Full opinion text
OPINION AND ORDER VAN ANTWERPEN, District Judge. I. INTRODUCTION Petitioner, following in the footsteps of his co-defendants Nicodemo Scarfo, Frank Nar-ducci, Philip Narducei, Frances Iannarella, Jr., Ralph Staino, Salvatore Merlino and Anthony Pungitore, Jr., has filed a § 2255 Motion asking us to overturn his conviction and sentence for his crimes committed while a soldier in the Philadelphia mafia. Mr. Pungitore’s motion first asks the court to recuse itself. Next, Petitioner argues that his conviction and sentence should be overturned under the Fifth Amendment since: (1) the government failed to turn over Brady material, (2) the court erred in instructing the jury on the issue of reasonable doubt, and (3) the court’s consecutive sentences for RICO and RICO Conspiracy violate the Constitution’s bar against double jeopardy. Finally, Petitioner asserts that his conviction and sentence should be overturned under the Sixth Amendment because: (1) Petitioner was constructively denied counsel due to threats leveled against both him and his attorney by the Petitioner’s co-defendants; (2) Petitioner was denied effective assistance of counsel at trial; and (3) Petitioner was denied effective assistance of counsel in plea bargaining. Though some of the issues raised by Petitioner are more complicated than those raised by his fellow co-defendants, the end result is the same. Following a May 13,1998 hearing in open court and for the reasons that follow, Petitioner’s motion will be denied. II. FACTS AND PROCEDURAL HISTORY In January of 1988, Joseph Pungitore was indicted for RICO, RICO Conspiracy, Illegal Gambling Business, and Conspiracy to Distribute Methamphetamine. He was charged' in this indictment with 18 other fully initiated members of the Philadelphia La Cosa Nostra family. The indictment was superseded in June, 1988. Petitioner was represented by attorney Stephen Robert LaCheen during the pretrial proceedings and at trial. On June 30, 1988 Joseph Pungitore, through Mr. LaCheen, filed a number of motions, including a motion to sever. His motion cited the following typical reasons for severance: (a) that various defendants might present materially different or mutually exclusive defenses, (b) that any defendant who chose to testify in a joint trial would become an unwitting government witness against his co-defendants, (c) that if any of his co-defendants chose to testify on their own behalf, he (Mr. Pungi-tore) might be forced to testify on his own behalf to refute accusations from the co-defendant, and (d) that he would be prevented from calling co-defendants as witnesses because of their Fifth Amendment rights. While other defendants joined in various motions of their co-defendants, no defendant joined Joseph Pungitore’s severance motion. Consequently, on July 13, 1988, the court issued an order to the effect that each defendant would be deemed to have joined in every applicable motion filed by a co-defendant with the exception of Joseph Pungi-tore’s June 30,1988 motion to sever. The ease was called for trial on September 8, 1988. At that time a number of pre-trial issues remained to be decided before the commencement of jury selection. One of these was the severance motion, which was argued on September 9,1988. Mr. LaCheen declined to make any evidentiary presentation in support of the motion and argued only that severance into three or four separate trials might make it easier for the court to handle the case. The court pressed Mr. LaCheen by asking him: “you’re not telling me, that if you were severed that there’s somebody that would come and testify on your behalf or something?” Mr. LaCheen stated: “I’m not making a specific — that’s correct.” The motion was denied. Tr. 9/9/88 at 20-21. The case proceeded to trial. Apparently content to be tried with his co-defendants, Mr. Pungitore never again raised the severance issue, and the case went to the jury- On November 19, 1988, the jury returned its verdict, finding Joseph Pungitore guilty of all charges against him: RICO, RICO Conspiracy, Conspiracy to Distribute Methamphetamine, and Operating an Illegal Sports Bookmaking Business. More specifically, with respect to RICO, the jury found the Petitioner guilty of all nine racketeering acts expressly charged against him in the indictment: (1) Racketeering Act # 5 — both conspiracy to murder and the murder of Frank Nar-ducci in which the evidence showed Mr. Pungitore to be one of the two shooters who pumped approximately ten bullets into Nardueci virtually on the doorstep of his house as he was returning home from his federal court trial; (2) Racketeering Act # 6 — both conspiracy to murder and the attempted murder of Harry Riceobene in which the evidence showed that Pungitore was a Scarfo loyalist in the “Riceobene War”, and in that capacity, he was part of a hit team that stalked Riceobene and plotted his murder; evidence showed that Petitioner and Salvatore Grande caught Riceobene in a phone booth and Grande shot at him and then fled in a car driven by Mr. Pungitore; (3) Racketeering Act # 9 — both conspiracy to murder and the attempted murder of Frank Martines, in which the evidence showed that Mr. Pungitore was part of a Scarfo loyalist hit team in the “Riceobene War”, and in that capacity acted as a blocker when Martines was ambushed and shot in the head; (4) Racketeering Act # 11 — both conspiracy to murder and the murder of Robert Riceobene, in which the evidence showed that Mr. Pungitore was part of a Scarfo loyalist hit team in the “Riceobene War”, and in that capacity drove the get away car after Francis Iannarella, Jr. shot and killed Riceobene; (5) Racketeering Act # 12 — both conspiracy to murder and the murder of Salvatore Testa, in which the evidence showed that Mr. Pungitore, on orders from Philadelphia La Cosa Nostra mob boss Nicodemo Scarfo, lured his best friend, Testa, into a fatal ambush; (6) Racketeering Act # 18 — operation of an illegal lottery business, in which Mr. Pungitore was the operational chief; (7) Racketeering Act # 19 — operation of an illegal sports bookmaking business, in which Mr. Pungitore was the operational chief and owned one-third of the business, in partnership with Scarfo and other high ranking mobsters; (8) Racketeering Act #20 — conspiracy to distribute methamphetamine, where the evidence showed Mr. Pungitore, while assiduously avoiding personal contact with the actual drugs, financed drug trafficking, received commissions for sending drug buyers to drug suppliers and entered into a business partnership with a drug trafficker; (9) Racketeering Act #35 — extortion of Michael Madgin, where the evidence showed that Mr. Pungitore shook down a known drug trafficker, loanshark and bookmaker on behalf of the Philadelphia mob and kept a split of the extortion proceeds for himself. Conviction of any two of these racketeering acts would have constituted a pattern of racketeering activity sufficient to justify Petitioner’s RICO conviction. As the record reflects, Mr. Pungitore was convicted of all nine, and all of the component parts of those racketeering acts that had constituent parts. Additionally, Mr. Pungitore was found guilty of RICO by virtue of his participation in two different collection of unlawful debt schemes: (1) Collection of Unlawful Debt Scheme # 3 — the collection of debts accrued through the operation of an unlawful sports bookmaking business; and (2) Collection of Unlawful Debt Scheme # 4 — the collection of debt accrued through a usurious loan business. Each of these schemes, by itself, and independent of the racketeering acts, was sufficient to justify Mr. Pungitore’s RICO conviction. Extensive testimony concerning the RICO enterprise [the Philadelphia La Cosa Nostra family] was presented at trial. The evidence established that La Cosa Nostra was a criminal organization structured in families throughout the United States. Each family had its own boss, and La Cosa Nostra, itself, was governed by an eleven member commission that consisted of the bosses of the five New York families and the bosses of six other families from elsewhere in the United States. The Philadelphia La Cosa Nostra family consisted of about sixty members and operated in Pennsylvania and New Jersey; its boss since the early 1980’s was Nieodemo Searfo. A La Cosa Nostra family was headed by a boss, who had the sole and absolute authority to “make”, i.e., initiate members, promote and demote officers and order killings. All members owe a duty of absolute obedience to the boss. Other officers included the underboss, a consigliere (counselor), and capos. Fully initiated members held the rank of soldier. In order to be “made”, one had to be a male of Italian descent who had participated in some way in a La Cosa Nos-tra sanctioned murder. La Cosa Nostra employed a ritual initiation ceremony. A proposed member would be brought to a meeting of the active membership over which the boss presided. He would be called into a room and asked if he wanted to join the group. A gun and a knife would be before him on a table. Once he agreed, he would be asked if he would use the gun and knife to help his comrades. Once he agreed again, his trigger finger would be pricked, and he would cup his hands to hold a holy card. The card would be burned in his cupped hands as he was told that he would burn like the picture of the saint if he betrayed his friends. He would then kiss everybody and shake everybody’s hand. The boss would then assign him to the regime of a capo and explain La Cosa Nostra’s rules, one of which was that there was a code of silence. The penalty for breaking the code of silence was death. La Cosa Nostra becomes the most important thing in a member’s life, coming before his wife, children, parents, personal affairs, etc. Tr. 10/10/88 at 72-80,128-26; Tr. 10/26/88 at 178-91, 201. Evidence at trial established that Joseph Pungitore was “made” following his participation in the January, 1982 murder of Frank Narducci, Sr. Tr. 10/10/88 at 114-20, 125-26. At that time he was 25 years old. The evidence established that Petitioner’s father, Anthony Pungitore, Sr. was “made” before him, and his brother and co-defendant Anthony Pungitore, Jr., was “made” after him. While Joseph Pungitore’s shooting of Frank Narducci, Sr. qualified him to be “made”, the murders he participated in thereafter were done in obedience to the rules of La Cosa Nostra and the orders of the boss, Nieodemo Searfo. It is hardly surprising that Petitioner was convicted on all charges. A tidal wave of evidence was introduced against him. Four separate cooperating witnesses, Del Giorno, Caramandi, Norman Lit and Michael Mad-gin, all testified against him. Del Giomo and Caramandi were damning enough by themselves. Furthermore, Lit and Madgin, both of whom were La Cosa Nostra associates of Pungitore, testified for nearly a week, and numerous wiretapped conversations involving Mr. Pungitore were introduced through and explained by them. Petitioner’s own words were sufficient to convict him of RICO, RICO Conspiracy, Conspiracy to Distribute Methamphetamine and Illegal Gambling Business. There was probably more evidence introduced against Joseph Pungitore than against any other defendant in the case. Following denial of post-verdict motions, United States v. Scarfo, 711 F.Supp. 1315 (E.D.Pa.1989), Joseph Pungitore was sentenced on May 5, 1989 to a term of 40 years imprisonment. Through the sentencing phase of the proceedings, Joseph Pungitore was represented by Mr. LaCheen. Peter F. Goldberger, Esq., represented the Petitioner on appeal. Mr. Pungitore appealed from judgment of sentence without success. United States v. Pungitore, 910 F.2d 1084 (3d Cir.1990), cert. denied, 500 U.S. 915, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). In May, 1991, Joseph Pungitore wrote this court a letter in which he accepted responsibility for his criminal conduct, expressly characterized his prior life style as “parasitic,” and acknowledged that by choosing to victimize others he subjected himself to whatever penalties resulted from that choice. He went on to express remorse for his past wrongs and hoped that he could go on to live a better and more moral life in the future. Thereafter, in the fall of 1991, Mr. Goldber-ger filed a motion to modify sentence pursuant to then Fed.R.Crim.P. 35(b). Mr. Pungi-tore’s May 5, 1991 letter to this court was cited as a principal reason for reducing his sentence, inasmuch as it showed that he “freely acknowledged the immorality of the social code to which he formerly adhered,” and demonstrated his growing insight and potential for rehabilitation. Relief was denied. Five more years passed, and, on April 24, 1997, Petitioner filed the instant motion for relief pursuant to 28 U.S.C. § 2255. We held a hearing on May 13,1998. III. DISCUSSION A. Recusal Petitioner urges the court to recuse itself from this case, unless we plan to find in his favor: “The conviction and sentence should be vacated. If the Court is contemplating any other outcome, the case should be reassigned to another judge whose impartiality is not questionable.” Supplemental Memorandum of Law in Support of Joseph Pungi-tore’s Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. 2255 (“Petitioner’s Supplemental Memorandum ”) at 28. According to the recusal statute, a judge must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). See also Liteky v. United States, 510 U.S. 540, 541, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); United States v. Antar, 53 F.3d 568, 573 (3d Cir.1995). Both the Supreme Court and the Third Circuit have made it clear that “generally beliefs or opinions which merit recusal must involve an extrajudicial factor.” Antar, 53 F.3d at 574 (citing Liteky, 510 U.S. at 554, 114 S.Ct. 1147, 127 L.Ed.2d 474). Still, the exceptional ease can arise where opinions formed during the course of judicial proceedings may give rise to the duty to recuse. Id. However, “[b]iases stemming from facts gleaned during judicial proceedings themselves must be particularly strong in order to merit recusal.” Id. The mere fact that a judge who presides at trial may “be exceedingly ill disposed toward the defendant, who has been shown to be a thoroughly reprehensible person,” does not thereby render him “recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings....” Liteky, 510 U.S. at 550-51, 114 S.Ct. 1147. Furthermore, the Supreme Court has recognized that opinions held by judges as a result of what they learned in earlier proceedings should “not be subject to deprecatory characterization as ‘bias’ or ‘prejudice’.” Id. at 551, 114 S.Ct. 1147. A predisposition gained during the course of a trial may be considered a bias only when “it is so extreme as to display clear inability to render fair judgment.” Antar, 53 F.3d at 574 (quoting Liteky, 510 U.S. at 551, 114 S.Ct. 1147). Petitioner looks toward a number of rulings we made during the course of considering his § 2255 motion as reasons why a reasonable onlooker might question this court’s impartiality. He points out that we allowed the government to file its initial response to Petitioner’s § 2255 motion months after it was due, even though the government never applied for an enlargement of time. Petitioner contrasts this to our finding that certain motions which he made at the eviden-tiary hearing were untimely. Petitioner also states that this court’s bias against him is demonstrated by the fact that we did not grant his discovery motion and that we allowed Assistant United States Attorney Fritchey to “testify” in response to the § 2255 motion in violation of the witness/advocate rule. Petitioner claims that our prejudice is further evidenced by the fact that we allowed Mr. Gordon, the First Assistant District Attorney of Philadelphia (and a former AUSA who was one of the government’s lead attorney’s on the Petitioner’s 1989 trial), to act as counsel for the government absent “any tangible evidence that Mr. Gordon’s appointment as a Special Assistant United States Attorney had not expired.” Petitioner’s Supplemental Memorandum at 28. Finally, Petitioner relies on his trial attorney’s statement that he saw the court as having its own agenda to support his argument that the court is biased and should recuse itself. Memorandum of Law in Support of Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. 2255 (“Petitioner’s Original Memorandum ”) at 21. We believe that none of these rulings, either individually or together, are evidence from which a reasonable person could doubt this court’s impartiality. Petitioner complains that this court “disregarded the Government’ [sic] discourteous attitude toward the Court and counsel,” when we allowed it to file its response to Petitioner’s § 2255 motion in November of 1997, four months after the original July deadline imposed by this court. While we were unhappy with the government’s delay, we realized that the government had to respond to the numerous petitions filed by Petitioner’s co-defendants. Indeed, AUSA Fritehey has had to respond to no less than ten habeas corpus motions filed by the Scarfo defendants, not to mention eight additional requests for certificates of appealability. We are aware that though AUSA Fritehey originally tried this ease with three other AUSA’s, they have since then left the office and Mr. Fritehey has been required to handle the bulk of this work by himself. Furthermore, the government’s delay in filing its response did not, in any way, prejudice the Petitioner. Petitioner still had almost six months to prepare for the May 1998 hearing in this case. On the other hand, we did criticize Petitioner’s last minute discovery motion as untimely. Petitioner filed his discovery motion on Friday, May 8th — less than a week before the hearing, even though almost six months had passed since the government had filed its response. We felt that the untimeliness of the motion did, in this case, unfairly prejudice the government. Yet, we still considered the merits of the discovery motion despite the fact that it was filed at the last minute. See Tr. 5/18/98 at 13-21. Therefore, we do not believe that our criticism of the Petitioner’s attorney demonstrated a bias against Mr. Pungitore. Furthermore, we fail to see how our denial of certain portions of Petitioner’s discovery motion can be construed as bias against the Petitioner. Indeed, as Petitioner recognizes, discovery with regard to a § 2255 motion is discretionary. Id. at 17. Some of Petitioner’s requests, such as the security measures taken by the marshal service, were completely irrelevant to Petitioner’s case and constituted nothing more than grasping at straws. Id. at 17-18. Other requests, such as the one for any documents made in connection with an alleged attempt to plea bargain with the Petitioner, were granted — although no such documents existed. Id. at 18. In any ease, we were wholly satisfied with the government’s responses to Petitioner’s discovery questions and are confident that the record of the hearing reflects that we based our discovery rulings on what we believed to be fair within the bounds of the law, and not on any bias or predisposition against the Petitioner. Id. at 17-21. Furthermore, as a matter of law, we do not believe that AUSA Fritchey’s responses to Petitioner’s discovery motion disqualified him to serve as the government’s attorney under the witness-advocate rule. We also do not feel that any bias was shown by our decision to allow Mr. Gordon to serve as a government attorney without “any tangible evidence” that his appointment as a Special Assistant United States Attorney had not expired. Before we allowed Mr. Gordon to question any witnesses, we required that AUSA Fritchey check with his office to make sure that Mr. Gordon was still a Special AUSA. Mr. Fritchey called his office and represented to this court that Mr. Gordon’s commission ran through October 1998. Petitioner presented no evidence that this was not the case, and we saw no reason not to take Mr. Fritchey at his word. Indeed, Mr. Fritchey has practiced before this court over the course of the last ten years and we have never found him to be dishonest. Finally, the statement of Petitioner’s trial attorney, Mr. LaCheen, that this court was seen as “having its own agenda,” is completely baseless. Petitioner’s Original Memorandum, Ex. A. We had, and still have, only one agenda: making sure that Petitioner’s case is dealt with fairly and under the full protection of the Constitution and laws of the United States. So while accepting the Petitioner’s invitation to recuse ourselves would save this court a lot of time and effort, we cannot in good conscience do so. Mr. Pungitore has not stated a case for recusal. Moreover, strong policy grounds exist to preclude the granting of recusals for the asking. One cannot escape the conclusion that Petitioner wants a recusal because he fears that this court knows the case and the record well enough to more easily recognize the disingenuous and insubstantial nature of his § 2255 petition. The prospect of losing a motion is not a valid basis for a recusal. B. Fifth Amendment Claims Petitioner makes three claims under the Fifth Amendment: (1) that the prosecution failed to provide important Brady material; (2) that the court erred in instructing the jury on the meaning of reasonable doubt; and (3) that Petitioner’s consecutive sentences for RICO and RICO Conspiracy violate the Constitution’s prohibition against double jeopardy. Each of these arguments is meritless and none entitle the Petitioner to a new trial. 1. Brady Based upon nothing more than a passage in a book entitled Breaking the Mob, by former Philadelphia Police Department Captain Frank Friel, Petitioner claims that the government suppressed Brady material. Petitioner’s novel argument is completely without merit. “A valid Brady complaint contains three elements: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense.” United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991). Petitioner fails to prove any of these three essential elements. Captain Friel’s book refers to seemingly positive, but actually false, leads in the investigation of the 1984 murder of Salvatore Testa from two different individuals that caused the police department to waste time trying to trace the movements of Testa after the time that he had actually died. At trial the defense called the caretaker, Louis Palla-dino, in an attempt to show that Testa was alive after the cooperating government witnesses claimed he was dead. The caretaker testified as the defense expected, despite being damaged somewhat on cross-examination. On rebuttal, the government produced the nursemaid who completely contradicted the caretaker. Apparently, the jury found the nursemaid the more credible of the two witnesses. Petitioner complains that he could have corroborated the testimony of the caretaker if he had known about the police sergeant’s alleged sighting of Testa on the evening of September 14, 1984. In his memorandum supporting his § 2255 motion, Mr. Pungitore identifies the officer as “Thomas Laciardello.” Apparently, this is a reference to Thomas Liciardello, a retired Philadelphia Police Officer who states that he was interviewed by a person purporting to represent Mr. Pungitore or one of his co-defendants approximately one or two years ago. Needless to say, Mr. Pungitore could not have called a book to the witness stand during his 1988 trial, particularly a book that had not been published. Instead, he would have needed testimony of a non-hearsay nature from a live witness, specifically, Thomas Liciardello. Despite having the burden of proof, Mr. Pungitore did not call Mr. Liciar-dello. The government, however, did call Mr. Liciardello as a witness at the § 2255 hearing. Mr. Liciardello testified that he did not see Testa on the evening of September 14, 1984, several hours after Petitioner led him to his death, or at any other time that day. Officer Liciardello knew when Testa’s dead body was found and knew that he saw him alive a day or two before, not the evening that his discarded corpse was found lying in the dirt in New Jersey. Tr. 5/13198 at 187-202. If certain individuals in the police department misunderstood when Mr. Li-ciardello said he saw Testa alive, this was the product of miscommunieation that did not alter the facts. Had Officer Liciardello been called to testify at trial in this case, he would not have corroborated Mr. Palladino’s testimony. On the contrary, he would have’testified that he saw Testa one or two days before Palladino’s claimed sighting, but not on the same evening Testa’s dead body was found. Therefore, Mr. Liciardello’s testimony would not have been helpful to the defense. There is no basis in fact for Petitioner to claim that but for the government’s suppression of Brady material, he would have presented corroborative exculpatory evidence at his trial. If anything, calling Mr. Liciardello to the witness stand would have hurt Petitioner, because Liciardello’s sighting of him with Testa within roughly forty-eight hours of Testa’s death tends to corroborate the testimony of the cooperating government witnesses that Pungitore, in a Judas-like fashion, led his “best friend” to his death. Therefore, Petitioner has failed to show that the evidence the government allegedly suppressed was either exculpatory or material. Furthermore, Mr. Lieiardello’s testimony cannot be considered Brady material in the first place since Petitioner has provided no evidence that it was suppressed by the government. As Mr. Liciardello testified, he was not assigned to the investigation of the Testa murder and was not part of the prose-cutive team of either the Testa murder case in state court or the RICO prosecution in federal court. Petitioner has presented no evidence that the information he believes he was entitled to was ever even under the government’s control. The government cannot be held to have violated Brady by not providing information which it did not itself have. Petitioner has failed to show that the government suppressed evidence, that the alleged evidence was exculpatory, or that the alleged evidence was material. Petitioner’s position is therefore without merit. 2. Reasonable Doubt Instruction We turn next to Petitioner’s claim that the court erred in instructing the jury on the concept of reasonable doubt. Mr. Pungitore complains that the court gave an erroneous reasonable doubt instruction that deprived him of his right to due process under the Fifth Amendment. He claims that the court erred by telling the jury that “[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of a defendant’s guilt.” Tr. 11/17/88 at 12. First, the court’s reasonable doubt instruction was challenged on direct appeal and affirmed by the Third Circuit. Pungitore, 910 F.2d at 1144-45. Second, to the extent that Petitioner’s argument varies from the reasonable doubt issue resolved on direct appeal, the issue has been procedurally defaulted since Petitioner has failed to show either cause for or prejudice from not raising this argument See United States v. Iannarella, 992 F.Supp. 766, 771 (1997). Yet, even if this claim had been properly raised, it has no merit. A district court has broad discretion in choosing both the language and the form of its jury instructions. United States v. Hiland, 909 F.2d 1114, 1128 (8th Cir.1990). Any jury charge must be viewed in the context of the overall charge to the jury. United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). In the instant ease, the court provided extensive instructions on the meaning of reasonable doubt, including distinguishing it from the burden in a civil ease. In making his claim of error, defendant selectively quotes from the record. Following its statement that “[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of a defendant’s guilt,” the court provided the classic definition of reasonable doubt: “Another definition is that a reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in their own affairs.” Tr. 11/17/88 at 12. Taking the jury instruction in context, and viewing all the instructions as whole, it is clear that Petitioner’s claim is frivolous. 3. Double Jeopardy Petitioner, like his co-defendants, argues that his consecutive sentences for RICO and RICO Conspiracy violate the Double Jeopardy clause of the Fifth Amendment. We disagree. First, this issue was raised on direct appeal and resolved against the defendants. Pungitore, 910 F.2d at 1115-17. Therefore, this argument is precluded as the law of the case. Second, Petitioner and his co-defendants have suggested that the Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), decided after the Petitioner’s direct appeal, requires reversal of the Petitioner’s consecutive sentences. The court’s resolution of the identical argument in United States v. Scarfo, 980 F.Supp. 803, 818 (E.D.Pa.1997), is dispositive. See also Iannarella, 992 F.Supp. at 768. Finally, Petitioner argues that “[fjollowing enactment of the Sentencing Reform Act [“SRA”], imposition of a sentence for RICO conspiracy and substantive RICO predicates is inconsistent with Congressional intent, and therefore a violation of the Double Jeopardy Clause.” Petitioner’s Original Memorandum at 19. Petitioner cites to 28 U.S.C. §§ 994(Z )(1)(A) and 994(Z )(2) to support his argument. The first section of the SRA provides: The [Sentencing] Commission shall ensure that the guidelines promulgated pursuant to subsection (a)(1) reflect — (1) the appropriateness of imposing an incremental penalty for each offense in a case in which the defendant is convicted of — (A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses[.] 28 U.S.C. § 994(Z )(1)(A). The second section of the SRA cited by the Petitioner reads: The Commission shall ensure that the guidelines reflect ... the general inappropriateness of imposing consecutive terms for an offense of conspiring to commit an offense ... and for an offense that was the sole object of the conspiracy.... 28 U.S.C. § 994(0(2). Petitioner seems to argue that since the SRA specifically states that it is generally inappropriate for a person to be sentenced consecutively for an offense and for conspiracy to commit that offense, that Petitioner’s sentences for RICO and RICO Conspiracy violate the Fifth Amendment’s prohibition against double jeopardy. This argument, though persuasive at first glance, does not survive upon closer scrutiny. The provisions of the SRA cited by the Petitioner apply to sentences imposed under the Sentencing Guidelines. The Sentencing Guidelines, however, do not apply to crimes committed before November 1, 1987. United States v. Roederer, 11 F.3d 973 (10th Cir.1993); United States v. Metallo, 908 F.2d 795 (11th Cir.1990), cert. den. 503 U.S. 940, 112 S.Ct. 1483, 117 L.Ed.2d 625 (1992). Here, the conspiracy charged in the indictment ended before the enactment of the sentencing guidelines. Consequently, Petitioner’s invocation of 28 U.S.C. § 994 is mérely a “red herring.” Therefore, Petitioner’s double jeopardy claim fails and Mr. Pungitore is not entitled to resentencing. C. Sixth Amendment Claims Petitioner raises three different Sixth Amendment claims through his § 2255 motion. First, he argues the he was constructively denied effective assistance of counsel due to a conflict of interest that was created by threats levied against his trial attorney by the Petitioner’s co-defendants. Second, Petitioner claims that his trial attorney was ineffective due to his actions and inactions at trial. Finally, Mr. Pungitore asserts that Mr. LaCheen was ineffective in plea bargaining. Petitioner raises some extremely serious allegations in support of these arguments. Yet, in the end, each of Petitioner’s Sixth Amendment claims must fail. 1. The Law of Ineffective Assistance of Counsel, Constructive Denial of Counsel, and Conflict of Interest a. Ineffective Assistance of Counsel The right to have the assistance of counsel is provided for by the Sixth Amendment of the United States Constitution. This right has been deemed fundamental by the Supreme Court; it cannot be denied to a defendant absent intentional and actual waiver. Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Supreme Court has set out a two-prong test to establish a claim of ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner must show both that: (1) his counsel’s conduct was deficient, falling “outside the wide range of professionally competent assistance,” and (2) he was prejudiced as a result of that deficient conduct. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; United States v. DeRewal, 10 F.3d 100, 104 (3d Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994). To satisfy the first prong, deficiency, a petitioner must show that his counsel’s conduct fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In evaluating such a claim, we “must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. We may not use the benefit of hindsight to second-guess tactical decisions made by an attorney unless they are unreasonable. Id. at 690, 104 S.Ct. 2052; Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir.1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1277, 99 L.Ed.2d 488 (1988)(“An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney’s competence is highly deferential.”). Furthermore, the mere fact that a tactic has been unsuccessful does not necessarily indicate that it was unreasonable. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To guide us in determining the reasonableness of an attorney’s performance, the Supreme Court in Strickland noted that the American Bar Association Standards may be referred to as a guideline. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; See also, Government of the Virgin Islands v. Weatherwax (‘Weatherwax I”), 20 F.3d 572, 579 (3d Cir.1994), rev’d on other grounds, Government of the Virgin Islands v. Weatherwax (Weatherwax II”), 77 F.3d 1425, 1435 (3d Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 538, 136 L.Ed.2d 423 (1996). One of the most relevant standards in this context is ABA Standard for Criminal Justice § 4-5.2 (3d ed.1993), “Control and Direction of the Case.” This section dictates which decisions are ultimately to be made by the defendant and which are to be made by the defense counsel. Specifically, strategic and tactical decisions such as which witnesses to call, whether to conduct cross-examination, and what trial motions to make are within the province of the attorney after consultation with the client. ABA Standard 4-5.2(b). The Commentary thereto states that when the attorney in question makes such strategic or tactical decisions, “[o]nly when [his] behavior reveal[s] ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles [will these] actions amount to ineffective assistance of counsel.” Weatherwax I, 20 F.3d at 579, citing Commentary at 4.67-68. Therefore, if a decision falls within the realm of “strategic decisions” to be made by the attorney, we will find whatever decision that attorney made to be sufficiently deficient only if he either failed completely to consult with his client, or if the decision was itself inept or incapable of interpretation as sound. If the first prong is proven, a petitioner must also prove the second prong, prejudice. To prove prejudice, a petitioner must show that there is a reasonable probability that there would have been a different outcome; that the deficient performance “deprived the defendant of a trial whose result is reliable.” DeRewal, 10 F.3d at 104, citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We must examine the trial with our focus not on the outcome, but on whether the error so affected the adversarial balance that the trial was rendered unfair and the verdict rendered suspect. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). However, this two pronged approach to ineffective assistance of counsel does not apply in all Sixth Amendment situations. Petitioners are freed from having to prove actual prejudice in two specific types of Sixth Amendment cases: situations were a defendant has been constructively denied counsel and situations where a defendant’s attorney has labored under an actual conflict of interest. b. Constructive Denial of Counsel The concept of constructive denial of counsel has been recognized by the Supreme Court in both Strickland, 466 U.S. at 692, 104 S.Ct. 2052, and United States v. Cronic, 466 U.S. 648, 658-660, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). What makes constructive denial of counsel different from the run of the mill ineffective assistance of counsel case is that prejudice is presumed. Cronic, 466 U.S. at 658, 104 S.Ct. 2039. Cronic documents three situations where constructive denial of counsel may arise: (1) where counsel is denied completely, (2) where “counsel entirely fails to subject the prosecution’s case to a meaningful adversarial testing,” and (3) where circumstances dictate that “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” 466 U.S. at 659-60, 104 S.Ct. 2039. The paradigmatic example of the last situation is Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), otherwise known as the Scotsboro trial, where the “defendants, young, ignorant, illiterate, surrounded by hostile sentiment ... charged with an atrocious [capital] crime regarded with especial horror in the community where they were to be tried, were thus put in peril of their lives within few moments after counsel ... began to represent them.” Id. at 57-58, 53 S.Ct. 55. The Supreme Court has explained that there are two reasons why prejudice is presumed in constructive denial of counsel cases. First of all, “[prejudice in these circumstance is so likely that case-by-case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. And second, “such circumstance involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.” Id. c. Conflict of Interest The conflict of interest standard has been held by some courts to be a species of the constructive denial of counsel. See Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir.1997). While this may be the case (we do not feel it necessary to quibble over classifications), the Supreme Court has stated that conflict of interest cases warrant “a similar, though more limited presumption of prejudice,” than afforded in traditional constructive denial of counsel situations. Strickland, 466 U.S. at 693. Prejudice in actual conflict of interest situations is not presumed, per se, but “is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an adverse conflict of interest adversely affected his lawyer’s performance.’ ” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Of course, the above analysis of when prejudice may be presumed in actual conflict of interest cases begs the question: what is an actual conflict of interest? We have yet to find a definition of an actual conflict of interest, though this, of course, has not stopped courts from finding actual conflicts of interest to exist. See Cuyler, 446 U.S. at 356, n. 3, 100 S.Ct. 1708 (Justice Marshall dissenting)(“ ‘[cjonflict of interests’ is a term that is often used and seldom defined.”). The Third Circuit has suggested that courts look to prevailing norms for guidance in determining what is an actual conflict of interest and has turned to the Model Code of Professional Responsibility (“Model Code”) for guidance. Government of the Virgin Islands v. Zepp, 748 F.2d 125, 135 (3d Cir.1984). The Model Code “proscribes the representation of conflicting interests in order to avoid interference with counsel’s fiduciary obligations to maintain undivided loyalty, to preserve attorney-client confidentiality and to assure competent representation for each client.” Id. As Zepp elaborates, the Model Code requires that a lawyer exercise independent judgment on behalf of a client. DR 5-105 proscribes employment which may interfere with the lawyer’s ‘independent professional judgment’ on behalf of another client. The Code does not specifically refer to ‘conflicting’ interests, but describes the problem in EC 5-14 as concerning clients who have ‘differing interests,’ whether such interests be ‘conflicting, inconsistent, diverse or otherwise discordant.’ The Code’s prohibition focuses upon the relationship between the clients, that is differing interests which may affect the independence of the attorney’s professional judgment. Mallen and Levit, Legal Malpractice 241 (2d ed.1981). Id. Our Court of Appeals has pointed out that “[t]he typical conflict of interest cases giving rise to claims of ineffective assistance of counsel involve multiple representation of clients....” Zepp, 748 F.2d at 135. Yet, these are not the only situations where an actual conflict may arise. An actual conflict of interest may also exist when “ ‘during the course of the representation, the defendants’ interests diverge [from their counsels’] with respect to a material factual or legal issue or to a course of action.’ ” Id. at 136 (quoting Sullivan v. Cuyler, 723 F.2d 1077, 1086 (3d Cir.1983)(“Sullivan II”)). Thus, the Third Circuit has found that an actual conflict existed when defense counsel faced potential criminal liability on the same charges for which the defendant was tried and also acted as a prosecution witness. Id. at 135-139. Yet, there are few, if any, situations beyond those posed by Zepp (attorney under investigation for role in client’s crime) and Sullivan II (representation of multiple defendants) where the Third Circuit has found an actual conflict of interest to exist. And, there are no cases that we are aware of, either in this circuit or any other, where a court has found an attorney to have a conflict of interest with his client because of intimidation levied by one of the client’s criminal associates. Thus, though we are surprised that this issue has not been raised before, Petitioner’s argument that his co-defendants’ threats created a conflict of interest between him and his attorney seems to be an issue of first impression. 2. Petitioner was Not Constructively Denied Counsel Due to a Conflict of Interest with Mr. LaCheen Petitioner argues that he was constructively denied counsel due to an actual conflict of interest with his attorney. This alleged conflict was the result of threats supposedly made against Mr. LaCheen by Petitioner’s fellow co-defendants — specifically Leonetti and Scarfo. Petitioner claims that the threats against his attorney affected Mr. La-Cheen’s entire representation — including his decisions regarding negotiating a plea, calling witnesses, making appropriate objections and pressing for a severance. See Petitioner’s Supplemental Memorandum at 8; Petitioner’s Reply at 9. Since Petitioner is basing his claim on an actual conflict of interest, he must demonstrate that Mr. LaCheen “ ‘actively represented conflicting interests’ and that ‘an adverse conflict of interest adversely affected his lawyer’s performance.’ ” Stride- land, 466 U.S. at 693, 104 S.Ct. 2052 (quoting Cuyler, 446 U.S. at 348-50, 100 S.Ct. 1708). However, before we can examine whether a conflict of interest existed between Petitioner and his counsel, we must first examine, in detail, Mr. LaCheen’s testimony at Petitioner’s § 2255 hearing. Only then will we be equipped to determine whether a conflict of interest did, in fact, exist. a. Mr. LaCheen’s Testimony The bulk of Petitioner’s § 2255 hearing on May 13, 1998 consisted of the testimony of his trial attorney, Stephen LaCheen. See Tr. 5/13/1998 at 23-185. We had an ample opportunity to hear this testimony and observe the demeanor of Mr. LaCheen. We find most, but not all, of his testimony to be credible. We credit the following testimony: Mr. LaCheen testified that he is 63 years old and has been practicing criminal law for the better part of 41 years. Id. at 90. Mr. LaCheen has been a highly regarded defense attorney. Martindale Hubbell gives Mr. La-Cheen an “A” rating. Id. at 92. Mr. La-Cheen is on the editorial board of the Philadelphia Lawyer Magazine. Id. In 1997, Mr. LaCheen was president of the American Board of Criminal Lawyers. Id. Over the years, Mr. LaCheen has handled thousands of criminal cases, including the Petitioner’s. Id. His clients included accused murderers, rapists, drug dealers, “white collar criminals”, and a few alleged mobsters. Mr. LaCheen acknowledged that he believes there is a mob in Philadelphia, and he was familiar with the type of crimes the mafia was identified with, including crimes of violence, such as murders. Id. at 92-96. Mr. LaCheen has defended a few death penalty cases. He has accepted court appointments over the course of his career and believes he is still on the appointment list, although he has not taken many appointments recently. Mr. LaCheen has represented many private clients who retained him. He has also represented lawyers accused of crime, including Robert F. Simone, Esq., his co-counsel in the Searfo RICO prosecution. He defended Simone in federal court in New Jersey in the mid 1980’s, when Simone was prosecuted for perjury. Later, in the early 1990’s, he represented Simone in what he recalled to be a motion to obtain a parole hearing following Simone’s conviction in the Eastern District of Pennsylvania for RICO violations stemming in part from the Rouse extortion. Id. at 97-99. Stephen LaCheen had experience in joint trials with other counsel involved before Petitioner’s ease. More specifically, he had defended accused criminals in joint trials in which Simone was his co-counsel. One such case many years ago was the case of Junior Staino and Lillian Reis. Another such case was the 1987 Philadelphia Court of Common Pleas prosecution of Searfo, Mr. Pungitore and six or seven of Mr. Pungitore’s other RICO co-defendants in what is commonly known as the Salvatore Testa murder case. Id. at 100-04. Mr. LaCheen acquired Joseph Pungitore as a client in the mid-1980’s on a referral from Robert Simone. Initially, Mr. LaCheen agreed to represent Mr. Pungitore in a State of New Jersey bookmaking prosecution; however, the indictment was soon superseded, and Petitioner was charged with violations of the state RICO statute. Thereafter, Mr. Pungitore was indicted in the Testa murder case. Mr. LaCheen represented him in that case, as well. Finally, Petitioner was indicted in the instant RICO action in the Eastern District of Pennsylvania. As noted, Mr. LaCheen’s office entered an appearance two days after the January 11, 1988 indictment. Mr. Pungitore was a paying client who privately retained Mr. LaCheen. Although he did not recall how much he was paid, Mr. LaCheen acknowledged that it was probably somewhere in the vicinity of, but less than $100,000. Id. at 101-04. Mr. LaCheen entered the instant case within hours after the indictment. A glance at its first page shows that there were eighteen co-defendants. Absent non-trial dispositions or the granting of a severance motion, which is unusual in this type of conspiracy case, the likelihood that he would be participating in a joint trial had to be more than obvious to Petitioner’s counsel. Mr. La-Cheen had participated in joint trials in the past and understood full well that they required substantial accommodation of the varying styles and tactics of the defense lawyers involved. Id. at 130. Although Mr. LaCheen filed a severance motion for his client on June 30, 1988, the motion was generalized in nature and never addressed the issue of possible spillover prejudice from testimony that might implicate lead counsel Simone in the Rouse extortion. This was because Simone was Scarfo’s attorney of choice. It was obvious that he would be the lead counsel in the trial, and there was strong feeling against filing a severance motion. Id. at 30-32, 75-77. Mr. LaCheen said he knew who and what Scarfo and Leonetti were, and he did not think it advisable for his client to appear unwilling to go to trial with Scarfo when he, Scarfo and the other co-defendants were being held in the same jail without bail. Id. at 117-18, 148. No other defendant joined in Petitioner’s severance motion, and all disavowed it. Clearly, the die was cast at the July 7, 1988 pre-trial conference for the employment of a joint defense strategy with Simone as lead counsel. Mr. LaCheen voiced no disagreement. Knowing all of these things, Mr. LaCheen never returned his fee, never moved to withdraw (although several counsel did withdraw before trial began in September, 1988), and proceeded to prepare for what promised to be a lengthy joint trial subject to the strategic guidance of Robert Simone. Mr. LaCheen testified that he agreed to participate in the joint defense strategy. He understood that it was not a democracy and everybody else — the defendants and the defense lawyers, many of whom were very capable and had substantial reputations — went along with it. The defense was “to attack the rats” and suggest to the jury that the government was unreasonable in asking any jury to find the defendants guilty beyond a reasonable doubt on the testimony of such unsavory characters. The same defendants had gotten across the board acquittals in two previous prosecutions tried within the preceding twelve months with Simone as lead counsel spearheading this very strategy and demolishing the principal cooperating government witnesses Del Giorno and Caraman-di. Id. at 122-24. Mr. LaCheen and Robert Simone had very different courtroom styles. Mr. LaCheen knew this from his own experience. He had seen Simone in action and tried cases with him by the summer of 1988 when he agreed to pursue the joint defense strategy. Simone believed in trying cases with a view to what would be attractive to a jury and what would annoy it. Consequently, he was loathe to object, reasoning that if he objected, the jury would believe that the testimony must have really hurt his client. On the other hand, if he did not object, he believed it would be easier to persuade the jury that the testimony did not hurt. Id. at 38, 46. Mr. LaCheen’s style was to object much more frequently, and he knew Simone probably considered him a “nitpicker.” Id. at 145^47. Additionally, Simone urged decisions on the basis of what would be good for the group of defendants as a whole, rather than what might help an individual defendant. Consequently, he urged against calling alibi and character witnesses. Id. at 35-38. Petitioner’s counsel did not particularly like the way the case was being tried, but many other reputable lawyers did, and it was difficult to quarrel with the recent stunning success of Simone’s approach. Consequently, influenced by peer pressure, Mr. LaCheen went along. Id. at 30-32, 144. Mr. LaCheen testified that some lawyers had to get permission from Simone to cross-examine witnesses in given areas, but he did not recall this happening to him. Id. at 35-38, 49-50. To the contrary, Mr. LaCheen cross-examined Del Giomo, Caramandi, Madgin and any other witnesses who had anything to say specifically about Pungitore. When asked if he participated substantially in the trial, Mr. LaCheen replied: “absolutely.” He acknowledged that he gave the second or third longest defense summation and expressed the view that it was certainly the best. Id. at 130-31. Both Petitioner and his counsel actively chose to pursue a joint defense strategy in this case. Indeed, September 9,1988 provided Petitioner and Mr. LaCheen with several opportunities to disavow their adherence to the joint defense strategy, even after he had lost his severance motion, but none were seized. Immediately after Petitioner’s severance motion was denied, the government moved to disqualify Simone on conflict of interest grounds. If Simone were disqualified, Mr. LaCheen could have been in a position to defend Mr. Pungitore in a style more to his liking. Nonetheless, Mr. LaCheen went to sidebar with Simone and opposed the government’s motion, stressing Simone’s value to the defense team. Mr. LaCheen characterized Simone as “the one lawyer who knows not only about the case but [has] tried three of four cases before. He probably has more knowledge than the rest of us together....” Mr. LaCheen also vouched for Simone to the court, assuring the court that Simone would not inject his own credibility into cross-examination of witnesses like Del Giorno and Car-amandi who might implicate Simone in the crimes they were describing. Tr. 9/9/88 at 50, 47-48. If Mr. LaCheen did not believe that the joint defense strategy was viable, one would think he would have remained silent in the face of the government’s motion, if not in fact joined it. Instead, he fought actively to keep Simone in the case as his co-counsel. Mr. LaCheen’s lionization of Simone was more than gratuitous flattery. As he admitted on cross-examination, there were good reasons why Simone’s presence in the defense camp advantaged all the defendants. The defense team felt that the government was trying to get Simone out of the case because he was the best lawyer. He was the most experienced litigator in a group of experienced and excellent lawyers. He had intimate familiarity with the vulnerabilities of the key government cooperating witnesses. Moreover, Simone had a reputation as an excellent cross-examiner and as being a lawyer who was particularly good at ingratiating himself with juries. Further, he had a reputation as an orator capable of delivering stem-winding summations. Tr. 5/18/98 at 120-21,129. Petitioner and his counsel had another opportunity to distance themselves from Scarfo and Simone when Simone presented the issue of potential temporary absence of some defense counsel from the trial. Simone asserted in open court that all the defendants and lawyers were working together as a team, and that all the defendants had agreed to permit their lawyers to leave the courtroom from time to time. The lawyers could be working on the case in the library or elsewhere. Simone did not want the case to be delayed by a series of waivers at every such occurrence. The court and Simone discussed the possibility of preparing a general written waiver. No one, including Mr. La-Cheen, objected. In fact, after the court and Simone agreed to look into the concept of a general written waiver, Mr. LaCheen offered his confirmatory “Amen” by stating: “That’s what I wrote down, a written general waiver.” Tr. 9/9/88 at 59-62. Thus, Mr. La-Cheen expressed his agreement to pursue the joint defense strategy in this unsolicited expression of support for the concept of team representation. A few days later, on September 13, 1988, a written general waiver was presented by the defense team to the court and entered of record. Both Petitioner and his attorney signed it. Tr. 5/18/98 at 130. On the face of the record, there can be little doubt that Mr. LaCheen willingly, if not totally enthusiastically, decided to cast his client’s lot with his co-defendants and pursue the joint defense strategy. Certainly, through the beginning stages of the trial he was comfortable with this strategic choice which was embraced by the other defense lawyers in the case, most of whom Mr. La-Cheen characterized as excellent attorneys whose judgment he respected. If Mr. La-Cheen’s misgivings with the joint defense strategy grew as the case went on, they never grew to the point that he renewed his motion to sever or moved to withdraw. Mr. Pungitore essentially contends now that his attorney, Stephen LaCheen, was threatened and intimidated by Scarfo, Leo-netti and Simone and, consequently, failed to take actions on his behalf that he would have taken had he not acted in a cowardly fashion. A careful reading of the record of the case shows that his charges are inaccurate and unfounded. Initially, it should be noted that any threatening statements and actions referred to by Mr. LaCheen in his testimony are supposed to have occurred after the trial began. Thus, it is illogical to suggest that actions taken before then were the product of this alleged intimidation. For example, Mr. LaCheen’s decision to seek a severance on general rather than spillover grounds predated the trial by two months. Likewise, during the summer of 1988 he prepared for a joint trial with Simone as lead counsel. His decisions to adhere to the joint defense strategy and not withdraw from the case could not have been influenced by any threats allegedly made by Leonetti months later. We indicated earlier that we accept and credit the foregoing testimony. We have far more difficulty in crediting and accepting the testimony of Mr. LaCheen with regard to the alleged intimidation. Our findings are as follows: We accept the testimony of Mr. LaCheen that the alleged threats by Leonetti were typically made in a joking fashion and usually were occasioned by what the rest of the defense team perceived to be Mr. LaCheen’s excessive objections that deviated from the philosophy of the joint defense strategy. According to Mr. LaCheen, after one such objection, Leonetti told him that he had orders to kill him if he made another objection. Id. at 40-41. While this statement made him uncomfortable, it did not deter him from making more unwelcome objections. After another such objection Leonetti allegedly told Petitioner’s counsel that one of the reasons he wanted to be acquitted was so that he could give Mr. LaCheen and his client, Mr. Pungitore, a good beating when everything was over. But again, Mr. LaCheen stated that this statement was said in jest. Id. at 43-44. Mr. LaCheen noted that Leo-netti had a penchant for drawing pictures of dead rats, for glaring at people, and for keeping hit lists of names of people who aroused his ire, placing check marks next to the names on the occasion of each offending incident. Yet, again Mr. LaCheen states that this was all done “jokingly.” Id. at 39. While all of this made Mr. LaCheen uncomfortable, he testified: “Did I think they were going to kill me? No. Was it a concern? Yes.” Id. at 45. Mr. LaCheen went on to say that although there was an atmosphere of intimidation that he sensed increasingly through the trial, “nobody ever came to me— except the one time Leonetti used the word, kill — nobody said, if you do this