78 F.3d 1296 (8th Cir. 1996), 95-1900, Garrett v. United States

Docket Nº:95-1900.
Citation:78 F.3d 1296
Party Name:Michael A. GARRETT, Appellant, v. UNITED STATES of America, Appellee.
Case Date:March 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1296

78 F.3d 1296 (8th Cir. 1996)

Michael A. GARRETT, Appellant,

v.

UNITED STATES of America, Appellee.

No. 95-1900.

United States Court of Appeals, Eighth Circuit

March 12, 1996

Submitted Jan. 10, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied May 22, 1996.

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Appeal from the United States District Court for the Western District of Missouri; Scott O. Wright, Senior District Judge.

Before BEAM, Circuit Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and KYLE, [*] District Judge.

James H. Feldman, Jr., argued, Ardmore, PA (Alan Ellis and Peter Goldberger, on brief), for appellant.

Richard Marien, argued, Kansas City, MO (Stephen L. Hill, Jr., U.S. Atty., and Marietta Parker, on brief), for appellee.

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

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 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

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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 "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 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

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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.

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, 80 L.Ed.2d 657 (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 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, 80 L.Ed.2d 674 (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, 130 L.Ed.2d 409...

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