United States v. Toro, Ramon ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2965
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAMON TORO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 7—Joan B. Gottschall, Judge.
____________
ARGUED FEBRUARY 13, 2004—DECIDED MARCH 4, 2004
____________
Before FLAUM, Chief Judge, and MANION and DIANE P.
WOOD, Circuit Judges.
FLAUM, Chief Judge. In 2002, a jury convicted Ramon
Toro of conspiracy to possess with intent to distribute more
than one kilogram of PCP. Toro now appeals his conviction.
For the reasons stated herein, we affirm.
I. BACKGROUND
Ramon Toro was introduced to Christine Williams in
the summer of 2001 by Williams’ boss, Napoleon Moore.
Moore, a drug dealer, instructed that Williams begin sup-
plying Toro with PCP. According to Williams, either Toro or
2 No. 03-2965
Moore would contact her to arrange a transaction. Williams
met with Toro approximately once a week for the next six
months and supplied him with one pint of PCP on more
than twenty occasions. Williams believed that Toro divided
up the PCP he purchased from her and distributed it on
18th Street in Chicago.
In September 2001, the FBI began a PEN register on one
of Williams’ telephones. The PEN register recorded numer-
ous calls from Toro to Williams over the next two months.
The FBI also placed a wiretap on Williams’ phone from
November to December 2001. The wiretap recorded several
phone calls between Williams and Toro, as well as two con-
ference calls between Williams, Toro and Moore. During one
of these calls, agents overheard Williams and Toro arrange
a deal. A Chicago police officer drove to the scene of the deal
and observed Williams transfer a plastic bag from her car
to Toro’s car. Later that day, Williams called Moore and
told him that she had seen Toro and sold him one pint of
PCP. Over the next two weeks, the wiretap recorded
conversations in which Moore and Williams established two
more deals with Toro, for one pint and eight ounces of PCP
respectively.
Williams was arrested by the FBI on December 16, 2001.
She quickly agreed to cooperate and provide the FBI with
information about her customers. Williams then called Toro
and agreed to sell him eight ounces of PCP for $1,000 on
January 2, 2002.
On January 2, 2002, Toro drove to the location where he
believed he was meeting Williams. He subsequently was
arrested by FBI agents. A search of his car recovered over
$1,000 in cash and a box containing one hundred small
glass vials similar to those used to distribute PCP.
Following his arrest, Toro was read his Miranda rights
and was asked to read them himself. Toro signed a waiver
of his rights and gave a confession two hours later. Toro’s
No. 03-2965 3
confession included details about his drug purchases dating
back to 2000, as well as his purchases from Williams
beginning in the summer of 2001. According to Toro, he
purchased PCP from Williams once or twice a week, all in
quantities of eight ounces or less.
Toro subsequently was charged with conspiracy to possess
and distribute more than one kilogram of PCP. On Decem-
ber 19, 2002, a jury found Toro guilty. Toro was sentenced
to 240 months imprisonment and now appeals.
II. DISCUSSION
Toro’s first issue on appeal is whether there was sufficient
evidence presented from which a rational jury could
conclude that Toro conspired to possess with intent to dis-
tribute more than one kilogram of PCP. While Toro admits
that he purchased PCP several times, he asserts that dur-
ing the last four months of the six-month conspiracy he
purchased PCP on only four occasions and never purchased
more than a few grams at a time. Toro also argues that
Williams was an incredible witness whose testimony was
inconsistent and contradicted by Toro’s testimony.
We will uphold a jury’s verdict if “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” See Jackson v. Virginia, 443 U.S. 307,
319 (1979). This Court has explicitly held that “[d]rug
quantity . . . is not an element of the offense of conspiracy
to distribute,” and that the jury’s determination of drug
quantity is relevant to sentencing only. See United States v.
Bolden, 279 F.3d 498, 502 (7th Cir. 2002); United States v.
Hill, 252 F.3d 919, 922 (7th Cir. 2001). Moreover, even if
drug quantity was an essential element of Toro’s offense,
there was sufficient evidence to support the jury’s finding
that Toro conspired to distribute more than one kilogram of
PCP.
4 No. 03-2965
We emphasize that “questions of credibility are solely
for the trier of fact” and that “absent extraordinary circum-
stances, this court will not reevaluate the testimony of a
witness to determine his or her motives or other possible
measures of reliability.” See United States v. Buchmeier,
255 F.3d 415, 420 (7th Cir. 2001). According to Williams’
testimony at trial, Toro purchased one pint of PCP every
week for six months. As one pint of PCP is equal to 398
grams, just three such sales would bring Toro’s total pur-
chases to more than one kilogram. Thus, Williams’ testi-
mony provides sufficient evidence to support the jury’s
finding that Toro conspired to possess and distribute more
than one kilogram of PCP.
Toro’s arguments that it was physically impossible for
him to have distributed more than a kilogram of PCP
between June and December 2001 are without merit. First,
even using Toro’s mathematical calculations (which are
suspect since Toro assumes each drug transaction takes
fifteen to twenty minutes and that only one vial is ex-
changed in each sale), Toro could have distributed this
quantity of PCP if he worked every day for ten hours. While
this is a substantial workday, it does not rise to the level of
being impossible under the laws of nature. See Bergmann
v. McCaughtry, 65 F.3d 1372, 1378 (7th Cir. 1995) (holding
that to find a witness’ testimony incredible as a matter of
law, the defendant “must demonstrate either that it was
physically impossible for the witness to observe that which
she claims occurred or that it was impossible under the
laws of nature for the occurrence to have taken place at
all”). Second, Toro was not charged with sale of more than
a kilogram of PCP, but rather with engaging in a conspiracy
to do so in violation of 21 U.S.C. § 846. Therefore, in order
to sustain his conviction, the government must only
“present substantial evidence that a conspiracy existed and
that the defendant agreed to join it”; the government need
not prove that the defendant completed the underlying
No. 03-2965 5
offense. See United States v. Benjamin, 116 F.3d 1204, 1206
(7th Cir. 1997). Thus, Toro did not need to sell more than
one kilogram of PCP to be guilty of a conspiracy to distrib-
ute that amount and Toro’s arguments to the contrary must
fail.
Toro also challenges the admission of certain evidence at
trial. Specifically, Toro argues that the district court mis-
applied Federal Rules of Evidence 403 and 404(b) by al-
lowing into evidence testimony concerning Toro’s possession
of PCP with intent to distribute it in 1996 and Toro’s
possession of ten vials of PCP in 1999.
We review a district court’s evidentiary rulings for an
abuse of discretion. See United States v. Williams, 216 F.3d
611, 614 (7th Cir. 2000). In deciding if evidence was
properly admitted under Rules 403 and 404(b) we ask
whether: “(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity to
commit the crime charged, (2) the evidence shows that the
other act is similar enough and close enough in time to
be relevant to the matter in issue, (3) the evidence is suf-
ficient to support a jury finding that the defendant commit-
ted the similar act, and (4) the probative value of the
evidence is not substantially outweighed by the danger of
unfair prejudice.” United States v. Kreiser, 15 F.3d 635, 640
(7th Cir. 1994).
The government contends that Toro’s prior PCP pos-
session was properly admitted because it was used to
show Toro’s intent to distribute PCP. We agree that Toro’s
intent to distribute PCP was at issue in this case. See
United States v. Monzon, 869 F.2d 338, 344 (7th Cir. 1989)
(holding that drug distribution is a specific intent crime,
and therefore evidence of the defendant’s intent is always
relevant). We therefore conclude that the evidence was
directed toward establishing a matter in issue other than
the defendant’s propensity to violate the law. Furthermore,
6 No. 03-2965
we agree that Toro’s possession with intent to distribute
PCP in 1996 was extremely similar to the acts charged in
this case and was close enough in time to be relevant be-
cause it occurred just five years prior to the charged crime.
See Kreiser, 15 F.3d at 640 (stating that “seven years is
close enough in time” for evidence to be admissible under
Rule 404(b)). It is a closer call whether Toro’s possession of
PCP in 1999 was similar enough to be relevant to show his
intent to distribute PCP. However, this Court has held that
past possession of narcotics is relevant to show intent to
distribute narcotics if the past possession was of “dis-
tribution amounts.” See United States v. Wash, 231 F.3d
366, 371 (7th Cir. 2000); United States v. Hernandez, 84
F.3d 931, 935 (7th Cir. 1996). Considering that Toro’s
brief argues that PCP is distributed one vial at a time,
Toro’s possession of ten vials in 1999 could be considered a
distribution amount and therefore would be relevant to
show intent to distribute narcotics. Finally, we conclude
that the evidence presented by the government was suf-
ficient to support a finding that Toro committed the prior
acts because the government presented direct eyewitness
testimony from two Chicago police officers, one of whom
observed Toro possessing PCP in 1999 and one of whom
observed Toro distributing PCP in 1996. See United States
v. Long, 86 F.3d 81, 85 (7th Cir. 1996) (holding that eyewit-
ness testimony is sufficient to support a finding for Rule
404(b) purposes).
We therefore proceed to determine whether the district
court properly balanced the probative value of the evidence
against its prejudicial impact. Toro asserts that the district
court did not engage in any Rule 403 analysis, and that if
it had made such an inquiry the evidence would have been
excluded. However, this argument is belied by the tran-
script, which shows that the district court engaged in
extensive discussions with counsel about the evidence’s
relevance and prejudice spanning fifteen pages of dialogue
No. 03-2965 7
between the parties. The district court’s obvious concern
that evidence of past crimes tempts jurors to convict based
upon propensity, an impermissible use under Rule 404(b),
makes clear that the district court carefully considered this
issue. Ultimately, the district court concluded that despite
the prejudicial effect of this evidence, it was highly proba-
tive of Toro’s intent to distribute PCP. When this Court
reviews such determinations, “we accord the district court’s
decision great deference, only disturbing it if no reasonable
person could agree with the ruling.” United States v.
Thomas, 321 F.3d 627, 630 (7th Cir. 2003). Under this
standard of review, we decline to overturn what was clearly
a deliberative and reasoned decision of the district court.
Finally, Toro argues that he was entitled to a pre-trial
hearing to determine the voluntariness of his confession.
Toro concedes that he had the burden of presenting “defi-
nite, specific, detailed, and nonconjectural facts” to estab-
lish that there was a disputed issue of material fact as to
the voluntariness of his confession. United States v. Rodri-
guez, 69 F.3d 136, 141 (7th Cir. 1995). The defendant must
make this prima facie showing of illegality without relying
on vague or conclusory allegations. See United States v.
Randle, 966 F.2d 1209, 1212 (7th Cir. 1992). Toro did not
meet this burden.
Prior to his trial, Toro filed a motion to suppress his post-
arrest confession. This motion was supported by Toro’s
affidavit, which listed three reasons why his confession was
involuntary: (1) “at the time of my arrest, I was not fully
aware or conscious of the events surrounding the arrest”; (2)
“after my arrest, because of my condition (intoxication), I
was unable to understand the Miranda warnings given to
me”; (3) “I was tricked and confused into giving the written
statement that I gave upon my arrest and the statement
was not voluntary.” Clearly, Toro’s third allegation is too
conclusory to make a prima facie showing that his confes-
sion was involuntary. Toro provided no details about how he
8 No. 03-2965
was tricked and confused, who may have tricked and
confused him, or why this trickery and confusion rises to
the level of coercion. Toro’s first two allegations are also
insufficient. Although Toro claimed that his intoxication
caused him to be unaware of the events surrounding his
arrest and to not understand his Miranda rights, Toro
provided no details about how he was intoxicated, what
substance he was intoxicated with, or the level of intoxica-
tion he suffered. Even if Toro had provided the district court
with this information, intoxication alone does not show
involuntariness. See United States v. Chrismon, 965 F.2d
1465, 1469 (7th Cir. 1992) (stating that “a defendant’s
intoxication . . .—without some showing of coercion by the
government—will not negate voluntariness”). “A diminished
mental state is only relevant to the voluntariness inquiry if
it made mental or physical coercion by the police more
effective.” Id. Since Toro did not detail any facts showing
mental or physical coercion by the police, he did not meet
his burden of showing a prima facie case of involuntariness
and therefore was properly denied an evidentiary hearing.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
No. 03-2965 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-4-04