In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2733

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CATALINO ROSARIO,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 94 CR 261--James B. Zagel, Judge.

ARGUED MAY 16, 2000--DECIDED DECEMBER 7,

2000

 Before EASTERBROOK, RIPPLE, and ROVNER,

Circuit Judges.

 ROVNER, Circuit Judge. Catalino Rosario,

Porfirio Rivera, and Frank Vargas were

indicted on two counts of conspiracy to

distribute cocaine and attempted

possession of cocaine with intent to

distribute it in violation of 21 U.S.C.

sec. 846. Rosario filed a motion to quash

his arrest and suppress a pager found on

him during the arrest, which the court

denied. Rivera and Vargas pled guilty and

testified against Rosario and a jury

convicted him on both charges. Rosario

now appeals, challenging the court’s

denial of his motion to quash the arrest

and suppress the evidence. 

I.

 The trail that ultimately led to Rosario

began on April 15, 1994, when the

Missouri State Highway Patrol stopped a

brown Mazda minivan driven by Frank

Vargas that was weaving and moving

erratically. The van was registered to

Porfirio Rivera, but Vargas was the sole

occupant. A subsequent search of the van

revealed 46 packages of cocaine in hidden
panels in the van, with a total weight of

40.55 kilograms. After his arrest, Vargas

agreed to cooperate with the police. He

related that the owner of the cocaine was

a man named "Pacho," whom he later

identified as the defendant, Catalino

Rosario. He declared that Pacho had hired

him to transport the cocaine from Los

Angeles to Chicago, and that Pacho had a

total of 100 kilograms of cocaine for

shipment to Chicago. Of that total, he

had already delivered 37 kilograms to

Chicago on an earlier trip, and 17

kilograms remained in Los Angeles

awaiting transport. Vargas possessed

three different pager numbers for Pacho

including a new pager number that he was

supposed to use upon arrival in Chicago

to contact Pacho. Vargas also told them

that he believed "Pacho" was just a

nickname, and that Pacho had previously

used a name of Rafinio Ray and also had

used a first name of Arturo, but he did

not know if those were aliases as well.

The officers ran a computer check of

those names in the DEA computer system,

and found the name Rafinio Ray with an

alias for the name of Arturo Robles. That

provided some corroboration for Vargas’

claim that "Pacho" was involved in the

drug scheme.

 Based upon that information, a decision

was made to attempt a controlled delivery

in Chicago, at which time the Drug

Enforcement Agency became involved in the

case. Vargas and the agents checked into

the Hampton Inn in Bedford Park, and

Vargas paged Pacho. Approximately ten

minutes later, Pacho returned the call to

Vargas at the hotel. Pacho told Vargas

that a person named "Jose" would be

calling him. This call was recorded, but

only Vargas’ voice and not that of the

caller was intelligible on the tape. The

agents relied on Vargas for the identity

of the caller and the content of the

conversation. 

 At approximately 8:00 p.m., a person

identifying himself as "Jose" called

Vargas and said he would come to the

hotel the next morning. That conversation

was recorded. "Jose" called again the

next morning to inform Vargas that he was

en route to the hotel, and he arrived at

the hotel around 9:15 a.m. Agents later

discovered that the person known as

"Jose" was Porfirio Rivera--the same

person in whose name the Mazda minivan

was registered. After Rivera’s arrival,
Pacho called Vargas at the hotel. The

meeting between Vargas and Rivera and the

conversation with Pacho were videotaped

and recorded. In the telephone

conversation, Pacho stated that he was

flying from Los Angeles to Midway Airport

on a flight that arrived around 6:00

p.m., and he needed to be picked up

there. Vargas translated that

conversation for the agents, and

explained that Rosario generally flew on

America West Airlines. After the

telephone conversation, Rivera took the

minivan keys and drove away in the

minivan, at which time he was arrested. 

 That evening, the agents accompanied

Vargas to the airport and positioned him

in an area of the airport where he could

view passengers who had disembarked from

the planes. An America West plane arrived

from Los Angeles at approximately 6:00

p.m., but the agents were unable to

single out anyone departing it as "Pacho"

based on the rather general description

provided by Vargas. Vargas, however,

spotted Pacho among the individuals who

had been on the plane, and pointed him

out to the agents. At that time, Pacho

was briefly detained and questioned

regarding his identity. He produced

identification establishing that he was

Catalino Rosario. He was ultimately

brought outside, where Vargas again

identified him as the person he knew as

"Pacho." A subsequent search of Rosario

yielded a card with one of the pager

numbers that Vargas had possessed on it,

and a pager. When a DEA agent dialed

another of the numbers found in the

minivan at the time Vargas was arrested,

the pager Rosario had been carrying

activated. 

II.

 Rosario argues that the police lacked

probable cause to arrest him without a

warrant, and that the pager and number

found on him should be suppressed as the

fruits of the unlawful arrest. He asserts

that the police relied solely on Vargas’

statements implicating Rosario, and that

Vargas was an unproven informant whose

statements relating to Rosario were not

corroborated by other evidence. 

 Probable cause for an arrest exists when

the law enforcement agents could

reasonably believe, in light of the facts
and circumstances within their knowledge

at the time of the arrest, that the

suspect had committed or was committing

an offense. United States v. Kincaid, 212

F.3d 1025, 1028 (7th Cir. 2000); United

States v. Osborn, 120 F.3d 59, 62 (7th

Cir. 1997). It is a flexible, practical

common-sense standard that is met if the

facts are sufficient to warrant a person

of reasonable caution to believe that an

offense has been or is being committed.

United States v. Colonia, 870 F.2d 1319,

1323 (7th Cir. 1989) (citations omitted);

United States v. Evans, 27 F.3d 1219,

1228 (7th Cir. 1994). We review the

district court’s probable cause

determination de novo, but accept the

district court’s findings of historical

fact unless they are clearly erroneous

and "give due weight to inferences drawn

from those facts by resident judges and

local law enforcement officers." Osborn,

120 F.3d at 62, quoting Ornelas v. United

States, 517 U.S. 690, 699 (1996).

 The arrest and subsequent search in this

case was based upon the information

provided by Vargas. Rosario argues that

probable cause is not established here

because the information was provided by

an untested informant and lacked

sufficient corroboration. Information

from an informant can provide probable

cause for an arrest if the information is

reliable. United States v. Scott, 19 F.3d

1238, 1242 (7th Cir. 1994). For instance,

in Illinois v. Gates, 462 U.S. 213, 246

(1983), the Court held that a highly

detailed tip from an anonymous informant

that was corroborated by independent

police work was enough to establish

probable cause for the search. In the

present case, we are not faced with an

anonymous informant, but rather an

untested informant who is providing

information that to some extent is

incriminating, but which is provided in

order to reduce his own criminal

liability. In analyzing whether such

information from an informant is

sufficient to establish probable cause,

we must consider the information provided

by that informant--in amount and in the

degree of reliability--and the degree of

corroboration of that information by the

officers. United States v. Navarro, 90

F.3d 1245, 1253 (7th Cir. 1996). 

 Although Vargas did not have a prior

history as an informant that would
enhance the reliability of his

information, the agents were able to

corroborate a great deal of the

information provided by him prior to the

arrest and search of Rosario. For

instance, Vargas claimed that the drugs

were owned by Pacho, who also went by the

names Rafinio Ray and Arturo. A check on

the DEA computer system revealed a match

for the name Rafinio Ray with an alias of

Arturo Robles. This provided some

corroboration of Vargas’ claim that the

person he identified as Pacho was in the

drug business. Vargas further stated that

when he arrived in Chicago he was to page

a certain number and the owner of the

cocaine, Pacho, would call him. That

indeed transpired, in that Pacho returned

his page. In addition, Vargas told the

agents that Pacho had informed him that

"Jose" would call regarding the cocaine.

Rivera, using the name Jose, in fact

called him later and made plans to pick

up the cocaine the following morning.

Because Vargas had not contacted "Jose"

himself, that call could only have been

triggered by Pacho after speaking with

Vargas. When Jose came to the hotel, they

discussed the prior shipment of cocaine

that had been delivered, which

corroborated Vargas’ statement to the

agents that he had previously delivered

37 kilograms to Chicago from Los Angeles.

Finally, Vargas informed them that Pacho

was arriving at 6:00 p.m. at Midway

Airport, probably on America West

Airlines. The agents confirmed that an

America West flight from Los Angeles was

landing in Chicago at that approximate

time. Vargas then identified Rosario

among the passengers that exited that

plane. In short, Vargas’ statements

relating to the drug conspiracy were

corroborated repeatedly when the events

transpired as he foretold, and there is

no basis in the record for disturbing the

district court’s fact findings to that

effect. As the Supreme Court recognized

in Alabama v. White, 496 U.S. 325, 329

(1990), when "an informant is shown to be

right about some things, he is probably

right about other facts that he has

alleged, including the claim that the

object of the tip is engaged in criminal

activity." See also Navarro, 90 F.3d at

1253 (relying on Gates and White, noting

that information can be credited where

the tip contains specific details about

future actions not easily predicted, thus

demonstrating "inside information.").
Here, the agents were able to corroborate

numerous facts provided by Vargas, and

that established a reasonable basis for

them to credit his information regarding

Rosario and to believe that a crime had

been or was being committed. The Gates

Court recognized that "only a

probability, not a prima facie showing,

of criminal activity" is required to

establish probable cause, 462 U.S. at

235, and that standard is met here. 

III.

 Rosario raised a number of other

arguments in the brief on appeal, but all

were either withdrawn at oral argument or

are meritless. He argued that the court

erred in refusing to dismiss the

indictment based on the use of hearsay in

the grand jury. This argument is without

merit because an indictment may be based

upon hearsay, Costello v. United States,

350 U.S. 359, 363 (1956), and Rosario

does not argue that this testimony was

misrepresented as anything else.

Furthermore, even if there were error

(which is not the case here), any such

error in the presentation of evidence

before the grand jury would be harmless

given the jury conviction at trial which

indicates a proper grand jury proceeding

would have still yielded an indictment.

United States v. Fountain, 840 F.2d 509,

513-14 (7th Cir. 1988); Tyson v. Trigg,

50 F.3d 436, 442 (7th Cir. 1995). 

 The remaining arguments presented by

Rosario were withdrawn at oral argument

because they require development of facts

outside the record and thus are more

properly presented in a sec. 2255

petition. Specifically, Rosario withdrew

his arguments regarding the Speedy Trial

Act, ineffective assistance of counsel,

and the alleged use of perjured testimony

by the prosecutor. Regarding the use of

perjured testimony, Rosario’s attorney

purported to withdraw only part of that

argument, stating at oral argument that

she withdrew that argument only to the

extent it alleged that the government

knew the witnesses were lying, as opposed

to the government having reason to be

suspicious. Such a "partial" withdrawal

would be problematic indeed, because an

adverse determination on direct appeal

will have preclusive effect in any

subsequent collateral attack. United

States v. Brook, 125 F.3d 484, 495 (7th
Cir. 1997). A claim must be presented in

its entirety rather than in a piecemeal

fashion, lest the litigant risk the

preclusive effect of the prior ruling.

Therefore, it is inconsistent for Rosario

to simultaneously assert that he is

withdrawing the perjury issue to develop

in a sec. 2255 petition, but is pursuing

the perjury issue in part on direct

appeal. Fortunately for him, the

statement at oral argument was sufficient

to withdraw the argument in its entirety

and preserve it for sec. 2255 review

where the extra-record facts necessary

for the argument can be developed.

Although Rosario’s attorney sought to

proceed with the argument that the

government had reason to know the

testimony was perjured, no such argument

was raised in the brief and thus that

argument was never before this court.

Although the briefs mentioned the term

"should have known" in the heading, the

argument itself addresses only the actual

knowledge of the government and never

makes that alternative argument.

Accordingly, when Rosario’s attorney

withdrew the perjury argument to the

extent that it encompassed the actual

knowledge of the government, she withdrew

the entire perjury argument and preserved

it for a potential sec. 2255 petition.

 For the above reasons, with respect to

the issues that remain before this court,

the decision of the district court is

affirmed.