UNITED STATES of America, Plaintiff-Appellee, v. Clayton FOUNTAIN, Thomas E. Silverstein, and Randy K. Gometz, Defendants-Appellants.
Nos. 84-1939, 84-1940 and 84-1949
United States Court of Appeals, Seventh Circuit.
Argued Feb. 15, 1985. Decided July 8, 1985.
Because of our disposition of this appeal, this Court need not discuss the “Good Samaritan” theory advanced by Cisco or the applicability of the misrepresentation exception to the FTCA.
The district court‘s order of dismissal is AFFIRMED.
David R. Freeman, Fed. Pub. Defender, St. Louis, Mo., Howard B. Eisenberg, So. Ill., Univ. School of Law, Carbondale, Ill., Thomas Day, Fed. Pub. Defender Ofc., St. Louis, Mo., for defendants-appellants.
Before WOOD and POSNER, Circuit Judges, and SWYGERT, Senior 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,
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 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
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, oppos-
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
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 ¶ 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
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
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.
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
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, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (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.
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
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 although 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, 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
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.”
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.”
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,”
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.
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.
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 byproduct 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, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (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, 1228-1229 (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
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,”
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), U.S.Code Cong. & Admin. News 1982, pp. 2215, 2539—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,
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.
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
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
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 imprison-
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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
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
I
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,
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
Second,
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
The majority holds that another statutory exception,
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
The majority also holds that the prior knifing was admissible to show a modus operandi, which is a “plan” within the meaning of
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.
II
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, Compulsory 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, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (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, supra, 733 F.2d at 1212-13, cert. denied, — U.S. —, 105 S.Ct. 519, 83 L.Ed.2d 408 (1984); Greenwell v. United States, 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
The Supreme Court has stated that some constitutional errors can never be harmless. Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 827 & n. 8, 17 L.Ed.2d 705 (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, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (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, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (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.
III
According to my understanding, the majority adopts a per se rule precluding any
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
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, 1223-24 (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,
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 trials, a similar order with respect to their restitution sentences would be unnecessary.