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 *805609-86 (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 Silver-stein 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 *806completely 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 Silver-stein 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, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982), the federal courts have upheld denials of a subpoena where the proposed testimony is either inherently incredible or merely cumulative. Id.; see, e.g., United States v. Solina, 733 F.2d 1208, 1212-13 (7th Cir.), cert. denied, — U.S. -, 105 S.Ct. 519, 83 L.Ed.2d 408 (1984); Greenwell v. United States, 317 F.2d 108, 110 (D.C.Cir.1963).
Fountain's proposed witnesses would have testified that Fountain had not made the incriminating remarks allegedly overheard by the Government’s witness. The majority concedes that this proposed testimony was neither cumulative nor inherently incredible. Because the testimony would have been both relevant and favorable to Fountain’s defense, the district judge was required to issue the subpoena. No court has ever required an additional showing that the testimony be necessary or outcome-determinative, for such a requirement would contradict the broad language of the compulsory process clause.
The real issue is not whether error was committed, but whether the error was harmless beyond a reasonable doubt. I am *807willing 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, 87 S.Ct. 824, 827 & n. 8, 17 L.Ed.2d 705 (1967). For example, the defendant cannot be denied his right to counsel or his right to an impartial judge simply because the evidence against him is so overwhelming that he will be convicted in any event. Id. (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)). Nor has any court ever held that denial of the defendant’s sixth amendment right to jury trial can be harmless error. Similarly, it can be argued that the right to compulsory process is a fundamental procedural right that can never be “harmlessly” denied the defendant. In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the Supreme Court indicated that the compulsory process right is not only a right in and of itself, but also a necessary adjunct of the right to jury trial: “The right to offer the testimony of witnesses ... is in plain terms ... the right to present the defendant’s version of the facts as well as the prosecutor’s to the jury so it may decide where the truth lies.” If the denial of the defendant’s right to jury trial cannot be harmless, then the denial of the necessary adjunct to the right to jury trial also cannot be harmless.
Yet, even this approach to the harmless error question tends to trivialize important procedural rights. It is unwise to distinguish rigidly between rights that can never be subject to harmless error analysis and other rights, for the implication of such a dichotomy is that these “other,” somehow less important rights can always be subject to harmless error analysis. This dichotomy must be false because the denial of a fair trial can never be harmless, and the defendant can be denied a fair trial on any number of grounds, including a sufficiently grave violation of one of these “other” rights.
I would therefore hold that one member of the set of constitutional rights that the Court in Chapman indicated could never be harmless is the fifth amendment right to due process of law. Thus, even if a particular constitutional right is not itself automatically exempt from harmless error scrutiny, it may nevertheless be exempt from such scrutiny if the deprivation of the right is sufficiently grave to deny the defendant due process of law. And one is deprived of due process if the procedural violation is, viewed in the context of the trial as a whole, significant enough to deprive the defendant of a fair trial.
In short, after finding error, the court should always engage in a two-tier inquiry. First, it should determine whether the error is “harmless” in the sense that the defendant will be convicted even if the error is corrected. Second, it should determine whether, in any event, the conviction should be reversed because the error denied the defendant a fair trial.
In the instant case, I would hold that even though the denial of Fountain’s compulsory process right was not outcome determinative, it denied him a fair trial. This was not a trivial infraction: the defendant was prevented from rebutting the damaging testimony of a Government witness. I would also reverse and remand for a new trial on this ground.
Ill
According to my understanding, the majority adopts a per se rule precluding any *808restitution 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 ease 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, 1223-24 (7th Cir.1985). The district judge did not discharge this duty by awarding over one-half million dollars in restitution simply on the basis of the speculative assertion that the defendants might sell their life stories.
Second, Congress did not intend the restitution statute to apply to those individuals who might conceivably sell their life stories sometime in the speculative future. Otherwise, it would not have included a directive requiring the Attorney General to report on legislation that would address this problem. See Victim and Witness Protection Act of 1982, 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).*
Therefore, although I would affirm Gometz’ conviction, I would vacate his restitution sentence and remand for resentencing in light of the statutory mandate to make a meaningful inquiry into his financial resources. Because I would reverse the convictions of Silverstein and Fountain and remand for new trials, a similar order with respect to their restitution sentences would be unnecessary.
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)(l)(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)(l)(A)(i), (B)(i) (West 1985).