                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-4195
                                     _____________

                            UNITED STATES OF AMERICA

                                               v.

                              ANSELMO JESUS RIVERA,
                                                  Appellant
                                  _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 5-10-cr-00632-001)
                         District Judge: Hon. Gene E.K. Pratter
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 23, 2013

            Before: SLOVITER, JORDAN and NYGAARD, Circuit Judges.

                                  (Filed: April 26, 2013)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Anselmo Jesus Rivera appeals the judgment of conviction entered against him by

the United States District Court for the Eastern District of Pennsylvania for possession of

cocaine base (“crack”) with intent to distribute and for possession of a firearm by a felon.

For the reasons that follow, we will affirm.
I.     Background

       In September 2008, members of the Drug Enforcement Task Force of Lancaster

County, Pennsylvania began investigating suspected drug trafficking at 613 N. Plum

Street in Lancaster. Task force detectives surveilling that address saw a high level of foot

traffic to and from a first floor apartment identified as “Apartment A,” and they watched

Rivera enter and leave the apartment on many occasions. Under the direction of one of

the detectives, a confidential informant made two controlled purchases of cocaine from

Rivera at Apartment A in September and October 2008.

       On October 17, 2008, the task force detectives obtained a state search warrant for

Apartment A. To get the warrant, a detective submitted an affidavit stating that both the

confidential informant who had completed the controlled drug purchases and a second

informant had said that a man identified as Rivera was selling cocaine from the

apartment. The detectives executed the warrant that evening. Shortly after 8:00 p.m.,

they saw Rivera enter the apartment, and they then went to the apartment door and

knocked. They heard someone inside approach the door but then, without opening it, run

to the rear of the apartment. A detective pounded on the door and announced that they

were police executing a search warrant. When there was no response, the detectives used

a key they had obtained from the landlord to enter the apartment. As they approached the

rear of the apartment, Rivera darted out of a bathroom. A detective told him to get down

on the ground and, when Rivera did not comply, the detective took him into custody.

The detectives then entered the bathroom and recovered two bags of what appeared to be

crack (one of which had been thrown in the toilet), digital gram scales (one of which was

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switched on), and plastic sandwich bags. They searched the rest of the apartment and

recovered a plastic bag later found to contain 157 grams of crack, a loaded 9mm Taurus

handgun and a loaded magazine, additional scales and drug packaging supplies, and a

police scanner.

       On September 28, 2010, a federal grand jury returned an indictment charging

Rivera with one count of possession of 50 or more grams of crack with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) (Count 1); one count of possession of 50

or more grams of crack with intent to distribute within 1,000 feet of a school,1 in

violation of 21 U.S.C. § 860 (Count 2); one count of possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 3); and

one count of possession of a firearm and ammunition by a felon, in violation of 18 U.S.C.

§ 922(g)(1) (Count 4).

       Before trial, Rivera filed motions seeking (1) to test, via a Franks hearing,2 the

veracity of the affidavit used to obtain the search warrant, (2) to suppress physical

evidence and statements, and (3) to compel disclosure of the identities of confidential

informants whose information was used to obtain the search warrant. The District Court

denied his motions for a Franks hearing and for disclosure of the identities of the


       1
        The property at 613 N. Plum Street is 320 feet from a secondary school operated
by the Lancaster School District.
       2
         The Fourth Amendment entitles a criminal defendant to an evidentiary hearing
when he “makes a substantial preliminary showing that a false statement ... was included
by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to
the finding of probable cause ... .” Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

                                              3
confidential informants, and, after an evidentiary hearing on the motion to suppress,

denied that motion as well.

       Rivera‟s trial began on July 5, 2011, with consideration of Count 4 bifurcated

from the trial on the other counts. Ultimately, he was convicted on all counts. The

District Court sentenced him to 186 months‟ imprisonment, followed by 8 years‟

supervised release, a $1,500 fine, and a $300 special assessment. Judgment was entered

on November 17, 2001, and Rivera filed a notice of appeal that same day. 3

II.    Discussion4

       Rivera raises four arguments before us. First, he claims that the District Court

erred when it denied his motion to suppress the evidence that the task force detectives


       3
         We appointed counsel to represent Rivera in this appeal, but that counsel filed a
motion to withdraw on the ground that Rivera wished to proceed pro se. Rivera filed a
waiver of counsel, and we granted counsel‟s motion to withdraw. Rivera subsequently
filed a pro se brief.
       4
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court‟s denial of a motion
to suppress “for clear error as to the underlying factual findings,” and we “exercise[]
plenary review of [the court‟s] application of the law to those facts.” United States v.
Perez, 280 F.3d 318, 336 (3d Cir. 2002). We review a district court‟s denial of a request
for a Franks hearing for abuse of discretion. See United States v. Brown, 3 F.3d 673, 680
n.7 (3d Cir. 1993) (noting that a district court‟s determination as to whether a criminal
defendant has made a “Franks showing” is “reversible for abuse of discretion”).
Likewise, “[w]e review the district court‟s decision not to order disclosure of an
informant‟s identity for abuse of discretion.” Id. at 679. Lastly, “[w]e apply a
particularly deferential standard of review to challenges to the sufficiency of the evidence
supporting conviction.” United States v. Powell, 693 F.3d 398, 401 n.6 (3d Cir. 2012)
(internal quotation marks omitted). “We view all evidence in the light most favorable to
the government, and sustain conviction as long as any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. (internal
quotation marks omitted).

                                             4
found when they executed the search warrant. Second, he says that the Court abused its

discretion when it denied his request for a Franks hearing. Third, he argues that the

Court abused its discretion when it denied his request for the disclosure of the identities

of the confidential informants who provided information that was the basis of the search

warrant. Fourth and finally, he asserts that the evidence was not sufficient to support his

conviction. Each argument is wanting.5

       A.     Motion to Suppress

       Rivera first argues that the District Court should have suppressed evidence found

during the execution of the search warrant. He contends that “[t]he search warrant

affidavit in this case was based largely on the uncorroborated information of an untested,

unreliable confidential informant.” (Supplemental App. at 376.)

       The Fourth Amendment requires that a search warrant be supported by probable

cause, and “[e]vidence seized pursuant to a search warrant that is not so supported may

be suppressed.” United States v. Vosburgh, 602 F.3d 512, 525 (3d Cir. 2010). The

applicable standards for issuing and reviewing a search warrant were set forth in Illinois

v. Gates, 462 U.S. 213 (1983). “The task of the issuing magistrate is simply to make a

       5
          Rivera also argues for the first time in this appeal that one of the detectives
testified falsely before the grand jury, and that the indictment was therefore defective.
That claim was not raised in a pretrial motion, and is therefore waived. See Fed. R. Crim.
P. 12(b)(3)(B) (requiring that a motion alleging a defect in the indictment be made by
motion before trial). Cf. United States v. Pitt, 193 F.3d 751, 760 (3d Cir. 1999) (holding
that a claim that the institution of prosecution was defective not raised in a pretrial
motion is waived). In addition, Rivera suggests that he suffered from ineffective
assistance of counsel. We ordinarily do not review ineffective assistance claims on direct
appeal, but instead defer the issue until collateral review, if that is sought. United States
v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). We therefore, at present, decline to
consider Rivera‟s ineffective assistance claim.
                                              5
practical, common-sense decision whether, given all the circumstances set forth in the

affidavit before him, ... there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Id. at 238. “[T]he duty of a reviewing court is

simply to ensure that the magistrate had a substantial basis ... for conclud[ing] that

probable cause existed.” Id. at 238-39 (alterations in original) (internal quotation marks

omitted). “To determine this, a court must consider the „totality of the circumstances,‟

and need not conclude that it was „more likely than not‟ that the evidence sought was at

the place described.” United States v. Bond, 581 F.3d 128, 139 (3d Cir. 2009) (citations

omitted), rev’d on other grounds by Bond v. United States, 131 S. Ct. 2355 (2011).

“[D]irect evidence linking the place to be searched to the crime is not required for the

issuance of a search warrant.” United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001)

(alteration in original) (internal quotation marks omitted).

       The search warrant in this case was amply supported by probable cause. As set

forth in the affidavit, both confidential informants stated that they had purchased cocaine

from Rivera at the apartment, and the two controlled buys from Rivera completed under

the supervision of the task force provided additional corroboration. See United States v.

Stearn, 597 F.3d 540, 556 (3d Cir. 2010) (finding probable cause when informant‟s tip

was corroborated by his subsequent controlled buy). Also, the detectives had conducted

extensive surveillance of Apartment A and had observed comings and goings consistent

with a location where drugs were being sold. See Gates, 462 U.S. at 243 n.13 (noting

that “seemingly innocent activity [might] bec[o]me suspicious in the light of the initial

tip” (internal quotation marks omitted)). Lastly, the detectives had observed Rivera often

                                              6
entering and exiting the premises, and they had previously verified that he had a history

of trafficking in cocaine. Therefore, Rivera‟s contention that the search warrant was not

properly supported by probable cause is without merit, and there was no error in the

District Court‟s decision to deny the suppression motion.

       B.      Denial of Request for a Franks Hearing

       Rivera next argues that the District Court abused its discretion when it denied his

request for a Franks hearing. In seeking that hearing, Rivera claimed that the detective

who provided the search warrant affidavit “should have entertained serious doubts as to

the truth” of the information provided by the confidential informants (Supplemental App.

at 389), and that the detective would “not be able to produce the informants who are

alleged to have provided the information,” (id. at 390).

       In Franks v. Delaware, the Supreme Court held that the Fourth Amendment

requires an evidentiary hearing to be held at the defendant‟s request when a “defendant

makes a substantial preliminary showing that a false statement ... was included by the

affiant in the warrant affidavit, and if the allegedly false statement is necessary to the

finding of probable cause... .” 438 U.S. 154, 155-56 (1978). “It is well-established that a

substantial showing of the informant’s untruthfulness is not sufficient to warrant a Franks

hearing.” United States v. Brown, 3 F.3d 673, 677 (3d Cir. 1993). “[A] substantial

preliminary showing of intentional or reckless falsity on the part of the affiant must be

made in order for the defendant to have a right to an evidentiary hearing on the affiant‟s

veracity.” Id. To make the preliminary showing required for a Franks hearing, the

defendant must show intentional or reckless falsity on the part of the affiant, id., and

                                              7
“cannot rest on mere conclusory allegations ... but rather must present an offer of proof

contradicting the affidavit, including materials such as sworn affidavits or otherwise

reliable statements of witnesses,” United States v. Yusuf, 461 F.3d 374, 383 n.8 (3d Cir.

2006).

         Rivera has failed to make such a showing. As with his motion to suppress, he

simply questions the veracity of the information provided by the confidential informants,

and he offers only conclusory allegations as to what the affiant should have believed

based on that information. Even if the information provided by the informants was

unreliable, Rivera has offered no evidence that the detective who provided the affidavit

either knew that the information was not true or recklessly disregarded its falsity. See

Brown, 3 F.3d at 677 (noting that “it [is] not enough to show simply that the informant

may have lied”); United States v. Perdomo, 800 F.2d 916, 921 (9th Cir. 1986) (affirming

denial of a Franks hearing where proof offered reflected only on veracity of informant

and not on veracity of affiant). Rivera was therefore not entitled to a Franks hearing, and

the District Court did not abuse its discretion in denying him one.

         C.     Denial of Request to Disclose Confidential Informants

         Rivera next argues that the District Court erred when it refused to order the

disclosure of the identities of the two confidential informants. He basically repeats, as he

argued in the District Court, that “information concerning the confidential informants‟

identities[,] ... sources of information[,] and motives behind their cooperation with law

enforcement authorities [was] needed in order to mount a sufficient defense in this case.”

(Supplemental App. at 408.)

                                               8
       “What is usually referred to as the informer‟s privilege is in reality the

Government‟s privilege to withhold from disclosure the identity of persons who furnish

information of violations of law to officers charged with enforcement of that law.”

Roviaro v. United States, 353 U.S. 53, 59 (1957). “The scope of the privilege is limited

by its underlying purpose,” id. at 60, which is “the furtherance and protection of the

public interest in effective law enforcement,” id. at 59. The Government may be required

to disclose an informant‟s identity when “(1) the [informant‟s] possible testimony was

highly relevant; (2) it might have disclosed an entrapment; (3) it might have thrown doubt

upon the defendant‟s identity; and (4) the informer was the sole participant other than the

accused, in the transaction charged.” United States v. Jiles, 658 F.2d 194, 198-99 (3d

Cir. 1981) (citing McCray v. Illinois, 386 U.S. 300, 310-11 (1967); Roviaro, 353 U.S. at

63-65). But “[w]here an informant‟s role was in validating a search, disclosure of his

identity is not required.” United States v. Bazzano, 712 F.2d 826, 839 (3d Cir. 1983) (en

banc) (citing McCray, 386 U.S. at 304).

       In this case, the Government was not required to disclose the identities of the two

confidential informants. Rivera has not shown that the informants‟ testimony was needed

for any of the purposes that we recognized in Jiles. He simply asserts that it was needed

for his defense and speculates that the informant who completed the controlled buys

would admit that the seller had not been Rivera. “[M]ere speculation as to the usefulness

of the informant‟s testimony to the defendant is insufficient to justify disclosure of his

identity.” Id. (alteration in original) (internal quotation marks omitted). Because the

record suggests that the informants‟ roles were limited to validating the search, which is

                                              9
not a sufficient purpose to compel disclosure of their identity, id., the District Court did

not abuse its discretion when it declined to compel the disclosure.

       D.      Sufficiency of the Evidence

       Finally, Rivera contends that the evidence was not sufficient for a jury to convict

him of possession of either the crack or the gun seized from the apartment. He argues

that he was convicted based on his “mere presence” and that there was “no physical

evidence on the gun[,] no fingerprints, nothing linking [him] to the drugs or guns.”

(Appellant‟s Br. at 4.)

       “[A] claim of insufficiency of the evidence places a very heavy burden on an

appellant.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal quotation

marks omitted). In reviewing a sufficiency of evidence claim, “we examine the totality

of the evidence, both direct and circumstantial, and interpret the evidence in the light

most favorable to the government as the verdict winner.” United States v. Pavulak, 700

F.3d 651, 668 (3d Cir. 2012) (internal quotation marks omitted). “If all the pieces of

evidence, taken together, make a strong enough case to let a jury find [the defendant]

guilty beyond a reasonable doubt, then we must uphold the jury‟s verdict.” Id. (alteration

in original) (internal quotation marks omitted).

       The Government is not required to prove actual possession for purposes of §§

922(g) and 924(c), but may instead prove “constructive possession.” See Brown, 3 F.3d

at 680 (government entitled to prove constructive possession rather than actual

possession of drugs found in defendant‟s home). “Constructive possession exists if an

individual knowingly has both the power and the intention at a given time to exercise

                                              10
dominion or control over a thing, either directly or through another person or persons.”

United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992) (internal quotation marks

omitted). “The kind of evidence that can establish dominion and control includes ...

evidence that the defendant attempted to hide or to destroy the contraband ... .” United

States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996). For purposes of § 924(c), however,

“the mere presence of a gun is not enough. What is instead required is evidence more

specific to the particular defendant, showing that his or her possession actually furthered

the drug trafficking offense.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004)

(quoting United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th Cir. 2000) (internal

quotation marks omitted)). In making that determination, factors that are relevant include

“the type of drug activity that is being conducted, accessibility of the firearm, the type of

the weapon, ... whether the gun is loaded, proximity to drugs or drug profits, and the time

and circumstances under which the gun is found.” Id. (quoting Ceballos-Torres, 218

F.3d at 414-15) (internal quotation marks omitted).

       Drawing all inferences in favor of the government, the evidence at trial was

certainly sufficient to support the jury‟s verdict that Rivera was in possession of both the

crack and the gun, and that possession of the gun was in furtherance of his drug

trafficking activities. That evidence included the fact that, immediately after Rivera

hastily exited the bathroom, the detectives found in it two bags of crack, one of which

had been thrown in the toilet, and that they found a large bag of crack hidden in a

clothing bin underneath a shirt that was identified as belonging to Rivera. The logical

inference from those facts was that Rivera had attempted to hide or dispose of the drugs,

                                             11
suggesting possession. In addition, the gun was a loaded semi-automatic weapon found

in the apartment together with a large quantity of drugs and drug processing supplies.

That, together with the large amount of cash found on Rivera‟s person, suggests that the

gun was used to protect both the drugs and cash proceeds from sales. The fact that the

gun itself was not on Rivera‟s person is not dispositive. See Sparrow, 371 F.3d at 853

(finding that a firearm concealed under floor tiles was accessible, and noting that

“immediate accessibility at the time of search or arrest is not a legal requirement for a §

924(c) conviction”). Based on all of the evidence, we cannot say that no reasonable jury

could have returned a judgment of conviction, and we will not disturb the jury‟s verdict.

III.   Conclusion

       For the reasons stated, we will affirm the judgment of the District Court.




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