United States v. Carrillo, Anselmo ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2643
United States of America,
Plaintiff-Appellee,
v.
Anselmo Carrillo and Francisco Soto,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 54--Charles R. Norgle, Sr., Judge.
Argued May 9, 2001--Decided October 18, 2001
Before Ripple, Manion, and Kanne, Circuit
Judges.
Kanne, Circuit Judge. After an
investigation by the Drug Enforcement
Administration, ("DEA"), Anselmo Carrillo
and Francisco Soto were arrested and
charged with possession with intent to
distribute cocaine and conspiracy with
intent to distribute cocaine. The jury
found them both guilty as charged, and
each was sentenced to 151 months
imprisonment. On appeal, they present
several challenges to their respective
convictions and sentences. Because we
find no errors requiring reversal, we
affirm the judgment of the district
court.
I. History
In August 1998, Ross Braatsch, the owner
of the Chicago-area electronics store
Sound Wave Ltd., agreed to provide
confidential information to DEA Agent
Robert Glynn about several of his
customers that he suspected of being
involved with drug trafficking. Sound
Wave offered a service installing vehicle
"traps" (hidden compartments in cars that
can only be opened by remote control),
and Braatsch believed that certain
individuals were using the traps to
transport illegal drugs. Braatsch
informed Agent Glynn that one of his
customers, Tavo Perez, had paid
approximately $50,000 in cash over a
twenty-one month period to have traps and
other electronic equipment installed in
twelve different cars. He also informed
Agent Glynn that several different men
had picked up Perez’s cars and that he
had shown two of these men, later
identified as Carrillo and Soto, how to
operate the traps.
In December 1998, Perez brought two of
his trap cars--a red Mercury Sable and a
white Ford Taurus--to Sound Wave for
repairs. On both of these occasions,
Perez was accompanied by a man driving a
red Toyota Tacoma pick-up truck. While
the traps were being repaired, Agent
Glynn confirmed that the cars did have
traps and recorded the license plate
numbers of the vehicles. Agent Glynn
began conducting surveillance of Perez’s
residence, and on December 30, 1998, he
observed Perez drive the Tacoma pick-up
truck from his residence to Sound Wave,
where he picked up the white Taurus.
Agent Glynn then followed Perez to a
single-family residence with an attached
garage at 109 Clarendon Street in
Addison, Illinois. Perez pulled the
Taurus into the garage, and Agent Glynn
observed that the red Sable was also in
the garage. Between December 30, 1998 and
January 27, 1999, Agent Glynn continued
to conduct surveillance of Perez; he also
set up video surveillance of the red
Sable.
On January 27, 1999, DEA agents used a
tracking device to track the red Sable to
Number 20, West 327 Belmont Place, in
Addison. Several agents set up organized
surveillance of that location as well as
the residence at 109 Clarendon. At 3:45
p.m., three males arrived at West
327Belmont Place in the red Tacoma. One
of these men, later identified as
Carrillo, exited the truck and got into
the red Sable. Agents then followed both
vehicles to 109 Clarendon, where they
observed the white Taurus in the garage.
Initially, the red Sable was parked in
the driveway and the red Tacoma was
parked on the street. After a short time,
agents observed that the garage door was
closed and that the Sable was no longer
in the driveway. At that point, Agent
Paul Wolf got out of his car and
approached the residence. Although he did
not see any of the three men inside the
house, he heard male voices in the
garage. At approximately 6:00 p.m., two
hours after the vehicles had arrived at
109 Clarendon, Agent Glynn observed Soto
and another Hispanic male exit the garage
and get into the red Tacoma pick-up
truck. At the same time, Officer Luis
Dominguez, a DEA task force officer,
observed Carrillo drive the red Sable
away from 109 Clarendon.
Agent Glynn attempted to follow the red
Tacoma, but he lost track of it after the
driver performed several evasive
maneuvers. At 6:20 p.m., he located the
red Tacoma in a movie theater parking
lot, and there were now three individuals
in the truck. Agent Glynn observed that
the red Sable was parked in the movie
theater lot. Agent Wolf then began
following the red Tacoma. The driver
performed a series of turns indicative of
counter-surveillance activities and
eventually headed back towards the movie
theater parking lot. At that point, the
agents stopped the truck. At the time of
the stop, Soto was driving, Carrillo was
in the passenger seat, and the third
occupant was in the extended portion of
the truck. Carrillo had the following
items in his possession at the time of
the arrest: a garage door opener for 109
Clarendon, a house key for the basement
of 109 Clarendon, and a computer chip
that operated the trap in the red Sable.
The agents arrested the three men and
transported them to the Addison Police
Department.
Several other agents continued
surveillance of the red Sable. At
approximately 7:00 p.m., they observed a
blue Jeep Cherokee driving up and down
the parking lot of the movie theater past
the Sable. Agents stopped the Jeep
Cherokee and recovered keys for the Sable
as well as a computer chip that operated
the Sable’s trap from one of the
occupants. The Sable was then transported
to the Addison Police Department.
At the Addison Police Department, Agent
Wolf conducted a preliminary interview of
Soto and Carrillo during which both men
identified themselves using aliases.
Officer Dominguez, who is fluent in
Spanish, then questioned the two men
separately. During the interviews,
Carrillo and Soto both changed their
stories a number of times when confronted
with the agents’ knowledge of their
activities. Neither provided an
explanation for the activities leading up
to the arrest. At the end of his
interview, Soto consented to a search of
the red Sable. Agents searched the
vehicle and recovered 48 one-kilogram
bricks of cocaine from the Sable’s trap.
Agents also obtained consent to search
109 Clarendon and 20 West 327 Belmont. At
109 Clarendon, agents observed that the
white Taurus was in the garage and found
an empty box containing a rubber glove.
At West 327 Belmont, the agents found an
empty trap compartment built into the
basement floor. A few days later, in
response to a tip from a confidential
source, several DEA agents returned to
109 Clarendon and found a crawl space
containing material used to wrap bricks
of cocaine as well as a box of rubber
gloves. Agents also found a trap in the
basement floor that contained two
kilograms of cocaine, a scale, a semi-
automatic handgun, ammunition, and drug
ledgers.
Carrillo and Soto were indicted for
possession with intent to distribute
cocaine, and conspiracy with intent to
distribute cocaine in violation of 21
U.S.C. sec. 841(a)(1) and sec. 846. At
trial, the government presented testimony
of the DEA agents involved in the
investigation as well as evidence of
pager and cell phone communications
between Carrillo and Soto. Neither
defendant testified at trial, though Soto
called one witness who attempted to cast
doubt on the government’s assertion that
he was driving evasively on the night of
his arrest. Carrillo called no witnesses.
The jury found both defendants guilty. On
June 21, Carrillo and Soto were each
sentenced to 151 months imprisonment and
five years supervised release.
On appeal, Carrillo and Soto ask us to
overturn their convictions and sentences
because: (1) government agents lacked
probable cause at the time of their
arrests; (2) the district court violated
Rule 30 of the Federal Rules of Criminal
Procedure by waiting until after closing
arguments to hold a jury instructions
conference and finalize the jury
instructions; (3) the district court’s
decision to give an "ostrich" instruction
was erroneous; (4) they are entitled to a
minor role adjustment; and (5) the
district court should have suppressed
their post-arrest statements because the
arresting officers failed to inform them
of their right to communicate with the
Mexican consulate. We will address each
of these claims in turn.
II. Analysis
A. Probable Cause
Prior to trial, Soto and Carrillo each
filed a motion to quash arrest and
suppress their post-arrest statements,
arguing that the DEA agents did not have
probable cause for their arrest. The
district court determined that an
evidentiary hearing was not warranted and
denied defendants’ motions. Both
defendants renewed their motions at the
close of evidence at trial, and the
district judge again denied the motions.
On appeal, Carrillo and Soto concede that
the circumstances surrounding their
arrest were suspicious enough to justify
a Terry stop. See Terry v. Ohio, 392 U.S.
1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968). They claim, however, that the
level of suspicion did not rise to the
level of probable cause because the
agents did not have specific information
about Carrillo and Soto or about a drug
transaction that was supposed to occur
that night. They also point out that the
agents never saw either defendant in
possession of contraband. Because the
defendants do not challenge the district
court’s factual findings, we review de
novo the district court’s determination
that probable cause did exist. See United
States v. Faison, 195 F.3d 890, 893 (7th
Cir. 1999).
Probable cause exists if "law
enforcement agents . . . 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. Hayes, 236
F.3d 891, 894 (7th Cir. 2001). This
determination is necessarily based on
probabilities, see Faison, 195 F.3d at
893, and does not require "evidence
sufficient to support a conviction, nor
even evidence demonstrating that it is
more likely than not that the suspect
committed a crime." United States v.
Mounts, 248 F.3d 712, 715 (7th Cir. 2001)
(quotation omitted). In determining
whether suspicious circumstances rise to
the level of probable cause, law
enforcement officers are entitled to draw
reasonable inferences based on their own
training and experience. See Faison, 195
F.3d at 893. Of course, the "existence of
probable cause turns on the information
known to the officers at the moment the
arrest [was] made, not on subsequently-
received information." Spiegel v.
Cortese, 196 F.3d 717, 723 (7th Cir.
2000).
Although the agents did not have
specific information about the defendants
or observe them handling any substances
believed to be narcotics, we believe that
the totality of the suspicious
circumstances at the time of the arrest
justified a finding of probable cause.
See United States v. Scott, 19 F.3d 1238,
1242 (7th Cir. 1994) (stating that the
validity of a warrantless arrest is based
on the "totality of the circumstances").
Prior to Carrillo and Soto’s arrests, DEA
agents had received information from the
confidential source, Braatsch, that Perez
had paid cash to have traps installed in
twelve different cars, and had
substantiated this information by
confirming that there were, in fact,
traps in two of Perez’s cars. After
conducting surveillance, agents linked
Carrillo and Soto to trap vehicles owned
by Perez, as well as to Perez’s red
Tacoma pick-up truck. Although we agree
with the defendants that the existence of
a vehicle trap in itself is not enough to
establish probable case--traps may, of
course, be used for legitimate purposes--
the existence of a trap coupled with
other suspicious circumstances does
create a level of suspicion sufficient to
support a finding of probable cause. Cf.
United States v. Arango, 912 F.2d 441,
447 (10th Cir. 1990) (finding that
inadequate luggage for the stated length
of trip coupled with the appearance of a
hidden compartment under truck bed
supported a finding of probable cause).
Here, agents had several other reasons
to be suspicious of the defendants’
behavior. During their surveillance,
agents observed that the trap cars were
not being driven in a manner consistent
with normal personal or business use; nor
did they see any evidence that the traps
were being used in any legitimate
manner./1 On the night of defendants’
arrest, agents knew that the red Sable
had been parked in a garage for several
hours with another known trap vehicle,
and then driven to a parking lot and left
there. Based on his experience in more
than 100 narcotics investigations involv
ing trap vehicles, Agent Glynn believed
that the defendants’ activities with
respect to the trap vehicle were
consistent with a pattern of drug
trafficking. Furthermore, agents twice
observed that the red Tacoma was being
driven circuitously in an apparent
attempt to evade surveillance, and our
cases have held that this is a proper
consideration in determining whether
probable cause exists. See United States
v. Colonia, 870 F.2d 1319, 1323 (7th Cir.
1989); United States v. Marin, 761 F.2d
426, 432 (7th Cir. 1985). Therefore, we
find that the totality of the
circumstances, when considered in light
of the DEA agents’ training and
experience, gave the agents sufficient
reason to believe that there was a
significant probability that a crime was
being committed. Thus, we uphold the
district court’s determination that
probable cause existed to arrest Carrillo
and Soto.
B. Rule 30 Conference
Defendants next claim that the district
court erred by waiting until after
closing arguments to finalize the jury
instructions in violation of Rule 30 of
the Federal Rules of Criminal Procedure.
The day before the final day of trial,
defense counsel indicated to the district
court that the parties were going to
attempt to agree on jury instructions. In
response, the district court told
counsel, "[i]f there are any issues, give
me the disputed instructions so I have a
couple of minutes to look them over." On
the following day after the close of
evidence, the district court asked the
attorneys if they were ready for closing
arguments, and the government raised the
fact that the jury instructions had not
yet been finalized. The court held a
sidebar in which the following exchange
occurred:
The Court: Well, I think that you could
still make your closing arguments. I have
looked them over basically and they
appear to be proper. But I am still open-
minded, in the event that defense counsel
want to challenge any specific
instruction. But I think, based upon what
you have given here, you certainly could
make your closing argument consistent
with these instructions.
. . .
The Court: Well, what we could do is let
the government make its closing argument,
and then send the jurors to lunch, and
then defense counsel would have the lunch
hour to further prepare for their closing
arguments.
[Government]: That’s good.
The Court: So--
[Carrillo’s counsel]: That’s good, your
honor.
The Court: So I will tell the jury that,
that after [the prosecutor] goes we will
stop for lunch. And during that lunch
hour, if there is any problem with the
instructions, we will go over the
instructions.
Trial Tr. at 635-36. At that point, the
government presented its closing argument
and the court recessed for lunch. There
is no evidence that either defendant took
the district court’s suggestion to raise
any issues with the jury instructions
during the lunch hour. After court
reconvened, both defendants made their
closing arguments, and the government
made its rebuttal argument. At that
point, the court held a sidebar during
which the government voluntarily withdrew
one of the instructions and the
defendants objected unsuccessfully to
five other instructions. The defendants
did not, however, object to the procedure
by which the district court formulated
the jury instructions.
The Federal Rules of Criminal Procedure
provide that "[t]he court shall inform
counsel of its proposed action upon the
[tendered jury instructions] prior to
their arguments to their jury." Fed. R.
Crim. P. 30. However, neither defendant
objected to (and one defendant
affirmatively accepted) the district
judge’s proposed plan to let the
government proceed with its closing
argument and discuss any issues with the
jury instructions at the lunch hour. Nor
did Carrillo or Soto raise any objection
to the district court’s procedure--or to
any specific proposed instruction--during
the lunch hour or prior to defendants’
closing argument. Because neither of the
defendants objected to the timing of the
jury instruction conference at any point
prior to the close of trial, we will
review only for plain error. See United
States v. Olano, 507 U.S. 725, 733-34,
113 S. Ct. 1770, 123 L. Ed. 2d 508
(1993). "Under the plain error doctrine,
we have the discretion to reverse only
where the trial court’s error is clear,
prejudicial, and affect[s] substantial
rights." United States v. Benitez, 92
F.3d 528, 533 (7th Cir. 1996).
There is no question that the jury
instructions should have been finalized
before closing arguments. However,
although a technical violation of Rule 30
did occur, it is clear that the error did
not violate the defendants’ substantial
rights. The district court gave the
defendants ample opportunity to object to
the proposed instructions. Moreover, this
is not a case in which defense counsel
were forced to present their closing
arguments with no idea what the jury
instructions were going to be. Nor did
the district judge indicate that he would
not give a specific instruction and then
give it, cf. United States v. Ienco, 92
F.3d 564, 569 (7th Cir. 1996) (finding
that defendant was prejudiced where trial
court gave Pinkerton instruction after
advising counsel that he would not), or
refuse to give an instruction that he had
tentatively agreed to give. Instead, the
district judge provisionally approved the
tendered instructions and then gave all
of those instructions except for one
which was withdrawn by the government.
Therefore, we reject defendants’
contention that the timing of the Rule 30
conference "affect[ed] the fairness,
integrity, or public reputation of the
judicial proceedings." Olano, 507 U.S. at
736.
C. "Ostrich" Instruction
Defendants next assert that the district
court erred by giving an "ostrich" or
"conscious avoidance" instruction over
their objection./2 The purpose of a
conscious avoidance instruction is to
explain to the jury that the legal
definition of "knowledge" includes the
deliberate avoidance of knowledge. See
United States v. Craig, 178 F.3d 891, 896
(7th Cir. 1999). Caution must be
exercised when giving the instruction,
however, because of "its tendency to
allow juries to convict upon a finding of
negligence for crimes that require
intent." United States v. Giovannetti,
919 F.2d 1223, 1228 (7th Cir. 1990).
Thus, our cases hold that the instruction
is only proper "when a defendant claims a
lack of guilty knowledge and there are
facts and evidence that support an
inference of deliberate ignorance."
United States v. Walker, 25 F.3d 540, 546
(7th Cir. 1994) (quotation omitted).
Carrillo and Soto claim that the
district court erred in giving the
ostrich instruction because the
government did not present sufficient
evidence that they deliberately avoided
learning that the trap cars were being
used to transport cocaine. Thus, they
contend that the jury was presented with
an improper "binary" choice between
"actual knowledge and complete
innocence." United States v. Graffia, 120
F.3d 706, 713 (7th Cir. 1997). We
disagree. Viewing the evidence in the
light most favorable to the government,
as we must, see United States v. Wilson,
134 F.3d 855, 868 (7th Cir. 1998), we
conclude that the government presented
sufficient evidence to support such an
inference.
The government is not precluded from
presenting evidence of both an actual
knowledge theory and a conscious
avoidance theory. See Wilson, 134 F.3d at
868. Here, the government did just that,
and presented substantial evidence of
actual knowledge as well as
circumstantial evidence sufficient to
raise an inference that, if the
defendants did not know that the trap
cars were being used to transport
narcotics, then they must have
deliberately avoided obtaining that
knowledge. The government presented
evidence that Carrillo and Soto had both
accompanied Perez to Sound Wave in order
to pick up trap cars, that Braatsch had
shown Carrillo and Soto how to operate
the traps, that the defendants lied to
the police about their activities on the
day of the arrest, and that Carrillo had
keys to the red Sable as well as to the
remote control that opened the trap.
Moreover, it is unlikely that the jury
could have convicted the defendants based
only on negligence in light of the
district court’s instructions that "[a]
defendant’s presence at the scene of a
crime and knowledge that a crime is being
committed is not alone sufficient to
establish the defendant’s guilt" and "[a]
defendant’s association with conspirators
or persons involved in a criminal
enterprise is not sufficient to prove his
participation or membership in a conspir
acy." See United States v. Paiz, 905 F.2d
1014 (7th Cir. 1990) (abrogated on other
grounds by Gozlon-Peretz v. United
States, 498 U.S. 395, 111 S. Ct. 840, 112
L. Ed. 2d 919 (1991)) (holding that the
issuance of an ostrich instruction was
harmless error because its effect was
"neutralized" by the court’s "mere
presence" and "willing participation"
instructions which "tended to negate any
chance that the jury would convict [the
defendant] on any finding other than that
he knowingly joined and participated in
the conspiracy.") (citation omitted)./3
D. Minor Role Adjustment
As indicated above, Soto and Carrillo
were each sentenced to 151 months
imprisonment. Prior to sentencing, Soto
filed a written objection to the Pre-
Sentence Investigation Report ("PSR"),
arguing that he deserved a two-point
reduction for playing a minor role in the
offense. See U.S. Sentencing Guidelines Manual
sec. 3B1.2. Carrillo did not file any
written objections to the PSR, and when
questioned at the sentencing hearing, his
attorney stated that he did not wish to
move for a reduction pursuant to section
3B1.2 of the Guidelines./4 Both
defendants now ask us to reconsider the
district judge’s decision not to apply a
minor role adjustment. Carrillo, however,
has waived this issue by failing to
object to the PSR in writing, and by
indicating to the district court that he
had no objections. See United States v.
Staples, 202 F.3d 992, 995 (7th Cir.
2000). Therefore, appellate review is
precluded. See id. ("Waiver extinguishes
the error and precludes appellate
review.")
With respect to Soto’s claim, we review
the district court’s findings of fact for
clear error, and the court’s legal
conclusions de novo. See United States v.
Mojica, 185 F.3d 780, 790-91 (7th Cir.
1999). It is well-settled in our circuit
that a defendant’s eligibility for the
reduction depends on "whether the
defendant was a minor participant in the
crime for which he was convicted, not
whether he was a minor participant in
some broader conspiracy that may have
surrounded it." United States v. Isienyi,
207 F.3d 390, 392 (7th Cir. 2000). Thus,
a drug courier who is only held
accountable for the amount of drugs he
carried is not entitled to the reduction.
See United States v. Burnett, 66 F.3d
137, 140 (7th Cir. 1995). We have
recognized that a circuit split exists on
this issue, see United States v. Hamzat,
217 F.3d 494, 497 (7th Cir. 2000),
however, and a proposed amendment to the
Commentary to section 3B1.2 of the
Guidelines adopts the position that a
minor role reduction is warranted even if
the offense level "is determined solely
by the quantity personally handled by the
defendant." See U.S. Sentencing
Commission, Proposed Amend. 7, 65 FR
66792, 66798 (Nov. 7, 2000).
Soto argues that, in light of the
proposed amendment to section 3B1.2, we
should remand to the district court for
re-sentencing. We decline to do so not
only because the amendment has not yet
been adopted but because we are not
convinced that Soto would be entitled to
the reduction even under the proposed
amendment. At sentencing, the government
presented sufficient evidence to show
that Soto’s role went well beyond the
role of "mere courier." There was
substantial circumstantial evidence to
suggest that Soto’s role in the
conspiracy was an important one, even
when viewed in the context of the entire
conspiracy--he had been shown how to
operate the traps, had been present in
the garage where the cocaine was
presumably loaded into the Sable’s trap,
conducted counter-surveillance, and
picked up Carrillo at the movie theater
after Carrillo dropped off the Sable
containing the cocaine. Therefore, the
district court’s finding that Soto was
not entitled to a minor role adjustment
was not erroneous.
E. Vienna Convention
Lastly, defendants, who are Mexican
nationals, contend that the district
court should have suppressed their post-
arrest statements because the arresting
officers did not comply with Article
36(1)(b) of the Vienna Convention on
Consular Relations. Article 36(b)(1)
requires authorities to inform a foreign
national who is arrested or detained of
his right to communicate with his home
consulate. Although defendants recognize
that this argument is foreclosed by our
recent decisions in United States v.
Lawal, 231 F.3d 1045, 1048 (7th Cir.
2000), cert. denied, ___ U.S. ___, 121 S.
Ct. 1165, 148 L. Ed. 2d 1024 (2001)
(finding that the exclusionary rule is
not a proper remedy for a violation of a
detainee’s Article 36 rights), and United
States v. Chaparro-Alcantara, 226 F.3d
616, 624-25 (7th Cir.), cert. denied, 531
U.S. 1026, 121 S. Ct. 599, 148 L. Ed. 2d
513 (2000) (same), they ask us to
reconsider those decisions. We decline to
do so; accordingly, we find that the
district court did not err by admitting
defendants’ post-arrest statements.
III. Conclusion
For the reasons stated above, we AFFIRM
the judgment of the district court.
FOOTNOTES
/1 According to Braatsch, one legitimate use of a
trap would be to accommodate stereo amplifiers.
In this case, Agent Glynn observed that the
secret compartments were hidden inside the stereo
equipment rather than vice versa.
/2 The district court instructed the jury:
When the word "knowingly" is used in these
instructions, it means that the defendant real-
ized what he was doing and was aware of the
nature of his conduct and did not act through
ignorance, mistake, or accident. Knowledge may be
proved by the defendant’s conduct and by all the
facts and circumstances surrounding the case.
You may infer knowledge from a combination of
suspicion and indifference to the truth. If you
find that a person had a strong suspicion that
things were not what they seemed or that someone
had withheld some important facts, yet shut his
eyes for fear of what he would learn, you may
conclude that he acted knowingly as I have used
that word.
You may not conclude that the defendant had
knowledge if he was merely negligent in not
discovering the truth.
/3 In any event, any error was harmless in light of
the substantial evidence that the defendants had
actual knowledge of the illegal activities. See
Graffia, 120 F.3d at 713 n.5.
/4 At the sentencing hearing, Carrillo’s counsel
informed the court, "[w]ell, your honor, Mr.
Carrillo has been adequately informed about the
presentence report. He has read it with the
assistance of others in the [prison]. He assured
me he understands it. He has no request concern-
ing the minor participant. He is leaving that
matter entirely up to you." Tr. at 22-23.