In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2733

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CATALINO ROSARIO,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 94 CR 261--James B. Zagel, Judge.


ARGUED MAY 16, 2000--DECIDED DECEMBER 7,
2000



  Before EASTERBROOK, RIPPLE, and ROVNER,
Circuit Judges.

  ROVNER, Circuit Judge. Catalino Rosario,
Porfirio Rivera, and Frank Vargas were
indicted on two counts of conspiracy to
distribute cocaine and attempted
possession of cocaine with intent to
distribute it in violation of 21 U.S.C.
sec. 846. Rosario filed a motion to quash
his arrest and suppress a pager found on
him during the arrest, which the court
denied. Rivera and Vargas pled guilty and
testified against Rosario and a jury
convicted him on both charges. Rosario
now appeals, challenging the court’s
denial of his motion to quash the arrest
and suppress the evidence.

I.

  The trail that ultimately led to Rosario
began on April 15, 1994, when the
Missouri State Highway Patrol stopped a
brown Mazda minivan driven by Frank
Vargas that was weaving and moving
erratically. The van was registered to
Porfirio Rivera, but Vargas was the sole
occupant. A subsequent search of the van
revealed 46 packages of cocaine in hidden
panels in the van, with a total weight of
40.55 kilograms. After his arrest, Vargas
agreed to cooperate with the police. He
related that the owner of the cocaine was
a man named "Pacho," whom he later
identified as the defendant, Catalino
Rosario. He declared that Pacho had hired
him to transport the cocaine from Los
Angeles to Chicago, and that Pacho had a
total of 100 kilograms of cocaine for
shipment to Chicago. Of that total, he
had already delivered 37 kilograms to
Chicago on an earlier trip, and 17
kilograms remained in Los Angeles
awaiting transport. Vargas possessed
three different pager numbers for Pacho
including a new pager number that he was
supposed to use upon arrival in Chicago
to contact Pacho. Vargas also told them
that he believed "Pacho" was just a
nickname, and that Pacho had previously
used a name of Rafinio Ray and also had
used a first name of Arturo, but he did
not know if those were aliases as well.
The officers ran a computer check of
those names in the DEA computer system,
and found the name Rafinio Ray with an
alias for the name of Arturo Robles. That
provided some corroboration for Vargas’
claim that "Pacho" was involved in the
drug scheme.

  Based upon that information, a decision
was made to attempt a controlled delivery
in Chicago, at which time the Drug
Enforcement Agency became involved in the
case. Vargas and the agents checked into
the Hampton Inn in Bedford Park, and
Vargas paged Pacho. Approximately ten
minutes later, Pacho returned the call to
Vargas at the hotel. Pacho told Vargas
that a person named "Jose" would be
calling him. This call was recorded, but
only Vargas’ voice and not that of the
caller was intelligible on the tape. The
agents relied on Vargas for the identity
of the caller and the content of the
conversation.
  At approximately 8:00 p.m., a person
identifying himself as "Jose" called
Vargas and said he would come to the
hotel the next morning. That conversation
was recorded. "Jose" called again the
next morning to inform Vargas that he was
en route to the hotel, and he arrived at
the hotel around 9:15 a.m. Agents later
discovered that the person known as
"Jose" was Porfirio Rivera--the same
person in whose name the Mazda minivan
was registered. After Rivera’s arrival,
Pacho called Vargas at the hotel. The
meeting between Vargas and Rivera and the
conversation with Pacho were videotaped
and recorded. In the telephone
conversation, Pacho stated that he was
flying from Los Angeles to Midway Airport
on a flight that arrived around 6:00
p.m., and he needed to be picked up
there. Vargas translated that
conversation for the agents, and
explained that Rosario generally flew on
America West Airlines. After the
telephone conversation, Rivera took the
minivan keys and drove away in the
minivan, at which time he was arrested.

  That evening, the agents accompanied
Vargas to the airport and positioned him
in an area of the airport where he could
view passengers who had disembarked from
the planes. An America West plane arrived
from Los Angeles at approximately 6:00
p.m., but the agents were unable to
single out anyone departing it as "Pacho"
based on the rather general description
provided by Vargas. Vargas, however,
spotted Pacho among the individuals who
had been on the plane, and pointed him
out to the agents. At that time, Pacho
was briefly detained and questioned
regarding his identity. He produced
identification establishing that he was
Catalino Rosario. He was ultimately
brought outside, where Vargas again
identified him as the person he knew as
"Pacho." A subsequent search of Rosario
yielded a card with one of the pager
numbers that Vargas had possessed on it,
and a pager. When a DEA agent dialed
another of the numbers found in the
minivan at the time Vargas was arrested,
the pager Rosario had been carrying
activated.

II.

  Rosario argues that the police lacked
probable cause to arrest him without a
warrant, and that the pager and number
found on him should be suppressed as the
fruits of the unlawful arrest. He asserts
that the police relied solely on Vargas’
statements implicating Rosario, and that
Vargas was an unproven informant whose
statements relating to Rosario were not
corroborated by other evidence.

  Probable cause for an arrest exists when
the law enforcement agents could
reasonably believe, in light of the facts
and circumstances within their knowledge
at the time of the arrest, that the
suspect had committed or was committing
an offense. United States v. Kincaid, 212
F.3d 1025, 1028 (7th Cir. 2000); United
States v. Osborn, 120 F.3d 59, 62 (7th
Cir. 1997). It is a flexible, practical
common-sense standard that is met if the
facts are sufficient to warrant a person
of reasonable caution to believe that an
offense has been or is being committed.
United States v. Colonia, 870 F.2d 1319,
1323 (7th Cir. 1989) (citations omitted);
United States v. Evans, 27 F.3d 1219,
1228 (7th Cir. 1994). We review the
district court’s probable cause
determination de novo, but accept the
district court’s findings of historical
fact unless they are clearly erroneous
and "give due weight to inferences drawn
from those facts by resident judges and
local law enforcement officers." Osborn,
120 F.3d at 62, quoting Ornelas v. United
States, 517 U.S. 690, 699 (1996).

  The arrest and subsequent search in this
case was based upon the information
provided by Vargas. Rosario argues that
probable cause is not established here
because the information was provided by
an untested informant and lacked
sufficient corroboration. Information
from an informant can provide probable
cause for an arrest if the information is
reliable. United States v. Scott, 19 F.3d
1238, 1242 (7th Cir. 1994). For instance,
in Illinois v. Gates, 462 U.S. 213, 246
(1983), the Court held that a highly
detailed tip from an anonymous informant
that was corroborated by independent
police work was enough to establish
probable cause for the search. In the
present case, we are not faced with an
anonymous informant, but rather an
untested informant who is providing
information that to some extent is
incriminating, but which is provided in
order to reduce his own criminal
liability. In analyzing whether such
information from an informant is
sufficient to establish probable cause,
we must consider the information provided
by that informant--in amount and in the
degree of reliability--and the degree of
corroboration of that information by the
officers. United States v. Navarro, 90
F.3d 1245, 1253 (7th Cir. 1996).

  Although Vargas did not have a prior
history as an informant that would
enhance the reliability of his
information, the agents were able to
corroborate a great deal of the
information provided by him prior to the
arrest and search of Rosario. For
instance, Vargas claimed that the drugs
were owned by Pacho, who also went by the
names Rafinio Ray and Arturo. A check on
the DEA computer system revealed a match
for the name Rafinio Ray with an alias of
Arturo Robles. This provided some
corroboration of Vargas’ claim that the
person he identified as Pacho was in the
drug business. Vargas further stated that
when he arrived in Chicago he was to page
a certain number and the owner of the
cocaine, Pacho, would call him. That
indeed transpired, in that Pacho returned
his page. In addition, Vargas told the
agents that Pacho had informed him that
"Jose" would call regarding the cocaine.
Rivera, using the name Jose, in fact
called him later and made plans to pick
up the cocaine the following morning.
Because Vargas had not contacted "Jose"
himself, that call could only have been
triggered by Pacho after speaking with
Vargas. When Jose came to the hotel, they
discussed the prior shipment of cocaine
that had been delivered, which
corroborated Vargas’ statement to the
agents that he had previously delivered
37 kilograms to Chicago from Los Angeles.
Finally, Vargas informed them that Pacho
was arriving at 6:00 p.m. at Midway
Airport, probably on America West
Airlines. The agents confirmed that an
America West flight from Los Angeles was
landing in Chicago at that approximate
time. Vargas then identified Rosario
among the passengers that exited that
plane. In short, Vargas’ statements
relating to the drug conspiracy were
corroborated repeatedly when the events
transpired as he foretold, and there is
no basis in the record for disturbing the
district court’s fact findings to that
effect. As the Supreme Court recognized
in Alabama v. White, 496 U.S. 325, 329
(1990), when "an informant is shown to be
right about some things, he is probably
right about other facts that he has
alleged, including the claim that the
object of the tip is engaged in criminal
activity." See also Navarro, 90 F.3d at
1253 (relying on Gates and White, noting
that information can be credited where
the tip contains specific details about
future actions not easily predicted, thus
demonstrating "inside information.").
Here, the agents were able to corroborate
numerous facts provided by Vargas, and
that established a reasonable basis for
them to credit his information regarding
Rosario and to believe that a crime had
been or was being committed. The Gates
Court recognized that "only a
probability, not a prima facie showing,
of criminal activity" is required to
establish probable cause, 462 U.S. at
235, and that standard is met here.

III.

  Rosario raised a number of other
arguments in the brief on appeal, but all
were either withdrawn at oral argument or
are meritless. He argued that the court
erred in refusing to dismiss the
indictment based on the use of hearsay in
the grand jury. This argument is without
merit because an indictment may be based
upon hearsay, Costello v. United States,
350 U.S. 359, 363 (1956), and Rosario
does not argue that this testimony was
misrepresented as anything else.
Furthermore, even if there were error
(which is not the case here), any such
error in the presentation of evidence
before the grand jury would be harmless
given the jury conviction at trial which
indicates a proper grand jury proceeding
would have still yielded an indictment.
United States v. Fountain, 840 F.2d 509,
513-14 (7th Cir. 1988); Tyson v. Trigg,
50 F.3d 436, 442 (7th Cir. 1995).

  The remaining arguments presented by
Rosario were withdrawn at oral argument
because they require development of facts
outside the record and thus are more
properly presented in a sec. 2255
petition. Specifically, Rosario withdrew
his arguments regarding the Speedy Trial
Act, ineffective assistance of counsel,
and the alleged use of perjured testimony
by the prosecutor. Regarding the use of
perjured testimony, Rosario’s attorney
purported to withdraw only part of that
argument, stating at oral argument that
she withdrew that argument only to the
extent it alleged that the government
knew the witnesses were lying, as opposed
to the government having reason to be
suspicious. Such a "partial" withdrawal
would be problematic indeed, because an
adverse determination on direct appeal
will have preclusive effect in any
subsequent collateral attack. United
States v. Brook, 125 F.3d 484, 495 (7th
Cir. 1997). A claim must be presented in
its entirety rather than in a piecemeal
fashion, lest the litigant risk the
preclusive effect of the prior ruling.
Therefore, it is inconsistent for Rosario
to simultaneously assert that he is
withdrawing the perjury issue to develop
in a sec. 2255 petition, but is pursuing
the perjury issue in part on direct
appeal. Fortunately for him, the
statement at oral argument was sufficient
to withdraw the argument in its entirety
and preserve it for sec. 2255 review
where the extra-record facts necessary
for the argument can be developed.
Although Rosario’s attorney sought to
proceed with the argument that the
government had reason to know the
testimony was perjured, no such argument
was raised in the brief and thus that
argument was never before this court.
Although the briefs mentioned the term
"should have known" in the heading, the
argument itself addresses only the actual
knowledge of the government and never
makes that alternative argument.
Accordingly, when Rosario’s attorney
withdrew the perjury argument to the
extent that it encompassed the actual
knowledge of the government, she withdrew
the entire perjury argument and preserved
it for a potential sec. 2255 petition.

  For the above reasons, with respect to
the issues that remain before this court,
the decision of the district court is
affirmed.
