copy of the check and attempted to call her identification of Mohammad's signature into doubt. Echeles also presented Mohammad's testimony that he did not lease the warehouse from McGee or pay the rent.
As stated above, Mohammad does not identify the FBI agent he claims should have been questioned about the rent checks. Although the court may reasonably assume that Mohammad is referring to Diwik, Mohammad fails to explain how any testimony by Diwik would have helped his cause. Mohammad also argues that Echeles should have hired a handwriting expert, but fails to claim that such an expert was available and willing to testify on his behalf or describe what the testimony of that expert would have been. These allegations are insufficient. See Patel v. United States, 19 F.3d 1231, 1237 (7th Cir. 1994) ("Where a petitioner claims his trial counsel failed to call a witness, he must make a specific, affirmative showing as to what the missing evidence would have been, and prove that this witness's testimony would have produced a different result") (citations omitted). Thus, Mohammad has failed to demonstrate incompetence or prejudice with respect to the issue of who paid the rent for the warehouse as well.
The failure to produce evidence about the size of the warehouse cannot be considered prejudicial since the issue of its size was collateral to the issue of Mohammad's guilt. The failure to present the testimony of certain grocery store owners cannot sustain Mohammad's claim either. Without attaching any supporting affidavits, Mohammad asserts that these individuals would have testified that they did business with Discount, but did not know him. Mohammad may not speculate as to what the store owners testimony would have been in this manner. Daniels, 54 F.3d at 293. Moreover, even if this court were to assume that the store owners would have testified as Mohammad claims, he fails to demonstrate that their testimony would have made a difference. The fact that certain store owners did not know Mohammad or deal with him directly is not inconsistent with his guilt, especially in light of the testimony of government witness Suliman Abu Awwad ("Awwad") that Mohammad pretended to be his brother Saleh on the phone with Discount customers. Accordingly, the court rejects Mohammad's second argument.
Third, Mohammad argues that Echeles was ineffective because he engaged in hostile confrontations with the district court judge, often in front of the jury. This allegation alone cannot support a claim for ineffective assistance of counsel because Mohammad does not describe any of these incidents in any detail. Mohammad does, however, describe one confrontation between Echeles and the judge in his reply. There, Mohammad asserts that Echeles failed to adequately cross-examine Awwad. Awwad testified that Mohammad was the "boss" and actually ran Discount, even though Saleh was the president. Mohammad claims that Echeles' performance was so inadequate that the judge admonished him severely in front of the jury and instructed the jury to disregard his entire line of questioning, striking it from the record. Mohammand asserts that Echeles continued to argue and caused the judge to admonish him in front of the jury again. Mohammad claims that Echeles did not attempt to properly cross-examine Awwad thereafter.
Mohammad does not describe how he was allegedly prejudiced by the events surrounding Awwad's testimony -- whether he was damaged by the allegedly inadequate cross-examination, the effect of the judge's reprimands on the jury, or the alleged bias of the judge as evidenced by the reprimands. The court will therefore address each theory. With respect to the cross-examination of Awwad itself, the court finds that Echeles' technique may have been flawed at times. The court cannot conclude, however, that the cross-examination was, on the whole, incompetent. Even if the court were to assume that it was, it cannot find that Echeles' failure to cross-examine Awwad more effectively resulted in any prejudice. Awwad's testimony did not go unchallenged. For example, Mohammad testified, in contradiction to Awwad's testimony, that he was only a salesman and did not own or operate Discount. In addition, although Awwad's testimony was significant, there was other evidence of Mohammad's controlling role in the bust-out scheme. Accordingly, the court rejects the theory that Mohammad was prejudiced by the alleged inadequacy of Echeles' cross-examination of Awwad.
The court also rejects the other two theories of prejudice. The exchange Mohammad describes took place in the middle of Echeles' cross-examination of Awwad. Echeles was attempting to impeach Awwad with portions of his grand jury testimony. At sidebar, the judge expressed his concern that Echeles' questions were ambiguous. When Echeles responded that his questions were proper, the judge told him to stop talking loud enough for the jury to hear. After further discussion at sidebar, the judge reminded the jury that the arguments of counsel are not evidence, and cross-examination continued.
After several questions, the government again objected. The objection was sustained. After several more questions and objections, the judge again expressed his concern that Echeles was confusing the witness and the jury, and then attempted to explain the ambiguity of Echeles' questions to the jury. After several more questions, the government objected again, asserting that Echeles' questions constituted improper impeachment. The court sustained the objection. When Echeles asked what objection was being sustained, the judge stated that Echeles was using improper technique for either impeachment or refreshed recollection, that the objection was to the form of his questions, and that it was the same objection that had been made and sustained approximately three times in ten or fifteen minutes. The judge then stated that "the only thing I can do at this moment in time because you have continued to persist in that technique is to instruct the jury to ignore this entire line of questioning. It's all stricken from the record." When Echeles protested, the judge instructed him to refrain from arguing points of law in front of the jury. Echeles, however, continued to protest. The judge again stated that Echeles would not be permitted to argue about issues of law in front of the jury. When Echeles persisted, the court warned him that he would be held in contempt of court if he continued.
The court then excused the jury and discussed the matter at length with the lawyers. The judge indicated his displeasure, but did not attack Echeles personally or exhibit any hostility. On the contrary, the judge began by stating that he enjoyed Echeles' presence in the courtroom. Echeles moved for a mistrial, but his request was denied. Before resuming, the judge addressed the jury, stating:
Sometimes lawyers have a position on the law that they want to maintain and they have a right to, so if you see a difference of opinion between the lawyers and each other or the lawyers and the Court, that's not for you to decide. Just leave that to me. You're listening to the evidence and the facts and that's your job. Mine is the law.
The lawyers are zealous. They're all very experienced professionals, and they need to sometimes make their point strongly. So don't let that interfere with anything that you're trying to do, all right?