## Facts

- Alton, Illinois police executed a search warrant at Henry L. Ewing’s residence at about 10:00 p.m. and found Ewing on a living-room couch watching television.
- Near the television, officers saw a police scanner tuned to the local police frequency.
- Officers arrested and searched Ewing and recovered a set of keys from his front pants pocket.
- About fifteen feet away, officers found a locked strongbox on a dining-room table and opened it with a key taken from Ewing.
- Inside the strongbox were cocaine (including about 20 grams in two bags and additional small packets), cash, packaging materials, drug-transaction calculations/records, and personal items linking the box to Ewing (including his wallet with an Illinois driver’s license and a checkbook in his and his wife’s names).
- The strongbox also contained an unloaded .32 caliber Derringer pistol; the gun and cocaine were located together with Ewing’s personal items.
- The government introduced two notebooks at trial that contained incriminating information; at trial, the notebooks bore Ewing’s name.
- Approximately six weeks before trial, Ewing’s lawyer, Renee Schooley, and her paralegal, Abigail Stottlar, examined the notebooks at the police station.
- Stottlar testified that when she examined the notebooks at the police station, Ewing’s name was not written on them.
- The district court refused to allow Schooley to testify to the same point, citing concerns about a lawyer acting as both advocate and witness and viewing the proposed testimony as cumulative.
- The jury convicted Ewing of possessing with intent to distribute cocaine under 21 U.S.C. § 841(a)(1) and acquitted him of using or carrying a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c).
- At sentencing, the district court applied a two-level increase under U.S.S.G. § 2D1.1(b)(1) based on the pistol found in the strongbox and imposed a 15-month sentence.

## Issues

1. Did the district court abuse its discretion by preventing Ewing’s trial counsel from testifying that Ewing’s name was not on the notebooks when counsel and her paralegal inspected them at the police station?
2. Did the district court clearly err by applying a two-level weapon increase under U.S.S.G. § 2D1.1(b)(1) despite Ewing’s acquittal on the separate § 924(c) firearm count?

## Decision

- The Seventh Circuit affirmed Ewing’s conviction and sentence.
- The district court did not abuse its discretion in excluding defense counsel’s testimony because (a) the paralegal had already testified to the same fact, making counsel’s testimony cumulative, and (b) allowing trial counsel to testify would create attorney-as-witness problems.
- The district court did not clearly err in finding that a firearm was possessed in connection with the drug offense for purposes of § 2D1.1(b)(1) because the pistol was present in the locked strongbox that Ewing controlled and was stored with cocaine and drug records.
- The acquittal on the § 924(c) charge did not bar the sentencing increase; the sentencing court could rely on conduct proved by a preponderance of the evidence even if the jury did not find guilt beyond a reasonable doubt on a related charge.

## Legal Principles

- A trial court has discretion to exclude testimony that is cumulative of other evidence, even when offered by the defense.
- Courts may apply the advocate-witness rule to prevent trial counsel from testifying when the testimony is not necessary to present the defense and would blur the roles of advocate and witness.
- Under U.S.S.G. § 2D1.1(b)(1), a two-level increase applies when a dangerous weapon was possessed during a drug offense; it generally applies if the weapon was present unless it is clearly improbable that the weapon was connected to the offense.
- A sentencing judge may consider conduct related to an acquitted charge if the conduct is shown by a preponderance of the evidence; an acquittal reflects only that the higher, beyond-a-reasonable-doubt standard was not met.

## Conclusion

United States v. Ewing affirmed both the conviction and the guideline calculation: the trial judge properly kept defense counsel from testifying about alleged post-seizure writing on drug notebooks because a paralegal already provided the same testimony and counsel-as-witness concerns were legitimate, and the court also properly applied a two-level weapon-related increase under § 2D1.1(b)(1) based on a pistol found with cocaine and drug records in a locked box controlled by Ewing, even though the jury acquitted him on the separate § 924(c) count.


United States v. Ewing, 979 F.2d 1234 (1992)