In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2643

United States of America,

Plaintiff-Appellee,

v.

Anselmo Carrillo and Francisco Soto,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 54--Charles R. Norgle, Sr., Judge.

Argued May 9, 2001--Decided October 18, 2001

 Before Ripple, Manion, and Kanne, Circuit

Judges.

 Kanne, Circuit Judge. After an

investigation by the Drug Enforcement

Administration, ("DEA"), Anselmo Carrillo

and Francisco Soto were arrested and

charged with possession with intent to

distribute cocaine and conspiracy with

intent to distribute cocaine. The jury

found them both guilty as charged, and

each was sentenced to 151 months

imprisonment. On appeal, they present

several challenges to their respective

convictions and sentences. Because we

find no errors requiring reversal, we

affirm the judgment of the district

court.

I. History

 In August 1998, Ross Braatsch, the owner

of the Chicago-area electronics store

Sound Wave Ltd., agreed to provide

confidential information to DEA Agent

Robert Glynn about several of his

customers that he suspected of being

involved with drug trafficking. Sound

Wave offered a service installing vehicle

"traps" (hidden compartments in cars that

can only be opened by remote control),

and Braatsch believed that certain

individuals were using the traps to

transport illegal drugs. Braatsch

informed Agent Glynn that one of his
customers, Tavo Perez, had paid

approximately $50,000 in cash over a

twenty-one month period to have traps and

other electronic equipment installed in

twelve different cars. He also informed

Agent Glynn that several different men

had picked up Perez’s cars and that he

had shown two of these men, later

identified as Carrillo and Soto, how to

operate the traps.

 In December 1998, Perez brought two of

his trap cars--a red Mercury Sable and a

white Ford Taurus--to Sound Wave for

repairs. On both of these occasions,

Perez was accompanied by a man driving a

red Toyota Tacoma pick-up truck. While

the traps were being repaired, Agent

Glynn confirmed that the cars did have

traps and recorded the license plate

numbers of the vehicles. Agent Glynn

began conducting surveillance of Perez’s

residence, and on December 30, 1998, he

observed Perez drive the Tacoma pick-up

truck from his residence to Sound Wave,

where he picked up the white Taurus.

Agent Glynn then followed Perez to a

single-family residence with an attached

garage at 109 Clarendon Street in

Addison, Illinois. Perez pulled the

Taurus into the garage, and Agent Glynn

observed that the red Sable was also in

the garage. Between December 30, 1998 and

January 27, 1999, Agent Glynn continued

to conduct surveillance of Perez; he also

set up video surveillance of the red

Sable.

 On January 27, 1999, DEA agents used a

tracking device to track the red Sable to

Number 20, West 327 Belmont Place, in

Addison. Several agents set up organized

surveillance of that location as well as

the residence at 109 Clarendon. At 3:45

p.m., three males arrived at West

327Belmont Place in the red Tacoma. One

of these men, later identified as

Carrillo, exited the truck and got into

the red Sable. Agents then followed both

vehicles to 109 Clarendon, where they

observed the white Taurus in the garage.

Initially, the red Sable was parked in

the driveway and the red Tacoma was

parked on the street. After a short time,

agents observed that the garage door was

closed and that the Sable was no longer

in the driveway. At that point, Agent

Paul Wolf got out of his car and

approached the residence. Although he did

not see any of the three men inside the
house, he heard male voices in the

garage. At approximately 6:00 p.m., two

hours after the vehicles had arrived at

109 Clarendon, Agent Glynn observed Soto

and another Hispanic male exit the garage

and get into the red Tacoma pick-up

truck. At the same time, Officer Luis

Dominguez, a DEA task force officer,

observed Carrillo drive the red Sable

away from 109 Clarendon.

 Agent Glynn attempted to follow the red

Tacoma, but he lost track of it after the

driver performed several evasive

maneuvers. At 6:20 p.m., he located the

red Tacoma in a movie theater parking

lot, and there were now three individuals

in the truck. Agent Glynn observed that

the red Sable was parked in the movie

theater lot. Agent Wolf then began

following the red Tacoma. The driver

performed a series of turns indicative of

counter-surveillance activities and

eventually headed back towards the movie

theater parking lot. At that point, the

agents stopped the truck. At the time of

the stop, Soto was driving, Carrillo was

in the passenger seat, and the third

occupant was in the extended portion of

the truck. Carrillo had the following

items in his possession at the time of

the arrest: a garage door opener for 109

Clarendon, a house key for the basement

of 109 Clarendon, and a computer chip

that operated the trap in the red Sable.

The agents arrested the three men and

transported them to the Addison Police

Department. 

 Several other agents continued

surveillance of the red Sable. At

approximately 7:00 p.m., they observed a

blue Jeep Cherokee driving up and down

the parking lot of the movie theater past

the Sable. Agents stopped the Jeep

Cherokee and recovered keys for the Sable

as well as a computer chip that operated

the Sable’s trap from one of the

occupants. The Sable was then transported

to the Addison Police Department. 

 At the Addison Police Department, Agent

Wolf conducted a preliminary interview of

Soto and Carrillo during which both men

identified themselves using aliases.

Officer Dominguez, who is fluent in

Spanish, then questioned the two men

separately. During the interviews,

Carrillo and Soto both changed their

stories a number of times when confronted
with the agents’ knowledge of their

activities. Neither provided an

explanation for the activities leading up

to the arrest. At the end of his

interview, Soto consented to a search of

the red Sable. Agents searched the

vehicle and recovered 48 one-kilogram

bricks of cocaine from the Sable’s trap.

 Agents also obtained consent to search

109 Clarendon and 20 West 327 Belmont. At

109 Clarendon, agents observed that the

white Taurus was in the garage and found

an empty box containing a rubber glove.

At West 327 Belmont, the agents found an

empty trap compartment built into the

basement floor. A few days later, in

response to a tip from a confidential

source, several DEA agents returned to

109 Clarendon and found a crawl space

containing material used to wrap bricks

of cocaine as well as a box of rubber

gloves. Agents also found a trap in the

basement floor that contained two

kilograms of cocaine, a scale, a semiautomatic handgun, ammunition, and drug

ledgers. 

 Carrillo and Soto were indicted for

possession with intent to distribute

cocaine, and conspiracy with intent to

distribute cocaine in violation of 21

U.S.C. sec. 841(a)(1) and sec. 846. At

trial, the government presented testimony

of the DEA agents involved in the

investigation as well as evidence of

pager and cell phone communications

between Carrillo and Soto. Neither

defendant testified at trial, though Soto

called one witness who attempted to cast

doubt on the government’s assertion that

he was driving evasively on the night of

his arrest. Carrillo called no witnesses.

The jury found both defendants guilty. On

June 21, Carrillo and Soto were each

sentenced to 151 months imprisonment and

five years supervised release. 

 On appeal, Carrillo and Soto ask us to

overturn their convictions and sentences

because: (1) government agents lacked

probable cause at the time of their

arrests; (2) the district court violated

Rule 30 of the Federal Rules of Criminal

Procedure by waiting until after closing

arguments to hold a jury instructions

conference and finalize the jury

instructions; (3) the district court’s

decision to give an "ostrich" instruction

was erroneous; (4) they are entitled to a
minor role adjustment; and (5) the

district court should have suppressed

their post-arrest statements because the

arresting officers failed to inform them

of their right to communicate with the

Mexican consulate. We will address each

of these claims in turn.

II. Analysis

A. Probable Cause

 Prior to trial, Soto and Carrillo each

filed a motion to quash arrest and

suppress their post-arrest statements,

arguing that the DEA agents did not have

probable cause for their arrest. The

district court determined that an

evidentiary hearing was not warranted and

denied defendants’ motions. Both

defendants renewed their motions at the

close of evidence at trial, and the

district judge again denied the motions.

On appeal, Carrillo and Soto concede that

the circumstances surrounding their

arrest were suspicious enough to justify

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

1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968). They claim, however, that the

level of suspicion did not rise to the

level of probable cause because the

agents did not have specific information

about Carrillo and Soto or about a drug

transaction that was supposed to occur

that night. They also point out that the

agents never saw either defendant in

possession of contraband. Because the

defendants do not challenge the district

court’s factual findings, we review de

novo the district court’s determination

that probable cause did exist. See United

States v. Faison, 195 F.3d 890, 893 (7th

Cir. 1999). 

 Probable cause exists if "law

enforcement agents . . . reasonably

believe, in light of the facts and

circumstances within their knowledge at

the time of the arrest, that the suspect

had committed or was committing an

offense." United States v. Hayes, 236

F.3d 891, 894 (7th Cir. 2001). This

determination is necessarily based on

probabilities, see Faison, 195 F.3d at

893, and does not require "evidence

sufficient to support a conviction, nor

even evidence demonstrating that it is

more likely than not that the suspect

committed a crime." United States v.

Mounts, 248 F.3d 712, 715 (7th Cir. 2001)
(quotation omitted). In determining

whether suspicious circumstances rise to

the level of probable cause, law

enforcement officers are entitled to draw

reasonable inferences based on their own

training and experience. See Faison, 195

F.3d at 893. Of course, the "existence of

probable cause turns on the information

known to the officers at the moment the

arrest [was] made, not on subsequentlyreceived information." Spiegel v.

Cortese, 196 F.3d 717, 723 (7th Cir.

2000). 

 Although the agents did not have

specific information about the defendants

or observe them handling any substances

believed to be narcotics, we believe that

the totality of the suspicious

circumstances at the time of the arrest

justified a finding of probable cause.

See United States v. Scott, 19 F.3d 1238,

1242 (7th Cir. 1994) (stating that the

validity of a warrantless arrest is based

on the "totality of the circumstances").

Prior to Carrillo and Soto’s arrests, DEA

agents had received information from the

confidential source, Braatsch, that Perez

had paid cash to have traps installed in

twelve different cars, and had

substantiated this information by

confirming that there were, in fact,

traps in two of Perez’s cars. After

conducting surveillance, agents linked

Carrillo and Soto to trap vehicles owned

by Perez, as well as to Perez’s red

Tacoma pick-up truck. Although we agree

with the defendants that the existence of

a vehicle trap in itself is not enough to

establish probable case--traps may, of

course, be used for legitimate purposes--

the existence of a trap coupled with

other suspicious circumstances does

create a level of suspicion sufficient to

support a finding of probable cause. Cf.

United States v. Arango, 912 F.2d 441,

447 (10th Cir. 1990) (finding that

inadequate luggage for the stated length

of trip coupled with the appearance of a

hidden compartment under truck bed

supported a finding of probable cause). 

 Here, agents had several other reasons

to be suspicious of the defendants’

behavior. During their surveillance,

agents observed that the trap cars were

not being driven in a manner consistent

with normal personal or business use; nor

did they see any evidence that the traps

were being used in any legitimate
manner./1 On the night of defendants’

arrest, agents knew that the red Sable

had been parked in a garage for several

hours with another known trap vehicle,

and then driven to a parking lot and left

there. Based on his experience in more

than 100 narcotics investigations involv

ing trap vehicles, Agent Glynn believed

that the defendants’ activities with

respect to the trap vehicle were

consistent with a pattern of drug

trafficking. Furthermore, agents twice

observed that the red Tacoma was being

driven circuitously in an apparent

attempt to evade surveillance, and our

cases have held that this is a proper

consideration in determining whether

probable cause exists. See United States

v. Colonia, 870 F.2d 1319, 1323 (7th Cir.

1989); United States v. Marin, 761 F.2d

426, 432 (7th Cir. 1985). Therefore, we

find that the totality of the

circumstances, when considered in light

of the DEA agents’ training and

experience, gave the agents sufficient

reason to believe that there was a

significant probability that a crime was

being committed. Thus, we uphold the

district court’s determination that

probable cause existed to arrest Carrillo

and Soto. 

B. Rule 30 Conference

 Defendants next claim that the district

court erred by waiting until after

closing arguments to finalize the jury

instructions in violation of Rule 30 of

the Federal Rules of Criminal Procedure.

The day before the final day of trial,

defense counsel indicated to the district

court that the parties were going to

attempt to agree on jury instructions. In

response, the district court told

counsel, "[i]f there are any issues, give

me the disputed instructions so I have a

couple of minutes to look them over." On

the following day after the close of

evidence, the district court asked the

attorneys if they were ready for closing

arguments, and the government raised the

fact that the jury instructions had not

yet been finalized. The court held a

sidebar in which the following exchange

occurred:

The Court: Well, I think that you could

still make your closing arguments. I have

looked them over basically and they

appear to be proper. But I am still open-
minded, in the event that defense counsel

want to challenge any specific

instruction. But I think, based upon what

you have given here, you certainly could

make your closing argument consistent

with these instructions.

. . .

The Court: Well, what we could do is let

the government make its closing argument,

and then send the jurors to lunch, and

then defense counsel would have the lunch

hour to further prepare for their closing

arguments.

[Government]: That’s good.

The Court: So--

[Carrillo’s counsel]: That’s good, your

honor.

The Court: So I will tell the jury that,

that after [the prosecutor] goes we will

stop for lunch. And during that lunch

hour, if there is any problem with the

instructions, we will go over the

instructions.

Trial Tr. at 635-36. At that point, the

government presented its closing argument

and the court recessed for lunch. There

is no evidence that either defendant took

the district court’s suggestion to raise

any issues with the jury instructions

during the lunch hour. After court

reconvened, both defendants made their

closing arguments, and the government

made its rebuttal argument. At that

point, the court held a sidebar during

which the government voluntarily withdrew

one of the instructions and the

defendants objected unsuccessfully to

five other instructions. The defendants

did not, however, object to the procedure

by which the district court formulated

the jury instructions.

 The Federal Rules of Criminal Procedure

provide that "[t]he court shall inform

counsel of its proposed action upon the

[tendered jury instructions] prior to

their arguments to their jury." Fed. R.

Crim. P. 30. However, neither defendant

objected to (and one defendant

affirmatively accepted) the district

judge’s proposed plan to let the

government proceed with its closing

argument and discuss any issues with the
jury instructions at the lunch hour. Nor

did Carrillo or Soto raise any objection

to the district court’s procedure--or to

any specific proposed instruction--during

the lunch hour or prior to defendants’

closing argument. Because neither of the

defendants objected to the timing of the

jury instruction conference at any point

prior to the close of trial, we will

review only for plain error. See United

States v. Olano, 507 U.S. 725, 733-34,

113 S. Ct. 1770, 123 L. Ed. 2d 508

(1993). "Under the plain error doctrine,

we have the discretion to reverse only

where the trial court’s error is clear,

prejudicial, and affect[s] substantial

rights." United States v. Benitez, 92

F.3d 528, 533 (7th Cir. 1996).

 There is no question that the jury

instructions should have been finalized

before closing arguments. However,

although a technical violation of Rule 30

did occur, it is clear that the error did

not violate the defendants’ substantial

rights. The district court gave the

defendants ample opportunity to object to

the proposed instructions. Moreover, this

is not a case in which defense counsel

were forced to present their closing

arguments with no idea what the jury

instructions were going to be. Nor did

the district judge indicate that he would

not give a specific instruction and then

give it, cf. United States v. Ienco, 92

F.3d 564, 569 (7th Cir. 1996) (finding

that defendant was prejudiced where trial

court gave Pinkerton instruction after

advising counsel that he would not), or

refuse to give an instruction that he had

tentatively agreed to give. Instead, the

district judge provisionally approved the

tendered instructions and then gave all

of those instructions except for one

which was withdrawn by the government.

Therefore, we reject defendants’

contention that the timing of the Rule 30

conference "affect[ed] the fairness,

integrity, or public reputation of the

judicial proceedings." Olano, 507 U.S. at

736. 

C. "Ostrich" Instruction

 Defendants next assert that the district

court erred by giving an "ostrich" or

"conscious avoidance" instruction over

their objection./2 The purpose of a

conscious avoidance instruction is to

explain to the jury that the legal
definition of "knowledge" includes the

deliberate avoidance of knowledge. See

United States v. Craig, 178 F.3d 891, 896

(7th Cir. 1999). Caution must be

exercised when giving the instruction,

however, because of "its tendency to

allow juries to convict upon a finding of

negligence for crimes that require

intent." United States v. Giovannetti,

919 F.2d 1223, 1228 (7th Cir. 1990).

Thus, our cases hold that the instruction

is only proper "when a defendant claims a

lack of guilty knowledge and there are

facts and evidence that support an

inference of deliberate ignorance."

United States v. Walker, 25 F.3d 540, 546

(7th Cir. 1994) (quotation omitted). 

 Carrillo and Soto claim that the

district court erred in giving the

ostrich instruction because the

government did not present sufficient

evidence that they deliberately avoided

learning that the trap cars were being

used to transport cocaine. Thus, they

contend that the jury was presented with

an improper "binary" choice between

"actual knowledge and complete

innocence." United States v. Graffia, 120

F.3d 706, 713 (7th Cir. 1997). We

disagree. Viewing the evidence in the

light most favorable to the government,

as we must, see United States v. Wilson,

134 F.3d 855, 868 (7th Cir. 1998), we

conclude that the government presented

sufficient evidence to support such an

inference. 

 The government is not precluded from

presenting evidence of both an actual

knowledge theory and a conscious

avoidance theory. See Wilson, 134 F.3d at

868. Here, the government did just that,

and presented substantial evidence of

actual knowledge as well as

circumstantial evidence sufficient to

raise an inference that, if the

defendants did not know that the trap

cars were being used to transport

narcotics, then they must have

deliberately avoided obtaining that

knowledge. The government presented

evidence that Carrillo and Soto had both

accompanied Perez to Sound Wave in order

to pick up trap cars, that Braatsch had

shown Carrillo and Soto how to operate

the traps, that the defendants lied to

the police about their activities on the

day of the arrest, and that Carrillo had

keys to the red Sable as well as to the
remote control that opened the trap.

Moreover, it is unlikely that the jury

could have convicted the defendants based

only on negligence in light of the

district court’s instructions that "[a]

defendant’s presence at the scene of a

crime and knowledge that a crime is being

committed is not alone sufficient to

establish the defendant’s guilt" and "[a]

defendant’s association with conspirators

or persons involved in a criminal

enterprise is not sufficient to prove his

participation or membership in a conspir

acy." See United States v. Paiz, 905 F.2d

1014 (7th Cir. 1990) (abrogated on other

grounds by Gozlon-Peretz v. United

States, 498 U.S. 395, 111 S. Ct. 840, 112

L. Ed. 2d 919 (1991)) (holding that the

issuance of an ostrich instruction was

harmless error because its effect was

"neutralized" by the court’s "mere

presence" and "willing participation"

instructions which "tended to negate any

chance that the jury would convict [the

defendant] on any finding other than that

he knowingly joined and participated in

the conspiracy.") (citation omitted)./3 

D. Minor Role Adjustment

 As indicated above, Soto and Carrillo

were each sentenced to 151 months

imprisonment. Prior to sentencing, Soto

filed a written objection to the PreSentence Investigation Report ("PSR"),

arguing that he deserved a two-point

reduction for playing a minor role in the

offense. See U.S. Sentencing Guidelines Manual

sec. 3B1.2. Carrillo did not file any

written objections to the PSR, and when

questioned at the sentencing hearing, his

attorney stated that he did not wish to

move for a reduction pursuant to section

3B1.2 of the Guidelines./4 Both

defendants now ask us to reconsider the

district judge’s decision not to apply a

minor role adjustment. Carrillo, however,

has waived this issue by failing to

object to the PSR in writing, and by

indicating to the district court that he

had no objections. See United States v.

Staples, 202 F.3d 992, 995 (7th Cir.

2000). Therefore, appellate review is

precluded. See id. ("Waiver extinguishes

the error and precludes appellate

review.")

 With respect to Soto’s claim, we review

the district court’s findings of fact for

clear error, and the court’s legal
conclusions de novo. See United States v.

Mojica, 185 F.3d 780, 790-91 (7th Cir.

1999). It is well-settled in our circuit

that a defendant’s eligibility for the

reduction depends on "whether the

defendant was a minor participant in the

crime for which he was convicted, not

whether he was a minor participant in

some broader conspiracy that may have

surrounded it." United States v. Isienyi,

207 F.3d 390, 392 (7th Cir. 2000). Thus,

a drug courier who is only held

accountable for the amount of drugs he

carried is not entitled to the reduction.

See United States v. Burnett, 66 F.3d

137, 140 (7th Cir. 1995). We have

recognized that a circuit split exists on

this issue, see United States v. Hamzat,

217 F.3d 494, 497 (7th Cir. 2000),

however, and a proposed amendment to the

Commentary to section 3B1.2 of the

Guidelines adopts the position that a

minor role reduction is warranted even if

the offense level "is determined solely

by the quantity personally handled by the

defendant." See U.S. Sentencing

Commission, Proposed Amend. 7, 65 FR

66792, 66798 (Nov. 7, 2000).

 Soto argues that, in light of the

proposed amendment to section 3B1.2, we

should remand to the district court for

re-sentencing. We decline to do so not

only because the amendment has not yet

been adopted but because we are not

convinced that Soto would be entitled to

the reduction even under the proposed

amendment. At sentencing, the government

presented sufficient evidence to show

that Soto’s role went well beyond the

role of "mere courier." There was

substantial circumstantial evidence to

suggest that Soto’s role in the

conspiracy was an important one, even

when viewed in the context of the entire

conspiracy--he had been shown how to

operate the traps, had been present in

the garage where the cocaine was

presumably loaded into the Sable’s trap,

conducted counter-surveillance, and

picked up Carrillo at the movie theater

after Carrillo dropped off the Sable

containing the cocaine. Therefore, the

district court’s finding that Soto was

not entitled to a minor role adjustment

was not erroneous. 

E. Vienna Convention

 Lastly, defendants, who are Mexican
nationals, contend that the district

court should have suppressed their postarrest statements because the arresting

officers did not comply with Article

36(1)(b) of the Vienna Convention on

Consular Relations. Article 36(b)(1)

requires authorities to inform a foreign

national who is arrested or detained of

his right to communicate with his home

consulate. Although defendants recognize

that this argument is foreclosed by our

recent decisions in United States v.

Lawal, 231 F.3d 1045, 1048 (7th Cir.

2000), cert. denied, ___ U.S. ___, 121 S.

Ct. 1165, 148 L. Ed. 2d 1024 (2001)

(finding that the exclusionary rule is

not a proper remedy for a violation of a

detainee’s Article 36 rights), and United

States v. Chaparro-Alcantara, 226 F.3d

616, 624-25 (7th Cir.), cert. denied, 531

U.S. 1026, 121 S. Ct. 599, 148 L. Ed. 2d

513 (2000) (same), they ask us to

reconsider those decisions. We decline to

do so; accordingly, we find that the

district court did not err by admitting

defendants’ post-arrest statements. 

 

III. Conclusion

 For the reasons stated above, we AFFIRM

the judgment of the district court.

FOOTNOTES

/1 According to Braatsch, one legitimate use of a

trap would be to accommodate stereo amplifiers.

In this case, Agent Glynn observed that the

secret compartments were hidden inside the stereo

equipment rather than vice versa. 

/2 The district court instructed the jury:

 When the word "knowingly" is used in these

instructions, it means that the defendant realized what he was doing and was aware of the

nature of his conduct and did not act through

ignorance, mistake, or accident. Knowledge may be

proved by the defendant’s conduct and by all the

facts and circumstances surrounding the case. 

 You may infer knowledge from a combination of

suspicion and indifference to the truth. If you

find that a person had a strong suspicion that

things were not what they seemed or that someone

had withheld some important facts, yet shut his

eyes for fear of what he would learn, you may

conclude that he acted knowingly as I have used

that word.
 You may not conclude that the defendant had

knowledge if he was merely negligent in not

discovering the truth.

/3 In any event, any error was harmless in light of

the substantial evidence that the defendants had

actual knowledge of the illegal activities. See

Graffia, 120 F.3d at 713 n.5. 

/4 At the sentencing hearing, Carrillo’s counsel

informed the court, "[w]ell, your honor, Mr.

Carrillo has been adequately informed about the

presentence report. He has read it with the

assistance of others in the [prison]. He assured

me he understands it. He has no request concerning the minor participant. He is leaving that

matter entirely up to you." Tr. at 22-23.