NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0170n.06
Filed: March 1, 2007
Case No. 05-5037
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
LEON COMBS, ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
_______________________________________ )
)
)
BEFORE: BATCHELDER and GRIFFIN, Circuit Judges; PHILLIPS*, District Judge.
THOMAS W. PHILLIPS, District Judge. Defendant Leon Combs appeals his two firearm
convictions for violating 18 U.S.C. § 924(c). He appeals his convictions on two grounds: first, that
the evidence was insufficient to convict him of the charges, and second, that there was a prejudicial
variance between the evidence and the offense as charged in the second count of the indictment.
Because defendant’s arguments lack merit, we affirm defendant’s conviction on both firearm
charges.
I. Background
*
The Honorable Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
The defendant was convicted by a jury in 2001 on two drug and two firearms charges. On
direct appeal, this court affirmed the conviction as to the drug charges, but remanded the case as to
the two firearm charges – one because the indictment was insufficient to charge him with a criminal
offense and the other because the indictment had been impermissibly amended. Those two counts
were remanded to the district court for further proceedings. United States v. Combs, 369 F.3d 925
(6th Cir. 2004).
Following this court’s opinion, the defendant was re-indicted on the firearms charges. Count
1 of that indictment charged that on January 22, 2001, the defendant used or carried a .22 caliber
pistol during and in relation to a drug trafficking crime for which he was prosecuted in a court of the
United States. Count 2 of the indictment charged that on January 22, 2001, defendant possessed
three firearms in furtherance of a drug trafficking crime for which he was prosecuted in a court of
the United States. The defendant, who opted for a bench trial, was found guilty on those charges and
was sentenced on December 27, 2004. On the same day, the district court, pursuant to this court’s
remand order, dismissed the two firearms charges contained in the original indictment.
The defendant now appeals his second conviction on the two firearm charges.
II. Analysis
A. Substantial Evidence Supports Defendant’s 18 U.S.C. § 924(c)
Conviction under Count 1 of the Indictment.
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Defendant first argues that the evidence presented at trial was insufficient to support a
conviction under 18 U.S.C. § 924(c) as charged in Count 1 of the indictment. When reviewing for
the sufficiency of evidence in support of a verdict, this court views the evidence in the light most
favorable to the prosecution and gives the prosecution the benefit of all reasonable inferences from
the testimony. United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006). The question the court
must ask is whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Evans, 883 F.2d 496, 501 (6th Cir. 1989) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In order to convict a defendant under § 924(c)’s “use or carry” prong, the government must
show that the defendant “used” or “carried” a firearm “during and in relation” to a violent or drug
crime. Bailey v. United States, 516 U.S. 137, 142-43 (1995). The proof at trial showed that during
the search of defendant’s residence on January 22, 2001, officers observed defendant dropping an
object down the front of his pants. Upon searching him, officers found that he was carrying a loaded
.22 caliber pistol and many Oxycontin and Dilaudid pills.
Defendant does not dispute that the pistol was found on his person, but contends that his
possession of it was coincidental and not in relation to a drug trafficking crime. The district judge
took judicial notice that defendant had been convicted of a drug trafficking offense – distributing
Oxycontin and Dilaudid pills on January 22, 2001. That conviction was upheld by this court.
Combs, 369 F.3d at 937. The drugs were found on defendant’s person at the time of his arrest. The
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loaded pistol was found in a pocket of his jacket.
Mere possession of a firearm during the course of criminal activity will not support a
conviction under § 924(c). United States v. Layne, 192 F.3d 556, 571 (6th Cir. 1999). In order to
establish the connection, “the firearm must have some purpose or effect with respect to the drug
trafficking crime; its presence or involvement cannot be the result of accident or coincidence.” Smith
v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). The weapon must at
least facilitate or have the potential of facilitating the drug trafficking offense. Id. (quoting United
States v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985)). See also, United States v. Warwick, 167 F.3d
965, 971 (6th Cir. 1999). In making this determination, we look not just at the defendant’s specific
intentions at the time but also at the “totality of the circumstances surrounding the commission of
the crime; the emboldened sallying forth, the execution of the transaction, the escape, and the likely
response to contingencies that might have arisen during the commission of the crime.” Warwick,
167 F.3d at 971 (quoting United States v. Brown, 915 F.2d 219, 226 (6th Cir. 1990)).
A firearm is carried “during and in relation to” a drug trafficking crime if it “furthered the
purpose or effect of the crime and its presence or involvement was not the result of coincidence.”
Combs, 369 F.3d at 933. The evidence presented at trial showed that when the officers pulled into
defendant’s residence to execute the search warrant, defendant was getting out of his car. The
officers observed defendant stuffing drugs down his trousers and he put his hand on the pistol in his
pocket as the officers approached him. Dan Smoot, a narcotics officer with the Kentucky State
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Police, testifying as the government’s expert, testified that a concealed weapon indicates to officers
that it is possessed for one of two purposes, one being as a scare tactic to keep from being robbed,
or to use in case of an actual robbery. We have held that “law enforcement officers may testify
concerning the methods and techniques employed in an area of criminal activity and to establish
‘modus operandi’ of particular crimes.” Id. at 940. A conviction under § 924(c)(1) will withstand
appellate review if the evidence is sufficient to support a finding that the defendant intended to have
the firearm available for use during or immediately following the transaction, or if it facilitated the
crime by emboldening the defendant. Warwick, 167 F.3d at 971.
Our review of the record indicates that the evidence was sufficient for the trial court to find
that defendant carried the pistol in order to facilitate the drug sales so as to support his conviction
under § 924(c) as to Count 1. The government presented evidence that when defendant was
apprehended by the officers, he reached into his pocket in an attempt to access the pistol he was
carrying. Defendant’s action suggests that he was prepared to use the pistol in an effort to evade
arrest. See, e.g., United States v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989) (quoted with approval
in Warwick, 167 F.3d at 973)(holding that evidence was sufficient to show that the defendant’s pistol
was carried “in relation to” drug trafficking where, among other things, defendant reached for his
pistol when the police approached).
We believe that, viewed in the light most favorable to the prosecution, this evidence was
sufficient to support a finding that defendant carried the pistol “in relation to” drug trafficking as
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charged in Count 1. The government presented sufficient evidence for a rational trier of fact to
conclude that defendant carried the pistol, at least in part, to facilitate the drug sales. At the very
least, the evidence indicates that the pistol had the potential of facilitating defendant’s drug
trafficking offense. Accordingly, we affirm defendant’s § 924(c) conviction on Count 1.
B. There Was No Prejudicial Variance Between the Evidence and the
Offense as Charged in Count 2 of the Indictment.
Count 2 alleged that defendant “possessed three firearms in furtherance of a drug trafficking
crime for which he was prosecuted in a court of the United States.” This count arises from an
incident in late 2000 or early 2001 when Josh Miller traded three of his father’s rifles to defendant
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 defendant’s residence. After learning about the trades, the officers
obtained a warrant to search defendant’s residence. During the search, the officers recovered the
guns that Miller testified he had traded for drugs. The officers also recovered 16 Oxycontin pills and
80 Dilaudid pills.
Defendant states that since he was not prosecuted for the underlying drug trades with Josh
Miller, there is no predicate offense for the possession charge. However, the proof at trial was that
the drug trafficking crime referred to in Count 2 was the possession with intent to distribute the
Oxycontin and Dilaudid pills recovered during the search of defendant’s residence on January 22,
2001. Although the indictment should have alleged that the predicate drug trafficking offense was
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one “for which defendant may be prosecuted in a court of the United States,” this error in the
indictment was harmless, as it was not essential to the proof necessary to convict the defendant of
the firearm offense.
As stated in Combs, 369 F.3d at 935, 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 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. Constructive amendments are variances occurring when an indictment’s terms are
effectively altered by the presentation of evidence 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.” Combs, 369 F.3d at 936; Hathaway, 798 F.2d at 910. See also,
United States v. Beeler, 587 F.2d 340 (6th Cir. 1978). Applying these precepts to defendant’s case,
we conclude that a variance occurred that resulted in no prejudice to defendant.
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The rules governing the content of indictments, variances and amendments are designed to
protect three important rights: the right under the Sixth Amendment to fair notice of the criminal
charge one will be required to meet, the right under the Fifth Amendment not to be placed twice in
jeopardy for the same offense, and the right granted by the Fifth Amendment, and sometimes by
statute, not to be held to answer for certain crimes except upon a presentment or indictment returned
by a grand jury. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8L.Ed.2d 240 (1962);
United States v. Paudilidis, 524 F.2d 644, 648 (6th Cir. 1975). 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.
In this case, the first two of these interests were in no way infringed by the variance to the
indictment. The defendant’s right to notice and fair opportunity to defend was not infringed, since
he had knowledge of the variance well in advance of trial; neither was his freedom from double
jeopardy infringed since the record was sufficiently detailed to protect him against a subsequent
prosecution for the same offense. Thus, defendant’s argument must stand or fall on the third interest
protected by the amendment procedure – the constitutional right not to be held to answer for certain
crimes except upon a presentment or indictment. Pandilidis, 524 F.2d at 648-49. If we find
constitutional error, we would have to determine whether the interest protected was so substantial
that it could not be disregarded even if the error were “harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, since the
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error permitting a variance to the indictment in this case did not reach constitutional dimensions, the
appropriateness of reversal must be determined under Rule 52(a) Fed.R.Crim.P., which provides:
“any error, defect, irregularity or variance which does not affect substantial rights shall be
disregarded.”
In this case, the defendant has failed to identify any substantial rights affected by the
variance. It is apparent from the record that the defendant, at all times knew that he had not been
prosecuted for possession of the 16 Oxycontin and 80 Dilaudid pills recovered from his residence
on January 22, 2001, but the statute does not require that defendant be prosecuted for the underlying
offenses. Section 924(c)(1)(A) provides that “any person who ... in furtherance of a drug trafficking
crime for which the person may be prosecuted in a court of the United States, possesses a firearm,
shall be guilty of an offense in violation of the law of the United States.” The evidence of the
defendant’s guilt presented by the government was convincing beyond a reasonable doubt. Under
these circumstances, we fail to see how prejudice could be identified. The error, therefore, did not
affect any of the defendant’s substantial rights and does not require reversal under Rule 52(a)
Fed.R.Crim.P.
C. Substantial Evidence Supports Defendant’s § 924(c) Conviction
under Count 2 of the Indictment
To prove defendant guilty of Count 2, the government had to show that on or about January
22, 2001, defendant knowingly possessed at least one of the specified firearms; that he did so in
furtherance of the drug trafficking crime of distribution of Oxycontin/Dilaudid; and that defendant
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committed the drug trafficking crime of distribution of Oxycontin/Dilaudid, Schedule II controlled
substances.
Josh Miller testified at trial that he traded the firearms identified in Count 2 to defendant for
Oxycontin sometime in late 2000, early 2001. The guns were recovered from defendant’s residence
during the search on January 22, 2001. Miller’s testimony that defendant did not trade the drugs
until he had the firearms in his possession, establishes that the firearms promoted the commission
of the underlying drug trafficking offense. If it reasonably appears that the firearms found on the
premises controlled or owned by a defendant and in his actual or constructive possession are to be
used to protect the drugs or otherwise facilitate a drug transaction, then such firearms are used
“during and in relation to” a drug trafficking crime. United States v. Mackey, 265 F.3d 457, 461 (6th
Cir. 2001). As found by the district judge, “the drug trafficking crime would not have occurred in
this instance without the firearms.” Therefore, there is substantial evidence in the record to support
defendant’s conviction on Count 2 that he possessed the firearms in furtherance of a drug trafficking
crime.
D. Defendant’s Second Trial Was Not Barred by Double Jeopardy, the
Mandate in His Prior Appeal or Lack of Jurisdiction
Although defendant makes these claims in his brief, he does so in a perfunctory manner
without any development. Thus, these issues are deemed waived. See United States v. Reed, 167
F.3d 984, 993 (6th Cir. 1999), quoting United States v. Zannino, 895 F.2d 1, 17 (1st Circuit 1990)
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(noting the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived).
III. Conclusion
Because there was substantial evidence to support defendant’s convictions on both firearm
charges, we affirm the decision of the district court.
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