Federal Evidence Review

In drug trafficking and firearm violation trial, admission of the defendant’s financial affidavit for the appointment of counsel was error but it was not plain error; circuit notes constitutional conflict between Sixth Amendmen Right to Counsel and Fifth Amendment Right Against Self-Incrimination, in United States v. Aguirre, 605 F.3d 351 (6th Cir. May 17, 2010) (No. 08-5477)

A defendant has a Sixth Amendment Right to Counsel upon demonstration of indigency. An affidavit demonstrating financial inability is normally completed during the initial appearance in the case. See, e.g., Federal Financial Affidavit Form. A defendant may also exercise a Fifth Amendment Right Against Self-Incrimination. A defendant may face a conflict between demonstrating a financial need for counsel under the Sixth Amendment and exercising a right against self-incrimination under the Fifth Amendment. The Supreme Court has noted an open issue. See United States v. Kahan, 415 U.S. 239, 243 (1974) (declining to decide whether the principle under Simmons v. United States, 390 U. S. 377, 394 (1968) (in considering the tension between Fourth Amendment and Fifth Amendment, holding 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”) could be “appropriately extended to Sixth Amendment claims for appointed counsel”). The Sixth Circuit recently had a chance to consider these issues in a case in which the government sought to admit information from the financial affidavit against the defendant at trial.

In the case, defendant Aguirre was charged with possession with the intent to distribute a quantity of cocaine, and with the possession of firearms in furtherance of a drug trafficking offense following an investigation. About $8,020 in cash was seized from a residence with which the defendant was connected. The defendant was appointed counsel after completing a financial affidavit demonstrating his financial inability. Among other responses, he responded that he was not then employed. (n.2)

During the cross-examination of an officer concerning money seized during the search, defense counsel sought to provide an explanation for the large quantity of cash seized from the residence:

Defense 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.

Defense 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.

Defense 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 –

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

Aguirre, 605 F.3d at 355. On redirect examination, the prosecutor responded through a series of questions and then moved the admission of the defendant’s financial affidavit:

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?

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, your Honor.

Court: I think it’s admissible. Let’s mark it as Exhibit 22, and it may be displayed to the jury.

Aguirre, 605 F.3d at 355 (footnote omitted). No defense objection was lodged concerning the admission of the financial affidavit.

During closing argument, the prosecuted mentioned the financial affidavit again:

“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.”

Aguirre, 605 F.3d at 355. The defendant never took the stand. The jury convicted the defendant. On appeal, he challenged the admission of his financial affidavit for the first time.

The Sixth Circuit reviewed the admission of the financial affidavit for plain error since contemporaneous objection was made at trial. The circuit noted that “there [wa]s no indication that the information that he offered in his financial affidavit was false.” Aguirre, 605 F.3d at 357 n.4. The circuit held that normally financial affidavit information is admissible against the defendant:

“If truthful, this [financial affidavit] 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.”

Aguirre, 605 F.3d at 358. The Eighth Circuit found other circuits in agreement:

• Tenth Circuit: 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 [was not speculative”)

• Second Circuit: United States v. Branker, 418 F.2d 378, 380-81 (2d Cir. 1969) (“[The 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.”)

• Eighth Circuit: 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 “[to 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.”).

While error was found, it did not rise to the level of plain error. The financial affidavit was mentioned briefly at trial and during the closing argument, and there was substantial other evidence to support the charges; consequently, the outcome of the proceedings was not affected.

The Aguirre case highlights the constitutional tension between the Fifth and Sixth Amendment. A different case may be presented if the defendant testifies and places the information in the financial affidavit in issue, otherwise opens the door to information contained in the financial affidavit, or the financial affidavit include false statements.