Appeals from the United States District Court for the Southern District of Illinois, Benton Division. Nos. 83 CR 40058, 83 CR 40060 - James L. Foreman, Judge.
Before WOOD AND POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
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 from, 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 clock 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 for the 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 fact of maximum security precautions, the fact that most of the witnesses were murders, 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 thing - 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 16.2(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 to a continuance can cause serious inconvenience to judge, jury, opposing 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 thing 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 [pp]609, 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 reasonable thought (which is itself nearly inconceivable) that Clutts was about to lose 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 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 thing 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, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (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. 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 by cessary 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 to 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 murder the same day if 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 ...