Solina and Bruscino, two inmates at Marion Federal Penitentiary, appeal from their convictions for assaulting a guard, Carter, during a free-for-all in the prison mess. Carter had just taken a knife away from *1211 another inmate when (according to the government’s evidence) Solina tackled him and Bruscino hit him with a chair. Solina and Bruscino were tried together, convicted by a jury, and sentenced to three and eight years’ imprisonment, respectively, to run consecutively to their other federal sentences.
Their appeals raise a number of different issues, which we discuss in the sequence in which they arose in the prosecutions. One issue, however — the defendants’ challenge to the selection of the jury — need not be discussed; the identical issue was resolved in the government’s favor in our recent en banc decision in
United States v. Gometz,
The first two issues we take up relate to the district judge’s refusal to grant continuances to give the defendants more time to get ready for trial. The fight in the mess took place on April 16, 1982, the indictment was handed down on November 18, 1982, and the trial began on January 3, 1983. Bruscino was represented by appointed counsel from the public defender’s office and does not contend that his appointed counsel was incompetent or ineffective. But just before the trial began Bruscino succeeded in retaining counsel, and on the day the trial began, his retained counsel, though he had not yet filed an appearance, moved for a continuance to enable him to familiarize himself with the case. The district judge refused to grant the continuance. We think the judge acted within his discretion. Bruscino had had more than eight months after the incident (and five weeks after the indictment) to retain counsel, and the timing of the request for a continuance suggests that he may deliberately have waited till the last moment in order to delay the trial. In any event that would have been the effect of granting the continuance, and the delay would have caused inconvenience to the judge, the jurors, and the prosecutors, and to other litigants in the district court, whose trials might have had to be rescheduled. It is true that as a result of the judge’s denial of the continuance Bruscino’s retained counsel withdrew from the case and Bruscino went to trial without the counsel of his choice. But he had competent counsel; and while a court may not arbitrarily deny a criminal defendant the right to retain his own counsel in preference to being defended free of charge by a lawyer appointed by the court, it is not required to allow a last-minute change in counsel to disrupt its schedule.
Morris v. Slappy,
Without going so far as to suggest that his appointed counsel was incompetent, Bruscino argues that a certain antagonism developed between counsel and the court during the course of trial, which (he suggests) would not have happened with the counsel of his choice. This may be; but if as we believe the refusal to allow a last-minute substitution of counsel did not violate Bruscino’s rights, the fact that he might have done better at trial if the substitution had been allowed has no legal significance. See
United States v. Ely,
Solina made clear at his arraignment a month before trial that he wanted to defend himself. “Standby counsel” was appointed to assist Solina with any points of law that might arise at trial. On the day trial began, Solina asked the court to let his standby counsel take over and conduct his defense, and standby counsel asked for a continuance in order to prepare. The judge refused the continuance, and again we think he was acting within his discretion in doing so. A criminal defendant has a constitutional right to defend himself; and with rights come responsibilities. If at the last minute he gets cold feet and wants a lawyer to defend him he runs the risk that *1212 the judge will hold him to his original decision in order to avoid the disruption of the court’s schedule that a continuance granted on the very day that trial is scheduled to begin is bound to cause.
Both defendants have previous experience with the criminal justice system. That both should have moved for continuances on the opening day of trial suggested to the district judge, who has long experience with litigation out of Marion — the nation’s maximum-security federal prison (successor to Alcatraz), see
Garza v. Miller,
The next set of issues we discuss are evidentiary. The defendants wanted to put into evidence the torn and bloody clothing of several inmates who had been wounded by Logue, the knife wielder whom Carter, the victim of the defendants’ assaults, disarmed. The government could not produce the clothing, which apparently had been lost. There is no indication that the government deliberately suppressed this evidence, but the defendants argue that they should at least have been allowed to present evidence that the clothing had been lost, and the district judge refused to let them do so. We think he acted properly. The torn and bloody clothing had no relevance to the defendants’ case. If anything, its introduction into evidence (if it had been found) would have bolstered the government’s case by showing what a menace Logue had been, thus making it all the more reprehensible that Solina and Bruscino should have assaulted the guard who disarmed him. Especially if the defendants’ action could be taken to imply that they were in league with Logue, the production of physical evidence of the damage he had done with his knife could only have harmed their cause.
A related objection is to the exclusion of testimony by an inmate who allegedly heard Carter, before the altercation with Solina and Bruscino, announce that he had secured Logue’s knife. This evidence was excluded as hearsay. The basis of exclusion was incorrect. The evidence was offered to show not the truth of Carter’s statement but the state of mind of the defendants, who testified that they had acted in self-defense. Nevertheless, the evidence was properly excluded; it was irrelevant. If the defendants knew that Carter had just disarmed a dangerous knife-wielding assailant, it is all the more difficult to understand why they should have attacked Carter and how they could have thought they were acting in self-defense in doing so.
The defendants also object to the exclusion of some photographs. Several were admitted; the ones that were excluded were additional photographs of the mess hall after the fight, and of two of the inmates who had been cut up by Logue. The additional photographs of the mess hall were duplicative. The photographs of the wounded inmates were irrelevant on the same ground that the torn and bloody clothing would have been irrelevant — as well as gruesome.
Bruscino complains about the district court’s refusal to allow him to subpoena a guard from the federal prison at Terre Haute in order to give testimony — of a rather improbable cast, see
United States v. Bruscino,
The defendants challenge the judge’s order limiting the number of witnesses that each of them could call to four (not counting themselves). Actually the judge later changed the limit to allow Solina seven witnesses (besides himself). Bruscino used up his quota, but Solina did not, and as to him therefore the issue of the limit on the number of witnesses is academic. So we shall confine our discussion to Bruscino. As he points out, the critical question in the case was what had happened during the fight, and all the inmates who had been present — some 40 or 50 — were potential eyewitnesses. However, judges must have the power to limit the number of witnesses that a party can present at trial, or else some trials would go on forever. The power was not abused here. See
Loux v. United States,
The defendants raise some other evidentiary issues, but they are not worth discussing, and we move on to their argumerd: that the prosecutor made improper remarks in closing argument. The first remark was: Of course they don t have to Pu^ on any evidence in their defense, but ladies and gentlemen when they put on evidence, they have to be judged by the believability of what they put on. And if that evidence is not believable, they have to rise or fall by the believability of that evidence.” The defendants argue that in so saying the prosecutor implied that the burden of proof was on the defendants, rather than the government, once they elected to offer evidence. This is a strained interpretation of remarks seemingly intended just to tell the jury that it was not obliged to believe the defendants’ witnesses. In any event, the jury was instructed not once but several times that the prosecution had the burden of proving the defendants’ guilt beyond a reasonable doubt. The instructions (delivered of course after the closing arguments) should have cured whatever misapprehension the prosecutor’s remark may have created,
Bruscino also complains about the prosecutor’s remarks in closing argument about inmate Garza, who had testified on Bruscino’s behalf that it was he, Garza, not Bruscino, who had hit Carter with the chair. The prosecutor said: “Mr. Garnati [Bruscino’s counsel] says [Garza] doesn’t have any motive to lie here today; that he could be indicted. Well, Mr. Garnati knows and you should know, ladies and gentlemen, this little scenario happens at the next trial, he was coerced by someone,
*1214
unknown, and that statement wouldn’t be admissible ____ What a great situation that would be when that happens. The statement can’t come in at Garza’s trial ____” Bruscino argues that these remarks went beyond the evidence, since there was no evidence that Garza had been coerced to testify. But this misses the thrust of the remarks. The prosecutor was arguing that if Bruscino was acquitted and Garza indicted in his place, Garza would argue that his testimony in Bruscino’s trial had been coerced, and if this argument was accepted the testimony would be inadmissible and Garza would have to be acquitted too. All this was conjecture but it was within the bounds of fair reply to the argument of Bruscino’s counsel that Garza had no motive to lie because if Bruscino was acquitted Garza would be indicted. That inmates at Marion are occasionally coerced by other inmates is an unfortunate fact of life of which we can take judicial notice, see, e.g.,
United States v. Silverstein,
The defendants argue that in the copy of the indictment given the jury when it retired for its deliberations the phrases “the grand jury charges” and “a true bill” should have been deleted, along with the signatures of the foreman of the grand jury and the United States Attorney. Except in regard to the phrase, “a true bill,” we find the argument difficult to understand. The phrase, “the grand jury charges,” merely reinforced the instruction that the judge gave the jury, along with the indictment, that the indictment was a summary of charges and not evidence of the defendants’ guilt. We think the phrase “a true bill” should have been deleted, as the jury might not understand that the word “true” referred to the authenticity of the indictment rather than to the truth of the charges contained in it. But since as we have said the jury was instructed that the indictment was not evidence, the failure to delete the phrase was not so prejudicial as to warrant reversal, see
United States v. Ramirez,
The district court refused to give an instruction requested by Solina that he should be acquitted unless the jury found beyond a reasonable doubt that his assault on Carter “was not an instinctive reaction.” Apart from the objection to giving instructions that contain a double negative and are therefore confusing, the instruction was hopelessly ambiguous and assuredly should not have been given. The word “instinct” is used in our language in two quite different senses. The first is the scientific sense in which an “instinctive reaction” is an involuntary reflex based not on culture or training but on the genes. When a person who has never been in a high place recoils from heights, his reaction is instinctive in this sense. The second meaning of “instinctive reaction,” popular rather than scientific, is a reaction that while not genetically determined occurs too quickly for conscious thought. When a pilot through long training reacts to an emergency by pushing the right buttons without thinking, his reaction is “instinctive” only in the second sense; it is a product of the pilot’s training, not of his genetic makeup. Instinct in the first sense, to the extent to which it might be involved in this case, was covered by the judge’s instruction (not objected to — in fact proposed by Solina) on self-defense. Instinct in the second sense is not a defense to a criminal charge. If you have been trained to react violently to a variety of culturally inappropriate stimuli (e.g., to someone’s frowning at you), and do so *1215 without thought — if you are a “habitual killer” — you are not thereby exonerated from criminal liability. Willfulness does not require an interval of conscious thought. In any event the jury was instructed correctly on the required willfulness of Solina’s act, and the additional instruction he requested could only have confused the jury.
The judgments of conviction are
Affirmed.