United States v. Aguirre

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0139p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 08-5477

v.

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Defendant-Appellant. -

TOBIAS F. AGUIRRE,

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Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 06-00076-002—J. Ronnie Greer, District Judge.

Argued: April 29, 2010

Decided and Filed: May 17, 2010

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Before: COOK and McKEAGUE, Circuit Judges; HOOD, District Judge.

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COUNSEL

ARGUED: J. Patten Brown, III, LAW OFFICES OF PAT BROWN, Hartford,

Connecticut, for Appellant. Debra A. Breneman, ASSISTANT UNITED STATES

ATTORNEY, Knoxville, Tennessee, for Appellee. ON BRIEF: J. Patten Brown, III,

LAW OFFICES OF PAT BROWN, Hartford, Connecticut, for Appellant. David C.

Jennings, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for

Appellee.

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OPINION

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McKEAGUE, Circuit Judge. Defendant Tobias Aguirre was convicted by a jury

of possession with the intent to distribute a quantity of cocaine, and with the possession

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The Honorable Joseph M. Hood, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

No. 08-5477 United States v. Aguirre Page 2

of firearms in furtherance of a drug trafficking offense. In order to have counsel

appointed, Aguirre filed a financial affidavit. On redirect examination, the government

moved to admit Aguirre’s financial affidavit to provide some evidence of Aguirre’s guilt.

The district court admitted the financial affidavit. We find that the district court erred

in admitting the financial affidavit but that it was not plain error and, therefore,

AFFIRM Aguirre’s convictions.

I. BACKGROUND

In the summer of 2006, Morristown Police Detective Michael Hurt began

investigating the drug trafficking activities of Alfonzo Rojas. Rojas had two businesses

in Morristown: a junkyard called “G&G Auto Parts” and a body shop on Main Street.

On July 11, 2006, Officer Hunt arranged to have Solomon purchase three ounces

of crack cocaine from Rojas. Solomon made a recorded telephone call to Rojas, who

agreed to meet her at the junkyard. Solomon was provided with $2,550 to purchase the

crack cocaine and equipped with a listening device and a digital recorder so that agents

could listen to the conversation. Officers followed Solomon to the junkyard and parked

an eighth of a mile away. Because of the junkyard’s location, the officers were not able

to conduct visual surveillance of the transaction.

Rojas did not have the drugs with him when Solomon arrived and, according to

Officer Hunt, Solomon waited approximately two and a half hours for the crack cocaine

to be delivered. When the drugs arrived, Solomon advised the officers that the person

who delivered the drugs would be leaving in a late 90's Jeep. Officer Hurt observed the

jeep drive past, but he could not follow it without being noticed by the driver and, from

his position, he could not tell who was driving the jeep. Solomon testified that Aguirre

delivered the crack to Rojas.1

1

At sentencing, the district court “simply refuse[d] to credit Ms. Solomon’s testimony” and noted

that “[c]learly the jury did not credit Ms. Solomon’s testimony, nor did the jury find the corroboration of

her testimony sufficient to find beyond a reasonable doubt that Mr. Aguirre had committed the offenses

charged in Count 5, 6, and 7.” (R. 95 Sentencing 14-15.) Solomon testified that she had previously given

false information under oath at trial.

No. 08-5477 United States v. Aguirre Page 3

After this first transaction, Solomon began working for Rojas at the junkyard.

She called Officer Hurt one day and told him that the man who had delivered the drugs

on July 11, 2006 was leaving the junkyard driving a gray S-10 Chevy pickup truck.

Officer Hurt immediately called an officer on duty in a marked cruiser, who effected a

traffic stop. During the stop, Officer Hurt photographed the driver. The photos, which

were admitted into evidence, showed Aguirre.

On another day, Solomon told Officer Hurt that Aguirre would be at the body

shop. Aguirre was driving a bright blue S-10 pickup truck. After Aguirre left the body

shop, officers followed him to a double-wide trailer at Wilburn Avenue (the “Wilburn

residence”) and observed him go up to the front door and use a key to open the

residence, which he then entered.

On October 24, 2006 Officer Hunt met with Solomon and had her place a

recorded phone call to Rojas for an ounce of crack cocaine. She was provided with $900

to make the purchase and fitted with recording equipment. Officers video-taped the

transaction. After Solomon arrived at the body shop to pick up the drugs she had

ordered, Aguirre arrived in a bright blue S-10 pickup truck, exited the vehicle, and

entered the shop. Solomon was initially waiting out in the van. A few minutes later,

Aguirre and Rojas exited the office, Rojas patted Aguirre on the back, and Aguirre left.

Rojas then went over to Solomon, and Solomon walked into the office. Rojas picked up

a box and followed her in, and soon Solomon exited the office, got into her van, and met

with the officers. She disclosed that Rojas had sold her powder cocaine instead of crack

cocaine and, consequently, that it had cost $50 less than expected. After Aguirre left the

body shop, followed by officers, he drove straight to the Wilburn residence.

On October 26, 2006 the officers obtained a search warrant for the Wilburn

residence and arranged for Solomon to purchase another three ounces of crack from

Rojas. Officers were observing the Wilburn residence when Solomon called Rojas, and

these officers were informed of the time of Solomon’s call. Shortly after the call,

officers observed Aguirre leaving the Wilburn residence, and they followed him straight

to Rojas’s body shop. Officer Hurt observed and videotaped the transaction at the body

No. 08-5477 United States v. Aguirre Page 4

shop. Solomon was the first to arrive at the body shop, and she had exited her vehicle

and was standing in the parking lot when Aguirre arrived. After he arrived, Aguirre

walked toward the body shop’s garage. Rojas then arrived and, after Aguirre and

Solomon relocated their vehicles, Rojas met with Solomon and a drug transaction

occurred. Solomon then left, and officers retrieved the crack cocaine Rojas had sold her.

Aguirre was arrested while he was still at the body shop; he did not have any drugs or

money on him.

The officers then went to the Wilburn residence and executed their search

warrant. No one was present. When they entered, they observed a picture of Aguirre and

a female hanging above the televison, and they found male and female clothing and

personal belongings, as well as the belongings of a child. In the house, the officers

found two handguns, approximately a quarter kilogram of powered cocaine, and

approximately seven grams of crack cocaine. One of the handguns was found with a

loaded clip. The officers found a wrapper that, based on their experience, they believed

had previously contained a kilogram brick of cocaine; the inside of the wrapper was

covered with a white residue. The officers found large scales in the kitchen pantry that

could be used for weighing drugs and a dietary supplement that is used as a cutting agent

with cocaine. There was a stainless steel pot on a stove with a white ring inside of it,

which was consistent with cooking crack cocaine. The officers also found a shaving kit

which contained multiple rounds of ammunition and $8,020 in cash.

At his initial appearance following his arrest, Aguirre executed a financial

affidavit showing indigency, and counsel was appointed to represent him. Aguirre

proceeded to jury trial on October 17, 2007 and was found guilty of: (Count Eight)

aiding and abetting with Rojas to distribute a quantity of a mixture and a substance

containing a detectable amount of cocaine hydrochloride on October 26, 2006 and

(Count Nine) possessing firearms in furtherance of a drug trafficking crime. He was

sentenced to 138 months of imprisonment.

No. 08-5477 United States v. Aguirre Page 5

1. The financial affidavit

At trial, during the cross examination of the government’s witness, Officer Hurt,

defense counsel asked a series of questions about the money found during the search of

the Wilburn residence:

[Counsel]: Now, you, you made mention that there was some money, I

think you said $8,020 located in, I believe you said it was either a

shaving kit or a doc kit, a man’s toiletry kit is the impression I got?

[Officer]: Correct.

[Counsel]: And, of course, Hispanic folks have difficulty, they can’t get

a bank account, since 911 they can’t get a bank account, nobody can get

a bank account if they don’t have a social security number; right?

[Officer]: I wouldn’t know.

[Counsel]: Okay, and not uncommon for folks who can’t get a bank

account to keep money at home; right?

[Officer]: If they don’t have a bank account, they could probably get --

[Counsel]: They can’t keep it in a bank; can they?

(R. 94 Hurt 18-19.) Through this line of questioning defense counsel suggested a non-

drug related explanation for the large quantity of cash found in the Wilburn residence.

In response, on redirect examination, the following exchange took place, which led to

the admission of Exhibit 22:

[AUSA]: Do you know whether [Aguirre] has a bank account or not, the

defendant?

[Officer]: I do not.

[AUSA]: Do you know of any employment he had at the time you

arrested him?

[Officer]: No.

[AUSA]: Your honor, at this time I would ask that a court document

from the court file in this case be marked as an exhibit and introduced

into evidence, a financial affidavit for the Defendant.

[Court]: Has [defense counsel] seen this?

No. 08-5477 United States v. Aguirre Page 6

[AUSA]: I’m sure she has. The defendant --

[Counsel]: Your Honor, I was not involved, I was not involved in this

matter at this time, so I don’t really know the circumstances by which

this came about.

[Court]: Let me see the document.

[AUSA]: Offered for the indication of the first question on that

document,2 your Honor.

[Court]: I think it’s admissible. Let’s mark it as Exhibit 22, and it may

be displayed to the jury.

(R. 94 Trans. 27-28.) After it was admitted, the document was used as evidence that the

Defendant was unemployed and therefore, to suggest that the large quantity of cash did

not have a legitimate source and, consequently, that it was a part of his illegal drug-

trafficking activities.

Similarly, during closing arguments, the government argued:

What else do you have that should convince you that this guy is a drug

dealer? $8,020 in cash, rubber banded, hidden in a shaving kit in the top

of his master bedroom closet. Ms. Stapleton suggested, well, you know,

hard for Hispanics to have bank accounts. Well, if you look at

Exhibit 22, his financial affidavit, first of all, we see he’s unemployed,

so how has he got $8,020 in his house if he’s not got a job? Then she

suggested in her cross examination of Detective Hurt, well, it’s not even

his house, some other guy owns the house. See at the bottom of his

financial affidavit that bears his signature, $450 a month for rent. With

all due respect to Ms. Stapleton, that’s a smoke screen. He rents the

house. You think not his house? His picture is hanging on the wall in

the living room, a picture of him. He lives there with this young lady

back there. There should be no doubt in your mind that’s his house.

(R. 94 at 128-29.).

2

The first question on the document asked, “are you now employed?” In response Aguirre had

checked the “No” box.

No. 08-5477 United States v. Aguirre Page 7

II. ANALYSIS

The Sixth Amendment guarantees indigent criminal defendants the right to

counsel. However, the burden is on the defendant to come forward with evidence to

prove his indigency. United States v. Krzyske, 836 F.2d 1013, 1018-1019 (6th Cir.

1998). In Krzyske, this court found that “it was not error for the district court to find no

indigency where the defendant declined to supply additional information to the court

unless the proceedings were held in camera and without the government’s participation.”

513 F.3d at 1018-19; but see United States v. Gravatt, 868 F.2d 585, 589 (3d Cir. 1989)

(finding that this protection may be offered before trial). Instead, “[t]he time for

protection will come when, if ever, the government attempts to use the information [used

to prove indigency] against the defendant at trial. We are not willing to assume that the

government will make such use, or if it does, that a court will allow it to do so.” 513

F.3d at 1018 (quoting United States v. Peister, 631 F.2d 658, 662 (10th Cir. 1980)).

Therefore, under Krzyske, the time to resolve the tension between the defendant’s Fifth

and Sixth amendment rights is, as in this case, when the government introduces at trial

incriminating information obtained purely from the defendant’s financial disclosures

provided to obtain counsel.

1. The failure to object

The district court did not make a ruling because defense counsel failed to object;

consequently, we review for plain error. United States v. Benson, 591 F.3d 491, 501 (6th

Cir. 2010) (“When, as here, a party does not timely raise an issue in district court or

make an objection, an objection to the error is deemed forfeited and reviewed only for

plain error.”). Aguirre offers several reasons why his attorney’s failure to object can be

excused. However, while we recognize that defense counsel encountered a difficult

situation, it does not excuse her failure to object.

Aguirre argues that, “[i]t is clear from the colloquy previously discussed

surrounding the admission of [the financial affidavit], that the court and all Counsel

No. 08-5477 United States v. Aguirre Page 8

treated this as an objection.” (Appellant Br. 13.)3 We are not persuaded. Aguirre’s

counsel did not actually object, but instead remarked that she did not know what was

going on. The responsibility to object, to ask for more time, or to ask for an opportunity

to review the proffered document is on defense counsel. Certainly, the district court

could have asked defense counsel if she had any objections or given her more time to

consider the financial affidavit. But, it was defense counsel’s task to request more time

or to make an objection. Since she did not, we review for plain error.

2. Plain error review

To find plain error, we must find that: (1) there was “an error or defect – some

sort of ‘[d]eviation from a legal rule’ – that has not been intentionally relinquished or

abandoned, i.e., affirmatively waived, by the appellant”; (2) the legal error was “clear

or obvious, rather than subject to reasonable dispute”; (3) the error “affected the

appellant’s substantial rights, which in the ordinary case means he must demonstrate that

it ‘affected the outcome of the district court proceedings.’” Puckett v. United States, 129

S. Ct. 1423, 1429 (2009). Finally, “if the above three prongs are satisfied” this court

“has the discretion to remedy the error – discretion which ought to be exercised only if

the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” Id. (emphasis in the original); United States v. Mayberry, 540 F.3d 506,

512 (6th Cir. 2008).

3

Aguirre makes several additional arguments that we find unpersuasive. First, he argues that,

although FED R. EVID.103(a) requires an objection, it also “states that a party need not renew an objection

or offer of proof once the court has made a ‘definitive ruling.’” (Appellant Br. 13.) However, the fact that

a party does not need to renew an objection after a definitive ruling has been issued does not negate the

initial requirement that the party object, so that the court can make a definitive ruling on that objection.

Second, Aguirre asks us to read this exchange in the context of FED R. CIV. P. 51(a), but Rule 51(a) deals

with jury instructions and does not seem to have any bearing on this issue. Third, Aguirre argues that the

district court used its discretion under FED. R. EVID. 103(b) as a “form of making a record of the basis for

admissibility and objections” and, consequently, that the district court “negated the need for an objection.”

(Appellant Br. 13.) However FED. R. EVID. 103(b) states that: “The court may add any other or further

statement which shows the character of the evidence, the form in which it was offered, the objection made,

and the ruling thereon. It may direct the making of an offer in question and answer form.” Thus, Rule

103(b) is discretionary and does not negate defense counsel’s responsibility for objecting. Here, the

constitutional violation simply was not addressed and it was ultimately defense counsel’s responsibility

to object on the proper grounds.

No. 08-5477 United States v. Aguirre Page 9

3. Admission of the financial affidavit

The Supreme Court has not decided whether the use of information provided to

assert a defendant’s Sixth Amendment right to counsel may be used against him as

substantive evidence of guilt. See United States v. Kahan, 415 U.S. 239, 243 (1974)

(specifically declining to decide whether “the Simmons principle” could be

“appropriately extended to Sixth Amendment claims for appointed counsel”). In

Simmons, the Court examined the interaction between the defendant’s right to assert an

objection against an unreasonable search and seizure under the Fourth Amendment and

the defendant’s Fifth Amendment right against self-incrimination. Simmons v. United

States, 390 U.S. 377, 387-94 (1968). The trial court in that case had allowed the

government to use testimony, given by the defendant in an unsuccessful attempt to

suppress evidence under the Fourth Amendment, against the defendant at trial on the

issue of guilt. Id. The Simmons Court found that forcing the defendant to choose

between his Fourth and Fifth Amendment rights created an “undeniable tension” and that

a defendant should not be “obliged either to give up what he believed, with advice of

counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth

Amendment privilege against self-incrimination.” Id. at 394. Consequently, the Court

held that “when a defendant testifies in support of a motion to suppress evidence on

Fourth Amendment grounds, his testimony may not thereafter be admitted against him

at trial on the issue of guilt unless he makes no objection.” Id.4

4

In Michigan v. Harvey, the Supreme Court allowed the government to impeach the defendant

at trial with evidence obtained in violation of the prophylactic Sixth Amendment rule articulated in

Michigan v. Jackson, 475 U.S. 625 (1990), (because a colloquy between the defendant and the police

officer, which was used for impeachment, could not be viewed as defendant-initiated interrogation). 494

U.S. 344, 344-355 (1990). However, Harvey is distinguishable from this case. First, it dealt with a

prophylactic Sixth Amendment rule, whereas the provision of financial information is a necessary

prerequisite to Aguirre’s exercise of his Sixth Amendment rights. Furthermore, Aguirre did not testify in

this case and there is no indication that the information that he offered in his financial affidavit was false.

The veracity of Aguirre’s statements is important because, in Kahan, the Supreme Court found that false

statements made to show indigency and obtain counsel under the Sixth Amendment could be admitted:

The truth of the matter was that respondent was not indigent, and did not have a right

to appointment of counsel under the Sixth Amendment. We are not dealing, as was the

Court in Simmons, with what was ‘believed’ by the claimant to be a ‘valid’

constitutional claim . . . . Respondent was not, therefore, faced with the type of

intolerable choice Simmons sought to relieve. The protective shield of Simmons is not

to be converted into a license for false representations on the issue of indigency free

from the risk that the claimant will be held accountable for his falsehood.

No. 08-5477 United States v. Aguirre Page 10

To summarize, the defendant has a right to counsel if he can demonstrate

financial inability. Demonstrating financial inability may require the disclosure of

information. If truthful, this information disclosed to demonstrate financial inability

should not be admitted against defendant at trial on the issue of guilt because to do so

would force a defendant to choose between his Sixth Amendment right to counsel and

his Fifth Amendment right against self incrimination. Therefore, we hold that, if the

defendant has disclosed truthful information to demonstrate financial inability and obtain

counsel under the Sixth Amendment, that information may not thereafter be admitted

against him at trial on the issue of guilt. In this case, the information disclosed by

Aguirre in his financial affidavit was disclosed in order to obtain counsel. The

information was used by the Government against Aguirre at trial on the issue of guilt.

Consequently, the district court erred in admitting the financial affidavit at trial.5

4. Not reversible error

However, even though the district court erred in admitting the financial affidavit,

the error was not plain. The financial affidavit was used briefly on redirect and at

closing. On redirect, the prosecution used it to show that, contrary to defense counsel’s

assertions, it was unusual for even an illegal immigrant to have over $8,000 in cash in

his apartment because Aguirre was unemployed. At closing, the government also argued

that, since the financial affidavit showed that Aguirre was unemployed, this suggested

that the $8,020 found in his house came from illegal sources. Furthermore, the

415 U.S. at 243.

5

Other circuits that have considered this issue have agreed. See United States v. Hardwell, 80

F.3d 1471, 1484 (10th Cir. 1996) (finding plain error after the government used the defendant’s “financial

affidavit and other statements he made to establish eligibility for appointed counsel to prove guilt at trial”

because the “conflict between Fifth and Sixth Amendment rights [wa]s not speculative”); United States

v. Branker, 418 F.2d 378, 380-81 (2d Cir. 1969) (“[T]he government should not be permitted to use as part

of its direct case any testimony given by a defendant at a hearing where he is seeking . . . the assignment

of counsel on the ground of his financial inability . . . to secure counsel. The defendant should enjoy his

constitutional rights to counsel . . . without running the risk that thereby he may be incriminating himself

with respect to the charges pending against him.”); United States v. Anderson, 567 F.2d 839, 840-41 (8th

Cir. 1977) (noting that financial data provided to show indigency in order to be entitled to the appointment

of counsel under the Sixth Amendment . . . “should be sealed and not made available for the purpose of

tax prosecution” because “[t]o hold otherwise would force [the defendant] to choose between his Sixth

Amendment right to counsel and his Fifth Amendment right against self-incrimination. Such a choice is

constitutionally impermissible.”).

No. 08-5477 United States v. Aguirre Page 11

government argued that the financial affidavit showed that the house searched was, in

fact, Aguirre’s house, since it showed that he paid $450 a month in rent.6 Aguirre was

convicted of aiding and abetting (with Rojas) to distribute a quantity of a mixture and

a substance containing a detectable amount of cocaine hydrochloride and possessing

firearms in furtherance of a drug trafficking crime.

When viewed against the other evidence found in this case, the district court’s

error in admitting the financial affidavit does not amount to reversible error. In

particular, when they searched the residence on Wilburn, the officers found two

handguns, approximately a quarter kilogram of powered cocaine, approximately seven

grams of crack cocaine, and a wrapper that, based on their experience, they believed had

previously contained a kilogram brick of cocaine. They also found large scales in the

kitchen pantry that could be used for weighing drugs, a jar of a dietary supplement used

as a cutting agent with cocaine, and a stainless steel pot on a stove with a white ring

inside of it, which was consistent with cooking crack cocaine. The officers found a

picture of Aguirre, together with a woman, at the Wilburn residence, and observed

Aguirre exit and enter the residence, including with a key. Similarly, they observed

Aguirre leave the residence and arrive at the body parts shop in conjunction with

Solomon’s illegal drug orders.

Under these circumstances, even though the district court erred in admitting the

financial affidavit, that error did not amount to plain error because, in light of the other

evidence, it did not affect the outcome of the district court proceedings.

III. CONCLUSION

We find that the district court erred in admitting the financial affidavit. However,

since the admission was not plain error, we AFFIRM Aguirre’s convictions.

6

The financial affidavit does not actually make it clear the address of the residence Aguirre paid

rent on.