holding that reasons for prohibiting the use of post-Miranda statements "did not apply to the non-custodial, preindictment meeting” between the defendant and two non-government attorneys
How later courts described this case
- holding that reasons for prohibiting the use of post-Miranda statements "did not apply to the non-custodial, preindictment meeting” between the defendant and two non-government attorneys
- noting that two functions of the bill of particulars are “to inform the defendant of the nature of the charge[s] against him with sufficient precision to enable him to prepare for trial [and] to avoid or minimize the danger of surprise at the time of trial” (citation omitted)
- holding that defendant can be found guilty of conspiring “to cause to be committed” an illegal act by combining other statutes with 18 U.S.C. § 2(b)
- "By relating a personal history supportive of good character, however, the defendant may achieve the same result."
Written by the judges who cited it.
Later courts went against this
Disagreed with by Joachim E. Dressler v. Gary R. McCaughtry, 238 F.3d 908 (2001)
597 F.2d at 1208-09, we reject the reasoning therein.
The opinion
SWEIGERT, District Judge, *
concurring:
I concur in Judge Trask’s affirmance of appellant’s conviction and judgment after his painstaking analysis of the record, including, of course, his conclusions concerning the use of the book (Government Ex. C 49) during the trial.
On this particular issue I merely summarize those points made by Judge Trask which have led me to this concurrence.
The Introduction of the Book Into Evidence
1. The book in question was introduced into evidence during the government’s case in chief, not only without objection or any limitations motion, but, indeed, as part of a stipulation concerning the admission of this and 26 other items.
2. The contents of the book were never referred to by the government during its case in chief nor was the book, itself, mentioned except in connection with testimony that the book bore the fingerprints of defendant Giese and other alleged conspirators.
3. Under these circumstances the “plain error” standard is applicable so far as the introduction of the book is concerned.
4. There was no plain error on the part of the trial judge in allowing the book to go into evidence since the book, coupled with the fingerprint evidence, was relevant on the issue of conspiratorial association — even though the book might be circumstantial and cumulative on that issue.
5. The mere fact of the title of the book was not, up to this point, sufficient to require the trial judge to substitute his judgment concerning evidence for that of the *1201 government — especially absent any alerting objection from defendant.
The Use of the Book by the Government on Cross-Examination of the Defendant
6. This must be considered in the light of the fact that by this time an important change had occurred in the posture of the trial: Defendant, taking the stand in his own behalf, did not merely deny supplying the book to the co-conspirators, but went on to volunteer, under questioning by his counsel, the production of 18 other books (none of them previously mentioned in the trial), as exemplification of the kind of books he owned, sold and read — all obviously for the purpose of stressing his commitments to peaceful, rather than violent, social or political action.
7. In legal effect this testimony was evidence of specific acts in his personal history supportive of his good character with respect to the character traits involved in the crime charged against him. See, United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir. 1978); also McCormick's Handbook on the Law of Evidence, § 191 p. 59 (2d ed. Supp. Cleary, et al. 1978).
8. The government at this point became entitled to cross-examine defendant in order to refute his claim of good character traits by confronting him with other kinds of books, including the book (Ex. C^f9) of which, admittedly, Giese had a copy and had read from it.
The Reading from the Book by the Defendant during his Cross-Examination
9. Although defendant objected (for the first time) to use of the contents of the book on cross-examination, the objection, however, was merely on the grounds of hearsay and relevancy. It does not appear that the objection was directed to the manner in which the contents of the book already in evidence were to be elicited, i. e., whether it was to be read by the prosecutor or by the witness upon request.
10. There is nothing wrong with the fairly common practice of letting a witness, himself, read from documents already in evidence — especially absent specific alerting objections. The trial judge was not required at this point to inject himself into the procedure.
11. The record here is such that an affirmance could not be interpreted as contrary to or inconsistent with the language of United States v. McCrea, 583 F.2d 1083 (9th Cir. 1978). Further, just as in McCrea , the conviction here is so amply supported by other evidence that no prejudice could result from this court’s refusal to unreasonably and unrealistically stretch the “plain error” rule.
Sitting by designation.