The HONORABLE RICHARD H. KYLE, United States District

*

Judge for the District of Minnesota, sitting by

designation.

The Honorable Scott O. Wright, Senior United States District 1

Judge for the Western District of Missouri. 

____________

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
-2-

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
The following conversation regarding Rodriguez occurred out

2

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-

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. Agent Hicks, however, was allowed to

2

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
After she was arrested at the airport, Rodriguez agreed to

3

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.

The district court stated in its opinion denying Garrett’s § 4

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-

“Mike.” Defense counsel’s objections to the statements as hearsay were

3

overruled by the district court. Defense counsel proffered no instruction 4

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
The following exchange occurred on defense counsel’s cross5

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-

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.
-6-

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
Federal Rule of Evidence 403 states in relevant part: 6

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-

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 403 did not 6
It was unnecessary, however, to allow Rodriguez’s statements 7

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-

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
Federal Rule of Evidence 105 reads: 8

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-

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. 
A close reading of the trial transcript gives rise to an

9

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.”

-10-

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, Garrett 9
The “harmless error” standard applied since the defendant

10

claimed a violation of his confrontation rights on direct appeal.

In a related vein, Garrett argues that his counsel’s

11

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-

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
decision must be made.

-12-

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
-13-

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
-14-

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
This case is dissimilar to United States v. Smith, 49 F.3d

12

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-

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. This aspect of counsel’s performance did 12

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
-16-

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),
-17-

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