1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2004 FED App . 0167P (6th C ir.) File Name: 04a01 67p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

L EON C OMBS , Defenda nt-Appel

lant. X - - - -
> , - - N No. 01-5997

Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 01-00017—Joseph M. Hood, District Judge. Submitted: September 19, 2003
Decided and Filed: June 4, 2004

Befor e: SIL ER, BATCH

ELDER, and COO K, Circui t Judges.

_________________ COUNSEL

ON BRIE F: Keely J. O’Br yan, Joh n T. S underland, THOMPSO

N HINE, Columbus, Ohi o, for Appellant. Charles P. Wisdom, Jr., AS SISTANT UNI TED STATE S ATTORNEY, Lexington, Kentucky, for Appellee. Leo n Combs, Manchester, Kentucky , pro se. 2 United States v. Combs No. 01-5997

_________________ OPINION

_________________ COOK, Circuit Jud ge. De fendant-Appella nt, Le on Co mbs , appeals his conviction on two co unts of tra ffick ing dru gs with the involveme

nt of a firearm and two counts of possession and distributi on of drug s. We reverse Combs’s conviction on Count II I, fi

nding the indictmen

t insuffic ient as fa

iling to charge him with a criminal offense. As to his indictment on Count IV, we find it to have been impermissibly amended and th us also reverse his conviction on Count IV. We af fir m Combs’s conviction on the remaining counts.

OnJan u ary 25, 2001, a g rand jury re

turned a five-count indictmentagains tCombs. A jury then convicted Combs of Counts I thr

ough I V of the in

dictment. Count I

charg ed a violation of 21 U.S.C. § 841(a)(1) an d alleged that Combs possessed and di st rib ut ed O xyC ont in , a s che dul e II controlled substa nce. This Count concerned a November 14, 2000 incident where Joyce Eve

rsole, a cooperating

witness, made
a controlled buy of 25 Oxy Contin pills from Combs. Onthat date, the police gave Eversole $1000 in “buy ” money and drove her to a meeting

wi th Combs. On

ce ther e, Ever sole entered Combs’s car and ro d e a short distance with him. Combs then exitedthe car and told Eversole that he was goingto meet a man who wo uld supply

him with the pills. When Combs returne d, he sold the pills to

Eversole . Everso le turned the pills over to the police.

C ountIV allege d a violation of 18 U.S.C. § 92 4(c) an d provided tha t C ombs “in furtherance of a drug trafficking crime. . . did unla

wfully possess f irearms . . . .” Thi s C oun t stems from an incident in late 2000 or early 2001 when Josh Miller traded three of his fathe r’s rifl es with Comb s for dru gs. Miller told the police about

these and other trades of guns for drugs and said that many of the se transactions took place at Combs’s residence. After learning about these trades, theNo. 01-5997 United States v. Combs 3

police obtained a

warrant to search the residence

. During the search, the police recovered the guns that Miller trade d for the drugs. During the search of

the residence, officers observed Combs dropping an object down the front of his pants. Upon searching Combs, the police found that h e was ca rrying a loaded .22 calib er pistol a

nd ma ny O xyC ontin and D ialudid pills. This discovery led to Count I I, alleging

a violation o f 21 U.S.C. § 841(a)(1) and charging Combs wi th poss ession of sch edu le II drugs, OxyContin and Dialudid, with the intent to distribute . Count II I followed from the loaded pistol; the count a lleged an additional violation of 18 U.S.C. § 924(c ) and provide d that Combs “during and in relation to a drug trafficking crime . . . did possess a . . . pistol . . .” at the time of his search.

WHETHER 18 U .S.C. § 924( c) CRI MI NALIZ ES TWO SEPARATE OFFENSES
The issue of whether or n ot § 924(c) criminalizes two di st inct offenses directs the outcome of Combs’s primary challenges to his conviction. Counts III an d IV of Combs’s indictment(firearms charges) p urp ort to set forth violations of 18 U.S.C. § 9 24(c). To clarify the ensuing analy sis of Combs’s challenge, we first dissect the statute, l abelin g the two alleg edly

distinct of

fenses:

. . . [A]ny person who, during and in relation to any crimeof violence or

drug trafficking crime . . . for which th e p erson may be

prosecuted in a court of the United States, uses or ca rries a firearm, (“use” offense )

or who, in furt hera nce o f any such cr ime, posse sses a firear m, shall, in a ddit ion to the punishment for such crimeof violence or drug traff ickin g crime [receive an additional penalty]. (“possession” off ense) 4 United States v. Combs No. 01-5997

1 In Nance , defendant chal leng ed th e deni al of his moti on for acqui ttal

on a charge for violat ion of 18 U.S. C. § 924(c). This court ex amined

w hether a rati onal f

inder of fact could concl ude either that defend an t carri ed a fi rea rm during and in relat ion to drug traff icking or that defendant possessed a fire arm in furt herance of drug traff

icking. The analysis defi ned t he el ement s of each of fense separat ely a nd concluded that, unde r the facts present ed, the fin der of f act coul d not have conv icte d unde r either p rong of the statu te. Nance , 40 F ed. A ppx . at 64– 67.

2 In Lott , defendant’s i ndictment charged that he “knowin gly c arrie d and poss essed a firearm during and in relation to and in furthera nce o f a drug traffic king offense” in vi olation of 18 U.S.C. § 924(c). Defendant chall enged the dis tri ct c ourt ’s denia l of a mo tion for a cqu ittal. Similar to

our analysis in Na nce , the Tenth Circu it held t hat t he indi ctment contai ned two distinct

offens e s for which t

he jury could have found the defendant guilty . The court t

hen examin ed the evi dence and hel d that , under e ith er the “car ryi ng a we apon dur ing and i n rel ati on to” or t he “pos sess ion of a weapon in f

urther ance of” prong of th e stat ute, there was suf

fici en t evidence to convi ct defe ndant on this charg e. Lott , 310 F. 3d at 1246–48. 18 U.S.C. § 924(c) (emphasis added).

Inan earl ier § 924( c) case this c ourt declined to decide whether this statut

e sets forth two

separa te offense s or simply specifies alternative means for committing the same offense. See United Sta tes v. Da vis , 306 F.3d 398, 416 ( 6th Cir . 2002) (assu ming, witho u t decidin g, that t he statute

sets fort

h sep ara te o ffe nse s). Inat least one case, however, we treated the two pron gs of this statute as constituting two distinct offense s. United Sta tes v. Nance , 40 Fed. Appx. 59, 64–67 (6th Cir. 2002) (unpublished)

. 1 See also United States v. Lott , 310 F.3d 1231, 1246 (10th Cir. 2002); 2 United States v. Timmons , 283 F.3d 1 246, 1250–53 (11th Cir . 2002) (a lso treatingthe statute as setting forth two separate offe nses). The statutory text, legislative history, and requisite proof argue for the Nance perspe ctive t hat 18 U.S.C. § 924(c) criminalizes two separate offens es—( 1) using or carrying a firearm during and

in relation to a drug trafficking crime, and (2) possessing

a firea rm in furtherance o

f a drug trafficking crime.No. 01-5997 United States v. Combs 5

Statutory Text
The text of 18 U.S.C. § 924(c) be li es the view that the statute s impl y identi fies a ltern ative means for com mitt ing a single offense. The two prongs of the statute are separated by t he disj unctive “or,” which, according to the precepts of statutory cons truction, s uggests the separate prong s must have different meanings. United

States v. Hill , 79 F.3d 1477, 1483 (6 th Cir. 1996). See also Stevens v. Employ

er-Team ste r s Joint Council

No. 84 Pension Fund , 979 F.2d 444, 452 ( 6th Cir. 1992) (citi ng Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979)).
Moreover, the statutory lang uage structures the prohibited acts into distinct dependent clauses with different modifier s. The district court in Unite d States v. Pleasant , 125 F. Supp. 2d 173, 178 (E.D. Va. 2000), comprehensively analyzed the statutory structur e as follows:
The subject of the sentence at issue is “any person.” The term“who” i s a rel ative pr onoun with

in the fir st dependent

clause. The prepositional phrase “during and inrelation to” modifies the rel ativ e pronoun; “uses or carrie s” are the compound verbs; and “firear m” is the direct o bject.

Rather than a ddin g a

second mo difier to

the first relative p ronoun, (i.e. “A

ny p erson who, during

and rela tio n t o any crimeof violence or drug trafficking crime . . . , uses
or carries a firearm, or

in furtherance of

any such cr

ime, possesses a firearm”), the statute begins a second dependent

clause with the second re lati ve pronoun “who.” T his second pronoun is then modified by the separa te phrase “in furtherance of a ny such crime.” The

v e rb in the second dependent clause is “possesses” and the direct object is again a “fire arm.”
The us e of

a second relative pronoun, the presence of a second dependent clause and the choice of d iff erent 6 United States v. Combs No. 01-5997

m odifiers for the prohibited conduct confirm that th e second prohibite d act is qu

ite distinct from th e fir st . In the first clause, the use or carriage of the f irearm must be “during and in relation to” the predica te crime , while, in the second clause, the possession of the firearm

must be “in furtherance of such crime.” Legislativ

e History Congre ss enacted

the current version of

the statute in 1998 inresponse to the Supr eme Court’s decision in Bailey v. United States , 516 U. S. 137 (1995). See United States v. Mackey , 265 F.3d 457, 461 (6th Cir. 2001). Baileyexamined
anearlier v ers ion of this statute that prohibited only “using
or carry ing a fi rearm d urin g a nd in relation to” drug traffi cking. 18 U.S.C. § 924(c)(1) (1994). The BaileyCourt overruled severa l circuit court de cisions u

phol ding convict ion s under the

“use” pr ovision of

the prior statute without requiring proo f th at the firearm was somehow actively employed during

the drug trafficking crime. Bailey , 516 U.S. at 144. Ba iley c oncluded that “use” of a firearm must mean more than mere possession and requires s ome active employ

ment of the

firear m by a person who commit s a drug offense. Bailey , 516 U.S. at 143–44. Congre ss regar ded th e Baileydecision as an “im

plicit invitatio n t o clarify the statute.” Violent and Drug Traffic kin g

Crime: The Effect of the Bailey Decision on Prosecution Under Section 924(c) Before the Senate Comm.

on the Judiciary, 104th Cong., 1 st Sess. (statement of Thomas G. Hungar

); see also 143 C ONG

. R EC . S379-01 (daily ed. Jan. 21, 1997) (statement

of Sen. Helms); United States v. Speight , 95 F. Supp. 2d 595, 598–99 (S.D. W. Va. 2000) . Co ngress consider ed several bills with differing languag e before eventua lly adding the word s “posses s a

firear m in furtherance of the crime.” See United States v. Pleasant , 125 F. Supp. 2d 173, 180–81 (E.D. Va. 2 000) (summarizing the differing approaches of sever

al bills and noting that

Congress rejected proposed language that merely

added possession to the list ofNo. 01-5997 United States v. Combs 7

prohibited

action s, wit

hout requ iring th at posses sion be “i n furtherance of” the crime)

. The legislative history of the amendment bolsters the view that Congress intended “in furtherance of ” t o create a d iff erent standar d of cond

uct than d

id the “du

ring an d in relation to” language. From the House Committee Report we know that membe

rs reg arded “ in furthe

rance o f” as a s lightly higher standar d, encomp assing t

he “duri ng and i n relation to” language. H.R. R EP

. N O

. 105-344, at 11 (1997). “ The government

must clearly show that a f irearm was po ssesse d to advance or promote the commission of the under lying offense.” Id. at 12. See also Mackey , 265 F.3d at 461. By its adding poss essio n as a p rohib ited a ct, an d requ iring a higher standard of participation to charge a def endant with the a ct , we understa

nd Congr ess to have deline ated a ne w offen se within the same statute. Differen t Proof Req uired for E ach Offen se
Courts test the pres ence of separa te offe nses by asking i f each requires proof

of an ad ditional fact that the other does not. Davis , 306 F.3d at 415–16. This Circ ui t’s decisions require the gov ernment

to prese nt different proof to show “using or carry ing a firearm during and in re lation to” a drug trafficking

crime from that required to show “possession of a firearm in furtherance of” a drug trafficking crime.

a. Use offe nse - “Using or carrying . . . during and i n relation to”

As discussed above, the Supreme Court interprets “use” of
a firear m as “con

not[ing] mo re th an mere possession of a firear m” and requires some active employ ment of the firearm by the person committing the drug offense. Bailey , 516 U.S. at 143. And in Muscare ll o v. United States , 524 U.S. 125 (1998), the Supre

me Court in

terpreted th e statutory term “c ar ry” to me an the firearm must be on the person or accompany

ing the person, as when “a person . . . knowing ly 8 United States v. Combs No. 01-5997

possesses and

convey s firear ms in a veh

icle, inc luding in

the locked glove compartment or trunk of a car. . . .” Id. at 126–27. See al

so United States v. Clemons , 9 Fe d. Ap px. 286, 2 90 (6th Cir. 2001) (unpublished). After Muscare llo , this court concluded t

h at, to constitute a “carry ing” offense, the firearm need

not be immediately available for use and that “the proper inquiry

[in determining whether a firearm is being ‘carried’] is physical

transportation” of the firearm. Hilliard v. United States , 157 F.3d 444, 449 (6th Cir. 1998).

The “during and in relation to” element requ ires that the firearm “furthe red the p urpose or effec t of the crime and

its pr esence or involvement was not the result of coincide nce. ” United States v. Warwick

, 167 F.3d 965, 971 (6th Cir. 1999). See also Smith v. United States , 508 U.S. 223, 238 (1993).

b. Possession offens e - “ Possession . . . in furtherance of”

In Mackey , 265 F.3d

at 461–62 , we inter

prete d the “ in furtheran ce of” language as requiring a higher standard of participation

thanthe “during and in relation to” languag e, holding that the government must show that the “firearm was possessed to advance or promote the commission of the underlying

[ drug trafficking] offense.” The Mackey court went on to require “a specific nexus between the gun and the crimecharged.” Id. at 462. It opi ned that g uns strate gicall

y located for quick and ease of use would

demonstr

ate “possessionin furtherance of.” Id. Mackey also liste d some indicative factors for examining whether the possession was “in furtherance of” the crime, including : (1) whether the firea rm was loaded; (2) the ty pe of firearm; (3) whether th e weapon w as stolen

or legi timately possessed; (4) the type of drug activity conducted; a nd ( 5) the time and circumstances under which the gun was found. Id.

The Fifth Cir

cuit cog ently set forth circumstances that might violate the “during and in r ela tion to” prong of the statu te, bu t not the “i n furt heranc e of ” pr ong.No. 01-5997 United States v. Combs 9

3 H.R. R EP

. N O

. 105-344 , at 11 (1997).

4 Ma ckey

, 265 F.3d at

461. There are situations where a possession would be “during and in relation to” drug trafficking without “furthering or
a dvancin g” that activity. For e xample, a drug buye

r might steal a g un from hi s dealer ’s house during a deal. The buy er’s pos session wo

uld be dur

in g and in relation to drug trafficking, but the buyer’s possession would not advance that oper

ation. As a

nother example , if a buyer
cameto the seller’s home for a pu rchase and left a gun there by mistake, the seller’ s possession would be “duringand in relation to” t he trafficking without further ing it.

United States v. Ceballos-Torres , 218 F.3d 409, 413 (5th Cir. 2000). In keeping

with the view of

the Nance court, we conclude that “ in furtherance of” differs f rom “during and in relation to” and requires the gover nment to prove a defendant used the firea rm w ith greater participation in the commission of the crimeor that the

firear m’s prese nce in the

vic in it y o f the crimewas something more than mere chance or coincide nce. Alth ough the differences between the standa rds are “subtle” 3 and“somew hat elusive,” 4 they exist noneth eless

. Considering all the foregoing, we conf irm here that 18 U. S.C. § 924(c)criminal izes two se parate and distinct offe

nses.
DISTRI CT COURT PROCEEDINGS

Both the gov ernment

and the di strict co

urt confuse d the element s of the two

offense s crimina

lized by 18 U.S.C. § 924(c) throughou

t Com bs’s proceedings. I ndeed, any attempt to unw in d the mismatched elements of the statutory prongs in the indic

tment, the

jury inst ructio ns, and the 10 United States v. Combs No. 01-5997

conviction, ex po se s t he ho pe le ss ly “jumb led mess” that resulted. See Pleasant , 125 F. Supp. 2d at 183.

Count III - Sufficie ncy of the Indictme nt

We review the sufficiency of an indictment

de novo. United States v. Gate

wood , 173 F.3d 983, 986 (6th Cir. 1999) (citations omitted). When an ind ictment g oes unchallenged until appeal, it must be l iberally construe d in favor

of its
su ff ic ie nc y. Id . Furthermore, unless the defendant can show prejudice, a conviction will not be reversed wh en th e indictmentis first challeng ed on app eal unle ss the indictment cannot reasonably

be construed to charge a c rime. Id

. Count II I of C ombs’s ind

ictment charge d him

w ith “poss ess[ ing] a

f irearm during and in relation to” a drug trafficking

crime—utilizing one element from each of the two distinct § 924(c)offense s. Indicting Combs b ased on the conduct from the § 924(c) “ poss essi on” offe

nse in conjunctionwith the standard of participation (during

and in
re lation) from the o ther “us e” offe nse resu lts in a fa ilure t o charge him with any codified federal crime. The court’s jury instructions for Count III tracked the indi ctmen t error, likewise inter mix ing e leme nts of the two diffe

rent cr imes. Then to further confuse matters, when the court defined the “duringand in re lation to” standar d of part icipation , it employed a definition more ak

into this circuit’s definition of “in furtherance of.” And, finally , the court journalized Combs’s Count I II

convicti on as a

“use” o ffense, not the “possession” offense found in the flawed indictment.

The government initially c onceded error in thi s case and alleged that, due to the confessed

errors, Combs was entitled to a new trial on the fi re arms violations because of the indictment’s failure to charge an off ense in Coun t III. But
some seven mon

ths a fter filing its original brief, the gover nment, with leave o f court, filed a substitute brief withdrawingit s concession of error and instead arg uing the
correctness and sufficien cy of the indictment or, in theNo. 01-5997 United States v. Combs 11

alternative, urging resolution based on harmless err or. The government’s substitute brief argues the re co gnized similarities betwee

n the “dur ing and in relati on to” and

the “in furtherance of” elements of § 924(c ), citing our Mackey decisionand

the Tenth Circuit’s Avery decision. See Mackey , 265 F.3d 461–

62; United S tates v. A very , 295 F.3d 1158, 1174–75 (10th Cir.), cert. deni ed , 537 U.S. 1024 (2002). Thesesimilarities, coup led with the liberal standard an appella te court must apply to post-verdict indictment challen ges, the government posits, allow the indictment for Count II I to be reasona

bly construe d as char

ging Co mbs with the “possession” o f

fense. We disagree. Unlike Combs’s case, Mackey

concerned the sufficiency of the evide nce and requisite standard of proof necessary

to support a possession convictionunder § 924(c), not the sufficiency of the indictment

. The government’s reliance on Avery is similarl

y misplaced

for reasons unrelated to the s uffi ciency of the indictmen t, as will be d iscussed in conjunction with our analysis of Count I

V.

Becau se Co mb s’s in di ctm ent on C oun t III c annot be
reasona bly construed to have charged him with a cr ime under federal law, we reverse his conviction and remand to the districtcourt to d

ismiss the in dictm ent fo r fail ure to charge an offense. Count IV - Amending the Indictment

Unlike Count III , Count IV of the indi ctment properl y charged a § 924(c) possession offens e. The ju ry instructi ons, h o wever, again cross-matched the conduct from the “possession” offense

with the standard

of participation from the wholly distinct “use” off ense:
There are two essential elements which must be proven beyond a reasonable doubt in order to establish the offense proscribed by

this law: 12 United States v. Combs No. 01-5997

5 The jury instructions also im properly referred to Count II as t he pred icate offens e for t his viola tion. T he distric t court c orre cted th is misstatement

lat er and properl y ins truct ed tha t the sale o f drugs in exchange for f

irear ms to Josh Mil ler was the predicate offense f or Count IV.

6 Combs argue s that, by this lan guag e, the d istrict cou rt impr ope rly def ined “use,” cit ing United States v. Warwick , 167 F. 3d 965 ( 6th Cir

. 1999). Co mbs arg ues t hat passi ve re ceipt

of a f ire arm i n exch ange f

or drugs does not constitut e “use” of the f irearm . How ever, bec ause “u se”

was not at issue in this case and, due to our disposi tion of the ot her alle ged errors , we need not reach t his i ssue. First: That onor ab out the date and place alleged in the indi ct ment, the defe

ndant, L eon Combs possessed a firearm , (from the “possession” offense) and

Seco nd: That he did so during and in relation to ( fro m the “use” offense) a drug

trafficking crime.

J.A. at 68 (emphas is a dded). 5 And again, in its instructions
on this Count, t

he court d e fined the requisite conduct for finding the “use” offense rather than the “poss ession” o ffense charged by t his Count of the indictmentby say ing: “A person who trades a firearm

for drug s uses the firearm during a nd in relation to a drug trafficking off ense.” J .A. at 68–69 (emphas is added). 6 Plus, the p ert inent “Judgment In a Criminal Case” re flects Combs being convicted on Co unt IV for the “use” offense as opposed to the “possession” offense for which he was indicted.

Inits original brief, the gove rnm ent concluded that the districtcourt’s

incorre ct jury

instructi ons had cons tructive ly amended Count I V of the in

dictment. It recanted that position inits substitute brief and now urges that the jury instructions did no t co nst ruc ti vel y ame nd C oun t IV, nor Co unt II I (assuming sufficiency

of the Count II I indictment). A grand jury’s indictment protects thre e constitutional due process rights, namely : the Sixth Ame ndment’s right to fairNo. 01-5997 United States v. Combs 13

notice of the criminal chargesagainst which one will need to defend; and the F ifth Amen dment’s dual protect

ions aga inst twi ce placi ng a defendant in jeopardy for the same offense, and holding t he defe ndant to answer for crimes not presented to or indicted by a g

rand jury. Un ited Stat es v. Pan dilidis , 524 F.2d 64 4, 648 (6th Cir. 1975) . Accor dingly , “the ru le preventingthe amendment of an indictment should be applied ina way that will preserve these rights from invasion; where theserights are not threatened, rules g overn ing i ndictmen ts should not be applied in such a way as to def eat justic e fairly administered.” Id

. This court recogni zes t wo forms o f modific ation to indictmen ts : ame ndments and variances. Amendments occur “when the charging terms of the indictment are altered, either literally or in eff ect, by prosecu tor or co urt afte r th e gr and jury has last passed on them.” United State s v. Ford , 872 F.2d 1231, 1 235 (6th Cir. 1989) (citations omitted). Amend ments are considered prejudicial per se, warranting reversal of a conviction, because they “direc tly infri nge upon the fifth amendment guaran tee” t o hold a defendant
answer able only for

those charges levied

by a g rand jury. Id

. Variance s, howev er, occur “when the charg ing terms of an indictmentare left unaltered, but the evidence offere d at trial proves facts materially

differe nt fr om those alleged in the indictmen t” and are not reversible error unless the de fendant
can p rove it prejudiced his defense. Id

. See also Uni te d States v. Hat

haway , 798 F.2d 902, 910–11 (6th Cir. 1986) (citations omi tted) . Between these distinctions lies a more
s ubt le modification to the indictment, a constructive
a men dment, which is what the government argue s occurred here. Construct

ive amen dments are variance s occurring when
anindictmen

t’s te rms are effectively altered by the presentation

of evidence and

jury instructions that “so modify essential elements of t

he off ense cha rged that there

is a substantial likel ihood

the defen

dant [was] conv icted of an offens e o ther than that charged in the indictment.” Hathaway , 798 F.2d at 910. See a lso United States v. Beeler , 587 F.2d 340 (6th Cir. 1978). 14 United States v. Combs No. 01-5997

Applying these precepts to Combs’s case, we conclude that
animpermissible amendment of Count IV of the indictment occurred. Though i ndict ed on a charge of unlawf ul possession of a firearm under § 924(c), h e was neverth eless convicted of a different offense—unlawful use a nd carry ing of a firearm. We categorize this as an ind ictment “litera

lly altered” by the court, constituting pe r se prejud ice t o the defe n dant. The jury

instructi ons faci litated th e amendment, first intermixing

elements of both of

fenses, then p rovid ing a supplemental explanation aligned w ith the unindicted “use” offense, for whic

h Combs was ultimately convicted, instead of the “possession” offense, for wh ich he wa s originally indicted. We rej ect the government’s argument that wha t
occu rred was a va

riance , in the fo rm of a c onstruct i v e amendme nt, that resulted in no prejudic e to Combs. B ecause the record establishes that Com

bs was co nvicted o f an off ense that was not the subject of his indictment, his conviction on Count IV must be reversed.

Fi na ll y, with the benefit of the foregoing review of the law concerning

modification of ind ictmen ts, we return to our Count II I analy sis to disti

nguish the factually similar, but legall y dissimilar, Avery case. The gov ernment views Avery
as support fo r labeling Count III a constructive amendme nt—harmle ss in light of the evide n ce presented agains tCombs. Though Avery ’s indictment suff er ed from the identical mismatch of § 924(c ) elemen ts as does Combs’s Count III, the differenc e between our conc lusion of insufficiency

and the Tent

h Circ uit decision to uphold the Avery indic tment o n the basis that “in furtherance of” and “duringand in r elation to ” carr y su bstantial ly the “same import,” is expla i ned by our cir cuit’s assessment, both here and in Nance , that § 924(c) criminalized two distinct of

fenses. Mo reover, Combs differs from Avery

in another cr

ucia l aspect. Av er y, unlike Combs, was indicted on and convicted of a “possession” offense, whereas Combs was indicted on a “possession” offense, bu t was later convicted of a “use” offense.No. 01-5997 United States v. Combs 15

Combs’s Cla ims Regar

ding Count I

Combs next alleges that his ind ictment on

Count I was only
o btained through perjured testimony and that there wa s insufficient

evidenc e support

ing his c onviction

on that Cou

nt. We disagree.

Withrespect to the pe rjure d testimony, Combs insists the police office

r testi fied fa ls ely to the g rand jury. B ut Combs forfeited this issue by not rai sing i t before trial. F ED

. R. C RIM

. P. 12(b)(3)(B) & (e); United States v. Mack , 892 F.2d 134, 135–36 (1st Cir. 1989). Furthermore, any indictment defect generated by

alleged perjured testimony was cured by t h e jury’s verdict that Combs was guilty of this offense

. United States v. Cob leigh , 75 F.3d 242, 251 (6th Cir. 1996) (citing United Sta tes v. Me chanik , 475 U.S. 66, 71-73 (1986)).

Combs also argues as to his Count I convi ction that the government

presented inadequate evidence—that the testimony of the police officer who advised and direc ted Eversole’s activitie s was insuf ficient b ecause

of a fau

lty investigation. Combs also challenges the credi bil ity of Eversole’s testimony . To obtain a convic tio n unde r this Count, the government needed to prove that Combs knowing ly

or intenti onally

possesse d a contr

olled su bst ance with the intent to distribute. 21 U.S.C. § 841(a)(1).

The jury had the

best oppor

tunity to judge the cre dibility

of thesewitnesses, and

we must draw all reasonable inferenc es consistent with its ve

rdict. United

States v. Avery , 128 F.3d 966, 971 (6th Ci

r. 1997). If believed, these witnesses provided ample evidence t

hat: Eversole cont

acted Co mbs to obtain Oxy

Contin; Combs

drove Ev ersole

to ameeting

with his supplier

of Oxy Contin; Eve

rsole hid in the ca

r while Combs made a purchase; and Combs returned to the car and sold the pills to

Eversole. This testimony sufficed for the jury to have properly

convicted Combs on Count I. 16 United States v. Combs No. 01-5997

Combs next challenges the adequacy of the warrant issued to search his reside nce, ca lling it de ficient s o as to entitle hi m to suppression of evidence the search produc ed. This court reviews a district court’s decision on a mo tion to suppress under two complementary sta

ndards. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir. 1993). First, we must uphold the district c ourt’s fa

ctual fin dings un less clea rly errone ous. United States v. Hill, 195 F.3d 258, 26 4 (6th Cir. 1999). Second, legal conclusion s as to the e xistence o f probab le
c ause are reviewed de novo. Id. In reviewing the distri c t court’s decision, the evidence must be viewed in the light most favorable to the g ove rnment. United States v. Walker , 181 F.3d 774, 776 (6th Cir. 1999).

Combs also objects to the affidavi t used to obtain the
warran t, claiming it mischaracterized as “stolen” the g uns that JoshMiller traded for drug s. Combs ar gues tha t becaus e neither Josh Miller nor his fath er, Ed Miller, told the police that the gun s were “ stolen,”

that aspe ct of the a ffidavit was false, invalidating the warra nt and entitling

him to suppressionof the evidence gained t h ereby . Under Ru

le 12(b)(3 )(C) & (e) of

the Federal Rules of

Criminal Procedure, Combs a lso forfeited this alleged error bec ause he did not rai se it in his ori ginal mo tion to suppress. Mor eover, i ti s immaterial to the suppression que stion whether or not the guns were “stolen.” Josh Miller testified that he traded Combs certain guns for Oxy Contin, and the warrant permitted
a search to find the guns—stolen or not—plus any ot he r evidence of illegal drug a ctivity.

Combs next argues that

the search warrant

lacked probable
cause because it was issued based on an affidavit lacking infor mation about the

informan

t’s relia bility . “An issu

in g judge’s findings of probable cause should be giv en great deference by

the reviewing court

and should not be reversed unless arbitrarily e

xercised.” United States v. Mi ller , 3 14 F.3d 265, 268 (6th Cir. 2002), c ert. denied, 123 S. Ct. 2261 (2003) (citations omitted). As long as the issuing judge had
a “substan tial basis ” for de

termining that a se arch wo

uldNo. 01-5997 United States v. Combs 17

uncover evidence of wrongdoing, the warra ntmust be upheld. Id

. This court recognizes tha t “[w]hen a witness has seen evidence in a specific l oca tion in the i mmediate past, and is willing to be named in the af fidav it, the ‘totality of the circumst ances’ presents a ‘substantial basis’ for conducting a search [of that location].” United States v. Pelham , 801 F.2d 875, 878 (6th Cir. 1986), cert. denied, 479 U.S. 1092 (1987). We have reaffirmed this principle in upholding the i ssuance of a warra nt, where an affidavit lacked information about the named informant’s reliability. See M ill er , 314 F.3d at 270; United States v. Calloway , 116 F.3d 1129 , 113 3 (6th Cir.), cert. denied, 522 U.S. 925 (1997).

JoshMiller

wa s known to the police. He informed them that he had recently

traded guns with Combs for OxyContin, and his statements corroborated other information the police already had, such as Evers ole’s pr

ior purchase of Oxy

Contin fromCombs. Thus, probable cause supported theissuance of the warrant. Evidentiary Issue Regarding Firearms

Combs claims th at the district court improperly a dmitted into evidenc e: (1) the

firear ms seized f

rom C ombs’s h ome; (2) other fir

earms sto len from I . J. Sa ndlin; and (3) the testimony of I. J. Sandlin. This court reviews these claims for plain error b ecause

Combs fail ed to obje ct to the introduction of this evidence at trial. United States v. Cox , 957 F.2d 264, 267 (6th Cir. 1992).

Co mbs first claims that because the police released th e seized guns to their o wner, Edward Miller (Josh Miller’s father) after th eir

search of his home, the break in the chain of custody should render

the guns inadmissible. Physical evidenc e is admiss ible when the possib ilit

y of misidentification or

al te ra ti on is “e li mi na te d, no t a bs ol ut el y, 18 United States v. Combs No. 01-5997

butas a matter of reasonable probability .” United States v. Allen , 106 F.3d

695, 700 (6th Cir. 1997) (citations omitted). Merely raisi ng th e poss ibil ity of tam perin g o r misidentification is insuffi cient to render eviden ce inadmissible. United States v. Kelly, 14 F.3d 11 69, 1175 ( 7th Cir. 1994). Furthermore, “challenges to the chain of custody g o to the wei ght of th e eviden ce, not it s admissib il it y. ” United States v. Levy , 904 F.2d 1026, 1030 (6th Cir. 1990), cert. denied, 498 U.S. 1091 (1991).

Edward Mil ler testi fied tha t the gun s admitted

into evidenc e were the same guns taken from his residence, returne d to him after the search, and later returned to the governme ntfor tria l. The police officer in charge of executing the search warra nt and cataloging

evidence testified that the guns were the same guns recove

red fro m Combs’ s re sidence. The trial court properl y determined

that there was no reasonable pr obability of misiden

tification. It was not pla

in error to admit the

m.
Combs next arg

ues irre levance

ought to have foreclosed

the testimony of I. J. Sandlin, and the admission of Sandlin’s four guns. Sandlin was a government witness who testified that his four gu

ns had be en stolen . His neph ew, Josh Mill e r , admitted that he had taken these four guns from Sandlin’s residence. Josh Mille r also tes tified tha t, in additi on to trading the three guns owned by Ed Miller that were the subject of the indicted offenses with Combs, h e had traded other guns wit h Combs o n d iffere

nt occas ions. Altho

ugh Josh Miller never testified that he had traded these particular four guns with Combs, Off

icer Chr is Fuga te testif ied that a t least two of these

guns were turned over to police by Combs about
a week af te r the search

of his re sidence

and his ar

rest. Becau se they were

relevant to Josh Miller’s pattern of taking guns from rel atives andtradi ng them with Comb s for d rugs and because at least two of them were turned over by Combs, it was not pla

inerror for the district c ourt to ad mit them into evidence.No. 01-5997 United States v. Combs 19

Combs finally arg

ues that a n additional gun listed on the search inventory but

not the subje ct of any

charg ed offe

nse should not have been admitted. Although this gun, owned by Ed Miller, was listed on the search inventory as being found in Combs’s residence, Josh Miller testified that he pawne d this gun and had not traded it to Combs. Ed Mille r also testified that one of his guns had been recover ed from a pawn shop, but did not specify which one. Combsargues that this gun was “planted” by

police and was “fabricated evidenc e.”

It was for the jury

to determine, based upon its assessment of the witne sses’ cr

edibility , whethe r the gu n was fou

nd in Combs’s residence, as alleged by the government, or pawned by Josh Miller. The gun was also relevan t to Josh Miller’s pattern of taking guns fr

om relati ves for u se in support of his drug habit. It was not plain error f or the distri ct court

to admit it into evidence. Alleged Prosecutorial Misconduct

Combs next argues that the prosecutor obstructed

justice by halting an internal-affairs investigation Combs requested. Combs asserts t

hat this de

prived hi m of “ac cess t o legal findi ngs that very

possibly could have cha

nged the course of his court t rial.” He also alleges that he was told that he would hav e to prove

himself in

nocent a t trial.

Both of these acts of a lleged misconduc

t took plac e prior to trial but Combs ne

ver rai sed them b efore t

h e dis trict cou

rt. That failure fore closes his opportunity to challeng e them now. F ED

. R. C RIM

. P. 12(b)(3) & (e). Moreover, Combs provides
no evidence of wrongdoing on the part of the prosecutor and fails to explain how the inte rnal-a ffairs i

nvestig ation cou

ld have affected his trial and conviction. And any misstatement regarding the bur den of proof at trial did not prejudice Combs, as the jury

was properly instructe d that the gover nme ntmust prove

Combs gui lty b eyond a rea sonable doubt. 20 United States v. Combs No. 01-5997

“Drug Addict” Jury Instruction

Combs next

c ontends he

should hav e a new t

rial bec ause the district c ourt sh ould ha ve given a “drug addict” jury instruction regarding the reliability of Eversole’ s and Josh Mi ller’s testimony. We review this claim for plain erro r because Combs did not request an addict instruction at trial. United States v. Morrow , 977 F.2d 222, 226 (6th Cir. 1992).

“T his court has long recognized the importance of a n addict-informant

instruction in appropriate cases.” Un ite d States v. Brown , 946 F.2d 1191, 1195 (6th Cir. 1991). No per
se rule, however, requires that an addict-infor mant instruction be given in all cases invol ving t he testimony o f an addi ctinforman t. Instead, “the nee d for such an instruction depends
on the circumstances of each case .” Id . Further, there is less need for a special jury

instruction about the credibility of an addict-informant

where the jury

is aware that the witness is an addict and where there was substantial corroboration for the witness’s testimony. United States v. McGhee , 882 F.2d 1095, 1100 (6th Cir. 1989).

Both Everso le and Miller admitted that they had a bused controlled

substanc es. Additionally, the testimony of the police offic er

directin g Ever sole’s pu

rchase of Oxy Contin fromCombs and the evidence found after executing the
se arch warrant corroborated their testimony

. Furthermore, th e cour t gave a specific instructi on about b oth of the se witnesse s’ credibility beca use one was a paid informant and
one was involv ed in the s ame crime as Combs. Th e court instructed the jury to consider t

he test imony of these two witnesses with more

cautio n than the testimony of other witnesses. Because the jury

knew that the witnesses were drug us ers, ev iden ce corroborated their testimony , and the court instructed the jury specific ally

to conside

r these w itnesse s ’ testimony with caution, we f

ind no plain error in the district court’s failure to give an addict instruction.No. 01-5997 United States v. Combs 21

Expert Testimony of Dan Smoot

Combs contends

t hat the trial court erred in admitting the testimony of Dan Smoot in violation of Rules 702 and 704(b) of the FederalRules of E

vidence . Combs cla

ims that Smoo t,
a n arcoti cs officer with the Kentucky State Police testifying
as the government’s expert, impermissibly testified rega rding Combs’s intent to distribute narcotics.

We have held that “[l]aw enforcement officers may testify
concer ning the methods a

nd techni ques empl oye d in an area of criminal activity and to estab lish ‘modus operandi’ of particular cr im es . K no wl ed ge of

su ch ac ti vi ty i s gener ally ‘beyond the und ers tanding of the average layman.’” United States v. Pearce , 912 F.2d 159, 163 (6th Cir. 1990) (citations omitted). Rule 704(

b), howe ver, pre vents an expert

witness fromtestifying

that a defendant in a criminal case did or did nothave the

requisite mental sta

te or condition constituting an element of the crim e charged, as ultimate issues are ma tters for the trier of fact.

Decisions ap p lying Rule 704(b) to the e xpert testimony of law enforcement officials have found i t si gnificant whether the e xpert actually refe

rred to the intent of the defendant or, inste ad, simply

described

in gene ral term s the comm on pract

ices of th ose who c learly

do possess the requisite intent, leavi ng unstated the inference that the defendant, having been cau ght engaging in more or less the same

practic es, also p ossessed the requ isite intent.

United States v. Frost , 125 F.3d 346, 383–84 (6th Cir. 1997) (citing United States v. Lipscomb , 14 F.3d 1236, 1239 (7t h Cir. 1994)).

After re vi ew in g O ff

ic er Sm oo t’ s t es ti mo ny i n i ts en ti re ty,
we conclude that he did not actually testify r egarding the intentof the defe ndant to di stribute d

rugs. Rather, he testified regarding conduct that would be consistent with anintent to 22 United States v. Combs No. 01-5997

distribute and left to the jury the f

inal conclusion regar

din g whether Combs ac tually

possessed the requisite intent. The trial court, th erefor

e, did not err in permitting th is te st im on y. Ineffective Assistance of Counsel

Combs last contends that his convictionshould be reversed because he was de

nied the e ffecti

v e assistance of trial counsel. “Ordinarily, w e do not rev iew clai ms of ineffective assistance of couns el on direct appeal.” United States v. Shabazz , 263 F.3d 603, 612 (6th Cir. 2001) (citation omitted). This rule stems from the insufficiently developed record regarding the defendant’s legal repr esentat ion that ty

pically accompanies such a claim on direct a ppeal an d the nec essity that a succe ssful cla

im show pr ejudice. Strickland v. Washington , 466 U.S. 66 8 (1984); Shabazz , 263 F.3d at 612. For these re asons, we have held that a defendant best pursues
a claim of ineffec tive assistance through a post-conviction proceeding

brough t under 28 U.S.C. § 2255. United States v. Long , 190 F.3d 471, 478 (6th Cir . 1999). If th e recor d is adequa te to permit r

eview of counsel’ s perf

ormance, however, we will consider the issue even if not raised before the district court. United Sta tes v. Go odlett , 3 F.3d 976, 980 (6th Cir. 1993).

We view this r

e cord as inadequate to permit review of Combs’s ine ffectiv e assista nce of c ounsel cl aim.

CONCLUSIO

N

For the fore going

reasons , we reverse Combs’s convictions on Count III

and Count IV. We affirm

the rema inder of his convictionand remand this case to the district court for resentencingand furthe r pr oceedin g consis tent with th

is opinion.