United States v. Seelig

• Decision Date: 11 September 1974
• Docket Number: No. 73-3840.,73-3840.
• Citation: 498 F.2d 109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert SEELIG, a/k/a Robert Reynolds, and Michael Kleinman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.2d 109 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Robert SEELIG, a/k/a Robert Reynolds, and Michael Kleinman, Defendants-Appellants.

No. 73-3840.

United States Court of Appeals, Fifth Circuit.

August 8, 1974.

Rehearing Denied September 11, 1974.

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Arthur B. Stark, Miami, Fla., for Seelig.

Gerald Kogan, Jack R. Blumenfeld, Miami, Fla., for Kleinman.

Robert W. Rust, U. S. Atty., Michael P. Sullivan, Kerry J. Nahoom, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.

DYER, Circuit Judge:

Seelig and Kleinman appeal from their convictions for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C.A. § 846. In addition, Kleinman appeals individually from his conviction for the substantive offense of possession with intent to distribute the contraband in violation of 21 U.S.C.A. § 841(a)(1). Kleinman challenges the latter conviction on the basis of insufficient evidence, and Seelig contends that he could not be convicted for conspiracy since he was acquitted of the substantive charge of possession. Both appellants further raise the following points: (1) that the conspiracy count must fall since an essential participant in the conspiracy was a government informant; (2) that the federal agents lacked probable cause to make warrantless arrests; and (3) that the agents' forcible entry into a co-conspirator's apartment was an unlawful intrusion under 18 U.S.C.A. § 3109. We affirm.

During the summer of 1973, Martino, a confidential informant for the Bureau of Narcotics and Dangerous Drugs (BNDD) in California, placed a number of calls to Seelig on the East Coast in an attempt to purchase cocaine. Most of the calls were made from a BNDD office and were tape-recorded. In one of their conversations, Seelig informed Martino that a shipment of cocaine had arrived in Miami and was available for sale, whereupon Martino flew to Miami to consummate the deal. Upon arrival, Martino was met by Special Agents Martin and Sweat of the BNDD's Miami office. After discussing the anticipated transaction with the two agents, Martino made a phone call in the presence of Agent Martin to a motel in Miami Beach, and was invited by Seelig to the motel to inspect a sample of cocaine prior to delivery. At the motel Martino was introduced for the first time by Seeling to Kleinman¹ and was allowed to examine a small quantity of cocaine. After Martino agreed to purchase five pounds of the drug, Kleinman explained that they would have to go to the North Miami Beach apartment of his contact, Cliff Perry, to complete the sale. Martino then telephoned Martin, who was posing as his partner in the transaction, told the agent that he would be travelling with Seelig and Kleinman to Perry's apartment, and instructed Martin to follow their car.

At the apartment Perry brought out a one-pound bag of cocaine, and after some negotiations, went next door to obtain four more pounds of the drug. During Perry's absence Kleinman slit open the bag and offered a small sample to Martino. When Perry returned he and Martino went down to the lobby of the apartment building, supposedly to get the money from Martin to make the purchase. While Perry waited in the lobby Martino informed Agent Martin, who had been waiting in his car in the parking lot, that he had observed five pounds of cocaine on the coffee table in the living room of Perry's apartment. Martin relayed this message by radio to other agents who were waiting nearby. Shortly thereafter Perry approached Martin, believing him to be Martino's partner, and asked him if he "had the money." At that point Perry was arrested.²

Three federal agents then proceeded up to Perry's apartment. They knocked at the door, and Kleinman responded by asking who was there. One of the agents answered very quietly, "Cliff." Kleinman opened the door slightly and again asked who was there. This time the agent replied, "Federal agents," showed his badge through the partly open door, then shoved the door completely open and entered. Kleinman and Seelig were arrested and the cocaine was seized.³

We first consider Kleinman's contention that the evidence was insufficient to convict him of possession. His arguments that he was only a "casual facilitator of a sale," United States v. Jones, 2 Cir. 1962, 308 F.2d 26, 30, and that constructive possession cannot be inferred from "mere presence in the area . . . or mere association with the person who does control the drug," United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353, 1355, are undercut by the facts of this case. Perry, the undisputed dealer, was not merely a friend of Kleinman, but the two had a business relationship in dealing in drugs. Although Martino made the initial contact not with Kleinman but with Seelig, Perry had contacted Kleinman to inform him that cocaine was available for sale. Moreover, Kleinman's dominion and control of the contraband were conclusively demonstrated when he opened the bag of cocaine in Perry's apartment for Martino's inspection. Based on these facts, the district court could reasonably infer that Kleinman was in constructive possession of the cocaine during Perry's absence from the apartment. United States v. Stephenson, supra, at 1355.

We find equally little merit in Seelig's contention that he could not be convicted of conspiracy since he was acquitted of the substantive offense. That argument was specifically rejected in United States v. Carlton, 5 Cir. 1973, 475 F.2d 104, 106, cert. denied, 414 U.S. 842, 94 S.Ct. 100, 38 L.Ed.2d 80.

The first common assertion of Seelig and Kleinman is that they could not be convicted of conspiracy since a government agent was an essential party to the planned distribution of cocaine. Their argument is that since Martino was supposed to take the contraband back to California for distribution, and since he had no intention of carrying through with the scheme, they cannot be convicted of conspiring to distribute cocaine.

Sears v. United States, 5 Cir. 1965, 343 F.2d 139, relied upon by appellants, is wholly inapplicable to the case now before us. In Sears we held that there can be no indictable conspiracy when the only other supposed co-conspirator is a government informant. In the case sub judice, four persons were indicted and three convicted for conspiracy, hence the appellants lack the requisite factual basis for reliance on Sears.

We are also unpersuaded that we should adopt the rationale of King v. State, Fla.1958, 104 So.2d 730, and Woo Wai v. United States, 9 Cir. 1915, 223 F. 412, as the appellants so strongly suggest. These cases contain broad language to the effect that a conspiracy conviction cannot result where an "essential" act to the consummation of the substantive offense is to be performed by a government agent. Such an approach, we think, is inconsistent with the basic principle that a conspiracy is proved when it is established that two or more persons agreed to commit an offense and one of them engaged in an overt act in furtherance of the agreement. See, e. g., United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128. To the extent that King and Woo Wai are incompatible with this statement of the law, we decline to follow them. In this case the evidence conclusively demonstrates that Seelig and Kleinman agreed to supply cocaine to Martino for distribution, and subsequently took steps to carry out the scheme. The fact that a government informant was to effect the actual distribution of the drug does not extirpate their liability for conspiring to violate the law.

The appellants next contend that the agents lacked probable cause for the warrantless intrusion into the apartment. This argument is premised on the assertion that since the Miami agents had not previously used...