United States v. Garcia Parra, Arturo

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-2056 & 03-2171

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTURO GARCIA PARRA and

MAGDALENA CORREA,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 02-CR-92-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED MARCH 29, 2004—DECIDED MARCH 29, 2005

____________

Before CUDAHY, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. After conducting elaborate surveil-

lance, a team of federal, state, and local law enforcement

officials nabbed Nazario Varela, Magdalena Correa, Arturo

Garcia Parra, and Luis Garcia Parra on cocaine trafficking

and possession charges. (In order to keep the two Garcia

Parra brothers straight, we will refer to them using their

first names.) All four were indicted for conspiring to dis-

2 Nos. 03-2056 & 03-2171

tribute and possess with intent to distribute in excess of 500

grams of cocaine, in violation of 21 U.S.C. § 846, and for

possessing with intent to distribute in excess of 500 grams of

cocaine, in violation of 21 U.S.C. § 841(a)(1). Varela and

Luis pleaded guilty, but Arturo and Correa went to trial and

were convicted on both counts. The latter two now appeal.

Arturo has raised challenges to the admission of expert

testimony regarding drug trafficking counter-surveillance

techniques; the sufficiency of the evidence to sustain his con-

viction; and the court’s refusal to reduce his offense level for

having only a minor role in the conspiracy. Correa contends

that the officers lacked probable cause to arrest her, and

therefore the court erred in denying her motion to suppress

evidence found in a search incident to her arrest. In a

supplemental brief, Correa has also argued that her

sentence was unconstitutional under the rule announced in

Blakely v. Washington, 124 S.Ct. 2531 (2004), and now

United States v. Booker, 125 S.Ct. 738 (2005). We affirm the

district court’s judgment of guilt with respect to both

defendants. We order a limited remand with respect to both

of the sentences imposed, in keeping with the procedure

outlined in United States v. Paladino, Nos. 03-2296 et al.,

2005 WL 435430 (7th Cir. Feb. 25, 2005).

I

On June 20, 2002, Murillo Luna, a confidential source,

purchased 55.18 grams of cocaine from Varela at the latter’s

home in Janesville, Wisconsin. Five days later, on June 25,

Luna and Drug Enforcement Administration (DEA)

Special Agent Bill Chamulak, acting in an undercover capac-

ity, returned to Varela’s home to purchase a quarter kilogram

of cocaine. Varela asked Luna and Agent Chamulak to return

in about half an hour. Shortly thereafter, officers observed

Varela removing a white cooler from a brown Cadillac in

front of his house. When Luna and Agent Chamulak re-

Nos. 03-2056 & 03-2171 3

turned to the house, they noticed a white cooler with the lid

removed. They purchased 248.3 grams of cocaine from

Varela and then departed. Thirty-five minutes later, the

brown Cadillac returned to Varela’s house and officers saw

an Hispanic man enter the house and then leave after

approximately one minute. They also saw an unidentified

passenger in the vehicle. Surveillance officers followed the

brown Cadillac and observed an Hispanic man and woman

exit and then reenter the vehicle, which was later located at

1503 Porter Avenue in Beloit, Wisconsin. This address was

the residence of Arturo, Luis, and Correa.

On July 10, 2002 at 11:30 a.m., Agent Chamulak and

Luna returned to Varela’s house to negotiate the purchase

of one more kilogram of cocaine. Varela made a phone call

and instructed Agent Chamulak and Luna to return at 3:00

p.m., because his source had to go to Chicago to obtain the

cocaine. At 12:03 p.m., an officer with the Rock County

State Line Area Narcotics Task Force (SLANT) observed

Luis and Arturo drive away from 1503 Porter Avenue in a

white Cadillac. Six SLANT vehicles and a C-26 military

aircraft followed the white Cadillac from Beloit to Chicago.

Remarkably, the passengers in the Cadillac never noticed

their extensive entourage. Upon arriving in Chicago, they

parked their car and interacted with someone in a silver

car. Luis walked between some buildings with the occupant

of the silver car, while Arturo returned to the white Cadillac

and opened the hood and trunk. Luis then walked around

the car, including the trunk area, and Arturo closed the

hood and trunk. Nineteen minutes after arriving in Chicago,

they departed.

At about 4:30 p.m., the white Cadillac arrived in Janesville

and parked on Main Street. Arturo and Luis checked some-

thing in the trunk and then walked to the parking lot of a

Quick Stop gas station, with Arturo trailing behind Luis.

Officers observed Arturo standing on the corner of Racine

and Main Streets, repeatedly looking up and down the street

4 Nos. 03-2056 & 03-2171

and toward the location of the white Cadillac. Shortly there-

after, Varela, Luna, and Agent Chamulak arrived at the

parking lot of the Mexican supermarket located across the

street from the Quick Stop. Varela got out of the vehicle and

entered the surrounding neighborhood. Nine minutes later,

the same brown Cadillac that was present at the June 25

cocaine sale drove into the Quick Stop parking lot. Luis

approached the brown Cadillac and spoke with someone

inside, later identified as Correa. The brown Cadillac then

drove into the parking lot of the Mexican supermarket.

Agent Chamulak observed Correa seated in the brown

Cadillac, with her attention focused on Luna and Varela

and on Agent Chamulak’s vehicle. Surveillance personnel

observed Varela approach the passenger side of the brown

Cadillac and engage in a conversation with Correa. Varela

later testified that Correa asked him if he had received the

money from the buyer, and when he answered in the nega-

tive she commented, “This is not the way you do the deals.”

As Varela and Luna walked to the white Cadillac, Correa

pulled out of the parking lot and parked on the same side of

Main Street as the white Cadillac. According to Special

Agent Jerry Becka, this position would have allowed Correa

to monitor the white Cadillac through her rear view mirror.

Varela and Luna opened the trunk of the white Cadillac and

found approximately one kilogram of cocaine there. Officers

promptly arrested Varela, Luis, and Arturo. A minute later,

Special Agent Jeanne Hehr and several other officers

arrested Correa.

Both Varela and Luis pleaded guilty to both counts of the

indictment. Varela testified for the government at Arturo’s

and Correa’s trial pursuant to his plea agreement. Varela

reported that he worked with Arturo in Janesville and told

Arturo that he needed money. Arturo referred Varela to Luis,

from whom Varela borrowed $2,200. When Varela was un-

able to pay back the money, he agreed to sell cocaine for

Luis. Varela testified that Luis and Correa delivered the

Nos. 03-2056 & 03-2171 5

cocaine for the June 20 sale. Luis also provided Varela with

the cocaine for the June 25 sale, using a white cooler. After

this purchase, Correa called Varela to discuss whether he

had obtained the money and his cut of the profits. Finally,

Varela stated that Arturo told him that his brother had

asked him to be at the July 10 transaction because his

brother was afraid that Varela was going to steal the money.

The district court permitted the government to call Agent

Becka to testify about the modus operandi of drug dealers,

especially the use of counter-surveillance techniques,

rejecting Arturo’s motion in limine seeking to exclude this

testimony. Agent Becka opined that Arturo and Correa

provided counter-surveillance during the July 10 sale. The

government established that Agent Becka had been a DEA

special agent for over 19 years; that he had completed train-

ing at both basic and advanced agent schools and attended

yearly meetings where he learned about the latest tricks of

the drug trade; that he had personally purchased drugs in

an undercover capacity over 125 times and provided sur-

veillance in over 1,000 undercover operations; and that he

had interviewed drug dealers at least 500 times to learn

how they operate. On this basis, the court found Agent Becka

qualified to testify as an expert.

At the close of the government’s case and again at the end

of trial, Arturo and Correa moved for a judgment of acquit-

tal, which the court denied. The jury returned a verdict of

guilty against both of them on both counts of the indict-

ment. Arturo then objected to the presentence report,

arguing that he should have been given a minor role re-

duction in his offense level computation on the theory that

he had acted only as a lookout during the July 10 sale. The

court refused to make this downward adjustment, adopting

the calculations in the presentence report. Arturo now ap-

peals from his conviction and his sentence, as does Correa.

6 Nos. 03-2056 & 03-2171

II

A. Arturo Garcia Parra

Arturo first argues that the district court erred in allowing

Agent Becka to testify as an expert witness. He contends

that Agent Becka’s testimony did not satisfy the require-

ments for expert testimony established by FED. R. EVID. 702

and the Supreme Court’s decision in Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993). At this point, Rule 702

has superseded Daubert, but the standard of review that

was established for Daubert challenges is still appropriate.

Under that standard, we review de novo the question

whether the district court properly applied the legal

framework, and we review decisions to admit or exclude

expert testimony under the rule for abuse of discretion. See

United States v. Allen, 269 F.3d 842, 845 (7th Cir. 2001).

Expert testimony is admissible if offered by “a witness

qualified as an expert by knowledge, skill, experience, train-

ing, or education,” and “if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has

applied the principles and methods reliably to the facts of

the case.” FED. R. EVID. 702. Daubert laid the foundation for

this rule, which was designed to ensure that “any and all

scientific testimony or evidence admitted is not only relevant,

but reliable.” Smith v. Ford Motor Co., 215 F.3d 713, 718

(7th Cir. 2000) (internal quotation marks omitted).

In applying the rule, we have recognized that “[w]hile

extensive academic and practical expertise in an area is

certainly sufficient to qualify a potential witness as an ex-

pert, Rule 702 specifically contemplates the admission of

testimony by experts whose knowledge is based on experi-

ence.” Id. (internal quotation marks and citations omitted);

see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999).

“Thus, a court should consider a proposed expert’s full range

of practical experience as well as academic or technical

Nos. 03-2056 & 03-2171 7

training when determining whether that expert is qualified

to render an opinion in a given area.” Smith, 215 F.3d at

718; see also United States v. Conn, 297 F.3d 548, 556 (7th

Cir. 2002) (observing that the Advisory Committee notes to

Rule 702 specifically provide that “[i]n certain fields, exper-

ience is the predominant, if not the sole, basis for a great

deal of reliable expert testimony”).

The district court here properly applied Rule 702. After

conducting a hearing, the court observed that “the Seventh

Circuit has been extremely liberal in allowing testimony by

police officers and federal agents about the use of counter-

surveillance in drug transactions and about other aspects

of drug transactions.” The court concluded that “Agent Becka

is qualified to testify as an expert about these matters,”

citing his formal training from agent school, including

training in counter-surveillance techniques, his extensive

experience as a DEA special agent, and his involvement in

“many dozens, if not hundreds” of undercover purchases

of controlled substances. On appeal, Arturo counters this

reasoning only with the fact that Agent Becka had never

previously testified as an expert on these matters.

But there is a first time in court for every expert: the

question is not whether Agent Becka was a professional

witness; it is whether he was an expert on the topic of the

modus operandi of narcotics dealers. The district court was

amply justified in concluding that he was. Compare Conn,

297 F.3d at 556. Officer Becka had the kind of experience,

education, and training that we have recognized in the past

as supporting a finding of expertise. See id.; Allen, 269 F.3d

at 846. On several occasions, we have found that an agent’s

experience qualifies him or her to testify as an expert

regarding drug trafficking counter-surveillance. See, e.g.,

United States v. Sanchez-Galvez, 33 F.3d 829 (7th Cir.

1994); United States v. de Soto, 885 F.2d 354 (7th Cir.

1989). See also United States v. Romero, 189 F.3d 576, 584-

85 (7th Cir. 1999) (stating that “modus operandi evidence

has proved useful in drug trafficking cases,” including testi-

8 Nos. 03-2056 & 03-2171

mony “regarding various counter[-]surveillance techniques

used by drug dealers to avoid detection”); United States v.

Brown, 7 F.3d 648, 652 (7th Cir. 1993) (same).

Arturo seeks to distinguish these cases by arguing that

the jury did not need the agent’s testimony to understand

the case. He urges that the surveillance recordings of the

July 10 transaction allowed the jury to be “in effect an eye-

witness to Arturo’s actions” and thus it “could have deter-

mined by viewing DVD and surveillance tapes the entire

scope of his alleged involvement and determined whether

he was engaged in acting as a lookout or not” without Agent

Becka’s input. This argument fails to recognize the breadth

of the district court’s discretion in deciding whether to admit

or exclude evidence. Moreover, we have recognized in the

past that Agent Becka’s type of expertise can indeed assist

the trier of fact with its analysis of defendants’ conduct. See

Romero, 189 F.3d at 584; Sanchez-Galvez, 33 F.3d at 832.

Recognizing the value of such testimony, we have allowed

expert testimony describing how defendants’ otherwise

innocent-looking conduct was consistent with drug traffick-

ing counter-surveillance. See Sanchez-Galvez, 33 F.3d at

832; de Soto, 885 F.3d at 360. Agent Becka’s testimony

regarding Arturo’s activities during the July 10 transaction

was valuable notwithstanding the fact that the jury had

access to the surveillance tapes.

Arturo also objects to the admission of Agent Becka’s

testimony on the ground that he took the stand both as an

eyewitness to Arturo’s conduct and as an expert regarding

narcotics counter-surveillance tactics. Agent Becka testified

that he witnessed Arturo “looking up and down the street

around and then looking back towards where I was told the

white Cadillac was parked.” He then explained to the jury

why, in his expert opinion, this seemingly innocuous

conduct indicated that Arturo was engaged in counter-sur-

veillance. While “[t]estifying as both eyewitness and expert

is permissible,” we recognize that “when these two roles are

Nos. 03-2056 & 03-2171 9

intertwined, the possibility of juror confusion is increased.”

de Soto, 885 F.3d at 360. This situation “place[s] an espe-

cially heavy burden on the district court to ensure that the

jury understood its function in evaluating the evidence.” Id.

This is particularly so where, as here, the activities sug-

gesting counter-surveillance may appear to be innocent. Id.

at 361.

The district court was careful to avoid these pitfalls. First,

because it conducted an evidentiary hearing regarding

Agent Becka’s qualifications as an expert, Arturo knew

what to expect from him. Second, it gave the jury a caution-

ary instruction, in which it advised the jury to give Agent

Becka’s testimony “whatever weight you think it de-

serves”—that is to say, no special weight merely because

the agent was also testifying as an expert. Finally, both

counsel for Arturo and counsel for Correa engaged in rigor-

ous cross-examination of Agent Becka regarding his

expertise and the substance of his testimony.

Arturo finally argues that, even if Agent Becka’s testimony

was reliable and relevant, the court should have excluded

it under FED. R. EVID. 403, which allows the court to exclude

relevant evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice.” According to

Arturo, the real danger was either that the jury might have

attached undue weight to Agent Becka’s testimony or that

it might not have been able to disentangle his direct

observations from his expert knowledge. In United States v.

Mansoori, 304 F.3d 635 (7th Cir. 2002), we explained why

such dual testimony may be permitted, with the proper

safeguards:

Although we have acknowledged that there is a greater

danger of undue prejudice to the defendants when a

witness testifies as both an expert and a fact witness,

we have also indicated that a police officer may permis-

sibly testify in both capacities. The potential for pre-

10 Nos. 03-2056 & 03-2171

judice in this circumstance can be addressed by means

of appropriate cautionary instructions and by examina-

tion of the witness that is structured in such a way as

to make clear when the witness is testifying to facts and

when he is offering his opinion as an expert.

Id. at 654 (internal citations omitted). As we have already

noted, both of those measures were taken in this case, and

thus neither Rule 702 nor Rule 403 bars Agent Becka’s

testimony.

We turn then to Arturo’s claim that there was insufficient

evidence to convict him of either the conspiracy offense or

the possession with intent to distribute offense. The task of

challenging the sufficiency of the evidence “is a daunting

one, as the standard of review that this court applies is

necessarily rigorous. Our threshold inquiry is whether ‘after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’ ”

United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

We begin with Arturo’s conspiracy conviction. “A conspir-

acy conviction requires a showing that a conspiracy existed

(two or more persons joined together for the purpose of

committing a criminal act) and that the charged party knew

of and intended to join the agreement.” United States v.

Adkins, 274 F.3d 444, 450 (7th Cir. 2001) (internal quo-

tation marks omitted). “The government may establish these

elements through circumstantial evidence and the reason-

able inferences therein concerning the parties’ relationships,

their overt acts, and their overall conduct.” United States v.

Navarrete, 125 F.3d 559, 562 (7th Cir. 1997). Because

Arturo apparently concedes that a conspiracy existed, we

need determine only whether he knowingly and intention-

ally joined that conspiracy. Arturo contends that there is

insufficient evidence to establish his involvement, citing the

Nos. 03-2056 & 03-2171 11

absence of drugs or drug paraphernalia in his bedroom at

1503 Porter Avenue, the lack of any cellular phone records

or drug ledgers linking him to the conspiracy, and his

nonparticipation in the undercover transactions prior to

July 10. The government counters by detailing Arturo’s role

in retrieving the kilogram of cocaine from Chicago on July

10 and Agent Becka’s testimony that Arturo’s conduct at

the scene of the July 10 transaction was consistent with

drug trafficking counter-surveillance. In addition, the gov-

ernment points to Varela’s testimony that Arturo explained

that he was present at the July 10 transaction because his

brother thought Varela was going to steal the money.

“Although mere presence is insufficient to show that the

defendant was acting in furtherance of a conspiracy, the

government can prove that a defendant joined a conspiracy

if his presence, along with other evidence indicating that

the presence or act was intended to advance the ends of the

conspiracy is shown.” Navarrete, 125 F.3d at 562 (internal

quotation marks omitted). Our analysis in United States v.

Sasson, 62 F.3d 874 (7th Cir. 1995), is instructive. There we

found sufficient evidence to support the jury’s conclusion

that defendant Sasson knowingly and intentionally joined

a drug distribution conspiracy by providing counter-surveil-

lance. Id. at 888. Like Arturo, Sasson did not personally

conduct the drug transactions, but the remainder of his

behavior indicated that he was acting as a lookout. In

finding the evidence sufficient to prove Sasson’s involvement

in the conspiracy, we explained:

Whether a defendant’s behavior constitutes counter-

surveillance or simply loitering is a question of fact for

the jury to decide, and the fact that Sasson did not have

all the usual “trappings” of a drug dealer is not dispos-

itive. . . . Under the circumstances and given the fact

that Sasson accompanied [the dealer] to each and every

one of the five drug transactions, a reasonable juror

could very easily conclude that Sasson was there to serve

as a “lookout” and to see that the drug deals were suc-

12 Nos. 03-2056 & 03-2171

cessfully completed, justifying the logical inference that

Sasson was an active participant in the conspiracy.

Id. at 887 (internal citations and quotation marks

omitted).

We have repeatedly stated that “engaging solely in coun-

ter-surveillance at a drug transaction is sufficient to prove

participation or membership in a conspiracy to sell drugs.”

Id.; see also United States v. Saadeh, 61 F.3d 510, 525 (7th

Cir. 1995); Sanchez-Galvez, 33 F.3d at 834; United States v.

Brigham, 977 F.2d 317, 319 (7th Cir. 1992). Viewing the

evidence in the light most favorable to the prosecution, as

we must, we hold that a reasonable jury could have credited

Agent Becka’s testimony and found that Arturo engaged in

counter-surveillance on July 10. See Navarrete, 125 F.3d at

562-63. As “counter-surveillance at a drug transaction is

sufficient to prove participation or membership in a con-

spiracy to sell drugs,” Sasson, 62 F.3d at 887, Arturo cannot

prevail on his insufficiency of the evidence claim with

respect to his conspiracy conviction.

We likewise hold that there was sufficient evidence to

support Arturo’s conviction for knowingly possessing with

intent to distribute cocaine. To prove this charge, “the

Government had to show three things: 1) knowing or inten-

tional possession of the drug, 2) possession with intent to

distribute and 3) knowledge that the drug was a controlled

substance.” United States v. Harris, 325 F.3d 865, 868 (7th

Cir. 2003). Arturo argues that there was insufficient evi-

dence to convict him, relying primarily on the lack of direct

evidence that he ever possessed the kilogram of cocaine

which was the subject of the July 10, 2002, transaction.

The absence of direct evidence in no way demonstrates

that there was insufficient evidence of Arturo’s possession

of cocaine. As we have often stated, “[i]n addition to actual

possession, possession can be constructive, and constructive

possession can be established through circumstantial

Nos. 03-2056 & 03-2171 13

evidence. Constructive possession exists where the evidence

demonstrates ownership, dominion, authority, or control.

Constructive possession may be sole or joint.” United States

v. Richardson, 208 F.3d 626, 632 (7th Cir. 2000) (internal

citations omitted). To show constructive possession, “the

government [must] establish a nexus between the accused

and the contraband, in order to distinguish the accused

from a mere bystander.” Id.

On several occasions, we have found possession with in-

tent to distribute a controlled substance when the defendant

denied knowledge of drugs that were located in the car that

she was driving or in which she was a passenger. See

United States v. Griffin, 150 F.3d 778 (7th Cir. 1998);

United States v. Elizondo, 920 F.2d 1308 (7th Cir. 1990).

This case is the same. Arturo and Luis left their home for

Chicago minutes after Varela called his source; they spent

only 19 minutes in Chicago; they opened the trunk of the

car while in Chicago and again upon arriving in Janesville,

which was not their city of departure; they drove the car to

several locations and walked around and near the car sus-

piciously; and when they arrived at the Quick Stop, Arturo

positioned himself on a corner where he could monitor the

car and repeatedly looked around and at the car. Ultimately,

the agents seized a kilogram of cocaine from the trunk of

the car. A reasonable jury was entitled to conclude that

Arturo had constructive joint possession of the cocaine in the

trunk of the car, arising from his “shared rights of dominion

and control” over the drugs, even if he never admitted that

he knew about the cocaine in the vehicle.

Finally, we turn to Arturo’s argument that the district

court erred in refusing to reduce his offense level based on

an alleged minor role in the conspiracy. Before discussing

this issue, however, we must place Arturo’s appeal in con-

text for purposes of United States v. Booker, supra, 125 S.Ct.

738. Neither before the district court nor before this court

has Arturo raised any argument to the effect that the dis-

14 Nos. 03-2056 & 03-2171

trict court’s use of the Sentencing Guidelines violated the

Constitution, the rule announced in Apprendi v. New Jersey,

530 U.S. 466 (2000), Blakely, or Booker. Nonetheless, it is

still within this court’s discretion to recognize plain error

where it occurs. See FED. R. CRIM. P. 52(b) (“A plain error

that affects substantial rights may be considered even though

it was not brought to the court’s attention.”). For the rea-

sons we explained in Paladino, supra, 2005 WL 435430, at

*9, Arturo’s sentence may be tainted with plain error. For

the benefit of the district court on the limited remand we

are ordering, however, we address Arturo’s Guidelines-

based argument that he should have received the minor role

adjustment. This is appropriate because the Guidelines

continue to have force as advisory statements even after the

Supreme Court’s Booker decision, and thus there is still a

strong interest in ensuring that they are applied properly.

Section 3B1.2 of the U.S. Sentencing Guidelines provides:

Based on the defendant’s role in the offense, decrease

the offense level as follows:

(a) If the defendant was a minimal participant in any

criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any

criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3

levels.

Application Note 5 defines a minor participant as one “who

is less culpable than most other participants, but whose role

could not be described as minimal.” Before Booker, we

reviewed the district court’s decision to deny a defendant a

downward adjustment for a lesser role in criminal activity

under § 3B1.2 for clear error. United States v. Hanhardt, 361

F.3d 382, 394 (7th Cir. 2004), vacated and remanded for

further proceedings sub nom. Altobello v. United States, 125

S. Ct. 994 (2005). We shall do the same here.

Nos. 03-2056 & 03-2171 15

Arturo argues that he “certainly wasn’t involved in the

conspiracy prior to the day it all ended, July 10, 2002,” and

that the court therefore wrongly held him “accountable for

an amount in excess of what his involvement and the record

substantiates.” In response, the government points to

Arturo’s involvement in transporting the drugs to Janesville

from Chicago and acting as a lookout during the sale, as

well as Varela’s statements to the officers that he made a

payment of a drug debt to Arturo and purchased an ounce

of cocaine from him prior to the July 10 delivery. Arturo

dismisses Varela’s testimony as “simply incredible,” but the

district court found otherwise, stating: “I’m not persuaded

that Mr. Varela lied about everything that he testified to at

trial. I think that a certain amount of his testimony was

quite believable.” The court concluded that Arturo did not

merit a minor role reduction because he joined the conspir-

acy prior to July 10, 2002, as evidenced by his introducing

Varela to Luis, delivering cocaine to Varela on behalf of

Luis, and accepting drug payments from Varela.

The record before us does not convince us that the district

court erred in its evaluation of Arturo’s role in the offense.

The court’s reliance on Arturo’s participation in transport-

ing the cocaine and providing counter-surveillance and

Varela’s testimony regarding Arturo’s involvement in the

conspiracy prior to the July 10 sale, which it credited, pro-

vided adequate support for its decision. See United States

v. Galbraith, 200 F.3d 1006, 1012 (7th Cir. 2000). We have

held that “[w]hen it appears that although one person was

the ‘driving force’ in a criminal scheme, yet the defendant

still had ‘an integral role assisting him’ in the enterprise,

the defendant will not receive a reduction in his offense level

pursuant to U.S.S.G. § 3B1.2(a).” United States v. Navarro,

90 F.3d 1245, 1263 (7th Cir. 1996). The district court rea-

sonably could have concluded that Arturo played such an

integral role, even though Luis may have orchestrated the

cocaine distribution conspiracy. The court did not clearly err

in refusing to grant Arturo a minor role adjustment.

16 Nos. 03-2056 & 03-2171

B. Magdalena Correa

Initially, Correa’s sole argument on appeal was that law

enforcement officials lacked probable cause to arrest her

during the July 10 transaction, and hence that the district

court erred in denying her motion to suppress the evidence

obtained in the search of her vehicle incident to that arrest.

After oral argument, we gave her permission to file a

supplemental brief arguing that her Sixth Amendment

right to a jury trial was violated when the district court

based her sentence on facts not found by the jury, including

the amount of cocaine for which she was responsible, her

obstruction of justice, the use of a weapon, and her role as

a leader. Correa conceded in her supplemental brief that

she had not raised this issue before the district court. We

consider first her arguments with respect to her arrest and

the suppression of the evidence, and then her sentencing

arguments.

“In order to have probable cause for an arrest, law en-

forcement agents must 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 com-

mitting an offense.” Payne v. Pauley, 337 F.3d 767, 776 (7th

Cir. 2003). The fact-intensive, on-the-spot determination of

probable cause often involves an exercise of judgment, which

“ ‘turn[s] on the assessment of probabilities in particular

factual contexts—not readily, or even usefully, reduced to

a neat set of legal rules.’ ” Maxwell v. City of Indianapolis,

998 F.2d 431, 434 (7th Cir. 1993) (quoting Ill. v. Gates, 462

U.S. 213, 232 (1983)). Therefore, courts evaluate probable

cause “not on the facts as an omniscient observer would per-

ceive them but on the facts as they would have appeared to

a reasonable person in the position of the arresting officer—

seeing what he saw, hearing what he heard.” Mahoney v.

Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992). “So long as the

totality of the circumstances, viewed in a common sense

manner, reveals a probability or substantial chance of crim-

Nos. 03-2056 & 03-2171 17

inal activity on the suspect’s part, probable cause exists.”

United States v. Sawyer, 224 F.3d 675, 679 (7th Cir. 2000).

We review de novo the court’s ultimate conclusion whether

the law enforcement officers had probable cause. Id. at 679.

Nonetheless, findings of historical fact are reviewed only for

clear error. Ornelas v. United States, 517 U.S. 690, 699

(1996). In reviewing a denial of a suppression motion, we

may consider evidence introduced both at the suppression

hearing and at trial. United States v. Yang, 286 F.3d 940,

948 n.4 (7th Cir. 2002); United States v. Duguay, 93 F.3d 346,

350 (7th Cir. 1996); United States v. Trevino, 60 F.3d 333,

336 (7th Cir. 1995).

The government contends that this case is governed by

the “collective knowledge doctrine,” under which “[t]he police

who actually make the arrest need not personally know all

the facts that constitute probable cause if they reasonably

are acting at the direction of another officer or police agency.

In that case, the arrest is proper so long as the knowledge

of the officer directing the arrest, or the collective knowledge

of the agency he works for, is sufficient to constitute prob-

able cause.” Tangwall v. Stuckey, 135 F.3d 510, 517 (7th Cir.

1998) (emphasis removed); see also United States v. Lenoir,

318 F.3d 725, 728 (7th Cir. 2003). This doctrine is rooted in

the Supreme Court’s holding in United States v. Hensley,

469 U.S. 221 (1985), that “effective law enforcement cannot

be conducted unless police officers can act on directions and

information transmitted by one officer to another and that

officers, who must often act swiftly, cannot be expected to

cross-examine their fellow officers about the foundation for

the transmitted information.” Id. at 231 (internal quotation

marks omitted). Courts have applied the collective knowl-

edge doctrine in two situations: first, when information from

one jurisdiction is actually relayed to officers or agencies in

another jurisdiction to permit coordination of investigations

and the speedy apprehension of fleeing suspects, see United

States v. Nafzger, 974 F.2d 906, 910 (7th Cir. 1992), and

18 Nos. 03-2056 & 03-2171

second, “when officers are in communication with each

other while working together at a scene.” Id. at 911; see also

Sawyer, 224 F.3d at 680. In the latter group of cases, the

knowledge of the officers may be imputed to one another

“even when there is no express testimony that the specific

or detailed information creating the justification for a stop

was conveyed (though of course the information actually

possessed by the officers must be sufficient to justify the

stop or arrest).” 974 F.2d at 911.

To apply the collective knowledge doctrine here, we must

determine first what knowledge can be imputed to the

officers at the time that they arrested Correa, and second

whether that knowledge was sufficient for the officers to

form a reasonable belief that she was engaged in criminal

activity. When Correa was arrested, the team of officers at

the scene had the following information regarding her in-

volvement in the drug transaction: (1) on July 10, 2002, she

departed from 1503 Porter Avenue, the residence that she

shared with Arturo and Luis; (2) she drove the same brown

Cadillac (with the same license plate) as that parked in front

of Varela’s house during the June 25, 2002 drug transaction;

(3) when the brown Cadillac returned to Varela’s house after

the delivery of the cocaine to the undercover agents, an

Hispanic woman was in the passenger seat; (4) on July 10,

agents followed Correa from 1503 Porter Avenue to the Quick

Mart, where she spoke briefly to Luis; (5) she then spoke

briefly with Varela in the Mexican supermarket’s parking

lot, immediately prior to his leading Luna to the trunk of

the white Cadillac; and (6) after this exchange and before

Varela revealed the cocaine, she parked the brown Cadillac

where it would be possible for her to monitor the trunk of

the white Cadillac through her rearview mirror.

We find this evidence sufficient for an officer to have

formed “a reasonable belief to suspect criminal activity” on

the part of Correa. In these situations, “law enforcement

Nos. 03-2056 & 03-2171 19

agents are entitled to draw reasonable inferences from the

facts before them, based on their training and expertise.”

United States v. Funches, 327 F.3d 582, 586 (7th Cir. 2003).

As in Funches, the agents here had extensive experience in

narcotics enforcement, which is relevant to an informed

assessment of the facts. See generally 2 WAYNE R. LAFAVE,

SEARCH AND SEIZURE § 3.2(c), at 38 (3d ed. 1996).

Agent Becka and Agent Hehr testified that they each

have 19 years of experience as DEA agents, with the latter

serving as the resident agent in charge of the DEA office in

Madison, Wisconsin. Trained narcotics officers like these two,

who observed Correa’s activities in this case, could rea-

sonably conclude that she was engaged in counter-surveil-

lance during the July 10 transaction, based on the facts we

have just reviewed. See United States v. Carpenter, 342 F.3d

812, 815 (7th Cir. 2003); see also United States v. Ocampo,

937 F.2d 485, 490 (9th Cir. 1991). We therefore find that

the totality of the circumstances, when considered in light

of the DEA agents’ training and experience, gave them suf-

ficient reason to believe that there was a significant prob-

ability that Correa was committing a crime. See United States

v. Carrillo, 269 F.3d 761, 767 (7th Cir. 2001).

Having found sufficient evidence in the aggregate to

establish probable cause for Correa’s arrest, we must de-

termine whether this information can be imputed to the

officers who arrested her. Although we do not know who

issued the order for Correa’s arrest and the precise infor-

mation in the minds of the officers who carried it out, the

record shows that the officers conducting surveillance during

the July 10 transaction were in close communication with

each other. Agent Becka, who also provided surveillance

during the June 25 undercover transaction at which the

brown Cadillac was observed, testified that during the July

10 transaction he shared a surveillance van with Agent

Jeanne Hehr, who arrested Correa, and two other officers.

Agent Hehr testified that she received “numerous cellular

20 Nos. 03-2056 & 03-2171

phone calls throughout the transaction” from other officers,

reporting the activities and locations of the parties and the

arrest of Varela and Luis. In addition, Agent Becka con-

firmed that Agent Chamulak, who was at the scene of the

July 10 transaction in an undercover capacity, radioed to

Agents Becka and Hehr that Correa had repositioned her

car so as to monitor the white Cadillac. Finally, Special Agent

Edward Wall of the Division of Narcotics Enforcement for

the Wisconsin Department of Justice, who conducted aerial

surveillance of the trip to Chicago and the subsequent

transaction in Janesville, including the movements of the

brown Cadillac, testified that he was in communication with

the surveillance team on the ground via radio.

This team of officers therefore worked together closely in

monitoring the drug transaction as it unfolded. In such a

case, we have found that the officers’ “knowledge may be

mutually imputed even when there is no express testimony

that the specific or detailed information creating the justi-

fication for a stop was conveyed.” Nafzger, 974 F.2d at 911;

see also United States v. Edwards, 885 F.2d 377, 383 (7th

Cir. 1989); Sawyer, 224 F.3d at 680. In particular, the team

of officers monitoring the July 10 transaction were in close

contact throughout. Agent Hehr, who arrested Correa, was

in constant communication with Agent Becka and Agent

Chamulak. On this basis, we find the collective knowledge

doctrine applicable, and given that the information avail-

able to the officers at the time of Correa’s arrest provided

probable cause, we affirm the district court’s denial of her

motion to suppress.

We now turn to Correa’s challenge to her sentence. In

keeping with our decision in Paladino, 2005 WL 435430, we

review Correa’s arguments under Blakely/Booker for plain

error. Because there is nothing out of the ordinary about

her case, compare United States v. Lee, 399 F.3d 864 (7th

Cir. 2005), we conclude that Correa is also entitled to a

limited remand to ascertain whether the district court

Nos. 03-2056 & 03-2171 21

would have imposed the same sentence had it realized that

the Guidelines were advisory only.

Correa’s sentence depended in large part on the district

court’s application of the Guidelines. As she points out, the

indictment in her case charged her with offenses involving

“more than” 500 grams of a substance containing cocaine.

It did not charge that she played a leadership role in the

conspiracy, that she possessed a dangerous weapon, or that

she obstructed justice. The jury therefore never made any

of the latter three findings, nor can one say whether it

found any more than a smidgeon over 500 grams of the

controlled substance. The district court, proceeding natur-

ally enough under the Guidelines, found that Correa should

be responsible for 1.56 kilograms of cocaine. See U.S.S.G.

§ 1B1.3. It also found that she possessed a dangerous weapon

in connection with the offense and raised her Guidelines

offense level by two on that basis, see U.S.S.G. § 2D1.1(b)(1);

it found that she played a leadership role and accordingly

raised her offense level by another two, see U.S.S.G.

§ 3B1.1(c); and it found that she had obstructed justice and

thereby earned a final two-level increase under U.S.S.G.

§ 3C1.1. These adjustments for relevant conduct and other

factors resulted in an increase in her offense level from a 26

to a 32, and changed the sentencing range from 63 to 78

months up to 121 to 151 months. The district court sentenced

her at the bottom of the adjusted range, to 121 months.

Particularly in this kind of case, we do not know if the

judge, sentencing with the new flexibility afforded by Booker,

would have concluded that 121 months was a “reasonable”

sentence. In order to guide the court’s deliberations on the

limited remand, however, we comment briefly on the points

related to the application of the Guidelines that Correa has

already raised.

Relevant Conduct. The jury found that Correa was

responsible for more than 500 grams of cocaine, while the

22 Nos. 03-2056 & 03-2171

court concluded that the exact amount for which she should

be held responsible was 1.56 kilograms. Because that

amount was less than two kilograms, it did not increase the

offense level that followed from the jury’s verdict. See

U.S.S.G. § 2D1.1(c)(7).

Weapon. The court found that Correa had two weapons,

and that it was not “clearly improbable that the weapon(s)

[were] connected with the offense.” See U.S.S.G. § 2D1.1(b)(1)

and Application Note 3. One was a gun found under the

mattress in her bedroom, and the other was a gun she kept

in her purse. The court noted that she was selling drugs out

of the house, and thus that it could not say that the guns

had no connection with the offense. It also found that she

had displayed a firearm to co-conspirator Varela to in-

timidate him. We see no clear error in these factual findings,

whatever their relevance may be to the ultimate reasonable

sentence.

Role in the Offense. Initially, the government urged that

Correa receive a four-level upward adjustment in her sen-

tencing level for a leadership role in the conspiracy, pursu-

ant to U.S.S.G. § 3B1.1(a). In the end, however, the court

imposed only a two-level upward adjustment under § 3B1.1(c),

which is available for someone who is an “organizer, leader,

manager or supervisor” in a capacity other than those cov-

ered by the higher enhancements. The court was concerned

that the government had not adequately shown that the ac-

tivity involved five or more participants, which is required

for the four-level enhancement. On this point, the court

gave Correa the benefit of the doubt. It found that she was

at least a manager or supervisor of the group’s activities,

along with Luis. That finding is supported in the record,

should the judge consider it appropriate once again to take

this factor into account.

Obstruction of Justice. This enhancement under U.S.S.G.

§ 3C1.1 is perhaps the easiest to support in the record. The

Nos. 03-2056 & 03-2171 23

district court found that Correa had lied at the trial when

she testified that she had no knowledge of the drug traf-

ficking conspiracy. The jury’s verdict, among other things,

squarely contradicts her assertion. (The jury did not find the

other elements of an obstruction offense, and so we assume

that its apparent conclusion that Correa was untruthful is

not the end of this argument.) The court also found that she

lied when she said that the drug ledger did not belong to

her, but instead was Luis’s exclusive property, and when she

claimed that she was not acting as a lookout for the sale.

Again, the jury’s findings strongly contradict these asser-

tions. Defendants who obstruct justice are particularly

culpable, as both common sense and the Guidelines recog-

nize. This factor may also play a part in the offense level

computed for purposes of an advisory use of the Guidelines.

III

For these reasons, we AFFIRM the district court’s denial of

Correa’s motion to suppress and the judgment of guilt with

respect to Arturo Garcia Parra. We order a LIMITED RE-

MAND with respect to both sentences, while retaining

jurisdiction, in accordance with the procedure set forth in

Paladino.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-29-05