IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-8434
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK IVY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
( September 17, 1992)
Before REAVLEY, HIGGINBOTHAM, and DUHÉ, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Frank Ivy appeals his convictions for conspiracy to possess
cocaine with intent to distribute, possession with intent to
distribute, and using a firearm during or in relation to a drug
crime. We affirm.
I.
Ivy and his co-conspirator, John Guillory, were caught in a
reverse-sting operation of the Austin Police Department and DEA.
Officer Varela of the APD, posed as a cocaine supplier advising
that he could supply quantities of cocaine to anyone who was
interested.
On March 26, 1990, Guillory called Varela's undercover phone
number and told him that he was looking for a kilogram of cocaine.
They negotiated a price of $20,000, and Guillory informed Varela
that another person would be involved. The two agreed to meet at
Luby's Cafeteria in Austin.
The next day, Varela and Undercover Officer Marquez met
Guillory at Luby's where they were soon joined by Ivy. Ivy and
Varela then negotiated price. Ivy disputes much of the rest of the
conversation, but admits that a cocaine transaction was arranged.
The government asserts that during this discussion Ivy described
three residences; Ivy intended to take the officers to one of these
locations to see the money he would use to purchase the cocaine.
Ivy was to bring the money to purchase the cocaine to the Red
Lion Inn. Ivy arrived carrying a briefcase containing $20,000 in
cash. Officer Marquez then brought the cocaine over in a blue gym
bag. Ivy took the bag, opened it, and began to unwrap the cocaine
for testing. The arrest team then entered the hotel room, arrested
Ivy, and seized evidence in the hotel room. Ivy disputes the
testimony of Officer Young that his briefcase was opened when she
seized its contents. The briefcase contained a loaded .38 caliber
revolver wrapped in a clear plastic baggie, plastic bags, a cocaine
test kit, and slips of paper with the designation "2K."
After the arrest, DEA Agent Hildreth obtained search warrants
for the three residences Ivy had described in the Luby's meeting.
At one address, the officers found marijuana, currency wrapped and
tagged in the same way as that found in Ivy's briefcase, with
scales, drug tally sheets, cocaine tester kits, and weapons. At
another address, the agents found urinalysis kits and a receipt to
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a storage locker rented by Ivy. Based on the receipt, Hildreth
received a search warrant for the storage locker, which contained
$42,000 in currency also wrapped and tagged in the same manner as
the money seized earlier from the briefcase.
There were several problems with the searches and evidence.
Apparently, in the affidavit used to obtain the search warrant for
the storage facility, Agent Hildreth stated inaccurately that the
receipt was seized in a search of Ivy when he was arrested. There
was also some confusion about the source of information used to
obtain the original warrants; the affidavits refer to a
"cooperating defendant" when it was in fact a "cooperating
individual," an informant, who supplied information.
The gun seized from Ivy's briefcase was test-fired by two
agents and found to be in working order. Unfortunately, the gun
and all the other evidence seized in the case was accidentally
destroyed before Ivy's trial. Ivy testified in his own behalf at
trial and admitted to almost all the facts, including the fact that
he agreed to buy cocaine from Officer Varela and was opening the
bag of cocaine when arrested.
Ivy was tried and found guilty of conspiracy to possess over
500 grams of cocaine with the intent to distribute in violation of
21 U.S.C. §§ 841(a)(1) and 846, possession of over 500 grams with
intent to distribute in violation of 21 U.S.C. § 841(a)(1), and use
of a firearm during or in relation to a drug crime in violation of
18 U.S.C. § 924(c). Ivy was sentenced to a total of 175 months in
prison, a four-year term of supervised release, and a fine of $150.
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II.
Ivy argues that the district court improperly denied his
motion to suppress the evidence seized during his arrest and the
evidence seized pursuant to the search warrants. As to the
evidence seized at arrest, Ivy argues that the search of his
briefcase was improper, because it was actually closed at the time
of arrest. First, the district court was entitled to credit the
testimony of the officers that the briefcase was wide open when
they made the arrest. If the briefcase was open, then the seizure
of the gun, cocaine test kit, and slips of paper found inside was
valid under the "plain view" doctrine. Horton v. California, 110
S. Ct. 2301 (1990); Coolidge v. New Hampshire, 403 U.S. 443 (1971).
Second, even if we accept Ivy's description of the circumstances,
the search of a closed briefcase within the defendant's reach
incident to an arrest is also valid. United States v. Johnson, 846
F.2d 279 (5th Cir. 1988); United States v. Herrera, 810 F.2d 989
(10th Cir. 1987).
As to the evidence seized pursuant to the four search
warrants, Ivy presents a number of arguments. First, he attacks
the warrant to search the storage facility on the grounds that the
supporting affidavit contained the inaccurate statement that the
receipt for the storage facility was found on Ivy when he was
arrested. To suppress evidence from a search on the basis that the
affidavit used to obtain the warrant is false, the defendant must
show that the affiant made the statement with deliberate falsity or
with reckless disregard for the truth. Franks v. Delaware, 438
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U.S. 154 (1978); United States v. Wake, 948 F.2d 1422, 1428 (5th
Cir. 1991). The district court held a pretrial hearing on this
question and determined that Agent Hildreth had no reason to
believe the statement was false. That finding was not clearly
erroneous.
Second, Ivy argues that the reference to a "cooperating
defendant" instead of a "cooperating individual" in the affidavit
for the other three warrants was false and warranted suppression of
the evidence seized from his three residences. Again, there is no
evidence that this falsity was deliberate or made with a reckless
disregard for its truth. Finally, if probable cause remains after
the alleged false statement is excised, the search is still valid.
It does. Franks, 438 U.S. at 171-72. In her affidavit, Agent
Hildreth swore that Ivy identified three residences at which he had
transacted business relating to his drug trafficking.
III.
Ivy next asserts that there was insufficient evidence to
support his convictions. In evaluating the sufficiency of the
evidence, we consider the evidence in the light most favorable to
the government with all reasonable inferences and credibility
choices made in support of the verdict. Glasser v. United States,
315 U.S. 60, 80 (1942). With regard to the drug conspiracy
conviction, the government must prove beyond a reasonable doubt an
agreement between two or more persons to violate the narcotics laws
and that each conspirator knew about, intended to join, and
participated in the conspiracy. United States v. Ruiz, 860 F.2d
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615, 617-18 (5th Cir. 1988). Ivy argues that Guillory was not
involved in the conspiracy, thereby leaving him no non-government
agent with whom to conspire. The record, however, reflects
sufficient evidence of Guillory's participation. Guillory set up
the meeting with Varela, knowing that the purpose was to arrange a
drug transaction. In addition, Ivy admitted that he intended to
pay Guillory for the introduction. A reasonable jury could infer
a conspiracy from this evidence.
As to his conviction for possession with intent to distribute,
Ivy asserts that he never possessed the cocaine, because he had not
had a chance to test the drugs to determine if he wanted to accept
them. Section 841(a)(1) requires the government to prove either
actual or constructive possession. United States v. Randall, 887
F.2d 1262, 1268 (5th Cir. 1989). "Actual possession is defined as
knowingly having direct physical control over a thing at a given
time." Id. After arriving at the Red Lion, Ivy handed over
$20,000 in cash for the cocaine. Moreover, Ivy admitted on the
stand that he took the package and began to open it before his
arrest. These facts provide sufficient evidence for a reasonable
jury to conclude that Ivy had actual possession of the cocaine.
Proof of Ivy's intent to distribute may be established by direct or
circumstantial evidence. United States v. Dreyfus-de Campos, 698
F.2d 227, 229 (5th Cir. 1983). The quantity of cocaine involved
here, considered alone, was sufficient to support the inference
that he possessed the cocaine with intent to distribute. See
United States v. Vergara, 687 F.2d 57, 62 (5th Cir. 1982). There
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was additional evidence from which the jury could reasonably infer
Ivy's intent to distribute. He admitted to Officer Varela that he
wished to buy additional quantities of cocaine, he admitted to the
jury that he was a "street hustler" open to drug deals because he
was in it for the money, and officers found currency wrapped and
tagged along with scales in one of his residences. See United
States v. Munoz, 957 F.2d 171, 174 (5th Cir. 1992) ("Proof of
intent to distribute may be inferred from the presence of
distribution paraphernalia, large quantities of cash, or the value
and quality of the substance"). This evidence is sufficient.
Ivy also challenges his conviction for use of a firearm during
or in relation to a drug crime under 18 U.S.C. § 924(c). The
government must prove that Ivy used or carried a firearm during and
in relation to a drug trafficking crime. United States v. Raborn,
872 F.2d 589, 595 (5th Cir. 1989). We have interpreted section
924(c) broadly. Conviction of this offense "does not depend on
proof that the defendant had actual possession of the weapon or
used it in any affirmative manner." Id. It requires "evidence
that the firearm was available to provide protection to the
defendant in connection with his engagement in drug trafficking."
Id. (citations omitted). The gun in this case was clearly being
"used" in the sense of being available to provide protection during
Ivy's drug trafficking activities.1
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Ivy also objects to Agent Hildreth's testimony concerning
Hildreth's experience with drug dealers who wrap their weapons in
the way Ivy's was wrapped when the officers found it in his
briefcase. This testimony appears to be proper use of a trained
officer for expert testimony. See F.R.E. 701, 702. Moreover,
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IV.
Ivy moved before trial for the return of the approximately
$75,000 in cash seized from him. Pursuant to United States v.
Monsanto, 924 F.2d 1186 (2d Cir. 1991) (en banc), the district
court referred the matter to a magistrate to conduct a hearing to
determine probable cause as to both the commission of a narcotics
offense and the forfeitability of the specified property. The
Magistrate found probable cause and we find no basis for upsetting
that finding. Ivy had thousands of dollars in cash stored and
packaged in exactly the same way, $20,000 of which he handed over
to pay for cocaine at the Red Lion. He had no legitimate
employment and admitted that he had sold cocaine for years. The
$42,000 seized from the warehouse was just over the amount Ivy
would have needed to complete the next phase of the drug deal he
had discussed with the undercover agent, the purchase of two more
kilograms of cocaine. These facts support the finding of probable
cause as to the crime and forfeitability. Finally, any claim by
Ivy that forfeiture of his funds violated his Sixth Amendment right
to use those funds to obtain counsel of his choice is foreclosed by
the Supreme Court's decision in Caplin & Drysdale, Charted v.
United States, 109 S. Ct. 2646 (1989).
V.
Ivy's final three assertions of error warrant only brief
mention. First, he argues that the government's reverse-sting
even if the admission of this testimony was error, we find it to
be harmless.
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operation constituted outrageous government misconduct and thus
violated his constitutional right to due process, a defense
available in only "the rarest and most outrageous circumstances."
United States v. Stanley, 765 F.2d 1224, 1231 (5th Cir. 1985).
Those circumstances are not present here. See id. (rejecting the
defense where, as was the case here, government agents instructed
an informant to put the word out on the street that drugs were for
sale). The defense is also foreclosed where the defendant is an
"active participant" in the scheme. Id. at 1232. Ivy actively
participated by meeting with undercover agents at Luby's to discuss
the cocaine deal and by giving agents a pager number and telephone
number so they could reach him. Second, Ivy argues that a
violation of due process resulted from the referral of his case by
state agents for federal prosecution. We recently rejected this
argument in United States v. Carter, 953 F.2d 1449, 1461-62 (5th
Cir. 1991). Finally, we find no merit in Ivy's argument concerning
a constructive amendment to his indictment.
AFFIRMED.
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