U.S. v. Combs
| Decision Date | 04 June 2004 |
| Docket Number | No. 01-5997.,01-5997. |
| Citation | 369 F.3d 925 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leon COMBS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Keely J. O'Bryan, John T. Sunderland, Thompson Hine (briefed), Columbus, OH, for Appellant.
Charles P. Wisdom, Jr. (briefed), Assistant United States Attorney, Lexington, KY, for Appellee.
Leon Combs (briefed), Manchester, KY, pro se.
Before: SILER, BATCHELDER, and COOK, Circuit Judges.
Defendant-Appellant, Leon Combs, appeals his conviction on two counts of trafficking drugs with the involvement of a firearm and two counts of possession and distribution of drugs. We reverse Combs's conviction on Count III, finding the indictment insufficient as failing to charge him with a criminal offense. As to his indictment on Count IV, we find it to have been impermissibly amended and thus also reverse his conviction on Count IV. We affirm Combs's conviction on the remaining counts.
On January 25, 2001, a grand jury returned a five-count indictment against Combs. A jury then convicted Combs of Counts I through IV of the indictment. Count I charged a violation of 21 U.S.C. § 841(a)(1) and alleged that Combs possessed and distributed OxyContin, a schedule II controlled substance. This Count concerned a November 14, 2000 incident where Joyce Eversole, a cooperating witness, made a controlled buy of 25 OxyContin pills from Combs. On that date, the police gave Eversole $1000 in "buy" money and drove her to a meeting with Combs. Once there, Eversole entered Combs's car and rode a short distance with him. Combs then exited the car and told Eversole that he was going to meet a man who would supply him with the pills. When Combs returned, he sold the pills to Eversole. Eversole turned the pills over to the police.
Count IV alleged a violation of 18 U.S.C. § 924(c) and provided that Combs "in furtherance of a drug trafficking crime ... did unlawfully possess firearms...." This Count stems from an incident in late 2000 or early 2001 when Josh Miller traded three of his father's rifles with Combs for drugs. Miller told the police about these and other trades of guns for drugs and said that many of these transactions took place at Combs's residence. After learning about these trades, the police obtained a warrant to search the residence. During the search, the police recovered the guns that Miller traded for the drugs.
During the search of the residence, officers observed Combs dropping an object down the front of his pants. Upon searching Combs, the police found that he was carrying a loaded .22 caliber pistol and many OxyContin and Dialudid pills. This discovery led to Count II, alleging a violation of 21 U.S.C. § 841(a)(1) and charging Combs with possession of schedule II drugs, OxyContin and Dialudid, with the intent to distribute. Count III followed from the loaded pistol; the count alleged an additional violation of 18 U.S.C. § 924(c) and provided that Combs "during and in relation to a drug trafficking crime... did possess a ... pistol ..." at the time of his search.
The issue of whether or not § 924(c) criminalizes two distinct offenses directs the outcome of Combs's primary challenges to his conviction. Counts III and IV of Combs's indictment (firearms charges) purport to set forth violations of 18 U.S.C. § 924(c). To clarify the ensuing analysis of Combs's challenge, we first dissect the statute, labeling the two allegedly distinct offenses:
... [A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, ("use" offense)
or
who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment for such crime of violence or drug trafficking crime [receive an additional penalty]. ("possession" offense)
18 U.S.C. § 924(c) (emphasis added).
In an earlier § 924(c) case this court declined to decide whether this statute sets forth two separate offenses or simply specifies alternative means for committing the same offense. See United States v. Davis, 306 F.3d 398, 416 (6th Cir.2002) (). In at least one case, however, we treated the two prongs of this statute as constituting two distinct offenses. United States v. Nance, 40 Fed.Appx. 59, 64-67 (6th Cir.2002) (unpublished).1 See also United States v. Lott, 310 F.3d 1231, 1246 (10th Cir.2002);2 United States v. Timmons, 283 F.3d 1246, 1250-53 (11th Cir.2002) (). The statutory text, legislative history, and requisite proof argue for the Nance perspective that 18 U.S.C. § 924(c) criminalizes two separate offenses — (1) using or carrying a firearm during and in relation to a drug trafficking crime, and (2) possessing a firearm in furtherance of a drug trafficking crime.
The text of 18 U.S.C. § 924(c) belies the view that the statute simply identifies alternative means for committing a single offense. The two prongs of the statute are separated by the disjunctive "or," which, according to the precepts of statutory construction, suggests the separate prongs must have different meanings. United States v. Hill, 79 F.3d 1477, 1483 (6th Cir.1996). See also Stevens v. Employer-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d 444, 452 (6th Cir.1992) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)).
Moreover, the statutory language structures the prohibited acts into distinct dependent clauses with different modifiers. The district court in United States v. Pleasant, 125 F.Supp.2d 173, 178 (E.D.Va.2000), comprehensively analyzed the statutory structure as follows:
The subject of the sentence at issue is "any person." The term "who" is a relative pronoun within the first dependent clause. The prepositional phrase "during and in relation to" modifies the relative pronoun; "uses or carries" are the compound verbs; and "firearm" is the direct object.
Rather than adding a second modifier to the first relative pronoun, (i.e. "Any person who, during and relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, or in furtherance of any such crime, possesses a firearm"), the statute begins a second dependent clause with the second relative pronoun "who." This second pronoun is then modified by the separate phrase "in furtherance of any such crime." The verb in the second dependent clause is "possesses" and the direct object is again a "firearm."
The use of a second relative pronoun, the presence of a second dependent clause and the choice of different modifiers for the prohibited conduct confirm that the second prohibited act is quite distinct from the first. In the first clause, the use or carriage of the firearm must be "during and in relation to" the predicate crime, while, in the second clause, the possession of the firearm must be "in furtherance of such crime."
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, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). See United States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001). Bailey examined an earlier version of this statute that prohibited only "using or carrying a firearm during and in relation to" drug trafficking. 18 U.S.C. § 924(c)(1) (1994). The Bailey Court overruled several circuit court decisions upholding convictions under the "use" provision of the prior statute without requiring proof that the firearm was somehow actively employed during the drug trafficking crime. Bailey, 516 U.S. at 144, 116 S.Ct. 501. Bailey concluded that "use" of a firearm must mean more than mere possession and requires some active employment of the firearm by a person who commits a drug offense. Bailey, 516 U.S. at 143-44, 116 S.Ct. 501.
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) ().
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.
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Table of Cases
...States v. Collis, 128 F.3d 313 (6th Cir. 1997), 91 United States v. Colon-Osorio, 10 F.3d 41 (1st Cir. 1993), 148 United States v. Combs, 369 F.3d 925 (6th Cir. 2004), 196 United States v. Conrad, 507 F.3d 424 (6th Cir. 2007), 21 United States v. Cooke, No. 11-1758, 2012 WL 1165361 (8th Cir......