1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0167P (6th Cir.)

File Name: 04a0167p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEON COMBS,

Defendant-Appellant.

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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 

Before: SILER, BATCHELDER, and COOK, Circuit

Judges.

_________________

COUNSEL

ON BRIEF: Keely J. O’Bryan, John T. Sunderland,

THOMPSONHINE,Columbus,Ohio, for Appellant. Charles

P. Wisdom, Jr., ASSISTANT UNITED STATES

ATTORNEY, Lexington, Kentucky, for Appellee. Leon

Combs, Manchester, Kentucky, pro se.

2 United States v. Combs No. 01-5997

_________________

OPINION

_________________

COOK,CircuitJudge. Defendant-Appellant, Leon Combs,

appeals his conviction on two counts of trafficking drugs with

the involvement of a firearm and two counts of possession

and distribution of drugs. We reverse Combs’s conviction on

Count III, finding the indictment insufficient as failing to

charge him with a criminal offense. As to his indictment on

Count IV, we find it to have been impermissibly amended and

thus also reverse his conviction on Count IV. We affirm

Combs’s conviction on the remaining counts. 

On January 25, 2001, a grand jury returned a five-count

indictment against Combs. A jury then convicted Combs of

Counts I through IV of the indictment. Count I charged a

violation of 21 U.S.C. § 841(a)(1) and alleged that Combs

possessed and distributed OxyContin, a schedule II controlled

substance. This Count concerned a November 14, 2000

incident where Joyce Eversole, a cooperating witness, made

a controlled buy of 25 OxyContin pills from Combs. On that

date, the police gave Eversole $1000 in “buy” money and

drove her to a meeting with Combs. Once there, Eversole

entered Combs’s car and rode a short distance with him.

Combs then exited the car and told Eversole that he was

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.

Count IV alleged a violation of 18 U.S.C. § 924(c) and

provided that Combs “in furtherance of a drug trafficking

crime . . . did unlawfully possess firearms. . . .” This Count

stems from an incident in late 2000 or early 2001 when Josh

Miller traded three of his father’s rifles with Combs for drugs.

Miller told the police about these and other trades of guns for

drugs and said that many of these transactions took place at

Combs’s residence. After learning about these trades, the
No. 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 traded 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 he was carrying a

loaded .22 caliber pistol and many OxyContin and Dialudid

pills. This discovery led to Count II, alleging a violation of

21 U.S.C. § 841(a)(1) and charging Combs with possession

of schedule II drugs, OxyContin and Dialudid, with the intent

to distribute. Count III followed from the loaded pistol; the

count alleged an additional violation of 18 U.S.C. § 924(c)

and provided 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) CRIMINALIZES TWO

SEPARATE OFFENSES

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

of 18 U.S.C. § 924(c). To clarify the ensuing analysis of

Combs’s challenge, we first dissect the statute, labeling the

two allegedly distinct offenses:

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

crime of violence or drug trafficking crime . . . for which

the person may be prosecuted in a court of the United

States, uses or carries a firearm, (“use” offense)

or

who, in furtherance of any such crime, possesses a

firearm, shall, in addition to the punishment for such

crime of violence or drug trafficking crime [receive an

additional penalty]. (“possession” offense) 

4 United States v. Combs No. 01-5997

1

In Nance, defendant challenged the denial of his motion for acquittal

on a charge for violation of 18 U.S.C. § 924(c). This court examined

whether a rational finder of fact could conclude either that defendant

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

that, under the facts presented, the finder of fact could not have convicted

under either prong of the statute. Nance, 40 Fed. Appx. at 64–67. 

2

In Lott, defendant’s indictment charged that he “knowingly carried

and possessed a firearm during and in relation to and in furtherance of a

drug trafficking offense” in violation of 18 U.S.C. § 924(c). Defendant

challenged the district court’s denial of a motion for acquittal. Similar to

our analysis in Nance, the Tenth Circuit held that the indictment contained

two distinct offenses for which the jury could have found the defendant

guilty. The court then examined the evidence and held that, under either

the “carrying a weapon during and in relation to” or the “possession of a

weapon in furtherance of” prong of the statute, there was sufficient

evidence to convict defendant on this charge. Lott, 310 F.3d at 1246–48.

18 U.S.C. § 924(c) (emphasis added).

In an earlier § 924(c) case this court declined to decide

whether this statute sets forth two separate offenses or simply

specifies alternative means for committing the same offense.

See United States v. Davis, 306 F.3d 398, 416 (6th Cir. 2002)

(assuming, without deciding, that the statute sets forth

separate offenses). In at least one case, however, we treated

the two prongs of this statute as constituting two distinct

offenses. United States 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 1246, 1250–53 (11th Cir. 2002) (also

treating the statute as setting forth two separate offenses).

The statutory text, legislative history, and requisite proof

argue for the Nance perspective that 18 U.S.C. § 924(c)

criminalizes two separate offenses—(1) using or carrying a

firearm during and in relation to a drug trafficking crime, and

(2) possessing a firearm in furtherance of a drug trafficking

crime. 
No. 01-5997 United States v. Combs 5

Statutory Text

The text of 18 U.S.C. § 924(c) belies the view that the

statute simply identifies alternative means for committing a

single offense. The two prongs of the statute are separated by

the disjunctive “or,” which, according to the precepts of

statutory construction,suggests the separate prongs must have

different meanings. United States v. Hill, 79 F.3d 1477, 1483

(6th Cir. 1996). See also Stevens v. Employer-Teamsters

Joint Council No. 84 Pension Fund, 979 F.2d 444, 452 (6th

Cir. 1992) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979)). 

Moreover, the statutory language structures the prohibited

acts into distinct dependent clauses with different modifiers.

The district court in United States v. Pleasant, 125 F. Supp.

2d 173, 178 (E.D. Va. 2000), comprehensively analyzed the

statutory structure as follows:

The subject of the sentence at issue is “any person.” The

term “who” is a relative pronoun within the first

dependent clause. The prepositional phrase “during and

in relation to” modifies the relative pronoun; “uses or

carries” are the compound verbs; and “firearm” is the

direct object.

Rather than adding a second modifier to the first relative

pronoun, (i.e. “Any person who, during and relation to

any crime of violence or drug trafficking crime . . . , uses

or carries a firearm, or in furtherance of any such crime,

possesses a firearm”), the statute begins a second

dependent clause with the second relative pronoun

“who.” This second pronoun is then modified by the

separate phrase “in furtherance of any such crime.” The

verb in the second dependent clause is “possesses” and

the direct object is again a “firearm.” 

The use of a second relative pronoun, the presence of a

second dependent clause and the choice of different

6 United States v. Combs No. 01-5997

modifiers for the prohibited conduct confirm that the

second prohibited act is quite distinct from the first. In

the first clause, the use or carriage of the firearm must be

“during and in relation to” the predicate crime, while, in

the second clause, the possession of the firearm must be

“in furtherance of such crime.”

Legislative History

Congress enacted the current version of the statute in 1998

in response to the Supreme 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). Bailey examined

an earlier version of this statute that prohibited only “using

or carrying a firearm during and in relation to” drug

trafficking. 18 U.S.C. § 924(c)(1) (1994). The Bailey Court

overruled several circuit court decisions upholding

convictions under the “use” provision of the prior statute

without requiring proof that the firearm was somehow

actively employed during the drug trafficking crime. Bailey,

516 U.S. at 144. Bailey concluded that “use” of a firearm

must mean more than mere possession and requires some

active employment of the firearm by a person who commits

a drug offense. Bailey, 516 U.S. at 143–44.

Congress regarded the Bailey decision as an “implicit

invitation to clarify the statute.” Violent and Drug

Trafficking Crime: The Effect of the Bailey Decision on

Prosecution Under Section 924(c) Before the Senate Comm.

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

G. Hungar); see also 143 CONG.REC. 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). Congress

considered several bills with differing language before

eventually adding the words “possess a firearm in furtherance

of the crime.” See United States v. Pleasant, 125 F. Supp. 2d

173, 180–81 (E.D. Va. 2000) (summarizing the differing

approaches of several bills and noting that Congress rejected

proposed language that merely added possession to the list of
No. 01-5997 United States v. Combs 7

prohibited actions, without requiring that possession be “in

furtherance of” the crime).

The legislative history of the amendment bolsters the view

that Congress intended “in furtherance of” to create a

different standard of conduct than did the “during and in

relation to” language. From the House Committee Report we

know that members regarded “in furtherance of” as a slightly

higher standard, encompassing the “during and in relation to”

language. H.R. REP. NO. 105-344, at 11 (1997). “The

government must clearly show that a firearm was possessed

to advance or promote the commission of the underlying

offense.” Id. at 12. See also Mackey, 265 F.3d at 461. By its

adding possession as a prohibited act, and requiring a higher

standard of participation to charge a defendant with the act,

we understand Congress to have delineated a new offense

within the same statute.

Different Proof Required for Each Offense

Courts test the presence of separate offenses by asking if

each requires proof of an additional fact that the other does

not. Davis, 306 F.3d at 415–16. This Circuit’s decisions

require the government to present different proof to show

“using or carrying a firearm during and in relation to” a drug

trafficking crime from that required to show “possession of a

firearm in furtherance of” a drug trafficking crime. 

a. Use offense - “Using or carrying . . . during and in

relation to”

As discussed above, the Supreme Court interprets “use” of

a firearm as “connot[ing] more than mere possession of a

firearm” and requires some active employment of the firearm

by the person committing the drug offense. Bailey, 516 U.S.

at 143. And in Muscarello v. United States, 524 U.S. 125

(1998), the Supreme Court interpreted the statutory term

“carry” to mean the firearm must be on the person or

accompanying the person, as when “a person . . . knowingly

8 United States v. Combs No. 01-5997

possesses and conveys firearms in a vehicle, including in the

locked glove compartment or trunk of a car. . . .” Id. at

126–27. See also United States v. Clemons, 9 Fed. Appx.

286, 290 (6th Cir. 2001) (unpublished). After Muscarello,

this court concluded that, to constitute a “carrying” 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 requires that the

firearm “furthered the purpose or effect of the crime and its

presence or involvement was not the result of coincidence.”

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 offense - “Possession . . . in furtherance

of”

In Mackey, 265 F.3d at 461–62, we interpreted the “in

furtherance of” language as requiring a higher standard of

participation than the “during and in relation to” language,

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

crime charged.” Id. at 462. It opined that guns strategically

located for quick and ease of use would demonstrate

“possession in furtherance of.” Id. Mackey also listed some

indicative factors for examining whether the possession was

“in furtherance of” the crime, including: (1) whether the

firearm was loaded; (2) the type of firearm; (3) whether the

weapon was stolen or legitimately possessed; (4) the type of

drug activity conducted; and (5) the time and circumstances

under which the gun was found. Id. 

The Fifth Circuit cogently set forth circumstances that

might violate the “during and in relation to” prong of the

statute, but not the “in furtherance of ” prong.
No. 01-5997 United States v. Combs 9

3

H.R. REP. NO. 105-344, at 11 (1997).

4

Mackey, 265 F.3d at 461.

There are situations where a possession would be “during

and in relation to” drug trafficking without “furthering or

advancing” that activity. For example, a drug buyer

might steal a gun from his dealer’s house during a deal.

The buyer’s possession would be during and in relation

to drug trafficking, but the buyer’s possession would not

advance that operation. As another example, if a buyer

came to the seller’s home for a purchase and left a gun

there by mistake, the seller’s possession would be

“during and in relation to” the trafficking without

furthering 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 from “during and in relation

to” and requires the government to prove a defendant used the

firearm with greater participation in the commission of the

crime or that the firearm’s presence in the vicinity of the

crime was something more than mere chance or coincidence.

Although the differences between the standards are “subtle”3

and “somewhat elusive,”4 they exist nonetheless.

Considering all the foregoing, we confirm here that 18 U.S.C.

§ 924(c) criminalizes two separate and distinct offenses.

DISTRICT COURT PROCEEDINGS

Both the government and the district court confused the

elements of the two offenses criminalized by 18 U.S.C.

§ 924(c) throughout Combs’s proceedings. Indeed, any

attempt to unwind the mismatched elements of the statutory

prongs in the indictment, the jury instructions, and the

10 United States v. Combs No. 01-5997

conviction, exposes the hopelessly “jumbled mess” that

resulted. See Pleasant, 125 F. Supp. 2d at 183.

Count III - Sufficiency of the Indictment 

We review the sufficiency of an indictment de novo. United

States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999)

(citations omitted). When an indictment goes unchallenged

until appeal, it must be liberally construed in favor of its

sufficiency. Id. Furthermore, unless the defendant can show

prejudice, a conviction will not be reversed when the

indictment is first challenged on appeal unless the indictment

cannot reasonably be construed to charge a crime. Id. 

Count III of Combs’s indictment charged him with

“possess[ing] a firearm during and in relation to” a drug

trafficking crime—utilizing one element from each of the two

distinct § 924(c) offenses. Indicting Combs based on the

conduct from the § 924(c) “possession” offense in

conjunction with the standard of participation (during and in

relation) from the other “use” offense results in a failure to

charge him with any codified federal crime. The court’s jury

instructions for Count III tracked the indictment error,

likewise intermixing elements of the two different crimes.

Then to further confuse matters, when the court defined the

“during and in relation to” standard of participation, it

employed a definition more akin to this circuit’s definition of

“in furtherance of.” And, finally, the court journalized

Combs’s Count III conviction as a “use” offense, not the

“possession” offense found in the flawed indictment. 

The government initially conceded error in this case and

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

government, with leave of court, filed a substitute brief

withdrawing its concession of error and instead arguing the

correctness and sufficiency of the indictment or, in the
No. 01-5997 United States v. Combs 11

alternative, urging resolution based on harmless error. The

government’s substitute brief argues the recognized

similarities between the “during and in relation to” and the “in

furtherance of” elements of § 924(c), citing our Mackey

decision and the Tenth Circuit’sAvery decision. See Mackey,

265 F.3d 461–62; United States v. Avery, 295 F.3d 1158,

1174–75 (10th Cir.), cert. denied, 537 U.S. 1024 (2002).

These similarities, coupled with the liberal standard an

appellate court must apply to post-verdict indictment

challenges, the government posits, allow the indictment for

Count III to be reasonably construed as charging Combs with

the “possession” offense. We disagree. Unlike Combs’s

case, Mackey concerned the sufficiency of the evidence and

requisite standard of proof necessary to support a possession

conviction under § 924(c), not the sufficiency of the

indictment. The government’s reliance on Avery is similarly

misplaced for reasons unrelated to the sufficiency of the

indictment, as will be discussed in conjunction with our

analysis of Count IV.

Because Combs’s indictment on Count III cannot be

reasonably construed to have charged him with a crime under

federal law, we reverse his conviction and remand to the

district court to dismiss the indictment for failure to charge an

offense.

Count IV - Amending the Indictment

Unlike Count III, Count IV of the indictment properly

charged a § 924(c) possession offense. The jury instructions,

however, again cross-matched the conduct from the

“possession” offense with the standard of participation from

the wholly distinct “use” offense:

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 improperly referred to Count II as the

predicate offense for this violation. The district court corrected this

misstatement later and properly instructed that the sale of drugs in

exchange for firearms to Josh Miller was the predicate offense for Count

IV.

6

Combs argues that, by this language, the district court improperly

defined “use,” citing United States v. Warwick, 167 F.3d 965 (6th Cir.

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.

First: That on or about the date and place alleged in the

indictment, the defendant, Leon Combs possessed a

firearm, (from the “possession” offense) and

Second: That he did so during and in relation to (from

the “use” offense) a drug trafficking crime. 

J.A. at 68 (emphasis added).5 And again, in its instructions

on this Count, the court defined the requisite conduct for

finding the “use” offense rather than the “possession” offense

charged by this Count of the indictment by saying: “A person

who trades a firearm for drugs uses the firearm during and in

relation to a drug trafficking offense.” J.A. at 68–69

(emphasis added).6 Plus, the pertinent “Judgment In a

Criminal Case” reflects Combs being convicted on Count IV

for the “use” offense as opposed to the “possession” offense

for which he was indicted.

In its original brief, the government concluded that the

district court’s incorrect jury instructions had constructively

amended Count IV of the indictment. It recanted that position

in its substitute brief and now urges that the jury instructions

did not constructively amend Count IV, nor Count III

(assuming sufficiency of the Count III indictment). 

 A grand jury’s indictment protects three constitutional due

process rights, namely: the Sixth Amendment’s right to fair
No. 01-5997 United States v. Combs 13

notice of the criminal charges against which one will need to

defend; and the Fifth Amendment’s dual protections against

twice placing a defendant in jeopardy for the same offense,

and holding the defendant to answer for crimes not presented

to or indicted by a grand jury. United States v. Pandilidis,

524 F.2d 644, 648 (6th Cir. 1975). Accordingly, “the rule

preventing the amendment of an indictment should be applied

in a way that will preserve these rights from invasion; where

these rights are not threatened, rules governing indictments

should not be applied in such a way as to defeat justice fairly

administered.” Id. 

This court recognizes two forms of modification to

indictments: amendments and variances. Amendments occur

“when the charging terms of the indictment are altered, either

literally or in effect, by prosecutor or court after the grand

jury has last passed on them.” United States v. Ford, 872

F.2d 1231, 1235 (6th Cir. 1989) (citations omitted).

Amendments are considered prejudicial per se, warranting

reversal of a conviction, because they “directly infringe upon

the fifth amendment guarantee” to hold a defendant

answerable only for those charges levied by a grand jury. Id.

Variances, however, occur “when the charging terms of an

indictment are left unaltered, but the evidence offered at trial

proves facts materially different from those alleged in the

indictment” and are not reversible error unless the defendant

can prove it prejudiced his defense. Id. See also United

States v. Hathaway, 798 F.2d 902, 910–11 (6th Cir. 1986)

(citations omitted). Between these distinctions lies a more

subtle modification to the indictment, a constructive

amendment, which is what the government argues occurred

here. Constructive amendments are variances occurring when

an indictment’s terms are effectively altered by the

presentation of evidence and jury instructions that “so modify

essential elements of the offense charged that there is a

substantial likelihood the defendant [was] convicted of an

offense other than that charged in the indictment.” Hathaway,

798 F.2d at 910. See also 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

an impermissible amendment of Count IV of the indictment

occurred. Though indicted on a charge of unlawful

possession of a firearm under § 924(c), he was nevertheless

convicted of a different offense—unlawful use and carrying

of a firearm. We categorize this as an indictment “literally

altered” by the court, constituting per se prejudice to the

defendant. The jury instructions facilitated the amendment,

first intermixing elements of both offenses, then providing a

supplemental explanation aligned with the unindicted “use”

offense, for which Combs was ultimately convicted, instead

of the “possession” offense, for which he was originally

indicted. We reject the government’s argument that what

occurred was a variance, in the form of a constructive

amendment, that resulted in no prejudice to Combs. Because

the record establishes that Combs was convicted of an offense

that was not the subject of his indictment, his conviction on

Count IV must be reversed. 

Finally, with the benefit of the foregoing review of the law

concerning modification of indictments, we return to our

Count III analysis to distinguish the factually similar, but

legally dissimilar, Avery case. The government views Avery

as support for labeling Count III a constructive

amendment—harmless in light of the evidence presented

against Combs. Though Avery’s indictment suffered from

the identical mismatch of § 924(c) elements as does Combs’s

Count III, the difference between our conclusion of

insufficiency and the Tenth Circuit decision to uphold the

Avery indictment on the basis that “in furtherance of” and

“during and in relation to” carry substantially the “same

import,” is explained by our circuit’s assessment, both here

and in Nance, that § 924(c) criminalized two distinct offenses.

Moreover, Combs differs from Avery in another crucial

aspect. Avery, unlike Combs, was indicted on and convicted

of a “possession” offense, whereas Combs was indicted on a

“possession” offense, but was later convicted of a “use”

offense. 
No. 01-5997 United States v. Combs 15

Combs’s Claims Regarding Count I

Combs next alleges that his indictment on Count I was only

obtained through perjured testimony and that there was

insufficient evidence supporting his conviction on that Count.

We disagree.

With respect to the perjured testimony, Combs insists the

police officer testified falsely to the grand jury. But Combs

forfeited this issue by not raising it before trial. FED. R.

CRIM. 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

the jury’s verdict that Combs was guilty of this offense.

United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996)

(citing United States v. Mechanik, 475 U.S. 66, 71-73

(1986)).

Combs also argues as to his Count I conviction that the

government presented inadequate evidence—that the

testimony of the police officer who advised and directed

Eversole’s activities was insufficient because of a faulty

investigation. Combs also challenges the credibility of

Eversole’s testimony. To obtain a conviction under this

Count, the government needed to prove that Combs

knowingly or intentionally possessed a controlled substance

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

The jury had the best opportunity to judge the credibility of

these witnesses, and we must draw all reasonable inferences

consistent with its verdict. United States v. Avery, 128 F.3d

966, 971 (6th Cir. 1997). If believed, these witnesses

provided ample evidence that: Eversole contacted Combs to

obtain OxyContin; Combs drove Eversole to a meeting with

his supplier of OxyContin; Eversole hid in the car 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 residence, calling it deficient so as to entitle him

to suppression of evidence the search produced. This court

reviews a district court’s decision on a motion to suppress

under two complementary standards. United States v. Leake,

998 F.2d 1359, 1362 (6th Cir. 1993). First, we must uphold

the district court’s factual findings unless clearly erroneous.

United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999).

Second, legal conclusions as to the existence of probable

cause are reviewed de novo. Id. In reviewing the district

court’s decision, the evidence must be viewed in the light

most favorable to the government. United States v. Walker,

181 F.3d 774, 776 (6th Cir. 1999).

Combs also objects to the affidavit used to obtain the

warrant, claiming it mischaracterized as “stolen” the guns that

Josh Miller traded for drugs. Combs argues that because

neither Josh Miller nor his father, Ed Miller, told the police

that the guns were “stolen,” that aspect of the affidavit was

false, invalidating the warrant and entitling him to

suppression of the evidence gained thereby. Under Rule

12(b)(3)(C) & (e) of the Federal Rules of Criminal Procedure,

Combs also forfeited this alleged error because he did not

raise it in his original motion to suppress. Moreover, it is

immaterial to the suppression question whether or not the

guns were “stolen.” Josh Miller testified that he traded

Combs certain guns for OxyContin, and the warrant permitted

a search to find the guns—stolen or not—plus any other

evidence of illegal drug activity. 

Combs next argues that the search warrant lacked probable

cause because it was issued based on an affidavit lacking

information about the informant’s reliability. “An issuing

judge’s findings of probable cause should be given great

deference by the reviewing court and should not be reversed

unless arbitrarily exercised.” United States v. Miller, 314

F.3d 265, 268 (6th Cir. 2002), cert. denied, 123 S. Ct. 2261

(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

uncover evidence of wrongdoing, the warrant must be upheld.

Id.

This court recognizes that “[w]hen a witness has seen

evidence in a specific location in the immediate past, and is

willing to be named in the affidavit, the ‘totality of the

circumstances’ 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 issuance

of a warrant, where an affidavit lacked information about the

named informant’s reliability. See Miller, 314 F.3d at 270;

United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir.),

cert. denied, 522 U.S. 925 (1997).

Josh Miller was 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 Eversole’s prior purchase of OxyContin

from Combs. Thus, probable cause supported the issuance of

the warrant. 

Evidentiary Issue Regarding Firearms

Combs claims that the district court improperly admitted

into evidence: (1) the firearms seized from Combs’s home;

(2) other firearms stolen from I. J. Sandlin; and (3) the

testimony of I. J. Sandlin. This court reviews these claims for

plain error because Combs failed to object to the introduction

of this evidence at trial. United States v. Cox, 957 F.2d 264,

267 (6th Cir. 1992). 

Combs first claims that because the police released the

seized guns to their owner, Edward Miller (Josh Miller’s

father) after their search of his home, the break in the chain of

custody should render the guns inadmissible.

Physical evidence is admissible when the possibility of

misidentification or alteration is “eliminated, not absolutely,

18 United States v. Combs No. 01-5997

but as a matter of reasonable probability.” United States v.

Allen, 106 F.3d 695, 700 (6th Cir. 1997) (citations omitted).

Merely raising the possibility of tampering or

misidentification is insufficient to render evidence

inadmissible. United States v. Kelly, 14 F.3d 1169, 1175 (7th

Cir. 1994). Furthermore, “challenges to the chain of custody

go to the weight of the evidence, not its admissibility.”

United States v. Levy, 904 F.2d 1026, 1030 (6th Cir. 1990),

cert. denied, 498 U.S. 1091 (1991).

EdwardMiller testified that the guns admitted into evidence

were the same guns taken from his residence, returned to him

after the search, and later returned to the government for trial.

The police officer in charge of executing the search warrant

and cataloging evidence testified that the guns were the same

guns recovered from Combs’s residence. The trial court

properly determined that there was no reasonable probability

of misidentification. It was not plain error to admit them.

Combs next argues irrelevance 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 guns had been stolen. His nephew, Josh Miller,

admitted that he had taken these four guns from Sandlin’s

residence. Josh Miller also testified that, in addition to

trading the three guns owned by Ed Miller that were the

subject of the indicted offenses with Combs, he had traded

other guns with Combs on different occasions. Although Josh

Miller never testified that he had traded these particular four

guns with Combs, Officer Chris Fugate testified that at least

two of these guns were turned over to police by Combs about

a week after the search of his residence and his arrest.

Because they were relevant to Josh Miller’s pattern of taking

guns from relatives and trading them with Combs for drugs

and because at least two of them were turned over by Combs,

it was not plain error for the district court to admit them into

evidence. 
No. 01-5997 United States v. Combs 19

Combs finally argues that an additional gun listed on the

search inventory but not the subject of any charged offense

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 pawned

this gun and had not traded it to Combs. Ed Miller also

testified that one of his guns had been recovered from a pawn

shop, but did not specify which one. Combs argues that this

gun was “planted” by police and was “fabricated evidence.”

It was for the jury to determine, based upon its assessment

of the witnesses’ credibility, whether the gun was found in

Combs’s residence, as alleged by the government, or pawned

by Josh Miller. The gun was also relevant to Josh Miller’s

pattern of taking guns from relatives for use in support of his

drug habit. It was not plain error for the district 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 that this deprived him of “access to legal

findings that very possibly could have changed the course of

his court trial.” He also alleges that he was told that he

would have to prove himself innocent at trial.

Both of these acts of alleged misconduct took place prior to

trial but Combs never raised them before the district court.

That failure forecloses his opportunity to challenge them now.

FED. R. CRIM. P. 12(b)(3) & (e). Moreover, Combs provides

no evidence of wrongdoing on the part of the prosecutor and

fails to explain how the internal-affairs investigation could

have affected his trial and conviction. And any misstatement

regarding the burden of proof at trial did not prejudice

Combs, as the jury was properly instructed that the

government must prove Combs guilty beyond a reasonable

doubt.

20 United States v. Combs No. 01-5997

“Drug Addict” Jury Instruction

Combs next contends he should have a new trial because

the district court should have given a “drug addict” jury

instruction regarding the reliability of Eversole’s and Josh

Miller’s testimony. We review this claim for plain error

because Combs did not request an addict instruction at trial.

United States v. Morrow, 977 F.2d 222, 226 (6th Cir. 1992).

“This court has long recognized the importance of an

addict-informant instruction in appropriate cases.” United

States v. Brown, 946 F.2d 1191, 1195 (6th Cir. 1991). No per

se rule, however, requires that an addict-informant instruction

be given in all cases involving the testimony of an addictinformant. Instead, “the need 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 Eversole and Miller admitted that they had abused

controlled substances. Additionally, the testimony of the

police officer directing Eversole’s purchase of OxyContin

from Combs and the evidence found after executing the

search warrant corroborated their testimony. Furthermore,the

court gave a specific instruction about both of these

witnesses’ credibility because one was a paid informant and

one was involved in the same crime as Combs. The court

instructed the jury to consider the testimony of these two

witnesses with more caution than the testimony of other

witnesses. 

Because the jury knew that the witnesses were drug users,

evidence corroborated their testimony, and the court

instructed the jury specifically to consider these witnesses’

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

Expert Testimony of Dan Smoot

Combs contends that the trial court erred in admitting the

testimony of Dan Smoot in violation of Rules 702 and 704(b)

of the Federal Rules of Evidence. Combs claims that Smoot,

a narcotics officer with the Kentucky State Police testifying

as the government’s expert, impermissibly testified regarding

Combs’s intent to distribute narcotics. 

We have held that “[l]aw enforcement officers may testify

concerning the methods and techniques employed in an area

of criminal activity and to establish ‘modus operandi’ of

particular crimes. Knowledge of such activity is generally

‘beyond the understanding of the average layman.’” United

States v. Pearce, 912 F.2d 159, 163 (6th Cir. 1990) (citations

omitted). Rule 704(b), however, prevents an expert witness

from testifying that a defendant in a criminal case did or did

not have the requisite mental state or condition constituting an

element of the crime charged, as ultimate issues are matters

for the trier of fact. 

Decisions applying Rule 704(b) to the expert testimony

of law enforcement officials have found it significant

whether the expert actually referred to the intent of the

defendant or, instead, simply described in general terms

the common practices of those who clearly do possess

the requisite intent, leaving unstated the inference that

the defendant, having been caught engaging in more or

less the same practices, also possessed the requisite

intent. 

United States v. Frost, 125 F.3d 346, 383–84 (6th Cir. 1997)

(citing United States v. Lipscomb, 14 F.3d 1236, 1239 (7th

Cir. 1994)).

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

22 United States v. Combs No. 01-5997

distribute and left to the jury the final conclusion regarding

whether Combs actually possessed the requisite intent. The

trial court, therefore, did not err in permitting this testimony.

Ineffective Assistance of Counsel

Combs last contends that his conviction should be reversed

because he was denied the effective assistance of trial

counsel. “Ordinarily, we do not review claims of ineffective

assistance of counsel 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 representation that typically

accompanies such a claim on direct appeal and the necessity

that a successful claim show prejudice. Strickland v.

Washington, 466 U.S. 668 (1984); Shabazz, 263 F.3d at 612.

For these reasons, we have held that a defendant best pursues

a claim of ineffective assistance through a post-conviction

proceeding brought under 28 U.S.C. § 2255. United States v.

Long, 190 F.3d 471, 478 (6th Cir. 1999). If the record is

adequate to permit review of counsel’s performance,

however, we will consider the issue even if not raised before

the district court. United States v. Goodlett, 3 F.3d 976, 980

(6th Cir. 1993).

We view this record as inadequate to permit review of

Combs’s ineffective assistance of counsel claim.

CONCLUSION

For the foregoing reasons, we reverse Combs’s convictions

on Count III and Count IV. We affirm the remainder of his

conviction and remand this case to the district court for resentencing and further proceeding consistent with this

opinion.