Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 CR 729-David H. Coar, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before FLAUM, Chief Judge, and POSNER and KANNE, Circuit Judges.
Reyes Carrillo, Pedro Herrera, and Maria Miranda were charged in a seven-count indictment relating to their involvement in a conspiracy to distribute cocaine and heroin. The jury convicted Carrillo, Herrera, and Miranda on six counts of the indictment.*fn1 Carrillo was convicted of conspiracy, drug trafficking, and attempted possession with intent to distribute. Herrera was convicted of conspiracy and attempted possession with intent to distribute. Miranda was convicted of conspiracy and drug trafficking. These defendants now appeal their convictions raising several arguments. Carrillo argues that there was insufficient evidence to support his conviction for the charged drug trafficking conspiracy. Carrillo also argues that the district court abused its discretion in denying his motion for severance, especially where counsel for Herrera commented on the inability to cross-examine Carrillo. Herrera argues that there was insufficient evidence to support his convictions for conspiracy and attempted possession of cocaine with intent to distribute. Miranda argues that the district court improperly provided the jury with the so-called "ostrich instruction." Carrillo and Herrera also argue that their Sixth Amendment rights were violated during sentencing. For the following reasons, we affirm, but order a limited remand for a determination as to Carrillo's and Herrera's sentences pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
At trial, the government presented evidence that Carrillo, Herrera, Miranda, and others participated in a conspiracy to import multiple kilograms of heroin and cocaine from Mexico for distribution in the United States. A substantial portion of the government's evidence was the testimony of a confidential informant, Oscar Diaz.
A. Background of the Conspiracy: Carrillo, Diaz, and Herrera
Around mid-2000, Diaz was introduced to Carrillo through a common contact in the drug-dealing business. Diaz told Carrillo that he was interested in making money. Carrillo confirmed that Diaz had legal status in the United States and then offered Diaz an opportunity to transport cocaine across the United States-Mexico border in a car. Diaz accepted the offer. Carrillo was interested in Diaz's legal status because he thought it easier for Diaz to cross the border into the United States as a legal resident. Carrillo also thought it necessary for Diaz to be registered as the owner of the car containing the drugs that Diaz would drive across the border. Accordingly, Carrillo had Diaz register a Cadillac in Diaz's name. Both Carrillo and Diaz then drove to Mexico, with Diaz driving the Cadillac he had registered in his name, and Carrillo driving another car. Upon arrival in Mexico, Carrillo prepared the Cadillac for the return to Chicago by hiding drugs in the car's driveshaft. During this first trip to Mexico, Diaz was not involved in packing the car with drugs, but he was aware that the car contained cocaine, though he did not know precisely where. Diaz drove the car across the border and to East Chicago, Indiana, where Carrillo maintained a residence. Diaz returned the car to Carrillo, and Carrillo then paid Diaz more than $5,000.
After this first trip to Mexico, Diaz continued to work with Carrillo distributing drugs. Some time in 2001, Carrillo began instructing Diaz on Carrillo's method of packing drugs in a car's driveshaft. Carrillo wanted Diaz to learn this so that Diaz could pack cars in Mexico and unpack them in Chicago without Carrillo's presence being necessary.
Herrera frequently distributed Carrillo's drugs. As Diaz testified at trial, Carrillo trusted Herrera and would front drugs to him. Furthermore, Carrillo rented a home in Palatine, Illinois, where he stored drugs and conducted drug deals. The home's lease listed a "Cousin Pedro" as a contact for the real estate broker. Herrera, whose first name is Pedro, was the subscriber to the telephone number on the lease attributed to "Cousin Pedro." In one instance, Herrera took cash from Carrillo to pay the rent for this home.
B. Miranda and the Black Cadillac
Miranda found her way into the drug conspiracy when she became romantically involved with Diaz in 2001. As Diaz testified at trial, Miranda had witnessed some of Diaz's involvement in drug trafficking. Specifically, in late 2001 Miranda witnessed Diaz collecting money from Herrera and discussing the prices of drugs. She also was present when Diaz, on behalf of Carrillo, paid another person $1,500. When she became aware that Diaz had driven drugs in from Mexico, she told Diaz that she would like to "make a trip and make some money." Diaz informed Carrillo of Miranda's desire, and all three met to discuss Miranda making a trip to Mexico. According to Diaz, Carrillo told Miranda that she would drive a car packed with cocaine and that she could cross the border without difficulty in the same way that both Diaz and another individual had. Despite the fact that Carrillo told Miranda that she would be transporting cocaine, Diaz knew that she would actually be transporting heroin.
In preparation for her trip to Mexico, Miranda went with Carrillo to have a black Cadillac registered in her name. Carrillo then arranged for Miranda to fly to Odessa, Texas, on February 16, 2002. Carrillo met her at the airport in Odessa, and drove her across the Mexican border. Diaz traveled separately to Mexico where he met Miranda and Carrillo. The next day Carrillo and Diaz prepared the black Cadillac for Miranda by filling its driveshaft with heroin. Miranda was not present when this occurred. After the black Cadillac was ready, the day after she arrived in Mexico, Miranda and Diaz crossed the U.S.-Mexico border driving separate cars. Miranda and Diaz then stopped in Odessa, Texas, to pick up Jose Trejo, an associate of Carrillo's. They continued on to Chicago, with Miranda driving alone and Diaz and Trejo driving together. Upon arriving in the Chicago area, Miranda was dropped off at her home in Cicero, Illinois, and Trejo drove the black Cadillac to Carrillo's home in East Chicago, Indiana, with Diaz following in his car. After meeting up with Carrillo, Diaz and Carrillo drove to Carrillo's home in Palatine, Illinois, where they removed the driveshaft from the black Cadillac and retrieved the heroin. Diaz later observed Carrillo pay Miranda $5,000, and he was told by Carrillo that Miranda had been given additional money.
Diaz made another trip to Mexico in March or April of 2002 to pick up more heroin. This trip was taken by Diaz, Carrillo, and another associate, Salvador Zamora. All three drove to Mexico together, and the plan was for Zamora to drive a car packed with heroin back into the United States. Carrillo, who perhaps preferred Cadillacs because of his familiarity with their driveshafts, had arranged for a white Cadillac to be present in Mexico. Carrillo told Diaz that he intended to register that white Cadillac under the name of Juan Jose Guajardo. Zamora was to pose as Juan Jose Guajardo. Diaz knew that Carrillo had also obtained a birth certificate and Social Security card in that name.
As before, heroin was placed in the driveshaft of this white Cadillac. Carrillo then fitted the white Cadillac with the license plates he had obtained for it. Carrillo had also brought the registration for the car which was in the name Juan Jose Guajardo, which he apparently gave to Zamora. Zamora then drove the white Cadillac across the border with Diaz following in a separate car. This time, however, things did not go so well. Instead of making it to Chicago, the white Cadillac broke down near Odessa.
After discussions with Carrillo, Diaz and Zamora left the white Cadillac in Odessa and returned to Chicago.
Shortly thereafter, in April of 2002, Diaz was contacted by law enforcement officers. These officers informed Diaz that they knew he was involved in illegal drug trafficking. After a series of discussions, Diaz agreed to cooperate with authorities. Diaz informed the government of his involvement with Carrillo and of the white Cadillac left in Odessa.
On May 8, 2002, DEA agents conducted surveillance on Carrillo's home in East Chicago for the purpose of observing Carrillo retain possession of the white Cadillac. On that day the agents saw Carrillo and a male Hispanic drive together to a restaurant's parking lot in Palatine. The agents watched as a flatbed tow truck with a white Cadillac on it entered the parking lot and headed toward Carrillo. Carrillo lifted his left arm as if to wave at the tow truck; then Carrillo drove out of the parking lot with the tow truck following in the same direction. The agents quickly pulled over the tow truck and seized the white Cadillac. An agent interviewed the driver of the tow truck and discovered that one of the phone numbers listed on the driver's cellular telephone was subscribed to by Miguel Vargas of Aurora, Illinois.
After seizing the white Cadillac on May 8, 2002, the agents took out its driveshaft and discovered heroin and cocaine. The agents ran the title history of the car and discovered that Carrillo had purchased it in February, 1999. The title history also showed that the white Cadillac had been sold to Juan Jose Guajardo and listed Guajardo's phone number. Diaz had used this number to reach Carrillo during the government's investigation.
About two months later, on July 2, 2002, agents covertly recorded a conversation between Carrillo and Diaz during which Carrillo discussed how a person named Miguel, along with Trejo, had brought the white Cadillac from Odessa to Aurora and then hired a tow-truck driver to tow the white Cadillac from Aurora to Palatine. Carrillo also explained to Diaz how the authorities had pulled over the tow truck and seized the white Cadillac, and how Carrillo had "paid 120 bucks to be able to claim the title" for the white Cadillac. Consistent with that recorded statement, the title history of the white Cadillac showed that on May 21, 2002, Juan Jose Guajardo applied for a duplicate title. Furthermore, between the time the white Cadillac was seized on May 8, 2002, and July 12, 2002, an attorney claiming to represent Juan Jose Guajardo contacted the DEA to obtain the seized white Cadillac. ...