                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-1916
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

DANIEL W. STARK, SR.,
                                       Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
         No. 03-CR-30190—Michael J. Reagan, Judge.
                       ____________
    ARGUED MAY 29, 2007—DECIDED OCTOBER 17, 2007
                    ____________


  Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
  WOOD, Circuit Judge. Daniel Stark, Sr., was convicted
by a jury on a potpourri of charges: being a felon in
possession of a firearm (18 U.S.C. § 922(g)); conspiracy
to possess and sell stolen motor vehicles (18 U.S.C. § 371);
possession of stolen property (18 U.S.C. § 2315); possession
and sale of stolen motor vehicles (18 U.S.C. § 2313);
conspiracy to engage in monetary transactions in crimi-
nally derived property (18 U.S.C. § 1956(h)); and engaging
in a monetary transaction in criminally derived property
(18 U.S.C. § 1957). On appeal, he challenges the fairness
of the trial as a whole on three grounds: he never know-
ingly and voluntarily waived his right to testify; the
2                                             No. 06-1916

government’s closing argument impermissibly referred to
his failure to testify; and his attorney was ineffective.
  A defendant’s right to testify is fundamental, but there
is no ironclad rule that a district court judge must always
explore the question whether the defendant knowingly
and voluntarily waived that right every time a defendant
does not testify. There is nothing wrong, however, with a
district court’s asking a defendant directly if he intends
to testify. Indeed, such an inquiry can eliminate doubt on
this important point and potentially avert appeals like
this one. In this case, however, the district court had no
reason to suspect that there was anything wrong with the
waiver, and thus the judge acted within his discretion
when he did not initiate an inquiry into Stark’s decision.
Stark’s other claims fail as well, and we therefore affirm
the judgment of the district court.


                            I
  Stark was arrested in September 2003 after firearms
and stolen tractors were found at his residence during a
search authorized by a warrant. Stark’s original counsel,
Charles Stegmeyer, Jr., urged Stark to enter into plea
negotiations after Stark was indicted for one count of be-
ing a felon in possession of firearms; Stark followed that
advice. During those negotiations, Stark signed a proffer
letter that included an admission that he knew that the
tractors were stolen. Soon after, the plea negotiations
fell apart, and Stark was indicted on the charges we
described earlier.
  Stark retained a new attorney for trial, Theodore
Barylske, Jr., to serve as co-counsel. Stegmeyer later
withdrew from the case entirely. At the final pretrial
conference, the district court judge stated in open court
that he would inquire before the end of the trial whether
No. 06-1916                                                3

Stark would be testifying. Stark was present in court
at the time that statement was made.
  The government’s theory of the case was that Stark
knowingly joined a conspiracy to steal tractors and other
farm equipment in Illinois and Missouri and resell those
vehicles in Kentucky. Stark’s attorney attempted to
poke holes in the government’s case by highlighting the
central role that Stark’s son, Danny Stark, Jr. (“Danny”),
played in the tractor thefts and sales and Stark’s alleged
lack of involvement in some of these activities. Stark’s
attorney contended that Stark did not know that the
tractors at issue were stolen.
  Throughout the trial, both Barylske and Stark in-
formed the district court from time to time that there
were problems with their attorney-client relationship.
The district court was attentive to these disagreements,
which centered primarily around Stark’s desire to call
additional witnesses. In one exchange among the judge,
Stark, and Barylske, the judge told Stark that he was
willing to subpoena any necessary witnesses but that he
would not allow duplicative witnesses. At no point during
this or any other exchange did Stark suggest that he
wanted to take the stand.
  After he was convicted, Stark made a motion for a new
trial. The district court held a hearing, and Stark testified
that he had always wanted to take the stand himself
but that Barylske had told him that he could not, and
Stegmeyer had told him that he was legally forbidden from
doing so. Stark acknowledged during his testimony that
he had been advised of his rights in 15 earlier criminal
judicial proceedings, including a previous federal case in
which he was charged with being a felon in possession of
a firearm. Barylske testified that Stark had never indi-
cated that he thought he could not testify, that he had
discussed with Stark the disadvantages of testifying
4                                              No. 06-1916

and asked Stark for his thoughts, and that Stark said he
did not want to testify because he did not want to call his
son Danny a thief. Barylske concluded that Stark did not
want to testify in his own behalf. This, Barylske thought,
was the better way of proceeding, and that was what the
two agreed. The district court credited Barylske’s testi-
mony and denied the motion for new trial.


                            II
                            A
  We consider first whether the district court committed
reversible error by refusing to order a new trial. Stark and
the government appear to disagree about the standard of
review that applies to this issue. The government argues
that an abuse of discretion standard applies to the dis-
trict court’s credibility determination with respect to the
defendant’s belief that he had no right to testify. Stark
states that this issue should be reviewed de novo. See
United States v. Webber, 208 F.3d 545, 550 (6th Cir. 2000)
(employing de novo review of a defendant’s argument
that he was denied his right to testify). In several prior
decisions, we have discussed the issue of waiver of the
right to testify in terms of “reversible error” without
resolving the standard of review question. United States v.
Campione, 942 F.2d 429, 438 (7th Cir. 1991); United States
v. Brimberry, 961 F.2d 1286, 1289 (7th Cir. 1992); see also
United States v. Manjarrez, 258 F.3d 618, 625 (7th Cir.
2001); United States v. Benitez, 92 F.3d 528, 536 n.6
(7th Cir. 1996).
  We review de novo the question whether an evidentiary
ruling infringed upon a defendant’s constitutional right
to testify. United States v. Carter, 410 F.3d 942, 951 (7th
Cir. 2005); see also United States v. Bajakajian, 524 U.S.
321, 337 n.10 (1998) (holding that “the question whether
No. 06-1916                                                 5

a fine is constitutionally excessive calls for the applica-
tion of a constitutional standard to the facts of a particular
case, and in this context de novo review of that question
is appropriate,” citing Ornelas v. United States, 517 U.S.
690, 697 (1996)); United States v. Frederick, 182 F.3d 496,
499 (7th Cir. 1999) (distinguishing constitutional issues,
where de novo review of a mixed question is often appro-
priate, from others). We have also held that “[t]he issue of
waiver [of one’s right to testify] is a question of fact.”
Galowski v. Murphy, 891 F.2d 629, 635 (7th Cir. 1989).
These holdings are consistent with our analysis in a
comparable context—whether a defendant waived his
Miranda rights, which we review de novo. United States v.
Smith, 218 F.3d 777, 780 (7th Cir. 2000). Any findings of
fact or credibility determinations, however, are reviewed
for clear error. United States v. Walker, 272 F.3d 407, 412
(7th Cir. 2001).
  We take this occasion to clarify what we believe is
implicit in our earlier rulings. Where the district court
has made a specific ruling on the underlying facts relat-
ing to a waiver, we review those findings for clear error,
as in Galowski and Walker. The determination of whether,
in the final analysis, the defendant’s constitutional right
to testify was infringed, is a mixed question of law and
fact that we review de novo. The standard established in
Chapman v. California, 386 U.S. 18 (1967), applies to a
denial of the right to testify. Alicea v. Gagnon, 675 F.2d
913, 925 (7th Cir. 1982). Therefore, if there was no valid
waiver, then the government must show that the error
was harmless beyond a reasonable doubt. Chapman, 386
U.S. at 24.


                             B
   Turning to the merits of the waiver issue, we consider
first Stark’s claim that he believed he was unable to
6                                             No. 06-1916

testify, and the district court’s conclusion that, even if
Stark held such a belief, he did not signal it to the court
in any way. “[W]e have repeatedly held that the Con-
stitution does not require a trial court to question a
defendant sua sponte in order to ensure that his deci-
sion not to testify was undertaken knowingly and intelli-
gently unless there is some indication that the defendant
has been prevented from exercising that right.” Manjarrez,
258 F.3d at 623. We have been concerned about the risk
of “discourag[ing] district court judges from directly
questioning a defendant concerning his decision not to
testify for fear that in so doing judges will insert them-
selves into a sensitive aspect of trial strategy, thereby
intruding inappropriately on the attorney-client rela-
tionship.” Id. at 624. This is not to say, however, that
judges should never question a defendant directly about
whether he understands his right to testify and whether
he is voluntarily waiving that right. To the contrary, if
defense counsel informs the judge that the defendant
does not intend to testify, the judge may ask the de-
fendant whether he generally understands that he is
entitled to take the stand. Depending on his answer, the
judge may also ask follow-up questions to determine
whether the defendant had discussed his decision not to
testify with his lawyer and to ensure that the final deci-
sion represented the defendant’s personal choice. In the
end, however, the court usually retains discretion either
to engage in this kind of colloquy or not. Before such
an inquiry is required, there must be something more
than general speculation. Criminal defendants and their
lawyers often do not see eye to eye. If a district court
were compelled to inquire into every potential conflict it
thought it had spotted, there would be a risk of multiple,
unnecessary proceedings, some of which might even
imperil the attorney-client relationship. More is needed
before this kind of judicial duty arises.
No. 06-1916                                                7

  One such indication that a defendant is not voluntarily
waiving his right to testify is when the judge becomes
aware that there is “a conflict between the defendant and
his lawyer on the matter” of whether the defendant
should testify. Id. at 624. Other circuits have also drawn
this line. The Sixth Circuit has employed a similar limita-
tion, upholding the defendant’s waiver where “[t]here is
no evidence in the record that Defendant attempted to
communicate with and ‘alert the trial court’ to a disagree-
ment with defense counsel regarding whether Defendant
should take the stand.” Webber, 208 F.3d at 552 (emphasis
added); see also United States v. Sys. Architects, Inc., 757
F.2d 373, 375-76 (1st Cir. 1985) (holding there is “no
constitutional or statutory mandate that a trial court
inquire further into a defendant’s decision to not testify
under the facts here” where “the record [does not] con-
tain anything which would alert the court to a disagree-
ment between attorney and client regarding whether
they should take the stand”); United States v. Penny-
cooke, 65 F.3d 9, 11 (3d Cir. 1995) (“We therefore hold
that usually a court need not advise a defendant either
directly or through a colloquy with counsel of his or her
right to testify.”); United States v. McMeans, 927 F.2d
162, 163 (4th Cir. 1991) (adopting the Ninth Circuit’s
standard in Martinez, discussed below, and holding that
“[t]o waive the right, all the defendant needs to know
is that a right to testify exists”); United States v.
Bernloehr, 833 F.2d 749, 751-52 (8th Cir. 1987) (holding
that defendant waived right to testify by silence at trial on
the issue); United States v. Martinez, 883 F.2d 750, 760
(9th Cir. 1989), vacated on other grounds, 928 F.2d 1470
(9th Cir. 1991) (same); United States v. Janoe, 720 F.2d
1156, 1161 (10th Cir. 1983) (same).
  A few circuits have expressed concerns about requir-
ing a defendant to speak up about her right to testify at
trial when all other expressions on her behalf are made
8                                               No. 06-1916

by her attorney. See United States v. Ortiz, 82 F.3d 1066,
1071 (D.C. Cir. 1996) (noting “the impracticability of
placing a burden on the defendant to assert a right of
which he might not be aware or to do so in contraven-
tion of the court’s instructions that the defendant speak
to the court through counsel” and holding that indica-
tions of ineffective assistance of counsel might require
court inquiry about the defendant’s decision not to testify);
United States v. Teague, 908 F.2d 752, 759-60 (11th Cir.
1990) (discussing the logical error in “requir[ing] a defen-
dant to rely on his attorney to be the sole spokesperson in
the courtroom, while at the same time holding that by
failing to speak out at the proper time a defendant has
made a knowing, voluntary and intelligent waiver of a
personal right of fundamental importance such as the
right to testify”), rev’d on other grounds, 953 F.2d 1525
(11th Cir. 1992) (en banc) (concluding that “the appropri-
ate vehicle for claims that the defendant’s right to testify
was violated by defense counsel is a claim of ineffec-
tive assistance of counsel”). The Second Circuit has held
that “absent something in the record suggesting a know-
ing waiver, silence alone cannot support an inference of
such a waiver,” but that court still concluded that waiver
can be found in such a case where the “[t]rial counsel’s
detailed description of events was eminently credible.”
Chang v. United States, 250 F.3d 79, 82, 86 (2d Cir. 2001).
  In the present case, Stark argues that “[t]he evidence
establishes that Mr. Stark did not acquiesce in any
strategic decision regarding whether he should testify.”
The record belies such a conclusion. In a pre-trial hearing,
at which Stark was present, the court specifically referred
to Stark’s right to testify and asked the defense attorney
to inform the court at a later date whether or not Stark
would testify. This shows, at a minimum, that Stark
was aware that he had the right to testify.
No. 06-1916                                                9

  Although there is no doubt that there were disputes
between Stark and his attorney, there were no indications
that these disputes related to his decision whether to
testify. Nor were there any indications that Stark’s
attorney might not properly advise his client about that
right or that Stark might be incapable of fully consider-
ing his attorney’s advice. At each point in the trial that
Stark cites as an indication of attorney-client conflict, the
district court allowed Stark to express his concerns openly.
For example, when Stark gave the judge a letter through
his lawyer, the judge accepted it from the lawyer (who
handed the sealed letter to the judge unread) and prom-
ised to address it after the next break. The judge held
two closed sessions with Stark and his attorney, during
which Stark complained at length and in detail about
not being able to find and prepare some of the addi-
tional witnesses he wanted and not having enough time to
review all the documents the government had produced.
The district court did not cut him short. For example,
Stark told the district court:
    I am just unhappy about the way I was represented.
    I am really unhappy about it. I spent two years trying
    to get my story out, two years, and this is the second
    lawyer, and I thought we had an agreement that we
    would subpoena whatever witnesses and we would
    find whatever witnesses. I thought we was going to
    get investigators. . . .
Stark also told the court:
    I don’t know, to me it is like a snowball going downhill.
    It is kind of out of control and I don’t know what to do.
    I don’t know what the Court’s powers is. I know for
    sure that if I don’t have time to go through the Gate-
    way records . . . [I can’t] show that I really didn’t
    spend this money and that was really important
    records to me, and I have asked Ted [defense attorney]
    since I hired him [to get the records].
10                                             No. 06-1916

None of these complaints even hinted that Stark believed
that he could not testify. The court had no indication that
the defendant’s desire to testify was at issue, and without
such an indication, it was not required to inquire.
Manjarrez, 258 F.3d at 623. (Moreover, Stark’s lengthy
explanations of his frustrations without any reference
to his alleged belief he was not allowed to testify more
likely suggests that this was not one of Stark’s concerns.)
Perhaps if the court had refused to hear Stark’s specific
complaints but knew that Stark was complaining gen-
erally about how to present his case, it would have erred
in not inquiring about Stark’s decision whether to testify.
But that is not what happened here.
  There are only a few cases in which this court has held
that a defendant did not properly waive the right to
testify. These decisions are interesting only for the way
in which they contrast with Stark’s case. In Ward v.
Sternes, this court held that a defendant had not waived
his right to testify where the defendant had “brain injuries
[that] severely disrupted his ability to think, reason, take
in verbal information, and understand and use language
to express his understanding” and who responded “I guess,
I don’t know” to the court’s question as to whether he
agreed with his lawyer’s advice not to testify. 334 F.3d
696, 705-06 (7th Cir. 2003). In Ortega v. O’Leary, the
defendant told the court during the trial that he wanted
to testify. 843 F.2d 258, 261 (7th Cir. 1988). There is no
definitive list that we could create that would describe
when a district court must explore a defendant’s deci-
sion not to testify. We can say only that a finding that
a waiver was not made knowingly and voluntarily must
be based on something concrete, such as a clear indica-
tion that the defendant disagreed with her lawyer about
testifying or direct evidence that the defendant had not
made a valid waiver, such as the evidence of the defen-
dant’s diminished competency in Ward. Presumably, if
No. 06-1916                                               11

the defendant told the court outright that he wanted to
testify but his lawyer was standing in the way, the court
would correct any misunderstandings immediately.
  Even using the less restrictive standard from the Sec-
ond Circuit’s decision in Chang, or the D.C. Circuit’s
analysis in Ortiz, we still would not accept Stark’s argu-
ment on this issue. The Ortiz court added an additional
consideration that would require court inquiry—evidence
of ineffective assistance of counsel—but it did not endorse
a general inquiry rule. 82 F.3d at 1071. Chang held that
although silence is not enough to show waiver, a defense
attorney’s post-trial credible testimony sufficed to show
waiver in the absence of contradicting evidence other
than the defendant’s general statements. 250 F.3d at 86.
  In the post-trial hearing on the motion for a new trial
in this case, Stark’s trial attorney testified that Stark’s
proffer included an admission that the tractors at issue
were stolen. If Stark had testified, that statement would
have been admissible, and highly prejudicial. The attor-
ney explained in detail why he had advised Stark not to
testify, noting both the admission and Stark’s prior
criminal history, which included some of the identical
crimes. The attorney also testified that Stark told him he
did not want to take the stand because “[t]he thought of
going up on the stand and saying [his] son was a thief, he
just said he wouldn’t do it.” The district court found the
attorney’s testimony to be more credible than Stark’s,
concluding “to the extent I have to choose between Mr.
Stark’s version and Mr. Barylske [the attorney], I would
choose Mr. Barylske. He was more persuasive. His ratio-
nale made more sense.” Thus, even if silence were not
enough in this case, the credibility finding in the post-trial
hearing, which Stark has given us no reason to disturb,
defeats Stark’s claim on appeal.
12                                              No. 06-1916

                             III
  Stark’s second argument for reversal rests on his claim
that the prosecutor impermissibly commented on his
failure to testify in the closing argument. He is correct
that the prosecution cannot make certain “[i]ndirect refer-
ences to the defendant’s failure to testify,” Burke v. Greer,
756 F.2d 1295, 1300 (7th Cir. 1985), but here Stark
attempts to extend this principle beyond its reach. Prose-
cutors are allowed to comment on the weakness of the
defendant’s case in closing arguments. United States v.
Snook, 366 F.3d 439, 445 (7th Cir. 2004). Indirect com-
ments that could refer to the defendant’s failure to testify
may violate the Fifth Amendment, but “only if (1) the
prosecutor manifestly intended to refer to the defendant’s
silence or (2) a jury would naturally and necessarily take
the remark for a comment on the defendant’s silence.”
United States v. Mietus, 237 F.3d 866, 871 (7th Cir. 2001).
  We analyze the indirect comment at issue “in context.”
Id. at 872; see United States v. Robinson, 485 U.S. 25, 33
(1988). For example, in Mietus, we concluded that
     [t]he thrust of the prosecutor’s argument was that the
     defense team’s ‘words’ were not consistent with the
     evidence of the defendants’ actions. The statements
     did not draw the jury’s attention to anything Mietus
     himself did or did not say; rather, they referred to the
     ‘words’ of Szarflarski [another defendant] and of the
     defendants’ counsel. To the extent that the statements
     referred to Szarflarski’s testimony, they can be seen
     as simple commentary on the evidence. The state-
     ments were not manifestly intended to suggest that
     Mietus’s silence was evidence of his guilt, nor would a
     jury naturally and necessarily take them that way.
237 F.3d at 872.
  Stark relies on a First Circuit case to argue that a
government’s statement that a defendant is “hiding” at
No. 06-1916                                                 13

trial is necessarily a reference to the defendant’s choice not
to testify. In United States v. Hardy, 37 F.3d 753, 757 (1st
Cir. 1994), the First Circuit held that the prosecution’s
closing argument statement that the defendants are
“still running and hiding today” was an impermissible
reference because it made an inappropriate analogy
between the running and hiding the defendants allegedly
did on the night of the crime and their lack of testimony
at trial. But there was more to Hardy than this one
analogy. At trial, the prosecutor repeatedly had referred
to the defendants’ “hiding,” even though this comment
could not be understood as a response to any of the defen-
dants’ specific evidence or theories of the case. Instead,
it made sense only as a comparison of the defendants’ trial
behavior with the fact that the defendants were found
by the police actually hiding just moments after the crime.
37 F.3d at 756.
  In the present case, the prosecution used the word
“hiding” in its closing arguments as well. Because there
was no objection to this statement when it was made, we
review it for plain error. See United States v. DeGeratto,
876 F.2d 576, 585 (7th Cir. 1989) (“Unless defense coun-
sel’s original continuing objection to the . . . inquiry carries
over to the closing argument, we must review the refer-
ence . . . in closing argument under the plain error stan-
dard.”). To show plain error, Stark must show “(1) there
[wa]s indeed an error, (2) it [wa]s plain, clear or obvious,
and (3) it affect[ed his] substantial rights.” United States
v. Walker, 447 F.3d 999, 1005 (7th Cir. 2006). If the
answers to all three of those questions are affirmative,
then we still must consider whether the interests of the
judicial system more broadly require correction of the
error. Id. We consider first whether the inclusion of the
prosecution’s statements was error at all.
  Looking at the prosecution’s statements in context, we
conclude that they were not allusions to Stark’s decision
14                                              No. 06-1916

not to testify. Rather, the word “hiding” was a direct
response to the theory of the defense on which Stark had
relied throughout the trial. The most potentially trouble-
some line in the prosecution’s closing argument was
“[t]hroughout this trial [Mr. Stark] was hidden behind his
son.” But as in Mietus and Hardy, this statement must
be assessed in context. Stark’s attorney contended
throughout trial that Stark had no knowledge that the
tractors on his property were stolen, but that only Danny
knew the illegitimate origin of the tractors. Thus, Stark’s
defense relied on the contention that Danny, rather than
Stark himself, was to blame. Characterizing this de-
fense as Stark “ ‘hid[ing]’ behind his son” is accurate. It
does not show a manifest intent to refer to Stark’s silence,
nor would a jury naturally and necessarily take the
remark in that light. As in Mietus, the prosecution’s
closing argument simply pointed out “that the defense
team’s [theory of the case was] not consistent with the
evidence of the defendants’ actions.” 237 F.3d at 872.
  During the trial, the prosecution presented evidence
that Stark had Danny perform the more overt actions of
the criminal operation—stealing the tractors, making the
deliveries of the stolen tractors—but that Stark re-
mained in charge. Given such facts, it seems likely that
the prosecutor’s statements would have been the same if
Stark had testified. The same could not be said about the
prosecution’s statement in Hardy. Therefore, Stark’s
argument fails at the first stage of the plain error analysis
because he has not shown that his rights were violated.


                            IV
  The last issue is whether Stark was denied effective
assistance of counsel. This claim is governed by the
Supreme Court’s decision in Strickland v. Washington, 466
U.S. 668 (1984). Stark “must show both that his attor-
No. 06-1916                                               15

ney’s performance was outside the range of professionally
competent assistance and that the deficient performance
denied him a fair trial.” United States v. Banks, 405 F.3d
559, 569 (7th Cir. 2005). Reversal is appropriate only
“when it has been shown with a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. We note
that Stark has opted to include this issue in his direct
appeal, even though it is normally preferable to wait until
a motion under 28 U.S.C. § 2255, so that a complete
record can be developed.
  Stark argues that his attorney was ineffective for three
reasons: he failed to secure an on-the-record colloquy
about Stark’s decision not to testify; he failed to object to
the prosecution’s closing argument; and he too referred
to Stark’s failure to testify in his closing argument. The
attorney testified about Stark’s decision not to testify.
According to this testimony, which the district court
credited, Stark himself agreed that he would not testify.
The lack of an on-the-record colloquy is therefore unim-
portant. In addition, the district court found that this
decision reflected a reasonable trial strategy. On appeal,
Stark has given us no reason to conclude otherwise. The
failure to object to the prosecution’s closing argument is
also not a proper grounds for this claim because the
prosecution’s statement was not improper, as discussed
above.
   The only remaining issue is whether the defense coun-
sel’s own closing argument could be viewed as such an
impermissible reference to Stark’s failure to testify that
it rendered the lawyer’s assistance to Stark constitution-
ally ineffective. In his closing argument, Stark’s attorney
said:
    My client, Danny Stark [Sr.] over here, has not said,
    and I want to get this straight, has not said in the
16                                                No. 06-1916

     course of this trial or at any other point in his life, one
     bad word about his son. He has not hired me to hide
     behind his son. He hired me . . . to prove his inno-
     cence. . . .
     In the course of that, we, of course, came across
     several investigations and the inevitable truth. The
     inevitable truth is that [Stark’s] son was involved in
     the theft of tractors. It doesn’t matter that [Stark]
     won’t say it. It doesn’t matter that he can’t say it.
     What matters is I am his defense attorney and it was
     my choice to pursue a defense which showed the truth
     of what happened. That was my choice. That’s what
     I pursued. I take exception to the Government’s
     attempt to belittle my client, to belittle his relation-
     ship with his son.
  For his claim to succeed, Stark must “overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Strick-
land, 466 U.S. at 689 (internal quotations omitted). We
have no trouble finding that these statements were part
of a responsible trial strategy. Although Stark’s choice
not to testify may have been called to the jury’s mind,
this was not inevitable. More likely, the jury understood
defense counsel to be trying to persuade it to shift the
responsibility for the criminal activities away from Stark
so that he would appear more sympathetic to the jury.
This was a reasonable choice, and likely Stark’s best
strategy at closing arguments given the evidence im-
plicating Danny and him together. After all, Danny
delivered stolen tractors to Stark’s property in the middle
of the night. In addition, one of the co-conspirators,
William Mourey, testified about a night of stealing tractors
with Danny and Stark’s girlfriend’s 15-year-old son. He
testified that the three of them drove the three stolen
tractors in the middle of the night to Stark’s property
No. 06-1916                                            17

while Stark drove back and forth past the threesome
while they made their way to his place.
  On the record as it stands, Stark has not overcome the
presumption that his attorney’s actions were part of a
reasonable trial strategy, let alone that his attorney’s
performance was outside the range of professionally
competent assistance and denied him a fair trial. We thus
reject the argument that Stark’s lawyer rendered inef-
fective assistance.


                           V
  At the trial, Stark faced compelling evidence against
him. We are satisfied based on this record that Stark’s
attorney mounted a reasonable and appropriate defense,
and that the district court committed no reversible error.
We therefore AFFIRM Stark’s conviction.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—10-17-07
