COFFEY, Circuit Judge.
Daniel L. Balzano was charged in a grand jury's six-count superseding indictment with four counts of extortion in violation of 18 U.S.C. § 1951, one count of conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (RICO) in contravention of 18 U.S.C. § 1962(d) and one count of threatening and intimidating a grand jury witness in violation of 18 U.S.C. § 1512. Following a jury trial commencing on June 2, 1987, Balzano was found guilty on three of the four counts of extortion, the RICO conspiracy count and the count of threatening and intimidating a grand jury witness. Balzano was sentenced to six months' imprisonment with work release privileges on the RICO conspiracy count and one of the extortion counts with the sentences to be served concurrently.
The City of Chicago's Fire Prevention Bureau is a unit of the Chicago Fire Department, responsible for the enforcement of the Chicago Fire Code including on-site investigation of property and the issuing of citations for violations of the Code.
Daniel Balzano, a Chicago Fire Inspector in 1983-84, was charged with receiving payoffs from business enterprises that had applied for liquor, food and amusement licenses. Balzano, while assigned to the North Side Task Force, split payoffs with Richard Dorband, the Fire Prevention Bureau Inspector and supervisor of the North Side Task Force. On three other occasions Balzano got more greedy and rather than splitting the payoffs, shook down business license applicants himself without splitting the payoffs. Balzano would advise the business proprietors of the necessity to make the repairs indicated in order that they might comply with the Code and would then demand a "payoff" from the owners in lieu of or in addition to the repairs.
After a plea agreement Richard Dorband testified for the government with respect to the payoffs he split with Balzano. Dorband stated that during the year he worked with Balzano, he and Balzano received and split a number of small payoffs of approximately $20 on each occasion. He estimated that Balzano received a total of between $100 and $150 from these payoffs. Dorband was able to remember one large payoff from Woo Kim, the proprietor of the China Moon Restaurant. Dorband testified that on June 28, 1983, he received $500 from Kim, kept $100, gave $100 to Balzano, gave another $100 to a health inspector and returned the remaining $200.
As noted above, there were also incidents where Balzano, on his own, demanded and/or received "payoffs" to facilitate the approval of the licenses. The first of these occasions involved the liquor license application of the Club Victoria nightclub. Upon completion of the initial inspection the premises were deemed "not ready,"
The next payoff incident was an application for a liquor license with a 2 a.m. closing time limit of the United Skates of America roller skating rink filed late in 1982. Tom Grisamore, general manager of the roller skating group, and Jim Dvorak, vice president of United Skates and Grisamore's superior, suggested that James Allenson, co-owner of their arcade machine supplier, be given $2,200 to pay off public officials to obtain the license. Allenson spoke with Terry Mofreh, an inspector from the City's Consumer Services Department, and explained that United Skates wanted a liquor license to help promote entertainment in their roller rink and asked Mofreh for his help in obtaining the liquor license. Mofreh told Allenson that he would get back to him and eventually told him that he could provide assistance at this time. Mofreh advised him that $1,500 would be required, and Allenson paid Mofreh the $1,500 in cash.
The North Side Task Force performed a liquor license inspection of the United Skates premises on February 17, 1983, with Terry Mofreh who, although not assigned to the inspection team, also appeared. During the inspection, Mofreh approached Richard Dorband and told him that he was interested in seeing that United Skates passed the inspection. Dorband talked to Balzano and after their conference it was suggested to Mofreh that a contribution of $300 to the fireman's fund would help to gain approval. Allenson gave Mofreh an additional $300, and he turned the money over to Dorband.
About a week after the task force's inspection of the United Skates premises, a fire inspector visited Tom Grisamore and identified himself as a member of the inspection team. Grisamore testified that he recognized the inspector as having visited the premises on an earlier occasion while a member of the inspection group. Grisamore described the inspector at trial as a "white male, dark hair, in his mid-twenties to thirties, youngish, five-nine to six feet [who] possibly had a mustache," a description matching Balzano. Grisamore also testified that the inspector was wearing a uniform. The inspector stated that the building premises license application had a problem since the establishment was without a sprinkling system. Grisamore complained the installation would cost about $100,000. In response, the fire inspector displayed an advertisement containing a picture of a video cassette recorder and a television and, in Grisamore's words, "indicated that if I could get this for the boys at the station house ... there wouldn't be any problem with the sprinkling system." Pursuant to Grisamore's request, the inspector wrote his name and telephone number on a piece of paper that was left with Grisamore. Although at the time of trial Grisamore was unable to positively I.D. Balzano, Allenson testified that he received a telephone call from Grisamore (after the extortion attempt) in which Grisamore referred to Dan Balzano as the fire inspector who had visited him at the time of the alleged
Balzano's next payoff episode involved the liquor and food license applications of Eddie's Barbecue Ribs restaurant, owned by Cesar Aguilera. Two task force inspections were performed, and at the time of the second inspection Aguilera spoke with an individual wearing a fire inspector's uniform whose description matched that of Balzano: "a young person, about five-seven, about 150 pounds, white, kind of brown hair and a mustache."
Richard Dorband testified that he had two telephone conversations with Balzano in February 1985, in which they discussed Terry Mofreh's cooperating with the government. In June 1986 Terry Mofreh testified as a government witness before a grand jury. On one of the dates Mofreh was scheduled to appear, Mofreh was seated in a room adjoining and behind the grand jury room. Balzano, while present in the area of the grand jury room, walked to the doorway of the room where Mofreh was sitting. Gesturing toward Mofreh, Balzano waved a newspaper over his own mouth two or three times, moved his thumb across his own throat in a slashing motion, and pointed his index finger with his thumb extended in a motion representing the firing of a gun. FBI Agent Neal O'Malley, who came upon Mofreh very shortly thereafter, stated that Mofreh appeared pale as he described the gestures that the individual (Balzano) made. He further stated that at that time Mofreh was unaware of the name of the person who made the threatening gestures. Assistant United States Attorney Ira Raphaelson also testified that he had observed Mofreh immediately after O'Malley and confirmed that he also observed that Mofreh appeared pale.
Balzano's appeal raises the following contentions: (1) the trial court erred in permitting joinder of his witness intimidation count with the remaining counts of his indictment under Rule 8 of the Federal Rules of Criminal Procedure and in refusing to order the witness intimidation count to be severed for trial under Rule 14 of the Federal Rules of Criminal Procedure; (2) there was insufficient evidence to support his conviction for extortion, conspiracy to violate RICO and witness intimidation; and (3) he received constitutionally ineffective assistance from his trial counsel.
JOINDER AND SEVERANCE
Balzano challenges the joinder of his witness intimidation count with the remaining
Federal Rule of Criminal Procedure 8(a), governing the joinder of offenses involving a single defendant,
"As the Supreme Court has said, `once the Rule 8 requirements [are] met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14....' United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986) (interpreting Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960))." United States v. Garner, 837 F.2d 1404, 1412 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988). Balzano filed a motion for severance alleging that the witness intimidation count should have been severed before trial under Rule 14. Balzano alleged that severance was necessary because evidence presented on the witness intimidation count might improperly affect the jury's consideration of the remaining counts. He also asserted that severance was required because it was his intention to testify only on the witness intimidation count and not to testify on any of the remaining counts. At his trial, Balzano did not testify in his own defense.
(Footnote and citations omitted).
Initially, we turn to Balzano's claim that the trial court's refusal to sever the trial on the witness intimidation count was prejudicial to him as the jury improperly considered evidence relevant to the witness intimidation claim in reaching its verdicts upon the other counts. Courts have held that evidence of a defendant's attempts at intimidation of a witness or of a person cooperating with a government investigation is admissible to demonstrate a defendant's "consciousness of guilt" of the charges which were the subject of the witness' testimony or cooperation. See United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987) ("Evidence that defendant attempted to bribe and threaten a witness is admissible to show consciousness of guilt."); United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986) (In a conspiracy case evidence of a threat against a potential witness "may be admitted to show consciousness of guilt"); United States v. Hammond, 781 F.2d 1536, 1540 (11th Cir.1986) (In a conspiracy case "[c]ourts may consider evidence of attempts to influence a witness as relevant in showing a consciousness of guilt."). See also Weinstein's Evidence, ¶ 401 at 401-72 to 74, n. 21 and cases cited therein. As noted in United States v. Moya-Gomez, 860 F.2d 706, 768 (7th Cir.1988): "`In those instances where evidence of one crime is admissible at a separate trial for another, it follows that a defendant will not suffer any additional prejudice if the two offenses are tried together.'" (Quoting United States v. Foutz, 540 F.2d 733, 736 (4th Cir.1976) (footnote omitted)). Thus, the court did not err in declining to sever the witness intimidation count from the extortion and RICO conspiracy counts, because the evidence relevant to the witness intimidation count could have been admitted at a trial on any of the remaining counts or a combination of the counts to demonstrate consciousness of guilt. See also United States v. L'Allier, 838 F.2d 234, 241 (7th Cir.1988) (Defendant not prejudiced when "[m]ost of the evidence relating to Count II would have been admissible in a separate trial on Count I."); United States v. Garver, 809 F.2d 1291, 1298 (7th Cir.1987) (Denial of motion for severance did not prejudice defendants where evidence would have been admissible in separate trials).
In United States v. Moya-Gomez, 860 F.2d at 768, we went on to observe:
Similarly, the jury in this case was instructed that: "Each count should be considered separately, and a separate verdict should be returned as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to any other count." Furthermore, the witness intimidation count involved facts that occurred several years after the other counts, readily permitting the jury to "relate the evidence to the proper count." L'Allier, 838 F.2d at 241. Thus, as in Moya-Gomez, Balzano "has not met his heavy burden of demonstrating prejudice from the joinder of [the witness intimidation count with any of the remaining counts] so as to render the district court's denial of a severance an abuse of discretion." Moya-Gomez, 860 F.2d at 768.
There is another reason why the denial of severance would not result in actual prejudice, i.e., deprivation of a fair trial. As will be discussed in Section II, infra, the evidence of Balzano's guilt on the RICO conspiracy and extortion counts was very convincing. In an analogous situation we have held that alleged violations of the Confrontation Clause were harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt. See United States v. Mayomi, 873 F.2d 1049, 1057 (7th Cir.1989) ("In light of the overwhelming evidence against Mayomi regarding his involvement in the importation and possession of heroin, we hold that any error in limiting the defendant's cross-examination of Ashton with respect to either the identity of the informant or Ashton's previous involvement, if any, in FBI investigations, was harmless."); Smith v. Fairman, 862 F.2d 630, 639 (7th Cir.1988) ("In light of all of this evidence, we do not think that the admission of Mrs. Smith's testimony that Boyle once told her, in a drunken state, that he was not certain who he had seen on the night of the murder, would have affected the jury's verdict. Even absent the hearsay testimony regarding Boyle's identification of Mr. Smith, which Mrs. Smith's testimony was primarily designed to impeach, the evidence of Mr. Smith's guilt was overwhelming. The erroneous exclusion of that testimony was therefore harmless beyond a reasonable doubt."). Similarly, the overwhelming evidence of Balzano's guilt on the RICO conspiracy and extortion counts meant that there was no actual prejudice accompanying a joint trial of all of the counts because the jury clearly would have convicted Balzano even if it had not been permitted to hear or consider evidence regarding Balzano's witness intimidation.
Balzano has failed to cite any cases in support of his claim mandating the severance of trials of different offenses involving a single defendant where the cases are all part of the same and related
Accord United States v. Ely, 910 F.2d 455 (7th Cir.1990).
Balzano has neglected to set forth any specific examples of the alleged exculpatory testimony he would have presented in a separate trial on the witness intimidation count. This falls far short of satisfying the requirement of a "convincing" demonstration that Balzano had "`important testimony to give concerning'"
United States v. Studley, 892 F.2d 518, 525 (7th Cir.1989) (quoting United States v. Melton, 689 F.2d 679, 686 (7th Cir.1982) (Citations omitted)). We went on to point out that:
Studley, 892 F.2d at 525. We believe that when exculpatory testimony forms the basis of requests for either severance of defendants or severance of offenses, a defendant is required to present more than "a vague, unsupported assertion" speculating about the possibility of exculpatory testimony which he might choose to offer in a separate trial. Furthermore, Balzano has failed to set forth any specific examples of the exculpatory evidence he would have presented in a separate trial on the witness intimidation count. As the court held in Studley, Balzano "has done nothing more than make a bald allegation of a mere possibility that [he] would give exculpatory evidence in a severed proceeding." Studley, 892 F.2d at 525. Such an allegation is insufficient to constitute the actual prejudice necessary to obtain severance under Federal Rule of Criminal Procedure 14.
SUFFICIENCY OF THE EVIDENCE
Balzano challenges the sufficiency of the evidence supporting each of his five convictions. "In evaluating [Balzano's] sufficiency of the evidence challenge, we note that [he] bears a heavy burden. Initially, we `review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.'" United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). "The test is whether after viewing the evidence in the light most favorable to the government, `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).
Juries frequently are required to rely upon circumstantial evidence in reaching their verdicts. In United States v. Grier, 866 F.2d 908, 923 (7th Cir.1989), a case involving circumstantial evidence of a conspiracy and a defendant's participation in a conspiracy, we observed:
We have gone on to observe recently that:
United States v. Johnson, 903 F.2d 1084, 1087 (7th Cir.1990).
In weighing direct and circumstantial evidence, the trier of fact plays a particularly significant role as the arbiter of credibility:
United States v. Vega, 860 F.2d 779, 794 (7th Cir.1988).
A. The Extortion Convictions
Balzano urges that the government presented insufficient evidence to convict him of each of three counts of extortion violative of the Hobbs Act, 18 U.S.C. § 1951. "The Hobbs Act defines extortion as `the obtaining of property from another with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.' 18 U.S.C. § 1951(b)(2)." United States v. Garner, 837 F.2d 1404, 1421 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988).
United States v. Davis, 890 F.2d 1373, 1378 (7th Cir.1989). The question presented on review is whether there is any evidence which would allow a rational trier of fact to conclude that Balzano either (1) wrongfully induced payments through an actual or threatened fear of economic harm, or (2) encouraged payments when acting in his official capacity as a fire inspector "under the color of official right." See Davis, 890 F.2d at 1378.
The Club Victoria Extortion Count
In the Club Victoria liquor license application extortion case Jennifer Hammersmith, a co-owner of Club Victoria, testified that Balzano required that she hire a particular craftsman to perform construction work as well as demanding $2,500 for himself. In requiring this of Hammersmith, Balzano stated "he could make [her] do anything that he wanted to" and that before Hammersmith's property were to be approved for Code compliance she would have to come up with the money. Balzano received the $2,500 payoff and the contractor hired upon his recommendation performed the work and received the payment for his services.
These facts demonstrate that Balzano was "exploiting a victim's fear through both threatening positive action that will harm the victim" and through "threatening to withhold official action that will result in some form of harm being visited upon the victim." Davis, 890 F.2d at 1378. In stating that "he could make [Hammersmith] do anything that he wanted to" with respect to the employment of his friend, and in demanding a payoff of $2,500 to gain approval of the task force inspection, Balzano both "threaten[ed] positive action harm[ful]"
Aware that Jennifer's testimony was very damaging, Balzano contends that the jury's verdict must be reversed because Hammersmith was not a credible witness.
The United Skates Extortion Count
Balzano next contends that there was insufficient evidence to support his conviction for extortion stemming from his efforts to secure a VCR and television from United Skates of America when that business applied for a liquor license, as fully recounted in our previous discussion of the facts. There can be little doubt that the incident at United Skates constitutes extortion under either the "fear" prong or the "color of official right" prong of 18 U.S.C. § 1951(b)(2). Clearly the fire inspector (Balzano), while acting within the scope of his official duties, was "exploiting [Grisamore's] fear"
Balzano again does not contest the point that the inspector who made the threat against United Skates committed extortion. Instead, Balzano's claim is that there was insufficient evidence for the jury to conclude that he was the inspector who committed the extortion. Balzano primarily relies upon Grisamore's failure to give a positive I.D. of him at the trial of the extortion attempt. The absence of direct eyewitness evidence of identification is not decisive because "[a] jury may properly rely upon circumstantial evidence in convicting a criminal defendant." United States v. Khorrami, 895 F.2d 1186, 1191 (7th Cir.1990). Circumstantial evidence may also prove particularly useful in resolving questions of identification. See United States v. Carrasco, 887 F.2d 794, 810-811 (7th Cir.1989) (relying upon circumstantial evidence as a basis for holding that sufficient evidence supported a jury finding that a defendant joined a conspiracy).
Direct as well as circumstantial evidence provides strong support for the jury's conclusion that Balzano was, in fact, the fire inspector involved in the attempted extortion of United Skates, despite Grisamore's failure to provide positive I.D. testimony. Although Grisamore did not testify that the inspector identified himself as Daniel Balzano, he did testify that the inspector identified himself as one of the members of the team that inspected United Skates and that combined with the fact that Grisamore recognized the inspector as a member of the earlier inspection team and further that Fire Department official business records confirmed Balzano's participation in that particular inspection. Furthermore, Balzano's identification was corroborated with Grisamore's testimony at trial that served to furnish a description of the inspector matching Balzano. Additional support for the identification was given in Allenson's testimony at trial both that Grisamore confirmed in a telephone conversation on the very day of the extortion attempt that Balzano was the inspector who had visited him and that Balzano's name was inscribed on a piece of paper that Allenson received from Grisamore during a visit shortly after the extortion attempt.
The Eddie's Ribs Extortion Count
Balzano contends that the evidence was insufficient to support the extortion count involving the Eddie's Ribs food and liquor license applications, where, as recounted in the Facts section of the opinion, he allegedly received a payoff from the restaurant's owner in lieu of requiring extensive repairs. Again there is little doubt that this incident constitutes extortion under either the "fear" or the "color of official right" prongs of 18 U.S.C. § 1951(b)(2). As was the case with the United Skates shakedown, the fire inspector sought to obtain property from the proprietor of Eddie's Ribs by "threatening to withhold official action,"
Balzano does not attack the jury's finding that the facts presented constitute extortion for purposes of 18 U.S.C. § 1951(b). Rather, Balzano argues that the evidence was insufficient because Aguilera failed to properly identify him as the fire inspector involved and because the jury improperly found Aguilera's testimony credible despite Aguilera's failure to remember the exact amount of the payoff.
Although Aguilera did not directly identify Balzano as the individual who extorted money from him, as in the case of the United Skates extortion conviction, the jury, in combination with the other testimony, was presented with convincing circumstantial evidence supporting the identification of Balzano as the individual guilty of the crime of extortion. "`Circumstantial evidence is not less probative than direct evidence and, in some cases is even more reliable.'" Grier, 866 F.2d at 923 (quoting Williams, 798 F.2d at 1042). The description of the fire inspector that Aguilera presented matched that of Balzano. Furthermore, the City's inspection task force records establish that Balzano was the fire inspector assigned to both the inspection and re-inspection of Eddie's Ribs. The defendant also used the same modus operandi of requesting a payoff in lieu of expensive repairs as he did in the United Skates extortion incident. This circumstantial evidence, when considered in conjunction with the direct evidence, provided the basis for a reasonable factfinder to conclude beyond a reasonable doubt that Balzano was, in fact, the fire inspector who extorted money from the proprietor of Eddie's Ribs.
Balzano goes on to argue that the jury should not have believed Cesar Aguilera's testimony because he failed to directly identify Balzano, gave no specific dates when the extortion allegedly occurred and was unable to specifically recount the exact sum of money he paid Balzano. As discussed earlier in the Club Victoria extortion count, the jury is the "arbiter of credibility"; and "[m]ere inconsistencies in the witness' testimony do not render it legally incredible." Dunigan, 884 F.2d at 1013. The fact that Aguilera could not make a positive I.D. of Balzano and could not remember
B. The RICO Conspiracy Conviction
Balzano goes on to argue that the evidence was insufficient to support his conviction for conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d).
Neapolitan, 791 F.2d at 497 (quoting Bright, 630 F.2d at 834). Then, in United States v. Muskovsky, 863 F.2d 1319, 1324 (7th Cir.1988), we considered the facts the government is required to prove a defendant's guilt of conspiracy to violate RICO:
We have, however, recognized that there are "two aspects of the 1962(d) conspiracy that serve to limit the scope of the theory: (1) the nature of the agreement required and (2) the necessity of proving the existence of an enterprise." Neapolitan, 791 F.2d at 498.
Initially we turn to the question of whether there existed an "enterprise" for purposes of RICO. "The term `enterprise' is defined [in RICO] as including `any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.' § 1961(4). There is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals
We now turn to the question of whether there existed the required agreement to establish a conspiracy. In Neapolitan, we described the agreement that must be proven in a RICO conspiracy:
Neapolitan, 791 F.2d at 499 (citations and footnote omitted) (emphasis added).
Balzano does not challenge the fact that as an inspector for the Fire Prevention Bureau of the Chicago Fire Department, he agreed to participate in the affairs of the Department (the enterprise). Balzano contends that he did not agree to the commission of at least two predicate violations of state or federal law, as required to demonstrate a pattern of racketeering activity under RICO, and that any predicate acts that might have been committed were undertaken individually, and there was, thus, not the agreement necessary to establish a RICO conspiracy.
Our resolution of Balzano's insufficiency of the evidence challenge to his RICO conspiracy conviction does not require us to define in minute detail the type of conduct necessary to constitute an agreement to perform two or more predicate acts under RICO. The record reflects that Balzano and Fire Inspector Richard Dorband agreed to split the bribes Woo Kim (China Moon Restaurant) gave Dorband during the course of a task force inspection of that restaurant. Certainly knowingly sharing in the proceeds of a bribe constitutes agreement to the predicate act of violating the state bribery statute. Furthermore, Terry Mofreh's testimony concerning the manner in which he paid Dorband during the task force inspection of United Skates and the consultation that took place between Dorband and Balzano establishes that Dorband and Balzano collaborated in setting the amount of the bribe they would receive. The jury was entitled to believe Mofreh's testimony and conclude that Balzano and Dorband agreed to solicit and accept the bribe in violation of state bribery law.
C. The Witness Intimidation Conviction
Balzano finally challenges the sufficiency of the evidence to support his conviction for threatening and intimidating a grand jury witness in violation of 18 U.S.C. § 1512(b).
The evidence in the record not only clearly, but convincingly, establishes that Balzano knowingly used tactics of intimidation against Mofreh. Mofreh's testimony, corroborated with the testimony of FBI Agent O'Malley and Assistant U.S. Attorney Raphaelson as to his fear, demonstrates that Balzano utilized hand gestures mimicking the slashing of a throat and the threat of a gun. Balzano desperately launches an attack on Mofreh's character and credibility, but we advise he and his attorney that it was for the jury to determine credibility. Obviously Balzano and his trial attorney failed to convince the jury, and Balzano and his appellate attorney now rehash the same tirade of accusations and innuendos before this court, and once again they fall on deaf ears. The jury's credibility determination appears particularly appropriate where, as here, Balzano's conduct toward Mofreh is corroborated in the testimony of a witness who spoke with Mofreh immediately after the incident.
The remaining question is whether Balzano's conduct was engaged in with the intent to influence and prevent Mofreh from testifying and to cause Mofreh to withhold testimony in an official proceeding. In a recent witness intimidation case, we noted that:
Johnson, 903 F.2d at 1087 (citations omitted). There is no shadow of a doubt that Balzano knew that Mofreh was cooperating with the government as a witness in the grand jury proceeding since Dorband, in a taped telephone call, had previously advised him that Mofreh was cooperating with the government in the investigation of corruption among City inspectors as his activity of threat or intimidation toward Mofreh is clear and convincing evidence of knowledge. Furthermore, based upon his past involvement in transactions involving Mofreh, Balzano was aware that Mofreh possessed information (particularly with respect to the incident at United Skates) that could result in testimony damaging to Balzano. In addition, Balzano was aware that Mofreh's testimony was imminent as Balzano observed Mofreh seated outside the grand jury room, and his threatening conduct confirms this knowledge. In light of these facts, the jury properly inferred that Balzano's intimidating acts were performed with the intent to prevent Mofreh from
INEFFECTIVE ASSISTANCE OF COUNSEL
Balzano filed a pro se brief alleging that his conviction should be reversed because of the ineffectiveness of trial counsel. In United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir.1988), we outlined the high mountain a defendant must climb to demonstrate ineffective assistance of counsel:
Thus, ineffective assistance of counsel requires a showing that representation fell below an objective standard of reasonableness, and there exists a reasonable possibility that, but for unprofessional errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed.2d 674 (1984); United States v. Moya-Gomez, 860 F.2d 706, 763 (7th Cir.1988).
Initially, the defendant Balzano asserts that his trial counsel was ineffective because he was under investigation on criminal tax matters during the period immediately preceding Balzano's trial meaning that he "was not in a position to vigorously represent defendant at trial and thereby chance antagonizing the government [through] a rigorous defense of [d]efendant...." Supplemental Brief for Appellant at 1. In United States v. Barnes, 909 F.2d 1059, 1065 (7th Cir.1990), we observed that:
Initially we discuss the question of whether a presumption of prejudice should arise from the alleged conflict of interest resulting from the trial counsel's ongoing criminal tax investigation. The trial court, after having been apprised of the alleged conflict of interest, held a hearing in May 1987, a month prior to trial, in which Balzano was advised that there had been "an IRS ... investigation of trial counsel, who is the attorney of record." During that hearing Balzano assured the court that he wished to continue with his present trial attorney. Balzano now seeks to circumvent his statement to the court with an assertion that his decision was not free and voluntary as a result of the close proximity of the trial and the fact that his lawyer allegedly would not refund his fee. However, Balzano failed to inform the trial court that his choice was motivated by any of these concerns and never requested the trial court to grant a continuance of the trial in order that he might retain a new attorney. Thus, based upon our perusal of the record, we are convinced that the trial court thoroughly explored the alleged conflict of interest based on the evidence presented, and it ill behooves Balzano to now fault the trial court for failing to ascertain his newly discovered alleged "hidden" motivations for his decision to continue to retain his trial counsel. Because Balzano failed to assert any of the reasons he now argues motivated his conduct, his failure certainly leaves a deep suspicion that these reasons were afterthoughts dreamed up for purposes of this appeal. Balzano was responsible for the trial court's lack of knowledge of the alleged details of Balzano's determination to continue to retain his trial counsel. Thus, Balzano is required to demonstrate that "an alleged conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980).
When a criminal defendant asserts that an investigation of the criminal activities of his attorney creates a conflict between the attorney's interest in protecting himself from criminal investigation and the defendant's interest in effective representation, we have held that an "actual conflict of interest" exists only where there is a danger that the defense attorney would ineffectively represent his client because of fear that authorities might become aware of the attorney's own misconduct if he undertook effective representation. See Cerro v. United States, 872 F.2d 780, 785-86 (7th Cir.1989) (No actual conflict of interest where "[t]here was no danger that authorities would learn something novel about [the attorney's] possible involvement in criminal activities...."). Balzano's trial attorney's representation of Balzano on his extortion, RICO conspiracy and witness intimidation charges would not have affected his completely unrelated personal criminal tax investigation. Thus, we reject Balzano's contention that the facts demonstrated an actual conflict of interest resulting in ineffective assistance of counsel.
Balzano goes on to argue that his attorney's alleged 100-day fast resulted in a deterioration of his health to a degree that resulted in ineffective assistance of counsel. Balzano failed to bring this matter to the attention of the trial court, and there is nothing in the record other than the defendant's self-serving statement that would support Balzano's assertion about his attorney's lengthy fast or that it affected his counsel's ability.
The first of these is his trial attorney's failure to call all the witnesses that were named on the witness list submitted to the government during discovery proceedings. Specifically, Balzano alleges that his trial attorney failed to call specific witnesses to impeach testimony given by government witnesses. In United States v. Adamo, 882 F.2d 1218, 1227 (7th Cir.1989), a case rejecting an ineffective assistance of counsel claim based upon failure to call a witness, we observed:
Balzano alleges that his trial counsel should have called witnesses whom Balzano felt could have impeached government witnesses on matters collateral to the litigation. We remind Balzano that when an attorney in the course of a trial makes "[s]trategic choices ... after thorough investigation [they] are virtually unchallengeable." Sullivan, 819 F.2d at 1391 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2065-66). "[T]rial counsel [need not] track down every lead or ... personally investigate every evidentiary possibility before choosing a defense and developing it." Id. at 1392. The Constitution does not oblige counsel to present each and every witness that is suggested to him. In fact, such tactics would be considered dilatory unless the attorney and the court believe the witness will add competent, admissible and non-cumulative testimony to the trial record. In United States v. Olson, 846 F.2d 1103, 1110 (7th Cir.1988), we rejected a similar ineffective assistance of counsel claim based upon a trial attorney's failure to call a witness for the purpose of impeaching another witness, observing:
Similarly, in light of the trial judge's strong reservations concerning the permissibility of impeachment evidence on collateral matters under Fed.R.Evid. 608, we believe that Balzano's trial attorney's strategic choice to refrain from calling witnesses who would testify solely as to collateral matters was an appropriate "exercise of reasonable professional judgement." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
Balzano goes on to catalog a number of other alleged errors of his trial counsel that allegedly constituted ineffective assistance. In Adamo, we noted:
Adamo, 882 F.2d at 1228. Upon our review of the transcript, we have ascertained nothing that would demonstrate that Balzano's attorney failed to exercise "reasonable professional judgment" with respect to the alleged errors set forth below. Nonetheless, we apply the approach followed in Adamo and consider only whether any of the remaining ineffective assistance of counsel claims prejudiced Balzano. The Supreme Court has given the following description of the required prejudice inquiry:
Strickland, 466 U.S. at 695-96, 104 S.Ct. at 2068-69.
We now examine whether Balzano suffered any "prejudice" from any of the remaining alleged errors. We turn initially to Balzano's attorney's failure to complete impeachment of government witnesses Roy LaBolle and Terry Mofreh with evidence of prior convictions. Because LaBolle was unable to provide significant damaging evidence against Balzano, the alleged failure to impeach his credibility clearly had little impact on the outcome of Balzano's trial. Mofreh's character was thoroughly attacked during the cross-examination conducted by Balzano's trial attorney, and any additional impeachment of one other conviction, in our opinion, would have had only a minor effect on the jury's consideration of Mofreh's credibility. Thus, the failure to provide one more conviction as an additional impeachment of Mofreh had no effect on the outcome of Balzano's trial. See United States v. Olson, 846 F.2d at 1110. (Defendant failed to establish prejudice in a case where he admitted that "`trial counsel [did make] inroads during cross-examination in discrediting the three ... main witnesses.'").
Balzano next states that his attorney failed to object to leading questions the government posed to witness Tom Grisamore.
Balzano further asserts that he was prejudiced when his trial attorney failed to object to testimony regarding Hammersmith's payments by check to the craftsman Balzano recommended to Hammersmith. Balzano believes that this testimony did not concern him and, thus, was irrelevant. There was no basis for an objection to the admission of testimony concerning these payments because they were clearly relevant in establishing the context of Balzano's extortion of Jennifer Hammersmith, which included the direction of Hammersmith's repair work to the individual Balzano recommended. In addition, Balzano's attorney on cross-examination was able to establish that Balzano did not receive the proceeds from these checks. Thus, Balzano not only failed to suffer any prejudice, but in light of the fact that his attorney would have been unable to have had this testimony excluded even if he had made an objection, his attorney properly exercised well-reasoned professional judgment in his trial strategy in an attempt not to highlight by detailed questioning but rather to limit the damage Balzano suffered from the introduction of this evidence.
Finally, Balzano failed to demonstrate prejudice resulting from his trial attorney's alleged improper failure to thoroughly investigate his case through listening to both the inculpatory and exculpatory tapes received from the government during discovery. "[I]n order to establish prejudice resulting from a failure to investigate, the defendant must make `"a comprehensive showing of what the investigation would have produced."' Sullivan [v. Fairman, 819 F.2d 1382, 1392 (7th Cir.1987)] (quoting United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987))." Olson, 846 F.2d at 1109. In his opening brief Balzano was unable to specifically demonstrate any exculpatory evidence on the involved tapes.
The overwhelming evidence offered against Balzano further supports a conclusion that Balzano did not suffer prejudice from the performance of his trial attorney. As thoroughly detailed in our discussion of the sufficiency of the evidence in section III, supra, the government's evidence clearly established Balzano's guilt beyond a reasonable doubt to each and every one of the crimes for which he was charged. Indeed, as we noted in the sufficiency of evidence discussions, Balzano generally offered only poorly reasoned credibility and identification-based challenges to the sufficiency of the evidence for each of the involved crimes. In light of the overwhelming evidence of guilt presented during the trial, we are of the opinion that Balzano has failed to demonstrate that "the decision reached would reasonably likely have been different absent [his attorney's] errors." Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. We reject his ineffective assistance of counsel claim.
Balzano's ineffective assistance of counsel claims, that he brought pro se, are patently frivolous. As we admonished in United States v. Olson, 846 F.2d at 1111:
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Thus the Court, in Strickland, set a stringent standard to be applied to claims of ineffective assistance of trial counsel and it should be adhered to."
Not only were the ineffective assistance of counsel claims totally lacking in merit, but Balzano's entire appeal, which commenced with his filing of a pro se notice of appeal, was frivolous. We commend Balzano's appointed counsel who called the court's attention to this problem at the outset of the litigation, sought to withdraw and filed an Anders brief detailing the appeal's lack of merit. After Balzano filed a response we gave him the benefit of the doubt and ordered the appeal to proceed. But, upon a full consideration of the issues, we are convinced that Balzano's appeal was frivolous. As we noted in United States v. Adamo, 882 F.2d at 1235, Balzano has
Adamo, 882 F.2d at 1235. In an era of burgeoning federal court case loads, it is a
The jury's verdict against Balzano was based upon proof beyond a reasonable doubt as to each and every count contained therein and from our review of the record we are convinced that the trial court did not commit reversible error. Balzano's convictions are
18 U.S.C. § 1962(c) provides: