United States of America v. Leon Combs

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,
THOMPSON HINE, 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, 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
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

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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
1In 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
unde r either p rong of the statute. Nance, 40 Fed. Appx. at 64– 67.
2In Lott, defendant’s indictment charged that he “knowingly carried
and possessed a firearm during and in relation to and in furtherance o f 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.

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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

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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.

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No. 01-5997 United States v. Combs 9
3H.R. REP. NO . 105-344 , at 11 (1997).
4Ma ckey, 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

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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’s Avery 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
5The jury instructions also improperly referred to Count II as the
pred icate offense for this violation. T he district court corrected this
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
IV.
6Combs argues that, by this language, the district court imprope rly
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

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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.

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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

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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).
Edward Miller 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.

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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 addict-
informant. 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.

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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 re-
sentencing and further proceeding consistent with this
opinion.

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