U.S. v. Sonntag

• Decision Date: 01 September 1982
• Docket Number: 81-5558,Nos. 81-5502,s. 81-5502
• Citation: 684 F.2d 781
• Parties: 11 Fed. R. Evid. Serv. 696 UNITED STATES of America, Plaintiff-Appellee, v. Anthony Theodore SONNTAG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dana Conrad NICHOLSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 781

684 F.2d 781

11 Fed. R. Evid. Serv. 696

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Theodore SONNTAG, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dana Conrad NICHOLSON, Jr., Defendant-Appellant.

Nos. 81-5502, 81-5558.

United States Court of Appeals, Eleventh Circuit.

Sept. 1, 1982.

Robert S. Griscti, Larry G. Turner, Gainesville, Fla., for defendant-appellant Sonntag.

John E. Lund, Tampa, Fla., for defendant-appellant Nicholson.

Stephen S. Cowen, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before TUTTLE, KRAVITCH and HENDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

In this consolidated appeal Anthony Sonntag and Dana Nicholson contend that they were improperly convicted of possession with intent to distribute and conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. They raise a variety of claims of error, including the failure to suppress certain evidence seized at Nicholson's home and from Sonntag's wallet, the trial court's instructions on the entrapment defense, various discretionary rulings by the court on evidentiary matters and the conduct of trial, and insufficient evidence to sustain the conviction. Finding these claims without merit, we affirm.

I.

The government's evidence at trial showed that in September of 1980, Richard Clegg, a past informant for the Drug Enforcement Administration, set out to locate a source of drugs, hoping to turn the information over to the DEA and earn an informant's fee. Clegg testified that in mid-September, he met Dana Nicholson who sold him some barbiturate pills and marijuana. Clegg mentioned to Nicholson that he represented buyers who were interested in purchasing large quantities of cocaine, and Nicholson responded that he could supply it. Clegg then met with DEA agents Thomas South and Dorothy Wehrly, informed them of his contact with Nicholson and agreed to a $2500 fee for his work on the case. Subsequently Clegg told Nicholson that "his people" wanted to purchase "three keys" (three kilograms) of cocaine. Nicholson replied that he would contact his source in the Washington, D. C. area. At a later meeting Nicholson told Clegg he could supply the cocaine and Clegg arranged a meeting with DEA agents South and Wehrly.

At this meeting in mid-November, South told Nicholson that he was interested in purchasing 2-3 kilos of cocaine on a regular basis. Nicholson again confirmed that he had a source in Washington, D. C., and after some discussion of price the meeting ended. Clegg accompanied Nicholson to Nicholson's home, where Nicholson phoned "his people up North." Clegg heard Nicholson greet "Tony" and ask about "three keys." Telephone records indicated that the call was to Anthony Sonntag in Lovettsville, Virginia, an area outside of Washington, D. C.

Nicholson and Clegg met again with Agents South and Wehrly on November 24. Nicholson told Agent South that everything was ready in Ft. Lauderdale, that he could obtain a kilo of cocaine without Agent South having to show any money beforehand, and that he would bring the kilo to Tampa and sell it to Agent South. Nicholson further stated that after the one-kilo transaction had taken place, Nicholson would go back down and pick up two additional kilos. Nicholson related that "Tony," from "New Jersey," was on the way down that evening. Nicholson said that the actual price for the kilo would be within $1000 or $2000 of a $50,000 per kilo price. Agent South stated that he wanted Clegg to see the cocaine first before any exchange took place. Nicholson responded that he and "Tony" would go with Clegg to pick up the kilo in Miami. This meeting ended about 6:00 p. m., with Nicholson telling Clegg to telephone him later that evening.

Pursuant to this instruction, Clegg telephoned Nicholson that evening. Nicholson said that his connection from up North was with him, and arranged to meet Clegg at a bar. At the bar, Nicholson introduced Sonntag to Clegg as "Tony." Clegg told Sonntag that Sonntag would make a lot of money by moving cocaine, and that Clegg had a number of buyers for whom he acted as middleman. Sonntag stated that he was "ready to do business" with Clegg, and that he had a sample of the "merchandise" Clegg would be able to get by going with Sonntag to Miami. Sonntag and Nicholson then took Clegg outside to Nicholson's van, and Sonntag showed Clegg a lump of cocaine. Sonntag stated that the quality of this cocaine was very good and that this would probably be the same merchandise they could buy in Miami. They suggested that Clegg leave with them for Miami at 7 or 8 o'clock the next morning, so that Clegg could judge the quality of the cocaine himself.

En route to Miami, Sonntag and Nicholson advised Clegg that he was to take an airplane back to Tampa after he saw the cocaine, and they would drive the merchandise back. Near Miami, Sonntag stated that if Clegg were not satisfied with the first sample he looked at, Sonntag had another source in Miami they could go to. Sonntag mentioned the name "Louie" or "Louis" as a source. A later search of Sonntag's wallet after his arrest revealed two slips of paper, one with the name "Louis" opposite a Miami telephone number and the other with the same number.

In Miami Sonntag left Clegg at a Ramada Inn. Sonntag said he would pick up a sample of the cocaine while Clegg and Nicholson waited at the hotel. Sonntag returned shortly with a sample for Clegg's approval. Nicholson then made a plane reservation for Clegg to return to Tampa. Late that night, Agent South met Clegg at the Tampa Airport. Clegg then telephoned Nicholson's house, speaking first with Sonntag and then with Nicholson. They had just returned from Miami. Nicholson stated they wanted to close the deal that night because Sonntag had a flight the next day to return home for Thanksgiving. During this call, Nicholson said the price would be $58,000 for one kilo. Clegg then telephoned Agent South, who said it was impossible to complete the deal that night, as sufficient police back-up could not be arranged at that late hour. Clegg telephoned Nicholson again and told him that the deal could not be completed that night, and that they would do it in the morning. Telephone toll records for Nicholson's house show that at 12:12 a. m. that night, a call was made to the Miami telephone number of "Louis."

On the morning of November 26, Clegg again called Nicholson at his home and told him he had not yet heard from his people. Clegg said he would call Nicholson back to arrange for the transaction, but did not do so. Rather, Agents South and Wehrly picked up Clegg and proceeded to Nicholson's house. When they arrived, Nicholson was standing outside of his front lawn, near the curb. Clegg and Agent Wehrly exited the car and greeted Nicholson. They then walked up to Nicholson's front door and rang the doorbell. Nicholson, in the meantime, entered Agent South's car, and expressed concern that he had seen vehicles in the area which he suspected were police cars. Agent South offered to show the money to Nicholson, but Nicholson responded "there will be time for that, the package is in the house, let's go." Nicholson asked Agent South to circle the block. As they did so, Nicholson became alarmed over two unmarked cars with radio antennas, which he believed were police cars (and which in fact were back-up surveillance units). As Agent South drove back toward Nicholson's house, Nicholson directed him to drive on to a telephone so Nicholson could call the house and "tell them to hold up until things cool off." Agent South complied, and drove Nicholson to a phone booth. As Nicholson began dialing, Agent South arrested him.

While Nicholson was with Agent South, Clegg and Agent Wehrly were at the house. After Clegg rang the doorbell Sonntag let them inside. Clegg introduced Agent Wehrly as Agent South's girlfriend who was to take a look at the merchandise before the purchase would be made. Clegg further stated that Agent Wehrly would be carrying the cocaine. Sonntag led Clegg and Wehrly into the kitchen area, removed a towel covering a plastic bag of cocaine placed on a triple-beam balance scale and handed the bag to Clegg. Set out on the dining room table was a round mirror and razor blade. Clegg used the mirror and blade to crush a little bit of the cocaine from the package handed to him by Sonntag. Clegg noted that it was very oily, and stated to Agent Wehrly that it looked like the same merchandise he had seen the day before. Sonntag responded by saying that "yes, it's very good; it's the same merchandise you saw yesterday." At this point, Agent Wehrly arrested Sonntag. Laboratory analysis determined that the substance in the plastic bag was 66 percent pure cocaine, with a net weight of 943.7 grams.

Sonntag did not testify at trial. Nicholson did testify, and claimed that both he and Sonntag had been entrapped by Clegg. Nicholson denied ever selling, or offering to sell, marijuana or cocaine to Clegg at Nicholson's house, or elsewhere. Rather, Nicholson claimed that Clegg promised to pay him $1500 for pretending to be a middleman with a source of cocaine so that Clegg could impress a drug buyer from Detroit. This charade, according to Nicholson, was to help Clegg avoid having his buyer bypass Clegg to deal directly with Clegg's real source of cocaine. Nicholson claimed he play-acted this middleman role during the meetings with Agents South and Wehrly.

Nicholson testified that he had known Tony Sonntag for 13 years, and that Sonntag was coming to Florida to look at real estate. After Sonntag arrived in St. Petersburg, Nicholson introduced Sonntag to Clegg. The purpose of this meeting with Clegg was simply to talk about collecting the $1500 Clegg owed Nicholson for the role-playing.

According to Nicholson's testimony, Clegg asked...