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

                             1
No. 01-5997                        United States v. Combs          3    4       United States v. Combs                              No. 01-5997

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

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

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

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

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

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

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

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

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

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

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

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