Appeals from the United States District Court for the Southern District of Illinois, Benton Division. No. 82 CR 40016 -- James L. Foreman, Judge.
Pell and Posner, Circuit Judges, and Parsons, Senior District Judge.*fn*
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, 34 L. Ed. 2d 330, 93 S. Ct. 351 (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, 104 S. Ct. 1136, 1142, 79 L. Ed. 2d 409 (1984); Garner v. United States, 424 U.S. 648, 654 n.9, 47 L. Ed. 2d 370, 96 S. Ct. 1178 (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 ...