United States v. Rosario, Catalino ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-2733
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    CATALINO ROSARIO,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern
    Division.
    No. 94 CR 261--James B. Zagel, Judge.
    ARGUED MAY 16, 2000--DECIDED DECEMBER 7,
    2000
    Before EASTERBROOK, RIPPLE, and ROVNER,
    Circuit Judges.
    ROVNER, Circuit Judge. Catalino Rosario,
    Porfirio Rivera, and Frank Vargas were
    indicted on two counts of conspiracy to
    distribute cocaine and attempted
    possession of cocaine with intent to
    distribute it in violation of 21 U.S.C.
    sec. 846. Rosario filed a motion to quash
    his arrest and suppress a pager found on
    him during the arrest, which the court
    denied. Rivera and Vargas pled guilty and
    testified against Rosario and a jury
    convicted him on both charges. Rosario
    now appeals, challenging the court’s
    denial of his motion to quash the arrest
    and suppress the evidence.
    I.
    The trail that ultimately led to Rosario
    began on April 15, 1994, when the
    Missouri State Highway Patrol stopped a
    brown Mazda minivan driven by Frank
    Vargas that was weaving and moving
    erratically. The van was registered to
    Porfirio Rivera, but Vargas was the sole
    occupant. A subsequent search of the van
    revealed 46 packages of cocaine in hidden
    panels in the van, with a total weight of
    40.55 kilograms. After his arrest, Vargas
    agreed to cooperate with the police. He
    related that the owner of the cocaine was
    a man named "Pacho," whom he later
    identified as the defendant, Catalino
    Rosario. He declared that Pacho had hired
    him to transport the cocaine from Los
    Angeles to Chicago, and that Pacho had a
    total of 100 kilograms of cocaine for
    shipment to Chicago. Of that total, he
    had already delivered 37 kilograms to
    Chicago on an earlier trip, and 17
    kilograms remained in Los Angeles
    awaiting transport. Vargas possessed
    three different pager numbers for Pacho
    including a new pager number that he was
    supposed to use upon arrival in Chicago
    to contact Pacho. Vargas also told them
    that he believed "Pacho" was just a
    nickname, and that Pacho had previously
    used a name of Rafinio Ray and also had
    used a first name of Arturo, but he did
    not know if those were aliases as well.
    The officers ran a computer check of
    those names in the DEA computer system,
    and found the name Rafinio Ray with an
    alias for the name of Arturo Robles. That
    provided some corroboration for Vargas’
    claim that "Pacho" was involved in the
    drug scheme.
    Based upon that information, a decision
    was made to attempt a controlled delivery
    in Chicago, at which time the Drug
    Enforcement Agency became involved in the
    case. Vargas and the agents checked into
    the Hampton Inn in Bedford Park, and
    Vargas paged Pacho. Approximately ten
    minutes later, Pacho returned the call to
    Vargas at the hotel. Pacho told Vargas
    that a person named "Jose" would be
    calling him. This call was recorded, but
    only Vargas’ voice and not that of the
    caller was intelligible on the tape. The
    agents relied on Vargas for the identity
    of the caller and the content of the
    conversation.
    At approximately 8:00 p.m., a person
    identifying himself as "Jose" called
    Vargas and said he would come to the
    hotel the next morning. That conversation
    was recorded. "Jose" called again the
    next morning to inform Vargas that he was
    en route to the hotel, and he arrived at
    the hotel around 9:15 a.m. Agents later
    discovered that the person known as
    "Jose" was Porfirio Rivera--the same
    person in whose name the Mazda minivan
    was registered. After Rivera’s arrival,
    Pacho called Vargas at the hotel. The
    meeting between Vargas and Rivera and the
    conversation with Pacho were videotaped
    and recorded. In the telephone
    conversation, Pacho stated that he was
    flying from Los Angeles to Midway Airport
    on a flight that arrived around 6:00
    p.m., and he needed to be picked up
    there. Vargas translated that
    conversation for the agents, and
    explained that Rosario generally flew on
    America West Airlines. After the
    telephone conversation, Rivera took the
    minivan keys and drove away in the
    minivan, at which time he was arrested.
    That evening, the agents accompanied
    Vargas to the airport and positioned him
    in an area of the airport where he could
    view passengers who had disembarked from
    the planes. An America West plane arrived
    from Los Angeles at approximately 6:00
    p.m., but the agents were unable to
    single out anyone departing it as "Pacho"
    based on the rather general description
    provided by Vargas. Vargas, however,
    spotted Pacho among the individuals who
    had been on the plane, and pointed him
    out to the agents. At that time, Pacho
    was briefly detained and questioned
    regarding his identity. He produced
    identification establishing that he was
    Catalino Rosario. He was ultimately
    brought outside, where Vargas again
    identified him as the person he knew as
    "Pacho." A subsequent search of Rosario
    yielded a card with one of the pager
    numbers that Vargas had possessed on it,
    and a pager. When a DEA agent dialed
    another of the numbers found in the
    minivan at the time Vargas was arrested,
    the pager Rosario had been carrying
    activated.
    II.
    Rosario argues that the police lacked
    probable cause to arrest him without a
    warrant, and that the pager and number
    found on him should be suppressed as the
    fruits of the unlawful arrest. He asserts
    that the police relied solely on Vargas’
    statements implicating Rosario, and that
    Vargas was an unproven informant whose
    statements relating to Rosario were not
    corroborated by other evidence.
    Probable cause for an arrest exists when
    the law enforcement agents could
    reasonably believe, in light of the facts
    and circumstances within their knowledge
    at the time of the arrest, that the
    suspect had committed or was committing
    an offense. United States v. Kincaid, 
    212 F.3d 1025
    , 1028 (7th Cir. 2000); United
    States v. Osborn, 
    120 F.3d 59
    , 62 (7th
    Cir. 1997). It is a flexible, practical
    common-sense standard that is met if the
    facts are sufficient to warrant a person
    of reasonable caution to believe that an
    offense has been or is being committed.
    United States v. Colonia, 
    870 F.2d 1319
    ,
    1323 (7th Cir. 1989) (citations omitted);
    United States v. Evans, 
    27 F.3d 1219
    ,
    1228 (7th Cir. 1994). We review the
    district court’s probable cause
    determination de novo, but accept the
    district court’s findings of historical
    fact unless they are clearly erroneous
    and "give due weight to inferences drawn
    from those facts by resident judges and
    local law enforcement officers." 
    Osborn, 120 F.3d at 62
    , quoting Ornelas v. United
    States, 
    517 U.S. 690
    , 699 (1996).
    The arrest and subsequent search in this
    case was based upon the information
    provided by Vargas. Rosario argues that
    probable cause is not established here
    because the information was provided by
    an untested informant and lacked
    sufficient corroboration. Information
    from an informant can provide probable
    cause for an arrest if the information is
    reliable. United States v. Scott, 
    19 F.3d 1238
    , 1242 (7th Cir. 1994). For instance,
    in Illinois v. Gates, 
    462 U.S. 213
    , 246
    (1983), the Court held that a highly
    detailed tip from an anonymous informant
    that was corroborated by independent
    police work was enough to establish
    probable cause for the search. In the
    present case, we are not faced with an
    anonymous informant, but rather an
    untested informant who is providing
    information that to some extent is
    incriminating, but which is provided in
    order to reduce his own criminal
    liability. In analyzing whether such
    information from an informant is
    sufficient to establish probable cause,
    we must consider the information provided
    by that informant--in amount and in the
    degree of reliability--and the degree of
    corroboration of that information by the
    officers. United States v. Navarro, 
    90 F.3d 1245
    , 1253 (7th Cir. 1996).
    Although Vargas did not have a prior
    history as an informant that would
    enhance the reliability of his
    information, the agents were able to
    corroborate a great deal of the
    information provided by him prior to the
    arrest and search of Rosario. For
    instance, Vargas claimed that the drugs
    were owned by Pacho, who also went by the
    names Rafinio Ray and Arturo. A check on
    the DEA computer system revealed a match
    for the name Rafinio Ray with an alias of
    Arturo Robles. This provided some
    corroboration of Vargas’ claim that the
    person he identified as Pacho was in the
    drug business. Vargas further stated that
    when he arrived in Chicago he was to page
    a certain number and the owner of the
    cocaine, Pacho, would call him. That
    indeed transpired, in that Pacho returned
    his page. In addition, Vargas told the
    agents that Pacho had informed him that
    "Jose" would call regarding the cocaine.
    Rivera, using the name Jose, in fact
    called him later and made plans to pick
    up the cocaine the following morning.
    Because Vargas had not contacted "Jose"
    himself, that call could only have been
    triggered by Pacho after speaking with
    Vargas. When Jose came to the hotel, they
    discussed the prior shipment of cocaine
    that had been delivered, which
    corroborated Vargas’ statement to the
    agents that he had previously delivered
    37 kilograms to Chicago from Los Angeles.
    Finally, Vargas informed them that Pacho
    was arriving at 6:00 p.m. at Midway
    Airport, probably on America West
    Airlines. The agents confirmed that an
    America West flight from Los Angeles was
    landing in Chicago at that approximate
    time. Vargas then identified Rosario
    among the passengers that exited that
    plane. In short, Vargas’ statements
    relating to the drug conspiracy were
    corroborated repeatedly when the events
    transpired as he foretold, and there is
    no basis in the record for disturbing the
    district court’s fact findings to that
    effect. As the Supreme Court recognized
    in Alabama v. White, 
    496 U.S. 325
    , 329
    (1990), when "an informant is shown to be
    right about some things, he is probably
    right about other facts that he has
    alleged, including the claim that the
    object of the tip is engaged in criminal
    activity." See also 
    Navarro, 90 F.3d at 1253
    (relying on Gates and White, noting
    that information can be credited where
    the tip contains specific details about
    future actions not easily predicted, thus
    demonstrating "inside information.").
    Here, the agents were able to corroborate
    numerous facts provided by Vargas, and
    that established a reasonable basis for
    them to credit his information regarding
    Rosario and to believe that a crime had
    been or was being committed. The Gates
    Court recognized that "only a
    probability, not a prima facie showing,
    of criminal activity" is required to
    establish probable 
    cause, 462 U.S. at 235
    , and that standard is met here.
    III.
    Rosario raised a number of other
    arguments in the brief on appeal, but all
    were either withdrawn at oral argument or
    are meritless. He argued that the court
    erred in refusing to dismiss the
    indictment based on the use of hearsay in
    the grand jury. This argument is without
    merit because an indictment may be based
    upon hearsay, Costello v. United States,
    
    350 U.S. 359
    , 363 (1956), and Rosario
    does not argue that this testimony was
    misrepresented as anything else.
    Furthermore, even if there were error
    (which is not the case here), any such
    error in the presentation of evidence
    before the grand jury would be harmless
    given the jury conviction at trial which
    indicates a proper grand jury proceeding
    would have still yielded an indictment.
    United States v. Fountain, 
    840 F.2d 509
    ,
    513-14 (7th Cir. 1988); Tyson v. Trigg,
    
    50 F.3d 436
    , 442 (7th Cir. 1995).
    The remaining arguments presented by
    Rosario were withdrawn at oral argument
    because they require development of facts
    outside the record and thus are more
    properly presented in a sec. 2255
    petition. Specifically, Rosario withdrew
    his arguments regarding the Speedy Trial
    Act, ineffective assistance of counsel,
    and the alleged use of perjured testimony
    by the prosecutor. Regarding the use of
    perjured testimony, Rosario’s attorney
    purported to withdraw only part of that
    argument, stating at oral argument that
    she withdrew that argument only to the
    extent it alleged that the government
    knew the witnesses were lying, as opposed
    to the government having reason to be
    suspicious. Such a "partial" withdrawal
    would be problematic indeed, because an
    adverse determination on direct appeal
    will have preclusive effect in any
    subsequent collateral attack. United
    States v. Brook, 
    125 F.3d 484
    , 495 (7th
    Cir. 1997). A claim must be presented in
    its entirety rather than in a piecemeal
    fashion, lest the litigant risk the
    preclusive effect of the prior ruling.
    Therefore, it is inconsistent for Rosario
    to simultaneously assert that he is
    withdrawing the perjury issue to develop
    in a sec. 2255 petition, but is pursuing
    the perjury issue in part on direct
    appeal. Fortunately for him, the
    statement at oral argument was sufficient
    to withdraw the argument in its entirety
    and preserve it for sec. 2255 review
    where the extra-record facts necessary
    for the argument can be developed.
    Although Rosario’s attorney sought to
    proceed with the argument that the
    government had reason to know the
    testimony was perjured, no such argument
    was raised in the brief and thus that
    argument was never before this court.
    Although the briefs mentioned the term
    "should have known" in the heading, the
    argument itself addresses only the actual
    knowledge of the government and never
    makes that alternative argument.
    Accordingly, when Rosario’s attorney
    withdrew the perjury argument to the
    extent that it encompassed the actual
    knowledge of the government, she withdrew
    the entire perjury argument and preserved
    it for a potential sec. 2255 petition.
    For the above reasons, with respect to
    the issues that remain before this court,
    the decision of the district court is
    affirmed.