U.S. v. Hager

• Decision Date: 05 November 1974
• Docket Number: No. 74-1308,74-1308
• Citation: 505 F.2d 737
• Parties: UNITED STATES of America, Appellee, v. Jeannette Elizabeth HAGER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 737

505 F.2d 737

UNITED STATES of America, Appellee, v. Jeannette Elizabeth HAGER, Appellant.

No. 74-1308.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 15, 1974.

Decided Nov. 5, 1974.

John W. Brickler, St. Louis, Mo., for appellant.

Richard E. Coughlin, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

Jeannette Elizabeth Hager appeals from her conviction by a jury of two counts of possession of matter which had been stolen from the mail in violation of 18 U.S.C. 1708. We affirm that conviction.

The two counts in the indictment were based on two incidents occurring a few months apart in which personal checks were stolen from the mail, the name of the payee was altered and Ms. Hager appeared at financial institutions to cash these stolen, altered instruments. The first time she was successful in her endeavor, but the second time she was apprehended after suspicious bank employees notified the police. She was attempting to cash the second check using an assumed name when she was arrested.

During the trial various government witnesses who were postal inspectors and local policemen testified regarding the contents of certain exculpatory statements Ms. Hager had made to them in the course of their investigations. However, these statements had been given by her before she had been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Also, in his closing argument to the jury, the government's attorney stated that 'there are certain questions I would like answered by the defense in this case.' He then propounded five questions regarding the evidence in the case. Appellant claims that this was improper because it implied that the defendant had a burden of proving her innocence. Additionally, during the closing argument the prosecutor said, 'Nobody gave the defendant, Jeannette Hager, or at least the people that the government produced, no one gave her permission to have this check in her possession. It didn't come from Alice Cooper and it didn't come from Ruth Maness.' This, allegedly, was improper because, again, it implied that the defendant had to come forward with evidence and because it was in itself a comment on the defendant's having not testified. The prosecutor also told the jury that 'the evidence in this case, I think, is totally overwhelming;' which Ms. Hager's appellate attorney argues is an improper statement of personal opinion by the government attorney.

Mr. Hager's trial attorney, Mr. Jess Ullom, made no attempt to suppress the exculpatory statements nor did he object to this testimony at trial. Neither did he object to the prosecutor's remarks made during closing argument. In fact, he attempted to answer the questions raised by the prosecutor during his own closing argument. There was no motion for a mistrial. ¹

In this posture the only issue with which we must deal on this appeal is whether or not Ms. Hager was denied her constitutional right to effective assistance of legal counsel. We believe that she was not.

The standard for ineffectiveness of counsel followed by this circuit is the so-called 'mockery of justice' standard. An oft-quoted statement of this standard is found in Cardarella v. United States, 375 F.2d 222, 230 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967):

The rule applicable is that a charge of inadequate representation can prevail 'only if it can be said that what was or was not done by the defendant's attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court.' O'Malley v. United States, 6 Cir., 285 F.2d 733, 734 (1961).

Two recent opinions of this Court have continued this standard in effect, but have pointed out its limitations. Garton v. Swenson, 497 F.2d 1137, 1139-1140 (8th Cir. 1974); McQueen v. Swenson, 498 F.2d 207, 214-218 (8th Cir. 1974). These opinions have demonstrated that the 'mockery of justice' standard is not meant to be an impenetrable obstacle to any meaningful analysis of the facts of the particular case. As stated in McQueen v. Swenson, supra, 498 F.2d at 214:

Stringent as the 'mockery of justice' standard may seem, we have never intended it to be used as a shibboleth to avoid a searching evaluation of possible constitutional violations; nor has it been so used in this circuit. It was not intended that the 'mockery of justice' standard be taken literally, but rather taht it be employed as an embodiment of the principle that a petitioner must shoulder a heavy burden in proving unfairness.

Nonetheless, applying the 'mockery of justice' standard as interpreted in McQueen to the facts of the present case it is clear that Ms. Hager was not denied effective assistance of legal counsel. It should be noted initially that unlike McQueen and Garton v. Swenson, supra, the appellant here does not attack her trial attorney's preparation of the case. Rather, she asserts that he made mistakes in the conduct of the defense during the trial itself. However, this attack runs directly into the precept stated in Robinson v. United States, 448 F.2d 1255, 1256 (8th Cir. 1971), and expressly reaffirmed in McQueen, supra, 498 F.2d at 216, that in choosing trial tactics 'the exercise of a defense attorney's professional judgment should not be second-guessed by hindsight . . ..' A wrong or poorly advised decision by a defense attorney is not alone enough to support a subsequent claim of ineffective counsel. Robinson v. United States, supra, 448 F.2d at 1256. Analysis of the arguments advanced by Ms. Hager indicate clearly that she is asking us to do what this Court has expressly refused to do--second-guess by hindsight the trial tactics utilized by the defense attorney.

In any event, we are not certain that the trial tactics chosen by Mr. Ullom were wrong. At the time of the trial Ms. Hager had at least six prior felony convictions. Mr. Ullom could easily foresee that if she took the witness stand to tell her own story, the prosecutor could and would inquire about these past convictions for impeachment purposes and that the jury might be swayed by this evidence in spite of any cautionary instructions. Instead of having Ms. Hager testify, he logically chose to allow her version of how she happened to have the stolen checks in her possession to come out through the testimony of the government witnesses regarding the...