Michael A. Garrett v. United States ( 1996 )

____________
No. 95-1900
____________
Michael A. Garrett, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Western District of Missouri
*
United States of America, *
*
Appellee.
____________
Submitted: January 10, 1996
Filed: March 12, 1996
____________
Before BEAM, Circuit Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and
KYLE,* District Judge.
____________
KYLE, District Judge.
Michael A. Garrett appeals from the district court’s denial of his
motion under 28 U.S.C. § 2255, in which he claims ineffective assistance
of counsel at his criminal trial, at sentencing, and on direct appeal, in
violation of the Sixth Amendment. We affirm the district court.1
*
The HONORABLE RICHARD H. KYLE, United States District
Judge for the District of Minnesota, sitting by
designation.
1
The Honorable Scott O. Wright, Senior United States District
Judge for the Western District of Missouri.
I.
Garrett was indicted for conspiracy to possess with intent to
distribute fifty or more grams of crack cocaine, in violation of 21 U.S.C.
§ 846, and attempted possession of crack cocaine with intent to distribute,
in violation of 21 U.S.C. § 841. A jury found him guilty on both counts.
His post-trial motions for a judgment of acquittal or, alternatively, for
a new trial were denied. On April 1, 1991, Garrett was sentenced to 360
months of imprisonment and five years of supervised release on each charge,
the sentences to run concurrently, and was assessed a $25,000.00 fine. He
appealed the judgment, claiming that there existed insufficient evidence
to support his conviction, and that prior acts of a co-defendant were
improperly admitted by the trial court. The conviction was affirmed.
United States v. Garrett, 948 F.2d 474 (8th Cir. 1991),reh’g and reh’g en
banc denied (Jan. 15, 1992).
On October 12, 1990, Drug Enforcement Agency (“DEA”) Special Agent
Carl Hicks and two detectives of the Platte County Sheriff’s Office stopped
a female suspect fitting a common drug courier profile at the Kansas City
International Airport. She gave her name as Gloria Hernandez and admitted
that she was smuggling crack cocaine in her luggage, a search of which
revealed almost eight kilograms of crack cocaine. She later admitted that
her true name was Alicia Rodriguez. Trial Transcript at 61.
Rodriguez agreed to participate in a controlled delivery of the
drugs. Her instructions, previously received from an unspecified source,
were to check into a downtown motel “where a visiting black man would not
stand out” and then contact “Mike,” who would come to pick up the drugs.
Id. at 28. After checking into a motel accompanied by Agent Hicks and one
of the detectives, Rodriguez made two telephone calls, conversed in
Spanish, and during the second call wrote down two telephone numbers.
Agent Hicks called the second number, which was for a personal paging
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service and included a personal identification number (“PIN”). After
entering the PIN, he entered the motel’s telephone number and Rodriguez’s
room number. Id. at 34-37.
Later, a person identifying himself as “Mike” called the motel, and
the desk clerk transferred the call to Rodriguez’s room. The caller had
a brief conversation with Rodriguez, during which he stated he was on his
way to the motel. Within the next thirty to forty-five minutes, a person
identifying himself as Mike made three additional phone calls to the desk
clerk requesting directions to the motel. Approximately fifteen minutes
after the last call, Garrett entered the motel and asked for directions to
room 117. He was arrested as he walked toward room 117. A search of
Garrett’s vehicle uncovered a mobile phone and a pager, in the electronic
memory of which was stored the motel’s telephone number and Rodriguez’s
room number. See 948 F.2d at 476.
Prior to calling its first witness at trial, the prosecution informed
the district court that it would not call Rodriguez as a witness because
of concerns over her credibility.2 Agent Hicks, however, was allowed to
testify as to what Rodriguez told him about her involvement in a conspiracy
to distribute drugs, including her statement that the drugs were to be
picked up by a black man named
2
The following conversation regarding Rodriguez occurred out
of the presence of the jury:
THE COURT: How’s our witness?
[Prosecutor]: Our witness is fine, but we’re not calling
her.
THE COURT: Oh, you’re not?
[Prosecutor]: No, no. We basically told her she can
withdraw her plea, the deal is off, that
her lies have damaged her credibility
too seriously for us to be able to call
her.
Trial Tr. at 2.
-3-
“Mike.”3 Defense counsel’s objections to the statements as hearsay were
overruled by the district court.4 Defense counsel proffered no instruction
limiting the jury’s consideration of these statements to explaining why
Agent Hicks did what he did, but, at the charging conference, proposed an
instruction completely barring the use of Rodriguez’s statements against
Garrett by the jury. Trial Tr. at 173-76.
After Hicks’ direct examination, the trial court sustained objections
to defense counsel’s attempts to impeach Rodriguez’s credibility by
questioning Agent Hicks about Rodriguez’s plea
3
After she was arrested at the airport, Rodriguez agreed to
talk to Agent Hicks without an attorney present. Agent Hicks
testified on direct examination:
Q. What was the gist of the conversation after you
advised her of her rights at the airport?
A. I asked her who she was taking the drugs to and she
told me.
Q. What did she say?
[Defense counsel]: Objection, Your Honor, hearsay.
THE COURT: Overruled.
A. She said an individual by the name of Mike.
Q. Did she -- what did you do then?
A. I asked her if she would follow through on a
controlled delivery, in other words, trying to
transport the drugs to Mike, and she said that she would.
Q. What happened then?
A. I asked her how the delivery was supposed to happen
and she said that she was supposed to check into a motel
in the downtown area. Her comment to me was a motel
where a visiting black man would not stand out, and then
she was supposed to page Mike on his 800 pager and he
would come over to get the drugs.
Trial Tr. at 27-28.
4
The district court stated in its opinion denying Garrett’s §
2255 petition that Rodriguez’s statements were not offered to prove
the truth of the matter asserted, but to explain the actions of
Agent Hicks. Garrett v. United States, No. 94-0345-CV-W-5 (W.D.
Mo. Feb. 9, 1995), attach. to Appellant’s App. at 86a, 91a.
-4-
agreement with the government; the court did allow the fact that Rodriguez
had recently entered into a plea agreement to be presented to the jury.5
During its closing argument, the prosecution stated that, contrary
to defense counsel’s assertions, Assistant United States Attorneys do not
“go for convictions,” but rather take an oath “to do justice.” The
prosecution then told the jury, “we come here before you asking you to do
justice.” Trial Tr. at 207. There was no objection to this portion of the
prosecution’s closing.
A pre-sentence investigation report (“PSI”) concluded that Garrett
was accountable for all of the crack cocaine found in Rodriguez’s luggage.
The district court asked defense counsel whether he had any objection to
the PSI, and counsel indicated that he did not. Sentencing Tr. at 2. The
court’s calculation of Garrett’s sentence under the Guidelines thus was
based on the approximately eight kilograms of crack cocaine.
5
The following exchange occurred on defense counsel’s cross-
examination of Agent Hicks:
Q. You entered into a written plea agreement, the
prosecution did, didn’t they, Mr. Hicks?
A. Yes, they did.
Q. Okay.
A. But that’s the prosecutor and the defense attorney.
Q. That’s a plea agreement that was entered into what,
approximately a week ago with her?
A. I believe it was about a week ago.
Q. And that plea agreement was--
THE COURT: Wait a minute. Wait a minute. Come up
here.
BENCH CONFERENCE, ON THE RECORD
THE COURT: If you’re not going to put her on as
a witness, you don’t need to get into that.
MR. FOX: Judge, I think I have a right to enter
into questions whether she’s a truthful person.
THE COURT: The objection will be sustained.
Trial Tr. at 52-53.
-5-
On April 12, 1994, Garrett filed a motion to vacate his sentence
under 28 U.S.C. § 2255. The motion asserted seven instances of ineffective
assistance of counsel at trial, at sentencing, and on direct appeal.
Garrett argues that he was denied effective assistance at trial
because his attorney: 1) did not move to exclude Rodriguez’s statements
under Federal Rule of Evidence 403, as the danger of prejudice to him
substantially outweighed the testimony’s probative value; 2) did not
request an instruction pursuant to Federal Rule of Evidence 105, limiting
the jury’s consideration of Rodriguez’s testimony to explaining the actions
of Agent Hicks; and 3) did not object to the prosecution’s closing.
Moreover, Garrett claims counsel was ineffective for failing to include the
admission of Rodriguez’s statements as a ground for a new trial in his
post-trial motions. He also argues that he received ineffective counsel
at sentencing because his attorney did not object to that portion of the
PSI which determined Garrett was responsible for all of the crack cocaine
found in Rodriguez’s suitcases. Finally, he contends that counsel was
ineffective in failing to appeal from the admission of Rodriguez’s
statements, since they constituted inadmissible hearsay, and in failing to
appeal from the district court’s refusal to permit more extensive
impeachment of Rodriguez through Agent Hicks’s cross-examination.
II.
The Sixth Amendment guarantees a criminal defendant charged with a
serious crime the right to effective assistance of counsel. Driscoll v.
Delo, 71 F.3d 701, 706 (8th Cir. 1995) (citing United States v. Cronic, 466
U.S. 648, 654, 104 S. Ct. 2039, 2044 (1984)). An analysis of an
ineffective assistance of counsel claim involves two phases:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth
-6-
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
With respect to the first element, there exists a strong presumption
that counsel’s conduct falls within the wide range of professionally
reasonable assistance and sound trial strategy. 466 U.S. at 689, 104 S.
Ct. at 2065. Counsel’s challenged conduct is to be evaluated in light of
the circumstances surrounding the decision, not with the 20/20 vision of
hindsight. Id.
Establishing prejudice is also not a simple task--a defendant must
demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability
is one “sufficient to undermine confidence in the outcome.” Id.
Whether Garrett’s Sixth Amendment rights were violated because he
received ineffective assistance of counsel presents a legal question
subject to de novo review. Driscoll, 71 F.3d at 706 (citing Starr v.
Lockhart, 23 F.3d 1280, 1284 (8th Cir.), cert. denied, ___ U.S. ___, 115
S. Ct. 499 (1994)).
A. Ineffective Assistance of Counsel at Trial
1. Lack of a Rule 403 Objection
The failure of Garrett’s attorney to move to exclude Rodriguez’s
testimony under Federal Rule of Evidence 4036 did not
6
Federal Rule of Evidence 403 states in relevant part:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury . . . .
-7-
fall outside the wide range of competent professional assistance. The
trial judge had ruled that the testimony was not barred by the hearsay
rule, as it was not offered to prove that a man named “Mike” was to pay for
the crack cocaine, but to show the reasons for Agent Hicks’ behavior.7
Since defense counsel had tested a most vulnerable aspect of Rodriguez’s
statements, counsel may have reasonably determined that a Rule 403
objection would have been fruitless. The performance of an attorney is not
deficient because the attorney failed to object to admissible evidence,
Anderson v. Goeke, 44 F.3d 675, 680 (8th Cir. 1995) (citing Russell v.
Jones, 886 F.2d 149, 152 (8th Cir. 1989)), and the trial court had already
determined that the statements were not hearsay. While we have doubts as
to the correctness of the trial court’s wholesale admission of the
statements, the failure to renew an objection on different grounds did not
constitute deficient performance from the perspective of counsel at trial.
The lack of a Rule 403 objection, moreover, does not give rise to a
reasonable probability that Garrett would have been found not guilty by the
jury. Speculation as to what the district court would have done if
presented with this motion is not equivalent to a showing of prejudice
sufficient to undermine confidence in the outcome of the trial. Nor was
the evidence against Garrett flimsy or unpersuasive. On direct appeal,
this court acknowledged that the evidence against Garrett on the conspiracy
charge was
7
It was unnecessary, however, to allow Rodriguez’s statements
to be heard by the jury without modification. The jury would have
been able to understand why Hicks went to a motel room absent
Rodriguez’s statements explaining that “Mike,” presumably a black
man, was to pick up the crack cocaine. See infra Section II.A.2;
8th Cir. Model Crim. Jury Inst. 2.15, committee cmts.
-8-
circumstantial and “not overwhelming,” but also observed that a reasonable
fact-finder could have found Garrett guilty beyond a reasonable doubt based
on the conversation between Rodriguez and Garrett, the obvious advance
planning of the transaction’s details, and the circumstances surrounding
Garrett’s arrival at the hotel. 948 F.2d at 476-77. In addition, a search
of Garrett’s vehicle pursuant to his arrest uncovered a pager which had the
motel’s telephone number and Rodriguez’s room number stored in its memory.
Id. at 476. Garrett has not shown that counsel’s failure to object on Rule
403 grounds deprived him of a fair trial or rendered the result of the
trial unreliable. See Lockhart v. Fretwell, 506 U.S. 364, ___, 113 S. Ct.
838, 844 (1993).
2. Lack of a Limiting Instruction Request
Garrett contends that defense counsel’s failure to request an
instruction limiting the jury’s consideration of Rodriguez’s testimony to
an explanation of the actions of Agent Hicks represented deficient
performance and resulted in prejudice to him. See Fed. R. Evid. 105.8
Defense counsel did request a limiting instruction, based on Eighth Circuit
Model Criminal Instruction 2.15, which limits a jury’s consideration of a
co-defendant’s statements. The trial judge rejected it, apparently on the
grounds that Instruction 2.15 did not apply in conspiracy cases. Trial Tr.
at 173-75. The district court, in its opinion on Garrett’s § 2255
petition, determined that counsel may have reasonably believed that a
limiting instruction would serve only to underscore the importance of the
testimony, yet the transcript of the proceedings indicates that defense
counsel was willing to take that risk.
8
Federal Rule of Evidence 105 reads:
When evidence which is admissible as to one party or for
one purpose but not admissible as to another party or for
another purpose is admitted, the court, upon request,
shall restrict the evidence to its proper scope and
instruct the jury accordingly.
-9-
A limiting instruction would certainly have been appropriate here.
We have previously noted that “if a conspirator statement is both
permissible background and highly prejudicial, otherwise inadmissible
hearsay, fairness demands that the government find a way to get the
background into evidence without the hearsay.” United States v. Alonzo,
991 F.2d 1422, 1426-27 (8th Cir. 1993). The trial court “should instruct
the jury as to the limited purpose of any hearsay statements that cannot
be avoided.” Id. at 1427. Here, Garrett’s first name and his race could
have been redacted from the testimony with no risk of confusion as to the
behavior of Agent Hicks. Without such procedures, there is a strong risk
that the while the statements “may be offered as background for the agents’
actions, they will inevitably be used as direct evidence” of the
defendant’s guilt. Id. (emphasis in original). In Alonzo, admission of
similar statements by a co-conspirator did not pass the “rigorous standard
for harmless error,” and a new trial was ordered. Id. at 1427-28. Here,
the “reasonable probability” demanded by Strickland, and the other evidence
against Garrett, distinguish Alonzo. Even if the failure to request
another instruction limiting the jury’s consideration to an explanation of
the behavior of Agent Hicks was ineffective assistance,9 Garrett
9
A close reading of the trial transcript gives rise to an
inference that counsel’s requested instruction may have been denied
in part because the trial court believed that Rodriguez’s
statements could be admitted as coconspirator declarations under
Federal Rule of Evidence 801(d)(2)(E). Trial Tr. at 173-75. In
its opinion denying Garrett’s § 2255 motion, however, the district
court explained that Rodriguez’s conversation with Agent Hicks was
not admitted as an authorized statement, a statement of an agent,
or a declaration by a co-conspirator. In fairness to counsel, it
was not made clear at the charging conference that the statements
were admitted because they explained the actions of Agent Hicks.
In fact, the rejection of counsel’s instruction seems to have been
partially based on the erroneous notion that Instruction 2.15 could
not be used at all in “conspiracy cases”; the committee comments
state that the instruction is not applicable where the disputed
evidence is admitted as a coconspirator declaration, “or in any
other situation in which the codefendant’s statement may be
directly admissible against the defendant.”
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has not shown that the failure to request a limiting instruction seriously
compromised the integrity of the trial.
In United States v. King, 36 F.3d 728 (8th Cir. 1994), a convicted
defendant challenged the trial court’s admission of a DEA agent’s statement
that he started an investigation on information that a man named “Bill” was
selling cocaine from a certain address while possessing a handgun. Id. at
731. The defendant’s first name was William. In King, as here, the trial
court received the statement as it was not offered for its truth, but to
explain the actions of the agent--no limiting instruction was requested or
given. Id. at 732. The King court found that the trial court did not
abuse its discretion in determining to admit the evidence, and further
found any error in the admission of the testimony, including the absence
of a limiting instruction, to be harmless beyond a reasonable doubt based
on the other evidence against the defendant. Id. at 732-33.10
That the other evidence against the defendant in King was
characterized as “overwhelming,” and the evidence here was previously
characterized by another panel of this Court as “not overwhelming,” 948
F.2d at 476, does not mandate an opposite result. The evidence against
Garrett was significant and substantial. Garrett must prove that there
exists a reasonable probability that the outcome of the trial would be
different absent the alleged ineffective assistance--this is a more
difficult standard to meet than proving that the error was harmless beyond
a reasonable doubt. We find that he has not carried this burden.11
10
The “harmless error” standard applied since the defendant
claimed a violation of his confrontation rights on direct appeal.
11
In a related vein, Garrett argues that his counsel’s
performance was deficient because he did not dispute the admission
of the
“hearsay” testimony in his motion for acquittal or a new trial.
Viewing the matter from counsel’s perspective immediately after
trial, counsel had no reason to believe that the court would
reverse its earlier ruling which allowed Rodriguez’s statements to
become part of the record. Ineffective assistance should not be
found under Strickland when counsel fails to perform those acts
which clearly appear to be futile or fruitless at the time the
-11-
3. Lack of Objection to Prosecution Statements
Garrett also cites his counsel’s failure to object to statements made
by the prosecutor during closing argument as exhibiting ineffective
assistance. The remarks concerning the integrity of the prosecution and
their duty to do justice were clearly improper. United States v. Jones,
965 F.2d 1507, 1514 (8th Cir.), cert. denied, 506 U.S. 924, 113 S. Ct. 346
(1992), and cert. denied, 506 U.S. 924, 113 S. Ct. 346 (1992), and cert.
denied, ___ U.S. ___, 113 S. Ct. 2418 (1993) (in evaluating closely similar
remarks, court determined “[t]he prosecutor went too far in arguing her own
credentials for truthfulness to the jury.”). Even though defense counsel
opined during his closing that the prosecution’s goal was to accumulate
convictions, harsher statements impugning the integrity of the prosecution
have been held not to excuse misconduct by the prosecution in response.
See id. (citing United States v. Young, 470 U.S. 1, 12-14, 105 S. Ct. 1038,
1044-46 (1985)).
However, Garrett’s claim is not one for prosecutorial misconduct, but
for his counsel’s failure to object to the improper statements. Garrett
relies on the finding of ineffective assistance of counsel based on a
failure to object to inflammatory remarks by the prosecution in Seehan v.
Iowa, 37 F.3d 389 (8th Cir. 1994), rev’d in part, 72 F.3d 607 (8th Cir.
1995) (en banc). In Seehan, the defendant was charged with the murder of
a two-year-old child. The prosecutor was a visibly expectant mother at the
time of trial. In her opening statement, she noted that the slain child
“was the kind of little boy that I would like to have. He was the
decision must be made.
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kind of little boy you would like to have.” 37 F.3d at 391. During
closing, the prosecution uttered remarks similar to those at issue here:
Our duty as prosecutors in this case has been to present the
evidence as we developed it to you. We have a different type
of duty than you would anticipate. . . . We represent the
people of Iowa and Story County. In short, we represent you.
We also represent the defendant because he is part of our
society.
Id.
Sitting en banc, the court held that defense counsel did not provide
ineffective assistance in failing to object. 72 F.3d 607. The court found
that all of the remarks, taken in context, were not so clearly improper as
to demand objection, and that the petitioner also did not overcome the
strong presumption that “the challenged action [the decision not to object]
might be considered sound trial strategy.” 72 F.3d at 611 (quoting
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065) (internal quotations
omitted). It was also determined that the petitioner had failed to show
prejudice as a result of his counsel’s alleged omissions, based in part on
the state’s “strong” case. Id.
Here, the objectionable statements were confined to one portion of
the prosecution’s closing. Taken in context, they were not so egregious
or “patently inflammatory” as to mandate an objection. Cf. Seehan, 37 F.2d
at 391. Trial counsel’s behavior did not fall below Strickland’s standard
of objective reasonableness.
B. Ineffective Assistance of Counsel at Sentencing
In failing to object to the PSI, which concluded that he was
accountable for all of the crack cocaine found in Rodriguez’s luggage,
Garrett contends that defense counsel again failed to provide effective
assistance. The district court found that this claim was procedurally
barred because Garrett could have raised the
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claim on direct appeal, and further did not demonstrate cause and resultant
prejudice from the omission of the claim on appeal.
Such a finding, however, denies the essence of Garrett’s complaints.
Garrett could not have raised the sentencing issue on appeal because his
counsel, in an alleged exhibition of deficient performance, failed to raise
the issue before the district court. We have recognized that “[e]xcept in
rare circumstances, claims of ineffective assistance of counsel should be
raised for the first time in collateral proceedings under 28 U.S.C. § 2255
and not on direct appeal.” United States v. Jackson, 41 F.3d 1231, 1234
(8th Cir. 1994) (citing United States v. Lewin, 900 F.2d 145, 149 (8th Cir.
1990)). On these facts, the merits of Garrett’s claim should be addressed,
since a § 2255 motion appears to be his only remedy.
Garrett argues that since he was only carrying $1,000.00, and
Rodriguez stated that she was going to be paid $3,000.00 plus expenses, an
objection to the PSI would have forced the government to prove that the
“conspiracy” covered the entire amount of crack cocaine in Rodriguez’s
luggage.
It is not reasonable to infer that Garrett was going to purchase only
one-third of the drugs on the sole basis of the discrepancy between the
cash found on Garrett and the amount claimed by Rodriguez. By the same
token, it is not ineffective assistance to fail to object to a PSI that
does not draw the unlikely conclusion that the amount of money that a
defendant is carrying at the time of arrest conclusively determines the
scope of the conspiracy.
If an objection had been raised, the government would have had to
prove that the amount of cocaine Rodriguez possessed was attributable to
Garrett by a preponderance of the evidence. See United States v. Wise, 976
F.2d 393, 400 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 989, 113
S. Ct. 1592 (1993) (citations
-14-
omitted). Here, there was sufficient evidence to support the PSI’s
findings, and counsel could have reasonably determined that objecting to
the PSI would serve no purpose.12 This aspect of counsel’s performance did
not constitute ineffective assistance.
C. Ineffective Assistance of Counsel on Appeal
Garrett claims counsel made two constitutionally significant
omissions in appealing his conviction; namely, 1) neglecting to argue on
appeal that Rodriguez’s statements were inadmissible hearsay, and 2)
failing to argue that the district court improperly refused to allow
Garrett to impeach Rodriguez’s credibility through his cross-examination
of Agent Hicks.
1. Hearsay
The question here is not whether counsel’s choice to omit the hearsay
issue on appeal was an intelligent or effective decision, “but rather
whether his decision was an unreasonable one which only an incompetent
attorney would adopt.” Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir.
1988), cert. denied, 488 U.S. 1019, 109 S. Ct. 823 (1989) (quoting Parton
v. Wyrick, 704 F.2d 415, 417 (8th Cir. 1983)).
The district court concluded that, since the evidence was not
12
This case is dissimilar to United States v. Smith, 49 F.3d
362, 369 (8th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2009
(1995), and cert. denied, ___ U.S. ___, 115 S. Ct. 2264 (1995),
where the sentence of the district court was vacated because the
trial court relied exclusively on the testimony of a discredited
witness in determining the amount of drugs attributable to the
defendant. Here, the district court was presented with evidence
sufficient to convince a jury that Rodriguez and Garrett were
engaged in a conspiracy to possess crack cocaine, and that
Rodriguez had come to Kansas City to deliver almost eight kilograms
of it. Rather than relying solely on Rodriguez’s testimony, the
PSI drew a reasonable inference from the available evidence which
the district court adopted and to which defense counsel did not
object: Garrett was going to receive the entire shipment.
-15-
being used to prove the truth of the matter asserted and thus was not
hearsay, appealing this issue would have been futile. Garrett, attach. to
Appellant’s App. at 92a. It is true that if there is no merit to a claim,
failure to raise it on appeal does not result in ineffective assistance
under Strickland. See Thompson v. Jones, 870 F.2d 432, 435 (8th Cir.
1988). Yet Rodriguez’s statements, while they serve to fill in the gaps
of Agent Hicks’s story, also tend to identify Garrett as a drug purchaser
or courier.
Garrett relies on United States v. Azure, 845 F.2d 1503, 1507 (8th
Cir. 1988), in which a child’s statement that the defendant had abused her
was admitted through the testimony of an adult whom the child had told
about the abuse, as an explanation of why the investigation focused on the
defendant. On appeal, it was found that there was no proper “non-hearsay”
purpose served by the evidence, since “[t]he only possible relevance of
[the child’s] identification of Azure and of the government’s subsequent
investigation of him is that he in fact was the person who abused her.”
Id. The admission of the error was held harmless, however, as this court
noted that the primary justification for excluding hearsay is the lack of
any opportunity to cross-examine the declarant, and observed that the child
had been subject to cross-examination as a witness. Id. (quoting United
States v. Bohr, 581 F.2d 1294, 1304 (8th Cir.), cert. denied, 439 U.S. 958,
99 S. Ct. 361 (1978)).
This Circuit has consistently held that an out-of-court statement is
not hearsay “if it is offered for the limited purpose of explaining why a
police investigation was undertaken.” United States v. Brown, 923 F.2d
109, 111 (8th Cir.), cert. denied, 502 U.S. 833, 112 S. Ct. 110 (1991)
(citation omitted) (court did not err in allowing detective to testify as
to anonymous call informing him that defendants were selling crack cocaine
at certain location). See also King, 36 F.3d at 732 (distinguishing
Azure); United States v. Collins, 996 F.2d 950, 953-54 (8th Cir. 1993),
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cert. denied, ___ U.S. ___, 114 S. Ct. 412 (1993) (police officer properly
allowed to testify that search of apartment, during which incriminating
evidence was found, was conducted because resident of apartment was
defendant’s girlfriend); United States v. Cruz, 993 F.2d 164, 169 (8th Cir.
1993) (court properly allowed detective to testify as to information
received from unnamed sources that defendant distributed illegal drugs).
We find that counsel’s failure to appeal the district court’s hearsay
ruling was not such an egregious error so as to indicate counsel was not
functioning as counsel contemplated by the Sixth Amendment. Strickland,
466 U.S. at 687, 104 S. Ct. at 2064. The direct appeal was brought to this
Court on the grounds of insufficiency of evidence and improper admission
of a co-defendant’s acts. In deciding whether to appeal the hearsay issue
as well, Garrett’s counsel was presented with substantial, recent, and at
least facially contrary authority from this Circuit. The selection and
“winnowing” of which issues to bring on appeal is a “hallmark of effective
advocacy”; counsel is not required to raise every conceivable issue on
appeal. See Charron v. Gammon, 69 F.3d 851, 858 (8th Cir. 1995) (quoting
Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3313 (1983)); Blair
v. Armontrout, 976 F.2d 1130, 1139 (8th Cir. 1992), cert. denied, ___ U.S.
___, 113 S. Ct. 2357 (1993) (quoting Jones v. Barnes).
Our observations in Simmons v. Lockhart, 915 F.3d 372 (8th Cir.
1990), are appropriate here:
Certainly previously appointed counsel might have chosen to
press this issue on appeal, and such a choice would have been
reasonable. It does not follow that the opposite choice--to
drop the issue--was unreasonable. Law is an art, not a
science, and many questions that attorneys must decide are
questions of judgment and degree. Among the most difficult are
decisions as to what issues to press on appeal. . . . It is
possible to criticize his choice in hindsight. Perhaps a
choice to press the issue would have been better. But we are
dealing, after all, with fallible human beings, and a
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demand for perfection . . . cannot be met.
Id. at 375.
2. Denial of Extensive Impeachment
Garrett’s final contention is that his counsel provided ineffective
assistance by failing to appeal the district court’s refusal to allow
impeachment of Rodriguez’s credibility through Agent Hicks. At trial,
however, defense counsel did ask Agent Hicks if the government and
Rodriguez had entered into a plea agreement, and that Agent Hicks did
concede that they had entered into such an agreement approximately one week
prior to trial. Trial Tr. at 52-53. Garrett contends that further
questioning of Agent Hicks should have been permitted, so that the jury
could have learned that Rodriguez was not called because the government
believed her to be an unbelievable witness.
Counsel’s failure to appeal the impeachment issue is intimately
connected to his failure to raise the hearsay issue, as demonstrated by
the language of Federal Rule of Evidence 806: “When a hearsay statement .
. . has been admitted in evidence, the credibility of the declarant may be
attacked, and if attacked may be supported, by evidence which would be
admissible for those purposes if the declarant had testified as a witness”
(emphasis added). Counsel, when deciding which issues to appeal, was faced
with a clear and direct ruling by the district court that the testimony did
not constitute hearsay at all, as well as a substantial amount of precedent
supporting such a view under certain circumstances. If the testimony of
Agent Hicks did not contain hearsay, impeachment of the declarant under
Rule 806 would be impossible. Since we have determined that counsel’s
failure to appeal the hearsay ruling did not fall below a standard of
objective reasonableness, his failure to appeal the limitation of his
attempts at impeachment similarly does not indicate constitutionally
deficient performance. See infra Section II.C.1.
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III.
We have carefully reviewed the entire record in this case and are
satisfied that the defendant was not deprived of effective assistance of
counsel and that there is no probability, but for the alleged
unprofessional errors, that the result below would have been different.
For the reasons enumerated above, we affirm the judgment of the
district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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