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

2 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

(a)(1) and 846, possession of over 500 grams with

intent to distribute in violation of

(a)(1), and use

of a firearm during or in relation to a drug crime in violation of

(c). Ivy was sentenced to a total of 175 months in

prison, a four-year term of supervised release, and a fine of $150.

3 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,

(1990); Coolidge v. New Hampshire,

(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,

(5th Cir. 1988); United States v. Herrera,

(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

(1978); United States v. Wake,

(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,

(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,

(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,

(5th Cir. 1989). "Actual possession is defined as

knowingly having direct physical control over a thing at a given

time."

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,

(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,

(5th Cir. 1982). There

6 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,

(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

(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,

(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."

It requires "evidence

that the firearm was available to provide protection to the

defendant in connection with his engagement in drug trafficking."

(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

1 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,

7 IV.

Ivy moved before trial for the return of the approximately

$75,000 in cash seized from him. Pursuant to United States v.

Monsanto,

(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,

(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.

8 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,

(5th Cir. 1985).

Those circumstances are not present here. See

(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.

. 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,

(5th

Cir. 1991). Finally, we find no merit in Ivy's argument concerning

a constructive amendment to his indictment.

AFFIRMED.

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