United States v. Felix-Felix, Francis

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-2828, 00-2865

United States of America,

Plaintiff-Appellee,

v.

Francisco Felix-Felix and

Guadalupe Felix-Felix,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 CR 219--Ann Claire Williams, Judge,

and Joan B. Gottschall, Judge.

Argued March 29, 2001--Decided December 27, 2001

Before Easterbrook, Rovner, and Diane P.

Wood, Circuit Judges.

Diane P. Wood, Circuit Judge. Francisco

Felix-Felix and Guadalupe Felix-Felix

were cousins with too much in common.

Both were caught with substantial amounts

of cocaine, and both pleaded guilty to

possession of cocaine with intent to

distribute. Each plea agreement reserved

the defendant’s right to appeal the

district court’s denial of his motion to

suppress statements made to the police

during questioning, as well as the actual

cocaine the police found. Because we

believe that these statements and

searches were consistent with Fourth

Amendment standards, we affirm the

district court’s denial of the

suppression motions. We also find no

error in the sentencing of Francisco

Felix-Felix, and we therefore affirm both

judgments.

I

In September 1997, DEA agents conducting

surveillance of a known center for drug

transactions in Cicero, Illinois,

observed Guadalupe and Francisco making

calls from pay phones and conducting

brief meetings with other individuals in

and around that area. At one point, the

agents followed the two Felix-Felixes to

an apartment in Cicero, where the

officers asked for and received consent

from Guadalupe and Francisco to search

the premises. Two handguns and $6,100 in

cash, which the agents seized, turned up

as a result of the search. They made no

arrests at the time, and the September

1997 event is not at issue in this case.

Several weeks later, agents observed

Guadalupe and Francisco at a currency

exchange and followed them to a house at

211 Vintage Road in Buffalo Grove,

Illinois. A few months later, on April 1,

1998, they followed their lead on the

house and interviewed some of the

neighbors. Their interlocutors confirmed

that Guadalupe and Francisco frequented

the Buffalo Grove residence. The

neighbors also mentioned that they rarely

saw Guadalupe and Francisco outside the

home, but they often saw them driving in

and out of the garage in a white Jeep.

At about 1:45 p.m. the next day, DEA

agents conducting surveillance of the

Buffalo Grove residence saw Guadalupe

leave the garage driving a rented maroon

van. The agents also saw a parked white

Jeep Wrangler inside the garage. Agents

followed the maroon van to a McDonald’s

fast food restaurant in Hickory Hills,

Illinois. While they watched, Guadalupe

exited the van, went inside to have a

meal, walked to a nearby pay phone, and

placed several calls. He waited by the

telephone until a man, later identified

as Eduardo Vargas, approached and looked

inside the van. Vargas spotted Guadalupe,

walked to the pay phone, and shook hands

with him. Vargas then climbed into the

van alone, and drove it about a mile

away, as agents followed. Without making

any stops, Vargas returned to the

McDonald’s parking lot and placed a

telephone call from the same pay phone.

In the meantime, DEA agents had

continued surveillance of Guadalupe, who

had left the McDonald’s and walked to a

nearby Walgreen’s drug store. After

Vargas used the pay phone, Guadalupe left

the drug store and met Vargas at the

McDonald’s. The two then left the

McDonald’s together and hurriedly walked

to the rear of the building. As they

walked away from the McDonald’s,

Guadalupe bent down and placed the van

keys on the ground.

After a glance through the van windows

revealed a black suitcase and a box for a

measuring scale, the agents approached

the two men, who by this time had walked

into a residential neighborhood south of

the shopping center, and asked them if

the van belonged to one of them. Initial

ly, they both denied ownership, but after

further questioning, Guadalupe admitted

that he had been driving the van earlier

that day. Agents then brought Guadalupe

and Vargas back to the McDonald’s

restaurant. Guadalupe took the agents to

the parking lot area where he had placed

the keys to the van on the ground, and he

gave the keys to the agents. At some

point, either before or after returning

to the parking lot, Guadalupe gave the

agents written consent, in Spanish, to

search the van.

The police conducted their search with

the help of a drug-sniffing dog. As soon

as the dog jumped into the back of the

van, he provided a positive alert for the

presence of drugs in the box and the

suitcase. He was right: a search of the

box and the suitcase revealed 50

kilograms of cocaine (confirmed by a

field test). The agents then informed

Guadalupe and Vargas of their Miranda

rights and formally arrested them.

After Guadalupe’s arrest, DEA agents

returned to the house in Buffalo Grove

and recommenced their surveillance while

they waited for a search warrant. At

approximately 9:15 p.m., agents observed

Francisco pull into the subdivision

driving a white Jeep like the one the

agents observed earlier in the garage.

When Francisco turned into his cul-de-sac

and saw the agents’ cars, he sped past

the agents and did not stop at the house.

They pursued him until he was forced to

stop at a dead-end street. The agents ap

proached Francisco and asked him, in

Spanish, why he was driving in the area

and why he did not pull into the garage

of the house. He gave some evasive

answers, but before too long he signed a

written consent form permitting the

agents to search the house and garage; he

also gave them the garage door opener and

the keys to the house.

Two agents stayed outside with Francisco

while the search was conducted. Soon

after the search began, an agent came

back out and reported that he had found

syringes and pharmaceuticals. Asked about

these items, Francisco denied ownership.

The agents then discovered a suitcase in

the foyer closet containing 50 kilograms

of cocaine. At this time, the agents

advised Francisco of his rights (in

Spanish) and arrested him. He requested

counsel, at which point all questioning

ceased.

II

On April 22, 1998, Guadalupe, Francisco,

and Vargas were all indicted on one count

of conspiracy to possess with intent to

distribute cocaine, in violation of 21

U.S.C. sec. 846, and two counts of

possession of cocaine with intent to dis

tribute, in violation of 21 U.S.C. sec.

841(a)(1). Vargas entered into a plea

agreement with the government. In his

guilty plea, Vargas admitted that he had

met with both defendants to negotiate

several drug sales. He stated that on the

day before the arrest, he met Guadalupe

at the same McDonald’s restaurant and,

using the same rental van, received two

suitcases containing cocaine. Vargas told

agents that they had planned to make

another buy on April 2, but Vargas had

noticed that he was being trailed by law

enforcement agents, which was why

Guadalupe and Vargas walked away from the

van.

Prior to trial, Francisco moved to

suppress the statements he made when his

Jeep was stopped and to suppress the

evidence obtained in the search of the

Buffalo Grove house. The stop of his

Jeep, he asserted, was an arrest for

which probable cause was required; before

the officers could speak with him, he

argued further, they should have given

him his Miranda rights. The lack of both

safeguards meant that all of his answers

to the agents’ questions, the consent to

search form, and the results of the

search of the residence were illegal

evidence subject to suppression.

Guadalupe also filed a motion to

suppress the statements he made during

the agents’ questioning of him and the

evidence obtained from the search of the

van. He too argued that the seizure was

an arrest for which probable cause was

required. Guadalupe further urged that

the evidence should be suppressed because

the DEA agents had failed to advise him

that, as a citizen of Mexico, he had a

right to communicate with a consular

officer of his country pursuant to

Article 36 of the Vienna Convention on

Consular Relations, April 24, 1963 art.

36, 21 U.S.T. 77.

On September 28, 1999, the district

court denied both motions and the

accompanying requests for evidentiary

hearings. The court found that their

confrontations with the agents did not

violate the Fourth Amendment.

Additionally, the court found that while

the Vienna Convention had been violated,

Guadalupe had not shown that the

violation warranted exclusion of the

evidence.

On the day that jury selection was set

to begin, Guadalupe and Francisco

withdrew their not guilty pleas and

entered conditional guilty pleas on all

three counts, reserving their rights to

appeal the district court’s denial of

their suppression motions. After a

thorough hearing, the court accepted the

pleas (which were unaccompanied by any

plea agreements) and entered judgments of

conviction on October 19, 1999.

Sentencing took place on July 13, 2000.

At the hearing, Guadalupe and Francisco

both requested reductions in their

offense levels based on their "minor"

roles in the conspiracy, U.S.S.G. sec.

3B1.2(b), as well as acceptance of

responsibility, U.S.S.G. sec. 3E1.1. The

court denied the motions and sentenced

both Guadalupe and Francisco to 151

months on each count, to run

concurrently, and five years of

supervised release. Both defendants

appeal the district court’s denial of

their separate motions to suppress, and

Francisco also appeals the determination

of his sentencing offense level.

III

The main issues in this case revolve

around the encounters between the

defendants and the police. Citizen-police

encounters can be placed into three

categories: the first category, a

consensual encounter, involves no

restraint on a subject’s liberty and is

characterized by non-coercive police

questioning of a citizen who voluntarily

cooperates. This is not a seizure within

the meaning of the Fourth Amendment and

requires no objective justification.

United States v. Mendenhall, 446 U.S.

544, 552-54 (1980).

The second category is an investigatory

stop, which is limited to a brief, non-

intrusive detention, often termed a Terry

stop. See Terry v. Ohio, 392 U.S. 1

(1968). An "officer may ask the detainee

a moderate number of questions to

determine his identity and to try to

obtain information confirming or

dispelling the officer’s suspicions" that

criminal activity is afoot. Berkemer v.

McCarty, 468 U.S. 420, 439 (1984). An

investigatory stop may also include a

pat-down search. United States v.

Feliciano, 45 F.3d 1070, 1072 (7th Cir.

1995). A Terry stop is subject to Fourth

Amendment standards, but an officer need

only have specific, articulable facts

that give rise to a reasonable suspicion

of criminal activity. Id. This level of

suspicion is considerably lower than

proof of wrongdoing by a preponderance of

the evidence. United States v. Sokolow,

490 U.S. 1, 7 (1989).

When police actions exceed a short

detainment, the seizure becomes a full-

blown arrest, for which the police are

required to have probable cause to

believe that a person has committed or is

committing a crime. Beck v. Ohio, 379

U.S. 89, 96-97 (1964). We will examine

the stops with these Fourth Amendment

"seizure" standards in mind.

A. Guadalupe’s Claims

1. Denial of Evidentiary Hearing

We first address Guadalupe’s challenge

to the district court’s decision to

forego an evidentiary hearing before

denying the motion to suppress. We review

this determination for clear error,

reversing only if we are left with a

definite and firm conviction that an

error has occurred. United States v.

Rodriguez, 69 F.3d 136, 140 (7th Cir.

1995).

Upon examination of the record, we

cannot say that the district court

committed clear error in concluding that

a hearing was unnecessary. It was

Guadalupe’s burden to establish the

necessity of a hearing by demonstrating

that there was a disputed material issue

of fact justifying relief. United States

v. Randle, 966 F.2d 1209, 1212 (7th Cir.

1992). For the most part, Guadalupe’s

motion simply recited the facts contained

in the DEA agent’s affidavit supporting

the criminal complaint. Contrary to the

government’s assertions, there was one

potential area of dispute. DEA Agent

Freyberger’s affidavit stated that

Guadalupe gave his consent to search the

van while agents were questioning him in

the residential neighborhood. Guadalupe’s

motion had a different version of the

timing: he claimed that he signed the

consent to search form after he returned

to the McDonald’s parking lot and saw the

agents trying to open his van with a

"slim jim." This dispute would have been

material, however, only if Guadalupe had

argued that seeing the slim jim procedure

somehow made his subsequent consent

involuntary. But Guadalupe made no such

argument in his motion, and it is not up

to us to construct something along these

lines for him. (This holding is

reinforced by Guadalupe’s appellate

counsel’s statement in his brief that

"[d]efendant’s motion assumed as correct

the facts averred in the [government’s]

Affidavit in Support of Criminal

Complaint for purposes of arguing that

those facts . . . do not constitute

probable cause." Br. at 6, 13-14.)

Guadalupe also suggests that when he was

forcibly "brought back" from the

neighborhood to the van, the

investigatory stop became an arrest for

which probable cause was required. He

maintains that a hearing was necessary to

determine whether the encounter was

either an arrest or merely a Terry stop.

The problem with this argument is that it

comes too late in the day. Nowhere in his

motion to suppress did Guadalupe mention

to the district court that the DEA agents

used force when detaining him. Indeed,

even in his brief to this court,

Guadalupe did not describe the method by

which he was "brought back" to the van.

Although a careful look at the record

reveals that Guadalupe mentioned at the

plea hearing that the police handcuffed

him and then brought him back in a police

cruiser, he never focused on those facts

as a ground for granting his suppression

motion. Neither the district court nor

this court is required to dig through the

record to construct arguments a litigant

has not made. Guadalupe’s repeated

failure to clarify what specific "force"

distinguished his case from other Terry

stops amounts to a forfeiture of any

possible argument he might have made

based on those facts. His lack of

attention to this point also means that

the district court did not err in

refusing to hold a hearing on the

question of the degree of force used.

Given the state of this record, we

express no view on the question whether

the exercise of control over his freedom

of movement employed by the police here

was enough to escalate the stop from a

Terry stop to a full-blown arrest.

2. Seizure

The district court found that the

agents’ stop of Guadalupe in the

neighborhood was a Terry investigatory

stop supported by a reasonable suspicion

of criminal activity. We review this

determination de novo, although we review

findings of historical fact for clear

error and give due weight to inferences

drawn from those facts by district judges

and local law enforcement officers. See

Ornelas v. United States, 517 U.S. 690,

699 (1996).

We see no clear error in the underlying

facts the district court found, and on

the basis of that record, we conclude

that the agents’ questioning of Guadalupe

in the residential neighborhood qualified

as at most an investigatory stop. Indeed,

initially the agents were not even

detaining him forcibly. They had not

patted him down; they were simply

questioning him about his identity and

his whereabouts that day. To the extent

that there was an investigatory stop, it

was justified by a reasonable suspicion

that drug trafficking was either about to

happen or had already happened. Guadalupe

had been observed in known drug-

trafficking locations using pay phones.

Earlier, the agents had found a large

amount of cash and weapons in his

apartment. On the day of the encounter,

Guadalupe drove a van to a restaurant

parking lot but then let someone else

drive it, only to have it returned a few

minutes later. Guadalupe then left the

van behind after deliberately leaving the

keys on the ground in the parking lot.

These circumstances, taken as a whole,

were enough to arouse the suspicions of

reasonable DEA agents and to justify the

detention as a Terry stop.

3. Search of Van

Guadalupe also contends that he did not

voluntarily consent to the search of the

van. Thus, he claims, all of the evidence

found in the van was the result of an

illegal search. Had the consent to search

the van been made in the midst of an

illegal arrest, it may very well have

been invalid as "fruit of the poisonous

tree." See United States v. Sanchez-

Jaramillo, 637 F.2d 1094, 1099-1100 (7th

Cir. 1980) (excluding evidence found

after consent given during illegal

arrest). But if the investigatory stop

was justified, as we have concluded this

one was, we examine the consent only to

see if it was "the product of an

essentially free and unconstrained

choice. . . ." Schneckloth v. Bustamonte,

412 U.S. 218, 225 (1973). Guadalupe has

offered nothing to support a finding of

involuntariness. The consent form was

written in Spanish, Guadalupe’s native

language, and he signed it. He makes no

argument that he was threatened or

otherwise coerced into giving the

consent. The fact that he was being

questioned by police at the time is no

basis for establishing involuntariness.

See United States v. Cipriano, 765 F.2d

610, 612 (7th Cir. 1985) ("[T]here is

nothing inherently coercive in an

officer’s identification of himself as a

law enforcement agent and subsequent

questioning.") Looking at the "totality

of the circumstances," see Schneckloth,

412 U.S. at 227, Guadalupe has not shown

that his consent was given unknowingly or

involuntarily.

4. Vienna Convention Violation

Guadalupe also argues that any

statements he made should be suppressed

because the agents violated his rights

under the Vienna Convention in failing to

notify him that he had the right, as a

Mexican citizen, to communicate with the

Mexican consulate. He asserts that had he

been informed of his right, he would not

have given the incriminating statements.

Although the district court judge found

that the notice requirements of the

Convention were not met, the judge found

that exclusion was not proper because

Guadalupe had not shown that he was

prejudiced by the violation of the

Convention.

The district court decided this issue

without the benefit of United States v.

Lawal, 231 F.3d 1045 (7th Cir. 2000), in

which this court held that exclusion of

evidence was not the proper remedy for

violation of a defendant’s consular

access rights under the Vienna

Convention. See also United States v.

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

United States v. Chaparro-Alcantara, 226

F.3d 616, 624-25 (7th Cir. 2000).

Although he acknowledged Lawal, Guadalupe

has asked for exclusion anyway, in the

hope that the Supreme Court would

overturn Lawal. However, the Supreme

Court has since denied certiorari in

Lawal, 121 S.Ct. 1165 (2001). We too are

not inclined to revisit the issue, and

thus even if the Convention was violated,

the district court correctly refused to

suppress evidence on that ground.

B. Francisco’s Claims

1. Seizure

Francisco also wanted to suppress the

statements that he made when the agents

questioned him, as well as the evidence

obtained in the search of the Buffalo

Grove house. He argued that the stop of

his vehicle constituted an arrest for

which probable cause was required, and

that he was entitled to Miranda warnings

before being questioned. The district

court found that the stop was only a

Terry stop and not an arrest, and that

the officers had a reasonable suspicion

of criminal activity. (Francisco had also

requested an evidentiary hearing; he does

not appeal the denial of that request.)

The chase of the Jeep Wrangler was

certainly not a seizure--a show of

authority, without any application of

physical force, to which the suspect does

not yield, is not a seizure. California

v. Hodari D., 499 U.S. 621, 626-27

(1991). But Francisco argues that he was

effectively arrested when his Jeep was

trapped in the dead end. The government,

again, argues that the stop was an

investigatory stop and not an arrest.

Had Francisco simply chosen to stop his

car and answer the government’s

questions, it would have been easy

toconclude that this was a Terry stop for

which there was adequate justification.

Francisco, like Guadalupe, had been seen

in high drug crime areas. By the time the

officers stopped Francisco, they had

already discovered cocaine in a van that

was garaged at a house in which Francisco

had been seen. The agents saw Francisco

drive into his subdivision and then speed

past his residence. See Illinois v.

Wardlow, 528 U.S. 119 (2000) (unprovoked

flight upon noticing the police is a

pertinent factor in determining

reasonable suspicion).

The question is whether the stop became

an arrest when he was "cornered" in the

dead end and had no choice but to stop

and exit the car. We conclude that these

circumstances were largely of Francisco’s

own making and thus did not transform the

nature of the police conduct. A Terry

stop is, after all, a brief involuntary

detention. One of the ways the police

might ensure compliance with their

request for a person to stop is to cut

off other avenues of escape. That is all

that happened here. Once police have the

reasonable suspicion required to justify

an investigatory stop, they may use

reasonable means to effectuate that stop.

United States v. Weaver, 8 F.3d 1240,

1244 (7th Cir. 1993); Tom v. Voida, 963

F.2d 952, 958 (7th Cir. 1992). The stop

in the dead-end street was necessitated

by Francisco’s attempts to evade the

agents. It is also worth noting that in

considering whether an investigatory stop

has transformed into an arrest, "we

consider whether the subject’s own

actions in resisting the legitimate

efforts of police to stop and question

him played a role in bringing about the

challenged police conduct." Weaver, 8

F.3d at 1243. Neither the chase nor the

ultimate stop in the dead end had the

effect of transforming this particular

traffic stop and the resulting

conversation into an arrest.

Because the entire encounter was just a

Terry stop, probable cause was not

required. Nor were the police required at

that stage to give Francisco his Miranda

warnings. See United States v. Lennick,

917 F.2d 974, 977 (7th Cir. 1990). And,

as already discussed, there was

sufficient justification for the

investigatory stop. It follows that the

consent to search the home was also valid

and Francisco’s claim of coercion must be

rejected.

2. Denial of Sentencing Reduction for

Minor Role

Francisco also contends that he should

have received a two-point adjustment to

his offense level under sec. 3B1.2(b) of

the sentencing guidelines. Section

3B1.2(b) allows a judge to decrease the

offense level by two "[i]f the defendant

was a minor participant in any criminal

activity." A minor participant is a

participant "who is less culpable than

most other participants, but whose role

could not be described as minimal."

U.S.S.G. sec. 3B1.2, comment (n. 3). The

reduction is often used with a conspiracy

charge to ensure that the defendant’s

sentence, which may be based on the

"relevant conduct" of co-conspirators,

does not reflect conduct other than his

own. See United States v. Mojica, 185

F.3d 780, 791 (7th Cir. 1999).

At the sentencing hearing, Francisco

bore the burden of demonstrating that the

reduction was warranted. He chose to

carry that burden by resting solely on

his admission during his guilty plea and

the government’s version of the offense;

he did not offer any additional evidence

that may have supported his request. The

district court denied the reduction and

sentenced him accordingly. Because the

district court’s conclusion is heavily

dependent on the facts, we review it only

for clear error. See United States v.

Lampkins, 47 F.3d 175, 180 (7th Cir.

1995).

On appeal, Francisco argues that he was

clearly less responsible than Guadalupe

since it was Guadalupe who drove the van

to the meeting site to deliver the

narcotics. Vargas stated in his plea

admission, however, that he met with both

of the defendants to negotiate the deal.

Additionally, Francisco did not dispute

that he was responsible for the

safekeeping of the cocaine at the

residence. Last, and in this circuit most

important, the district court held him

accountable only for the 50 grams of

cocaine that were found in a house where

he was staying. In other words, he was

sentenced only for drugs that he himself

"had his hands on" at the house, which

made the downward departure neither

necessary, nor, under our interpretation

of the existing guidelines, appropriate.

See Lampkins, 47 F.3d at 180-81.

IV

We therefore Affirm the district court’s

orders denying both motions to suppress.

We also Affirm the convictions and

sentences of Francisco and Guadalupe

Felix-Felix.