United States v. Ewing

979 F.2d 1234 (7th Cir. 1992)



The seizure of a firearm in close proximity to illegal drugs is considered powerful support for the inference that the firearm was used in connection with the drug trafficking operation. 


On March 22, 1991, officers of the Alton, Illinois police department executed a search warrant at the home of the defendant-appellant Henry Lee Ewing. At about 10:00 p.m. that evening, the police announced their presence and entered Ewing's residence through an unlocked front door. They found Ewing on the living room couch watching television. Next to the television was a police scanner tuned to the Alton Police Department frequency. Ewing was arrested, handcuffed and searched; the police seized a set of keys found in Ewing's front pants pocket. The officers' attention was immediately drawn to a locked strongbox on Ewing's dining room table, approximately fifteen feet from where Ewing had been sitting. The police opened the box with one of the keys seized from Ewing. Inside the box they discovered cocaine packets, a pistol, cash, and a small notebook with numerical calculations recording drug trafficking transactions. Also in the dining room, the police found one clear plastic bag of marijuana inside a motorcycle helmet. The officers also came upon two composition notebooks containing drug trafficking notations in the landing area near the top of the steps leading down from the dining room to the basement. Ewing was indicted on one count of possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 21 U.S.C. § 924(c). A jury convicted Ewing on the distribution charge and acquitted him on the firearms charge. Ewing challenged his conviction, arguing that his conviction should be reversed because the district court did not permit his attorney to testify about some alleged evidence tampering by the Government. Specifically, Ewing claims that the two composition notebooks found in his dining room did not have his name written on them when they were seized by the police during the search of his house. The two notebooks did have Ewing's name written on them when they were introduced at trial as evidence of his drug trafficking enterprise. 


Should Ewing’s conviction be reversed on the basis of the alleged evidence-tampering by the Government?




The appellate court affirmed the conviction and sentence. The court found that defendant was able to place before the jury his evidence supporting the claim that his name was written on the notebooks after they had been seized by the police. Given the strong presumption against allowing counsel to testify as a witness, and the fact that defendant was able to present defense counsel's paralegal's critical eyewitness testimony, it was not an abuse of discretion for the district court to rule that defense counsel's testimony would have been cumulative and, therefore, inadmissible. The court properly considered whether defendant's sentence should be enhanced for possessing a firearm even though the jury acquitted him of that offense.

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