United States v. Combs

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 4, 2004
• Docket: 01-5997
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Combs No. 01-5997 ELECTRONIC CITATION: 2004 FED App. 0167P (6th Cir.) File Name: 04a0167p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT COOK, Circuit Judge. Defendant-Appellant, Leon Combs, _________________ appeals his conviction on two counts of trafficking drugs with the involvement of a firearm and two counts of possession UNITED STATES OF AMERICA , X and distribution of drugs. We reverse Combs’s conviction on Plaintiff-Appellee, - Count III, finding the indictment insufficient as failing to - charge him with a criminal offense. As to his indictment on - No. 01-5997 Count IV, we find it to have been impermissibly amended and v. - thus also reverse his conviction on Count IV. We affirm > Combs’s conviction on the remaining counts. , LEON COMBS , - Defendant-Appellant. - On January 25, 2001, a grand jury returned a five-count indictment against Combs. A jury then convicted Combs of N Counts I through IV of the indictment. Count I charged a Appeal from the United States District Court violation of 21 U.S.C. § 841(a)(1) and alleged that Combs for the Eastern District of Kentucky at Pikeville. possessed and distributed OxyContin, a schedule II controlled No. 01-00017—Joseph M. Hood, District Judge. substance. This Count concerned a November 14, 2000 incident where Joyce Eversole, a cooperating witness, made Submitted: September 19, 2003 a controlled buy of 25 OxyContin pills from Combs. On that date, the police gave Eversole $1000 in “buy” money and Decided and Filed: June 4, 2004 drove her to a meeting with Combs. Once there, Eversole entered Combs’s car and rode a short distance with him. Before: SILER, BATCHELDER, and COOK, Circuit Combs then exited the car and told Eversole that he was Judges. going to meet a man who would supply him with the pills. When Combs returned, he sold the pills to Eversole. Eversole _________________ turned the pills over to the police. COUNSEL Count IV alleged a violation of 18 U.S.C. § 924(c) and provided that Combs “in furtherance of a drug trafficking ON BRIEF: Keely J. O’Bryan, John T. Sunderland, crime . . . did unlawfully possess firearms. . . .” This Count THOMPSON HINE, Columbus, Ohio, for Appellant. Charles stems from an incident in late 2000 or early 2001 when Josh P. Wisdom, Jr., ASSISTANT UNITED STATES Miller traded three of his father’s rifles with Combs for drugs. ATTORNEY, Lexington, Kentucky, for Appellee. Leon Miller told the police about these and other trades of guns for Combs, Manchester, Kentucky, pro se. drugs and said that many of these transactions took place at Combs’s residence. After learning about these trades, the

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police obtained a warrant to search the residence. During the 18 U.S.C. § 924(c) (emphasis added). search, the police recovered the guns that Miller traded for the drugs. In an earlier § 924(c) case this court declined to decide whether this statute sets forth two separate offenses or simply During the search of the residence, officers observed specifies alternative means for committing the same offense. Combs dropping an object down the front of his pants. Upon See United States v. Davis, 306 F.3d 398, 416 (6th Cir. 2002) searching Combs, the police found that he was carrying a (assuming, without deciding, that the statute sets forth loaded .22 caliber pistol and many OxyContin and Dialudid separate offenses). In at least one case, however, we treated pills. This discovery led to Count II, alleging a violation of the two prongs of this statute as constituting two distinct 21 U.S.C. § 841(a)(1) and charging Combs with possession offenses. United States v. Nance, 40 Fed. Appx. 59, 64–67 of schedule II drugs, OxyContin and Dialudid, with the intent (6th Cir. 2002) (unpublished).1 See also United States v. to distribute. Count III followed from the loaded pistol; the Lott, 310 F.3d 1231, 1246 (10th Cir. 2002);2 United States v. count alleged an additional violation of 18 U.S.C. § 924(c) Timmons, 283 F.3d 1246, 1250–53 (11th Cir. 2002) (also and provided that Combs “during and in relation to a drug treating the statute as setting forth two separate offenses). trafficking crime . . . did possess a . . . pistol . . .” at the time The statutory text, legislative history, and requisite proof of his search. argue for the Nance perspective that 18 U.S.C. § 924(c) criminalizes two separate offenses—(1) using or carrying a WHETHER 18 U.S.C. § 924(c) CRIMINALIZES TWO firearm during and in relation to a drug trafficking crime, and SEPARATE OFFENSES (2) possessing a firearm in furtherance of a drug trafficking crime. The issue of whether or not § 924(c) criminalizes two distinct offenses directs the outcome of Combs’s primary challenges to his conviction. Counts III and IV of Combs’s indictment (firearms charges) purport to set forth violations 1 In Nance, defendant challenged the denial of his motion for acquittal of 18 U.S.C. § 924(c). To clarify the ensuing analysis of on a charge for violation of 18 U.S.C. § 924(c). This court examined Combs’s challenge, we first dissect the statute, labeling the whether a rational finder of fact could conclude either that defendant two allegedly distinct offenses: carried a firearm during and in relation to drug trafficking or that defendant possessed a firearm in furtherance of drug trafficking. The analysis defined the elements of each offense separately and concluded . . . [A]ny person who, during and in relation to any that, under the facts presented, the finder of fact could not have convicted crime of violence or drug trafficking crime . . . for which unde r either p rong of the statute. Nance, 40 F ed. A ppx . at 64– 67. the person may be prosecuted in a court of the United 2 States, uses or carries a firearm, (“use” offense) In Lott, defendant’s indictment charged that he “knowingly carried and possessed a firearm during and in relation to and in furtherance o f a or drug trafficking offense” in violation of 18 U.S.C. § 924(c). Defendant challenged the district court’s denial of a motion for a cquittal. Similar to who, in furtherance of any such crime, possesses a our analysis in Nance, the Tenth Circuit held that the indictment contained two distinct offenses for which the jury could have found the defendant firearm, shall, in addition to the punishment for such guilty. The court then examined the evidence and held that, under either crime of violence or drug trafficking crime [receive an the “carrying a weapon during and in relation to” or the “possession of a additional penalty]. (“possession” offense) weapon in furtherance of” prong of the statute, there was sufficient evidence to convict defendant on this charg e. Lott, 310 F.3d at 1246–48. No. 01-5997 United States v. Combs 5 6 United States v. Combs No. 01-5997

Statutory Text modifiers for the prohibited conduct confirm that the second prohibited act is quite distinct from the first. In The text of 18 U.S.C. § 924(c) belies the view that the the first clause, the use or carriage of the firearm must be statute simply identifies alternative means for committing a “during and in relation to” the predicate crime, while, in single offense. The two prongs of the statute are separated by the second clause, the possession of the firearm must be the disjunctive “or,” which, according to the precepts of “in furtherance of such crime.” statutory construction, suggests the separate prongs must have different meanings. United States v. Hill, 79 F.3d 1477, 1483 Legislative History (6th Cir. 1996). See also Stevens v. Employer-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d 444, 452 (6th Congress enacted the current version of the statute in 1998 Cir. 1992) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339 in response to the Supreme Court’s decision in Bailey v. (1979)). United States, 516 U.S. 137 (1995). See United States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001). Bailey examined Moreover, the statutory language structures the prohibited an earlier version of this statute that prohibited only “using acts into distinct dependent clauses with different modifiers. or carrying a firearm during and in relation to” drug The district court in United States v. Pleasant, 125 F. Supp. trafficking. 18 U.S.C. § 924(c)(1) (1994). The Bailey Court 2d 173, 178 (E.D. Va. 2000), comprehensively analyzed the overruled several circuit court decisions upholding statutory structure as follows: convictions under the “use” provision of the prior statute without requiring proof that the firearm was somehow The subject of the sentence at issue is “any person.” The actively employed during the drug trafficking crime. Bailey, term “who” is a relative pronoun within the first 516 U.S. at 144. Bailey concluded that “use” of a firearm dependent clause. The prepositional phrase “during and must mean more than mere possession and requires some in relation to” modifies the relative pronoun; “uses or active employment of the firearm by a person who commits carries” are the compound verbs; and “firearm” is the a drug offense. Bailey, 516 U.S. at 143–44. direct object. Congress regarded the Bailey decision as an “implicit Rather than adding a second modifier to the first relative invitation to clarify the statute.” Violent and Drug pronoun, (i.e. “Any person who, during and relation to Trafficking Crime: The Effect of the Bailey Decision on any crime of violence or drug trafficking crime . . . , uses Prosecution Under Section 924(c) Before the Senate Comm. or carries a firearm, or in furtherance of any such crime, on the Judiciary, 104th Cong., 1st Sess. (statement of Thomas possesses a firearm”), the statute begins a second G. Hungar); see also 143 CONG . REC. S379-01 (daily ed. Jan. dependent clause with the second relative pronoun 21, 1997) (statement of Sen. Helms); United States v. Speight, “who.” This second pronoun is then modified by the 95 F. Supp. 2d 595, 598–99 (S.D. W. Va. 2000). Congress separate phrase “in furtherance of any such crime.” The considered several bills with differing language before verb in the second dependent clause is “possesses” and eventually adding the words “possess a firearm in furtherance the direct object is again a “firearm.” of the crime.” See United States v. Pleasant, 125 F. Supp. 2d 173, 180–81 (E.D. Va. 2000) (summarizing the differing The use of a second relative pronoun, the presence of a approaches of several bills and noting that Congress rejected second dependent clause and the choice of different proposed language that merely added possession to the list of No. 01-5997 United States v. Combs 7 8 United States v. Combs No. 01-5997

prohibited actions, without requiring that possession be “in possesses and conveys firearms in a vehicle, including in the furtherance of” the crime). locked glove compartment or trunk of a car. . . .” Id. at 126–27. See also United States v. Clemons, 9 Fed. Appx. The legislative history of the amendment bolsters the view 286, 290 (6th Cir. 2001) (unpublished). After Muscarello, that Congress intended “in furtherance of” to create a this court concluded that, to constitute a “carrying” offense, different standard of conduct than did the “during and in the firearm need not be immediately available for use and that relation to” language. From the House Committee Report we “the proper inquiry [in determining whether a firearm is being know that members regarded “in furtherance of” as a slightly ‘carried’] is physical transportation” of the firearm. Hilliard higher standard, encompassing the “during and in relation to” v. United States, 157 F.3d 444, 449 (6th Cir. 1998). language. H.R. REP. NO . 105-344, at 11 (1997). “The government must clearly show that a firearm was possessed The “during and in relation to” element requires that the to advance or promote the commission of the underlying firearm “furthered the purpose or effect of the crime and its offense.” Id. at 12. See also Mackey, 265 F.3d at 461. By its presence or involvement was not the result of coincidence.” adding possession as a prohibited act, and requiring a higher United States v. Warwick, 167 F.3d 965, 971 (6th Cir. 1999). standard of participation to charge a defendant with the act, See also Smith v. United States, 508 U.S. 223, 238 (1993). we understand Congress to have delineated a new offense within the same statute. b. Possession offense - “Possession . . . in furtherance of” Different Proof Required for Each Offense In Mackey, 265 F.3d at 461–62, we interpreted the “in Courts test the presence of separate offenses by asking if furtherance of” language as requiring a higher standard of each requires proof of an additional fact that the other does participation than the “during and in relation to” language, not. Davis, 306 F.3d at 415–16. This Circuit’s decisions holding that the government must show that the “firearm was require the government to present different proof to show possessed to advance or promote the commission of the “using or carrying a firearm during and in relation to” a drug underlying [drug trafficking] offense.” The Mackey court trafficking crime from that required to show “possession of a went on to require “a specific nexus between the gun and the firearm in furtherance of” a drug trafficking crime. crime charged.” Id. at 462. It opined that guns strategically located for quick and ease of use would demonstrate a. Use offense - “Using or carrying . . . during and in “possession in furtherance of.” Id. Mackey also listed some relation to” indicative factors for examining whether the possession was “in furtherance of” the crime, including: (1) whether the As discussed above, the Supreme Court interprets “use” of firearm was loaded; (2) the type of firearm; (3) whether the a firearm as “connot[ing] more than mere possession of a weapon was stolen or legitimately possessed; (4) the type of firearm” and requires some active employment of the firearm drug activity conducted; and (5) the time and circumstances by the person committing the drug offense. Bailey, 516 U.S. under which the gun was found. Id. at 143. And in Muscarello v. United States, 524 U.S. 125 (1998), the Supreme Court interpreted the statutory term The Fifth Circuit cogently set forth circumstances that “carry” to mean the firearm must be on the person or might violate the “during and in relation to” prong of the accompanying the person, as when “a person . . . knowingly statute, but not the “in furtherance of ” prong. No. 01-5997 United States v. Combs 9 10 United States v. Combs No. 01-5997

There are situations where a possession would be “during conviction, exposes the hopelessly “jumbled mess” that and in relation to” drug trafficking without “furthering or resulted. See Pleasant, 125 F. Supp. 2d at 183. advancing” that activity. For example, a drug buyer might steal a gun from his dealer’s house during a deal. Count III - Sufficiency of the Indictment The buyer’s possession would be during and in relation to drug trafficking, but the buyer’s possession would not We review the sufficiency of an indictment de novo. United advance that operation. As another example, if a buyer States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999) came to the seller’s home for a purchase and left a gun (citations omitted). When an indictment goes unchallenged there by mistake, the seller’s possession would be until appeal, it must be liberally construed in favor of its “during and in relation to” the trafficking without sufficiency. Id. Furthermore, unless the defendant can show furthering it. prejudice, a conviction will not be reversed when the indictment is first challenged on appeal unless the indictment United States v. Ceballos-Torres, 218 F.3d 409, 413 (5th Cir. cannot reasonably be construed to charge a crime. Id. 2000). Count III of Combs’s indictment charged him with In keeping with the view of the Nance court, we conclude “possess[ing] a firearm during and in relation to” a drug that “in furtherance of” differs from “during and in relation trafficking crime—utilizing one element from each of the two to” and requires the government to prove a defendant used the distinct § 924(c) offenses. Indicting Combs based on the firearm with greater participation in the commission of the conduct from the § 924(c) “possession” offense in crime or that the firearm’s presence in the vicinity of the conjunction with the standard of participation (during and in crime was something more than mere chance or coincidence. relation) from the other “use” offense results in a failure to Although the differences between the standards are “subtle”3 charge him with any codified federal crime. The court’s jury and “somewhat elusive,”4 they exist nonetheless. instructions for Count III tracked the indictment error, Considering all the foregoing, we confirm here that 18 U.S.C. likewise intermixing elements of the two different crimes. § 924(c) criminalizes two separate and distinct offenses. Then to further confuse matters, when the court defined the “during and in relation to” standard of participation, it DISTRICT COURT PROCEEDINGS employed a definition more akin to this circuit’s definition of “in furtherance of.” And, finally, the court journalized Both the government and the district court confused the Combs’s Count III conviction as a “use” offense, not the elements of the two offenses criminalized by 18 U.S.C. “possession” offense found in the flawed indictment. § 924(c) throughout Combs’s proceedings. Indeed, any attempt to unwind the mismatched elements of the statutory The government initially conceded error in this case and prongs in the indictment, the jury instructions, and the alleged that, due to the confessed errors, Combs was entitled to a new trial on the firearms violations because of the indictment’s failure to charge an offense in Count III. But some seven months after filing its original brief, the 3 government, with leave of court, filed a substitute brief H.R. R EP . N O . 105-344 , at 11 (1997). withdrawing its concession of error and instead arguing the 4 correctness and sufficiency of the indictment or, in the Ma ckey, 265 F.3d at 461. No. 01-5997 United States v. Combs 11 12 United States v. Combs No. 01-5997

alternative, urging resolution based on harmless error. The First: That on or about the date and place alleged in the government’s substitute brief argues the recognized indictment, the defendant, Leon Combs possessed a similarities between the “during and in relation to” and the “in firearm, (from the “possession” offense) and furtherance of” elements of § 924(c), citing our Mackey decision and the Tenth Circuit’s Avery decision. See Mackey, Second: That he did so during and in relation to (from 265 F.3d 461–62; United States v. Avery, 295 F.3d 1158, the “use” offense) a drug trafficking crime. 1174–75 (10th Cir.), cert. denied, 537 U.S. 1024 (2002). These similarities, coupled with the liberal standard an J.A. at 68 (emphasis added).5 And again, in its instructions appellate court must apply to post-verdict indictment on this Count, the court defined the requisite conduct for challenges, the government posits, allow the indictment for finding the “use” offense rather than the “possession” offense Count III to be reasonably construed as charging Combs with charged by this Count of the indictment by saying: “A person the “possession” offense. We disagree. Unlike Combs’s who trades a firearm for drugs uses the firearm during and in case, Mackey concerned the sufficiency of the evidence and relation to a drug trafficking offense.” J.A. at 68–69 requisite standard of proof necessary to support a possession (emphasis added).6 Plus, the pertinent “Judgment In a conviction under § 924(c), not the sufficiency of the Criminal Case” reflects Combs being convicted on Count IV indictment. The government’s reliance on Avery is similarly for the “use” offense as opposed to the “possession” offense misplaced for reasons unrelated to the sufficiency of the for which he was indicted. indictment, as will be discussed in conjunction with our analysis of Count IV. In its original brief, the government concluded that the district court’s incorrect jury instructions had constructively Because Combs’s indictment on Count III cannot be amended Count IV of the indictment. It recanted that position reasonably construed to have charged him with a crime under in its substitute brief and now urges that the jury instructions federal law, we reverse his conviction and remand to the did not constructively amend Count IV, nor Count III district court to dismiss the indictment for failure to charge an (assuming sufficiency of the Count III indictment). offense. A grand jury’s indictment protects three constitutional due Count IV - Amending the Indictment process rights, namely: the Sixth Amendment’s right to fair

Unlike Count III, Count IV of the indictment properly 5 charged a § 924(c) possession offense. The jury instructions, The jury instructions also improperly referred to Count II as the however, again cross-matched the conduct from the pred icate offense for this violation. T he district court corrected this “possession” offense with the standard of participation from misstatement later and properly instructed tha t the sale o f drugs in exchange for firearms to Josh Miller was the predicate offense for Count the wholly distinct “use” offense: IV.

There are two essential elements which must be proven 6 Combs argues that, by this lan guage, the district court imprope rly beyond a reasonable doubt in order to establish the defined “use,” citing United States v. Warwick, 167 F.3d 965 (6th Cir. offense proscribed by this law: 1999). Combs argues that passive receipt of a firearm in exchange for drugs does not constitute “use” of the firearm. However, because “use” was not at issue in this case and, due to our disposition of the other alleged errors, we need not reach this issue. No. 01-5997 United States v. Combs 13 14 United States v. Combs No. 01-5997

notice of the criminal charges against which one will need to Applying these precepts to Combs’s case, we conclude that defend; and the Fifth Amendment’s dual protections against an impermissible amendment of Count IV of the indictment twice placing a defendant in jeopardy for the same offense, occurred. Though indicted on a charge of unlawful and holding the defendant to answer for crimes not presented possession of a firearm under § 924(c), he was nevertheless to or indicted by a grand jury. United States v. Pandilidis, convicted of a different offense—unlawful use and carrying 524 F.2d 644, 648 (6th Cir. 1975). Accordingly, “the rule of a firearm. We categorize this as an indictment “literally preventing the amendment of an indictment should be applied altered” by the court, constituting per se prejudice to the in a way that will preserve these rights from invasion; where defendant. The jury instructions facilitated the amendment, these rights are not threatened, rules governing indictments first intermixing elements of both offenses, then providing a should not be applied in such a way as to defeat justice fairly supplemental explanation aligned with the unindicted “use” administered.” Id. offense, for which Combs was ultimately convicted, instead of the “possession” offense, for which he was originally This court recognizes two forms of modification to indicted. We reject the government’s argument that what indictments: amendments and variances. Amendments occur occurred was a variance, in the form of a constructive “when the charging terms of the indictment are altered, either amendment, that resulted in no prejudice to Combs. Because literally or in effect, by prosecutor or court after the grand the record establishes that Combs was convicted of an offense jury has last passed on them.” United States v. Ford, 872 that was not the subject of his indictment, his conviction on F.2d 1231, 1235 (6th Cir. 1989) (citations omitted). Count IV must be reversed. Amendments are considered prejudicial per se, warranting reversal of a conviction, because they “directly infringe upon Finally, with the benefit of the foregoing review of the law the fifth amendment guarantee” to hold a defendant concerning modification of indictments, we return to our answerable only for those charges levied by a grand jury. Id. Count III analysis to distinguish the factually similar, but Variances, however, occur “when the charging terms of an legally dissimilar, Avery case. The government views Avery indictment are left unaltered, but the evidence offered at trial as support for labeling Count III a constructive proves facts materially different from those alleged in the amendment—harmless in light of the evidence presented indictment” and are not reversible error unless the defendant against Combs. Though Avery’s indictment suffered from can prove it prejudiced his defense. Id. See also United the identical mismatch of § 924(c) elements as does Combs’s States v. Hathaway, 798 F.2d 902, 910–11 (6th Cir. 1986) Count III, the difference between our conclusion of (citations omitted). Between these distinctions lies a more insufficiency and the Tenth Circuit decision to uphold the subtle modification to the indictment, a constructive Avery indictment on the basis that “in furtherance of” and amendment, which is what the government argues occurred “during and in relation to” carry substantially the “same here. Constructive amendments are variances occurring when import,” is explained by our circuit’s assessment, both here an indictment’s terms are effectively altered by the and in Nance, that § 924(c) criminalized two distinct offenses. presentation of evidence and jury instructions that “so modify Moreover, Combs differs from Avery in another crucial essential elements of the offense charged that there is a aspect. Avery, unlike Combs, was indicted on and convicted substantial likelihood the defendant [was] convicted of an of a “possession” offense, whereas Combs was indicted on a offense other than that charged in the indictment.” Hathaway, “possession” offense, but was later convicted of a “use” 798 F.2d at 910. See also United States v. Beeler, 587 F.2d offense. 340 (6th Cir. 1978). No. 01-5997 United States v. Combs 15 16 United States v. Combs No. 01-5997

Combs’s Claims Regarding Count I Combs next challenges the adequacy of the warrant issued to search his residence, calling it deficient so as to entitle him Combs next alleges that his indictment on Count I was only to suppression of evidence the search produced. This court obtained through perjured testimony and that there was reviews a district court’s decision on a motion to suppress insufficient evidence supporting his conviction on that Count. under two complementary standards. United States v. Leake, We disagree. 998 F.2d 1359, 1362 (6th Cir. 1993). First, we must uphold the district court’s factual findings unless clearly erroneous. With respect to the perjured testimony, Combs insists the United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). police officer testified falsely to the grand jury. But Combs Second, legal conclusions as to the existence of probable forfeited this issue by not raising it before trial. FED . R. cause are reviewed de novo. Id. In reviewing the district CRIM . P. 12(b)(3)(B) & (e); United States v. Mack, 892 F.2d court’s decision, the evidence must be viewed in the light 134, 135–36 (1st Cir. 1989). Furthermore, any indictment most favorable to the government. United States v. Walker, defect generated by alleged perjured testimony was cured by 181 F.3d 774, 776 (6th Cir. 1999). the jury’s verdict that Combs was guilty of this offense. United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996) Combs also objects to the affidavit used to obtain the (citing United States v. Mechanik, 475 U.S. 66, 71-73 warrant, claiming it mischaracterized as “stolen” the guns that (1986)). Josh Miller traded for drugs. Combs argues that because neither Josh Miller nor his father, Ed Miller, told the police Combs also argues as to his Count I conviction that the that the guns were “stolen,” that aspect of the affidavit was government presented inadequate evidence—that the false, invalidating the warrant and entitling him to testimony of the police officer who advised and directed suppression of the evidence gained thereby. Under Rule Eversole’s activities was insufficient because of a faulty 12(b)(3)(C) & (e) of the Federal Rules of Criminal Procedure, investigation. Combs also challenges the credibility of Combs also forfeited this alleged error because he did not Eversole’s testimony. To obtain a conviction under this raise it in his original motion to suppress. Moreover, it is Count, the government needed to prove that Combs immaterial to the suppression question whether or not the knowingly or intentionally possessed a controlled substance guns were “stolen.” Josh Miller testified that he traded with the intent to distribute. 21 U.S.C. § 841(a)(1). Combs certain guns for OxyContin, and the warrant permitted a search to find the guns—stolen or not—plus any other The jury had the best opportunity to judge the credibility of evidence of illegal drug activity. these witnesses, and we must draw all reasonable inferences consistent with its verdict. United States v. Avery, 128 F.3d Combs next argues that the search warrant lacked probable 966, 971 (6th Cir. 1997). If believed, these witnesses cause because it was issued based on an affidavit lacking provided ample evidence that: Eversole contacted Combs to information about the informant’s reliability. “An issuing obtain OxyContin; Combs drove Eversole to a meeting with judge’s findings of probable cause should be given great his supplier of OxyContin; Eversole hid in the car while deference by the reviewing court and should not be reversed Combs made a purchase; and Combs returned to the car and unless arbitrarily exercised.” United States v. Miller, 314 sold the pills to Eversole. This testimony sufficed for the jury F.3d 265, 268 (6th Cir. 2002), cert. denied, 123 S. Ct. 2261 to have properly convicted Combs on Count I. (2003) (citations omitted). As long as the issuing judge had a “substantial basis” for determining that a search would No. 01-5997 United States v. Combs 17 18 United States v. Combs No. 01-5997

uncover evidence of wrongdoing, the warrant must be upheld. but as a matter of reasonable probability.” United States v. Id. Allen, 106 F.3d 695, 700 (6th Cir. 1997) (citations omitted). Merely raising the possibility of tampering or This court recognizes that “[w]hen a witness has seen misidentification is insufficient to render evidence evidence in a specific location in the immediate past, and is inadmissible. United States v. Kelly, 14 F.3d 1169, 1175 (7th willing to be named in the affidavit, the ‘totality of the Cir. 1994). Furthermore, “challenges to the chain of custody circumstances’ presents a ‘substantial basis’ for conducting a go to the weight of the evidence, not its admissibility.” search [of that location].” United States v. Pelham, 801 F.2d United States v. Levy, 904 F.2d 1026, 1030 (6th Cir. 1990), 875, 878 (6th Cir. 1986), cert. denied, 479 U.S. 1092 (1987). cert. denied, 498 U.S. 1091 (1991). We have reaffirmed this principle in upholding the issuance of a warrant, where an affidavit lacked information about the Edward Miller testified that the guns admitted into evidence named informant’s reliability. See Miller, 314 F.3d at 270; were the same guns taken from his residence, returned to him United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir.), after the search, and later returned to the government for trial. cert. denied, 522 U.S. 925 (1997). The police officer in charge of executing the search warrant and cataloging evidence testified that the guns were the same Josh Miller was known to the police. He informed them guns recovered from Combs’s residence. The trial court that he had recently traded guns with Combs for OxyContin, properly determined that there was no reasonable probability and his statements corroborated other information the police of misidentification. It was not plain error to admit them. already had, such as Eversole’s prior purchase of OxyContin from Combs. Thus, probable cause supported the issuance of Combs next argues irrelevance ought to have foreclosed the the warrant. testimony of I. J. Sandlin, and the admission of Sandlin’s four guns. Sandlin was a government witness who testified that Evidentiary Issue Regarding Firearms his four guns had been stolen. His nephew, Josh Miller, admitted that he had taken these four guns from Sandlin’s Combs claims that the district court improperly admitted residence. Josh Miller also testified that, in addition to into evidence: (1) the firearms seized from Combs’s home; trading the three guns owned by Ed Miller that were the (2) other firearms stolen from I. J. Sandlin; and (3) the subject of the indicted offenses with Combs, he had traded testimony of I. J. Sandlin. This court reviews these claims for other guns with Combs on different occasions. Although Josh plain error because Combs failed to object to the introduction Miller never testified that he had traded these particular four of this evidence at trial. United States v. Cox, 957 F.2d 264, guns with Combs, Officer Chris Fugate testified that at least 267 (6th Cir. 1992). two of these guns were turned over to police by Combs about a week after the search of his residence and his arrest. Combs first claims that because the police released the Because they were relevant to Josh Miller’s pattern of taking seized guns to their owner, Edward Miller (Josh Miller’s guns from relatives and trading them with Combs for drugs father) after their search of his home, the break in the chain of and because at least two of them were turned over by Combs, custody should render the guns inadmissible. it was not plain error for the district court to admit them into evidence. Physical evidence is admissible when the possibility of misidentification or alteration is “eliminated, not absolutely, No. 01-5997 United States v. Combs 19 20 United States v. Combs No. 01-5997

Combs finally argues that an additional gun listed on the “Drug Addict” Jury Instruction search inventory but not the subject of any charged offense should not have been admitted. Although this gun, owned by Combs next contends he should have a new trial because Ed Miller, was listed on the search inventory as being found the district court should have given a “drug addict” jury in Combs’s residence, Josh Miller testified that he pawned instruction regarding the reliability of Eversole’s and Josh this gun and had not traded it to Combs. Ed Miller also Miller’s testimony. We review this claim for plain error testified that one of his guns had been recovered from a pawn because Combs did not request an addict instruction at trial. shop, but did not specify which one. Combs argues that this United States v. Morrow, 977 F.2d 222, 226 (6th Cir. 1992). gun was “planted” by police and was “fabricated evidence.” “This court has long recognized the importance of an It was for the jury to determine, based upon its assessment addict-informant instruction in appropriate cases.” United of the witnesses’ credibility, whether the gun was found in States v. Brown, 946 F.2d 1191, 1195 (6th Cir. 1991). No per Combs’s residence, as alleged by the government, or pawned se rule, however, requires that an addict-informant instruction by Josh Miller. The gun was also relevant to Josh Miller’s be given in all cases involving the testimony of an addict- pattern of taking guns from relatives for use in support of his informant. Instead, “the need for such an instruction depends drug habit. It was not plain error for the district court to on the circumstances of each case.” Id. Further, there is less admit it into evidence. need for a special jury instruction about the credibility of an addict-informant where the jury is aware that the witness is an Alleged Prosecutorial Misconduct addict and where there was substantial corroboration for the witness’s testimony. United States v. McGhee, 882 F.2d Combs next argues that the prosecutor obstructed justice by 1095, 1100 (6th Cir. 1989). halting an internal-affairs investigation Combs requested. Combs asserts that this deprived him of “access to legal Both Eversole and Miller admitted that they had abused findings that very possibly could have changed the course of controlled substances. Additionally, the testimony of the his court trial.” He also alleges that he was told that he police officer directing Eversole’s purchase of OxyContin would have to prove himself innocent at trial. from Combs and the evidence found after executing the search warrant corroborated their testimony. Furthermore, the Both of these acts of alleged misconduct took place prior to court gave a specific instruction about both of these trial but Combs never raised them before the district court. witnesses’ credibility because one was a paid informant and That failure forecloses his opportunity to challenge them now. one was involved in the same crime as Combs. The court FED . R. CRIM . P. 12(b)(3) & (e). Moreover, Combs provides instructed the jury to consider the testimony of these two no evidence of wrongdoing on the part of the prosecutor and witnesses with more caution than the testimony of other fails to explain how the internal-affairs investigation could witnesses. have affected his trial and conviction. And any misstatement regarding the burden of proof at trial did not prejudice Because the jury knew that the witnesses were drug users, Combs, as the jury was properly instructed that the evidence corroborated their testimony, and the court government must prove Combs guilty beyond a reasonable instructed the jury specifically to consider these witnesses’ doubt. testimony with caution, we find no plain error in the district court’s failure to give an addict instruction. No. 01-5997 United States v. Combs 21 22 United States v. Combs No. 01-5997

Expert Testimony of Dan Smoot distribute and left to the jury the final conclusion regarding whether Combs actually possessed the requisite intent. The Combs contends that the trial court erred in admitting the trial court, therefore, did not err in permitting this testimony. testimony of Dan Smoot in violation of Rules 702 and 704(b) of the Federal Rules of Evidence. Combs claims that Smoot, Ineffective Assistance of Counsel a narcotics officer with the Kentucky State Police testifying as the government’s expert, impermissibly testified regarding Combs last contends that his conviction should be reversed Combs’s intent to distribute narcotics. because he was denied the effective assistance of trial counsel. “Ordinarily, we do not review claims of ineffective We have held that “[l]aw enforcement officers may testify assistance of counsel on direct appeal.” United States v. concerning the methods and techniques employed in an area Shabazz, 263 F.3d 603, 612 (6th Cir. 2001) (citation omitted). of criminal activity and to establish ‘modus operandi’ of This rule stems from the insufficiently developed record particular crimes. Knowledge of such activity is generally regarding the defendant’s legal representation that typically ‘beyond the understanding of the average layman.’” United accompanies such a claim on direct appeal and the necessity States v. Pearce, 912 F.2d 159, 163 (6th Cir. 1990) (citations that a successful claim show prejudice. Strickland v. omitted). Rule 704(b), however, prevents an expert witness Washington, 466 U.S. 668 (1984); Shabazz, 263 F.3d at 612. from testifying that a defendant in a criminal case did or did For these reasons, we have held that a defendant best pursues not have the requisite mental state or condition constituting an a claim of ineffective assistance through a post-conviction element of the crime charged, as ultimate issues are matters proceeding brought under 28 U.S.C. § 2255. United States v. for the trier of fact. Long, 190 F.3d 471, 478 (6th Cir. 1999). If the record is adequate to permit review of counsel’s performance, Decisions applying Rule 704(b) to the expert testimony however, we will consider the issue even if not raised before of law enforcement officials have found it significant the district court. United States v. Goodlett, 3 F.3d 976, 980 whether the expert actually referred to the intent of the (6th Cir. 1993). defendant or, instead, simply described in general terms the common practices of those who clearly do possess We view this record as inadequate to permit review of the requisite intent, leaving unstated the inference that Combs’s ineffective assistance of counsel claim. the defendant, having been caught engaging in more or less the same practices, also possessed the requisite CONCLUSION intent. For the foregoing reasons, we reverse Combs’s convictions United States v. Frost, 125 F.3d 346, 383–84 (6th Cir. 1997) on Count III and Count IV. We affirm the remainder of his (citing United States v. Lipscomb, 14 F.3d 1236, 1239 (7th conviction and remand this case to the district court for re- Cir. 1994)). sentencing and further proceeding consistent with this opinion. After reviewing Officer Smoot’s testimony in its entirety, we conclude that he did not actually testify regarding the intent of the defendant to distribute drugs. Rather, he testified regarding conduct that would be consistent with an intent to