                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0075n.06

                                             No. 12-5068
                                                                                          FILED
                            UNITED STATES COURT OF APPEALS                             Jan 16, 2013
                                 FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                             )
                                                      )
          Plaintiff-Appellee,                         )       ON APPEAL FROM THE
                                                      )       UNITED STATES DISTRICT
v.                                                    )       COURT FOR THE MIDDLE
                                                      )       DISTRICT OF TENNESSEE
BEAU C. VAUGHAN,                                      )
                                                      )
          Defendant-Appellant.                        )
                                                      )




          BEFORE: BOGGS, ROGERS, and STRANCH, Circuit Judges.


          PER CURIAM. Beau C. Vaughan appeals the denial of his motion to suppress and his

subsequent conviction for conspiracy to distribute or possess with intent to distribute marijuana. We

affirm.

          A federal grand jury charged Vaughan with conspiracy to distribute and possess with intent

to distribute one hundred kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and

846. Vaughan filed a motion to suppress, which the district court denied after an evidentiary hearing.

Vaughan proceeded to trial, and a jury found him guilty of the marijuana conspiracy. The district

court sentenced Vaughan to three hundred months of imprisonment. This timely appeal followed.

          Vaughan asserts that the district court erred in denying his motion to suppress because his

arrest lacked probable cause. “When reviewing the denial of a motion to suppress, we review the
No. 12-5068
United States v. Vaughan

district court’s factual findings for clear error and its legal conclusions de novo.” United States v.

Hinojosa, 606 F.3d 875, 880 (6th Cir. 2010) (internal quotation marks omitted). We may affirm the

denial on any ground supported by the record. United States v. Gill, 685 F.3d 606, 609 (6th Cir.

2012).

         At the suppression hearing, Trooper Michael Kilpatrick testified that Agent Darryl

Richardson of the Tennessee Bureau of Investigation informed him that Vaughan would be

delivering a quantity of marijuana to an O’Charley’s parking lot and directed him to develop

probable cause to stop Vaughan’s vehicle. Trooper Kilpatrick saw the vehicle approaching the

O’Charley’s and observed that Vaughan was not wearing a seatbelt. Trooper Kilpatrick turned into

the parking lot behind Vaughan’s vehicle, activated his lights, and initiated the stop. When he

approached the driver’s side of the vehicle, Trooper Kilpatrick noticed that Vaughan’s eyes were

bloodshot and smelled the odor of burnt marijuana coming from the vehicle. Shortly after Trooper

Kilpatrick stopped Vaughan’s vehicle, Trooper Wayne Dunkleman arrived with his drug-detection

dog. Trooper Dunkleman also smelled the odor of burnt marijuana coming from Vaughan’s vehicle.

         Trooper Kilpatrick asked Vaughan to get out of the vehicle and issued him a citation for not

wearing his seatbelt and not having proof of insurance. Vaughan denied consent to search his

vehicle, and the officers proceeded to conduct a canine sniff. Trooper Dunkleman’s dog alerted to

the driver’s side door of Vaughan’s vehicle. Trooper Kilpatrick then asked Vaughan to sit in the

back of his patrol car while the officers searched his vehicle. According to Trooper Kilpatrick, he

did not place Vaughan under arrest at that time. The subsequent search of Vaughan’s vehicle

revealed approximately $19,000 in cash; a commercial driver’s logbook; airline and rental car

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United States v. Vaughan

documents for Vaughan’s recent trip to McAllen, Texas, a source city for illegal drugs; dryer sheets;

trash bags; marijuana residue; and a suspected drug ledger. After Agent Richardson arrived and

reviewed the evidence found in Vaughan’s vehicle, he spoke with Vaughan and advised him of his

Miranda rights. Vaughan cooperated with Agent Richardson.

       The district court concluded that Vaughan was under arrest after he was placed in the patrol

car, noting that Trooper Kilpatrick confiscated Vaughan’s cell phone, placed him in the rear of the

patrol car beside a dog in a cage; told him that he was being detained and was not free to leave; and

ultimately detained him for approximately one and a half hours. We assume without deciding that

placing Vaughan in the rear of the patrol car constituted an arrest. But see United States v. Jacob,

377 F.3d 573, 580 (6th Cir. 2004) (holding that a detention, during which the defendant was placed

in a police car, “did not ripen into an unlawful arrest” because the officers “diligently pursued a

means of investigation that was likely to confirm or dispel their suspicions”). Regardless, the

officers had probable cause for Vaughan’s arrest when they placed him in the patrol car. In

determining whether probable cause exists for an arrest, “we must determine whether at that moment

the facts and circumstances within the arresting officers’ knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent person in believing that a

suspect had committed or was committing an offense.” United States v. Smith, 549 F.3d 355, 359

(6th Cir. 2008) (quoting United States v. Romero, 452 F.3d 610, 615 (6th Cir. 2006)). When they

placed Vaughan in the patrol car, the officers had information that Vaughan would be delivering a

quantity of marijuana to the O’Charley’s parking lot, they had smelled the odor of burnt marijuana

coming from his vehicle, and the drug-detection dog had alerted to his vehicle’s door. See Florida

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United States v. Vaughan

v. Royer, 460 U.S. 491, 506 (1983) (stating that a positive result by a drug-sniffing dog “would have

resulted in [the defendant’s] justifiable arrest on probable cause”). The district court properly held

that Vaughan’s arrest was supported by probable cause.

       Vaughan also contends that there was a fatal variance between the single conspiracy charged

in the indictment and the multiple conspiracies proven at trial. We review de novo whether a

variance has occurred. United States v. Swafford, 512 F.3d 833, 841 (6th Cir. 2008). “A variance

to the indictment occurs when the charging terms of the indictment are unchanged, but the evidence

at trial proves facts materially different from those alleged in the indictment.” United States v.

Caver, 470 F.3d 220, 235 (6th Cir. 2006). “If an indictment alleges one conspiracy, but the evidence

can reasonably be construed only as supporting a finding of multiple conspiracies, the resulting

variance between the indictment and the proof is reversible error if the appellant can show that he

was prejudiced thereby.” United States v. Warner, 690 F.2d 545, 548 (6th Cir. 1982).

       The indictment charged Vaughan with conspiring with others to distribute and possess with

intent to distribute one hundred kilograms or more of marijuana. Vaughan asserts that the evidence

at trial demonstrated multiple conspiracies between himself and each of his customers—“a rimless

wheel conspiracy.” See Swafford, 512 F.3d at 841-42. But “[c]onspiracies to distribute narcotics,

which normally involve numerous sales and resales of drugs until they reach the ultimate consumers,

are often ‘chain’ conspiracies.” Warner, 690 F.2d at 549. “Because the success of participants on

each level of distribution is dependent upon the existence of other levels of distribution, each

member of the conspiracy must realize that he is participating in a joint enterprise, even if he does

not know the identities of many of the participants.” Id. Viewed in the light most favorable to the

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United States v. Vaughan

government, the evidence at trial supported a finding of a single chain conspiracy. Vaughan obtained

large amounts of marijuana from a source in Mexico, used a driver to transport the marijuana to

Tennessee, and then sold or fronted the marijuana to others, who in turn resold or fronted the

marijuana. See id.; see also United States v. Robinson, 547 F.3d 632, 642 (6th Cir. 2008).

       Even if a variance existed, Vaughan cannot establish prejudice. “Where the evidence

demonstrates only multiple conspiracies, a defendant is prejudiced if the error of trying multiple

conspiracies under a single indictment substantially influenced the outcome of the trial.” Caver, 470

F.3d at 237. Vaughan contends that the government, if required to try multiple conspiracies

individually, would have been unable to prove a conspiracy involving one hundred kilograms of

marijuana. The evidence, viewed in the light most favorable to the government, demonstrated that

Vaughan provided a customer identified in his ledger as “KY” with nearly four hundred pounds of

marijuana—well in excess of one hundred kilograms.

       For the foregoing reasons, we affirm Vaughan’s conviction.




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