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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-5303
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL KELLEY,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(91-CR-60059-03)
June 29, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Michael Kelley appeals his jury conviction
for a firearms violation in relation to a drug-trafficking crime,
as proscribed in 18 U.S.C. § 924(c)(1) and (2). Kelley alleges a

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number of errors, including constitutional problems with the Ex
Post Facto Clause of the United States Constitution and the search
and seizure provision of the Fourth Amendment, as well as several
problematic jury instructions. Finding no reversible error, we
affirm Kelley's conviction and sentence.
I
FACTS AND PROCEEDINGS
In a superseding indictment, Kelley was charged with using and
carrying a firearm in relation to a drug-trafficking crime. The
predicate offense for the firearms conviction was unlawful
conspiracy to possess with intent to distribute approximately 289
marihuana plants, a violation of 21 U.S.C. §§ 841(a)(1) and 846.
Kelley filed a motion to dismiss the indictment, alleging that
it violated the Ex Post Facto Clause of the Constitution by
charging him with conduct that was not made illegal until after the
time of the offense. The magistrate judge recommended denying
Kelley's motion to dismiss the indictment, and the district court
adopted this recommendation.
Kelley also filed a motion to suppress evidence of the
marihuana plants discovered during the execution of a search
warrant. Kelley's position was grounded in the fact that the
plants were located on property not described in the affidavit used
to obtain the search warrant. Following a lengthy hearing on the
motion, the magistrate judge recommended that the motion be denied.
The district court adopted this recommendation as well, denying the
motion.

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Kelley was convicted by the jury. Following sentencing, he
timely appealed.
II
ANALYSIS
A. Ex Post Facto
Kelley argues that the district court erred by denying his
motion to dismiss the superseding indictment on ex post facto
grounds. He argues that, even though § 924(c)(2) now defines "drug
trafficking crime" as any felony punishable under the Controlled
Substances Act, the law in effect at the time of the offense
defined that term as the distribution, manufacture, or importation
of a controlled substance. He insists that when the offense
occurred possession with the intent to distribute was not the
equivalent of the distribution, manufacture, or importation of a
controlled substance; therefore, he asserts, he was charged with
conduct that was not made illegal until after his arrest. Kelley's
contention fails.
Possession with the intent to distribute marihuana was a "drug
trafficking crime" within the meaning of § 924(c) as it existed
prior to its 1988 amendment. See United States v. Coburn, 876 F.2d
372, 375-76 (5th Cir. 1989). Thus, Kelley was charged with conduct
that was illegal at the time of the offense. Consequently, the
indictment did not violate the ex post facto proscriptions of the
Constitution.
B. Suppression of Evidence
Kelley also argues that all of the physical evidence seized

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pursuant to the warrant, but from areas outside the boundaries of
the tract described in the affidavit and warrant, should have been
suppressed. The search warrant authorized a search of
approximately eight acres of property belonging to Kelley's co-
conspirator, Clifton Carrier. The government acknowledges that the
marihuana plants were not actually growing on Carrier's property,
but on neighboring property.
The affidavit in support of the warrant was executed by Deputy
Sheriff John Beard. In his affidavit he averred that he observed
a patch of marihuana plants growing on what he believed was
Carrier's property. After observing the demeanor of the deputy,
the magistrate judge was convinced that the deputy had made a good
faith error regarding the dimensions of the property when he filed
for the search warrant. The magistrate judge concluded that Deputy
Beard's mistake regarding the old fence line was plausible because
the boundary of Carrier's property actually runs along the old
fence line on three sides. She also concluded that Beard's fear of
alerting the defendants was a plausible reason for not
investigating the property more closely to verify its description.
Finally, the magistrate judge noted, sua sponte, that the place
where the marihuana plants were growing constituted "open fields,"
exempting the seizure of the plants from the aegis of the Fourth
Amendment.
In reviewing a district court's suppression ruling grounded on
live testimony adduced at a suppression hearing, we accept the
court's factual findings unless they are clearly erroneous or

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influenced by an incorrect view of the law. United States v.
Gallo, 927 F.2d 815, 819 (5th Cir. 1991). We review the district
court's legal conclusions de novo. Id.
1. Good Faith Exception
In United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct.
3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that evidence
obtained by law enforcement officials acting in good-faith reliance
on a search warrant is admissible even though the affidavit on the
basis of which the warrant was issued was insufficient to establish
probable cause. The court noted four circumstances in which the
good-faith exception would not apply: 1) when a magistrate judge
is misled by information known by the affiant to be false or the
falsity of which would have been known to the affiant but for his
recklessness; 2) when the magistrate judge abandons his duties;
3) when the affidavit is so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable;
and 4) when the warrant is so facially deficient that a presumption
of its validity is unreasonable. Id. at 923; United States v.
Webb, 950 F.2d 226, 229 (5th Cir.), cert. denied, 112 S.Ct. 2316
(1992). If the good-faith exception is found to apply, we need not
reach the question whether probable cause existed to issue the
warrant. United States v. Kleinebreil, 966 F.2d 945, 966 (5th Cir.
1992).
At the suppression hearing, the engineer who surveyed the
property for the district attorney's office testified that there
were two fence lines in the area, one old and the other new.

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Deputy Beard testified that he thought that all of the property
contained within the old fence line was Carrier's. He applied for
the search warrant after he found a patch of marihuana growing
within the old fence line.
Kelley argues that the issue should not be analyzed as
involving the good-faith exception, but rather as though the search
had been executed in the complete absence of a warrant. We have,
however, applied the good-faith exception in a case similar to the
present one. See United States v. Gordon, 901 F.2d 48, 50
(5th Cir.), cert. denied, 498 U.S. 981 (1990). In Gordon, the
officer used an invalid address but searched the location intended
to be searched--a residence the affiant had seen while in the
company of an undercover officer. In the instant case, the search
warrant misstated the dimensions of the property to be searched;
however, Beard obviously intended that the warrant encompass the
area where the plants were located and that is the area that in
fact was searched. The district court's findings were not clearly
erroneous, and they support the conclusion that the good-faith
exception applies.
2. Open Fields Exception
The magistrate judge alternatively concluded that the area of
the search could be classified as an "open field." Such areas are
not entitled to the protection of the Fourth Amendment. The rule
is well settled that when an area is properly classified as an open
field, governmental intrusion does not implicate the Fourth
Amendment. See United States v. Eastland, 989 F.2d 760, 764-65

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(5th Cir. 1993). Deputy Beard testified that the area he searched
was rural and densely wooded, clearly one kind of property that
meets the open field definition. Density of the cover is
irrelevant.
The evidence was properly admitted under either the good-faith
exception or the open fields exception to the warrant requirement.
C. Possession of Marihuana as a "Drug Trafficking Crime"
In discussing the elements of the offense, the district court
instructed that "possession of marihuana with intent to distribute
is a drug trafficking crime." Kelley contends that the district
court's instruction was in error for the same reasons that he
advanced in his ex post facto argument. He claims that possession
with the intent to distribute marihuana was not a "drug trafficking
crime" at the time of the offense, making the court's instruction
erroneous.
The government counters that Kelley failed to object to the
jury instruction; therefore, the district court's instruction
should be upheld unless it amounts to plain error. But we find
that Kelley did object "to the language that deals with possession
with intent to distribute marihuana as not be included in the
definition of drug trafficking crime as it existed in August of
1988."
When reviewing the propriety of a jury instruction, we
determine whether the charge as a whole is a correct statement of
the law and whether it clearly instructs the jurors regarding the
principles of law applicable to the factual issues before them.

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United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990). As long
as the jury charge accurately reflects the law and the facts of the
case, the district court is vested with broad discretion in
formulating the charge, and we will not lightly disturb its
exercise of that discretion. United States v. Casto, 889 F.2d 562,
566 (5th Cir. 1989), cert. denied,. 493 U.S. 1092 (1990).
As discussed previously, possession with the intent to
distribute marihuana was a drug-trafficking crime within the
meaning of § 924(c) as it existed at the time of the offense. See
Coburn, 876 F.2d at 375-76. Thus, the district court's instruction
was a correct statement of the law and Kelley's argument is without
merit.
D. Definition of Conspiracy
Kelley insists that the district court's jury instruction was
erroneous because it expanded the definition of "conspiracy" beyond
that charged in the indictment. He urges that the indictment
charged him with conspiracy to possess with the intent to
distribute under 21 U.S.C. §§ 841 and 846, but the district court
gave the definition of conspiracy appearing under 18 U.S.C. § 371,
which defines a conspiracy concerning "any offense against the
United States." Kelley did not object to this jury instruction in
the district court; therefore, the instruction is reviewed for
plain error. See United States v. Arky, 938 F.2d 579, 582
(5th Cir. 1991), cert. denied, 112 S.Ct. 1268 (1992). To meet this
standard, Kelley must show that the omitted or erroneous
instruction was more than reversible error; he must show that it

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produced a grave miscarriage of justice. Id.
The district court charged the jury that:
Title 18 of the United States Code
Section 371 makes it a crime for anyone to
conspire with someone else to commit an
offense against the law of the United States.
In this case, Michael Kelley and others are
charged with the unlawful use and carrying of
a firearm while committing a drug trafficking
crime.
A conspiracy is an agreement between two
or more persons to join together to accomplish
some unlawful person [sic]. . . . For you to
find the defendant guilty of this crime, you
must be convinced that the government has
proved each of the following beyond a
reasonable doubt: First, that two or more
persons made an agreement to commit the crime
of drug trafficking as charged in the
indictment; second, that the defendant knew
the unlawful purpose of the agreement and
joined in it willfully, that is with the
intent to further the unlawful purpose.
Although the court used a definition of conspiracy that
applies to "any offense against the United States," the context of
the statement makes it clear that the court accurately charged the
jury that the conspiracy was related to the drug-trafficking
offense. Given the numerous occasions in which the court referred
to the drug trafficking offense, there is no realistic possibility
that the jury could have misconstrued the district court's
statement.
E. Wrong Statute Number
Kelley also complains that the district court's jury
instructions were erroneous because the court cited the wrong
statute number in giving the conspiracy instructions. The court
stated that "[t]itle 21 of the United States Code, Section

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834(a)(1) makes it a crime for anyone knowingly or intentionally to
possess a controlled dangerous substance with the intention to
distribute it." As correctly noted by Kelley, 21 U.S.C.
§ 834(a)(1) does not exist.
Kelley does not suggest how the court's clerical error might
have affected the jury's verdict; neither is it evident that it did
so. Although the district court cited the wrong statute number,
the court's language substantially tracks 21 U.S.C. § 841, the
statute under which Kelley was indicted. We are satisfied that the
district court's error did not affect the instruction of the
elements of the offense. Therefore, the mistake made in giving the
incorrect statute number was totally harmless. See United States
v. Laury, 985 F.2d 1293, 1300 (5th Cir. 1993).
Kelley also suggests that the instruction containing the
incorrect statute number resulted in a constructive amendment of
the indictment. He argues that he has a substantial right to have
the jury instructed solely on the charges contained in the
indictment. He also argues that a jury instruction which allows a
defendant to be convicted of a crime not charged in the indictment
amounts to plain error.
A constructive amendment "occurs when the jury is permitted to
convict the defendant upon a factual basis that effectively
modifies an essential element of the offense charged." United
States v. Baytank, 934 F.2d 599, 606 (5th Cir. 1991) (internal
quotation and citations omitted). When, as here, no objection is
made, review is limited to plain error. Id. "[I]t is plain error

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to give instructions that permit a jury to convict for a crime not
charged in the indictment because a court may not substantially
amend an indictment through its jury instruction." Id.
In the instant case, the questioned instruction does not
constructively amend the indictment. The trial court instructed
the jury that, in order to convict Kelley, it must find, among
other things, that "two or more persons made an agreement to commit
the crime of drug trafficking as charged in the indictment[.]"
Thus, the jurors needed to conclude that Kelley conspired to
possess and distribute marihuana if they were to convict him. The
instruction defining a general conspiracy did not alter an
essential element of the offense charged and did not broaden the
possible basis for conviction.
F. Knowledge of Presence of the Firearm
Finally, Kelley argues that the district court improperly
instructed the jury that he need not have knowledge that the co-
conspirators had possession of the gun in order to find him guilty
under § 924(c)(2). He argues that the instruction impermissibly
shifted the burden to him to prove that he did not have knowledge
of the guns, thereby intruding on the jury's deliberation process.
Even a defendant who does not know that his co-conspirator
possessed a weapon during a drug trafficking offense may be
convicted under § 924(c)(2) if the government shows that the
defendant was a member of the conspiracy and that the co-
conspirator carried the weapon in furtherance of the conspiracy.
See United States v. Raborn, 872 F.2d 589, 595-96 (5th Cir. 1989).

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The cases cited by Kelley as requiring knowledge as a prerequisite
to convict a defendant under § 924(c)(2) are inapposite. They do
not involve the offense of conspiracy, which allows a defendant to
be held responsible for acts committed in furtherance of the
conspiracy. Because the jury instruction adequately explained the
law as applicable to the facts, the jury instruction was not
erroneous.
III
CONCLUSION
We find no merit in Kelley's assignments of error or in his
arguments proffered in support of them. For the foregoing reasons,
Kelley's conviction and sentence are
AFFIRMED.

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