### The HONORABLE RICHARD H. KYLE, United States Distric t * 

### Ju dge for the District of Minnesota, sitting b y designation.
The Honorable Sc ott 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, an d KYLE, District Judge.

*

____________ KYLE, District Judge.

Michael A. Garrett appeals from the district court’s denial of hi s motionunder 28 U.S.C. § 2255, in which he claims ineffective assistance of counsel at his cri minal 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 t o 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 motion s 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 asses sed 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 wer e imprope rlyadmitted by the trial court. The conviction was affirmed

. United States v. Garr ett , 948 F.2d 474 (8th Cir. 1991), reh’g and reh’g en banc denied (Jan. 15, 1992).

OnOctober 12, 1990, Drug Enforcement Agency (“DEA”) Special Agen t Carl Hicks and two detectives of the Platte County Sheriff’s Office stoppe d a female suspect fitt ing a common drug courier profile at the Kansas City International Airport. She gave her name as Glo ria Hernandez and admitted that she was smuggling crack cocaine in her luggage, a search of whic h 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 th e drugs. Her instructi ons, 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 accompan ied by Agent Hicks and one of the detectives, Rodriguez made two telephone calls, conversed i n 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 ou t 2 

### of the presence of the jury:
THE COURT: How’s our witness? [Prosecutor]: Our witness is fine, but we’re not callin g

her. THE COURT: Oh, you’re not? [Prosecutor]: No, no. We basically told her she ca n

withdraw her plea, the deal is off, that her lies have damaged her credibilit y too se riously for us to be able to cal l her. Trial Tr. at 2.
-3- servic e and included a personal identification number (“PIN”). Afte r 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. Wi thin the next thirty to forty-five minutes, a person identifying himself a s 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 a nd asked for directions to
room117. H e was arrested as he walked toward room 117. A search o f Garrett’s vehicle unc overed a mobile phone and a pager, in the electronic
mem oryof 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 in formed the district court that it would not call Rodriguez as a witness because of con cerns over her credibility. Agent Hicks, however, was allowed t o 2 testify as to what Rodriguez told him about her involvement in a conspirac y to di stribute drugs, including her statement that the drugs were to b e picked up by a black man named

### Afte r she was arrested at the airport, Rodriguez agreed t o 3 

### talk to Agent Hicks without an attorney present. Agent Hick s testified on direct examination: Q. What was the gist of the conversation after yo u 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 supp osed to check into a motel in the downtown area. Her comment to me was a mote l where a visiting black man wou ld not stand out, and then she w as supposed to page Mike on his 800 pager and h e would come over to get the drugs. Trial Tr. at 27-28. The district cou rt stated in its opinion denying Garrett’s § 4 

### 2255 petition that Rodriguez’s statements were not offered t o prove the t ruth of the matter asserted, but to explain the actions o f Age nt 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 wer e

3 overruled by the district court. Defense counsel proffered no instruction 4 limiti ng the jury’s consideration of these statements to explaining why Agent Hicks did what he did, but, at the charging conference, proposed an instructioncompletely 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 obje ctions to de fense counsel’s attempts to impeach Rodriguez’s credibility by questioning Agent Hicks about Rodriguez’s plea

### The following exchange occurred on defense counsel’s cross

5 

### examination of Agent Hicks: Q. Y ou entered into a written plea agreement, th e 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 all ow the fact that Rodriguez had r ecently entered into a plea agreement to be presented to the jury. 5

Du ring its closing argument, the prosecution stated that, contrar y to defense counsel’s assertions, Assistant United States Attorneys do not “go for c onvictions,” but rather take an oath “to do justice.” Th e prosecution then toldthe jury, “we come here before you asking you to do justice.” Trial Tr. at 207. There was no objection to this portion of th e prosecution’s closing.

Apr e-sentence investigation report (“PSI”) concluded that Garret t was accountable for all of the crack cocaine fou nd 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 wa s based on the approximately eight kilograms of crack cocaine.

### -6- On Apr il 12, 1994, Garrett filed a motion to vacate his sentenc e under 28 U.S.C. § 2255. The motion asserted seven instances of ineffectiv e assistance of counsel at trial, at sentencing, and on direct appeal.

Garrett argues that he was denied effective assistance at tria l bec ause his attorney: 1) did not move to exclude Rodriguez’s statement s und er Federal Rule of Evidence 403, as the danger of prejudice to hi m
su bstantiallyoutweighed the testimony’s probative value; 2) did no t request an instructio n pursuant to Federal Rule of Evidence 105, limiting the jury’s consideration of Rodriguez’s testimony to explaining the action s of Agent Hicks; and 3) did not object to the prosecution’s closing

. Moreover, Garrett claims counsel was ineffective for failing to include th e admissionof Rodriguez’s statements as a ground for a new trial in hi s 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 wa s ineffe ctive 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 extensiv e 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 , 46 6 U.S. 648, 654, 104 S. Ct. 2039, 2044 (1984)). An analysis of a n 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


### Alt houghrelevant, evidence may be excluded if it s probative value is substantially outweighed by the dange r of unfair prejudice, confusion of the issues, o r 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, t here exists a strong presumption that c ounsel’s conduct falls within the wide range of professionall y 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 mus t demonstrate that “there is a reasonable probability that, but for counsel’ s unprof essional errors, the result of the proceeding would have bee n different.” 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probabilit y is one “sufficient to undermine confidence in the outcome.” Id.

Wheth er Garrett’s Sixth Amendment rights were violated because h e
re ceived ineffective assistance of counsel presents a legal questio n subject t o 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 unnecessa ry, however, to allow Rodriguez’s statements 7 

### to be heard by the jury withou t modification. The jury would have been able to understand why Hicks went to a motel room absen t 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. Th e trial judge had ruled that the testimony was not barred by the hearsa y rule, as it was not offered to prove that a man named “Mike” was to pay fo r the c rack cocaine, but to show the reasons for Agent Hicks’ behavior. 7 Since defense counsel had tested a most vulnerable aspect of Rodriguez’s statem ents, counsel may have reasonably determined that a Rule 40 3 objection would have been fruitless. The performance of an attorney is no t defici ent because the attorney failed to object to admissible evidence , Andersonv. Goeke , 44 F.3d 675, 680 (8th Cir. 1995) (citing Russell v

. Jones , 886 F.2d 149, 152 (8th Cir. 1989)), and t he trial court had already determined that the s tatements were not hearsay. While we have doubts as to the c orrectness of the trial court’s wholesale admission of th e statements, the failure to renew an objection ondifferent grounds did not constitute deficient performance from the perspe ctive 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 th e jury. Sp eculation as to what the district court would have done i f prese nted with this motion is not equivalent to a showing of prejudic e 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 conspirac y charge was

### Federal Rule of Evidence 105 reads: 8


### When evidence which is admissi ble as to one party or for one purpose but not admissible as to another party or fo r anot her purpose is admitted, the court, upon request , shall restrict the evidence to its proper scope an d 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 base d
on the conversation between Rodriguez and Garrett, the obvious advanc e 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 searc h of Garrett’s vehicle pursuant to his arrest uncovered a pager which had th e 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 Rul e 403 grou nds deprived him of a fair trial or rendered the result of th e 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 a n instruction limiting the jury’s consideration of Rodriguez’s testimony to

an exp lanation of the actions of Agent Hicks represented deficien t performance and resulted in prejudice to him. See Fed. R. Evid. 105. 8 Defense counsel didrequest a limiting instruction, based on Eighth Circui t Model Criminal Instru ction 2.15, which limits a jury’s consideration of a co-defendant’s statements. The trial judge reje cted 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 § 225 5 petiti on, determined that counsel may have reasonably believed that a limiting instruction would serve only to underscore the importance of the testim ony, yet the transcript of the proceedings indicates that defens e counsel was willing to take that risk.

### Aclose reading of the trial transcript gives rise to a n 9 

### inference that counsel’s requested instruction may have beendenied inpart because the trial court believed that Rodriguez’ s st atements could be admitted as coconspirator declarations unde r Federal Rule of Evidence 801(d)(2)(E). Trial Tr. at 173-75. I n its opinion denying Garrett’s § 2255 motion, however, the district court explained that Rodriguez’s conversation with Agent Hi cks 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 wer e admitted because they explained the actions of Agent Hicks

. In fact, the rejection of coun sel’s instruction seems to have been partially based on the erroneous notion that Instruction 2.1 5 could not be used at all in “conspiracy cases”; the committee comment s state that the instruction is not applicable where the dispute d eviden ce is admitted as a coconspirator declaration, “or in an y othe r situation in which the codefendant’s statement may b e directly admissible against the defendant.”
-10- A limiting instruction would certainly have been appropriate here

. We ha ve previously noted that “if a conspirator statement is bot h per missible background and highly prejudicial, otherwise inadmissibl e hearsay, fairness demands that the government find a way to get th e background into evidence without the hearsay.” United States v. Alonzo , 991 F.2d 1422, 1426-2 7 (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 fr om the testimony with no risk of confusion as to the behavior of Agent Hic ks. Without such procedures, there is a strong risk that the while the statements “may be offeredas background for the agents ’
ac tions, they will inevitably be used as direct evidence” of th e def endant’s guilt. Id. (emphasis in original). In Alonzo , admission o f similar statements by a co-conspirator did not p ass 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 evidenc e agai nst Garrett, distinguish Alonzo . Even if the failure to reques t another instruction limiting the jury’s consider ation to an explanation of the behavior of Agent Hicks was ineffective assistance, Garrett 9

### Th e “harmless error” standard applied since the defendan t 10 

### claimed a violation of his confrontation rights on direct appeal.
I na related vein, Garrett argues that his counsel’ s 11 

### performance was deficient beca use he did not dispute the admission of the “hearsay” testimony in his motion for acquittal or a new trial

. View ing the matter from counsel’s perspective immediately afte r trial, counsel had no reason to believe that the court woul d reverse its earlier ruling which allowed Rodriguez’s statem ents to become part of the record. Ineffective assistance should not b e found under Strickland when counsel fails to perform those act s wh ichclearly appear to be futile or fruitless at the time th e -11- has not shown that the failure to request a limi ting instruction seriously compromised the integrity of the trial.

In Uni ted States v. King , 36 F.3d 728 (8th Cir. 1994), a convicte d defendant challenged the trial court’s admission of a DEA agent’s statemen t that he started an investigation on information that a man named “Bill” wa s selling cocaine from a certain address while pos sessing a handgun. Id. at 731. The defendant’s first name was William. I n 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 in struction was requested or given. Id. at 732. The King court found that the trial court did no t abuse its discretion in determining to admit the evidence, and furthe r found any error in the admission of the testimony, including the absence of a limiting instruc tion, 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 wa s charact erized as “overwhelming,” and the evidence here was previousl y cha racterized by another panel of this Court as “not overwhelming,” 94 8 F.2d at 4 76, does not mandate an opposite result. The evidence agains t Gar rett was significant and substantial. Garrett must prove that ther e exist s a reasonable probability that the outcome of the trial would b e diffe rent absent the alleged ineffective assistance--this is a mor e 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 statement s made by th e prosecutor during closing argument as exhibiting ineffectiv e 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 , 50 6 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 simila r remarks, court determined “[t]he prosecutor went too far in arguing her own credentials for truth fulness to the jury.”). Even though defense counsel opi ned during his closing that the prosecution’s goal was to accumulat e convictions, harsher statements impugning the in tegrity 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 misconduc t, 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 th e 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 l ittle boy you would like to have.” 37 F.3d at 391. Durin g closing, the prosecution uttered remarks similar to those at issue here: Our duty as prosecutors in this case has been to present th e evidence as we developed it to you. We have a different type of duty than you would anticipate. . . . We represent th e people of Iowa and Story County. In short, we represent you. We also represent the defendant because he is part of ou r 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 de mand objection, and that the petitioner also did not overcome th e strong presumption that “the challenged action [the decision not to object ] might be considered sound trial strategy.” 72 F.3d at 611 (quotin g Strickland , 466 U.S. at 689, 104 S. Ct. at 2065) (internal quotation s omitted). It was also determined that the petitioner had failed to show prejudice as a result of his counsel’s alleged o missions, based in part on the state’s “strong” case. Id.

Here, the objectionable statements were confined to one portion o f the prosecution’s closing. Taken in context, they were not so egregious
or “patently inflammatory” as to mandate an objection. Cf. Seehan , 37 F.2 d at 391. Trial counsel’s behavior did not fall b elow Strickland ’s standard of objective reasonableness.
B. Ineffective Assistance of Counsel at Sentencing In f ailing to object to the PSI, which concluded that he wa s accountable for all of the crack cocaine found in Rodriguez’s luggage , Garret t contends that defense counsel again failed to provide effectiv e assistance. The district court found that this claim was procedurall y barred because Garrett could have raised the

### -14-

claim on direct appeal, and further did not demonstrate cause and resultan t 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 rais e the issue before the district court. We have re cognized that “[e]xcept in rare circumstances, c laims of ineffective assistance of counsel should be raised for the first time in collateral proceedi ngs 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, an d 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 th e “consp iracy” covered the entire amount of crack cocaine in Rodriguez’ s luggage.
It is not reasonable to infer that Garrett was going to purchas e only one-third of the drugs on the sole basis of the discrepancy between th e cash fo und on Garrett and the amount claimed by Rodriguez. By the sam e token, it is not ineffective assistance to fail to object to a PSI tha t doe s not draw the unlikely conclusion that the amount of money that a def endant is carrying at the time of arrest conclusively determines th e scope of the conspiracy.

If an objection had been raised, the government would have had t o prove that the amount of cocaine Rodriguez possessed was attributable to Garrett by a preponderance of the evidence. See United States v. Wise , 97 6 F.2d 393, 400 (8th Cir. 1992) (en banc), cert. denied , 507 U.S. 989, 113 S. Ct. 1592 (1993) (citations

### T his case is dissimilar to United States v. Smith , 49 F.3 d 12 

### 362, 3 69 (8th Cir.), cert. denied , ___ U.S. ___, 115 S. Ct. 200 9 (1995 ), and cert. denied , ___ U.S. ___, 115 S. Ct. 2264 (1995) , where the sentence of the district court was vacated because th e tri al court relied exclusively on the testimony of a discredite d witness in determining the amount of drugs attributable to th e def endant. Here, the district court was presented with evidenc e suf ficient to convince a jury that Rodriguez and Garrett wer e eng aged in a conspiracy to possess crack cocaine, and tha t Rodriguez had come to Kansas City to deliver almost eight ki lograms of it. Rather than relying solely on Rodriguez’s testimony, th e PSI drew a reasonable inference from the available evidence which the district court adopted and to which defense counsel did no t 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 co unsel’s performance did 12 not constitute ineffective assistance.
C. Ineffective Assistance of Counsel on Appeal Garrett claims counsel made two constitutionally significan t omissions in appealing his conviction; namely, 1) neglecting to argue on ap peal that Rodriguez’s statements were inadmissible hearsay, and 2 ) fail ing to argue that the district court improperly refused to allo w 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 h earsay issue o n appeal was an intelligent or effective decision, “but rathe r whether his decision was an unreasonable one which only an incompeten t 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 use d to prove the truth of the matter asserted and thus was no t hearsay, appealing this issue would have been fu tile. Garrett , attach. to Appellant’s App. at 92a. It is true that if the re is no merit to a claim, failure to raise it on appeal does not result in ineffective assistanc e und er 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 stor y, also tend to identify Garrett as a drug purchaser or courier.

Garrett relies on United States v. Azure , 845 F.2d 1503, 1507 (8t h Cir. 1988), in which a child’s statement that th e defendant had abused her
was admitted through the testimony of an adult whom the child had tol d about the abuse, as an explanation of why the investigation focused on the defendant. On appeal, it was found that there w as no proper “non-hearsay” pur pose served by the evidence, since “[t]he only possible relevance o f [the child’s] identification of Azure and of the government’s subsequent investi gationof 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 primar y justification for excluding hearsay is the lack of any opportunity to cross-examine the declarant, and observed that the chil d 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 t hat an out-of-court statement is not hearsay “if it is offered for the limited purpose of explaining why a pol ice investigation was undertaken.” United States v. Brown , 923 F.2 d 109, 111 (8th Cir.), cert. denied , 502 U.S. 833, 112 S. Ct. 110 (1991 ) (citation omitted) (c ourt did not err in allowing detective to testify as to anonymous call informing him that defendants were selling crack cocaine at c ertain location). See also King , 36 F.3d at 732 (distinguishin g 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 allowe d to testify that search of apartment, during which incriminatin g eviden ce was found, was conducted because resident of apartment wa s defendant’s girlfriend); United States v. Cruz , 993 F.2d 164, 169 (8th Cir

. 1993) (court properly allowed detective to testify as to informatio n received from unnamed sources that defendant distributed illegal drugs).

We find that counsel’s failure to appeal the district court’s h earsay 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 thi s Court on the grounds of insufficiency of evidence and improper admission of a co-defendant’s acts. In deciding whether t o appeal the hearsay issue as well, Garrett’s co unsel was presented with substantial, recent, and at lea st facially contrary authority from this Circuit. The selection an d “winnowing” of which issues to bring on appeal i s a “hallmark of effective advocacy”; counsel is not required to raise every conceivable issue o n 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)); Blai r v. Armontrout , 976 F.2d 1130, 1139 (8th Cir. 199 2), cert. denied , ___ U.S. ___, 113 S. Ct. 2357 (1993) (quoting Jones v. Barnes ).

Our obser vations in Simmons v. Lockhart , 915 F.3d 372 (8th Cir

. 1990), are appropriate here: Certainly previously appointed counsel might have chosen t o press this issue on appeal, and such a choice would have been rea sonable. It does not follow that the opposite choice--t o drop the issue--was unreasonable. Law is an art, not a scie nce, and many questions that attorneys must decide ar e questions of judgment and degree. Among the most d ifficult are decis ions as to what issues to press on appeal. . . . It i s pos sible 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

### -18- demand for perfection . . . cannot be met.
Id. at 375.
2. Denial of Extensive Impeachment Garrett’s final contention is that his counsel provided ineffective assista nce by failing to appeal the district court’s refusal to allo w impeach ment of Rodriguez’s credibility through Agent Hicks. At trial , however, defense counsel did ask Agent Hicks if the government an d Rodriguez had entered into a plea agreement, and that Agent Hicks di d concede that they had entered into such an agreement approximately one wee k prior to trial. Trial Tr. at 52-53. Garrett contends that furthe r questioning of Agent Hicks should have been permitted, so that the jur y
cou ld have learned that Rodriguez was not called because the governmen t believed her to be an unbelievable witness.

Cou nsel’s failure to appeal the impeachment issue is intimatel y connected to his failure to raise the hearsay issue, as demonstrated by the language of Feder al Rule of Evidence 806: “When a hearsaystatement . . . has been admitted in evidence, the credibili ty of the declarant may be attac ked, and if attacked may be supported, by evidence which would b e admissible for those purposes if the declarant h ad testified as a witness” (emphasis added). Counsel, when deciding which issues to appeal, was face d with a clear and direct ruling by the district court that the testimony di d not constitute hearsay at all, as well as a substantial amount of preceden t supporting such a view under certain circumstances. If the testimony of Age nt Hicks did not contain hearsay, impeachment of the declarant unde r Rule 806 would be impossible. Since we have determined that counsel’ s fai lure to appeal the hearsay ruling did not fall below a standard o f object ive reasonableness, his failure to appeal the limitation of hi s at tempts at impeachment similarly does not indicate constitutionall y deficient performance. See infra Section II.C.1.

### -19- III. We have carefully reviewed the entire record in this case and ar e satisfied that the defendant was not deprived of effective assistance of
cou nsel and that there is no probability, but for the allege d unprofessional errors, that the result below would have been different.

For the r easons enumerated above, we affirm the judgment of th e district court.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT