Full opinion text
MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. I. INTRODUCTION On November 25, 1988, the petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petitioner and a co-defendant, Gregory Resnover (hereinafter Resnover) were convicted of murder and conspiracy to commit murder in the shooting death of Indianapolis policeman Jack Ohrberg (“Ohrberg”). The petitioner was sentenced to death and is on death row at the Indiana State Prison in Michigan City, Indiana. Most recently, once again, oral argument and a hearing was held in Lafayette, Indiana on the 14th of October,. 1994. A. Historical Perspectives In order to keep the nature of habeas corpus in the United States courts in proper perspective, it is helpful to briefly trace its origins. To be sure, the so-called Great Writ evolved on both sides of the Atlantic in the 17th and 18th centuries. In 1679, a Restoration Parliament forced a Habeas Corpus Act onto a very reluctant and hostile King Charles II as a means of testing royal authority. That writ remained an essential feature of the Glorious Revolution and the English Bill of Rights a decade later. This writ also found favor with the American colonies as witnessed by the enactment of a Habeas Corpus Statute in 1692 in Massachusetts. It was also honored in a number of colonial charters and state constitutions which predated the Federal Convention in 1787. For example, the New Jersey Constitution of 1776 and the Georgia Constitution of 1777 contained specific provisions for a writ of habeas corpus. In Article I of the Constitution of the United States, which defined congressional authority, the writ of habeas corpus was presumed to exist and an attempt was made to place limitations on congressional authority to suspend it. The ratifying conventions which considered the Constitution of the United States made many recommendations as the content of a Bill of Rights for it. A number of these suggested including a specific amendment guaranteeing the right to a writ of habeas corpus. The First Congress under the leadership of then Representative James Madison considered many of these habeas recommendations along with the contents of the “Declaration of Rights” in the various state constitutions, as well as the preceding English and colonial history, in formulating the contents of a Bill of Rights. A specific habeas amendment was not included in the amendments' which were submitted to the states in 1789, ratified as of December 15, 1791, and now constituting the first 10 amendments plus the recently ratified 27th amendment. . Thus, one must look to Congressional enactments rather than to the facial fabric of the Constitution itself to understand the full dimensions of current usage in regard to federal habeas corpus. The first federal statute to deal with habeas corpus was the Judiciary Act of 1789, Ch. 20, S. 14, 1 Stat. 81, but it was limited to petitioners held in federal custody. The American Civil War put the provisions regarding habeas corpus in Article I of the Constitution to its greatest challenge. Immediately following that event, the Congress enacted the first truly elaborate federal Habeas Corpus Act in 1867, Ch. 28, S. 1, 14 Stat. 385, which, for the first time, permitted United States courts to hear habeas petitions from persons held in state custody. Interestingly, in an era when virtually all federal statutes used the masculine gender alone, the 1867 Habeas Corpus Act specifically used both the male and female gender in describing persons who were entitled to its benefits. The writ was available “in all cases where any person may be restricted of his or her liberty in violation of the Constitution, or of any treaty or law, of the United States.” In the 127 years since 1867, the United States courts have witnessed a massive growth in state prisoners seeking relief in United States courts, now under 28 U.S.C. § 2241 et seq., the present day progeny of the 1867 Act. It remains of high moment to note that this proceeding is made possible by reason of a specific Congressional enactment. Congress certainly has the authority to condition the entertainment in United States courts of petitions by state prisoners and has done so particularly in 28 U.S.C. § 2254(d). The basic legislative purpose of § 2254(d) is to avoid the complete retrial of factual issues in United States district courts hearing state prisoner habeas petitions, especially where the highest court in a state has specifically delineated the relevant facts. This basic view accorded § 2254(d) is reflected in key decisions of the Supreme Court of the United States and also represents a decent respect for federalism. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A United States court may have a problem when the highest state court or any other relevant state court has not properly delineated the determinative facts. See, Johnson v. Trigg, 28 F.3d 639 (7th Cir.1994). In this ease, the highest court in Indiana without dissent has clearly and completely delineated the relevant facts, and the invitation to wade into a retrial thereof will be most respectfully declined. In this context, the Supreme Court of the United States has set forth the standards by which a United States district court must examine the state factual record for sufficiency of evidence. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state post-conviction remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held: We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt. Id. (footnote omitted). See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O’Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987). Here, the focus must be on any claimed violation of the Constitution, treaties or statutes of the United States. See Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988), cert. den., 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989). Under Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the entire state court record has been independently examined by this court. See also, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The conviction of this petitioner and the imposition of the death sentence has now been before the Supreme Court of Indiana on three separate occasions, and that court, thus far, without dissent, has affirmed both the conviction and the sentence against the various challenges that are well reflected in reported decisions. In recent times, the Supreme Court of Indiana has been most willing to exercise a high level of judicial review of death penalty cases and has been equally willing to enter reversals or remands of such convictions. Burris v. State, 558 N.E.2d 1067 (Ind.1990) and cases there collected; See also, Kennedy v. State, 620 N.E.2d 17 (Ind.1993); James v. State, 613 N.E.2d 15 (Ind.1993); Bellmore v. State, 602 N.E.2d 111 (Ind.1992); Evans v. State, 598 N.E.2d 516 (Ind.1992); Castor v. State, 587 N.E.2d 1281 (Ind.1992); Landress v. State, 600 N.E.2d 938 (Ind.1992) (aff'd on remand, 638 N.E.2d 787 (Ind.1994)). Most recently, that high court has granted yet another state review proceeding in a death penalty case that had been the subject to full federal review. Schiro v. Clark, 754 F.Supp. 646 (N.D.Ind.1990), aff'd, 963 F.2d 962 (7th Cir.1992), cert. granted, — U.S. -, 113 S.Ct. 2330, 124 L.Ed.2d 243 (1993), aff'd, — U.S. -, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994). Even after Schiro returned to the Supreme Court of Indiana from the Supreme Court of the United States, an order was entered granting yet another review apparently on the basis of state law. See Shiro v. State, No. 07500-9403-SD-273, (Ind. April 15,1994). So, there is no disposition whatsoever by the highest court of Indiana to rush to judgment in death penalty cases. Far from it. In addition to the actions by the Supreme Court of Indiana involved in the present case, the Supreme Court of the United States has already once denied certiorari. Even given this extensive and time consuming review by the Indiana judiciary, it is not for this court to simply rubber stamp this state death penalty conviction. The demands of Miller v. Fenton, must be taken most seriously, and, here, they are. In another regard; Congress has conditioned the entertainment of state prisoner petitions by United States District Courts. Available state remedies must be exhausted. See 28 U.S.C. § 2254(c); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). The adversarial machinations of § 2254 petitioners where the death penalty has been imposed are different than in other state prisoner petitions brought under that statute. In most non-death penalty cases, the petitioner avoids as many state review procedures as possible to get quick and early federal review. Such is not the ease when the death penalty is involved. The adversarial dynamics are just the opposite. In death penalty eases, the convicted petitioner wants all and as much of repeated state review as possible. That precise reality has caused the Supreme Court of the United States to recently take a very hard line on such repeated reviews in death penalty cases. Gomez v. US Disk Ct N.D. Cal., 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992); See, e.g., Arave v. Creech, — U.S. -, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993); Johnson v. Texas, — U.S.-, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993); and Butler v. McKellar, 494 U.S. 407, 411, 110 S.Ct. 1212, 1215, 108 L.Ed.2d 347 (1990); But see, Penny v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). One of the adversarial devices used in death penalty cases to extend the time and effort in the state courts is to raise hew issues in later proceedings that could have been raised earlier or to raise issues that have already been decided. From those ashes has arisen the judicial phoenix now called procedural default, a most difficult concept which has ebbed and flowed since its conception with a particularly unique history in federal habeas death penalty cases. See, Coleman v. Thompson, 504 U.S. 188, 112 S.Ct. 1845, 119 L.Ed.2d 1 (1992). The larger purpose of these Congressional enactments and Supreme Court decisions is to try to find a means toward judicial finality in eases which require great care and sensitivity to constitutional values under Amendment VIII. There are those who, being witness to these lengthy and convoluted proceedings and having become weary of the same, have proclaimed that the public policy of imposing the death penalty in any case should be completely abandoned. See, Callins v. Collins, — U.S. -, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994); See also, Powell Recants Death Penalty View, The National Law Journal, A12 (June 13, 1994). Proclaiming on the wisdom of the death penalty in'general and public policy questions involving it is not a luxury available to this court. Its duty and burden here is to deal with the hard realities of this unusual species of litigation under prevailing law as fairly and as promptly'as possible. B. Procedural History This court alluded to the procedural history of this case above, however, a more precise history is now necessary. The petitioner’s conviction and sentence were affirmed in his direct appeal to the Indiana Supreme Court. There were no dissenting or concurring opinions. See Smith v. State, 465 N.E.2d 1105 (Ind.1984) (hereinafter “Smith I ”). In addition, the petitioner filed for state post-conviction relief. After a hearing was held, the state trial judge issued extensive findings of fact and conclusions of law and denied the petition. The petitioner appealed the denial of the post-conviction petition, and again the conviction and sentence were affirmed by the Indiana Supreme Court. See Smith v. State, 516 N.E.2d 1055 (Ind.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 347 (1988) (hereinafter “Smith II ”). Finally, the petitioner filed for post-conviction relief a second time. The petition was once again denied and once again the denial was affirmed by the Indiana Supreme Court. See Smith v. State, 613 N.E.2d 412 (Ind.1993) (hereinafter “Smith III”). In this court Mr. Smith has the following pending: 1) his original November 25, 1988 petition for Writ of Habeas Corpus, 2) a June 28, 1994 Motion to Substitute Party-Names Respondent, 3) a June 28, 1994 Motion to Amend Petition for Writ of Habeas Corpus, 4) a July 4, 1994 Motion for Evidentiary Hearing, and 5) a September 30,1994 Motion for Supplemental Order with Respect to Transmittal of State Court Records. To clarify the record, this court now rules on some of the above motions. This court hereby GRANTS the petitioner’s June 28, 1994 Motion to Substitute Party-Names Respondent and ORDERS that the current superintendent Robert A. Farley, be substituted for former superintendent Richard Clark. This court hereby DENIES petitioner’s September 30, 1994 Motion for Supplemental Order with Respect to Transmittal of State Court Records as the Indiana Attorney General has already supplied the materials requested. On February 21,1989 petitioner’s able and experienced counsel submitted an elaborate 104 page brief in support of Mr. Smith’s Petition for Writ of Habeas Corpus (hereinafter “Traverse Memorandum ”). That brief was supplemented by a thirty-five page brief submitted on May 15, 1989. On July 1, 1994 petitioner submitted a twenty-nine page brief in support of his Amended Petition for Writ of Habeas Corpus. Finally, on October 14, 1994 a twenty-eight page brief in support of petitioner’s Amended Petition and Motion for Evidentiary Hearing was filed. Also filed on that date was a 169 page Amended Appendix to the Amended Petition for Writ of Habeas Corpus. Having carefully considered the briefs and read the cases cited, as indicated below, this court denies petitioner’s Motion to Amend Petition for Writ of Habeas Corpus. C. Factual History The evidence and testimony from the criminal trial as outlined by the Indiana Supreme Court begins on December 11, 1980 at 3:00 a.m. when Indianapolis Police Sergeant Jack Ohrberg and another officer were serving an arrest warrant “on individuals believed to be at 3544 North Oxford Street in Indianapolis.” Smith II at 1058. The Indiana Supreme Court continues: Ohrberg and [the other officer] Christ were joined by four officers before arriving at the duplex at approximately 5:30 a.m. With Officers Schnieder and Harvey standing watch in the rear, Ohrberg, Christ, and Officers Ferguson and Foreman proceeded to the porch and front door. Ohrberg knocked loudly several times and identified himself as a police officer. Receiving no response, Ohrberg and Ferguson went to the adjacent half of the duplex, and learned from the tenant that she had heard movement in the adjoining half earlier in the night. Ohrberg returned and again pounded on the front door, announcing himself as a police officer. When no response or movement was heard from within, Ohrberg assumed a crouched position and started to use his right shoulder to batter the door which, after a few hits, began to open. Ohrberg continued to hit the door. His body was partially inside the residence. Foreman and Christ saw furniture blocking the door. Foreman saw a burst of muzzle flash from inside and heard two or three shots in quick succession, then a pause for two seconds and then another rapid burst of fire. The ■ simultaneous muzzle blasts came from two separate locations approximately eight to ten feet apart. Christ also heard the shots from inside the residence. Ferguson’s testimony paralleled that of Foreman and Christ. Ohrberg fired his gun into the house. Ohrberg then stepped back and to the left (south) on the porch, telling the other officers he had been shot. Ohrberg sank to his knees and collapsed on the porch. He lay at an angle to the doorway, head toward the house and feet toward'the street. Foreman recalled Ohrberg had fallen forward and the majority of his body was at a 45 degree angle to the house or the street, with his head up very close to the window and his body extending outward, his feet out by the front end of the porch. At the post-conviction hearing Christ said Ohrberg fell to the south of the doorway with his head to the southwest on his stomach or his left side. His head was under the window to the south of the doorway. Christ was standing to the right (north) of Ohrberg when Ohrberg was shot. As Ohrberg fell, Christ left the porch and retreated to the north. Taking cover, Christ saw a person with an “Afro” and a rifle emerge from the doorway onto the porch and fire at least two additional shots toward Ohrberg. Shots were also being fired from within the residence. Christ fired two shots at the figure in the doorway, and the man retreated inside. Ferguson was to Ohrberg’s left (south) when Ohrberg was shot. Ferguson retreated to the south edge of the porch. He also saw the person in the doorway, holding a rifle in a “hip position” while standing over Ohrberg and fire his rifle right and left. He did not observe shots striking Ohrberg. Ferguson testified he could see the muzzle flash as the rifle was fired. Ferguson fired at the gunman and then ran around the corner of the house where gunfire continued to be directed at him. Soon Gregory Resnover called to Christ that he wanted to talk and that Smith had been wounded. Negotiations proceeded, and after a few minutes, Gregory and Earl Resnover tossed weapons onto the porch and surrendered. Earl Resnover’s billfold contained Ohrberg’s business card. Smith was found on the living room floor. Next to Smith was a rifle and a damaged ammunition clip with a bullet hole piercing the clip from front to back. Ohrberg died of three gunshot wounds. Fragments of one bullet recovered at autopsy showed it was fired from the rifle found next to Smith. A neighbor in the adjoining duplex said that before the shooting started she heard someone shout that it was the police and heard noise which may have been the chair being moved to barricade -the door. This Court found that the facts adduced at trial show that the men inside 3544 North Oxford knew that the men at their door were police officers when they commenced firing on them. Further, Earl and Gregory Resnover had previously met Ohrberg who told them that his police investigation would likely involve them. Ohrberg’s superior testified that Ohrberg was acting in the course of his duty as a police officer. Id. at 1058-59. These facts are presumed correct under 28 U.S.C. 2254(d). In seeking a writ of habeas corpus under 28 U.S.C. § 2254, the petitioner makes several challenges to his conviction and sentence. This court will evaluate those challenges seriatim. II. DISCUSSION A. Sixth Amendment Confrontation Rights The petitioner contends that his Sixth Amendment Confrontation rights as enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), were contravened through three references to statements made by codefendant Resnover. At trial the State introduced three statements of the petitioner’s codefendant Resnover that were made after Resnover was taken into custody. Resnover did not testify during his joint trial with the petitioner; therefore, there was no opportunity to cross-examine Resnover about the statements. The state trial court denied the petitioner’s motion for severance of trials on this basis, however, the state trial court granted the petitioner’s motion in limine prohibiting direct references to the petitioner in any of the three statements. In the order presented at trial, the statements at issue are as follows: The first statement: “Beautiful shot! Blowed him away!” followed by “laughing and cutting up,” which was overheard by the driver of the police van while Resnover, his brother -Earl and two women were being taken to jail. The petitioner was transported separately to a hospital for treatment of his wound. See Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus and in Opposition to Respondent’s Return to Order to Show Cause (“Traverse Memorandum”) (filed March 8, 1989). The second statement was related by jailhouse informant Gregory Johnson who, on the morning of the shootings, was recruited personally by Prosecutor Goldsmith and investigating police officers to monitor the Resnover statements in holding cell in the courthouse. After agreeing to cooperate with the state, Johnson was placed in the holding cell with the Resnovers sometime before noon on December 12, 1980. According to Johnson, Resnover explained how he had been awakened early that morning by a knock on the door and had gone to the front of the house; he knew the police were there; he then went back to the rear of the house and knocked on the door of a bedroom occupied by Earl Resnover and Theresa Nance; he told Earl the police were outside and then went to get his rifle which was located in another bedroom; he started toward the front of the house and noticed that Earl’s door was not open; he kicked in the door and then “went on to the front room and took a squatting position and no sooner the door was kicked in. He fired some rounds at the person coming through the door.” Id. The third statement was related at trial by a newspaper reporter, Scott Miley, who had a conversation with Gregory Resnover at the Marion County Jail on April 27, 1981. Prior to his testimony, Miley was advised by the trial judge that an order in limine had been entered and that Miley was to make no mention of Smith as he testified about Resnover’s statements. Id. On the State’s direct examination Miley said that Resnover told him thai he was awakened by gunfire as he lay in a bedroom of the house with his girlfriend. The State’s examination continued: Q: What did he say he did next? A: He walked out into the hallway, went down the hallway slowly, and saw Tommie Smith leaning against the kitchen wall, and he was wounded, he was bleeding. Q: What did he say then? A: He picked up a gun and fired shots toward the front of the house. Q: Did he tell you where the gun was located? A: No. Q: What did he say then? A: He looked out the window, saw some police cars pulling up, realized it was the police, and went back to the back of the house. Q: And what did he say he did then? A: He said he saw Tommie Smith crawling out into the front room and he , went to the back to get his brother Earl. Id. During cross examination by Resnover’s counsel further references to the petitioner were included: Q: [Mr Alsip] ... I would direct your attention to the conversation with my client, Gregory Resnover, and his rendition of the facts of the incident that morning Sergeant Ohrberg was killed. You said that he came into the, I think the front part of the house or the kitchen area, and observed that Tommie Smith was wounded. Is that what you told me? A: Yes. Q: And at that time you just told this jury that he picked up a weapon and fired it out the front of the house. Did he also in that conversation indicate to you why he fired the weapon? Was it in response to something that Tommie Smith said? At that instant, that morning in the house? A: Yes. Q: And what was that? A: He, Gregory stated that when he came out there, Tommie said. Id. At this point, petitioner’s counsel objected invoking the trial court’s order in limine and the judge indicated a willingness to sustain. Resnover’s lawyer then explained that he was trying to extract from Miley the reason why Resnover fired: “my question to him was, what precipitated, did Gregory Resnover also say to you that something that Smith said or did precipitated him firing the weapon.” The witness here responded ‘Tes.” before the court ruled on the objection. Petitioner’s counsel withdrew his objection. The question proceeded: Q: What was it the Tommie Smith said or did that Resnover said precipitated the weapon fired? A: He said, They’re on the porch, get ’em off the porch. Q: Just those words? A: Yes. Q: And at that point Resnover fired the weapon? A: Yes, he grabbed his gun and fired. Id. The State also questioned Miley about an interview with the petitioner in the county jail on May 20, 1981, in which the petitioner gave his version of the events on the morning of the shooting: [Miley]: [Smith] stated that he had been asleep when suddenly the front door was forced open, that the door did not open all the way, it had jammed, and that he picked up a rifle and fired shots. * * * * * * He then went to the door, thinking that whoever the person was had left, stepped out onto the porch, did not see anyone on the porch and started to turn to come back in when he was shot. Id. In Bruton, the Supreme Court, evaluated whether a defendant’s Sixth Amendment Confrontation rights were violated though the prosecution’s introduction of a co-defendant’s incriminating confession at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant. The Court, speaking through Justice Brennan, explained: there are some contexts in which the risk' that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored____ Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Id. at 135-136, 88 S.Ct. at 1627-1628 (citations omitted). The statements at issue do not facially violate the dictates of Bruton. The statements do not expressly implicate the petitioner in the charged crime and thus the statements are not “powerfully incriminating.” Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); See also, Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). “In other words, [here] the admission of a codefendant’s statement is not error under Bruton [because] the statement Vas not incriminating on its face, and became so only when linked with evidence introduced later at trial’.” United States v. Arias, 984 F.2d 1139 (11th Cir.1993) quoting Richardson, swpra. Here, the statements are not a violation of Bruton unless such statements “could be fairly understood to incriminate the accused.” United States v. Campbell, 935 F.2d 39 (4th Cir.1991). “Bruton is not violated unless the co-defendant’s statement directly alludes to the [defendant], even if the evidence ‘makes it apparent that the defendant was implicated by some indirect references.’ ” United States v. Restrepo, 994 F.2d 173 (5th Cir. 1993). These statements, standing alone, do not expressly implicate this petitioner in this crime. Indeed, the first and the second statements do not refer specifically to the petitioner. This is not enough to constitute a violation of Bruton. (See also, U.S. v. Holloman, 575 F.2d 139 (7th Cir.1978); cf. U.S. v. Cook, 530 F.2d 145 (7th Cir.1976), cert. denied, 426 U.S. 909, 96 S.Ct. 2234, 48 L.Ed.2d 835 (1976). On this issue, the Indiana Supreme Court in Smith II, indicated that these statements •did not implicate Bruton: First, Resnover’s “Beautiful shot” remark does not refer to Smith. It may have been meant to be self-congratulatory, and refutes the claim that shooting the officer was a tragic error resulting from not understanding that the persons entering the house were police officers. Second, the jailhouse informant made no mention of Smith. He described only what Resnover said he did, and that Resnover told him he knew it was the police at the door. Third, reporter Miley did mention Smith. However, he merely quoted Resnover in establishing that Smith was present in the front room and was wounded and that Smith asked Resnover to get the police off the porch. Miley’s testimony does not show that Smith knew the men on the porch were police officers before the shooting started. The content of the statements do not facially incriminate Smith and thus, do not violate Bruton. Further, reporter Miley’s references to Smith do not violate Bruton because Smith made similar statements to Miley. Resnover told Miley he was awakened by gunfire, went down the hallway and saw Smith leaning against the kitchen wall. Smith was wounded. Resnover picked up a gun and fired some shots toward the front of the house. He saw some police cars pulling up and went to the back of the house. During cross-examination, Miley testified Resnover said he fired in response to something Smith said. Smith, in a separate interview, admitted to Miley that he fired shots at a figure attempting to enter the front door of the duplex. Since Smith’s own properly admitted statement confessed to firing at a figure entering the front door, there was no harmful result in the admission of the Resnover statement. Further, on Smith’s direct appeal this Court observed the record shows that the witnesses’ testimony was directed toward Gregory Resnover only and did not involve Smith in any manner. Smith, 465 N.E.2d at 1121. Id. at 1060-61. This court agrees with the Indiana Supreme Court and notes that the Supreme Court of the United States has admonished that Bruton has limits. “The Confrontation Clause has never been held to bar the admission into evidence of every relevant extrajudicial statement made by a nontestifying declarant simply because it in some way incriminates the defendant.” Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). This court also notes that this issue may also be decided under United States v. Hamilton, 19 F.3d 350 (7th Cir.1994). The very erudite opinion by Judge Ripple evaluated the Bruton situation, the Sixth Amendment confrontation clause, and Rule 804(b)(3) of the Federal Rules of Evidence. If the statements attributed to Resnover satisfy the statement against penal interest requirements of Rule 804(b)(3), then the right of cross-examination under the Confrontation Clause is protected because of the equivalent guarantees of trustworthiness. Id. at 357. This court need not determine this matter insofar as this court finds no constitutional error under Bruton. The trial court granted the petitioner’s motion in limine “prohibiting direct reference to [the petitioner] in the three statements.” Smith II, 516 N.E.2d at 1060-61. “The statements were admitted against Resnover only.” Id. Of the three above mentioned statements, the petitioner only objected to the last statement. No objection was made to the first or the second. It is important to note that “[n]o jury instructions limiting the use of the evidence to Resnover were requested.” Id. The Indiana Supreme Court also addressed the petitioner’s contention that “it was fundamental error at trial for the court not to admonish the jury nor give the jury an instruction limiting the applicability of the statements to Resnover.” Id. The Indiana Supreme Court further explained: This contention is not presented in the post-conviction petition. Smith’s petition claimed only that the statements, due to their content, were objectionable. Issues not presented in the post-conviction petition are waived. Id. (citations omitted). This specific reference by the Indiana Supreme Court on the issue of instructing by the court sua sponte is barred by procedural default. See, Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The factual setting and reasoning of U.S. v. Hamilton, 19 F.3d 350 (7th Cir.1994) in relevant here. There Judge Ripple stated: Mr. Miller next asserts a Sixth Amendment Confrontation Clause violation. He claims that the district court erred by admitting the extrajudicial statements of his codefendant, Mr. Hamilton, against him at trial. He asserts as an absolute, proposition that “where two defendants are tried jointly, the pre-trial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.” appellant Miller’s Br. at 6. He submits that the district court erred including that incriminating statements made by Mr. Hamilton were admissible against him un-. der Federal Rules of Evidence 804(b)(3), which excepts statements made against the declarant’s interest from the general prohibition against hearsay. As a result, Mr. Miller asserts, the admission of Mr. Hamilton’s extrajudicial statements in his trial violated his right of cross-examination under the Confrontation Clause as set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In response, the government argues that Mr. Miller’s Bruton contention is misplaced. In its view, the district court was correct in deeming Mr. Hamilton’s extrajudicial statements to be admissible against Mr. Miller under Rule 804(b)(3). Bruton, the government states, dealt only with a confession used at a joint trial against the declarant-codefendant that was not admissible against the nondeclarant-codefendant under any hearsay exception. Mr. Miller’s argument displays a misperception, albeit a common one, of the Supreme Court’s holding in Bruton. Bruton concerned a declarant-codefendant’s confession that was admitted only against the declarant at the joint trial of the declarant and his codefendant Bruton. Id. at 124-25, 88 S.Ct. at 1621. In Bruton, the government did not attempt to use the confession against Bruton because, under' the prevailing rules of evidence, it was inadmissible hearsay. Indeed, the trial court gave an appropriate limiting instruction that the statement not be used against Bruton. Nevertheless, the Supreme Court held that, “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton’s] guilt,” Bruton’s confrontation rights were violated. Id. at 126, 88 S.Ct. at 1622-23. However, the Court expressly reserved the question whether such a violation occurs when the extrajudicial statements are admissible against the declarant’s codefendant under an exception to the hearsay rule: We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence---- There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. Id. at 128 n. 3, 88 S.Ct. at 1623-24 n. 3. In short, Bruton does not address the issue before us in this case. Previous cases in this circuit, however, have, and those cases present the rule of decision that must govern the ease before us today. In United States v. York, 933 F.2d 1343 (7th Cir.), cert. denied, [502] U.S. [916], 112 S.Ct. 321, 116 L.Ed.2d 262 (1991), we addressed a Bruton claim similar, though not identical, to the one Miller presents. In York, the defendant contested the district court’s admission of incriminating extrajudicial statements made by York’s partner, Mahar. Mahar had told two acquaintances that Mahar and York were planning to burn down a business for insurance proceeds. Mahar was unavailable at York’s trial because she had died in the very blaze for which York was on trial. We held that admitting the testimony against York was not precluded by Bruton. Unlike the declarant’s statement in Bruton, Mahar’s statement was admissible against York under a hearsay exception, Rule 804(b)(3). Id. at 1362-64. We held that the statement made against the penal interest of Mahar was sufficiently reliable to justify its use against York. In reaching that decision, however, we cast the governing rule cautiously: So long as the incriminating and inculpatory portions of a statement are closely related, if the circumstances surrounding the portion of a declarant’s statement inculpating another are such that the court determines that the inculpatory portion of the statement is just as trustworthy as the portion of the statement directly incriminating the declarant, there is no need to excise or sever the inculpatory portion of the statement. Mahar’s inculpatory statements were admissible under Rule 804(b)(3) and therefore there was no confrontation clause violation. Id. at 1364. In United States v. Curry, 977 F.2d 1042 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993), we acknowledged with approval the holding in York. In Curry, the district court allowed the government to present an informant’s testimony concerning incriminating statements codefendant Bush had made. Id. at 1055. Because the testimony was admissible under Rule 804(b)(3), we held that Bruton did not preclude the admission of the evidence at the joint trial because Bruton dealt with inculpatory statements that were inadmissible against the nondeclarantcodefendant. As Mr. Miller correctly points out, the district court in Curry gave a limiting instruction stating that Bush’s extrajudicial statements would be admissible only against Bush. See id. However, we do not read the decision as turning on this point. Once it ruled that the testimony was excepted from the general prohibition against hearsay by virtue of Rule 804(b)(3), the district court in Curry need not have given such a limiting instruction. Rather, it appears that the government should have been able to use the declarant-codefendant’s extrajudicial statements against the nondeclarant-codefendant. Id. at 354-56. Finally, these Resnover statements do not run afoul of the teaching of Williamson v. U.S., — U.S.-, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). B. Prosecutorial Misconduct Next, the petitioner asserts that the prosecutor engaged in prejudicial misconduct at numerous junctures in the guilt phase of the trial. Specifically, the petitioner asserts that “[t]he prosecutors included in their closing remarks to white jurors references premised upon racial images and stereotypes.” Traverse Memorandum, at 46. Here, the petitioner offers the following excerpt: Now, what about Tommie. Tommie signed his name for us and we owe him a debt of gratitude. Because Tommie couldn’t be satisfied with tearing Jack’s guts apart [with] that first shot. Oh, no. He’s got to play super-fly and come out here and blow holes in a man who is lying dying on the sidewalk. Id. And the following excerpt is outlined by the petitioner: “Theresa Nance came in here. She did a little shucking and jiving on the stand____” Id. (emphasis supplied by petitioner). In addition, the prosecutor referred to the defendants as “boys.” The petitioner argues that “[e]xecrable racial epithets are encoded beneath the veneer” of the prosecutor’s comments. Id. The petitioner argues that “[a]ppeals to racial prejudice ‘are foul blows and the courts of this country reject them.’ ” Id. citing Withers v. United States, 602 F.2d 124, 127 (6th Cir.1979). See also, Berger v. U.S., 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The Indiana Attorney General argues that many of the words and phrases utilized by the prosecutor in his closing argument are innocuous. Here, the reference to superfly and shucking and jiving are not dispelled as innocuous. She asserts that shucking and jiving was presented to convey the demeanor of the witness as misleading and evasive. She also argues that superfly as an allusion as it was used here is meant to be part of persuasive speech much like references appear from the Classics, the Bible, or Shakespeare. Or modern day similes and metaphors such as describing a soldier with a “Rambo” mentality, or describing a police officer as “Barney Fife” or “Dirty Harry.” “The Constitution prohibits a prosecutor from making race-conscious arguments since it draws the jury’s attention to characteristics that the Constitution generally demands that the jury ignore.” United States v. Hernandez, 865 F.2d 925, 928 (7th Cir.1989) (Citations omitted). “Federal courts have long condemned racially inflammatory remarks during governmental summation.” United States v. Doe, 903 F.2d 16, 24 (D.C.Cir.1990).- “Racial fairness of the trial is an indispensable ingredient of due process and racial equality a hallmark of justice.” Id. at 25. “Appeals to racial passion can distort the search for truth and drastically affect a juror’s impartiality.” Id. “The impropriety of pleas capable of arousing racial biases is consistently recognized even when they fall short of the danger zone, or are justified by the circumstance.” Id. at n. 63. The issue here is whether the references distorted the search for truth and drastically affected the impartiality of the jury. The remarks must be considered within the context of the entire trial, and the remarks must be found to have been inflammatory and prejudicial to the petitioner. U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). In United States v. Hernandez, supra, the prosecutor in his closing argument referred to the defendants as “Cuban drug dealers.” Id. On the issue of prosecutorial misconduct, the Seventh Circuit explained that “[t]he prosecutor’s remark was not intentionally injected into volatile proceedings where the prosecutor had targeted the defendant’s ethnic origin for emphasis in an attempt to appeal to the jury’s prejudices.” Hernandez, 865 F.2d at 928. The Hernandez court- emphasized that while the “prosecutor’s reference may have been inappropriate ... there is no evidence that this singular comment was a deliberate attempt to play upon the prejudices of the jury.” Id. On this issue of race the Indiana Supreme Court found no impropriety and explained: Smith claims the State’s final argument was calculated to inflame the passions of the jury through appeals to racial prejudice. Smith proposes the comment that Earl Resnover was “stuck, by his own stupidity” in a bedroom is an “indirect, but unmistakable- reference to the race of the Defendants”. He makes the same charge regarding a reference to the persons who simply carry out orders as “these privates,” and the group of persons as “the boys”. These terms are used as general slang, not a racial comment. Smith professes to see a racial reference to the remark “this one and that one ... ”, referring to argument that there was a conspiracy between this defendant and that defendant. These remarks are not inherently racial comments. Two other phrases are discussed by Smith. First, the prosecutor characterized the testimony of a black defense witness as “shucking and jiving on the stand.” The term is clearly of black origin, used to mean to talk in a patently misleading or evasive manner. Its use reminds the jury of the untrustworthy appearance of this witness. Second, the prosecutor said Smith “had to play Superfly” and shoot Ohrberg where he lay. Despite the racial content of the term “Superfly”, it is not out of bounds to make such an allusion by saying Smith acted like “Superfly”, either to characterize his actions by comparison with a known fictional figure, or to imply that Smith’s behavior is to some extent modeled on the fictional example. Smith II, 516 N.E.2d at 1064. The prosecution’s above mentioned references are opaque and limited in scope. The prosecutor should however have refrained from such statements. See, U.S. v. Dominguez, 835 F.2d 694, 700 (7th Cir.1987). That is clear. The issue here is whether the prosecutor’s discourse was prejudicial to the verdict in this case. The evidence of guilt in this case is overwhelming. The prosecutor’s remarks did not interfere with the impartiality of the jurors. A reference of this nature in the scope of the entire trial does not make the verdict suspect. The petitioner included several more excerpts from the prosecutor’s closing argument and alleged the statements illustrate misconduct of a constitutional magnitude. It should be noted that no objections were made to any of the prosecutor’s statements. In United States v. Reed, 2 F.3d 1441 (7th Cir.1993), the Seventh Circuit, speaking through Judge Coffey, explained the requisite considerations on the issue of prosecutorial misconduct: To succeed in his claim, [the petitioner] must demonstrate that “the prosecutor’s comments ‘so infected the trial with unfairness' as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (citation omitted). “When analyzing allegations of prosecutorial misconduct during argument, we look at the disputed remarks in isolation to determine if they are proper. If the statements are proper, our analysis ends. If the statements are improper, our second step is to look at the remarks in light of the entire record to determine if the defendants were deprived of a fair trial.” United States v. Badger, 983 F.2d 1443, 1450 (7th Cir.), cert. denied, — U.S.-, 113 S.Ct. 2391, 124 L.Ed.2d 293 (1993). Id. at 1450. The five factors to be considered when weighing the propriety of a prosecutor’s comment include: 1) the nature and seriousness of the prosecutorial misconduct; 2) whether the prosecutor’s statements were invited by conduct of defense counsel; 3) whether the trial court instructions to the jury were adequate; 4) whether the defense was able to counter the improper argument through rebuttal; and 5) the weight of the evidence against the defendant. Id. The petitioner asserts that the prosecutor “scored a quadruple violation ... in which he (1) asserts facts concerning the character of the victim which were not in the record; (2) states his personal belief as to the central fact in controversy; (3) misstates the evidence; and (4) vouches personally for the credibility of a key witness and the integrity of the victim.” See Traverse Memorandum, at 53. Here, the petitioner'includes the following excerpt: I want to go over the evidence, and I want, from this evidence, to learn with you about this man who died. Because in learning about him, the conspiracy to kill him becomes very obvious. Jack was a man who had high respect for individual rights of all citizens. Even though he took a lot of cops with him, to serve those warrants. Even though he sent people to the back to protect themselves. Jack knocked, and I believe that’s true. If you think Louie Christ is lying, Okay fine. But you know he’s not. You know he’s telling the .truth. He knocked, and he announced. Because everybody’s got a right to their .own privacy. So he knocked and announced his purpose and authority. Police, open up. I know that much about Jack. You could see it in his conduct, that he believed in the rules: And followed them. Id. On the issue of prosecutorial misconduct, the petitioner asserts that “[t]his is the very type of argument criticized in United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985): The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury but known to the prosecutor, supports the charge against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the- Government’s judgment rather than its own view of the evidence. Traverse Memorandum at 54. The petitioner continues to refer to United States v. Young in conjunction with other excerpts of alleged prosecutorial misconduct. In addition, the prosecutor referred to a lawyer-client relationship with the victim and with other police witnesses who had testified for the prosecution during the trial: And there is a rule that says that lawyers cannot infer or imply to the jury that he possesses information that’s not before them, and I won’t do that, because I don’t. In my estimation you know all there is to know. There’s another rule that says we [lawyers] can’t testify, we can’t give facts. Well, I was Jack Gin-berg’s associate in law enforcement for a long time. ’ And as he was Homicide Supervisor and since, I was his lawyer, the same as I’m [the lawyer for the police witnesses]. So that would be easy to do so, but I’m gonna do it. Traverse Memorandum at 52. This excerpt, according to the petitioner, is exacerbated by the “negative phrasing at the end of this statement [which] does nothing but emphasize the message that the prosecutor did have inside information about the case because of his close and professional relationship with the police.” Id. The petitioner maintains, that the prosecutor engaged in improper argument during his rebuttal argument. Here, the petitioner includes this excerpt: Now [Resnover’s lawyer] has known me for a long time and every time I try a case with him he gets more and more into predicting my behavior. And he’s about always right. Tom knows that I’m going to get upset before this is over with. And he knows I’m right. Because we’re dealing with the loss of a very sacred life. And the life of a very important man. Just like every other man is important. Traverse Memorandum, at 52. According to the petitioner, the prosecutor returned to this theme later by reprising the same theme: Now I don’t want these guys convicted of anything because my friend died. I want them' convicted because they did it. Id. The petitioner maintains that “throughout his argument” [the prosecutor] claimed a close personal relationship with the victim as “my friend” and “my detective”. Id. The Indiana Supreme Court in Smith II evaluated the. issue of prosecutorial misconduct and found none: Smith claims that during closing argument, the State included statements of personal belief in the guilt of the accused, intimated knowledge of facts outside the record, and misstated the evidence. The prosecutor’s final argument may point out any reasonable inference from facts in evidence. Further, a prosecutor may comment on the credibility of witnesses in closing argument as long as the assertions are based on reasons which arise from the evidence. Rhone v. State (1986), Ind., 492 N.E.2d 1063,1066. The prosecutor said-he believed it was true Ohrberg knocked before entering and announced he was a policeman. This comment is- premised on a statement that it is based on evidence in the case, not on any outside knowledge about Ohrberg. Garrison also appealed to the jury to make the conviction on the evidence only. This was not improper argument. Smith claims that during closing argument, the State included statements of personal belief as to the lack of credibility of witnesses associated with the defendants. When the prosecutor argued that one of the witnesses was lying, he was arguing factual reasons based on evidence and circumstances properly before the court and in the record to reach those conclusions. Thus, he was not making personal comment on their credibility. Smith II, 516 N.E.2d at 1063-64. In United States v. Auerbach, 913 F.2d 407 (7th Cir.1990), the Seventh Circuit evaluated the closing argument of a prosecutor for misconduct. In Auerbach, the defendant claimed that “the prosecutor impermissibly expressed his personal opinion of [the defendant]^ guilt to the jury.” Id. In examining this claim, the court explained that the prosecutor made the following statement during his closing argument: So, there is no doubt with regards to [the defendant]. You can accept his defense or reject his defense, and it is of no concern because it is the Government’s case which has shown that [the defendant] joined the conspiracy and in the months charged in those counts possessed the requisite amount of marijuana, as stated with the intent to distribute it and he is/guilty.... ❖ * * * * * The question is, did we prove it beyond a reasonable doubt, and there is no reasonable doubt in this particular case. [The defendant] has done what he is charged with. [Another defendant] has done what he is charged with. Convict them. Id. at 418. On the issue, the Auerbach court “declined] to adopt the defendant’s curious view that it is improper for the prosecutor to argue to the jury that a defendant is guilty.” Id. The court explained that while it “is correct that it is improper for the prosecutor to express his personal opinion about a defendant’s guilt, see United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), ... the prosecutor did not do so.” Id. Similarly, when the prosecutors here stated “I want them convicted because they did it,” it is juxtaposed with references to the evidence. Or this statement outlined above: Jack knocked, and I believe that’s true. If you think Louie Christ is lying, Okay fine. But you know he’s not. You know he’s telling the truth. He knocked, and he announced. Traverse Memorandum, at 53. Here, as in Auerbach, “the comment cited by the defendant was prefaced by a reference to the government’s case; the prosecutor’s statements were simply a permissible comment upon what the evidence showed and not a statement of his personal opinion regarding the defendant’s guilt.” Auerbach, 913 F.2d at 418. “Moreover, there is no indication that the prosecutor was attempting to influence the jury’s evaluation of the evidence by implying that they should defer to an opinion based on his experience, expertise, or insider’s knowledge of the case.” Id. Another excerpt from Auerbach, is of value here. The defendant in Auerbach: also contends that the prosecutor improperly bolstered his case by referring to his position as a government official. In response to defense counsel’s closing argument that the government was conducting a “witch hunt” and that its witnesses had coordinated and fabricated their testimony, the prosecutor asked the jury: Is that what you think your government is doing, getting people together and getting their stories together? If we were going to do that there wouldn’t be any mistakes. But that wasn’t done. These people testified from what they knew, and if they couldn’t identify somebody, they didn’t. And if they didn’t remember an exact date they didn’t change it. [Clearly, it is] impermissible for the prosecutor to strengthen its ease by invoking the prestige of the United States government. Auerbach, supra citing United States v. Eley, 723 F.2d 1522, 1525, (11th Cir.1984). Here, although the prosecutor refers to his relationship with law enforcement officers, a reference to the fact that the prosecutors have to work closely with law enforcement officers does not necessarily represent an attempt to improperly sway the jury’s evaluation of the evidence. In United States v. Mazzone, 782 F.2d 757 (7th Cir.1986), the Seventh Circuit evaluated the issue of prosecutorial misconduct. The Mazzone court explained the prosecutor’s closing argument thusly: He said such things as, “I know as good defense lawyers it is their job to defend their clients, no matter how guilty they may perceive them....” And: “I took an oath to uphold the laws of the United States, that was one of the most, important things I ever did, and, of course, if the government’s case here today is a lie, then I haven’t been upholding that oath.” And: “as an Assistant United States Attorney I am proud to be in this ease____ I think ... these agents did exactly what they were supposed to have done and they have helped rid the community of these dope peddling defendants.” He described some defense documents as “forged-up documents,” and repeatedly described the closing argument by the defendants’ lawyers as “malarkey” and “hogwash.” The district judge sustained several objections to the argument and told the jury to pay no heed to the objectionable remarks. Id. at 762. In Mazzone, the court indicated that the dispositive issue on prosecutorial misconduct is “whether the error of the prosecutor’s ways was harmless, or as the eases usually say, did not prejudice the defendants’ right to a fair trial.” Id. (citing United States v. Brack, 747 F.2d 1142, 1152-53 (7th Cir.1984)); United States v. Bagaric, 706 F.2d 42, 58-59 (2d Cir.1983); United States v. Haskins, 737 F.2d 844, 850 (10th Cir.1984); United States v. Falk, 605 F.2d 1005, 1014 (7th Cir.1979). In evaluating whether “the impact seems to have been nil (“harmless”),’ that is just another way of saying that the trial was not poisoned, [the Mazzone court, speaking through Judge Posner, explained that] due process was not denied and reversible error was not committed.” Id. Specifically, the Mazzone court explained: At least within limits; for in a close case, egregious prosecutorial misconduct might require us to overturn the trial judge’s finding that it had not prejudiced the jury’s consideration of the case. Cf. Joseph v. Brierton, 739 F.2d 1244, 1247-48 (7th Cir.1984). This, however, was not a close case, The evidence against the appellants was overwhelming; it included substantial eyewitness evidence____ The prosecutor’s remarks, those we quoted aboye and a few more like them (but somewhat less objectionable), must be placed in the context of a [the entire closing argument], the rest of which was unobjectionable____ It is almost inconceivable that if the prosecutor had refrained from making the remarks that he did, the appellants would have been acquitted. It is more likely that the judge’s admonitions reduced the stature of the assistant U.S. attorney in the jury’s, eyes than that the remarks that were admonished swayed the jury. That does not excuse the government’s conduct, of course. It makes it, if anything, less excusable; in Talleyrand’s phrase, it was worse than a crime, it was a blunder. So while we reprimand the government for the prosecutor’s conduct and for its attempt to defend that conduct before us, we do not find reversible error, a conclusion reinforced by the very large number of cases that refuse to reverse convicti