10-3915-cr (L)
USA v. Toole

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 23rd day of December, two thousand eleven.

Present: GUIDO CALABRESI,
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
                           Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                         - v. -                        Nos. 10-3915-cr (L); 10-4303-cr (CON)

LAWRENCE WILLIAMS, AKA WEASE,

                         Defendant,

EVERETTE TOOLE, AKA E, ALGERNON TOOLE, AKA A1, AKA PRIEST,

                     Defendants-Appellants.
____________________________________________________________


For Defendant-Appellant Everette Toole:        JAMES S. WOLFORD, The Wolford Law Firm,
                                               LLP, Rochester, N.Y.

For Defendant-Appellant Algernon Toole:        SCOTT M. GREEN, Rochester, N.Y.
For Appellee:                                     BRETT A. HARVEY, Assistant United States
                                                  Attorney, of counsel, for William J. Hochul, Jr.,
                                                  United States Attorney for the Western District
                                                  of New York, Rochester, N.Y.

       Appeal from the United States District Court for the Western District of New York
(Larimer, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of the district court are AFFIRMED.

       Defendant-Appellant Everette Toole (“E. Toole”) appeals from a judgment of conviction

entered on September 22, 2010, and Defendant-Appellant Algernon Toole (“A. Toole”) appeals

from a judgment of conviction entered on October 19, 2010, by the United States District Court

for the Western District of New York (Larimer, J.), following a jury trial. A. Toole raises one

issue on appeal: whether the district court erred in denying his motion to suppress physical

evidence seized during an automobile stop. E. Toole raises three issues on appeal through

counsel and a supplemental pro se brief: (1) whether his Sixth Amendment right to a speedy

trial was violated; (2) whether the evidence presented at trial was legally sufficient to support his

narcotics conspiracy convictions; and (3) whether the district court abused its discretion in

admitting the evidence of his involvement in possessing firearms and distributing marijuana

during the conspiracy charged in Count I. We assume the parties’ familiarity with the facts and

procedural history of the case.

       Turning first to A. Toole’s appeal, when reviewing a district court’s decision denying a

motion to suppress, “we review the [district] court’s factual findings for clear error, viewing the

evidence in the light most favorable to the government,” and review its conclusions of law de

novo. United States v. Worjloh, 546 F.3d 104, 108 (2d Cir. 2008) (per curiam). “A [factual]


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finding is clearly erroneous when although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction that mistake has been

committed.” United States v. Sash, 396 F.3d 515, 521 (2d Cir. 2005) (internal quotation marks

omitted). In cases “[w]here there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” Id. (alteration in original) (internal quotation

marks omitted).

       “[A]n ordinary traffic stop constitutes a limited seizure within the meaning of the Fourth

and Fourteenth Amendments.” United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994)

(alteration in original) (internal quotation marks omitted). To justify a traffic stop, “the police

must have either ‘probable cause or a reasonable suspicion, based on specific and articulable

facts, of unlawful conduct.’” United States v. Gaines, 457 F.3d 238, 243 (2d Cir. 2006) (quoting

Scopo, 19 F.3d at 781-82). “[R]easonable suspicion of a traffic violation provides a sufficient

basis under the Fourth Amendment for law enforcement officers to make a traffic stop.” United

States v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009). In determining whether the police have

reasonable suspicion, we must consider the “totality of the circumstances.” United States v.

Sokolow, 490 U.S. 1, 8 (1989) (internal quotation marks omitted).

       While A. Toole argues that the police officer’s primary motivation for stopping the car

was improper, there is simply no evidence to support his theory that the officer purposely

targeted out-of-state vehicles in order to seize cash. In any case, even if A. Toole could

demonstrate that the stop was pretextual, as long as the officer had probable cause to believe that

a traffic violation occurred, whether the officer had an “ulterior motive” is irrelevant to the

Fourth Amendment analysis. Whren v. United States, 517 U.S. 806, 812 (1996); see also United


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States v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir. 1998) (“[A]n officer’s use of a traffic violation

as a pretext to stop a car in order to obtain evidence for some more serious crime is of no

constitutional significance.”). Here, the district court was entitled to credit the police officer’s

testimony that the car was following too closely and was weaving in and out of its lane and thus

conclude that the officer had probable cause to believe that a traffic violation had occurred.

Accordingly, the district court did not err in denying A. Toole’s motion to suppress.

       Turning to E. Toole’s appeal, E. Toole first contends that his Sixth Amendment right to a

speedy trial was violated. In order “to trigger a speedy trial analysis, an accused must allege that

the interval between accusation and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay.” Doggett v. United States, 505 U.S. 647, 651-52 (1992)

(internal quotation marks omitted). Once the defendant demonstrates “presumptively

prejudicial” delay, the Court must consider the following factors enumerated in Barker v. Wingo,

407 U.S. 514, 530-33 (1972), to determine whether the pre-trial delay violates the Sixth

Amendment: the length of the delay, the reason for the delay; the defendant’s assertion of his

right to a speedy trial; and the extent of prejudice to the defendant. United States v. Vassell, 970

F.2d 1162, 1164 (2d Cir. 1992) (citing Barker, 407 U.S. at 530-33).

       Here, while the delay is presumptively prejudicial as there was nearly a 46-month delay

between E. Toole’s initial indictment and the trial, we nonetheless conclude that E. Toole’s Sixth

Amendment rights were not violated in light of the other Barker factors. In addition to the fact

that there were a number of valid reasons for the delay, including, inter alia, voluminous pre-

trial motions, two multi-day suppression hearings, numerous pre-trial conferences, the addition

of a defendant, and the decision to set a trial date at a point when all counsel were available, E.


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Toole did not vigorously assert his right to a speedy trial below. While he contends that he

asserted his speedy trial right in a motion filed in 2007, none of the motions filed by E. Toole

reference his right to a speedy trial. It is true that his co-defendant, A. Toole, filed a speedy trial

motion in 2007, but E. Toole did not formally join in this motion and the fact that in 2006 he

expressed a desire to be “joined in on all defensive pleadings and motions,” E. Toole App. 78, is

insufficient to establish that he adequately asserted his speedy trial rights below. Finally, E.

Toole fails to demonstrate that he was prejudiced as a result of the delay. As we observed in

United States v. Abad, 514 F.3d 271, 275 (2d Cir. 2008), “the sort of prejudice contemplated by

Barker’s fourth factor . . . is concerned with impediments to the ability of the defense to make its

own case (e.g., if defense witnesses are made unavailable due to the government’s delay),” and,

here, there is simply no indication that the delay hampered E. Toole’s ability to mount a defense.

       E. Toole next challenges the sufficiency of the evidence supporting his convictions. A

defendant challenging the sufficiency of the evidence bears a “heavy burden.” United States v.

Gaskin, 364 F.3d 438, 459 (2d Cir. 2004) (internal quotation marks omitted). We review the

evidence “in the light most favorable to the government, crediting every inference that could

have been drawn in the government’s favor.” United States v. Chavez, 549 F.3d 119, 124 (2d

Cir. 2008). A conviction must be affirmed if “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979) (emphasis in original).

       Where, as here, a defendant challenges a conspiracy conviction, “deference to the jury’s

findings is especially important . . . because a conspiracy by its very nature is a secretive

operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the


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precision of a surgeon’s scalpel.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008)

(internal quotation marks omitted). “The record must nonetheless permit a rational jury to find:

(1) the existence of the conspiracy charged; (2) that the defendant had knowledge of the

conspiracy; and (3) that the defendant intentionally joined the conspiracy.” Id. (internal citations

omitted).

       Turning first to the conspiracy charged in Count I of the third superseding indictment (the

“2003-2004 conspiracy”), the evidence presented at trial was more than sufficient to support E.

Toole’s conviction. Cooperating witnesses Brian Leonard and Frank Cavallucci testified that

they (along with other conspirators) took 10-20 trips to Chicago between August 2003 and May

2004, during which they obtained multiple-kilogram quantities of cocaine from E. Toole, who

would obtain the cocaine from Chicago-based suppliers. While E. Toole urges the Court to

reject this testimony as inherently unreliable, “it is well-settled that when reviewing the

sufficiency of the evidence we defer to the jury’s assessment of witness credibility.” United

States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002) (internal quotation marks omitted). Moreover,

while this testimony is alone sufficient to sustain E. Toole’s conviction, see United States v.

Gordon, 987 F.2d 902, 906 (2d Cir. 1993), many aspects of this testimony were corroborated by

other evidence presented at trial, including E. Toole’s post-arrest statements and the testimony of

Heather Weisensel, A. Toole’s former girlfriend.

       While E. Toole argues that his conviction must be overturned pursuant to United States v.

Lorenzo, 534 F.3d 153 (2d Cir. 2008), his reliance on Lorenzo is misplaced. In Lorenzo, we

overturned a narcotics conspiracy conviction because the primary evidence against the

defendant—the transfer of $14,000 to an alleged co-conspirator—was insufficient to establish



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that the defendant had “the specific intent to further a cocaine . . . conspiracy.” Id. at 160. While

we acknowledged that the money transfer was “suspicious” and “indicative of participation in

illegal behavior,” we found that “such a transfer [was] consistent with participation in a wide

variety of offenses, and in light of the other evidence, [was] insufficient to prove [the

defendant’s] intent to participate in the [narcotics] conspiracy.” Id. In this case, however, there

was ample evidence linking E. Toole to the cocaine conspiracy as various government witnesses

testified that E. Toole directly supplied multiple-kilogram quantities of cocaine to Leonard,

Cavallucci, and A. Toole on numerous occasions between August 2003 and May 2004. Unlike

Lorenzo, the evidence does not merely point to vague suspicious activity on the part of E. Toole,

such as the transfer of money; the evidence suggests that, in exchange for money, E. Toole made

arrangements to supply cocaine to other co-conspirators and even personally delivered the

cocaine.

       E. Toole also argues that, absent proof that he profited from the drug transactions, a

reasonably jury could not conclude that he participated in the 2003-2004 conspiracy. However,

as the district court noted in its instructions to the jury—instructions that were not objected to by

E. Toole—a “person may have a financial stake in the outcome of the conspiracy, but he need

not [and thus] [t]he Government need not prove that the co-conspirator had anything to gain

from the conspiracy.” E. Toole App. 3819. In light of this instruction, the jury was entitled to

find that E. Toole was a knowing participant in the conspiracy even if he did not financially

benefit from it. In any event, since Leonard testified that E. Toole was paid $500 to $1,000 on

each trip to Chicago, a reasonable jury could infer that E. Toole profited as a result of his

participation in the conspiracy.



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       Turning to the conspiracy charged in Count II of the third superseding indictment (the

“February 2006 conspiracy”), the evidence presented against E. Toole was especially

overwhelming. In a recorded conversation, A. Toole and Leonard discussed the anticipated

cocaine transaction and A. Toole indicated that “E” would be supplying the cocaine to Leonard.

A couple of days later, following a telephone call from E. Toole, Leonard met E. Toole in a

silver Dodge Magnum in a hotel parking lot and gave him $23,000 in exchange for a kilogram of

cocaine. During a recorded conversation, Leonard told E. Toole “there’s 23 in there” and E.

Toole responded “What do we got left? . . . 127? . . . So what’s that, like five of ‘em,” referring

to the fact that the remaining money would be enough to purchase an additional five kilograms

of cocaine. Gov’t App. 106. Based upon this evidence, a reasonable jury could conclude that E.

Toole knowingly participated in the February 2006 conspiracy.1

       The final challenge raised by E. Toole is that the district court erred in admitting

evidence that he possessed firearms and distributed marijuana during the 2003-2004 conspiracy.

We review the district court’s evidentiary rulings for abuse of discretion. United States v.

Downing, 297 F.3d 52, 58 (2d Cir. 2002). Federal Rule of Evidence 404(b) permits the

admission of evidence of other crimes, wrongs, or bad acts for the purposes of showing “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

       1
          To the extent that E. Toole is advancing an entrapment defense, this argument must fail
for two reasons. First, A. Toole, not the government, induced E. Toole to participate in the
February 2006 conspiracy. See United States v. Al-Moayad, 545 F.3d 139, 158 n.15 (2d Cir.
2008) (“[W]here a government agent induces a middleman to commit a crime, and the
middleman . . . takes it upon himself to induce another person to participate in the crime, the
latter person is not entitled to a derivative entrapment charge.”) (quoting United States v.
Pilarinos, 864 F.2d 253, 256 (2d Cir. 1988)). Second, the evidence suggests that E. Toole had
“an already-formed design and an existing course of criminal conduct” because he “readily
agreed to the transaction” and was able to carry out the transaction “with little difficulty.” See
United States v. Salerno, 66 F.3d 544, 547-48 (2d Cir. 1995).

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Such evidence “must be (1) offered for a proper purpose, (2) relevant, . . . (3) substantially more

probative than prejudicial [and] (4) at the defendant’s request, the district court should give the

jury an appropriate limiting instruction.” Downing, 297 F.3d at 58. This Court follows an

“‘inclusionary’ approach” to Rule 404(b), admitting evidence of prior crimes, wrongs, or bad

acts “unless it is introduced for the sole purpose of showing the defendant’s bad character, or

unless it is overly prejudicial under Fed. R. Evid. 403 or not relevant under Fed. R. Evid. 402.”

United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996) (internal citation omitted).

       As to the evidence that E. Toole possessed firearms, this evidence was properly admitted

as direct proof of his participation in the 2003-2004 conspiracy. See United States v. Mitchell,

328 F.3d 77, 83 (2d Cir. 2003) (“[O]ur circuit has long recognized the connection between drug

trafficking and firearms, repeatedly permitting firearms into evidence as proof of narcotics

conspiracies because drug dealers commonly keep firearms on their premises as tools of the

trade.”) (internal quotation marks omitted). As to the evidence of E. Toole’s involvement in

possessing and distributing marijuana, we cannot conclude that the district court abused its

discretion in admitting this evidence to “explain how [the] criminal relationship developed,”

provide background information, and “help the jury understand the basis for the co-conspirators’

relationship of mutual trust.” United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996). We

further conclude that, contrary to E. Toole’s contention, the probative nature of the evidence of

firearms and marijuana was not substantially outweighed by any danger of unfair prejudice

because such evidence was no more inflammatory than the charged conduct. See United States

v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (noting that 404(b) evidence is not unfairly

prejudicial when it “represent[s] only a tiny fraction of the testimony heard by the jury, and


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[does] not involve conduct any more sensational or disturbing than the crimes with which [the

defendant is] charged”).

       We have considered all of Defendants-Appellants’ remaining arguments and find them to

be without merit. For the reasons stated above, the judgements of the district court are

AFFIRMED.


                                                     FOR THE COURT:
                                                     CATHERINE O’HAGAN WOLFE, CLERK




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