United States v. Wiener

534 F.2d 15 (2d Cir. 1976)



Experience on the trial and appellate benches teaches that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment. A seized gun is relevant to the issues upon which a defendant is tried and that the court did not abuse its discretion in holding that its probative weight is not overbalanced by the inflammatory tendency of the gun as evidence.


The defendant was convicted of violating the federal narcotic laws, 21 U.S.C.S. §§ 812841(a)(1)841(b)(1)844(a), and 846, following the seizure of evidence from his apartment. On appeal, he alleged that the district court erred in finding that he had consented to the search of his apartment, in admitting into evidence a loaded gun found in a bag with marijuana, and in charging the jury by reciting the facts in a manner that was one-sided and argumentative. 


Did the district court err in three respects with regard to its decision to convict the defendant? 




In its decision, the Court held that the district judge, as the trier of fact, properly resolved the credibility issue by believing the agent who testified that defendant consented to the search, and his finding was not clearly erroneous. The Court further held that the district court did not abuse its discretion in admitting the loaded gun into evidence, as it was relevant to the trial issues and its probative weight was not overbalanced by the inflammatory tendency of it as evidence. Finally, the Court asserted that the jury charge was found not to be distorted, however, the trial courts were admonished to carefully consider whether any further summary of the evidence was needed in charges such as the present one.

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