United States of America v. Francisco Felix-Felix and Guadalupe Felix-Felix

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2828, 00-2865
United States of America,
Plaintiff-Appellee,
v.
Francisco Felix-Felix and
Guadalupe Felix-Felix,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 219--Ann Claire Williams, Judge,
and Joan B. Gottschall, Judge.
Argued March 29, 2001--Decided December 27, 2001
Before Easterbrook, Rovner, and Diane P.
Wood, Circuit Judges.
Diane P. Wood, Circuit Judge. Francisco
Felix-Felix and Guadalupe Felix-Felix
were cousins with too much in common.
Both were caught with substantial amounts
of cocaine, and both pleaded guilty to
possession of cocaine with intent to
distribute. Each plea agreement reserved
the defendant’s right to appeal the
district court’s denial of his motion to
suppress statements made to the police
during questioning, as well as the actual
cocaine the police found. Because we
believe that these statements and
searches were consistent with Fourth
Amendment standards, we affirm the
district court’s denial of the
suppression motions. We also find no
error in the sentencing of Francisco
Felix-Felix, and we therefore affirm both
judgments.
I
In September 1997, DEA agents conducting
surveillance of a known center for drug
transactions in Cicero, Illinois,
observed Guadalupe and Francisco making
calls from pay phones and conducting
brief meetings with other individuals in
and around that area. At one point, the
agents followed the two Felix-Felixes to

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an apartment in Cicero, where the
officers asked for and received consent
from Guadalupe and Francisco to search
the premises. Two handguns and $6,100 in
cash, which the agents seized, turned up
as a result of the search. They made no
arrests at the time, and the September
1997 event is not at issue in this case.
Several weeks later, agents observed
Guadalupe and Francisco at a currency
exchange and followed them to a house at
211 Vintage Road in Buffalo Grove,
Illinois. A few months later, on April 1,
1998, they followed their lead on the
house and interviewed some of the
neighbors. Their interlocutors confirmed
that Guadalupe and Francisco frequented
the Buffalo Grove residence. The
neighbors also mentioned that they rarely
saw Guadalupe and Francisco outside the
home, but they often saw them driving in
and out of the garage in a white Jeep.
At about 1:45 p.m. the next day, DEA
agents conducting surveillance of the
Buffalo Grove residence saw Guadalupe
leave the garage driving a rented maroon
van. The agents also saw a parked white
Jeep Wrangler inside the garage. Agents
followed the maroon van to a McDonald’s
fast food restaurant in Hickory Hills,
Illinois. While they watched, Guadalupe
exited the van, went inside to have a
meal, walked to a nearby pay phone, and
placed several calls. He waited by the
telephone until a man, later identified
as Eduardo Vargas, approached and looked
inside the van. Vargas spotted Guadalupe,
walked to the pay phone, and shook hands
with him. Vargas then climbed into the
van alone, and drove it about a mile
away, as agents followed. Without making
any stops, Vargas returned to the
McDonald’s parking lot and placed a
telephone call from the same pay phone.
In the meantime, DEA agents had
continued surveillance of Guadalupe, who
had left the McDonald’s and walked to a
nearby Walgreen’s drug store. After
Vargas used the pay phone, Guadalupe left
the drug store and met Vargas at the
McDonald’s. The two then left the
McDonald’s together and hurriedly walked
to the rear of the building. As they
walked away from the McDonald’s,
Guadalupe bent down and placed the van
keys on the ground.

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After a glance through the van windows
revealed a black suitcase and a box for a
measuring scale, the agents approached
the two men, who by this time had walked
into a residential neighborhood south of
the shopping center, and asked them if
the van belonged to one of them. Initial
ly, they both denied ownership, but after
further questioning, Guadalupe admitted
that he had been driving the van earlier
that day. Agents then brought Guadalupe
and Vargas back to the McDonald’s
restaurant. Guadalupe took the agents to
the parking lot area where he had placed
the keys to the van on the ground, and he
gave the keys to the agents. At some
point, either before or after returning
to the parking lot, Guadalupe gave the
agents written consent, in Spanish, to
search the van.
The police conducted their search with
the help of a drug-sniffing dog. As soon
as the dog jumped into the back of the
van, he provided a positive alert for the
presence of drugs in the box and the
suitcase. He was right: a search of the
box and the suitcase revealed 50
kilograms of cocaine (confirmed by a
field test). The agents then informed
Guadalupe and Vargas of their Miranda
rights and formally arrested them.
After Guadalupe’s arrest, DEA agents
returned to the house in Buffalo Grove
and recommenced their surveillance while
they waited for a search warrant. At
approximately 9:15 p.m., agents observed
Francisco pull into the subdivision
driving a white Jeep like the one the
agents observed earlier in the garage.
When Francisco turned into his cul-de-sac
and saw the agents’ cars, he sped past
the agents and did not stop at the house.
They pursued him until he was forced to
stop at a dead-end street. The agents ap
proached Francisco and asked him, in
Spanish, why he was driving in the area
and why he did not pull into the garage
of the house. He gave some evasive
answers, but before too long he signed a
written consent form permitting the
agents to search the house and garage; he
also gave them the garage door opener and
the keys to the house.
Two agents stayed outside with Francisco
while the search was conducted. Soon
after the search began, an agent came
back out and reported that he had found

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syringes and pharmaceuticals. Asked about
these items, Francisco denied ownership.
The agents then discovered a suitcase in
the foyer closet containing 50 kilograms
of cocaine. At this time, the agents
advised Francisco of his rights (in
Spanish) and arrested him. He requested
counsel, at which point all questioning
ceased.
II
On April 22, 1998, Guadalupe, Francisco,
and Vargas were all indicted on one count
of conspiracy to possess with intent to
distribute cocaine, in violation of 21
U.S.C. sec. 846, and two counts of
possession of cocaine with intent to dis
tribute, in violation of 21 U.S.C. sec.
841(a)(1). Vargas entered into a plea
agreement with the government. In his
guilty plea, Vargas admitted that he had
met with both defendants to negotiate
several drug sales. He stated that on the
day before the arrest, he met Guadalupe
at the same McDonald’s restaurant and,
using the same rental van, received two
suitcases containing cocaine. Vargas told
agents that they had planned to make
another buy on April 2, but Vargas had
noticed that he was being trailed by law
enforcement agents, which was why
Guadalupe and Vargas walked away from the
van.
Prior to trial, Francisco moved to
suppress the statements he made when his
Jeep was stopped and to suppress the
evidence obtained in the search of the
Buffalo Grove house. The stop of his
Jeep, he asserted, was an arrest for
which probable cause was required; before
the officers could speak with him, he
argued further, they should have given
him his Miranda rights. The lack of both
safeguards meant that all of his answers
to the agents’ questions, the consent to
search form, and the results of the
search of the residence were illegal
evidence subject to suppression.
Guadalupe also filed a motion to
suppress the statements he made during
the agents’ questioning of him and the
evidence obtained from the search of the
van. He too argued that the seizure was
an arrest for which probable cause was
required. Guadalupe further urged that
the evidence should be suppressed because
the DEA agents had failed to advise him

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that, as a citizen of Mexico, he had a
right to communicate with a consular
officer of his country pursuant to
Article 36 of the Vienna Convention on
Consular Relations, April 24, 1963 art.
36, 21 U.S.T. 77.
On September 28, 1999, the district
court denied both motions and the
accompanying requests for evidentiary
hearings. The court found that their
confrontations with the agents did not
violate the Fourth Amendment.
Additionally, the court found that while
the Vienna Convention had been violated,
Guadalupe had not shown that the
violation warranted exclusion of the
evidence.
On the day that jury selection was set
to begin, Guadalupe and Francisco
withdrew their not guilty pleas and
entered conditional guilty pleas on all
three counts, reserving their rights to
appeal the district court’s denial of
their suppression motions. After a
thorough hearing, the court accepted the
pleas (which were unaccompanied by any
plea agreements) and entered judgments of
conviction on October 19, 1999.
Sentencing took place on July 13, 2000.
At the hearing, Guadalupe and Francisco
both requested reductions in their
offense levels based on their "minor"
roles in the conspiracy, U.S.S.G. sec.
3B1.2(b), as well as acceptance of
responsibility, U.S.S.G. sec. 3E1.1. The
court denied the motions and sentenced
both Guadalupe and Francisco to 151
months on each count, to run
concurrently, and five years of
supervised release. Both defendants
appeal the district court’s denial of
their separate motions to suppress, and
Francisco also appeals the determination
of his sentencing offense level.
III
The main issues in this case revolve
around the encounters between the
defendants and the police. Citizen-police
encounters can be placed into three
categories: the first category, a
consensual encounter, involves no
restraint on a subject’s liberty and is
characterized by non-coercive police
questioning of a citizen who voluntarily
cooperates. This is not a seizure within
the meaning of the Fourth Amendment and

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requires no objective justification.
United States v. Mendenhall, 446 U.S.
544, 552-54 (1980).
The second category is an investigatory
stop, which is limited to a brief, non-
intrusive detention, often termed a Terry
stop. See Terry v. Ohio, 392 U.S. 1
(1968). An "officer may ask the detainee
a moderate number of questions to
determine his identity and to try to
obtain information confirming or
dispelling the officer’s suspicions" that
criminal activity is afoot. Berkemer v.
McCarty, 468 U.S. 420, 439 (1984). An
investigatory stop may also include a
pat-down search. United States v.
Feliciano, 45 F.3d 1070, 1072 (7th Cir.
1995). A Terry stop is subject to Fourth
Amendment standards, but an officer need
only have specific, articulable facts
that give rise to a reasonable suspicion
of criminal activity. Id. This level of
suspicion is considerably lower than
proof of wrongdoing by a preponderance of
the evidence. United States v. Sokolow,
490 U.S. 1, 7 (1989).
When police actions exceed a short
detainment, the seizure becomes a full-
blown arrest, for which the police are
required to have probable cause to
believe that a person has committed or is
committing a crime. Beck v. Ohio, 379
U.S. 89, 96-97 (1964). We will examine
the stops with these Fourth Amendment
"seizure" standards in mind.
A. Guadalupe’s Claims
1. Denial of Evidentiary Hearing
We first address Guadalupe’s challenge
to the district court’s decision to
forego an evidentiary hearing before
denying the motion to suppress. We review
this determination for clear error,
reversing only if we are left with a
definite and firm conviction that an
error has occurred. United States v.
Rodriguez, 69 F.3d 136, 140 (7th Cir.
1995).
Upon examination of the record, we
cannot say that the district court
committed clear error in concluding that
a hearing was unnecessary. It was
Guadalupe’s burden to establish the
necessity of a hearing by demonstrating

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that there was a disputed material issue
of fact justifying relief. United States
v. Randle, 966 F.2d 1209, 1212 (7th Cir.
1992). For the most part, Guadalupe’s
motion simply recited the facts contained
in the DEA agent’s affidavit supporting
the criminal complaint. Contrary to the
government’s assertions, there was one
potential area of dispute. DEA Agent
Freyberger’s affidavit stated that
Guadalupe gave his consent to search the
van while agents were questioning him in
the residential neighborhood. Guadalupe’s
motion had a different version of the
timing: he claimed that he signed the
consent to search form after he returned
to the McDonald’s parking lot and saw the
agents trying to open his van with a
"slim jim." This dispute would have been
material, however, only if Guadalupe had
argued that seeing the slim jim procedure
somehow made his subsequent consent
involuntary. But Guadalupe made no such
argument in his motion, and it is not up
to us to construct something along these
lines for him. (This holding is
reinforced by Guadalupe’s appellate
counsel’s statement in his brief that
"[d]efendant’s motion assumed as correct
the facts averred in the [government’s]
Affidavit in Support of Criminal
Complaint for purposes of arguing that
those facts . . . do not constitute
probable cause." Br. at 6, 13-14.)
Guadalupe also suggests that when he was
forcibly "brought back" from the
neighborhood to the van, the
investigatory stop became an arrest for
which probable cause was required. He
maintains that a hearing was necessary to
determine whether the encounter was
either an arrest or merely a Terry stop.
The problem with this argument is that it
comes too late in the day. Nowhere in his
motion to suppress did Guadalupe mention
to the district court that the DEA agents
used force when detaining him. Indeed,
even in his brief to this court,
Guadalupe did not describe the method by
which he was "brought back" to the van.
Although a careful look at the record
reveals that Guadalupe mentioned at the
plea hearing that the police handcuffed
him and then brought him back in a police
cruiser, he never focused on those facts
as a ground for granting his suppression
motion. Neither the district court nor
this court is required to dig through the
record to construct arguments a litigant

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has not made. Guadalupe’s repeated
failure to clarify what specific "force"
distinguished his case from other Terry
stops amounts to a forfeiture of any
possible argument he might have made
based on those facts. His lack of
attention to this point also means that
the district court did not err in
refusing to hold a hearing on the
question of the degree of force used.
Given the state of this record, we
express no view on the question whether
the exercise of control over his freedom
of movement employed by the police here
was enough to escalate the stop from a
Terry stop to a full-blown arrest.
2. Seizure
The district court found that the
agents’ stop of Guadalupe in the
neighborhood was a Terry investigatory
stop supported by a reasonable suspicion
of criminal activity. We review this
determination de novo, although we review
findings of historical fact for clear
error and give due weight to inferences
drawn from those facts by district judges
and local law enforcement officers. See
Ornelas v. United States, 517 U.S. 690,
699 (1996).
We see no clear error in the underlying
facts the district court found, and on
the basis of that record, we conclude
that the agents’ questioning of Guadalupe
in the residential neighborhood qualified
as at most an investigatory stop. Indeed,
initially the agents were not even
detaining him forcibly. They had not
patted him down; they were simply
questioning him about his identity and
his whereabouts that day. To the extent
that there was an investigatory stop, it
was justified by a reasonable suspicion
that drug trafficking was either about to
happen or had already happened. Guadalupe
had been observed in known drug-
trafficking locations using pay phones.
Earlier, the agents had found a large
amount of cash and weapons in his
apartment. On the day of the encounter,
Guadalupe drove a van to a restaurant
parking lot but then let someone else
drive it, only to have it returned a few
minutes later. Guadalupe then left the
van behind after deliberately leaving the
keys on the ground in the parking lot.
These circumstances, taken as a whole,

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were enough to arouse the suspicions of
reasonable DEA agents and to justify the
detention as a Terry stop.
3. Search of Van
Guadalupe also contends that he did not
voluntarily consent to the search of the
van. Thus, he claims, all of the evidence
found in the van was the result of an
illegal search. Had the consent to search
the van been made in the midst of an
illegal arrest, it may very well have
been invalid as "fruit of the poisonous
tree." See United States v. Sanchez-
Jaramillo, 637 F.2d 1094, 1099-1100 (7th
Cir. 1980) (excluding evidence found
after consent given during illegal
arrest). But if the investigatory stop
was justified, as we have concluded this
one was, we examine the consent only to
see if it was "the product of an
essentially free and unconstrained
choice. . . ." Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973). Guadalupe has
offered nothing to support a finding of
involuntariness. The consent form was
written in Spanish, Guadalupe’s native
language, and he signed it. He makes no
argument that he was threatened or
otherwise coerced into giving the
consent. The fact that he was being
questioned by police at the time is no
basis for establishing involuntariness.
See United States v. Cipriano, 765 F.2d
610, 612 (7th Cir. 1985) ("[T]here is
nothing inherently coercive in an
officer’s identification of himself as a
law enforcement agent and subsequent
questioning.") Looking at the "totality
of the circumstances," see Schneckloth,
412 U.S. at 227, Guadalupe has not shown
that his consent was given unknowingly or
involuntarily.
4. Vienna Convention Violation
Guadalupe also argues that any
statements he made should be suppressed
because the agents violated his rights
under the Vienna Convention in failing to
notify him that he had the right, as a
Mexican citizen, to communicate with the
Mexican consulate. He asserts that had he
been informed of his right, he would not
have given the incriminating statements.
Although the district court judge found
that the notice requirements of the
Convention were not met, the judge found

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that exclusion was not proper because
Guadalupe had not shown that he was
prejudiced by the violation of the
Convention.
The district court decided this issue
without the benefit of United States v.
Lawal, 231 F.3d 1045 (7th Cir. 2000), in
which this court held that exclusion of
evidence was not the proper remedy for
violation of a defendant’s consular
access rights under the Vienna
Convention. See also United States v.
Carrillo, 269 F.3d 761 (7th Cir. 2001);
United States v. Chaparro-Alcantara, 226
F.3d 616, 624-25 (7th Cir. 2000).
Although he acknowledged Lawal, Guadalupe
has asked for exclusion anyway, in the
hope that the Supreme Court would
overturn Lawal. However, the Supreme
Court has since denied certiorari in
Lawal, 121 S.Ct. 1165 (2001). We too are
not inclined to revisit the issue, and
thus even if the Convention was violated,
the district court correctly refused to
suppress evidence on that ground.
B. Francisco’s Claims
1. Seizure
Francisco also wanted to suppress the
statements that he made when the agents
questioned him, as well as the evidence
obtained in the search of the Buffalo
Grove house. He argued that the stop of
his vehicle constituted an arrest for
which probable cause was required, and
that he was entitled to Miranda warnings
before being questioned. The district
court found that the stop was only a
Terry stop and not an arrest, and that
the officers had a reasonable suspicion
of criminal activity. (Francisco had also
requested an evidentiary hearing; he does
not appeal the denial of that request.)
The chase of the Jeep Wrangler was
certainly not a seizure--a show of
authority, without any application of
physical force, to which the suspect does
not yield, is not a seizure. California
v. Hodari D., 499 U.S. 621, 626-27
(1991). But Francisco argues that he was
effectively arrested when his Jeep was
trapped in the dead end. The government,
again, argues that the stop was an
investigatory stop and not an arrest.

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Had Francisco simply chosen to stop his
car and answer the government’s
questions, it would have been easy
toconclude that this was a Terry stop for
which there was adequate justification.
Francisco, like Guadalupe, had been seen
in high drug crime areas. By the time the
officers stopped Francisco, they had
already discovered cocaine in a van that
was garaged at a house in which Francisco
had been seen. The agents saw Francisco
drive into his subdivision and then speed
past his residence. See Illinois v.
Wardlow, 528 U.S. 119 (2000) (unprovoked
flight upon noticing the police is a
pertinent factor in determining
reasonable suspicion).
The question is whether the stop became
an arrest when he was "cornered" in the
dead end and had no choice but to stop
and exit the car. We conclude that these
circumstances were largely of Francisco’s
own making and thus did not transform the
nature of the police conduct. A Terry
stop is, after all, a brief involuntary
detention. One of the ways the police
might ensure compliance with their
request for a person to stop is to cut
off other avenues of escape. That is all
that happened here. Once police have the
reasonable suspicion required to justify
an investigatory stop, they may use
reasonable means to effectuate that stop.
United States v. Weaver, 8 F.3d 1240,
1244 (7th Cir. 1993); Tom v. Voida, 963
F.2d 952, 958 (7th Cir. 1992). The stop
in the dead-end street was necessitated
by Francisco’s attempts to evade the
agents. It is also worth noting that in
considering whether an investigatory stop
has transformed into an arrest, "we
consider whether the subject’s own
actions in resisting the legitimate
efforts of police to stop and question
him played a role in bringing about the
challenged police conduct." Weaver, 8
F.3d at 1243. Neither the chase nor the
ultimate stop in the dead end had the
effect of transforming this particular
traffic stop and the resulting
conversation into an arrest.
Because the entire encounter was just a
Terry stop, probable cause was not
required. Nor were the police required at
that stage to give Francisco his Miranda
warnings. See United States v. Lennick,
917 F.2d 974, 977 (7th Cir. 1990). And,
as already discussed, there was

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sufficient justification for the
investigatory stop. It follows that the
consent to search the home was also valid
and Francisco’s claim of coercion must be
rejected.
2. Denial of Sentencing Reduction for
Minor Role
Francisco also contends that he should
have received a two-point adjustment to
his offense level under sec. 3B1.2(b) of
the sentencing guidelines. Section
3B1.2(b) allows a judge to decrease the
offense level by two "[i]f the defendant
was a minor participant in any criminal
activity." A minor participant is a
participant "who is less culpable than
most other participants, but whose role
could not be described as minimal."
U.S.S.G. sec. 3B1.2, comment (n. 3). The
reduction is often used with a conspiracy
charge to ensure that the defendant’s
sentence, which may be based on the
"relevant conduct" of co-conspirators,
does not reflect conduct other than his
own. See United States v. Mojica, 185
F.3d 780, 791 (7th Cir. 1999).
At the sentencing hearing, Francisco
bore the burden of demonstrating that the
reduction was warranted. He chose to
carry that burden by resting solely on
his admission during his guilty plea and
the government’s version of the offense;
he did not offer any additional evidence
that may have supported his request. The
district court denied the reduction and
sentenced him accordingly. Because the
district court’s conclusion is heavily
dependent on the facts, we review it only
for clear error. See United States v.
Lampkins, 47 F.3d 175, 180 (7th Cir.
1995).
On appeal, Francisco argues that he was
clearly less responsible than Guadalupe
since it was Guadalupe who drove the van
to the meeting site to deliver the
narcotics. Vargas stated in his plea
admission, however, that he met with both
of the defendants to negotiate the deal.
Additionally, Francisco did not dispute
that he was responsible for the
safekeeping of the cocaine at the
residence. Last, and in this circuit most
important, the district court held him
accountable only for the 50 grams of
cocaine that were found in a house where

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he was staying. In other words, he was
sentenced only for drugs that he himself
"had his hands on" at the house, which
made the downward departure neither
necessary, nor, under our interpretation
of the existing guidelines, appropriate.
See Lampkins, 47 F.3d at 180-81.
IV
We therefore Affirm the district court’s
orders denying both motions to suppress.
We also Affirm the convictions and
sentences of Francisco and Guadalupe
Felix-Felix.

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