Solitary Soul: Tommy Silverstein

Not even the notorious “Birdman of Alcatraz” was held in (total solitary confinement) absolute insolation, as I have been subjected to the past 23 years!  He was able to see and speak with his neighbors in adjacent cells beside and across from his cell at U.S.P. Leavenworth in building 63 (where I had spent over a year in 1979-80). Whereas I am deprived of any and all contact with fellow prisoners.

Prisoncrats have sadly, but most definitely, surpassed their previous diabolical means of burying a man alive in the twenty first century since the Birdman’s era.

These pathetically sadistic agents of oppression eerily have excelled at intensifying the environment of sensory deprivation and psychological torture, which is what causes sane men to be driven completely insane. This has been scientifically proven;   I do not arbitrarily charge my tormentors as “sadist.” They know exactly the effects of long term insolation and intentionally, with malice and forethought, continue it.

I’ll include my recent appeal’s so you can read it for yourself my argument for getting out of this damnation and their denials.  We have four levels of appeals. Two at the prison, three to the regional director and the last (fourth) to the BOP director in Washington, D.C.

We (prisoners) seldom win an appeal. It’s really just a sham they use to assure the public that any grievances we have are reviewed by higher level administrators.  Which is comparable to the cops policing themselves. Ha ha! It is not worth the paper its written on. I however went through the process anyway in order to obtain irrefutable evidence, so no one would have to just take my word regarding my allegations.  The BOP enjoys giving the illusion that our problems will be solved if we (the prisoners) would only file appeals.  Although this process is stress producing, it is a legal requirement that I exhaust all my administrative remedies (appeals) before I can petition the courts to hopefully make the BOP officials do what they’re determined not to do on their own.

You’ll note they don’t make it easy for me in this regard either, because as they often do when they don’t want to address an issue, they’ll dismiss it as “untimely” or claim they didn’t receive it, etc.

Prisoncrats, like politicians, lack the integrity to just spit it out as they really see it, so they hide behind the same procedures that they’ve created and implemented; so in the rare event someone like me dares to expose this nonsense, they can claim everything was in accordance with  BOP  policy.

This is one reason we’ve started this site. We hope to reveal, from a prisoners personal perspective, what truly goes on behind these prison gates of hell, that are seldom, if ever, presented by the corporate, mainstream media, much less seriously challenged. On the contrary and sadly, when they do bother to report on U.S. penitentiaries, it’s miserably inadequate and skewed in favor of the prisoncrats. Their premise being “them against us.” “Us” being called the “worst of the worst,” while guards use that ploy to justify their madness, abuse, and means of confinement.

We welcome one and all to our new site. Regardless of sex, race, religion, class, height, weight, looks, education, citizenship, etc. We honor your input and interest in what all we share together, so please don’t hesitate to express yourself whenever the urge strikes.

But I must warn you, we believe in free speech. A lot of folks say that, until they hear what they don’t like and suddenly want to ban it. If anyone objects to adult language, being expressed about adult issues, I suggest you stick with the mainstream sources who spoonfeed the public their sterilized sugar coated version of events and commentary, in fear of offending someone who’ll stop buying their paper.

This site also hopes to give the voiceless an opportunity to finally be heard loud and clear. We care more about what’s said, than how people say it!

If all goes well, we hope to enlist some profound columnist to share their investigative insights into the U.S. penal/injustice system so you all can see what is happening within the U.S. penitentiaries since your hard earned and over taxed dollars are paying for it. You all should have a say about how these government asylums are run and by whom.  Especially when George Bush and Attorney General Alberto Gonzales continue to assure the public that the U.S. government doesn’t condone torture.   

When in fact, both men support torture, as evidenced by the 23 years I have served in total solitary confinement; torture intended to make my life “a living hell.”

I’m an American citizen, so if they can get away doing it to me, they can do it to anyone!

A former law clerk to Clarence Thomas and a member of the right wing federalist society, John Woo, was among a group of Bush administration lawyers, including Alberto Gonzales, now Bush’s Attorney General, who crafted legal justification giving Bush a free hand to order the torture of those he has declared as “illegal combatants” and held at Guantanamo Bay and elsewhere.  I am not an illegal combatant and I am accused of killing gang members (members of a prison gang) and one prison guard, not members of the armed services fighting a war.

According to the PBS documentary “The Torture Question,” after 9/11,  John Yoo “wrote the first draft of a sweeping war powers authorization designed to give president Bush unprecedented power. The new statue would vest virtually unlimited power in the President to fight the war on terror. Congress passed it overwhelmingly.”

The following quotes by John Yoo are from New York magazine (“Outsourcing Torture” by Jane Mayer.):

“There is a category of behavior not covered by the legal system...if you were an illegal combatant, you didn’t deserve the protection of the laws of war...they were tried in a military court and executed.”

Congress has no power to “tie the President’s hands in regard to torture as an interrogation technique.”

“It’s the core of the commander in chief function. They can’t prevent the President from ordering torture.”

Conservative my ass! These people are Nazi’s!

This is not surprising to U.S. prisoners since we are regularly subjected to this systems torturous techniques.  What Yoo has professed publically isn’t anything new to this governments penal institutions and what they do to its own confined citizenry!       

I’m not in Abu Ghraib or one of this governments secret prisons abroad, where they send suspected terrorist to be tortured so they can later claim the usual bureaucratic non-accountability if and when their deceitful maneuver is revealed. I am in the U.S. of A.’s BOP’s most Draconian and repressive SuperMax penitentiary in this country and perhaps the world. It’s replaced the horrific U.S.P. Marion in Illinois.  The BOP opened the Administrative Maximum (ADX) in Florence, Colorado, in1994.  The BOP  had three decades to sharpen their instruments of human destruction and degradation, in order to make “hell a living reality at their new and  improved monster at the United States Penitentiary (U.S.P.) in Florence, Colorado.

Here is...

...where real life is stranger than fiction and in the absence of light, darkness prevails

After 31 long hard years in some of American’s most cruel and harsh prisons; Solodad, San Quentin, U.S.P. Leavenworth, Atlanta, Marion and Florence, I now know exactly why the Irish dramatist, novelist, poet and wit, Oscar Wilde, said after his imprisonment for homosexual offences (1895-97) that if you ever want to see the scum of the earth, go to your local prison and observe the changing of the guards.

In an article entitled “US Prison Torture and You” it states in the early 1800 and 1900's prisons warehoused prisoners in dirty, stark, solitary confinement cells (now they leave a maddening bright light on 24-7) and a large number of them never left, or left with serious mental disorders. A delegation from Europe, came to America and with the well known author, Charles Dickens, toured the U.S. prison system. Upon completion of the tour, there was a very negative report. But something Charles Dickens wrote played an integral part in waking up society to the inhumanity of solitary confinement:

“I believe that few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts. There is a depth of terrible endurance in it which none but the sufferers can fathom. I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body; and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, therefore the more I denounce it as a secret punishment which a slumbering humanity is not roused up to stay.”

This commentary by Dickens, caused the U.S. Supreme Court to review the use of solitary confinement and they concluded that it indeed caused mental disorders and was therefore a violation of the 8th Amendment (the right to be free from cruel and unusual punishment). New guidelines were established nationwide, banning the use of solitary confinement for more than 15 consecutive days. This saved thousands of prisoners and millions of tax dollars. It also protected society from the release of damaged, often psychotic men and women.

In 1952, an administrator at the New Jersey state prison figured a way around the ban. At the time, he truly believed in what he was doing. He changed the name from “solitary confinement” and remained it “administrative segregation” and classified it as “treatment.”

Four years later that administrator, Richard R. Korn, realized he was mistaken and that solitary, in whatever disguise, could not be treatment, that it did indeed cause serious psychological damage. He stood up and protested it, but the system had once again embraced it as a tool of control. The consequences to the prisoners and society be damned.

An old adage proclaims that the sure sign of insanity, is repeating the same mistakes over again, expecting a different result.

Since history clearly shows us that solitary confinement does more harm than good, proves the idiocy and sadistic mentality of prison administrators who embrace this barbaric, medieval practice that is a crime against humanity.

More to follow, but for now, I wish you all and hope you all continue to visit us!

Your new pal, I hope!

Tommy Silverstein
#14634-116, Z-13-040-L

America's Most Dangerous Prisoner?

"...Thomas Silverstein, a man considered so dangerous he was been isolated from the outside world...."

Although Mr. Thomas Silverstein has been convicted of killings at Marion U.S. Penitentiary during the early 1980s (1981-1983).  It should be remembered that he had never killed anyone while on the street or at Leavenworth (the conviction for killing the inmate in 1980 at Leavenworth; the one he was sent to Marion for allegedly killing was overturned by the Appellate Court.)  Therefore he was wrongfully sent to Marion’s segregation unit in 1980, in that the conviction for the murder of Danny Atwell was overturned by the Appellate Court because the federal prosecutors based their case against Silverstein, on testimony given by inmate informants who had cut deals with the prosecutors.

November 22nd  of 1981 at 7:15 p. m., the body of Robert M. Chappelle, a convicted killer and member of the D.C. Blacks prison gang, was found dead sprawled under his bed in his locked cell.  FBI agents theorized that he had been murdered while lying on his bunk, with his head on a pillow propped up against the cell bars..  Again federal prosecutors based their case against Silverstein on testimony given by inmate informants.   Tommy plead not guilty but was convicted of killing Robert Chappelle  based on the testimony of inmates that cut deals with the prosecutor, and the judge gave Tommy Silversteinan a sentence of life in prison for killing a gang member serving a sentence for murder in segregation at the United States Penitentiary in Marion, Illinois.

Again he plead not guilty to the killing of Chappelle as he had to the murder of Atwell; although he was well aware they were both members of the D.C. blacks prison gang.  Tommy was again sentenced to life in prison and retained in the segregation unit.  Then Raymond Cadillac Smith, a leader among the D.C. blacks was transferred into the same unit where Tommy was held.

The two killings that Tommy Silverstein  admits to are the killing of Raymond Cadillac Smith and a senior guard by the name of Merle Eugene Clutts, both were killed by Silverstein within a  13 month span of time (9-27-1982 & 10-22-1983).  

Tommy Silverstein explains that he tried to tell Cadillac that he didn’t kill Chapppelle, “but he didn’t believe me and he bragged that he was going to kill me.”  Tommy Silverstein says, “everyone knew what was going on and no one did anything to keep us apart.  Merle Eugene Clutts as well as many of the other guards, “wanted one of us to kill the other.”  After two attempts on his life by Raymond Cadillac Smith, Tommy was convicted of stabbing Raymond Cadillac Smith to death on September 27, 1982.  

No single incident in the Bureau’s history, as Pete Earley said in The Hot House, is as controversial as what happened next.  On October 22, 1983, Tommy Silverstein stabbed Merle Eugene Clutts to death in the control unit at Marion while handcuffed and escorted by three officers (guards) from the shower back to his cell.  Silverstein came out of his hand cuffs and then stabbed Clutts 38 times while the other two officers ran for safety.  Clutts was pronounced dead almost immediately.

Silverstein at the age of 31, was perhaps the most notorious inmate at Marion, particularly after he killed Cadillac Smith.   Other prisoners saw Silverstein as a defiant leader, unafraid of guards; on the other side was Merle Eugene Clutts, one of Marion’s tougher guards with a large watermelon belly and the weathered looks of a man used to working outdoors.  A prisoner by the name of John Greschner recalls Clutts telling Tommy, “Hey, I’m running this shit.  You ain’t running it.  You’re a fucking prisoner!  I’m the cop.  Who the fuck do you think you are?”

Silverstein explains that Clutts thought it would be fun to harass him and punish him further for his transgressions.  Clutts passed him when it was his turn to be the first to go into the recreation cage.  Clutts searched his cell more often than those of other prisoners and left Silverstein’s cell in a shambles every time he searched it.  Clutts would hang on to Silverstein’s mail and deliver a big bundle of it all at once after several days or weeks.  Clutts would shine his flashlight in Silverstein’s eyes during the inmate counts.  Clutts would also intentionally smudge his artwork, teasing him and saying, “I did a bit of work on your painting.”

Clutts was a bully, picking on Silverstein. Tommy has always hated bullies and he hated Clutts.  What isn’t disputed is that Clutts and Silverstein disliked each other, and this dislike turned to a personal hatred.  (The BOP denies that Merle Eugene Clutts harassed Silverstein, of course, while other inmates claim Silverstein is telling the truth.)

Over the years, guards have made Officer Merle Eugene Clutts into a martyr, the inmates have done the same with Tommy Silverstein.  “I told Tommy, hey man, when you kill a cop, you know it’s over.  Your life is gone.”  Then Ronnie Bruscino, a convicted murderer, in a cell near Silverstein’s in 1983, continued, “Twenty years from now every guard will still know you are the one who killed a cop, because that is something the guards never, never forget.”

That was 23 years ago.  After five more years in isolation, Tommy Silverstein stopped violating prison rules and settled down at Leavenworth in 1987.  Thus, he has not received a disciplinary report in 19 years.  An accomplishment for which Mr. Silverstein should be rewarded, not punished.

The only reason I can think of to transfer Tommy Silverstein to a more punitive prison after 19 years of good behavior would be provocation and/or additional punishment.  Provocation as well  as additional punishment and torture is inconsistent with modern penal practices and with the BOP mission statement and vision statement.

The provocation of inmates is beyond comprehension.  Other than the innate pleasure derived from sadism, what benefit is derived from deliberate provocation or increased (meaningless) punishment?  If effective, it can only lead to the unjust killing of a prisoner or perhaps a BOP employee?  

Federal Bureau of Prisons’ employees should not be harmed as a result of provocation or increased meaningless punishment at the whim of administrators within the BOP.  These administrators should be prosecuted for provoking  inmates in their charge, and for authorizing additional (meaningless) punishment they should be dealt with very harshly for their calloused treatment of those in their charge.

   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 Fed. R. Evid. 404(b) . Nevertheless, the threats were admissible to establish "intent," see id., in the sense that it is more likely than not that if Fountain had acted out of innocent motives, he would have shown some remorse about the unfortunate necessity of his actions, rather than manifested a violent sense of glee.

   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 Fed. R. Evid. 404. Second, the district court's refusal to allow Fountain to subpoena two inmate witnesses to rebut the incriminating testimony of a Government witness violated Fountain's statutory and constitutional right to compulsory process. Third, I would vacate the restitution sentences in their entirety. The district court erred in failing to make a meaningful inquiry into the financial resources and earning ability of the defendants, as required by statute. See 18 U.S.C. § 3580(a) (1982).

   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, Fed. R. Evid. 609 is not at issue. It is uncontested that the Government could impeach the credibility of Silverstein and Fountain by introducing evidence of prior convictions. But Rule 609 does not allow the prosecutor to "probe" into the violent details of those prior crimes. Only the name of the crime, the time and place of conviction, and the punishment are admissible for the purposes of Rule 609. See 3 J. Weinstein & M. Berger, Weinstein's Evidence § 609[05] at 805 609-86 (1982); C. McCormick, Evidence § 43 at 98 (3d ed. 1984).

   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 Fed. R. Evid. 404(b). Here, Silverstein had already admitted his murder convictions. To further inform the jury that these murders took place in prison added no further insight to Silverstein's credibility, but merely encouraged the jury to infer that Silverstein had a propensity for prison violence.

   Second, Fed. R. Evid. 608(b) is not at issue here. That rule does not allow the prosecution to expand its inquiry beyond that permitted by Rule 609. See generally 3 J. Weinstein & M. Berger, supra, at § 608[05]. Nor can the Government's cross-examination of Fountain and Silverstein be considered impeachment by contradiction within the meaning of Fed. R. Evid. 607. See J. Weinstein & M. Berger, supra, at § 607[05]. The cross-examination of both defendants tended to contradict assertions made on direct examination only insofar as a propensity to behave violently could be inferred from the prior crimes. Yet such an inference is prohibited, with some narrow exceptions, by Fed. R. Evid. 404(b).

   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 Fed. R. Evid. 404, 405. One of the exceptions is the use of character evidence to establish that a person acted in conformance with a character trait. See Fed. R. Evid. 404(a), 405. However, the Government can only introduce character evidence to rebut character evidence introduced by the defendant in the first instance. Fed. R. Evid. 404(a)(1). Even the majority concedes that the self-defense claims of Silverstein and Fountain were not assertions of character traits that opened the door to cross-examination about their propensity for violence.

   The majority holds that another statutory exception, Fed. R. Evid. 404(b), permitted the prosecutor to cross-examine Fountain about the details of his prior knifing of an inmate: to establish Fountain's "intent." The applicability of this exception was neither argued below nor raised in any of the briefs on appeal. In any event, it is difficult to see how Fountain's prior use of a knife to attack a prisoner impugns his present claim of self-defense. To be sure, one can argue that this establishes a predilection to use knives offensively rather than defensively, but such propensity evidence is precisely what is prohibited by Rule 404(b).

   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 806 completely different set of circumstances. There are simply too many variables to permit an inference that the second time Fountain used his knife he knew from prior experience that he was exceeding the bounds of his privilege of self-defense, or that, given this knowledge, it was more likely than not that Fountain never intended to defend himself at all.

   The majority also holds that the prior knifing was admissible to show a modus operandi, which is a "plan" within the meaning of Fed. R. Evid. 404(b). See generally 2 J. Weinstein & M. Berger, supra, at § 404[16]. Again, this is an issue that is raised sua sponte by the court, and again, the argument is meritless in any event because the prior act is not sufficiently similar to satisfy the statute. If the method of operation is "so unusual and distinctive as to be like a signature," then it is more likely than not that repeated uses of the method were the handiwork of the defendant acting with the requisite specific intent. See id. at § 404[16] (3). That Fountain used a knife in both incidents is not a sufficiently distinctive similarity to establish a modus operandi.

   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

   Fed. R. Crim. P. 17(b) requires the district court to subpoena witnesses who are "necessary to an adequate defense." Adopting a narrow, and unprecedented, interpretation of Rule 17(b), the majority holds that the witnesses sought by Fountain were not "necessary" to his defense because their testimony "could not reasonably be expected to make a difference to the outcome of the trial." Such an interpretation ignores Rule 17(b)'s literal requirement that the witnesses need only be necessary to an adequate defense, not a winning or dispositive defense. Moreover, the majority conspicuously omits any reference to the defendant's sixth amendment right "to have compulsory process for obtaining witnesses in his favor." This sixth amendment right is not limited to "important," "necessary," or "vital" witnesses.

   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, Complusory 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, (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, 733 F.2d 1208, 1212-13 (7th Cir.), cert. denied, 469 U.S. 1039, (1984); Greenwell v. United States, 115 U.S. App. D.C. 44, 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 807 willing to concede that had Fountain been able to present his witnesses, he would have almost certainly been convicted nevertheless. Therefore, the error was substantively harmless. But the Constitution guarantees something more than substantively correct verdicts. To focus only on the outcome of a trial is to trivialize the procedural rights guaranteed by the Constitution. Accord Field, Assessing the Harmlessness of Federal Constitutional Error -- A Process in Need of a Rationale, 125 U. Penn. L. Rev. 15, 33 (1976) (broad use of harmless error doctrine disparages the notion that the guilty as well as the innocent deserve constitutional protections and encourages circumvention of constitutional rights).

   The Supreme Court has stated that some constitutional errors can never be harmless. Chapman v. California, 386 U.S. 18, 23 & n.8, (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, (1963); Tumey v. Ohio, 273 U.S. 510, (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, (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 808 restitution award for lost future earnings where the underlying calculations of such an award are in dispute. The majority reasons that because these calculations would "unduly complicate or prolong the sentencing process," 18 U.S.C. § 3579(d), this kind of restitution award is precluded by statute, see id. Such an assumption contradicts both common sense and the intent of Congress. I fail to see why we should conclusively presume that every contested calculation would unduly complicate the sentencing process. Surely there are some victims whose future earnings are easily predictable, and surely district judges have sufficient competence and experience to expeditiously predict future earnings and discount to present value, despite the failure of the parties to agree on the necessary calculations. Furthermore, district judges are in the best position to determine whether a particular calculation in a particular case will unduly complicate the sentencing process. As for the intent of Congress, the majority's per se rule will essentially repeal restitution for lost income provided for in 18 U.S.C. § 3579 (b)(2)(C) because all calculations of future income can be "contested."

   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 18 U.S.C. § 3580(a).

   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, slip op. at 5-6 & n.6 (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, Pub. L. No. 97-291, § 7, 96 Stat. 1248, 1257 (reprinted in annotation to 18 U.S.C. § 3579 (1982)). And indeed, the Comprehensive Crime Control Act of 1984 includes precisely such a law. See Pub. L. No. 98-473, Title II, § 1406(a), 98 Stat. 1976, 2175-76 (enacting 18 U.S.C. § 3671). *

   * To be sure, the statute apparently allows the United States Attorney to seize the proceeds of the life story and apply them to satisfy a restitution sentence, insofar as such a sentence is enforceable as a civil "money judgment" within the meaning of 18 U.S.C.A. § 3671(c) (1)(A)(i) (West 1985). But this assumes that the restitution sentence was properly imposed in the first place -- i.e., that the defendant was shown in the first instance to have the present ability to pay or that his future income from a sale of his life story was not merely speculative, as it is in the case at bar. In any event, the instant victims will be able to claim the proceeds if, in lieu of a restitution sentence, they secure a civil tort judgment against the defendants in federal or State court. See 18 U.S.C.A. §§ 3671 (c)(1)(A)(i), (B)(i) (West 1985).

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Nos. 82-2453, 82-2454, 82-2456, 82-2457

   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, (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, 1142, (1984); Garner v. United States, 424 U.S. 648, 654 n.9, (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 is not a party may have blundered into making a self-incriminating statement without appreciating the significance of his action, inflicts a wrong on a party to that case by reminding the witness of his Fifth Amendment right and permitting him to withdraw the statement.

   The second rule is that if a witness confesses on the stand to wrongdoing he cannot refuse to give the details. See, e.g., Klein v. Harris, 667 F.2d 274, 287 (2d Cir. 1981). "The privilege [against compulsory self-incrimination] is to suppress the truth, but that does not mean that it is a privilege to garble it. . . ." United States v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942) (L. Hand, J.), cert. dismissed, 319 U.S. 41, (1943). But since Matthews' initial testimony was suppressed, his failure to elaborate could 1345 not garble that testimony in any sense relevant to the trial.

   No court has decided whether the district judge has the power to protect a witness who has begun to incriminate himself from inadvertent abandonment of his Fifth Amendment privilege in circumstances where the government is not seeking either to use the witness's initial testimony against him or to get the witness to elaborate on that testimony in order to prevent distortion. But since in these circumstances the judge can caution a witness before the witness speaks ( Colyer), and it would be illogical to hold that he may not caution the witness seconds later after the witness has blurted out a damaging admission, we hold that he may.

   The manner in which defense counsel questioned Matthews provides an independent reason for refusing to set aside the defendants' convictions because of the exclusion of Matthews' testimony. By asking him whether he realized that he had a constitutional right not to be forced to incriminate himself, counsel invited Matthews to retract his answer and assert his right, and will not be heard to withdraw the invitation.

   And since Matthews' affirmative answer implied, as defense counsel intended that it should imply, that he was testifying with due awareness of the possible consequences to him of testifying, and therefore presumably with greater reluctance to incriminate himself falsely, the prosecutor was entitled to verify that Matthews really was knowingly waiving his Fifth Amendment right -- really was aware that he did not have to testify against himself but that if he did so he could be prosecuted and his testimony used to convict him. If there was any error, therefore, it was invited by defense counsel's manner of questioning Matthews.

   The judge's questions designed to elicit Matthews' understanding of the significance of his testifying were not excessive in number or badgering in tone or phrasing, and therefore we cannot agree that by the manner of putting them the judge drove a key defense witness off the stand; nor did the prosecutor intimidate the witness, as in United States v. Morrison, supra, 535 F.2d at 227-28, or United States v. Smith, 156 U.S. App. D.C. 66, 478 F.2d 976, 979 (D.C. Cir. 1973). And therefore the judge was also justified (indeed compelled) to direct the jury to disregard Matthews' testimony, as the prosecution was deprived by Matthews' assertion of his Fifth Amendment privilege of an opportunity to cross-examine him.

   The judge's reference to the threat of prosecution for perjury if Matthews testified presents a related issue. The judge said that a misstatement could open Matthews to a perjury prosecution. This was literally true but was likely to create a misleading impression because a critical proviso was omitted: if the misstatement was deliberate. The defendants argue that by exaggerating to Matthews the danger that he might be prosecuted for perjury if he testified on their behalf, the judge improperly drove him from the stand even if the judge's handling of Matthews' Fifth Amendment right was impeccable.

   In different circumstances we can easily imagine that a judge's telling a defense witness that a misstatement (as distinct from a deliberate misstatement) could result in perjury charges would indeed be reversible error if the witness then declined to testify; it would be an unjustifiable interference with a criminal defendant's right to defend himself by calling witnesses. But it was not fear of perjury charges that led Matthews to step down. When he decided not to testify he gave as his reason his Fifth Amendment right rather than any fear of a perjury prosecution. And it is difficult to imagine that he could really have feared the consequences of such a prosecution.

   Matthews is serving three consecutive life sentences (at least one a state sentence) for either two or three murders (the record is unclear on this point). The incremental punishment that would result from a conviction for perjury would be, as a practical matter, zero. Thus we cannot believe that the judge's misstatement about misstatements could have been the 1346 decisive factor in Matthews' decision not to testify; if it was error, it was harmless beyond a reasonable doubt.

   This point may seem to undermine our earlier conclusion that Matthews voluntarily asserted his Fifth Amendment privilege in declining to testify. If he had testified about the murder of Chappelle and his testimony had been believed, he could have been prosecuted for murder but at worst this would have meant another consecutive life sentence -- and what would a fourth consecutive life sentence add to the three previous ones? But this is tantamount to an argument that Matthews had no Fifth Amendment right not to testify in the defendants' case because he could not really incriminate himself, an argument that will not wash despite its practical appeal.

   To incriminate oneself is, as the language of the Fifth Amendment makes clear ("No person . . . shall be compelled in any criminal case to be a witness against himself"), to expose oneself to criminal prosecution, Hoffman v. United States, 341 U.S. 479, 486-87, (1951); In re Folding Carton Antitrust Litigation, 609 F.2d 867, 872 (7th Cir. 1979), even if a successful prosecution is unlikely to add to the punishments that one is already undergoing for other crimes. Matthews' Fifth Amendment right may not have been worth much, which leads us to wonder why he bothered to assert it; but there is no more plausible explanation of why he decided not to testify. The hypothesis that he did so because he feared being prosecuted for perjury if he made an honest mistake is even less believable.

   But, the defendants argue, if Matthews was allowed not to testify, then at least his pretrial statements, which included a confession to the murder of Chappelle, should have been admitted under the exception to the hearsay rule for statements against interest. See Fed. R. Evid. 804(b)(3). One condition of the exception clearly was satisfied. The declarant was unavailable; Matthews could not be questioned in court about the confession once he took the Fifth Amendment. Fed. R. Evid. 804(a)(1); 4 Weinstein & Berger, Weinstein's Evidence para. 804(a)[01] at pp. 804-34 to 804-35 (1981). And we shall assume that the confession was a statement against interest (so satisfying another condition), though the contrary position is arguable since Matthews could not be further punished in view of his life sentences.

   But there is still another condition in Rule 804(b)(3) that is pertinent to this case: "A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." (Emphasis added.) As this language and the legislative history indicate (see Notes of Advisory Committee on Proposed Rule 803, Subdivision (b), Exception (3); H.R. Rep. No. 650, 93d Cong., 1st Sess. 16 (1973)), such statements are suspect because of along-standing concern -- whether or not well-founded, see 5 Wigmore, Evidence in Trials at Common Law § 1477 (Chadbourn rev. ed. 1974) -- that a criminal defendant might get a pal to confess to the crime the defendant was accused of, the pal figuring that the probability of his actually being prosecuted either for the crime or for perjury was slight. See, e.g., United States v. Tovar, 687 F.2d 1210, 1213 (8th Cir. 1982) (per curiam); Lyon v. State, 22 Ga. 399, 401 (1857).

   The present case provides a good illustration of this concern. Although not shown to be a member of the Aryan Brotherhood or even a sympathizer, Matthews may well be the latter; for he is white, and there was testimony that "almost any solid white man you run into is a sympathizer. I would say the greater majority of the institution." And, as we have said, even if the government prosecuted Matthews either for the murder of Chappelle or for perjury, and succeeded in convicting him, it could not impose significant punishment. Cf. Chambers v. Mississippi, 410 U.S. 284, 300 n. 20, (1973).

   Unfortunately, the precise meaning of the corroboration requirement in Rule 804(b)(3) is uncertain, and is not much 1347 clarified by either legislative history or the cases. See Tague, Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception, 69 Georgetown L.J. 851, 958-70, 973-74 (1981). In particular, it is unclear from the rule's language whether the judge may look beyond the evidence offered in corroboration of the statement to evidence either directly contradicting the statement or contradicting the evidence offered to corroborate it. If he may look beyond, the rule is open to the objection that it withdraws the credibility determination from the jury. But probably he may, in light of the Advisory Committee's admonition that "The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication." It is noteworthy that this caution was offered before the House Committee further strengthened the rule by inserting the word "clearly," which had not been in the proposed rule.

   Evidence that the judge was not required to ignore created a strong inference that Matthews' statements were totally fabricated -- which would be no surprise in view of his de facto immunity from being punished for either murder or perjury. Cf. United States v. MacDonald, 688 F.2d 224, 233 (4th Cir. 1982). Although the fact that Matthews was let out of his cell before the discovery of Chappelle's body provides slight corroboration for his statements, the medical evidence that Chappelle was killed by two men and the estimate of the time of death entitled the judge to conclude that the circumstances did not clearly indicate that Matthews' confession was trustworthy. Cf. United States v. Tovar, supra, 687 F.2d at 1213-14; United States v. Satterfield, 572 F.2d 687, 693 (9th Cir. 1978); Lowery v. State, 401 F. Supp. 604, 607-08 (D. Md. 1975), aff'd without opinion, 532 F.2d 750 (4th Cir. 1976).

   But even if the judge should not have considered any evidence beyond that offered to corroborate Matthews' statement, he would have had to exclude the statement. The mere fact that Matthews was out of his cell shortly before Chappelle's corpse was discovered was not clearly corroborative of his confession, but merely consistent with it. It is not as if the statement had contained facts that only the murderer could have known, or if, as in Donnelly v. United States, 228 U.S. 243, 272, (1913), which Rule 804(b)(3) overruled, there was other evidence linking Matthews to the crime. In either case the requirement of clear corroboration ("circumstances solidly indicating trustworthiness," United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976)) would have been satisfied, at least if one assumes (as we do not) that the judge could not consider the medical evidence that cast grave doubt on the truth of Matthews' statement. But on the facts presented, the requirement was not satisfied.

   We reject the argument that Matthews' out-of-court confession (whether or not trustworthy) is further and conclusive evidence that Matthews waived his Fifth Amendment right not to testify at the defendants' trial. The confession was not made under oath; and the Fifth Amendment does not allow the government to force a man to adopt his unsworn out-of-court confession. United States v. Diecidue, 603 F.2d 535, 552 (5th Cir. 1979).

   We turn now to Reynosa's contention that the judge misled the jury by his response to a question that the jury submitted to him while it was deliberating. The question was: "Is it possible to get the testimony of August '81 of Silverstein and Reynosa making contact about murdering Robert Marvin Chappelle?" The judge and counsel conferred about the question. All agreed that there had been no such testimony.

   The indictment, which had been given to the jury with the usual instruction that it was not evidence, charged that Silverstein and Reynosa made contact in August 1981. But no substantiating evidence had been offered, although the conversation between Reynosa and Perumean in which Reynosa said that Silverstein owed him a favor and would if need be "get" Chappelle did take place in August, and it implied contact, direct or indirect, between the two. The judge suggested telling the jury, "Sorry, it is not possible to furnish the requested testimony." The defendants' lead counsel agreed, provided the judge added, "Continue with your deliberations." Reynosa's counsel did not demur. The defendants were not present during this exchange and the judge did not reconvene the jury. Instead he sent the following note to the jury: "Sorry, it is not possible to furnish the requested information. Please continue with your deliberations. Judge Foreman."

   Reynosa argues that his right to be present throughout the trial was infringed because he was not in the courtroom when the judge replied to the question that the jury had raised, and in addition that the judge's reply prejudiced Reynosa's case by implying that there had been testimony about a conversation between him and Silverstein in August 1981 about murdering Chappelle. Reynosa's counsel did not object either to his client's absence from the courtroom or to the judge's reply to the jury's question; necessarily therefore Reynosa is arguing that these were plain errors. See Fed. R. Crim. P. 52(b).

   Rule 43 of the Federal Rules of Criminal Procedure requires that the defendant be present (if he desires) "at every stage of the trial," and this has been held to include the giving of a supplementary instruction or other communication with the jury after it has begun deliberating. Rogers v. United States, 422 U.S. 35, 39, (1975). But the requirement is subject to the doctrine of harmless error. Id. at 40; United States v. Burns, 683 F.2d 1056, 1059 (7th Cir. 1982); United States v. Clavey, 565 F.2d 111, 119 (1977), modified en banc on other grounds, 578 F.2d 1219 (7th Cir. 1978) (per curiam); Ware v. United States, 376 F.2d 717, 719 (7th Cir. 1967); 3A Wright, Federal Practice and Procedure: Crim. 2d § 724 at p. 31 (1982).

   It is most unlikely that a different reply to the jury's question would have been formulated if the defendants had been present. It was not the sort of question on which counsel would be likely to consult their clients, or on which the clients, if consulted, would be likely to have an answer that would sway the judge. In Ware, a similar case, this court described as "fancifully remote" the prospect that the defendant's presence would have changed the outcome of the trial. 376 F.2d at 718.

   A more troublesome point is that the reply was potentially misleading. It could be understood to imply that the testimony the jury wanted to read had indeed been given but that the transcript had not yet been prepared, or had been mislaid, or the jury for some reason was entitled to see the transcript. (Another possible interpretation of the note, however, is that no part of the trial transcript -- whatever it might contain -- was available for the jury to see.) The implication the jury might have drawn -- that there had indeed been direct testimony about a contact between Silverstein and Reynosa in August 1981 about killing Chappelle but that the pertinent pages of the transcript were for some reason unavailable -- was incorrect. The jury should have been told that there had been no direct testimony about such a contact but that it could consider, if it thought it significant, whether the testimony supported an inference that such a contact had been made.

   But we do not think the instruction actually given was so likely to have changed the result that a retrial is necessary to avoid a miscarriage of justice, the test for whether an error is "plain" within the meaning of Rule 52. United States v. Frady, 456 U.S. 152, 163 n. 14, (1982); United States v. Blackwell, 224 U.S. App. D.C. 350, 694 F.2d 1325, 1341 (D.C. Cir. 1982). It is true that the only evidence of Reynosa's participation in the conspiracy consisted of testimony by other inmates as to incriminating statements that Reynosa had made. But there was a good deal of mutually corroborating testimony along these lines and if the jury believed it, as it was entitled to do, then it had to convict Reynosa, while if it disbelieved the inmates' testimony it had to acquit him.

   A suspicion (quite possibly correct) that Reynosa and Silverstein had "made contact" (maybe indirectly) in August 1981 could not have tipped the scales. Of course the fact that the jury asked for the transcript shows that the question of such a contact concerned at least one juror, and the form in which the judge replied might have confirmed the erroneous recollection of a juror or jurors who thought there had been such testimony. But since the judge refused to supply the requested transcript, the jury 1349 could not have placed decisive weight on the erroneous recollection of the testimony. Whoever wanted the transcript must in the end have been convinced that there was enough other evidence, as indeed there was, to link Reynosa to the conspiracy to murder Chappelle.

   To be plain, an error must be conspicuous, at least in hindsight, and maybe the error in the supplementary instruction was; but it must also be an error that probably changed the outcome of the trial, and the fact that this error cannot be dismissed as harmless (as can the error in responding to the jury's question without the defendants' being present) is not enough to show that it probably changed the outcome. See United States v. Blackwell, supra, 694 F.2d at 1341; 3A Wright, supra, § 856 at p. 344.

   No doubt the difference between the standards of plain and of harmless error is small, but there is some, and there is a reason for it. Reversing a conviction on the basis of an error that the defendant's lawyer failed to bring to the judge's attention is inconsistent with the premises of an adversary system and disruptive of the efficient operation of the criminal justice system. It is justifiable only when the reviewing court is convinced that it is necessary in order to avert an actual miscarriage of justice, which implies the conviction of one who but for the error probably would have been acquitted. We are not convinced that there was such a miscarriage here.

   We also reject the argument that acquiescence in the form of the reply demonstrates that Reynosa's trial counsel was ineffective. He made a mistake, but (as we have just said) not a critical one; the representation of none of the defendants at trial fell below the threshold of minimum professional competence.

   Although several other issues are raised in the defendants' briefs, none of them has any possible merit. Hevle argues with great vigor that David Owens' testimony was unbelievable, noting that he gave contradictory testimony on some points and pointing out the irony of the government's relying on the testimony of the man who proposed that the Aryan Brotherhood assassinate Chappelle. But Owens' testimony was richly corroborated by that of other inmates. If all inmate testimony were deemed inherently incredible, few crimes within prison walls could be prosecuted -- or for that matter defended.

   The judgments of conviction are