U.S.A v. Aguirre
| Decision Date | 17 May 2010 |
| Docket Number | No. 08-5477.,08-5477. |
| Citation | 605 F.3d 351 |
| Parties | UNITED STATES of America, Plaintiff-Appellee,v.Tobias F. AGUIRRE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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.
Before: COOK and McKEAGUE, Circuit Judges; HOOD, District Judge. *
Defendant Tobias Aguirre was convicted by a jury of possession with the intent to distribute a quantity of cocaine, and with the possession 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.
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
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 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 television, 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.
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:
(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:
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...
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