 (stating that the underlying crime was “the offense charged in Count 1, namely
conspiracy to possess with intent to distribute marijuana”). Mr. Pickel knowingly
used his phone and knowingly agreed to complete the marijuana delivery to Mr.
Mussat on that phone.
- 30 -
E. Supervised Release Term
Mr. Pickel argues in his opening brief that his 10-year term of supervised
release exceeds the statutory maximum set forth in 21 U.S.C. § 841(b)(1)(D). But
Mr. Pickel correctly concedes in his reply brief that his claim of error is meritless
because § 841(b)(1)(D) requires a minimum two-year term for his conviction and
imposes no statutory maximum.23
Mr. Pickel also argues for the first time in his reply brief that, despite his
erroneous reading of § 841, the district court erred by not considering the factors set
forth in 18 U.S.C. § 3553(a) to determine an appropriate length of supervised
release.24 But this argument is waived, see id., and we decline to consider it.
F. Joint and Several Forfeiture Liability
Mr. Pickel argues the district court violated 21 U.S.C. § 853(a) by making Mr.
Pickel jointly and severally liable for a $16,985,500 criminal forfeiture money
judgment based on the value of marijuana attributable to the full conspiracy. In a
Rule 28(j) letter to this court, the Government conceded this was error under the
Supreme Court’s recent decision in Honeycutt v. United States, No. 16-142, slip op.
23
Reviewing the district court’s interpretation of a statute de novo, we stated
in United States v. Handley, 678 F.3d 1185, 1189 (10th Cir. 2012), that “it is . . .
clear under the plain language of § 841(b)(1)(B) that the maximum term of
supervised release is life. This is because the statute does not expressly limit the
maximum allowable term of supervised release a court may impose.”
24
Mr. Pickel states the court should have considered the factors set forth in
“18 U.S.C. § 3552(a).” See Aplt. Reply Br. at 19. Because 18 U.S.C. § 3552 is not
relevant to the issues on appeal, we understand his argument to refer to 18 U.S.C.
§ 3553(a).
- 31 -
(June 5, 2017). Fed. R. App. P. 28(j) Supplemental Authority (June 7, 2017). Mr.
Pickel also argues this forfeiture judgment violates the Eighth Amendment because it
is grossly disproportionate to his crime and deprives him of any future ability to earn
a livelihood.
“We review the district court’s forfeiture order as we would any other sentencing
determination—that is, we review its legal conclusions de novo and its factual findings
for clear error.” United States v. Bader, 678 F.3d 858, 893 (10th Cir. 2012). Section
853(a) requires, in relevant part, that “[a]ny person convicted of a violation of this
subchapter or subchapter II of this chapter punishable by imprisonment for more than one
year shall forfeit . . . any property constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as the result of such violation.” 21 U.S.C. § 853(a)
(emphasis added).
The district court impermissibly imposed joint and several liability on Mr. Pickel
for property derived by his co-conspirators. In Honeycutt, the Supreme Court resolved a
circuit split regarding this issue. It held that “[s]ection 853(a)’s limitation of forfeiture to
tainted property acquired or used by the defendant, together with the plain text of
§ 853(a)(1), foreclose joint and several liability for co-conspirators.” Honeycutt, slip op.
at 7.25 Rather, “[f]orfeiture pursuant to § 853(a)(1) is limited to property the defendant
25
The Court focused on the statute’s use of the word “obtain.” It explained
that “[n]either the dictionary definition nor the common usage of the word ‘obtain’
supports the conclusion that an individual ‘obtains’ property that was acquired by
someone else. Yet joint and several liability would mean just that . . . .” Honeycutt
v. United States, No. 16-142, slip op. at 6 (June 5, 2017). The words “directly or
Continued . . .
- 32 -
himself actually acquired as the result of the crime.” Id. at 9. In other words, when a
defendant did not “obtain” tainted property as a result of the crime, § 853(a) does not
authorize forfeiture from that defendant. Id.
Because the district court did not address the amount of tainted proceeds
“obtained” by Mr. Pickel, as required by § 853(a), we reverse the forfeiture order under
Honeycutt and remand for resentencing regarding his forfeiture liability. Accordingly,
we need not reach Mr. Pickel’s Eighth Amendment argument. See, e.g., Dep’t of
Commerce v. U.S. House of Reps., 525 U.S. 316, 343 (1999) (finding “it unnecessary to
reach the constitutional question presented” when the action was otherwise prohibited by
statute).
III. CONCLUSION
For the foregoing reasons, we affirm Mr. Pickel’s convictions and his term of
supervised release but reverse the forfeiture judgment and remand for resentencing
regarding Mr. Pickel’s forfeiture liability.
indirectly” are adverbs that only modify the verb “obtain.” Id. These adverbs “refer
to how a defendant obtains the property; they do not negate the requirement that he
obtain it at all.” Id.
- 33 -