UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LEON COMBS, Defendant-Appellant.
No. 01-5997
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 4, 2004
2004 FED App. 0167P (6th Cir.)
Before: SILER, BATCHELDER, and COOK, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 04a0167p.06. 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.
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.
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
Count IV alleged a violation of
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
WHETHER 18 U.S.C. § 924(c) CRIMINALIZES TWO SEPARATE OFFENSES
The issue of whether or not
. . . [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)
In an earlier
The text of
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
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.
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
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
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.
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
DISTRICT COURT PROCEEDINGS
Both the government and the district court confused the elements of the two offenses criminalized by
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
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
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
There are two essential elements which must be proven beyond a reasonable doubt in order to establish the offense proscribed by this law:
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
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 the 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).
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
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.
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.
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.
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
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
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,
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.
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.
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.
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
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
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.