U.S. v. Tolliver, s. 90-2842

• Decision Date: 16 July 1991
• Docket Number: Nos. 90-2842,90-2915,s. 90-2842
• Citation: 937 F.2d 1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tonnie J. TOLLIVER and Ray D. Love, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1183

937 F.2d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Tonnie J. TOLLIVER and Ray D. Love, Defendants-Appellants.

Nos. 90-2842, 90-2915.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1991.

Decided July 16, 1991.

Mel S. Johnson, Asst. U.S. Atty., Susan M. Knepel, Milwaukee, Wis., for U.S.

Andrew Mishlove, Milwaukee, Wis., for Tonnie J. Tolliver.

Thomas G. Halloran, Milwaukee, Wis., for Ray D. Love.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and WILL, Senior District Judge. ^*

BAUER, Chief Judge.

In early 1990, Frederick "Billy" Schneider was arrested for cocaine trafficking. In exchange for Schneider's cooperation in identifying other cocaine traffickers in the Milwaukee, Wisconsin, area, the government did not seek an indictment against him. Schneider agreed to pose as a middleman in a "sting" operation in which an FBI agent would pose as a cocaine dealer from Michigan who was interested in selling the drug in Milwaukee. It was up to Schneider to arrange a cocaine transaction between the agent, Richard Dye, and prospective buyers and distributors. Special Agent Dye provided Schneider with $3500 of government money to buy a sample from his drug sources in Detroit. Schneider went to Detroit all right, but he spent the money on hotels, cocaine for personal use, and prostitutes. (Such conduct undermines the faith of government agents in humankind. Ah, well!) Upon his return from Detroit, Schneider was arrested at the Milwaukee airport. Now facing federal charges, Schneider agreed to cooperate just a little bit more.

Schneider previously had purchased cocaine from Tonnie Tolliver. In his new role as FBI informer, Schneider contacted Tolliver to arrange a drug deal with Dye. Throughout the first week of March (all these events occurred in 1990), Schneider, Tolliver, and Dye stayed in touch through paging devices and cellular phones. They had numerous conversations (that, unbeknownst to Tolliver, were recorded) regarding the amount of cocaine to be bought and sold, the price, and the manner in which any deal was to go down. Tolliver agreed to purchase one kilogram of cocaine for $18,000 and an additional half kilo for $9,000. As part of the agreement, Tolliver and Dye arranged for Tolliver to take a look at a sample of the cocaine for sale.

On March 5th, Dye drove a rental car to the Marriott Residence Inn in Glendale, a Milwaukee suburb. There were 523 grams of cocaine in plastic bags in the trunk. Dye registered and left his car in the parking lot in a position where it could be viewed from his hotel room. Schneider and Tolliver soon arrived together and Schneider met with Dye to obtain keys to the rental car. Schneider then returned to the parking lot, where he and Tolliver parked near Dye's car. Dye and other surveillance officers observed them remove some of the cocaine from the trunk of Dye's car and place it into a cigar tube Tolliver had with him. After a few minutes, they closed the trunk. Schneider returned the keys to Dye and he and Tolliver left the parking lot area. It later was determined that Schneider and Tolliver had removed approximately 35 grams of cocaine from the trunk of Dye's car.

Tolliver evidently liked the sample. Over the telephone, he arranged a one kilogram transaction with Dye for the next day, March 6th. Schneider was to serve as go-between. Schneider must have liked Dye's sample, too, because he was too high to show up on March 6th. Consequently, the deal had to be rescheduled for March 7th. The plan was as follows: Dye and Schneider were to drive to Tolliver's house. Once Schneider confirmed that Tolliver indeed had the $18,000, he was to bring the cocaine into the house and return to Dye's car with the cash.

On the appointed day, everything was in place. FBI agents surrounded the Tolliver residence and Schneider entered at approximately 9:30 am. There was, unfortunately, a hitch. Tolliver told Schneider that the people with the money were on their way and that they would soon be there. Tolliver instructed Schneider to telephone him later to confirm that the money had arrived. At around 9:50 am, the surveillance team saw a copper-colored Cadillac circle Tolliver's block for six or seven minutes. Eventually, it stopped in the alley behind Tolliver's house. Two men got out and went into the house. The driver then parked the car on the street in front of the house and remained in the vehicle. After a few minutes, the driver got out of the car and he, too, went into Tolliver's. He was wearing a distinctive white leather hat and was carrying a brown plastic bag.

Schneider, who was driving around with Dye, telephoned Tolliver and was told that the money had arrived. Dye and Schneider returned to Tolliver's. When Schneider entered the house, he saw four men: Tonnie Tolliver, Vincent M. Williamson, Ray Love, and Larry Love. Schneider also saw guns and, sitting on a table, a large amount of cash. Tolliver was next to the table and Williamson was counting the money. According to Schneider's trial testimony, the individual in the white leather hat was standing near the table. He told Schneider that he had more money if it were needed and demonstrated as much by pulling out a large wad of bills from his pocket. Sometime later, Schneider learned that this man was Ray Love.

Schneider left the house to confer with Dye. Dye relayed Schneider's observations to the other agents and they decided that the whole scene was too risky. Consequently, Dye and Schneider phoned Tolliver to tell him that all bets were off. At around 11:00 am, the surveillance agents observed four men come out of Tolliver's and get into the Cadillac. The man with the white leather hat sat in the driver's seat. This time, he held a white plastic bag. The FBI closed in and pinched all four suspects.

At the time of the arrest, Ray Love was carrying $5,000 in cash in his socks and pockets and a loaded FIE .22 caliber revolver. A white plastic bag with an additional $18,020 in cash was found on the front seat of the car. Tolliver was carrying a plastic bag containing white powder (later determined to be approximately four grams of cocaine). On the floor of the rear seat of the Cadillac was a revolver case in a brown, plastic bag and a loaded Colt Python .357 revolver. The agents later discovered under the front seat an Ameritech pager invoice addressed to Ray D. Love. A search of the Tolliver residence revealed scales and sifters with powdery white residue, gun clips, ammunition, a plastic bag with residue, a cellular phone, and an address book with an entry for Ray Love's beeper number.

Tolliver, Ray Love, and Williamson were indicted for drug trafficking, but Larry Love was not charged. On March 7, 1990, Tolliver appeared before a federal magistrate and requested and received appointed counsel. Tolliver wound up having a rather stormy relationship with his lawyer, Jeffrey Krebs. Tolliver took issue with Krebs' representation and even filed a complaint against him with the Wisconsin attorney disciplinary board. On April 25th, Tolliver filed a pro se motion for substitution of counsel and a hearing was held. At the hearing, Tolliver alleged that Krebs had failed to challenge the legality of the arrest and the seizure of evidence and that he failed to investigate the legality of the array of the grand jury. On the same day, Tolliver stated that he wished to proceed to trial pro se. The motion for substitution of counsel was denied but the motion to proceed pro se was granted. The court ordered Krebs to be present throughout the trial as standby counsel. Krebs later tried to withdraw several times, but the court requested that he remain until it could find a substitute. The court and its staff contacted twenty-nine attorneys, but none would take over Tolliver's defense.

On May 2nd, Tolliver filed an affidavit with the court exculpating Love. If the defendants were tried together and Tolliver, as was his right, refused to take the stand, then he would be unavailable as a witness for his codefendant. Consequently, Love's attorney immediately alerted the court to a possible need for severance. On May 23rd, the court held a final pretrial conference. At that time, severance again was discussed. Both defendants informed the court that Tolliver would be taking the stand in his own behalf, so the court saw no need to grant the motion for severance.

The trial began on May 29th. About midway in the proceedings, after the jury had been impaneled, after opening statements, and after the government's first witness had testified, Tolliver informed the court that he was "incompetent" to act as his own counsel and requested brand new appointed counsel. The court suggested that Krebs could take over, but the government objected on the grounds that, in view of the ethics complaint, Krebs should not be required to represent Tolliver. The essence of the government's argument was that Tolliver had made his bed (by wanting to go it alone) and now he had to lie in it. The court agreed, and advised Tolliver that it would make further attempts to locate new counsel but, in the meantime, he had to continue pro se.

Tolliver's performance lent credence to the old adage, "The man who serves as his own lawyer has a fool for a client." His theory of the case was that the "sting" operation was a ruse by Schneider to bilk the government out of cocaine for personal consumption rather than for distribution. Tolliver requested no theory of defense jury instruction, made no closing argument, and called no witnesses.

At the midway point of the proceedings, Love asked again that his trial be severed on the ground that Tolliver could provide exculpatory testimony for Love but was unwilling to testify in a joint trial. Love argued that, unless a severance was granted, he would be denied the right of confrontation. The government responded that the motion was premature because it was difficult to tell, based...