Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 112 John A. Nordberg, Judge.
Before POSNER, Chief Judge, ROVNER and EVANS, Circuit Judges,
Honore Fred Farouil was convicted by a jury of knowingly importing heroin into the United States in violation of 21 U.S.C. sec. 952(a). He appeals his conviction and his sentence, contending that the district court erred in (1) refusing to suppress certain post-arrest statements; (2) instructing the jury on the government's conscious avoidance theory; (3) determining the amount of heroin attributable to him; (4) denying him a downward departure; and (5) refusing to apply the safety valve provision under 18 U.S.C. sec. 3553. The government cross appeals, challenging the three-level reduction the trial court allowed for Farouil's role in the offense. We affirm the conviction, but vacate and remand the sentence because we agree that the court erred in granting the three-level reduction for Farouil's minor role in the offense, and also because the court misapprehended the extent of its discretion when it refused to depart downward.
On February 17, 1994, airport officials in Brussels, Belgium searched the luggage of Helene Alexis, who was attempting to board an American Airlines flight to Chicago. After discovering heroin in the lining of Alexis' carry-on bag, an airport security officer alerted customs officials in Chicago that they had arrested Alexis and that she had been traveling with two men who were bound for Chicago, Honore Fred Farouil and Moucharafou Mounirou. Based on this information, customs officials met the plane at Chicago and observed Farouil and Mounirou from a distance. Customs Agents Timothy, Gallowitch and Stewart all observed Farouil approach the baggage carousel, and then turn to leave without claiming his checked luggage. Agent Timothy approached Farouil at this point and asked whether he had any luggage to claim. Farouil indicated that the garment bag he was carrying was the only luggage he had, and Agent Timothy escorted him to an inspection area in order to search the bag. *fn1 When Agent Timothy reached inside the bag, Farouil attempted to zip the bag closed. Agent Timothy then emptied the bag and discovered three suit jackets that were unusually heavy. The empty bag was also suspiciously weighty. Upon inserting a probe into the lining of the jackets and the bag, Agent Timothy discovered a white powdery substance that field-tested positive for heroin. All tolled, the garment bag and suits contained 7.53 kilograms of heroin. Farouil was then arrested.
In their first attempt to question Farouil, the customs agents quickly determined that Farouil, a French citizen, could not understand English, and they terminated the interview. In their second attempt, they sought assistance from Roberto Cardona, a Department of Aviation employee who spoke some French. Because of Cardona's limited knowledge of French and because he spoke French with a strong Spanish accent, the interview again proved unsuccessful and was terminated quickly. The agents then brought in Leslie Hirsch, an Air France employee who was fluent in French, to translate. Although Ms. Hirsch did not specifically recall reading Farouil his Miranda rights, two agents present at the interview recalled reading a waiver of rights form to Ms. Hirsch, who translated the statements into French for Farouil. The agents further recalled that Farouil indicated he understood the waiver of rights form and that he signed it before they proceeded with the interview.
In the course of the interview, Farouil made several incriminating statements. He indicated that an unknown man had given him the bag when he was at an airport in Lome, Togo. He told the agents the man offered to pay him $5000 to carry the bag to Chicago, and directed him to go to the cab stand outside the International Terminal, where he would be approached by a man named Philip. If Philip did not show up, Farouil was to take the bag to the Chicago Hotel and wait for further instructions. *fn2 The man told Farouil that he was selecting him for this job because Farouil had a French passport, which would arouse less suspicion. At the conclusion of the interview, the agents directed Farouil to walk out into the passenger terminal, while they kept him under surveillance, to see if he would be contacted by Philip. No one approached Farouil during that time.
At trial, Farouil sought to suppress his post-arrest statements on the grounds that he did not knowingly and voluntarily waive his Miranda rights. According to Farouil, Ms. Hirsch never read him his rights, and he signed the waiver of rights form during the interview session with Cardona, because he believed it to be a "cooperation" form. After an evidentiary hearing, the trial court declined to suppress the statements. Farouil also challenged the district court's decision to give a conscious avoidance instruction (also known as an "ostrich" instruction) to the jury, arguing that the government presented an insufficient factual basis for such an instruction. Farouil was convicted by a jury and sentenced to 135 months incarceration. In calculating the base offense level, the trial court attributed to Farouil the heroin found in his bag as well as the 4.5 kilograms of heroin that were confiscated from Alexis at the time of her arrest at the Brussels airport. Farouil requested that the court depart downward because he was a deportable alien and thus would be ineligible for home detention, community confinement, work release, or intermittent incarceration, and could not serve any of his sentence in a minimum security prison. The court declined to depart downward, and further found that Farouil was ineligible for the safety valve provision of 18 U.S.C. sec. 3553(f). The court awarded Farouil a three-level reduction for his role in the offense, which the court characterized as falling between that of a minimal participant and that of a minor participant.
On appeal, Farouil challenges the district court's denial of his motion to suppress his post-arrest statements, arguing that Hirsch was the only person who spoke his language and that she had no recollection of reading him his rights. Farouil also contests the district court's decision to give the conscious avoidance or "ostrich" instruction, claiming that the evidence was insufficient to create a factual predicate for the instruction. Farouil raises three issues relating to his sentence. First, he claims the district court erred in attributing to him the heroin confiscated from Alexis because her offense was not a crime against the United States. Second, he contends the district court erred as a matter of law in limiting the grounds on which it could grant a downward departure, and in particular erred in finding that it had no authority to depart downward on the basis of Farouil's status as a deportable alien. Finally, Farouil claims the court erred in finding that he did not qualify for the safety valve provision. *fn3 The government cross-appealed the sentence, challenging the three-level reduction the court allowed to account for Farouil's role in the offense. The government argues that the record contains no support for the court's finding that Farouil's role in the offense was between minimal and minor.
We review de novo the district court's denial of Farouil's motion to suppress his post-arrest statements. Ornelas v. United States, 116 S. Ct. 1657 (1996); United States v. Mills, No. 94-2788, 1997 WL 450074 (7th Cir. Aug. 8, 1997) (applying Ornelas to the review of voluntariness of waiver of Miranda rights). We review deferentially the findings of the trial court with respect to historical facts that underlie the issue of voluntariness. Mills, 1997 WL 450074, at *2; United States v. D.F., 115 F.3d 413, 417 (7th Cir. 1997). But following Mills, we review de novo the ultimate issue of ...