Juan Ignacio Blanco  


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Clayton Anthony FOUNTAIN





Classification: Murderer
Characteristics: Reputed member of the Aryan Brotherhood
Number of victims: 5
Date of murders: 1974 - 1983
Date of birth: 1955
Victims profile: A staff sargeant / Three prisoners and one guard
Method of murder: Shooting / Stabbing with homemade knife
Location: Philippines / Kansas/Illinois, USA
Status: Sentenced to life imprisonment. Died in prison on July 12, 2004

Former Federal prisoner Clayton Anthony Fountain, who died in the Federal Medical Facility in Springfield, Missouri, on 12th July 2004.

Clayton was born in Fort Benning, Georgia in 1955 and enlisted in the US Marine Corps in the early 70s. He allegedly shot and killed a staff sargeant at Grande Island, Phillippines in 1974, for which offence he was incarcerated at the Disciplinary Barracks at Fort Leavenworth until 1976, when he was transferred into the Federal system, at Leavenworth intially, then Marion.

Clayton was found guilty of four additional murders whilst in Leavenworth/Marion and was ultimately locked down in the SHU at the FedMed on 'no human contact status', doing life without the possibiity of parole.

In the latter years of his life Clayton converted to Catholicism, took several educational courses, mostly in Theology or related disciplines and became associated with a Trappist order of Cistercian monks at Ava, Missouri, who postumously accepted him as a 'lay brother' after his sudden and unexpected death of a heart attack.




Nos. 84-1939, 84-1940, 84-1949

February 15, 1985, Argued
July 8, 1985, Decided

POSNER, Circuit Judge.

   We have consolidated the appeals in two closely related cases of murder of prison guards in the Control Unit of the federal penitentiary at Marion, Illinois -- the maximum-security cell block in the nation's maximum-security federal prison -- by past masters of prison murder, Clayton Fountain and Thomas Silverstein.

   Shortly before these crimes, Fountain and Silverstein, both of whom were already serving life sentences for murder, had together murdered an inmate in the Control Unit of Marion, and had again been sentenced to life imprisonment. See United States v. Silverstein, 732 F.2d 1338 (7th Cir. 1984). After that, Silverstein killed another inmate, pleaded guilty to that murder, and received his third life sentence.

   At this point Fountain and Silverstein had each killed three people. (For one of these killings, however, Fountain had been convicted only of voluntary manslaughter. And Silverstein's first murder conviction was reversed for trial error, and a new trial ordered, after the trial in this case.)

   The prison authorities -- belatedly, and as it turned out ineffectually -- decided to take additional security measures. Three guards would escort Fountain and Silverstein (separately), handcuffed, every time they left their cells to go to or from the recreation room, the law library, or the shower. (Prisoners in Marion's Control Unit are confined, one to a cell, for all but an hour or an hour and a half a day, and are fed in their cells.) But the guards would not be armed; nowadays guards do not carry weapons in the presence of prisoners, who might seize the weapons.

   The two murders involved in these appeals took place on the same October day in 1983. In the morning, Silverstein, while being escorted from the shower to his cell, stopped next to Randy Gometz's cell; and while two of the escorting officers were for some reason at a distance from him, reached his handcuffed hands into the cell. The third officer, who was closer to him, heard the click of the handcuffs being released and saw Gometz raise his shirt to reveal a home-made knife ("shank") -- which had been fashioned from the iron leg of a bed -- protruding from his waistband. Silverstein drew the knife and attacked one of the guards, Clutts, stabbing him 29 times and killing him. While pacing the corridor after the killing, Silverstein explained that "this is no cop thing. This is a personal thing between me and Clutts. The man disrespected me and I had to get him for it." Having gotten this off his chest he returned to his cell.

   Fountain was less discriminating. While being escorted that evening back to his cell from the recreation room, he stopped alongside the cell of another inmate (who, however, apparently was not prosecuted for his part in the events that followed) and reached his handcuffed hands into the cell, and when he brought them out he was out of the handcuffs and holding a shank. He attacked all three guards, killing one (Hoffman) with multiple stab wounds (some inflicted after the guard had already fallen), injuring another gravely (Ditterline, who survived but is permanently disabled), and inflicting lesser though still serious injuries on the third (Powles). After the wounded guards had been dragged to safety by other guards, Fountain threw up his arms in the boxer's gesture of victory, and laughing walked back to his cell.

   A jury convicted Fountain of first-degree murder, 18 U.S.C. § 1111, and of lesser offenses unnecessary to go into here. The judge sentenced him to not less than 50 nor more than 150 years in prison, and also ordered him, pursuant to the Victim and Witness Protection Act of 1982, Pub. L. 97-291, 96 Stat. 1248 (codified in 18 U.S.C. §§ 3579-3580 and elsewhere), to make restitution of $92,000 to Hoffman's estate, $98,000 to Ditterline, and nearly $300,000 to the Department of Labor. The money for the Department was to reimburse it for disability, medical, and funeral payments that it had made or would make to Ditterline, Powles, and Hoffman's estate. The money for Ditterline was to compensate for past and future lost earnings not compensated 794 for by the Department of Labor and for unreimbursed medical expenses.

   Silverstein and Gometz were tried together (also before a jury, and before the same judge who presided at Fountain's trial) for the murder of Clutts, and both received the same 50 to 150 year sentences as Fountain and were ordered to pay restitution to Clutts's estate and to the Department of Labor of $68,000 and $2,000 respectively. Fountain and Silverstein are now confined in different federal prisons, in what were described at argument as "personalized" cells.

   The appeals involve challenges to rulings at trial; Gometz's challenge to the sufficiency of the evidence; and, of particular interest, the defendants' challenges to the sentences.

   1. At both trials the judge ordered the defendants and their inmate witnesses to be shackled at the ankles while in court. Curtains at the counsel tables shielded the defendants' shackles from the jury's view but apparently the shackles were visible when witnesses were en route to or from the witness stand; and Fountain and Silverstein each testified in his own trial. Although disfavored for obvious reasons, the shackling of inmate witnesses in a jury trial is permissible in extremis See, e.g., Harrell v. Israel, 672 F.2d 632, 635-36 (7th Cir. 1982) (per curiam), and cases cited there. The prudence of requiring shackles in this case was shown by Fountain's and Silverstein's extraordinary history of violence in the face of maximum security precautions, the fact that most of the witnesses were murderers, and above all the fact that, as we shall explain when we discuss the sentencing issues, the defendants are wholly beyond the deterrent reach of the law. If they were not shackled, there would be a grave danger of their attacking people in the courtroom or trying to escape. Silverstein's long disciplinary record includes one escape, while Gometz 's includes three episodes of planning and attempting escape. The prejudice caused by shackling was mitigated by the jury's awareness that the entire dramatis personae in the two cases were prison inmates -- most of them murderers -- and guards. The shackles could not have come as much of a surprise. The judge did not abuse his discretion in requiring them.

   On the day of trial Silverstein's lawyer requested the judge to appoint a psychiatrist. The judge refused, saying, "I don't think that is within my prerogative to do that and the court would not grant a continuance at this late date for that." Silverstein points out that the judge was wrong to think -- if that is what he did think -- that he had no power to appoint a psychiatrist (see 18 U.S.C. § 3006A(e)), even on the eve of trial. It is true that Rule 12.2 of the Federal Rules of Criminal Procedure requires a defendant who wants to make an issue of his mental condition and present expert testimony on the issue to notify the government within specified time limits that were exceeded here, but the court can allow late notice "for cause shown." It is also true that Silverstein's defense was to be, not insanity, but self-defense or compulsion, and he wanted the psychiatrist to testify about the effects on his psyche of what he contends was Clutts's harassment of him. But this is not an improper forensic use of psychiatry. Cf. Rule 12.2(b). The court can always, for cause, on the eve of trial or for that matter during trial, amend the witness list or appoint an expert witness for an indigent defendant, as Silverstein was.

   But we would be reading the transcript of the judge's oral ruling with too jaundiced an eye if we held that he failed to exercise his discretion because he didn't realize he had any. It is more likely that the judge meant that since Silverstein had given no good reason why his request for a psychiatrist came so very late in the day, and since the proposed use of the psychiatrist was sufficiently unusual to require a fuller explanation of why it justified postponing the trial, the judge was not required to grant a continuance in order to follow up this will o' the wisp. The last-minute grant of a continuance can cause serious inconvenience to judge, jury, opposing 795 counsel, witnesses, and other litigants. The denial of a request for one will rarely be upset on appeal. See, e.g., United States v. Solina, 733 F.2d 1208, 1211 (7th Cir. 1984).

   On direct examination Silverstein's lawyer asked him whether he had been convicted of various crimes, including two murders, and Silverstein answered "yes." On cross-examination the prosecutor asked the same questions but in more detail (e.g., "March 3rd, 1980, United States Penitentiary at Leavenworth, you killed an inmate, didn't you?"), ending with, "You are a peaceable man?" -- to which Silverstein answered, "I like to think so." Silverstein concedes that his prior convictions were admissible to challenge his credibility as a witness, see Fed. R. Evid. 609(a)(1), but argues that the prosecutor's harping on those convictions in cross-examination and ending with a sarcastic question about peaceableness made the cross-examination unnecessarily prejudicial.

   We do not think the prosecutor dwelt on Silverstein's prior crimes in too great detail. The questions on direct examination about prior crimes had been perfunctory and the prosecutor was entitled to amplify them slightly, which is all he did. In previous cases in which error has been found in the prosecutor's inquiring about the details of an admitted crime, see 3 Weinstein & Berger, Weinstein's Evidence para. 609[05], at p. 609-86 n. 13 (1982), the prosecutor had harped at greater length and in fuller detail on the particulars of the prior crimes.

   But the question whether Silverstein is a "peaceable man" was not a proper question with which to challenge his credibility. Violent men are not necessarily liars, and indeed one class of violent men consists of those with an exaggerated sense of honor. Now Silverstein had testified on direct examination that he had killed Clutts because Clutts was planning to let Cubans out of their cells to kill him, and on cross-examination had added that he hadn't been "out to hurt anybody or anything." If this statement could be construed as putting the peaceableness of his character in issue, then he laid himself open to cross-examination designed to show the violence of his character. See Fed. R. Evid. 404(a)(1); United States v. Jordan, 722 F.2d 353, 358 (7th Cir. 1983). It can be argued that by testifying that he hadn't intended to hurt anybody Silverstein was claiming to have a peaceable character, and if so the prosecutor's question was proper. But the argument is a weak one. To deny that one intended harm on a particular occasion is not to claim a generally peaceable character. And it cannot be right that merely by claiming self-defense (which probably is all that Silverstein meant to do in saying that he had not intended to hurt anybody or anything) a defendant puts his whole character in issue; that would make mincemeat of the limitations in Rule 404(a) on the use of character evidence.

   But a more realistic view of the question about Silverstein's peaceable character is that it was said in jest -- ill-timed but completely harmless. It was obvious to the jury both that Silverstein's character is not peaceable and that he did not have a good defense of self-defense even if he honestly and reasonably thought (which is itself nearly inconceivable) that Clutts was about to loose a bunch of murderous Cubans on him. Silverstein's counsel acknowledges that "the explanation given by the defendant for his conduct was certainly inadequate in a reasonable person's mind to justify the slaying of a prison guard." The menace was not imminent enough to justify killing Clutts, especially when Silverstein had an alternative remedy -- to complain to the other guards. For he made clear after killing Clutts that he had had no grievance against them; he must therefore not have thought that they had been in cahoots with Clutts to loose the Cubans on him. These points are related; the reason for limiting the right of self-defense to cases of imminent danger is that if the danger is more remote the potential victim can invoke the aid of the authorities. See, e.g., LaFave & Scott, Handbook on Criminal Law § 53, at 796 p. 394 (1972). Lethal self-help is a last resort.

   Fountain at his trial testified that he too had been acting in self-defense when he attacked his guards; and while he admitted that he had had a knife, he testified that it was for self-defense. This testimony laid him open to the cross-examination of which he complains: an inquiry about his prior activities with a knife, which included killing an inmate whom he stabbed 57 times, crying "die, bitch, die." This evidence does not have the infirmity of the question about Silverstein's character. Fountain made an issue of his purpose in having a knife; and evidence that his previous use of a knife in prison was for attack rather than defense was relevant to cast doubt on his stated purpose. Prior wrongful acts can be put in evidence to illuminate intent and modus operandi. Fed. R. Evid. 404(b). If Silverstein had previously attacked prison staff, this might have been admissible on the issue of his intent in attacking Clutts; if he had used a shank before, then like Fountain he could have been cross-examined about that prior use. But just by claiming self-defense one does not open up one's entire character to attack on cross-examination.

   Fountain complains about the court's refusal to subpoena as witnesses inmates Bruscino and Gometz. He says they would have contradicted a guard who testified that Fountain, shortly after the murder, had told Bruscino, who was in the second cell down the corridor from Fountain (Gometz was in the cell between them), that "it would have been fun if he [Fountain] could have killed Hoffman, Jr." -- the son of the guard Fountain had killed, and also a guard at Marion. The judge said, "the fact that somebody else such as Gometz and Bruscino would say that they didn't hear it, I don't think is probative of the fact that it was said or not said. And Mr. Fountain knows whether it was said or not said, and he can deny it or not and that will be up to him . . . . The Court finds itself in this position to some extent, that I notice that these witnesses repeatedly are called for almost every case, when any one of them are involved. The Court is extremely skeptical about the veracity of all of them and I am somewhat prone to believe that they testify and are willing to testify favorable to their friends on whatever occasion the circumstances require."

   Although the judge could not properly refuse to subpoena witnesses "necessary to an adequate defense" -- the test under Rule 17(b) of the Federal Rules of Criminal Procedure for whether the court must subpoena a witness for an indigent defendant (as Fountain was) -- merely because he thought they would lie, we do not think this was the judge's ground for refusing; it was an observation made in passing. The ground was lack of necessity. The fact that Gometz may not have overheard a conversation between Fountain and Bruscino was not strong evidence that no such conversation had taken place. All the inmates in the Control Unit are in different cells, and it cannot be that Gometz hears all the chatter that goes on between other cells. Bruscino, however, was the other party to the conversation with Fountain about which the guard testified. The fact that Fountain (who the judge knew intended to take the stand) would deny the conversation would carry little weight with a jury; and the failure of the other party to the alleged conversation to testify for Fountain would further enhance the guard's credibility.

   But we think it was a permissible judgment -- at least in hindsight, which seems the proper perspective when deciding whether reversible error has occurred -- that Bruscino's presence was unnecessary to an adequate defense. Necessary implies at the most vital (cf. United States v. Duggan, 743 F.2d 59, 82 n.8 (2d Cir. 1984); United States v. Valenzuela-Bernal, 458 U.S. 858, 867, (1982)), at the least helpful (see United States v. Barker, 553 F.2d 1013, 1020 (6th Cir. 1977)); and testimony that could not reasonably be expected to make a difference to the outcome of the trial is not necessary in either sense. 797 Bruscino's long criminal record, which includes an assault on a guard, see United States v. Solina, supra, as well as the murder of an inmate, see United States v. Bruscino, 687 F.2d 938 (7th Cir. 1982) (en banc) -- all of which would have been brought out on cross-examination -- makes it most unlikely that the jury would have believed him. Cf. United States v. Solina, supra, 733 F.2d at 1212-13. And if it had believed him, still the case against Fountain, even without the conversation, was overwhelming. This is so even if we indulge the further and speculative assumption that had the jury believed Bruscino and hence disbelieved the guard it would have paid less heed to the other government witnesses.

   The important thing, in short, is not that the judge thought that Bruscino would lie (though he did think this) but that the jury would have thought so and that even if it had believed Bruscino it would not have acquitted Fountain. The same is true even more clearly with regard to the judge's refusal to subpoena Gometz. We recognize the danger of using the requirement that the subpoenaed witness be "necessary to an adequate defense" to prevent the clearly guilty defendant who is indigent from putting on any defense at all. But we shall worry about such a case when it arises. The court subpoenaed five inmate witnesses at Fountain's request. Given the security problems that such witnesses pose -- the practice of "writting" prisoners around the country to testify as witnesses in other prisoners' cases figured in one of Silverstein's previous murders, see United States v. Silverstein, supra, 732 F.2d at 1342 -- the court was entitled to make Fountain limit his request. If Bruscino was so important to his case, Fountain could have dropped one of the other five. He was not entitled to empty Marion's Control Unit into the courtroom.

   Fountain also objects to testimony by a guard that two months after the murder Fountain had said to him, "what are you looking at, bitch?," and then asked him whether, when it was his turn to die, he "would scream like the other two bitches screamed." Fountain argues that the alleged conversation was irrelevant and that it wasn't even shown that he knew that another guard had been killed the day he murdered Hoffman. Yet Fountain testified that he knew of Clutts's murder the same day it happened. The government argues that it can be inferred from the conversation itself that Fountain had learned of Clutts's death through the always efficient prison grapevine (or from Gometz, who according to Fountain was in a position to overhear his conversations and therefore to communicate with him). Thus the reference to the "two bitches" could be interpreted as an admission that Fountain had killed Hoffman. The problem with this argument is that Fountain's killing of Hoffman was never an issue; the issue was whether he had killed him in self-defense; and the conversation was not an admission that he had not been acting in self-defense. It was however evidence of hostility to Marion guards, suggesting a motive other than self-defense for Fountain's killing of Hoffman, and hence admissible after all. At all events, any error was a harmless one; the circumstances of Fountain 's mad dog attack on three guards negated any inference of self-defense.

   The defendants did not get a perfect trial, but they got a fair trial. That was all they were entitled to.

   2. Gometz argues that the evidence was insufficient to convict him of aiding and abetting Silverstein in murdering Clutts. This argument requires us to consider the mental element in "aiding and abetting," on which see the useful discussions in LaFave & Scott, supra, § 64, pp. 505-12, and Perkins & Boyce, Criminal Law 745-48 (3d ed. 1982). Under the older cases, illustrated by Backun v. United States, 112 F.2d 635, 636-37 (4th Cir. 1940), and Bacon v. United States, 127 F.2d 985, 987 (10th Cir. 1942), it was enough that the aider and abettor knew the principal's purpose. Although this is still the test in some states (see e.g., Sanders/Miller v. Logan, 710 F.2d 645, 652 (10th Cir. 1983)), after the 798 Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, (1949), adopted Judge Learned Hand's test -- that the aider and abettor "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed," United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) -- it came to be generally accepted that the aider and abettor must share the principal's purpose in order to be guilty of violating 18 U.S.C. § 2, the federal aider and abettor statute. See, e.g., United States v. Paone, 758 F.2d 774, 775-76 (1st Cir. 1985). But as both LaFave & Scott (at p. 509) and Perkins & Boyce (at p. 746) point out, there is support for relaxing this requirement when the crime is particularly grave. The holding of Backun itself may have been superseded, but a dictum in Backun -- "One who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price for the gun," 112 F.2d at 637 -- makes so compelling an appeal to common sense that Gometz's opening brief in this court, after quoting the dictum, states, "Defendant Gometz has no quarrel with this rule of law."

   In People v. Lauria, 251 Cal. App. 2d 471, 481, 59 Cal. Rptr. 628, 634 (1967) -- not a federal case, but illustrative of the general point -- the court, en route to holding that knowledge of the principal's purpose would not suffice for aiding and abetting of just any crime, said it would suffice for "the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use." See also Nash v. Israel, 707 F.2d 298, 303 n.8 (7th Cir. 1983). Compare the following hypothetical cases. In the first, a shopkeeper sells dresses to a woman whom he knows to be a prostitute. The shopkeeper would not be guilty of aiding and abetting prostitution unless the prosecution could establish the elements of Judge Hand's test. Little would be gained by imposing criminal liability in such a case. Prostitution, anyway a minor crime, would be but trivially deterred, since the prostitute could easily get her clothes from a shopkeeper ignorant of her occupation. In the second case, a man buys a gun from a gun dealer after telling the dealer that he wants it in order to kill his mother-in-law, and he does kill her. The dealer would be guilty of aiding and abetting the murder. This liability would help to deter -- and perhaps not trivially given public regulation of the sale of guns -- a most serious crime. We hold that aiding and abetting murder is established by proof beyond a reasonable doubt that the supplier of the murder weapon knew the purpose for which it would be used. This interpretation of the federal aider and abettor statute is consistent with though not compelled by precedent; for ambivalent discussions which however provide some support for our interpretation see United States v. Wilson, 665 F.2d 825, 830 (8th Cir. 1981); United States v. Clayborne, 166 U.S. App. D.C. 140, 509 F.2d 473, 480-81 (D.C. Cir. 1974); United States v. Eberhardt, 417 F.2d 1009, 1013 (4th Cir. 1969).

   Gometz argues that there is insufficient evidence that he knew why Silverstein wanted a knife. We disagree. The circumstances make clear that the drawing of the knife from Gometz's waistband was prearranged. There must have been discussions between Silverstein and Gometz. Gometz must have known through those discussions or others that Silverstein had already killed three people in prison -- two in Marion -- and while this fact could not be used to convict Silverstein of a fourth murder, it could ground an inference that Gometz knew that Silverstein wanted the knife in order to kill someone. If Silverstein had wanted to conceal it on his person in order to take it back to his cell and keep it there for purposes of intimidation, escape, or self-defense (or carry it around concealed for any or all of these purposes), he would not have asked Gometz to release him from his handcuffs (as the jury could have found he had done), for that ensured that the guards would search him. Since the cuffs were off before Silverstein drew the shank from Gometz's waistband, a reasonable 799 jury could find beyond a reasonable doubt that Gometz knew that Silverstein, given his history of prison murders, could have only one motive in drawing the shank and that was to make a deadly assault.

   3. The federal murder statute does not provide for a term of years for first-degree murder. "Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto 'without capital punishment,' in which event he shall be sentenced to imprisonment for life." 18 U.S.C. § 1111(b). Since the provision for capital punishment was held unconstitutional in the wake of Furman v. Georgia, 408 U.S. 238, (1972) (per curiam); see United States v. Shepherd, 576 F.2d 719, 727-29 (7th Cir. 1978); United States v. Kaiser, 545 F.2d 467, 470-75 (5th Cir. 1977), the punishment for first-degree murder is life, see id. at 474-75. The district judge was troubled, however, by the fact that someone sentenced to life in prison can be paroled after only 10 years. See 18 U.S.C. § 4205(a) ( "Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law"). It does not matter how many federal life sentences the prisoner already is serving. The federal prison and parole authorities, in an interpretation of section 4205(a) that has not to our knowledge been questioned, refuse to "stack" beyond 30 years prison sentences of any length -- even when imposed consecutively -- for purposes of determining the date of eligibility for parole. See U.S. Dept. of Justice, U.S. Parole Comm'n, Rules and Procedures Manual § 2.5 (Oct. 1, 1984); U.S. Dept. of Justice, Federal Prison System, Program Statement No. 5050.9, at p. 2 (May 21, 1979). You could be sentenced to ten consecutive life sentences and you would still be eligible for parole after 10 years, though the likelihood of parole then would be slight.

   That is why the judge imposed a term of years (minimum 50, maximum 150) instead of life. But we are not clear how the judge thought this form of sentence would affect the defendants' parole eligibility dates, when as we have said section 4205(a) requires that every sentence of more than 30 years be treated, for purposes of computing that date, as if it were a sentence of 30 years. If the defendant is already serving time under a sentence of 30 years or more, an additional sentence will not postpone the date. True, the next subsection allows the judge to "designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court." 18 U.S.C. § 4205 (b)(1). But the apparent purpose is to allow release on parole before the earliest date allowed by subsection (a); we have found no case where it was used to postpone the date of eligibility for parole. Cf. 3 Wright, Federal Practice and Procedure: Criminal § 536, at pp. 183-84 (2d ed. 1982). There is authority it cannot be so used. See United States v. Smith, 227 U.S. App. D.C. 60, 703 F.2d 627, 628 (D.C. Cir. 1983) (per curiam); United States v. Pry, 625 F.2d 689, 692 (5th Cir. 1980) (per curiam).

   In any event, the federal murder statute makes no provision for sentencing a first-degree murderer to a term of years. This is the reason for what the judge regarded as the intolerable anomaly that second-degree murder, being punishable by imprisonment "for any term of years or for life," 18 U.S.C. § 1111 (b), could be punished more severely than first-degree murder, and is what led the judge to impose a term of years anyway. There is no anomaly if as we have suggested section 4205(b)(1) does not allow the sentencing judge to use a term of years to postpone the parole eligibility date beyond 10 years; but the more important point is that judges have no authority to add to the criminal penalties provided in federal statutes. Section 1111(b) provides, in the case of first-degree 800 murder, for death or for life in prison; and with death in effect struck out of the statute, life is the only punishment possible. There is no ambiguity in the statute that would give the district judge or us a purchase for allowing a term of years to be imposed instead. As the judge had no discretion to sentence the defendants to other than life imprisonment, their prison sentences must be vacated with directions to sentence them to life in prison.

   The last issue, and the hardest, is restitution, on which see the useful discussion in Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L. Rev. 931 (1984). The relevant provisions of the Victim and Witness Protection Act of 1982 authorize the sentencing judge, as part of the sentence for a crime resulting in bodily injury or death, to order that the defendants pay the victim's funeral, medical, and related expenses (including expenses for therapy and rehabilitation) and make reimbursement "for income lost by such victim as a result of such offense," with payment to go to the estate if the victim has died. 18 U.S.C. §§ 3579(b)(2)-(4), (c). Restitution may also be ordered "to any person who has compensated the victim" for a loss resulting from the crime. § 3579(e)(1). Restitution creates a set-off in any subsequent tort action brought by the victim, § 3579(e)(2); shall be determined after conviction in a proceeding where the court "shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate," § 3580(a); see also §§ 3580(b)-(d); and shall not be ordered if the order would "unduly complicate or prolong the sentencing process," § 3579(d).

   The defendants argue that the statute is unconstitutional, because it allows a victim of crime to obtain from the sentencing judge what amounts to a judgment for tort damages, thus thwarting the defendant's Seventh Amendment right to trial by jury in any federal suit at law in which the stakes exceed $20. The argument is unpersuasive when pushed to the extreme of saying that any order that a criminal defendant pay a victim money for which the victim could get a judgment in a suit at law is a judgment at law for purposes of the Seventh Amendment. If by "restitution" in criminal law (a distinct concept from civil restitution) we mean simply an order in a criminal case that the criminal restore to his victim what he has taken from him, we are speaking of a form of criminal remedy that predates the Seventh Amendment. Restitution indeed is the earliest criminal remedy. Before there is organized government, criminal misconduct is punished by forcing the criminal to compensate the victim or the victim's family. See, e.g., Diamond, Primitive Law Past and Present 58-59, 65, 66, 269-70 (1971); Rubin, The Law of Criminal Correction, ch. 7, § 1 (2d ed. 1973). Even after the rise of the state we find restitution used as a criminal remedy, as in an English statute of 1529 that empowered the court, upon finding someone guilty of robbery, to issue a "writ of restitution" ordering the robber to restore the thing taken to its owner. 21 Hen. 8, ch. 11 (1529), 19 Viner, A General Abridgment of Law and Equity 153-56 (2d ed. 1793), quoted (with incorrect date) in Note, The Unconstitutionality of the Victim and Witness Protection Act Under the Seventh Amendment, 84 Colum. L. Rev. 1590, 1595 n.27 (1984).

   The question is, what does restitution as a criminal remedy comprehend? As the word implies and history confirms, the original conception is that of forcing the criminal to yield up to his victim the fruits of the crime. The crime is thereby made worthless to the criminal. This form of criminal restitution is sanctioned not only by history but also by its close relationship to the retributive and deterrent purposes of criminal punishment. The fact that tort law may also have deterrent purposes, see, e.g., Jones v. Reagan, 696 F.2d 551, 554 (7th Cir. 1983), does not make every payment to the victim of crime a tort sanction; it just shows that tort and criminal law overlap. 801 In fact their differentiation is a relatively modern development. See, e.g., I. de S. & Wife v. W. de S., Y.B. Liber Assisarum, 22 Ed. 3, f. 99, pl. 60 (1348 or 1349).

   An order to make restitution of medical and funeral expenses and lost earnings has a weaker connection with the traditional purposes of criminal law. But since medical expenses are restorative, making the criminal reimburse them can be analogized to forcing him to return stolen goods; so can making him restore any earnings that the victim lost as a result of the crime. The analogy is particularly close where, as in the present cases, the criminal wanted to injure his victim, as distinct from injuring him as merely a by-product of an acquisitive crime. And with regard to all three types of loss -- medical, funeral, and earnings -- making the criminal bear them serves a useful purpose in the administration of the criminal law. It brings home to him the enormity of his conduct, by forcing him to pay expenses directly related to his victim's suffering.

   That forms of criminal restitution other than ordering stolen goods restored to the owner do not have so clear a historical pedigree does not matter. What matters is that criminal restitution is not some newfangled effort to get around the Seventh Amendment but a traditional criminal remedy; its precise contours can change through time without violating the Seventh Amendment. If Congress creates a new cause of action and does not specify the mode of trial, we must look to the nearest historical analogy to decide whether there is a right of trial by jury. 9 Wright & Miller, Federal Practice & Procedure § 2302, at p. 16 (1971). Here Congress has made clear that the judge rather than the jury is to determine the facts; and its judgment is entitled to our consideration. Moreover, there is a close historical analogy to restitution in a criminal proceeding of the victim's medical and funeral expenses and lost earnings: restitution of stolen goods, an established criminal remedy when the Seventh Amendment was adopted. Restitution is frequently an equitable remedy, meaning, of course, that there is no right of jury trial. See, e.g., In re Evangelist, 760 F.2d 27, 30 (1st Cir. 1985). The Supreme Court has suggested that restitution of back pay under Title VII of the Civil Rights Act of 1964 is an equitable remedy not requiring a jury. See Curtis v. Loether, 415 U.S. 189, 197, (1974). The same, it seems to us, is true of restitution under the Victim and Witness Protection Act of 1982. We therefore join those courts that have upheld under the Act orders for restitution of medical bills, lost wages, and the value of personal property destroyed by the criminal. See, e.g., United States v. Keith, 754 F.2d 1388, 1392 (9th Cir. 1985), and cases cited there; United States v. Watchman, 749 F.2d 616, 617 (10th Cir. 1984); United States v. Brown, 744 F.2d 905, 908-10 (2d Cir. 1984). This conclusion was also reached in Judge Coffey's dissent in United States v. Gomer, 764 F.2d 1221, slip op. at 14-16 (7th Cir. 1985); the majority opinion did not reach the constitutional issue.

   Restitution as a criminal remedy becomes problematic only where it goes beyond the fruits of the crime or the out-of-pocket expenses of the victim or his lost earnings and includes compensation for earnings (in this case, mainly Ditterline's, who was permanently disabled by Fountain's attack on him) that would have been received in the future. Compensation for the loss of future earnings is quintessentially civil. The reason is not merely historical, or conceptual; there is, indeed, no difference of principle between past and future earnings, so far as the purposes of criminal punishment are concerned. To disable a person from working, temporarily or permanently, is to deprive him of his human capital; it is a detail whether the consequence is to deprive him of earnings he would have had in the past or earnings he would have had in the future. The reason for treating past and future earnings differently is practical: the calculation of lost future earnings involves the difficult problem of translating an uncertain future stream of earnings into a present 802 value. (Compare the limitations on the admiralty remedy of maintenance and cure, on which see Gilmore & Black, The Law of Admiralty 297-310 (2d ed. 1975).) It is not a problem meet for solution in a summary proceeding ancillary to sentencing for a criminal offense.

   In the case of guard Ditterline, for example, a responsible calculation of lost future earnings would have required estimating first what Ditterline's salary would have been in each year until his retirement, then the probability that he would actually be alive and working in each of those years, and finally the correct discount rate by which to reduce the estimated future earnings to a present, lump-sum value. See, e.g., O'Shea v. Riverway Towing Co., 677 F.2d 1194, 1198-1201 (7th Cir. 1982). The cryptic testimony in the record indicates that some such procedure was gone through by the Department of Labor, which will be guaranteeing Ditterline 75 percent of his salary while he is disabled; but the testimony was conclusional, and its foundations left unexplained and untested. It is not surprising that the district judge did not want to encumber the sentencing process with an elaborate damage calculation requiring expert testimony, but we infer from this not that an arbitrary or unsubstantiated calculation is proper but that projecting lost future earnings has no place in criminal sentencing if the amount or present value of those earnings is in dispute.

   This does not make the statute unconstitutional, however, or entitle the defendants to a jury trial on the issue of the restitution of their victims' lost future earnings. "Future" is not in the statute. Obeying the statutory directive that "the imposition of such order . . . not unduly complicate or prolong the sentencing process," 18 U.S.C. § 3579(d), we hold that an order requiring a calculation of lost future earnings unduly complicates the sentencing process and hence is not authorized by the Victim and Witness Protection Act -- unless, to repeat a vital qualification, the amount is uncontested, so that no calculation is required.

   For reasons already stated, we have no difficulty with the portion of the restitution order that relates solely to the medical and funeral expenses of the victims or the past wages of which they were deprived by the defendants' crimes. Nor do we doubt that the Department of Labor is a "person" within the meaning of the third-party payment provision of the statute. Although the word is not defined in the statute, and the legislative history says that "third parties might include friends, family members, or other individuals and organizations who have assisted the victim or the victim's family, as well as insurance companies and state victim compensation programs," S. Rep. No. 532, 97th Cong., 2d Sess. 33 (1982) -- a list that does not appear to include federal agencies -- the list is only illustrative; the reference to "organizations" indicates that the word "person" was not intended to be limited to natural persons; and we can think of no reason why a federal agency, alone among third-party payors, natural and institutional, should not be reimbursed if it compensates a victim of crime. See United States v. Dudley, 739 F.2d 175, 178 (4th Cir. 1984). The Justice Department's Guidelines for Victim and Witness Assistance state merely that federal departments and agencies shall not be considered "victims" for purposes of Part II of the guidelines, which relates to personal services rendered to victims, not money paid to them. See 48 Fed. Reg. 33775-76 (July 25, 1983).

   The defendants complain, finally, that the judge disregarded their poverty in ordering them to pay amounts which, even as reduced to eliminate the substantial payments for lost future earnings, will far exceed the realistic earning capacity of indigent prisoners unlikely ever to be released from prison. But the statute does not say that indigency is a defense, only that it is a factor the judge is required to take into account, 18 U.S.C. § 3580(a), and he did that. The judge was worried that 803 such accomplished and audacious murderers might have a story to sell to a publisher or broadcaster, and he wanted to make sure they would never reap any gain from their crimes. This is a proper ground for ordering restitution beyond the defendants' present or foreseeable ability to pay. The prospect that these multiple murderers might someday be cashing royalty checks for the stories of their crimes while their victims remain uncompensated for the losses that the murderers inflicted is an insult to the victims and an affront to the society's moral beliefs. It might be too late then for the victims or their survivors to bring wrongful-death actions; the statute of limitations might have run. They could if they want sue now and get a judgment that they could renew till the day (if it ever arrives) when the defendants have money to pay it, but we do not think they should be put to this expense, so likely to be futile.

   It is true that the statute, rather than expressly regulating criminals' future earnings from the sale of their stories, directs the Attorney General to study the matter. 96 Stat. 1257. The legislative history indicates that Congress was unsure how to proceed. See S. Rep. No. 532, supra, at 42-44. But what Congress deferred was a legislative solution; we do not interpret its irresolution as forbidding district judges to deal with the issue on a case-by-case basis, as was done here. United States v. Palma, 760 F.2d 475 (3d Cir. 1985), which required the district judge to make findings of fact on the defendant's ability to make restitution, is beside the point. Everyone knows that Fountain and Silverstein cannot now make restitution. The point of the order is to make sure that should they ever be able to do so out of earnings from the press or the media, they shall do so. This is a reasonable measure which requires no findings of fact.

   We do not think the orders of restitution are invalid because of the recent decision of another panel of this court in United States v. Gomer, supra . The district judge had failed to consider the financial needs and earning ability of the defendant's dependents, an explicit factor in the statute along with the defendant's own financial situation. See 18 U.S.C. § 3580(a). There is no suggestion in this case that the orders of restitution would burden Fountain 's and Silverstein's dependents -- indeed, there is no suggestion that they have any dependents -- or that it would burden them. They will spend the rest of their lives in prison. All their expenses are paid for. Only if they obtain windfall earnings from the publishing or broadcasting of the story of their criminal activities will the orders of restitution kick in, and they can have no equitable claim to such earnings. In any event, the judge as we have said considered though he rejected their indigency in deciding to order restitution, and in the circumstances that was all the statute required him to do.

   The statute limits the period within which restitution is due; so far as relevant to this case, the outer limit is five years after the defendant is released from prison. See 18 U.S.C. § 3579 (f)(2)(B). Although this limitation is of rather theoretical interest in a case where the defendants are likely to be imprisoned for their natural lives, it should be incorporated in the orders of restitution that the district judge issues on remand after recalculating the amounts in accordance with this opinion.

   The defendants' other challenges to their convictions are of no possible merit and require no discussion. To summarize, we affirm the convictions but vacate the sentences and remand the cases for (1) entry of sentences of life imprisonment, (2) recalculation of the restitution awards consistently with the principles laid down in this opinion, (3) inclusion in the awards of a time limit consistent with the statute. We share the sense of frustration that led the judge to impose these unlawful sentences. (When Gometz was sentenced he told the judge: "if you give us a million years, we are still eligible on the ten.") The facts cry out for a federal death penalty for prison murders, or at the very least for increasing the minimum time to eligibility for parole of defendants sentenced to life imprisonment 804 -- though the forthcoming abolition of federal parole makes the second suggestion largely academic. But these are matters for Congress; our hands are tied by the existing statutes.



Dissent by SWYGERT (In Part)

   SWYGERT, Senior Circuit Judge, concurring in part and dissenting in part.

   I concur with the following holdings: (1) the district court did not err in ordering shackles at trial; (2) the district court did not abuse its discretion in denying as untimely Silverstein's request for a psychiatric examination; (3) the evidence was sufficient to convict Gometz of aiding and abetting Silverstein in murdering Clutts; (4) the district court erred in sentencing all three defendants to a term of years instead of life imprisonment; and (5) the district court erred in failing to place a time limit on the defendants' restitution liability. Although I also agree that the threats uttered by Fountain two months after the homicides were admissible, I do not accept the majority's rationale that the evidence was admissible to establish Fountain's "hostility to Marion guards." Ante at 797. The threats could not be used to establish that Fountain acted in accordance with a violent temperament without violating the Federal Rules' prohibition against propensity evidence. See Fed. R. Evid. 404(b) . Nevertheless, the threats were admissible to establish "intent," see id., in the sense that it is more likely than not that if Fountain had acted out of innocent motives, he would have shown some remorse about the unfortunate necessity of his actions, rather than manifested a violent sense of glee.

   I dissent from the court's resolution of three issues. First, I would hold that the Government's cross-examination of Fountain and Silverstein concerning the details of their prior convictions -- where neither had offered any character evidence in his behalf and where both had already conceded on direct examination the existence of their prior convictions -- was a gross violation of the Federal Rules' prohibition of propensity evidence. See Fed. R. Evid. 404. Second, the district court's refusal to allow Fountain to subpoena two inmate witnesses to rebut the incriminating testimony of a Government witness violated Fountain's statutory and constitutional right to compulsory process. Third, I would vacate the restitution sentences in their entirety. The district court erred in failing to make a meaningful inquiry into the financial resources and earning ability of the defendants, as required by statute. See 18 U.S.C. § 3580(a) (1982).


   After Silverstein, on direct examination, admitted his various convictions, the prosecutor cross-examined him about the details of his offenses. It was established that Silverstein's two murder convictions arose from the killings of two fellow inmates, a potentially devastating revelation because it invited the jury to infer that Silverstein had a propensity for prison violence.

   Similarly, after Fountain, on direct examination, admitted his prior convictions and testified that he carried a knife to protect himself, the Government, asserting a need to probe about Fountain's violent character and to impeach his credibility, cross-examined Fountain about the details of his prior convictions. Most prejudicial to Fountain's claim of self-defense was his admission that he had stabbed a fellow inmate 57 times while crying "die, bitch, die" -- all in "self-defense."

   It is important to understand at the outset what Federal Rules of Evidence are not involved here. First, Fed. R. Evid. 609 is not at issue. It is uncontested that the Government could impeach the credibility of Silverstein and Fountain by introducing evidence of prior convictions. But Rule 609 does not allow the prosecutor to "probe" into the violent details of those prior crimes. Only the name of the crime, the time and place of conviction, and the punishment are admissible for the purposes of Rule 609. See 3 J. Weinstein & M. Berger, Weinstein's Evidence § 609[05] at 805 609-86 (1982); C. McCormick, Evidence § 43 at 98 (3d ed. 1984).

   The majority contends that because Silverstein's testimony about his prior crimes was "perfunctory," the prosecutor had the authority, under Rule 609, to "amplify" a bit. Yet, the admission of prior convictions must be "perfunctory." Only the existence of a prior conviction of a serious crime is relevant for assessing credibility. Any embellishment serves no proper purpose; rather it invites the jury to infer that the defendant has a propensity to commit crimes, an inference strictly prohibited by Fed. R. Evid. 404(b). Here, Silverstein had already admitted his murder convictions. To further inform the jury that these murders took place in prison added no further insight to Silverstein's credibility, but merely encouraged the jury to infer that Silverstein had a propensity for prison violence.

   Second, Fed. R. Evid. 608(b) is not at issue here. That rule does not allow the prosecution to expand its inquiry beyond that permitted by Rule 609. See generally 3 J. Weinstein & M. Berger, supra, at § 608[05]. Nor can the Government's cross-examination of Fountain and Silverstein be considered impeachment by contradiction within the meaning of Fed. R. Evid. 607. See J. Weinstein & M. Berger, supra, at § 607[05]. The cross-examination of both defendants tended to contradict assertions made on direct examination only insofar as a propensity to behave violently could be inferred from the prior crimes. Yet such an inference is prohibited, with some narrow exceptions, by Fed. R. Evid. 404(b).

   The inquiry into the violent details of both defendants' prior convictions was only admissible to the extent it was necessary to fulfill the purposes of one of the limited statutory exceptions to the general rule against propensity evidence. See Fed. R. Evid. 404, 405. One of the exceptions is the use of character evidence to establish that a person acted in conformance with a character trait. See Fed. R. Evid. 404(a), 405. However, the Government can only introduce character evidence to rebut character evidence introduced by the defendant in the first instance. Fed. R. Evid. 404(a)(1). Even the majority concedes that the self-defense claims of Silverstein and Fountain were not assertions of character traits that opened the door to cross-examination about their propensity for violence.

   The majority holds that another statutory exception, Fed. R. Evid. 404(b), permitted the prosecutor to cross-examine Fountain about the details of his prior knifing of an inmate: to establish Fountain's "intent." The applicability of this exception was neither argued below nor raised in any of the briefs on appeal. In any event, it is difficult to see how Fountain's prior use of a knife to attack a prisoner impugns his present claim of self-defense. To be sure, one can argue that this establishes a predilection to use knives offensively rather than defensively, but such propensity evidence is precisely what is prohibited by Rule 404(b).

   This court has stressed that the "intent" exception to Rule 404(b) is not to be used to circumvent the general prohibition of propensity evidence. See, e.g., United States v. Chaimson, 760 F.2d 798, 804 (7th Cir. 1985). Rather, prior crimes may be admissible because the repetition of the crime is itself circumstantial proof of intent, not direct proof of a propensity to commit crime. As Judge Cardozo pointed out in People v. Gerks, 243 N.Y. 166, 171, 153 N.E. 36, 38 (1926), repetition affords an "opportunity for reflection and for foresight of the consequences." Thus, a defendant's claim that he did not intend to pass bad checks becomes less credible if it can be shown that he had passed several bad checks previously. See generally 2 J. Weinstein & M. Berger, supra, at § 404[12] & n.5. This theory of admissibility is valid only if "the other act is similar enough and close enough in time to be relevant to the matter in issue." Chaimson , 760 F.2d at 804 (quoting United States v. Shackleford, 738 F.2d 776, 779 (7th Cir. 1984))Fountain's use of a knife in the prior incident took place under a 806 completely different set of circumstances. There are simply too many variables to permit an inference that the second time Fountain used his knife he knew from prior experience that he was exceeding the bounds of his privilege of self-defense, or that, given this knowledge, it was more likely than not that Fountain never intended to defend himself at all.

   The majority also holds that the prior knifing was admissible to show a modus operandi, which is a "plan" within the meaning of Fed. R. Evid. 404(b). See generally 2 J. Weinstein & M. Berger, supra, at § 404[16]. Again, this is an issue that is raised sua sponte by the court, and again, the argument is meritless in any event because the prior act is not sufficiently similar to satisfy the statute. If the method of operation is "so unusual and distinctive as to be like a signature," then it is more likely than not that repeated uses of the method were the handiwork of the defendant acting with the requisite specific intent. See id. at § 404[16] (3). That Fountain used a knife in both incidents is not a sufficiently distinctive similarity to establish a modus operandi.

   In sum, none of the statutory exceptions to the general prohibition against inquiry into the details of a defendant's past crimes is applicable in the case at bar. I would therefore reverse the convictions of Silverstein and Fountain and remand for new trials.


   Fed. R. Crim. P. 17(b) requires the district court to subpoena witnesses who are "necessary to an adequate defense." Adopting a narrow, and unprecedented, interpretation of Rule 17(b), the majority holds that the witnesses sought by Fountain were not "necessary" to his defense because their testimony "could not reasonably be expected to make a difference to the outcome of the trial." Such an interpretation ignores Rule 17(b)'s literal requirement that the witnesses need only be necessary to an adequate defense, not a winning or dispositive defense. Moreover, the majority conspicuously omits any reference to the defendant's sixth amendment right "to have compulsory process for obtaining witnesses in his favor." This sixth amendment right is not limited to "important," "necessary," or "vital" witnesses.

   Rule 17(b) is a codification of the compulsory process clause, and the federal courts have uniformly interpreted the rule broadly so as to effectuate fully the broad dictates of the sixth amendment. See, e.g., United States v. Barker, 553 F.2d 1013, 1019-20 (6th Cir. 1977). Accordingly, the courts have held that so long as the testimony of the proposed witness would be relevant and favorable to the defendant, Rule 17(b) requires the district judge to issue the subpoena. See generally Westen, Complusory Process II, 74 Mich. L. Rev. 191, 198-234 (1975). Because the defendant must make some "plausible showing" that the proposed testimony will meet this test, see United States v. Valenzuela-Bernal, 458 U.S. 858, 867, (1982), the federal courts have upheld denials of a subpoena where the proposed testimony is either inherently incredible or merely cumulative. Id.; see, e.g., United States v. Solina, 733 F.2d 1208, 1212-13 (7th Cir.), cert. denied, 469 U.S. 1039, (1984); Greenwell v. United States, 115 U.S. App. D.C. 44, 317 F.2d 108, 110 (D.C. Cir. 1963).

   Fountain's proposed witnesses would have testified that Fountain had not made the incriminating remarks allegedly overheard by the Government's witness. The majority concedes that this proposed testimony was neither cumulative nor inherently incredible. Because the testimony would have been both relevant and favorable to Fountain's defense, the district judge was required to issue the subpoena. No court has ever required an additional showing that the testimony be necessary or outcome-determinative, for such a requirement would contradict the broad language of the compulsory process clause.

   The real issue is not whether error was committed, but whether the error was harmless beyond a reasonable doubt. I am 807 willing to concede that had Fountain been able to present his witnesses, he would have almost certainly been convicted nevertheless. Therefore, the error was substantively harmless. But the Constitution guarantees something more than substantively correct verdicts. To focus only on the outcome of a trial is to trivialize the procedural rights guaranteed by the Constitution. Accord Field, Assessing the Harmlessness of Federal Constitutional Error -- A Process in Need of a Rationale, 125 U. Penn. L. Rev. 15, 33 (1976) (broad use of harmless error doctrine disparages the notion that the guilty as well as the innocent deserve constitutional protections and encourages circumvention of constitutional rights).

   The Supreme Court has stated that some constitutional errors can never be harmless. Chapman v. California, 386 U.S. 18, 23 & n.8, (1967). For example, the defendant cannot be denied his right to counsel or his right to an impartial judge simply because the evidence against him is so overwhelming that he will be convicted in any event. Id. (citing Gideon v. Wainwright, 372 U.S. 335, (1963); Tumey v. Ohio, 273 U.S. 510, (1927)). Nor has any court ever held that denial of the defendant's sixth amendment right to jury trial can be harmless error. Similarly, it can be argued that the right to compulsory process is a fundamental procedural right that can never be "harmlessly" denied the defendant. In Washington v. Texas, 388 U.S. 14, 19, (1967), the Supreme Court indicated that the compulsory process right is not only a right in and of itself, but also a necessary adjunct of the right to jury trial: "The right to offer the testimony of witnesses . . . is in plain terms . . . the right to present the defendant's version of the facts as well as the prosecutor's to the jury so it may decide where the truth lies." If the denial of the defendant's right to jury trial cannot be harmless, then the denial of the necessary adjunct to the right to jury trial also cannot be harmless.

   Yet, even this approach to the harmless error question tends to trivialize important procedural rights. It is unwise to distinguish rigidly between rights that can never be subject to harmless error analysis and other rights, for the implication of such a dichotomy is that these "other," somehow less important rights can always be subject to harmless error analysis. This dichotomy must be false because the denial of a fair trial can never be harmless, and the defendant can be denied a fair trial on any number of grounds, including a sufficiently grave violation of one of these "other" rights.

   I would therefore hold that one member of the set of constitutional rights that the Court in Chapman indicated could never be harmless is the fifth amendment right to due process of law. Thus, even if a particular constitutional right is not itself automatically exempt from harmless error scrutiny, it may nevertheless be exempt from such scrutiny if the deprivation of the right is sufficiently grave to deny the defendant due process of law. And one is deprived of due process if the procedural violation is, viewed in the context of the trial as a whole, significant enough to deprive the defendant of a fair trial.

   In short, after finding error, the court should always engage in a two-tier inquiry. First, it should determine whether the error is "harmless" in the sense that the defendant will be convicted even if the error is corrected. Second, it should determine whether, in any event, the conviction should be reversed because the error denied the defendant a fair trial.

   In the instant case, I would hold that even though the denial of Fountain's compulsory process right was not outcome determinative, it denied him a fair trial. This was not a trivial infraction: the defendant was prevented from rebutting the damaging testimony of a Government witness. I would also reverse and remand for a new trial on this ground.


   According to my understanding, the majority adopts a per se rule precluding any 808 restitution award for lost future earnings where the underlying calculations of such an award are in dispute. The majority reasons that because these calculations would "unduly complicate or prolong the sentencing process," 18 U.S.C. § 3579(d), this kind of restitution award is precluded by statute, see id. Such an assumption contradicts both common sense and the intent of Congress. I fail to see why we should conclusively presume that every contested calculation would unduly complicate the sentencing process. Surely there are some victims whose future earnings are easily predictable, and surely district judges have sufficient competence and experience to expeditiously predict future earnings and discount to present value, despite the failure of the parties to agree on the necessary calculations. Furthermore, district judges are in the best position to determine whether a particular calculation in a particular case will unduly complicate the sentencing process. As for the intent of Congress, the majority's per se rule will essentially repeal restitution for lost income provided for in 18 U.S.C. § 3579 (b)(2)(C) because all calculations of future income can be "contested."

   I would neither reach nor discuss the troubling question of whether the restitution statute is constitutional. Rather, I would vacate the restitution sentences in their entirety because the district judge failed to make the inquiry into the financial resources and earning ability of the defendants required by 18 U.S.C. § 3580(a).

   The district judge based the restitution awards solely on his finding that the defendants might sometime in the future sell their life stories to publishers. First, this was mere speculation. The statute requires some principled balancing between the needs of the defendants and the needs of the victims. See United States v. Gomer, 764 F.2d 1221, slip op. at 5-6 & n.6 (7th Cir. 1985). The district judge did not discharge this duty by awarding over one-half million dollars in restitution simply on the basis of the speculative assertion that the defendants might sell their life stories.

   Second, Congress did not intend the restitution statute to apply to those individuals who might conceivably sell their life stories sometime in the speculative future. Otherwise, it would not have included a directive requiring the Attorney General to report on legislation that would address this problem. See Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, § 7, 96 Stat. 1248, 1257 (reprinted in annotation to 18 U.S.C. § 3579 (1982)). And indeed, the Comprehensive Crime Control Act of 1984 includes precisely such a law. See Pub. L. No. 98-473, Title II, § 1406(a), 98 Stat. 1976, 2175-76 (enacting 18 U.S.C. § 3671). *

   * To be sure, the statute apparently allows the United States Attorney to seize the proceeds of the life story and apply them to satisfy a restitution sentence, insofar as such a sentence is enforceable as a civil "money judgment" within the meaning of 18 U.S.C.A. § 3671(c) (1)(A)(i) (West 1985). But this assumes that the restitution sentence was properly imposed in the first place -- i.e., that the defendant was shown in the first instance to have the present ability to pay or that his future income from a sale of his life story was not merely speculative, as it is in the case at bar. In any event, the instant victims will be able to claim the proceeds if, in lieu of a restitution sentence, they secure a civil tort judgment against the defendants in federal or State court. See 18 U.S.C.A. §§ 3671 (c)(1)(A)(i), (B)(i) (West 1985).

   Therefore, although I would affirm Gometz' conviction, I would vacate his restitution sentence and remand for resentencing in light of the statutory mandate to make a meaningful inquiry into his financial resources. Because I would reverse the convictions of Silverstein and Fountain and remand for new trail, a similar order with respect to their restitution sentences would be unnecessary.




Nos. 82-2453, 82-2454, 82-2456, 82-2457

February 13, 1984, Argued—April 26, 1984, Decided

    POSNER, Circuit Judge.

   These appeals by Thomas Silverstein, Clayton Fountain, Edgar Hevle, and Adolph Reynosa from their convictions for complicity in the murder of an inmate at Marion Penitentiary, the nation's maximum-security federal prison, Garza v. Miller, 688 F.2d 480, 482 (7th Cir. 1982), afford a horrifying glimpse of the sordid and lethal world of modern prison gangs.

   The story begins with a chance encounter in 1981 of three prisoners -- Galez, Perumean, and defendant Silverstein -- in a county jail where they were being held en route to various prisons. Galez, who like Silverstein had come from Marion, told Perumean, and Silverstein confirmed, that a black inmate at Marion named Chappelle had "disrespected" Vargas, a member of the prison gang known as the Mexican Mafia. Galez reported that Vargas had planned to kill Chappelle but had given up the idea when guards had discovered and confiscated the knife he had secreted in his cell for this purpose.

   Silverstein was a member of another prison gang, a gang of white men known as the Aryan Brotherhood, its symbol being the three-leaf shamrock. He was, indeed, a member of the three-man "commission" that governs the Aryan Brotherhood. To qualify for membership in the Aryan Brotherhood you must "make bones." As one prisoner explained, "In effect what it means is you will kill somebody. They distinguish the weed [sic] from the shaft [sic]. You must have a killer instinct. This is to be among an elite and it's not for just any particular white guy."

   The Aryan Brotherhood and the Mexican Mafia are allied, among other things in their hostility to black inmates, who have their own gangs. (On the contemporary problem of prison gangs see Fox, Organizational and Racial Conflict in Maximum-Security Prisons, chs. 3 and 5 (1982), especially at p. 136; Jacobs, New Perspectives on Prisons and Imprisonment, ch. 3 (1983); Jacobs, Stateville: The Pentitentiary in Mass Society, ch. 6 (1977); Porter, California Prison Gangs: The Price of Control, Corrections Magazine, Dec. 1982, at 6.)

   Later in 1981, two inmates at Marion -- David Ownes, a member of the Aryan Brotherhood (and the government's principal witness at the trial), and defendant Hevle, a member of the Aryan Brotherhood's commission -- were talking, and Owens expressed dissatisfaction with the fact that the Brotherhood had done nothing to avenge the insult to Vargas, a member of an allied gang. Hevle told Owens that the Mexican Mafia should be given time to do something on its own.

   Soon afterward Perumean and defendant Reynosa (Reynosa a member, Perumean an "associate," of the Mexican Mafia) found themselves confined in another part of Marion -- the "Control Unit" (also known as "H-Unit"), where the most refractory inmates are kept. Reynosa,, who earlier had told Perumean that he too was upset that the Mexican Mafia had done nothing to avenge Vargas, now (August 1981) told Perumean that he had heard that Chappelle, the "disrespecter" of Vargas, was being moved to the Control Unit. The said "they" were planning to kill Chappelle and that although he did not know what "range" (group of cells) in the Control Unit Chappelle would be on, "they" had people on every range. If Chappelle went to D Range, "we" would get him (presumably, the Mexican Mafia -- Reynosa and Perumean were in D range). If he went to C range, Tommy Silverstein (now back in Marion, and confined in the C range of the Control Unit) would get him, since Silverstein owed Reynosa a favor.

   The Control Unit at Marion has four ranges, A through D, together housing 36 inmates on average. The ranges are locked at each end and each cell has only one occupant, who is let out of his cell once a day for about an hour and ten minutes either to recreate in the range corridor or in the Control Unit's special recreation yard, or to take a shower in the shower room at the end of the range. The inmates of the Control Unit are served their meals in their cells by guards. Although inmates from different ranges are not allowed to mingle, they can occasionally talk or shout to each other. From the Control Unit's recreation yard it is possible to shout through windows at the end of the range corridors and in the Control Unit's law library to inmates recreating in the yard, because the windows give on the yard. Within a range inmates can talk to each other between cells and also while recreating -- especially since they are sometimes permitted to recreate in pairs.

   A few weeks after their conversation, Owens again asked Hevle what the Aryan Brotherhood intended to do about Chappelle. Hevle replied that Bartosh, another member of the Brotherhood at Marion, was going to be sent with Silverstein to Atlanta ("writted to Atlanta," in prison lingo) to testify in a case and the two would discuss the matter there. During this trip, Bartosh and Silverstein were frequently together, and when they returned, Bartosh told Owens that Silverstein had told him that Chappelle was on Silverstein's range in the Control Unit and that Silverstein would take care of him.

   Nine days later, after their evening meal, Silverstein and another inmate of C range, defendant Fountain, an "associate" of the Aryan Brotherhood, were let out of their cells to recreate. They were not kept under continuous observation by guards during the hour in which they were roaming the corridor of C range. An hour and a quarter after Silverstein and Fountain were returned to their cells Chappelle was found dead on the floor of his cell.

   Medical evidence showed that he had been strangled about an hour after eating, by a cord held by two people as he lay on his bed with his head leaning against the bars of the cell. The next day Reynosa told Perumean, "we finally got the son of a bitch," and later Silverstein told Perumean that he and Fountain had "yoked the nigger." Fountain told another inmate, "I am glad we killed him," and Silverstein told another, "I am just sorry I had to kill him through the bars and couldn't get next to him."

   The jury convicted Silverstein and Fountain of murder, and they were sentenced to life imprisonment. The jury convicted Silverstein, Hevle, and Reynosa of conspiracy to murder. Silverstein was sentenced to 20 years in prison, and Hevle and Reynosa to 40 years each, for this crime. All of the sentences were made consecutive to the other sentences that the defendants are serving.

   The lapse in security that allowed Chappelle to be murdered in his cell cannot be passed over in silence. Because there is no applicable federal death sentence, because the Control Unit at Marion imposes the most rigorous confinement in the federal prison system, and because many of the inmates confined there are serving long prison terms without prospect of early parole, the deterrent effects of criminal punishment cannot be relied upon to control the crime rate in the Control Unit.

   It is true that since the regulations governing confinement in a control unit in federal prison do not contemplate that a prisoner will spend his whole term of imprisonment there, see 28 C.F.R. §§ 541.48, 541.49 (the average length of stay in Marion's Control Unit is 15-18 months), and since the commission of an act of violence in prison is a ground for extending a prisoner's stay in the unit, see 28 C.F.R. § 541.41, inmates have some disincentive to violent behavior. That disincentive is reinforced by the fact that a prisoner under federal sentence (except for drug offenses under 21 U.S.C. § 848) is eligible for parole after he has been in prison for a maximum of ten years, no matter how long his sentence is -- even if he is serving multiple life sentences -- and that any additional convictions will reduce his prospects for parole. See 18 U.S.C. § 4205(a); 28 C.F.R. § 2.36(a).

   But since parole in the federal system is not mandatory, the effect of an additional conviction on a prisoner's prospects for parole is inherently speculative, and may be slight when the prisoner's prospects for parole are dim anyway because of the gravity of his original crime. Cf. 28 C.F.R. §§ 2.18- 2.20. Moreover, Marion takes in state prisoners who may be serving time under sentences that do not allow for parole; there are more than 50 state prisoners at Marion.

   All things considered, to many inmates of Marion's Control Unit the price of murder must not be high and to some it must be close to zero. This makes it essential that the prison authorities protect the inmates from each other. They try to do that, of course, and largely succeed. Violence in federal prisons is less, in aggregate terms, than popularly supposed. Seven inmates were killed in federal prisons in 1980 (the latest date for which statistics have been published) out of a total inmate population of almost 25,000, see U.S. Dept. of Justice, Bureau of Judicial Statistics, Sourcebook of Criminal Justice Statistics -- 1982, at 550 (tab. 6.39), 567 (tab. 6.54).

   Yet, considering that inmates are supposed to be both disarmed and closely supervised, prison killings should be extremely rare. And, while granting as we do that federal court decisions expanding prisoners' rights to challenge both disciplinary measures and the conditions of confinement have made it more difficult than it once was to maintain order in prisons, we nevertheless were distressed to be told by government counsel at the oral argument of these appeals that even though security measures were intensified after the murder of Chappelle, they were soon circumvented and another inmate was murdered in the Control Unit.

   Both Silverstein and Fountain have been implicated in previous reported cases of prison killings, one under the auspices of the Aryan Brotherhood. See United States v. Mills, 704 F.2d 1553, 1555 (11th Cir. 1983); United States v. Fountain, 642 F.2d 1083, 1085-86 (7th Cir. 1981). Another murder of a black inmate by members of the Aryan Brotherhood is recounted in State v. Farmer, 126 Ariz. 569, 617 P.2d 521 (1980). What happened in the present case could not have come as much of a surprise to the authorities.

   The argument pressed most strongly on this appeal that the judge improperly excluded the evidence of a key defense witness, Norman Matthews. Matthews had been an inmate in C range on the day of Chappelle's murder and had been let out to recreate right after Silverstein and Fountain were returned to their cells. When called to the stand to testify he was asked whether he could remember November 22, 1981, and when he answered yes, how he could remember it, to which he replied, "It was the day I killed Chappelle."

   Though it should not have been unexpected -- Matthews had given a statement to the FBI confessing to the murder -- his confession in open court caused a commotion. Defense counsel said, "All right, now Mr. Matthews, you understand this is a court of law and that you are called here as a witness but you have rights under the Fifth Amendment of the Constitution of the United States not to incriminate yourself. Do you understand that?" Matthews replied, "Yes."

   At this point the prosecutor objected to the questioning of Matthews. The judge sent the jury out and himself questioned Matthews to make sure he understood and intended to waive his Fifth Amendment right. When the judge finished explaining Matthews' Fifth Amendment right to him, the prosecutor said, "Your Honor, I think Mr. Matthews should also be advised of any potential charges of perjury if in fact he perjures himself on the witness stand."

   The judge then said to Matthews, "Well, do you understand that Mr. Matthews? You are under oath and that there would be a possibility that if you would make a misstatement that you could be indicted and tried for perjury?" Matthews replied, "maybe I should take the Fifth . . . You convinced me I should protect my rights, sir." The judge then ruled that Matthews had a right to remain silent, recalled the jury, and instructed it to disregard the questions that had been put to Matthews and the answers he had given.

   If before Matthews had answered defense counsel's opening questions the judge, sensing that Matthews might unwittingly incriminate himself, had reminded him of his Fifth Amendment right, there could be no objection, in these appeals anyway, to the judge's action. For that was the holding of United States v. Colyer, 571 F.2d 941, 946 (5th Cir. 1978), and the defendants do not challenge it. See also United States v. Morrison, 535 F.2d 223, 228 (3d Cir. 1976).

   Their argument, rather, is that by blurting out his confession in open court Matthews forfeited his right not to be forced to incriminate himself, so the judge should have required him to continue testifying rather than excuse him. By excusing a defense witness over the defendants' objection without any basis in the Fifth Amendment or any other source of law for doing so, the judge -- the argument continues -- interfered with the defendants' right to defend themselves. See Webb v. Texas, 409 U.S. 95, (1972).

   Evaluation of this argument requires us to consider two rules pertaining to the privilege against compulsory self-incrimination. The first is that allowing an incriminating statement to stand as evidence against the person who made it does not violate the privilege even if he was not aware of the privilege when he made the statement -- even if, in other words, he was not knowingly waiving a constitutional right. E.g., Minnesota v. Murphy, 465 U.S. 420, 1142, (1984); Garner v. United States, 424 U.S. 648, 654 n.9, (1976).

   The reason behind this rule is that if the witness blurted out his confession without prodding, there was no compulsory self-incrimination and hence no violation of the Fifth Amendment. See Garner v. United States, supra, 424 U.S. at 654-55. This rule would be applicable if the government were prosecuting Matthews and seeking to use his confession as evidence against him; but it is not. The rule is not addressed to the question whether a judge, sensing that a witness who is not a party may have blundered into making a self-incriminating statement without appreciating the significance of his action, inflicts a wrong on a party to that case by reminding the witness of his Fifth Amendment right and permitting him to withdraw the statement.

   The second rule is that if a witness confesses on the stand to wrongdoing he cannot refuse to give the details. See, e.g., Klein v. Harris, 667 F.2d 274, 287 (2d Cir. 1981). "The privilege [against compulsory self-incrimination] is to suppress the truth, but that does not mean that it is a privilege to garble it. . . ." United States v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942) (L. Hand, J.), cert. dismissed, 319 U.S. 41, (1943). But since Matthews' initial testimony was suppressed, his failure to elaborate could 1345 not garble that testimony in any sense relevant to the trial.

   No court has decided whether the district judge has the power to protect a witness who has begun to incriminate himself from inadvertent abandonment of his Fifth Amendment privilege in circumstances where the government is not seeking either to use the witness's initial testimony against him or to get the witness to elaborate on that testimony in order to prevent distortion. But since in these circumstances the judge can caution a witness before the witness speaks ( Colyer), and it would be illogical to hold that he may not caution the witness seconds later after the witness has blurted out a damaging admission, we hold that he may.

   The manner in which defense counsel questioned Matthews provides an independent reason for refusing to set aside the defendants' convictions because of the exclusion of Matthews' testimony. By asking him whether he realized that he had a constitutional right not to be forced to incriminate himself, counsel invited Matthews to retract his answer and assert his right, and will not be heard to withdraw the invitation.

   And since Matthews' affirmative answer implied, as defense counsel intended that it should imply, that he was testifying with due awareness of the possible consequences to him of testifying, and therefore presumably with greater reluctance to incriminate himself falsely, the prosecutor was entitled to verify that Matthews really was knowingly waiving his Fifth Amendment right -- really was aware that he did not have to testify against himself but that if he did so he could be prosecuted and his testimony used to convict him. If there was any error, therefore, it was invited by defense counsel's manner of questioning Matthews.

   The judge's questions designed to elicit Matthews' understanding of the significance of his testifying were not excessive in number or badgering in tone or phrasing, and therefore we cannot agree that by the manner of putting them the judge drove a key defense witness off the stand; nor did the prosecutor intimidate the witness, as in United States v. Morrison, supra, 535 F.2d at 227-28, or United States v. Smith, 156 U.S. App. D.C. 66, 478 F.2d 976, 979 (D.C. Cir. 1973). And therefore the judge was also justified (indeed compelled) to direct the jury to disregard Matthews' testimony, as the prosecution was deprived by Matthews' assertion of his Fifth Amendment privilege of an opportunity to cross-examine him.

   The judge's reference to the threat of prosecution for perjury if Matthews testified presents a related issue. The judge said that a misstatement could open Matthews to a perjury prosecution. This was literally true but was likely to create a misleading impression because a critical proviso was omitted: if the misstatement was deliberate. The defendants argue that by exaggerating to Matthews the danger that he might be prosecuted for perjury if he testified on their behalf, the judge improperly drove him from the stand even if the judge's handling of Matthews' Fifth Amendment right was impeccable.

   In different circumstances we can easily imagine that a judge's telling a defense witness that a misstatement (as distinct from a deliberate misstatement) could result in perjury charges would indeed be reversible error if the witness then declined to testify; it would be an unjustifiable interference with a criminal defendant's right to defend himself by calling witnesses. But it was not fear of perjury charges that led Matthews to step down. When he decided not to testify he gave as his reason his Fifth Amendment right rather than any fear of a perjury prosecution. And it is difficult to imagine that he could really have feared the consequences of such a prosecution.

   Matthews is serving three consecutive life sentences (at least one a state sentence) for either two or three murders (the record is unclear on this point). The incremental punishment that would result from a conviction for perjury would be, as a practical matter, zero. Thus we cannot believe that the judge's misstatement about misstatements could have been the 1346 decisive factor in Matthews' decision not to testify; if it was error, it was harmless beyond a reasonable doubt.

   This point may seem to undermine our earlier conclusion that Matthews voluntarily asserted his Fifth Amendment privilege in declining to testify. If he had testified about the murder of Chappelle and his testimony had been believed, he could have been prosecuted for murder but at worst this would have meant another consecutive life sentence -- and what would a fourth consecutive life sentence add to the three previous ones? But this is tantamount to an argument that Matthews had no Fifth Amendment right not to testify in the defendants' case because he could not really incriminate himself, an argument that will not wash despite its practical appeal.

   To incriminate oneself is, as the language of the Fifth Amendment makes clear ("No person . . . shall be compelled in any criminal case to be a witness against himself"), to expose oneself to criminal prosecution, Hoffman v. United States, 341 U.S. 479, 486-87, (1951); In re Folding Carton Antitrust Litigation, 609 F.2d 867, 872 (7th Cir. 1979), even if a successful prosecution is unlikely to add to the punishments that one is already undergoing for other crimes. Matthews' Fifth Amendment right may not have been worth much, which leads us to wonder why he bothered to assert it; but there is no more plausible explanation of why he decided not to testify. The hypothesis that he did so because he feared being prosecuted for perjury if he made an honest mistake is even less believable.

   But, the defendants argue, if Matthews was allowed not to testify, then at least his pretrial statements, which included a confession to the murder of Chappelle, should have been admitted under the exception to the hearsay rule for statements against interest. See Fed. R. Evid. 804(b)(3). One condition of the exception clearly was satisfied. The declarant was unavailable; Matthews could not be questioned in court about the confession once he took the Fifth Amendment. Fed. R. Evid. 804(a)(1); 4 Weinstein & Berger, Weinstein's Evidence para. 804(a)[01] at pp. 804-34 to 804-35 (1981). And we shall assume that the confession was a statement against interest (so satisfying another condition), though the contrary position is arguable since Matthews could not be further punished in view of his life sentences.

   But there is still another condition in Rule 804(b)(3) that is pertinent to this case: "A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." (Emphasis added.) As this language and the legislative history indicate (see Notes of Advisory Committee on Proposed Rule 803, Subdivision (b), Exception (3); H.R. Rep. No. 650, 93d Cong., 1st Sess. 16 (1973)), such statements are suspect because of along-standing concern -- whether or not well-founded, see 5 Wigmore, Evidence in Trials at Common Law § 1477 (Chadbourn rev. ed. 1974) -- that a criminal defendant might get a pal to confess to the crime the defendant was accused of, the pal figuring that the probability of his actually being prosecuted either for the crime or for perjury was slight. See, e.g., United States v. Tovar, 687 F.2d 1210, 1213 (8th Cir. 1982) (per curiam); Lyon v. State, 22 Ga. 399, 401 (1857).

   The present case provides a good illustration of this concern. Although not shown to be a member of the Aryan Brotherhood or even a sympathizer, Matthews may well be the latter; for he is white, and there was testimony that "almost any solid white man you run into is a sympathizer. I would say the greater majority of the institution." And, as we have said, even if the government prosecuted Matthews either for the murder of Chappelle or for perjury, and succeeded in convicting him, it could not impose significant punishment. Cf. Chambers v. Mississippi, 410 U.S. 284, 300 n. 20, (1973).

   Unfortunately, the precise meaning of the corroboration requirement in Rule 804(b)(3) is uncertain, and is not much 1347 clarified by either legislative history or the cases. See Tague, Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception, 69 Georgetown L.J. 851, 958-70, 973-74 (1981). In particular, it is unclear from the rule's language whether the judge may look beyond the evidence offered in corroboration of the statement to evidence either directly contradicting the statement or contradicting the evidence offered to corroborate it. If he may look beyond, the rule is open to the objection that it withdraws the credibility determination from the jury. But probably he may, in light of the Advisory Committee's admonition that "The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication." It is noteworthy that this caution was offered before the House Committee further strengthened the rule by inserting the word "clearly," which had not been in the proposed rule.

   Evidence that the judge was not required to ignore created a strong inference that Matthews' statements were totally fabricated -- which would be no surprise in view of his de facto immunity from being punished for either murder or perjury. Cf. United States v. MacDonald, 688 F.2d 224, 233 (4th Cir. 1982). Although the fact that Matthews was let out of his cell before the discovery of Chappelle's body provides slight corroboration for his statements, the medical evidence that Chappelle was killed by two men and the estimate of the time of death entitled the judge to conclude that the circumstances did not clearly indicate that Matthews' confession was trustworthy. Cf. United States v. Tovar, supra, 687 F.2d at 1213-14; United States v. Satterfield, 572 F.2d 687, 693 (9th Cir. 1978); Lowery v. State, 401 F. Supp. 604, 607-08 (D. Md. 1975), aff'd without opinion, 532 F.2d 750 (4th Cir. 1976).

   But even if the judge should not have considered any evidence beyond that offered to corroborate Matthews' statement, he would have had to exclude the statement. The mere fact that Matthews was out of his cell shortly before Chappelle's corpse was discovered was not clearly corroborative of his confession, but merely consistent with it. It is not as if the statement had contained facts that only the murderer could have known, or if, as in Donnelly v. United States, 228 U.S. 243, 272, (1913), which Rule 804(b)(3) overruled, there was other evidence linking Matthews to the crime. In either case the requirement of clear corroboration ("circumstances solidly indicating trustworthiness," United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976)) would have been satisfied, at least if one assumes (as we do not) that the judge could not consider the medical evidence that cast grave doubt on the truth of Matthews' statement. But on the facts presented, the requirement was not satisfied.

   We reject the argument that Matthews' out-of-court confession (whether or not trustworthy) is further and conclusive evidence that Matthews waived his Fifth Amendment right not to testify at the defendants' trial. The confession was not made under oath; and the Fifth Amendment does not allow the government to force a man to adopt his unsworn out-of-court confession. United States v. Diecidue, 603 F.2d 535, 552 (5th Cir. 1979).

   We turn now to Reynosa's contention that the judge misled the jury by his response to a question that the jury submitted to him while it was deliberating. The question was: "Is it possible to get the testimony of August '81 of Silverstein and Reynosa making contact about murdering Robert Marvin Chappelle?" The judge and counsel conferred about the question. All agreed that there had been no such testimony.

   The indictment, which had been given to the jury with the usual instruction that it was not evidence, charged that Silverstein and Reynosa made contact in August 1981. But no substantiating evidence had been offered, although the conversation between Reynosa and Perumean in which Reynosa said that Silverstein owed him a favor and would if need be "get" Chappelle did take place in August, and it implied contact, direct or indirect, between the two. The judge suggested telling the jury, "Sorry, it is not possible to furnish the requested testimony." The defendants' lead counsel agreed, provided the judge added, "Continue with your deliberations." Reynosa's counsel did not demur. The defendants were not present during this exchange and the judge did not reconvene the jury. Instead he sent the following note to the jury: "Sorry, it is not possible to furnish the requested information. Please continue with your deliberations. Judge Foreman."

   Reynosa argues that his right to be present throughout the trial was infringed because he was not in the courtroom when the judge replied to the question that the jury had raised, and in addition that the judge's reply prejudiced Reynosa's case by implying that there had been testimony about a conversation between him and Silverstein in August 1981 about murdering Chappelle. Reynosa's counsel did not object either to his client's absence from the courtroom or to the judge's reply to the jury's question; necessarily therefore Reynosa is arguing that these were plain errors. See Fed. R. Crim. P. 52(b).

   Rule 43 of the Federal Rules of Criminal Procedure requires that the defendant be present (if he desires) "at every stage of the trial," and this has been held to include the giving of a supplementary instruction or other communication with the jury after it has begun deliberating. Rogers v. United States, 422 U.S. 35, 39, (1975). But the requirement is subject to the doctrine of harmless error. Id. at 40; United States v. Burns, 683 F.2d 1056, 1059 (7th Cir. 1982); United States v. Clavey, 565 F.2d 111, 119 (1977), modified en banc on other grounds, 578 F.2d 1219 (7th Cir. 1978) (per curiam); Ware v. United States, 376 F.2d 717, 719 (7th Cir. 1967); 3A Wright, Federal Practice and Procedure: Crim. 2d § 724 at p. 31 (1982).

   It is most unlikely that a different reply to the jury's question would have been formulated if the defendants had been present. It was not the sort of question on which counsel would be likely to consult their clients, or on which the clients, if consulted, would be likely to have an answer that would sway the judge. In Ware, a similar case, this court described as "fancifully remote" the prospect that the defendant's presence would have changed the outcome of the trial. 376 F.2d at 718.

   A more troublesome point is that the reply was potentially misleading. It could be understood to imply that the testimony the jury wanted to read had indeed been given but that the transcript had not yet been prepared, or had been mislaid, or the jury for some reason was entitled to see the transcript. (Another possible interpretation of the note, however, is that no part of the trial transcript -- whatever it might contain -- was available for the jury to see.) The implication the jury might have drawn -- that there had indeed been direct testimony about a contact between Silverstein and Reynosa in August 1981 about killing Chappelle but that the pertinent pages of the transcript were for some reason unavailable -- was incorrect. The jury should have been told that there had been no direct testimony about such a contact but that it could consider, if it thought it significant, whether the testimony supported an inference that such a contact had been made.

   But we do not think the instruction actually given was so likely to have changed the result that a retrial is necessary to avoid a miscarriage of justice, the test for whether an error is "plain" within the meaning of Rule 52. United States v. Frady, 456 U.S. 152, 163 n. 14, (1982); United States v. Blackwell, 224 U.S. App. D.C. 350, 694 F.2d 1325, 1341 (D.C. Cir. 1982). It is true that the only evidence of Reynosa's participation in the conspiracy consisted of testimony by other inmates as to incriminating statements that Reynosa had made. But there was a good deal of mutually corroborating testimony along these lines and if the jury believed it, as it was entitled to do, then it had to convict Reynosa, while if it disbelieved the inmates' testimony it had to acquit him.

   A suspicion (quite possibly correct) that Reynosa and Silverstein had "made contact" (maybe indirectly) in August 1981 could not have tipped the scales. Of course the fact that the jury asked for the transcript shows that the question of such a contact concerned at least one juror, and the form in which the judge replied might have confirmed the erroneous recollection of a juror or jurors who thought there had been such testimony. But since the judge refused to supply the requested transcript, the jury 1349 could not have placed decisive weight on the erroneous recollection of the testimony. Whoever wanted the transcript must in the end have been convinced that there was enough other evidence, as indeed there was, to link Reynosa to the conspiracy to murder Chappelle.

   To be plain, an error must be conspicuous, at least in hindsight, and maybe the error in the supplementary instruction was; but it must also be an error that probably changed the outcome of the trial, and the fact that this error cannot be dismissed as harmless (as can the error in responding to the jury's question without the defendants' being present) is not enough to show that it probably changed the outcome. See United States v. Blackwell, supra, 694 F.2d at 1341; 3A Wright, supra, § 856 at p. 344.

   No doubt the difference between the standards of plain and of harmless error is small, but there is some, and there is a reason for it. Reversing a conviction on the basis of an error that the defendant's lawyer failed to bring to the judge's attention is inconsistent with the premises of an adversary system and disruptive of the efficient operation of the criminal justice system. It is justifiable only when the reviewing court is convinced that it is necessary in order to avert an actual miscarriage of justice, which implies the conviction of one who but for the error probably would have been acquitted. We are not convinced that there was such a miscarriage here.

   We also reject the argument that acquiescence in the form of the reply demonstrates that Reynosa's trial counsel was ineffective. He made a mistake, but (as we have just said) not a critical one; the representation of none of the defendants at trial fell below the threshold of minimum professional competence.

   Although several other issues are raised in the defendants' briefs, none of them has any possible merit. Hevle argues with great vigor that David Owens' testimony was unbelievable, noting that he gave contradictory testimony on some points and pointing out the irony of the government's relying on the testimony of the man who proposed that the Aryan Brotherhood assassinate Chappelle. But Owens' testimony was richly corroborated by that of other inmates. If all inmate testimony were deemed inherently incredible, few crimes within prison walls could be prosecuted -- or for that matter defended.

   The judgments of conviction are



Clayton Anthony Fountain


Clayton Anthony Fountain



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