United States v. Carrillo, Reyes

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2195, 04-2196 & 04-2668
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REYES CARRILLO, PEDRO HERRERA,
and MARIA MIRANDA,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 729—David H. Coar, Judge.
____________
ARGUED JUNE 10, 2005—DECIDED JANUARY 27, 2006
____________
Before FLAUM, Chief Judge, and POSNER and KANNE,
Circuit Judges.
KANNE, Circuit Judge. Reyes Carrillo, Pedro Herrera,
and Maria Miranda were charged in a seven-count indict-
ment 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.1
Carrillo was convicted of conspiracy, drug trafficking, and
1
Count 7 charged Miranda and a fourth person, Luz Gomez, with
retaliating against a government witness. Miranda and Gomez
were acquitted of the charge in Count 7.
2 Nos. 04-2195, 04-2196 & 04-2668
attempted possession with intent to distribute. Herrera was
convicted of conspiracy and attempted possession
with intent to distribute. Miranda was convicted of con-
spiracy and drug trafficking. These defendants now appeal
their convictions raising several arguments. Carrillo argues
that there was insufficient evidence to support his convic-
tion 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 evi-
dence to support his convictions for conspiracy and at-
tempted 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).
I. HISTORY
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
Nos. 04-2195, 04-2196 & 04-2668 3
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 be-
ing 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,
4 Nos. 04-2195, 04-2196 & 04-2668
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
Nos. 04-2195, 04-2196 & 04-2668 5
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.
C. The White Cadillac
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.
6 Nos. 04-2195, 04-2196 & 04-2668
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 involve-
ment 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
Nos. 04-2195, 04-2196 & 04-2668 7
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. It was stipulated at trial that this attorney
had never met Juan Jose Guajardo and that Herrera was
the individual who had come to the attorney’s office re-
questing that the attorney look into the return of the white
Cadillac.
D. The Attempt to Purchase Cocaine
In May of 2002, around the time that the white Cadillac
was seized, Diaz made another trip to Mexico with the
government’s authorization. While in Mexico, Diaz met
an individual and discussed with him the possible purchase
of between 70 and 75 kilograms of cocaine. After returning
from Mexico, Diaz informed Carrillo of this opportunity. On
July 1, 2002, Carrillo told Diaz that Herrera had a customer
who wanted to purchase 25 kilograms of the cocaine. On
July 2, 2002, Carrillo and Diaz discussed doing a drug deal
with Herrera’s customer and decided to inform Herrera that
money would need to be paid up front for this deal. Usually,
Carrillo would front drugs to Herrera, but on this deal the
individuals supplying the cocaine would want money
immediately. On July 11, 2002, Carrillo, Herrera, and Diaz
met to finalize the details of the deal. Portions of this
meeting were recorded by the government. By this time,
8 Nos. 04-2195, 04-2196 & 04-2668
Herrera’s prospective customer had dropped out of the deal,
but Herrera and Carrillo had decided to go in together to
purchase the cocaine from Diaz’s source. Diaz and Herrera
discussed money, and Herrera said that he could come
up with somewhere between $105,000 and $150,000. Car-
rillo and Herrera told Diaz to bring the drugs to the home
in Palatine where the deal could be completed. Diaz
understood that the drug deal would occur on the next
day, July 12, 2002, at the home in Palatine. The meeting
ended, and DEA agents saw a man, later identified as
Herrera, enter a green Chevy Blazer and drive away.
On the following day, DEA agents set up surveillance
around the home in Palatine. The agents observed the same
green Chevy Blazer they had earlier attributed to Herrera
parked in the driveway of the home, along with a four-door
Oldsmobile. The agents’ cover was quickly broken as one of
them was spotted, which resulted in two individuals fleeing
the home and driving off. The agents embarked on a high-
speed chase of the Blazer as it weaved through traffic and
eventually caught up with the Blazer, pulled it over, and
learned that Herrera was the driver. A subsequent search
of the Blazer uncovered a trap compartment containing
$150,095. Both the Blazer and the money were seized. At
that time, Herrera denied knowing of the trap or ownership
of the money, but some time later, Herrera’s attorney filed
a notice on behalf of Herrera with the DEA asserting
ownership of the Blazer and the seized cash. Herrera
personally signed the claim.
While agents chased Herrera, another agent contacted the
police department in East Chicago requesting that an
officer look for an Oldsmobile believed to be driven by
Carrillo. Early in the morning of July 13, 2002, officers
discovered an Oldsmobile at Carrillo’s home. As he got out
of the car, Carrillo was arrested.
On September 26, 2002, agents executed a search warrant
on the home in Palatine and noticed Herrera driving by the
Nos. 04-2195, 04-2196 & 04-2668 9
home. During the search, agents entered the garage and
discovered the black Cadillac Miranda had used to cross the
U.S.-Mexico border. At that time, the car was still regis-
tered to Miranda, and its driveshaft was missing. Inside the
car, agents found wrappings with cocaine residue and a
scale box.
E. The Trial
The trial began on July 15, 2003, and the case went to the
jury on July 29, 2003. Prior to trial, Carrillo moved to sever
from Herrera arguing that Herrera’s defense would be
antagonistic to his own. Judge Coar denied the motion.
Herrera’s defense at trial was to admit that he was a
drug dealer and buyer, but to deny that he had any involve-
ment in a conspiracy, and to deny that he attempted to
purchase cocaine on July 12, 2002, as the government
alleged. Carrillo’s defense was that he had no involvement
whatsoever with drugs.
Miranda’s defense at trial was that she did not know
the black Cadillac was stuffed with drugs when she drove it
from Mexico into the United States in February of 2002.
Miranda testified that she had agreed to travel to Mexico
with Carrillo during February of 2002 to attend a party and
to learn how to drive the route between Mexico and Chi-
cago. Miranda had a daughter living in Mexico. She ex-
plained that she wanted to drive back from Mexico, instead
of flying, because she wanted to learn to make the drive so
that visiting her daughter in Mexico would be more conve-
nient. She never actually attended a party in Mexico, and
testified that she was angry with Diaz for that because she
had felt misled. As for the fact that Carrillo paid for her
plane ticket, and then gave her the black Cadillac regis-
tered in her name, Miranda testified that she considered
these gifts, and was not suspicious because she assumed the
gifts were motivated by what she believed to be his roman-
10 Nos. 04-2195, 04-2196 & 04-2668
tic interest in her. Finally, Miranda testified that she sold
the car to a friend of Carrillo’s after discovering that it had
mechanical problems. She did not transfer the registration
to that person, which her attorney in closing argued was
because Miranda was not the type of person to be concerned
with such details.
At a jury instruction conference, the government re-
quested that Judge Coar issue a “conscious avoidance”
instruction or “ostrich instruction.” Miranda objected to the
instruction, and also requested that if the instruction were
given, that it just be given generally, without any indication
that it applied to any specific defendant. Judge Coar
deferred ruling on the issue. During closing argument, the
government again requested the instruction, and in sup-
port, argued to Judge Coar “that we . . . should be able to
argue knowledge from when the defendants were placed in
a position that a reasonable person would have asked
questions, would have inquired about and they didn’t
inquire.” Miranda objected, and argued that the decision to
give an ostrich instruction is not based on a reasonable
person standard. Judge Coar ruled in favor of the govern-
ment, reasoning that Miranda’s “trip to Mexico in February
[of 2002] cries out for an ostrich instruction.”
During closing, Herrera’s attorney commented on the
inability to cross-examine Carrillo. Herrera’s attorney
argued to the jury that it was Carrillo who had provided
Herrera’s name (“Cousin Pedro”) and phone number on
the lease for the home in Palatine. “And why he gave
that information,” Herrera’s counsel explained, “I don’t
know because I can’t cross-examine him.” After a brief
discussion with the attorneys, and at Carrillo’s attorney’s
request, Judge Coar instructed the jury on the defen-
dant’s right to remain silent and the government’s bur-
den to prove each defendant guilty beyond a reasonable
doubt. No further comment was made with respect to
Carrillo’s decision not to testify.
Nos. 04-2195, 04-2196 & 04-2668 11
After the jury’s verdicts, Carrillo, Herrera, and Miranda
were sentenced to 372 months’ imprisonment, 360 months’
imprisonment, and 120 months’ imprisonment, respectively.
II. ANALYSIS
A. Sufficiency of the Evidence
Both Carrillo and Herrera argue that the evidence at trial
was insufficient to sustain their convictions. We have often
pointed out the difficulty Carrillo and Herrera now face in
arguing that the jury lacked sufficient evidence upon which
to convict. See, e.g., United States v. Hicks, 368 F.3d 801,
804 (7th Cir. 2004) (“The standard of review facing the
defendants on their claim that the jury had insufficient
evidence to convict is a daunting one.”) (citations omitted);
United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001)
(“In attacking the sufficiency of the evidence, a defendant
bears a heavy burden.”) (citations omitted). Mounting a
challenge to the sufficiency of the evidence is so difficult
because to be successful, the defendant must show that
“after viewing the evidence in the light most favorable to
the prosecution, [no] rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Curtis, 324 F.3d 501, 505 (7th Cir.
2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Viewing the evidence in the light most favorable to
the prosecution means that on review we will not—despite
defendants’ frequent requests to do so—“weigh the evidence
or second-guess the jury’s credibility determinations.”
Gardner, 238 F.3d at 879. We will certainly not overturn a
conviction because we would have voted to acquit; rather,
“[w]e will overturn a conviction based on insufficient
evidence only if the record is devoid of evidence from which
a reasonable jury could find guilt beyond a reasonable
doubt.” Curtis, 324 F.3d at 505 (citing United States v.
Menting, 166 F.3d 923, 928 (7th Cir. 1999)).
12 Nos. 04-2195, 04-2196 & 04-2668
To prove a conspiracy, the government had to show that
“(1) two or more people agreed to commit an unlawful act
and (2) the defendant[s] knowingly and intentionally joined
in the agreement.” Hicks, 368 F.3d at 805 (quoting Gardner,
238 F.3d at 879). In the context of a conspiracy to distribute
drugs, the agreement to commit an unlawful act must be
“an agreement to commit a crime other than the crime that
consists of the sale itself.” United States v. Lechuga, 994
F.2d 346, 347 (7th Cir. 1993) (en banc). Evidence establish-
ing a buyer-seller relationship is not sufficient to support a
conspiracy charge. Curtis, 324 F.3d at 505. But “evidence
showing a shared interest in continued sales over time is
enough to permit the jury to draw the inference that a
conspiracy exists.” Id. (citing United Stats v. Clay, 37 F.3d
338, 341 (7th Cir. 1994)). Once the conspiratorial agreement
is established, the evidence, which may be direct or circum-
stantial, must also show that the defendants knew about
the conspiracy and chose to participate in it.
As we have laid out in detail, the government provided
more than sufficient evidence to support the convictions
of Carrillo and Herrera for conspiracy to distribute
drugs. The majority of the evidence came from Diaz, but
also included testimony from agents who had conducted
surveillance on the defendants, covert tape recordings, and
the title history of the white Cadillac. This evidence, taken
in the light most favorable to the government, establishes
a conspiracy to import heroin and cocaine from Mexico into
the United States and to store the drugs at the home in
Palatine. This evidence also establishes Carrillo’s and
Herrera’s knowledge of the conspiracy and their participa-
tion in it. The defendants’ arguments to the contrary are
unavailing.
Carrillo fails in his attempt to analogize himself to
defendants for whom we have previously reversed conspir-
acy convictions because of insufficient evidence. Carrillo’s
case is much different than that of the defendant in United
Nos. 04-2195, 04-2196 & 04-2668 13
States v. Townsend, 924 F.2d 1385 (7th Cir. 1991), who had
his conspiracy conviction reversed because the evidence
showed that his role was “confined to bringing the parties
[to a drug transaction] together.” Id. at 1403. Taking the
evidence in the light most favorable to the government, it is
clear that Carrillo’s role was much greater. Carrillo not only
recruited members into the conspiracy, he leased the home
where the drugs were stored, and provided the necessary
equipment and know-how for shipping drugs into the
United States. These facts sharply distinguish Carrillo’s
role from that of the defendant in Townsend. Carrillo was
not just an intermediary introducing coconspirators. Based
upon the evidence, the jury was entitled to conclude that
Carrillo was at the very least a member of the conspiracy to
distribute drugs. For the same reasons, we reject Carrillo’s
attempt to rely on United States v. Goines. 988 F.2d 750,
764 (7th Cir. 1993) (reversing a conspiracy conviction where
the evidence only showed that the defendant had on one oc-
casion bought cocaine from a member of the conspiracy,
which merely established a buyer-seller relationship).
We also reject Herrera’s argument that his relation-
ship with Carrillo was that of merely buyer-seller. As we
have stated, there are a number of factors, none dispositive,
to consider when determining whether a conspiracy existed
or merely a buyer-seller relationship.2 See United States v.
Thomas, 284 F.3d 746, 752 (7th Cir. 2002). The central
question is whether there was an agreement for more than
just the sale of drugs, and, “where there are adequate
indicia of a ‘concrete interlocking interest beyond individual
buy-sell transactions,’ ” we will not disturb a jury’s finding
that a conspiracy existed. United States v. Melendez, 401
2
At trial, the jury was instructed to consider these factors, and
was admonished that a “simple buyer/seller relationship be-
tween a defendant and another person without more is not suf-
ficient to establish a conspiracy.”
14 Nos. 04-2195, 04-2196 & 04-2668
F.3d 851, 854 (7th Cir. 2005) (quoting United States v.
Rivera, 273 F.3d 751, 755 (7th Cir. 2001)). Here the evi-
dence, taken in the light most favorable to the government,
established an “interlocking interest beyond individual buy-
sell transactions.” Id. Significantly, the evidence established
that Herrera joined with Carrillo to rent the home where
drugs were stored: he had taken cash from Carrillo to pay
rent on the home, and he was listed on the lease as “Cousin
Pedro.” Furthermore, after the white Cadillac stuffed with
heroin had been seized by the DEA, it was Herrera, through
an attorney, who made attempts to claim the car. This
evidence far removes Herrera from the cases he cites such
as Thomas, where a conspiracy conviction was reversed
because there was little or no interaction between the
defendants except for a series of drug sales. The evidence
amply supports the jury’s conclusion that Herrera was part
of a conspiracy and not just a mere buyer of drugs.
Nor is the jury’s conclusion undermined by Herrera’s
argument that the government never proved he was
aware of, or participated in, the trips to Mexico to import
drugs. A conspiracy need not be proved with direct evidence;
circumstantial evidence is sufficient. United States v.
Miller, 405 F.3d 551, 555 (7th Cir. 2005) (citation omitted).
And in this case, a jury could have reasonably inferred that
Herrera was well aware of the origin of the drugs. Further-
more, to be guilty of a conspiracy, Herrera need not have
been aware of where the drugs came from. See United
States v. Plescia, 48 F.3d 1461, 1462 (7th Cir. 1995) (“While
the parties to the agreement must know that others are
participating in the conspiracy, they neither have to
personally know the individuals involved nor do they have
to participate in every facet of the conspiracy scheme.”
(quoting United States v. Auerbach, 913 F.2d 407,415 (7th
Cir. 1990))). Equally unavailing is Herrera’s argument that
the conspiracy conviction cannot stand because the govern-
ment allegedly failed to charge Herrera with conspiring to
Nos. 04-2195, 04-2196 & 04-2668 15
purchase cocaine from Carrillo, and, instead, only charged
Herrera with conspiring to purchase cocaine from Diaz. The
superseding indictment actually charged that all of the
defendants, including Herrera, Carrillo and others known
and unknown, conspired to possess drugs with an intent to
distribute. Regardless, “the government doesn’t have to
prove with whom a defendant conspired; it need only prove
that the defendant joined the agreement alleged.”
Townsend, 924 F.2d at 1389.
Herrera also fails in his attempt to challenge the suffi-
ciency of the evidence for his conviction for attempted
possession of cocaine with intent to distribute. Because
Herrera failed to raise this issue in his post-trial motion
under Federal Rule of Criminal Procedure 29(c), we re-
view his challenge for plain error only. United States v.
Rock, 370 F.3d 712, 714 (7th Cir. 2004). Under this stan-
dard, we will reverse only if there has been a “manifest
miscarriage of justice.” Id. “Manifest miscarriage of justice
is perhaps the most demanding standard of appellate
review. We will reverse only if the record is devoid of
evidence pointing to guilt, or if the evidence on a key
element of the offense was so tenuous that a conviction
would be shocking.” United States v. Williams, 298 F.3d
688, 692 (7th Cir. 2002) (quoting United States v. Taylor,
226 F.3d 593, 597 (7th Cir. 2000)).
To prove Herrera guilty of this charge, the government
must have shown that he acted with the specific intent to
possess and distribute cocaine, and that he took a sub-
stantial step toward completion of the offense. United States
v. Magana, 118 F.3d 1173, 1198 (7th Cir. 1997) (citing
United States v. Cea, 914 F.2d 881, 887 (7th Cir. 1990)).
Herrera only argues that the government failed to prove
that he took a substantial step. Taking the evidence in the
light most favorable to the government, we easily conclude
that the jury’s verdict did not result in a mani-
fest miscarriage of justice. Herrera was recorded negotiat-
16 Nos. 04-2195, 04-2196 & 04-2668
ing the drug deal and was then apprehended fleeing the
place where the deal was to occur. A search of his car found
cash in a hidden compartment in an amount consistent with
that discussed during the recorded negotiations.
In United States v. Wilks, 46 F.3d 640, 645 (7th Cir.
1995), we found sufficient evidence of a substantial step
where the defendant “had negotiated the terms of the
sale; knew where the transaction was to occur; arrived at
that location soon after the terms were agreed upon; and
had the exact amount of money in his possession necessary
to complete the transaction and obtain possession of the
cocaine.” The only distinction between Wilks and this case is
the ambiguity in the negotiations as to whether Herrera
would be able to come up with a full $150,000 or just
$105,000. While an exact price was not determined, it is
clear that a range was agreed upon. It turned out that
Herrera was able to raise the higher sum, as the agents
seized $150,095 from his car. Under these facts, and
considering our prior precedent, it is neither “shocking” nor
surprising to us that the jury found Herrera had taken a
substantial step.
B. Severance
Before trial, Carrillo moved to sever his trial from
Herrera’s on the basis that Herrera’s defense was com-
pletely antagonistic to his own. Judge Coar denied the
motion. Carrillo now argues that he did not receive a fair
trial as a result. At the outset, we mention that Carrillo has
waived this issue by not raising it at the close of evidence.
United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002).
But putting waiver aside, Carrillo’s argument still fails. The
district court is given wide discretion in determining when
the prejudice of joinder outweighs the benefits of a single
trial. Fed. R. Crim. P. 14; Rollins, 301 F.3d at 518. The
Nos. 04-2195, 04-2196 & 04-2668 17
preference is for a joint trial of defendants who were
indicted together, such as Carrillo and Herrera. Zafiro v.
United States, 506 U.S. 534, 537 (1993). The mere presenta-
tion of mutually antagonistic defenses does not require
severance. Id. at 538. “In all but the ‘most unusual circum-
stances,’ the risk of prejudice arising from a joint trial is
‘outweighed by the economies of a single trial in which all
facets of the crime can be explored once and for all.’ ” United
States v. McClurge, 311 F.3d 866, 871 (7th Cir. 2002)
(quoting United States v. Blassingame, 197 F.3d 271, 286
(7th Cir. 1999)). Severance should be granted “only if there
is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or inno-
cence.” Zafiro, 506 U.S. at 539.
Carrillo’s argument proceeds on two fronts. First, Carrillo
argues generally that his defense and Herrera’s defense
were so “completely” antagonistic that severance was
required to be granted. This argument is easily rejected.
Herrera’s defense at trial was to admit that he was a drug
dealer, but to deny that he had any involvement in a
conspiracy. Carrillo’s defense was that the government
could not prove that he had any involvement with drugs.
The defenses were not mutually antagonistic. Defenses are
mutually antagonistic when “acceptance of one defendant’s
defense will preclude the acquittal of the other defendant.”
United States v. Hartmann, 958 F.2d 774, 787 (7th Cir.
1992) (quoting United States v. Bruun, 809 F.2d 397, 407
(7th Cir. 1987)); see also United States v. Petullo, 709 F.2d
1178, 1181-82 (7th Cir. 1983) (citation omitted). Acceptance
of Herrera’s argument that he was a drug dealer and buyer,
but not a member of a conspiracy, did not preclude the jury
from also finding that Carrillo was not a member of a
conspiracy. And, in any event, severance is not required
even if the defenses were mutually antagonistic. Zafiro, 506
U.S. at 538-39; McClurge, 311 F.3d at 871.
18 Nos. 04-2195, 04-2196 & 04-2668
Carrillo’s second argument is that a specific trial right,
his Fifth Amendment right to remain silent, was compro-
mised during closing arguments. According to Carrillo,
Judge Coar was required to declare a mistrial and sever the
defendants during closing arguments. In making
this argument, Carrillo relies heavily on the Fifth Cir-
cuit’s decision in De Luna v. United States, 308 F.2d 140
(5th Cir. 1962), while ignoring our precedent distinguishing
De Luna. See United States v. Alpern, 564 F.2d 755 (7th Cir.
1977); United States v. Hutul, 416 F.2d 607 (7th Cir. 1969).
In De Luna, the Fifth Circuit held that the trial judge was
wrong not to sever the trial when it was clear prior to trial
that a defendant’s attorney would intensely draw the jury’s
attention to the other defendant’s decision to remain silent.
308 F.2d at 141. The defendants in De Luna presented
mutually antagonistic defenses; the facts were such that a
bag of drugs had to belong at least one of them. The attor-
ney for the defendant who had testified made repeated
references in closing to the other defendant’s decision not to
testify, including a final comment to the jury that “at least
one man was honest enough and had courage enough to
take the stand and subject himself to cross examination,
and tell you [the jury] the whole story. . . . You haven’t
heard a word from” the defendant who chose to remain
silent. Id. at 142 n.1. Based on the repeated comments
regarding the defendant’s decision to remain silent and the
mutually antagonistic nature of the defenses, the Fifth
Circuit found reversible error in the district court’s refusal
to grant a severance. After De Luna was decided, we
distinguished it in Alpern by holding that “isolated and
oblique reference[s] to . . . codefendants’ failure to take the
stand” could be cured by proper cautionary instructions.
Alpern, 564 F.2d at 761 (citing Hutul, 416 F.2d at 621). We
also pointed out that the Fifth Circuit and other circuits
had limited De Luna “to its own facts, i.e., to cases wherein
the defendants rely on mutually inconsistent theories of
defense.” Alpern, 564 F.2d at 761.
Nos. 04-2195, 04-2196 & 04-2668 19
Carrillo’s case falls comfortably within our prior prece-
dent. Herrera’s attorney made an isolated and oblique
comment on Carrillo’s decision not to testify in an apparent
attempt to soften the blow of Herrera’s name and contact
information being present on the lease of the home in
Palatine. As Herrera’s counsel argued to the jury, it was
Carrillo who had given the leasing agent Herrera’s contact
information, “[a]nd why he gave that information, I don’t
know because I can’t cross-examine him.” Judge Coar called
a sidebar and admonished Herrera’s counsel. During that
sidebar, Carrillo’s attorney objected to the comment, and he
and the government agreed that Judge Coar should immedi-
ately provide a cautionary instruction. Judge Coar then
instructed the jury as to the defendants’ right to remain
silent and the government’s burden to prove each of them
guilty beyond a reasonable doubt. This fact pattern follows
that of Alpern and requires the same result, especially in
light of the fact that Carrillo’s and Herrera’s defenses were
not mutually inconsistent. Id. at 761.
C. Ostrich Instruction
Miranda argues that the court improperly provided the
jury with what is commonly known as either an ostrich
instruction or a conscious-avoidance instruction. Over
Miranda’s objection, Judge Coar instructed the jury as
follows:3
You may infer knowledge from a combination of
suspicion and indifference to the truth. If you find that
a person has a strong suspicion that things were not
3
Prior to opening statements, Judge Coar provided the jury
with preliminary instructions, which included an ostrich in-
struction. As the government notes, Miranda did not object to that
preliminary ostrich instruction, but the government
makes nothing more of this and neither will we.
20 Nos. 04-2195, 04-2196 & 04-2668
what they seemed or that someone withheld some
important fact, yet shut his or her eyes for fear of
what he or she would learn, you may conclude that he
or she acted knowingly as I have used that word. You
may not conclude that the defendant had knowledge
if he or she is merely negligent in not discovering
the truth.
Miranda does not object to the instruction’s form, which is
nearly identical to Federal Criminal Jury Instructions
of the Seventh Circuit § 4.06 (1998). But she does argue
that giving the instruction was error because the govern-
ment failed to present evidence that she deliberately and
consciously avoided knowledge of illegal activity. The
district court’s decision to give the ostrich instruction is
reviewed for an abuse of discretion, and all the evidence is
viewed in the light most favorable to the government.
United States v. Fallon, 348 F.3d 248, 253 (7th Cir. 2003).
For purposes of criminal liability, deliberately avoiding
knowledge of a criminal activity is the same thing as having
actual knowledge of that activity. United States v. Ramsey,
785 F.2d 184, 189 (7th Cir. 1986) (explaining that “actual
knowledge and deliberate avoidance of knowledge are the
same thing”). “The purpose of the ostrich instruction ‘is to
inform the jury that a person may not escape criminal
liability by pleading ignorance if he knows or strongly
suspects he is involved in criminal dealings but deliberately
avoids learning more exact information about the nature or
extent of those dealings.’ ” United States v. Craig, 178 F.3d
891, 896 (7th Cir. 1999) (quoting United States v. Rodri-
guez, 929 F.2d 1224, 1227 (7th Cir. 1991)). It is appropriate
to give the ostrich instruction where the defendant claims
a lack of guilty knowledge, and the government presents
circumstances from which a jury could conclude that the
defendant deliberately avoided the truth. United States v.
Carrillo, 269 F.3d 761, 769 (7th Cir. 2001).
Nos. 04-2195, 04-2196 & 04-2668 21
At trial, Miranda claimed a lack of guilty knowledge. The
dispute in this case centers on whether the government
presented sufficient evidence that Miranda remained
deliberately ignorant. Evidence of deliberate ignorance
can be placed into two general categories: evidence of “overt
physical acts,” and evidence of “purely psychological
avoidance, a cutting off of one’s normal curiosity by an effort
of will.” Craig, 178 F.3d at 896 (quoting United States v.
Stone, 987 F.2d 469, 472 (7th Cir. 1993)). The first category,
as we have explained, is generally the easy case, because
there is evidence the defendant physically acted to avoid
knowledge. United States v. Giovannetti, 919 F.2d 1223,
1228 (7th Cir. 1990). As an example of such a case we gave
United States v. Diaz, 864 F.2d 544, 550 (7th Cir. 1988),
where the defendant attempted to distance himself from a
drug transaction by “absenting himself from the scene of
the actual delivery and sometimes by pretending to be
fussing under the hood of his car.” Giovannetti, 919 F.2d at
1228.
The second category, psychological avoidance, is more
troublesome.4 The act in this category is a mental
act—“a cutting off of one’s normal curiosity by an effort of
will.” Id. at 1229. This is the category that Miranda’s case
falls into. The difficulty in a psychological avoidance
case—one without any outward physical manifestation of an
attempt to avoid facts—lies in distinguishing between
a defendant’s mental effort of cutting off curiosity,
which would support an ostrich instruction, and a defen-
4
In Giovannetti, we described the psychological avoidance case as
“[t]he true intermediate case between a clearly proper giving of
the ostrich instruction because the defendant did physical acts to
insulate himself from knowledge, as in Diaz, and the clearly
improper giving of the instruction because the only issue is the
defendant’s actual knowledge or complete ignorance.” 919 F.2d at
1228-29.
22 Nos. 04-2195, 04-2196 & 04-2668
dant’s simple lack of mental effort, or lack of curiosity,
which would not support an ostrich instruction. Id. at 1228-
29 (holding the ostrich instruction inappropriate where the
defendant “failed to display curiosity, but . . . did nothing to
prevent the truth from being communicated to him.”). There
is generally no way to peer directly into the defendant’s
thought process to determine whether he or she has become
suspicious and then dismissed the uncomfortable thought
for fear of its consequences. A person may admit to such
thoughts, United States v. Jaffe, 387 F.3d 677, 681 (7th Cir.
2004) (affirming an ostrich instruction where the defendant
had admitted to investigators that he had “stuck his head
in the sand”); Stone, 987 F.2d at 471 (explaining that on
“cross-examination, [the defendant] acceded to the govern-
ment’s characterization of his actions as ‘remaining deliber-
ately ignorant’ ”), but these instances are rare, and not
necessary to the giving of an ostrich instruction.
Our precedent establishes that the circumstances sur-
rounding the defendant alone can be sufficient to allow the
jury to infer that the defendant was suspicious but deliber-
ately cut off his or her curiosity in an effort to remain
ignorant of guilty knowledge. See, e.g., Carrillo, 269 F.3d at
769-70; United States v. Farouil, 124 F.3d 838, 844 (7th Cir.
1997); Stone, 987 F.2d at 472; Rodriguez 929 F.2d at 1227-
28; United States v. Caliendo, 910 F.2d 429, 434 (7th Cir.
1990); United States v. Josefik, 753 F.2d 585, 589 (7th Cir.
1985); United States v. Burns, 683 F.2d 1056, 1060 (7th Cir.
1982). The logic behind these cases is that given what the
defendant knew, it would be permissible for a jury to
conclude that the defendant strongly suspected involvement
in illegal activity, but purposely avoided finding out for
sure. Burns, 683 F.2d at 1060 (explaining that the ostrich
instruction “functions as an illustration of how knowledge
may be inferred from a defendant’s exposure to informa-
tion”). There is no need to search in vain for an “act” that
occurred in the veiled isolation of a defendant’s psyche. The
Nos. 04-2195, 04-2196 & 04-2668 23
focus is on what the defendant knew and whether the
defendant knew enough to support an inference that he or
she remained deliberately ignorant of facts constituting
criminal knowledge.
Great caution must be exercised, however, in determining
which circumstances support the inference of deliberate
ignorance. The most important principle for the district
court to keep in mind is that the ostrich “instruction is not
meant to allow a jury to convict a person for negligence.”
Rodriguez, 929 F.2d at 1227; Giovannetti, 919 F.2d at 1228
(citations omitted). The instruction cannot allow a convic-
tion on the basis of mere negligence because if it did, then
it would effectively do away with the mens rea requirement
of knowledge, thereby impermissibly “reliev[ing] the
prosecution of its burden of showing every element of the
case beyond a reasonable doubt.” Ramsey, 785 F.2d at 190.
As explained below, we believe that the ostrich instruc-
tion was properly given in this case. Nevertheless, we feel
compelled to address Miranda’s argument that the gov-
ernment, and in some instances this court, have erred in
applying a reasonable person standard when addressing the
propriety of the ostrich instruction. We agree with Miranda
that a reasonable person standard is not the proper measur-
ing stick for deciding whether to give an ostrich instruction.
As Miranda points out, throughout this case the gov-
ernment has consistently suggested that it is permissible
for the jury to infer that Miranda had knowledge be-
cause a “reasonable person” in Miranda’s position would
have been suspicious about the trip to Mexico in February
of 2002. We have previously encountered this argument,
and rejected it:
At times during the oral argument of this appeal the
government’s able lawyer came close to suggesting that
the proper office of the ostrich instruction is to enable
conviction upon the basis of constructive notice—if a
24 Nos. 04-2195, 04-2196 & 04-2668
reasonable man who knew what [the defendant] knew
would have inquired further and discovered the illegal
activity, [then the defendant] is an aider and abettor.
Not so. Aider and abettor liability is not negligence
liability. The abettor and aider must know that he is
assisting an illegal activity.
Giovannetti, 919 F.2d at 1227-28. Nevertheless, the gov-
ernment’s reliance on a reasonable person, while wrong, is
understandable. A small minority of our cases, while cit-
ing Giovannetti, have in dicta supported the giving of
an ostrich instruction by analogizing to a reasonable person.
United Sates v. Covarrubias, 65 F.3d 1362, 1370 (7th Cir.
1995) (citing United States v. Jackson, 33 F.3d 866, 875 (7th
Cir. 1994) (citing Giovannetti, 919 F.2d at 1228)).5 Further-
more, our previous incantation of the ostrich instruction
came close to interjecting negligence into the deliberate
ignorance inquiry by telling the jury that “[n]o person can
intentionally avoid knowledge by closing his eyes to facts
which should prompt him to investigate.” Burns, 683 F.2d
at 1509 (emphasis added). But even under that old formula-
tion of the ostrich instruction we repeatedly held, in the
face of objections to the contrary, that the instruction “calls
for a subjective inquiry, rather than an objective one,” and
that its focus is on “the defendant himself . . . and not a
reasonable person.” Id. at 1061 (emphasis added).
We reaffirm that holding here, and emphasize that it
applies to the district court’s decision to give the instruction
5
Our circuit is not alone in encountering this confusion. See
United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)
(developing a standard for when the conscious avoidance instruc-
tion is warranted and rejecting as too “perilously close
to a negligence standard” previous Second Circuit cases approving
the instruction where the defendants “should have been apprised
of . . . the unlawful nature of their conduct.”(emphasis in origi-
nal)).
Nos. 04-2195, 04-2196 & 04-2668 25
as well as to the actual wording of the instruction. The focus
of the ostrich instruction is on the particular defendant, and
not a reasonable person. It asks whether the defendant
deliberately avoided knowledge by “shut[ting] his or her
eyes.” The instruction specifically cautions the jury against
finding knowledge on a mere finding of negligence. What
follows from this, for purposes of determining whether to
give an ostrich instruction, is that a jury must not be
invited to infer that a particular defendant deliberately
avoided knowledge on the basis of evidence that only
supports the inference that a reasonable person in the
situation would have deliberately avoided knowledge. As we
have said, the instruction should only be given where “there
are facts and evidence that support an inference of deliber-
ate ignorance,” Carrillo, 269 F.3d at 769 (quoting United
States v. Walker, 25 F.3d 540, 546 (7th Cir. 1994)), and
evidence merely supporting a finding of negligence—that a
reasonable person would have been strongly suspicious, or
that a defendant should have been aware of criminal
knowledge—does not support an inference that a particular
defendant was deliberately ignorant. Stone, 987 F.2d
at 472 (explaining that it is improper to use an ostrich
instruction “to convict [a defendant] on the basis of what
[he] should have known”).
Miranda does not argue that Judge Coar applied the
wrong standard in his decision to give the ostrich instruc-
tion, and we do not believe that he did. Rather, Miranda
argues that the evidence did not support the giving of the
ostrich instruction. We believe Judge Coar evaluated the
evidence in front of him and determined the evidence
was sufficient to support the inference that Miranda
remained deliberately ignorant of the illegal nature of her
trip to Mexico in February of 2002. We agree with Judge
Coar’s conclusion because the evidence present in the record
supported giving the ostrich instruction.
26 Nos. 04-2195, 04-2196 & 04-2668
The government highlights the following circumstances
surrounding Miranda’s trip to Mexico in support of the
ostrich instruction: (1) Carrillo, while barely knowing
Miranda, offered to give her a car so she could learn to drive
to Mexico; (2) Miranda was allowed to keep the car to drive
back to Chicago even though she ended up flying to Mexico
instead of driving; (3) Miranda never attended the party in
Mexico; (4) Miranda drove back from Mexico by herself; and
(5) when she crossed the border, the black Cadillac Miranda
was driving was searched thoroughly by Border Patrol
officers.
The government argues that this evidence is sufficient
to support a finding of deliberate ignorance.6 “[I]t takes a
fairly large amount of knowledge to prompt further investi-
gation,” Ramsey, 785 F.2d at 190, and we are not sure
that these facts alone support a finding of deliberate
ignorance. Accepting gifts, being ditched before a party, and
being searched while driving across the U.S.-Mexico border
may be some knowledge that things are not as they seem.
But we question whether it is legitimate to infer that
Miranda remained deliberately ignorant on the basis of
those facts alone. Carrillo giving Miranda a car is not
inherently suspicious. The fact that she was to pick this car
up in Mexico, and remain there for only a night, certainly
raises more questions, but it is not as if Miranda had no ties
to Mexico. It is also hard to infer that Miranda was so
surprised by Diaz’s failure to take her to a party that she
must have suspected criminal activity afoot. And we do not
put much stock in the Border Patrol’s search of Miranda’s
car. If anything, this seems to cut against giving the ostrich
instruction because if trained law enforcement officers could
6
In its brief, the government actually relies upon the wrong
standard, arguing that “the events above, in combination,
should have led Miranda to question what was going on.” (Govt.’s
Brief at 54) (emphasis added.)
Nos. 04-2195, 04-2196 & 04-2668 27
not discern that the black Cadillac was stuffed with illegal
drugs, it seems difficult to infer that Miranda did.
The circumstances surrounding the trip to Mexico provide
a close question as to whether the ostrich instruction should
be given. But there is more in the record to support the
giving of the ostrich instruction. The record supports the
fact that Miranda had some type of romantic relationship
with Diaz, and possibly the beginnings of one with Carrillo.
In one sense, this fact helps Miranda’s argument against
giving the ostrich instruction because a typical scenario
supporting an ostrich instruction in a drug-courier-type case
involves testimony that the defendant was paid by an
anonymous person to deliver a package. See, e.g., United
States v. Vega, 72 F.3d 507, 517 (7th Cir. 1995); United
States v. Farouil, 124 F.3d 838, 844 (7th Cir. 1997); United
States v. de Francisco-Lopez, 939 F.2d 1405, 1407 (10th Cir.
1991).7 Unfortunately for Miranda, her previous relation-
ship with Diaz cuts both ways, because it also makes it
more likely that she knew, prior to February of 2002, that
Diaz and Carrillo were involved with drugs. A person’s
knowledge of his or her cohorts’ involvement with illegal or
suspicious activities is a fact we have consistently found
significant in giving an ostrich instruction. See, e.g., United
States v. Wilson, 134 F.3d 855, 868 (7th Cir. 1998) (defen-
dant had knowledge that the person for whom he was
delivering filled trash bags had history of dealing drugs);
Rodriguez, 929 F.2d at 1227 (jury could infer from defen-
dant’s admissions that he knew his coconspirators were
involved with drugs); Caliendo, 910 F.2d at 434 (defendant
had been present when her coconspirators discussed illegal
operations). At trial Diaz testified that prior to her trip to
Mexico, Miranda knew Diaz and Carrillo were involved with
7
Miranda relies on certain aspects of de Francisco-Lopez to argue
against the giving of the ostrich instruction, but, as we explain, we
find this case from outside of our circuit distinguishable.
28 Nos. 04-2195, 04-2196 & 04-2668
drugs. This evidence provides a whole new context for
Miranda’s trip to Mexico. Now she was not just accepting a
car as a gift and driving it home; she was flying to Mexico
and driving a car across the border for a man she knows to
be involved with drugs.
Miranda argues that this testimony cannot be consid-
ered when evaluating the propriety of the ostrich instruc-
tion because it only goes to actual knowledge. Miranda is
wrong. The basis of her argument is our admonishment that
an ostrich instruction should not be given “when the facts
require the jury to make a ‘binary choice’ between ‘actual
knowledge’ and ‘complete innocence.’ ” Giovannetti, 919 F.2d
at 1228 (quoting United States v. Bigelow, 914 F.2d 966, 971
(7th Cir. 1990)). We agree that some of Diaz’s testimony
only supports a finding of actual knowledge, and, therefore,
it cannot be used to bolster an argument in favor of an
ostrich instruction. For example, Diaz’s testimony that
Miranda was told by Carrillo that the black Cadillac would
contain drugs is evidence only supporting a finding of actual
knowledge. This evidence only provides the jury with the
“ ‘binary choice’ between ‘actual knowledge’ and ‘complete
innocence,’ ” and, therefore, it cannot support the giving of
an ostrich instruction. Id.
But it does not follow that evidence must be placed in
either an actual knowledge category or a deliberate igno-
rance category. It is permissible for the government
to present evidence supporting both theories, Carrillo,
269 F.3d at 769, and some of the government’s evidence
might be relevant to both actual knowledge and delib-
erate ignorance. Diaz’s testimony that Miranda knew of his
and Carrillo’s involvement with drugs prior to February of
2002 is illustrative. The jury could rely on it to infer that
Miranda actually knew she was transporting drugs. The
jury could lump it with Diaz’s testimony that Miranda was
told the black Cadillac would have drugs and conclude that
she actually knew she was transporting drugs. The jury
Nos. 04-2195, 04-2196 & 04-2668 29
could also rely on that evidence to conclude that Miranda
deliberately avoided discovering whether there were drugs
in the black Cadillac. The jury could choose not to credit
Diaz’s secondhand recounting of what Carrillo told
Miranda, but could still have believed Diaz when he said
Miranda was present for the drug deals. The jury could
have then used that evidence, in combination with
Miranda’s trip to Mexico, to conclude that Miranda deliber-
ately avoided knowing whether she was transporting drugs.
The point is that this evidence does not require the jury to
choose between either actual knowledge or complete
innocence. It also supports an inference of deliberate
ignorance. Therefore, it is perfectly appropriate to consider
this evidence when evaluating the propriety of the instruc-
tion.
Thus, the evidence supports the inference that Miranda
knew Diaz and Carrillo were involved with drugs. After
knowing this, at Carrillo’s behest, she registered the
black Cadillac in her name. She then accepted a flight
to Mexico (via Odessa) from Carrillo. She purportedly
was going to attend a party in Mexico, but no party oc-
curred. After spending only one night in Mexico she drove
the black Cadillac across the border. Miranda did not keep
the black Cadillac, but instead the car was eventually
returned to Diaz and was found in his garage in Palatine by
law enforcement officials with the driveshaft removed. This
evidence is sufficient to support an inference of deliberate
ignorance. While Miranda posited innocent explanations for
all of these facts, the jury did not have to credit those
explanations. We affirm Judge Coar’s decision to give the
ostrich instruction.
D. Paladino Remand
Carrillo and Herrera also argue that their Sixth Amend-
ment rights were violated by Judge Coar’s application of the
30 Nos. 04-2195, 04-2196 & 04-2668
Sentencing Guidelines. Their argument was not preserved
in the district court. Accordingly, we order a limited remand
in accordance with United States v. Paladino, 401 F.3d 471
(7th Cir. 2005) to permit Judge Coar to determine whether
he would reimpose the same sentence.
III. CONCLUSION
For the foregoing reasons, we affirm the convictions of
Carrillo, Herrera, and Miranda. With respect to Carrillo
and Herrera, we order a limited remand in accordance with
Paladino.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-27-06