### *Th e Hon. Bruce M. Van Sickle, United States District Judg e

for the District of North Dakota, sitting by designation. The Honorable Lawrence L. Piersol, United States Distric t 1 

### Judge for the District of South Dakota. _____________ No. 95-3193SD

_____________ Lavern Fast Horse, * * Appellant, * * On Appeal from the United v. * States District Court * for the District of * South Dakota. Joe Class, Warden, * * Appellee. *

___________ Submitted: May 14, 1996 Filed: July 8, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VA N SICKLE, District Judge.

*

___________ RICHARD S. ARNOLD, Chief Judge.

Lavern C. Fast Horse, who is serving a six-year sentence for thef t by deception and embezzlement of property received in trust, appeals the District Court's denial of his petition for habeas corpus. We affirm. 1

In Decem ber 1990, Fast Horse sought employment from Jeff Dale, th e owner of Telescan Satellite and Pro Video. Dale informed Fast

### -2-

Horse that although no salaried positions were available, Dale would pay Fast Horse a commission for the sale of certain products. The next day, Fas t Horse told Dale that the Oglala Sioux Tribe was interested i n pur chasing a camcorder. Dale gave Fast Horse permission to take a camcorder to show it to the Tribe.

Two d ays later, Fast Horse told Dale that Tribal President Harol d Salway was trying out the camcorder to see if he wanted to buy it for his persona l use. Fast Horse then said that he was going to California fo r four or five days. After Fast Horse left, Dale asked Salway whether h e intended to purchase the camcorder. Salway repl ied that he had never seen it.
Meanwhil e, Fast Horse spoke to Peggy Poppe Basham, a travel agent , about purchasing two one-way tickets to Los Angeles for himself and hi s girlfriend, Patricia Swallow. Fast Horse said t hat he worked for Telescan and wanted to charge the tickets to the business. According to Fast Horse , Ms. Basham called Telescan, and Jeff Dale authorized the charge. Dale , however, denies receiving the phone call. Fast Horse then left fo r California with his g irlfriend and the camcorder, which the police seized from his hotel room, along with a satellite-tracking system.
At trial, Fast Horse gave a number of contradictory descriptions of his activities. He first denied, then later admitted, that he ha d purchased a one-way t icket. Fast Horse said that "the tribe did not want the camera because it [was] too expensive," but then testified that Dale "knew fro m the beginning" that Fast Horse "wanted to buy the camera fo r [his son] for Christmas." Fast Horse's son, however, did not accompany hi s father and the camcorder to California.
The jury convicted Fast Horse of theft by deception, S.D.C.L. § 22- 30A-3, and embezzleme nt of property received in trust, S.D.C.L. § 22-30A17(1). The South Dakota Supreme Court affirmed.

### -3-

State v. Fast Horse , 490 N.W.2d 496 (S.D. 1992). Fast Horse unsuccessfull y sought state post-conviction relief. Fast Horse v. Leapley , 521 N.W.2d 10 2 (S.D. 1994). Fast Horse then filed a petition for habeas corpus, which th e District Court denied.

On app eal, Fast Horse argues that he did not receive effectiv e assistance of counsel because his lawyer did not call Peggy Poppe Basham
as a witness and failed to introduce evidence that Dale had mailed th e satellite-tracking system to Fast Horse in California. In order t o prevail, Fast Horse "must show that his counsel's performance fell below professional standards and that his defense was prejudiced by his counsel' s ineffectiveness." Schneider v. Delo , 1996 WL 282416 at *3 (8th Cir. May 30, 1996). Fast Horse has not met this standard.
We begin with the failure of Fast Horse's lawyer to call Ms. Basham to the witness stand. During Fast Horse's state post-convictio n proceedings, Ms. Basham testified that Dale had authorized her to charge Fast Horse's airplane tickets to Telescan. Fast Horse asserts that this testimony would have impeached the credibility o f Dale, who testified that he had never authoriz ed the charge. Also, Fast Horse argues, if Dale was willing to allow Fast Horse to charge the ticket s, then Dale must not have been worried about the camcorder's whereabouts.

We need n ot decide whether Fast Horse's counsel was ineffective for failing to have Ms. Basham testify. When "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, [that ] course should be followed." Strickland v. Washington , 466 U.S. 668, 697 (1984). A defendant is prejudiced if "there is a reasonable probability [that is, a probability sufficient to undermine confidence in the outcome] that, but for counsel's unprofessional errors, the result of the [trial] would have been different." Id. at 694. Fast Horse has not shown that hi s defense was prejudiced.

### -4- Fast Horse is correct that Ms. Basham's testimony would hav e contra dicted Jeff Dale's claim that he did not agree to pay for Fas t Horse's plane tickets. This would have been pow erful testimony in a trial for embezzling plane tickets. But Fast Horse was tried for stealing a camc order, and there was ample evidence -- which would not have bee n contradic ted by Ms. Basham -- that Fast Horse was guilty. For example , Fast Horse explained that he failed to return the camcorder because he gav e it to Harold Salway, but Salway testified that he never saw it. Then, Fas t Horse testified that Jeff Dale was aware that Fast Horse was not going to return the camcorder because he wanted to buy it for his son for Christmas
. Considering that Fast Horse bought a one-way ticket and took the camcorder , but not his son, to California, Fast Horse had a n odd way of giving gifts. As for his trip, Fast Horse testified that he we nt to California to act in "L.A. Law." If embezzlement were not a serious crime, Fast Horse's wildly contr adictoryexplanations for not returning the camcorder would b e comical. But embezzlement is no laughing matter, and the mountain o f evidence against Fast Horse convinces us that Ms . Basham's testimony would not have changed the outcome of the trial.

We now tur n to Fast Horse's claim that his lawyer should hav e introduced evidence regarding the origins of the satellite-tracking system which the police seized from Fast Horse's hotel room. According to Fast Horse, Je ff Dale mailed the tracking system to him in California. Fas t Horse argues that his lawyer was ineffective because this evidence would have shown that Dale did not regard Fast Horse as a thief. We are no t persua ded. Dale claims that Fast Horse stole the satellite-trackin g system. I n fact, the prosecution tried to introduce evidence of Fas t Horse's possession of the tracking system to prove that he had stolen othe r items from Telescan. Fast Horse's lawyer successfully moved to prohibit the prosecution from presenting this evidence. In light of Fast Horse's demonstrated lack of candor and consistency, we agree with the South Dakot a Supreme Court that Fast Horse's lawyer

### -5-

made a rea sonable strategic decision, which we are not free to secon d guess. See Fast Horse , 521 N.W.2d at 105-06.

For thes e reasons, the judgment of the District Court is affirmed
. We express our thanks to Fast Horse's appointed counsel for his diligent service in this proceeding.
A true copy.

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