269 F.3d 761 (7th Cir. 2001), 00-2643, United States v Carrillo

Docket Nº:00-2643
Citation:269 F.3d 761
Party Name:United States of America, Plaintiff-Appellee, v. Anselmo Carrillo and Francisco Soto, Defendants-Appellants.
Case Date:October 18, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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269 F.3d 761 (7th Cir. 2001)

United States of America, Plaintiff-Appellee,


Anselmo Carrillo and Francisco Soto, Defendants-Appellants.

No. 00-2643

United States Court of Appeals, Seventh Circuit

October 18, 2001

Argued May 9, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 54--Charles R. Norgle, Sr., Judge.

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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

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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. § 841(a)(1) and § 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

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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...

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