United States v. Ramon Toro

359 F.3d 879, 63 Fed. R. Serv. 1035, 2004 U.S. App. LEXIS 4192, 2004 WL 395889
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 4, 2004
Docket03-2965
StatusPublished
Cited by26 cases

This text of 359 F.3d 879 (United States v. Ramon Toro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ramon Toro, 359 F.3d 879, 63 Fed. R. Serv. 1035, 2004 U.S. App. LEXIS 4192, 2004 WL 395889 (7th Cir. 2004).

Opinion

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 supplying Toro with PCP. According to Williams, either Toro or 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 numerous 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 conference 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 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 December 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 *883 to distribute more than one kilogram of PCP. While Toro admits that he purchased PCP several times, he asserts that during 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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.

We emphasize that “questions of credibility are solely for the trier of fact” and that “absent extraordinary circumstances, 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 purchases to more than one kilogram. Thus, Williams’ testimony 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 exchanged 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 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 distribute 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 misapplied Federal Rules of Evidence

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Bluebook (online)
359 F.3d 879, 63 Fed. R. Serv. 1035, 2004 U.S. App. LEXIS 4192, 2004 WL 395889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ramon-toro-ca7-2004.