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6,/(5&LUFXLW-XGJHDefendant David Askarov appeals
his convictions on drug offenses. He argues that the district
court erred by allowing the government to cross-examine him
concerning financial information his counsel provided to the
United States Probation Office in an effort to obtain new
court-appointed counsel for him. For the reasons stated
below, we AFFIRM the district court.
I.
United States Customs Service agents arrested Askarov
near the Cincinnati/Northern Kentucky Airport after
discovering 9.5 kilograms of ecstacy in his luggage. Askarov
owns and operates a jewelry business in Belgium and had
flown to Cincinnati from Paris.
Askarov was later indicted for possessing ecstacy with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and
illegally importing ecstacy into the United States, in violation
of 21 U.S.C. § 952. Gary Sergent was provisionally
appointed to represent Askarov. However, based on HYLGHQFH
that Askarov owned his own business, the court later decided
that Askarov was ineligible for a public defender, and Sergent
moved for his removal as Askarov’s counsel on December 14,
1999. On December 16, Sergent sent a letter to U.S.
Probation Officer Stacey Mills along with a fax from the
KBC Bank in Antwerp, Belgium. The fax explained that
Askarov had defaulted on home and business loans held by
the bank, and that it had frozen all lines of credit to him and
would, if necessary, foreclose on his home. In the letter,
Sergent told Mills that he had moved to be stricken as counsel
and suggested that the fax might be useful for the magistrate
judge in deciding Askarov’s ability to retain other counsel.
Sergent also sent a copy of both documents to prosecutor
David Bunning. The following day, the magistrate judge
1R 8QLWHG6WDWHVY$VNDURY
granted Sergent’s motion to withdraw. Askarov later retained
the services of his current counsel, Thomas and Jon Alig.
At trial, Askarov testified on direct examination that he
owned and operated a jewelry business in Antwerp. On
cross-examination, the government had the following
exchange with him:
Government: Prior to your arrest, isn’t it true that you
were having financial problems with your business?
Askarov: No. No, [I] didn’t have any problem.
The prosecutor then questioned Askarov about his
outstanding home and business loans to KBC Bank, reading
from the fax Sergent sent him. Askarov’s attorney objected
to the government’s use of the document and moved for a
mistrial. The court overruled the objection and denied the
motion. Askarov was convicted of both counts, and was
sentenced to seventy-eight months imprisonment on each
count, to run concurrently.
II.
Askarov argues that information he used to assert his Sixth
Amendment right to counsel may not be used against him as
substantive evidence of his guilt. To allow this, Askarov
argues, would force him to chose between his Sixth
Amendment right to counsel and his Fifth Amendment right
against self-incrimination. In support, he relies on Simmons
v. United States, 390 U.S. 377, 393-94 (1968) (evidence
provided by defendant to assert Fourth Amendment right
against unreasonable search and seizure could not be used as
substantive HYLGHQFH of his guilt), and United States v.
Hardwell, 80 F.3d 1471 (10th Cir. 1996) (holding, based on
Simmons, that government could not use financial disclosures
defendant made to obtain court-appointed counsel as evidence
that he was engaged in money laundering). But cf. Michigan
v. Harvey, 494 U.S. 344, 347-52 (1990) (evidence obtained in
violation of Sixth Amendment could be used to impeach
8QLWHG6WDWHVY$VNDURY 1R 1R 8QLWHG6WDWHVY$VNDURY
defendant’s trial testimony). In the alternative, he argues that cross-examination and, as discussed above, there was
the government violated federal evidentiary Rules 608(b), substantial other evidence to support his conviction.
611(b), 802 and 901. Accordingly, we find that the prosecutor’s conduct was not
flagrant and therefore was not sufficient to merit a new trial.
We need not decide Askarov’s claim of constitutional error
because we conclude beyond a reasonable doubt that any such AFFIRMED.
error resulting from the prosecution’s references to the bank
fax was harmless. See Chapman v. California, 386 U.S. 18,
24 (1967) (articulating "beyond a reasonable doubt" VWDQGDUG
for harmless error); see also Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986) (applying harmless error VWDQGDUG to
Confrontation Clause violations). The government’s
HYLGHQFH against Askarov was strong: he identified a bag
found to contain more than 30,000 ecstacy pills as his own to
undercover Customs agents, and an audiotape of that
identification was played to the jury. Furthermore, as the
district court found, the prosecutor could have obtained the
disputed financial report directly from Askarov’s bank even
if Askarov’s counsel had not provided it to him. For the same
reasons, we conclude that any evidentiary errors made by the
district court in allowing cross-examination based on this
document did not amount to an abuse of its discretion. See
United States v. Sivils, 960 F.2d 587, 597 (6th Cir. 1992)
(evidentiary rulings reviewed for abuse of discretion). Nor
did the court abuse its discretion in denying Askarov’s motion
for a mistrial. See United States v. Atisha, 804 F.2d 920, 926-
27 (6th Cir. 1986) (denial of motion for mistrial reviewed for
abuse of discretion).
Finally, we conclude that the prosecutor did not engage in
actionable misconduct by referring to the fax in his cross-
examinDWLRQ RI $VNDURY In order to merit a new trial, a
prosecutor’s conduct must be improper and flagrant. See
United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001).
To determine flagrancy, the court considers: (1) whether the
conduct tended to mislead the jury or prejudice the defendant;
(2) whether the conduct was isolated or extensive; (3) whether
the remarks were made deliberately or accidentally; and (4)
whether the HYLGHQFH against the defendant was strong. See
id. Here the remarks were limited to a portion of Askarov’s