U.S. v. Ewing
| Decision Date | 16 November 1992 |
| Docket Number | No. 92-1158,92-1158 |
| Citation | 979 F.2d 1234 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Henry L. EWING, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard H. Lloyd, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Criminal Div., Fairview Heights, Ill., for U.S.
Renee E. Schooley, Federal Public Defender (argued), Office of the Federal Public Defender, East St. Louis, Ill., for Ewing.
Before COFFEY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Henry Lee 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 18 U.S.C. § 924(c). A jury convicted Ewing on the distribution charge and acquitted him on the firearms charge. After the finding of guilty, the district court, pursuant to the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines"), sentenced Ewing to 15 months imprisonment. Ewing argues 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. Ewing also claims that the district court erred in determining his sentence under the Guidelines. The conviction and sentence are affirmed.
The facts of this case are not in dispute. On March 22, 1991, officers of the Alton, Illinois police department executed a search warrant at the home of the defendant-appellant 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 two clear plastic bags containing 20 grams of cocaine; one clear plastic bag containing six small packets each holding about one tenth of a gram of cocaine; an unloaded .32 caliber Derringer pistol (which was later determined to be stolen); $438.16 in cash; a small notebook with numerical calculations recording drug trafficking transactions; a sliced-up phone bill which had been used to make the cocaine packets; a checkbook in Ewing and his wife's names; and a wallet with Ewing's Illinois drivers license, issued March 16, 1991. The six packets of cocaine, the firearm, and the phone bill were all laying on top of the wallet. 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. Some of the pages had been cut out of the notebooks with a very sharp instrument (perhaps a razor or a knife). An Alton police detective testified that pages such as these are often cut and used to package cocaine.
Ewing maintains that the district court committed reversible error in not allowing his attorney, Renee E. Schooley, an assistant federal public defender, to testify about allegations that the Government tampered with the evidence used against him. 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. Ewing's attorney was prepared to testify that six weeks before trial, when she and a paralegal from her office, Abigail Stottlar, examined the evidence gathered by the Alton police against Ewing and stored at the Alton police station, Ewing's name did not appear on either composition notebook.
Under the Illinois Rules of Professional Conduct, adopted by the United States District Court for the Southern District of Illinois as its own legal ethics code, 1 a lawyer may not be both witness and counsel in the same case, except in exceptional circumstances. Rule 3.7 of the Illinois Rules provides, in pertinent part, that:
"(a) A lawyer shall not accept or continue employment in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer may be called as a witness on behalf of the client, except that the lawyer may undertake the employment and may testify:
(1) if the testimony will relate to an uncontested matter;
(2) if the testimony will relate to a matter of formality and the lawyer reasonably believes that no substantial evidence will be offered in opposition to the testimony (3) if the testimony will relate to the nature and value of legal services rendered in the case by the lawyer or the firm to the client; or
(4) as to any other matter, if refusal to accept or continue the employment would work substantial hardship on the client."
Illinois Rules of Professional Conduct, Ill.Rev.Stat. ch. 110A, Rule 3.7 (1992).
"The advocate-witness rule, which articulates the professional impropriety of assuming the dual role of advocate and witness in a single proceeding, has deep roots in American law." United States v. Johnston, 690 F.2d 638, 642 (7th Cir.1982) (en banc). "That counsel should avoid appearing both as advocate and witness except under special circumstances is beyond question." United States v. Morris, 714 F.2d 669, 671 (7th Cir.1983). 2
"The recognized rationales for forbidding counsel to appear as a witness are: ... it eliminates the possibility that the attorney will not be a fully objective witness, ... it reduces the risk that the trier of fact will confuse the roles of advocate and witness and erroneously grant testimonial weight to an attorney's arguments, ... it reflects a broad concern that the administration of justice not only be fair, but also appear fair...."
Id. "This rule, however, does not render an advocate incompetent as a witness, but merely vests the trial court with discretion to determine whether counsel may appear as a witness without withdrawing from the case." Id. (emphasis added). In Johnston, we considered whether a district court abused its discretion in refusing to allow a government prosecutor to testify at a pretrial suppression hearing. 690 F.2d at 641-42. We concluded that allowing an advocate to testify "is a situation to be avoided if possible, but ... will be permitted in extraordinary circumstances and for compelling reasons, usually where the evidence is not otherwise available." Id. at 644. See also United States v. Fogel, 901 F.2d 23, 26 (4th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 343, 112 L.Ed.2d 308 (1990) ()
Our review of the instant record convinces us that the district court did not abuse its discretion in refusing to allow Ewing's counsel to testify about the alleged evidence tampering. Stottlar, the defense counsel's paralegal, testified before the jury that she and defense counsel examined the evidence against Ewing at the Alton police station on August 30, 1991, six weeks before trial. Stottlar explained that she and defense counsel focused on the composition notebooks in their examination of the evidence because "[w]e were specifically looking to see if they had Henry Ewing's name on them at the time." 3 Defense counsel then asked Stottlar, "[a]nd on August 30, 1991, did they [the composition notebooks] have Henry Ewing's name on them." "No," answered Stottlar. Immediately following the Government's brief cross examination of Stottlar, the district court gave the jury the following instruction:
Defense counsel requested this instruction to clear up any confusion the jurors might have had as to why she did not also testify about her examination of the evidence along with her paralegal. Immediately following this instruction, the defendant called a handwriting analyst, William H. Store, who testified that Henry Ewing did not write the words "Henry Ewing" which appeared on the front of the two composition notebooks introduced at trial.
As the district court observed, the defendant was able to place before the jury his evidence supporting the claim that his name was written on the composition notebooks after they had been seized by police. Stottlar's testimony provided Ewing's most powerful evidence that tampering had allegedly occurred. Schooley's testimony, although it would have served to corroborate Stottlar's story, would have been, as the district court noted, cumulative. Given the strong presumption against allowing counsel to testify as a witness, and the fact that the defendant was able to present Stottlar's critical eyewitness testimony, it was not an abuse of discretion for the district court to rule that Schooley's testimony would have been cumulative and thus that it would not be allowed. 4
Ewing also argues...
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