768 F.2d 790 (7th Cir. 1985), 84-1939, United States v. Fountain

Docket Nº:84-1939, 84-1940 and 84-1949.
Citation:768 F.2d 790
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Clayton FOUNTAIN, Thomas E. Silverstein, and Randy K. Gometz, Defendants-Appellants.
Case Date:July 08, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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768 F.2d 790 (7th Cir. 1985)

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

July 8, 1985

Argued Feb. 15, 1985.

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[Copyrighted Material Omitted]

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Frederick J. Hess, U.S. Atty., East St. Louis, Ill., Michael C. Carr, U.S. Atty., Benton, Ill., for plaintiff-appellee.

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.

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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. Sec. 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. Secs. 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

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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. Sec. 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

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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...

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