U.S. v. Toomey

• Decision Date: 26 June 1985
• Docket Number: No. 84-5134,84-5134
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Terry TOOMEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 678

764 F.2d 678

UNITED STATES of America, Plaintiff-Appellee, v. Paul Terry TOOMEY, Defendant-Appellant.

No. 84-5134.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 1985.

Decided June 26, 1985.

Roger W. Haines, Jr., Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Roger W. Haines, Jr., Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Bruce Ian Feldman, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, WALLACE and REINHARDT, Circuit Judges.

GOODWIN, Circuit Judge.

Toomey appeals from his conviction of one count of conspiracy to import heroin, see 21 U.S.C. Secs. 952, 960 and 963, of traveling in interstate and foreign commerce in aid of racketeering, see 18 U.S.C. Sec. 1952(a)(3), and of unlawful use of a communication facility, a telephone, see 21 U.S.C. Sec. 843(b). Toomey claims that the district court erred in denying his motions for judgment of acquittal based on insufficiency of the evidence, abused its discretion in denying his motion for mistrial based upon prosecutorial misconduct, and abused its discretion in rejecting his supplemental voir dire questions. We affirm the judgment.

The evidence consisted primarily of the testimony of four government witnesses, and defendant Toomey. The evidence centered on each witness' version of various meetings and telephone conversations in which they participated.

Special Agents Hill, Counts and Young of the Drug Enforcement Agency, and Investigator

Chen of the Hong Kong Custom and Excise Service testified for the government. Their testimony tended to show an agreement between the agents, Ajid Mohaw Balse ¹ and Toomey, to buy and sell, for $750,000, 100 kilos of heroin base to be converted into heroin and distributed in the United States.

Agent Hill testified that on March 17, 1983, Agent Counts was introduced to Toomey as the person who would receive the narcotics in San Pedro Harbor and distribute them in the United States. Inspector Chen was introduced as the Hong Kong connection who would smuggle the final product into the United States. At this meeting, Toomey suggested that he travel to Hong Kong to facilitate the payment from the agents and then wire it to Balse in India. Toomey also suggested that they start out with a small to medium amount of narcotics to put Balse's connections in India at ease.

Toomey was present on March 27 when Agent Hill and Balse met and discussed the contemplated transaction. Toomey asked about their profits. Hill told Balse and Toomey that their profits would be approximately $150,000 per kilo, after the drugs were sold in the United States.

On April 8, Toomey called Hill and relayed a telephone message from Balse in India that what they wanted was "on the top of the list." The evidence showed that this was a reference to heroin base. Toomey met Hill that day and gave him Balse's telephone number in Bombay.

Agent Counts met with Toomey on April 13 and told him that the first shipment of two kilograms of heroin base was being diverted to Frankfurt, West Germany. They agreed that payment for the 2 kilos, $15,000, would be made in San Diego, rather than Hong Kong because of the small amount. Agent Counts handed Toomey the $15,000 on May 3.

Toomey traveled with Balse to Hong Kong on May 9. Balse went on to India. Toomey stayed in Hong Kong to research local investment and banking procedures and law, and to receive payment for the narcotics once they arrived in Hong Kong and thereafter wire funds to Balse in India. While in Hong Kong, Toomey conducted his research and contacted various individuals regarding banking and financial transactions in Hong Kong. He discussed these efforts with Inspector Chen and Agent Young. He left Hong Kong without receiving any payments; Balse was arrested in India before further narcotics were shipped.

Toomey testified in his own defense that although he knew that the transactions contemplated by Balse and the others involved narcotics, he did not know and never agreed that the narcotics would end up in the United States. He denied that the agents ever said the narcotics were to be delivered to the United States, and maintained that he was to act solely as a financial advisor who would investigate foreign banking and tax laws and ways to legitimately invest in the United States the funds obtained abroad. Toomey testified that on several occasions he expressed concern to the agents about the narcotics deal, and voiced his desire that everything be done offshore and no United States laws be violated.

At the conclusion of the government's case-in-chief, Toomey moved for judgment of acquittal as to all three counts. This motion was denied. His renewed motion at the conclusion of all the evidence was also denied. In reviewing the district court's denial of Toomey's motions, we must decide whether, viewing the evidence in the light most favorable to the government, there was sufficient evidence from which the jury could rationally conclude beyond a reasonable doubt that Toomey was guilty of each count charged. United States v. Oropeza, 564 F.2d 316, 321 (9th Cir.1977), cert. denied, 434 U.S 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978); United States v. Kaplan, 554 F.2d 958, 963 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). Applying that standard, we agree with the district court that the government's evidence was more than sufficient to permit the jury to infer the existence of the conspiracy as charged and Toomey's participation in it, that Toomey's intent in traveling to Hong Kong was to carry out his part of the agreement, and that the relaying of messages via the telephone was in furtherance of the conspiracy.

Toomey's testimony to the contrary merely created evidentiary conflicts which the district court properly left for resolution by the jury. Given the context of the conversations in which Toomey's concerns were raised, it is quite possible that the jury concluded that his concerns were addressed to the payment and receipt of funds abroad so as to avoid receipt of payment for the narcotics in the United States. This interpretation is not unreasonable and is consistent with Toomey's role as a financial advisor who agreed to investigate and set up bank accounts or financial and investment ventures from which the profits from the narcotics venture could be legitimately channeled and invested in the United States. It is the jury's duty to weigh the evidence and determine what version of the facts to believe. United States v. Young, 573 F.2d 1137, 1139 (9th Cir.1978); Kaplan, 554 F.2d at 964.

Toomey's claim of prosecutorial misconduct is based on the following statement made by the prosecutor during his closing argument: "We know that the delivery of heroin base in [Frankfurt,] West Germany occurred on April 28." Defense counsel objected because there had "been no evidence that the product was ever identified by anyone--there was no evidence put on as to what it is," and the prosecutor's statement was "inflammatory." He then moved for a mistrial based upon prosecutorial misconduct. The trial judge denied the motion noting that there was circumstantial evidence in the case about a package delivered to Frankfurt, but no direct evidence. The prosecutor then moved to reopen his direct to "bring in the Germans." The trial judge denied this motion, and told the prosecutor "you can correct that statement...." The prosecutor never corrected his statement and did not refer to the package or delivery to Frankfurt in the remainder of his remarks. The trial judge did not give a cautionary instruction as to the prosecutor's statement but did instruct the jury twice that statements and argument of counsel are not evidence.

In reviewing the district court's denial of Toomey's motion for mistrial, we first determine whether the prosecutor's statement constituted error. If it did, we will affirm unless it is more probable than not that the error materially affected the verdict. United States v. West, 680 F.2d 652, 656-57 (9th Cir.1982); United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir.1977).

It is true that no physical evidence of heroin nor of any narcotics was admitted into evidence. However, a review of the record indicates that there was circumstantial evidence sufficient to allow the jury to infer that a package containing heroin base was shipped to Frankfurt. Therefore, although the prosecutor could have used more accurate terms, his statement was not necessarily error.

Even if the prosecutor's statement is characterized as stating facts not in evidence, the error was harmless in this case. Whether or not heroin base was delivered to Frankfurt or any other place is immaterial to the charges against Toomey. The charges concerned an agreement to import heroin, not the actual importation nor possession. The diversion of the shipment of the two kilos of the heroin base from Hong Kong to Frankfurt is not inconsistent with the government's view of the agreement and does not necessarily indicate that the substantive goal of the conspiracy was altered. According to the agreement, the heroin base would be refined before being delivered to the United States. Frankfurt had been discussed by the parties as one of the international locations, in addition to Hong Kong, where the heroin precursors could be refined into heroin. Moreover, given the innumerable references to heroin, heroin base and other controlled substances throughout the trial, it is highly unlikely that the prosecutor's statement materially affected the jury's verdict.

Although we conclude that the district court did not abuse its discretion in rejecting Toomey's supplemental voir dire questions, the point warrants discussion. The district court has considerable discretion in determining the manner and scope of voir dire. Rosales-Lopez v....